IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 WP(C).No. 1957 of 2009(G) ------------------------- OS.395/1991 of MUNSIFF COURT, PALA .................... PETITIONER(S): --------------- JAMES KUTTIACHAN, S/O. JOSEPH, AGED 36, ERATHUVEETTIL, METHIRIKARA, RAMAPURAM VILLAGE, MEENACHIL TALUK. BY ADV. SRI.JOHN NUMPELI (JUNIOR) SRI.P.V.PAULSON RESPONDENT(S): --------------- 1. E.M. MATHEW, S/O. MANI, ELAVUMKAL VADAKKEDATHU, METHIRIKARA, RAMAPURAM VILLAGE, MEENACHIL TALUK. 2. ALEYAMMA, W/O. E.M. MATHEW, ELAVUMKAL, VADAKKEKDATHU, METHIRIKARA, MEENACHIL TALUK. ADV. SRI.MATHEW JOHN (K) FOR R1,2 SRI.AJEESH K.SASI FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).1957/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMMISSION REPORT DATED 12.11.1999 IN E.A.NO.52/99 IN O.S.NO.359/91. EXT.P2: COPY OF THE JUDGMENT IN C.R.P.NO.490/04 OF THE HONOURABLE HIGH COURT OF KERALA DATED 8.9.2005. EXT.P3: COPY OF THE JUDGMENT DATED 10.1.2007 IN RP.NO.802 OF 2006 IN CRP.NO.490/04 OF THE HONOURABLE HIGH COURT OF KERALA DATED 10.1.2007. EXT.P4: COPY OF THE E.A.NO.52/99 FILED BY THE PLAINTIFF IN O.S.NO.395/91 DATED 21.7.2006. EXT.P5: COPY OF THE E.A.NO.43 OF 2007 FILED BY THE RESPONDENT IN O.S.NO.395/91 DATED 1.3.2007. EXT.P6: COPY OF THE ORDER DATED 30.3.2007 IN E.A.NO.114/2006 AND E.A.NO.43 OF 2007 BY THE HONOURABLE MUNSIFF COURT, PALA. EXT.P7: COPY OF THE COMMISSION REPORT DATED 17.6.2008 IN E.A.NO.114 OF 2006 AND E.A.NO.43 OF 2007. EXT.P8: COPY OF THE OBJECTIONS DATED 7.7.2008 AGAINST COMMISSION REPORT DATED 17.6.2008 IN E.A.NO.114 OF 2006 AND E.A.NO.43 OF 2007 FILED BY THE PETITIONER BEFORE THE HONOURABLE MUNSIFF COURT, PALA. EXT.P9: COPY OF THE ORDER DATED 21.8.2008 IN E.A.NO.114 OF 2006 OF THE HONOURABLE MUNSIFF COURT, PALA. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.1957 OF 2009 (G) ----------------------------------- Dated this the 9th day of July, 2010 J U D G M E N T The writ petition is filed challenging Ext.P9 order passed by the learned Munsiff, Pala. The disputes involved in the case have been continuing from at least two decades with the institution of two suits, one by the petitioner and the other by the respondents. Both suits were for injunction. Petitioner herein in his suit claimed a perpetual injunction against trespass over his property by the respondents. The respondents, over and above seeking perpetual prohibitory injunction against trespass by the petitioner herein, the defendant in that suit, also sought for a mandatory injunction for repairing the kayyala walls in their property which were alleged to have been destroyed by the defendant. While the suit filed by the petitioner was dismissed, the suit of the respondents was decreed. Though there was appeal and second appeal, the decree passed by the trial court W.P.(C).NO.1957/09 2 was confirmed. The respondents thereafter moved an original petition before this Court seeking police protection for carrying out the reconstruction of the kayyala walls. That being allowed, a writ appeal was preferred by the petitioner. Disposing the writ appeal, the parties were directed to approach the execution court for appropriate reliefs, and in that event that court was to look into the feasibility of deputing a Commissioner to carry out the reconstruction of the kayyala walls under his supervision. Accordingly, the respondents approached the execution court and on the orders passed by that court appointing an Advocate Commissioner, work relating to the construction of the kayyala walls under his supervision was carried out. Thereupon, the petitioner raised objections that encroaching upon his property on the western side construction of the kayyala walls had been put up under the supervision of the Commissioner. Though the execution court repelled those objections, that order was challenged by way of a revision. This Court disposing the revision passed an order that the construction as such is not liable to be pulled down but the joining of western and northern walls of the property of the respondents had to be undone by W.P.(C).NO.1957/09 3 disjoining them. A review filed by the respondents later contending that there was an error apparent on the order passed disposing the revision, was dismissed. The disjoining of the boundary walls was directed to be carried out by appointing an Advocate Commissioner. Accordingly, applications were moved by both sides before the execution court, and, ultimately, under the supervision of an Advocate Commissioner appointed by that court, the work of disjoining the boundary walls was carried out. Petitioner filed objections to that report, in which, among other contentions, it was contended that the disjoining of the two walls was not done at the spot where it ought to have been done, but, at a spot on the western boundary wall of the respondents demarcating the property of the petitioner, and so much so, the report and the work done had to be nullified. However, the court below, after hearing both sides and also taking note of the report of the Commissioner and its previous orders, found no merit in the objections raised by the petitioner, and so much so, repelling those objections, the proceedings were closed approving the report of the Commissioner vide Ext.P9 order. Impeaching the correctness of Ext.P9 order, this writ petition has been filed W.P.(C).NO.1957/09 4 invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. Though the learned counsel for the petitioner canvassed arguments with reference to Ext.P8 objections filed to the Commission reports, in which, the disputes which had been earlier agitated were also given expression to, it is fairly conceded that the only question that can be gone into is whether the disjoining of the boundary walls, the northern and western boundary walls of the decree schedule property in O.S.No.395 of 1991 of the respondents, had been done as directed by the orders passed previously in the revision and subsequent orders of the execution court. The grievance of the petitioner is that the disjoining was not done at the spot where it should have been done but only at a spot further west of the property of the respondents. The western boundary wall had been put up encroaching upon the property of the petitioner is his case to contend that the disjoining should be at a spot different from the one where it had been now made under the supervision of the Commissioner. In examining the merit of the W.P.(C).NO.1957/09 5 case canvassed by the petitioner, it is necessary to advert to Ext.P6 order passed by the learned Munsiff after hearing the rival case presented by the parties in compliance of the directions given by this Court in the order rendered in the revision directing the appointment of an Advocate Commissioner to supervise the work for disjoining of the boundary walls. It is to be noted that there is no challenge against Ext.P6 order by both sides. In Ext.P6 order, the learned Munsiff has observed that the direction issued by this Court can be substantially complied with by “making a gap of six inches at the point where the northern boundary kayyala wall of the decree schedule property joins the western boundary kayyala wall”. It has to be noted further that whatever be the case of the petitioner as to the encroachment made by the respondents in putting up the western boundary wall trespassing upon his property, even if that case is admitted for argument sake, no question thereof could be gone into as the limited question that required to be considered by the execution court was giving effect to the directions of this Court in providing a gap of six inches in the two boundary walls, with that work carried out through an Advocate W.P.(C).NO.1957/09 6 Commissioner. When Ext.P6 order specifically states that a gap of six inches has to be provided at the joining of the two boundary walls, whatever way such walls was constructed and, further, with no challenge against Ext.P6 order, the Commissioner deputed by the court could have carried out that order alone and nothing else. Ext.P7 is the report filed by the Commissioner disclosing that that direction alone was carried out by him, and in his presence, the gap of six inches was provided at the spot where the two walls joined. In Ext.P8 objections, the petitioner has a case that the gap was not provided at the joining of the two walls but at a spot further west on the northern boundary wall. If he had such a case, then the challenges to the report and execution of the work by the Commissioner should have been established leading evidence before the execution court. It has been reported that the report was filed by the Commissioner on 17.6.2008. Though Ext.P8 objections were filed by the petitioner, he did not take any step to substantiate such objections by examining the Commissioner or even mounting the box to swear in support of the objections raised. The case now advanced by the petitioner is essentially W.P.(C).NO.1957/09 7 built up his previous challenge that there was an encroachment over portions of his property in the construction of the western boundary wall. That case can no longer be agitated after the disposal of the previous revision and also Ext.P6 order by the execution court, which has become final. The report of the Commissioner and also the execution of the work by that Officer, approved by the court, in the given facts of the case, does not warrant any interference. Writ petition lacks merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp