Subaida vs George Benjamin
2023 Latest Caselaw 9200 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR. JUSTICE P.SOMARAJAN
     WEDNESDAY, THE 23RD DAY OF AUGUST 2023 / 1ST BHADRA, 1945
                         RP NO. 867 OF 2023
AGAINST THE ORDER/JUDGMENT IN CRP 475/2015 OF HIGH COURT OF KERALA
REVIEW PETITIONER/1ST RESPONDENT IN CRP:

            SUBAIDA,
            AGED 75 YEARS,
            W/O, SALEEM RESIDING AT ANCHIL VELITIL, PUNNAPRAMURI,
            PUNNAPRA VILLAGE, ALAPPUZHA DISTRICT - 688004
            BY ADV S.SUJINI


RESPONDENTS/PETITIONERS 1 TO 5 & RESPONDENTS 2 TO 3 IN CRP:

    1       GEORGE BENJAMIN, S/O BENJAMIN RESIDING AT
            POLLAYILVEEDU, PUNNAPRAMURI, PUNNAPRA VILLAGE,
            ALAPPUZHA DISTRICT - 688004
    2       PHILOMINA KOCHUMPARAMBU
            POLLAYIL VEEDU, PUNNAPRAMURI, PUNNAPRA VILLAGE,
            ALAPPUZHA DISTRICT- 688004
    3       SOOSAMMA PETER MARIYA POZHIYIL, THAIKKAL P O,
            CHERTHALA, ALAPPUZHA- 688530
    4       REETHAMMA, ANACKAL PURACKAL, VADACKAL,
            ALAPPUZHA - 680003
    5       LILLYKKUTTY,
            SASTHAMPARAMBIL, KATTOORMURI,
            KALAVOOR, ALAPPUZHA - 688522
    6       ELSY VARGHESE,
            ANCHILVEEDU, PUNNAPRAMURI, PUNNAPRA VILLAGE,
            ALAPPUZHA DISTRICT- 688004
    7       THRESSIYAMMA VARGHESE,
            POONTHRASSERYVEEDU, PUNNAPRA,
            ALAPPUZHA DISTRICT - 688004



     THIS   REVIEW   PETITION   HAVING    COME   UP   FOR   ADMISSION   ON
23.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RP NO. 867 OF 2023

                                              2


                                            ORDER

This review is, in fact, yet another attempt on

the part of a judgment debtor to defeat and deny the

fruits of a decree which has attained finality and

conclusiveness. The suit was fought up to the second

appeal and ultimately a decree was granted fixing the

boundary of property and declaration of title and

also a decree of perpetual prohibitory injunction

against trespass and enjoyment. Admittedly it has

become final and conclusive. When it was put in

execution, a strange contention was raised by the

judgment debtor that they are not liable to remove

the shed constructed encroaching on a portion of

property owned by the plaintiffs/decree holders on

the reason that no decree of recovery of possession

was granted in that suit, presumably no relief was

sought in that behalf. The execution court has

allowed the application filed by the judgment debtor

without knowing the decree which was passed and

attained finality. It is a comprehensive decree RP NO. 867 OF 2023

declaring the title of plaintiff fixing the boundary

of their property with that of the defendant and by

granting a prohibitory injunction not to trespass or

encroach upon any portion of the property. The grant

of a decree fixing boundary coupled with declaration

of title and permanent prohibitory injunction would

imply that the court has found possession of the

property by the decree holder up to the place wherein

the boundary line was fixed and restrained the

opposite party not to meddle with the boundary or to

commit trespass. Since it is a comprehensive decree,

it would show the possession of property up to the

boundary line fixed. Otherwise, there is no occasion

for granting a permanent prohibitory injunction

against trespass. The grant of a permanent injunction

by way of decree up to the place wherein boundary

fixed implies possession up to that place (up to that

boundary line) by the plaintiff. Hence, the

contention raised by the judgment debtor is so

strange, cannot be sustained.

RP NO. 867 OF 2023

2. Hence, the revision was allowed by this court

on the abovesaid grounds. It is against that

judgment, the judgment debtor again ventured to file

this review, that too, without any reason whatsoever.

Even if it is found that the shed in question was

constructed prior to the disposal of the suit. The

grant of permanent prohibitory injunction would

operate against the judgment debtor and shall stand

bound by the constructive res judicata based on the

principle of "deemed to have been raised" and

"deemed to have been rejected" under explanation IV

attached to Section 11 CPC. If it is a subsequent

encroachment, the judgment debtor has to face legal

consequences under Order XXI CPC including arrest

and detention for the violation of decree of

prohibitory injunction.

The Review Petition hence fails and is dismissed.

Sd/-

P.SOMARAJAN JUDGE msp