Abhilash Raj vs Abhilash Raj
2021 Latest Caselaw 6838 Ker

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                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                          Present:
                   THE HONOURABLE MRS. JUSTICE MARY JOSEPH

                Friday,the 26th day of February 2021/7th Phalguna, 1942
                                IA 1/2021 IN FAO (RO) 26/2019

    For information purpose only
Against AS No.11/2017 of the I ADDITIONAL SUB COURT,ERNAKULAM
Against OS No.741/2012 of the I ADDITIONAL MUNSIFF COURT,ERNAKULAM
PETITIONERS/RESPONDENTS:
1. ABHILASH RAJ
    AGED 43 YEARS, S/O. DR. K.V. RAMESH, ABHILASH HOUSE,
    KANNAMMURI, THRIKKAKKARA NORTH VILLAGE, KANAYANNUR
    TALUK, KOCHI-682 021
2. DR. K.V. RAMESH,S/O LATE VAVA,
    AGED 78 YEARS, ABHILASH HOUSE, KANNAMMURI, THRIKKAKKARA
    NORTH VILLAGE, KANAYANNUR TALUK, KOCHI-682 021
RESPONDENT/APPELLANT:
      ABDUL AZEEZ,AGED 71 YEARS
      S/O. MUHAMMED, PERIYAKUNNATH HOUSE, EDAPPALLY,
      PUTHUPPALLYPRAM KARA, THRIKKAKKARA NORTH VILLAGE,
      KANAYANNUR TALUK, KOCHI-682024.

   Application praying that in the circumstances stated in the affidavit filed
therewith the High Court be pleased to pass an order permitting the petitioner to
clean, repair and develop the disputed pathway in the above appeal at the risk
and cost of the petitioners, subject to the final outcome of the above appeal.


  This application coming on for orders upon perusing the application and the
affidavit filed in support thereof, and upon hearing the arguments of M/S
C.S.MANU, T.B.SIVAPRASAD , Advocates for the petitioners and of M/S
P.B.KRISHNAN,              MANU       VYASAN       PETER,   P.B.SUBRAMANYAN,
P.M.NEELAKANDAN, SABU GEORGE, Advocates for the respondent, the court
passed the following
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                                     MARY JOSEPH, J.

-------------------

IA 1 of 2021 IN FAO (RO) No.26 of 2019

--------------------------------------------

                      Dated this the 26th day of February 2021

    For information
                 O R D purpose
                       ER      only

This is an application filed under Section 151 of the Code of Civil

Procedure 1908 seeking for permission to repair and develop 15 links

width pathway which is proceeding from the western side of the

property to NH-47 on the west. The 2ndrespondent in the Appeal on

hand is the 2ndpetitioner in the application. He has sworn to the facts

in the affidavit filed in support of the application.

2. The suit was for fixation of boundary and permanent injunction

restraining the petitioners from encroaching Plaint-A schedule property

which belongs to the appellant. Plaint B schedule property belongs to

the respondent. Plaint-A schedule is a three storied commercial

building and the pathway abutting the same lies in the east west

direction. The dispute is with regard to the width of the pathway. The

trial court decreed the suit and in the appeal the lower appellate court

after setting aside Ext.C2 report and C2(a), C2(b), and C2(c) plans

remanded the case back to the trial court for reconsideration and fresh

disposal. The judgment of the appellate court is under challenge in the

appeal. The pathway is lying at a lower level from NH-47 and lot of IA/1/2021 IN FAO (RO) 26/2019 3/5

waste materials are being put in the pathway including plastic waste

by some persons. The pathway being lying at a lower level from

highway there is chance for it to get waterlogged and muddy even by

one shower of rain. Therefore, the passage will become unusable and it

is difficult to move through. According to him the pathway if left so, For information purpose only would cause hardships to him and therefore requires repair and

development. Seeking for permission to do the cleaning and

development work of the pathway, the petition on hand is filed.

3. The learned counsel has also submitted during the course of

argument that the petitioners would not raise any claim on the basis of

the works if any, carried out by them on permission being

granted. The pathway is the only access for petitioners ingress and

egress from their house to the NH lying on its west.

4. Counter Affidavit has been filed by the respondent vehemently

opposing the application and contending that application is not

maintainable. The trial court allowed the respondent to put up a

boundary on the eastern side of Plaint A schedule property as per the

plan prepared by the Advocate Commissioner and formed part of the

Commission Report, after leaving a distance of 15 links from the

southern compound wall of the pathway situated on the immediate

south of the plaint schedule property. The Commission Report and

plans were set aside by the impugned judgment of the appellate court

and fresh disposal of the suit was directed. The appellate court while IA/1/2021 IN FAO (RO) 26/2019 4/5

remanding the case directed the trial court to show the 15 links wide

pathway. Pathway was reported by the Advocate Commissioner as

having 10 links and Exts.A5 and A6 marked in evidence by the plaintiff

would substantiate that the pathway is having width of 9.95 links. The

averments regarding dumping of waste and the logging of water in a For information purpose only single shower of rain are denied. Moreover, the petitioners have no

title over the pathway but only right of transportation as well as

drawing of electric and water lines. Therefore, the prayer of the

petitioners is ill motivated and the petition is liable to be dismissed.

The dragging of the disposal of the Appeal for want of co-operation of

the respondent is also projected. According to the learned counsel, the

attempt of the petitioners is only to get interim orders by keeping the

appeal pending.

5. The width of the pathway being the disputed factum, this Court

is not inclined to allow the development of the pathway. The

petitioners' case was that waste materials are being dumped by some

persons (name not specified). The contention regarding logging of

water in the pathway in a single shower of rain, is not substantiated

even by a photograph. The respondent has stoutly disputed that

factum. Therefore, this Court is declined to grant permission to

develop the pathway. However, the pathway must be motorable as

right of transportation is available to the petitioners. Dumping of

waste, if any, would undoubtedly cause hindrance to smooth IA/1/2021 IN FAO (RO) 26/2019 5/5

transportation. The same must be deprecated. The petitioners are

willing to do the cleaing work on their own. The respondent is also

willing to do necessaries in that regard.

In the result, Interlocutory Application to the extent it seeks

permission to clean the debris if any dumped in the pathway is For information purpose only allowed. The petitioners are permitted to do the removal of waste

materials, if any, dumped in the pathway so as to maintain it clean

and motorable. The respondent if intends, can also co-operate with

the cleaning work.

Sd/-

MARY JOSEH JUDGE MJL

/true copy/ Sd/-

ASSISTANT REGISTRAR