IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 WP(C).No. 12233 of 2009(O) -------------------------- OS.147/1994 of MUNSIFF-MAGISTRATE COURT,PATTAMBI .................... PETITIONER: --------------- RAMAN. S/O.KUTTIKKATTIL NEDUMBURATHU KUNHIPPARAN AND MUNDARU, MALA AMSOM DESOM, OTTAPALAM TALUK. BY ADV. MR.K.JAYAKUMAR MR.P.B.KRISHNAN MS.GEETHA P.MENON MR.NEELAKANDAN P.M RESPONDENTS: --------------- 1. JAYARAJ, S/O.KUTTIKKATTIL NEDUMBURATH LATE VELAYUDHAN, MALA AMSOM DESOM, OTTAPALAM TALUK. 2. RAMACHANDRAN, S/O.DO IN..DO.. ADV. MS.T.D.RAJALAKSHMI FOR R1 & R2 MR.R.SREEHARI FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 12233 of 2009(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: DECREE IN O.S.NO.147/94 DTD 31.1.1995 TOGETHER WITH THE COMPROMISE SIGNED BY THE PARTIES. EXT.P1(A): COMMISSIONER'S PLAN DATED 11.11.94. EXT.P2: EXECUTION PETITION, E.P.NO.63/2005 DTD 16.5.2005. EXT.P3: OBJECTION FILED IN E.P.NO.63/05 IN O.S.NO.147/94 DTD 18.10.05. EXT.P4: COMMISSION REORT DATED 23.5.2005 IN E.P.NO.63/05 IN O.S.NO.147/94. EXT.P5: ORDER DATED 18.2.2009 IN E.P.NO.63/2005 IN O.S.NO.147/94 OF MUNSIFF-MAGISTRATE COURT, PATTAMBI. RESPONDENTS' EXHIBITS: NIL .... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.12233 Of 2009 ---------------------- Dated this the 8th day of September, 2010. J U D G M E N T The plaintiff in O.S.No.147 of 1994 on the file of the Munsiff Court, Pattambi, is the petitioner herein. During the pendency of the suit, parties entered into a compromise. They have jointly filed I.A.No.88 of 1995 praying that a decree may be passed in terms of the compromise. The trial court passed a decree in terms of the compromise on 31.1.1995. The plaint C schedule pathway commences from western edavazhi and the pathway lies in the east-west direction at its commencement from the western edavazhi. According to the compromise decree, the plaintiff was given liberty to use the C schedule pathway by widening the same to 12 feet adding the necessary width from the defendants' property. The defendants were restrained from fencing the C schedule property and interfering with the plaintiff's possession. C schedule is the pathway. The commissioner's plan attached to the compromise decree is marked as Ext.P1(A). W.P.(C).No.12233 Of 2009 ::2:: 2. The decree holder filed E.P.No.63 of 2005 stating that there is positive obstruction to the user of the C schedule pathway. Ext.P2 is the execution petition. It is the case of the decree holder that the defendants 4 & 5 in the suit with an intention to obstruct the use of plaint C schedule pathway caused damage to the way at the place it commences from the western edavazhi which passes in the north-south direction, by making a trench and heaping the soil at another portion of the way. The decree holder requested the court to depute an Amin to restore plaint C schedule pathway to its original condition with police aid if necessary, and to order imprisonment of the respondents in civil prison for violation of the decree. 3. Respondents in their objection denied the material averments in the petition and prayed for its dismissal. They contended that as per the compromise decree both parties are entitled to use C schedule pathway, that there was a natural wear and tear by the flow of water and that the respondents were maintaining C schedule pathway as a motorable way. Respondents further contended that making of the trench W.P.(C).No.12233 Of 2009 ::3:: complained of and heaping of soil were part and parcel of the maintenance work carried out and that the same did not amount to wilful disobedience of the decree of court. The copy of the objection filed by the respondents is produced as Ext.P3. 4. At the instance of the decree holder a commissioner inspected the site and reported that at the beginning of C schedule pathway, soil had been removed so as to form a trench having a width of 6-7 feet and depth of 1 feet. It is also reported that soil has been heaped at the beginning of C schedule pathway along its northern side to a height of 4 feet. In the light of the commissioner's report, the petition was filed as E.A.No.132 of 2005 in E.P.No.63 of 2005 for taking appropriate action for contempt of court. Ext.P5 is the order passed by the execution court in E.P.No.63 of 2005. 5. The execution court held that report of the commissioner is not sufficient to hold that respondents have violated the decree and that to invoke the penal provisions of the Code of Civil Procedure there should be positive evidence of fact beyond the degree of preponderance of probabilities. The court W.P.(C).No.12233 Of 2009 ::4:: below dismissed the petition finding that the decree holder failed to establish that the respondents have violated the decree. 6. Ext.P1 is the decree passed in O.S.No.147 of 1994. The decree provides that the defendants abandoned their claim over plaint C schedule pathway, that the plaintiff is at liberty to use plaint C schedule pathway by widening the same at 12 feet level from defendants' property. The decree also restrained the defendants from fencing the same and from interfering with the plaintiff's possession of plaint C schedule pathway. The grievance of the plaintiff is that in spite of the decree passed in terms of the compromise the respondents caused obstruction to plaint C schedule pathway causing difficulties to the plaintiff in enjoying plaint C schedule property. Ext.C1 commission report would show that at the beginning of plaint C schedule pathway soil had been removed so as to form a trench having a width of 6-7 feet and depth of one feet. The commissioner also noted that the soil was seen heaped at the beginning of plaint C schedule pathway along the northern side to a height of 4 feet. The respondents did not dispute the obstructions cased in the plaint C W.P.(C).No.12233 Of 2009 ::5:: schedule pathway. Their contention is that there was a natural wear and tear by the flow of water and they were maintaining plaint C schedule pathway as a motorable way and that the making of the trench complained of and heaping of soil were part and parcel of the maintenance work carried out and that the same did not amount to wilful disobedience of the decree of court. In the light of the commissioner's report and the contention of the respondents stated above, the court below is not justified in dismissing the petition filed complaining violation of the decree. Going by the commissioner's report and the contention of the respondents it cannot be denied that for whatever reasons, the respondents caused obstruction to the user of plaint C schedule pathway. They may be justified in contending that the trench formed and heaping of soil were part and parcel of the maintenance work carried out. As per the decree, petitioners have right to use plaint C schedule pathway without any hindrance. In fact, the decree restrained the respondents from interfering with the right of user of plaint C schedule pathway by the plaintiffs. In the circumstances, in the W.P.(C).No.12233 Of 2009 ::6:: interest of justice, the obstruction caused to the smooth user of the pathway has to be removed. The respondents admitted that the trench formed and the soil heaped in C schedule pathway were part of the maintenance work done by them. The learned counsel for the respondents submitted that the respondents will remove the obstructions, if any, in existence in the plaint C schedule pathway within a period of one month from today. If the obstruction is still subsisting and if the same is not removed, the petitioners are at liberty to approach the execution court for restoration of position of plaint C schedule pathway at the cost of the respondents. Writ petition is disposed of as above. HARUN-UL-RASHID, Judge. bkn/-