Dismissed

Jaleel v. Rajan

Kerala HC28 Jan 2011OP(C)/386/2011

Case brief

AI extract

What is this about?

This is an Original Petition challenging the dismissal of an application filed in execution proceedings. The petitioners contested a Commissioner's report stating a pathway was two metres wide, arguing it was four metres. The High Court dismissed the petition, holding the exact width was irrelevant to determining the injunction violation. The reported width was deemed sufficient for disposing of t

What the court decided

AI extract

Jaleel Vs Rajan — Property and Title | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE K.T.SANKARAN

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FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932

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OP(C).No. 386 of 2011(O)

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EA 105/2009 IN E.P.NO.73/2008 IN OS.44/1996 OF MUNSIFF'S COURT,HARIPAD

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PETITIONERS: JUDGMENT DEBTORS:

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JALEEL, S/O.ANSARKUNJU, VALIYATHARA KISHAKKATHIL, CHINGOLI MURI, CHINGOLI VILLAGE.

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REGUNATHAN, S/O.RAGHAVAN, VALIYATHARAYIL, CHINGOLI MURI, CHINGOLI VILLAGE.

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BY ADV. SRI.M.V.THAMBAN

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SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SMT.REVATHY P.NAIR

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RESPONDENTS:

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RAJAN, S/O.VASU, THUNDUPARAMBIL, CHINGOLI MURI, CHINGOLI VILLAGE-690 532.

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SHYLAJA, W/O.RAJAN, THUNDUPARAMBIL, CHINGOLI MURI, CHINGOLI VILLAGE-690 532.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.T.SANKARAN, J.

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O.P.(C). NO. 386 OF 2011 O

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Dated this the 28^th day of January, 2011

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JUDGMENT

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The respondents filed O.S.No.44 of 1996 on the file of the Court of the Munsiff of Haripad against the petitioners for a permanent prohibitory injunction restraining them from trespassing into the plaint schedule property, destroying its boundaries, constructing any new road through the plaint schedule property and committing waste therein. The suit was decreed exparte on 12.4.1996.

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The respondents filed E.P.No.73 of 2008 alleging that the petitioners violated the decree. In the Execution Petition, a Commissioner was appointed, who filed a report. The petitioners filed E.A.No.105 of 2009 to set aside the Commissioner's report. The court below, by the order dated 15.10.2010 dismissed that application. The order dated 15.10.2010 is under challenge in this Original Petition.

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O.P.(C) NO.386 OF 2011

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:: 2 ::

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The contention of the petitioners is that the report of the Commissioner to the effect that the way is having a width of two metres is wrong. The pathway was widened by the panchayat and the present width of the pathway is four metres. The Commissioner's report is sought to be set aside on the ground that the width of the pathway was not correctly shown in the report.

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The court below held that it is not very relevant whether the width of the pathway is four metres or two metres. The question is whether the width of the pathway was widened in violation of the decree passed in the suit. For that purpose, it is not necessary to set aside the Commissioner's report.

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The order passed by the court below is legal and proper. The court below considered all the relevant aspects of the case and held that the objections to the Commissioner's report are not sufficient to set aside the report.

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Learned counsel for the petitioners submitted that on a reading of the order passed by the court below, it would appear that

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O.P.(C) NO.386 OF 2011

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:: 3 ::

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the court below has concluded that the petitioners are guilty of having violated the decree. I have carefully gone through the order. It cannot be said that the court below has arrived at any conclusion on the question of violation of the decree. The court below was considering the question whether it was necessary to set aside the Commissioner's report. In that context, the court below held that the Commissioner's report is sufficient for the purpose of disposal of the Execution Petition. The petitioners cannot isolate some sentences in the order and make their own interpretation. I do not think that any interference is called for.

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For the aforesaid reasons, the Original Petition is dismissed.

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(K.T.SANKARAN) Judge

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ahz/

Jaleel v. Rajan

Case brief

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Jaleel v. Rajan

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