IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 15TH JANUARY 2010 / 25TH POUSHA 1931 EFA.No. 24 of 1995() ------------------------- EA.41/1990 IN OS. NO.148/1096 of SUB COURT, THIRUVALLA .................... APPELLANT(S): PETITIONER ----------------------- ITHACK ISAC, VADAKKEDATHU VEEDU, ARICADU MURI, ARICADU VILLAGE.(DIED) *ADDL. APPELLANTS IMPLEADED. 2. ABRAHAM ISSAC, AGED 66 YEARS, S/O. LATE ITHACK ISSAC, VADAKKEDATHU NOOROMMAN P.O. (VIA) PUNNAVELY 689 589. 3. THOMAS ISAAC, AGED 53 YEAS, S/O. LATE ITHACK ISAAC, CENTRAL WAEHOUSING CORPORATION HABOUR POST, MUMA GAO, GOA. *ADDL. APPELLANTS 2 AND 3 AE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED SOLE APPELLANT AS PER ORDER DT. 23.9.04, IN CMP. 3694/97. BY ADV. MR.JOSE PALLATTUKARAN RESPONDENT(S): COUNTER PETITIONER -------------------------- AKHILA KERALA VISHWAKARMA MAHASABHA SABHAYOGHAM, NO. 96, ARICADU, REP.BY ITS SECRETARY. BY ADVS. MR.K.K.MOHAMED RAVUF, MR.ESM.KABEER THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 15/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. ........................................... E.F.A.No.24 OF 1995 ............................................. Dated this the 15th day of January, 2010. J U D G M E N T This appeal is preferred against the order of the Subordinate Judge, Thiruvalla in E.A.No.41/1990 in O.S.No.148/1096 of Malayalam era. The brief facts of the case would reveal that when the amin went to effect delivery of the property, there was an objection with respect to delivery of 6 cents of land in Sy.No.504/1 and the building therein by the counter petitioner therein. It is an organisation called Viswakarama Mahasabha. When such an obstruction was raised, the decree holder moved an application for removal of obstruction on the ground that the counter petitioner did not have any right, title or possession over the property so as to obstruct delivery of the property. On the contra, the counter petitioner contended that they are in absolute possession of the property for 56 years and there was a building in the property which continued to be with them and there is a temple constructed about 16 years back and they are : 2 : E.F.A.No.24 OF 1995 having uninterrupted continuous possession and enjoyment of the property and therefore the decree holder is not entitled to get delivery of that property. It is also their contention that they had put up a temple of Lord Krishna and people are worshiping there. Therefore they request for non delivery of the property claimed by them. 2. In the court below, PW1 and CPW1 were examined, Exts.B1, B2 and C1 to C4 were marked. On an analysis of the materials, the court below dismissed the prayer of the decree holder to remove the obstruction. It is against that decision, the decree holder has come up in appeal. 3. Heard the learned counsel for both sides. The learned counsel for the appellant very persuasively and strongly contends before me that the court below has erred in not removing the obstruction. At the outset, it has to be stated that when an obstruction is there and it is sought to be removed, then an enquiry is contemplated as provided under Order 21 Rule 101 of the Civil Procedure Code. In that amended provision, questions relating to right, title and interest of the parties are to be adjudicated and by : 3 : E.F.A.No.24 OF 1995 statutory fiction the decree becomes appealable before a court of law. So, the scope of enquiry contemplated under Order 21 Rule 101 is just like in a title suit. 4. Now the question to be considered is who is having the title over the property or whether the decree holder has succeeded in proving that the obstructer does not have any right over the property. A Commissioner was appointed in this case to visit the property and he had submitted the plan and report. A perusal of his report would show that he had visited the property, measured it and found that 5 ½ cents of land is in the possession of Viswakarma community. It is also reported by him that there are walls on three sides besides a temple and an old building. That old building is aged 75 years and the temple is about 25 years old, according to the Commissioner. So, it has to be stated from the Commissioner's report that the present property claimed by the obstructor is lying as a separate compound with a building and a temple which is of considerable age. The learned Subordinate Judge had discussed this aspect in para-8 of her order. The petition : 4 : E.F.A.No.24 OF 1995 schedule property is 3 acres and 93 ¾ cents. The court below has specifically stated that after the measurement, the Commissioner found that the petition schedule property is only 5.5 cents and it is not part of 3 acres and 93 ¾ cents belonging to the petitioner. When it is so, it has to be held that the decree holder is not entitled to get delivery of the property. Further the evidence of the Commissioner only supports the case of the obstructor and not the decree holder. The obstructor got examined as CPW1 and he had deposed before the court regarding getting possession, eviction of tenant from the property,construction of building and installation of dieties for performing poojas regularly. It has also come out in evidence that the decree holder is not residing far away from the property. Therefore from the materials available, it has to be held that the decree holder has not succeeded in proving that he is entitled to get obstruction removed. The learned counsel would contend that the court has not considered the material documents and therefore it has erred in entering such a finding. But it has to be stated that none of those documents : 5 : E.F.A.No.24 OF 1995 have been exhibited before the court and some documents produced in proceeding between the decree holder and the defendant will not be binding on the obstructor unless it is produced in the proceedings where the obstructor is a party and it is proved. At this distance of time, no reconsideration is necessary for the reason that it is a clear enclosed compound with building and the age also indicates about the prolonged possession by the Viswakarma community. Therefore, I do not find any error committed by the court below in dismissing the petition for removal of the obstruction. Therefore, the EFA is dismissed without costs. M.N. KRISHNAN, JUDGE. cl