IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ASHOK MENON
FRIDAY, THE 1ST DAY OF JUNE 2018 / 11TH JYAISHTA, 1940
OP(C).No. 442 of 2017(O) -----------------------(AGAINST ORDER DATED 22-11-2016 IN E.A.NO.27/2016 IN E.P.NO.56/2015 IN O.S.NO.6/2008 OF MUNSIFF'S COURT, CHANGANACHERRY)
PETITIONER(S)/PETITIONER/1ST JUDGMENT DEBTOR/1ST DEFENDANT:
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LEELAMMA @ MARIA W/O. LATE ISSAC VARGHESE, AGED 57 YEARS, KUNNUMPURAM HOUSE, ITHITHANAM KARA /POST, KURICHY VILLAGE, KOTTAYAM DISTRICT. PIN-686535
BY ADV.SRI.P.K.RAVISANKAR
RESPONDENT(S)/RESPONDENT/DECREE HOLDER/PLAINTIFF:
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KUNJOONJU AGED 68 YEARS, S/O. VELAYUDHAN, MATTATHIL PARAMBIL,VEROOR PO., CHETHIPUZHA VILLAGE, KOTTAYAM DISTRICT. PIN-686104
R1 BY ADV. SRI.M.P.MADHAVANKUTTY
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06-04-2018, THE COURT ON 01-06-2018 DELIVERED THE FOLLOWING:
OP(C).No. 442 of 2017 (O) -------------------------
## APPENDIX
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PETITIONER(S)' EXHIBITS: ----------------------EXHIBIT P1: COPY OF THE SURVEY PLAN MARKED AS EXHIBIT C1(B) IN OS.NO.6 OF 2008 BEFORE THE MUNSIFF'S COURT, CHANGANACHERY EXHIBIT P2; COPY OF THE JUDGMENT DATED 19.9.2015 IN A.S. NO.266 OF 2010 ON THE FILE OF ADDITIONAL DISTRICT COURT-V, KOTTAYAM EXHIBIT P3: COPY OF THE E.P.NO.56 OF 2015 IN O.S.NO.6 OF 2008 BEFORE THE MUNSIFF'S COURT, CHANGANACHERY EXHIBIT P4: COPY OF THE E.A.NO.27 OF 2016 IN E.P.NO 56 OF 2015 IN O.S.NO.6 OF 2008 BEFORE THE MUNSIFF'S COURT, CHANGANACHERY EXHIBIT P5: COPY OF THE OBJECTION TO E.A.NO.27 OF 2016 IN E.P.NO.56 OF 2015 IN OS.NO.6 OF 2008 BEFORE THE MUNSIFF'S COURT, COURT, CHANGANACHERY FILED BY THE RESPONDENT EXHIBIT P6: COPY OF THE DEPOSITION OF PW1 IN E.A.NO.27 OF 2016 IN E.P NO.56 OF 2015 IN OS.NO.6 OF 2008 BEFORE THE MUNSIFF'S COURT, CHANGANANCHERY EXHIBIT P7: COPY OF THE DEPOSITION OF PW2 IN E.A.NO.27 OF 2016 IN E.P NO.56 OF 2015 IN OS.NO.6 OF 2008 BEFORE THE MUNSIFF'S COURT, CHANGANACHERY EXHIBIT P8: COPY OF THE ORDER DATED 22.11.2016 IN E.A.NO.27 OF 2016 IN E.P.NO.56 OF 2015 IN OS.NO.6 OF 2008 BEFORE THE MUNSIFF'S COURT CHANGANACHERY.
RESPONDENT(S)' EXHIBITS:
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NIL
/TRUE COPY/
PA TO JUDGE
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## ASHOK MENON, J.
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O.P.(C) No. 442 of 2017 ------------------------------------------Dated this the 1[st] day of June, 2018
## J U D G M E N T
The defendant judgment debtor in the Original Suit, O.S.No.6/2008 on the file of the said Munsiff's Court Chenganacherry, has filed this petition under Article 227 of the Constitution of India challenging Ext.P8 order of the learned Munsiff, in E.A.No.27/2016 in E.P.No.56/2015 in the said suit.
2. The suit was one for declaration of title, fixation of southern boundary of the plaint schedule property and a prohibitory injunction. After trial, the suit was dismissed by the learned Munsiff and the plaintiff went on appeal before the District Court, Kottayam by filing A.S.No.266/2010. The Addl.District Judge-V, Kottayam vide Ext.P2 judgment dated 19-09-2015 allowed the appeal in part and declared the title and possession of the plaintiff over the plaint schedule property described in Ext.C1(b) plan (Ext.P1 herein) and further directed the fixing of southern boundary of the property at
'GHJ' line shown in the plan. The decree holder filed E.P.No.56/2015 at Ext.P3 to get the southern boundary of the plaint schedule property fixed in accordance with the aforesaid decree.
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The petitioner herein filed E.A.No.27/2016 accompanied by an affidavit, produced herein as Ext.P4, requesting that the southern boundary of the plaint schedule property may be fixed at 'GHJ' line as ordered by the appellate court in A.S.No.266/2010. The petitioner herein had also filed Ext.P5 objection in the execution proceedings. The Surveyor, who prepared the Ext. P1 survey sketch, was examined as PW1; while the Amin, who delivered the property in accordance with the survey report, was examined as PW2 and their depositions are produced as Exts.P6 and P7. The petitioner is aggrieved by Ext.P8 order of the learned Munsiff dismissing E.A.No.27/2016. The petitioner, therefore, impugns Ext.P8 order and prays that it may be set aside and the application may be allowed.
3. After hearing the learned Counsel for the petitioner and the respondent, it is clear that the petitioner is labouring under a mistaken impression about the decree in the suit. The relevant portion of Ext.P2 judgment reads as thus:
“21. In the result, appeal is allowed and judgment and decree of the lower court is hereby set aside and a decree is passed as follows:-
(a) Decree is passed declaring the title and possession over the plaint scheduled property ie,
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'CDEFGHJC' plot as shown in Ext.C1(b) plan in favour of the plaintiff.
(b) Decree is passed fixing the southern boundary of the plaint scheduled property as 'G H J' line in Ext.C1(b) plan which obviously lies in the northern side of the chira claimed by the defendants.
(c) Prayer for permanent prohibitory injunction against the defendants is hereby rejected. Thus the suit is decreed in part.
(d) Ext.C1(b) plan shall form part of the decree. (e) Considering the facts and circumstances of the case, there is no order as to costs.”
4. From the appellate decree, it is very clear that the plaintiff's property is identified to be 'CDEFGHJC' in Ext.P1 plan and the southern boundary to be fixed is at line 'GHJ', which according to the learned Judge lies on the northern side of the chira. The learned Counsel for the petitioner argues that the southern boundary has now been fixed on the southern side of the chira, including the chira into the property of the plaintiff, which is apparently a mistake and could not have been allowed. He also pointed out to the testimony of the Amin at Ext.P6, wherein the Amin has stated that the stones were laid on the southern side of the chira, at line 'GHJ' and to the specific question whether the chira was included inside that, he answers in the positive.
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5. The learned Counsel for the petitioner relies on the decision reported in George A.J. v. State Bank of Travancore, 2012
(2) KHC 509 , wherein at para 14, this Court has held as thus:-
“14. It is well settled that if there is ambiguity in the decree, for the purpose of construing the terms of the decree, the judgment also can be looked into. There is no case for the judgment-debtor that going by the judgment, he is not liable to pay interest from the date of decree till realization.”
Hence the learned Counsel for the petitioner submits that Ext.P2 judgment has to be read as a whole and in para 18 of Ext.P2 it is very clearly stated that the plaintiff's claim that the chira also forms part of his property, is unsustainable.
6. The learned Counsel for the respondent argues that there is no dispute regarding the identity of the plaint schedule property, which has been declared to be the property of the plaintiff and in his possession. In Ext.C1(b) plan, which is produced as Ext.P1, the plot 'CDEFGHJC', having an extent of six acres, is identified to be the plaintiff's property and the southern boundary which separates it from the defendant's property is the line 'GHJ', which according to the appellate court obviously lies in the northern side of the chira. The learned Counsel also points out to Ext.P4
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application filed by the petitioner wherein, it is categorically stated that the orders may be passed to fix the southern boundary of the decree holder's property at 'GHJ' line lying towards the north of the chira. The Surveyor, who was examined as PW1, has also stated in Ext.P6 that plot 'CDEFGHJC' is constituted in R.S.No.98/5 in Block 3 and has an extent of six acres and the property on the south of it belonging to the defendant comprised in R.S.No.98/8. The boundaries were accordingly identified and fixed. The Amin, who was examined as PW2, in Ext.P7 testimony states that the boundary line of the plaintiff's property was fixed in accordance with the decree and that the line 'GHJ', is the southern boundary of plaintiff's property on the northern side of the chira. From the evidence placed before the execution court, the learned Munsiff has, in Ext.P8, ordered that the southern boundary is fixed in accordance with the appellate decree at line 'GHJ' and that the argument of the petitioner that the southern boundary has been mistakenly fixed on the southern side of the chira or that the chira is now included within the southern boundary line, cannot be accepted and therefore E.A.No.27/2016 filed by the petitioner herein was dismissed.
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7. On consideration of the entire facts and circumstances, it is adequately clear from the appellate judgment that the chira is lying on the southern boundary line of plaintiff's property identified as 'GHJ'. The petitioner cannot therefore, be heard to state that the line 'GHJ' shown in Ext.P1, is on the southern side of the chira and not on the northern side as stated by the appellate decree. Had there been any confusion, it was for the petitioner to approach the appellate court for a clarification and get the decree rectified. Without having done so, the only obligation on the part of the Surveyor and Amin was to fix the southern boundary of the plaint schedule property at line 'GHJ', which has been done accordingly. In the appellate judgment, it is observed that the line 'GHJ' is on the northern side of the chira. I find no reason to upset the findings in Ext.P8 order of the learned Munsiff. The petition is therefore dismissed. No costs.
Sd/ASHOK MENON Judge
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