Vijayamma Ramadas vs Leena Susan Koshy
2021 Latest Caselaw 1788 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MR. JUSTICE SATHISH NINAN

     MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942

                        OP(C).No.1901 OF 2020

 E.P.NO.46/2019 IN OS 137/2013 DATED 07-12-2020 OF MUNSIFF COURT,
                           MAVELIKKARA

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PETITIONER:

               VIJAYAMMA RAMADAS
               AGED 58 YEARS
               D/O.GOWRIAMMA CHINNA, VIJAYA SADANAM,
               MAVELIKARA, ALAPUZHA-690 101.

               BY ADV. SMT.V.VIJITHA

RESPONDENTS:

      1        LEENA SUSAN KOSHY
               D/O.KOSHY HAPPEN,
               PALAMOOTTIL VADAKKETHIL KOSHY'S VILLA,
               KOTTARKAVU, MAVELIKARA-690 101.

      2        SEENA ELIZABETH KOSHY,
               D/O.KOSHY HAPPEN,
               PALAMOOTTIL VADAKKETHIL KOSHY'S VILLA,
               KOTTARKAVU, MAVELIKARA-690 101.

      3        SHAREENA MARY ANN KOSHY,
               D/O.KOSHY HAPPEN,
               PALAMOOTTIL VADAKKETHIL KOSHY'S VILLA,
               KOTTARKAVU, MAVELIKARA-690 101.

               R1, R3 BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL

     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                   SATHISH NINAN, J.
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              O. P. (C) No.1901 of 2020
         ==================
        Dated this the 18th day of January, 2021

                             JUDGMENT

The suit for declaration of easement right over

the plaint 'D' schedule way and for mandatory injunction for removal of a gate installed at the

entrance of the plaint 'D' schedule way, was

decreed by the first appellate court in the

following terms:-

"Suit is decreed. It is hereby declared that the plaintiffs have got right of easement by grant over the plaint D schedule way. The defendant is directed to remove the gate installed at the entrance of the plaint D schedule way from the public road on the western road within three months from the date of the decree, failing which the plaintiffs will be entitled to remove the gate through court and to recover the expenses incurred thereon from the defendant. Further the defendant and all persons claiming under or through her are restrained permanently from causing any obstruction to the user of plaint D schedule way by the plaintiffs."

O. P. (C) No.1901 of 2020

2. The decree was affirmed by this Court in RSA

74/2019.

3. The decree holder-respondent sought for

execution as per EP 46/2019. The petitioner-

judgment debtor filed objections contending that,

subsequent to the decree passed in the suit, the

decree holder encroached a portion of the plaint

'D' schedule way, whereupon the petitioner-judgment

debtor has filed a suit as OS 122/2019 for

mandatory injunction to remove the encroachments.

According to the petitioner-judgment debtor, the

subject matter of the decree has ceased to exist

and the decree could not be executed.

4. I am unable to accept the contention of the

judgment debtor-petitioner. Admittedly the decree

for mandatory injunction, for removal of the gate

placed at the entrance of the plaint 'D' schedule

way was not obeyed by the judgment debtor. It is

seeking enforcement of the decree that the

execution petition is filed. It has nothing to do

with the suit presently filed by the judgment

debtor. Admittedly the gate is still in existence. O. P. (C) No.1901 of 2020

As per the decree sought to be enforced, the gate

is liable to be removed. The contention of the

judgment debtor lacks merit.

Original petition fails and is accordingly

dismissed.

Sd/-

SATHISH NINAN JUDGE

kns/-

//True Copy// P.S. to Judge APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ABOVE JUDGMENT DATED 22.08.2015 IN OS 137/2013 OF THE HON'BLE MUNSIFF COURT, MAVELIKARA.

EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 04.01.2019 IN AS 83/2017 OF THE HON'BLE SUB JUDGE, MAVELIKARA.

EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 11.02.2019 IN RSA 94/2019.

EXHIBIT P4 TRUE COPY OF THE PLAINT IN OS 122/2019 BEFORE THE HON'BLE MUNSIFF'S COURT, MAVELIKARA.

EXHIBIT P5 TRUE COPY OF THE COMMISSION REPORT DATED 06.04.2019 IN OS 122/2019 ALONG WITH THE SKETCH.

EXHIBIT P6 TRUE COPY OF THE EP NO.46/2019 IN OS 137/2013.

EXHIBIT P7 TRUE COPY OF THE OBJECTION FILED BY THE PETIITONER IN EP NO.46/2019 IN OS 137/2013.

EXHIBIT P8 TRUE COPY OF THE ORDER DATED 07.12.2020 IN EP NO.46/2019 IN OS 137/2013.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R1A A TRUE COPY OF THE DECREE DATED 04/01/2019 PASSED BY THE SUB COURT,MAVELIKARA IN A.S.NO.83/2017.

EXHIBIT R1B A TRUE COPY OF THE COMPROMISE PETITION FILED BEFORE THIS HON'BLE COURT IN SA.NO.171/1972.

O. P. (C) No.1901 of 2020

EXHIBIT R1C A TRUE COPY OF THE JUDGMENT DATED 17/07/1972 OF THIS HON'BLE COURT IN S.A.NO.171/1972.

EXHIBIT R1D A TRUE COPY OF THE RECEIVER'S REPORT AND PLAN IN OS.NO.,393/1966 OF THE MUNSIFF'S COURT, MAVELIKKARA.

EXHIBIT R1E A TRUE COPY OF THE RE SURVEY PLAN OF FIELD NO.62 OF MAVELIKARA VILLAGE.

EXHIBIT R1F A TRUE COPY OF THE THANDAPER EXTRACT REGISTER OF THE WAY IN RE-SURVEY NO.62/15 OF MAVELIKARA VILLAGE.

EXHIBIT R1G A TRUE COPY OF THE THANDAPER EXTRACT OF THE LAND IN RE-SURVEY NO.62/14 OF MAVELIKARA VILLAGE.

EXHIBIT R1H A TRUE COPY OF THE PLAINT IN O.SNO.137/2013 OF THE MUNSIFF'S COURT, MAVELIKARA.

EXHIBIT R1I A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.S.NO.137/2013 OF THE MUNSIFF'S COURT, MAVELIKARA.

EXHIBIT R1J A TRUE COPY OF THE COMMISSION REPORT IN O.S.NO.137/2013 OF THE MUNSIFF'S COURT, MAVELIKARA.

EXHIBIT R1K TRUE COPY OF WILL 65/2014/III OF SRO, MAVELIKARA.

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