Jacob Vs. Baby

Jacob vs Baby

Type Court Judgment Court Kerala Decided Aug 13, 2013

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https://sooperkanoon.com/case/1019802

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Citation: sooperkanoon.com/1019802
Court: Kerala High Court
Judge: Honourable Mr.Justice Thomas P.Joseph
Decided On: Aug 13, 2013
Subject: Education

Case Summary

AI-generated summary - not the official court judgment text.

Education

Key legal issue: Education

Parties & Advocates

Appellant / Petitioner

Jacob

Respondent

Baby

Excerpt

.....in that appeal they filed i.a. no.2095 of 2012 for an order of injunction to restrain the appellants from causing obstruction to their using the plaint c schedule. f.a.o. no.154 of 2013 -:2. :- 4. the learned sub judge found a prima facie case in favour of the respondents and granted injunction as prayed for. that order is under challenge.5. learned counsel for the appellants contended that observations made by the learned sub judge in page 5 of the impugned order that the appellants have only a right of way through the plaint c schedule is not correct. according to the learned counsel, it is based on that finding that learned sub judge has granted an order of injunction. learned counsel also submitted that respondents have an alternative access to plaint a and b schedules.6. i must notice that claim of the respondents is easement by prescription as well. hence the existence of an alternative way is not relevant for a decision.7. the advocate commissioner has described the disputed way in exts.c1 to c3(a). it is necessary that the pathway is to be preserved as such. by permitting the respondents to gain access through the plaint c schedule, no loss or injury will be caused to the appellants.8. the lower appellate court has exercised the jurisdiction to grant an order of injunction as prayed for in i.a. f.a.o. no.154 of 2013 -:3. :- no.2095 of 2012. exercise of that discretion is not shown to be arbitrary, capricious or perverse. hence interference in appeal is not justified or required.9. but i make it clear that whatever observations learned sub judge has made in the impugned order will stand confined to the disposal of i.a. no.2095 of 2012 and that the appeal has to be disposed of on merit as early as possible untrammelled by the observations contained in the impugned order or in this judgment. learned sub judge is also directed to dispose of the appeal as early as possible after completing the preliminary steps. with the above observation and direction, the.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH TUESDAY, THE 13TH DAY OF AUGUST 2013 22ND SRAVANA, 1935 FAO.NO. 154 OF 201.() ---------------------------------- I.A.NO. 2095 OF 201.IN A.S. NO.60 OF 2012.SUB COURT,MUVATTUPUZHA APPELLANTS/RESPONDENTS/RESPONDENTS: -------------------------------------------------------------------- 1. JACOB AGED 7 YEARS S/O. VARGHESE, NOW RESIDING AT AMBATTUTHOTTATHIL OLIYAPPURAM KARA, THIRUMARADY VILLAGE MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN-686 673.

2. ANNAKUTTY AGED 6 YEARS D/O. PAULOSE, RESIDING AT AMBATTUTHOTTATHIL OLIYAPPURAM KARA, THIRUMARADY VILLAGE MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN-686 673.

3. KURIAKOSE AGED 5 YEARS S/O. PHILIPOSE, KARIMBINPUTHENPURAYIL AMBATTUTHOTTATHIL, EZHAKKARANADU KARA, MANEED VILLAGE MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN-686 673. BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENT(S)/PETITIONERS/APPELLANTS: ------------------------------------------------------------------- 1. BABY T.JACOB, AGED 6 YEARS S/O. ITTOOP CHACKO, RESIDING AT THELAKKAT HOUSE POOTHRIKKA KARA, AIKKARANAD SOUTH VILLAGE KUNNATHUNADU TALUK, ERNAKULAM DISTRICT-682 308.

2. MICHAEL , AGED 5 YEARS S/O. PAILY,RESIDING AT KANIYELIL HOUSE EZHAKKARANADU KARA, MANEED VILLAGE, MUVATTUPUZHA TALUK ERNAKULAM DISTRICT-686 673. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 13-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J.

==================================== F.A.O. No.154 of 2013 ==================================== Dated this the 13th day of August, 2013

JUDGMENT

Respondents in A.S. No.60 of 2012 of the Sub Court, Muvattupuzha challenge the order dated 09.04.2013 on I.A. No.2095 of 2012.

2. Dispute concerns the right of user of the plaint C schedule. Respondents claimed that plaint A and B schedules belonged to them as per Exts.A1 and A2 and that they have acquired right of easement by prescription over the plaint C schedule. Trial court found that the 1st respondent has not completed user for 20 years while the 2nd respondent has completed the said period but ultimately found against the claim of respondents and non-suited them for various reasons including lack of pleading regarding right of easement claimed.

3. Respondents filed A.S. No.60 of 2012. In that appeal they filed I.A. No.2095 of 2012 for an order of injunction to restrain the appellants from causing obstruction to their using the plaint C schedule. F.A.O. No.154 of 2013 -:

2. :- 4. The learned Sub Judge found a prima facie case in favour of the respondents and granted injunction as prayed for. That order is under challenge.

5. Learned counsel for the appellants contended that observations made by the learned Sub Judge in page 5 of the impugned order that the appellants have only a right of way through the plaint C schedule is not correct. According to the learned counsel, it is based on that finding that learned Sub Judge has granted an order of injunction. Learned counsel also submitted that respondents have an alternative access to plaint A and B schedules.

6. I must notice that claim of the respondents is easement by prescription as well. Hence the existence of an alternative way is not relevant for a decision.

7. The Advocate Commissioner has described the disputed way in Exts.C1 to C3(a). It is necessary that the pathway is to be preserved as such. By permitting the respondents to gain access through the plaint C schedule, no loss or injury will be caused to the appellants.

8. The lower appellate court has exercised the jurisdiction to grant an order of injunction as prayed for in I.A. F.A.O. No.154 of 2013 -:

3. :- No.2095 of 2012. Exercise of that discretion is not shown to be arbitrary, capricious or perverse. Hence interference in appeal is not justified or required.

9. But I make it clear that whatever observations learned Sub Judge has made in the impugned order will stand confined to the disposal of I.A. No.2095 of 2012 and that the appeal has to be disposed of on merit as early as possible untrammelled by the observations contained in the impugned order or in this judgment. Learned Sub Judge is also directed to dispose of the appeal as early as possible after completing the preliminary steps. With the above observation and direction, the appeal is dismissed. All pending Interlocutory Applications will stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv

Same Court & Year Kerala · 2013 Same Parties Jacob vs Baby Same Subject Education Same Judge Honourable Mr.Justice Thomas P.Joseph