Vijayan vs Tellus
2021 Latest Caselaw 17829 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT
               THE HONOURABLE MR.JUSTICE V.G.ARUN
  WEDNESDAY, THE 1ST DAY OF SEPTEMBER 2021 / 10TH BHADRA,
                                 1943
                        OP(C) NO. 2604 OF 2015
 OS 669/2010 OF I ADDITIONAL MUNSIFF COURT, NEYYATTINKARA,
                          THIRUVANANTHAPURAM
PETITIONER/S:

           VIJAYAN
           AGED 49 YEARS
           S/O.DEVARAM, APPATTUVILA VEEDU, NALLOORVATTOM
           P.O., NEYYATTINKARA, KULATHOOR, NOW RESIDING AT
           D.V.BHAVAN, KAKKARAVILA, NEYYATTINKARA.
           BY ADV SRI.G.S.REGHUNATH


RESPONDENT/S:

    1      TELLUS
           S/O.AMBROSE KRIPA, KAKKAVILA, ERICHALLOOR DESOM,
           PLAMOOTTUKADA P.O., KARODU VILLAGE, TRIVADNRUM-
           695 026.
    2      SUPRABHA
           W/O.TELLUS, KAKKAVILA, ERICHALLOOR DESOM,
           PLAMOOTTUKADA P.O., KARODU VILLAGE, TRIVADNRUM-
           695 026.
           BY ADVS.
           SRI.V.G.ARUN (K/795/2004)
           SMT.INDULEKHA JOSEPH
           SRI.NEERAJ NARAYAN


    THIS     OP    (CIVIL)   HAVING   COME   UP   FOR    ADMISSION   ON

16.07.2021,       THE   COURT   ON    01.09.2021,       DELIVERED    THE

FOLLOWING:
 O.P.(C) No. 2604 of 2015
                                     2



                                  JUDGMENT

Dated this the 01st day of September, 2021

Petitioner was the defendant in O.S.No.669 of

2010 of the First Additional Munsiff's Court,

Neyyattinkara. The suit was filed by the

respondents, praying for a decree of permanent

prohibitory injunction restraining the defendant

from trespassing upon the southern portion of

plaint schedule properties including A schedule

building and annexing it to the existing southern

public pathway. Pending the suit, the parties

settled their disputes and entered into a

compromise. Thereupon, the suit was decreed

19.01.2011, in terms of the compromise. The

relevant terms of the compromise petition is

extracted here under;

(i) The defendant admits the plaintiff's title O.P.(C) No. 2604 of 2015

and possession over the plaint schedule property

marked as 'A, B, C, D, E , F in the plan appended

to the compromise (The plan is appended to this

judgment for easy reference).

(ii) The defendant will not cause any damage or

loss to the compound wall shown as line A to F,

the wall of the old building shown as line E to D

and the attached retaining wall, constructed for

strengthening the wall.

(iii) xxx

(iv) The plaintiffs have given the portion marked

as A, F, E, D, H, G to the defendant for using it

as a pathway. The plaintiffs will not obstruct the

defendants from using the said portion as a

pathway.

(v) xx

2. About four years after the decree, the

respondents filed E.P.No.136 of 2015 alleging that O.P.(C) No. 2604 of 2015

the petitioner had demolished the retaining wall

attached to the building wall (E to D line). The

respondents therefore prayed for a direction to

restore the demolished portion under the

supervision of an Advocate Commissioner and to

recover the cost of construction from the

petitioner. The petitioner filed objection stating

that the retaining wall had detached from the

building wall over the years and it was the

respondents who had demolished that portion with

the oblique motive of reducing the width of the

pathway. The execution court deputed an Advocate

Commissioner to report about the present condition

of the building, the pathway and the retaining

wall. Accordingly, Ext P4 report was filed, based

on which the impugned Ext.P3 order was passed

allowing the respondents/decree holderS to restore

the retaining wall as per the description in the O.P.(C) No. 2604 of 2015

Commissioners report and as a continuation of the

existing portion of the retaining wall,

maintaining the same width. Aggrieved, this

original petition is filed.

3. Heard, Sri. G.S.Raghunath, learned Counsel

for the petitioner and Sri.Arun V.G, learned

Counsel for the respondent.

4. Learned Counsel for the petitioner

contended that the execution court grossly erred

in directing restoration of the retaining wall,

without specifying its width. While directing

reconstruction, the court should have directed to

maintain the width of the pathway as shown in

plan. Ext.P4 report is filed without ascertaining

the requisite details and is lacking in material

particulars and hence, the same Advocate

Commissioner should not be deputed to supervise

the work. The execution petition is filed with the O.P.(C) No. 2604 of 2015

mala fide intention of reducing the width of the

pathway.

5. Per contra, learned Counsel for the

respondent contended that the impugned order

warrants no interference, since the existence of

the retaining wall at the time when the compromise

decree was passed and its collapse, for whatever

reason, subsequent to the decree, is not in

dispute. Referring to Ext.P4 report it is

submitted that the length of the retaining wall is

4.2 metres and its height, 4 metres. Attention is

drawn to the statement in the report that the wall

of the building is constructed with raw bricks and

unless the retaining wall is reconstructed, there

is every possibility of the building itself

collapsing.

6. There is no dispute with respect to the

existence of the retaining wall and of a portion O.P.(C) No. 2604 of 2015

of the wall having collapsed. The petitioner has

no objection to the retaining wall being

reconstructed, but is apprehensive that such

construction might result in the width of the

pathway being reduced. The apprehension is

misplaced since the direction in the impugned

order is to restore the retaining wall as per the

description in the commission report and as a

continuation of the existing portion. At the same

time, it has to be assured that the restoration is

in accordance with the measurements in the plan.

The suit having been decreed in the year 2011

based on compromise, it will be in the interest of

both parties to restore the retaining wall and

thereby give a quietus to the dispute at the

earliest. Neither party having filed objection to

Ext.P4 report, the same Advocate Commissioner can

be appointed to supervise the restoration work. O.P.(C) No. 2604 of 2015

Accordingly, the original petition is disposed

of, directing the execution court to permit the

respondents to restore the collapsed portion of

the retaining wall under the supervision of the

Advocate Commissioner. The construction shall be

done strictly in accordance with the appended

plan (E--D line) and as a continuation of the

existing portion of the retaining wall,

maintaining the same width. The Execution Court

shall ensure that the restoration work is carried

out as expeditiously as possible and at any rate

within two months of receipt of a copy of this

judgment.

Sd/-

V.G.ARUN JUDGE Scl/ O.P.(C) No. 2604 of 2015

APPENDIX OF OP(C) 2604/2015

PETITIONER EXHIBITS EXT.P1.TRUE COPY OF THE COMPROMISE PETITION THE DECREE DATED 19/1/2011 AND THE PLAN ATTACHED TO ITS IN OS NO.669/2010 ON THE FILE OF THE 1ST ADDL. MUNSIFF'S COURT, NEYYATTINKARA. EXT.P2.TRUE COPY OF THE EP NO.136/2015 IN OS 669/2010.

EXT.P3.TRUE COPY OF THE ORDER DATED 13/10/2015 IN EP NO.136/2015 IN OS NO.669/2010 ON THE FILE OF THE 1ST ADDL.MUNSIFF'S COURT, NEYYATTINKARA EXT.P4.TRUE COPY OF THE COMMISSION REPORT IN OS NO.669/2010 ON THE FILE OF THE 1ST ADDL. MUNSIFF'S COURT, NEYYATTINKARADATED 10/7/2015.