IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 CRP.No. 2462 of 2002() ---------------------- AGAINST THE ORDER DATED 30/09/2002 IN EP. 113 /1999 IN OS.453/1995 of M.C.,PATHANAMTHITTA .................... REVN. PETITIONER: JUDGMENT DEBTORS 1 AND 2 ------------------------------------------ 1. RAJAVARMA RAJA, KACHUKAIKAL VEETTIL, MALLAPUZHASSERY MURI AND VILLAGE. 2. BHAGIRITHI THAMPURATTY, OF DO. DO. BY ADV. SRI.P.R.VENKETESH RESPONDENTS: DECREE HOLDER AND CR.PETITIONER NO.3 ------------------------------------------------- 1. ANANDAN SON OF RAMAN, MELITHIL VEEDU, KOZHENCHERRY MURI AND VILLAGE. 2. BALAGOPALAN OF DO. DO. P.B.NO.9831, AHAMADHT 61008 KUWAIT. BY ADVS. SRI.K.GEORGE FOR R1 SRI.M.A.ANZAR FOR R1 SRI.JACOB P.ALEX FOR R2 SRI.JOSEPH P.ALEX FOR R2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN C.M.P. NO.6171 OF 2002 IN C.R.P. NO.2462 OF 2002. DISMISSED 5.8.2008 Sd/-(HARUN-UL-RASHID, JUDGE) HARUN-UL-RASHID, J. -------------------------------------------- C.R.P. NO. 2462 OF 2002 -------------------------------------------- Dated this the 5th day of August, 2008 O R D E R Judgment debtors 1 and 2 in E.P. No.113 of 1999 in O.S. No.453 of 1995 on the file of the Munsiff's Court, Pathanamthitta are the revision petitioners. The first respondent is the decree holder and the second respondent is the son of the first respondent/decree holder and the third defendant in the suit. The order dated 30.9.2002 passed by the court below in the above execution petition is under challenge in this revision. The parties herein are referred to as decree holder and judgment debtors as in the execution petition. 2. The suit was filed for permanent prohibitory injunction restraining the defendants from removing or destroying the survey stones planted on the northern and eastern side of the plaint schedule property and from committing any acts of waste or from annexing the northern or eastern portion of the plaint schedule property to their property. The C.R.P. NO.2462/2002 2 plaintiff obtained a decree in his favour. Subsequently, the plaintiff/decree holder filed E.P. No.113 of 1999 alleging that the judgment debtors violated the injunction order deliberately on 5.10.1999 and wrongfully trespassed into the plaint schedule property, removed the survey stones planted on the north and east of the plaint schedule property and destroyed the same. The plaintiff further alleged that the defendants encroached upon certain portion of the plaint schedule property on the northern and eastern side and that by trespassing into the said portion, they have destroyed the cultivation in that portion. The plaintiff, therefore, claimed Rs.7,500/- for restoration of the encroached portion to its original position. 3. The judgment debtors resisted the petition and filed objection denying the averments in the execution petition. The court below examined the decree holder as PW.1 and the Commissioner as PW.2. Exts.A1 to A5 were marked on the side of the decree holder. CPWs.1 and 2 were examined on the side of the judgment debtors and Exts.B1 to B3 were marked on their side. Exts.C1, C1 (a) and C1(b) are respectively the report, mahazar and plan submitted by the Commissioner. C.R.P. NO.2462/2002 3 4. After hearing both sides, the court below noted that the judgment debtors admitted that on 5.10.1999, at about 10 a.m. they had put up a boundary on the northern and eastern side of the plaint schedule property with the assistance of the Taluk Surveyor. It is also admitted by the judgment debtors that the measurement was taken with the help of a rough sketch prepared by the Commissioner in O.S. No.158 of 1995 . The first judgment debtor did not offer any satisfactory explanation as to why he did not make use of a resurvey plan to fix the boundary. The court below further found that in Ext.C1, the Commissioner reported that he measured the property as per the resurvey records and marked the trespassed portion on the eastern side as " d b c" and on the northern side as A a b D. The court below also noted that the Commissioner had calculated Rs.10,000/- as expenses for removing the boundary put up by the defendants and for putting up a permanent boundary. The trial court on evidence found that while putting up the boundary on the eastern and northern side of the plaint schedule property, the judgment debtors have destroyed all cultivation in that portion such as coconut saplings, arecanut saplings and plantain etc. After taking into consideration the evidence let in by the parties and other circumstances, the court below held that the defendants wilfully violated the decree of permanent prohibitory injunction by putting C.R.P. NO.2462/2002 4 up the boundary on 5.10.1999 and that the decree holders have sustained a loss of Rs.7,500/-. Allowing the execution petition, the court below held that the decree holder is entitled to realise a sum of Rs.7,500/- from the judgment debtors and their assets. The judgment debtors were ordered to be detained in civil prison for a period of one month for violation of the order of injunction. The said order is under challenge before this Court. 5. The fact that the judgment debtors put up the boundary on the northern and eastern side of the plaint schedule property behind the back of the plaintiff is admitted and the same is noted in the impugned order. It has also come out in evidence that by putting up the boundary, a portion of the property belonging to the plaintiff was encroached upon and enclosed within the boundary of the property belonging to the judgment debtors. The Commissioner deputed at the instance of the plaintiff measured the property with the help of survey plan and records and noted the exact area encroached upon by the judgment debtors. The Commissioner also reported that an amount of Rs.10,000/- will be required for removing the boundary put up by the judgment debtors and for putting up a permanent boundary. Going by the evidence on record, this Court is of the view that the reasons stated for allowing the execution petition is proper and valid. C.R.P. NO.2462/2002 5 Hence, I find no reason to interfere with the impugned order. 6. Learned counsel appearing for the revision petitioners/judgment debtors requested this Court to set aside the impugned order in so far as it directs detention of the judgment debtors in civil prison for a period of one month and to confirm only that portion of the impugned order which deals with payment of costs to the decree holder. 7. In Ext.C1 commission report dated 1.11.2001, the cost of removing the boundary put up by the judgment debtors and to put up a permanent boundary is estimated as Rs.10,000/-. Almost seven years have passed now and the cost of materials and labour charges have gone up considerably. In the facts and circumstances of the case, I am inclined to take a lenient view. The finding regarding violation of the injunction order is confirmed. The impugned order in so far as it directs detention of the judgment debtors in civil prison for a period of one month is set aside and the decree holder is allowed to realise an amount of Rs.15,000/- from the judgment debtors or their assets within a period of four weeks from today. If the amount is not paid or deposited in the court below within the time stipulated , the order passed by the court below directing detention of C.R.P. NO.2462/2002 6 the judgment debtors in civil prison for a period of one month shall stand restored. The Civil Revision Petition is disposed of as above. (HARUN-UL-RASHID, JUDGE) sp/ C.R.P. NO.2462/2002 7 HAURN-UL-RASHID, J. C.R.P. NO. 2462/2002 O R D E R 5th August, 2008