Kerala High Court
B. Srikrishna Bhat vs K.Narayana on 12 February, 2020
Author: Sathish Ninan
Bench: Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
WEDNESDAY, THE 12TH DAY OF FEBRUARY 2020 / 23RD MAGHA, 1941
Ex.SA.No.1 OF 2017
AGAINST THE DECREE AND JUDGMENT DATED 26.09.2014 IN AS NO.40/2009
OF DISTRICT COURT, KASARAGOD ARISING FROM THE JUDGMENT DATED
11.03.2009 IN EA NO.297/2006 IN EP NO.136/2006 IN OS NO.370/1998
OF THE PRINCIPAL MUNSIFF'S COURT, KASARAGOD
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APPELLANTS/APPELLANTS/CLAIM PETITIONERS:
1 B. SRIKRISHNA BHAT,
AGED 66 YEARS,S/O. B.SREENIVASA BHAT,R/AT EDAPPADY,
KUMBADAJE VILLAGE,KASARAGOD TALUK AND DISTRICT.
2 B. RAJENDRA PRASAD,
AGED 61 YEARS, S/O. B.SREENIVASA BHAT, R/AT EDAPPADY,
KUMBADAJE VILLAGE, KASARAGOD TALUK AND DISTRICT.
3 B. REVEESH,
AGED 55 YEARS S/O. B.SREENIVASA BHAT, R/AT EDAPPADY,
KUMBADAJE VILLAGE, KASARAGOD TALUK AND DISTRICT.
4 PREMALATHA,
AGED 63 YEARS, D/O. B.SREENIVASA BHAT, R/AT EDAPPADY,
KUMBADAJE VILLAGE, KASARAGOD TALUK AND DISTRICT.
5 LALITHA,
AGED 58 YEARS, D/O.B.SREENIVASA BHAT, R/AT EDAPPADY,
KUMBADAJE VILLAGE, KASARAGOD TALUK AND DISTRICT
6 LATHAKUMARI,
AGED 45 YEARS, W/O RAJENDRA PRASAD, R/AT EDAPPADY,
KUMBADAJE VILLAGE, KASARAGOD TALUK AND DISTRICT.
(NO.6 IS THE POWER OF ATTORNEY HOLDER OF NO.1 TO 5)
BY ADV. SMT.C.B.SUMA DEVI
RESPONDENTS/RESPONDENTS/PLAINTIFF/DEFENDANT:
1 K.NARAYANA,
AGED 50 YEARS, S/O. KOTTA BELCHAPPADA,R/AT MOVVAR,
KUMBADAJE VILLAGE,KASARAGOD TALUK AND DISTRICT-
678105.
Ex.SA.No.1 OF 2017 -2-
2 N. VENKATESHAYYA,
AGED 66YEARS, S/O. SUBRAYYA, R/AT MOVVAR, KUMBADAJE
VILLAGE, KASARAGOD TALUK AND DISTRICT-678105.
R1 BY ADV. SRI.KODOTH SREEDHARAN
R2 BY ADV. SRI.JAWAHAR JOSE
THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON
12.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
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Ex.S.A. No.1 of 2017
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Dated this the 12th day of February, 2020
JUDGMENT
The obstruction petition filed under Order XXI Rule 97 of the Code of Civil Procedure was dismissed concurrently by the courts below, against which the obstructor is in second appeal.
2. The second respondent herein obtained a decree against the first respondent herein for mandatory injunction for removal of a compound wall. The decree passed by the trial court was confirmed in appeal. The appellate court observed that the second respondent herein shall not cause any obstruction to the user of a pathway which lies on the western side of the compound wall, by the first respondent. The decree was put in execution. At this stage the obstruction petition was filed by the third party claiming that the compound wall is within the property of the obstructors. It was also alleged that the decree is collusive.
3. Evidence was taken on the petition. A Ex.S.A. No.1 of 2017 :- 2 :-
Commissioner was deputed, who filed Ext.C1 report and Ext.C2 plan identifying the property of the appellants-obstructors with reference to their documents of title. The Commissioner found that the compound wall in question as well as the pathway are beyond their property. Neither of the parties raised any objections to the Commissioner's Report and Plan. The courts below did not find any reason to discard the plan, and relying on the same, held against the appellants and dismissed the obstruction petition.
4. The title of the appellants over the disputed portion having been concurrently found against on materials, there is no merit in the second appeal. No question of law much less any substantial question of law arises for consideration in this second appeal. The second appeal fails and is accordingly dismissed.
Sd/-
SATHISH NINAN JUDGE kns/-
//True Copy// P.S. to Judge