PANGU Vs. KUNHIMUHAMMED

JUDGEMENT

(1.) LAINTIFFS in a suit for injunction are the appellants before this court. The suit relates to a strip of land right across the property of the pLAINTIFFS. PLAINTIFFS' property is sandwiched by the property of the defendant on the southern side and a Panchayat road on the northern side. Defendant's case is that he has got a right of way through the plaintiff's property. PLAINTIFFS did not admit such a right of way through their property and that too. somewhat middle of their property. The trial court, after considering the evidence in the case found that the defendant has established a right of way and he has adduced evidence to prove the user of the way for the requisite period of time. It also considered the findings of a criminal Court in proceedings under the Criminal Procedure Code. Of course, the said proceedings ended in a Criminal Revision Petition before this court and the observations made by this court in the order in the Crl. R. P. also have been relied on by the trial court. The copy of the order in the Crl. R. P. is ext. B3. The suit was dismissed. Defeated pLAINTIFFS filed an appeal before the Subordinate Court , manjeri. The appellate court confirmed the judgment and decree of the triai court. Now the pLAINTIFFS appeal.

(2.) TWO questions of law were framed for consideration in this second appeal. They read thus: (1) Whether the lower appellate court was right in dismissing the entire suit in a case where the appeal relates only to a right of way claimed by the defendant. (2) Whether the courts below are right in relying on the orders of the Executive Ist Class Magistrate's Court to uphold the defendant's plea of a right of way along the plaintiff's property. Counsel for the appellants rightly argued only the second question.

(3.) A reading of the appellate court judgment convinces me that the appellate court was under a misapprehension and did not postulate the correct proposition of law. It thought that since the orders passed by the criminal Court in proceedings under S. 147 of the Criminal Procedure Code, would fetter the discretion of the Civil Court under the provisions of 0. 39 R. 1 or r. 2 as the case may be, the orders passed in the criminal proceedings are sufficient for negativing the claim for preventive injunction. T feel that this is the reason for the appellate court for not considering the question whether the defendant has established a case of an easement of right of way. The appellate court ought to have considered that question; it has not been done in this case. So, the second question formulated by this court at the time of admission has to be answered in favour of the appellants.