## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH**
**THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933**
**OP(C).No. 2553 of 2011(O)**
**--------------------------------**
**OS.280/2001 of PRL. MUNSIFF COURT, ERNAKULAM**
**....................**
## **PETITIONERS**
**-----------------**
**1. THANKACHAN,AGED 50 YEARS,S/O.VARGHESE, PALTHUTHAYIL HOUSE,POONKAVU,PATHIRAPPILLY.P.O, ALAPPUZHA,NOW RESIDING AT VIKRAMATH HOUSE, MARADU VILLAGE,KANAYANNUR TALUK,ERNAKULAM.**
**2. ROSILY THANKACHAN,AGED 47 YEARS, W/O.THANKACHAN,NOW RESIDING AT VIKRAMATH HOUSE, MARADU VILLAGE,KANAYANNUR TALUK,ERNAKULAM.**
**BY ADV. SRI.B.S.SURESH KUMAR**
**RESPONDENT(S):**
**---------------------**
**1. RAJAKRISHNAN,AGED 48 YEARS,S/O.KRISHNAN, SOUPARNIKA,98,34/160,GIRINAGAR NORTH, ERNAKULAM VILLAGE,KANAYANNUR TALUK,ERNAKULAM DISTRICT - 682 302.**
**2. TELMA,AGED 48,D/O.SOURO @ XAVIER, VIKARAMATH HOUSE,MARADU VILLAGE,KANAYANNUR TALUK, ERNAKULAM- 682 304.**
**3. TENCY,AGED 30,D/O.SOURO @ XAVIER, VIKRAMATH HOUSE,MARADU VILLAGE,KANAYANNUR TALUK, ERNAKULAM- 682 304.**
**4. LAISSA,AGED 28 YEARS,D/O.SOURO @ XAVIER, VIKRAMATH HOUSE,MARADU VILLAGE,KANAYANNUR TALUK, ERNAKULAM- 682 304.**
**5. TELSY,AGED 54 YEARS,D/O.V.T.JOSEPH, VIKRAMATH HOUSE,MARADU VILLAGE,KANAYANNUR TALUK, ERNAKULAM- 682 304.**
**svs**
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**...2...**
## **OPC. NO.2553/2011**
**6. THANKAMANI,AGED 52 YEARS,D/O.V.T.JOSEPH, VIKRAMATH HOUSE,MARADU VILLAGE,KANAYANNUR TALUK, ERNAKULAM- 682 304.**
**7. JESSY,AGED 50 YEARS,D/O.V.T.JOSEPH, VIKRAMATH HOUSE,MARADU VILLAGE,KANAYANNUR TALUK, ERNAKULAM- 682 304.**
**8. OMANA,AGED 48(DIED),D/O.V.T.JOSEPH, VIKRAMATH HOUSE,MARADU VILLAGE,KANAYANNUR TALUK, ERNAKULAM- 682 304.**
**9. V.T.ANNAKKUTTY,AGED 86 YEARS, D/O.V.T.JOSEPH,VIKRAMATH HOUSE,MARADU VILLAGE KANAYANNUR TALUK,ERNAKULAM- 682 304.**
**10. SHERLY,AGED 34 YEARS,D/O.VINCENT, VIKRAMATH HOUSE,MARADU VILLAGE,KANAYANNUR TALUK, ERNAKULAM- 682 304.**
**11. TELMA,D/O.V.T.JOSEPH,VIKRAMATH HOUSE, ARAYED NORTH.P.O,ALAPPUZHA DISTRICT - 688 013.**
**12. JIJO VARGHESE,D/O.V.T.JOSEPH, VIKRAMATH HOUSE,ARAYED NORTH.P.O, ALAPPUZHA DISTRICT- 688 013.**
**13. JESSY MOL,D/O.V.T.JOSEPH,VIKRAMATH HOUSE,ARAYED NORTH.P.O,ALAPPUZHA DISTRICT- 688 013.**
**THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**svs**
## **O.P.(C). NO. 2553/2011**
## **APPENDIX**
## **PETITIONER'S EXHIBITS:**
- **P1: COPY OF THE E.A. NO.170/2010 IN E.P. NO.57/2010 IN O.S. NO.280/2001 ON THE FILES OF PRINCIPAL MUNSIFF COURT, ERNAKULAM.**
- **P2: COPY OF ORDER DATED 06/07/2011 PASSED IN E.A. NO.170/2010 IN E.P. NO.57/2010 IN O.S. NO.280/2001 ON THE FILES OF PRINCIPAL MUNSIFF COURT, ERNAKULAM.**
## **RESPONDENT'S EXHIBITS: NIL**
**/TRUE COPY/**
## **P.A. TO JUDGE.**
**svs**
## **THOMAS P.JOSEPH, J.**
**==================================== O.P(C) No.2553 of 2011 ==================================== Dated this the 04[th] day of August, 2011**
## **J U D G M E N T**
Petitioners are claimants in E.A. No.170 of 2010 in E.P.No.57 of 2010 in O.S. No.280 of 2001 of the court of learned Principal Munsiff, Ernakulam. That is a suit for partition of properties left behind by one Vavachan. There was a preliminary decree followed by a final decree and in the final decree proceeding it was directed that property, considering its extent cannot be divided by metes and bounds and hence it is to be auctioned. Accordingly the property was put to auction. First respondent purchased the building in question in that auction. Thereafter he filed E.P. No.57 of 2010 for delivery of the building. At that time petitioners came forward with E.A. No.170 of 2010. Their contention is that on 15.06.1990 they got an oral lease from the deceased Vavachan, the predecessor-in-interest of the parties in O.S. No.280 of 2001 on payment of Rupees Two lakhs from the said Vavachan to permit them to occupy the building as tenant. It was agreed that the monthly rent payable be adjusted in the interest payable on the amount. Further contention is that
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deceased Vavachan had permitted petitioners to be in possession of the building as security for due repayment of the said amount. Petitioners contended that they are not parties in O.S. No.280 of 2001 and hence the decree cannot be executed against them. First respondent/auction purchaser contended that allegations are false and that attempt is to protract and prolong execution proceeding. He denied that petitioners are tenants of the building in question. According to him, deceased Vavachan had executed a Will in respect of the property bequeathing the property to his children including Annakkutty (mother of the first petitioner) and second petitioner, wife of first petitioner. After the death of Vavachan, Annakutty and children shifted residence to the building in question. Thus petitioners happens to be in occupation of the building.
2. Before the executing court both sides adduced evidence regarding their respective contentions. First petitioner gave evidence as P.W.1 and testified to the case of petitioners. They produced Exts.A1 to A5 while first respondent produced Exts.B1 to B4 though he did not adduce oral evidence. From the evidence on record the executing court found that version of petitioners regarding lease or security for due repayment of the
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amount cannot be accepted and accordingly E.A. No.170 of 2010 was dismissed vide Ext.P2, order. That order is under challenge in this proceeding.
3. Learned counsel for petitioners contended that there is sufficient evidence to show that petitioners are in possession of the building in question right from 15.06.1990 onwards as revealed by Exts.A1 to A5. It is also contended that reasons stated by executing court to dismiss E.A. No.170 of 2010 are not correct. It is argued that though mother of second respondent (a legaty under the Will executed by Vavachan) was also a party in O.S. No.280 of 2001, she remained ex parte. It is contended that O.S. No.1814 of 1998 filed by some of the legaties against petitioners and others was not contested by petitioners since that suit was only for injunction against cutting of certain trees.
4. I must bear in mind that the suit for partition was filed in the year, 2001 and following the final decree, the building was put to public auction in which first respondent purchased the same and following that he filed E.P. No.57 of 2010. Prima facie it is difficult to think that petitioners who claimed to have been in possession of the building in their own capacity were unaware of all the proceedings which started in year 2001 particularly
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when the mother of second respondent was a party to O.S. No.280 of 2001 and she was served with summons. Whatever be the nature of the reliefs prayed for, it is pertinent to note that in O.S. No.1814 of 1998 where petitioners were defendants 3 and 4, either they did not contest or did not raise any contention of the nature raised in E.A. No.170 of 2010.
5. Coming to the independent right of petitioners asserting to be in possession of the building, learned counsel placed reliance on the decision in **Pushpadas v. Sukumara**
**Pillai** (2010 [2] KLT 385 – paragraph 9). There, dispute was between the landlord and tenant, the status being not disputed and tenants setting up an agreement for sale. It is in that circumstance that this Court observed in paragraph 9 which learned counsel relies. That decision cannot apply to the facts of this case where independent right which petitioners claim is very much disputed by the respondents.
6. Coming to the allegation of oral lease, executing court observed that at one stage petitioners claimed to be tenants of the building in question as per oral lease said to be created by the deceased Vavachan on 15.06.1990 but at a later stage they contended that they are holding the building as security for due
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repayment of the loan. Executing court also found that version of petitioners that they advanced Rupees Two lakhs on 15.06.1990 without any document is difficult to be swallowed particularly when, as the executing court pointed out that parties were of such an age and their earnings were such that petitioners could not have raised Rupees Two lakhs on 15.06.1990. No document worth the name is produced by petitioners to show that they are tenants of the building in question or as later claimed, are occupying the building as security for due repayment of the loan. At any rate if that version of petitioners is correct, they have only claim against the deceased Vavachan and as against the assets of Vavachan in the hand of his legal heirs for recovery of the amount allegedly due.
7. I can also make reference to the documents which petitioners rely. Exhibit A1 does not in any way help the petitioners since that is only a purchase certificate issued in favour of the deceased Vavachan. Exhibit A2 is the Will executed by deceased Vavachan which does not confer any right on petitioners. Exhibits A3 to A5 only show that petitioners are in occupation of the building in question which the first respondent is not disputing. As to what exactly the jural relationship between
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petitioners and deceased Vavachan is, is not a matter which the Panchayat Secretary could decide as seen from Exts.A3 and A4. Thus there was no acceptable evidence to show that petitioners have any independent right over the building in question. It is in these circumstances that the executing court disallowed the prayer in E.A. No.170 of 2010. Having heard counsel and gone through the order challenge, I do not find reason to interfere.
Original Petition fails. It is dismissed.
## **THOMAS P. JOSEPH, JUDGE.**
vsv
