IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS WEDNESDAY, THE 7TH DAY OF FEBRUARY 2018 / 18TH MAGHA, 1939 OP(C).No. 985 of 2017 ---------------------

CMA 1/2017 OF 1ST ADDITIONAL DISTRICT COURT, KOZHIKODE.

O.S.764/2016 OF MUNSIFF COURT - II, KOZHIKODE.

......

PETITIONER(S): --------------

1 JIHAD, AGED 40 YEARS, S/O.MUHAMMED UNNI, VAKAYIL HOUSE, PO KOLATHARA, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK.

2 SIRAJ, AGED 40 YEARS, S/O.MUHAMMED UNNI, VAKAYIL HOUSE, PO KOLATHARA, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK.

3 SHEIK SIHAB, AGED 33 YEARS, S/O.MUHAMMED UNNI, VAKAYIL HOUSE, PO KOLATHARA, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK.

4 ANFAL, AGED 26 YEARS, S/O.MUHAMMAD UNNI, VAKAYIL HOUSE, PO KOLATHARA, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK.

5 RASIYA, AGED 60 YEARS, W/O.MUHAMED UNNI, VAKAYIL HOUSE, PO KOLATHARA, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK.

BY ADVS.SMT.K.NANDINI SRI.BINU BOSE RESPONDENT(S)/DEFENDANTS:

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1. BEERAN, AGED 64 YEARS, S/O.MUHAMMED, RESIDING AT ASMAR SPAN RESIDENCY, NADUVATTOM AMSOM DESOM, THAMBURAN NORTH BEYPORE, KOZHIKODE-673 635.

2. KOTTUMMAL ASHRAF, S/O.ALI, AGED 45 YEARS, 'FIRDOUS', NEDUNGDADAMBU PARAMBA, CHERUVANNUR AMSOM DESOM, PO KOLATHARA-673 635, KOZHIKODE TALUK.

OP(C).No. 985 of 2017 (O) -------------------------

3. MUHAMMAD MUSTHAFA, S/O.HASSAN KOYA, AGED 38 YEARS, ELAYIDATH, CHERUVANNUR AMSOM DESOM, PO KOLATHARA-673 635, KOZHIKODE TALUK.

4. FAIZAL, AGED 38 YEARS, S/O.HASSAN KOYA, ELAYIDATH, CHERUVANNUR AMSOM DESOM, PO KOLATHARA-673 635, KOZHIKODE TALUK.

5. SAUDABI, AGED 37 YEARS, W/O.SHAJAHAN, 'TOUFEEQUE', CHERUVANNUR AMSOM DESOM, PO KOLATHARA-673 635, KOZHIKODE TALUK.

BY ADV. SRI. NIRMAL (NO MEMO)

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

mbr/

OP(C).No. 985 of 2017 (O) -------------------------

APPENDIX PETITIONERS' EXHIBITS: ----------------------

P1 : TRUE COPY OF THE PLAINT IN OS.NO.764/2016 OF THE MUNSIFF'S COURT-II, KOZHIKODE.

P2 : TRUE COPY OF THE ORDER DATED 15-12-2016 PASSED BY THE ADDITIONAL MUNSIFF-II, KOZHIKODE IN IA.NO.4552/16 IN OS 764/2016.

P3 : TRUE COPY OF THE JUDGMENT DATED 25-2-2017 IN CMA.NO.1/2017 OF THE DISTRICT JUDGE, KOZHIKODE.

P4 : ORIGINAL PHOTOGRAPHS SHOWING THE NARROW PATHWAY AND THE WELL SITUATED ADJACENT TO THE PATHWAY (9 NUMBERS)

RESPONDENTS' EXHIBITS: NIL ---------------------

/TRUE COPY/

P.S.TO JUDGE mbr/

ALEXANDER THOMAS, J.

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O.P.(C) No.985 of 2017 -----------------------------------------

Dated this the 7th day of February, 2018

JUDGMENT

The main prayer in this Original Petition (Civil) filed under the enabling provisions contained in Article 227 of the Constitution of India is as follows :

“(i) to quash Exhibit-P3 judgment dated 25.2.2017 in C.M.A.No.1/2017 in O.S.No.764/2016 of the District Judge, Kozhikode.”

2. Heard Smt.K.Nandini, learned counsel appearing for the petitioners/ defendants and Smt.S.Nirmal, learned counsel appearing for the respondents/plaintiffs.

3. The respondents/plaintiffs had secured Exhibit-P2 temporary injunction order dated 15.12.2016 passed by the trial court concerned (Additional Munsiff Court-II, Kozhikode) on I.A.No.4552 of 2016 in O.S.No.764 of 2016. Aggrieved thereby the petitioners/defendants had filed C.M.A.No.1 of 2017 before the court of the District Judge, Kozhikode, to impugn Exhibit-P2 temporary injunction order. The lower appellate court, as per the impugned Exhibit-P3 judgment rendered on 25.2.2017 has dismissed the said Civil Miscellaneous Appeal, C.M.A.No.1 of 2017 thereby confirming the ::2::

O.P.(C) No.985/17 correctness of Exhibit-P2 temporary injunction order. It is this order at Exhibit-P3 which is under challenge in this Original Petition (Civil). 4. On going through the impugned orders at Exhibit-P2 and Exhibit-P3, this Court is of the considered view that the said fact findings and conclusions are rendered by two fora and that too on a concurrent basis, cannot be said t