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High Court of KeralaSingle JudgeAppeals allowed; remanded to Execution Court fo...

Ex.S.A Nos. 13/2021, 14/2021, 15/2021, 17/2021, 18/2021, 19/2021 – Common Judgment in Execution Second Appeals

Case / Petition Number:Ex.S.A Nos. 13/2021, 14/2021, 15/2021, 17/2021, 18/2021, 19/2021

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • M.R. Anitha
Judgment Date
2022-10-26
Court Decision / Holding
Appeals allowed; common judgment in A.S. Nos. 23/2020, 24/2020, 25/2020 and related EAs/SAs set aside. Cases remanded to Execution Court with directions to appoint a fresh Commissioner, identify the decree-schedule property, determine whether any part of it is covered by the Land Tribunal certificates, and adjudicate rival claims afresh as per Ext.A6 (CRP Nos.174/1981 et al.). Mesne profits to be determined only after identifying the disputed property. The court also directs expeditious disposal due to the age of the litigation.
Final Disposition
Appeals allowed; remanded to Execution Court for fresh identification of decree-schedule property and re-adjudication of rival claims; direction to determine mesne profits after identification.

Parties to the Case

Appellants / Petitioners

  • Nellikkan Sushama
  • Nellikkan Sajina
  • T. Sobhana
  • Kalliyani
  • Thankamani
  • Usha
  • T. Mohanan

Respondents

  • Vazhayil Mathew s/o Thomas
  • Vazhayil Mary d/o Thomas
  • Vazhayil Gracy d/o Thomas
  • Vazhayil George s/o Thomas
  • Vazhayil Tomy s/o Thomas
  • T. Mohanan
  • Vadoth Balakrishnan Nair
  • Manager, Eachome Devaswom
  • Vazhayil Ealikutty d/o Thomas
  • Sushama?
  • Sajitha?
  • Kalliyani?
  • Thankamani?
  • Usha?

Legal Representation & Advocates

Counsels for Petitioners

  • • M.Gopikrishnan Nambiar
  • • K.John Mathai
  • • Joson ManavalLAn
  • • Kuryan Thomas
  • • Pauloose C. Abraham
  • • Raja Kannan
  • • T.Krishnanunni (Sr.)
  • • Vinod Ravindranath
  • • K.C.Kiran
  • • M.Devesh
  • • Ashwin Sathyanath
  • • M.R.Mini
  • • Anish Antony
  • • Anathazhath
  • • Thareeq Anver
  • • Meena.A.

Counsels for Respondents

  • • Biju Abraham
  • • B.G. Bhaskar
  • • R. Chethan Krishna
  • • K.John Mathai
  • • Joson ManavalAn
  • • Raja Kannan

Case Synopsis & Summary

This common judgment of the Kerala High Court, dated 26 October 2022, consolidates six execution second appeals arising from a 1964 Original Suit (O.S. 81/1964) and related restitution proceedings (E.P. 63/1987) in Mananthavadi. The core dispute concerns the delivery of possession of a 15-acre plaint B schedule land and subsequent purchase certificates issued by the Kalpetta Land Tribunal in several SMC cases. The petitioners/appellants (variously described as Devaswom claimants or tenants) challenge the identification of the decree-schedule property and contend that rival claims should be examined afresh if any portion of the delivery property is included within a Land Tribunal certificate. They rely on Ext.A6 (the order in Civil Revision Petitions Nos. 174–179/1981) which directed that rival claims shall be considered afresh by the execution court if the delivery property overlaps with a purchase certificate. The respondents claim the certificates are conclusive proof of possession and that the decree schedule must be identified to determine entitlement. The court examines provisions of the Kerala Land Reforms Act (notably sections governing fixity of tenure and tenancy), the evidentiary value of purchase certificates, and the principles of res judicata and lis pendens. Ultimately, the court allows the appeals, sets aside the common judgment, and remands to the Execution Court for fresh identification and re-adjudication of rival claims, with direction to determine mesne profits thereafter.

Provisions of Law Cited

Kerala Land Reforms Act, 1963 (Act 1 of 1964), especially Section 7D (as amended by Act 35 of 1969) – fixity of tenure; deeming tenancyKerala Land Reforms Act, 1964 – Section 72K(ii) (certificate of purchase conclusive proof of possession)Section 74(1) of the Act (no tenancy shall be created after 01.04.1964; post-cutoff leases invalid)Code of Civil Procedure, 1908 – Order 21, Rules 97 and 99 (Restitution/execution petitions)General concept of lis pendens and res judicata in land proceedingsTransfer of Property Act (reference to purchase certificates and possession)

Legal Doctrines & Maxims

  • Lis pendens
  • Res judicata
  • Certificate of purchase as conclusive proof of possession (Section 72K(ii), LRA)
  • Fixity of tenure under the Kerala Land Reforms Act
  • Evidentiary value of Land Tribunal purchase certificates (Mathew v. Taluk Land Board; Lakshmi Bai v. Taluk Land Board; Lakshmi v. Viswanathan)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that restitution cannot be ordered without proper identification of the decree schedule property. They rely on Ext.A6 (CRP Nos.174/1981 et al.) directing fresh consideration if a portion of the delivery property falls within a Land Tribunal certificate. They argue that the failure to identify the exact boundaries of the 15-acre plaint B schedule land undermines validity of the delivery and that the certificates of purchase issued to third parties should be scrutinized. They urge that the E.P. petitions (Section 97/99 CPC) must be examined in light of the identity of the property and that rival claims must be resolved afresh in view of Sec.72K(ii) and the 1986–1981 CRP observations.

Contentions of Respondents

The respondents urge that the purchase certificates issued by the Land Tribunal are conclusive proof of possession and bind the claims of those in possession under the certificates. They contend that the decree schedule has to be tied to demarcated land and the delivery validated. They rely on the Land Tribunal purchase certificates as a sound basis for determining possessory rights, and argue that restitution should not disturb settled certificates. They challenge the petitioners’ locus and emphasize finality in the CRP orders Ext.A6 and related findings, including res judicata and lis pendens considerations.

Cited Precedents (7)

Case NameCitationTreatmentExplanation
Mathew v. Taluk Land Board1979 KLT 601PositiveEvidentiary value of certificate of purchase recognized; supports the conclusive nature of purchase certificates.
Lakshmi Bai v. Taluk Land Board1986 KLT 336PositiveAffirms that certificate of purchase can be conclusive proof of possession.
Lakshmi v. Viswanathan1999 (2) KLT 621PositiveReiterates that such certificates are to be honoured unless set aside.
Kanagasabhai Pathar v. PoornathammalAIR 1947 Mad 458DistinguishedCited as a general rule but distinguished in the present case.
R.L. Mitra v. Minoti Mazumdar and Ors.AIR 1975 ALLAHABAD 424Mentioned OnlyCited among authorities; not controlling on the core issues.
A. Chidambar v. LeelaILR 1989 Karnataka 3230Mentioned OnlyCited in passing as part of authorities; not central to the decision.
Bholanath Bondopadhyay v. Banarsilal Saraf and Ors.AIR 1961 Guwahati 79Mentioned OnlyCited as a general principle; not essential to the ruling.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022 / 4TH KARTHIKA, 1944 EX.SA NO. 18 OF 2021** **AGAINST THE JUDGMENT DATED 30.06.2021 IN A.S. NO.25/2020 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE, SULTHAN BATHERI WHICH WAS FILED AGAINST THE COMMON ORDER DATED 10.03.2020 IN E.A. NO.55/2018 IN E.P. NO.63/1987 IN O.S. NO.81/1964 ON THE FILE OF THE COURT OF THE MUNSIFF OF MANANTHAVADI** ## **APPELLANTS/APPELLANTS/PETITIONERS IN E.A NO.55 OF 2018:** 1 NELLIKKAN SUSHAMA D/O. SREEDHARAN NAMBIAR, ANJUKUNNU AMSOM, EACHOME DESOM, MANATHAWADY TALUK, WAYANAD DISTRICT, PIN-670645. 2 NELLIKKAN SAJINA, D/O. SREEDHARAN NAMBIAR, ANJUKUNNU AMSOM, EACHOME DESOM, MANATHAWADY TALUK, WAYANAD DISTRICT, PIN670645. 3 T.SOBHANA, W/O. SREEDHARAN NAMBIAR, ANJUKUNNU AMSOM, EACHOME DESOM, MANATHAWADY TALUK, WAYANAD DISTRICT, PIN-670645. 4 KALLIYANI, D/O. AYYAPPU, PATTATHUVALAPPIL, PUTHIYIDAMKUNNU, NALLURNADU AMSOM, PULIKKAD DESOM, NALLURNADU POST, WAYANAD DISTRICT, PIN-673592. 5 THANKAMANI, D/O. AYYAPPU, KODAKKATTIL VEEDU, PUTHIYIDAMKUNNU, NALLURNADU AMSOM, PULIKKAD DESOM, NALLURNADU POST, WAYANAD DISTRICT, PIN-673592. 6 USHA, D/O. AYYAPPU, PATTATHUVALAPPIL, PUTHIYIDAMKUNNU, NALLURNADU AMSOM, PULIKKAD DESOM, NALLURNADU POST, WAYANAD DISTRICT, PIN-673592. BY ADVS. M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM RAJA KANNAN Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 2 ## **RESPONDENTS/RESPONDENTS/RESPONDENTS 1 TO 6 & 8 & 9:** 1 VAZHAYIL MATHEW S/O. THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANATHAWADY TALUK, WAYANAD DISTRICT, PIN-670645. 2 VAZHAYIL MARY, D/O. THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANATHAWADY TALUK, WAYANAD DISTRICT, PIN-670645. 3 VAZHAYIL GRACY, D/O. THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANATHAWADY TALUK, WAYANAD DISTRICT, PIN-670645. 4 VAZHAYIL GEORGE, S/O. THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANATHAWADY TALUK, WAYANAD DISTRICT, PIN-670645. 5 VAZHAYIL TOMY, S/O. THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANATHAWADY TALUK, WAYANAD DISTRICT, PIN-670645. 6 T.MOHANAN, AGED 79 YEARS S/O. KARUNAKARAN NAIR, ANJUKUNNU AMSOM, EACHOME DESOM, MANATHAVADI TALUK, WAYANAD DISTRICT, PIN670645. 7 VADOTH BALAKRISHNAN NAIR, ANJUKUNNU AMSOM, EACHOME DESOM, MANATHAWADY TALUK, WAYANAD DISTRICT, PIN-670645. 8 MANAGER, EACHOME DEVASWOM, ANJUKUNNU AMSOM, EACHOME DESOM, MANATHAWADY TALUK, WAYANAD DISTRICT, PIN-670645. BY ADVS. BIJU ABRAHAM – R1 TO R5 B.G.BHASKAR -R5 **THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ORDERS** **ON 20.07.2022, ALONG WITH Ex.SA.13/2021 AND CONNECTED CASES, THE COURT ON 26.10.2022 DELIVERED THE FOLLOWING:** Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 3 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022 / 4TH KARTHIKA, 1944** **EX.SA NO. 13 OF 2021 AGAINST THE JUDGMENT DATED 30.06.2021 IN A.S. NO.23/2020 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE, SULTHAN BATHERI WHICH WAS FILED AGAINST THE COMMON ORDER DATED 10.03.2020 IN E.P. NO.63/1987 IN O.S. NO.81/1964 ON THE FILE OF THE COURT OF THE MUNSIFF OF MANANTHAVADI** ## **APPELLANT/1ST APPELLANT/1ST RESPONDENT:** T.MOHANAN AGED 79 YEARS S/O. KARUNAKARAN NAIR, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAVADI TALUK, WAYANAD DISTRICT, PIN-670 645. BY ADVS. T.KRISHNANUNNI (SR.) VINOD RAVINDRANATH K.C.KIRAN M.DEVESH ASHWIN SATHYANATH M.R.MINI ANISH ANTONY ANATHAZHATH THAREEQ ANVER MEENA.A. ## **RESPONDENTS/RESPONDENTS AND APPELLANTS 2 TO 7/PETITIONERS 2** ## **TO 7 AND RESPONDENTS 2,5 TO 7 AND 9 TO 13:** 1 VAZHAYIL MATHEW S/O. THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAWADY TALUK, WAYANAD DISTRICT, PIN-670 645. 2 VAZHAYIL MARY D/O. THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAWADY TALUK, WAYANAD DISTRICT, PIN-670 645. 3 VAZHAYIL GRACY D/O. THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAWADY TALUK, WAYANAD DISTRICT, PIN-670 645. 4 VAZHAYIL GEORGE S/O. THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 4 - MANANTHAWADY TALUK, WAYANAD DISTRICT, PIN-670 645. - 5 VAZHAYIL TOMY S/O. THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAWADY TALUK, WAYANAD DISTRICT, PIN-670 645. - 6 VADOTH BALAKRISHNAN NAIR ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAWADY TALUK, WAYANAD DISTRICT, PIN-670 645. - 7 MANAGER EACHOME DEVASWOM, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAWADY TALUK, WAYANAD DISTRICT, PIN-670 645. - 8 VAZHAYIL EALIKUTTY D/O. THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAWADY TALUK, WAYANAD DISTRICT, PIN-670 645. - 9 T.SOBHANA, W/O. SREEDHARAN NAMBIAR, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAWADY TALUK, WAYANAD, PIN-670 645. - 10 SUSHAMA, D/O. SREEDHARAN NAMBIAR, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAWADY TALUK, WAYANAD, PIN-670 645. - 11 SAJITHA, D/O.SREEDHARAN NAMBIAR, PUTHIYIDAMKUNNU, NALLUMADU AMSOM, PULIKKAD DESOM, NALLOOMADU POST, WAYANAD DISTRICT, PIN-673 592. 12 KALLIYANI, W/O. AYYAPPU, PATTATHUVALAPPIL, PUTHIYIDAMKUNNU, NALLUMADU AMSOM, PULIKKAD DESOM, NALLOOMADU POST, WAYANAD DISTRICT, PIN-673 592. 13 THANKAMANI D/O. AYYAPPU, KODAKKATTIL VEEDU, PUTHIYIDAMKUNNU, NALLUMADU AMSOM, PULIKKAD DESOM, NALLOOMADU POST, WAYANAD DISTRICT, PIN-673 592. 14 USHA, D/O. AYYAPPU, PATTATHUVALAPPIL, PUTHIYIDAMKUNNU, NALLOOMADU AMSOM, PULIKKAD DESOM, NALLOOMADU POST, WAYANAD DISTRICT, PIN-673 592. BY ADVS. BIJU ABRAHAM – R1 TO R5 M.GOPIKRISHNAN NAMBIAR – R1 TO R14 K.JOHN MATHAI – R1 TO R14 JOSON MANAVALAN – R1 TO R14 KURYAN THOMAS – R1 TO R14 PAULOSE C. ABRAHAM – R1 TO R14 RAJA KANNAN – R1 TO R14 R.CHETHAN KRISHNA – R1 TO R14 ## **THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ORDERS** **ON 20.07.2022, ALONG WITH Ex.SA.18/2021 AND CONNECTED CASES, THE COURT ON 26.10.2022 DELIVERED THE FOLLOWING:** Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 5 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022 / 4TH KARTHIKA, 1944 EX.SA NO. 15 OF 2021** **AGAINST THE COMMON JUDGMENT DATED 30.06.2021 IN A.S. NO.24/2020 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE, SULTHAN BATHERI WHICH WAS FILED AGAINST THE COMMON ORDER DATED 10.03.2020 IN E.A. NO.06/2018 IN E.P. NO.63/1987 IN O.S. NO.81/1964 ON THE FILE OF THE COURT OF THE MUNSIFF OF MANANTHAVADI** ## **APPELLANT/APPELLANT/APPELLANT:** T.MOHANAN AGED 79 YEARS S/O. KARUNAKARAN NAIR, VANAJOTHSNA, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAVADI TALUK, WAYANAD DISTRICT 670 645. BY ADVS. T.KRISHNANUNNI (SR.) MEENA.A. K.C.KIRAN M.R.MINI ASHWIN SATHYANATH ANISH ANTONY ANATHAZHATH THAREEQ ANVER K. M.DEVESH VINOD RAVINDRANATH ## **RESPONDENTS/RESPONDENTS/RESPONDENTS:** 1 VAZHAYIL MATHEW, S/O. THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAWADY TALUK, WAYANAD DISTRICT 670 645 2 VAZHAYIL MARY, D/O. THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAWADY TALUK, WAYANAD DISTRICT 670 645. 3 VAZHAYIL GRACY, D/O. THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAWADY TALUK, WAYANAD DISTRICT 670 645. Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 6 4 VAZHAYIL GEORGE S/O. THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAWADY TALUK, WAYANAD DISTRICT 670 645. 5 VAZHAYIL TOMY S/O. THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAWADY TALUK, WAYANAD DISTRICT 670 645. 6 T. SOBHANA, W/O. SREEDHARAN NAMBIAR, ANJUKUNNU AMSOM, EACHOME DESSOM, MANANTHAWADY TALUK, WAYANAD DISTRICT-670 645. 7 VADOTH BALAKRISHNAN NAIR, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAWADY TALUK, WAYANAD DISTRICT 670 645. 8 MANAGER, EACHOME DEVASWOM, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAWADY TALUK, WAYANAD DISTRICT 670 645. 9 VAZHAYIL EALIKUTTY, D/O. THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAWADY TALUK, WAYANAD DISTRICT 670 645. 10 SUSHMA, D/O. SREEDHARAN NAMBIAR, NELLIKKAL VEEDU, NALLOORNAD AMSOM, PULIKKAD DESOM, MANANTHAVADY TALUK, WAYANAD 673 592. 11 SAJITHA, D/O. SREEDHARAN NAMBIAR, PUTHIYIDAMKUNNU, NALLUMADU AMSOM, PULIKKAD DESOM, NALLOOMADU POST, WAYANAD DISTRICT, PIN-673 592. 12 KALLIYANI, W/O. AYYAPPU, PATTATHUVALAPPIL, PUTHIYIDAMKUNNU, NALLUMADU AMSOM, PULIKKAD DESOM, NALLOOMADU POST, WAYANAD DISTRICT, PIN-673 592. 13 THANKAMANI, D/O. AYYAPPU, KODAKKATTIL VEEDU, PUTHIYIDAMKUNNU, NALLUMADU AMSOM, PULIKKAD DESOM, NALLOOMADU POST, WAYANAD DISTRICT 673 592. 14 USHA, D/O. AYYAPPU, PATTATHUVALAPPIL, PUTHIYIDAMKUNNU, NALLUMADU AMSOM, PULIKKAD DESOM, NALLOOMADU POST, WAYANAD DISTRICT, PIN-673 592. Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 7 BY ADVS. BIJU ABRAHAM – R1 TO R5 M.GOPIKRISHNAN NAMBIAR -R6, R10 TO R14 B.G.BHASKAR - R5 K.JOHN MATHAI - R6, R10 TO R14 JOSON MANAVALAN - R6, R10 TO R14 KURYAN THOMAS -R6, R10 TO R14 PAULOSE C. ABRAHAM -R6, R10 TO R14 RAJA KANNAN - R6, R10 TO R14 R.CHETHAN KRISHNA -R6, R10 TO R14 **THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ORDERS ON 20.07.2022, ALONG WITH Ex.SA.18/2021 AND CONNECTED CASES, THE COURT ON 26.10.2022 DELIVERED THE FOLLOWING:** Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 8 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022 / 4TH KARTHIKA, 1944 EX.SA NO. 14 OF 2021** **AGAINST THE COMMON JUDGMENT DATED 30.06.2021 IN A.S. NO.25/2020 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE, SULTHAN BATHERI WHICH WAS FILED AGAINST THE COMMON ORDER DATED 10.03.2020 IN E.A. NO.55/2018 IN E.P. NO.63/1987 IN O.S. NO.81/1964 ON THE FILE OF THE COURT OF THE MUNSIFF OF MANANTHAVADI** ## **APPELLANT/6TH RESPONDENT/6TH RESPONDENT:** T.MOHANAN, AGED 79 YEARS S/O. KARUNAKARAN NAIR, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAVADI TALUK, WAYANAD DISTRICT 670 645. BY ADVS. T.KRISHNANUNNI (SR.) VINOD RAVINDRANATH MEENA.A. K.C.KIRAN M.R.MINI M.DEVESH ASHWIN SATHYANATH ANISH ANTONY ANATHAZHATH THAREEQ ANVER K. ## **RESPONDENTS/APPELLANTS AND OTHER RESPONDENTS/PETITIONERS AND RESPONDENTS 1 TO 5,8 AND 9:** 1 NELLIKKAN SUSHAMA, D/O. SREEDHARAN NAMBIAR, NELLIKKAL VEEDU, AGED 5O YEARS, EACHOME AMSOM, ANJUKUNNU VILLAGE, EACHOME P.O. MANANTHAWADY TALUK, WAYANAD 670 721. 2 NELLIKKAN SAJINA, D/O. SREEDHARAN NAMBIAR, NELLIKKAL VEEDU, AGED 5O YEARS, Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 9 EACHOME AMSOM, ANJUKUNNU VILLAGE, EACHOME P.O. MANANTHAWADY TALUK, WAYANAD, PIN-670 721. 3 T. SOBHANA, D/O.KARUNAKARAN NAIR, NELLIKKAL VEEDU, AGED 7O YEARS, EACHOME AMSOM, ANJUKUNNU VILLAGE, EACHOME P.O. MANANTHAWADY TALUK, WAYANAD DISTRICT-670 721. 4 KALLIYANI , W/O. AYYAPPU, AGED 71 , PATTATHUVALAPPIL, PUTHENVEEDU, EACHOME AMSOM, ANJUKUNNU VILLAGE, EACHOME P.O. MANANTHAWADY TALUK, WAYANAD DISTRICT - 670 721. 5 THANKAMANI, D/O. AYYAPPU, AGED 43, PATTUTHUVALAPPIL, PUTHENVEEDU, EACHOME AMSOM, ANJUKUNNU VILLAGE, EACHOME P.O. MANANTHAWADY TALUK, WAYANAD DISTRICT-670 721. 6 USHA, D/O. AYYAPPU, AGED 43, PATTATHUVALAPPIL, PUTHENVEEDU, EACHOME AMSOM, ANJUKUNNU VILLAGE, EACHOME P.O. MANANTHAWADY TALUK, WAYANAD DISTRICT, PIN-670 721. 7 VAZHAYIL MATHEW S/O. THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAWADY TALUK, WAYANAD DISTRICT, PIN- 670 645. 8 VAZHAYIL MARY D/O. THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAWADY TALUK, WAYANAD DISTRICT 670 645. 9 VAZHAYIL GRACY D/O. THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAWADY TALUK, WAYANAD DISTRICT, PIN-670 645. 10 VAZHAYIL GEORGE S/O. THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAWADY TALUK, WAYANAD DISTRICT, PIN-670 645. 11 VAZHAYIL TOMY, S/O. THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAWADY TALUK, WAYANAD DISTRICT, PIN- 670 645. Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 10 12 VADOTH BALAKRISHNAN NAIR, AGED 56, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAWADY TALUK, WAYANAD -670 645. 13 MANAGER, EACHOME DEVASWOM, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAWADY TALUK, WAYANAD DISTRICT 670 645. BY ADVS. R.CHETHAN KRISHNA - R1 TO R6 BIJU ABRAHAM – R7 TO R11 B.G.BHASKAR - R11 M.GOPIKRISHNAN NAMBIAR - R1 TO R6 K.JOHN MATHAI - R1 TO R6 JOSON MANAVALAN - R1 TO R6 KURYAN THOMAS - R1 TO R6 PAULOSE C. ABRAHAM - R1 TO R6 RAJA KANNAN - R1 TO R6 **THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ORDERS** **ON 20.07.2022, ALONG WITH Ex.SA.18/2021 AND CONNECTED CASES, THE COURT ON 26.10.2022 THE FOLLOWING:** Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 11 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022 / 4TH KARTHIKA, 1944** **EX.SA NO. 17 OF 2021** **AGAINST THE JUDGMENT DATED 30.06.2021 IN A.S.** **NO.23/2020 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE, SULTHAN BATHERI WHICH WAS FILED AGAINST THE COMMON ORDER DATED 10.03.2020 IN E.P. NO.63/1987 IN O.S. NO.81/1964 ON THE FILE OF THE COURT OF THE MUNSIFF OF MANANTHAVADI APPELLANTS/APPELLANTS 2 TO 7/RESPONDENTS 2 AND 9 TO 13:** |1|T.SOBHANA,| |---|---| ||W/O.SREEDHARAN NAMBIAR, ANJUKUNNU AMSOM,| ||EACHOME DESOM, MANATHAVADY TALUK, WAYANAD| ||DISTRICT, PIN-670645.| |2|SUSHAMA, D/O.SREEDHARAN NAMBIAR,| ||ANJUKUNNU AMSOM, EACHOME DESOM,| ||MANATHAVADY TALUK, WAYANAD DISTRICT, PIN-670645.| |3|SAJINA, WRONGLY SHOWN AS SAJITHA IN THE JUDGMENT| ||OF THE LOWER COURTS, D/O.SREEDHARAN NAMBIAR,| ||PUTHIYADAMKUNNU, NALLOORNADU AMSOM,| ||PULIKKAD DESOM, NALLOORNADU P.O., WAYANAD| ||DISTRICT, PIN-670645.| |4|KALLIYANI, W/O.AYYAPPU, PATTATHUVALAPPIL,| ||PUTHIYIDAMKUNNU, NALLOORNADU AMSOM, PULIKKAD| ||DESOM, NALLOORNADU POST, WAYANAD DISTRICT, PIN-| ||673592.| |5|THANKAMANI, D/O.AYYAPPU, KODAKKATTIL VEEDU,| ||PUTHIYIDAMKUNNU, NALLOORNADU AMSOM, PULIKKAD| ||DESOM, NALLOORNADU POST, WAYANAD DISTRICT, PIN-| ||673592.| |6|USHA,| ||D/O.AYYAPPU, PATTATHUVALAPPIL, PUTHIYIDAMKUNNU,| ||NALLOORNADU AMSOM, PULIKKAD DESOM, NALLOORNADU| ||POST, WAYANAD DISTRICT, PIN-673592.| ||BY ADVS.| ||M.GOPIKRISHNAN NAMBIAR| ||K.JOHN MATHAI| ||JOSON MANAVALAN| ||KURYAN THOMAS| Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 12 PAULOSE C ABRAHAM RAJAKANNAN ## **RESPONDENTS/RESPONDENTS 1 TO 8 & 1ST APPELLANT/PETITIONERS 2** ## **& 4 TO 7 & RESPONDENTS 1, 5 TO 7:** 1 VAZHAYIL MATHEW S/O.THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANATHAVADY TALUK, WAYANAD DISTRICT, PIN-670645. 2 VAZHAYIL MARY, D/O.THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANATHAVADY TALUK, WAYANAD DISTRICT, PIN-670645. 3 VAZHAYIL GRACY, D/O.THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANATHAVADY TALUK, WAYANAD DISTRICT, PIN-670645. 4 VAZHAYIL GEORGE, S/O.THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANATHAVADY TALUK, WAYANAD DISTRICT, PIN-670645. 5 VAZHAYIL TOMY, S/O.THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANATHAVADY TALUK, WAYANAD DISTRICT, PIN-670645. 6 VADOTH BALAKRISHNAN NAIR, ANJUKUNNU AMSOM, EACHOME DESOM, MANATHAVADY TALUK, WAYANAD DISTRICT, PIN-670645. 7 MANAGER, EACHOME DEVASWOM, ANJUKUNNU AMSOM, EACHOME DESOM, MANATHAVADY TALUK, WAYANAD DISTRICT, PIN-670645. 8 VAZHAYIL EALIKUTTY, D/O.THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANATHAVADY TALUK, WAYANAD DISTRICT, PIN-670645. 9 T.MOHANAN, AGED 79 YEARS S/O.KARUNAKARAN NAIR, ANJUKUNNU AMSOM, EACHOME DESOM, MANATHAVADY TALUK, WAYANAD DISTRICT, PIN670645. BY ADVS. BIJU ABRAHAM - R5 B.G.BHASKAR -R5 ## **THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ORDERS** **ON 20.07.2022, ALONG WITH Ex.SA.18/2021 AND CONNECTED CASES, THE COURT ON 26.10.2022 DELIVERED THE FOLLOWING:** Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 13 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022 / 4TH KARTHIKA, 1944 EX.SA NO. 19 OF 2021** **AGAINST THE JUDGMENT AND DECREE DATED 30.06.2021 IN THE CROSS APPEAL IN A.S. NO.23/2020 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE, SULTHAN BATHERI WHICH WAS FILED AGAINST THE COMMON ORDER DATED 10.03.2020 IN E.P. NO.63/1987 IN O.S. NO.81/1964 ON THE FILE OF THE COURT OF THE MUNSIFF OF MANANTHAVADI** ## **APPELLANTS/CROSS APPELLANTS/PETITIONERS 2,4 TO 7:** 1 VAZHAYIL MATHEW AGED 48 YEARS S/O THOMAS, AGED 48 YEARS, ANJUKUNNU AMSOM, ECHOME DESOM, MANANTHAVADY - 670645 2 VAZHAYIL MARY, D/O.THOMAS, AGED 56 YEARS, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAVADY-670645. 3 VAZHAYIL GRACY, AGED 52 YEARS D/O.THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAVADY-670645. 4 VAZHAYIL GEORGE, AGED 45 YEARS S/O.THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAVADY-670645. 5 VAZHAYIL TOMY, AGED 40 YEARS S/O.THOMAS, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAVADY-670645. BY ADVS. BIJU ABRAHAM B.G.BHASKAR ## **RESPONDENTS/RESPONDENTS/1,2,5 TO 7 & 9 TO 13/RESPONDENTS** ## **1,2,5 TO 7 & 9 TO 13:** 1 T.MOHANAN AGED 80 YEARS Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 14 S/O. KARUNAKARAN NAIR, VANAJOTHSAN, ANJUKUNNU AMSOM, EACHOME DESOM, MANATHAVADY - 670645. 2 T.SOBHANA, AGED 70 YEARS W/O SREEDHARAN NAMBIAR, NELLIKKAN VEEDU, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAVADY,-670645. 3 VADOTH BALAKRISHNAN NAIR, AGED 56 YEARS ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAVADY,-670645. 4 MANAGER, EACHOME DEVASWAM, ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAVADY,-670645. 5 VAZHAYIL EALIKUTTY, D/O.THOMAS, AGED 50 YEARS ANJUKUNNU AMSOM, EACHOME DESOM, MANANTHAVADY,-670645. 6 SUSHAMA, AGED 50 YEARS D/O.SREEDHARAN NAMBIAR, NELLIKKAL VEEDU, ANJUKUNNU VILLAGE, EACHOME POST, MANANTHAVADY-670645. 7 SAJITHA, AGED 50 YEARS D/O.SREEDHARAN NAMBIAR, PUTHIYIDAMKUNNU, NALLURNADU AMSOM, PULIKKAD AMSOM, NALLOORNADU POST, MANANTHAVADY-670645. 8 KALLIYANI, AGED 71 YEARS W/O.AYYAPPU, PATTATHUVALAPPIL, PUTHIYIDAMKUNNU, NALLURNADU AMSOM AND POST, PULIKKAD DESOM, MANANTHAVADY-670645. 9 THANKAMANI, AGED 46 YEARS D/O.AYYAPPU, KODAKKATHIL VEEDU, PUTHIYIDAMKUNNU, NALLURNADU AMSOM, PULIKKAD DESOM, NALLORNADU POST, MANANTHAVADY-670645. 10 USHA, AGED 43 YEARS D/O.AYYAPPU, PATTATHUVALAPPIL, PUTHIYIDAMKUNNU, NALLURNADU AMSOM, PULIKKAD DESOM, NALLORNADU POST, MANANTHAVADY-670645. ## **THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ORDERS** **ON 20.07.2022, ALONG WITH Ex.SA.18/2021 AND CONNECTED CASES, THE COURT ON 26.10.2022 DELIVERED THE FOLLOWING:** Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 15 ## **COMMON JUDGMENT** Execution Second Appeal No.13/2021 has been filed against the judgment in A.S.No.23/2020 on the file of Subordinate Judge's Court, Sulthanbatheri by first respondent/1[st] appellant which arise out of order in E.P.No.63/1987 in O.S.No.81/1964 on the file of Munsiff's Court, Mananthavadi. 2. At the time of admission, this Court formulated the following substantial question of law: _“a) Whether the Executing Court and the 1[st] appellate court have complied with the directions contained in Ext.A6 judgment of this Hon'ble Court in C.R.P.?_ _b) Whether the Executing Court and the 1[st] appellate court have properly identified the decree schedule in O.S.81/1964 on the file of Munsiff Court, Mananthawadi and the plots over which the resistors have obtained certificates of purchase from the Land Tribunal on the basis of the documents relied on by them?_ _c) Having found that the identification of the property was not properly done by the commissioner, is the first appellate court justified in dismissing the appeal?_ _d) Are the Executing Court and the 1[st] appellate court justified in allowing restitution in favour of the petitioner in E.P.63/1987 of the entire decree_ Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 16 _schedule property in O.S.No.81/1964 on the file of the Munsiff Court, Mananthawadi?_ _e) Are not the orders of the Executing Court and the 1[st] appellate court vitiated for not properly appreciating the evidence oral and documentary available in this case?”_ 3. Execution Second Appeal No.14/2021 has been filed against the judgment in A.S. No.25/2020 on the file of Subordinate Judge's Court, Sulthanbatheri, which arise out of order in E.A. No.55/2018 by the 1[st] respondent in E.P. No.63/1987 in O.S. No.81/1964 on the file of Munsiff's Court, Mananthavadi. 4. At the time of admission, this Court formulated the following substantial question of law: _“a) Whether the Executing Court and the 1[st] appellate court have complied with the directions contained in the judgment of this Court in C.R.P.Nos.174/1981, 175/1981, 177/1981, 178/1981 and 179/1981?_ _b) Whether the Executing Court and the 1[st] appellate court have properly identified the decree schedule in O.S.81/1964 on the file of Munsiff Court, Mananthawadi and the plots over which the resistors have obtained certificates of purchase from the Land Tribunal on the basis of the documents relied on by them?_ _c) Having found that the identification of the property was not properly done by the commissioner, is_ Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 17 _the first appellate court justified in dismissing the appeal?_ _d) Are the Executing Court and the 1[st] appellate court justified in allowing restitution in favour of the petitioner in E.P.63/1987 of the entire decree schedule property in O.S.No.81/1964 on the file of the Munsiff Court, Mananthawadi?_ _e) Are not the orders of the Executing Court and the 1[st] appellate court vitiated for not properly appreciating the evidence oral and documentary available in this case?”_ 5. Execution Second Appeal No.15/2021 has been filed against the judgment in A.S. No.24/2020 on the file of Subordinate Judge's Court, Sulthanbatheri, which arise out of order in E.A. No.6/2018 by the 1[st] respondent in E.P. No.63/1987 in O.S. No.81/1964 on the file of Munsiff's Court, Mananthavadi. 6. At the time of admission, this Court formulated the following substantial question of law: _“a) Whether the Executing Court and the 1[st] appellate court have complied with the directions contained in the judgment of this Court in C.R.P.Nos.174/1981, 175/1981, 177/1981, 178/1981 and 179/1981?_ _b) Whether the Executing Court and the 1[st] appellate court have properly identified the decree schedule in O.S.81/1964 on the file of Munsiff Court, Mananthawadi and the plots over which the resistors_ Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 18 _have obtained certificates of purchase from the Land Tribunal on the basis of the documents relied on by them?_ _c) Having found that the identification of the property was not properly done by the commissioner, is the first appellate court justified in dismissing the appeal?_ _d) Are the Executing Court and the 1[st] appellate court justified in allowing restitution in favour of the petitioner in E.P.63/1987 of the entire decree schedule property in O.S.No.81/1964 on the file of the Munsiff Court, Mananthawadi?_ _e) Are not the orders of the Executing Court and the 1[st] appellate court vitiated for not properly appreciating the evidence oral and documentary available in this case?”_ 7. Execution Second Appeal No.17/2021 has been filed against the judgment in A.S. No.23/2020 on the file of Subordinate Judge's Court, Sulthanbatheri by respondents 2 and 9 to 13 which arise out of order in E.P. No.63/1987 in O.S. No.81/1964 on the file of Munsiff's Court, Mananthavadi. 8. At the time of admission, this Court formulated the following substantial question of law: _“a) Whether the respondents are entitled to dispute the title of the appellants in respect of the properties held by them in view of the order dated 28.01.1986 in CRP No.174 of 1981 and connected cases (Ext.A6) in_ Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 19 _which respondents 1 to 5 were also parties?_ _b) Will not the decision in CRP No.174 of 1981 and connected cases operates res judicata against respondents 1 to 7 claiming any right in respect of the property which were the subject matter of those revisions?_ _c) After having found that the Advocate Commissioner has not identified the properties, whether the lower courts were justified in granting reliefs to the petitioner in the E.P.?_ _d) Whether the Lower Courts were justified in holding that the appellants herein are not entitled to fixity of tenure ignoring the decision of this Hon'ble Court in CRP No.174 of 1981 and connected cases?_ _e) Whether the Lower Courts were justified unsettling the decision of the Land Tribunal and Appellate Authority which was confirmed by this Hon'ble Court?_ _f) Whether the Executing Court and the First Appellate Court have correctly comprehended the observations in the last paragraph contained in Ext.A6 judgment of this Hon'ble Court in C.R.P.No.174/1981 and connected cases?_ _g) Whether the Executing Court and the 1[st] appellate court have properly identified the decree schedule in O.S.81/1964 on the file of Munsiff Court, Mananthawadi and the plots over which the resistors have obtained certificates of purchase from the Land Tribunal on the basis of the documents relied on by them?_ Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 20 _h) Are the Executing Court and the 1[st] appellate court justified in allowing restitution in favour of the petitioner in E.P.63/1987 of the entire decree schedule property in O.S.No.81/1964 on the file of the Munsiff Court, Mananthawadi?_ _i) Whether Executing Court and the First Appellate Court are justified in granting reliefs to the execution petitioner without correctly comprehending the pleadings and evidence in the case and also the legal aspects involved.”_ 9. Execution Second Appeal No.18/2021 has been filed against the judgment in A.S. No.25/2020 on the file of Subordinate Judge's Court, Sulthanbatheri, which arise out of order in E.A.No.55/2018 by respondents 9 to 13 in E.P. No.63/1987 in O.S. No.81/1964 on the file of Munsiff's Court, Mananthavadi. 10. At the time of admission, this Court formulated the following substantial question of law: _“a) Whether the respondents are entitled to dispute the title of the appellants in respect of the properties held by them in view of the order dated 28.01.1986 in CRP No.174 of 1981 and connected cases (Ext.A6) in which respondents 1 to 5 were also parties?_ _b) Will not the decision in CRP No.174 of 1981 and connected cases operates res judicata against respondents 1 to 7 claiming any right in respect of the property which were the subject matter of those_ Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 21 ## _revisions?_ _c) After having found that the Advocate Commissioner has not identified the properties, whether the lower courts were justified in granting reliefs to the petitioner in the E.P.?_ _d) Whether the Lower Courts were justified in holding that the appellants herein are not entitled to fixity of tenure ignoring the decision of this Hon'ble Court in CRP No.174 of 1981 and connected cases?_ _e) Whether the Lower Courts were justified unsettling the decision of the Land Tribunal and Appellate Authority which was confirmed by this Hon'ble Court?_ _f) Whether the Executing Court and the First Appellate Court have correctly comprehended the observations in the last paragraph contained in Ext.A6 judgment of this Hon'ble Court in C.R.P.No.174/1981 and connected cases?_ _g) Whether the Executing Court and the 1[st] appellate court have properly identified the decree schedule in O.S.81/1964 on the file of Munsiff Court, Mananthawadi and the plots over which the resistors have obtained certificates of purchase from the Land Tribunal on the basis of the documents relied on by them?_ _h) Are the Executing Court and the 1[st] appellate court justified in allowing restitution in favour of the petitioner in E.P.63/1987 of the entire decree schedule property in O.S.No.81/1964 on the file of the Munsiff Court, Mananthawadi?_ Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 22 _i) Whether Executing Court and the First Appellate Court are justified in granting reliefs to the execution petitioner without correctly comprehending the pleadings and evidence in the case and also the legal aspects involved.”_ 11. Execution Second Appeal No.19/2021 has been filed against the cross appeal in A.S. No.23/2020 on the file of Subordinate Judge's Court, Sulthanbatheri, which was filed against the denial of mesne profit by the petitioners 2 and 4 to 7 in E.P. No.63/1987 in O.S. No.81/1964 on the files of Munsiff's Court, Mananathawady. 12. At the time of admission, this Court formulated the following substantial question of law: _“A. Whether the petitioner in a restitution application can be deprived from getting mesne profits from the original decree holder and the illegal occupants deriving rights under that Decree Holder merely on the ground that improvements were made to the property by them._ _B. What is the quantum of mesne profits that an application for restitution is entitled to get: whether it is limited to the income that he might have obtained had he been in possession of the land, or is he entitled to get as compensation the actual income derived by the illegal occupants from the land?_ Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 23 13. Notice issued to the respondent/petitioners in Ext.S.A.Nos.13, 14, 15, 17, 18 and 19 of 2021. Respondents appeared through counsel. 14. Since all the appeals arise out of common judgment all the appeals were heard together. Argument notes also filed by the appellants in Ex.SA. No. 17/2021, 18/2021 as well as respondent Nos.1 to 5 in Ex.SA. No.14/2021, 15/2021, 17/2021 and 18/2021. Separate argument notes were also filed in Ex.SA.No.19/2021 which was filed against the denial of claim for mesne profits by the petitioners in E.P. No.63/1987. 15. (For convenience, parties would be referred as per their status in E.P.No.63/1987 of the Munsiff's Court, Mananthavadi unless otherwise expressly mentioned). E.P. No.63/1987 has been filed for restitution of land as per the judgment in O.S. No.81/1964. The suit was filed by Eachome Devaswom/6[th] respondent (in short, Devaswom) against Mr.Vazhayil Thomas and others for permanent prohibitory injunction and alternatively for recovery of possession of 15 acres of land comprised in Resurvey No.150/1A1A of Anjukunnu Amsom. Originally the suit was decreed as per judgment and decree dated 18.07.1966 allowing recovery of possession on the strength of title finding that Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 24 Mr.Thomas was in possession of the property without any right. Devaswom filed E.P. No.59/1966 for execution of the decree and the suit property was delivered to Devaswom on 31.1.1967 through Court Amin. Against which Mr.Thomas filed appeal before the Subordinate Judge's Court, Thellichery and it was numbered as A.S. No.69/1967. After setting aside that judgment the case was remanded, directing to consider the claim of tenancy set up by Mr.Thomas. 16. The trial court again decreed the suit restraining Mr.Thomas from trespassing into the suit property, since delivery was already effected and Devaswom was in possession of the property. The matter was again challenged by Mr.Thomas before the District Court, Thellichery, and it was again remanded for fresh consideration of the tenancy claim. Thereupon the trial court found that Mr.Thomas was a deemed tenant of the suit property and dismissed the suit on 28.2.1975. Devaswom went in appeal before the Subordinate Judge's Court, Thellichery as A.S.No.151/1975. That appeal was dismissed and Devaswom took up the matter before the High Court of Kerala which was numbered as S.A.No.917/1977. The High Court dismissed the appeal and confirmed the judgment and decree passed by the trial Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 25 court. Thereafter E.P. for restitution of the property taken from him in execution of the decree has been filed and which is numbered as the present E.P. No.63/1987. 17. It is on the 3[rd] round of litigation that the suit filed by the Devaswom was dismissed, finding that Mr.Thomas was a deemed tenant of the suit property and is entitled for the benefit under Section 7(D) of The Kerala Land Reforms Act, 1963 (Act 1 of 1964) as amended by Act 35 of 1969. Thereby, it was found that the 1[st] defendant ie. Mr.Vazhayil Thomas is entitled for fixity of tenure as a deemed tenant. Accordingly, suit was dismissed. Exhibit B17 is the certified copy of that judgment in A.S. No.151/1975. 18. E.P.No.63/1987 for restitution was filed originally by Mr.Thomas against the respondents 1 to 5 and the Manager Echom Devaswom as the 6[th] respondent. The respondents 1 to 5 came into picture in E.P. in view of Exhibit A6 ie. the copy of the order in C.R.P.Nos.174, 175, 177, 178 and 179 of 1981 of this Court. Those C.R.Ps. arose out of S.M.C. Nos.22/77, 25/77, 2050/75, 2041/75 and 2055/75 of Land Tribunal, Kalpetta. Suo motu proceedings were taken as per the reports of the Special Revenue Inspector, Mananthavadi, proposing assignment Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 26 of properties involved in that case as to the respective first respondents in those Civil Revision Petitions. When notice was issued, the revision petitioner ie. Mr.Thomas filed petition stating that the properties involved in these cases are in his possession and he was declared as tenant of these properties as per judgment in O.S. No.81/1964 of Munsiff's Court, Mananthavadi. 19. Accordingly, he was impleaded as additional party in those S.M. cases. After enquiry, Land Tribunal found that respective respondents 1 to 5 herein are entitled to assignment of landlords rights and that was confirmed by the appellate authority in A.A.Nos.1278/79, 1279/79, 1331/79, 1332/79 and 1333/79. The respondents in those appeals before the appellate authority are the respondents 1 to 5 in the present E.P. against which the above-referred C.R.Ps were filed. 20. Learned Single Judge of this Court, while considering the revision petitions found that on evidence before the appellate Tribunal it cannot be said that finding is illegal or without jurisdiction. However, in order to safeguard the interest if any of the revision petitioner (Mr.Thomas), learned Single Judge found that in case revision petitioner is entitled to restitution pursuant to decree in O.S. No.81/1964 of Munsiff's Court, Mananthavadi and it Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 27 was found in those proceedings that any part of property covered by delivery mahazar in that is included in the certificates of purchase issued in S.M cases, rival claims of parties will be considered afresh and decided by the execution court and accordingly, revision petitions were disposed of without making any interference in the judgment of the appellate authority. It is in pursuance of order in C.R.P. that Mr.Thomas filed petition for restitution, E.P.No.63/1987 making the respondents 1 to 5 also as a party. Otherwise restitution ought to have been sought only against the 6[th] respondent, Devaswom who was the plaintiff/decree holder in O.S. No.81/1964. 21. In pursuance of the execution application filed by Mr.Thomas, trial court deputed an Advocate Commissioner to identify and demarcate the property described in the delivery mahazr in E.P. No.64/1966 in O.S. No.81/1964, which is the property taken from Mr.Thomas in execution of the decree. After recording the evidence of parties an order was passed by the court on 09.14.2013 holding that the property described in the delivery mahazar was not properly identified. The earlier Advocate, who prepared the plan expired and another commissioner was deputed. Mr.Thomas also died at the time of Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 28 passing the order on 09.4.2013 and his legal heirs were impleaded and they challenged order dated 09.4.2013 before this Court in O.P.(C) No.1804/2013. This Court as per order dated 22.05.2017 held that, the court cannot disown its own delivery mahazar and directed the Munsiff’s Court to order restitution and to consider the claim petitions if any against the delivery of the property. In pursuance of the order in O.P.(C) No.1804/2013 the learned Munsiff ordered restitution. 22. Thereupon, respondents referred above in E.P. filed applications under Order 21 Rule 97 which were numbered as E.A. Nos.6/2018 and 55/2018. The petitioners in E.A.No.55/2018 who are respondent Nos.2, 9, 10, 11, 12 and 13 in E.P. No.63/1987 alleged that the property schedule originally belonged to Devaswom, Devaswom let out 40 acres of land to one Omana Amma in 1959 and out of it she surrendered 18.5 acres to Devaswom in 1966 and retained the rest of the leasehold land. Omana Amma executed a marupattom in favour of Devaswom in respect of property retained by her and the petitioners are the persons claiming under Omana Amma and they have obtained certificate of purchase from Kalpatta Land Tribunal in respect of the properties in their possession. Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 29 23. According to respondents, decree in O.S. No.81/1964 is not binding on them and properties since they were not parties to the suit. The subject matter in O.S. No.81/1964 is never identified or demarcated and it is passed as a result of collusion between Mr.Thomas and trustee of Echom Devaswom. Petitioner in E.A. No.6/2018 who is the 1[st] respondent alleged that decree in O.S. No.81/1964 is not binding on him since he was not a party to that suit. He is not in possession of any part of property taken from Mr.Thomas in execution of the decree. Amin deputed to deliver property to Mr.Thomas's heirs came to the petitioner's property on 22.1.2018 and started measuring the same. According to him the property taken from decree holder is 500 metres south to his property. He is in possession of 15 acres of land in Anchukunnu village in Resurvey No.150/1A1A. 7 acres of land was gifted by his mother Omana Amma in 1969. She surrendered 18.5 acres of land out of 40 acres taken on lease and then she and the then trustee of Devaswom executed a Koottumarupattam in 1966, and it was registered as document No.1987 of Mananthavadi Sub Registrar Office. 24. It is also contended that Kuppathoor Damadhoran Nair taken 8 acres of land from Devaswom in 1959. He assigned 4 Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 30 acres of land out of the said 8 acres to Father Dizoosa and the remaining 4 acres to the 1[st] respondent in 1964. Father Dizoosa sold 4 acres of land purchased by him to the 1[st] respondent in 1966. So the 1[st] respondent in possession of 15 acres of land in Resurvey No.150/1A1A. It is a single plot consisting of the property purchased from Fr.Dizoosa, Mr.Damodharan Nair and also the property gifted by the mother. It is not the property taken from Mr.Thomas in execution of the decree in O.S. No.81/1964. The 1[st] respondent obtained purchase certificate with respect to the property possessed by him from Kalpetta Land Tribunal. Even though Mr.Thomas objected in issuing the purchase certificate, his claim was rejected and it has been found that the property in possession of the first respondent is not the property taken from Mr.Thomas. 25. The 5[th] respondent in E.P. also filed objection contending that the decree in O.S. No.81/1964 is not binding on him as he was not a party to the suit and the execution court can determine only the question arising between the parties to the suit. The 5[th] respondent being a stranger to the suit his rights cannot be determined in an application under Section 144 of the Code of Civil Procedure. The mother of 5[th] respondent had taken Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 31 on lease 12 acres of land in Resurvey No.150/1A1A of Anchukunnu Village. The mother's right was devolved upon the 5[th] respondent and his sister. The 5[th] respondent purchased his sister's right in property in the year 1974. He also obtained certificate of purchase in respect of property from Kalpatta Land Tribunal. 26. A plea of adverse possession has also been raised since Devaswom took delivery of the property in the year, 1967 and the suit between Devaswom and Mr.Thomas was finally disposed of on 28.02.1975. Application for restitution has been filed on 29.09.1987. Respondent Nos.3, 4 and 8 also filed objection raising identical contentions. 27. Legal heirs of Mr.Thomas, filed objection to E.A No.6/2018 and 55/2018 contending that the petitioners in the claim petitions are not strangers and they were claiming to be lessees under the Devaswom. The 3[rd] petitioner in E.A. No.55/2018 is wife of Mr.Sridharan Nambiar, who is the 4[th] plaintiff in O.S. No.81/1964. The petitioner in E.A. No.6/2018 is the brother in law of Mr.Sreedharan Nambiar. Devaswom is deliberately keeping away from the process of court. The claim of respondents that property of Mr.Thomas is situated 500 metres Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 32 towards south to their property is false. The property purchased by the petitioners in E.A.No.6/2018 is not part of the property schedule attached in execution petition. The purchase certificates obtained by the petitioners are not binding on Mr.Thomas or the successors. 28. PW1 and PW2 examined. Exhibits A1 to A10 marked from the side of the petitioner/decree holders. RW1 to RW4 examined and Exhibits B1 to B26 marked from the side of the respondents in E.P. The Commissioners report and sketches were marked as Exhibits C1 to C5. Again petitioner in E.A.No.6/2018 has been examined as PW1 and Exts.A1 to A13 were marked. No evidence from respondent's side adduced in E.A.No.6/2018. In E.A.No.55/2018 PW1 was examined and Exts.A1 to A23 were marked from the petitioners side and Exts.C1 to C5 were marked as Court Exhibits. There was no evidence from the respondents side. 29. The learned Munsiff considered the E.P.No.63/1987 and E.A.Nos.6/2018 and 55/2018 together and on appreciating the facts and circumstances and evidence adduced, came to a conclusion that the Advocate Commissioner had properly identified and demarcated the property got delivered from Mr.Thomas in Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 33 execution of decree in O.S. No.81/1964 and accordingly E.A. No.6/2018 and E.A. No.55/2018 were dismissed and plot marked with green ink in Exhibit C4 is ordered to be delivered to the petitioner. 30. Aggrieved by the common order passed by the learned Munsiff, the appellants filed execution appeals Nos.23, 24 and 25. Cross appeal was filed by the legal heirs of Mr.Thomas in A.S.No.23/2020 against refusal of claim of mesne profits. 31. Learned Subordinate Judge by the common judgment dated 30.6.2021 dismissed all the appeals with cost and confirmed the order passed by the learned Munsiff Magistrate Court, Mananthavadi. Aggrieved by the same the respondents filed the present Execution Second Appeal Nos.13, 14, 15, 17, 18 and petitioners 2 and 4 to 7 filed Ex.S.A.No.19/2021. 32. It has been contended by the learned counsel for the respondents that the E.P. No.63/1987 filed by Mr.Thomas itself is not maintainable, since it has been filed on the ground that he was dispossessed from the subject property on the basis of the decree. According to them O.S. No.81/1964 was ultimately decided in favour of Mr.Thomas only on the ground of deemed tenancy giving the benefit under Section 7(D) of Kerala Land Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 34 Reforms (Amendment) Act, 1969 (Act 35 of 1969) (in short 'the Act'). It is their contention that in order to claim the benefit under Section 7(D) of the Act Mr.Thomas should be in possession of the property as on 01.1.1970. It is contended by Mr.Thomas before the Munsiff’s Court that there was no actual delivery of the plaint schedule property and he continued to be in possession of the schedule property as on 01.1.1970 and hence, he is entitled for the benefit of Section 7(D) of the Act. Accepting the contentions he was given the benefit of Section 7(D) of the Act in A.S. No.151/1975 as well as in S.A. No.917/1977. It is contended that if at all he is not dispossessed and he has been in possession of the property on 01.1.1970, he is not entitled to file an application for restitution under Section 144 of Code of Civil Procedure, 1908 (in short ‘code’). It is also their contention that after obtaining a favourable decree finding that there was no actual delivery of the property for claiming benefit under Section 7(D) of the Act, petitioner is estopped from raising a contention in E.P. No.63/1987 that actual delivery was taken by the plaintiff pursuant to the decree passed in O.S.No.81/1964. According to them, Mr.Thomas cannot blow hot and cold and hence on that ground itself the execution petition ought to have been dismissed. Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 35 33. It is further contended that O.S. No.81/1964 was filed by Devaswom against the defendant Nos.1 to 5. Thomas in the written statement contended that out of 15 acres of property obtained by him from Devaswom which is described as B Schedule he assigned 5.25 acres in total on 16.7.1964 before the institution of this suit, an extent of 75 cents in favour of 2[nd] defendant, an extent of 3 acres in favour of 3[rd] defendant, an extent of 75 cents in favour of 4[th] defendant and an extent of 1.75 acres in favour of 5[th] defendant. Hence, as on the date of filing of the suit, 1[st] defendant is in possession of 9.75 acres only. So, the delivery of property was taken on 31.1.1967 from the defendants 1 to 5. Hence, execution petition filed by Thomas for redelivery of the entire 15 acres including the land assigned by him to defendants 2 to 5 is not maintainable in law. Since, the property of 9.75 acres retained by Thomas has not been specifically shown in the schedule of the execution petition, no reliefs can be granted to the petitioner. The defendants 2 to 5 in this suit have not filed any application for redelivery of the property taken possession from them. Hence Execution Petition for re-delivery filed with respect to entire 15 Acres by Thomas is not maintainable. Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 36 34. It is further contended that the property has not been identified and no attempt was made by Advocate Commissioner to identify the property with any of the documents with which the property could be identified. The Advocate Commissioner ought to have identified the property claimed by the 1[st] defendant Thomas with respect to Exhibits B22 to B25 documents by which he had sold the properties. It is also contended that petitioner Thomas during the examination before court (deposition is marked as Exhibit A9) has specifically stated that the northern boundary of the property claimed by him is road and eastern boundary is that of Pattuparambil Raman. Those boundaries does not find a place in the boundary shown by the Commissioner in C4 Plan. It is also their contention that even though Thomas would contend that his southern boundary is the property of Kyma, during evidence he deposed that the said property originally belonged to Chittakkattu Mani who obtained the same under Exhibit A8 and said Mani surrendered the property to Jenmi and from them Kyma took property on lease. But no document has been produced to prove the surrender of property by Chittakkattu Mani to Jemni and thereafter Kyma taking property on lease from Jenmi. It has been found by the 1[st] appellate court also that the plan submitted by Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 37 the Commissioner would not identify the plaint schedule property. 35. It is further their contention that there are parallel proceedings before Land Tribunal, Kalpetta, as claimed by the claimants in E.A No.6/2018 and 55/2018 and others and after due enquiry purchase certificates were issued. A report of the authorised officer in that case would state that the property of Chittakkattu Mani is about two furlong away from the property of the claimants in E.A.Nos.6/2018 and 55/2018. Against the purchase certificate issued in favour of the respondents ie. the claimants in E.A. Nos.6/2018 and 55/2018, though Thomas filed C.R.P.Nos. 174/1981, 175/1981 etc. it has been found by this Court that the finding of the appellate court is not illegal or without jurisdiction. Entitlement of the restitution of the petitioner in O.S. No.81/1964 was ordered if it is found in execution proceedings that any part of the property covered by the delivery mahazar in that suit is included in the certificate of purchase issued in S.M. cases, then only the rival claims will have to be considered afresh and decided by the execution court. So, in view of that observations by this Court in C.R.P. No.174/1981 and connected cases opportunity ought to have been given to the respondents. It is further contended that decision in C.R.P. Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 38 No.174/1981 and connected cases is binding on Thomas and without jurisdiction the execution court as well as the 1[st] appellate court found that the purchase certificate issued in favour of the respondents is against the provisions of the Kerala Land Reforms Act and Transfer of Property Act. While entering into such a conclusion courts below nullified the decisions of this Court in C.R.P. No.174/1981 and connected cases, that is also illegal and unsustainable. 36. Learned counsel for the legal heirs of Thomas i.e the petitioner in E.P. on the other hand would contend that the commission was taken in the execution petition by the petitioners and an experienced commissioner of Mananthavadi Bar was appointed. The Commissioner filed report and plan as Exhibits C1 and C2 which were remitted at the instance of the respondents 1 and 2 resulting in second report and plan marked as Exhibits C3 and C4 and after further remittal the Commissioner filed Exhibit C5 report. The respondents did not seeks to set aside or remit the report and merely filed an application to record their objection. Respondent No.5 Balakrishnan Nair in E.P. has not filed any claim petition not questioned the delivery order, hence there is no impediment in ordering delivery of plot 4A in C4 plan. Since, no Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 39 order was passed allowing or disallowing the claim for mesne profits, the petitioner filed cross appeal as A.S. No.23/2020 that appeal also dismissed and Ex.S.A. No.19/2021 filed against the dismissal of the cross appeal in A.S. No.23/2020. It is also his contention that no substantial question of law arises for consideration and the dispute raised merely on questions of facts and hence those findings cannot be challenged before this Court within the contours of Section 100 of the Code. 37. The learned counsel for the petitioners would further contend that the execution applications itself are not maintainable in law. Order 21 Rule 97 or 99 arises only when an applicant contends that the property sought to be delivered under the decree belongs to the petitioner and that his right is not dependent on the judgment debtor. An application under these rules arises only when the property sought to be delivered and the property over which the applicants claims right are the same. When the property possessed by the obstructor (respondents herein) are not alleged to be covered by the decree, there is no scope for application under Order 21 Rule 97 or 99 and such execution by the decree holder will be a case of excess execution, for which remedy of the third party is either a suit for injunction or Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 40 a suit for recovery of possession based on title. It is also his contention that if under the colour of decree for possession the decree holder is trying to get delivery of property belonging to third parties, such property is not covered by the decree, the remedy of such persons is to file a separate suit. 38. It is also his contention that the petitioner in an application for restitution need not establish his title to the land afresh and a claimant in an E.P. cannot question the right of decree holder to execute the decree. An executing court under Order 21 Rule 97 is unaffected by all other laws including Land Reforms Act and in execution, reference under Section 125 of the Kerala Land Reforms Act is also not necessary. The plaint schedule property in O.S. No.81/1964 is having two visible boundaries on East and south, east a road and south property of Paniyan Kyma and other two boundaries are Thannil Shesham i.e. of Devaswom. No objection has been raised about the property of Kyma by the respondents. So property of Thomas has been properly identified. He would also contend that Section 74 of the Land Reforms Act is an absolute bar against all leases after 01.4.1964, so any lease obtained after the cut of date is void. So Devaswom cannot grant any lease of land recovered from Thomas in 1967. Hence the Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 41 occupants of the land possessed by Thomas cannot get any valid right on the principle of lis pendens also. Kerala Land Reforms Act also is not an exemption to it. It is also his contention that Devaswom has not filed any counter in the E.P. and any objection to the location of property by the Commissioner. The delivery account by which Devaswom got possession from Thomas shows that Sreedharan Nambiar is one of the attesters. The other attester is Karunakaran Nair. But none of them were examined. 39. It is further contended that Sreedharan Nambiar is the husband of 2[nd] respondent Sobhana and 1[st] respondent Mohanan is his brother in law and petitioners 1 and 2 in E.A.No.55/2018 Sushama and Sajana are his daughters. So according to him there is proper identification of property by the Commissioner in C4 Plan and hence there is no reason whatsoever to interfere with the concurrent findings made by the execution court as well as the 1[st] appellate court. 40. Based on the above, following points were raised for consideration: i) Whether E.P.No.63/1987 filed is not maintainable since the petitioner/defendant obtained a decree in his favour on the ground of deemed tenancy under Section 7D of the Act? Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 42 ii) Whether E.P.No.63/1987 filed by deceased Thomas alone is maintainable since he admitted that prior to the institution of the suit he had sold 5.2 Acres of property in total to the second, third, fourth and fifth defendants and the delivery might have been effected from those defendants also? iii) Whether the claim petitions filed by the respondents are not maintainable since they did not admit that the claim have been raised with respect to the decree schedule properties in view of Order 21 Rule 97, 99 etc.? iv) Whether the property delivered as per Exts.A2 and A3 are identified by Ext.C4 plan? ## _Point No.(i)_ 41. The first argument of the respondents is with regard to the maintainability of the execution petition filed for restitution by the petitioner Thomas. According to them, the execution court as well as the 1[st] appellate court dismissed the suit filed by the Devaswom finding that the petitioner Thomas was a deemed tenant entitled for the benefit of Section 7(D) of the Act as amended by Act 35 of 1969. The 1[st] appellate court confirmed that judgment and this Court in Second Appeal also did not interfere with the finding of deemed tenancy found in favour of the Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 43 petitioner. It is true that there is specific finding by the execution court that the 1[st] defendant (Thomas) has been in possession of the suit property since 1961 and the plaintiffs are not entitled to recover possession of property from the 1[st] defendant since he is a deemed tenant, accordingly the suit was dismissed. 42. In appeal, A.S. No.151/1975 the 1[st] Appellate Court while discussing about the deemed tenancy in para 6 of the judgment it has been found that though PW1 speaks about the delivery of possession, there is no document to prove this fact. A copy of delivery account had not been produced nor has it been proved that actual delivery had been effected by the Amin. So it was found that it cannot be held that possession was taken by PW1 at any time before 01.1.1970 from the 1[st] defendant. Hence, it is presumed that 1[st] defendant continued to be in possession up to that date and even thereafter. So, it was found that the property is a forest land to which provisions of Madras Preservation of Private Forests Act, 1949 (in short 'M.P.P.F. Act') is applicable. Hence, all the conditions embodied in Section 7(D) of the Act are therefore fulfilled. So, the 1[st] defendant ie. Thomas can claim the benefits of Section 7(D) of the Act and he is deemed to be a tenant entitled to fixity of tenure and accordingly the order Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 44 passed by the trial court dismissing the suit was upheld. 43. The matter was taken up before this Court as S.A. No.917/1977 and this Court confirmed the finding of deemed tenancy. So, according to the learned counsel for the respondents, the petitioner got the suit dismissed by raising a contention of deemed tenancy on a finding that actual delivery had not taken place and he was not dispossessed and he continued in possession of the property and he was in possession of the property on 01.1.1970. After getting a dismissal of the suit by raising such a contention he cannot turn round and contend that he was dispossessed and to be restored in possession by filing this E.P. 44. In this context, the learned counsel for the petitioner would vehemently contend that Thomas had not taken any such contention of non delivery or continuing in possession of the property and it was such a finding entered into by the courts by drawing inferences. When a finding has been entered into by the court that delivery account was not produced and there is no evidence to show that he has been dispossessed and thereby it was presumed that he was continued in possession of the property, so as to get the benefit of Section 7(D) of the Act, it cannot normally be inferred that the court by themselves drawn Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 45 such an inference. It might have been based on the arguments advanced from the side of the petitioner that such a finding might have been entered into by the 1[st] appellate court and that has been confirmed by this Court. So, the contention of the learned counsel for the petitioner that Thomas has not put forward such a contention and it is only the court had entered into such finding and hence it is not binding on him and he never contended about non delivery of the property as per the decree etc. is not at all tenable. When the courts entered into a finding that he has not been dispossessed as per the decree and no document like delivery account has been produced etc. it would bind the party and he cannot now turn round and contend that he has not raised such a contention. 45. So, as rightly contended by the learned counsel for the respondents the petitioner in order to get benefit under Section 7(D) of the Act (Act 35 of 1969) after the third remand contended that he continued in possession of the property and court accepted his contention finding that documents pertaining to delivery of the property has not been produced and obtained a decree to the effect that he continued in possession of the property and ultimately obtained the decree availing the benefit Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 46 under Section 7(D) of the Act. 46. But, in the present case, while passing the common order in C.R.P.Nos.174/1981 and connected cases dated 28.11.1986 which were filed by Thomas against the order of the appellate authority in granting the purchase certificate to the respondents, this Court found that on the evidence before the Appellate Tribunal it cannot be said that the finding is illegal or without jurisdiction. However, the learned Single Judge of this Court further found that the rights, if any, of the revision petitioner, that is, the petitioner herein will have to be safeguarded and following observation has been made to safeguard the interest of the petitioner Thomas which reads thus: _“In case the revision petitioner is entitled to restitution pursuant to the decree in O.S.No.81/1964 of the Munsiff's Court, Mananthavadi and it is found in those proceedings that any part of the property covered by the delivery mahazar in that is included in the certificate of purchase issued in the SM cases, the rival claims of parties will be considered afresh and decided by the execution court I see no reason to interfere with the judgment of the Appellate Authority in these C.R.Ps”._ 47. So, the order in C.R.P.No.174/1981 and connected cases will give no room for doubt that the purchase certificate Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 47 issued in favour of the respondents have been upheld by the appellate authority and that was not interfered with or rather confirmed by this Court in the Civil Revision Petition filed against the order of the appellate authority by Sri.Thomas. While passing the common order Ext.A6 C.R.P.Nos.174, 175, 177, 178 and 179 of 1981 this Court upheld the order of the Land Tribunal issuing purchase certificate to the respondents which was affirmed by the appellate authority. Ext.A6 order in C.R.P would make it clear that this Court was not inclined to interfere with the order of issue of purchase certificate to the respondents. So, in effect, the order issuing purchase certificate to the respondents have become final. 48. The impact of issue of certificate of purchase is relevant to be appreciated. Section 72K(ii) of the Land Reforms Act, 1964 (Kerala) provides that certificate when issued shall be conclusive proof of assignment to the tenant of the right, title and interest of the land owner and the intermediaries, if any, over the holding or portion thereof to which the assignment relates and tenant means a cultivating tenant always in possession of the proceedings. Purchase certificate shall be conclusive proof of possession unless Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 48 it is set aside by competent authority or a court of law. It is relevant in this context to quote **Mathew v. Taluk Land Board : 1979 KLT 601** wherein the Hon'ble Supreme Court has held that evidentiary value of certificate of purchase could not be disregarded except whether it was inaccurate on its face, or has been obtained by fraud or collusion. 49. In **Lakshmi Bai v. Taluk Land Board : 1986 KLT 336** a learned Single Judge dealt with the evidentiary value of purchase certificate under Section 72K. In that case, Land Board held that claim of tenancy set up by the revision petitioner on the strength of a certificate of purchase was inadmissible. In that context, it has been held by the learned Single Judge that it is not open to the Board to disregard the evidentiary value of a certificate issued on the basis of determination of a fact by the Tribunal authorised to find the fact. To cancel or disregard such a certificate, there must be more than a finding of fact by fresh appreciation of evidence. The subsequent finding must disclose that earlier finding was vitiated by reason of fraud in the sense that relevant facts had been deliberately suppressed. In the absence of any such finding by the Board, it was found that the Board exceeded its jurisdiction in disregarding the purchase Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 49 ## certificate competently issued by the Land Tribunal. 50. In **Lakshmi v. Viswanathan : 1999 (2) KLT 621** , another learned Single Judge while dealing with Section 72K(ii) of the Act decided the question whether in the light of purchase certificate issued under Section 72K(ii) of the Act in favour of the tenant it be said that the person in whose favour such certificate is issued is not in possession of the property concerned. It is held that such certificate is issued by a competent Land Tribunal after finding that he is in possession of the property as a cultivating tenant and Section 72K(ii) of the Act says that such certificate when issued shall be conclusive proof of the assignment to the tenant as right title and interest of the land owner and the intermediaries if any over the holding or portion thereof to which assignment relates. It is also held that such certificate is conclusive proof of possession as well unless it is set aside by a competent authority or a court of law. The statutory enforcement in terms of Section 72K(ii) has to be honoured and a person claiming on the basis of such purchase certificate has to be taken as in possession of properties. 51. Admittedly, the respondents obtained purchase certificate from the Land Tribunal in SMC proceedings and that Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 50 was challenged by the petitioner Thomas before the appellate authority as well as before this Court. This Court while rejecting the claim of the revision petitioner (Thomas) in C.R.P quoted the observation of the Appellate Authority in paragraph No.4 of Ext.A6 order which reads thus: _“In the absence of any proof to show the actual extent for which the appellant claims fixity of tenure, it is not possible to say that the appellant is an interested person in respect of the land involved in the appeals.”_ 52. It is further found by this Court that on the evidence before the Appellate Tribunal, it cannot be said that the finding is illegal or without jurisdiction. So, this Court while refusing to interfere with the order of appellate authority rejected the claim of Thomas. It goes without saying that the purchase certificate issued in favour of the respondents under Section 72K(ii) is conclusive proof of possession of their respective tenaments. At the same time, while considering Ext.A6 revision petitions, the learned counsel for the petitioner (Thomas) submitted that the petitioner is entitled to restitution of property taken delivery from him. So, this Court while disposing the CRPs observed that in case the revision petitioner is entitled to restitution pursuant to the decree in O.S.No.81/64 and if it is found in those proceedings that Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 51 the property covered by the delivery mahazar is included in the certificate of purchase issued in SMC cases, rival claim of the parties will have to be considered afresh and decided by the execution court. So, the order of this Court in C.R.P actually enables the petitioner to claim restitution notwithstanding the fact that he obtained a decree in O.S.No.81/1964 by claiming the benefit under Section 7D of the Act as a deemed tenant. The Munsiff Court as well as the first appellate court dismissed the suit giving the petitioner the benefit under Section 7D of the Act finding that he was not dispossessed by the decree in O.S.No.81/1964 and no records to prove delivery has been produced before the court. The petitioner approaches the execution court for redelivery in pursuance of the order in C.R.P dated 08.01.1986. In paragraph No.4 of E.P.No.63/1987 which has been filed on 25.09.1987 the petitioner has averred about the purchase certificate issued to the respondents from the land Tribunal, Mananthavadi which was taken in appeal by him in A.A.No.1298/1997, 9279/1997, 1331/1979, 1332/1979, 133/79 and those were dismissed and against which he filed Ext.A6 C.R.P.No.174/1981 series. While so, the objections of the respondents have also been considered and accordingly in the Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 52 execution petition itself he made respondents 1 to 5 as parties along with 6[th] respondent Devaswom. So, when the E.P has been filed on the basis of Ext.A6 order in C.R.Ps wherein the specific observation is that if the peittoner is entitled to restitution pursuant to the decree in O.S.No.81/64 and in those proceedings if it is found that any part of property covered by the delivery mahzar is included in the certificate of purchase issued in the SM cases, rival claim of the parties will have to be considered afresh, this Court has given an option to the petitioner to establish that property covered by the delivery mahazar is not included in the purchase certificate. Since deemed tenancy has been found in favour of the petitioner, even if the property is delivered to Devaswom, de jure possession on the ground of deemed tenancy can only be taken as continued with the tenant, Thomas. Since the property is delivered in pursuance of the decree to the decree holder, the de facto possession is considered to be with the decree holder. Hence the contention of the respondents that petitioner has not parted with possession and hence he cannot seek for redlivery of the property and hence execution petition is not maintainable is not sustainable. 53. So also, as has been rightly contended by the learned Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 53 counsel for the petitioner, the respondents did not raise such a contention before the trial court or the first appellate court. It has been specifically contended by the first respondent who is the sole petitioner in E.A.No.6/2018 that the property taken from the petitioner is 500 metres south to the property of the respondent. So, they have no case that the property was not taken back from the petitioner in pursuance of the decree. Hence contention regarding the maintainability on the ground that the property was not got delivered to Devaswom from the petitioner in pursuance of the decree in O.S.No.81/1964, was not taken by the respondents either before the Munsiff's Court or before the first appellate court. So, in the second appeal the respondents cannot take up such a contention also. Point so answered in favour of the petitioners. ## _Point No.(ii)_ 54. The respondents have also got a contention about the maintainability of the claim for restitution filed by the first defendant Thomas in O.S.No81/1964 alone or his legal heirs with respect to the entire 15 Acres of plaint B schedule property. According to them, O.S.No.81/1964 was filed by the Devaswom against defendants 1 to 5 and the first defendant Thomas in the Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 54 written statement contended that out of 15 Acres of property obtained by him from Devaswom, he assigned 5.2 Acres in total on 16.07.1964, an extent of 75 cents in favour of 2nd defendant, an extent of 3 Acres in favour of third defendant and an extent of 75 cents in favour of 4th defendant and 1.75 Acres in favour of 5th defendant before the institution of the suit. Hence, according to them, as on the date of filing of the suit, the first defendant is in possession of 9.75 Acres only. Hence the execution petition filed for re-delivery by Thomas with respect to the entire 15 Acres including the lands already assigned by him is not maintainable in law since the defendants 2 to 5 have not filed any application for re-delivery of property taken possession from them also. The contention so advanced by the respondents appear to be not sustainable. Admittedly, the suit was dismissed finding that first defendant Thomas is a deemed tenant with respect to the plaint B schedule property. From the very beginning itself, the contention of the first defendant Thomas is that he had taken plaint B schedule property on lease from the Devaswom. No right as such has been found in favour of the defendants 2 to 5 while dismissing the suit by the trial court which has been confirmed by the first appellate court as also by this Court in second appeal. The order Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 55 in C.R.P Ext.A6 also would go to show that it was the first defendant Thomas who was contending all along against the respondents with respect to the land in question. The delivery receipt and report Exts.A2 and A3 also would not indicate that the property was taken possession from the defendants 2 to 5 also. 55. Moreover, since the suit has been dismissed finding deemed tenancy with respect to the plaint B schedule property upon the first defendant Thomas, Thomas alone can apply for restitution since the suit has been dismissed finding deemed tenancy upon Thomas and giving benefit under Section 7D of the Act to the deceased first defendant Thomas. So, the contention to the contra regarding the maintainability of the execution petition for restitution filed by the first defendant, the deceased Thomas alone is baseless and hence is hereby negatived. ## _Point No.(iii)_ 56. So also, the learned counsel for the petitioner argued at length about the maintainability of the claim petitions filed by the respondents. According to him, in order to maintain a petition under Section 97, they have to first admit that the property over which the claim is put forward is covered by the decree and if a property on which the claim is put forward is not covered by the Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 56 decree there is no scope for entertaining applications under Order 21 Rule 97 or Rule 99. According to him, such execution of decree will be a case of excessive execution for which the remedy of third party is to file a suit for injunction or for recovery possession based on title. Learned counsel would contend that since the respondents claim independent title over the property not covered by the decree, the claim petition itself is not maintainable. Learned counsel placed reliance on **Kanagasabhai Pathar v. Poornathammal :AIR 1947 MAD 458, R.L.Mitra v. Minoti Mazumdar and Ors. : AIR 1975 ALLAHABAD 424, A.Chidambar v. Leela : ILR 1989 KARNATAKA 3230, Bholanath Bondopadhyay v. Banarsilal Saraf and Ors. : AIR 1961 GUWAHATI 79** to support his contentions. But, that general rule cannot be made applicable to the present case because this is a case in which respondents 1 to 5 obtained purchase certificate from the Land Tribunal which went upto the High Court and the purchase certificate issued in favour of respondents 1 to 5 have been upheld and during the course of disposal of that matter, this Court made an observation with regard to the right of the petitioner that if at all he is entitled for restitution and then if it is found that the property covered by the Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 57 delivery mahazar is included in the purchase certificate issued in favour of the respondents, the rival claims have to be examined by the execution court. So, even if strictly speaking the petitioner could contend that claim petition under Section 97 or 99 is not maintainable, his application for redelivery itself is based on the observation of this Court in Ext.A6 that if it is found that he is entitled for redelivery it has to be further examined as to whether property covered by delivery mahazar is included in the certificates of purchase issued in favour of the respondents. Hence contention to the contra advanced by the counsel for the petitioner is not sustainable in this case. In effect, it is a question of identification of property. Only after identifying the decree scheduled property the question whether the property covered by the purchase certificates is included in it or not can be ascertained. ## _Point No.(iv)_ 57. The crucial question is whether the property to be redelivered in O.S.No.81/64 has been properly identified. It has been vehemently contended by the learned counsel for the respondents that the first appellate court has clearly found in paragraph 15 of the judgment that no man of ordinary prudence Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 58 would say that the method adopted by the Commissioner to identify the decree scheduled property is proper and accurate. But, in the absence of definite boundary marks to demarcate the plot the only remedy available before the Commissioner is to reconcile the available materials and formulate an opinion and it is further found that the execution court observed that Commissioner had made up humanly possible efforts to identify the property and therefore, his report need not be rejected. 58. In this context, learned counsel for the respondents would contend that while Thomas was recalled and examined as DW1 in O.S.No.81/1964 on 27.06.1966 he was asked about the boundaries of 15 Acres of property and he would state that the southern boundary is the property of Mani and the measurement of southern boundary is about 1½ chain. Further he deposed that the plaint schedule property is lying north-south. He would also state that he cannot clearly state the eastern boundary of his property and further deposed that it seems to be that of Raman Pattulavalappil and north-east road is a Panchayat road. So, according to the learned counsel for the respondents, while giving evidence as DW1 in the suit Thomas categorically stated that the measurement of southern boundary is 1½ chain. He is not specific Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 59 about the owner of the property on the eastern side though he subsequently added it as that of one Raman Pattulavalappil and northern boundary is described as panchayat road. But, in the commission report as well as in the decree schedule the eastern boundary is described as road. There is no road on the northern side of the property of Thomas also. 59. But, the E.P is for restitution of decree schedule properties and the execution court need only to be satisfied as to whether the property demarcated by the commissioner tallies with the schedule of property taken delivery from Thomas. Inconsistent evidence with respect to boundaries tendered by Thomas will not have any significance at this stage. It is in this background that the acceptability of the Commissioner's report will come into play. Ext.C1 report has been prepared by the Commissioner based on his inspection conducted on 25.01.1989, 02.07.1989, 12.08.1989 and 13.11.1989. Ext.C2 is the plan attached to the reports. It is reported that 'X' point was marked as shown by the 2[nd] petitioner at a distance of 4 chains from the road towards south west. Likewise from the road situated on the north at a distance of 7.5 chains towards west 'Y' point has been pointed out by the 2[nd] petitioner. It is further stated that 2[nd] petitioner could not point Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 60 out the 15 acres claimed by them from the west to north how much it extents. It is not impossible also according to the commissioner taking into account the lie of the land. Hence line was drawn from 'X' point and 'Y' point from north to west and south to west in the plan. The property in between so as to come to 15 acres, plan has been prepared. It is also reported that the above lines are drawn in between the well grown coffee and pepper plantation aged 20-25 years of age. It is further categorically stated that there is no means to identify 15 acres from the property possessed by five property owners. It is also stated that plan of the entire property has been taken and as per the statement of 2[nd] petitioner 15 acres has been demarcated in the plan and there is nothing to demarcate the decree schedule properties from the properties of the persons in possession of the properties. 60. Ex.C3 report and Ext.C4 plan are based on an additional inspection conducted on 22.02.1991 are also almost on the same line except that the southern boundary is shown to be in possession of Krishnan instead of Paniyan Kyma. So, the commissioner himself categorically reported that 15 acres have been demarcated by locating 'X' and 'Y' points as per the direction Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 61 of 2[nd] petitioner. The age of 2[nd] petitioner is stated as 35 years in 2003. Ext.A2 delivery account and Ext.A3 report would show that delivery was effected on 31.01.1967. So, how can a point be fixed by a commissioner as per the direction of 2[nd] petitioner and how can such a report be acted upon by a court of law as identification of decree schedule property having vast extent of 15 acres? It is in this context that the case of the respondents assumes importance. 61. Admittedly, Devaswom had filed O.S.No.82/1964 against 1[st] respondent, one Fr.Desouza, karunakaran Nair, father of the first respondent Mohanan for injunction with respect to 6 acres of property. In that, similar contention has been raised by Devaswom against 1[st] respondent and others, that is the defendants in O.S.No.81/1964. So, that would indicate that a case was pending against first respondent and others, at the time when the suit was filed against Thomas and others by the Devaswom. That would point to the fact that separate property has been held by the 1[st] respondent at the time when the case was filed against Thomas alleging trespass with respect to 15 Acres of property. Even though Thomas produced Elpanachit, both the courts were not inclined to accept it as genuine. He did not produce the Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 62 ## Elpanachit before the Land Tribunal proceedings also. 62. Respondents also brought to my attention Ext.B2 which includes proceedings of Collectorate, Kannur dated 05.05.1967 by which a show cause notice was issued to Mooppil Ananthan Nair and Thettavayal Omana Amma W/o.Edachira Karunakaran Nair intimating that an extent of 21.50 acres of land in re-survey No.150/1A/1A of Devaswom was unauthorisedly transferred as per document No.89/1966 of S.R.O Mananthavadi. The document was executed by Mooppil Anandan Nair and Echom Devawom Trust in favour of Omana Amma, Karunakaran Nair and document was executed without obtaining prior permission from District Collector as required under Section 3(1)(a) of MPPF Act and is invalid and both executant and executor of the document were directed to show cause. But, subsequently, the proceedings were dropped by the District Collector as per the report of Tahsildar, North Wayanad, Mananthavadi stating that from the records available in the office, the original transaction referred to was covered by a valid permit issued by the District Collector of Malabar, Kozhikode and further action was dropped. The proceedings of the District Collector, Kannur dated 27.02.1968 would go to show that as per application dated 30.08.1967 permission has been granted to Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 63 Omana Amma to cut trees and various produce from the block of forest measuring 21.50 acres in re-survey No.150/1A/1A of Devaswom. But the contention of the learned counsel for the petitioner is that Sri.Karunakaran Nair was a witness in Ext.A2 delivery account and Ext.A3 delivery receipt in O.S.No.81/1964 by which the property of petitioner Thomas was got delivered to Devaswom on 31.01.1967. According to him, Omana Amma is the wife of Karunakaran Nair and after obtaining the delivery of the property, the Devaswom and Karunakaran Nair collusively executed gift deed 987/66 in favour of his wife with respect to 21.50 Acres of land. The learned counsel would also contend that as per S.74(1) of the Act after the commencement of the Act on 01.04.1964 no tenancy shall be created in respect of any land and as per sub Section (2) any tenancy created in contravention of the provisions of sub Section (1) shall be invalid. So also, admittedly, this Devaswom has a total extent of 148.91 Acres of property in Sy.No.150/1A/1A in Kurumbalakotta Cheruvil, Kurumbla Hills. Ext.B1 is the certified copy of document No.987/66 executed by Ananthan @ Mooppil Nair, jenmi of Devaswom on behalf of the Devaswom in favour of Omana Amma in the style of 'paattam', 'marupaattam' agreement. It is stated in this document that Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 64 Omana Amma had taken the property having an extent of 40 Acres from Mooppil Nair from Muppathode Kelu @ Mooppil Nair orally and was in possession and enjoyment of the property and surrendered 18 Acres 50 cents and balance 21.50 Acres was in her possession and it is demarcated as 'G' in the plan attached to the document. It is this transfer which has been validated by the proceedings of the District Collector, Kannur dated 18.07.1967 in which there is specific mention of the records available in the office to the effect that the original transaction referred was covered by a valid permit issued by the Collector of Malabar, Kozhikode. So, whether this property is the property got delivered from the petitioner in execution of decree in O.S.No.81/1964 is a matter to be proved by properly identifying the decree schedule property on the site. 63. The learned counsel for the petitioner would vehemently contend that southern boundary of decree schedule property is the property of Paniyan Kyma. That has been clearly identified in Exts.C2 and C4 plans and that fact is not specifically challenged by the respondents. Ext.A1 certified copy of plaint in O.S.No.81/1964 and Ext.A2 delivery account in E.P.No.54/66 in O.S.No.81/64 would show that the southern boundary of plaint B Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 65 schedule and the property delivered to Devaswom as per E.P.No.54/1966 is way and property of Kyma. Ext.C2 plan describes southern boundary of E.P schedule property as property of Paniyan Kyma. In Ext.C4 southern boundary is shown as property of Kyma (presently of Krishnan). So, as far as the boundary on south shown as property of Kyma tallies with the description in the delivery account. But the way shown on the southern boundary is not located. So the portion of the southern boundary shown as that of Kyma appears to be correct. But, it does not tally with the full southern boundary in Exts.A1 to A3 since way portion is not located in Exts.C2 and C4. It is true that the learned counsel for the respondent would draw my attention to Ext.B15 (series) which includes copy of the report of Special Revenue Inspector in S.M.C.No.2050/75 with a request that S.M.C.Nos.24/77, 25/77, 2041/75, 2055/75, 2054/75 and 22/77 to be heard together. In that report, Special Revenue Inspector has reported that the properties booked in seven SMC cases and the properties stated to be in possession of Vazhayil Thomas are identified and are not one and the same property. It is consequent to that the Land Tribunal issued purchase certificate in favour of the contesting respondents and it has become final also. Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 66 However, while disposing CRPs as per Ext.A6 order this Court gave direction which have been extracted in the previous paragraphs that if any part of property covered by the delivery mahazar is included in the certificates of purchase issued in S.M cases rival claims of the parties have to be considered afresh. For that property covered by the delivery mahazar has to be identified and located first. So Ext.B15 (series) report of Revenue Inspector cannot be acted upon straight away by this Court. 64. Learned counsel for the petitioners would further contend that Balakrishnan Nair (Respondent No.5) did not file any claim petition nor contested the matter. Hence property demarcated by the Commissioner in the possession of Balakrishnan Nair can be redelivered to the petitioners. It has already been found that Commissioner's reports and plans are not acceptable. So a part of property cannot be redelivered to the petitioners for the reason that the said respondent did not contest the matter. 65. Learned counsel for the petitioners also emphasised the conduct of Devaswom in remaining ex-parte to the proceedings. According to him, 7[th] respondent in the E.P is Devaswom, which has taken delivery of the property from Thomas. He would also contend that Exts.A2 and A3 would show that while Devaswom Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 67 took delivery of the property from Thomas, Sreedharan Nambiar was one of the witnesses. So, he is quite aware of the property taken delivery by Devaswom. Sreedharan Nambiar is the husband of Sobhana, 2[nd] respondent and first respondent is his brother-inlaw. Sushama and Sajna, petitioners 1 and 2 in E.A.No.55 are his daughters. So, his absence or non-examination led the courts below to draw an adverse inference regarding identity of the property, the learned counsel contends. It is true that if Sreedharan Nambiar or the Devaswom, the 6[th] respondent who got delivery of property from Thomas would have been able to identify the property got delivered. But, Devaswom remained ex parte. Even otherwise, it is the petitioner who seeks redelivery and hence burden is upon the petitioners to identify the property to be redelivered to them. In the previous paragraphs I have already discussed the method adopted by the Commissioner in identifying the property and how unscientific it was in demarcating properties. So, the initial burden to identify the decree schedule properties is upon the petitioners themselves. Only on identification of that property the burden shifts to the respondents to show that it includes the property with which purchase certificates have been issued to them. Then only a proper Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 68 evaluation of rival claims of parties can be had afresh by the court. 66. It is true that case is of 1964 and delivery was effected on 31.01.1967 and decree was passed dismissing the suit in the 3[rd] round as per judgment and decree dated 28.2.1975 and it has become final as per judgment in S.A.No.917/1977 dated 25.10.1977 (Ext.A16 (B18)). But that should not be a criterion to order restitution of 15 acres of property without identification. 67. In the result, all the appeals are allowed and Exts.C1, C2, C5 reports and Ext.C2 and C4 plans are set aside and consequently the impugned common judgment and decree in all Appeals are set aside and cases are remanded to the Execution Court. The Execution Court shall appoint a fresh commission with the aid of Taluk Surveyor to identify the property covered by delivery mahazar. On identification of the said property the commissioner shall idenify whether any property covered by delivery mahazar is included in the certificate of purchase issued in S.M cases of the respondents (claim petitions in E.A.No.55/2018 and E.A.No.6/2018). Thereafter, the execution court shall consider rival claims of parties afresh as directed in Ext.A6 order in C.R.P.No.174, 175, 177 and 1 78 of 1981 dated Ex.S.A.Nos.13 of 2021, 14 of 2021, 15 of 2021 17 of 2021, 18 of 2021 & 19 of 2021 69 28.01.1986 which enabled the petitioner to file petition for restitution after confirming the order issuing purchase certificates to the respondents/claimants. Thereafter only the claim of mesne profit of the petitioners can be determined on bringing out sufficient materials from their side. 68. Since the appeals arouse out of an old matter, learned Munsiff is directed to take earnest effort to dispose of the matter, as expeditiously as possible. **Sd/-** **M.R.ANITHA, JUDGE** jsr/SMF