CHITHRAMPALLI ENIKUTTY Vs. ANGATHIL MOIDEENKUTTY

JUDGEMENT

(1.) THE defendants challenge the concurrent orders passed in applications for temporary injunction as well as for mandatory injunction in this Original Petition. The suit is one for a decree of permanent prohibitory injunction restraining the defendants from obstructing the right of way of the plaintiffs. The plaint A schedule property belongs to the plaintiffs covered by Ext.A1 sale deed and the right of way is claimed over the plaint B schedule property covered by Ext.A2 sale deed.

(2.) EXT.A2 sale deed executed by the second defendant describes the plaint B schedule property in two thaks of measurement 7x83 feet and 7x52= feet. The Advocate Commissioner in Ext.C1 report has noted that the plaint B schedule property is a way. Ext.C1 report mentions the length and breadth of the way as 74.5 metres and 9.5 feet respectively. The Advocate Commissioner has opined that the way is sufficiently old and that the tyre marks of vehicles are also visible along the way. The question whether the way is a motorable road or a pathway only as contended by either parties could be decided in the suit alone. But the courts below cannot be faulted with in holding that the plaintiffs have established a prima facie case for the grant of injunction. The balance of convenience is also in their favour since the plaint B schedule property is used for egress and ingress.

(3.) I clarify that the temporary injunction as well as interim mandatory injunction would operate as against the second defendant alone. The same would be effective in regard to plot Nos. 9 and 13 in Ext.P10 report [marked in OP(C) No. 292/2012]. It is submitted at the bar that two other suits namely O.S. Nos. 35/2010 and 36/2010 are pending on the file of the same court. The said suits are reportedly filed by the second defendant and the legal heirs of one Pokker who owns an adjacent property (plot No. 7). The modified order of injunction as above would not affect the interim orders allegedly passed in O.S. Nos. 35/2010 and 36/2010. The findings supra are purely tentative and the court below is directed to dispose of the suit uninfluenced by the same.