Marykutty Joseph v. Ouseph Isaac and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 12TH DAY OF DECEMBER 2012/21ST AGRAHAYANA 1934** ## **CRP.No. 2651 of 2000 (B) ------------------------** **E.A.NO.487/2000 IN E.P.NO.38/1967 IN OS.86/1957 of ADDL.SUB COURT, ALAPPUZHA.** ## **REVISION PETITIONER(S):** **----------------------** **MARYKUTTY JOSEPH, PONNEZHATHU NINNUM VELIYIL UZHUVA MURI, VAYALAR WEST VILLAGE.** **BY ADVS.C.S.ANANTHAKRISHNA IYER (SENIOR) I/B SRI.K.K.MOHAMED RAVUF & SRI.SAJAN VARGHEESE K.** **RESPONDENT(S):** **--------------** |**1.**|**OUSEPH ISSAC, NEYYARAPPALLIL**| |---|---| ||**NORTH VILLAGE, CHERTHALA.(DIED)**| |**2.**|**OUSEPH JOHN, NEYYARAPPALLIL**| ||**VADAKKUM MURI, NORTH VILLAGE, CHERTHALA.(DIED)**| |**3.**|**OUSEPH JOSEPH OF -DO- -DO-**| |**4.**|**OUSEPH THOMAS OF -DO- -DO-**| |**5.**|**OUSEPH JACOB OF -DO- -DO-**| |**6.**|**OUSEPH ANTONY OF -DO- -DO-**| |**7.**|**OUSEPH ABRAHAM OF -DO- -DO-**| |***8.**|**ALEYKUTTY JOHN, W/O LATE OUSEPH JOHN,**| ||**NEYYARAPPALLIL, VADAKKUM MURI,**| ||**NORTH VILLAGE, CHERTHALA.**| |***9.**|**MEENA JOHN, D/O LATE OUSEPH JOHN -DO- -DO-**| |***10.**|**BEJOY JOHN, S/O OUSEPH JOHN, -DO- -DO-**| **CRP.No. 2651 of 2000 (B) -2-** - ***11. PEARL JOHN, S/O OUSEPH JOHN, -DO- -DO-** - **ADDL.RESPONDENTS 8 TO 11 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 2ND RESPONDENT AS PER ORDER DATED 19-2-2001 ON C.M.P.NO.965/2001.** - ***12. THANKAMMA ISSAC, W/O OUSEPH ISSAC, NEYYARAPPILLY HOUSE, CMC.3, CHERTHALA. PIN - 688 524.** - ***13. JOSEPH ISSAC, S/O OUSEPH ISSAC -DO- -DO-** - ***14. PAUL ISSAC, S/O OUSEPH ISSAC -DO- -DO-** - ***15. JOHNY ISSAC, S/O OUSEPH ISSAC -DO- -DO-** - ***16. XAVIER ISSAC, S/O OUSEPH ISSAC -DO- -DO-** - ***17. TOM ISSAC, S/O OUSEPH ISSAC -DO- -DO-** - ***18. MARIAYAMAKUTTY ISSAC, D/O OUSEPH ISSAC -DO- -DO-** - **ADDL.R12 TO R18 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 1ST RESPONDENT VIDE ORDER DATED 31-8-2011 IN I.A.NO.196/2011 IN C.R.P.NO.2651/2000.** **R1 BY ADV. SRI.P.SANTHALINGAM (SENIOR ADVOCATE) R8 TO 14 BY ADVS. SRI.P.SANTHALINGAM (SENIOR ADVOCATE) I/B ADVS.SRI.S.SHARAN** **& SRI.A.D.SHAJAN** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12-12-2012, ALONG WITH CMA. 190/2002, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **amk** ## **K.VINOD CHANDRAN, J** **--------------------------------------------------** C.R.P.No.2651 OF 2000 & C.M.A. No.190 OF 2002 --------------------------------------------------Dated this the 12[th] day of December, 2012. ## O R D E R/J U D G M E N T The revision petition arises from an order of the Additional Sub Judge, Alappuzha, in execution, rejecting an application for appointment of Commissioner. Originally, after remand ordered by this Court in E.S.A.No.3/1990, the revision petitioner herein had filed an application E.A.No.487/2000 for appointment of Commissioner to report on the improvements effected by her in the property. That was initially allowed, however the decree holders/respondents filed an application for review of that order. E.A.No.492/2000 filed by the decree holder for review of the order in E.A.No.487/2000 was allowed by the lower court by order dated 31-10-2000. As a consequence, the application for appointment of Commissioner was rejected by the impugned order in the revision on the same day. The revision petitioner filed an appeal from the order in E.A.No.492/2000 before the District Court, Alappuzha. The civil revision petition as noticed above was filed **C.R.P.No.2651 OF 2000** **& 2** **C.M.Appl. No.190 OF 2002** against the dismissal of the application for appointment of a Commissioner. This Court called for the appeal from the District Court and numbered it as C.M.A.No.190/2002. Both the revision petition and the appeal are heard together. 2. The brief facts necessary for the disposal of the appeal is that one Mariya mortgaged certain items of property to Souriyar who was put in possession of the said lands. Mariya later sold her rights to Ouseph, who thus obtained the right of redemption. Souriyar's daughter filed O.S.No.33/1112 M.E. for recovery of 'Streedhanam' against her father and obtained a decree dated 27.4.1117 ME. The decree was assigned to Mathai Chacko and Aboobacker Ahmed and they assigned it to the revision petitioner, Marykutty Joseph. Marykutty Joseph initiated execution proceedings in O.S.No.33/1112 M.E. and one item of property which was the subject of mortgage was delivered to her. Marykutty Joseph hence was in possession of this property. 3. In the meanwhile, Ouseph filed O.S.No.203/1123 M.E, renumbered as O.S.No.86/57 for redemption of mortgage. It is **C.R.P.No.2651 OF 2000 & 3 C.M.Appl. No.190 OF 2002** pertinent that the said Ouseph was a party in the suit filed by the daughter of Souriyar O.S.No.86/57, decreed on 13-11-1966. Finding Marykutty Joseph in possession of the properties; on the strength of the decree and on the strength of the deposit of money made towards redemption, E.A.No.1873/1969 was filed by legal heirs of Ouseph in O.S.No.33/1112 M.E. for re-delivery. That application was dismissed and the appeal there from was allowed. Against the said order parties were before this Court in E.S.A.Nos.8/1986 and 5/1987. The legal heirs of Ouseph had also filed E.S.A.No.673/1979 for removal of obstruction by Marykutty Joseph, when delivery was attempted in pursuance of the decree in O.S.No.86/1957. That application was also dismissed by the trial court. That gave rise to A.S.No.21/1982, which was allowed in appeal. Marykutty Joseph was in second appeal before this Court with E.S.A.No.9/1986. All the three second appeals were considered together E.S.A.No.8/1986 and E.S.A.No.5/1987, was allowed, since the first appeal was found to be incompetent, thus declining the prayer for re-delivery. Hence, the **C.R.P.No.2651 OF 2000 & 4 C.M.Appl. No.190 OF 2002** re-delivery application in execution proceedings in O.S.No.33/1112 M.E stood rejected. However, E.S.A.No.9/1986 filed by Marykutty Joseph against the removal of obstruction was allowed and remanded to the first appellate court for denovo consideration. The first appellate court allowed the appeal thus granting removal of obstruction. 4. That order, allowing the removal of obstruction, was again the subject matter of second appeal before this court in E.S.A.No.3/1990. This Court dealt with each and every contention raised by the obstructor namely, Marykutty Joseph and found that the legal heirs of Ouseph having obtained a decree and deposited the amounts towards redemption was entitled to delivery of the properties and the obstruction caused by Marykutty Joseph was found to be illegal. However, this Court considering the claim of the obstructor found that her predecessor-in-interest viz: Souriyar was granted a possessory mortgage and hence the possession of the obstructor was perfectly legal and valid and hence she was entitled to compensation for value of the improvements effected in the property. Hence for that **C.R.P.No.2651 OF 2000 & 5 C.M.Appl. No.190 OF 2002** limited purpose it was remanded to the execution court. It was on remand that what was detailed in the earlier part of this judgment transpired. 5. The order in the revision is a consequential order of the application for review. Hence what is up for consideration is the order passed in E.A.No.492/2000. It is evident that the application for re-delivery E.A.No.1873/1969 filed in O.S.No.33/1112 was filed as early as in the year 1969. That application was filed based on the decree passed in O.S.No.86/1957 and the deposit of the redemption amounts. The decree holders in the said suit being unsuccessful in getting re-delivery filed application E.A.No.673/1979 in the execution proceedings in O.S.N.86/1957 to remove the obstruction caused by Marykutty Joseph. It is not clear as to when the amounts for redemption were deposited in O.S.No.86/1957, but it is before the application for re-delivery i.e., before 1969. However, the filing of the execution applications before court would show that the obstructor was aware of the decree and the defect in her possession. These facts are **C.R.P.No.2651 OF 2000 C.M.Appl. No.190 OF 2002** **& 6** noticed only because the review of the order appointing the Commissioner was made on the ground that in an earlier E.A. filed as E.A.No.836/1980, a Commissioner was appointed and he had filed a report as well as a Mahazar dated 02-01-1981. The report showed all the valuable improvements in the property claimed by the obstructor, which inspection was carried out in her presence as also that of the decree holder. This report of the Commissioner was not set aside, nor has the obstructor filed an objection to it or prayed for setting aside of the same. A Division Bench of this Court reported in _**1985 K.L.T 144 (Swami Premananda Bharathi v. Swami Yogananda Bharathi)**_ held that while the court had appointed a Commissioner and he had filed a report without setting aside of the same, there cannot be an appointment of another Commissioner. This Court in fact held that if such a subsequent report has been obtained without setting aside the first one, the subsequent report has to be eschewed. 6. The learned counsel Sri.Sajan Varghese for the revision petitioner/appellant,would strenuously urge that a reading of the **C.R.P.No.2651 OF 2000 & 7 C.M.Appl. No.190 OF 2002** judgment in E.S.A.No.3/1990 would amply demonstrate that the claim of the obstructor to be compensated for the further improvements also was allowed. He takes me through the judgment in E.S.A.No.3/1990 to contend that this Court noticed that it was the specific contention of the obstructor that even after the deposit of the redemption amount the appellant continued to be in possession and effected improvements. However, this Court held that "in such circumstances, the appellant shall be entitled to the value of the improvements effected until the deposit" (sic) (para 6). It is the contention of the learned counsel that, that was just an obvious mistake and what the court really intended was that the obstructor was entitled to the value of improvements, even after the amount of redemption. Let us for the moment assume that, that is the position. As noticed above, the date of deposit of redemption amount is not clear from the records. But however the execution application for re-delivery was filed in 1969. Definitely, the deposit would have been before that date. The commission report now relied on by the court below is of the year 1981. Definitely, the improvements **C.R.P.No.2651 OF 2000 C.M.Appl. No.190 OF 2002** **& 8** which have been made in the property after the deposit of the redemption amount would have been taken into account since the date of the mahazar prepared by the Commissioner is of the year 1981. 7. The revision petitioner/appellant cannot claim any value of, still further improvements since she was not entitled to make any such improvements after the defect in possession was noticed and if at all any were made after that, it would be at her risk. A Full Bench in _**1962**_ _**K.L.T 688 (F.B), (Kanakku Kumara Pillai Thanu Pillai v. Mathevan)**_ held that no payments can be made for improvements made in violation of an injunction order. _**Abdulla Haji v. Rugmini Amma 1998(1) K.L.T, Short Note 13**_ (Page No.15) was a case in which pursuant to a decree one of the parties in the litigation came into possession. When appeal was pending, the party made valuable improvements. This Court held that the improvements made by a party to a litigation pendentelite was with full knowledge of the risk he runs in doing so, and hence cannot seek any entitlement to compensation for such improvements. 8. In the circumstance, this Court is of the opinion that the **C.R.P.No.2651 OF 2000** **& 9** **C.M.Appl. No.190 OF 2002** order of the court below passed in E.A.Nos.492/2000 and 487/2000 are not liable to be interfered with. The civil revision petition as also the civil miscellaneous appeal are dismissed. The parties shall suffer their respective costs. 9. However, the revision petitioner/appellant shall be entitled to the value of improvements, as computed by the court below, on the basis of the Commission report already in the files. The lower court shall issue notice to the parties and after giving them an opportunity for hearing, pass appropriate orders, granting the value of improvements, as reported by the Commissioner, as expeditiously as possible. **Sd/-** **K.VINOD CHANDRAN, JUDGE.** **//True Copy//** **P.A to Judge** amk