KARAMBY Vs. A INDIRA

JUDGEMENT

(1.) This Civil Revision Petition is directed against an order passed by the execution court in an execution proceeding.

(2.) The skeletal facts first. The plaintiffs (I shall refer to the parties in the manner in which they are ranked in the original suit) asserted that the plaint 'A' schedule property belongs to them. To the east of the plaint 'A' schedule property, is a puramboke land described road/thodu puramboke. The said land is described as plaint 'B' schedule. The plaintiffs asserted that the plaint ' B' schedule property is part of a public street by name "L.G. Pai Road", situated to the east of plaint 'A' schedule property. The grievance of the plaintiffs was that the said 'B' schedule property which is part of the public street by name "L.G. Pai Road" was illegally obstructed by defendants 3 to 5 without any legal authority. The plaintiffs asserted that they have a right to enter the road from every point in their adjoining plaint 'A' schedule property and defendants 1 and 2 - the Corporation and the Government or any other person have no right to obstruct their access to the public road by putting up construction on the public road/by the side of the public road. They prayed that defendants 1 and 2 may be directed to take necessary action. They further prayed that defendants 3 to 5 may be directed to remove such obstruction from the plaint 'B' schedule property which they claimed to be part of the public street.

(3.) It is unnecessary to advert to the other defendants/alleged trespassers viz. defendants 3 and 5. The petitioner herein is the 4th defendant, The 4th defendant remained ex parte. None of other defendants - defendants 1, 2, 3 or 5 raised a contention that the plaint 'B' schedule property' is not part of a public street. In the absence of such a contention, the learned Munsiff did not raise an issue as to whether the plaint 'B' schedule is part of a public street. Defendants 1 and 2 took the contention that they have done and are doing the needful to remove the obstruction. The learned Munsiff proceeded to pass the judgment and decree in O.S. No. 223/02 decreeing the suit as prayed for. Defendants 1, 2, 3 and 5 who were present before court did not choose to challenge the decree. The petitioner herein i.e., the 4th defendant who suffered the decree ex parte did not also choose to get the ex parte order set aside or to challenge the ex parte decree.