Kerala High Court
Achenkunju vs Podiyan on 10 April, 2013
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
THURSDAY, THE 16TH DAY OF JANUARY 2014/26TH POUSHA, 1935
OP(C).No. 2140 of 2013 (O)
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AGAINST THE ORDER IN OS 241/2005 of MUSNIFF COURT,
ADOOR, DATED 10-04-2013
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PETITIONER(S):
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1. ACHENKUNJU, AGED 52 YEARS,
S/O DEVASYA, MUTTATHU VEEDU, KALANJOOR MURI & VILLAGE,
ADOOR TALUK, PATHANAMTHITTA DISTRICT.
2. SASI, AGED 45 YEARS,
S/O PODIYAN, ETTIVILA THAZHEVEETIL, KALANJOOR MURI,
& VILLAGE , ADOOR TALUK, PATHANAMTHITTA DISTRICT.
3. ANANDAN, AGED 42 YEARS,
S/O CHENNAN, ETTIVILA VEETIL, KALANJOOR MURI & VILLAGE,
ADOOR TALUK, PATHANAMTHITTA DISTRICT.
BY ADVS.SRI.V.SETHUNATH
SRI.S.JUSTUS
RESPONDENT(S):
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1. PODIYAN, AGED 60 YEARS,
S/O AYYAN, THANEESH BHAVAN, KALANJOOR MURI & VILLAGE,
ADOOR TALUK, PATHANAMTHITA DISTRICT, PIN:689 694.
2. THANKAMMA, AGED 58 YEARS,
W/O PODIYAN, THANEESH BHAVAN, KALANJOOR MURI & VILLAGE,
ADOOR TALUK, PATHANAMTHITT ADISTRICT, PIN:689 694.
BY ADV. SRI.N.N.SASI
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16-01-2014, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
PJ
OP(C).No. 2140 of 2013 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1: TRUE COPY OF THE JUDGMENT AND PORTION OF THE DECREE IN
O.S.NO.241/2005 ON THE FILE OF THE MUNSIFF'S COURT, ADOOR.
EXHIBIT P2: TRUE COPY OF THE REPORT AND MAHAZAR OF THE ADVOCATE
COMMISSIONER MARKED IN EXT.P1.
EXHIBIT P3: TRUE COPY OF THE EXECUTION PETITIONER NO.63/2010 DATED
16.8.2010.
EXHIBIT P4: TRUE COPY OF THE E.A.NO.43/2010 IN E.P.NO.63/2010 ON THE FILE OF
THE MUNSIFF'S COURT ADOOR.
EXHIBIT P5: TRUE COPY OF THE COMMISSION APPLICATION FILED BY THE
RESPONDENTS IN THIS O.P.
EXHIBIT P6: TRUE COPY OF THE REPORT, MAHAZAR AND DEPOSITION OF THE
ADVOCATE COMMISSIONER.
EXHIBIT P7: TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONERS/JUDGMENT DEBTORS.
EXHIBIT P8: TRUE COPY FO THE COMMON ORDER PASSED IN E.A.43/2010 %
E.A.7/2012 IN E.P.63/2010 INO.S.NO.241/2005 ON THE FILE OF THE
MUNSIFF'S COURT, ADOOR.
RESPONDENT(S)' EXHIBITS
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EXHIBIT R1(A): TRUE CERTIFIED COPY OF DEPOSITION OF DW2 DATED 10/2/12 IN
EP.NO.63/2010
/ TRUE COPY /
P.S. TO JUDGE
PJ
P.N.RAVINDRAN, J.
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O.P.(C).No.2140 of 2013
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Dated this the 13th day of January, 2014
JUDGMENT
The petitioners are defendants 1, 3 and 4 respectively in O.S.No.241 of 2005 on the file of the Court of the Munsiff of Adoor. The respondents are the plaintiffs therein. The suit instituted by the respondents-plaintiffs was decreed ex parte by judgment delivered on 18.11.2008 and defendants 1, 3, 4 and 5 and their men were restrained from trespassing into the plaint schedule property or from destroying the boundary wall thereof or from annexing any portion thereof or from committing acts of waste therein. In the trial court, an Advocate Commissioner was appointed to inspect the plaint schedule property and the properties of the defendant and to submit a plan and report. He, after inspecting the plaint schedule properties and the properties of the defendants, submitted Ext.P3 report dated 16.8.2010 wherein he stated that to the south of the plaint schedule property, a pathway, approximately 2 - 3 feet wide, lies in the east west direction and it terminates in the properties of the first O.P(C)No.2140/2013 -:2:- defendant. He also reported that the pathway does not have a uniform width, that the width ranges from 2 feet to 1.35 metres and it has a length of about 103 feet.
2. Alleging that in violation of the decree of injunction the pathway was widened, the decree holders filed E.P.No.63 of 2010 to enforce the decree. Later they filed E.A.No.43 of 2010 wherein they alleged that on 31.7.2010 between 11 a.m. and 3.30 p.m. the pathway was widened into a pathway of 7 to 7= feet wide. Still later they filed E.A.No.7 of 2012 alleging that on 24.12.2011 the southern boundary wall was demolished and the pathway was once again widened. In the execution court an Advocate Commissioner was appointed and he filed Ext.P6 report dated 22.5.2011. He reported that the pathway now has a width ranging from 6.1 feet to 7.6 feet and a length of 102 feet. He also reported that for a length of 56.6 feet the boundary wall was demolished. The relevant portion of the report dated 22.5.2011 submitted by the Advocate Commissioner appointed by the execution court is extracted below:-
RIG_5 UXqaA{af? fDAaUV" %D_x_Ha 5_]AaI?_E^ya 102 %?_ H`{" UxaKa.e?_ U]_OmAm^ H_\U_W 5^CaK U`D_OCa fx6fM?aJ_O_GaUDm.eIGa5UXmJaA{af? fDAaUV"
5_]AaI?_E^y^OaU U]_OmAm^ 5_]Ax" 7.6 %?_ U`D_ 5CaKa.e5_]AxJaH_Ka" I?_E^gy^Gm 25 %?_ 5]_OagO^Z O.P(C)No.2140/2013 -:3:- 6.9 %?_ U`D_Oa"; U`Ia" 25 %?_ 5]_OagO^Z 5 %?_ U`D_Oa" U`Ia" 25 %?_ I?_E^gy^Ga UxagO^Z 6.3 %?_ U`D_Oa", I?_E^yaUV" gy^A_WH_Km 5_]gA^GaU U_U^FU]_Oaf? Da?AJ_W 6.1 %?_ U`D_Oa" 5^CfM?aKa.
I?_E^yaH_Ka" 5_]gA^Gm IG_5 UXqaA{af?
fDAD_x_W 56.6 %?_ H`{J_W 5WfAGm
'?_:n_G_x_OmAaKD^O_ 5^CaKa.eyL_ZXm XmE\Ja
5_?MaIm.eH_\U_W 5^CaK U]_Oaf? I]A" 5N`WCVAm D_GfM?aJ^X Lai_NaG^Ca.eH_\U_W 5^CaK U`D_O_W 2xa UVWN^O_ U]_OaUD^O_ U^F_5Z IyOaKa.Q
3. In the execution court, the first plaintiff was examined as P.W.1, the neighbouring resident who has witnessed the two incidents on 31.7.2010 and 24.12.2011 was examined as P.W.2 and the Advocate Commissioner was examined as P.W.3. The mahazar, report and rough sketch submitted by the Advocate Commissioner were marked as Exts.C1 to C3 respectively. On the side of the defendant the first judgment debtor was examined as D.W.1 and the second judgment debtor was examined as D.W.2 The execution court after considering the rival contentions and the materials on record held that the judgment debtors have disobeyed the decree of injunction. The execution court accordingly ordered imprisonment of judgment debtors 1 and 3 to 5 for a continuous period of one month in civil prison. The said order, a copy of which is on record as Ext.P8, is under challenge O.P(C)No.2140/2013 -:4:- in this original petition filed under Article 227 of the Constitution of India.
4. I heard Sri.V.Sethunath, learned counsel appearing for the petitioners and Sri.N.N.Sasi, learned counsel appearing for the respondents. I have also gone through the pleadings and the materials on record. The Advocate Commissioner appointed by the trial court had in his report dated 16.8.2005, a copy of which is on record as Ext.P2, reported that the pathway has a width ranging from 2 to 3 feet to 1.35 metres. By the ex parte decree passed in the suit the defendants were restrained from trespassing into the plaint schedule property or from destroying the boundary wall or from annexing any portion of the plaint schedule property or from committing acts of waste therein. The decree holders had in the execution petition alleged that after the decree attained finality, the defendants widened the pathway. Still later, they filed E.A.No.43 of 2010 and E.A.No.7 of 2012 wherein they alleged that on 31.7.2010 and 24.12.2011 respectively the pathway was further widened. In their objections to the execution petition the defendants denied the said allegations and contended that they have not widened the pathway as alleged. They however conceded the fact that the pathway was cleared by the neighbouring residents on O.P(C)No.2140/2013 -:5:- 24.12.2011. In the execution court, an Advocate Commissioner was appointed and he inspected the decree schedule property and submitted Ext.P6 report dated 22.5.2011. The said report discloses that at the time of inspection the pathway had a width ranging from 6.1 feet to 7.6 feet. The Advocate Commissioner also reported that for a length of 56.6 feet the southern boundary wall was demolished. It is evident from the report submitted on the original side and on the execution side that the pathway which initially had a width raging from 2 to 3 feet to 1.35 metres, was found to have a width ranging from 6.1 to 7.6 feet in the year 2011. It is evident from the materials on record that the pathway was widened after the decree attained finality. In such circumstances I am of the considered opinion that no exception can be taken to the finding rendered by the execution court that the defendants have disobeyed the decree of injunction.
I accordingly hold that there is no merit in the instant original petition. The original petition fails and is dismissed.
P.N.RAVINDRAN, Judge.
ahg.
P.N.RAVINDRAN, J.
---------------------------O.P.(C).No.2140 of 2013
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JUDGMENT 16th January, 2014