M A JEEVA Vs. JOSHWA MATHEW

JUDGEMENT

(1.) WRIT Petition is in challenge of Ext.P9, judgment in C.M.A.No.4 of 2010 of the court of learned Sub Judge, Kattappana.

(2.) PETITIONER filed O.S.No.213 of 2009 in the court of learned Munsiff, Kattappana for a decree for prohibitory injunction against one Mathew Scaria causing obstruction to the plaint B schedule pathway stated to be having width of 12 feet and length of 250 metres, originating from the road on the west and leading to plaint A schedule belonging to the petitioner. Immediately after institution of suit, Advocate Commissioner inspected the properties on 18.12.2009 and submitted Ext.P5, report dated 05.01.2010 reporting about plaint A and B schedules. Later, alleging that the said Mathew Scaria caused obstruction to plaint B schedule pathway in violation of interim order of injunction petitioner filed application for mandatory injunction to direct the said Mathew Scaria to remove obstruction caused to plaint B schedule pathway. Pursuant to that application Advocate Commissioner again inspected the property on 06.01.2010 and submitted Ext.P6, report dated 07.01.2010 reporting about alleged obstruction to plaint B schedule pathway. Learned Munsiff allowed the application for mandatory injunction and directed the said Mathew Scaria to remove obstruction caused to plaint B schedule pathway. Since that order was not complied with petitioner filed I.A.No.407 of 2010 to implement the order of mandatory injunction and that has been allowed vide Ext.P11, order dated 11.03.2010. It is pointed out that Ext.P11, order is under challenge in C.M.A.No.7 of 2010 and operation of Ext.P11, order is stayed vide order on I.A.No.419 of 2010. 2. In the meantime grandson (respondent No.1 herein) of Mathew Scaria claiming to be the owner of property adjacent to the disputed plaint B schedule filed O.S.No.3 of 2010 against petitioner and moved I.A.No.13 of 2010 for temporary injunction. According to respondent No.1 there is no such pathway as described in plaint B schedule of O.S.No.213 of 2009 and instead, there is only a pathway having width of three feet. That application was opposed by the petitioner contending that width of the pathway is 12 feet and that after filing of O.S.No.213 of 2009, Mathew Scaria trespassed into the disputed pathway reducing its width to two feet. In that case also Advocate Commissioner inspected the property and reported about the condition of disputed way as on the date of his inspection. Learned Munsiff dismissed I.A.No.13 of 2010 by Ext.P8, order referring to the evidence produced before him. Respondent No.1 challenged that order in C.M.A.No.4 of 2010 which learned Sub Judge vide Ext.P9, judgment has allowed directing parties to maintain status quo as stated in Ext.C1, report in O.S.No.3 of 2010 until disposal of the suit. That judgment is under challenge in this Writ Petition. Learned counsel for petitioner has referred me to the various documents produced in O.S.No.3 of 2010 on the side of petitioner (defendant in O.S.No.3 of 2010) which according to the learned counsel revealed that there was a well formed pathway as on the date of institution of O.S.No.213 of 2009. Learned counsel contends that it is after the institution of that suit that pathway was interfered by the defendant in O.S.No.213 of 2009 and others. According to the learned counsel, appellate court has not referred to the materials on record in directing that status quo as reported in Ext.C1, report in O.S.No.3 of 2010 is to be maintained and disposed of C.M.A.No.4 of 2010. Learned counsel for respondent No.1/plaintiff in O.S.No.3 of 2010 contends that in the nature of contentions raised by the parties it is only just and proper that the parties were directed to maintain status quo as reported in Ext.C1, report in O.S.No.3 of 2010. It is contended that respondent No.1 to whom the property belonged is not a party in O.S.No.213 of 2009 and hence whatever order passed in that suit is not binding on respondent No.1.

(3.) I stated that the C.M.Appeal challenging Ext.P11, order is pending consideration of the learned Sub Judge. Any order that may be passed in this proceeding can have a bearing on the decision of that C.M.Appeal. I also stated that the appellate court has not gone to the facts and evidence before ordering status quo. In the circumstances I consider it appropriate to remit C.M.A.No.4 of 2010 to the court of learned Sub Judge so that learned Sub Judge could dispose of C.M.A.No.4 of 2010 simultaneously with C.M.A.No.7 of 2010. Resultantly this Writ Petition is allowed in the following lines: i. Ext.P9, judgment in C.M.A.No.4 of 2010 is set aside and that appeal is remitted to the court of learned Sub Judge, Kattappana for fresh decision. ii. Learned Sub Judge shall dispose of C.M.A.No.4 of 2010 simultaneously with C.M.A.No.7 of 2010. iii. Learned Sub Judge shall make every endeavour to dispose of the C.M.Appeals before August 20, 2010. iv. Parties shall appear in the court of learned Sub Judge on 10.08.2010.