Sajimon Andrews Kottiri vs Paul Mathew
2024 Latest Caselaw 10964 Ker

Kerala High Court

Sajimon Andrews Kottiri vs Paul Mathew on 12 April, 2024

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                 THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
          Friday, the 12th day of April 2024 / 23rd Chaithra, 1946
                     IA.NO.1/2024 IN RSA NO. 187 OF 2024
                      OS 281/2016 OF MUNSIFF COURT, PALA
                         AS 69/2020 OF SUB COURT,PALA
APPLICANT/APPELLANT:

     SAJIMON ANDREWS KOTTIRI, AGED 59,S/O ANDREWS, KOTTIRICKAL HOUSE,
     RAMAPURAM KARA, RAMAPURAM VILLAGE, MEENACHIL TALUK, KOTTAYAM
     DISTRICT, PIN - 686 576

RESPONDENTS/RESPONDENTS:

  1. PAUL MATHEW, AGED ABOUT 58 YEARS, S/O MATHAI, KANAMKOMBIL HOUSE,
     RAMAPURAM KARA, RAMAPURAM VILLAGE, MEENACHIL TALUK, KOTTAYAM
     DISTRICT, PIN - 686 576.
  2. JAMES MATHEW, AGED ABOUT 53 YEARS, S/O MATHAI, KANAMKOMBIL HOUSE,
     RAMAPURAM KARA, RAMAPURAM VILLAGE, MEENACHIL TALUK, KOTTAYAM
     DISTRICT, PIN - 686 576 .

     Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to issue an interim
order of injunction restraining the respondents herein from obstructing
the applicant's use of item No.2 pathway scheduled to the plaint in
OS.No.281 of 2016 on the file of the Munsiff's Court, Pala, pending
disposal of the above Regular Second Appeal.
     This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and upon hearing the arguments
of Sri.P.B.KRISHNAN, Senior Advocate along with M/S.P.B.SUBRAMANYAN,MANU
VYASAN PETER, SABU GEORGE, B.ANUSREE, Advocates for the petitioner, and
Sri.R.SYLESHWAREN NAIR, Advocate for the respondents (B/O), the court
passed the following:
                    C. JAYACHANDRAN, J.
             ------------------------------------
                  R.S.A. No.187 of 2024
            -------------------------------------
          Dated this the 12th day of April, 2024


                               ORDER

Sri.R.Syleshwaren Nair takes notice for the respondents.

Admit on the following substantial questions of law:

(i) Once the existence of a road on the

southern side of the defendant's property in the

east-west direction is established and it is also

established that the plaintiff had purchased

40 sq.ms. of land, so as to enable plaintiff's access

and right of way through the said pathway, was it

not incumbent that the said 40 sq.ms. of land is

measured and identified, be it as per document

No.1156/1991 or as per Ext.A3 bearing

No.2174/1991, for determining the real

controversy in dispute between the parties? Has

not the trial court as well as the First Appellate

Court failed in getting the said extent measured

out and identified, when there is a registered

document indicating purchase of the extent

above referred?

(ii) In the facts, evidence and probabilities

of the case, whether the finding of the trial court

as well as the Appellate Court that the plaintiff

failed to establish that a public pathway

ad-measuring 40ft x 128ft is legal and proper.

Call for the trial Court records. Post for hearing on

07.06.2024.

Learned Senior Counsel for the appellants would submit

that an order of status quo as on the date of the judgment

of the First Appellate Court was directed to be maintained,

which order was in force till 27.02.2024. In furtherance of

the same, this Court directs that the parties shall maintain

the status quo in respect of plaint item no.2 pathway until

further orders.

Sd/-

C. JAYACHANDRAN

JUDGE SKP/12-04

12-04-2024 /True Copy/ Assistant Registrar