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Judgment
Justice Thomas P. Joseph
The Second Appeal arises from the judgment and decree of learned First Additional Sub Judge, Thiruvananthapuram in A.S. No. 155 of 2005 confirming judgment and decree of learned Second Additional Munsiff, Thiruvananthapuram in O.S. No. 263 of 2003. Appellant-plaintiff sought a decree for recovery of the plaint B schedule on the strength of the title she claimed. The courts below negatived the claim of the appellant. Hence the Second Appeal.
Vide order passed this day on I.A. No. 2029 of 2012 the 1st respondent in the appeal is removed from the array of parties.
The appellant and the 2nd respondent have settled the dispute among them and have filed I.A. No. 2028 of 2012. They request that the settlement be accepted and recorded and a decree may be passed in terms of the settlement. On going through the affidavit in support of the application, it is seen that the memorandum of settlement is signed by the parties and their respective counsel. On hearing the learned counsel on both sides and perusing the memorandum of settlement, I find no reason why the settlement shall not be accepted.
Resultantly, the Second Appeal is disposed of as under:
(a) I.A. No. 2028 of 2012 is allowed. The settlement reached between the appellant and the 2nd respondent is accepted and recorded.
(b) In substitution of the judgment and decree of learned First Additional Sub Judge, Thiruvananthapuram in A.S. No. 155 of 2005 and of learned Second Additional Munsiff, Thiruvananthapuram in O.S. No. 263 of 2003, a decree is passed in terms of the settlement as under:
(i) The decrees of the courts below allowing the 1st party to put up boundary wall through IJ line in Ext.C1(a), plan is varied.
(ii) It is mutually agreed by the 1st and 2nd parties to fix the boundary and put up a compound wall close to the northern side of the well situated on the southern side of the property of the 1st party herein, in the east-west direction. In Ext. C1(a), plan the well is shown just north to the CD line at a distance of 2.7 M. from point E. Now the said CD line is altered to a distance of 3.9 M. from point E. For further clarification, it is hereby confirmed that the boundary is re-fixed and the compound wall will be constructed just north to the well situated to the north of CD line in Ext. C1(a), plan.
(iii) The 2nd party hereby agrees to cut and remove the coconut tree standing on the eastern side of his property.
(iv) Both parties hereby agree that hereinafter there will not be any disputes between them or their legal heirs, representatives or successors with respect to the fixation of boundary as stipulated in para "ii" above.
(v) The injunction granted by the appellate court in favour of the 2nd party stands varied and is limited only with respect to the property held by the 2nd party pursuant to the re-fixation of the boundary on the basis of this compromise. In other words, the order of injunction will not apply as regards the property situated to the south of the newly fixed boundary.
(vi) The 1st party and the 2nd party hereby consent to convert this compromise into a decree in R.S.A. No. 889 of 2009.
(it is made clear that the reference to the first and second parties above is to the first and second parties to the memorandum of settlement)
(vii) Parties shall suffer their costs throughout.
(c) The memorandum of settlement and
Ext. C1(a), plan will form part of the decree of this Court.
All pending Interlocutory Applications will stand dismissed.