Kerala High Court

Haneefa vs Kunhimuhammed on 26 March, 2025

                                          1
CRP 406/23




                                                                         2025:KER:26577
                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

                     THE HONOURABLE MR.JUSTICE BASANT BALAJI

          WEDNESDAY, THE 26TH DAY OF MARCH 2025 / 5TH CHAITHRA, 1947

                                 CRP NO. 406 OF 2023

           CMA NO.18 OF 2023 OF ASSISTANT SESSIONS COURT/SUB COURT /
    COMMERCIAL COURT, MANJERI ARISING OUT OF THE ORDER/JUDGMENT DATED
25.08.2023 IN OS NO.75 OF 2023 OF MUNSIFF MAGISTRATE COURT,PERINTHALMANNA


REVISION PETITIONER/S:

      1       HANEEFA
              AGED 48 YEARS
              S/O KOMU, VELLANGARA HOUSE, PAZHAMALLOOR P.O, KOOTTILANGADI
              VIA ,MALAPPURAM DISTRICT, PIN - 676506

      2       HAMEELA BEEGAM
              AGED 38 YEARS
              W/O HANEEFA, VELLANGARA HOUSE, PAZHAMALLOOR P.O,
              KOOTTILANGADI VIA, MALAPPURAM DISTRICT, PIN - 676506


              BY ADV K.M.SATHYANATHA MENON


RESPONDENT/S:

              KUNHIMUHAMMED
              AGED 63 YEARS
              S/O SAITHALI, VELLANGARA HOUSE, PAZHAMALLOOR P.O,
              KOOTTILANGADI VIA MALAPPURAM DISTRICT, PIN - 676506


              BY ADVS.SAMSUDIN PANOLAN .
              A.M.BABU(B-345)
              MILAN RACHEL MATHEW(K/001735/2020)
              LIRA A.B.(K/001251/2021)
              NASRIN WAHAB(K/001709/2023)


      THIS   CIVIL    REVISION    PETITION    HAVING   COME   UP   FOR   ADMISSION   ON
12.3.2025, THE COURT ON 26.03.2025 DELIVERED THE FOLLOWING:
                                      2
CRP 406/23




                                                            2025:KER:26577
                               ORDER

(Dated this the 26th day of March 2025)

This C.R.P. is filed by the defendants in O.S.No.75 of 2023

on the files of the Munsiff Court, Perinthalmanna, and the

respondent is the plaintiff therein. The suit was filed for a

mandatory injunction to restore the 3 ft way through plaint B

schedule property and for restraining the defendants from

obstructing the usage of the pathway by the defendants or their

men. Along with the suit, I.A. No.2 of 2023 was filed for a

temporary mandatory injunction for demolishing the compound

wall.

2. Plaint A schedule property originally belonged to the

plaintiff's grandfather Moideenkutty, and after his death, the

entire properties were partitioned among the plaintiff's father,

defendants' father, namely Komu and their sisters Kadiyumma

and Pathumma. All the properties were part of a single holding.

2025:KER:26577 The respondent's father was allotted the property on the northern

side of the plaintiff's father's property. A 3 ft wide pathway

existed from the beaten track on the eastern side of the properties

allotted to Kadiyumma and Pathumma to the plaintiff's father's

property and the respondent's father's property. The plaintiff's

father assigned plaint A schedule item No.1 to the plaintiff as per

document No.1856/1991 of SRO, Makkaraparamba and has

constructed a house and has been living there for the last 13 years.

3. Plaint A schedule item No.2 was assigned in favour of his

sister Ayisha, by document No.1855/1991 of the same SRO. The

sister assigned the property, obtained by her, to the plaintiff by

document No.246/1994. Thus, plaint item Nos.1 and 2 are lying

as a single plot in favour of the plaintiff. The pathway leading to

the defendant's father's property was developed into a pathway

of 10 feet, and the said way passed through the defendant's

property, having a width of 3 ft., and ended in the plaint A

2025:KER:26577 schedule property. The said way is described as plaint B schedule.

4. Plaintiff has an easement by necessity right over the plaint

B schedule property. Since the defendant's property is lying at a

higher level than plaint A schedule property, soil was dumped to

have a slope from the pathway to plaint A schedule property. The

defendant recently obstructed the plaint B schedule way and

constructed a compound wall by completely blocking access to A

schedule. Therefore, the said suit was filed for a mandatory

injunction to demolish the wall blocking the way to plaint A

schedule property.

5. I.A.No.3 of 2023 was filed for appointing an Advocate

Commissioner. The court below allowed the application, and a

commissioner inspected the property and filed a report.

Thereafter, at the instance of the defendant, I.A.No.5 of 2023 was

filed, and the same Commissioner was appointed to inspect the

property and submitted a report. After considering both the

2025:KER:26577 Commission reports, the trial court granted an interim mandatory

injunction to demolish the laterite wall in width of 3 ft. within 7

days or else, the plaintiff is at liberty to demolish the same at his

cost and expenses. Aggrieved by the interim mandatory

injunction order, the petitioners herein filed C.M.A. No.18 of

2023 before the Sub Court, Manjeri and also filed I.A. No.2 of

2023 to appoint a senior Advocate as Commissioner.

6. The lower appellate court allowed the application, and an

Advocate Commissioner inspected the property and filed another

report. Acting on the said report and earlier reports, the learned

Sub Judge dismissed C.M.A.No.18 of 2023, confirming the trial

court's order. This Revision Petition is filed challenging the

judgment in C.M.A.No.18 of 2023 and the order in I.A. No.2 of

2023 in O.S. No.75 of 2023.

7. The question that is to be considered in this C.R.P. is

regarding the interference to the interim mandatory injunction

2025:KER:26577 granted by the court to demolish the laterite wall blocking the B

schedule pathway. The trial court allowed the application after

entering into a finding that Ext.A1 to A3 title deeds of plaint A

schedule property shows that the property of Komu, the

predecessor of the defendants, lies on the northern side of plaint

A schedule. Ext.A15 is the title deed of the defendants. A

comparative reading of Ext.A1 to A3 with Ext.A15 shows that the

plaint A schedule property and northern property were part of a

single holding. The trial court also took into consideration

Ext.C1 sketch and Ext.C2 report, which show that soil is heaped

into plaint A Schedule property near the southern boundary of the

disputed wall is the continuation of the alleged 3 ft. pathway

scheduled as B pathway, to enter into A schedule property.

8. The case put forward by the defendant is that the plaintiffs

have an alternate way through the property of Kunjumohammed.

The Commissioner has noted in the reports the existence of steps

2025:KER:26577 from plaint A schedule to the property of Kunjumohammed,

which prima facie shows that the way to plaint A schedule

property is through Kunjumohammed and the Panchayath road.

The trial court also relied on the report of the Commissioner

which showed that the compound wall separating plaint A

schedule property and the property of the defendant is a new one

and estimated the age as one month. In Ext.C1 report, the

commissioner has not found any other way, other than the B

schedule pathway

9. In the said circumstances, the court granted an interim

mandatory injunction to demolish the laterite wall blocking the B

schedule way. The appellate court had an occasion to consider the

commission report obtained at the appellate stage in I.A. No.2 of

2023. The Commission report filed in the C.M.A. did not state

about any 3 ft way passing through the defendant's property. The

suit was filed for a mandatory injunction on 10.4.2023, and the 1st

2025:KER:26577 Commissioner inspected the property on 14.4.2023. The said

report identified the B schedule pathway and also noted a portion

of the old wall between the A schedule property and B schedule

pathway and the new wall constructed within a month.

10. The lower appellate court also noted that the new wall

is constructed on top of the old wall, and the new portion has a

height of 4½ ft. On 7.7.2023 also, when the commissioner

inspected the property again, he could not see the Plaint B

schedule pathway; possibly, by that time, the wall had been

constructed, and there was no access to the Plaint A schedule

through the defendants' property. The lower appellate court

clearly came to a conclusion that from Ext.C1, it is proved that

plaint B schedule way existed as on the date of the suit, and has a

right of easement by necessity. In such circumstances, it was held

that the mandatory injunction granted by the trial court is to be

upheld, and the appeal was dismissed.

2025:KER:26577

11. Heard.

12. While admitting this revision on 13.12.2023, an interim

order was passed directing that the compound wall shall not be

demolished pursuant to the judgment in C.M.A. No.18 of 2023,

which is still in force.

13. Counsel for the petitioners argued that since the main

relief sought in the suit is for a mandatory injunction for

demolishing the portion of the compound wall obstructing ingress

and egress to A schedule property, the trial court is not justified in

granting the same relief as an interim measure. If the interim

mandatory injunction is allowed to stand, irreparable injury and

hardship will be caused to the petitioners, and it is as good as

allowing the suit itself. He argued that interim mandatory

injunction should be issued only on a case-to-case basis, not as a

routine one, and that too, when great injustice is caused to the

plaintiff. He further submitted that in the Commission report, the

2025:KER:26577 existence of steps on the eastern and western sides of plaint A

schedule property proves the existence of an alternate way to

plaint A schedule property. In such circumstances, without taking

evidence, the interim mandatory injunction ought not have

passed.

14. Counsel for the respondent had relied on the judgment

of this court in Appukuttan Nair v. Hydrose (2004 KHC 60)

and argued that the interlocutory mandatory injunction is granted

generally to preserve or restore the status quo of the last known

contested status which preceded the pending controversy until the

final hearing when full relief may be granted or to compel the

undoing of those acts that have been illegally done or the

restoration of that which was wrongfully taken from the party

complaining. Reliance was also placed on the decision reported

in Antony v. Padmavaty Amma [2010(1) KHC 794].

15. In the 1st commission report dated 13.5.2023, the

2025:KER:26577 commissioner has opined that there lies a way of 10 ft from the

panchayath road to the property of the defendant and also a 3 ft

pathway in the north-south direction to the plaint A schedule

property. It is also reported that a new wall is constructed between

the property of the plaintiff and the defendants. He also reported

that the foundation of the entire extent of the wall is seen to have

been constructed years back. Only the upper portion of the wall

on the south-eastern corner of the defendant's property has been

made, and a new construction has been made. But in the 2nd report

dated 11.7.2023, the commissioner has reported that there is

nothing to suggest that there is any evidence of using the

defendants' property as a way to enter into plaint A schedule

property. The Commissioner's report in the appellate stage also

concurs with the same.

16. The suit was filed in 2023 for a mandatory injunction to

demolish the compound wall. Though the trial court and the lower

2025:KER:26577 appellate court ordered an interim mandatory injunction, this

court stayed it from 13.12.2023 onwards.

17. In Dorab Cawasji Warden v. Coomi Sorab Warden

and others [(1990) 2 SCC 117) it is held as follows:

" 16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:

(1) The plaintiff has a strong case for trial.

That is, it shall be of a higher standard than a prima facie case normally required for a prohibitory injunction.

(2) It is necessary to prevent irreparable or serious injury, which normally cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one seeking such relief.

2025:KER:26577

17. Being essentially an equitable relief, the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court, which shall be exercised in light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as a prerequisite for the grant or refusal of such injunctions would be a sound exercise of judicial discretion."

In such circumstances, in order to meet the ends of justice,

I am of the considered opinion that evidence is required for

arriving at a conclusion as to the presence of a 3 ft pathway

through the defendants' property to plaint A scheduled property

as an easement of necessity. Therefore, I deem it appropriate to

direct the parties to maintain status quo as on today and the trial

court is directed to expedite the trial and to dispose of O.S.No.75

of 2023 within a period of six months from the date of receipt of

a certified copy of this judgment.

The C.R.P. is disposed of with the above observations.

2025:KER:26577 Needless to say, that I have not gone into the merits of the

case and untrammelled by any of the observations in this