IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 5TH OCTOBER 2010 / 13TH ASWINA 1932 WP(C).No. 23818 of 2010(O) -------------------------- EA.NO.36/2010 IN EP.NO.132/2009 IN OS.419/2003 of PRINCIPAL MUNSIFF'S COURT,ALAPPUZHA .................... PETITIONER(S): ------------------------ M.A.VARGHESE, S/O. VARGHESE ABRAHAM, MANALIL HOUSE, ANAPRAMBAL NORTH, THALAVADY, ALAPPUZHA-688 003. BY ADVS. SRI.S.SANAL KUMAR, SMT.BHAVANA VELAYUDHAN. RESPONDENT(S): -------------------------- 1. M.A.MATHEW, MANALIL HOUSE, ANAPRAMBAL NORTH MURI, THALAVADY, ALAPPUZHA-688 003. 2. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, ALAPPUZHA. 3. THE THAHSILDAR, TALUK OFFICE, KUTTANADU, ALAPPUZHA-688 003. 4. THE VILLAGE OFFICER, VILLAGE OFFICE, THALAVADY, ALAPPUZHA-688 003. R1 BY ADV. SRI.N.ASHOK KUMAR R2 TO R4 BY GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.23818/2010 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE JUDGMENT IN O.S.NO.419/2003. P2: COPY OF THE DECREE IN O.S.NO.419/2003 DTD. 30/05/2005. P3: COPY OF THE JUDGMENT OF THE ADDITIONAL SUB COURT IN AS.NO. 33/2005 DTD. 31/10/2007. P4: COPY OF E.P.NO.132/2009 IN O.S.419/2003. P5: COPY OF THE OBJECTION IN E.P.NO.132/2009 IN O.S.419/2003. P6: COPY OF THE OBJECTION FILED BY JDs 1 TO 3 IN EP.NO.132/2009 IN O.S.419/2003. P7: COPY OF THE E.A.NO.36/2010 IN E.P.132/2009. P8: COPY OF THE OBJECTION FILED BY THE PETITIONER/4TH JD IN E.A.NO. 36/2010. P9: COPY OF THE INTERIM REPORT OF THE ADVOCATE COMMISSIONER DTD. 21/06/2010. P10: COPY OF THE OBJECTION FILED BY THE PETITIONER/4TH JD DTD. 22/06/2010. P11: COPY OF THE ORDER DTD. 19/07/2010 IN E.A.36/2010 IN EP.NO.132/2009 IN O.S.NO.419/2003. P12: COPY OF THE JUDGMENT IN O.S.434/03 OF THE MUNSIFF'S COURT, ALAPPUZHA. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOMAS P.JOSEPH, J. ==================================== W.P(C) No.23818 of 2010 ==================================== Dated this the 05th day of October, 2010 J U D G M E N T Judgment debtor No.4-defendant No.4 in E.P. No.132 of 2009 in O.S. No.419 of 2003 of the court of learned Principal Munsiff, Alappuzha is the petitioner before me challenging Ext.P11, order passed by the learned Munsiff on E.A.No.36 of 2010 appointing Advocate Commissioner to supervise and assist Amin of the court for restoration of the demolished compound wall on the western side of the property and for other matters as stated in Ext.P11, order. According to the learned counsel for petitioner, Ext.P11 order goes beyond the scope of decree in O.S. No.419 of 2003. It is also contended by learned counsel that the decree has become unexecutable in view of subsequent developments, viz., dismissal of O.S. No.434 of 2003 filed by respondent No.1-plaintiff against respondent Nos.2 to 4. I have heard learned counsel for petitioner, learned counsel for respondent No.1 and Government Pleader for respondent Nos.2 to 4. 2. In respect of the suit property which according to respondent No.1 belongs to him, is in his possession and bounded W.P(C) No.23818 of 2010 -: 2 :- by the 'Nattu Thodu' on the west and pathway on the south with the property of petitioner on the further south of the pathway. Respondent No.1 sued respondent Nos.2 to 4 in O.S. No.419 of 2003 for a decree for prohibitory injunction against trespass into the said property, commission of waste and interfering with his peaceful possession and enjoyment. Petitioner got impleaded in the suit as defendant No.4 and contested the suit. According to the petitioner and respondent Nos.2 to 4 entitlement of respondent No.1 was not to the extent stated in the plaint schedule and the property described in the schedule took in a puramboke way on the west of the property to which respondent No.1 is entitled and on the east of the Nattu Thodu. In that case reports, sketch and mahasers prepared by the Advocate Commissioner in the connected case were produced and rejecting contention of petitioner and respondent Nos.2 to 4, learned Munsiff granted a decree in O.S. No.419 of 2003 whereby petitioner and respondent Nos.2 to 4 were restrained from “further trespassing” into the property, committing waste or interfering with peaceful possession and enjoyment of respondent No.1 in the said property. Petitioner challenged that decree in appeal and it is not disputed before me that judgment W.P(C) No.23818 of 2010 -: 3 :- and decree of the learned Munsiff were confirmed by the appellate court by judgment and decree dated 31.10.2007. That judgment and decree have become final. Pursuant to that, respondent No.1 filed E.P. No.132 of 2009 to execute the decree and alleging that portion of the compound wall was demolished by petitioner and respondent Nos.2 to 4 he sought relief in E.P. No.132 of 2009 which included a direction to the petitioner and respondent Nos.2 to 4 to put up the demolished portion of the compound wall and in case they did not do so permitting respondent No.1 to do so, and realise its cost from petitioner and respondent Nos.2 to 4. Execution petition was resisted by petitioner on the ground that the decree is not executable in that alleged demolition of the compound wall was on 07.06.2003 which was prior to the institution of O.S. No.419 of 2003 and the decree granted is only against “further trespass” and hence in respect of the alleged demolition of compound wall on 07.06.2003 and in respect of which no relief is granted in O.S. No.419 of 2003, respondent No.1 is not entitled to execute the decree. Certain other objections were also raised in that according to the petitioner, respondent No.1 is not having right, title, interest or possession of the entire property scheduled in W.P(C) No.23818 of 2010 -: 4 :- the plaint in that, portion of property on the western side is part of puramboke land and falling in a different survey than the one scheduled in the plaint and hence in respect of that portion in the light of the subsequent developments, i.e., dismissal of O.S. No.434 of 2003 of 2003 respondent No.1 is not entitled to execute the decree. 3. It is not disputed that respondent No1.had filed O.S. No.434 of 2003 against certain Government officials in their personal capacity seeking again, a decree for prohibitory injunction against trespass into the suit property and recovery of damages for alleged demolition of compound wall on 07.06.2003. That case ended in Ext.P12, judgment where learned Munsiff observed that respondent No.1 was not able to prove his right over the entire extent of the property scheduled in the plaint and there is no evidence to show that disputed compound wall formed part of the property to which respondent No.1 is entitled as per his document of title. Holding so, O.S.No.434 2003 was dismissed as per Ext.P12, judgment dated 28.9.2007. It is not disputed, that judgment and decree have become final. In the meantime respondent No.1 had filed O.S.No.336 of 1994 in the court of learned Sub Judge, Alappuzha against local Panchayat W.P(C) No.23818 of 2010 -: 5 :- and petitioner herein seeking a decree for prohibitory injunction in respect of the same property described as bounded by the Nattu Thodu on the west and pathway on the south. Respondent No.1 filed yet another suit as O.S. No.285 of 1994 in the court of learned Munsiff, Alappuzha also against petitioner for decree for a prohibitory injunction concerning the same property. Since O.S. No.336 of 1994 was pending in the court of learned Sub Judge Alappuzha, O.S. No.285 of 1994 was transferred to that court and renumbered as O.S. No.74 of 1996 and tried along with O.S.No.336 of 1994. It is not disputed, in the said case a decree was passed in favour of respondent No.1 as prayed for again concerning the property bounded by the Nattu Thodu on the west and pathway on the south. 4. Now the argument advanced by learned counsel for petitioner is that in view of the Ext.P12, judgment in O.S.No.434 of 2003 which is subsequent to the judgment and decree passed by the learned Munsiff in O.S.No.419 of 2003, respondent No.1 is not entitled to execute the decree. Learned counsel has taken me through Ext.P12, judgment in O.S.No.434 of 2003 where learned Munsiff was not inclined to accept case of respondent No.1 as to his entitlement and possession of the entire suit property W.P(C) No.23818 of 2010 -: 6 :- extending upto the Nattu Thodu on the west. Learned Munsiff was of the view that respondent No.1 has not proved his title and possession of the puramboke land on the immediate east of the Nattu Thodu which fell in a different resurvey number. Learned counsel has also has invited my attention to the decree in O.S. No.419 of 2003 where extent of suit property is described as 36.33 cents (13.70 Ares) in Sy.Nos.263/23, 263/30, 263/29 (R.S. No.489/21). According to the learned counsel if 13.70 Ares is converted into cents extent will only be 33.83 cents and not 36.33 cents and therefore respondent No.1 in not entitled to execute the decree in respect of any area other than 33.83 cents. Learned counsel also argued that respondent No.1 or the executing court cannot go behind the decree. 5. I am unable to accept the argument advanced by learned counsel for more reasons than one. May be the extent of the property in Ares is described in the decree in O.S.No.419 of 2003 as 13.70 Ares. But it is not disputed that the property was described by specific boundaries on all sides which as I stated is bounded by Nattu thodu on the west and pathway on the south. It is not disputed that property of petitioner is on the further south of the pathway. Assuming that contention regarding the W.P(C) No.23818 of 2010 -: 7 :- existence of puramboke in between Nattu Thodu and property admittedly belonging to respondent No.1 was raised in O.S. No.419 of 2003, that contention has not been accepted and a decree has been granted in respect of the entire suit property in O.S. No.419 of 2003 bounded by the boundaries described therein and which as I stated above is bounded by the Nattu Thodu on the west and pathway on the south. Executing court cannot conduct a rowing enquiry as to the extent of property involved while considering execution of the decree. That is the function of the trial court. If petitioner or respondent Nos.2 to 4 had any challenge to the extent of property they should have raised that on the trial side in O.S. No.419 of 2003 and assuming that it is raised and found against, there is no question of raising that plea in execution since it is barred by principle of res judicata. If not already raised the principle of constructive res judicata will bind petitioner and respondent Nos.2 to 4. Hence it is not a contention available to the petitioner or respondent Nos. 2 to 4 in execution (of the decree in O.S.No.419 of 2003) that extent of property to which respondent No.2 is otherwise entitled is only 33.83 cents and not 36.33 cents as refereed into the decree. That contention of petitioner has to fail. W.P(C) No.23818 of 2010 -: 8 :- If petitioner has a contention that O.S. No.419 of 2003 was decided merely on possession and did not involve title, remedy if any of petitioner is elsewhere. 6. Then the next question is what is the effect of Ext.P12, judgment in O.S.No.434 of 2003 wherein finding is entered to the effect that respondent No.1 was not able to prove that he has entitlement and possession of the entire extent of property refereed to therein which, it is not disputed is the same description of property in O.S.No.419 of 2003. True adverse finding has been entered against respondent No.1 and that judgment and decree has become final. When conflicting judgments and decrees are passed between the same parties it is settled position of law that if the defence of res judicata is not set up against any of them, the last judgment and decree should prevail. If that be so if the contention of petitioner were to be accepted judgment and decree in O.S. No.434 of 2003 being later on point of time from the judgment and decree in O.S. No.419 of 2003 were to stand. But it is not disputed that judgment and decree in O.S. No.419 of 2003 were challenged by petitioner in appeal and the appellate court disposed of that appeal only on 31.10.2007. That was subsequent to the decision W.P(C) No.23818 of 2010 -: 9 :- in O.S.No.434 of 2003. Judgment and decree in A.S. No.33 of 2005 arising from judgment and decree in O.S. No.419 of 2003 rendered on 31.10.2007 is the last verdict in the cases between the parties and judgment and decree of the trial court in O.S. No.419 of 2003 have been merged in the appellate court judgment and decree dated 31.10.2007 in A.S.No.33 of 2007. That is the decree being executed by respondent No.1 in E.P. No.132 of 2009. If petitioner or respondent Nos.2 to 4 had a case that Ext.P12, judgment in O. S. No.434 of 2003 made judgment and decree in O.S. No.419 of 2003 inexecutable or judgment and decree in O.S.No.434 of 2003 being on later point of time should prevail, petitioner or respondent Nos.2 to 4 should have raised that point in A.S No.l33 of 2005 and sought to set aside judgment and decree in O.S.No.419 of 2003 in the light of Ext.P12, judgment in O.S. No.434 of 2003. If that is not done again the principle of constructive res judicata falls on petitioner from contending that Ext.P12, judgment in O.S. No.434 of 2003 should prevail over trial court judgment and decree in O.S.No.419 of 2003. I therefore hold that the appellate court judgment and decree dated 31.10.2007 in A.S.No.33 of 2005 arising from judgment and decree in O.S. No.419 of 2003 holds W.P(C) No.23818 of 2010 -: 10 :- the field as between the parties herein. Hence contention that in view of judgment and decree in O.S. No.434 of 2003 respondent No.1 is not entitled to execute the decree cannot stand. 7. Now coming back to the issue regarding boundary dispute raised by petitioner it is seen that relevant documents were produced before the learned Munsiff in O.S. No.434 of 2003 based on which identity of the suit property was accepted and decree was passed. I stated that in the light of the appellate judgment and decree in that case on 31.10.2007 that judgment and decree should prevail. 8. The further argument is that decree in O.S. No.419 of 2003 as confirmed in A.S. No.33 of 2005 only prevents “further trespass” and hence decree in the way sought to be executed in E.P. No.132 of 2009 cannot be permitted. I am afraid, that contention cannot be accepted. True former part of the judgment and decree in O.S. No.419 of 2003 is against petitioner or respondent Nos.2 to 4 “further trespassing” into the suit property. But the later part of the judgment and decree enable respondent No.1 peaceful possession and enjoyment of the decree schedule property. In other words respondent No.1 is entitled to ward off any challenge to his peaceful possession and W.P(C) No.23818 of 2010 -: 11 :- enjoyment of the suit property in the light of decree in O.S. No. No.419 of 2003. To put compound walls on the boundaries of the suit property is a way of possessing and enjoying the property. Section 51 of the Code of Civil Procedure (fort short, “the Code”) deals with the power of court to enforce execution and sub- clause (e) states that decree could be executed in “such other manner as the nature of the relief granted may require”. I stated that later part of the decree in O.S. No.419 of 2003 enables respondent No.1 for quite and peaceful enjoyment of the suit property. If for that purpose it is necessary to put up compound walls on the sides of the suit property it is well within the right of respondent No.1 to seek assistance of the court to do so in exercise of the power under Sec.51(e) of the Code which I have mentioned above. Hence it was well within the power of court to have permitted boundary to be put up at the portion of the compound wall which was found demolished. I find no infirmity in the order of the executing court. W.P(C) No.23818 of 2010 -: 12 :- 9. So far as the ascertainment of boundaries concerned, executing court has appointed an Advocate Commissioner for the said purpose and report has also been submitted identifying the property in accordance with the decree schedule. That calls for no interference. 10. Then next question is whether petitioner or respondent Nos.2 to 4 are liable for costs for construction of demolished portion of the compound wall. On that point I am inclined to think that petitioner has to succeed. Reason is that demolition alleged is on 07.06.2003 which is prior to the filing of O.S. No.419 of 2003. The decree does not provide for awarding costs against petitioner or respondent Nos.2 to 4. Hence entitlement of respondent No.1 is only to put up boundary at the demolished portion of the compound wall but not at the costs of petitioner or respondent Nos.2 to 4. With the above observations this Writ Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv