IMPORTANT POINT
The court affirmed that prohibitory injunctions can be enforced despite ongoing disputes, ensuring that decree holders can secure their rights.

JUDGMENT :

The above revision petition is filed challenging the order in E.P.No.292 of 2015 in OS No.137 of 1993 dated 17.2.2020 on the file of the Additional Sub Court, Irinjalakuda whereby the execution petition filed by the petitioners/decree holders was rejected essentially holding that there is a subsequent suit filed by the judgment debtors for fixation of boundary and that without fixing the eastern boundary of the decree holders property the court cannot jump to the conclusion that the judgment debtor has violated the decree of injunction.

2. Petitioners contended that the petitioners along with their mother late Kalyani Amma are the owners in possession of the plaint schedule properties 3 in number. In 1993, the defendant tried to destroy the eastern boundary of the petitioners plaint schedule property item No.1 and had removed the entire barbed fencing. Thereupon, OS No.137/1993 was filed seeking injunction restraining the defendant/respondent and his men from trespassing into the plaint schedule item No.1 and from destroying or altering the eastern boundary tress and boundary fence. A commission was taken out, Ext.C1 report was filed along with Ext.C1(a) plan. The said suit was decreed and Ext.C1(a) plan was made part of the decree and plaintiffs were granted a decree of perpetual injunction restraining the respondent from trespassing into any portion of plaint schedule item No.1 lying on the western side of the boundary shown in Ext.C1(a) plan and from destroying the boundary or boundary trees. The said judgment and decree was confirmed in appeal filed as AS No.399 of 2000 and also a second appeal was filed as RSA No.122 of 2005. Even thereafter, there was constant violation of the injunction and the concrete wall put up by the petitioners was destroyed. Thereupon, the present execution petition was filed as EP No.292 of 2015 before the Sub Court, Irinjalakuda and a commission was appointed and a report was filed on 21.10.2015. In the said report, the commissioner clearly stated that the matti trees and other trees are standing in the fence in the same position and reported that the concrete pillars which were planted in the fence between the trees mentioned as 5,6,9 etc in Ext C1 Commission Report are uprooted and destroyed. At the time of enquiry, the 2nd petitioner Ramakrishnan as well as another person, named Babu, who is a worker were examined.

3. The learned senior counsel appearing for the petitioners submits that the Trial Court dismissed the execution petition based on totally wrong reasoning, stating that the respondent herein had filed another suit for fixation of boundary, and only after fixation of boundary the exact violation could be ascertained.

4. The respondent entered appearance through counsel and submitted that the allegation that they have violated the terms of the decree and have removed the concrete poles is absolutely without any basis and the allegation against them is without any bonafides. It is also contended that the boundary reported in Ext.C1(a) sketch is not in existence at present and the said boundary was not based on the survey measurement. It is further contended that the decree-holder after destroying the eastern boundary trespassed and reduced almost 12 cents of property of the judgment debtor into his possession and as per the title deed of decree schedule item No.1 property it has only an extent of 1.66 Acres, but now the decree holder is in possession 1.78 Acres of land and after trespassing into the property of the judgment debtor, the decree-holder attempted to install concrete poles. It is further submitted that no concrete poles were reinstalled on 24.09.2015 and in Ext.C1(a) plan the presence of concrete poles along the boundary is not at all reported. It is also submitted that the judgment debtor has instituted a suit for fixation of boundary and therefore sought for dismissal of the civil revision petition.

5. I have heard the rival contentions of both sides.

6. O.S. No. 1