K. Harischandra Hollа v. K. Mohammed Haneef

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 1ST DAY OF AUGUST 2016/10TH SRAVANA, 1938** ## **OP(C).No. 1239 of 2016 (O)** **-----------------------------------** **PETITIONER:** **-----------------------** **K.HARISCHANDRA HOLLA S/O. NARAYANA HOLLA, SUDHA ENGINEERING WORKS, UPPALA, RESIDING AT UPPALA VILLAGE, MANJESHWAR TALUK, P.O.UPPALA, PIN-671322.** **BY ADVS.SRI.K.V.SOHAN SMT.SREEJA SOHAN.K.** **RESPONDENT:** **-------------------------** **K.MOHAMMAD HANEEF S/O. LATE KUNHAMMAD, RESIDING AT AL-IMSAAN-IN HIDAYATH NAGAR, UPPALA VILLAGE, MANJESHWAR TALUK, P.O.UPPALA, PIN-671322.** ## **BY ADV. SRI.K.G.GOURI SANKAR RAI** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C).No. 1239 of 2016 (O) ------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:-** - **---------------------------------------** - **P1 TRUE COPY OF THE DECREE IN O.S.193/1995 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, KASARAGOD, DT. 16-02-1998.** - **P2 TRUE COPY OF THE JUDGMENT IN R.S.A. 339/2015, DT. 27-07-2015.** - **P3 TRUE COPY OF THE EXECUTION PETITION FILED BY THE RESPONDENT BEFORE THE SUBORDINATE JUDGE'S COURT, KASARAGOD, DT. 12-11-2015.** - **P4 TRUE COPY OF THE COUNTER FILED BY THE PETITIONER IN EXT. P3 EXECUTION PETITION, DT. 18-01-2016.** - **P5 TRUE COPY OF THE DEED OF ASSIGNMENT IN FAVOUR OF THE RESPONDENT EXECUTED BY SOME OF THE ORIGINAL DECREE HOLDERS, DT. 29-10-2015.** - **P6 TRUE COPY OF THE ORDER IN THE E.P. 74/2015 DT. 02-04-2016.** ## **RESPONDENT(S)' EXHIBITS:- NIL** **---------------------------------------** ## **/TRUE COPY/** **P.A. TO JUDGE** **DCS** ## **K. RAMAKRISHNAN, J** ## **---------------------------------------** ## **O.P.(C). No. 1239 OF 2016** **----------------------------------------** Dated this the 01[st] day of August, 2016 ## **JUDGMENT** This is a petition filed by the petitioner challenging Ext. P6 order passed by the Sub Judge, Kasargod under Article 227 of the Constitution of India. 2. It is alleged in the petition that the petitioner is the judgment debtor in E.P. No. 74/2015 in O.S. No. 193/1995 of the Sub Court, Kasargod. The suit O.S. No. 193/1995 was filed by the predecessors of the respondent herein for recovery of possession of the plaint schedule property on the strength of title after removing the unlawful constructions made in the plaint schedule property. After trial, the suit was decreed as per Ext. P1 decree. O.P.(C). No. 1239 OF 2016 2 3. The petitioner filed A.S. No. 77/1998 before the District Court, Kasargod and it was made over to the I[st] Additional District Court, Kasargod for disposal. The learned I[st] Additional District Judge dismissed the appeal confirming the decree and judgment passed by the Court below against which the petitioner filed R.S.A. No. 339/2015 before this Court and this Court by Ext. P2 judgment dismissed the appeal. Thereafter, the respondent herein purchased the right of the decree holders in the property including the right to execute the decree and filed the execution petition for delivery of the property. At that time, the petitioner filed E.A. No. 24/2016 for referring the matter to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act, 1963 (the 'KLR Act' for short) to consider the question whether he is entitled to get O.P.(C). No. 1239 OF 2016 3 the benefit under Section 106 of the KLR Act. After hearing both sides, the learned Subordinate Judge, Kasargod by the impugned order dismissed the application and ordered delivery on 11.04.2016 and report on 12.04.2016. Challenging this order, that the present petition has been filed by the petitioner under Article 227 of the Constitution of India. 4. Sri. K.V.Sohan, counsel appearing for the petitioner submitted that the petitioner is conducting a wire manufacturing unit in the building in the plaint schedule property and thereafter, he purchased a neighbouring plot and also extended the building to that portion and now he is conducting the unit in the building situated in both the properties. Since he is in possession of the land as a bonafide tenant, he is entitled to get compensation under the Kerala Compensation for O.P.(C). No. 1239 OF 2016 4 Tenants Improvements Act, 1958. Further, he is entitled to get protection under Section 106 of the KLR Act also, as he is in possession of the property and conducting an industry there since long years. These aspects were not considered by the court below. If at all this Court feels that he is not entitled to succeed in the petition, he may be granted some reasonable time for vacating the premises. 5. On the other hand, Sri. K.G. Gouri Sankar Rai, counsel appearing for the respondent submitted that all these aspects have been considered by this Court in R.S.A. No. 339/2015 filed by the petitioner and infact the prayer in the suit itself is to get delivery of the property by demolishing the building unauthorisedly constructed in the property. Further, since the respondent had purchased the property along with the right to execute the decree, O.P.(C). No. 1239 OF 2016 5 he is entitled to maintain the execution petition under Order XXI Rule 16 read with Section 146 of the Code of Civil Procedure. So, the petitioner is not entitled to get any relief. 6. It is an admitted fact that the predecessors of the respondent herein filed O.S. No. 193/1995 before the Sub Court, Kasargod against the petitioner for recovery of possession of the property on the strength of title, which is in his possession unauthorisedly according to them, after removing the unauthorised construction made in the property. The suit after evidence was decreed as prayed for. Though, the petitioner filed appeal before the District Court, Kasargod and Regular Second Appeal before this Court, both ended in dismissal confirming the decree for recovery of possession passed. In the Regular Second Appeal filed by the O.P.(C). No. 1239 OF 2016 6 petitioner, which is disposed of by this Court as per Ext. P2 judgment, the question raised by the petitioner regarding the entitlement of fixity of tenure under Section 106 of the KLR Act was elaborately considered and rejected. Further, neither in the suit nor upto the time of Regular Second Appeal, he had not made any claim in respect of the improvements made by him in the property. Further the claim of tenancy made by him and allowed by the Land Tribunal was set aside by the appellate authority in an appeal filed by the predecessors of the respondent herein and that has become final and that was not challenged as well. So, he is not entitled to get the benefit of either the deemed tenancy under Section 7 of the KLR Act or protection under Section 106 of the KLR Act as well, as both the claims made by him were raised and lost O.P.(C). No. 1239 OF 2016 7 by him in the legal proceedings which has become final. So under such circumstances, the execution court was perfectly justified in coming to the conclusion that the petitioner is not entitled to get any of the reliefs claimed in the petition and there is no necessity to refer the matter to the Land Tribunal under Section 125(3) of the KLR Act to consider the question of either the deemed tenancy or protection under Section 106 of the KLR Act as claimed by the petitioner in the petition filed by him. 7. Further, the claim for deemed tenancy under Section 7 of the KLR Act is not available to the petitioner especially when the same has not been raised by him in the proceedings by which a decree for delivery of possession has already been ordered. Further, the petitioner being a trespasser, he is not entitled to claim that he is bonafide believing to be a O.P.(C). No. 1239 OF 2016 8 tenant under another person as well. 8. The dictum laid down in the decision reported in **Sreedharan Namboodiri v. Devaki Antharjanam [2004 KHC 802]** is not applicable to the facts of this case. That will be available to a person, who is admittedly a tenant in respect of the property and he had made improvements in the property, then without deciding that aspect, a decree for eviction cannot be passed. But in this case, the concurrent findings of this Court which was affirmed by the Supreme Court in the Special Leave Petition filed by the petitioner that he is not a tenant entitled to fixity of tenure or protection under the KLR Act, he is not entitled to get the benefit under the Kerala Compensation for Tenants Improvements Act, 1958. The dictum laid down in the above decision is not applicable to the facts of O.P.(C). No. 1239 OF 2016 9 this case. 9. It is seen from the order itself that the respondent herein earlier purchased the right of the decree holders 2 to 4 and thereafter as per Document No. 445/2016 of SRO, Manjeshwar, he had purchased the right of the legal heirs of the left out decree holder and thereby he became the absolute owner of the property in dispute. Further, the document itself shows that they have assigned the right to execute the decree obtained by them in respect of the property as well. So being an assignee of the decree holders right in the property, he is entitled to maintain the execution petition under Order XXI Rule 16 read with Section 146 of the Code of Civil Procedure. It says that a purchaser of the right of the decree holder is entitled to execute the decree and that right is protected under Order XXI O.P.(C). No. 1239 OF 2016 10 Rule 16 read with Section 146 of the Code of Civil Procedure as well. 10. So under such circumstances, the Court below was perfectly justified in rejecting the contentions of the petitioner herein and ordering delivery of the property. This Court do not find any reason to interfere with the impugned order the under Article 227 of the invoking power Constitution of India, as there is no illegality committed by the court below in passing the impugned order. 11. While disposing this petition, the counsel for the petitioner sought some time to surrender the property after removing the constructions made in the property. Considering the fact that he is conducting an industry in the property and he may require some more time for shifting the business or O.P.(C). No. 1239 OF 2016 11 to make alternate arrangements to continue his unit, this Court feels that eight months time can be granted to the petitioner to vacate the premises. So, eight months from today is granted to the petitioner to vacate the premises on condition that he shall file an undertaking before the execution court that on the expiry of the eight months time provided by this Court, he will remove the construction made in the property and surrender the property without making any objection. This affidavit will have to be filed within two weeks from today. If the affidavit is not filed as directed, then the court below is at liberty to proceed with the execution of the decree, in accordance with law. If the affidavit is filed as directed, then the court below is directed to keep the execution in abeyance for a period of eight months and thereafter if the petitioner did not O.P.(C). No. 1239 OF 2016 12 vacate the premises, then the court below is at liberty to execute the decree and deliver possession of the property to the respondent herein, in accordance with law. With the above direction and observation, the petition is disposed of. **K. RAMAKRISHNAN JUDGE** DCS