Krishnan vs George Thomas
2022 Latest Caselaw 344 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 13TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943
                  OP(C) NO. 832 OF 2021
   AGAINST THE ORDER/JUDGMENT IN OS 873/2017 OF MUNSIFF
                        COURT, CHALAKUDY
  CMA 23/2018, SUBORDINATE JUDGE,IRINJALAKUDA 31/01/2020
PETITIONER/RESPONDENT

         KRISHNAN
         AGED 58,
         S/O.KARAPPANDI, KAIPPUZHA HOUSE, VEERANCHIRA
         DESOM, KUTTICHIRA VILLAGE, CHALAKUDY TALUK,
         THRISSUR DISTRICT.
         BY ADV N.L.BITTO


RESPONDENT/PETITIONER

         GEORGE THOMAS
         AGED 50
         S/O.THOMAS, KOLATHAPPILLY HOUSE, KOORKAMATTOM
         DESOM, KUTTICHIRA VILLAGE, CHALAKUDY TALUK,
         THRISSUR DISTRICT - 680 307.
         BY ADV T.N.MANOJ

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
05.01.2022, THE COURT ON  13.01.2022 DELIVERED THE
FOLLOWING:
 O.P(C).No.832/2021                    2




                       A. BADHARUDEEN, J.
              ================================
                        O.P(C).No.832 of 2021
              ================================
                Dated this the 13th day of January, 2022


                            JUDGMENT

This is an Original Petition filed under Article 227 of the

Constitution of India. The prayer herein is to `set aside Ext.P7

order passed in CMA.23 of 2018 of the Principal Sub Court

Irinjalakuda dated 31/1/2020 (arising out of Ext.P6 common

order passed in IA.3171 of 2017 and IA.173 of 2018 in OS.873 of

2017 of the Munsiff Court Chalakudy dated 20/1/2018) in the

interest of justice'.

2. Heard both sides in detail.

3. As per a common order in I.A.No.3171/2017,

I.A.173/2018 and I.A.174/2018 in O.S.No.873/2017, the learned

Munsiff, Chalakudy, as per order dated 20.01.2018 passed the

following orders:

"a. The respondent is hereby directed to restore the previous status of petition B schedule property leaving space of 10 feet from petition C schedule property. On failure the petitioner is at liberty to restore the previous status at the expense of the respondent, with due process of law.

b. The respondent is hereby restrained from trespassing into petition A and B schedule properties without leaving any stripe of land having minimum width 10 feet at the level of petition B schedule way on the western and northerner side of petition B schedule way and from doing anything that may diminish the lateral support of petition B schedule way. The petitioner is hereby further restrained from excavating soil from petition C schedule property.

c. The petitioner is entitled to realize the costs of the petition."

The petitioner herein, who was aggrieved by Ext.P6 order, filed

CMA.23/2018 before the Sub Court, Irinjalakuda and the learned

Sub Judge, after having appraised the materials available,

dismissed the appeal confirming Ext.P6 order.

4. While challenging the concurrent findings entered into

by the trial court as well as the appellate court, it is argued by the

learned counsel for the original petitioner that the above orders

were passed even without pleadings as to ownership of plaint B

schedule property. In reply to this contention, the learned counsel

for the respondent/plaintiff referred para.2 of the plaint, the same

reads as follows:

"2. The plaintiff most respectfully submits that the plaint `B' schedule property is the pathway leading to the plaint A schedule property which was formed on 19.06.1983 vide document No.2041/1983 of Chalakudy SRO. The copy of the above said document is produced herewith and the contents thereof may be treated as part of this plaint."

The above extracted pleading would go to show that the plaintiff

asserted ownership over plaint B schedule also along with A

schedule.

5. According to the learned counsel for the petitioner, the

court below failed to appreciate the materials in its correct

perspective and thereby went wrong in passing the impugned

orders.

6. Refuting this contention, the learned counsel for the

respondent submitted that since the petitioner herein, who is the

respondent/defendant, obstructed the lateral support available to

B schedule pathway enjoyed by the plaintiff, the courts below

ordered status quo ante after appreciating the available evidence

prima facie, and this Court, while considering the merits of

Ext.P7 order under Article 227 of the Constitution of India,

cannot reappreciate the evidence and this Court's power is limited

to address perversity or arbitrariness in the impugned order.

7. This legal position is not in dispute.

8. Going by the orders impugned, it could be noticed that

apprehending escavation of soil from C schedule property so as to

destroy the lateral support available to Plaint A schedule property

and B schedule pathway, the respondent/plaintiff filed suit for

restraining the defendant from doing so by way of a prohibitory

injunction and an order of temporary injunction was also

obtained. It was thereafter, the respondent removed earth from C

schedule and thereby B schedule was destroyed. This is the

context on whcih the court below passed the order as extracted

above.

9. Having considered the crux of this matter in the above

context, I cannot find any perversity or arbitrariness in the orders

passed by the courts below and therefore I am not inclined to

interfere with the said orders by exercising the supervisory power

under Article 227 of the Constitution of India.

Hence this Original Petition is found to be devoid of any

merits and is accordingly dismissed.

Sd/-

(A. BADHARUDEEN, JUDGE) rtr/

APPENDIX OF OP(C) 832/2021

PETITIONER'S EXHIBITS

EXHIBIT P1 A TRUE COPY OF THE PLAINT IN OS 873 OF 2017 OF THE MUNSIFF COURT, CHALAKUDY DATED 13/12/2017.

EXHIBIT P2 A TRUE COPY OF THE TEMPORARY INJUNCTION APPLICATION FILED AS IA.3174 OF 2017 IN 873 OF 2017 OF THE MUNSIFF COURT IRINJALAKUDA DATED 13/12/2017.

EXHIBIT P3 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN OS 873 OF 2018 OF THE MUNSIFF COURT, CHALAKUDY DATED6/2018.

EXHIBIT P4 A TRUE COPY OF THE COMMISSION REPORT FILED BY THE ADVOCATE COMMISSIONER DATED 12/1/2018.

EXHIBIT P5 A TRUE COPY OF THE MANDATORY INJUNCTION APPLICATION IA.173 OF 2018 OF THE MUNSIFF COURT CHALAKUDY DATED 9/1/2018. EXHIBIT P6 A TRUE COPY OF THE COMMON ORDER PASSED IN IA.3171 OF 2017 AND IA.173 OF 2018 IN OS.873 OF 2017 OF THE MUNSIFF COURT, CHALAKUDY DATED 20/1/2018.

EXHIBIT P7 A TRUE COPY OF THE ORDER PASSED IN CMA 23 OF 2018 OF THE PRINCIPAL SUB COURT IRINJALAKUDA DATED 31/1/2020.