Ex.F.A. No. 37 of 2019

1 Ex.F.A. No. 37 of 2019 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 17TH DAY OF SEPTEMBER 2020 / 26TH BHADRA, 1942** **Ex.FA.No.37 OF 2019** **AGAINST THE ORDER/JUDGMENT IN OS 97/1979 DATED 07-08-2019 OF PRINCIPAL SUB COURT, PALAKKAD** ## **APPELLANT/PETITIONER/CLAIM PETITIONER.** **SREERANJINI AGED 68 YEARS W/O. SADANANDAN, CHULLIYAR DAM QUARTERS, MUTHALAMADA P.O, CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678 507** **BY ADVS.** **SRI.JACOB SEBASTIAN** **SRI.K.V.WINSTON** **SMT.ANU JACOB** ## **RESPONDENT/RESPONDENTS 1,2,4 TO 20,22 TO 37** **1 JALKA UMMA D/O. LATE ABOOBACKER ROWTHER, ATTAYAMPATHY P.O, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678 507** **2 SAHEEDA, D/O. LATE ABOOBACKER ROWTHER, ATTAYAMPATHY P.O, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678 507** **3 SHAMSUDHEEN, S/O. ALIMA UMMA, ATTAYAMPATHY P.O, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678 507 (DELETED)** 2 Ex.F.A. No. 37 of 2019 - **4 SARVUDHEEN, S/O. ALIMA UMMA, ATTAYAMPATHY P.O, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678 507 (DELETED)** - **5 KADHARUMMA, D/O. ALIMA UMMA, ATTAYAMPATHY P.O, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678 507. (DELETED)** - **6 MUHAMMODA, W/O. MUTHU @ MOHAMMED BADARUDHEEN ROWTHER, ATTAYAMPATHY P.O, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678 507 (DELETED)** - **7 JAFFER ALI, S/O. MUTHU @ MOHAMMED BADARUDHEEN ROWTHER, ATTAYAMPATHY P.O, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678 507 (DELETED)** - **8 SYED IBRAHIM, S/O. MUTHU @ MOHAMMED BADARUDHEEN ROWTHER, ATTAYAMPATHY P.O, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678 507 (DELETED)** **9 MOHAMMEDALI, S/O. MUTHU @ MOHAMMED BADARUDHEEN ROWTHER, ATTAYAMPATHY P.O, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678 507 (DELETED)** - **10 NILAVARNNISA, D/O. LATE KAMALUDDIN, ATTAYAMPATHY P.O, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678 507 (DELETED)** - **11 ASIYA, W/O. LATE KAMALUDDIN, KAMAVANAYAKKANOOR, UDUMALPET, TAMIL NADU, PIN 642 126 (DELETED)** 3 Ex.F.A. No. 37 of 2019 - **12 HAKEEM, S/O. LATE KAMALUDDIN, KAMAVANAYAKKANOOR, UDUMALPET, TAMIL NADU, PIN 642 126. (DELETED)** - **13 BHANU, D/O. LATE KAMALUDDIN, KAMAVANAYAKKANOOR, UDUMALPET, TAMILNADU, PIN 642 126. (DELETED)** - **14 KAMALAM, W/O. LATE DORAISWAMY, ATTAYAMPATHY P.O, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678 507. (DELETED)** - **15 D.SELVI, D/O. LATE DORAISWAMY, ATTAYAMPATHY P.O, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678 507. (DELETED)** - **16 D. PRABHU, S/O. LATE DORAISWAMY, ATTAYAMPATHY P.O, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678 507. (DELETED)** - **17 HAJURAMMA, W/O. LATE ABOOBACKER, KUTHAMPARACKAL, VADAVANNUR P.O, CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678 504. (DELETED)** - **18 MEHARAJ, S/O. LATE ABOOBACKER, KUTHAMPARACKAL, VADAVANNUR P.O, CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678 504. (DELETED)** ## **19 PONNUSWAMY,** **D/O. LATE MUTHUSWAMY GOUNDER, ATTAYAMPATHY P.O, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678 507.. (DELETED)** **20 KAMALATHAL, D/O. LATE MUTHUSWAMY GOUNDER, ATTAYAMPATHY P.O,** 4 Ex.F.A. No. 37 of 2019 **MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678 507.** **(DELETED)** **21 RATNASABHAPATHI, S/O. LATE MUTHUSWAMY GOUNDER, ATTAYAMPATHY P.O, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678 507. (DELETED)** - **22 KATHIRAVAN, S/O. LATE MUTHUSWAMY GOUNDER, ATTAYAMPATHY P.O, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678 507. (DELETED)** **23 PANGUNNI,** - **S/O. RAGHAVAN, PUDUNAGARAM P.O, METTUPPALAYAM, KOLLENGODE NO.1 VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, PIN 678 503. (DELETED)** - **24** ## **KAMALUDHEEN,** **S/O HASSAN MUHAMMED ROWTHER, PARUTHIKKAD, GOVINDAPURAM P.O, MUTHALAMADA, GOVINDAPURAM, CHITTUR TALUK, PALAKKAD DISTRICT 678 507.** **(DELETED)** ## **25 KAREEM,** **S/O. HASSAN MUHAMMED ROWTHER, PARUTHIKKAD, GOVINDAPURAM P.O, MUTHALAMADA, GOVINDAPURAM, CHITTUR TALUK, PALAKKAD DISTRICT 678 507.** **26 JORAMNA, D/O. LATE HASSAN MUHAMMED ROWTHER, ATTAYAMPATHY, GOVINDAPURAM P.O, MUTHALAMADA, GOVINDAPURAM, CHITTUR TALUK, PALAKKAD DISTRICT 678 507.** ## **27 ABITHA,** **D/O. LATE HASSAN MUHAMMED ROWTHER, ATTAYAMPATHY, GOVINDAPURAM P.O, MUTHALAMADA, GOVINDAPURAM, CHITTUR TALUK, PALAKKAD DISTRICT 678 507.** ## **28 VALLINAYAKAM, W/O. CHELLAPPAN, ATTAYAMPATHY, GOVINDAPURAM P.O,** 5 Ex.F.A. No. 37 of 2019 **MUTHALAMADA, GOVINDAPURAM, CHITTUR TALUK, PALAKKAD DISTRICT 678 507. (DELETED)** - **29 UMADEVI, W/O. CHELLAPPAN, ATTAYAMPATHY, GOVINDAPURAM P.O, MUTHALAMADA , GOVINDAPURAM, CHITTUR TALUK, PALAKKAD DISTRICT 678 507. (DELETED)** - **30 SEETHALAKSHMI T.R, AGED 71 YEARS W/O. C.K MADHAVAN, NANDANAM, ARANGATTUPARAMBU, NEAR KRISHI OFFICE, KUMBALAKKODE P.O, ALATHUR, ALATHUR VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT, PIN 678 706. (DELETED)** - **31 PRINTHYURAJ, AGED 65 YEARS S/O.RAGHAVAN, THENKURUSSI VEEDU, VELLA ROAD, MANKARA P.O, PALAKKAD TALUK, PALAKKAD DISTRICT, PIN 678 613. (DELETED)** - **32 KRISHNAKUMARI T.R, AGED 59 YEARS W/O. R. SUKUMAR KANTHASWAMY KOUNDER STREET, CHELLAPPA GOUNDER LAWOUT, RATHNAPURI P.O, COIMBATORE DISTRICT, TAMIL NADU STATE, PIN 641 027. (DELETED)** - **33 K.P SREEDHARAN, AGED 85 YEARS 29/271, A.K.G NAGAR, MURIKKAVU, WEST YAKKARA P.O, PALAKKAD TALUK, PALAKKAD DISTRICT, PIN 678 001. (DELETED)** **34 KASUNAMBIKA, AGED 39 YEARS D/O. K.P SREEDHARAN, RESIDING AT 29/271, A.K.G NAGAR, MURIKKAVU, WEST YAKKARA P.O, PALAKKAD TALUK, PALAKKAD DISTRICT, PIN 678 001. (DELETED)** **35 SHYLA, AGED 37 YEARS D/O. K.P SREEDHARAN, RESIDING AT 29/271, A.K.G NAGAR, MURIKKAVU, WEST YAKKARA P.O, PALAKKAD TALUK, PALAKKAD** 6 Ex.F.A. No. 37 of 2019 **DISTRICT, PIN 678 001. (DELETED)** **RESPONDENTS 3 TO 19, 20 TO 24, 28 TO 35 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE FIRST RESPONDENT AS PER ORDER DATED 3.12.2019 IN IA NO.2/19.** **R1-2 BY ADV. SRI.RAJESH SIVARAMANKUTTY** **- - THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08 09 - - 2020, THE COURT ON 17 09 2020 DELIVERED THE FOLLOWING:** 7 Ex.F.A. No. 37 of 2019 ## JUDGMENT The claim petitioner in E.A.No.605/2014 in E.P.No.295/2012 is challenging the order of dismissal of the claim petition, filed by her. 2. The claim petitioner has filed the petition in the execution petition in the final decree application No.483/1982 in O.S.No.97/1979 of the Sub Court Palakkad. Her case is that her mother Susheela was the absolute owner in enjoyment of the petition schedule property as per a sale certificate issued by the District Collector, Palakkad dated 19.10.1985 which was confirmed on 31.10.1985. The sale proceedings were initiated against one Aboobacker Rowther the predecessor-ininterest of the respondents 1 and 2 for recovery of bank loan arrears. After sale was confirmed in favour of Susheela she had taken possession of the property. While she was enjoying the property, she expired on 6.1.2006 and thus the property devolved upon the claim petitioner. 8 Ex.F.A. No. 37 of 2019 While so, the respondents 1 and 2 attempted to get delivery of the property in execution in the final decree proceedings, then this claim petition was filed claiming her right over the same. 3.The respondents vehemently opposed the petition contending that the mother of the petitioner was a party to the final decree proceedings and it was found that her mother was not entitled to get any share in the property of Aboobacker Rowther. Moreover, her claim was considered in O.S.Nos.580/2006 and 371/1988 and decided against the petitioner and those judgments are binding on her. Therefore, she is not entitled to get any right over the property. 4. Earlier the court below dismissed the claim petition by an order dated 30.1.2018. The said order was challenged in Ex.F.A. No.5/2018. As per a judgment dated 6.9.2018 this Court set aside the order and directed the court below to dispose of the application under Order 21 Rule 97 CPC on merits. Thereafter, the court below considered the claim 9 Ex.F.A. No. 37 of 2019 petition afresh and by an order dated 7.8.2019 again dismissed the claim petition. Aggrieved by the same, this appeal has been preferred. 5. Heard, the learned counsel for the appellant and the learned counsel for the respondents. 6. The claim petitioner is claiming right over the petition schedule property as the legal heir of one Susheela. Revenue recovery proceedings were initiated against one Aboobacker Rowther and his property was brought in public auction on 27.6.1985. Susheela the mother of the plaintiff had purchased the property in auction and Ext.A4 sale certificate was issued by the District Collector Palakkad. Respondents 1 and 2 are the legal heirs of Aboobacker Rawther. 7. Admittedly, the petition schedule property was also the subject matter in O.S.No.97/1979 of the Subordinate Court, Palakkad. I.A.No.483/1982 is the final decree application in O.S.No.97/1979 filed by the plaintiffs. In the final decree proceedings the 7[th] respondent is 10 Ex.F.A. No. 37 of 2019 Susheela, the mother of this claim petitioner. Ext.B5 is the judgment in the final decree . The properties involved was divided into 24 equal shares and 7 shares were allotted to the plaintiff and 14 shares to the defendants 1 to 3 and 3 shares to the 4[th] defendant. The 7[th] respondent who is the mother of this claim petitioner did not contest the matter and the final decree was passed on 8.2.1996. The final decree dated 8.2.1996 was challenged before this Court in A.S. No.551/1996. Susheela was the 5[th] respondent in the appeal and one Pakunni was impleaded as respondent No.16. But later on 11.2.2011 the appeal was dismissed as not pressed. The cross objection filed as 38/2010 was also closed as abated in view of the death of the appellants 1,4 and 5 , the respondents 1,4 and 5 in cross objection. Later C.M.Appln. No.37/2013 to review the order in Cross Objection No.38/2010 was filed by Pankunni. Pankunni is none other than the son of Susheela and the brother of this claim petitioner. A Division Bench of this Court has 11 Ex.F.A. No. 37 of 2019 disposed of the C.M.Appln by an order 9.4.2013 observing in paragraph No.3 as follows: “3. The trump card of the review petitioner is that the persons, who were noted as dead, and whose legal representatives are noted as not impleaded, were actually on the array, in the sense that the legal representatives were impleaded in the appeal and consequently, in the cross objections. Hearing this, we further looked into the merits of the cross objections as well, to ascertain whether ends of justice require this matter to be retrieved from the situation in which it has reached. We see that the cross objections were instituted with an application seeking condonation of delay of 580 days in submitting the cross objections. Be that as it may, we further looked into the cross objection only to see ultimately that the cross objections is by an additional respondent who came into the array as an independent person in the appeal and she is none other than the legal representative of a person who got impleaded in the final decree proceedings and had nothing to do with the suit for partition and the preliminary decree proceedings. Independent rights, if any, attempted to be projected on the strength of certificate issued by the Tahsildar, are matters which could be agitated, if possible in 12 Ex.F.A. No. 37 of 2019 accordance with law, in appropriate jurisdiction.” 8. But after dismissal of the Cross objection No.38/2010 and the Review Petition, no suit was seen filed by the review petitioner ie; the brother of this claim petitioner. Earlier as evident by Ext.P3 Susheela had filed O.S.No.371/1988 and that suit was dismissed as withdrawn. Ext.B6 is the copy of the plaint in the suit filed by her. Ext.B7 is the copy of a suit filed as O.S.No.580/2006 against Pankunni, the brother of the claim petitioner by the 1[st] respondent ,the daughter of late Aboobacker Rowther. In that suit Pankunni remained absent and he was set exparte and the suit was decreed against him restraining him from executing assignment deeds in respect of the plaint schedule property. The said judgment had also become final as no appeal was filed against the judgment and decree by the respondents. After dismissal of the suit on 14.12.2011 this claim petition has been filed by the claim petitioner claiming right over the petition schedule property as the legal heir of 13 Ex.F.A. No. 37 of 2019 Susheela. 9. While considering the appeal against dismissal of the claim petition by this Court, this Court has directed the court below to dispose of the application filed by the claim petitioner under Order 21 Rule 97 CPC . Order 21 Rule 97 of the Code of Civil Procedure reads as follows. - “97. Resistance or obstruction to possession of immovable - property - (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. (2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.] 10. As per order 21 Rule 97 if the party is claiming any independent right over the property in execution, the party could resist 14 Ex.F.A. No. 37 of 2019 such decree by seeking adjudication over his claim. Here it is pertinent to note that this claim petitioner is claiming right over the property as the legal heir of Susheela who did not contest in the final decree application where she was impleaded as Respondent No.7. So also she had withdrawn the case filed by her against the respondents as O.S.No.371/1988. She was 5[th] respondent in the appeal. Thereafter her son Pankunni, the brother of the claim petitioner also contested the matter in the appeal and the cross objection ended in dismissal. The review petition was also dismissed as referred above. The claim petitioner as PW1 admitted that after the death of her mother Susheela her brother Pankunni was conducting the case on behalf of all the legal heirs of Susheela. So it has come out in evidence that for all the legal heirs of Susheela, Pankunni contested the case in the appeal and filed cross objections. It has also come out in evidence that the claim petitioner was fully aware of the litigation prosecuted by her brother on 15 Ex.F.A. No. 37 of 2019 behalf of all the legal heirs of Susheela and she was fully aware of the fact that the appeal was dismissed and the cross objection was also dismissed and the Review Petition and the C.M.Appln filed were also dismissed by the court giving liberty to the party, if having independent rights on the strength of the certificate issued by the Tahsildar, to agitate in appropriate jurisdiction in accordance with law. The said order was passed by this Court on 9.4.2013. Thereafter Pankunni has not initiated any case against the respondents herein and he has not filed any claim petition. But this claim petitioner who is fully aware of the fact that her brother on behalf of all the legal heirs of Susheela was contesting the case and failed in his attempt had filed this claim petition on 21.11.2014 claiming right as the legal heir of Susheela. It is also to be noted that in the appeal her brother Pankunni is impleaded as Addl. 16[th] respondent. As this claim petitioner was represented through Addl. 16[th] respondent as one of the legal heirs of Susheela, she cannot be 16 Ex.F.A. No. 37 of 2019 treated as a stranger to the execution proceedings. It is clear that when his attempt was futile this claim petitioner had filed this claim petition claiming right as the legal heir of Susheela. It is however an admitted fact that Pankunni did not actually institute any suit though for which he obtained leave of this Court, but the present petition was filed by the petitioner raising the very same claim. 11. In Ittiyachan vs. Tomy [2001 (3) KLT 117] a Division Bench of this Court has held that an obstruction under Order 21 Rule 97 of the Code of Civil Procedure or for redelivery under Rule 99 of Order 21 can be maintained by a person who is not bound by a decree or who claims an independent right over the property. It is further observed that after amendment of the Code in the year 1976 mere possession by the claimant would not be sufficient. The claimant has to show right to possession, independent of the judgment debtors . 12. So when the facts of the case is scanned properly it could be 17 Ex.F.A. No. 37 of 2019 seen the the claim petitioner is not having any independent or any subsisting right over the petition schedule property. But she has filed the petition claiming interest in the property only as the legal heir of Susheela who could have contested the final decree application even by filing an appeal. But such a right was not exercised by the legal heirs of Susheela. In fact this Court has observed that if Pankunni, the brother of the claim petitioner impleaded in the appeal is having any right over the property, could agitate it independently. But as referred above, there is no evidence to show that he has preferred any case before the appropriate forum to assert his right, if any. 13. It is significant to note that this court in its discretion directed that the remedy should be pursued by means of a suit. In view of such a clear and definite direction of this court, the claim petitioner/legal heirs of Susheela had no option but to seek their remedy by a suit. But they failed to exercise the same. Such being the case, the argument raised by 18 Ex.F.A. No. 37 of 2019 the claim petitioner that she is entitled to get an adjudication over her claim at this late stage is without merits and hence, the finding rendered by the court below in the claim petition does not warrant an interference by this court. In these facts and circumstances, I am constrained to hold that this appeal is not maintainable. Thereby this appeal stands dismissed confirming the order under challenge. Dismissed. Sd/- SHIRCY V JUDGE 17.09.2020.