IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 5TH FEBRUARY 2009 / 16TH MAGHA 1930 CRP.No. 969 of 2004() --------------------- AGAINST THE ORDER DATED 02/07/2004 IN EA 232/04, EA 240/04 & EP 456/2000 IN OS.469/1990 of PRL.M.C.,ERNAKULAM .................... REVN. PETITIONERS/ JUDGMENT DEBTORS 2 AND 3: ---------------------------------------------- 1. LUSY AUGUSTINE, AGED 76, W/O. LATE M.V. AUGUSTINE, MULLEPARAMBIL HOUSE PALARIVATTOM, ERNAKULAM. 2. M.A. PIOUS, AGED 50, S/O. LATE M.V. AUGUSTINE, MULLEPARAMBIL HOUSE PALARIVATTOM, ERNAKULAM. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN RESPONDENTS/DECREE HOLDER & JUDGMENT DEBTORS 4 TO 6: ------------------------------------------------------- 1. N.J. JOY, AGED 57, S/O. JOSEPH, KALAVATH HOUSE, PALARIVATTOM, KOCHI-25. 2. JOSEPH, AGED 42, S/O. LATE M.V.AUGUSTINE MULLEPARAMBIL HOUSE, PALARIVATTOM, ERNAKULAM. 3. JOHNY, AGED 48, S/O. LATE M.V.AUGUSTINE MULLEPARAMBIL HOUSE, PALARIVATTOM, ERNAKULAM. 4. SOLLY, AGED 38, S/O. LATE M.V.AUGUSTINE, MULLEPARAMBIL HOUSE, PALARIVATTOM, ERNAKULAM. ADV. SRI.VARGHESE C.KURIAKOSE FOR R1 SRI.JACOB SEBASTIAN FOR R1 SRI.PRAVEEN K. JOY FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP.NO.969/2004 ORDER ON I.A.NOS.2396/2004 & 1234/2005 IN CRP NO. 969/2004 ---------------------- Dismissed 5/2/2009 Sd/- HARUN-UL-RASHID, JUDGE. HARUN-UL-RASHID,J. --------------------------- C.R.P.NO.969 OF 2004 ---------------------------- DATED THIS THE 5TH DAY OF FEBRUARY, 2009 O R D E R Revision petitioners are judgment debtors 2 and 3 in E.P.No.456/2000 in O.S.No.469/90 on the file of the Munsiff's Court, Ernakulam. The lst respondent is the decree holder. Plaint A and B schedule properties admittedly belong to the plaintiff and defendants respectively. Decree was passed on 20/1/1998 allowing fixation of boundary between plaint A and B schedule properties, which are marked as F and E plots in Ext.C1 (a) plan prepared during the trial stage. By the judgment in the suit the court below allowed the plaintiff to put up a compound wall along the boundary line. At the time of putting up a compound wall the plaintiff shall cut and take the boundary plants as forming part of the original fence and other trees if any as stated in the judgment. 2. According to the petitioners, the location of trees -2- CRP.No.969/2004 noted in the rough sketch and the number of trees shown as standing in the line are incorrect. It was happened only because the location of the trees was not noted at the time when the boundary line was marked. Petitioners further submitted that some of the trees are standing in the plaint B schedule property, but identified as standing in the boundary line. Therefore, the petitioners have filed objections to the Commission report and also filed E.A.No.240/2004 for setting aside the Commission report by remitting the same to the Advocate Commissioner. E.A.No.232/2004 was filed by the decree holder seeking police protection to the Amin for the execution of the decree. 3. The court below by the impugned order dismissed the E.A.No.240/04 and allowed the connected E.A.No.232/2004 for police protection. 4. Heard both sides. 5. The grievance of the petitioners is that the trees shown as item Nos.3,4, 5, 6, 9, 10, 11, 13, 14, 15 and 17 are -3- CRP.No.969/2004 situated in the plaint B schedule property which belongs to the judgment debtors (petitioners herein) exclusively and hence they are not liable to be cut and removed. 6. The judgment debtors put forward a contention that marking of the location of the trees is wrong. According to them, the marking of trees should have been made in Ext.C1(a) plan, which was prepared for making the boundary line between plaint A and B schedule properties. 7. The execution court considered the matter in detail and perused Exts.C1 and C1(a) and C1(b). The execution court also noted that the boundary separating the properties was identified and demarcation was done during the trial stage itself. The execution court further noted that the decree is very clear on the subject and the measurement is also given. At the same time, the execution court observed that the petitioners' attempt is to measure the property and fix the boundary once again, which cannot be permitted at any cost. Such an observation in the given -4- CRP.No.969/2004 circumstances may not be correct. As rightly held by the trial court, there is already a boundary line fixed during the trial stage. In execution the very same boundary line was identified. So there cannot be any objection to the demarcation of the properties and the line fixed for putting up a boundary. The only contention of the petitioners is that the rough sketch prepared by the Commissioner noting the location of trees is incorrect. If the surveyor prepared a second plan in addition to the plan showing the trees standing in the boundary line and near to the boundary line, the matter would have been ended then and there. Therefore the finding of the execution court that the objections raised by the judgment debtors in E.A.No.240/04 are devoid of merit, cannot stand. 8. In the light of the contentions raised by both sides, the execution court may depute an experienced Commissioner and a Surveyor for the purpose of putting up a compound wall. The Commissioner shall inspect the property twice. On the lst -5- CRP.No.969/2004 visit he shall inspect the property with the Assistance of the Surveyor, locate the line and locate the trees standing in the boundary line on the basis of Exts.C1, C1(a) and C1(b) and report to the execution court showing the number of trees standing in the boundary line, which are liable to be cut and removed. The execution court shall, after considering the report of the Commissioner and after hearing both sides, grant permission to cut and remove the trees. Thereafter, the Commissioner and the Surveyor shall on the second visit locate the line through which the compound wall is to be constructed. The execution court shall carry out the above directions within a period of two months from today. C.R.P. is disposed of with the above directions. HARUN-UL-RASHID, Judge. kcv. -6- CRP.No.969/2004