Suhara vs Robert S/O. Vadakoot Loouis on 3 April, 2009

[Cites 0, Cited by 2]

Kerala High Court

Suhara vs Robert S/O. Vadakoot Loouis on 3 April, 2009

Bench: K.P.Balachandran

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA.No. 346 of 2005()


1. SUHARA, AGED 52 YEARS,
                      ...  Petitioner
2. MOIDHEEN AGED 32 YEARS,

                        Vs



1. ROBERT S/O. VADAKOOT LOOUIS,
                       ...       Respondent

2. CICILY W/O. MECHERY VEETTIL AUTO,

3. CHAKKUNNI S/O VADAKOOT LOOVIS,

4. THANCHAPPAN S/O. VADAKOOT LOOVIS,

                For Petitioner  :SRI.RAJIT

                For Respondent  :SRI.K.RAMACHANDRAN

The Hon'ble MR. Justice K.P.BALACHANDRAN

 Dated :03/04/2009

 O R D E R
               K.P.BALACHANDRAN, J.
           ------------------------------------------------
                   R. S. A. No.346 of 2005
           ------------------------------------------------
            Dated this the 3rd day of April, 2009

                         JUDGMENT

Counsel on both sides submit that the grievance of the appellants is that the trial court gave a decree of prohibitory injunction in relation to a pathway specifically mentioning it with reference to Ext.C4 plan which is directed to be incorporated as part of the decree without however, granting decree of mandatory injunction; that the decree of mandatory injunction was sought for in relation to an obstruction caused in the pathway and being aggrieved by the refusal to grant mandatory injunction, plaintiff preferred appeal before the first appellate court during pendency of which the plaintiff died and her LRs were impleaded as additional appellants 2 to 5; that the appellate court granted decree of mandatory injunction for removal of the R. S. A. No.346 of 2005 -2- basement put up encroaching into the 'B' schedule pathway without specifying it as being in relation to the pathway portion made mention of by the trial court in the decreetal portion specifying it with reference to Ext.C4 plan and that therefore, it is on account of lack of clarity as regards the 'B' schedule property from wherein the new basement is directed to be removed by the first appellate court that the RSA is filed.

2. Counsel for the appellants submits that the RSA be disposed of clarifying that the decree of mandatory injunction granted by the first appellate court in relation to 'B' schedule property shall be in relation to only the pathway portion as specifically made mention of by the trial court, with reference to Ext.C4 plan which is part of the decree. The counsel for the respondents also has no objection to such a clarification being made. R. S. A. No.346 of 2005 -3-

3. In the result, I dispose of this RSA clarifying that the decree of mandatory injunction granted by the first appellate court in A.S.259/01 though mentioned as in relation to removal of the new basement portion encroaching into the 'B' schedule pathway, the mandatory portion of the decree shall be specifically in relation to the pathway portion in relation to which decree of prohibitory injunction has been granted by the trial court vide judgment in O.S.793/97 dt.22/03/01 specifying the pathway with reference to Ext.C4 plan which has been made part of the decree of the trial court. Parties to suffer their own costs.

K.P.BALACHANDRAN, JUDGE kns/-

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