Partly allowed

P.T.K.Reena v. Pulichanandi Ismail

Kerala HC21 Feb 2011OP(C)/18/2011

Case brief

AI extract

What is this about?

The High Court rejected the challenge to the concurrent findings denying a temporary injunction in a suit for easement. The court directed the trial court to expedite the trial and dispose of the suit without being hampered by the impugned findings.

What did the court decide?

Challenge rejected; trial court directed to expedite trial and dispose of suit by July 2011 untrammelled by impugned findings.

P.T.K.Reena Vs Pulichanandi Ismail — Property and Title | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE K.T.SANKARAN

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MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932

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OP(C).No. 18 of 2011(O)

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----------------------------------(AGAINST THE ORDER DATED 23/12/10 IN CMA 12/10 OF THE KOYILANDI SUB COURT IN I.A.400/10 IN O.S.82/10 OF THE MUNSIFF COURT,PAYYOLI) ......

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PETITIONER:

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----------------------

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1. P.T.K.REENA, D/O.BALAN,AGED 32 YEARS, KUNNIYULLA VEETTIL HOUSE, CHERAPURAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT PIN - 673 512.

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2. KUNNIYULLA VEETTIL PAVITHRAN, S/O.KANARAN, AGED 40 YEARS, KUNNIYULLA VEETTIL HOUSE, CHERAPURAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISRICT, PIN- 673 512.

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BY ADVS. SRI.ALEX.M.SCARIA,

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SRI. SAJEEVAN KURUKUTTIYULLATHIL.

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RESPONDENT(S):

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----------------------------

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PULICHANANDI ISMAIL, S/O. AMMAD, AGED ABOUT 32 YEARS, CHERAPURAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT 673 512.

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BY ADVS. SRI.V.V.ASOKAN,

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SMT. RUKHYABI MOHAMMED KUNHI.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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K.T.SANKARAN, J .

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O.P(C).No.18 OF 2011

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Dated this the 21st day of February, 2011

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JUDGMENT

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The plaintiffs in O.S.No.82 of 2010 on the file

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of the Court of the Munsiff-Magistrate of Payyoly,

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whose application for temporary injunction was
dismissed by the trial court and which was
confirmed in appeal, are the petitioners in this
Original Petition. They challenge the concurrent
findings of the court below in the application for
temporary injunction.

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2. The petitioners/plaintiffs claimed an

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easement of necessity to pass through the plaint D
schedule property shown as a pathway leading from
Kuttiyadi-Poomugham road and which according to the

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plaintiffs pass through the property of the
defendant and reaches the plaint A schedule

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property. The trial court found that the

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Commissioner has reported that the property of the
defendant is filled with 'red sand' and no pathway

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O.P(C).No.18 OF 2011 2

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was seen as claimed by the plaintiffs. The
Commissioner's report also shows that a coconut
tree, a pit and certain glyrecidia plants exist at
the place where the pathway was claimed to be in
existence. The trial court found that these would

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indicate that the 'D' schedule property is not a
pathway which was in existence. A wooden bridge
was found connecting the A schedule property and
the defendant's property, placed across a canal. It
was held that the existence of such a bridge by
itself would not lead to the conclusion that a
pathway was in existence. Taking into account the
facts and circumstances of the case, and also
taking note of the balance of convenience, and the
tests for granting or refusing temporary
injunction, the trial court held that the
plaintiffs have not made out a prima facie case for
the grant of temporary injunction. The appellate
court confirmed the findings of the trial court.

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3. In an Original Petition under Article 227 of

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O.P(C).No.18 OF 2011 3

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the Constitution of India, the High Court would not
be justified in interfering with the findings of

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fact arrived at by the courts below after
considering the facts and circumstances of the
case. The courts below have considered all relevant
aspects and I do not find any jurisdictional error
or error of law warranting interference under
Article 227 of the Constitution of India.

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4. The learned counsel for the petitioners
submitted, with reference to paragraph 4 and 5 of
the Commissioner's report dated 7.7.2010 (Ext.P5)
that there is no other way leading to the plaint A
schedule property. It is submitted that if no
interim order is granted, the plaintiffs would be
put to irreparable injury.

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5. In the peculiar facts and circumstances of

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the case, I am of the view that the trial court can
be directed to expedite the trial of the suit.

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O.P(C).No.18 OF 2011 4

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The Original Petition is disposed of as
follows:

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a. The challenge against the order in

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I.A.No.400 of 2010 and the judgment in
CMA 12 of 2010 is rejected.

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b. The trial court shall expedite the
trial of the suit and make earnest
attempts to dispose of the suit before
the end of July, 2011.

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c. The trial court shall dispose of the
suit untrammelled by the observations
and findings in the order and judgment
challenged in this Original Petition.

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K.T.SANKARAN,
JUDGE.

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cms

P.T.K.Reena v. Pulichanandi Ismail

Case brief

What is this about?

What did the court decide?

P.T.K.Reena v. Pulichanandi Ismail

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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