IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 21ST FEBRUARY 2008 / 2ND PHALGUNA 1929 CRP.No. 609 of 2002() --------------------- OS.674/1995 of ADDL.M.C.,KOTTAYAM .................... REVN. PETITIONER: PETITIONER/DECREE HOLDER-PLAINTIFF: ----------------------------------------------------- SUNNY.K. PAUL, S/O. KURUVILLA, VELLAPPALLY, NATTASSERY KARA, VIJAYAPURAM VILLAGE, REPRESENTED BY THE POWER OF ATTORNEY HOLDER, V.P. KURUVILLA, S/O. PAILO, DO. DO. BY ADV. SRI.MATHEW JOHN (K) SRI.BABY THOMAS RESPONDENTS: RESPONDENTS/JUDGEMENT DEBTOR-DEFENDANTS: ----------------------------------------------------- 1. T.K. JAYAN, S/O. KUTTAN, CHIRAYILTHAZHA, FROM PATHIMACKALPARAMBIL, NATTASSERY KARA, VIJAYAPURAM VILLAGE, KOTTAYAM. 2. P.K. MOHAN, S/O. KUTTAN, DO. DO. BY ADV. SRI.M.P.MADHAVANKUTTY THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- C.R.P. NO. 609 OF 2002 --------------------- Dated this the 21stday of February, 2008 ORDER This revision petition is preferred against the order of the Additional Munsiff, Kottayam, in EP 134/98 in OS 674/95. The said petition was filed with a prayer to detain the 1st judgment debtor in prison, to attach property of the 1st judgment debtor and sent him to jail for violation of the injunction and to appoint a commission to execute the decree in the suit. 2. Learned counsel for the revision petitioner has made available a copy of the decree for perusal. As per the decree “ suit is decreed with cost against 1st defendant. It is declared that plaintiff acquired right of easement by prescription to use water from item No.3 through the kaithodu existing along the southern side of item No.2 to draw water for the beneficial enjoyment and paddy cultivation of item No.1 property. The 1st defendant and persons under him are restrained from obstructing the right of plaintiff to put up a kaithodu along the southern boundary of item No.2 as it existed earlier for the purpose of drawing water from item No.3 to item No.2 and to enjoy the said right. A perusal of the sketch would show that the pond is situated on the eastern side and schedule No.2 is situated on the northern side and schedule No.1 is situated on the southern side. The decree permits for taking of water through the kaithodu to the southern C.R.P. NO.609/02 2 extremity of schedule No2. So far as the violation part of the injunction is concerned, at this stage, this court does not want to interfere with that decision. But at the same time, the plaintiff should be entitled to enjoy the usufructs of the decree which has become final. 3. Therefore, I direct the court below to appoint a Commissioner to form the kaithodu if it is not there and if kaithodu is there, to repair it so that the water from the pond can be taken to the paddy filed of the plaintiff as decreed in the suit. If the kaithodu is not in existence now, the court shall fix a minimum width for forming kaithodu, taking into consideration that this is an easement right that is conferred upon and appoint a commissioner to form the kaithodu so that further obstructions can be averted. The counsel appearing for both sides may be heard before passing an order in that regard. Therefore, the order under challenge is set aside to that extend. Parties are directed to appear before the court below on 24.3.08. M.N.KRISHNAN, JUDGE vps C.R.P. NO.609/02 3