IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 5TH OCTOBER 2007 / 13TH ASWINA 1929 CRP.No. 1841 of 2003() ---------------------- EP.188/1983 of MUNSIFF COURT, THALASSERY .................... REVN. PETITIONER: RESPONDENT/2ND DEFENDANT: ------------------------------------------- CHALIL KRISHNAN, RESIDING AT CHANDROTH CHALIL ORUKHANNAM PARAMBIL WARD V/25 HOUSE, IRIVERI AMSOM DESOM. BY ADV. SRI.K.V.SOHAN SRI.B.PREMNATH (E) RESPONDENTS: PETITIONER/PLAINTIFF: ---------------------------------- ARIKULANGARA KUNHAPPA NAIR, RESIDING AT SOUTHER AISE OF OODUPURAKKAL ILLAM, TALIPARAMBA AMSOM, KEEZHATTUR DESOM. BY ADV. ]RI.C.P.KUNJHIKANNAN SMT.VIDHYA. A.C THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/10/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: O R D E R TODAY, WHEN THE CASE IS CALLED, THERE IS NO REPRESENTATION FOR THE PETITIONER. HENCE, THIS CIVIL REVISION PETITION IS DISMSISED FOR DEFAULT. 5.10.2007 SD/- PIUS C.KURIAKOSE, JUDGE. ORDER ON I.A. 1794/2003 IN CRP NO.1841/2003 DISMISSED 5.10.2007 SD/- PIUS C.KURIAKOSE, JUDGE. /TRUE COPY/ P.A. TO JUDGE. HARUN-UL-RASHID, J. ---------------------------------------- C.R.P.No. 1841 of 2003 ---------------------------------------- Dated this the 1st day of January , 2009 ORDER The 2nd defendant/2nd Judgment Debtor, who is the revision petitioner herein, challenged the order in E.P. No. 188/1983 in O.S. No. 189 of 1970 on the file of the Munsiff Court, Thalassery. The respondent/decree holder obtained a decree for permanent injunction restraining the revision petitioner from entering the plaint schedule property which is identified as plot A of Ext.C1 including plots A1 and A2 and for recovery of possession of plots A1 & A2. 2. The decree in O.S. 189/70 was taken up in appeal as A.S. 118/1970 by the revision petitioner and the appeal was dismissed the lower appellate court by confirming the trial court decree and judgment. Subsequent to the dismissal of the appeal the respondent/decree holder herein filed E.P. No. 75/1978 for delivery of plots A1 and A2 which are identified as plot A in Ext.C1 plan. The delivery was ordered and the Amin filed a report dated 3.4.1978 stating actual delivery of plots A1 and A2. . The same was recorded by the execution court. It was also submitted by the respondent/decree holder before the execution court even after obtaining recovery of possession of Plots A1 and A2,there was continuous attempt to trespass into the decree schedule property by the -2- revision petitioner and prayed for his arrest and detention in Civil prison for violation of the decree of injunction. 3. The revision petitioner/2nd judgment debtor filed a counter contending that the delivery was not effected by the Amin, that he is still in possession and enjoyment of the property and therefore the prayer for arrest and detention in Civil prison is without any bonafides and the said execution petition is liable to be dismissed. 4. The execution court very elaborately examined whether there was effective delivery under Ext. A3 report filed by the Amin and as to whether the revision petitioner is in possession and enjoyment of plots A1 & A2 . The question whether there was only paper delivery in respect of the plots A1 & A2, as contended by the revision petitioner, was gone into in detail by the execution court. The execution court observed that except raising the contention of no delivery was effected under Ext. A3 report, no evidence was adduced by the revision petitioner to rebut the presumption regarding the regularity of the judicial and official acts made pursuant to Ext. A3 report dated 2.4.1978. The only peace of evidence relied on by the revision petitioner is Ext.B9 report filed by the Special Revenue Inspector in O.A. 47/1978. O.A No. 47/1978 is an application filed by the revision petitioner for purchase of right title and interest of the landlord and intermediaries in respect of 45 Cents in R.S. 103/1 and -3- 106/1 of Irivery amsom. As per Ext.A4 the Land Tribunal, Kannur after referring to the Civil suit judgments in this regard and other facts and circumstances, held that the revision petitioner has failed to prove his tenancy claim in respect of the properties under dispute. The counsel submitted that the report filed by the Special revenue Inspector which was marked as Ext.B9 in the execution petition would establish that the revision petitioner has constructed a house in R.S. 103/1 bearing No.C.P 5/306 and that he was residing therein with his family. According to the revision petitioner Ext.B9 is enough to rebut the case of the respondent that there is actual delivery as per Ext.A3 report. 5. The learned Munsiff perused the contentions raised by the revision petitioner one after another in paragraph 8 of the order. The execution court rightly held that there was no evidence produced by the revision petitioner to rebut the presumption drawn under Section 114 (e) of the Indian Evidence Act based on Ext.A3 report filed by the Amin. The execution court also held that when considering Ext.C1 report coupled with the statement of the revision petitioner to the effect that he was residing in a compact plot that he was in possession of both plots A1 and A2 after delivery recorded in E.P. 75/1978 appears to be improbable. The execution court court also noted the facts that in Ext.C1 plan attached to Ext.A1 decree indicate that the claim of possession was of two separate portions of A plot comprised in R.S. 103/1 shown Ext. C1 plan, that the specific finding in Ext.A2 judgment to the effect that there was absolutely -4- no improvements made either in pots A1 or in A2 and the same was confirmed by the lower appellate court. Soon after the appellate judgment E.P.No. 75/1978 was moved and based on Ext.A3 report by the Amin actual delivery was made regarding plots A1 and A2 denoted in Ext.C1 plan complying the procedure mentioned in the Code of Civil Procedure dated 3.4.1978 and delivery was recorded on 6.4.1978. The Execution Court also observed that except the mere denial of delivery recorded in E.P 75/1978 no proper evidence was tendered by the revision petitioner to show that even after Ext.A3 delivery he was in possession of plots . A1 & A2 The execution court also noted that the revision petitioner did not choose to cross-examine the Amin who filed Ext.A3 report. Ext.B9 was also not properly proved before the execution court. Be that as it may, the revision petitioner did not choose to take out a Commission to show that he is still in possession of portion of the property in R.S. 103/1, that he constructed a house in the said plot and that heis residing in the said house. The execution court took into consideration the above facts and also the specific finding in Ext.A2 judgment to the effect that there is absolutely no improvements in plots.A1 or in A2. On an elaborate consideration of the facts and evidence, the execution court concluded that the actual delivery of plots A1 & A2 was made by virtue of Ext.A3 report by the Amin and that the contention of the revision petitioner to the effect that there was only paper delivery so far as plots A1 and A2 are concerned was having no force at all. The execution court also justified the -5- action of the respondent in approaching the execution court apprehending dispossession of Plots A1 and A2 and violation of the decree of injunction .I am of the view that the execution court acted very reasonably and afforded an an opportunity to the revision petitioner to file an affidavit within one month relinquishing all the claims in respect of plots A1 & A2 in Ext.C1 report for avoiding detention in civil prison. The facts and evidence will go to show that there is a deliberate and wilful attempt on the part of the revision petitioner to disobey the trial court decree and to violate it. 6. On a perusal of the facts and materials on record, I find that the impugned order was passed by the execution court on a sound, factual and legal footing and therefore no different view is possible in this matter.. This revision petition fails and accordingly dismissed. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- C.R.P. No. 1038 of 2006 ---------------------------- ORDER 1st January 2009