JANKIYAMMA Vs. K R SURESH

JUDGEMENT

(1.) JUDGMENT debtor Nos.1 to 3 in E.P.No.63 of 2009 in O.S.No.255 of 2007 of the court learned Munsiff, Thodupuzha is the petitioner before me. Respondent Nos.1 and 2 filed the suit for lateral support for plaint A schedule belonging to them from plaint B schedule belonging to petitioner and respondent No.3. The matter was referred to the Adalath where there was settlement and an award was passed. As per that award parties agreed that petitioners and respondent No.3 will leave 3feet vide space on the eastern extremity of their property to provide lateral support for property of respondent Nos.1 and 2. It was also agreed that if on account of petitioners and respondent No.3 removing earth compound wall of respondent Nos.1 and 2 collapsed, petitioners and respondent No.3 will make necessary arrangements to restore the wall at their expense. Respondent Nos.1 and 2 filed E.P.No.63 of 2009 on 12-08-2009 alleging that petitioners removed earth adjoining the compound wall and it resulted in a portion of the compound wall collapsing. Petitioners resisted execution petition and contended that it was due to poor construction of compound wall that it collapsed. Executing court found in favour of respondent Nos.1 and 2 and directed restoration of the compound wall. That order is under challenge. It is contended by learned counsel that there is no reliable evidence to show that collapse of the compound wall was due to removal of earth. The Advocate Commissioner was not able to find any removal of earth as alleged by respondent Nos.1 and 2. Further argument is that though the alleged collapse as stated by respondent Nos.1 and 2 was on 13-09-2009 (not pleaded) execution petition was filed only on 12-08-2009.

(2.) THE question this court is required to decide is whether revisional jurisdiction is to be exercised in respect of the order under challenge. Respondent No.1 has given evidence as PW1. PW2 is a witness, admittedly a neighbour. Evidence of PWs.1 and 2 show that petitioners removed earth using JCB and tipper lorries and that resulted in the collapse of wall. It is their case that earth was removed at a depth of about 5 to 6 feet. Petitioner No.1 was examined as DW1. She admitted that on a prior occasion due to removal of earth (in 2007) compound wall had collapsed. Executing court considered the oral and documentary evidence and found in favour of the case set up by respondent Nos.1 and 2. That finding rest on a proper appreciation of the evidence. I do not find any illegality, perversity or irregularity in the finding entered by the executing court requiring exercise of revisional jurisdiction. Petition is dismissed.