MusaliyARakath Abdullakutty S/o Moideenkutty Vi yy oor AMSOM, Kollam Desom, Koyilandy Taluk vs Puthiyottikandi Kunhayissa Umma Vi yy oor AMSOM, Kollam Desom, Koyilandy Taluk, Kozhikode (and Addl. Respondents Imbichipathu, Katheesa, Ussain)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN FRIDAY, THE 13TH DAY OF APRIL 2012/24TH CHAITHRA 1934 SA.No. 577 of 1997 (B) ---------------------(AS.7/1995 of SUB COURT, QUILANDY) (OS.74/1991 of MUNSIFF COURT, QUILANDY) ## APPELLANTS/RESPONDENTS 1 TO 3/DEFENDANTS 1 TO 3 ----------------------------------------------------------------------------------- 1. MUSALIYARAKATH ABDULLAKUTTY S/O.MOIDEENKUTTY VIYYOOR AMSOM, KOLLAM DESOM KOYILANDY TALUK 2. P.V.K.ABOOBACKER, PADINHAREVESYATHUKANDI KOYILANDY TALUK 3. MADATHUMMAL IMBICHIPATHU MADTHUMMAL HOUSE, -DO- BY ADV. SRI.R.PARTHASARATHY RESPONDENT/APPELLANT/DEFENDANT --------------------------------------------------------- 1. PUTHIYOTTIKANDI KUNHAYISSA UMMA VIYYOOR AMSOM, KOLLAM DESOM KOYILANDY TALUK, KOZHIKODE )( DIED-LRS IMPLEADED )( AS ADDL.RESPONDENTS ## ADDL.RESPONDENTS 2. IMBICHIPATHU, D/O.LATE PUTHIYOTTIKANDI KUNHAYISSA UMMA MADATHUMMAL PARAMBIL HOUSE, VIYYOOR AMSOM, KOLLAM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT 3. KATHEESA, -DO- 4.. USSAIN -DO- (ADDL.R2 TO R4 IMPLEADED AS PER ORDER DT.13.4.2012 ON IA 262/08) BY ADV. SRI.P.V.KUNHIKRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13-04-2012, ALONG WITH SA NO.735/97, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.BHAVADASAN, J.** ---------------------------------------------------SA Nos.577 & 735 of 1997 ---------------------------------------------------Dated this the 13[th] day of April 2012 ## Order EA No.363/88 in EP No.302/78 was jointly tried with two other suits 107/90 and 74/91 by the Munsiff's Court, Quilandy. The trial court, after evaluating the evidence, dismissed OS No.107/90 and decreed OS No.74/91. It also dismissed EA No.363/88, which was filed by the plaintiff in OS No.107/90. The aggrieved plantiff took up the matter in appeal as AS No.7/95, which was directed against the judgment in OS No.107/90 and AS No.6/95 against the judgment in OS No.74/91. The lower appellate court reversed the findings of the trial court, decreed OS No.107/90 and dismissed OS No.74/91. SA No.577/97 is directed against the judgment and decree in AS No.7/95 and SA No.735/97 is directed against the judgment and decree in AS No.6/95. The facts necessary for the disposal of these appeals are as follows : SA 577/97 & 735/97 2 2. OS No.146/72 was a suit filed by the predecessor-in-interest of the first defendant against the plaintiff in OS No.107/90 for recovery of plaint C schedule property scheduled to the plaint therein. That suit was decreed. Consequent on the death of the decree holder in OS No.146/72, who had taken delivery of the property in pursuance of the decree, the property devolved on his legal heirs, who partitioned the property among themselves in the year 1988. 3. The plaintiff in OS No.107/90 initially laid EA No.368/88, challenging the delivery proceedings in OS No.146/72, complaining that there was no actual delivery of the property and that plaint C schedule property, the recovery of which was granted, continued to be in her possession. She, therefore, filed EA No.363/88 in EP No.302/78 praying that the entire delivery proceedings may be set aside and the execution proceedings may be conducted afresh. She also laid OS No.107/90 alleging trespass into the plaint schedule property. The complaint SA 577/97 & 735/97 3 was that the defendant had no manner of right over the suit property and that it belonged exclusively to her. It was also alleged that on 22.5.1990, the defendants 1 to 4 and their men came near the plaint schedule property and threatened that everything will be put to an end and that she would be dispossessed. Apprehending further threat and action, the suit was laid. 4. That suit was resisted by the first defendant pointing out that in view of the execution proceedings in OS No.146/72, in which the plaint schedule property shown in the said suit was delivered to the predecessor-in-interest of the first defendant, the plaintiff had no subsisting right over the suit property. Delivery proceedings were properly conducted in OS No.146/72 and it was after identifying the property that the delivery was effected and the delivery kaichit would show that the property was in fact delivered. He, therefore, claimed that the plaintiff had no cause of action against him. SA 577/97 & 735/97 4 5. The second defendant filed a separate written statement. He also disputed that the plaintiff is entitled to any right over the suit property. The plaint schedule property, according to him, is in his exclusive possession and enjoyment and he resides there. He obtained it from the predecessor-in-interest of the decree holder in OS No.146/72 and he calimed that the plaintiff had no manner of right over the suit property. He, therefore, prayed for dismissal of the suit. 6. The second defendant in OS No.107/90, thereafter, instituted OS No.74/91, which was also a suit for injunction against the plaintiff in OS No.107/90, alleging that she is trying to trespass into the suit property over which she had no manner of claim whatsoever. 7. The EA and the suit were jointly tried and disposed of by a common judgment. It is seen from the records that there was yet another suit as OS No.248/92 which was dismissed for default. OS No.107/90 was treated as the leading case and evidence was adduced in SA 577/97 & 735/97 5 the said case. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A5 from the side of the plaintiff. The contesting defendants had DW1 examined and Exts.B1 to B7 marked Exts.C1 and C2 are the commissioner's reprot and plan. 8. The trial court, after an elaborate consideration of the evidence in the case, found that delivery of plaint C schedule property to the plaint in OS No.146/72 was properly effected and that the property was in fact, delivered to the decree holder, after removing the judgment debtor, who is none other than the plaintiff in OS No.107/90. Accordingly, it was found that the plaintiff in OS No.107/90 had no manner of right over the plaint schedule property and the suit was accordingly dismissed. Consequently, the other suit was decreed. The EA filed by the plaintiff in OS No.107/90 was also dismissed. 9. As already noticed, the lower appellate court reversed the judgment and decree in the respective suits. Hence the second appeals. SA 577/97 & 735/97 6 10. Notice is seen issued on the following questions of law raised in the second appeals : (i) Was the lower appellate court justified in law in reversing the finding in EA No.366/88 in EP No.302/78 while disposing of the appeals from the two connected suits when the respondent had not challenged by filing any appeal or revision against the order in EA No.366/88. (ii) Are not the appeals AS 6/95 and 7/95 barred by res judicata in so far as the order in EA No.366/88 which was also tried along with the two suits OS No.107/90 and 74/91 has become final. (iii) Is the lower appellate court right in setting aside the order for delivery in execution of the decree without all the legal representatives of the original plaintiff on the party array as held by this Hon'ble court in Mathai v. Kunchukochu (1963 KLT 681). (iv) Is the lower appellate court right in law in reversing the judgment and decree of the trial court and decreeing the suit for injunction by the respondent when as a matter of SA 577/97 & 735/97 7 fact the plaintiff in OS No.74/91 is residing with his family in the 9½ cents obtained by him on assignment from one of the legal heirs of Abdullakutty who had taken delivery of the property in execution of the decree for recovery of possession.” 11. The learned counsel for the appellants pointed out that the lower appellate court was not justified in interfering with the judgment and decree of the trial court for more than one reason. According to the learned counsel, EA No.363/88 in EP No.302/78 was filed by the plaintiff in OS No.107/90, seeking to have the delivery proceedings in OS No.146/72 set aside and seeking for fresh delivery proceedings. That application was dismissed holding that there was proper delivery of the property, that the judgment debtor in the said suit had been removed from the property and delivery had been, in fact, effected to the decree holder. The learned counsel went on to point out that the property involved in the present suit is none other than plaint C schedule property involved in OS SA 577/97 & 735/97 8 No.146/72, delivery which was granted to the decree holder. The EA filed by the plaintiff in OS No.107/90 was dismissed. The order in the EA was not challenged and it had become final. Therefore, the lower appellate court ought to have seen that the claim of possession of the plaintff in OS No.107/90 of the very same property covered by the proceedings in EA No.363/88 cannot be justified. The finding regarding delivery has become final and that operated as res judicata and the appeal filed by the plaintiff ought to have been dismissed on that sole ground. In support of the said contention, the learned counsel relied on the decisions reported in **K.Raghavan Nambiar v. K.Sumathi Amma** (1991(1) KLJ 61), **Ram Prakash v. Charan Kumar** (AIR 1997 SC 3760) and **Lonankutty v. Thomman** (AIR 1976 SC 1645). 12. The learned counsel also went on to point out that the finding of the lower appellate court cannot be justified. The lower appellate court has, without adverting SA 577/97 & 735/97 9 to the relevant documents, had come to the conclusion that there was no evidence of delivery of the property involved in OS No.146/72. The learned counsel referred to Exts.A3, A4, B1, produced in the suit to show that delivery had in fact, been effected of plaint C schedule property after locating the same as per the direction in the decree and in the proceedings in EP No.302/78. It may be true, according to the learned counsel that the Amin did not prepare a separate plan or sketch of the property. But, that was unnecessary in view of the fact that the commissioner who had been deputed in the suit had prepared a plan, was also directed to ascertain the property to be delivered in the execution proceedings and he having identified the portion that was to be delivered to the decree holder, it was unnecessary for the Amin to prepare a separate sketch or plan. The delivery kaichit clearly shows that delivery of the property had actually been effected. It is, therefore, contended that by no stretch of imagination, the judgment and decree of the lower appellate court can be justified. SA 577/97 & 735/97 10 13. The learned counsel for the respondent sought to justify the judgment and decree of the lower appellate court pointing out that there was no independent evidence showing delivery of plaint C schedule property involved in OS No.146/72 and in the absence of any such evidence, the judgment and decree of the lower appellate court are only to be upheld. The learned counsel also pointed out that it is not in dispute that plaint C schedule property in OS No.146/72 is the suit property and if it is found that there is no delivery of the property in OS No.146/72, then, it follows that the plaintiff in OS No.107/90 continued to be in possession of the property and the defendants have no manner of right over the property. That is all what the lower appellate court has found and no reasons are made out to interfere with the findings of the lower appellate court. 14. After having heard the learned counsel on both sides and perused the records, it is extremely difficult to sustain the judgment and decree of the lower appellate SA 577/97 & 735/97 11 court. It is significant to notice the prayer in EA No.363/88 in EP No.302/78 in OS No.146/72 filed by the plaintiff in OS No.107/90, which reads as follows : “It is therefore, prayed that this Hon'ble Court may be pleased to set aside the order passed in the above EP and conduct a denovo enquiry into the above matter in accordance with the terms of the judgment and decree passed by the learned Munsiff, Quilandy in OS 146/72 and to direct the same commissioner to inspect the property with notice to the petitioner and to ascertain the exact dimension and location of the property to be delivered/re-delivered and to pass such other or further reliefs as deemed fit in all the circumstances.” 15. To recall the short facts, OS No.146/72 was a suit filed for recovery of possession on the strength of title by the predecessor-in-interest of the first defendant against the plaintiff in OS No.107/90. It is an admitted fact SA 577/97 & 735/97 12 that the suit was decreed in favour of the plaintiff and even in this proceedings, the plaintiff in OS No.107/90 admits that she is bound by the decree. However, in the decree in OS No.146/72, there was a direction that the property to be actually delivered had to be ascertained in the execution proceedings and the commissioner who had inspected the property during the pendency of the suit was directed to identify the property to be delivered in execution. 16. The decree holder took execution of the decree by filing EP No.302/78. The bone of contention is regarding the delivery said to have been effected in EP No.302/78. While the appellants before this court would say that the delivery was in fact effected, the respondent would say otherwise. The trial court, after considering the evidence, found that there were several clinching items of evidence to show that the delivery of the plaint C schedule property after identification as directed in the decree in OS No.146/72 was effected by the Amin with the aid of the commissioner as directed in the suit. In order to come to SA 577/97 & 735/97 13 that conclusion, the trial court relied on Exts.B1 and A4 in the commissioner's report in the delivery proceedings. The court below, therefore, had dismissed EA No.363/88 seeking to have the delivery proceedings set aside. That order has become final as it was not challenged in appeal. That means, the finding of the trial court that there was proper delivery of plaint C schedule property involved in OS No.146/72 stood unchallenged. It was the said item of property that was the subject matter of OS No.107/90 and which also, according to the plaintiff, was involved in OS No.146/72 . But, his definite contention was that the no delivery had taken effect in pursuance of the decree in OS No.146/72. For reasons best known to the plaintiff in OS No.107/90, she left the order in EA No.383/88 unchallenged and she sought to challenge only the judgment and decree in OS No.107/90. Since the order in EA No.363/88 has become final, it follows that the finding of the court below that the delivery of plaint C schedule property involved in OS No.146/72 had been effected had SA 577/97 & 735/97 14 become final and if that be so, the plaintiff in OS No.107/90 could not have been in possession of the suit property. As righly pointed out by the learned counsel for the appellant, the finding in EA No.363/88 having attained finality and unchallenged, operated as res judicata and the lower appellate court ought not to have considered the appeal against the judgment and decree in OS Nos.107/90 and 74/91. 17. Apart from the above aspect, on facts also, it seems that the lower appellate court has erred in its conclusions. It has not taken note of Ext.B1 submitted before court, which clearly shows that the property had actually been delivered. Ext.A4 is the plan of the property which has been delivered to the decree holder. Delivery proceedings being an official act, it will be deemed to have been done in accordance with law unless shown otherwise. Once it is shown that there was delivery of the property and there was prima facie evidence to show that delivery had been effected, then, the burden was on the plaintiff to show SA 577/97 & 735/97 15 that the delivery was, in fact, not effected. No evidence was adduced by the plaintiff in OS No.107/90 to show that the delivery proceedings were irregular in any manner or that actual delivery was not effected. 18. It will be useful now, to refer to the commissioner's report in the suit also. The disputed property lies on the eastern side of the admitted property belonging to the plaintiff. Even going by the commissioner's report, the property lies well separated from the plaintiff's admitted property and it is separated by a boundary wall. The plaintiff, in her deposition, had admitted that the second defendant, in 1988 had been residing with his family. The suit for injunction was filed in 1990. Having admitted the possession in 1988, the suit for mere injunction in 1990 would not be maintainable. 19. Apart from the above facts, it also needs to be noticed whether the suit OS No.107/90 is maintainable or not. It was on the basis of a complaint that no delivery had been effected that the suit was laid. One has SA 577/97 & 735/97 16 necessarily to advert to Section 47 of the C.P.C. which reads as follows : - “47. Questions to be determined by the court executing decree - (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit. - (2) Omitted by CPC (Amend) Act, 1976, S.20 (w.e.f.1.2.1977). - (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the court. - Explanation -I - For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been SA 577/97 & 735/97 17 dismissed are parties to the suit. Explanation II - (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed ; and - (b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.” 20. It is not a matter in dispute that the plaintiff in OS No.107/90 was a party to OS No.146/72 and the predecessor-in-intrest of the defendants were parties to the same suit. Therefore, they fit the character of persons made mention of in Section 47 extracted above. Section 47 of the C.P.C. is a clear embargo for filing a separate suit in respect of matters which are concerned with execution, SA 577/97 & 735/97 18 discharge and satisfaction of the decree. For the above reasons, this court finds it difficult to sustain the judgment and decree of the lower appellate court and they have necessarily to be reversed. Accordingly, this appeals are allowed. The judgment and decree passed by the lower appellate court are set aside and that of the trial court are restored. No order as to costs. **P.Bhavadasan, Judge** sta SA 577/97 & 735/97 19