Karunya Charitable Society v. The Latin Catholic Diocese of Trivandrum

_**OP(C).2366/2018**_ 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 29[TH] DAY OF NOVEMBER 2021 / 8TH AGRAHAYANA,** **1943** **OP(C) NO. 2366 OF 2018** **AGAINST THE ORDER/JUDGMENT IN OS 200/1998 OF III ADDITIONAL MUNSIFF COURT ,TRIVANDRUM** ## **PETITIONER/S:** 1 KARUNYA CHARITABLE SOCIETY REPRESENTED BY THE GENERAL SECRETARY, K.PARAMESWARAN NAR, CONVENT ROAD, GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM 695009 2 THE PRESIDENT, KARUNYA CHARITABLE SOCIETY,CONVENT ROAD,GENERAL HOSPITAL JUNCTION,TRIVANDRUM-695009 3 THE SECRETARY, KARUNYA CHARITABLE SOCIETY,CONVENT ROAD,GENERAL HOSPITAL JUNCTION,TRIVANDRUM 695009 BY ADVS. M.R.SUDHEENDRAN S.I.SHAH **RESPONDENT/S:** THE LATIN CATHOLIC DIOCESE OF TRIVANDRUM REPRESENTED BY ITS BISHOP DR. SUSA PAKKIAM ,LATIN CATHOLIC DIOCESE, TRIVANDRUM 695009 BY ADVS. SRI.T.G.SUNIL (PRANAVAM) SRI.J.OM PRAKASH SRI.C.X.ANTONY BENEDICT THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30.7.2021, THE COURT ON 29.11.2021 DELIVERED THE FOLLOWING: _**OP(C).2366/2018**_ 2 ## **V.G.ARUN, J.** **----------------------------------------------O.P(C).No.2366 of 2018 ----------------------------------------------Dated this the 29[th] day of November, 2021** ## **JUDGMENT** About a century and a half back, the Privy Council made a prophetic observation that the actual difficulties of a litigant in India begins after obtaining a decree from a civil court. Much later, in _**Shub Karan Bubna V Shub Karan Prasad**_ [(2009) 9 SCC 689], the Supreme Court voiced the same concern and stated that the execution proceedings, which are supposed to be the handmaiden of justice, are becoming tools for obstructing justice. Exasperated by the diversionary tactics adopted by judgment debtors and third parties, the Apex Court in _**Rahul S. Shah v. Jinendra Kumar Gandhi,**_ [(2021) 6 SCC 418] laid down guidelines and prescribed time limits for dealing with and deciding execution petitions. As such, executing courts are bound to dispose of the proceedings within six months of filing of the petition, which period can be extended only for reasons to be recorded in writing. 2. Herein, the original petition is filed by additional defendants 6 to 8 in O.S. No. 200 of 1998 challenging the order of delivery passed by the executing court to enforce a decree _**OP(C).2366/2018**_ 3 dated 07.08.2002, which had attained finality by the first appeal being dismissed on 05.09.2005 and the second appeal, on 25.01.2006. ## 3. Now to the factual matrix; The plaintiff/1[st] respondent is the owner in possession of 63 cents of land in Sy.Nos.1951/1 and 1952/1 of Vanchiyoor Village (A Schedule). The property originally belonged to one John Gomes, who had purchased the same under Document No. 1276 of 1066ME and 1395 of 1066ME of SRO, Trivandrum. On his death, the property devolved on his four children, of whom, three died issueless. Thereby, the entire property devolved on Cecil Randolf, the surviving member. Cecil Randolph had three children, namely, Donald Allan Gomez, Winnie Gresseux and Margaret Ann Pereira. On the death of Cecil Randolph, his son Donald Alan Gomes executed a settlement deed in favour of Trivandrum Social Service Society, an ancillary welfare organisation under the plaintiff Society. The two daughters, Winnie Gresseux and Margaret Ann Pereira, executed separate sale deeds assigning their right over plaint A schedule property to the plaintiff. Thus the plaintiff became the absolute owner of plaint A schedule property. The sale deed executed by Winnie Gresseux contained a stipulation that one Mercy Kenneth, who had nursed Winnie during her lifetime, should be permitted to reside in the small building bearing TC.27/1640 situated in 4.5 cents of A schedule property. The said 4.5 cents, along with the _**OP(C).2366/2018**_ 4 building therein, is described as B schedule in the plaint. Mercy Kenneth passed away on 12.10.1997. Thereupon, her brother Antony John requested for a month's time to remove her belongings and the request was acceded to by the plaintiff. Thereafter, 1[st] defendant staked claim over B schedule property by virtue of a gift deed alleged to have been executed by Mercy Kenneth. According to him, B schedule property was in the possession and enjoyment of Mercy Kenneth since 1939 and she had perfected her title over B schedule by adverse possession. Mercy Kenneth executed a Gift Deed in favour of the 1[st] respondent on the strength of which, the 1[st] defendant rented out the building in plaint B schedule property to tenants. Defendants 6 to 8, who are the petitioners herein, contended that they are statutory tenants under the 1[st] defendant and hence, cannot be evicted without recourse to the provisions of the Kerala Buildings (Lease and Rent Control) Act. 4. The trial court, after elaborate consideration, rejected the contentions of the defendants and decreed the suit. The Gift Deed No.608/97 executed by Mercy Kenneth in favour of 1[st] defendant was declared null and void and not binding on the title of the plaintiff over plaint B schedule property. The defendants were found to be having no right over plaint B schedule and were directed to vacate plaint B schedule property and put the plaintiff back in possession within two months of the decree, failing which the plaintiff was allowed to evict the defendants _**OP(C).2366/2018**_ 5 from the property through process of court. 5. When the decree was sought to be executed, third parties obstructed, leading to another round of protracted litigation. To add to the woes of the decree holder, the Village Officer and Taluk Surveyor deputed to assist the Amin in effecting delivery of B Schedule, took up the stand that the entire decree schedule is in the possession of the decree holder and the disputed land (B Schedule) is comprised in another survey number. They also reported that an extent of 1.72 Ares in Sy.No. 1952/2 of A Schedule had been acquired and 1.309 Cents is in the possession of a stranger. The balance extent of 54.946 Cents being in the possession of the decree holder, it was not possible to effect delivery of the decree scheduled property. 6. On receipt of the Amin's report, the execution court conducted an enquiry regarding identification of the property and came to the conclusion that plaint B schedule can be identified, if genuine efforts are taken. Consequently, Exhibit P4 order was issued, directing the Taluk Surveyor to assist the Amin in identifying B schedule with reference to the title deeds marked as Exhibits A2 to A4 in the suit and available old revenue records, including litho plan. 7. Petitioners challenged Exhibit P4 before this Court by filing O.P(C).No. 2132 of 2018 and simultaneously filed Exhibit P5 application before the execution court seeking to direct the Amin to file a report of identification of B scheduled property, with _**OP(C).2366/2018**_ 6 report and sketch of the Surveyor, materials used for identification and correct measurements of A and B schedules, before effecting delivery. The execution court dismissed that application by Exhibit P6 order. Hence, the original petition. 8. Heard Adv.M.R.Sudheendran, learned Counsel for the petitioners and Advocate J.Omprakash, learned Counsel for the respondent. 9. Learned Counsel for the petitioners focused on the report filed by the Taluk Surveyor, stating that B schedule property is in a different survey number and beyond the boundaries of A schedule property, to contend that the trial court committed a gross mistake in directing the Amin to deliver the property, without first calling for a report from the Amin and providing an opportunity to the petitioners to file objection. It is contended that on an earlier occasion, the executing court had suspended the execution proceedings, based on the report of the Amin and Taluk Surveyor and Exhibit P4 order was passed by the successor Munsiff, hastily and without considering the valid contentions put forth by the petitioners. According to the learned counsel, the executing court is not expected to conduct a roving enquiry to search out the decree schedule property and to effect delivery of a property which does not lie within the decree scheduled property. It is argued that the difference in the survey numbers of the property in the possession of the petitioners and the decree B scheduled property and the difference in the building _**OP(C).2366/2018**_ 7 number, should have deterred the executing court from authorising the Amin to effect delivery. 10. Learned Counsel for the 1[st] respondent contended that the original petition itself is not maintainable inasmuch as O.P(C).No.2132 of 2018 filed by the petitioners raising the very same contentions was dismissed for non-prosecution. It is contended that Exhibit P6 order cannot be challenged independently, since, by Exhibit P4 order, the trial court had already directed delivery and Exhibit P6 is issued in implementation of Exhibit P4. It is pointed out that in the original suit, as also the appeals, petitioners had claimed tenancy under the 1st defendant. The trial court and the appellate court had concurrently found that the 1[st] defendant did not derive title or interest on the basis of Exhibit A1 Gift Deed and the defendants, including the petitioners, had no right over B schedule property. It is therefore not open for the petitioners to contend that the property in their possession is not the B schedule and cannot be delivered in execution of the decree. 11. As observed at the outset, this original petition is another classic example of how the execution proceedings can be protracted by raising untenable contentions, capitalising on the inability of officials entrusted with the task of delivery. It is pertinent to note that, the petitioners have nowhere stated as to how they came to be in possession of the property, other than as the tenants under the 1[st] defendant. As rightly held by the _**OP(C).2366/2018**_ 8 executing court, the Taluk Surveyor is bound to identify B schedule based on the description in the title deeds of the 1st respondent and the old survey records and upon such identification, the court appointed Amin should effect delivery of the property. The contention that the Amin should be called upon to file a report in court before effecting the delivery, is nothing but an attempt to open up another round of litigation and cannot therefore be countenanced. Moreover, the challenge against Exhibit P4 having failed, petitioners cannot maintain an independent challenge against Exhibit P6 order. In any event, this is not a case for this Court to exercise its supervisory jurisdiction under Article 227 of the Constitution of India. For the aforementioned reasons, the original petition is dismissed. **Sd/V.G.ARUN, JUDGE** _vgs_ _**OP(C).2366/2018**_ 9 ## **APPENDIX OF OP(C) 2366/2018** PETITIONER EXHIBITS - EXHIBIT P1 - A TRUE COPY OF THE DECREE IN OS 200/1998 OF ADDL MUNSIFF COURT 1V TRIVANDRUM - EXHIBIT P2 A TRUE COPY OF PROCEEDINGS FROM - 21.8.2014 TO 22.5.2017 IN THE TRIAL IN OS 200/1998 OF ADDL MUNSIFF COURT IV TRIVANDRUM - EXHIBIT P3 A TRUE COPY OF THE SURVEY PLAN SUBMITTED BY THE TALUK SURVEYOR - EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 14.8.2018 IN EP NO 123/2003 IN OS 200/98 OF ADDL MUNSIFF COURT IV TRIVANDRUM - EXHIBIT P5 A TRUE COPY OF EA 398/2018 IN EP NO 123/2003 IN OS 200/98 OF ADDL MUNSIFF COURT IV TRIVANDRUM. - EXHIBIT P6 TRUE COPY OF THE ORDER IN EA 398/2018 IN EP NO 123/2003 IN OS 200/98 OF ADDL MUNSIFF COURT IV,TRIVANDRUM - Exhibit P7 A TRUE COPY OF THE LETTER DATED 10/08/2011 OBTAINED UNDER THE RIGHT TO INFORMATION ACT. - Exhibit P8 TRUE COPY OF THE RECEIPT EVIDENCING PAYMENT OF BUILDING TAX BY THE SAID K.K. ABRAHAM. - Exhibit P9 A CERTIFIED COPY OF THE REPORT OF THE VILLAGE OFFICER DATED 20/09/2014.