Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI TUESDAY, THE 29TH DAY OF JANUARY 2013 9TH MAGHA 193 OP(C).No. 2745 of 2011 (O) ------------------------------------- EA. 208/2010 INEA. 61/2008 IN EP. 51/2008 IN OS.241/2004 of MUNSIFF COURT,VARKALA. ....... PETITIONER(S)/ ------------------------ C.V.BALACHANDRAN,S/O.VISWANATHAN, MADHAVI MANDIRAM, VAKKOM DESOM, VAKKOM VILLAGE THIRUVANANTHAPURAM DISTRICT. BY ADVS.SRI.VAKKOM N.VIJAYAN SMT.V.RENJU SRI.P.ANIYAN SMT.M.A.RAMITHA RESPONDENT(S): ---------------------------- ARUNDHATHI,D/O.CHAKKI,THODIYIL VEEDU, VAOKKOM DESOM, VAKKOM VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN-695141. BY ADV. SRI.LATHEESH SEBASTIAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 29-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OPC. NO.2745/2011 APPENDIX PETITIONER'S EXHIBITS. P1:- COPYOF THE DECREE DTD. 30.10.2007 IN OS 241`/2004 PASSED BY THE MUNSIFF COURT, VARKALA. P2:- COPY OF THE (a) PLAN ATTACHED TO THE DECREE. P3:- COPY OF THE ORDER DTD. 16.3.2009 PASSED IN EA.1472008 IN EP.51/2008 IN OS. 241/2004. P4:- COPY OF THE COMMISSION REPORT FILED BY THE ADVOCATE COMMISSIONER IN EA. 147/2008. P5:- COPY OF THE EA. 612/2009 FILED B THE PETITIONER BEFORE THE MUNSIF COURT, VARKALA. P6:- COPY OF THE ORDER DTD. 1.12.2010 IN EA.61/2009 PASSED BY THE MUNSIFF COURT VARKALA. P7:- COPY OF THE ORDER DTD. 1.12.2010 IN EA. 147/08 PASSED BY THE MUNSIFF COURT, VARKALA. P8:- COPY OF THE REVIEW PETITION, EA. 208/2010 FILED BY THE PETITIONER. P9:- COPY OF THE ORDER DTD. 12.4.2011 IN EA. 208/2010 PASSED BY THE MUNSIFF COURT, VARKALA. RESPONDENT'S EXHIBITS NIL TRUE COPY P.A. TO JUDGE tss A.V.RAMAKRISHNA PILLAI, J --------------------------------------------- O.P.(C) No.2745 of 2011 --------------------------------------------- Dated this the Ist day of January, 2013 JUDGMENT The petitioner is the defendant in O.S.No.241 of 2004 on the file of the Munsiff's Court, Varkala. The suit was filed by the respondent herein.
2. In the suit, the petitioner filed a counter claim. Ext.P1 is the decree passed by the trial court on the counter claim filed by the petitioner declaring the petitioner's title and possession over the claim schedule property.
3. The case of the petitioner is that even after the decree, the respondent began to create obstruction to the free possession and enjoyment of the plaint schedule property and therefore, the petitioner filed a petition to initiate execution proceedings against the respondent and to get the claim schedule property protected by constructing a compound wall. The E.A. was filed for appointing a Commissioner to locate the property and O.P.(C) No.2745 o”
2. supervise the construction. The E.A. was allowed by Ext.P3 order and a commissioner was appointed. However, when the commissioner visited the property, the respondent obstructed and declared that she would not permit construction of the compound wall. The commissioner filed Ext.P4 report requesting police aid. The petitioner filed E.A.No.61 of 2009 to get police aid to construct the compound wall. Ext.P4 petition was dismissed by Ext.P6 order.
4. The further case of the petitioner is that on the same day the court below passed Ext.P9 order on E.A.No.147 of 2008 which was already allowed by the court below. Therefore, the petitioner filed another petition E.A.No.208 of 2010 to review the order passed in E.A.No.61 of 2008. That also was dismissed. It is against this, the present Original Petition has been filed.
5. Arguments have been heard and the records were perused.
6. The petition is opposed by the learned counsel for the respondent contending that the decree obtained by the petitioner was only a decree declaring title to the claim schedule property and for prohibitory injunction. As O.P.(C) No.2745 o”
3. there was no prayer for fixation of boundary and putting up fence or boundary wall, the execution court was perfectly justified in refusing police aid to get the compound wall constructed; it was urged. But it has to be remembered that the trial court by decreeing the counter claim has declared title and possession of the petitioner over the plaint schedule property.
7. During the course of the trial, the property has been measured and Ext.P2 plan was obtained. Plot A, B, E, F and Plot F, E, H, G are the plots over which the petitioner got a decree in his favour. So long as his title and possession over the said portion is declared, he has every right to get the same protected from encroachment, especially, when there is prohibitory injunction against the respondent. It is for protecting the said property, the petitioner is intending to construct a compound wall. Evidently, this is being obstructed by the respondent. So long as the boundary is clear as per Ext.P2 Plan, there cannot be any objection by the respondent against the petitioner's construction of a compound wall within his property along B, E, H line. The petitioner would submit that he would be satisfied if police protection is afforded O.P.(C) No.2745 o”
4. for such construction.
8. The learned counsel for the respondent would submit that there is no such prayer in the applications filed by the petitioner before the execution court. So long as the identity of the property is clear and the title and possession over the plaint schedule property is declared by the trial court, it is only just and proper to allow the petitioner to enjoy the fruits of the decree.
9. In the result, the present petition is disposed of reserving the right of the petitioner to file a fresh petition before the execution court seeking police aid for construction of a compound wall in the claim schedule property along B E H line in Ext.P2 plan. If such a petition is filed, the same will be considered favourably by the execution court. No order as to costs. Sd/- A.V.RAMAKRISHNA PILLAI JUDGE css/ true copy P.S.TO JUDGE O.P.(C) No.2745 of 2011 5