MURALEEDHARAN Vs. SADANANDAN ASARI

JUDGEMENT

(1.) THIS original petition and revision petition arise from separate orders passed by the learned Additional Munsiff, Nedumangad on E.A.Nos.8 and 9 of 2010, respectively in E.P.No.58 of 2008 in O.S.No. 566 of 2003. Respondent No.1 obtained an ex parte decree declaring his right of easement over plaint C schedule pathway having a width of 6 feet. Alleging that obstruction was caused to the said pathway he filed E.P.No.58 of 2008 for removal of the obstruction. In the executing court an Advocate Commissioner and Amin were appointed and they removed the obstruction and submitted report. Petitioner/judgment debtor No.3 filed E.A.Nos.8 to 10 of 2010 alleging that the Advocate Commissioner and Amin have transgressed the power granted to them, trespassed into plaint B schedule property belonging to the petitioner and cut down trees causing damages to the petitioner. E.A.No.10 of 2010 was for a local inspection by the learned Munsiff. E.A.No.8 of 2010 was to appoint an Advocate Commissioner to assess the damages and E.A.No.9 of 2010 was for recovery of damages from the respondent. PWs.1 to 3 were examined and Exts.A1, A1(a) and C1 were marked. Executing court found that there is no merit in the allegations made by petitioner against the Advocate Commissioner and Amin and dismissed all the applications. Ext.P2, order dismissing E.A.No.8 of 2010 is under challenge in O.P.No.158 of 2008. Dismissal of E.A.No.9 of 2010 is under challenge in C.R.P. 515 of 2010. Learned counsel for petitioner has contended that executing court has not considered the evidence on record. According to the learned counsel there is evidence to show that the trees standing in plaint B schedule were cut at the instance of the respondent. Learned counsel has also shown me some photographs of timber (dried up) which according to learned counsel were standing in plaint B schedule.

(2.) EXT.P1, order in E.A.No.10 of 2010 by which a request for local inspection by the learned Munsiff was turned down is not under challenge. What is under challenge is the order on E.A.Nos.8 and 9 of 2010, respectively. It is not disputed that as per the decree, right of respondent over plaint C schedule way having a width of 6 feet was declared. For removal of obstruction from the said pathway Advocate Commissioner and Amin (PWs.2 and 3) were appointed. It is accordingly that the obstruction was removed from the said pathway. Petitioner in his evidence as PW1 claimed that trees standing in his property beyond plaint C schedule pathway were cut and removed. Regarding that, what is available is only the interested version of petitioner. PWs.2 and 3, Advocate Commissioner and Amin gave evidence that only those obstructions found in plaint C schedule way were removed. EXTs.A1, A1(a) and C1 also support that version of petitioner. Petitioner as PW1 admitted that even now width of plaint C schedule way (as stated in the plaint and decree schedule) is only 6 feet. In other words it is clear from that version of PW1 that there was no trespass into any part of rest of property belonging to the petitioner. In other words, the width of plaint C schedule has not been increased and it remains to be six (6) feet. In that situation there is no reason to think that while removing the obstruction from plaint C schedule pathway, Advocate Commissioner and Amin trespassed into other portions of property belonging to the petitioner and cut down trees as alleged. The photographs now produced before me are neither proved in evidence nor does it anyway support case of petitioner. It is in the above circumstances that executing court was not impressed by E.A.Nos.8 and 9 of 2010 and accordingly by separate orders those applications were dismissed. I do not find reason to interfere with the supervisory jurisdiction under Article 227 of the Constitution or revisional power conferred on this court under Section 115 of the Code of Civil Procedure. Petitions are dismissed.