IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 OP(C).No. 2378 of 2011(O) ------------------------- OS.193/1974 of PRINCIPAL MUNSIFF'S COURT,THRISSUR .................... PETITIONER: ---------------------- P.D.POULOSE, S/O.DEVASSY, PELLISSERY HOUSE, P.O.PARALAM, THRISSUR-680 575. BY ADVS. SRI.P.B.KRISHNAN, SRI.P.B.SUBRAMANYAN. RESPONDENT(S): --------------------------- ANTO, S/O.JACOB, MAMBILLY HOUSE, KORAPATHU LANE, NEHRU NAGAR, KURIYACHIRA P.O., THRISSUR-680 006. BY ADV. SRI.M.KRISHNAKUMAR THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.2378/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF JUDGMENT OF THIS HON'BLE COURT IN S.A.NO.671 AND 734 OF 1981 DTD. 17/03/1987. P2: COPY OF THE ORDER OF THIS HON'BLE COURT IN CRP.NO.429 OF 2000H DTD. 20/03/2000. P3: COPY OF EXT.C2 PLAN DTD. NIL. P4: COPY OF THE ORDER IN E.P.NO.385 OF 1989 IN O.S.NO.193 OF 1974, II ADDL.MUNSIFF'S COURT, THRISSUR DTD. 15/02/2003. P5: COPY OF THE ORDER OF THIS HON'BLE COURT IN CRP.NO.1064 OF 2003 DTD. 4/09/2003. P6: COPY OF THE ORDER OF THIS HON'BLE COURT IN R.P.NO.791 OF 2003 IN CRP.NO.1064 OF 2003 DTD. 24/03/2006. P7: COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT OF INDIA IN CIVIL APPEAL NO.1747 OF 2007 DTD. 11/02/2011. P8: COPY OF THE ORDER OF THE PRINCIPAL MUNSIFF'S IN E.A.NO.1345 OF 2006 IN E.A.NO.1030 OF 2003 IN E.P.NO.385 OF 1989 IN O.S.NO.193 OF 1974 DTD. 7/07/2011. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2378 of 2011 ==================================== Dated this the 04th day of August, 2011 J U D G M E N T Respondent appears through counsel. 2. Two neighbours started fighting over adjacent plots over which they claimed title and possession in the year, 1974 with the respondent filing O.S. No.193 of 1974 and petitioner filing O.S. No.260 of 1974, both in the court of learned Munsiff, Thrissur. While respondent claimed title and possession of 96 cents in Sy.No.374/3 of Venginisserry Village, petitioner claimed title and possession of 55 cents in Sy. No.374/3 of the Same Village. The suits were jointly tried and disposed of. The matter came to this Court in S.A. Nos.671 and 734 of 1981. This Court while deciding the Second Appeals found that petitioner is entitled to get a decree for prohibitory injunction concerning 55 cents while claim of the respondent, (O.S. No.193 of 1974) was limited to 90 cents. Respondent filed E.P. No.385 of 1989 alleging that petitioner violated the decree in O.S. No.193 of 1974 by trespassing into an area of about 28 cents out of the said 90 cents in respect of which he was granted a decree. Execution Petition was dismissed as O.P(C) 2378 of 2011 -: 2 :- per order dated 16.10.1999. Respondent challenged that dismissal in C.R.P. No.429 of 2000. This Court allowed the revision and remitted the execution petition with a direction to identify the 55 cents belonging to the petitioner. Later, by Ext.P4, order the prayer in the execution petition was allowed and petitioner was asked to vacate plots 'C&D' in Ext.P3, plan produced by the Advocate Commissioner after a survey of the property with the assistance of the Deputy Superintendent of Survey. Petitioner challenged that order in C.R.P. No.1064 of 2003 in this Court. That revision was dismissed as per Ext.P5, order dated 04.09.2003. That was followed by petitioner seeking a review as per R.P. No.791 of 2003 which resulted in a dismissal as per Ext.P6, order dated 26.04.2006. The said orders were challenged by petitioner in the Supreme Court. Though the Supreme Court granted special leave to appeal, that appeal was dismissed as per Ext.P7, order dated 11.02.2011. Thus order of this Court in C.R.P. No.1064 of 2003 stood confirmed. Following that, the executing court took steps to deliver the 28 cents of land which petitioner is found to have trespassed into out of the 90 cents found entitled to by the respondent. Executing court by Ext.P8, order directed the District Superintendent of Survey to identify plots 'C&D' in O.P(C) 2378 of 2011 -: 3 :- Ext.P3, plan (Ext.C2, plan marked in the executing court). That order is under challenge. 3. Learned counsel for petitioner contends that Ext.P3, plan would show that property as per the document of petitioner when measured from the northern boundary of Sy. No.374/3 (common to both parties), 55 cents, is made up of plots “A, B & C” in Ext.P3, plan. But the property over which respondent claims title as per document No.1959/1973 (90 cents as found by this Court in Ext.P1, judgment) is shown to be made up of plots 'C, D&E' and thus Ext.P3, plan show that when properties are measured with respect to respective documents of title, plot 'C' is common to both parties. It is pointed out by learned counsel from the report of the Advocate Commissioner (paragraph 10 of the report marked in the trial court) that plots 'A, B, C, D & E' were measured from south to north and that the Superintendent of Survey stated that the northern boundary of property of petitioner is the northern boundary of Sy.No.374/3. Hence if measured from the northern boundary towards south, the 55 cents which admittedly belongs to the petitioner is made up of plots 'A, B and C'. It is argued by learned counsel that this Court while disposing of C.R.P. No.1064 of 2003 by Ext.P5, order stated O.P(C) 2378 of 2011 -: 4 :- in paragraph 4 that, “the Commissioner was examined and in the impugned order it is stated that the properties are comprised in Sy. No.374/3 and that the measurements were made from the undisputed northern boundary as required by this Court in the order in C.R.P. No.429 of 2000”. According to the learned counsel the said observation runs counter to the report of the Advocate Commissioner as to the undisputed common boundary between properties belonging to and in the possession of the contestants. According to the learned counsel, consequence of measuring the property in the way directed in Ext.P5, order is that petitioner will lose 20 cents out of 55 cents in respect of which he was granted a decree in O.S. No.260 of 1974. According to learned counsel in the circumstances Ext.P8, order of the executing court cannot stand and measurement must start from the admitted common boundary of the properties. 4. Learned counsel for respondent has submitted that O.P(C) 2378 of 2011 -: 5 :- the entire dispute between the parties has been settled by the decision of this Court in C.R.P No.429 of 2000 by Ext.P2, order, not to say about the order passed by this Court in C.R.P. No.1064 of 2003 by Ext.P5, order. It is pointed out by learned counsel that the mode of measurement of the property has been indicated in the said orders and the attempt of petitioner to seek a review of Ext.P5, order in C.R.P. No.1064 of 2003 also failed for the reason that execution proceedings must be taken in accordance with the manner in which the suits have been disposed of by this Court. 5. It is not disputed that there was no challenge to Ext.P1, judgment or to the order in C.R.P. No.429 of 2000. That judgment and order have become final and conclusive between the parties. The challenge to Ext.P5, order in C.R.P. No.1064 of 2003 and Ext.P6, order on the review petition also failed by the Supreme Court dismissing the civil appeal as per Ext.P7, order. In that circumstance petitioner cannot request the executing court to go behind the decree in the Second Appeals which has become final and conclusive. Measurement has to be made in accordance with the plans accepted and the direction made in Ext.P1, judgment and Exts.P2 and P5, orders in the civil revisions. 6. Having considered the contentions raised by parties O.P(C) 2378 of 2011 -: 6 :- and in the light of the judgment and orders referred above I am inclined to accept the contention of learned counsel for respondent that the executing court could not go behind the decree passed by this Court in the Second Appeals or the orders passed in the civil revisions. Viewed in that line, contention of petitioner that measurement should have been in a manner different from what is concluded by orders and judgment of this Court cannot be accepted. Petitioner is bound to vacate plots 'C&D' in Ext.P3, plan (Ext.C2, plan in the execution proceeding). I do not find any infirmity in the order passed by the executing court. As such the challenge made by petitioner has to fail. 7. Learned counsel for petitioner submitted that petitioner intends to move the Supreme Court in the matter. It is therefore prayed that proceeding for delivery of the disputed property (plots C and D in Ext.P3, plan) may be kept in abeyance for some time. Learned counsel for respondent submitted that the litigation started in the year 1974 and it must have an end. 8. Having considered the submission made by counsel for petitioner I am inclined to direct that delivery of property pursuant to the order that the executing court may pass in the matter will stand adjourned to a day after one month from this O.P(C) 2378 of 2011 -: 7 :- day. Original Petition is dismissed. The executing court is directed to adjourn delivery of the disputed property to a day after one month from this day. However, this order will not stand in the way of the executing court proceeding pursuant to Ext.P8, order. THOMAS P. JOSEPH, JUDGE. vsv