IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 159 of 2010(O)
1. MURALEEDHARAN, S/O.RAGHAVAN ASARI,
... Petitioner
Vs
1. SADANANDAN ASARI, S/O.NARAYANAN ASARI,
... Respondent
For Petitioner :SRI.K.RAJESH KANNAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :18/10/2010
O R D E R
THOMAS P JOSEPH, J.
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O.P(C).No.159 of 2010
&
C.R.P.No.515 of 2010
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Dated this 18th day of October, 2010
JUDGMENT
This original petition and revision petition arise from separate
orders passed by the learned Additional Munsiff, Nedumangad on
E.A.Nos.8 and 9 of 2010, respectively in E.P.No.58 of 2008 in
O.S.No. 566 of 2003. Respondent No.1 obtained an ex parte
decree declaring his right of easement over plaint C schedule
pathway having a width of 6 feet. Alleging that obstruction was
caused to the said pathway he filed E.P.No.58 of 2008 for removal
of the obstruction. In the executing court an Advocate
Commissioner and Amin were appointed and they removed the
obstruction and submitted report. Petitioner/judgment debtor No.3
filed E.A.Nos.8 to 10 of 2010 alleging that the Advocate
Commissioner and Amin have transgressed the power granted to
them, trespassed into plaint B schedule property belonging to the
petitioner and cut down trees causing damages to the petitioner.
E.A.No.10 of 2010 was for a local inspection by the learned
Munsiff. E.A.No.8 of 2010 was to appoint an Advocate
Commissioner to assess the damages and E.A.No.9 of 2010 was for
O.P(C).No.159 of 2010 and C.R.P.No. 515 of 2010
: 2 :
recovery of damages from the respondent. PWs.1 to 3 were
examined and Exts.A1, A1(a) and C1 were marked. Executing
court found that there is no merit in the allegations made by
petitioner against the Advocate Commissioner and Amin and
dismissed all the applications. Ext.P2, order dismissing E.A.No.8 of
2010 is under challenge in O.P.No.158 of 2008. Dismissal of
E.A.No.9 of 2010 is under challenge in C.R.P. 515 of 2010.
Learned counsel for petitioner has contended that executing court
has not considered the evidence on record. According to the
learned counsel there is evidence to show that the trees standing in
plaint B schedule were cut at the instance of the respondent.
Learned counsel has also shown me some photographs of timber
(dried up) which according to learned counsel were standing in
plaint B schedule.
2. Ext.P1, order in E.A.No.10 of 2010 by which a request
for local inspection by the learned Munsiff was turned down is not
under challenge. What is under challenge is the order on
E.A.Nos.8 and 9 of 2010, respectively. It is not disputed that as per
the decree, right of respondent over plaint C schedule way having a
width of 6 feet was declared. For removal of obstruction from the
said pathway Advocate Commissioner and Amin (PWs.2 and 3)
O.P(C).No.159 of 2010 and C.R.P.No. 515 of 2010
: 3 :
were appointed. It is accordingly that the obstruction was removed
from the said pathway. Petitioner in his evidence as PW1 claimed
that trees standing in his property beyond plaint C schedule
pathway were cut and removed. Regarding that, what is available
is only the interested version of petitioner. PWs.2 and 3, Advocate
Commissioner and Amin gave evidence that only those obstructions
found in plaint C schedule way were removed. Exts.A1, A1(a) and
C1 also support that version of petitioner. Petitioner as PW1
admitted that even now width of plaint C schedule way (as stated in
the plaint and decree schedule) is only 6 feet. In other words it is
clear from that version of PW1 that there was no trespass into any
part of rest of property belonging to the petitioner. In other words,
the width of plaint C schedule has not been increased and it
remains to be six (6) feet. In that situation there is no reason to
think that while removing the obstruction from plaint C schedule
pathway, Advocate Commissioner and Amin trespassed into other
portions of property belonging to the petitioner and cut down trees
as alleged. The photographs now produced before me are neither
proved in evidence nor does it anyway support case of petitioner.
It is in the above circumstances that executing court was not
impressed by E.A.Nos.8 and 9 of 2010 and accordingly by separate
O.P(C).No.159 of 2010 and C.R.P.No. 515 of 2010
: 4 :
orders those applications were dismissed. I do not find reason to
interfere with the supervisory jurisdiction under Article 227 of the
Constitution or revisional power conferred on this court under
Section 115 of the Code of Civil Procedure.
Petitions are dismissed.
(THOMAS P JOSEPH, JUDGE)
Sbna/-