MATHUKUTTY Vs. THANKAM

JUDGEMENT

(1.) FIRST defendant in O.S. No.89 of 2002 of the court of learned Munsiff-Magistrate, Mannarkkad is the petitioner before me challenging the order passed by learned Sub Judge, Ottappalam on I.A. No.2343 of 2009 in A.S. No.33 of 2009 granting an order of temporary injunction favour of respondent-plaintiff and restraining petitioner from causing any obstruction to the latter making use of the disputed way. According to the respondent, plaint A schedule belonged to her and she was enjoying access to that property through the B schedule which according to the respondent, petitioner attempted to annex to his property. Petitioner disputed existence of a way and contended that the disputed B schedule way is part of property belonging to him. Trial court dismissed the suit holding that existence of way is not properly proved. Respondent challenged that judgment and decree in appeal (A.S. No.33 of 2009) and prayed for interim order of injunction vide I.A. No.2343 of 2009. Learned Sub Judge allowed that request bearing mind in that until disposal of the suit there was an order of injunction. The order on I.A. No.2343 of 2009 is under challenge. Learned counsel for petitioner contended that there is no such way in existence as rightly found by the learned Munsiff-Magistrate and at any rate after disposal of the suit petitioner has effected improvements in his property and now the way as granted by the learned Sub Judge as per order on I.A. No.2343 of 2009 goes through the middle of property of petitioner. Learned counsel has invited my attention to the report of the Advocate Commissioner obtained in the appeal where of course there is reference to the remnants of coconut saplings and plantains found along the disputed way.

(2.) LEARNED counsel for respondent contended that through out pendency of suit there was an order of injunction which was obeyed by the petitioner and what the appellate court has granted is only an order in continuation of the said order with which petitioner cannot be said to be prejudiced. It is submitted that on the facts and materials there is no reason to interfere with the order and learned Sub Judge could be directed to dispose of the appeal as early as possible.