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IN THE HIGH COURT OF KERALA AT ERNAKULAM
BASANT BALAJI, J.
Haneefa, S/o. Komu & Ors. - Petitioners
Versus
Kunhimuhammed, S/o. Saithali & Ors. - Respondents
CRP No. 406 of 2023
Decided On : 26-03-2025
(A) Civil Procedure Code, 1908 - Section 151 - Mandatory injunction - The suit was filed for a mandatory injunction to restore a 3 ft pathway obstructed by the defendants, who constructed a wall blocking access - The plaintiff has an easement by necessity over the pathway - The trial court granted an interim mandatory injunction to demolish the wall, which was upheld by the appellate court - The court emphasized the need for evidence regarding the existence of the pathway and directed the trial court to expedite the trial. (Paras 1 - 17 )
(B) Interlocutory Mandatory Injunction - Guidelines for granting such injunctions include the necessity to prevent irreparable harm, the balance of convenience, and the strength of the plaintiff's case - The court noted that the grant of such injunctions rests on judicial discretion. (Paras 16 - 17 )
Facts of the case:
The plaintiff sought a mandatory injunction to restore a pathway obstructed by the defendants, who constructed a wall blocking access to the plaintiff's property, which had been in use for years. (Paras 1 - 4 )
Findings of Court:
The court upheld the trial court's order for an interim mandatory injunction, emphasizing the need for evidence regarding the pathway's existence and the necessity of the injunction to prevent irreparable harm. (Paras 9 - 10 )
Issues: The main issue was whether the plaintiff had a right of easement by necessity over the obstructed pathway and whether the interim mandatory injunction was justified. (Paras 7 - 8 )
Ratio Decidendi: The court ruled that the plaintiff has an easement by necessity over the pathway, and the trial court's decision to grant an interim mandatory injunction was justified to prevent irreparable harm. (Paras 9 - 10 )
Result: The C.R.P. is disposed of with directions to maintain status quo and expedite the trial.
Certainly. Based on the provided legal document, the key points are as follows:
The court addressed a dispute involving an obstructed pathway, which the plaintiff claims they have an easement by necessity over, and which the defendants obstructed by constructing a wall (!) (!) .
The plaintiff filed a suit seeking a mandatory injunction to demolish the wall and restore access to the pathway, emphasizing the importance of the pathway for ingress and egress and the longstanding use of the pathway (!) (!) (!) .
The trial court granted an interim mandatory injunction directing the demolition of the obstructing wall, based on evidence suggesting the existence of the pathway and the plaintiff’s easement rights. The order was aimed at preventing irreparable harm (!) (!) (!) .
The appellate court upheld this interim order after considering reports from court-appointed Commissioners, which confirmed the existence of the pathway as on the date of the suit and supported the claim of easement by necessity (!) (!) (!) .
The court emphasized that granting such an injunction involves judicial discretion, guided by principles including the strength of the plaintiff’s case, the necessity to prevent irreparable harm, and the balance of convenience (!) (!) (!) (!) (!) (!) .
The court noted that evidence, particularly from expert reports and inspections, is crucial to establish the existence of the pathway and the easement. It highlighted that the existence of alternative routes, such as steps or other pathways, could influence the decision (!) (!) .
The court recognized that the construction of a new wall and the absence of visible access to the pathway during subsequent inspections raised questions about the actual existence and use of the pathway as claimed (!) (!) .
The court stayed the demolition of the wall pending further trial, noting the importance of maintaining the status quo until the case is fully adjudicated, and directed the trial to be expedited with a timeline to dispose of the case within six months (!) (!) .
The court clarified that it had not examined the merits of the case but focused on the need for evidence and the principles guiding interim injunctions, ensuring that justice is served without causing undue hardship (!) .
Overall, the decision underscores the importance of evidence and judicial discretion in granting interim mandatory injunctions, especially in cases involving rights of easement and potential irreparable harm.
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. 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 court upheld the plaintiff's right to an easement by necessity over a pathway obstructed by the defendants, emphasizing the need for evidence and the judicial discretion in granting mandatory inj....
The court reiterates that interim mandatory injunctions cannot be granted when the same relief is sought in the main suit without leading compelling evidence.
The court upheld the trial court's decision to grant a mandatory injunction, emphasizing the necessity of a strong prima facie case and the balance of convenience favoring the applicant.
In property disputes, a suit for injunction must assert substantial rights rather than mere possession claims for it to be maintainable.
The court emphasized the need to preserve or restore the status-quo until the final hearing and considered the existence of disputed roads and the layout plan sanctioned by the Municipal Corporation ....
The main legal point established in the judgment is that the power to restore the status quo ante through interim mandatory injunction can only be exercised in a suit brought for a decree of mandator....
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