Partly allowed

T.Ibrahim v. the Saint Marys Church, Delampady

Kerala HC17 Dec 2012OP(C)/2564/2012

Case brief

AI extract

What is this about?

Single bench held that the lower appellate court erred in vacating the trial court's interim mandatory injunction. The court restored the injunction order and directed defendants to remove road obstruction within one month, while leaving the permanent injunction application pending.

What did the court decide?

Set aside the District Court judgment; restored the interim mandatory injunction; directed defendants to remove obstruction within one month; directed trial court to dispose of permanent injunction ap

T.Ibrahim Vs the Saint Marys Church, Delampady — Property and Title | Kerala HC (2012)

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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 V.CHITAMBARESH

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MONDAY, THE 17TH DAY OF DECEMBER 2012/26TH AGRAHAYANA 1934

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OP(C).No. 2564 of 2012 (O)

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CMA.8/2012 of DISTRICT COURT, KASARAGOD IA.NO.510/2012 IN OS.63/2012 of PRL.MUNSIFF, KASARAGOD

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PETITIONER(S):

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T.IBRAHIM,

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VALTHAJE,DELAMPADY VILLAGE,DELAMPADY.P.O KASARAGOD.

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BY ADVS.SRI.V.V.ASOKAN SMT.M.RAMANYA GAYATHRI

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RESPONDENT(S):

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THE SAINT MARYS CHURCH, DELAMPADY

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REPRESENTED BY ITS REV.FATHER DELAMPADY VILLAGE

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DELAMPADY.P.O,KASARAGOD,PIN-671 545.

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BINOY,

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NEAR GOVERNMENT HIGH SCHOOL,DELAMPADY VILLAGE P.O.DELAMPADY,KASARAGOD TALUK,PIN-671545.

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R1 BY ADV. SRI.DEVAPRASANTH.P.J.

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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APPENDIX IN O.P.(C) NO.2564/2012

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PETITIONER(S) EXHIBITS

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EXT-P1 TRUE COPY OF THE DOCUMENT NO.590/200O OF SUB REGISTRY OFFICE, BADHIYADKA DATE 23.2.2000.

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EXT-P2 TRUE COPY OF THE PLAINT IN O.S.63/2012 BEFORE THE MUNSIFF COURT,KASARAGOD DATED 13.2.2012.

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EXT-P3 TRUE COPY OF THE INTERIM REPORT FILED BY THE ADVOCATE COMMISSIONER IN OS.63/2012,MUNSIFF COURT,KASARAGOD,DATED 23.2.2012.

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EXT-P4 TRUE COPY OF THE I.A.510 OF 2012 MUNSIFF COURT,KASARAGOD DATED 15.2.2012.

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EXT-P5 TRUE COPY OF THE COUNTER FILED BY THE IST RESPONDENT IN IA.510 OF 2012 DATED 16.3.2012.

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EXT-P5(A) TRUE COPY OF THE COUNTER FILED BY THE 2ND RESPONDENT IN IA.510 OF 2012 DATED 16.3.2012.

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EXT-P6 TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER IN O.S.63/2012 DATED 29.3.2012.

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EXT-P7 TRUE COPY OF THE ORDER OF THE MUNSIFF COURT,KASaRAGOD IN I.A.510 OF 2012 IN O.S.63 OF 2012 DATED 4.4.2012.

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EXT-P8 TRUE COPY OF THE JUDGMENT OF THE DISTRICT COURT,KASARAGOD IN CMA.8/2012 Dated 5.7.2012.

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//TRUE COPY//

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P.S. TO JUDGE.

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V.CHITAMBARESH, J.

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O.P.(C) No. 2564 of 2012

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Dated this the 17^th day of December, 2012

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J U D G M E N T

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The suit is one for a decree of permanent prohibitory injunction restraining the defendants and their men from constructing any compound wall on the plaint B schedule road or in any way obstructing the user of the road by the plaintiff. An ex-parte interim order of injunction was passed on 14.2.2012 in I.A.No.492/2012 in O.S.No.63/2012 on the file of the court of Principal Munsiff of Kasargod which reads thus:-

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“Heard counsel for the petitioner and perused the pleadings, I am satisfied that the petitioner has got a prima facie case and that issuance of notice will defeat the purpose of the petition. Hence Ad-interim order of injunction is granted restraining the respondents their men and agents from blocking the B schedule road in any manner and forming any road through the A schedule property till the disposal of the petition. Issue interim order and emergent notice. Comply order 39 rule 3. For appearance of respondents 23.2.2012.”

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O.P.(C) No.2564/2012

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An Advocate Commissioner deputed in the suit filed an interim report dated 23.2.2012 which inter alia reads as follows:-

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“That the commissioner has identified the plaint A and B schedule properties as shown by the plaintiff. That the commissioner noted that there is a road leading to the plaint A schedule property (B schedule road) from the Delampady-Kallakatta main road. It has got an average width of 3 meters. The said road appears to be old one and it passes through R.S.No.111/A11 of Delampady village and leads toward north, west and ultimately connects to the plaint A schedule property. (emphasis supplied)

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The same Advocate Commissioner was deputed again in the suit on the complaint of the plaintiff that the status quo was altered by the defendants. The interim report dated 29.3.2012 of the Advocate Commissioner inter alia reads as follows:-

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“ The commissioner submits that on his visit on 23.3.2012 he found that the western portion of the B schedule road which is passing through the northern side of the 1^st defendant's property

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O.P.(C) No.2564/2012

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from east to west, originally having average width of 3 meters, to a length of about 40 meters has reduced the width of the road by 1 ½ meters by using 400 laterite stones placed along the road to a height of two laterite stones kept one upon another and spread the mud to file the gap. Not no vehicle can be taken to the property of the plaintiff. This work has been done after the first visit of the commissioner on 14.2.2012 and looks fresh. The eastern portion of the B schedule road is in tact having a width of 3 meters and there is an old laterite stone compound wall to a height of about 5 to 6 feet to the sough of the said road put as a northern boundary of the 1^st defendants property.”

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It is evident therefrom that the status quo was altered in respect of the plaint B schedule road after the first interim report dated 23.2.2012 of the Advocate Commissioner. The defendants have no case that some others have reduced the width of the plaint B schedule road by putting laterite stones along the way or that the plaintiff himself has done it. The trial court was therefore fully justified in allowing I.A.No.510/2012 for

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O.P.(C) No.2564/2012

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interim mandatory injunction to restore the plaint B schedule road to its original state as on the date of the suit. The question whether the plaintiffs are entitled to an order of injunction in I.A.No.492/2012 as regards the plaint B schedule road is altogether a different matter which is yet to be considered by the court below. The lower appellate court erred in vacating the order of the trial court granting interim mandatory injunction in I.A.No.510/2012 when the order in I.A.No.592/2012 has not been varied and continues to be in vogue.

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I set aside the judgment in C.M.A.No.8/2012 on the file of the court of the District Judge of Kasargod and restore the order in I.A.No.510/2012 in O.S.No.63/2012 on the file of the court of the Principal Munsiff of Kasargod. The defendants are directed to remove the obstruction along the plaint B schedule road within a period of one month failing which the plaintiff is entitled to have the same removed through process of court and recover the expenses. Nothing said in this judgment will disable the court below to independently consider I.A.No.492/2012 in O.S.No.63/2012 wherein the interim injunction already passed is

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O.P.(C) No.2564/2012

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yet to be varied, vacated or made absolute. The court of the Principal Munsiff of Kasargod is directed to dispose of I.A.No.492/2012 within two weeks after the compliance of the order for interim mandatory injunction in I.A.No.510/2012.

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The original petition is disposed of as above.

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V.CHITAMBARESH, Judge.

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nj.

T.Ibrahim v. the Saint Marys Church, Delampady

Case brief

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T.Ibrahim v. the Saint Marys Church, Delampady

Case brief

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