IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933 CRP.No. 231 of 2011(B) --------------------------------- [AGAINST THE ORDER DT. 11/04/2011 PASSED IN E.P.NO.193/10 IN OS.NO.305/2009 OF MUNSIFF COURT, VAIKOM] .................... REVISION PETITIONER/JUDGEMENT DEBTORS: --------------------------------------------------------------------- 1. JOY, AGED 42 YEARS, S/O.ABRAHAM, MULANTHANATHU HOUSE, MANJOOR KARA, MANOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN - 686 141. 2. SINI JOY, W/O.JOY, MULANTHANATHU HOUSE, MANOOR KARA, MANOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN - 686 141. BY ADVS. SRI.P.A.ABDUL JABBAR, SRI.JAISON PALIYIL. RESPONDENT/DECREE HOLDER: ------------------------------------------------- BABY, S/O.XAVIER, MULANTHANATHU HOUSE, MANOOR KARA, MANOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN - 686 141. BY ADVS. SRI.MOHAN IDICULLA ABRAHAM, SRI.ROY GEORGE, SRI.MARTIN D.ALUMKARA. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.R.P.NO.231/2011-B: APPENDIX PETITIONER'S EXHIBITS:- ANNEXURE A1: COPY OF THE COMPROMISE PETITION FILED IN O.S. NO.305/09. ANNEXURE A2: COPY OF THE SKETCH APPENDED TO THE COMPROMISE. ANNEXURE A3: COPY OF THE EXECUTION PETITION FILED IN O.S. NO. 305/09. ANNEXURE A4: COPY OF THE COMMISSION REPORT. ANNEXURE A5: COPY OF THE SKETCH APPENDED TO ANNEXURE -A4. RESPONDENT'S ANNEXURES:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. THOMAS P. JOSEPH, J. ---------------------------------------- C.R.P.No.231 of 2011 --------------------------------------- Dated this 20th day of December, 2011 ORDER Judgment debtors in E.P.No.193 of 2010 in O.S.No.305 of 2009 of the Court of learned Munsiff, Vaikom are aggrieved by order dated 11.04.2011 directing the Advocate Commissioner to remove all the constructions and structures standing on plaint schedule property in violation of the decree. 2. Annexure-A1 decree was passed on 22.06.2010 in a suit for injunction and fixation of boundary based on a settlement reached between the parties. Annexure-A2 is the plan appended to that decree. Respondent/decree holder filed E.P.No.193 of 2010 complaining that petitioners have made constructions in violation of Annexure-A1, decree dated 22.06.2010. That was objected by petitioners on various grounds. Executing court appointed an Advocate Commissioner who submitted Annexure- A4, report and Annexure-A5, plan. Commissioner reported that a stone wall is constructed 30-40 cms below the ground level but, there is no obstruction to the pathway. Executing court passed the impugned order on 11.04.2011 directing removal of construction as above stated. Executing court also directed the C.R.P.No.231 of 2011 -: 2 :- Advocate Commissioner to fix boundary of the suit property in accordance with the decree and supervise the construction of fence or structures at PZ line. 3. It is contended by learned counsel for petitioners/judgment debtors that there is no violation of the decree and if at all there is any violation of the decree and any construction is made encroaching in the prohibited area as seen from Annexure-A2, plan petitioners are prepared to remove the same. 4. Learned counsel for respondent/decree holder submitted that directions in Annexure-A1, decree supported by Annexure-A2, plan are to be enforced and that petitioners shall not put any obstruction to the use of pathway marked as CDA1B1C in Annexure-A2, plan. It is also the submission of learned counsel that since A1ZP forms boundary between property of petitioners and the respondent, any construction made by petitioners projecting into the property of respondent on the west of A1ZP line is liable to be removed. 5. Having heard counsel on both sides and gone through Annexures-A1 and A2, decree and plan it is seen that the dispute is confined to the alleged constructions if any within the C.R.P.No.231 of 2011 -: 3 :- CDA1B1C and beyond A1ZP in Annexure-A2, plan. 6. Having heard counsel on both sides the controversy can be resolved by ensuring that no construction is made and if at all made, is removed from the portion marked CDA1B1C in Annexure-A2, plan and though right of petitioners to construct boundary wall along A1ZP line is to be guaranteed, such construction shall not in any way trespass or project into the property of respondent on the west of A1ZP line and any structure, if in existence trespassing into the property of respondent beyond A1ZP line is to be removed. Resultantly this civil revision is disposed of as follows: (i) It is directed that if petitioners have put up any structure trespassing or projecting into the portion mentioned as CDA1B1C in Annexure-A2, plan or in any manner affecting use of the said portion as a pathway, the same shall be removed by petitioners within a month from this day. (ii) It is made clear that petitioners will have the right to put up boundary wall along A1ZP line provided it does not in any manner trespass or project into the portion marked CDA1B1C plot. (iii) If petitioners have put up any structure transgressing into the property of respondent on the west of A1ZP line, petitioners shall remove such structure within the said period of one month. C.R.P.No.231 of 2011 -: 4 :- (iv) It is made clear that it is open to the petitioners to put up boundary wall along A1ZP line provided it does not in any way transgress into the property of respondent on the west of A1ZP line. (v) Petitioners shall do the above works in the presence of an Advocate Commissioner and Surveyor at the expense of petitioners. (vi) In case petitioners do not do as above, it will be open to the respondent to get the work done through Court in the presence of an Advocate Commissioner and with the assistance of a Surveyor and realise the expense from petitioners. If the Court has already appointed an Advocate Commissioner and Surveyor, they could be deputed for the work. (THOMAS P. JOSEPH, JUDGE) Sbna/-