Chirayil Sugathan v. ASEES and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS.JUSTICE SHOBA ANNAMMA EAPEN** **MONDAY, THE 14[TH] DAY OF NOVEMBER 2022 / 23RD KARTHIKA, 1944 OP (RC) NO.98 OF 2019** **AGAINST THE ORDER IN EA 184/2018 IN EP 88/2014 IN RCP NO.1/2013 OF RENT CONTROLLER/MUNSIFF COURT, VATAKARA** ## **PETITIONER/FIRST RESPONDENT:** **CHIRAYIL SUGATHAN, AGED 59 YEARS, S/O.KARUNAKARAN, RETIRED TEACHER, CHOMBALA.P.O., AZHIYUR AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673 308.** **BY ADVS. K.K.CHANDRAN PILLAI (SR.) SMT.S.AMBILY SRI.SAJI THOMAS SMT.NAMITHA NAMBIAR SHRI.MICKY THOMAS** ## **RESPONDENTS/PETITIONERS & 2ND RESPONDENT:** - 1 **ASEES, S/O.HAMSA AND NABEESA, AGED 41 YEARS, COOLIE, DOOR NO.4/202, HILL ROAD, MADIKKERI VILLAGE, MERKKARA TALUK, COORG DISTRICT, KARNATAKA STATE, PIN-571 201** - 2 **SURA, AGED 39 YEARS, D/O. HAMSA AND NABEESA, HILL ROAD, MADIKKERI VILLAGE, MERKKARA TALUK, COORG DISTRICT, KARNATAKA STATE, PIN-571 201.** - 3 **SAHEERA, AGED 36 YEARS, D/O. HAMSA AND NABEESA, HILL ROAD, MADIKKERI VILLAGE, MERKKARA TALUK, COORG DISTRICT, KARNATAKA STATE, PIN-571 201.** **O.P.(RC).No.98 of 2019** -:2:- 4 **SADANANDAN.K.K., AGED 58 YEARS, S/O.KELAPPAN, KANNUVAYAL KUNIYIL, URALUNGAL AMSOM DESOM, MADAPPALLY COLLEGE P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673 308.** **BY ADVS. SRI.U.K.DEVIDAS FOR R1 TO R3 SRI.C.R.SIVAKUMAR FOR R4 SRI.K.K.ANILRAJ FOR R1 TO R3** **THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 4.11.2022, THE COURT ON 14.11.2022 DELIVERED THE FOLLOWING:** **==> picture [430 x 45] intentionally omitted <==** **“C.R.”** **A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ. ----------------------------------------O.P.(RC).No.98/2019** **----------------------------------------Dated this the 14[th] day of November, 2022** **J U D G M E N T** ## **A.Muhamed Mustaque, J.** **==> picture [430 x 39] intentionally omitted <==** Can a person claiming as a co-owner obstruct the delivery of a building, pursuant to an order of eviction obtained by another co-owner, is the question to be decided in this original petition filed under Article 227 of the Constitution. 2. The petitioner obtained an order of eviction against one Sadanandan, under the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, the 'Act'). The order of eviction attained finality by dismissal of the revision (R.C.R.No.129/2016) by this Court as early as on 23/3/2017. The petitioner, thereafter, filed an **O.P.(RC).No.98 of 2019** -:2:- execution petition. It appears that several attempts have been made to obtain delivery through the execution court including with the aid of the police. Respondents 1 to 3 herein filed an execution application under Rule 97 & 98 of Order XX1 of the Code of Civil Procedure. Their claim was that they have a share in the tenanted premises and the petitioner herein is only a co-owner along with them. According to them, the rent control petition was filed without their consent and they are not interested in evicting the tenant. The Rent Controller, after hearing both sides, came to the conclusion that the respondents 1 to 3 are the co-owners and the tenanted premises being a dwelling house cannot be claimed by a person (petitioner), not being the member of the family of the original owner of the building, and such person is not entitled to get possession of the dwelling house. This finding was made with reference to Section 44 of the Transfer **O.P.(RC).No.98 of 2019** -:3:- of Property Act. Challenging this order, this original petition was filed. 3. The first objection that was raised before this Court is on the maintainability of the original petition in the light of the remedy available to the petitioner to challenge the impugned order in appeal, as provided under Rule 103 of Order XXI CPC. We shall answer the objection relating to maintainability of the original petition at the later stage, after adverting to the nature of the right that can be claimed by a co-owner in objecting to the delivery of a building obtained by another co-owner. 4. There cannot be any dispute as to the maintainability of the eviction petition by one of the co-owners without conjunction or consent of the other co-owners. See the judgments of the Hon'ble Supreme Court in **Om Prakash and Another v. Mishri Lal (Dead) Represented by His Legal** **O.P.(RC).No.98 of 2019** -:4:- **Representative Savitri Devi and Another [(2017) 5 SCC 451]** and **India Umbrella Manufacturing Co. and others v. Bhagabandei Agarwalla (Dead) by LRs. Savitri Agarwalla (Smt.) and Others [(2004) 3 SCC 178].** 5. The order of eviction obtained by one of the co-owners is perfectly legal and cannot be treated as null and void. 6. We shall now advert to Rule 97 Order XX1 CPC and other provisions related to resistance in delivery of possession to the decree holder or the auction purchaser etc. Order XXI Rule 97 CPC is the provision available to a person to lawfully resist the delivery of possession in execution. It is open for a person to resist the delivery either before or after actual delivery. {See the judgment in **Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and Another [(1997) 3 SCC 694)]}** . The scheme of statutory provisions under Order XXI Rule 97 CPC **O.P.(RC).No.98 of 2019** -:5:- followed by other provisions, is to protect the legal possession or physical possession of the person raising objection to the delivery, on any legally sustainable ground. 7. The legal possession denotes control over the immovable property, it is not necessary that the person should have actual possession to resist the delivery in the execution. {See the judgment of the Apex Court in **Ashan Devi and Another v. Phulwasi Devi and Others [(2003) 12 SCC 219]** }. The actual possession means, physical possession. {See the judgment of the Apex Court distinguishing between legal and physical possession, **Sadashiv Shyama Samant (Dead) through the Lrs. and Others v. Anita Anant Sawant [(2010) 3 SCC 385]** }. 8. The person raising obstruction before the execution court must demonstrate that on delivery, his legal possession or physical possession would be affected, to maintain a petition under Rule 97, **O.P.(RC).No.98 of 2019** ## -:6:- Order XXI CPC. If the person's legal possession or physical possession is not affected, that person cannot maintain a petition under Order XXI Rule 97 CPC. 9. Admittedly, in this matter, the tenanted premises is in the occupation of a tenant. That means, the obstructor has no actual or physical possession of the building. On delivery of the tenanted premises to another co-owner, his legal possession also is not affected in as much as that if he is a true co-owner, he can still retain control over the immovable property on an order of delivery. That means, on delivery of a tenanted premises to another co-owner, based on an order of eviction, neither his legal possession nor his right to claim actual possession is affected. In such circumstances, a person claiming to be co-owner cannot maintain a petition under Order **O.P.(RC).No.98 of 2019** -:7:- XXI Rule 97 to obstruct delivery of order of eviction obtained by another co-owner. 10. Regarding the claim of the obstructors that they are not interested in evicting the tenant, it is a matter in the realm of the contractual obligations between the parties thereto. If the paramount interest of another co-owner arising out of contractual obligation is required to be protected qua the tenant, the remedy of such co-owner is to file a suit to enforce his right based on the contract of tenancy. In that suit, perhaps, he may be able to seek an injunction against the delivery. However, in the guise of seeking performance of contractual obligations, a co-owner cannot obstruct delivery by invoking the provisions under Order XXI, Rule 97 CPC for the reason that none of his legal possession or physical possession is affected consequent upon ordering delivery. In order to entertain such **O.P.(RC).No.98 of 2019** -:8:- petitions, the execution court must be competent to pass an order to protect legal possession or physical possession of the person who obstructs delivery. The execution court cannot entertain such a petition to protect the possession of any person other than the obstructor/s. 11. In light of the discussions as above, we are of the view that the petition itself was not maintainable before the execution court at the instance of the respondents 1 to 3. The order passed is related to the jurisdiction of the execution court. Therefore, we have no hesitation to hold that the erroneous exercise of jurisdiction can be set right by invoking Article 227 of the Constitution. 12. The learned Senior Counsel for the petitioner pointed out with reference to the additional documents produced along with I.A.No.2/2022 that, the suit filed by the respondents 1 to 3 for **O.P.(RC).No.98 of 2019** -:9:- partition has been dismissed holding that respondents 1 to 3 are not co-owners. We are not looking at these documents as it is not possible for this Court to decide the rival claims or interests on merit in a petition filed under Article 227 of the Constitution. In the result, the original petition is allowed. The impugned order is set aside. We direct the execution court to effect the delivery within six weeks, if so warranted with police aid. **Sd/A.MUHAMED MUSTAQUE, JUDGE** **Sd/-** **SHOBA ANNAMMA EAPEN, JUDGE** **ms** **O.P.(RC).No.98 of 2019** ## -:10:- ## **APPENDIX OF OP (RC) 98/2019** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 COPY OF SALE DEED NO.1465/2003 DATED 24.07.2003 OF THE AZHIYOOR SUB REGISTRY OFFICE.** - **EXHIBIT P2 COPY OF SALE DEED NO.2228/2003 DATED 19.11.2003 OF THE AZHIYOOR SUB REGISTRY OFFICE.** - **EXHIBIT P3 COPY OF SALE DEED NO.2256/2004 DATED 28.10.2004 OF THE AZHIYOOR SUB REGISTRY OFFICE.** - **EXHIBIT P4 COPY OF SALE DEED NO.536/2006 DATED 29.05.2006 OF THE AZHIYOOR SUB REGISTRY OFFICE.** - **EXHIBIT P5 COPY TAX PAID RECEIPTS DATED 1.07.2005, 28.04.2010,31.07.2015 AND 17.4.19 ISSUED BY VILLAGE OFFICER, AZHIYOOR VILLAGE.** - **EXHIBIT P6 COPY OF POSSESSION CERTIFICATE DATED 31.08.2005 ISSUED BY VILLAGE OFFICER, AZHIYOOR VILLAGE.** - **EXHIBIT P7 COPY OF ORDER DATED 29.3.2014 IN RCP 1 OF 2013 OF THE RENT CONTROL COURT, VATAKARA.** - **EXHIBIT P8 COPY OF ORDER DATED 23.03.2017 IN R.C.R.129/2016 OF THIS HON'BLE COURT.** - **EXHIBIT P9 COPY PLAINT IN O.S.187/2016 DATED 20.10.2016 BEFORE THE MUNSIFF COURT, VATAKARA.** - **EXHIBIT P10 COPY PLAINT IN O.S.118/2018 DATED 11.07.2018 BEFORE THE MUNSIFF COURT, VATAKARA.** - **EXHIBIT P11 COPY E.A.NO.184/2018 FILED BY RESPONDENTS 1 TO 3 BEFORE THE MUNSIFF COURT, VATAKARA.** **O.P.(RC).No.98 of 2019** ## -:11:- **EXHIBIT P12 COPY OF OBJECTION FILED BY THE PETITIONER TO E.A.184/2018 BEFORE THE MUNSIFF COURT, VATAKARA.** **EXHIBIT P13 COPY E.A.NO.185/2018 FILED BY RESPONDENTS 1 TO 3 BEFORE THE MUNSIFF COURT, VATAKARA. EXHIBIT P14 COPY OF OBJECTION FILED BY THE PETITIONER TO E.A.185/2018 BEFORE THE MUNSIFF COURT, VATAKARA.** - **EXHIBIT P15 COPY OF E.A.08/2018 DATED 05.01.2018 FILED BY THE PLAINTIFF IN O.S.187/2016 BEFORE THE MUNSIFF COURT, VATAKARA.** - **EXHIBIT P16 COPY OF OBJECTION DATED 17.02.2018 FILED BY THE PETITIONER IN E.A.NO.08/2018.** - **EXHIBIT P17 COPY OF ORDER DATED 01.03.2019 IN E.A.NO.184/18 IN RCP 1/2013 OF THE RENT CONTROLLER/MUNSIFF COURT, VATAKARA.** - **Exhibit P18 COPY OF THE COMMON JUDGMENT DATED 08.08.2022 IN O.S.NO.187/2016 AND O.S.NO.118/2018 OF THE MUNISIFF'S COURT, VATAKARA.**