APPUKUTTAN NAIR Vs. HYDROSE
HIGH COURT OF KERALA
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(1.) Petitioners filed O.S. No.192 of 2002 on the file of the Munsiff, Varkala for permanent injunction to restrain respondent from demolishing the compound wall on the side of their property. I.A. No.1231 of 2002 was filed in the above suit by the petitioners for temporary injunction. The respondent filed O.S. No.198 of 2002 against the petitioners for declaration of easement right of way over a portion of the property of the petitioners and also for mandatory injunction to remove a portion of the compound wall. In the above suit I.A. 1269 of 2002 was filed by the respondent for interim mandatory injunction directing the revision petitioners to remove the obstruction caused to the way by putting up a compound wall across the way. Both the petitions were disposed of by the learned Munsiff by a common order. I.A. No.1231 of 2002 in O.S. 192 of 2002 was dismissed and I.A. 1269 of 2002 in O.S. 198 of 2002 was allowed by directing the petitioners to remove the obstruction caused in D schedule pathway within one week. Challenging the common order made by the learned Munsiff, two Civil Miscellaneous Appeals were filed in the court of the Sub Judge, Attingal by the petitioners. C.M.A. 31 of 2002 was filed challenging the order by which interim mandatory injunction was granted and C.M.A. 38 of 2002 was filed challenging that portion of the common order by which I.A. 1231 of 2002 filed by the present petitioners in O.S. 192 of 2002 was dismissed. The appellate court after hearing the counsel appearing for the parties confirmed the common order made by the learned Munsiff and dismissed the Civil Miscellaneous Appeals.
(2.) The property of petitioners is on the southern side of the property of the respondent. Further south to the property of the petitioners there is the property of one Gomathy Amma. On the southern side of the property of Gomathy Amma there is a road which goes from Cherunniyoor to Kavalayoor. The respondent in the suit filed by him for declaration of easement right claims easement over D schedule pathway which is on the western side of the property which belong to the petitioners. The Trial Court as well as the appellate court found that the petitioners put up a compound wall across the pathway causing obstruction to the use of the same by the first respondent two days prior to the filing of O.S. 192 of 2002. It was also found by both the courts below that the Commissioner who was appointed by the Trial Court filed a report stating that there was a way which was in existence for the last 12 years. The appellate court says that what is seen from the report of the Commissioner is that the compound wall across the property was put up about two days prior to the inspection of the property by him. The Commissioner went to the property even on the day on which the suit, O.S. 192 of 2002, was filed. It was on the basis of the above materials available on record that both the courts below found that there is need for giving direction to the petitioners to remove the obstruction caused to the pathway.
(3.) Ext.C1(a) is the rough sketch prepared by the Commissioner. A copy of the rough sketch is made available for perusal. In that rough sketch it is shown that on the southern side of the property of the petitioners there is a compound wall constructed a portion of which is across the way at the point shown as even the rough sketch. There is also statement in the report of the Commissioner that in the property of Gomathy Amma, at the portion shown as ML in the rough sketch a new compound wall was constructed across the pathway alleged to be in existence.;
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