KUNJAMMA TITUS Vs. SHIBU SAMUEL

JUDGEMENT

(1.) PLAINTIFF in O.S. No.222 of 2009 of the court of learned Munsiff, Pathanamthitta is the petitioner before me, unsuccessful in getting an order of mandatory injunction to remove the alleged obstruction in item No.2 described by the petitioner as a way. Petitioner is the Power of Attorney holder of defendant No.2, her son who is working abroad. Defendant No.2 is said to have purchased the suit property. It is the case of petitioner that item No.2 is the way leading to item No.1 of the plaint schedule. It is the further case that item No.2, way was dedicated by owners for use of defendant No.2 and his predecessors. On 03.04.2009 respondent caused obstruction to the said way. It is also the case of petitioner that item No.2 is the only means of access to item No.1. Respondent filed counter statement contending that there is no such way in existence and that defendant No.2 purchased property on the south of item No.1 which is situate on the north of PWD road and abutting the said road. In the trial court an Advocate Commissioner inspected the property and submitted a report. Commissioner could not find any way as stated in plaint schedule item No.2 but stated that at the portion of item No.2 pointed out by petitioner there were plantains and other crops cultivated in the recent past. Advocate Commissioner also reported that there is no other means of access to item No.1 and hence it is possible to guess that access to item No.1 was through property of respondent. Learned Munsiff was not inclined to grant any order of mandatory injunction. Petitioner took up the matter in appeal. Learned District Judge referred to the materials on record and observed that going by the documents relied on by the petitioner it would appear that it is a case of easement by grant but learned District Judge was not able to find in favour of the existence of a way or to grant mandatory injunction as prayed for. Accordingly the C.M. Appeal was dismissed. That judgment is under challenge. Learned counsel for petitioner contended that in so far as in paragraph 25 of the judgment learned District Judge has referred to the right of petitioner and observed that it would appear that parties did not opt to exercise the grant as seen by the lie of the land reported by the Advocate Commissioner, temporary mandatory injunction should have been granted. Learned counsel for respondent contends that even going by the plaint schedule description property on the south of plant item No.1 belongs to defendant No.2 and according to learned counsel the PWD road abuts that property of defendant No.2. Learned counsel contends that from the PWD road it is possible for petitioner and defendant No.2 to gain access to the property belonging to defendant No.2 and from there, to item No.1. Learned counsel for petitioner would contend that it is only a mis-description in the plaint schedule and that the document will show that property on the south of item No.1 does not belong to defendant No.2. Now I am at the question whether interference under Article 227 of the Constitution is required.

(2.) I made an attempt to find whether some alternative arrangement could be made in the matter till the disposal of the suit. But on hearing both sides it appears to me that it is not possible to make any such interim arrangement. Parties stick on to their respective claim.