Kerala High Court
P.T.Thomas vs Milan Raj Pothanikatt on 24 June, 2011
Author: K.T.Sankaran
Bench: K.T.Sankaran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 1974 of 2011(O)
1. P.T.THOMAS, S/O. THOMAS, AGED 52 YEARS,
... Petitioner
Vs
1. MILAN RAJ POTHANIKATT, S/O. RAJU PAUL,
... Respondent
For Petitioner :DR.GEORGE ABRAHAM
For Respondent :SRI.M.M.MONAYE
The Hon'ble MR. Justice K.T.SANKARAN
Dated :24/06/2011
O R D E R
K.T.SANKARAN, J.
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O.P.(C).No.1974 of 2011
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Dated this the 24th day of June, 2011
JUDGMENT
The petitioner is the defendant in O.S.No.446 of 2009 on the file of the court of the Munsiff of Muvattupuzha. The suit is for declaration and injunction. The plaintiff claimed an easement by grant in respect of the plaint 'C' schedule property. The plaint B schedule property is a pathway. In the Commissioner's plan, B schedule property is shown as plots 1, 2 and 3. Plot 2 is the plaint 'C' schedule property.
2. The plaintiff filed an application for temporary injunction. It is stated that the court below granted an interim injunction and it is still in force.
3. The Commissioner appointed in the case, who inspected the property on 8.10.2009, reported that at the entrance of the plaint B schedule property rubbles were found. OPC 1974/2011 2 The Commissioner also found pits here and there in the pathway. In the report dated 6.4.2011, the Commissioner reported that plots 1, 2 and 3 (plaint B schedule property) is lying with ups and downs and smooth passage of vehicles is not possible.
4. The plaintiff filed I.A.No.817 of 2010 for permission to carry out maintenance work in the plaint B schedule property up to the entrance to his house in the plaint A schedule property for the purpose of smooth vehicular traffic. The plaintiff stated that he is prepared to do the work under the supervision of the Advocate Commissioner. In the affidavit accompanying I.A.No.817 of 2010, it was alleged that the defendant violated the order of injunction and made the pathway practically unusable. This allegation was denied by the defendant.
5. The court below, by the order dated 7th June 2011, allowed the prayer in I.A.No.817 of 2010 and permitted the plaintiff to do the minimum maintenance of the plaint B schedule road for the purpose of taking vehicles to the A schedule OPC 1974/2011 3 property. The court below also directed that the work shall be done in the presence of the Commissioner. The defendant challenges that order in this Original Petition.
6. The learned counsel for the petitioner submitted that the pathway leads to the property belonging to the wife of the defendant and that the plaintiff has no right to use the pathway. The counsel also submitted that the pathway belongs to the defendant and the defendant is prepared to do the maintenance work.
7. There was allegation that the defendant violated the order of injunction and made the road unfit for smooth vehicular traffic. When the Commissioner inspected the property on 8.10.2009, he noted the nature and condition of the pathway and the existence of pits in the pathway. In the report dated 6.4.2011 also, the Commissioner stated that unless maintenance work is done, smooth vehicular traffic would not be possible through the plaint B schedule pathway.
OPC 1974/2011 4
8. There is no dispute that repair work is needed in the plaint B schedule. Who should do the maintenance work is the only dispute in this Original Petition. It would appear that the dispute in this Original Petition is only the result of ego clash between the parties. The court below permitted the plaintiff to do the work in the presence of the Commissioner. When the plaintiff alleged that the defendant, in violation of the order of injunction, made the pathway unusable for vehicular traffic, there was nothing wrong in permitting the plaintiff to do the repair work in the presence of the Commissioner. I do not find any illegality, irregularity or jurisdictional error in the order passed by the court below.
The Original Petition lacks merit and it is accordingly dismissed.
K.T.SANKARAN JUDGE csl