S.GIRIJA KUMARI v. RAJENDRAN

OP(C) NO. 483/2012EXT.P-17TRUE PHOTOCOPY OF THE PRELIMINARY REPORT DATED 04.01.2008.EXT.P-18TRUE PHOTOCOPY OF THE REPORT DATED 05.01.2008.EXT.P-19TRUE PHOTOCOPY OF THE APPLICATION IN EA 224/2008 IN EP NO. 106/2007 DATED 01.03.2009.EXT.P-20TRUE PHOTOCOPY OF THE APPLICATION IN EP NO. 278/2009 DATED 06.08.2009.EXT.P-21TRUE PHOTOCOPY OF THE APPLICATION IN EA 17/2010 IN EP NO. 278/2009 DATED 07.01.2010.EXT.P-22TRUE PHOTOCOPY OF THE OBJECTION DATED 21.01.2010.EXT.P-23TRUE PHOTOCOPY OF THE STATEMENT. RESPONDENTS' EXHIBITS EXT.R2(a)ROUGH PLAN SHOWING THE FILE OF THE PROPERTIES OF THE PETITIONER, THIS RESPONDENT (NO. 2) ETC.EXT.R2(b)COPY OF THE JUDGMENT DATED 24.09.2003 IN O.S. NO. 386/2000 OF FIRST ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM.EXT.R2(c)COPY OF THE DECREE DATED 24.09.2003 IN O.S. NO. 386/2000 OF FIRST ADDITIONAL MUNSIFFLS COURT, THIRUVANANTHAPURAM.EXT.R2(d)COPY OF THE COMMISSIONER'S PLAN IN O.S. NO. 386/2000 OF FIRST ADITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM.EXT.R2(e)COPY OF THE COMMISSIONER'S REPORT IN O.S. NO. 386/2000 OF FIRST ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM.EXT.R2(f)COPY OF THE JUDGMENT DATED 21.06.2010 IN A..S. NO. 93/2004.EXT.R2(g)COPY OF THE ORDER DATED 27.06.2011 PASSED IN THE REVIEW PETITION FILED AS IA 3993/2010EXT.R2(h)COPY OF THE PLAINT IN O.S. 1/2001 OF THE PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM.EXT.R2(i)COPY OF THE JUDGMENT DATED 11.08.2006 IN O.S. 1/2001 OF THE PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM.EXT.R2(j)COPY OF THE COMMISSION REPORT AND PLAN DATED 30.01.2008 IN E.P. 106/2007 IN O.S. NO. 1/2001 SUBMITTED BY THE COMMISSIONER./TRUE COPY/P.A. TO JUDGE. V. CHITAMBARESH, J--------------------------------OP(C) NO. 483 OF 2012------------------------------------Dated this the 1st day of August, 2012JUDGMENTO.S. No. 1/2001 on the file of the court of the PrincipalMunsiff of Thiruvananthapuram was one for a decree ofpermanent prohibitory injunction and also for permission toput up a boundary wall. The second plaintiff as well asdefendant Nos. 3 and 5 entered into a compromise amongstthemselves in the midst of suit. The other plaintiffs as well asdefendant Nos. 1, 2 and 4 did not join the compromise. Thesuit was decreed in terms of the compromise as againstpersons who are parties thereto. The suit was dismissed asagainst defendant Nos. 1, 2 and 4 who did not join thecompromise.2.The fifth defendant thereafter constructed aboundary wall pursuant to the compromise decree. DefendantNos. 1 and 2 thereafter moved the execution court fordemolition of the compound wall and restoration of status quoante. The same was allowed by the execution court by orderdated 12.11.2009 in E.P. No. 278/2009. The operative part of 2OP(C) No. 483/2012the order reads as follows:“The Commissioner is directed tosupervise the work of the Amin inimplementing the order dated 07.11.2008in E.A. No. 224/2008 in E.P. No. 106/2007and to report the expenses for demolishingthe compound wall constructed in the'FGHIJ' line shown in Ext.C1(a) plan and torestore the boundary to its originalposition.”This was in tune with the judgment in WP(C) No. 34712/2008filed against the order passed earlier in execution which readsas follows:“I find there is no impropriety orillegality in the order passed by thelearned Munsiff directing for removal ofthe compound wall put up in 'FGHIJ' lineby the petitioner with the assistance ofthe Advocate Commissioner and theAmin in execution of the compromisedecree in which the first and secondrespondents were not parties and furtherthe suit in which such compromise wasentered had been dismissed as againstthem”. It is discernible from both the orders that restoration of statusquo ante would end by the demolition of the compound walland razing it to the ground.3.The Advocate Commissioner in implementation ofthe orders referred to above demolished the compound wall 3OP(C) No. 483/2012with the help of Amin and other labourers. This is evident bythe final report dated 20.01.2010 of the AdvocateCommissioner. The defendants 1 and 2 thereafter filed E.A.No. 17/2010 seeking to restore the boundary of the propertyinvolved in the dispute. Defendants 1 and 2 relied on thereport and plan of the Advocate Commissioner filed in O.S.No. 386/2000 on the file of the court of the Munsiff ofThiruvananthapuram in relation to the same property. Thatwas a suit filed by the additional fifth defendant againstdefendants 1 and 2 for declaration of title, fixation ofboundary and injunction. The suit was dismissed.4.The court below has by the order impugneddirected the Advocate Commissioner to restore the boundarywall along JE line. The court below was persuaded to accedeto the request of defendants 1 and 2 presumably on the basisof a rough sketch dated 30.01.2008 submitted by the AdvocateCommissioner in the execution proceeding. The decree inO.S. No. 1/2001 does not any where fix the boundary betweenthe property of additional fifth defendant and defendants 1and 2. The high handed action of the additional fifth 4OP(C) No. 483/2012defendant in constructing the boundary wall was put down.The compound wall was directed to be razed to the ground.This has been done by the Advocate Commissioner as reportedby him and nothing more remains as per the order dated12.11.2009 in E.P. No. 278/2009.5.A further identification of the boundary betweenthe property of the additional fifth defendant and defendants 1and 2 can only be done by a separate suit. Defendants 1 and 2can of course rely on the report and plan in O.S. No. 386/2000to which the additional fifth defendant was also a party. Butthen defendants 1 and 2 should be armed with a decree forfixation of boundary line separating the property. Suchexercise cannot be permitted in execution of the decree inO.S. No. 1/2001 especially in the realm of Section 47 of theCode of Civil Procedure.6.The order impugned in E.A. No. 17/2010 in E.P. No.278/2009 in O.S. No. 1/2001 is set aside. This is howeverwithout prejudice to the right of defendants 1 and 2 to file afresh suit against the additional fifth defendant for fixation ofboundary line in accordance with law. The court below shall 5OP(C) No. 483/2012enter full satisfaction of the decree in O.S. No. 1/2001 underthe circumstances and close the execution applicationspending.The Original Petition is disposed of as above. No costs.V. CHITAMBARESH JUDGEncd