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2025 DIGILAW 741 (KER)

HANEEFA v. KUNHIMUHAMMED

2025-03-26

BASANT BALAJI

body2025
ORDER : This C.R.P. is filed by the defendants in O.S.No.75 of 2023 on the files of the Munsiff Court, Perinthalmanna, and the respondent is the plaintiff therein. The suit was filed for a mandatory injunction to restore the 3 ft way through plaint B schedule property and for restraining the defendants from obstructing the usage of the pathway by the defendants or their men. Along with the suit, I.A. No.2 of 2023 was filed for a temporary mandatory injunction for demolishing the compound wall. 2. Plaint A schedule property originally belonged to the plaintiff’s grandfather Moideenkutty, and after his death, the entire properties were partitioned among the plaintiff’s father, defendants’ father, namely Komu and their sisters Kadiyumma and Pathumma. All the properties were part of a single holding.The respondent’s father was allotted the property on the northern side of the plaintiff’s father’s property. A 3 ft wide pathway existed from the beaten track on the eastern side of the properties allotted to Kadiyumma and Pathumma to the plaintiff’s father’s property and the respondent’s father’s property. The plaintiff’s father assigned plaint A schedule item No.1 to the plaintiff as per document No.1856/1991 of SRO, Makkaraparamba and has constructed a house and has been living there for the last 13 years. 3. Plaint A schedule item No.2 was assigned in favour of his sister Ayisha, by document No.1855/1991 of the same SRO. The sister assigned the property, obtained by her, to the plaintiff by document No.246/1994. Thus, plaint item Nos.1 and 2 are lying as a single plot in favour of the plaintiff. The pathway leading to the defendant’s father’s property was developed into a pathway of 10 feet, and the said way passed through the defendant’s property, having a width of 3 ft., and ended in the plaint A schedule property. The said way is described as plaint B schedule. 4. Plaintiff has an easement by necessity right over the plaint B schedule property. Since the defendant’s property is lying at a higher level than plaint A schedule property, soil was dumped to have a slope from the pathway to plaint A schedule property. The defendant recently obstructed the plaint B schedule way and constructed a compound wall by completely blocking access to A schedule. Therefore, the said suit was filed for a mandatory injunction to demolish the wall blocking the way to plaint A schedule property. 5. The defendant recently obstructed the plaint B schedule way and constructed a compound wall by completely blocking access to A schedule. Therefore, the said suit was filed for a mandatory injunction to demolish the wall blocking the way to plaint A schedule property. 5. I.A.No.3 of 2023 was filed for appointing an Advocate Commissioner. The court below allowed the application, and a commissioner inspected the property and filed a report. Thereafter, at the instance of the defendant, I.A.No.5 of 2023 was filed, and the same Commissioner was appointed to inspect the property and submitted a report. After considering both the Commission reports, the trial court granted an interim mandatory injunction to demolish the laterite wall in width of 3 ft. within 7 days or else, the plaintiff is at liberty to demolish the same at his cost and expenses. Aggrieved by the interim mandatory injunction order, the petitioners herein filed C.M.A. No.18 of 2023 before the Sub Court, Manjeri and also filed I.A. No.2 of 2023 to appoint a senior Advocate as Commissioner. 6. The lower appellate court allowed the application, and an Advocate Commissioner inspected the property and filed another report. Acting on the said report and earlier reports, the learned Sub Judge dismissed C.M.A.No.18 of 2023, confirming the trial court's order. This Revision Petition is filed challenging the judgment in C.M.A.No.18 of 2023 and the order in I.A. No.2 of 2023 in O.S. No.75 of 2023. 7. The question that is to be considered in this C.R.P. is regarding the interference to the interim mandatory injunction granted by the court to demolish the laterite wall blocking the B schedule pathway. The trial court allowed the application after entering into a finding that Ext.A1 to A3 title deeds of plaint A schedule property shows that the property of Komu, the predecessor of the defendants, lies on the northern side of plaint A schedule. Ext.A15 is the title deed of the defendants. A comparative reading of Ext.A1 to A3 with Ext.A15 shows that the plaint A schedule property and northern property were part of a single holding. The trial court also took into consideration Ext.C1 sketch and Ext.C2 report, which show that soil is heaped into plaint A Schedule property near the southern boundary of the disputed wall is the continuation of the alleged 3 ft. pathway scheduled as B pathway, to enter into A schedule property. 8. The trial court also took into consideration Ext.C1 sketch and Ext.C2 report, which show that soil is heaped into plaint A Schedule property near the southern boundary of the disputed wall is the continuation of the alleged 3 ft. pathway scheduled as B pathway, to enter into A schedule property. 8. The case put forward by the defendant is that the plaintiffs have an alternate way through the property of Kunjumohammed. The Commissioner has noted in the reports the existence of steps from plaint A schedule to the property of Kunjumohammed, which prima facie shows that the way to plaint A schedule property is through Kunjumohammed and the Panchayath road. The trial court also relied on the report of the Commissioner which showed that the compound wall separating plaint A schedule property and the property of the defendant is a new one and estimated the age as one month. In Ext.C1 report, the commissioner has not found any other way, other than the B schedule pathway 9. In the said circumstances, the court granted an interim mandatory injunction to demolish the laterite wall blocking the B schedule way. The appellate court had an occasion to consider the commission report obtained at the appellate stage in I.A. No.2 of 2023. The Commission report filed in the C.M.A. did not state about any 3 ft way passing through the defendant’s property. The suit was filed for a mandatory injunction on 10.4.2023, and the 1 st Commissioner inspected the property on 14.4.2023. The said report identified the B schedule pathway and also noted a portion of the old wall between the A schedule property and B schedule pathway and the new wall constructed within a month. 10. The lower appellate court also noted that the new wall is constructed on top of the old wall, and the new portion has a height of 4½ ft. On 7.7.2023 also, when the commissioner inspected the property again, he could not see the Plaint B schedule pathway; possibly, by that time, the wall had been constructed, and there was no access to the Plaint A schedule through the defendants’ property. The lower appellate court clearly came to a conclusion that from Ext.C1, it is proved that plaint B schedule way existed as on the date of the suit, and has a right of easement by necessity. The lower appellate court clearly came to a conclusion that from Ext.C1, it is proved that plaint B schedule way existed as on the date of the suit, and has a right of easement by necessity. In such circumstances, it was held that the mandatory injunction granted by the trial court is to be upheld, and the appeal was dismissed. 11. Heard. 12. While admitting this revision on 13.12.2023, an interim order was passed directing that the compound wall shall not be demolished pursuant to the judgment in C.M.A. No.18 of 2023, which is still in force. 13. Counsel for the petitioners argued that since the main relief sought in the suit is for a mandatory injunction for demolishing the portion of the compound wall obstructing ingress and egress to A schedule property, the trial court is not justified in granting the same relief as an interim measure. If the interim mandatory injunction is allowed to stand, irreparable injury and hardship will be caused to the petitioners, and it is as good as allowing the suit itself. He argued that interim mandatory injunction should be issued only on a case-to-case basis, not as a routine one, and that too, when great injustice is caused to the plaintiff. He further submitted that in the Commission report, the existence of steps on the eastern and western sides of plaint A schedule property proves the existence of an alternate way to plaint A schedule property. In such circumstances, without taking evidence, the interim mandatory injunction ought not have passed. 14. Counsel for the respondent had relied on the judgment of this court in Appukuttan Nair v. Hydrose ( 2004 KHC 60) and argued that the interlocutory mandatory injunction is granted generally to preserve or restore the status quo of the last known contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. Reliance was also placed on the decision reported in A ntony v. Padmavaty Amma [ 2010 (1) KHC 794 ]. 15. Reliance was also placed on the decision reported in A ntony v. Padmavaty Amma [ 2010 (1) KHC 794 ]. 15. In the 1 st commission report dated 13.5.2023, the commissioner has opined that there lies a way of 10 ft from the panchayath road to the property of the defendant and also a 3 ft pathway in the north-south direction to the plaint A schedule property. It is also reported that a new wall is constructed between the property of the plaintiff and the defendants. He also reported that the foundation of the entire extent of the wall is seen to have been constructed years back. Only the upper portion of the wall on the south-eastern corner of the defendant’s property has been made, and a new construction has been made. But in the 2 nd report dated 11.7.2023, the commissioner has reported that there is nothing to suggest that there is any evidence of using the defendants’ property as a way to enter into plaint A schedule property. The Commissioner’s report in the appellate stage also concurs with the same. 16. The suit was filed in 2023 for a mandatory injunction to demolish the compound wall. Though the trial court and the lower appellate court ordered an interim mandatory injunction, this court stayed it from 13.12.2023 onwards. 17. In Dorab Cawasji Warden v. Coomi Sorab Warden and others [ (1990) 2 SCC 117 ) it is held as follows : "16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are: (1) The plaintiff has a strong case for trial. Generally stated these guidelines are: (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury, which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief. 17. Being essentially an equitable relief, the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court, which shall be exercised in light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as a prerequisite for the grant or refusal of such injunctions would be a sound exercise of judicial discretion." In such circumstances, in order to meet the ends of justice, I am of the considered opinion that evidence is required for arriving at a conclusion as to the presence of a 3 ft pathway through the defendants’ property to plaint A scheduled property as an easement of necessity. Therefore, I deem it appropriate to direct the parties to maintain status quo as on today and the trial court is directed to expedite the trial and to dispose of O.S.No.75 of 2023 within a period of six months from the date of receipt of a certified copy of this judgment. The C.R.P. is disposed of with the above observations. Needless to say, that I have not gone into the merits of the case and untrammelled by any of the observations in this judgment, the suit shall be disposed of.