Partly allowed

Babu Scaria v. Mariyamma Joseph

Kerala HC16 Oct 2012CRP/476/2011

Case brief

AI extract

What is this about?

The High Court of Kerala modified an order under Order XXI Rule 32 CPC in a civil revision petition. The court recorded that the decree holder relinquished the right to demolish a portico trespassing on the schedule road and modified the eviction order accordingly, relieving the petitioner of liability for natural vegetation without a finding of trespass. The Civil Revision Petition was disposed o

What did the court decide?

The order directing obstruction removal under Order XXI Rule 32 CPC was modified to reflect the decree holder's waiver of demolition rights; petitioner relieved of liability for natural vegetation.

Babu Scaria Vs Mariyamma Joseph — 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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TUESDAY, THE 16TH DAY OF OCTOBER 2012/24TH ASWINA 1934

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CRP.No. 476 of 2011 ( )

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OS.114/1999 of MUNSIFF COURT,KATTAPPANA

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REVISION PETITIONER(S)/(RESPONDENT IN EP):

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BABU SCARIA, AGED 45, S/O.SCARIA, ANCHARICKAL HOUSE, LABBAKADA, KANCHIYAR P.O. KATTAPPANA.

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BY ADV. SRI.S.SACHITHANANDA PAI

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RESPONDENT(S)/(DECREE HOLDER IN EP):

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MARIYAMMA JOSEPH, D/O.LATE JOSEPH, ELIPULIKKATTU HOUSE, PALLIKAVALA, KANCHIYAR P.O. KATTAPPANA - 686 065.

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R, BY ADV. SRI.A.C.DEVASIA

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V.CHITAMBARESH, J.

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C.R.P.No. 476 OF 2011

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Dated this the 16^th day of October, 2012

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O R D E R

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The plaint 'C' schedule road in O.S.No.114 of 1999 on the file of the court of the Munsiff of Kattappana is the plaint 'B' schedule property in O.S.No.1 of 1995 on the file of the court of the Subordinate Judge of Kattappanna. O.S.No.1 of 1995 was decreed restraining the defendants therein from widening the plaint 'B' schedule pathway into a road of 8 feet. O.S.No.114 of 1999 was decreed in appeal restraining the defendants therein from obstructing the use of the plaint 'C' schedule way.

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The decree in O.S.No.114 of 1999 as granted in A.S.No.72 of 2003 on the file of the file of the court of the Subordinate Judge of Kattappana is later in point of time. It takes note of the decree in O.S.No.1 of 1995 while over ruling the plea of resjudicata and further declares easement right over the plaint 'C' schedule way. It also reported that an appeal filed against O.S.No.1 of 1995 as A.S.No.16/1998 was disposed of without prejudice to the right of the parties to agitate the

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C.R.P.No.476 of 2011

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question of easement in O.S.No.114 of 1999 pending.

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The respondent/decree holder has given up before me the right to demolish any portion of the portico trespassing into plaint 'C' schedule road. This is recorded. It is submitted that the portico extends upto a length of one feet into plaint 'C' schedule road and further trespass alone is objectionable. The respondent is entitled to clear the plaint 'C' schedule road of all obstructions as stipulated in the decree at his own expense. I hold so since there is no finding by the court below that the cultivation was done by the petitioner/judgment debtor trespassing into the plaint 'C' schedule way. The marshy growth therein can as well be due to natural vegetation for which the petitioner need not be mulcted with any liability.

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The Advocate Commissioner deputed in O.S.No.114 of 1989 (Mr.V.A.George) shall accompany the Amin to identify the plaint 'C' schedule road and remove the obstruction therein. The same shall be done after giving prior notice to the petitioner as well as the respondent well ahead of the local inspection. Nothing said in this judgment will affect

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C.R.P.No.476 of 2011

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E.A.No.37/2012 in E.P.No.12/2010 in O.S.No.114/1999 filed by the petitioner under Section 47 of the Code of Civil Procedure. The impugned order of the court below directing the obstruction to be removed under Order XXI Rule 32 of the Code of Civil Procedure is modified accordingly.

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The Civil Revision Petition is disposed of. No costs.

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V.CHITAMBARESH, Judge.

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nj.

Babu Scaria v. Mariyamma Joseph

Case brief

What is this about?

What did the court decide?

Babu Scaria v. Mariyamma Joseph

Case brief

What is this about?

What did the court decide?

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