Kerala High Court
Sasidharan vs Leela on 12 June, 2025
FAO Nos. 56 & 58 OF 2025
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2025:KER:42746
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 12TH DAY OF JUNE 2025 / 22ND JYAISHTA, 1947
FAO NO. 56 OF 2025
AGAINST THE ORDER DATED 10.12.2024 IN I.A.NO.2 of 2024 IN AS NO.22
OF 2024 OF CIVIL JUDGE, (SENIOR DIVISION), PUNALUR
APPELLANT/PETITIONER/APPELLANT:
SASIDHARAN
AGED 76 YEARS
S/O.MADHAVAN GIRIJA MANDIRAM, THAZHAMEL, ANCHAL.
KOLLAM DISTRICT, PIN - 691306
BY ADV SRI.A.R.DILEEP
RESPONDENT/RESPONDENT/RESPONDENT:
LEELA,
AGED 69 YEARS
D/O. KAMLAKSHI, KARTHIKA,THAZHAMENL, ANCHAL,
KOLLAM DISTRICT., PIN - 691306
BY ADVS.
SHRI.BABIN T. ANTHIKKAD
SHRI.BHARATH V GOPAL
SMT.VANESHA VISWAMBARAN
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALY HEARD ON 12.06.2025,
ALONG WITH FAO.58/2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
FAO Nos. 56 & 58 OF 2025
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2025:KER:42746
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 12TH DAY OF JUNE 2025 / 22ND JYAISHTA, 1947
FAO NO. 58 OF 2025
AGAINST THE ORDER DATED 10.12.2024 IN I.A.NO.1 of 2024 IN AS NO.22
OF 2024 OF CIVIL JUDGE, (SENIOR DIVISION), PUNALUR
APPELLANT/PETITIONER/APPELLANT:
SASIDHARAN
AGED 76 YEARS
S/O.MADHAVAN GIRIJA MANDIRAM, THAZHAMEL, ANCHAL.
KOLLAM DISTRICT, PIN - 691306
BY ADV SRI.A.R.DILEEP
RESPONDENT/RESPONDENT/RESPONDENT:
LEELA
AGED 69 YEARS
D/O. KAMLAKSHI, KARTHIKA,THAZHAMENL, ANCHAL, KOLLAM
DISTRICT., PIN - 691306
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON
12.06.2025, ALONG WITH FAO.56/2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
FAO Nos. 56 & 58 OF 2025
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2025:KER:42746
JUDGMENT
[FAO Nos.56/2025, 58/2025]
1. The appellant in both these appeals is the plaintiff in the suit.
The suit was one for fixation of boundary and consequential
injunction. The plaintiff claims title over Plaint A schedule
property of 60 cents of land which he derived as per Ext.A1
Document. As per the plaint allegations, the plaintiff obtained
a right of way through a way having 3 feet from the southern
PWD road through the eastern portion of the property allotted
to his brother to the plaint A schedule property and the said
way was widened by adding 7 feet with the consent of the
brother. The suit was filed for fixation of the eastern boundary
of the said way having 10 feet which is shown as plaint B
schedule, with the property of the defendant lying on its
eastern side.
FAO Nos. 56 & 58 OF 2025
2025:KER:42746
2. The Trial Court found that the plaintiff did not prove his right
over plaint B schedule property to claim fixation of boundary,
and accordingly dismissed the suit. The plaintiff filed
A.S.No.22/2024 before the First Appellate Court. Plaintiff filed
I.A.No.1/2024 in A.S.No.22/2024 seeking permanent
prohibitory injunction restraining the defendant from
encroaching into plaint B schedule pathway. Plaintiff filed
I.A.No.2 /2024 in A.S.No.22/2024 for mandatory injunction for
removing the constructions in plaint B schedule pathway on the
allegation that subsequent to the filing of the appeal the
defendant made constructions in plaint B schedule pathway
blocking the passage through it. The First Appellate Court
considered both the Applications together and dismissed the
same by a common order. These F.A.Os. are filed challenging
the dismissal of I.A.Nos.1 & 2 of 2024.
FAO Nos. 56 & 58 OF 2025
2025:KER:42746
3. I heard the learned counsel for the appellant, Sri. A.R. Dileep
and the learned counsel for the respondent, Sri. Bharath V.
Gopal.
4. The contention of the appellant is that the plaint B schedule
pathway is the only way to plaint A schedule property and he
had been enjoying the same during the pendency of the suit on
the strength of the temporary injunction granted by the Trial
Court which was subsisting during the pendency of the suit.
The usage of B schedule pathway is prevented by the act of the
defendant after filing of the appeal making construction in
plaint B schedule.
5. On the other hand, the contention of the learned counsel for
the respondent is that there are disputes between the plaintiff
and his brother with regard to the existence of the said way.
When the plaintiff's brother disputed the existence of the
pathway, the plaintiff is attempting to create a pathway through
the property of the defendant.
FAO Nos. 56 & 58 OF 2025
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6. On going through the records, it is not clear whether the plaint
B schedule pathway passes through the property of the brother
of the plaintiff or through the property of the defendant. These
are disputed facts. It is true that the defendant has made
construction in plaint B schedule when the suit was dismissed
finding the right of the defendant over plaint B schedule. When
the disputed questions of facts are there, it is not fair, at
present, to grant mandatory injunction directing the defendant
to demolish the constructions made in the plaint B schedule.
I am of the view that the matter is to be agitated in the appeal.
If the plaintiff succeeds in the appeal, the plaintiff can seek
restoration of plaint B schedule property to its original position.
In that view of the matter, I am of the opinion that the First
Appellate Court can be directed to dispose of the Appeal at an
early date considering the fact that the constructions were
made by the defendant after passing judgment by the Trial
Court.
FAO Nos. 56 & 58 OF 2025
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7. Taking into account of the aforesaid facts, I dismiss the appeal,
confirming the impugned orders. The First Appellate Court is
directed to dispose of the Appeal, in accordance with the law,
within a period of four months from the date of receipt of a copy
of this judgment.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
Shg/X
