Kerala High Court
Abhilash Raj vs Abdul Azeez on 26 February, 2021
Author: Mary Joseph
Bench: Mary Joseph
IA/1/2021 IN FAO (RO) 26/2019 1/5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Present:
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
Friday,the 26th day of February 2021/7th Phalguna, 1942
IA 1/2021 IN FAO (RO) 26/2019
For information purpose only
Against AS No.11/2017 of the I ADDITIONAL SUB COURT,ERNAKULAM
Against OS No.741/2012 of the I ADDITIONAL MUNSIFF COURT,ERNAKULAM
PETITIONERS/RESPONDENTS:
1. ABHILASH RAJ
AGED 43 YEARS, S/O. DR. K.V. RAMESH, ABHILASH HOUSE,
KANNAMMURI, THRIKKAKKARA NORTH VILLAGE, KANAYANNUR
TALUK, KOCHI-682 021
2. DR. K.V. RAMESH,S/O LATE VAVA,
AGED 78 YEARS, ABHILASH HOUSE, KANNAMMURI, THRIKKAKKARA
NORTH VILLAGE, KANAYANNUR TALUK, KOCHI-682 021
RESPONDENT/APPELLANT:
ABDUL AZEEZ,AGED 71 YEARS
S/O. MUHAMMED, PERIYAKUNNATH HOUSE, EDAPPALLY,
PUTHUPPALLYPRAM KARA, THRIKKAKKARA NORTH VILLAGE,
KANAYANNUR TALUK, KOCHI-682024.
Application praying that in the circumstances stated in the affidavit filed
therewith the High Court be pleased to pass an order permitting the petitioner to
clean, repair and develop the disputed pathway in the above appeal at the risk
and cost of the petitioners, subject to the final outcome of the above appeal.
This application coming on for orders upon perusing the application and the
affidavit filed in support thereof, and upon hearing the arguments of M/S
C.S.MANU, T.B.SIVAPRASAD , Advocates for the petitioners and of M/S
P.B.KRISHNAN, MANU VYASAN PETER, P.B.SUBRAMANYAN,
P.M.NEELAKANDAN, SABU GEORGE, Advocates for the respondent, the court
passed the following
IA/1/2021 IN FAO (RO) 26/2019 2/5
MARY JOSEPH, J.
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IA 1 of 2021 IN FAO (RO) No.26 of 2019
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Dated this the 26th day of February 2021
For information
O R D purpose
ER only
This is an application filed under Section 151 of the Code of Civil Procedure 1908 seeking for permission to repair and develop 15 links width pathway which is proceeding from the western side of the property to NH-47 on the west. The 2ndrespondent in the Appeal on hand is the 2ndpetitioner in the application. He has sworn to the facts in the affidavit filed in support of the application.
2. The suit was for fixation of boundary and permanent injunction restraining the petitioners from encroaching Plaint-A schedule property which belongs to the appellant. Plaint B schedule property belongs to the respondent. Plaint-A schedule is a three storied commercial building and the pathway abutting the same lies in the east west direction. The dispute is with regard to the width of the pathway. The trial court decreed the suit and in the appeal the lower appellate court after setting aside Ext.C2 report and C2(a), C2(b), and C2(c) plans remanded the case back to the trial court for reconsideration and fresh disposal. The judgment of the appellate court is under challenge in the appeal. The pathway is lying at a lower level from NH-47 and lot of IA/1/2021 IN FAO (RO) 26/2019 3/5 waste materials are being put in the pathway including plastic waste by some persons. The pathway being lying at a lower level from highway there is chance for it to get waterlogged and muddy even by one shower of rain. Therefore, the passage will become unusable and it is difficult to move through. According to him the pathway if left so, For information purpose only would cause hardships to him and therefore requires repair and development. Seeking for permission to do the cleaning and development work of the pathway, the petition on hand is filed.
3. The learned counsel has also submitted during the course of argument that the petitioners would not raise any claim on the basis of the works if any, carried out by them on permission being granted. The pathway is the only access for petitioners ingress and egress from their house to the NH lying on its west.
4. Counter Affidavit has been filed by the respondent vehemently opposing the application and contending that application is not maintainable. The trial court allowed the respondent to put up a boundary on the eastern side of Plaint A schedule property as per the plan prepared by the Advocate Commissioner and formed part of the Commission Report, after leaving a distance of 15 links from the southern compound wall of the pathway situated on the immediate south of the plaint schedule property. The Commission Report and plans were set aside by the impugned judgment of the appellate court and fresh disposal of the suit was directed. The appellate court while IA/1/2021 IN FAO (RO) 26/2019 4/5 remanding the case directed the trial court to show the 15 links wide pathway. Pathway was reported by the Advocate Commissioner as having 10 links and Exts.A5 and A6 marked in evidence by the plaintiff would substantiate that the pathway is having width of 9.95 links. The averments regarding dumping of waste and the logging of water in a For information purpose only single shower of rain are denied. Moreover, the petitioners have no title over the pathway but only right of transportation as well as drawing of electric and water lines. Therefore, the prayer of the petitioners is ill motivated and the petition is liable to be dismissed. The dragging of the disposal of the Appeal for want of co-operation of the respondent is also projected. According to the learned counsel, the attempt of the petitioners is only to get interim orders by keeping the appeal pending.
5. The width of the pathway being the disputed factum, this Court is not inclined to allow the development of the pathway. The petitioners' case was that waste materials are being dumped by some persons (name not specified). The contention regarding logging of water in the pathway in a single shower of rain, is not substantiated even by a photograph. The respondent has stoutly disputed that factum. Therefore, this Court is declined to grant permission to develop the pathway. However, the pathway must be motorable as right of transportation is available to the petitioners. Dumping of waste, if any, would undoubtedly cause hindrance to smooth IA/1/2021 IN FAO (RO) 26/2019 5/5 transportation. The same must be deprecated. The petitioners are willing to do the cleaing work on their own. The respondent is also willing to do necessaries in that regard.
In the result, Interlocutory Application to the extent it seeks permission to clean the debris if any dumped in the pathway is For information purpose only allowed. The petitioners are permitted to do the removal of waste materials, if any, dumped in the pathway so as to maintain it clean and motorable. The respondent if intends, can also co-operate with the cleaning work.
Sd/-
MARY JOSEH JUDGE MJL /true copy/ Sd/-
ASSISTANT REGISTRAR