IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12233 of 2009(O)
1. RAMAN. S/O.KUTTIKKATTIL NEDUMBURATHU
... Petitioner
Vs
1. JAYARAJ, S/O.KUTTIKKATTIL NEDUMBURATH
... Respondent
2. RAMACHANDRAN, S/O.DO IN..DO..
For Petitioner :SRI.K.JAYAKUMAR
For Respondent :SMT.T.D.RAJALAKSHMI
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :08/09/2010
O R D E R
HARUN-UL-RASHID, J.
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W.P.(C).No.12233 Of 2009
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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).
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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
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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
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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
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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
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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/-