IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 4TH FEBRUARY 2008 / 15TH MAGHA 1929 WP(C).No. 4116 of 2008(M) ------------------------- AGAINST THE ORDER DATED 17/01/2008 IN EP.62/07 IN OS.767/2003 of PRL.M.C.,ERNAKULAM .................... PETITIONER: ------------ CHERIAN JOSEPH, AGED 67, S/O. CHERIAN THALIYATH HOUSE, CHILAVANNUR DESOM ELAMKULAM VILLAGE. BY ADV. SRI.P.JACOB VARGHESE SRI.VARUGHESE M EASO SRI.VIVEK VARGHESE P.J. SRI.K.B.ARUN SMT.ELIZEBETH MEERA SRI.P.J.VINOD JOSEPH SMT.NITHARA GAYATRI RESPONDENTS: ----------------- 1. ANNAMMA JOSEPH, AGED 50, W/O.JOSEPH CHILLIYATTU, CHILAVANNOOR, ERNAKULAM VILLAGE. 2. JOSEPH FRANKLIN, AGED 65, S/O.JOSEPH TATA PIPELINE ROAD, AYYAPPANKAVU, KOCHI. 3. PETER THOMAS, AGED 65, S/O.LATE SIMON AVITTAMPALA, PEELIYAD, EDAPPALLY NORTH (NEAR AMRUTHA HOSPITAL) 4. CICILY, AGED 48, W/O.CLETUS KANNAMKARIL HOUSE, KUMBALANGI P.O. KUMBALANGI VILLAGE. 5. TRESSIA XAVIER, AGED 77, MANAYATH HOUSE THEVARA P.O. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/02/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 4116 OF 2008 = = = = = = = = = = = = = = = Dated this the 4th day of February, 2008. J U D G M E N T This writ petition is preferred to set aside Ext.P7 order passed by the Principal Munsiff, Ernakulam in E.P.62/07 in O.S.767/03. The execution is laid for implementation of the decree passed by the Court below. As per the decree the plaintiff is declared to have an easement right by way of a lateral support which is being enjoyed by the plaintiff in respect of item No.1 from item No.3 property belonging to defendants 2 to 5. The first defendant is also restrained by a permanent prohibitory injunction not to meddle with the lateral support and he was also directed by a decree of mandatory injunction to restore item No.3 property to its original condition within three months. Unfortunately I do not find any materials to show what was the original condition. An extraction of item No.3 of the decree schedule is necessary for a proper appreciation which reads as follows. W.P.C 4116 OF 2008 -:2:- “Property comprised in Sy.No.592/04 of Ernakulam village having a length of 223 links in east direction and a width of three meters in north south direction lying on the south of the southern peripheral boundary wall of item No.1 partly lying as thodu and trenches.” So the argument advanced by the learned counsel for the writ petitioner is to the effect that when the decree schedule itself describes itemNo.3 as partly lying as thodu and trenches and if a direction is given to fill up the entire thodu and trenches it will detrimentally affect the whole matter and therefore it is not correct to fill up the entire property to give lateral support to the property of the plaintiff. The Court below did not consider these objections in favour of the first judgment debtor and directed the Commissioner to carry out the work. I feel there is some considerable force in the contention raised by the learned counsel for the writ petitioner and the Court has to find out or at least infer what was the previous state of affairs and what is the nature of mandatory injunction that has been contemplated. If the property was lying partly as a thodu one cannot hold that a thodu will render lateral support to the plaintiff's property. W.P.C 4116 OF 2008 -:3:- Therefore in the fitness of things it is not just and proper to find out what is really required to provide lateral support to the property of the plaintiff without affecting natural flow of water and if it cannot be done the Court may have to think about a solution whereby the water flow can be done uninterruptedly by putting pipe etc. for which a direction can be given after hearing both sides. Therefore I direct the Court below to direct the Commissioner not to proceed with the work but consider the matter afresh taking into consideration the objections raised by the first judgment debtor and pass appropriate orders of course bearing in mind that it provide lateral support to the boundary wall of the plaintiff's property without detrimentally affecting the right of the other side as well. Till a final decision is taken let the work not to be proceeded with and the Court can also persuade both parties to arrive at a settlement so that they can live as good neighbours instead of enemies. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-