Jaseentha vs Annie

C.S.Dias, J

Aggrieved by Exts.P3 and P5 orders passed by the Court of the Munsiff, Wadakkanchery, in E.P.No.25/2020 in O.S.No.340/2012, the plaintiff in the suit has filed the original petition. The respondents were the defendants in the suit.

The concise case of the petitioner, relevant for the determination of the original petition, is that, she had filed the suit against the respondents, for a decree for fixation of boundary and other consequential reliefs. The court below, by Ext.P1 judgment dated 31.03.2017, decreed the suit, directing the western boundary of plot-A shown in Ext.C1(a) plan, to be fixed as the western boundary of the plaint schedule property and restrained the respondents from trespassing into the plaint schedule property or obstructing the petitioner from protecting her western boundary. Ext.P1 judgment has become final. Now, the respondents have filed E.P.No.25/2020 before the court below, against the petitioner, to fence the eastern side of their property. Without going into the merits of the matter, the court below, by the impugned Ext.P3 order, appointed an Advocate Commissioner to be assisted by a Surveyor, and directed the boundary to be fixed. Aggrieved by Ext.P3 order, the petitioner filed E.A.No.464/2022 (Ext.P4) to review Ext.P3 order. The court below, by the impugned Ext.P5 order, dismissed Ext.P4 application. Exts.P3 and P5 orders are erroneous and unsustainable in law. Hence, the original petition.

Heard; Sri. C. Chandrasekharan, the learned counsel appearing for the petitioner on admission.

The short point is, whether there is any illegality in Exts.P3 and P5 orders.

The petitioner had filed the suit in the year 2012 for fixation of her western boundary and consequential reliefs. The suit was decreed as prayed for, as early as on 31.03.2017. The petitioner maintained complete silence and did not execute the decree. Admittedly, the respondents have not trespassed into the property or violated the decree.

In the year 2020, that is after a lapse of three years, the respondents filed E.P.No.25/2020, to fence the boundary as per Ext.C1(a) plan. The petitioner objected to the said execution petition on the ground that the respondents could not execute the decree which was passed against them.

The court below appointed an Advocate Commissioner with a Surveyor and found that even though the boundary was fixed, there was no fencing separating the properties of the petitioner and the respondents. Consequently, the court below passed Ext.P3 order. The petitioner then filed Ext.P4 review petition, which was dismissed by Ext.P5 order.

In Somavally and others v. Prasanna Kumar and another [2015 (3) KLT 391], this Court has succinctly held that a decree for fixation of a common boundary can be executed by the defendants also.

In the case on hand, the respondents have only sought to fence the common boundary that has fixed by Ext.P1 judgment and decree.

The respondents have categorically admitted that they have no intention to trespass into the plaint schedule property. Moreover, if the boundary is fenced, certainly, it will only secure the decree, as both parties will not be in a position to trespass into each other’s property.

The court below has found, on the basis of the Advocate Commissioner’s report and the survey plan, that there is no fencing between the common boundary fixed by the court below as per Ext.P1 judgment. I do not find any error or illegality in Exts.P3 and P5 orders warranting interference by this Court under Article 227 of the Constitution of India. The original petition is devoid of merits and is hence dismissed.