IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 18TH MARCH 2010 / 27TH PHALGUNA 1931 CRP.No. 495 of 2009(E) -------------------------------- [E.P. NO. 459/2008 IN OS.NO.969/1997 OF PRL.MUNSIFF'S COURT, ERNAKULAM] .................... REVISION PETITIONER/JUDGEMENT DEBTORS: --------------------------------------------------------------------- FRANCIS K.I., S/O.K.J.IYPE(LATE), AGED 59 YEARS, BUILDING NO.42/954, TRIKKANARVATTAM DESOM, ERNAKULAM VILLAGE, COCHIN. BY ADV. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA RESPONDENT/DECREE HOLDERS: --------------------------------------------------- 1. JOSEPH JORDHNAS K.I., S/O.K.J.IYPE(LATE), AGED 56 YEARS, BUILDING NO.42/953, TRIKKANARVATTAM DESOM, ERNAKULAM VILLAGE,COCHIN,REP. BY POWER OF ATTORNEY HOLDER, ALLEN JOSEPH, 21 YEARS,S/O.JOSEPH JORDHNAS, RESIDING AT BUILDING NO.42/954, THRIKKANARVATTOM DESOM, ERNAKULAM VILLAGE,COCHIN. 2. SHEELA JOSEPH, AGED 50 YEARS, W/O.JOSEPH JORDHNAS K.I., TRIKKANARVATTOM DESOM, ERNAKULAM VILLAGE, COCHIN. R1 & R2 BY ADV. MR.PEEYUS A.KOTTAM. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/03/2010, THE COURT ON 18/03/2010 PASSED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------------------- CRP No.495 of 2009-E ------------------------------------- Dated 18th March 2010 Order Aggrieved by the order dated 18.08.2009 in EP No.459/08 in OS No.969/97 dated 18.08.2009 of the Principal Munsiff's Court, Ernakulam, the respondent before the Court below has come up in revision before this Court. 2. The petitioner suffered a decree in OS No.969/97 of the Principal Munsiff's Court, Ernakulam. The decree holders took out execution of the decree, alleging that the petitioner had violated the terms of the decree, demolished a portion of the compound wall and put up a new compound wall. The petitioner claims to have filed a detailed objection to the Execution Petition filed by the decree holders. It was pointed out that the decree holders had not proved their right to the area, which was claimed by them in the Execution Petition and that the petitioner CRP 495/09 2 had not violated the terms of the decree. 3. The Court below, after taking evidence, found that the petitioner had violated the terms of the decree and had put up a boundary wall and therefore, directed him to restore the position of the compound wall as before. 4. The learned counsel for the petitioner in this petition pointed out that the Court below was not justified in passing the impugned order. According to the learned counsel, the decree holders had not proved that they were entitled to the portion of the property, which is now claimed by them and the Court below has also erred in coming to the conclusion that the petitioner had put up a new compound wall in the place of the old compound wall in that portion. It is also contended that the decree that is put in execution does not enable the decree holders to recover any portion of land from the petitioner. 5. The learned counsel for the respondents, on the other hand, pointed out that the decree is very clear and a look at the plan which was the subject matter of the CRP 495/09 3 decree will clearly show, what was intended by the decree. When the petitioner violated the terms of the decree and pulled down a portion of the compound wall, execution of decree had to be resorted to. The Execution Court has taken evidence in the matter and has found that the allegation is true. Accordingly, it was contended that there is no basis for the present complaint voiced by the revision petitioner. 6. It is seen from the records that there were two suits namely OS Nos.969/97 and 948/97 before the Munsiff's Court, Ernakulam. OS No.948/97 was filed by the petitioner herein against the respondents. The respondents in turn, had field OS No.969/97 against the petitioner. The suit filed by the petitioner was one for damages with mesne profits and the suit filed by the respondents was one for injunction. 7. It is not in dispute that the properties now owned by both the petitioner and the respondents originally belonged to the father of the petitioner and the first CRP 495/09 4 respondent. The property given to the petitioner, which is shown as plaint A schedule in OS No.948/97 is on the northern side of the property owned by the first respondent herein. The records indicate that there was a wall demarcating the boundary separating the two properties. After trial, it is seen that OS No.948/97 was dismissed and the suit filed by the 1st respondent herein i.e., OS No.969/97 was decreed as follows : “In the result, OS No.948/97 dismissed without cost. OS No.969/97 decreed as follows : 1. a decree of permanent prohibitory injunction passed restraining the defendant from trespassing into the plaint schedule property or interfering with the peaceful possession and enjoyment of the plaintiffs over the schedule property in any manner.” 8. The first respondent who was the decree holder as per the above decree filed an Execution Petition alleging that the petitioner herein demolished a portion of the northern boundary wall of his property which had slight projection towards the northern side and trespassed into that portion of the property owned and possessed by him CRP 495/09 5 and put up a compound wall while enclosing that portion to his property. He, therefore, prayed that the original position may be restored. 9. The judgment debtor resisted the petition by raising several contentions. A Commission was taken up and both parties were examined themselves as witnesses. The Execution Petition contains several prayers. The most important prayer was to restore the trespassed portion to the decree holder. The Court below perused the Commissioner's report and plan, which were available at the trial stage and also compared it with the Commissioner's report, prepared during the execution stage and found the allegation of the decree holders to be true. 10. The main grievance of the petitioner is that the Court below referred to the Judgment in OS No.948/97 a suit filed by him and dismissed to construe the decree. According to the learned counsel for the petitioner, the Court below ought to have looked into the pleadings in OS CRP 495/09 6 No.969/97, which granted the decree in favour of the respondents. 11. The above contention is of little significance. A perusal of the plan prepared during the trial stage which was made available to this Court clearly shows the location of the properties. There seems to be a slight projection on the northern boundary of the decree holders' property towards north. The petitioner vehemently contended that the projection was the remnants of a latrine which was demolished and its basement was mistakenly taken as the basement of a boundary wall. It was on this basis that the Court below found that the compound wall which is now seen as straight, has been subsequently put up. The definite contention is that that portion of the property was shown as C schedule in the suit filed by the petitioner and at no point of time, the decree holders claimed that portion. 12. Though the argument may seem to be very attractive, it is without substance. Relief was declined to the petitioner in his suit on the ground that the property over CRP 495/09 7 which he had laid his claim was not identified. It is significant to notice that the Commissioner's report in the suit made available for perusal makes mention of the basement of a boundary wall. That is in tune with the sketch produced at the trial stage. 13. Though an appeal was preferred against the Judgment and decree, the Appellate Court confirmed the order of the Trial Court. The Court below has noticed that while the earlier Commissioner's report showed a projection on the northern boundary towards north, the Commissioner's report obtained during execution, does not show the said projection. It is seen that the Commissioner has also noted that at present, the compound wall is in a straight line. This shows the existence of a demolished compound wall in the projected area. Going through the Commissioner's reports, it can be more easily seen that the projected area was included in the property set apart to the decree holder and the claim of the petitioner that it was not the basement of the compound wall, but remnants of a CRP 495/09 8 demolished latrine, cannot be accepted. At any rate, there can be no dispute that there has been a meddling with a compound wall. The Commissioner's report during the trial stage does not show the compound wall in a straight line. But, the Commissioner's report filed in the execution proceedings shows that the compound wall is a straight one, which shows that the projected portion is now annexed to the property of the petitioner. The claim of the petitioner, therefore, that he has not violated the decree, cannot be accepted. The Court below has come to the conclusion after considering the evidence in considerable detail. Therefore, no grounds are made out to interfere with the order passed by the Court below under the revisional jurisdiction of this Court. This Revision Petition is devoid of any merits and it is accordingly dismissed. P.BHAVADASAN, JUDGE sta CRP 495/09 9 CRP 495/09 10