O.V. Alexander v. Treesa Mohanan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 6[TH] DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945** **CRP NO. 745 OF 2019** **AGAINST THE ORDER/JUDGMENT OS 414/2010 OF PRINCIPAL MUNSIFF COURT, KOCHI** ## **REVISION PETITIONER/S:** O.V.ALEXANDER AGED 58 YEARS S/O.VINCEN, HOUSE NO.1/1081, (1/934) ODATHAPRAMBU, KUNNUMPURAM, NORTH THAMARAPARAMBU DESOM, FORTKOCHI VILLAGE, KOCHI TALUK BY ADVS. GEORGE SEBASTIAN SRI.ARUN LUCKOSE ABRAHAM ## **RESPONDENT/S:** 1 TREESA MOHANAN@ LILLY AGED 70 YEARS W/O.MOHANAN, HOUSE NO.1/1081,(1/934) ODATHAPRAMBU, KUNNUMPURAM, VADAKKETHAMARAPARAMBU DESOM, FORT KOCHI VILLAGE, KOCHI TALUK-682002 2 ANUMOL.K.M AGED 29 YEARS D/O.MOHANAN, HOUSE NO.1/1081,(1/934) ODATHAPRAMBU, KUNNUMPURAM VADAKKETHAMARAPRABU DESOM, FORTKOCHI VILLAGE, KOCHI TALUK-682002 3 MARY JOSHY AGED 54 YEARS W/O.E.P.JOSHY, HOUSE NO.1/1081, (1/934) ODATHAPRAMBU, KUNNUMPURAM, NORTH THAMARAPARAMBU DESOM, FORTKOCHI VILLAGE, KOCHI TALUK-682002 BY ADVS. SRI.S.GOPAKUMAR SMT.SINDHU SANTHALINGAM SRI.A.D.SHAJAN SMT.T.M.BINITHA **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON** **11.01.2024, THE COURT ON 06.02.2024 DELIVERED THE FOLLOWING:** CRP No.745 of 2019 -2- ## **ORDER** Dated this the 06[th] day of February, 2024 The revision petitioner is the 1[st] judgment debtor in E.P.No.137 of 2017 in O.S.No.414 of 2010 of the Principal Munsiff's Court, Kochi. The suit was filed by respondents 1 and 2 for a declaration that they have perfected their title over plaint B schedule property by virtue of their exclusive, open, continuous and uninterrupted possession and occupation against the lawful title of the defendants. The other prayer in the suit was for a perpetual injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiffs over B schedule item and from dispossessing the plaintiffs otherwise than through due process of law. In support of the prayers, the following averments were made in the CRP No.745 of 2019 -3- plaint; Plaint A schedule item is 5.25 cents with a residential building in Sy.No.259/1 in Fort Kochi Village. Plaint B schedule item is the northern room in that house occupied by the plaintiffs and the property having an extent of one cent in which the said room is situated. Plaint A schedule item originally belonged to late Simon Vincent and his wife, the parents of the first plaintiff and defendants 1 and 2. The second plaintiff is the daughter of the first plaintiff. The plaintiffs had been residing in the house situated in plaint A schedule. Simon Vincent and his wife executed Ext.P8 gift deed dated 16.02.1993, in respect of Plaint A schedule property, in favour of defendants 1 and 2. Simon Vincent died on 15.06.1994. Thereafter, defendants 1 and 2 propounded Ext.P8 gift deed on 17.07.1994 and, claiming absolute title over plaint A schedule property, demanded the CRP No.745 of 2019 -4- plaintiffs to vacate from the house. Instead of vacating, the plaintiffs shifted to a room in the northern portion of the building and from then onwards, were in uninterrupted possession of that room and the one cent of land in which the room is situated. 2. The suit was dismissed by the trial court and that judgment was affirmed by the I[st] appellate court. Thereupon, the plaintiffs filed second appeal before this Court and as per the judgment in RSA No.1501 of 2013, the second appeal was allowed and the suit decreed in part by declining the relief of declaration and granting the prayer for perpetual injunction. 3. Sometime later, respondents 1 and 2 filed execution petition before the Munsiff's Court seeking arrest and detention of the defendants, revision petitioner and third respondent, for wilful disobedience of the judgment and decree by their illegal interference CRP No.745 of 2019 -5- with the peaceful possession and enjoyment of the decree holders over plaint B schedule. In the execution petition, it is alleged that the judgment debtors were attempting to carry out some construction over plaint B schedule property. The judgment debtors filed objection stating that they had not done anything to disturb the occupation of the one room in one cent claimed by the decree holders. It was submitted that the judgment debtors had partitioned the property equally and B schedule room and the appurtenant one cent is in the portion allotted to the revision petitioner. It was also submitted that the revision petitioner wanted to construct a bathroom with latrine on the north-eastern corner of the property. For that, a coconut tree had to be cut to facilitate the bringing of construction materials to the site. It was finally contended that the decree holders are not entitled to seek relief without CRP No.745 of 2019 **==> picture [16 x 8] intentionally omitted <==** demarcating the one room with one cent of land occupied by them. By the impugned order, the execution court rejected the contentions and proceeded to hold that the judgment debtors have wilfully disobeyed the injunction and decree passed in the second appeal and is therefore liable to be prosecuted under Order 21 Rule 32 of the Code of Civil Procedure. 4. Learned Counsel for the revision petitioner assailed the order on the following grounds; - (i) The execution petition is silent with respect to the alleged violation and the manner in which the peaceful possession of the decree holders was interfered with. - (ii) The order directing detention, based on the allegation of violation, cannot be sustained without identifying the decree schedule property. - (iii) Even in cases of violation, detention CRP No.745 of 2019 **==> picture [16 x 8] intentionally omitted <==** cannot be ordered unless the violation and disobedience is found to be wilful. 5. As regards the first ground, it is submitted that the only averment in the execution petition is that the judgment debtors are attempting to carry out some construction over plaint B schedule. It is contended that the court below committed gross illegality in ordering detention of the judgment debtors based on such a vague allegation. In support of this contention, reliance is placed on the decisions in _**Padmakshi Amma v. Hashim [1999 KHC 54]**_ and _**Chellamma and**_ _**Others v. Santhimadam, Sivakshetram, Venjaramoodu**_ _**and Others [2009 (4) KHC 985].**_ 6. With respect to the second ground of challenge, i.e, identity of the property not being established, attention is drawn to the Advocate Commissioner's report filed in the execution petition wherein the Commissioner has CRP No.745 of 2019 -8- noted that B schedule was identified based on the boundary descriptions and its extent can be ascertained only on measurement. Referring to the judgment of this Court in RSA No.1501 of 2013, it is submitted that B schedule is declared to be the northern room in the building in A schedule occupied by the plaintiffs and the property having an extent of one cent in which the said room is situated. The coconut tree cut stood on the extreme north-eastern corner of the property, which portion is not part of the one cent claimed by the decree holders. Reliance is placed on the decision in _**Abraham v. Chellan and Others [2009**_ _**(1) KHC 1335]**_ to contend that, for considering whether the decree of injunction with respect to an immovable property is violated, it is imperative to establish the identity of the property with precision. 7. In support of the third ground, reliance CRP No.745 of 2019 -9- is placed on the decisions in _**Keeran v. Mohanan**_ _**and Others [1980 KHC 10], Padmanabhan v. Narayanan [1987 KHC 431]**_ and _**Raman Nambissan v. Damodaran Nambissan [1995 KHC 187]** ,_ wherein it has been held that the judgment debtor cannot be detained in civil prison on a mere finding that the injunction decree is violated or disobeyed, without holding that the judgment debtor had wilfully failed to obey the decree. It is submitted that mere cutting of a coconut tree and stacking of construction materials in the revision petitioner's property cannot be termed as wilful disobedience, more so when the decree holders failed to establish as to how those acts of the revision petitioner affected their peaceful possession. 8. Learned Counsel for respondents 1 and 2 contended that the grounds urged by the revision petitioner are liable to be discarded in view of CRP No.745 of 2019 -10- his admission in the cross-examination that he had cut the coconut tree and stacked building material in the property. Moreover, the boundaries of B schedule is clearly described. Insofar as the boundaries are clear, it is not necessary to measure the property for the purpose of deciding whether the injunction decree is violated or not. No explanation as to how the peaceful possession is affected is required when a standing coconut tree is cut and building materials stacked, affecting the free movement of the decree holders. It is hence contended that the impugned order warrants no interference. 9. Although various grounds are raised against the impugned order, for the purpose of deciding this civil revision petition, the consideration is being confined to the ground regarding failure to identify the decree schedule property. It is true that going by the description of the boundaries of B schedule, the CRP No.745 of 2019 -11- coconut tree that was cut and the area where the construction materials are stacked would fall within the boundaries. At the same time, based on the case put forth by respondents 1 and 2, this Court had declared the decree B schedule property to be the one room on the northern corner and the one cent in which the that room is situated. Being so, the revision petitioner cannot be proceeded against for violating the injunction decree, without ascertaining whether the alleged acts of violation were committed inside the decree schedule property. For that, the decree schedule one cent, including the room occupied by respondents 1 and 2 will have to be measured and demarcated. As held by this Court in _**Abraham** (supra)_ , to decide whether a decree of injunction in respect of an immovable property is violated, it is imperative to establish the identity of the property with precision. Insofar as the decree schedule property is not identified and CRP No.745 of 2019 -12- demarcated in the present case, the court below went wrong in finding the revision petitioner to have violated the injunction decree and ordering civil detention as per Order 21 Rule 32 of CPC. For the aforementioned reasons, the civil revision petition is allowed and the impugned order is set aside. The court below shall proceed with the execution petition after the decree schedule property is identified and demarcated by the Advocate Commissioner. The rest of the contentions urged on behalf of the revision petitioner can be raised before the execution court. Sd/- **V.G.ARUN JUDGE** Scl/