Allowed

P.C.Shiju, v. Pradeep Kumar.T.D.

Kerala HC11 Jul 2019OP(C)/610/2019

Case brief

AI extract

What is this about?

The appellate court allowed the original petition for permanent prohibitory injunction, setting aside the lower courts' orders that dismissed the plea based on the existence of an alternate pathway. The matter was remanded for trial.

What did the court decide?

The original petition was allowed, setting aside the order of the lower appellate court and the trial court. Both parties were directed to proceed for trial maintaining status quo.

P.C.Shiju, Vs Pradeep Kumar.T.D. — Partition | Kerala HC (2019)

¶1

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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THURSDAY, THE 11TH DAY OF JULY 2019 / 20TH ASHADHA, 1941

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OP(C).No.610 of 2019

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AGAINST THE ORDER/JUDGMENT IN CMA 26/2016 of SUB COURT, KOCHI DATED 18-06-2018

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AGAINST THE ORDER/JUDGMENT IN OS 289/2016 of PRINCIPAL MUNSIFF COURT, KOCHI DATED 09-09-2016

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PETITIONER/APPELLANT/PETITIONER/PLAINTIFF:

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P.C.SHIJU, AGED 37 YEARS S/O.P.N.CHITHAMBARAN, PEEDIYAKKAL PARAMBIL, EDAKOCHI P.O, KOCHI- 682 010.

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BY ADVS. SRI.PAUL K.VARGHESE SMT.NEENA JAMES SRI.K.P.S.JALALUDDEEN MOHMMED

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RESPONDENT/RESPONDENT/RESPONDENT/DEFENDANT:

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PRADEEP KUMAR.T.D., AGED 55 YEARS S/O.DIVAKARAN, THANNIPARAMBIL HOUSE, EDAKOCHI, KUMBALAM FERRY- 680210.

¶13

THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

O.P(C).610/19

JUDGMENT

Petitioner herein is the plaintiff in O.S.No.289 of 2016 of Munsiff Court, Kochi which is s suit for permanent prohibitory injunction to restrain the defendant from causing any obstruction to the plaintiff from using plaint B schedule pathway or causing any damage to it or from committing any acts of waste.

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After the appearance of the defendant, it was claimed that, B schedule pathway was used by him as well as neighbouring owners continuously, openly and peacefully with hostile aminus to the knowledge of the owner of the land for the past 65 years. He asserted that, it has been used from the time of his predecessor also. An advocate commission was taken out. Petitioner sought interim prohibitory injunction, which was declined by Ext.P6 order. It was carried in appeal. By Ext.P8 judgment, appellate court also dismissed the appeal. Aggrieved by the above judgment and order, plaintiff has approached this Court. Notice was served on the respondent, who has not chosen to contest the proceeding.

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Essentially, it seems that, both courts proceeded on the basis that, since there was an alternate pathway, the relief sought by the petitioner herein was not sustainable. It seems that the suit was not based on the claim of easement by prescription and the existence of yet

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O.P(C).610/19

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another pathway, even if it is inconvenient, may not material much. Having considered this, I feel that, both the Courts went wrong in relying too much on it and declining the order of injunction. Having considered this fact, I am inclined to set aside the order of the lower appellate court and the trial court. At the time of hearing, it was informed that the suit is already listed for trial. It will be worthwhile if both the parties proceed for trial. Both sides shall maintain status quo as found by the Commissioner in the meanwhile.

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Original petition is allowed as above.

Sd/-

SUNIL THOMAS

JUDGE

Sbna

O.P(C).610/19

APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1	A TRUE COPY OF THE PLAINT O.S.NO.289/2016 ON THE MUNSIFF COURT, KO DATED 11.08.2016.	IN CHI
EXHIBIT P2	A TRUE COPY OF THE INJUNCTION PETITION I.A.NO.2153/2016 IN O.S.NO.289/2016 ON MUNSIFF COURT, KOCHI DATED 11.08.2016.	AS THE
EXHIBIT P3	A TRUE COPY OF THE COMMISSION REPORT WELL AS SKETCH IN O.S.NO.289/2016 ON MUNSIFF COURT, KOCHI DATED 31.08.2016.	AD THE
EXHIBIT P4	A TRUE PHOTO OF THE PATHWAY.
EXHIBIT P5	A TRUE COPY OF THE COUNTER AFFIDAVIT FI BY THE RESPONDENT IN I.A.NO.2153/2016 O.S.NO.289/2016 ON THE MUNSIFF COURT, KO DATED 27.08.2016.	LED IN CHI
EXHIBIT P6	A TRUE COPY OF THE ORDER I.A.NO.2153/2016 IN O.S.NO.289/2016 ON MUNSIFF COURT, KOCHI DATED 09.09.2016.	IN THE
EXHIBIT P7	A TRUE COPY OF THE CMA NO.26/2016 ON FILE OF SUB COURT, KOCHI ON 25.10.2016.	THE
EXHIBIT P8	A TRUE COPY OF THE ORDER IN CMA NO.26/2 ON THE FILES OF SUB COURT, KOCHI DA 18.06.2018.	016 TED

P.C.Shiju, v. Pradeep Kumar.T.D.

Case brief

What is this about?

What did the court decide?

P.C.Shiju, v. Pradeep Kumar.T.D.

Case brief

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What did the court decide?

What the court decided

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