S. Gopakumar vs V. Vamadevan Nair
2022 Latest Caselaw 5394 Ker

              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

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

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