IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 WP(C).No. 36202 of 2009(O) --------------------------------------- (EP.NO.55/09 IN OS.302/1997 OF MUNSIFF'S COURT,MUVATTUPUZHA) .................... PETITIONER: ------------------- GOURI, W/O. KUNJU PILLAI, KURIYADATH HOUSE, KALAMBOOR.P.O., PIRAVOM VILLAGE, MUVATTUPUZHA TALUK. BY ADVS. MR.SANTHEEP ANKARATH, SMT.BINDU GEORGE. RESPONDENT: ---------------------- RAMAKRISHNAN, S/O. PAPPUL, MUNDOKUZHIYIL HOUSE, KALAMBOOR.P.O., PIRAVOM VILLAGE, MUVATTUPUZHA TALUK. BY ADV. MR.T.P.M.IBRAHIM KHAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.36202/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE DECREE DTD. 17/05/2005 IN A.S. NO. 172/05 PASSED BY DISTRICT JUDGE'S COURT, ERNAKULAM. EXT.P.2: COPY OF THE E.P. NO. 55/2009 IN O.S. NO. 302/1997 DTD. 07/07/2009 FILED BY THE RESPONDENT HEREIN BEFORE THE MUNSIFF'S COURT, MUVATTUPUZHA. EXT.P.3: COPY OF THE OBJECTION DTD. 22/08/2009 IN E.P. NO. 55/2009 IN O.S. NO. 302/1997 FILED BY THE PETITIONER HEREIN BEFORE THE MUNSIFF'S COURT, MUVATTUPUZHA. EXT.P.4: COPY OF THE COMMISSION REPORT DTD. 25/09/2009 IN E.P. NO. 55/2009 IN O.S. NO. 302/97 BEFORE THE MUNSIFF'S COURT, MUVATTUPUZHA. EXT.P.5: COMMISSION REPORT DTD. 13/11/2009 IN E.P. NO. 55/09 IN O.S. NO. 302/97 BEFORE THE MUNSIFF'S COURT, MUVATTUPUZHA. EXT.P.6: COPY OF THE ORDER DTD. 01/12/2009 IN E.P. NO. 55/09 IN O.S. NO. 302/97 PASSED BY MUNSIFF'S COURT, MUVATTUPUZHA. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. P.BHAVADASAN, J. ---------------------------------------- WP(C) No.36202 of 2009-O ---------------------------------------- Dated 9th March 2010 Judgment The petitioner has approached this Court, aggrieved by Ext.P6 order passed by the Execution Court. 2. The facts fall within a narrow compass. The petitioner was the plaintiff in OS No.302/97, which was a suit for declaration of easement right and injunction. The suit was dismissed and an appeal was filed by the plaintiff. At that stage, the parties entered into a compromise, which formed part of the decree of the Appellate Court. Copy of the compromise decree is produced as Ext.P1. 3. Ext.P1 contained certain stipulations and since the petitioner did not comply with those stipulations, the defendant filed Ext.P2 execution petition. The petitioner entered appearance and filed her objections. The Court below suo motu appointed a Commission. The Commissioner inspected the properties and filed Ext.P4 report. According to the petitioner, the Court below, without adverting to the terms of the decree and the Commissioner's report, has now passed the impugned order. WPC 36202/09 2 4. The learned counsel for the petitioner pointed out that the order now passed by the Court below is unsustainable in law. The decree provided that the petitioner should provide proper drainage as contemplated under Clauses 3 and 8 of the compromise. According to the petitioner, she has done so and the Commissioner has also reported to that effect. 5. The learned counsel for the respondent, on the other hand, pointed out that the decree provided that the petitioner herein should provide proper drainage and that has not been done. According to him, the Court below was justified in directing the petitioner to that effect. It is also contended that the observation made by the Court below that if the roots projecting to the decree holder's property are causing obstruction to him, he can remove the same, is also a term in the compromise decree. A copy of the compromise decree is produced as Ext.P1. In Ext.P1, there is a provision that the petitioner should provide proper drainage, which he has not done, it is alleged. 3. There is no specification regarding the length, width or the type of drainage to be provided by the petitioner. It is also seen that the drainage which was provided by the petitioner has been in existence for a long time. There was no complaint for the respondent regarding the drainage till the present EP was filed. The WPC 36202/09 3 Commissioner's reports on both occasions have noticed the existence of the drainage and there is nothing to show in the report that the drainage provided is insufficient in any manner. Equally unsustainable is the observation that the respondent can remove any roots of the trees, from the property, which are causing obstruction to the decree holder. Admittedly, that does not form part of the compromise decree. But, if the trees standing in the property of the petitioner are causing any inconvenience to the respondent, he can take such steps as are available to him in law. In fact, such a relief could not have been granted by the Court below in the present proceedings since that did not form part of the decree. The result is that the order of the Court below is unsustainable both in law and on facts. Accordingly, this Writ Petition is allowed. Ext.P6 order is set aside and EP No.55 of 2009 stands dismissed. P.BHAVADASAN, JUDGE sta WPC 36202/09 4