A permanent structure over a common pathway is permissible if it does not materially interfere with the usage rights of co-owners, and mere allegations of infringement without evidence of actual inconvenience do not justify demolition.

ORDER

The judgment debtor who had suffered a decree for permanent injunction has filed the present civil revision petition challenging the order passed in the execution proceedings wherein the Executing Court had directed removal of a concrete roof over and above the common pathway.

(A)Factual Matrix:

2.The first respondent herein as plaintiff had filed O.S.No.651 of 2002 before the Principal District Munsif Court, Madurai Town for the relief of permanent injunction and mandatory injunction. The plaintiff had contended that the suit schedule property is a pathway and the defendants are obstructing the usage of the pathway. It was further contended that the defendant has put up some obstruction in the pathway and they have to be removed.

3.The trial Court had decreed the suit as prayed for. The defendants had filed A.S.No.75 of 2009 before the II Additional Subordinate Court, Madurai. The First Appellate Court was pleased to allow the appeal and dismissed the suit. Challenging the same, the plaintiff had filed S.A.No.1231 of 2011. This Court after considering the submissions made on either side, had arrived at a finding that the plaintiff is not entitled to a decree for mandatory injunction. However, the suit was decreed in part by granting permanent injunction as prayed for. The decree passed by this Court on 24.02.2012 is extracted as follows:

“i) that the respondents herein/defendants, their men, agents and servants be and hereby are restrained by an order of permanent injunction from in anyway encroaching upon common pathway shown as ABCDIJLOPL in the plaint sketch by putting up any construction sought for in original suit No.651 of 2002 (on the file of the Principal District Court, Madurai Town);

ii)that there by no costs in the original suits;

iii)that the respondents herein/defendants be and hereby are directed not to cause any obstruction in the existing pathway;

iv)that the respondents herein/defendants be and hereby are permitted to cover up the suit pathway without causing any hindrance to the plaintiff from using the same.

v)that the respondents herein/defendants be and hereby are strictly directed not to put up any construction in the suit pathway; and vi)that there be and hereby no costs in this second appeal.”

4.The defendants owned property on either side of the common pathway. Based upon the permission granted by the High Court to cover-up the common pathway, the defendants had put up a construction at a height of 15 feet over and above the common pathway connecting the eastern and western part of their property. A legal notice was issued by the learned counsel for the plaintiff on 29.04.2013 alleging violation of the permanent injunction decree for which a reply was sent by the defendants' counsel on 03.05.2013.

5.Since the defendants had not removed the said permanent construction, the plaintiff had filed E.P.No.153 of 2014 under Order 21 Rule 32 of C.P.C to order civil arrest of the defendants. In the said execution proceedings, E.A.No.46 of 2022 was filed by the decree holder for appointment of Advocate Commissioner. The Advocate Commissioner has filed a report to the effect that the judgment debtor has put up a concrete construction at a height of 15 feet over and above the common pathway with east-west measurement of 21 feet.

6.After considering the submissions of the decree holder and the judgment debtor, the Executing Court had arrived at a finding that the permanent structure put up by the judgment debtor is clearly in violation of the decree passed by the High Court and had directed the defendants to remove the concrete roof mentioned in the Advocate Commissioner's report. Challenging the same, the order of the present civil revision petition has been filed.

(B)Submissions of the counsels appearing on either side:

7.According to the learned counsel for the revision petitioner, as per decree of the High Court, the defendants should not obstruct the usage of the common pathway and a decree for permanent injunction ha