IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 OP(C).No. 2565 of 2011(O) ------------------------- AGAINST THE ORDER DATED 16/06/2011 IN EP.45/2006 IN OS.303/1999 of MUNSIFF COURT, DEVIKULAM. .................... PETITIONER (S): JUDGMENT DEBTOR: ---------------------------------------------------------- RADHAKRISHNAN, S/O.BHASKARAN PILLAI, PULIMOOTTIL HOUSE, MARAYOOR KARA, MARAYOOR VILLAGE. BY ADVS. SRI.SUNIL NAIR PALAKKAT, SRI.K.N.ABHILASH, SMT.R.LEELA, SMT.N.K.SHEEBA. RESPONDENT(S): DECREE HOLDER: ------------------------------------------------------ K.RAMESH, S/O.KUNJAPILLAI, RAMYA BHAVAN, MARAYOOR KARA,MARAYOOR VILLAGE, DEVIKULAM TALUK, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SRI.K.K.SURENDRAN, RAMYA BHAVAN, MARAYOOR KARA, MARAYOOR VILLAGE, DEVIKULAM, PIN-685 613. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.2565/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE DECREE DTD. 20/11/2002 IN O.S.303/1999 OF THE MUNSIFF COURT, DEVIKULAM. P2: COPY OF THE JUDGMENT DTD. 28/08/2009 IN O.S.NO.109/2007 OF THE MUNSIFF COURT, DEVIKULAM. P3: COPY OF THE OBJECTION DTD. 25/06/2007 IN E.P.NO.45/2006 IN O.S.NO.303/1999 OF THE MUNSIFF COURT, DEVIKULAM. P4: COPY OF THE COMMISSION REPORT DTD. NIL E.A.NO.146/2006 IN E.O.P.NO.45/2006 IN O.S.NO.303/1999 OF THE MUNSIFF COURT, DEVIKULAM. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2565 of 2011 --------------------------------------- Dated this 05th day of August, 2011 JUDGMENT Petitioner is the judgment debtor in E.P.No.45 of 2006 in O.S.No.303 of 1999 of the Court of learned Munsiff, Devikulam. Learned Munsiff granted a decree for prohibitory injunction restraining petitioner from interfering with the enjoyment of plaint B schedule way which according to respondent is necessary for access to the plaint A schedule belonging to him. He raised a plea of easement. There was a decree on settlement whereby the right of respondent to use B schedule way was upheld. Respondent filed execution petition contending that petitioner caused obstruction in the B schedule way. That ofcourse was denied by petitioner. An enquiry followed. Advocate Commissioner appointed by the executing court inspected property and submitted report and sketch. Oral evidence also was recorded. Based on that, executing court found that there was obstruction caused by the petitioner to B schedule way and by Ext.P5, order directed its removal within one month failing which respondent was permitted to get the obstruction removed through the process of Court. O.P(C).No.2565 of 2011 -: 2 :- 2. Now, two contentions are raised, firstly, there is no such obstruction caused by the petitioner and, secondly; the way that the Advocate Commissioner has reported is through the middle of property of petitioner and not along the southern boundary as the decree provided. Learned counsel has submitted that petitioner is prepared to file an affidavit in that line in this Court. There is also a further request that removal of obstruction if any may be done in the presence of an Advocate Commissioner who is to identify the B schedule way. 3. Ext.P1 is the copy of decree where the B schedule is described as a way along the southern boundary of property of petitioner, starting from the Marayoor-Kovilkadavu panchayath road and reaching plaint A schedule. Ext.P4 is a copy of report and plan obtained through the Advocate Commissioner in the execution proceeding. In the plan, B schedule way is shown as along southern boundary of property of petitioner. For, on the further south of B schedule way is the property of one Bharati and property on the north of B schedule is shown as that of the petitioner. It is therefore clear that the B schedule way identified by the Advocate Commissioner in execution proceeding is along O.P(C).No.2565 of 2011 -: 3 :- the southern boundary of property of petitioner. Learned counsel pointed out that as per Ext.P4, report obstruction is caused 7.5 meters towards property of petitioner. I am afraid, that argument cannot be accepted. What the Advocate Commissioner has reported is only that it is at the portion (in the plaint B schedule) at a distance of 7.5 meters from the panchayath road going along the front side that the obstruction was seen. In other words, obstruction was seen 7.5 meters inside plaint B schedule from the panchayath road. There was also no contention raised in the executing court that B schedule identified by the Commissioner is through the middle of property of petitioner. 4. So far as alleged causing of obstruction is concerned, Exts.C1 and C1(a) and the oral evidence of Advocate Commissioner as PW2 revealed that there was obstruction to the B schedule. In the light of that finding, it is too late for petitioner to say that he shall file an affidavit that there was no such obstruction. It is based on the materials on record that executing court has found that there is obstruction. And, that obstruction is now ordered to be removed. Executing court has also stated that if the obstruction is not removed by petitioner within the time O.P(C).No.2565 of 2011 -: 4 :- specified (and extended as the learned counsel submits) it is open to the respondent to get the obstruction removed through the process of Court. I do not find reason to interfere. This original petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-