JAIKUMAR Vs. SELVARAJ

JUDGEMENT

(1.) Writ Petition is in challenge of common order passed by learned Sub Judge, Palakkad on I.A. Nos. 3441 and 3843 of 2009 in O.S. No. 591 of 2008. As per Ext.P7 (I.A. No. 3441 of 2009 petitioner requested learned Sub Judge to issue appropriate orders to safeguard right of petitioner and members of his family to continue to use petition schedule property (described as a way having width of 7 metres, length of 13 metres and bounded by properties of Sundar Raj on the east, Venugopal on the south, Narayanaswamy on the west and Mannarcaud-Coimbatore road on the north), for short, "the disputed way" to reach their farm land, and to transport farm products in motor vehicles. Request made in Ext.P12(I.A. No. 3849 of 2009) is to appoint an Advocate Commissioner to identify the disputed way, It is the case of petitioner that on the immediate east of property belonging to him and other members of the Hindu Undivided Family (for short, "the HUF') is the Siruvani River and the only access to the said property (plot C in Ext. P4, sketch) is the disputed way. Petitioner claimed that the entire property of about 100 acres in Sy. Nos. 583/1 to 10 of Agali Village was taken on lease from Mooppil Nayar as per lease deed No. 1724 of 153 dated 25.6.1953 in the name of Narayanaswamy, the then eldest member of HUF and while so, as per an oral partition 10 acres shown in Ext.P4, sketch as plot C was allotted to the share of Venugopalan, father of petitioner and others. That oral partition and allotment of 10 acres were approved by the Taluk Land Board, Mannarcaud in SMP No. 679 of 1974. In Ext.P4, the said plot C is shown as bounded by plot 'A' allotted to Narayanaswamy on the west, rest of plot 'A' and plot 'F' (alloted to Sundar Raj) on the north, plot 'D' allotted to Selvaraj on the south and Siruvani River on the east. The disputed way is shown in Ext.P4 as originating from plot 'C' and leading to the Mannarcaud-Coimbatore road on the extreme north. It is the case of petitioner that respondent No. 1 filed O.S. No. 591 of 2008 against respondent Nos. 2 and 3 seeking a declaration that the sale deeds and lease deed executed by him in favour of respondent Nos. 2 and 3 are invalid and for consequential injunction. Respondent No. 2 filed O.S. No. 590of 2008 against respondent No. 1. In O.S. No. 591 of 2008 learned Sub Judge appointed a Receiver (Respondent No. 4) to take possession of the property referred to therein. Receiver took possession of the property including the disputed way (which according to the petitioner was not subject matter of the suits). Petitioner asserted that subject matter of the said suits was only plot 'A' in Ext.P4. It is the case of petitioner that right from the time of lease as per document No. 1724 of 1953, before and thereafter there were several roads in existence in the 100 acres which were being used by the members of the HUF and public at large and through the disputed way petitioner has a right of access to plot 'C' in Ext.P4 which property devolved on petitioner and others on the death of Venugopal. Alleging that Receiver has taken possession of the disputed way also, petitioner filed Ext.P7, application before learned Sub Judge for a direction as above stated and I.A. No. 3843 of 2009 to appoint an Advocate Commissioner to identify the disputed way. Learned Sub Judge as per the impugned common order held that it is not clear from the averments in I.A. No. 3441 of 2009 (Ext.P7) what exactly is the right claimed by petitioner, no evidence in that line is adduced and declined to grant relief prayed for but allowed the application granting permission to the petitioner to sue the Receiver, respondent No. 4 in separate suit. Exhibit P12, application for the issue of commission was dismissed. The common order is under challenge in this Writ Petition.

(2.) Learned Senior Advocate, Shri S.V. Balakrishna Iyer appearing for petitioner contended that learned Sub Judge failed to note that as per the averments in I.A. No. 3441 of 2009 (Ext.P7) and schedule description therein disputed way did not form part of subject matter of O.S. Nos. 590 and 591 of 2008 and hence learned Sub Judge was not correct in directing the Receiver (Respondent No. 4) to take possession of the disputed way. It is also contended that at any rate averments in LA. No. 3441 of 2009 (Ext.P9) are sufficient enough to make out a claim of easement by way of necessity or at least quasi easement in relation to the disputed way in so far as it is stated in the affidavit in support of the application that right from the lease and thereafter members of the HUF including petitioner were in use of the disputed way (which formed part of the 100 acres over which leave was created) and continued that user even after oral partition allotting plot 'C' to the father of petitioner. It is the contention of learned Senior Advocate that there are sufficient averments in I.A. No. 3441 of 2009 (Ext.P7) that except the disputed way petitioner and other co-owners of plot 'C' of Ext.P4, sketch have no other access to that plot, they have been using the disputed way before and after the oral partition for ingress and egress to plot 'C' from the Mannarcaud-Coimbatore road and those averments are sufficient to make out a case of easement by way of necessity or quasi easement. These matters are not considered by the learned Sub Judge. According to the learned Senior Advocate it is not the case of petitioner that Receiver (Respondent No. 4) has done anything unauthorisedly. Receiver has taken possession of the disputed way only as per orders passed by the learned Sub Judge and hence it is not a case where petitioner has to work out his remedy against Receiver (Respondent No. 4) in a separate suit. Learned Senior Advocate argued that learned Sub Judge ought to have allowed Exts.P7 and P12, applications.

(3.) Shri V. Chitambaresh, learned Senior Advocate appearing for respondent No. 1 raised a preliminary objection to the maintainability of the Writ Petition. It is argued that order allegedly removing petitioner from possession of the disputed way and impugned order on I.A. No. 3843 of 2009 are covered by Rule 1(b) and Sub-rule (2) of Order XL of the Code of Civil Procedure (for short, "the Code") which are appealable under Order XLIII Rule 1(s) of the Code and hence this Court shall not exercise its supervisory jurisdiction under Article 227 of the Constitution of India. Learned Senior Advocate has placed reliance on the decisions in Chiruthakutty v. Chandukutty,1958 KerLT 204, Hiralal Patni v. Loonkaran Sethiya, 1962 AIR(SC) 21, Raghavan Nair v. Appu Kidavu, 1979 KerLT 458 and Madhavan Sunanda v. Krishnan Chethoharan, 1987 2 KerLT 17 (C. No. 22) : AIR 1988 Ker. 228 in support of his contention that the order under challenge is appealable under Order XLIII Rule 1 (s) of the Code. Alternatively it is argued that going by the order under challenge and in particular paragraph 16 of the said order that there was no valid plea made by petitioner to be enquired into by the learned Sub Judge, it is not clear what exactly is the right claimed by petitioner and in the circumstances court below though ought to have dismissed I.A. No. 3441 of 2009 in toto was kind enough to permit petitioner to sue the Receiver (Respondent No. 4) in a separate proceeding and establish right claimed by him. According to the learned Senior Advocate, Writ Petition deserves a dismissal. Learned Counsel for respondent Nos. 2 and 3 supported arguments advanced by the learned Senior Advocate for respondent No. 1.