Stephen vs Savitha
2023 Latest Caselaw 4101 Ker

Citation : 2023 Latest Caselaw 4101 Ker
Judgement Date : 31 March, 2023

Kerala High Court

Stephen vs Savitha on 31 March, 2023

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
          THE HONOURABLE MR. JUSTICE SATHISH NINAN
  FRIDAY, THE 31ST DAY OF MARCH 2023 / 10TH CHAITHRA, 1945
                   OP(C) NO. 2087 OF 2022
  AGAINST THE ORDER IN I.A NO.1 OF 2022 IN OS 1216/2015 OF
          PRINCIPAL MUNSIFF COURT, NEYYATTINKARA.


PETITIONERS/DEFENDANTS 1 TO 4:

    1    STEPHEN, AGED 76 YEARS
         S/O MARCOSE,RESIDING AT KANJIRAMNINNA THEKKE
         PUTHEN VEEDU, MULLAVILA, THIRUPURAM VILLAGE,
         NEYYATTINKARA TALUK, THIRUVANANTHAPURAM,
         PIN - 695133
    2    SREEMATHI, AGED 62 YEARS
         W/O STEPHEN,RESIDING AT KANJIRAMNINNA THEKKE
         PUTHEN VEEDU, MULLAVILA, THIRUPURAM VILLAGE,
         NEYYATTINKARA TALUK, THIRUVANANTHAPURAM,
         PIN - 695133
    3    SURESH, AGED 39 YEARS
         S/O STEPHEN,RESIDING AT KANJIRAMNINNA THEKKE
         PUTHEN VEEDU, MULLAVILA, THIRUPURAM VILLAGE,
         NEYYATTINKARA TALUK, THIRUVANANTHAPURAM,
         PIN - 695133
    4    SUNIL, AGED 35 YEARS
         S/O STEPHEN,RESIDING AT KANJIRAMNINNA THEKKE
         PUTHEN VEEDU, MULLAVILA, THIRUPURAM VILLAGE,
         NEYYATTINKARA TALUK, THIRUVANANTHAPURAM,
         PIN - 695133
         BY ADVS.
         V.G.ARUN (K/795/2004)
         V.JAYA RAGI
         R.HARIKRISHNAN (KAMBISSERIL)
         AVANEETH S.R.
         NEERAJ NARAYAN
 OP(C) No.2087 of 2022
                             -: 2 :-



RESPONDENTS/PLAINTIFFS & DEFENDANTS 5 & 6:

    1      SAVITHA, AGED 40 YEARS
           D/O SANTHAKUMARI,RESIDING AT ABI BHAVAN,
           KANJIRAMNINNA, THIRUPURAM VILLAGE,
           NEYYATTINKARA TALUK, THIRUVANANTHAPURAM,
           PIN - 695133
    2      SATHYANANDAN NADAR, AGED 87 YEARS
           S/O PARAMESWARAN NADAR,RESIDING AT KANAMKODE
           VEEDU, OTTASEKHARAMANGALAM, PIN - 695125
    3      SANTHAKUMARI, AGED 68 YEARS
           W/O SATHYANANDAN NADAR,RESIDING AT KANAMKODE
           VEEDU, OTTASEKHARAMANGALAM, PIN - 695125
    4      STANLY RAVI, AGED 35 YEARS
           S/O RAVEENDRAN, RESIDING AT FREEJA BHAVAN,
           KANJIRAMNINNA, THIRUPURAM VILLAGE,
           NEYYATTINKARA TALUK, THIRUVANANTHAPURAM,
           PIN - 695133
    5      FREEDA RAVEENDRAN, AGED 63 YEARS
           W/O RAVEENDRAN,RESIDING AT FREEJA BHAVAN,
           KANJIRAMNINNA, THIRUPURAM VILLAGE,
           NEYYATTINKARA TALUK, THIRUVANANTHAPURAM,
           PIN - 695133
           BY ADVS.
           G.P.SHINOD
           GOVIND PADMANAABHAN(K/925/2010)
           AJIT G ANJARLEKAR(K/000083/2014)
           ATUL MATHEWS(K/1675/2018)
           GAYATHRI S.B.(K/2005/2020)


        THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
31.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                       Sathish Ninan, J.
               ==============================
                   OP(C) No.2087 of 2022
                 ==========================
           Dated this the 31st day of March, 2023

                           JUDGMENT

The petitioners are the defendants in a suit for

prohibitory and mandatory injunction. They challenge

Ext.P11 order passed on I.A NO.1 of 2022 permitting the

respondents/plaintiffs to put up a fencing on the

southern side of plaint C schedule property through the

line mentioned in Ext.C1 plan.

2. The plaintiffs claim title and possession of

the plaint schedule property. They allege that the

southern boundary wall was demolished forcefully by the

defendants and others for widening a way. It is on the

said allegations that the suit has been filed.

3. The plaintiffs filed I.A No.1 of 2022 seeking

permission to put up a compound wall on the southern

boundary raising security concerns for the residence in OP(C) No.2087 of 2022

the property by the plaintiffs and their daughter.

4. The contention of the defendants is that, on

the southern side of the plaint schedule property there

exists a public way, and the attempt of the plaintiffs

is to reduce the width of the way.

5. The location of the place where the wall is to

be restored is a matter for determination in the suit.

The trial court has, as per the impugned order permitted

the plaintiffs to put up a temporary fencing based on

Ext.C1 plan. It appears that the plan was prepared

based on the document of title. Anyway, I do not think

it appropriate to permit such a construction to be

effected at this stage when there is a dispute with

regard to the location of the boundary. However, in the

light of the circumstances under which the plaintiffs

seek permission to put up a fence or a boundary wall to

secure their residence in the property, some

arrangements could be made as an interim measure. OP(C) No.2087 of 2022

Resultantly, taking note of the entire

circumstances involved, in modification of the impugned

order the following directions are issued :

i) The respondents/plaintiffs are permitted to put

up a boundary wall/fence at 5 feet further into the

property of the plaintiffs from the line

"A1A7ZYXWV" shown in Ext.C1 plan.

ii) The respondents/plaintiffs are also permitted

to repair/construct the demolished portion of the

kitchen of the building situated in the property.

iii) The above directions are purely as an interim

arrangement and will not affect the rights of

either party.

iv) The court shall have the above order

implemented with the assistance of the Commissioner

who prepared the Ext.C1 plan and police aid.

v) Taking note of the fact that an application for

issuance of Commission and other interlocutory OP(C) No.2087 of 2022

applications are pending, and also the fact that

the suit is of the year 2015, the trial court shall

make every endeavor to have the suit tried and

disposed of within a period of five months from the

date of receipt of a copy of this judgment.

Sd/- Sathish Ninan, Judge

PETITIONER'S EXHIBITS

Exhibit P1 TRUE COPY OF THE PLAINT IN O.S NO. 1216 OF 2015 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, NEYYATTINKARA DATED 28.10.2015 Exhibit P2 TRUE COPY OF THE INTERIM ORDER PASSED BY THE HON'BLE HIGH COURT OF KERALA IN WP(C) NO. 32645 OF 2015 DATED 27.10.2015 Exhibit P3 TRUE COPY OF THE WRITTEN STATEMENT FILED BY DEFENDANTS 1 TO 4 IN O.S NO. 1216 OF 2015 ON THE FILES OF THE MUNSIFF COURT, NEYYATTINKARA Exhibit P4 TRUE COPY OF THE COMMISSION REPORT AND PLAN FILED BY ADVOCATE COMMISSIONER M. R PRAMEELA KUMARI AND SURVEYOR K ANILKUMAR BEFORE THE MUNSIFF COURT, NEYYATTINKARA IN O.S NO. 1216 OF 2015 DATED 20.06.2017 Exhibit P5 TRUE COPY OF I.A NO. 4046 OF 2018 IN O.S NO. 1216 OF 2015 ON THE FILES OF THE MUNSIFF COURT, NEYYATTINKARA Exhibit P6 TRUE COPY OF THE AMENDED PLAINT IN O.S NO. 1216 OF 2015 ON THE FILES OF THE MUNSIFF COURT, NEYYATTINKARA Exhibit P7 TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY DEFENDANTS 1 TO 4 IN O.S NO. 1216 OF 2015 Exhibit P8 TRUE COPY OF I.A NO. 3243 OF 2018 IN O.S NO. 1216 OF 2015 ON THE FILES OF THE MUNSIFF COURT, NEYYATTINKARA DATED 05.07.2018 Exhibit P9 TRUE COPY OF I.A NO. 1 OF 2022 IN O.S NO. 1216 OF 2015 ON THE FILES OF THE MUNSIFF COURT, NEYYATTINKARA DATED 10.02.2022 Exhibit P10 TRUE COPY OF THE OBJECTION FILED BY DEFENDANTS 1 TO 4 AGAINST I.A NO. 1 OF 2022 IN O.S NO. 1216 OF 2015 ON THE FILES OF THE MUNSIFF COURT, NEYYATTINKARA DATED 28.02.2022 Exhibit P11 TRUE COPY OF ORDER IN I.A NO. 1 OF 2022 IN O.S NO.

1216 OF 2015 ON THE FILES OF THE MUNSIFF COURT, NEYYATTINKARA DATED 01.10.2022