BEENA Vs. ASHA KRISHNAN

JUDGEMENT

(1.) The writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs:

(2.) Petitioners, two in number, are the defendants in O.S.No.364/2008 on the file of the Munsiff Court, A door, and the respondent is the plaintiff in that suit. Suit was one for a declaration that the provision in Ext.P3 sale deed executed in favour of the defendants by the owners of that property to use the plaint schedule property as a way by the vendees is not binding on the schedule property and the owner of that property, the plaintiff. Ext.P1 is the copy of the plaint in the suit. In Ext.P3 sale deed executed in favour of the defendants, a provision had been made in respect of the plaint schedule property enabling them to use it for their enjoyment of the property covered by the deed. Plaint schedule property is a pathway having a width of Rs. 10.25 ft. extending to an area of 1 are 11 Sq.m (2.750 cents) situated in the north-south direction in R.S.No.172/24 in Block No.3 of Pandalam Village. Suit claim was based on Ext.P2 sale deed executed in favour of the plaintiff in respect of the plaint schedule property, the pathway aforementioned, which according to the plaintiff, conferred absolute title and possession over such property in her favour and, after transfer, none had any right to encumber or create any restraint in the enjoyment of the exclusive possession of that pathway by the plaintiff.

(3.) I heard the learned counsel on both sides. The learned counsel appearing for the petitioners submitted that though the petitioners are really aggrieved and have serious exceptions to the findings made under Ext.P8 judgment by the learned District Judge interpreting the legal effect of the provisions covered by Ext.P2 sale deed, which is the crucial issue arising for adjudication in the suit, in the present writ petition, over and above seeking a direction to the trial court to decide the suit without being influenced by the observations in Ext.P8 judgment, the grievance of the petitioners is confined to the restraint placed on them in making use of the pathway for vehicular access. That part of Ext.P8 judgment restraining the defendants from making use of the pathway for vehicular access in the given facts of the case, demand modification, submits the counsel, setting forth a plea that the defendants are now putting up a residential building in their property covered by Ext.P2 sale deed and the construction is in half way. Any restraint in using the pathway for vehicular access as ordered in Ext.P8 judgment, it is submitted, will cause them severe hardship and irreparable injury. On the other hand, resisting the modification of the impugned judgment sought for by the petitioners, the learned counsel for the respondent, plaintiff in the suit, strenuously urged that the interpretation of the provisions in Ext.P2 sale deed, with reference to the legal principles enunciated under Sections 11 to 40 of the Transfer of Property Act is unimpeachable, and under Ext.P8 judgment, the legal right of the plaintiff to restrain interference over the plaint schedule property by the defendants is recognised, but, still, at present, only an order restraining them from making use of that way for vehicular access alone is passed. According to the learned counsel, there is no scope for interference with Ext.P8 judgment passed by the learned District Judge which has been rendered after meticulously examining the documents produced with reference to the legal principles applicable. Inviting my attention to Leela v. Ambujakshy, 1989 2 KerLT 142, the learned counsel for the respondent contended that the vendor of Ext.P2 sale deed, Sri. Raveendran Pillai had no right over the property covered by Ext.P3 sale deed executed in favour of the defendants, but, he too joined with his wife and son, the vendors of that deed, to incorporate a provision under Ext.P3 deed enabling the vendees to use the pathway already conveyed to the plaintiff. The provision under Ext.P2 deed is an absolute restraint and it cannot be enforced by the defendants who obtained title over another portion of the property from other persons, the wife and son of the above said Raveendran Pillai, submits the counsel. So, in any view of the matter, according to the counsel, the challenge raised against Ext.P8 judgment is devoid of any merit, and the writ petition deserves only to be dismissed.