MALATHI Vs. STATE OF KERALA

JUDGEMENT

(1.) Complaint petition has been filed before the Sub Divisional Magistrate (Executive First Class Magistrate) Alappuzha by respondents 3 to 13 alleging obstruction of a pathway alleged to be passing along the southern side of the Property belonging to the petitioners herein. It is alleged in that complaint petition that the respondents 3 to 13 are residing in their properties "situated on the just east of the Alappuzha - Thanneermukom Road" and the petitioners herein are "residing in their properties situated on the eastern side" of the respondent 3 to 13's properties. It is also alleged that the only access for respondents 3 to 13 to the "western road is through the southern part of the petitioners property comprised in Sy.No.7/2 of Komalapuram Village" and the respondents 3 to 13 have "no other access". "Adjoining to the pathway one and a half feet wide land is provided by the adjoining property holder Maniyappan of Kattuvelil" and , he surrendered it for respondents 3 to 13. It is adjoining that portion of land the said pathway passes. Respondents 3 and 13 are using the said pathway passing through the petitioners property from time immemorial. The further allegation made in the complaint petition is that with the ulterior motive of obstructing respondent 3 to 13's user of the pathway, petitioners herein "dumped some waste material, thorns and other obstructions" and obstructed the pathway. They also asserted that the petitioners herein have no right or authority to obstruct the pathway passing through the petitioners property. The act of the petitioners herein is illegal and unauthorised.

(2.) On the basis of the allegations made in the complaint petition and also relying on the reports filed by the Village Officer, Komalapuram dated 2.5.95 and 5.5.1995 respectively learned Sub Divisional Magistrate passed preliminary order under S.133(1 Cr.P.C directing the petitioners herein to remove the obstruction caused by them to the user of the pathway (in the preliminary order the pathway is described as public pathway ) within 7 days from the date of receiving of the preliminary order or in case of objection petitioners herein were directed to appear before the Sub Divisional Magistrate on 31.5.1995 at 2.30 p.m. and to show cause why the conditional order should not be made absolute.

(3.) Petitioners herein filed objection before the Sub Divisional Magistrate on 27.9.1995 disputing the existence of any such pathway passing through their property and also user of any such pathway by the respondents 3 to 13. The alternative contention raised in the objection filed by them is that alternative pathway is available to them for their ingress and egress.