Allowed

Maramkollil Ponnachan v. Vattakkalayil Ponnamma

Kerala HC29 Mar 2016FAO/97/2016

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an interim order extending an existing temporary injunction for a suit regarding easement rights while the appeal remains pending on merits, directing the appellate court to decide the final appeal by a specific date.

What did the court decide?

Police action: The appellate court held the temporary injunction order passed by the trial court during I.A.No.743 of 2010 to be continued till the final disposal of the appeal.

Maramkollil Ponnachan Vs Vattakkalayil Ponnamma — Civil Procedure and Limitation | Kerala HC (2016)

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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 P.B.SURESH KUMAR

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TUESDAY, THE 29TH DAY OF MARCH 2016/9TH CHAITHRA, 1938

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FAO.No. 97 of 2016 ()

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---------------------(I.A.NO.191/2016 IN AS.NO. 7/2016 OF DISTRICT COURT, MANJERI) OS.NO. 143/2010 OF MUNSIFF COURT, MANJERI

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APPELLANT/PETITIONER :

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MARAMKOLLIL PONNACHAN, SON OF NARAYANAN, MUTTIKKADAVU, CHUNGATHARA AMSOM DESOM, PALLIKKUTH P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT BY MUKTHIYAR AGENT SANTHA PONNACHAN, WIFE OF MARAMKOLLIL PONNACHAN, MUTTIKKADAVU, CHUNGATHARA AMSOM DESOM, PALLIKKUTH P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT,

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BY ADV. SRI.R.RAJESH KORMATH

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RESPONDENT/RESPONDENT :

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VATTAKKALAYIL PONNAMMA, WIFE OF BHASKARAN, CHUNGATHARA AMSOM DESOM, PALLIKKUTH P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT,

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BY ADV. SRI.A.A..ZIYAD RAHMAN [CAVEATOR]

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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 29-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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P.B.SURESH KUMAR, J.

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= = = = = = = = = = =

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F.A.O.No.97 of 2016.

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= = = = = = = = = = =

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Dated this the 29^th day of March, 2016.

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J U D G M E N T

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The plaintiff in a suit for declaration of easement right

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and consequential injunction is the appellant in this appeal.

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2. The plaint B schedule property belongs to the

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plaintiff. The case of the plaintiff is that he has prescribed a right of easement over plaint A schedule way. The trial court nonsuited the plaintiff holding that the plaintiff has not established his case. The plaintiff challenged the decision of the trial court in appeal. Along with the appeal, the plaintiff filed an application as I.A.No.191 of 2016 seeking an order of temporary injunction restraining the defendant from causing obstructions to the user of plaint A schedule way. The appellate court dismissed I.A.No.191 of 2016 as per the order impugned in this appeal.

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3. Heard the learned counsel for the appellant as also the learned counsel for the respondent.

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4. The learned counsel for the appellant pointed out

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FAO.No.97/2016.

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that all throughout the suit, as per the order passed on I.A.No.743 of 2010 the appellant was enjoying an order of temporary injunction as sought by him in I.A.No.191 of 2016 before the appellate court and as such, the appellate court should have maintained the said order of injunction till the disposal of the said appeal. The learned counsel for the respondent, on the other hand, contended that though the suit is one for declaration of the easement right of the plaintiff over the plaint A schedule way, what was contended by the plaintiff at the time of evidence was that the plaint A schedule way is a public pathway. In support of the said contention, the learned counsel for the respondent has drawn my attention to the evidence tendered by the power attorney holder of the plaintiff as PW1 in the suit. As such, according to the learned counsel for the respondent, it cannot be said that the plaintiff has made out a prima facie case for injunction in the appeal.

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5. The question whether the plaintiff has made out a prima facie case for injunction in the appeal is not to be decided based on the evidence tendered by the power of attorney

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FAO.No.97/2016.

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holder of the plaintiff alone. In so far as the appeal preferred by the plaintiff is yet to be decided on merits and in so far as the plaintiff was enjoying an order of temporary injunction as claimed in the appeal all throughout the suit, I deem it appropriate to dispose of the appeal on the following terms:

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The appellate court shall decide the appeal preferred by the plaintiff on or before 15.6.2016. Until a final decision is rendered on the appeal, the interim order passed by the trial court on I.A.No.743 of 2010 will continue. All the interlocutory applications in the appeal are closed.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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Kvs/-

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// true copy //

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PA TO JUDGE.

Maramkollil Ponnachan v. Vattakkalayil Ponnamma

Case brief

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Maramkollil Ponnachan v. Vattakkalayil Ponnamma

Case brief

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