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ABRAHAM DANIEL, AGED 40 YEARS versus JOHN JOY, S/O. M.G. JOHN, AGED 67

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ABRAHAM DANIEL, AGED 40 YEARS v. JOHN JOY, S/O. M.G. JOHN, AGED 67 - WP(C) No. 719 of 2007(I) [2007] RD-KL 443 (8 January 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 719 of 2007(I)

1. ABRAHAM DANIEL, AGED 40 YEARS,
... Petitioner

Vs

1. JOHN JOY, S/O. M.G. JOHN, AGED 67,
... Respondent

2. ANNAMMA ROBY, W/O. ROBY THOMAS,

For Petitioner :SRI.B.RENJITHKUMAR

For Respondent : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :08/01/2007

O R D E R

M.SASIDHARAN NAMBIAR,J.

W.P.(C)NO.719 OF 2007

DATED THIS THE 8th DAY OF JANUARY, 2007



JUDGMENT

Petitioner is the defendant in O.S.257/05 on the file of Munsiff Court, Mavelikkara. Respondents are the plaintiffs. Respondents filed I.A.1368/05, an application under Order XXXIX Rule 1 of Code of Civil Procedure seeking an order of temporary injunction restraining respondents from tress passing into plaint 'B' schedule property claiming respondents are absolute owners in possession of plaint 'B' schedule property. Petitioner in the objection contended that 'B' schedule property is a public way and he is entitled to use that way. Under Ext.P2 order, learned Munsiff prima facie found that it is not a public way but the private property of respondents. Learned Munsiff also found that on the southern side of the property of petitioner, there is a public road and there is direct access to his property from that road and in such circumstances, the balance of convenience is in favour of respondents. An order of temporary injunction was granted. Petitioner challenged the order before Addl. District Court, Mavelikkara in C.M.A.49/05. Learned Addl. District Judge after an elaborate discussion of facts confirmed Ext.P2 order and dismissed the appeal. W.P.(c)719/07 2 It is challenged in this petition filed under Article 227 of Constitution of India.

2. Learned Counsel appearing for petitioner was heard.

3. Arguments of learned Counsel appearing for petitioner was that in the plaint itself, it was admitted that plaint 'B' schedule property is a way and the order of injunction restrains petitioner from trespassing into the way,which include the right to use the way and therefore Exts.P2 and P3 orders are to quashed permitting petitioner to use the way.

4. On going through Exts.P2 and P3 orders, it is clear that petitioner is claiming right to use the plaint 'B' schedule way only on the ground that it is public way. Prima facie both the courts found that it is not a public way but the private property of respondents. In such circumstances, unless petitioner has got a right to use that way he is not entitled to use it, without the permission of respondents. As found by the courts below, petitioner has direct access from the southern public road to his property. He is not claiming the right to use the way only on the basis that is a public way and no right of easement or grant was claimed. In such circumstances, I do not find any infirmity in Exts.P2 and P3 orders warranting interference in exercise of the extraordinary jurisdiction of this Court under Article 227 of Constitution of India. W.P.(c)719/07 3 Petition is dismissed. Learned Munsiff is directed to dispose the suit untrammeled by any observation in Exts.P2 and P3 orders or in this judgment.

M.SASIDHARAN NAMBIAR,JUDGE

Acd


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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