IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 3RD OCTOBER 2008 / 11TH ASWINA 1930 CRP.No. 687 of 2005 --------------------------------- AGAINST THE ORDER DATED 18/02/2005 IN EA.14/02 IN EP.381/97 IN OS.635/1984 of ADDL.M.C., ALAPPUZHA .................... REVN. PETITIONER/1ST CP & IST JD: P.T.GEORGE, PADAVUPURACKAL, EDATHUA. BY ADV. SRI.P.GOPALAKRISHNAN NAIR RESPONDENTS/PETITIONER & CP 2&3/DECREE HOLDER & JD 2&3: 1. P.T.THOMAS, PADAVUPURACKAL, EDATHUA. 2. KANDAMMA THOMAS, DO. DO. 3. JACOB THOMAS, PADAVUPURACKAL, KUNTHIRICKAL ANAPPARAMBAL, THALAVADY. ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P. Balachandran, J. ----------------------- C.R.P.No.687 of 2005 ----------------------- ORDER This revision petition is filed by the first judgment debtor against the order of the court below on E.A.No.14/02 in E.P.No.381/97 in O.S.No. 635/84. The decree in O.S.No.635/84 was obtained by the decree holder against the judgment debtors declaring the right of easement of the decree holder over the scheduled property, which lies as a thodu and pathway, as described in Exhibit A1 and ordering that the judgment debtors shall not obstruct the decree holder from exercising his easement right and shall not fill up the thodu. The said decree is one obtained ex parte and the decree has become final, as it is not assailed by the judgment debtors. 2. The complaint of the decree holder is that the first judgment debtor has planted trees and effected construction of a shed in the scheduled property and has thereby created obstruction to the CRP 687/05 2 use of the scheduled property as a pathway by him. 3. A commission was deputed by the court below and he filed Exhibit C1 report dated 29.11.2003, wherein, the Commissioner has given the details of the trees found on the alleged pathway. The said trees take in one Mahagani tree aged 20, having a circumference of 60 inches at a height of 5 feet and the other Mahagani tree, aged about 20, having a circumference of 57 inches at a height of 5 feet. The Commissioner has also reported that there is a jack tree aged about 10 years, the trunk of which is having 30 inches circumference, an yielding coconut tree and another non yielding and crippled coconut tree, another timber tree of 10 years old and having a circumference of 25 inches for its timber and further that all the other trees which are seen in that portion are aged about 1-2 years only. The aged yielding and timber trees that were there on the pathway were trees in existence for long, which are not complained of within a CRP 687/05 3 reasonable time, if at all those were planted after the suit in 1984 and hence no action can be taken on the basis thereof. Exhibit C1 report further shows that the thodu is having 5 feet width; that the thodu is there only up to 7 feet towards north and that the rest of the portion towards north is in a levelled condition. It is not known whether the thodu was in the same condition even at the time of the institution of the suit, especially when the decree schedule is the property described in Exhibit A1, which lies as a thodu and pathway and not as pathway lying as thodu. There is also no commission report evidencing as to the manner in which the scheduled property was lying at the time of the institution of the suit and passing of the decree. There is also no evidence of existence of any shed in the scheduled property except that a shed of 19 feet length and 17 feet width constructed using G.I. sheet and angle iron has fallen down in the scheduled property. The place CRP 687/05 4 where it had been constructed is not mentioned in the commission report. The result is that except the new plants or the trees planted within last two years, which have caused obstruction to the use of the pathway, no other act is shown to have been committed by the judgment debtors violating the ex parte decree of injunction, against which decree, however, the first judgment debtor has absolutely no grievance. 4. It is submitted by counsel on both sides that either the first judgment debtor will remove the trees or plants which are aged less than two years or the decree holder himself may remove those trees which are aged two years or less in 2003, as on the date of Exhibit C1 and settle the matter. The first judgment debtor shall remove those trees within one month from today. If not done, the decree holder shall be entitled to have those removed from the scheduled property and in that event, he can seek assistance of court in which CRP 687/05 5 case he will be entitled to the costs also that may be incurred on that count. Civil Revision Petition is disposed of with the above directions. 3rd October, 2008 (K.P.Balachandran, Judge) tkv