IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 11TH MARCH 2011 / 20TH PHALGUNA 1932 CRP.No. 880 of 2003(F) ---------------------- AGAINST THE ORDER DATED 15/02/2003 IN EP. 499 /1997 IN OS.267/1988 of PRL.MUNSIFF COURT, CHERTHALA .................... REVN. PETITIONERS/PLAINTIFFS & DECREE HOLDERS: --------------------------------------------------- 1. RAMANI, D/O.PADMAKSHY KUNJAMMA, CHIRAYIL, EZHUPUNNA, ALAPPUZHA DISTRICT. 2. CHANDRIKA DEVI, DO. DO. 3. HARIKUMAR, S/O.SRIDHARAN NAIR, DO. DO. 4. R.RADHAKRISHNAN, S/O.PADMAKSHY KUNJAMMA, DO. DO. (REPREENTED BY POWER OF ATTOEY, CHANDRIKA DEVI, PETITIONER NO.2) BY ADV. SRI.K.RAMACHANDRAN(SR.) SRI.P.RAMACHANDRAN RESPONDENTS/DEFENDANTS AND JDS. -------------------------------------- 1. SARADAMMA, CHIRAYIL VEETTIL, ERAMALLUR, EZHUPUNNA, P.O.EZHUPUNNA (ALAPUZHA DISTRICT). 2. HARIKUMAR, S/O.SARADAMMA, DO. DO. 3. JAYALAKSHMI, D/O. SARADAMMA, DO. DO. 4. BIJU, S/O.SARADAMMA, DO. DO. 5. BINU, S/O.SARADAMMA, DO. DO. 6. SARASWATHI AMMA, CHERIMANGALATHU VEETTIL, DO. 7. VIJAYAKUMAR, DO. DO. 8. RAJESWARI, DO. DO. 9. JAYAPRASAD, DO. DO. ADV. SRI.M.P.RAMACHANDRAN NAIR, SENIOR ADVOCATE FOR R1TO5 SMT.ASHA MOHAN FOR R1TO5 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: N.K.BALAKRISHNAN, J. ---------------------------------------------------- C.R.P. No.880 of 2003 ---------------------------------------------------- Dated this the 11th day of March, 2011 Order The revision petitioners are the legal representatives of one Padmakshi Kunjamma who filed E.P.No.499 of 1997 before the court below. Padmakshi Kunjamma died pending the E.P. The petitioners are her legal representatives. A decree for permanent injunction was obtained by the revision petitioners' predecessor- in-interest mentioned above against the respondents restraining them from trespassing into the plaint F schedule property through D-E schedule properties. The application was filed under Order 21 Rule 32 C.P.C. complaining of violation of injunction decree passed against them. It was contended that the respondents 1 to 3 constructed a house building in such a manner that a portion of the same encroaches into the plain F schedule pathway. It was done in willful violation of the injunction decree passed against them. 2. In the objection filed by the respondents, the allegation made by the petitioners was denied. It was alleged that no structure was constructed encroaching into the plaint F schedule C.R.P.880/03 2 pathway. Before the court below, a commission was taken out to report about the violation of the injunction decree. The decree- holder was examined as P.W.1 and the Commissioner was examined as P.W.2. 3. In para 7 of the impugned order it is stated, “the building was extended causing obstruction to F schedule pathway”. It was so reported by P.W.2 who was the Commissioner appointed at the trial stage also. Therefore, there was no difficulty for the Commissioner to find the extension/encroachment into the plaint F schedule pathway, learned counsel for the petitioners submits. It was further mentioned in para 8 of the impugned order, referring to the Commissioner's report that a portion of the house extends into the pathway and that “a new fence was seen put up recently”. The contention raised by the decree-holder was that the width of the pathway was reduced by the illegal construction made by the respondents. Therefore, in view of the specific finding so entered, according to the learned counsel, the court below was not justified in dismissing the petition. 4. The learned counsel for the petitioners pointed out that C.R.P.880/03 3 the court below has not marked the Commissioner's report and the sketch prepared by the Commissioner showing the encroachment alleged to have been made by the respondents. If only the plan produced by the Commissioner and which was relied upon by the trial court in granting decree was produced and plan of the decree schedule property showing the lie and position of the pathway and the encroachment complained of by the revision petitioners is marked, it would be possible for the court to find the exact extent of encroachment made by the decree-holder subsequent to the decree so as to take action against them under Order 21 Rule 32. It is also seen from the impugned order that the request of the respondents for examination of the Commissioner was rejected by the court below. In view of the fact that it is a case where action may have to be taken against the respondents in case the violation is found to be true, it would be just and proper that the court below allows the Advocate Commissioner to be cross examined by the respondents. As stated earlier, the report and sketch produced by the Commissioner in the suit and E.P.No.499/97 are also necessary to be marked to resolve the controversy. So, I C.R.P.880/03 4 find that the impugned order has to be set aside and the matter is to be remanded to the execution court. 5. In the result, the revision petition is allowed. The impugned order in E.P.No.499/1997 in O.S.No.267/1988 is set aside and the matter is remanded to the Principal Munsiff Court, Cherthala. The parties are directed to appear before the court below on 4.4.2011. The court below will afford opportunity to both sides to adduce further evidence in the matter and will dispose of the matter at the earliest. N.K.BALAKRISHNAN, JUDGE. srd C.R.P.880/03 5