Ponnu vs Pazhaniswamy
2021 Latest Caselaw 17925 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MR.JUSTICE V.G.ARUN
  WEDNESDAY, THE 1ST DAY OF SEPTEMBER 2021 / 10TH BHADRA,
                                  1943
                         OP(C) NO. 2832 OF 2019
        OS 174/2015 OF MUNSIFF COURT, CHITTUR, PALAKKAD
PETITIONER/S:

            PONNU
            AGED 60 YEARS
            S/O. MAYAN, PATHANARA COLONY, KOLLENGODE I
            VIALGLE, KOLLENGODE P.O. CHITTUR TALUK, PALAKKAD
            DISTRICT, 678 506.
            BY ADV BINOY VASUDEVAN


RESPONDENT/S:

    1       PAZHANISWAMY
            AGED 60 YEARS
            S/O.RAMALINGA MUTHALIYAR,
            ENAMANGALAM KALAM, KIZHAKKETHARA AMSOM, CHITTUR
            TALUK, PALAKKAD DISTRICT 678 506.
    2       NATIVES OF PATHANARA COLONY,
            KOLLENGODE I VILLAGE, CHITTUR TALUK, PALAKKAD
            DISTRICT , REPRESENTED BY PARVATHY, W/O. SASI,
            AGED 50 YEARS RESIDING AT PATHANARA COLONY,
            KOLLENGODE I VILLAGE, KOLLENGODE P.O. CHITTUR
            TALUK, PALAKKAD DISTRICT 678 506.
            BY ADVS.
            SRI.SAJAN VARGHEESE K.
            SRI.LIJU. M.P


     THIS     OP    (CIVIL)   HAVING     COME   UP   FOR    ADMISSION   ON
15.07.2021,        THE   COURT   ON    01.09.2021,         DELIVERED    THE
FOLLOWING:
 O.P.(C) No.2832 of 2019
                                    2



                               JUDGMENT

Dated this the 1st day of September, 2021

The petitioner and the second respondent are

the plaintiffs in O.S.No.174 of 2015 on the files

of the Munsiff Court, Chittur. The suit is filed

seeking a permanent prohibitory injunction,

restraining the first respondent from obstructing

the pathway being used by the plaintiff and other

residents of Pathanara Colony in Kollengode I

Village. The gist of the contention is that,

Pathanara Colony is situated on the South of

Kollengode - Govindapuram main road and the only

access to the Colony is the pathway having width

of 3.5 metres and length of 60 metres. It is

averred in the plaint that the way is being used

by the residents of the Colony for the past more

than 50 years and hence, they claim for right of O.P.(C) No.2832 of 2019

easement by prescription.

2. The defendant/first respondent filed

written statement denying the plaint averments and

contending that the plaint schedule way is lying

within his properties.

3. The first respondent had earlier preferred

O.S.No.236 of 2014 before the same court seeking a

mandatory injunction requiring the District

Collector, Palakkad and subordinate revenue

officials to restore the fence obstructed on the

northern to southern boundaries of his properties.

In O.S.No.174 of 2015, the first respondent

preferred an application under Section 151 of the

Code of Civil Procedure seeking joint trial of the

suit along with O.S.No.236 of 2014. In his

application, the first respondent contended that

the plaint schedule property in both suits and the

contentions and documents relied on by the parties O.P.(C) No.2832 of 2019

are the same. Hence, unless joint trial is

ordered, there is every likelihood of conflicting

decrees being passed. The petitioner resisted the

application contending that the cause of action as

well as the parties in both suits are different

and merely because the plaint schedule properties

are the same, joint trial cannot be ordered. By

Ext.P5 order, the court below allowed the prayer

for joint trial. Hence, the original petition.

4. Heard Sri.Binoy Vasudevan, learned Counsel

for the petitioner and Sri.Sajan Varghese, learned

Counsel for the first respondent.

5. A perusal of the plaint in O.S.No.174 of

2015 shows that the cause of action mentioned

therein arose on 08.04.2015, when the first

respondent attempted to obstruct the way by

putting up a wire fencing. The cause of action

alleged in O.S.No.236 of 2014 arose on 16.10.2013 O.P.(C) No.2832 of 2019

when the fourth defendant/Village Officer removed

some portion of the wire fencing and opened up the

way and again on 08.01.2014, when the plaintiff

(first respondent) issued notice calling upon the

defendants to restore the fence to its previous

condition. Indisputably, the defendants in the

suit filed by the first respondent are Government

officials and they had removed the fencing in

purported exercise of their statutory authority.

Being so, I am unable to sustain the finding in

the impugned order that, by deciding the factum of

right over the disputed portion of pathway which

is the subject matter in both cases, the

adjudication of the suits will become final. As

rightly contended by the learned Counsel for the

petitioner, joint trial cannot be ordered for the

sole reason that the plaint schedule property is

the same in both suits. Before ordering joint O.P.(C) No.2832 of 2019

trial, the court is bound to consider whether the

cause of action, issue involved and the parties

are the same. Insofar as the suits herein are

concerned, the above parameters are not satisfied

and hence, joint trial should not have been

ordered.

In the result, the original petition is

allowed. Ext.P5 order is set aside. The court

below shall proceed with the suits separately.

Sd/-

V.G.ARUN JUDGE Scl/ O.P.(C) No.2832 of 2019

APPENDIX OF OP(C) 2832/2019

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.

174/2015 ON THE FILE OF THE COURT OF THE MUNSIFF AT CHITTUR.

EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT PREFERRED BY THE 1ST DEFENDANT IN O.S. NO. 174/2015.

EXHIBIT P3 TRUE COPY OF THE PLAINT IN O.S. NO.

236/204 ON THE FILE OF THE COURT OF THE MUNSIFF AT CHITTUR.

EXHIBIT P4 TRUE COPY OF I.A. NO. 18/2017 PREFERRED BY THE 1ST RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE ORDER IN I.A. NO.

18/2017 IN O.S. NO. 174/2015 DATED 01.08.2017.