Dismissed

Pankajakshiyamma v. Gowrikuttiyamma

Kerala HC4 Oct 2012CRP/210/2011

Case brief

AI extract

What is this about?

This order dismisses a civil revision petition challenging the lower court's permission to cut shrubs and bushes overgrown on a pathway to effectuate an easement right decree. The High Court held that the execution court acted within its jurisdiction under CPC Order XXI Rule 32(5) and the Indian Easements Act, with specific guidelines protecting older trees.

What did the court decide?

The civil revision petition was dismissed, upholding the lower court order permitting the removal of vegetation sparing trees over 30 years.

Pankajakshiyamma Vs Gowrikuttiyamma — Property and Title | Kerala HC (2012)

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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 V.CHITAMBARESH

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THURSDAY, THE 4TH DAY OF OCTOBER 2012/12TH ASWINA 1934

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CRP.No. 210 of 2011 ( )

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OS.105/2001 of PRINCIPAL MUNSIFF COURT, KOTTAYAM

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REVISION PETITIONER(S)/FIRST RESPONDENT /1ST JUDGMENT DEBTOR:

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PANKAJAKSHIYAMMA,MATTAKKOTTUKIZHAKKETHIL THIRUVANCHOOR, MANARKADU VILLAGE, KOTTAYAM.

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BY ADV. SRI.R.SUDHIR

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RESPONDENT(S):

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GOWRIKUTTIYAMMA,MATTAKKOTTUPADINJARETHIL THIRUVANCHOOR, MANARKADU VILLAGE, KOTTAYAM.

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PIN - 686 001.

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THE KOTTAYAM CO-OPERATIVE HOUSING SOCIETY, REPRESENTED BY ITS PRESIDENT, K.K.ROAD KOTTAYAM, PIN - 686 001.

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R1 BY ADV. SRI.ABRAHAM GEORGE JACOB

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V.CHITAMBARESH, J.

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C.R.P.No. 210 of 2011

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Dated this the 4^th day of October, 2012

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O R D E R

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The suit in O.S.No.105 of 2011 on the file of the court of the Principal Munsiff of Kottayam was decreed as follows:-

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That the suit be and is hereby decreed declaring that the plaintiff has acquired easement right by prescription over plaint item No.4 pathway and restraining the 1^st defendant or anybody under her from obstructing the plaintiffs user of plaint item No.4 pathway by permanent prohibitory injunction. Considering the facts and circumstances of the case, there will be no order as to costs.

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Item No.4 of the decree schedule property is a pathway having a total length of 200 meters and the same has been identified by the Advocate Commissioner in the suit. The decree holder in order to give effect to the decree sought permission to cut the over grown shrubs and bushes from the decree schedule item No.4 pathway which has been allowed by

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C.R.P.No.210 of 2011

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the court below by the order impugned.

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The petitioner/judgment debtor contends that the execution court cannot go behind the decree and that the decree does not empower the removal of shrubs and bushes from Item No.4 pathway as sought by the decree holder. The decree holder was only giving effect to the decree while removing the shrubs and bushes so that he can use Item No.4 pathway over which a right of easement by prescription has been declared in his favour. The court below in allowing the prayer put in by the decree holder has acted in accordance with order XXI Rule 32(5) of the Code of Civil Procedure which permits any of the acts to be done to give effect to the decree.

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Moreover Section 24 of the Indian Easements Act, 1882 enables the dominant owner to do all acts necessary to secure the full enjoyment of the easement. Such acts must ofcourse be done without detriment to the dominant owner and by causing as little inconvenience as possible to the servient owner. The court below in the order impugned has clarified that no tree which is aged more than 30 years standing in Item No.4

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C.R.P.No.210 of 2011

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property shall be cut by the decree holder in the exercise. Therefore as little inconvenience as possible will be caused to the servient owner by removal of vegetation and bushes only and sparing the trees aged over 30 years existing in the pathway.

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The order of the court below cannot be said to suffer from any error of jurisdiction warranting interference under Section 115 of the Code of Civil Procedure. The Civil Revision Petition fails and is dismissed.

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V.CHITAMBARESH, Judge.

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nj.

Pankajakshiyamma v. Gowrikuttiyamma

Case brief

What is this about?

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Pankajakshiyamma v. Gowrikuttiyamma

Case brief

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What did the court decide?

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