A R AYYAPPAN PILLAI Vs. MOHANA CHANDRAN PILLAI

JUDGEMENT

(1.) Petitioner is the landlord and the respondents are the tenants of building No. 767 situated in the Thrikkadavoor Village of Kollam District. Petitioner initiated eviction proceedings against the respondents by filing R.C.P.No. 16/1999 on the file of the Rent Control Court, Kollam. The R.C.P. was dismissed by the Rent Control Court against which he preferred R.C.A. No. 31/2000 before the Rent Control Appellate Authority. The Appellate Authority reversed the order of the Rent Control Court and ordered eviction. It was confirmed in revision by this Court in C.R.P. No. 2111/2002, a copy of the same is produced as Ext.P2 in the present petition. Thereafter the tenants filed Special Leave Petition before the Apex Court. When the matter was pending before the Apex Court a settlement was reached between the parties and the Apex Court by its order dated 7.1.2005, a copy of which is produced as Ext.P3 in this petition disposed of the S.L.P. in terms of the settlement dated 29.10.2004 except that the date mentioned in para 3 of the settlement will read as 31.3.2005 in place of 31.1.2005. The memorandum of settlement which was marked as Annexure A3 on the file of the Supreme Court is produced as Ext.P3 in the present Writ Petition. As per Clause 1 of memorandum of settlement, it is agreed by the respondents herein that they will surrender 4 feet portion of Door No. 767 on the southern side so that there will be passage to the petitioner's building on the eastern side, of a width of 14 feet north south measured from the northern wall of Door No. 765. It is also agreed that the demolition of the surrendered area will be carried out by a Commissioner appointed by the Rent Control Court and that the new wall on the southern side of Door No. 767 is to be constructed under the supervision of the said Commissioner. Pursuant thereto the petitioner herein sought to execute the order. It is a common case of the parties that 4 feet portion of Door No. 767 on the southern side was surrendered by the respondents herein and the wall was also reconstructed by the Commissioner. It was then found that width of the passage is only 12.25 feet as per the report of the Commissioner and according to the petitioner it is only 11.9 feet. At any rate even after surrender of 4 feet by the respondents herein the width of the passage could not be obtained to the extent of 14 feet. Petitioner in such circumstances filed an application before the Munsiff Court, Kollam praying that the Commissioner be directed by the Court to take possession of sufficient space to provide 14 feet pathway as passage to the building of the decree holder. The respondents objected the same and by Ext.P5 order dated 17th March, 2005 which is impugned in this Writ Petition, the Principal Munsiff, Kollam dismissed the application. Aggrieved thereby the petitioner has preferred this Writ Petition seeking appropriate relief under Article 227 of the Constitution of India.

(2.) The Court below found in Ext.P5 order that if the tenant is now directed to surrender more portion, that will be in violation of the compromise. It is also found that there is no terms in the agreement that the tenant will surrender sufficient portion so as to form passage of 14 feet width. Taking the view that the Munsiff Court is not empowered to direct the tenant to surrender more portion for the passage to obtain a width of 14 feet the petition was dismissed.

(3.) Heard Adv. Sri. Bechu Kurian Thomas, the learned counsel for the revision petitioner and also the Adv. Sri. B. Vinod, the learned counsel appearing for the respondent.