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. 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 has been granted to the said extent. The Hon'ble High Court has also granted permission to the defendants to cover-up the said common pathway. The present concrete roofing has been made only to cover-up the pathway and it connects eastern and western portion of the property belonging to the defendant. The width of the common pathway has not been affected in any manner. The Hon'ble High Court has also granted permission to the defendants to cover-up the said common pathway. The present concrete roofing has been made only to cover-up the pathway and it connects eastern and western portion of the property belonging to the defendant. The width of the common pathway has not been affected in any manner. In fact, the concrete roofing is at the height of 15 feet and no permanent structure has been made in the ground level. Therefore, there is no violation of the injunction decree. Hence, the Executing Court ought not to have directed the defendants to remove the concrete roofing. 8.Per contra, the learned counsel for the respondent/decree holder submitted that in the second appeal, the High Court has only permitted the defendants to cover up the suit pathway without causing any hindrance to the plaintiff. The High Court has also specifically directed the defendants not to put up any construction in the suit pathway. Therefore, it is clear that the defendants were only permitted to put up some temporary structure to prevent rain and shine. However, the defendants had proceeded to put up a permanent concrete structure connecting their property which are located on both sides of the common pathway. 9.Even though the construction is made at a height of 15 feet, it clearly shows that the construction is made over the common pathway. The learned counsel for the decree holder had further pointed out that in view of this concrete structure, his property has become a part of the defendants' property. It is likely to affect light and air falling into the common pathway. Since the construction is made clearly in violation of the injunction decree, the same has to be demolished and removed. The defendants cannot take a technical plea that the construction is made over and above the 15 feet. Hence, he prayed for confirming the order passed by the Executing Court. 10.Heard both sides and perused the material records. (C) Discussion: 11.The only issue that is required to be considered in this present revision petition is that whether the permanent structure put up by the defendants over and above the common pathway is liable to be demolished or not. Hence, he prayed for confirming the order passed by the Executing Court. 10.Heard both sides and perused the material records. (C) Discussion: 11.The only issue that is required to be considered in this present revision petition is that whether the permanent structure put up by the defendants over and above the common pathway is liable to be demolished or not. 12.In the decree passed by the High Court in SA(MD).No.1231 of 2011 on 24.02.2012, this Court has granted permanent injunction in favour of the plaintiff that he should not be prevented from using the common pathway. At the same time, the defendants have been permitted to cover-up the common pathway without causing any hindrance or putting up any construction in the suit pathway. Based upon this permission, the defendants had put up a concrete structure which connects the properties of the defendants which is located on either side of the common pathway. Admittedly, the said concrete construction is at a height of 15 feet. 13.The only ground on which the decree holder seeks to demolish the said concrete structure is that such a permanent structure was not permitted by the High Court and the same is in violation of the permanent injunction decree. However, there is no allegation that the said structure is in any way obstructing the usage of the existing common pathway. The structure is at a height of 15 feet. In the ground level, there is no obstruction at all. The decree holder is not able to point out the nature of inconvenience or obstruction caused to him due to construction of some permanent structure at the height of 15 feet over and above the common pathway. It is also to be noted that the High Court has not specifically mentioned that the defendants should only put up temporary structure for covering of the common pathway. There is no prohibition in the decree for putting up any permanent structure covering the pathway. 14.In the light of the above said factual aspects, it has to be considered whether the construction put up by the defendant has to be demolished or not. 15.Our High Court in a judgment reported in AIR 1928 Mad 810 ( S.S.V.Krishnan Pillai and others Vs. 14.In the light of the above said factual aspects, it has to be considered whether the construction put up by the defendant has to be demolished or not. 15.Our High Court in a judgment reported in AIR 1928 Mad 810 ( S.S.V.Krishnan Pillai and others Vs. Kilasathammal ) in paragraph No.5 has held as follows: “5.In this case, however, it seems to be perfectly clear that both parties having been using the lane only as a common passage for both parties, it cannot possibly be regarded that there has been any interference with such user by the putting up of the structure. Undoubtedly there is the infringement of the legal right. That is not what I am referring to. What I am referring to is the actual inconvenience and discomfort caused to the plaintiff by reason of this unlawful act on the part of the defendant. There is no evidence at all with regard to what may be regarded as any special source of inconvenience or discomfort caused either to the plaintiff or any person that may, on his behalf, be entitled lawfully to use this common lane. The utmost that one can think of is that, if this portion of the passage is covered over by terrace, the sunlight and the pouring rain may not fall on the passers-by on this portion of the passage. I do not feel persuaded that this can really be regarded as an inconvenience or source of discomfort. Further, viewing the question as one of balance of convenience or damage, what is the benefit that will accrue to the plaintiff by the mandatory injunction being confirmed? Only the sentimental satisfaction that the plaintiff has won in the case and spited the defendant, insisting upon the demolition of the structure built wrongfully by the defendant. Beyond that -sentimental satisfaction I fail to see anything at all which I can possibly regard in this case as a real substantial benefit that is likely to accrue to the plaintiff by this mandatory injunction. On the other hand, so far as the defendant is concerned, the demolition of that structure would mean to him the demolition of property worth, let us say, as stated above Rs. 1,000. I am unable to regard such damage as anything other than substantial. If, on the one hand, we have substantial damage to one of the parties to the extent of Rs. 1,000. I am unable to regard such damage as anything other than substantial. If, on the one hand, we have substantial damage to one of the parties to the extent of Rs. 1,000 and on the other hand we have only the sentimental satisfaction to the other party of having succeeded in a cursed and unseemly dispute, I should have no difficulty in the choice. There is also the further element of inconvenience in this case so far as the defendant is concerned, namely, that this terrace has been practically used for the last so many years as a link between the two properties belonging to him. I must, therefore, take it that these two properties have been continued to be enjoyed by the defendant linked by this connecting structure that has been put up by him. What other changes in the two buildings might have to be effected if this connecting link building should be demolished it is difficult to say . I believe I have now referred to all the circumstances and features in such a case as this that should weigh in the mind of a Court in coming to a conclusion whether or not the proper thing to do is to grant a mandatory injunction.......” 16.The said judgment of our High Court was followed in AIR 1973 Mad 42 ( Subbiah Goundan Vs. Ramaswamy Goundan and others ) wherein Paragraph No.4 of the said judgment is extracted as follows: “4.When co-owners, at the time of partition set apart a portion of the common property to be used as common for the beneficial enjoyment of their respective shares that involves a dedication by each of them of a portion of the property, which but for such dedication would become his exclusive property. Each of such co-owners of the common property is entitled to use the property in the way most advantageous and beneficial to him without, at the same time causing any injury or detriment to the other co-owners. It is for such a co-owner to decide in what way he could so use the common property to his maximum advantage. Each of such co-owners of the common property is entitled to use the property in the way most advantageous and beneficial to him without, at the same time causing any injury or detriment to the other co-owners. It is for such a co-owner to decide in what way he could so use the common property to his maximum advantage. It is not for the other co-owners to dictate in what manner the other co-owner should enjoy the common property so long as the user of the common property by one co-owner does not materially interfere with the use of the property by the other co-owners or affect their rights or in any way weaken, damage or injure the common property. Such co-owners are not entitled to prevent the other co-owner from using the common property in the way most beneficial to him. When co-owners of lands divide the lands, sometimes they set apart a common pathway for the beneficial enjoyment of their respective shares. Each co-owner is entitled to use the common pathway in a way most beneficial to him.....” 17.Even assuming that there is an infringement of legal right, a construction put up over and above the common pathway by the defendants cannot be demolished, unless the decree holder establishes the actual inconvenience and discomfort. 18.On the mere allegation of infringement of legal rights and for sentimental satisfaction of the decree holder, the concrete structure put up by the judgment debtor at a height of about 15 feet over and above the common pathway need not to be demolished, especially when the decree holder is not able to establish that the said construction could cause hindrance or obstruction to the usage of his common pathway. (D) Conclusion: 19.In view of the above said deliberations, this Court is of the considered opinion that the Executing Court ought not to have ordered demolition of the concrete structure put up by the judgment debtor when the decree holder has not established the actual disturbance or hindrance to the usage of the pathway. The order impugned in the revision petition is set aside and the Civil Revision Petition stands allowed. No costs. Consequently, connected miscellaneous petition is closed.