MURALIDHARAN PILLAI S/O. KRISHNA AND USHA W/O. MURALIDHARAN PILLAI Vs. RADHAMANI AMMA W/O. RAMAKRISHNA PILLAI AND ORS.

JUDGEMENT

(1.) PETITIONERS are defendants and respondents plaintiffs in O.S.273/06 on the file of Munsiff Court, Kottarakkara. Respondents filed I.A.1794/06, an application under Order XXXIX Rule 1 restraining petitioner from closing or locking the gate or making any obstruction to the plaint F schedule pathway contending that they have a right of way by easement of prescription over that pathway. Petitioners resisted the claim contending that there is no pathway to the property of respondents through F schedule property belonging to petitioners and the way to the property of respondents is from the east and therefore they are not entitled to the order of temporary injunction sought for. Under Ext.P3 order, learned Munsiff dismissed the application holding that the available evidence reveals that respondents have no right of way through the property of petitioners and access to the properties through the eastern side of their property and the balance of convenience is in favour of petitioners and no irreparable injury will be caused if an order of injunction is not granted. Respondents challenged that order before Sub court, Kottarakkara in C.M.A. 30/06. The learned Sub Judge reappreciated the materials and found that the finding of learned Munsiff that there is no prima facie case for a right of way to the respondents or that balance of convenience is in favour of the petitioners is not sustainable. Under Ext.P4 an order of temporary injunction was granted restraining petitioners from obstructing the use of the existing pathway along the F schedule property through the gate fitted at the southern boundary of F schedule property, till disposal of the suit.

(2.) THIS petition is filed under Article 227 of the Constitution of India contending that learned Sub Judge should not have interfered with the discretion exercised by learned Munsiff under Ext.P3 order and therefore Ext.P4 order is illegal. It was argued that Ext.C2 report submitted by the Commissioner establish that there is a way to the plaint A to D schedule property, through the eastern varamba and respondents have no right to pass through the plaint F schedule property belonging to petitioners and therefore the order is unsustainable. Relying on the decision of the Apex Court in Seema Arshad Zaheer v. Municipal Corporation : 2006 (4) KLT 65 it was argued that when the discretion has been exercised properly by the trial court, appellate court is not entitled to arbitrarily interfere with the discretion exercised, unless the exercise of discretion by the trial court was arbitrary and therefore Ext.P4 order is to be quashed.

(3.) LEARNED Counsel appearing for respondents argued that learned Sub Judge rightly appreciated the materials and found that finding of the learned Munsiff that there is no way through the plaint F schedule property is factually incorrect and Ext.C1 report establish that there is a pathway through the plaint F schedule property to the plaint A to D schedule properties and when respondents are claiming right of easement by prescription, the question whether respondents established the right is to be decided only in the suit after evidence and in such circumstance the discretion rightly exercised by the appellate court under Ext.P4 order, cannot be interfered in exercise of the extra ordinary jurisdiction of this Court under Article 227 and therefore the petition is only to be dismissed.