Dismissed

Varghese @ Kunjumon v. Aleyamma Chacko

Kerala HC12 Jul 2019OP(C)/186/2018

Case brief

AI extract

What is this about?

A property dispute where the High Court dismissed a petition challenging a lower court order directing defendants to restore a pathway to its original width during suit pendency, rejecting the argument that no injunction violation occurred.

What did the court decide?

The original petition was dismissed.

What the court decided

Varghese @ Kunjumon Vs Aleyamma Chacko — Specific Performance | Kerala HC (2019)

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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 SUNIL THOMAS

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FRIDAY, THE 12TH DAY OF JULY 2019 / 21st ASHADHA, 1941

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OP(C).No.186 of 2018

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AGAINST THE ORDER IN IA NO.1524/2017 IN OS 188/2017 of ADDITIONAL MUNSIFF COURT, ALAPPUZHA

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PETITIONER/DEFENDANTS 1 & 2 :

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1 VARGHESE @ KUNJUMON, AGED 55 YEARS, VALIYAKALATHILCHIRA-LIJU BHAVAN HOUSE,THEKKE MURI, EDATHUA VILLAGE, KUTTANADU TALUK,ALAPPUZHA DISTRICT.689573

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2 JOSEPH @JOSEKUTTY AGED 56 YEARS, NEDUVAMMALIL HOUSE, THEKKE MURI,EDATHUA VILLAGE, KUTTANADU TALUK,ALAPPUZHA DISTRICT.689573.

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BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.DIPU JAMES SRI.GEORGE MATHEW SRI.M.D.SASIKUMARAN SRI.SETHURAM DHARMAPALAN SHRI.SUNIL KUMAR A.G

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RESPONDENTS/PLAINTIFF & 3RD DEFENDANT:

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1 ALEYAMMA CHACKO, AGED 79 YEARS, W/O LATE CHACKO,KALLOOPPARAMBIL HOUSE, THEKKE MURI,EDATHUVA VILLAGE, KUTTANADU TALUK,ALAPPUZHA DISTRICT-689573.

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2 VARGHESE @ JUSTIN AGED 22 YEARS, S/O JOSEPH, NEDUVAMMALIL HOUSE, THEKKE MURI, EDATHUA VILLAGE, KUTTANADU TALUK,ALAPPUZHA DISTRICT.689573

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BY ADVS. SRI.RAJIT SHRI.MANOJ GEORGE SMT.V.VIJITHA

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05.07.2019, THE COURT ON 12/7/2019 PASSED THE FOLLOWING:

O.P.(C)No.186/2018

JUDGMENT

Petitioners herein are the first and second defendants in OS No188/2017 of the Munsiff Court, Alappuzha. First respondent is the plaintiff and the second respondent is the third defendant.

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Ext.P1 suit was filed by the first respondent herein seeking permanent prohibitory injunction restraining defendants 1 and 2 from trespassing into the plaint item No. 1 schedule property, excluding plaint item No.2 pathway or from widening the width of item No. 2 pathway by trespassing into plaint item No.1 property or from committing any act of waste . Along with the suit, IA No.640/2017 was filed seeking an interim order of injunction. Though ex parte interim injunction was not granted, later by Ext.P6 order dated 20/3/2016, an interim order of injunction was granted. Exts.P3 and P4 commission reports indicate the existing position of the land at that time.

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Thereafter, on an allegation that after the institution of the suit, defendants had intermeddled with the property, cut and removed certain trees and increased the width of the pathway, IA No.1524/2017 was filed with a prayer to direct the defendants to restore the suit to the position as it existed on the date of the suit. Ext.P8 objection was filed denying the above allegation. By Ext.P9 order, item No. 2 pathway was ordered to be restored back to the width as on the date of Ext.C1

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O.P.(C)No.186/2018

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commission report. Ext.P9 is assailed in this original petition.

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As seen from Ext.P7, the suit was instituted on 13/2/2017. The commissioner inspected the property on the same day. On 17/2/2017, defendants 1 to 3 allegedly trespassed into the property and cut and removed the trees on the eastern side of item No.1 property. According to the plaintiff, width was widened to 2.50 meters, which was inconsonence with the finding of the 2^nd advocate commissioner. The court below, by the impugned order directed the defendants to restore the pathway to its original position and in case of failure, the plaintiff was permitted to restore it at the instance of the defendants.

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Objection raised by the defendants 1 and 2 was that the plaintiff did not have any claim over the property. Way had been used by the locals and also adjacent land owners for their ingress and egress. There was no objection initially. It was alleged that later it was obstructed and some of the locals had removed obstructions with the permission of the son of the plaintiff. It was contended that the width was not as found by the advocate commissioner initially as 1.10 meters. By Ext.P9, the court below held that on the first visit the width of the pathway was found to be vary from 1.10 meters to 2 meters. In the second visit, it was found that width was increased to 2.50 meters. It was also found that the pathway was used by the owners of the adjacent property who are about four in number. Hence, the commissioner found that the case that the local people were using the

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O.P.(C)No.186/2018

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pathway was incorrect. The court concluded that hence the suit property was liable to be preserved during the pendency of the suit. Consequently, plaintiff was permitted to restore it to the original position and to recover the cost from the defendants.

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One of the main contention of the petitioners was that the plaintiff did not have any right over the property. In fact, it belonged to her son and hence the suit was not sustainable. I feel that the above contention is not sustainable. Admittedly, the plaint schedule property was settled in favour of the son. The mother had life interest over the property. Plaintiff was also residing in the house and consequently the suit can only be considered as one filed with the knowledge of the son.

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Yet another contention of the learned counsel for the defendants was that there was no violation of the injunction. Defendants contended that to invoke Order 39 Rule 2A CPC, violation of the order of injunction should be established, since that being a penal provision, statutory provision will have to be construed strictly. Exts.C1 and C2 shows that the property was intermeddled. It is not a case of violation of the injunction order. Learned counsel for the defendants invited my attention to the interlocutory application wherein it was stated that the application was one under Order 39 Rule 1. It was not an application under Order 39 Rule 2 A.

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Having considered the entire facts, I find no merit in the impugned order which is liable to be dismissed. As mentioned earlier,

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O.P.(C)No.186/2018

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the entire exercise was to ensure the preservation of the property during the pendency of the proceedings.

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Accordingly, I am inclined to hold that the impugned order does not call for any interference. The original petition is liable to be dismissed. Accordingly, the original petition fails and is dismissed.

Sd/-

SUNIL THOMAS

JUDGE

dpk

O.P.(C)No.186/2018

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF PLAINT DATED 13.2.2017 IN O.S NO.188 OF 2017 OF MUNSIFF'S COURT ALAPPUZHA.

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EXHIBIT P2 TRUE COPY OF I.A NO.640 OF 2017 DTD. 13.2.2017 IN EXT.P1 O.S NO.188 OF 2017. EXHIBIT P3 TRUE COPY OF THE COMMISSIONER'S REPORT DTD. 23.2.2017. EXHIBIT P4 TRUE COPY OF COMMISSIONER'S REPORT DTD.01.03.2017. EXHIBIT P5 TRUE COPY OF OBJECTION DTD.6.3.2017 IN EXT.P2 EXHIBIT P6 TRUE COPY OF ORDER DTD.20.03.2017 IN EXT.P2 EXHIBIT P7 TRUE COPY OF I.A NO.1524 OF 2017 DTD. 23.03.2017 IN EXT.P1 EXHIBIT P8 TRUE COPY OF THE OBJECTION DATED NIL TO EXT.P5 APPLICATION. EXHIBIT P9 TRUE COPY OF THE ORDER DATED 06.12.2017 IN EXT.P7.

Varghese @ Kunjumon v. Aleyamma Chacko

Case brief

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Varghese @ Kunjumon v. Aleyamma Chacko

Case brief

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What the court decided

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