Ex.SA Nos.1 & 4 of 2010

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD THURSDAY, THE 10TH DAY OF NOVEMBER 2016/19TH KARTHIKA, 1938 Ex.SA.No. 1 of 2010 ( ) ------------------------ AGAINST THE JUDGMENT DATED 08-12-2009 IN AS 5/2008 of ADDITIONAL DISTRICT COURT,ALAPPUZHA. AGAINST THE ORDER DATED 21-11-2007 IN EA N.585/1997 IN OS NO. 4/1986 of SUB COURT, CHERTHALA APPELLANT/RESPONDENT/CR.PETITIONER/DECREE HOLDER: ------------ * V.PURUSHOTHAMAN, S/O.VELU, AGED 78 YEARS, KALATHILPARAMBIL, PERUMTHURUTH MURI, KANJIKUZHI VILLAGE. (DIED. LR'S IMPLEADED.) LR'S OF DECEASED SOLE APPELLANT A1 IMPLEADED. ADDL.A2. P.SHAJI, S/O.LATE V.PURUSHOTHAMAN, KALATHILPARAMBIL, PERUMTHURUTH MURI, KANJIKUZHI VILLAGE. ADDL.A3. S.GIRIJA, D/O.LATE V.PURUSHOTHAMAN, KALATHILPARAMBIL, PERUMTHURUTH MURI, KANJIKUZHI VILLAGE. ADDL.A4. S.SHYLAJA, D/O.LATE V.PURUSHOTHAMAN, KALATHILPARAMBIL, PERUMTHURUTH MURI, KANJIKUZHI VILLAGE. ADDL.A5. S.SHEELA, D/O.LATE V.PURUSHOTHAMAN, KALATHILPARAMBIL, PERUMTHURUTH MURI, KANJIKUZHI VILLAGE. ADDL.A6. S.SHEEJA, D/O.LATE V.PURUSHOTHAMAN, KALATHILPARAMBIL, PERUMTHURUTH MURI, KANJIKUZHI VILLAGE. *LR'S OF DECEASED SOLE APPELLANT IMPLEADED AS ADDL.A2 TO ADDL.A6 AS PER ORDER DATED 8/1/13 IN IA. 1541/11. BY ADVS.SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW SRI.M.D.SASIKUMARAN SRI.DIPU JAMES RESPONDENT/APPELLANT/CLAIM PETITIONER: -------------- ASOKAN, S/O.DAMODARAN, KALASSIVELIYIL, KANJIKUZHI VILLAGE. BY ADV. SRI.R.AZAD BABU THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31-10-2016, ALONG WITH EX. S.A. NO.4/2010, THE COURT ON 10.11.2016 DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** ## **--------------------------------------** ## **Ex.S.A. Nos.1 & 4 of 2010** **-------------------------------------Dated this the 10[th ] day of November, 2016** ## **COMMON JUDGMENT** These appeals have been admitted on common questions of law by a learned single Judge. They are: _“(1) Has not the lower appellate court committed a grave error in construing Ext.B2, A1 and A2 documents, which would go to show that predecessor-in-interest of the respondents have got title and possession of 60.468 cents instead of 71 cents as found by the court?_ _(2) Is not the lower appellate court justified in not looking into Ext.A8 document, which clearly goes to show that the predecessorin-interest of the appellant had title to and possession of 90 cents?”_ 2. Heard the learned counsel appearing for the appellant and respondents. 3. Execution court disposed of two applications filed under Order XXI Rule 99 and Order XXI Rule 58 of the Code of Civil Procedure, 1908 (“the Code”). E.A.No.585 of 1997 is an application filed by the sole respondent in Ex.S.A.No.1 of 2010 (who is the 1[st] respondent in Ex.S.A.No.4 of 2010) herein invoking Order XXI Rule 99 of the Code. It is 2 Ex.S.A.Nos.1 & 4 of 2010 his contention that he, along with his mother, brothers and sisters, is in absolute possession and enjoyment of the petition schedule property. Its extent is 10 cents, situate on the southern portion of 47 cents of property, which the respondent's father obtained by virtue of a partition deed bearing No.4758 of 1965 dated 20.12.1965. Till death, the respondent's father was holding the property and after his death, it devolved on his legal heirs. Appellant obtained a decree in respect of 33 cents of property, viz., 26 cents in survey No.157/5 and 7 cents in survey No.157/6/2. It lies on the southern side of the petition schedule property. Petition schedule property was not included in the suit in which the appellant got the decree. The decree passed in favour of the appellant is not binding on the respondent. Petition schedule property was wrongfully delivered to the appellant even though that never formed a part of the decree in the appellant's suit. Hence the respondent claimed re-delivery of the property. 4. An additional affidavit is also filed by the respondent. According to him, an extent of 71 cents out of 83 cents comprised in survey No.157/6/1 of Kanjikuzhy Village was purchased by Kumari Neelakandan under sale deed No.524 of 1100 ME of SRO, Mararikulam. While he was in possession of the entire property, he gifted an extent of 61 cents out of 71 cents of property to Damodaran and others under a gift deed No.1049 3 Ex.S.A.Nos.1 & 4 of 2010 of 1100 ME. After death of Neelakandan, 61 cents alone was partitioned among Damodaran and others under partition deed No.475 of 1965. Remaining 10 cents out of 71 cents of property was in the possession of respondent's father Damodaran, who was the eldest son of Kumari Neelakandan. By the said partition, A schedule property, which is having an extent of 37 cents, was allotted to Damodaran and he was in exclusive possession and enjoyment. He enjoyed the above said 10 cents along with 37 cents which is situated on the southern side of the entire property in survey No.157/6/1 of Kanjikuzhy Village. Therefore, the respondent is having right, title and possession over the property. 5. Appellant filed a counter statement contending that the application under Order XXI Rule 99 of the Code is not maintainable. The description of property shown in the schedule is incorrect. Respondent has no manner of right over the property. Therefore, he is not entitled to get redelivery of the property. 6. According to the appellant, an extent of 90 cents of Kalathiparambu purayidom, including the decree schedule property, originally belonged to Vava Thankappan @ P.V.Thankappan and Madhavi. While they were in possession of the property, they jointly executed a registered mortgage deed in favour of Pattanakkad Coir Vyavasaya 4 Ex.S.A.Nos.1 & 4 of 2010 Sahakarana Sangam No.104 bearing No.1841 of 1957 and availed a loan from the Sangam. Since the loan was defaulted, the Sangam filed a suit before the Registrar of Co-operative Societies and obtained an award. Suppressing these facts, Thankappan and Madhavi effected a partition in 1984 by a deed bearing No.1475 of 1984. Concealing the existence of a charge decree, Thankappan executed a sale agreement in favour of the appellant. After execution of the said agreement, Thankappan refused to execute a sale deed in favour of the appellant. Therefore, the appellant filed O.S.No.4 of 1986 for specific performance of the agreement and obtained a decree. Against the decree, the defendant in the suit preferred an appeal as A.S.No.38 of 1993. Ultimately the litigation came to an end by the judgment and decree passed by this Court in S.A.No.343 of 1994. That decree of this Court was sought to be executed by the appellant. Vava Thankappan and after his death, his legal heirs were trying to obstruct execution of the decree. When they were unable to resist process of the court, they instigated the respondent and his brothers to obstruct the execution of the decree. When the decree holder (appellant) tried to execute the decree, the respondent and his fellowmen obstructed execution by raising dispute regarding identity of the property. Therefore a commissioner was deputed to identify and locate the decree schedule 5 Ex.S.A.Nos.1 & 4 of 2010 property. Even that commissioner was obstructed by the respondent. However, the commissioner filed a wrong report and plan before the court. Ultimately as per the directions of this Court, a Senior Advocate, Sri. G.Janardhana Prabhu was deputed to measure out the decree schedule property with the help of Superintendent of Survey and Land Records, Alappuzha. They were too obstructed by the respondent and his colleges. With police assistance, the commissioner identified the decree schedule property with the help of Superintendent of Survey and Land Records. After identifying the decree schedule property, it was delivered to the appellant through process of the court. 7. It is further contended that the respondent along with his brothers, sisters and mother had filed E.A.No.471 of 1997, obstructing delivery of the decree schedule property. When that petition came up for hearing, it was not pressed at the instance of the respondent and hence it was dismissed. For these reasons, the respondent has no right to file such a petition because he has no locus standi to claim redelivery. All the averments in the petition are incorrect. 8. E.A.No.226 of 1998 is an application filed by the respondent under Order XXI Rule 58 of the Code. Contentions raised by the respondent are similar to that in E.A.No.585 of 1997. According to him, the 6 Ex.S.A.Nos.1 & 4 of 2010 property under attachment for execution of the decree in O.S.No.4 of 1986 never belonged to the judgment debtor. As mentioned above, the property belonged to the respondent and the appellant has no right to attach the property in execution of the decree in O.S.No.4 of 1986. 9. Appellant resisted all the contentions contending that he is entitled to attach and sell the property for recovery of mesne profit granted by the decree in O.S.No.4 of 1986. It is his further contention that the respondent or any person other than the judgment debtor has no right over the petition schedule property. 10. Heard the learned counsel for the appellant and the learned counsel for the contesting respondent. 11. Learned counsel for the appellant submitted that the lower appellate court upturned the considered finding of the execution court without reliable materials. According to him, the legally correct approach taken by the execution court was reversed for incorrect reasons. Per contra, the learned counsel for the respondent submitted that the lower appellate court considered the points from the correct perspective. 12. In the order of chronology, the first document relevant is Ext.B2. That is an assignment deed executed by one Pappy in favour of Kumari Neelakandan. In Ext.B2, it is mentioned that Pappy obtained the 7 Ex.S.A.Nos.1 & 4 of 2010 property by virtue of a gift deed and it was having a total extent of 83 cents. Out of that extent, a portion of property lying on the southern side was not included in Ext.B2. Measurement of the properties is seen described in 'kambalavu'. It is an admitted case that 'kambalavu' was prevalent during olden times. It has come out in evidence that 'one kambu' is '15 links'. Measurements in Ext.B2 would show that Kumari Neelakandan obtained a property having measurement of 12½ kambu in east-west direction and 21½ kambu in north-south direction. Reckoning 'one kambu' as '15 links', the extent of property in Ext.B2 will work out to be 60.468 cents. It is the definite contention of the appellant that Kumari Neelakandan has obtained only 60.468 cents as per Ext.B2. This is the property on which the contesting respondent and his siblings claimed a right. 13. Learned counsel for the appellant contended that in Ext.A2 partition deed of the year 1965, they have enhanced the extent from 60.468 cents to 71 cents. It is the contention of the appellant that the contesting respondent has no claim that he derived right in the property by any document other than Ext.B2. It is clear therefore that the contesting respondent could not have claimed any extent more than 60.468 cents. Consequently, the claim for 71 cents of property is bereft of any bonafides. The specific recital in Ext.A2, stating that though 71 cents have been 8 Ex.S.A.Nos.1 & 4 of 2010 mutated in the name of Kumari Neelakandan, the gift deed executed by him related to 61 cents only, is also brought to my notice. It is also mentioned that no property other than those included in Ext.A2 was available for partition among the sharers. Ext.A1 is the gift deed executed by Kumari Neelakandan in favour of the contesting respondent's father Damodaran and his siblings. The title traced therein is Ext.B2. Recitals in Ext.A1 would show that a property having an extent of nearly 61 cents was gifted to the donees. It is the contention of the appellant that none of the documents produced by the contesting respondent would show that apart from 61 cents included in Ext.A2 partition deed, 10 cents of land was also obtained in possession from Kumari Neelakandan. 14. It is an admitted fact that out of 61 cents of property included in Ext.A2 partition deed, 37 cents was set apart to the contesting respondent's father Damodaran. Now he claims right, title and possession in respect of 47 cents, including the 10 cents, said to have been not included in Ext.A1 gift deed. In order to establish that contention, firstly it must be shown that Kumari Neelakandan obtained this property as per Ext.B2. Then it has to be proved that this 10 cents was lying separate from the property covered by Ext.A1 gift deed. No specific reason is discernible from Ext.A2 partition deed for not including this 10 cents claimed by the 9 Ex.S.A.Nos.1 & 4 of 2010 contesting respondent. He should have shown cogent reasons for holding that property as legal heir of deceased Kumari Neelakandan and also that the contesting respondent, along with others, has title over the property. 15. Learned counsel for the contesting respondent contended that total extent of the property in survey No.157/6/1 is 83 cents. Out of that 71 cents was purchased by Kumari Neelakandan as per Ext.B2. According to him, 'kambalavu' shown in the document does not reflect the correct extent. Actually, the property was having 71 cents though in subsequent documents, including Ext.A2 partition deed, it was wrongly described as 61 cents. 10 cents now in dispute was neither included in the gift deed nor in the partition deed. It lies as common property. Even though a plea of adverse possession and limitation in respect of this 10 cents was raised, it is seen that the plea was later given up. It is the contention that as per Ext.A2 partition deed, 37 cents of property was allotted to Damodaran, but he was in possession of 10 cents also, derived from his grandfather Kumari Neelakandan. It is fairly conceded by the learned counsel for the contesting respondent that there is no document evidencing the fact that the respondent and his father derived any exclusive title or possession in respect of the disputed 10 cents, except some entries in the revenue records. 10 Ex.S.A.Nos.1 & 4 of 2010 16. Learned counsel for the appellant relying on Ext.A7 series proceedings initiated by the Cherthala Co-operative Agriculture and Rural Development Bank Ltd. contended that the respondent's father had admitted that he had right and possession over 37 cents of land only. Ext.A7 series take in an auction notice and a proclamation for sale of immovable property as the persons mentioned therein had defaulted repayment of loans availed from the bank. These documents will go to show that at the material time, Damodaran, father of the contesting respondent, had asserted right in respect of 37 cents only. 17. Ext.A6 is the revenue list. It is well settled that entries in revenue records cannot confer title on a person. Therefore, based on Ext.A6, the case of the respondent cannot be decided. The trial court correctly found that the respondent has failed to prove his or his predecessor's possession over 10 cents of property scheduled to in E.A.No.585 of 1997. With reference to the delivery kychit, the trial court held that the property delivered to the appellant herein was 7 cents in survey No.157/6/2 and 26 cents in survey No.157/5, which does not include the petition schedule property. With these reasons redelivery claim was denied. 18. The lower appellate court placing reliance on **Babu Raj v.** 11 Ex.S.A.Nos.1 & 4 of 2010 **Vasanthi Devi (2008 (4) KLT 761)** held that the obstructor (contesting respondent) stood in the place of a defendant and it was for the appellant to establish his right over the property. It is seen that the lower appellate court is carried away by the contention that the disputed 10 cents belonged to the contesting respondent by way of a kudikidappu right. It is strongly opposed by the learned counsel for the appellant that there is no specific plea ever raised regarding kudikidappu. 19. The discussion regarding merit of the claims is confined to paragraph 13 of the lower appellate court's judgment. It is not evident as to what reason prompted the lower appellate court to set aside the well reasoned order of the execution court. It is well settled principle in law that the appellate court shall not substitute its view, if the view taken by the lower authority is also a reasonably probable one. I find from the disputed judgment of the lower appellate court that it has not mentioned any valid reason for finding that the contesting respondent is entitled to redelivery. Therefore, I set aside the finding of the lower appellate court in this regard and restore the finding of the execution court that E.A.No.585 of 1997 filed under Order XXI Rule 99 of the Code is not allowable as the contesting respondent has not established any reason to get redelivery. 20. Another execution application filed before the lower appellate 12 Ex.S.A.Nos.1 & 4 of 2010 court is one under Order XXI Rule 58 of the Code. The execution court noticed that the property involved as per order on E.A.No.425 of 1995 is 14 cents on the northern side of 75 cents falling within 90 cents of kalathiparambu purayidom comprised in survey Nos.157/5 and 157/6. It has come out in evidence that kalathiparambu purayidom, having an extent of 90 cents, was lying contiguously as a single plot covered by specific boundaries. Kalathiparambu purayidom was owned and possessed by the original defendant in the suit is an admitted fact. The property owned by the original defendant Vava Thankappan was situated on the southern side of the property owned by Kumari Neelakandan. It was identified that kalathiparambu purayidom was lying immediately on the south of 61 cents of property covered by Ext.A1 gift deed. Ext.A8 would show that kalathiparambu purayidom was mortgaged to a co-operative society in 1957 by the original defendant in the suit. There was an agreement to assign in respect of 33 cents out of 76 cents in survey Nos.157/5 and 157/6, which is the subject matter of O.S.No.4 of 1986. It has also come out in evidence that from out of the remaining 43 cents, 10 cents was given to the decree holder by way of kudikidappu and 33 cents was obtained by another person pursuant to the decree in O.S.No.34 of 1987. Remaining 14 cents, out of total extent of 90 cents of kalathiparambu purayidom, was Ex.S.A.Nos.1 & 4 of 2010 13 sold by Thankappan and Madhavi. The trial court relied on the commissioner's report to find that there is no property as scheduled to E.A.No.226 of 1998 lying distinctly identifiable. This finding was also upset by the lower appellate court for thoroughly unsatisfactory reasons. Therefore, these questions of fact, which are properly decided by the execution court, cannot be reagitated in these execution second appeals. 21. Learned counsel for the appellant contended that the view taken by the learned Single Judge in **Babu Raj** 's case that the obstructor stands in the place of a defendant is legally incorrect. To buttress this contention, learned counsel for the appellant placed reliance on **Ittiyachan v. Tomy (2001 (3) KLT 117)** , a decision by a division bench of this Court. It is categorically mentioned in **Ittiyachan** 's case that an obstruction under Order XXI Rule 97 or a claim for redelivery under Order XXI Rule 99 of the Code can be maintained by a person, who is not bound by a decree or who claims an independent right over the property. After amendment of the Code in the year 1976, mere possession by the claimant would not be sufficient and the claimant has to show a right to possession independent of the judgment debtor. It is further held that it is necessary for the claimant to show that he has got a right in the property which is not affected or which cannot be affected by the decree in execution of which it was 14 Ex.S.A.Nos.1 & 4 of 2010 delivered. 22. In order to contend that the view taken by a learned Single Judge in **Babu Raj** 's case is legally incorrect, reliance is placed on **Ashan Devi and another v. Phulwasi Devi and others ((2003) 12 SCC 219)** and **Sameer Singh and another v. Abdul Rab and others ((2015) 1 SCC 379)** . On going through these authorities, I am of the view that the proposition enunciated by the learned Single Judge that the person preferring a petition under Order XXI Rule 99 of the Code can be equated to a defendant is not tenable because he will have to establish his right to claim redelivery or to claim lifting of the attachment. It is also interesting to note that an application, E.A.No.471 of 1997 filed under Order XXI Rule 97 of the Code was dismissed as not pressed before presenting these applications. 23. In second appeals of this nature, there are lot of limitations in reappreciating facts asserted and proved by the rival parties, Nonetheless, it is clear that the lower appellate court has upset the finding of the execution court for unacceptable reasons. Therefore, there is miscarriage of justice caused by the perverse appreciation of evidence. Moreover, the contesting respondent has failed to establish that he has right over the property covered by the petitions. Therefore, I am of the view that the 15 Ex.S.A.Nos.1 & 4 of 2010 lower appellate court's common judgment in respect of the applications cannot be sustained. In the result, both the appeals are allowed. The impugned common judgment passed by the lower appellate court is hereby set aside. The common order passed by the execution court in E.A.Nos.585 of 1997 and 226 of 1998 is restored. Parties are directed to suffer their respective costs. All pending interlocutory applications will stand closed. ## **A. HARIPRASAD, JUDGE.** ## **cks**