Seema vs Baby, W/o Sivadathan

A. Badharudeen, J

Order in C.M.A.No.6/2020 on the file of Sub Court, Kottarakkara dated 27.10.2021 is under challenge in this Original Petition filed under Article

227 of the Constitution of India.

Petitioner is the plaintiff in O.S. No.552/2017 on the file of the Munsiff Court, Kottarakkara. Respondents herein are the defendants in the above

suit.

Heard both sides in detail.

Necessary facts, shorn off unnecessary details, for the decision of this case are under:

One Baby, who is the 1st defendant in O.S. No.552/2017 initially filed O.S.No.531/2017 arraying the petitioner, Seema and one Wilson as defendants.

In the above suit, Baby sought the relief of permanent prohibitory injunction restraining the defendants from encroaching upon the plaint B schedule

way and obstructing the plaintiff therein from enjoying the said way. Along with the suit, I.A. No.3329/2017 was filed seeking temporary injunction.

The learned Munsiff, after appraising the matter on merits, dismissed the injunction application on 24.01.2018. Thereafter, Baby filed an appeal as

C.M.A. No.4/2018 before the Sub Court, Kottarakkara. As per the judgment dated 29.11.2019, the learned Sub Judge dismissed the Civil

Miscellaneous Appeal.

Thereafter, Baby filed O.P.(C) No.1133/2020 before this Court challenging the above said orders produced as Exts.P10 and P11 in this Original

Petition. This Court disposed of O.P.(C) No.1133/2020 as per order dated 05.10.2020, which is produced as Ext.P12 in this case. This Court set aside

Exts.P10 and P11 orders (Exts.P5 and P6 in O.P.(C) No.1133/2020) and the matter was restored back with a direction to the trial court to consider

the same afresh.

Subsequent filing of O.S.No.531/2017 by Baby, Seema/the petitioner herein, filed O.S.No.552/2017 contending that the plaint schedule property

therein inclusive of B Schedule in O.S.No.531/2017, are properties of Seema and the B schedule way is a private way, exclusively meant for the use

of Seema.

Along with O.S.No.552/2017, I.A. No.3424/2017 was filed seeking temporary injunction restraining the defendant from trespassing upon the plaint

schedule property or from using the same as a path way or obstructing the plaintiff in strengthening its boundaries or enjoying it.

As per order dated 18.11.2017 produced as Ext.P3 herein, the learned Munsiff granted interim injunction. Ext.P3 was challenged in

C.M.A.No.6/2020. As per order dated 27.10.2021, the learned Sub Judge vacated the interim injunction granted in I.A. No.3424/2017. The above

order produced as Ext.P7 is one under challenge before this Court.

It is submitted by the learned counsel for Seema that the learned Sub Judge passed the impugned judgment on 27.10.2021, after the judgment in

O.P.(C) No.1133/2020 passed by this Court. Therefore, the learned Sub Judge not given due weight to the judgment of this Court, whereby this Court

set aside the orders in the interim injunction petition filed in O.S.No.531/2017. It is argued by the learned counsel for the petitioner/Seema further that

C.M.A.No.6/2020 (the order impugned) was filed after delay of 887 days and the learned Sub Judge in fact failed to consider the inadequate delay in

filing the appeal while considering the order in I.A. No.3424/2017.

While addressing the argument mooted by the learned counsel for Seema, in the matter of alleged dis-respect shown by the learned Sub Judge in

relation to judgment in O.P.(C) No.1133/2020, the learned counsel was asked whether the said judgment was placed before the learned Sub Judge? In

fact, the learned counsel is not so sure as to production of this judgment. The matters available before this Court do not suggest that the said judgment

of this Court was placed before the learned Sub Judge while passing the impugned judgment. Therefore, I am not inclined to address this point in

favour of Seema and to blame the learned Sub Judge.

Per contra, it is submitted by the learned counsel for Baby and others that plaint B schedule path way in O.S.No.531/2017 is a public way through

which electricity line, water connection etc., were drawn and the Panchayat given assistance to maintain the way. Therefore, Seema has no right to

obstruct the use of B schedule in O.S.Nos.531/2017 and 552/2017 and I.A.No.3424/2017 filed by Seema to annex the public way as her property,

cannot be sustained. According to the learned counsel, plaint B schedule in O.S.No.531/2017 shall be maintained till the disposal of this suit, so as to

adjudicate the rival claims put in by Baby and Seema.

While evaluating the history of the case as I have already espoused, initially Baby filed a suit claiming that B schedule, situated on the southern

side of A schedule in O.S.No.531/2017, is a public way.

Interim injunction to protect the same and its use by Seema was sought for by filing interim injunction application. Though the said applications

were dismissed, this Court set aside the above orders and remitted back the same for consideration of the injunction application afresh and it is

submitted by both sides that the said interim injunction application not decided thereafter.

Whereas, when Seema filed O.S. No.552/2017, another interim injunction application was filed to protect the plaint schedule property therein

inclusive of B schedule in O.S.No.531/2017. In the said case, the learned Munsiff granted interim injunction and, thereafter, as per the impugned

judgment, though filed after a delay of 887 days, the learned Sub Judge vacated the interim injunction.

I have perused the materials available before this Court. None of the parties produced the commission report in any of the cases. Further, no

documents available before this Court to see the nature of B schedule in O.S.No.531/2017 as well as the entire plaint schedule property inclusive of

the so called disputed way claimed by Seema as her own property. In view of the matter, I cannot find, what is the stage of plaint B schedule in

O.S.No.531/2017? However, existence of a private way is admitted by Seema, over which Baby asserts right by styling the same as a public way. In

fact, whether the disputed path way (B schedule in O.S.No.531/2017) is a public way or it is the absolute property of Seema being kept as a private

way for the use of Seema alone is the matter to be decided on evidence.

In this matter, admittedly joint trial was ordered. I.A.No.3329/2017 in O.S. No.531/2017 was remanded as per order in O.P. (C) No.1133/2020 for

consideration afresh. As such, a decision in I.A.No.3329/2017 in O.S. No.531/2017 to be taken afresh. In this context, I find that I.A.No.3424/2017 in

O.S. No.552/2017 wherefrom C.M.A.No.6/2020 arose, also to be decided afresh by the learned Munsiff. For the said purpose, the impugned order in

C.M.A. No.6/2020 dated 27.10.2021 is set aside and the order passed by the learned Munsiff in I.A.No.3424/2017 also is set aside. The learned

Munsiff is directed to reconsider I.A. No.3424/2017 in O.S.No.552/2017 along with I.A.No.3329/2017 in O.S.No.531/2017 and pass appropriate

interim orders to address the grievance of the parties, if they opt for interim orders in these cases where disposal of both suits on merits is absolutely

necessary to resolve the controversy.

However, in the interests of justice, it is ordered that plaint B schedule path way shall be maintained as such without being altered or without being

subjected for any alteration or boundary change as reported by the Commissioner in O.S.No.531/2017. The learned Munsiff is directed to take a

decision in this matter within a period of two months, after hearing both sides, if the parties opt for interim order, instead of disposal of the two suits.

Till then, B schedule shall be kept as such. If parties do not opt for interim orders as canvassed, the learned Munsiff shall try and dispose of both

cases at the earliest.

It could be noticed that trial of this matter on merits would suffice to address the grievance of the parties. Therefore, I direct the court below to

expedite disposal of O.S.Nos.531/2017 and 552/2017, at any rate, within a period of six months from the date of receipt of a copy of this judgment or

its production by the parties concerned.

The Registry is directed to forward a copy of this judgment to the court below concerned, within 7 days from today.

This Original Petition is allowed in part, as directed above.