IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 1ST FEBRUARY 2011 / 12TH MAGHA 1932 ESA.No. 5 of 2001() ---------------------------- A.S. 63/2001 OF ADDL. DISTRICT COURT -II, MAVELIKARA. OS. NO.398/1988 OF THE MUNSIFF'S COURT, MAVELIKARA. ........ APPELLANT(S): APPELLANT/PETITIONER/OBSTRUCTOR --------------------------------------------------------------------------------- OMANA, MANNANETHU VEEDU, ERAZHA VADAKKUM MURI, KANNAMANGALAM VILLAGE, PRESENTLY RESIDING IN QTR. NO.EII/110,12TH CROSS ROAD, W.ISLAND, KOCHI 3. BY ADVS. SRI.VPK.PANICKER SRI.GEORGE VARGHESE PERUMPALLIKUTTYIL SRI.V.K.NANDAKUMARAN NAIR SMT.SREELEKHA RESPONDENT(S): RESPONDENT/ RESPONDENT/DECREE HOLDER ------------------------------------------------------------------------------------------------ RAMAN RAGHAVAN, VALYATHU VEEDU, PELA MURI, KUNNAMANGALAM VILLAGE. ADV. SRI.R.RAJASEKHARAN PILLAI THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss HARUN-UL-RASHID, J. ------------------------ E.S.A.No.5 Of 2001 ---------------------- Dated this the 1st day of February, 2011. J U D G M E N T The following substantial questions of law are formulated at the time of admission. a) The disruption of co-ownership having been attained at the partition of 1125 M.E referred to as Ext.A1 in the suit, is an allottee thereunder entitled to claim thereafter that by the redemption of an outstanding mortgage by another allottee under the said partition, the allottee so redeeming is a redeeming co- mortgagor? b) Does not the above question arise for decision in an application for obstruction prior to delivery, filed by a heir of the defendant who had redeemed the mortgage, who had not been impleaded in the suit as a legal representative? c) On the face of the undisputed position that the plaintiffs and defendants are relatives and in view of the stand taken by additional defendants 9 to 12 that they are the only heirs of the deceased 8th defendant and that they are in possession of he property, is not the finding of the courts below that there was substantial representation of the estate of the 8th defendant contrary to law? ::2:: E.S.A.No.5 Of 2001 d) On the facts and in the circumstances of this case, is not the petitioner entitled to sustain her obstruction to the delivery not with standing that she has not established her case of adverse possession? (e) Did not the courts below act contract to law in not affording sufficient opportunity to the petitioner to adduce all evidence in support of her case? 2. Appellant is the obstructor in E.A.No.268 of 2000 in E.P.No.99 of 1999 in O.S.No.398 of 1988 on the file of the Munsiff Court, Mavelikkara. This E.S.A is directed against the judgment in A.S.No.63 of 2001 of the Additional District Court II, Mavelikkara. The petitioner is the daughter of 8th defendant in O.S.No.398 of 1988. The appellant filed E.A.No.268 of 2000 in E.P.No.99 of 1999 claiming right, title and interest over the property sought to be delivered in favour of the decree holder in O.S.No.398 of 1988. The execution court by order dated 17.2.2001 considered the contentions of the petitioner and dismissed the petition with costs. The petitioner preferred A.S.No.63 of 2001 challenging the order of the execution court. The appellate court confirmed the order of dismissal passed by the execution court. Aggrieved by the judgment in appeal the ::3:: E.S.A.No.5 Of 2001 petitioner preferred the second appeal. Parties hereinafter are referred to as the petitioner/obstructor and respondent/decree holder respectively. 3. The respondent/decree holder filed O.S.No.398 of 1988 for partition and separate allotment of share with mesne profits. Before filing the written statement, the 8th defendant died. The plaintiff filed application for impleadment of his legal representatives. Legal representatives, 4 in number, were impleaded as additional defendants 9 to 12. The additional defendants impleaded as 9 to 12 are the wife and three sons of the deceased 8th defendant. 4. Suit was seriously contested by the defendants. Defendants 2 to 7 filed a joint written statement denying the right of the plaintiff and prayed for dismissal of the suit. Legal heirs of the 8th defendant namely, additional defendants 9 to 12 also filed joint written statement raising contentions denying the right of the plaintiff to sue for partition and prayed for dismissal of the suit. 5. The trial court after considering the rights of the parties held that the respondent/decree holder is entitled to a ::4:: E.S.A.No.5 Of 2001 share in the plaint schedule properties. The trial court passed a preliminary decree for partition allowing division and separate possession of item No.4 in Ext.A1 partition deed to the plaintiff on deposit of Rs.185/- being his share in the mortgage amount. 6. The respondent/decree holder filed I.A.No.713 of 1992 for passing a final decree. The trial court passed final decree in terms of the preliminary decree. The legal heirs of the 8th defendant namely, defendants 9 to 12 preferred A.S.No.157 of 1994 challenging the allotment of item No.4 in Ext.A1 partition deed which was identified as red and yellow coloured plots in Ext.C1 plan. The appeal preferred by defendants 9 to 12 was dismissed on 12.9.1999 for non-prosecution. 7. After the dismissal of the appeal the respondent/decree holder filed E.P.No.99 of 1999 for delivery. The execution court ordered delivery. The additional 9th defendant, who is one of the legal heirs of deceased 8th defendant, aggrieved by the decision of the execution court ordering delivery, preferred C.R.P.No.330 of 2000 before this Court contending that the execution petition is not maintainable. This Court by order dated 22.3.2000 held that the execution ::5:: E.S.A.No.5 Of 2001 court was perfectly justified in concluding that the execution petition is liable to be proceeded with and dismissed the CRP. 8. The very same petitioner who filed C.R.P.No.330 of 2000 again approached this Court by filing C.R.P.No.2530 of 2000 complaining that the decree is not an executable one and therefore the E.P. has to be dismissed. This Court after considering the contentions raised by the petitioner dismised the CRP by order dated 6.12.2000 holding that the said contentions is not sustainable in law. This Court also taken note of the fact that the very same petitioner approached this Court in C.R.P.No.330 of 2000 questioning the execution and this Court rejected the same. 9. After the dismissal of the CRPs referred above, another legal heir of the deceased 8th defendant filed E.A.No.268 of 2000 claiming that she has got absolute right in the property which is ordered to be delivered. The petition is filed under Order XXI Rule 97 of the Code of Civil Procedure requesting the court to adjudicate the claim. The petitioner is the daughter and legal representative of deceased 8th defendant in the suit. It is not disputed that she was not impleaded as one of the legal ::6:: E.S.A.No.5 Of 2001 representatives of the deceased 8th defendant. It is stated that she came to know about the suit as well as the passing of the decree only in 12.12.2000. According to her, she is in exclusive possession and enjoyment of decree schedule property, that since she is not a party to the suit the decree cannot be executed and she cannot be dispossessed from the property sought to be delivered. 10. This is a case where 8th defendant died at an early stage of the suit. The plaintiff who is the respondent/decree holder applied for impleading the legal heirs of the deceased 8th defendant. Defendants 9 to 12 were impleaded as legal heirs of the deceased 8th defendant. They are the wife and three sons of the deceased 8th defendant. All the legal heirs excluding the petitioner/obstructor filed written statement and contested the suit. A preliminary decree was passed. Final decree was passed on 6.11.1993. The legal heirs of 8th defendant namely, defendants 9 to 12 preferred appeal challenging the final decree as A.S.No.157 of 1994. The said appeal was dismissed on 12.9.1999. In the E.P. the legal heirs again raised contentions that the execution petition is not maintainable. Aggrieved by the ::7:: E.S.A.No.5 Of 2001 order passed by the execution court one of the legal representatives of 8th defendant preferred C.R.P.No.330 of 2000. The said C.R.P. was dismissed on 22.3.2000. When the case was posted for delivery, again the very same petitioner raised some other contentions which was also repelled and the court posted the case for delivery. That order was challenged by him in C.R.P.No.2530 of 2000. The said CRP was also ended in dismissal on 6.12.2000. Thereafter E.A.No.268 of 2000 was filed by the present appellant. The aforesaid facts would go to show that the claim of the plaintiff for partition was opposed by the legal heirs of the 8th defendants. They have put up a very serious contest in all the stages of the suit. The matter was contested at the trial stage, final decree stage and execution stage on several times. That led to passing of several orders by different courts. 11. Out of the 5 legal heirs of the 8th defendant, 4 legal representatives were impleaded in the suit. The petitioner contended before the courts below that since she was not a party to the suit, the decree is not binding on her and that she has got absolute title to the property sought to be delivered. It is further contended that since she was not a party to the suit, the decree ::8:: E.S.A.No.5 Of 2001 cannot be executed in such a way as to dispossess her from the property. According to her, the property devolved upon her father as per patta and according to her that contention was not taken up by additional defendants 9 to 12 in the suit. The courts below held that out of the 5 legal representatives 4 were impleaded under the bonafide belief that they are the only legal representatives. All legal representatives, who are none other than the mother and brothers of the petitioner contested the suit. The courts below rightly found that there was sufficient representation to the estate of the deceased and that in such a situation the decision of the court will bind the entire estate including those representatives who were not brought on record in the absence of collusion. The courts below also noticed that the petitioner has no case that there is fraud or collusion practiced by the other legal representatives and that there is no fraud or collusion between the decree holder and other legal representatives in order to defeat her rights. The only contention raised is that she was not made a party to the suit and the decree is not binding on her. The decree holder/respondent has also a further case that the petitioner as being the member of the ::9:: E.S.A.No.5 Of 2001 family of defendants 9 to 12 she has got sufficient knowledge about the pendency of the proceedings, that she filed the E.A to protract the proceedings at the final stage. The courts below held that in the absence of a case of fraud or collusion, the contention raised by the petitioner is unsustainable in law. The appellate court followed the decision of this Court reported in Hameed v. Sumithra and others (1987 (1) KLT 308) in which it is held that “when a plaintiff or appellant after bonafide enquiry ascertains the legal representatives of a deceased defendant of respondent and impleads them, the impleaded representatives sufficiently represent the estate of the deceased and the decision with them on record will bind the entire estate including those legal representatives not brought on record in the absence of fraud or collusion or circumstances indicating that there has not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried in the proceedings”. The appellate court further observed that the record shows that there are four legal representatives out of five sufficiently represented the estate of the deceased 8th defendant. The courts below also enquired and considered the contention of ::10:: E.S.A.No.5 Of 2001 the petitioner that she has got title and possession over the property. The courts below on evidence held that no evidence has been adduced by the petitioner to substantiate her contention. It was held that she neither produced any documentary evidence nor produced any oral evidence to establish title and possession over the property ordered to be delivered. The facts and circumstances stated in detail in the preceding paragraphs would go to show that the petitioner has no independent title or possession over the property. In fact, before filing the present E.A claiming title and possession, she filed O.S.No.238 of 1999 against the decree holder/respondent claiming that she has acquired title by adverse possession and limitation. In that case the trial court elaborately considered the contentions of the parties and held that the plaintiff is not in possession and enjoyment of the disputed property. Her present plea of adverse possession and limitation is hit by res judicata. The suit was dismissed with cost to the defendant who is none other than the decree holder/respondent. All the proceedings referred above would go to show that the legal representatives of the deceased 8th defendant, one after another had vigilantly ::11:: E.S.A.No.5 Of 2001 prosecuted the case. All their contentions were examined by all the courts on several occasions in different proceedings and in the suit as well. I find that the execution second appeal is preferred without any merit and liable to be dismissed. No question of law muchless any substantial questions of law arises for consideration in this appeal. In the result, the appeal fails and accordingly, dismissed. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-