Mottavila Sreebhadrakali Kshetram Committee represented by its Secretary v. K.N. Suseelan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 11TH DAY OF OCTOBER 2012/19TH ASWINA 1934** ## **EX.SA.NO. 17 OF 2012 ()** **----------------------AS.175/2012 OF SECOND ADDITIONAL DISTRICT COURT, TRIVANDRUM OS.110/1958 OF FIRST ADDITIONAL MUNSIFF'S COURT, TRIVANDRUM** ## **APPELLANTS/APPELLANTS/PETITIONERS (CLAIMANTS):** **----------------------------------------------------------** **1. MOTTAVILA SREEBHADRAKALI KSHETRAM COMMITTEE REPRESENTED BY ITS SECRETARY MOTTTAVILA SREEBHADRAKALI KSHETRAM COMMITTEE OFFICE ELAMKULAM, SREEKARYAM P.O., THIRUVANANTHAPURAM.** ## **2. SHAJI BABU,** **S/O RAGHAVAN, SECRETARY MOTTAVILA SREEBHADRAKALI KSHETRAM COMMITTEE OFFICE ELAMKULAM SREEKARYAM PO, THIRUVANANTHAPURAM AND RESIDING AT VALIYAVILAKATHUVEEDU, GAURI NAGAR PONGUMMUDU, MEDICAL COLLEGE P.O. THIRUVANANTHAPURAM.** ## **3. G.ARJUNAN,** **S/O GOPALAN, CHAIRMAN MOTTAVILA SREEBHADRAKALI KSHETRAM COMMITTEE OFFICE ELAMKULAM SREEKARYAM PO, THIRUVANANTHAPURAM AND RESIDING AT ROHINI, T.C.5/1754, CHERUVAIKAL SREEKARYAM P.O., THIRUVANANTHAPURAM.** **BY SENIOR ADVOCATE SHRI S.V.BALAKRISHNA IYER SRI.RAJESH P.NAIR** **RESPONDENT(S)/RESPONDENTS/COUNTER PETITIONERS/ADDITIONAL DECREE OLDERS-JUDGMENT DEBTOR:** **--------------------------------------------------------------** **1. K.N.SUSEELAN S/O NEELAKANNDAN, THRIPPADAM, MUNDAKKAL EAST KOLLAM.** ## **ExS.A. No.17 of 2012** ## **2. B.CHANDRIKA W/O K.S.SUSEELAN, THRIPPADAM, MUNDAKKAL EAST KOLLAM.** ## **3. MONI SUSEELAN, S/O K.S.SUSEELAN, THRIPPADAM, MUNDAKKAL EAST KOLLAM.** ## **4. MANO @ MANU SUSEELAN, S/O K.S.SUSEELAN, THRIPPADAM, MUNDAKKAL** **EAST KOLLAM.** **5. G.SOMAN, S/O GOPALAN, GURUDEVA SREE, PATTOM THIRUVANANTHAPURAM.** ## **6. N.N.SARASWATHY ANTHARJANAM,** - **W/O LATE V. MADHAVAN POTTI** - **ELAMKULATH MANGULATHU MELE MADAM, (MANGALAYA)** **KUNNATHUMURI, CHERUVAIKKAL VILLAGE, GOWRI NAGAR PONGUMOODU, MEDICAL COLLEGE P.O. THIRUVANANTHAPURAM.** **BY ADV. G S RAGHUNATH(CAVEATOR) R1 BY ADV. SRI.P.S.RAMESH KUMAR R5** **THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== Ex.S.A. No.17 of 2012 ==================================== Dated this the 11[th] day of October, 2012 J U D G M E N T** This Second Appeal is brought from the judgment and decree in A.S. No.175 of 2012 of the Second Additional District Court, Thiruvananthapuram confirming the order dated 24.07.2012 on E.A. No.785 of 2011 in E.P. No.118 of 2000 in O.S. No.110 of 1958 of the First Additional Munsiff's Court, Thiruvananthapuram. 2. Seeking redemption of mortgage over an item of land described as 1.25 acres in Sy. No.29A and bounded by paddy field on the west and other properties on other sides, the original decree holder filed O.S. No.110 of 1958 in the First Additional Munsiff's Court, Thiruvananthapuram. Seeking similar relief he filed O.S. No.117 of 1958 in the same court which concerned 1.20 acres in Sy. No.29B (concerning execution of that decree, there is no dispute and hence it is not necessary to refer to that in this proceeding). The decree holder was able to get a decree for redemption which was confirmed at various levels. 3. The decree holder filed E.P. No.132 of 1967 for execution of the decree in O.S. No.110 of 1958. He assigned his ## **Ex. S.A. No.17 of 2012** -: 2 :- right in the decree schedule property to respondents 1 to 5 as per Exts.A17 to A21 in year 1994 followed by a release deed in favour of respondents 1 to 5 jointly, as per Ext.A22, dated 22.05.2001. According to respondents 1 to 5, they took delivery of the entire property referred to in the decree schedule in O.S. No.110 of 1958 on 17.07.2000 and what remained is only the building in the said property where the Family Court, Thiruvananthapuram was functioning during the relevant time. There was a claim for value of improvements (vide E.A. No.537 of 2000) regarding that building which reached upto the Supreme Court where the parties to that proceeding settled the dispute. 4. Pursuant to the settlement, respondents 1 to 5 deposited Rs.10 lakhs which the 6[th] respondent (wife of the 3[rd] judgment debtor) has received, according to respondents 1 to 5 giving up all the claims she had made in E.A. No.537 of 2000 and accordingly, that application was dismissed as withdrawn. 5. Respondents 1 to 5 filed E.A. Nos.393 to 395 of 2011 - the first one for delivery of the building (where the Family Court, Thiruvananthapuram was functioning), the second one for an order for police protection for quite enjoyment of the property (other than the building) already delivered over to them on **Ex. S.A. No.17 of 2012** ## -: 3 :- 17.07.2000 and the last one, for the appointment of an Advocate Commissioner. The appellants made an attempt to get impleaded in E.P. No.118 of 2000 (in which the aforesaid applications were preferred) as additional respondents by filing E.A. No.461 of 2011. That application was dismissed by the executing court which this Court confirmed. 6. At that stage the appellants filed O.S. No.740 of 2011 for a declaration of the right they claimed over 58 cents which according to them, is not part of the decree schedule property in O.S. No.110 of 1958 and for prohibitory injunction against the respondents 1 to 5 interfering with their possession of the said 58 cents. That suit is pending. The appellants filed E.A. No.785 of 2011 purportedly under Section 151 of the Code of Civil Procedure (for short, “the Code”). There, in paragraph 4, the appellants contended that 58 cents comprised in Sy. No.29A originally belonged to Mottavila Shree Bhadrakali Kshethram where the temple and its office are situated, the temple is almost 400 years old and that poojas and rituals are being conducted in the said temple since then. The members of the four families including Mottavila family were looking after the said 58 cents and temple, conducting annual festival, rituals and poojas., etc. **Ex. S.A. No.17 of 2012** ## -: 4 :- Hence the appellants prayed for a declaration that the 58 cents (referred to in the schedule of E.P. No.118 of 2000) is not covered by the decree in O.S. No.110 of 1958 and that the decree is not executable against the appellants. 7. Respondents 1 to 5 contended that the entire property except the building where the Family Court, Thiruvananthapuram was functioning had already been delivered over to them on 17.07.2000. They also challenged maintainability of E.A. No.785 of 2011 (in E.P. No.118 of 2000 in O.S. No.110 of 1958) on various grounds. 8. The executing court dispelled the contentions raised by the appellants, held that the 58 cents (which on measurement was found to be 45 cents) forms part of the decree schedule property though referred to therein only as 1.25 acres in Sy. No.29A. The executing court found that the various circumstances revealed that the appellants are acting as henchmen of the 6[th] respondent who had taken up various contentions in the executing court after the contentions raised by her husband, the 3[rd] , judgment debtor failed. The executing court also took the view that having received a sum of Rs.10 lakhs from respondents 1 to 5 as per settlement for relinquishment of all the ## **Ex. S.A. No.17 of 2012** ## -: 5 :- claims the 6[th] respondent had raised in E.A. No.537 of 2000, the 6[th] respondent has found out another ingenious method of continuing her obstruction in the executing court by putting up the appellants. The claim of the appellants that they are in possession of the 58 cents referred to in the schedule of E.A. No.785 of 2011 and that there was a temple in existence for the last 400 years were negatived. E.A. No.785 of 2011 was dismissed. 9. Unrelenting, the appellants took up the matter in appeal - A.S. No.175 of 2012. The learned Second Additional District Judge, Thiruvananthapuram concurred with the finding of the executing court and dismissed that appeal. Hence this Second Appeal. 10. The learned Senior Advocate for the appellants contended that the question whether the 58 cents referred to in the schedule of E.A. No.785 of 2011 (which on measurement was found to be 45 cents) forms part of the decree schedule property is a matter which the executing court was required to decide independently rather than relying on some orders passed in the prior proceedings to which the appellants were not parties. According to the learned Senior Advocate, none of the documents ## **Ex. S.A. No.17 of 2012** ## -: 6 :- produced by respondents 1 to 5 would show that they have right, title, interest or possession of the 58 cents. It is further argued that even the boundary descriptions in the various documents do not tally with the contentions raised by respondents 1 to 5 as to their entitlement over the 58 cents. Though the Amin appointed by the executing court in E.P. No.118 of 2000 has submitted a report as if the decree schedule property was delivered to respondents 1 to 5, a reading of that report would show that the property delivered over to respondents 1 to 5 is what respondents 1 to 5 had pointed out. That must be confined to the 1.25 acres referred to in the decree schedule. 11. The learned counsel for respondents 1 to 5 contended that as rightly found by the executing court, the present action is at the instance of the 6[th] respondent who failed in all her attempts to obstruct delivery of the property including the building thereon and ultimately was satisfied with the sum of Rs.10 lakhs paid by respondents 1 to 5 for settlement of the dispute she raised. According to the learned counsel, though the extent of property comprised in Sy. No.29A and referred to in the schedule of O.S. No.110 of 1958 is only 1.25 acres, it is clear from the evidence that the property mortgaged to the **Ex. S.A. No.17 of 2012** ## -: 7 :- original decree holder is the entire extent enclosed by well defined boundaries (compound walls) on all sides and comprised in Sy. No.29A. In the circumstances, it is argued that there is no merit in the contention based on the discrepancy regarding extent in the decree schedule and the claim made by the appellants in E.A. No.785 of 2011. The learned counsel invited my attention to the previous proceedings where this Court found that the actual extent covered by the decree in O.S. No.110 of 1958 is 1.70 acres and hence at this stage, at the instance of the appellants who have neither possession nor title over the 58 cents, the question as to the actual extent is not required be re-agitated. It is argued that based on the evidence that the executing court found and the first appellate court confirmed that the extent of the area mortgaged to the original decree holder and referred to in O.S. No.110 of 1958 is 1.70 acres and that being a finding of fact entered by the courts below, that does not involve any substantial question of law so that this Court is required to entertain this Second Appeal. 12. The learned counsel also argued that in so far as the appellants have no consistent version as to what provision of law they are invoking under Order XXI of the Code - whether they ## **Ex. S.A. No.17 of 2012** ## -: 8 :- admit that there was delivery of possession of the entire property including the 58 cents also on 17.07.2000 and therefore their claim is under Rule 99 of Order XXI or they are claiming to be still in possession of the property (as they averred in E.A. No.785 of 2011) and is invoking Rule 97 of Order XXI of the Code. If it is treated as an application under Rule 99 of Order XXI, the application is barred by limitation as per Article 137(1) of the Limitation Act. Reliance is placed on the decisions in **Ittiyachan v. Tomy** (2001 [3] KLT 117 – paragraph 5) and **Kunjumol C.Immanuel v. Sbibu** (2011 [1] KLT 232 – paragraph 3) to contend that in the absence of any conceivable right for the appellants to be in possession of the 58 cents (even if it is assumed so), they cannot move an application under Rule 99 of Order XXI of the Code. 13. So far as the last argument advanced by the learned counsel for respondents 1 to 5 is concerned, true that the decisions referred to the independent right which an obstructor should have to sustain a claim either under Rule 97 or 99 of Order XXI of the Code. But those decisions concerned possession claimed by the obstructor under the judgment debtor. Referring to that, it was held that independently of the judgment debtor, **Ex. S.A. No.17 of 2012** -: 9 :- the obstructor should have a right to be in possession of the property. 14. The question for decision in this case is whether the 58 cents (found on measurement to be as 45 cents) over which appellants are claiming right is part of the decree schedule property in O.S. No.110 of 1958 and whether appellants have any right to be in possession of the same? 15. Going through E.A. No.785 of 2011 it would appear that as per the version of the appellants, they still continue to be in possession of the 58 cents in which case there could be no application of Rule 99 of Order XXI of the Code. However the executing court has proceeded based on an argument advanced by the appellants that the claim comes under Rule 99 of Order XXI of the Code. 16. I am not referring to the various proceedings the parties have taken in the course of execution of the decree in O.S. No.110 of 1958 since that would only add to the volume of this judgment. Pursuant to the decree in O.S. No.110 1958, the original decree holder had filed E.P. No.607 of 1976. There, the 3[rd] judgment debtor (husband of the 6[th] respondent) made a claim for fixity of tenure over the property referred to in the ## **Ex. S.A. No.17 of 2012** ## -: 10 :- decree schedule in O.S. No.110 of 1958 and for value of improvements. In that proceeding an Advocate Commissioner was appointed and he submitted a report and plan (Ext.A5(a) is the copy of plan. Exhibit A5(b) is the revenue list). The executing court found that the 3[rd] judgment debtor is not entitled to value of improvements as the building was constructed in violation of an order of injunction. The claim of fixity of tenure was also disallowed. The 3[rd] judgment debtor challenged that order in C.R.P. No.2480 of 1995. This Court allowed that Civil Revision and found that the 3[rd] judgment debtor is entitled to fixity of tenure over the decree schedule property in O.S. No.110 of 1958. In view of that finding, the executing court closed E.P. No.607 of 1967. 17. Next, it was the turn of the original decree holder who challenged the order in C.R.P. No.2480 of 1999 in the Supreme Court in Civil Appeal No.5392 of 1997. The Supreme Court held that the 3[rd] judgment debtor is not entitled to fixity of tenure as he claimed (the decision is reported in **Narayanaru Thrivikramanaru v. V. Madhavan Potti and Another** (JT 2000 [2] 9). 18. By that time the original decree holder had assigned ## **Ex. S.A. No.17 of 2012** ## -: 11 :- whatever right he had as per the decree in O.S. Nos.110 and 117 of 1958 in favour of respondents 1 to 5 as per Exts.A17 to A21. The original decree holder filed E.P. No.118 of 2000 seeking delivery of possession of the property in the decree schedule in O.S. No.110 of 1958. Respondents 1 to 5 also got themselves impleaded as additional decree holders in E.P. No.118 of 2000. There again, the 3[rd] judgment debtor raised a plea of fixity of tenure and for value of improvements which were negatived. That order was challenged by the 3[rd] judgment debtor in this Court in C.R.P. No.1808 of 2000. There, a dispute was raised by the 3[rd] judgment debtor as to the extent of property covered by the decree schedule in O.S. No.110 of 1958 - whether it is 1.25 acres or 1.70 acres (I am given a copy of the order in C.R.P. No.1808 of 2000). In paragraph 17 of the order, this Court adverted to that dispute and concluded that the actual extent covered by the decree schedule in O.S. No.110 of 1958 is 1.70 acres notwithstanding that the extent is referred as 1.25 acres. This Court also observed that the said 1.70 acres is bounded by compound wall on all sides. 19. Against the decision in C.R.P. No.1808 of 2000, the 3[rd] judgment debtor filed S.L.P. No.10596 of 2001 in the Supreme **Ex. S.A. No.17 of 2012** -: 12 :- Court but without success. Thus the challenge at the instance of the 3[rd] judgment debtor came to an end. 20. Next, it was the turn of his wife, the 6[th] respondent. She filed E.A. No.537 of 2000 claiming right over the building in the decree schedule property in O.S. No.110 of 1958 (where the Family Court, Thiruvananthapuram was then functioning). According to the learned counsel for respondents 1 to 5, the 6[th] respondent had also raised a claim over the rest of the property in E.A. No.537 of 2000 (which of course it is not admitted by the Senior Advocate for the appellants). The executing court negatived the claim made by the 6[th] respondent against which she preferred A.S. No.56 of 2004. That appeal was allowed by way of remand against which the original decree holder filed F.A.O. No.277 of 2004 in this Court. This Court dismissed F.A.O. No.277 of 2004 against which the original decree holder filed Civil Appeal No.1345 of 2005 in the Supreme Court. While the matter was pending in the Supreme Court in the Civil Appeal, there was a settlement between respondents 1 to 5 and the 6[th] respondent. It is pursuant to that settlement and agreement executed between them respondents 1 to 5 deposited Rs.10 lakhs for payment to the 6[th] respondent. She withdrew the amount and all ## **Ex. S.A. No.17 of 2012** ## -: 13 :- her claims in E.A. No.537 of 2000. I am given a copy of the deed of compromise dated 11.04.2011. There it is stated, that all the claims the 6[th] respondent had raised over the plaint schedule properties in O.S. Nos.110 of 1958 and 117 of 1958 shall stand extinguished and that she unconditionally undertook that no further claims would be raised by any member of her family or cause d to be raised by any of them or by any person on behalf of the late Madhavan Potti (the original mortgagee). Going by the deed of compromise, and the solemn undertaking the 6[th] respondent has made, reason persuades me to think that the 6[th] respondent had withdrawn all the claims she had with respect to the property scheduled in O.S. No.110 of 1958 and that withdrawal of the claim was not simply concerning the building in the decree schedule property in O.S. No.110 of 1958. Thus the claim of the 6[th] respondent came to an end. 21. But the litigation was not end there. Then came the appellants with E.A. No.461 of 2001 to implead them E.P. No.118 of 2000 which I stated was shot down by the executing court and confirmed by this Court. 22. The next move was by E.A. No.785 of 2011. There, for the first time it was claimed that since the last 400 years, there **Ex. S.A. No.17 of 2012** ## -: 14 :- is (allegedly) a temple is in existence in 58 cents which according to the appellants is not covered by the decree schedule in O.S. No.110 of 1958 and that they are in administration and management of the temple. In E.A. No.785 of 2011 they alleged that the attempt on the part of respondents 1 to 5 is to interfere with their possession of the 58 cents where the temple is (allegedly) in existence. 23. The learned Senior Advocate for the appellants contended that what was mortgaged in favour of Madhavan Potti and acquired by the original decree holder and later, by respondents 1 to 5 as per Exts.A17 to A22 is only 1.25 acres in Sy. No.29A. It is pointed out by the learned Senior Advocate that going by Ext.A4, partition of the year, 1959 (effected in the family of the mortgagor and mortgagees) the total extent of land available in Sy. No.29A was 4.05 acres and that as D schedule of item No.4 of Ext.A4, 26 cents in Sy. No.29A was allotted to Kamala Bhai, sister-in-law of the mortgagee while the rest of the property compromised in Sy. No.29A was allotted to the other parties to Ext.A4. According to the learned Senior Advocate, entitlement of respondents 1 to 5 must be confined to the 1.25 acres which alone is referred to in the decree schedule in O.S. **Ex. S.A. No.17 of 2012** ## -: 15 :- No.110 of 1958 and the schedule of E.P. No.118 of 2000. It is in the above circumstances that the learned Senior Advocate argued that once it is shown that appellants are in possession of the 58 cents which does not form part of the 1.25 cents covered by the decree schedule in O.S. No.110 of 1958, by no stretch of imagination respondents 1 to 5 could lay hands on the said 58 cents, no matter what is the nature of right or possession the appellants have over the said 58 cents. 24. To understand that contention I must refer to the relevant documents as well. I am given a copy of Ext.A4, partition deed of the year 1959. There, western boundary of the 1.25 acres in Sy. No.29A is stated as 'paddy field'. I find the same description as the western boundary in the decree schedule in O.S. No.110 of 1958 and the schedule to E.P. No.110 of 2000. I must notice that in the delivery report dated 17.07.2000 also, the western boundary description for the property stated to be delivered is 'paddy field'. Thus it is clear that the western boundary of the property over which mortgage was created and referred to in the decree schedule is the 'paddy field'. 25. In Ext.A22, release deed (a copy of which is given to me for perusal) the western boundary of the property is referred ## **Ex. S.A. No.17 of 2012** ## -: 16 :- as 'road' (as against 'paddy filed' in the decree schedule and Ext.A4). It is relevant to note that in Ext.A5(b), plan prepared by the Advocate Commissioner in E.P. No.607 of 1976, western boundary of the property including the 58 cents over which the appellants have claimed right is shown as the 'road'. Therefore, it is clear that the road has come as the western boundary of the entire 1.70 acres (including the 58 cents over which the appellants now claimed right) only after the institution of O.S. No.110 of 1958 and Ext.A4, partition deed of the year 1959. In other words, the entire property on the east of the 'paddy field' (now shown in Ext.A5(a) as 'road') is covered by the decree for redemption in O.S. No.110 of 1958. Therefore it is idle to contend, based on the description of extent alone (1.25) acres in the decree schedule in O.S. No.110 of 1958 that respondents 1 to 5 have no right over the 58 cents over which appellants are claiming right and possession. 26. In this connection I must notice the finding this Court has made in C.R.P. No.1808 of 2000. There, obviously referring to the above contention this Court found that the actual extent of property covered by the decree schedule in O.S. No.110 of 1958 is 1.70 acres (though the extent stated is 1.25 acres). ## **Ex. S.A. No.17 of 2012** ## -: 17 :- 27. The courts below, having regard to the above evidence on record came to the conclusion that claim of the appellants over the 58 cents referred to in E.A. No.785 of 2011 cannot stand. That, in my view is a finding of fact entered by the executing court and confirmed by the first appellate court. 28. So far as the possession claimed by the appellants over the 58 cents is concerned, I do not find any acceptable evidence to that effect. All the arguments for the appellants are based on Ext.A5(a) and the extent of the decree schedule property in O.S. No.110 of 1958 which I have adverted to and found against. It is relevant to note that in the report submitted by the Advocate Commissioner in E.P. No.607 of 1976, there is no mention of any structure (except the building where the Family Court, Thiruvananthapuram was functioning) as situated in the disputed 58 cents. 29. Next is the report submitted by the Advocate Commissioner in E.P. No.118 of 2000. The Commissioner was appointed as per order on E.A. No.395 of 2011. The Commissioner inspected the 58 cents on 18.08.2000 at 2.40 p.m (A copy of that report is given to me for perusal). The Commissioner has reported that the property (by then) ## **Ex. S.A. No.17 of 2012** ## -: 18 :- differenciated by fence seemed to be approximately 55 cents, the exact area of which could be found only with the assistance of a Surveyor. Commissioner reported that he noticed some obstruction in the property which appeared to be 3-4 months old. Commissioner stated from his memory and from the report dated 26.06.1995 that there was no such obstruction or structures in the area which the Commissioner has roughly estimated based on the differenciation made by the fencing (made by then) as 55 cents, which the appellants have assessed as 58 cents and which on measurement is found to be 45 cents. The Advocate Commissioner further stated that a new structure was found in the suit property the oldness of which could be assessed as 3-4 months. On the northern side of the said structure, a granite compound wall at a length of 15 metres seemed to be demolished. Commissioner also noticed all possible attempts being made to show that the structures are the “abode of an old temple”. Commissioner was of the view that as of then (date of inspection on 18.08.2001), none of the structures found in the disputed property were more than 3-4 months old. 30. Thus it is clear apart from the lack of evidence for the appellants regarding the disputed temple being in existence in ## **Ex. S.A. No.17 of 2012** ## -: 19 :- the property since 400 years, and the reports submitted by the Advocate Commissioner in E.P. No.110 of 2000 that whatever structures the Commissioner found therein, were 3-4 months old and came into existence only after Ext.A5, report. To be more precise, those structures must have come up only after the compromise was entered into between respondents 1 to 5 and the 6[th] respondent in Civil Appeal No.1345 of 2005 followed by the deed of compromise which I have already referred to above. It is therefore clear, as the executing court also observed, that the attempt of the appellants in making a claim over the 58 cents without any material was at the instance of the 6[th] respondent. True, there is no direct evidence in that regard. But courts are not prohibited from drawing appropriate inferences from the facts admitted and proved. 31. Having heard the learned Senior Advocate for the appellants and the learned counsel for respondents 1 to 5, perused the judgments under challenge and gone through the copy of relevant documents given to me for perusal, I am satisfied that the findings entered by the executing court and confirmed by the first appellate court are based on the facts and evidence on record and that does not involve any substantial ## **Ex. S.A. No.17 of 2012** ## -: 20 :- question of law. 32. Though some dispute is raised by the appellants as if they are still in possession of the 58 cents, on the basis of the Amin's report dated 17.07.2000, I find myself unable to accept that contention as well. However, to enable the parties concerned (not being respondents 1 to 5) to remove whatever structures that are now in existence in the disputed 58 cents, I direct that the execution proceedings to that extent shall stand in abeyance for a period of one month from the date notified for delivery of a copy of this judgment. 33. Banerjee, J., pointed out in **Anita Karmokar and Another v. Birendra Chadra Karmokar** (AIR 1962 Calcutta 88 - page 92), “the path of execution is not an easy going highway and provides no short-cuts to the destination..... Difficulties of a litigant in India begin when he has obtained a decree...” 34. This case does not appear to be an exception to that situation. A litigation which started in the year 1958, has not so ## **Ex. S.A. No.17 of 2012** -: 21 :- far concluded. Resultantly: The Execution Second Appeal is dismissed in limine. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv