IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 WP(C).No. 17181 of 2010(O) -------------------------- AGAINST THE ORDER IN EP 54/08 IN OS.135/2004 of MUNSIFF COURT, PAYYANNUR .................... PETITIONER(S): --------------- K.V.GOVINDAN, AGED 68, S/O.CHANDUKUTTY, EAMAM AMSOM, MATHAMANGALAM DESOM, THALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR SMT.K.M.RAMYA SRI.P.K.RAKESH KUMAR RESPONDENT(S): --------------- VANNADIL ARAYULLA VEETTIL KRISHNA PODUVAL, S/O.KANNA PODUVAL, TEACHER, AGED 64, ERAMAM AMSOM, MATHAMANGALAM DESOM, THALIPARAMBA, KANNUR. ADV. SRI.O.V.MANIPRASAD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.17181/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 PHOTOCOPY OF THE COMPROMISE DECREE IN OS 134/2004 OF MUNSIFF COURT, PAYYANNUR EXT.P2 PHOTOCOPY OF THE REPORT OF THE AMIN EXT.P3 PHOTOCOPY OF THE ORDER IN EP 54/2008 IN OS 135/2004 DATED 6.4.2010 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.17181 of 2010 -------------------------------------- Dated this the 2nd day of December, 2010. JUDGMENT There was a dispute between the parties hereto regarding right of respondent for lateral support on account of petitioner allegedly removing earth from the eastern side of his property which adjoined western boundary of respondent. The dispute reached the court of learned Munsiff, Payyannur with respondent filing O.S.No.135 of 2004. While so wisdom dawned on the parties and they settled the dispute as per a compromise and accordingly Ext.P1, decree was passed. As per that decree petitioner was to construct a retaining wall at a distance of 1 ½ metres from the boundary of the properties of parties to provide lateral support for plaint A schedule belonging to the respondent. Since petitioner did not do so, respondent filed E.P.No.21 of 2007 to execute the compromise decree and as per request of respondent, Amin was deputed for the work. The Amin got the work done and submitted his report and account based on which E.P.No.21 of 2007 was closed. Later, respondent filed E.P.No.54 of 2008 for realisation of cost he had incurred for the work done. Respondent relied on the account and report submitted by the Amin. Petitioner objected to E.P.No.54 of 2008 contending that construction was not in accordance with the terms of the compromise decree and at any rate his liability was only to pay 1/3rd of the cost which was required to be done by him as per the compromise decree. Executing court rejected the contentions of petitioner and passed WP(C) No.17181/2010 2 Ext.P3, order directing petitioner to pay cost as prayed for in the execution petition. That order is under challenge. Learned counsel contends that construction was not in accordance with the terms of compromise decree and that at any rate, petitioner is not liable to pay for all the constructions got done by the respondent which includes further construction which petitioner was not obliged to undertake as per the compromise decree. Learned counsel invited my attention to Ext.P2, report of the Amin to buttress his contention that the cost includes the cost of constructions done in the property of respondent. Learned counsel for respondent has supported the order under challenge. 2. I have gone through the copy of plan prepared by the Advocate Commissioner given to me by counsel for respondent and based on which the compromise decree was passed. I have also gone through the report and account submitted by the Amin. Relevant portions of the evidence of Amin was read over to me by learned counsel for petitioner. 3. As per clause (2) of compromise, 'IKL' line on the west of plaint A schedule property was accepted by parties as the boundary between the properties. It was also agreed that petitioner shall construct a retaining wall at a distance of 1 ½ metres from the boundary line to provide lateral support for plaint A schedule belonging to the respondent. WP(C) No.17181/2010 3 4. Now I shall refer to Ext.P2, report submitted by the Amin. In paragraph No.2 of the report the Amin has stated about construction of retaining wall on the boundary line – IKL at a distance of 1 ½ metres from the said line. In the account the Amin has stated cost of work done at different phases, the first phase is being removal of earth to enable construction of basement for the retaining wall and the second phase being construction of retaining wall. The Amin has stated in page No.2 of his account that out of the total sum of `.65,428/- referred to in the account, cost of construction which petitioner has to bear in accordance with clause (2) of the compromise is `.50,938.50. The Amin has also reported cost of construction done apart from the compromise (at the expense of respondent) as `.16,680/- which ofcourse petitioner cannot be asked to bear. Now the dispute is regarding cost of construction which petitioner is liable to pay. Learned counsel for petitioner states that Amin himself has admitted that cost of construction does not tally and that he has mentioned cost of construction done in the property of respondent and petitioner together. But, that does not appear to be correct in the light of Ext.P2, account given by the Amin. It is seen from page No.2 of the account that the Amin has specifically stated that cost of construction which petitioner is liable to pay in accordance with clause (2) of the compromise is `.50,938.50. 5. Another argument advanced by learned counsel for petitioner is that liability of petitioner is to be confined to `.50,938.50. But I am unable to accept that argument. Without preliminary work such as removal of earth, etc. WP(C) No.17181/2010 4 retaining wall cannot be constructed. Expenses for such preliminary work (shown as first phase) is `.12,430/-. Viewed in that line liability of petitioner is to pay `.63,368.50 ( `.50,938.50 + 12,430) which is rounded at `.63,368/-. Along with that, petitioner is also liable to pay batta paid to the Amin ( `.1,800/-) and other incidental expenses which comes to `.13/-. Thus total amount payable by the petitioner to the respondent is `.63,368 + 1,813 = 65,181/-. Resultantly this petition is allowed in part and the order of the court below is modified to the extent that amount payable by petitioner to the respondent is modified as `.65,181/- (Rupees sixtyfive thousand one hundred and eightyone only). THOMAS P.JOSEPH, Judge. cks