IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 20TH DAY OF MAY 2022 / 30TH VAISAKHA, 1944
OP(C) NO. 742 OF 2022
AGAINST THE ORDER/JUDGMENT IN OS 1219/2020 OF PRINCIPAL MUNSIFF
COURT, NEYYATTINKARA
PETITIONER/1ST PETITIONER/1ST DEFENDANT:
S. GOPAKUMAR
AGED 74 YEARS
SON OF SHANKARAN NAIR,
SAIKRIPA, VN NO.22, VYASA NAGAR,
PARUTHIPARA, PATTOM P O,
THIRUVANANTHAPURAM, PIN - 695004
BY ADV G.S.REGHUNATH
RESPONDENTS/COUNTER PETITIONERS & PETITIONERS 2 TO 5/PLAINTIFFS &
DEFENDANTS 2,3,6 AND 7:
1 V. VAMADEVAN NAIR
AGED 67 YEARS
SON OF VELAYUDHAN PILLAI,
KAMALAVILASOM PUTHEN VEEDU,
KOLLAMCODE VILLAGE,
VILAVAMCODE TALUK,
PRESENTLY RESIDING AT DEVI KRIPA,
HOUSE NO.27, T.C.15/1102, VYASA NAGAR,
PARUTHIPARA, PATTOM P O,
THIRUVANANTHAPURAM,, PIN - 695 004
2 SAJEEVA KUMARI L
WIFE OF V. VAMADEVAN NAIR,
KAMALAVILASOM PUTHEN VEEDU,
KOLLAMCODE VILLAGE,
VILAVAMCODE TALUK, PRESENTLY RESIDING AT DEVI KRIPA,
HOUSE NO.27, T.C.15/1102, VYASA NAGAR,
PARUTHIPARA, PATTOM P O,
THIRUVANANTHAPURAM,, PIN - 695004
3 MOLLIKUTTY T C
DAUGHTER OF THOBIYAS,
VN NO.24, VYASA NAGAR, PARUTHIPARA,
PATTOM P O, THIRUVANANTHAPURAM,, PIN - 695004
4 RESMI M NAIR
DAUGHTER OF MAHESWARI AMMA,
VN NO.20, VYASA NAGAR, PARUTHIPARA,
PATTOM P O, THIRUVANANTHAPURAM,, PIN - 695004
OP(C) NO. 742 OF 2022
2
5 B. MADHUSOODHANAN NAIR
SON OF BHASKARAN NAIR,
VN NO.19, VYASA NAGAR, PARUTHIPARA,
PATTOM P O, THIRUVANANTHAPURAM,, PIN - 695004
6 T.S. BAIJU
SON OF THULASEEDHARAN, VN NO.18,
VYASA NAGAR, PARUTHIPARA,
PATTOM P O, THIRUVANANTHAPURAM,, PIN - 695004
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
20.05.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 742 OF 2022
3
JUDGMENT
Dated this the 20th day of May, 2022 Petitioner, who is the first defendant in O.S.No.1219/2020 on the files of the Munsiff Court, Neyyattinkara, has filed this Original Petition under Article 227 of the Constitution of India.
2. The petitioner impugns Ext.P6 order, came in Ext.P5 petition, dated 21.03.2022, whereby the learned Munsiff negatived the contentions raised by the defendants to the effect that since the plaintiffs had claimed right over B schedule pathway in the Suit and also claimed right of easement over the said pathway, the Suit itself is not maintainable holding that the Suit is maintainable.
3. Heard on admission.
4. Going by the impugned order, the learned Munsiff found against the said contention and held that the Suit is maintainable. At the same time, the learned Munsiff observed that grant of injunction is a matter of evidence. OP(C) NO. 742 OF 2022 4
5. In this context, the learned counsel for the petitioner submitted that while confirming the order impugned, the issue of maintainability may be left open to be decided during final hearing.
In view of the submission, I am inclined to confirm the order under challenge holding the same as a preliminary finding entered into by the trial court and the question of maintainability of the Suit on evidence is left open to be decided during final hearing of the Suit based on evidence.
This Original Petition (Civil) stands disposed of. Registry shall forward a copy of this judgment to the court below concerned, within two weeks, for information and compliance.
Sd/-
A. BADHARUDEEN JUDGE nkr OP(C) NO. 742 OF 2022 5 APPENDIX OF OP(C) 742/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PLAINT DATED 11.11.2020 IN O.S. NO.1219/2020 ON THE FILE OF MUNSIFF COURT, NEYYATTINKARA Exhibit P2 TRUE COPY OF THAT AD-INTERIM ORDER DATED 16.11.2020 IN I.A. NO.1/2020 IN O.S. NO.1219/2020 OF THE MUNSIFF COURT, NEYYATTINKARA Exhibit P3 TRUE COPY OF THE SALE DEED NO.3384/2003 DATED 18.9.2003 Exhibit P4 TRUE COPY OF THE SAID REPORT DATED 15.2.2022 IN O.S. NO.1219/2020 AND SKETCH SUBMITTED BY THE ADVOCATE COMMISSIONER ON THE FILE OF MUNSIFF COURT, NEYYATTINKARA Exhibit P5 TRUE COPY OF THE I.A. NO.8/2022 IN O.S. NO.1219/2020 ON THE FILE OF MUNSIFF COURT, NEYYATTINKARA DATED 16.2.2022 Exhibit P6 TRUE COPY OF THE ORDER ON EXHIBIT-P5 i.e. I.A. NO.8/2022 IN O.S.
NO.1219/2020 DATED 21.3.2022 OF THE MUNSIFF COURT, NEYYATTINKARA