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Subaida vs George Benjamin

Subaida vs George Benjamin

Type Court Judgment Court Kerala Decided Aug 23, 2023
~3 min read
https://sooperkanoon.com/case/1383518

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Citation
Court
Kerala High Court
Judge
Decided On
Case Number
RP/867/2023

Parties & Advocates

Appellant / Petitioner

Subaida

Respondent

George Benjamin

Excerpt

.....varghese, anchilveedu, punnapramuri, punnapra village, 7 thressiyamma varghese, poonthrasseryveedu, punnapra,this review petition having come up for admission on 23.08.2023, the court on the same day delivered the following:orderthis review is, in fact, yet another attempt on the part of a judgment debtor to defeat and deny the fruits of a decree which has attained finality and conclusiveness. the suit was fought up to the second appeal and ultimately a decree was granted fixing the boundary of property and declaration of title and also a decree of perpetual prohibitory injunction against trespass and enjoyment. admittedly it has become final and conclusive. when it was put in execution, a strange contention was raised by thejudgment debtor that they are not liable to removethe shed constructed encroaching on a portion of property owned by the plaintiffs/decree holders on the reason that no decree of recovery of possession was granted in that suit, presumably no relief was sought in that behalf. the execution court has allowed the application filed by the judgment debtor without knowing the decree which was passed and attained finality. it is a comprehensive decreedeclaring the title of plaintiff fixing the boundary of their property with that of the defendant and by granting a prohibitory injunction not to trespass or encroach upon any portion of the property. the grant of a decree fixing boundary coupled with declaration of title and permanent prohibitory injunction would imply that the court has found possession of the property by the decree holder up to the place wherein the boundary line was fixed and restrained the opposite party not to meddle with the boundary or to commit trespass. since it is a comprehensive decree, it would show the possession of property up to the boundary line fixed. otherwise, there is no occasion for granting a permanent prohibitory injunction against trespass. the grant of a permanent injunction by way of decree up to the place.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 23RD DAY OF AUGUST 2023 / 1ST BHADRA, 1945 AGAINST THE ORDER/JUDGMENT IN CRP 475/2015 OF HIGH COURT OF KERALA REVIEW PETITIONER/1ST RESPONDENT IN CRP: SUBAIDA, AGED 75 YEARS, W/O, SALEEM RESIDING AT ANCHIL VELITIL, PUNNAPRAMURI, PUNNAPRA VILLAGE, ALAPPUZHA DISTRICT - 688004 BY ADV S.SUJINI RESPONDENTS/PETITIONERS 1 TO 5 & RESPONDENTS 2 TO 3 IN CRP:

1 GEORGE BENJAMIN, S/O BENJAMIN RESIDING AT POLLAYILVEEDU, PUNNAPRAMURI, PUNNAPRA VILLAGE, 2 PHILOMINA KOCHUMPARAMBU POLLAYIL VEEDU, PUNNAPRAMURI, PUNNAPRA VILLAGE, 3 SOOSAMMA PETER MARIYA POZHIYIL, THAIKKAL P O, CHERTHALA, ALAPPUZHA- 688530 4 REETHAMMA, ANACKAL PURACKAL, VADACKAL, ALAPPUZHA - 680003 5 LILLYKKUTTY, SASTHAMPARAMBIL, KATTOORMURI, KALAVOOR, ALAPPUZHA - 688522 6 ELSY VARGHESE, ANCHILVEEDU, PUNNAPRAMURI, PUNNAPRA VILLAGE, 7 THRESSIYAMMA VARGHESE, POONTHRASSERYVEEDU, PUNNAPRA,

THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 23.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

ORDER

This review is, in fact, yet another attempt on the part of a judgment debtor to defeat and deny the fruits of a decree which has attained finality and conclusiveness. The suit was fought up to the second appeal and ultimately a decree was granted fixing the boundary of property and declaration of title and also a decree of perpetual prohibitory injunction against trespass and enjoyment. Admittedly it has become final and conclusive. When it was put in execution, a strange contention was raised by the

judgment debtor that they are not liable to remove

the shed constructed encroaching on a portion of property owned by the plaintiffs/decree holders on the reason that no decree of recovery of possession was granted in that suit, presumably no relief was sought in that behalf. The execution court has allowed the application filed by the judgment debtor without knowing the decree which was passed and attained finality. It is a comprehensive decree

declaring the title of plaintiff fixing the boundary of their property with that of the defendant and by granting a prohibitory injunction not to trespass or encroach upon any portion of the property. The grant of a decree fixing boundary coupled with declaration of title and permanent prohibitory injunction would imply that the court has found possession of the property by the decree holder up to the place wherein the boundary line was fixed and restrained the opposite party not to meddle with the boundary or to commit trespass. Since it is a comprehensive decree, it would show the possession of property up to the boundary line fixed. Otherwise, there is no occasion for granting a permanent prohibitory injunction against trespass. The grant of a permanent injunction by way of decree up to the place wherein boundary fixed implies possession up to that place (up to that boundary line) by the plaintiff. Hence, the contention raised by the judgment debtor is so strange, cannot be sustained.

2. Hence, the revision was allowed by this court

on the abovesaid grounds. It is against that judgment, the judgment debtor again ventured to file this review, that too, without any reason whatsoever. Even if it is found that the shed in question was constructed prior to the disposal of the suit. The grant of permanent prohibitory injunction would operate against the judgment debtor and shall stand bound by the constructive res judicata based on the principle of “deemed to have been raised” and “deemed to have been rejected” under explanation IV attached to Section 11 CPC. If it is a subsequent encroachment, the judgment debtor has to face legal consequences under Order XXI CPC including arrest and detention for the violation of decree of prohibitory injunction. The Review Petition hence fails and is dismissed.

Sd/- P.SOMARAJAN JUDGE msp

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