IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 Ex.FA.No. 19 of 2011(E) ----------------------- AS.183/2011 of DISTRICT COURT, PALAKKAD E.A.150/2005 in E.P.27/2001 in OS.34/1978 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT/PETITIONER: ------------------------------------ K.R.SHANMUGHA SUNDARAM,S/O.RAGHAVASWAMY NAIDU,RESIDING AT DOOR NO.31/243,VADAKKANTHARA ROAD,PALAKKAD-12. BY ADV. SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN RESPONDENT(S): RESPONDENTS: ---------------------------------------------- 1. S.GANAPATHY IYER(DIED) 2. SESHADRI,S/O.GANAPATHY IYER, FLAT NO.4,IST FLOOR,CULCUTTA NOW RESIDING A NO.4, OM SAKTHI NAGAR,GARUDA GARDEN,KOVAIPUDUR, COIMBATORE DISTRICT-641042.REPRESENTED BY POWER OF ATTORNEY G.RADHAKRISHNAN(9TH RESPONDENT) CHENNAI I 3. G.LAKSHMI,D/O.GANAPATHY IYER,109/10, CHAITHANYA JAYAPRAKASH NAGAR,GOREAGON EAST, BOMBAY,REPRESENTED BY POWER OF ATTORNEY G.RADHAKRISHNAN(9TH RESPONDENT).CHENNAI I 4. G.JANAKI,D/O.GANAPANATHY IYER,MF.5/9, E-BLOCK,NANDINI LAY OUT,BANGALORE,REPRESENTED BY POWER OF ATTORNEY G.RADHAKRISHNAN(9TH RESPONDENT). CHENNAI I 5. G.SUNDARAN,S/O.GANAPATHY IYER, L7, BRINDHAVAN ESTATE,PASHADHAI PATEL PARK,RACE COURSE ROAD,BARODA,REPRESENTED BY POWER OF ATTORNEY G.RADHAKRISHNAN (9TH RESPONDENT).CHENNAI I 6. VENUGOPAL,S/O.GANAPATHY IYER, RESIDING AT BLOCK-D,GOKULAM IST FLOOR,BOMBAY, REPRESENTED BY POWER OF ATTORNEY G.RADHAKRISHNAN, (9TH RESPONDENT). CHENNAI I 7. G.NATARAJAN,S/O.GANAPATHY IYER,A6, FLAT NO.103,SREE COMPLEX,ADHANWADI,KALYAN WEST, THANE,REPRESENTED BY POWER OF ATTORNEY G.RADHAKRISHNAN(9TH RESPONDENT).CHENNAI I 8. T.BALASURBRAMANIAM,S/O.GANAPATHY IYER, P.B.NO.3971,DUBAI,UAE,REPRESENTED BY POWER OF ATTORNEY G.RADHAKRISHNAN(9TH RESPONDENT).CHENNAI I 9. G.RADHAKRISHNAN,S/O.GANAPATHY IYER, FLAT NO.4,PLOT 32,RAMAMOORTHY STREET, THANDAVARMOORTHY NAGAR,VALSURAVAKKAM,CHENNAI-1. 10. MEENAKSHI(DIED),(IMPLEADED AND AMENDED AS PER ORDER IN IA.1616/1993 AND LA.17/1998 DATED 20.6.1998) ADV. SMT.PRABHA R.MENON FOR R (B/O) THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13/10/2011, THE COURT ON 24.10.2011DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Ex.F.A. No. 19 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of October, 2011. JUDGMENT The petitioner, whose application under Order XXI Rule 97 of the Code of Civil Procedure for adjudication of his independent rights over the property, in relation to which the execution petition was filed and who failed to establish his claim, is the appellant. 2. The petitioner claims right to the property involved in the execution proceedings by virtue of Exts.A1 andA2, which are dated 11.8.1969 and 7.3.1951 respectively. Before going into the claim of the petitioner, it will be useful to refer to the history of the litigation. 3. The property originally belonged to one Thiruvenkita Chettiar and his son Kunju Chettiar. After their death, the property devolved on their widows Paru Chettiar and Lakshmi Chettiar respectively. The widows Ex.F.A.19/2011. 2 assigned the property in 1945 to Krishnan Tharakan. He in turn sold the property to Subramania Muthan in 1946. 4. One of the reversioners, namely, Krishnan filed O.S.80 of 1946 challenging the alienation by the widows and obtained a decree declaring the sale in favour of Krishnan Tharakan and Subramania Muthan as invalid. But he could not obtain possession of the property since the widows were alive and alienees therefore could exercise the rights over the properties. However, while granting a decree declaring that the alienations are invalid, a charge was created over the property for a sum of Rs.700/-. 5. Subramania Muthan assigned whatever rights he had to Ganapathy Iyer as per document dated 4.4.1951. He instituted R.C.O.P.15 of 1970 against the predecessor in interest of the petitioner, who admittedly was a tenant under the widows. He disputed the title of the landlord. That was upheld. That resulted in Ganapathy Iyer filing O.S. 34 of 1978 against the predecessor in interest of the present petitioner. Ex.F.A.19/2011. 3 6. The said suit was dismissed. A.S.421 of 1982 filed was also dismissed confirming the trial court decree. A.F.A.11 of 1990 was filed before this court. While disposing of the appeal this court observed that the plaintiff in the suit is in the same position of the widows, whose rights have been obtained by the petitioners had the suit been filed by the widows. It was also held that until the reversioner or the person having better title recovers the property from the plaintiff, he is entitled to continue in possession. 7. It was also held in A.F.A.11 of 1990 that the defendant, being a lessee under the transferor of the plaintiff, can succeed only if he establishes a better title. Holding so, the matter was remanded to the trial court for fresh disposal. 8. After remand a fresh decree was passed on 31.7.2000, which is seen extracted in the order of the court below. That became final. 9. The decree holder took out execution of the decree. During the pendency of the execution proceedings, Ex.F.A.19/2011. 4 the judgment debtor passed away and his legal heirs were brought on the party array. One of the legal heirs brought on the party array was the petitioner in the present proceedings. He was declared ex-parte. He therefore filed I.A.445 of 2005 to set aside the ex-parte order. Before doing so, he had filed E.A.150 for 2005 presumably under Order XXI Rule 99 stacking independent claim over the property involved in the execution proceedings. By order dated 19.9.2007 I.A. 445 of 2005 was dismissed by the executing court. While doing so, the executing court observed that the petitioner had not produced any document to substantiate his claims. Order in I.A.445 of 2005 was challenged before the District Court, Palakkad in A.S.288 of 2007. The appeal was dismissed. The petitioner approached this court in Ex.S.A.2 of 2011. By order dated 28.2.2011 this court while dismissing the petition observed that before effecting delivery E.A.150 of 2005 shall be considered. 10. In compliance with the direction so issued by this court, the execution court took up E.A.150 of 2005 and Ex.F.A.19/2011. 5 considered it on merits. The executing court found that the petitioner in the said petition was not able to establish independent right or title to the property and accordingly dismissed the E.A. It is the said order that is assailed before this court. 11. The only question that arises for consideration is whether the court below was justified in holding that the petitioner in the claim petition was unable to establish his independent claim. 12. It may be noticed at the outset itself that the petitioner in E.A.150 of 2005, who is the appellant before this court traces his title to Exts. A1 and A2 dated 11.8.1969 and 7.3.1951 respectively. Ext.A2 is the deed of sale executed by the reversioner Krishnan represented by his father in favour of Rangaswamy Gounder. The claim of the petitioner in E.A.150 of 2005 is that infact that purchase was for and on behalf of Thirumala Gounder. It is claimed that subsequent to Ext.A2 document in favour of Rangaswamy Gounder, which was held to be for and on Ex.F.A.19/2011. 6 behalf of Thirumala Gounder, Thirumala Gounder was in possession and enjoyment of the property. After the death of Thirumala Gounder in 1969, as per Ext.A1 dated 11.8.1969 the legal heirs of Thirumala Gounder executed Ext.A1 agreement for sale in favour of one Nadarajan, who is examined as P.W.2 in this proceedings. It is claimed that in fact Nadarajan was acting for and on behalf of the petitioner and in pursuance to Ext.A1 document possession and enjoyment of the property had been obtained by him. It is also claimed that the petitioner is residing in the building in the property. 13. The petitioner heavily relies on Exts.A1 and A2 and certain other documents to claim a better title to the property involved in this proceedings and contends that he cannot be evicted. The execution court on an evaluation of the evidence found the said contention to be untenable. 14. Learned counsel appearing for the appellant severely criticized the finding of the court below. It was pointed out that the court below had failed to understand Ex.F.A.19/2011. 7 the real issues involved in the proceedings and has been carried away by certain insignificant matters. It omitted to note, according to learned counsel, the claim of the petitioner was that he obtained the right of the reversioner Krishnan, who got the sale deeds in favour of Krishnan Tharakan and Subramania Muthan set aside subject to a charge of Rs.700/-. Both the widows, who are the assignors, died in 1949. Thereafter the property devolved on the reversioner. Learned counsel pointed out that the respondent, who was an alienee from Subramania Muthan cannot have a better title than the petitioner. Learned counsel went on to point out that the lower court failed to note that the petitioner was not claiming under the judgment debtor, but setting up an independent right based on Exts.A1 and A2. The observation of the lower court that the guardian who acted for and on behalf of Krishnan in executing Ext.A2 is not known and also did not have the authority to execute the document are fallacious. Equally faulty is the reason given for not accepting Ext.A1. Learned Ex.F.A.19/2011. 8 counsel went on to point out that when a claim petition is filed under Order XXI Rule 99 of the Code of Civil Procedure, the claimant is in the position of the defendant and the decree holder is that of the plaintiff. That necessitated the plaintiff to establish his independent title over the property and he cannot get the benefit out of the weakness in the case of the claim petitioner. In support of his contention, learned counsel relied on the decision reported in Babu Raj v. Vasanthi Devi (2008 (4) K.L.T.761). 15. Learned counsel went on to point out that the burden has been wrongly cast on the claim petitioner and there has been no proper appreciation of the evidence in the case resulting in faulty findings. Relying on the decision reported in Unnikrishnan v. Kunhibeevi (2011(1) K.L.T. 508) learned counsel went on to point out that the only remedy available to the petitioner is to take recourse to Order XXI Rule 97 or 99 of the Code and a separate suit is not maintainable. Ex.F.A.19/2011. 9 16. Learned counsel appearing for the respondents relies heavily on the decision reported in Kunjumol v Immanuel v. Shibu (2011(1) K.L.T. 232) and pointed out that it is fallacious to say that vis a vis the claimant the decree holder is in the position of the defendant and he has to prove his title independently. One shall not forget, according to learned counsel, that the decree holder is armed with a decree and his rights have been adjudicated and upheld. It is for the person who says that he has better title to establish the same and on each occasion when a claim petition is filed, the decree holder cannot be called upon to independently establish his title. If it was otherwise, learned counsel went on to point out that it would be a never ending process and the decree holder would not be able to enjoy the fruits of the decree. Regarding the merits of the case, learned counsel went on to point out that the claimant has not been able to produce even a single document which would show that he had better title to the property involved in the proceedings. It Ex.F.A.19/2011. 10 was his duty to establish that he has better title to resist the eviction sought for by the decree holder. Learned counsel went on to point out (i) there is no evidence as to when the widows died. If the death is after 1956, Section 14 of the Hindu Succession Act comes into play, (ii) none has come forward to agitate the claim of reversioner, who succeeded in O.S. 80 of 1946, (iii) coming on record as the legal heir of the judgment debtor, the petitioner cannot set up an independent claim and (iv) Ext.A1, based on which claim is made, is only an agreement for sale. 17. Most of the facts are admitted. The controversy relates to the acceptance of Exts.A1 and A2, which according to the petitioner confers independent rights on him. 18. True, Krishnan, the reversioner, was able to get a decree in O.S.80 of 1946 declaring that the documents executed by the widows of Thiruvenkita Chettiar and Kunju Chettiar in favour of Krishnan Tharakan and Subramania Muthan are invalid. Of course a charge was created over the Ex.F.A.19/2011. 11 property for Rs.700/-. Since at that time the widows were alive, Krishnan could not obtain possession. As per the case put forward, it appears that Subramania Muthan assigned his rights to Ganapathy Iyer, the respondent in this proceedings. He had instituted R.C.O.P. 15 of 1970 against the father of the petitioner, who was a tenant under the widows. He disputed the title of the landlord and the court upheld the same. That resulted in O.S.34 of 1978. The history of the litigation has already been referred to and it is unnecessary to repeat the same. 19. One fact needs to be immediately noticed. This court while disposing of A.F.A. 11 of 1990 observed as follows: “The suit is remanded to the trial court for fresh disposal in accordance with law in the light of the finding recorded by us on the main point arising for consideration in the suit. Parties will be at liberty to adduce fresh evidence on the question of value of improvements and the quantum of damages for use and occupation, if so desired.” Ex.F.A.19/2011. 12 20. Now in E.A. 150 of 2005 it is seen that the claimant is setting up an independent title and not claiming under the judgment debtor. Therefore the contention that since the petitioner has come on record as the legal heir of the deceased judgment debtor, he cannot set up independent claim cannot be countenanced. When he steps into the shoes of the judgment debtor, nothing prevents him from agitating his independent claim especially when as rightly pointed out by the learned counsel for the appellant a separate suit may not be maintainable. In Ex.S.A. 2 of 2011 this court accepted that independent claim can be set up and that has to be considered by the court below before ordering delivery. 21. On going through the records, it is felt that the reasons given by the court below to doubt the ability and capacity of the person who acted as the guardian to execute Ext.A2 seems to be clearly unsustainable. The reasoning is based on a misunderstanding of the relationship between the parties. A reading of Ext.A2 will show that Ext.A2 was Ex.F.A.19/2011. 13 executed by the natural guardian of minor Krishnan and therefore that portion of the order of the lower court cannot be upheld. 22. But that does not relieve the petitioner of his burden to show that he had got a better title to resist the delivery sought for by the decree holder. In the decision reported in Babu Raj's case (supra) it was observed as follows: “That explains the language used by the legislature under R.101 of O.21 to indicate that all the questions including the questions relating to right, title or interest in the property arising between the parties to the proceeding, are to be determined by the Court. Incidentally, it is pertinent to remember that the position of an obstructor as in this case would be analogous to the position of a defendant in a suit for recovery of possession on the strength of title and the enquiry in such a proceeding should be not to consider whether such a person has better title over the person who seeks recovery of possession. The enquiry should be as to whether Ex.F.A.19/2011. 14 the person who seeks to displace or dispossess or eject the person who is admittedly found in possession has sufficient title qua the person in possession so as to eject him from the property. The enquiry in this case should have been primarily in that direction, particularly, in a case as the present where both the preliminary as well as final decree were obtained ex parte without a contest.” 23. Moreover after referring to various decisions, a different view has been taken in the decision reported in Unnikrishnan's case (supra), wherein it was observed as follows: “That even the third party setting forth any right over the property covered by court sale can have only recourse to R.97 or 99 of O.XXI and not by way of a separate suit.” 24. A reading of the above decisions shows that the remedy available to a claimant who sets up a claim against the decree holder is to approach the execution court under Order XXI Rule 97 or 99 of the Code and not by an independent suit. True, in the decision reported in Babu Ex.F.A.19/2011. 15 Raj's Case (supra) there is an observation that the claimant is in the position of a defendant and the decree holder is that of a plaintiff. But that has to be understood in the context of the facts of the said case. It cannot be taken as a general proposition that as soon as a person comes forward with a claim, the burden automatically shifts to the decree holder to establish his title over the property involved in the proceedings. At any rate, the claimant will have to prima facie satisfy the court that he has a right which can be used as a shield to protect his rights. Then ofcourse the burden may shift to the decree holder. If that is not so, as rightly pointed out by the learned counsel for the respondents, as far as the decree holder is concerned, it will be a never ending affair when a claim petition is filed he is called upon to establish his title. Obviously that cannot be the law. One may be profitably refer to the decision reported in Kunjumol C. Immanuel's case (supra). In the said case, after referring to the decision in Babu Raj's case (supra), it was observed as follows: Ex.F.A.19/2011. 16 “No separate suit will lie to impeach a decree and the party aggrieved, even if he is a stranger, has to approach the execution court and show his title, right and interest over the property and the decree is not binding on him. When that be so, it may not be proper and correct to say that on presentation of a claim resisting a decree, a third party can contend that the entire burden is on the decree holder to establish his right over the property covered by the decree, and further, prove that such decree is binding on such claimant as well. ” 25. One may now refer to the documents relied on by the claimant before the court below. Ext.A2 is a document prior in point of time. That is executed by minor Krishnan represented by his guardian in favour of Rangaswamy Gouder. The case of the petitioner is that Rangaswamy Gouder acted on behalf of Thirumala Gouder, who was his brother. The further case is that subsequent to Ext.A2 document Thirumala Gouder was in possession and enjoyment of the property and after the death of Thirumala Gouder, as per Ext.A1 document executed by the legal heirs, Ex.F.A.19/2011. 17 property was obtained by Nadarajan, who was acting for and on behalf of the petitioner in E.A.150 of 2005. 26. Except for the interested testimony of the petitioner, there is absolutely no evidence to show that Ext.A2 purchase deed by Rangaswamy Gouder was for and on behalf of Thirumala Gouder. There is no indication in the document and there is no evidence also to show that Thirumala Gouder exercised any manner of right over the suit property. From Ext.A2 it is virtually impossible to come to a conclusion that the purchase was infact by Thirumala Gouder. No reason is also given as to why Rangaswamy Gouder would purchase it in his name for and on behalf of Thirumala Gouder. It almost would appear that the claim is a benami purchase. As already noticed, there is nothing to show that subsequent to Ext.A2 Thirumala Gouder was enjoying the property or that he had exercised any acts of possession over the property. Except for the assertion made by the claimant and his reliance on Ext.A1 document, there Ex.F.A.19/2011. 18 is absolutely no evidence to show that Thirumala Gouder had exercised any manner of right over the suit property. 27. Coming to Ext.A1 document, the same is also equally weak. The document is in the name of Nadarajan. Of course it is executed by the legal heirs of Thirumala Gouder. Considerable reliance is placed on a stray endorsement in the last page of Ext.A1 wherein it is mentioned that it is for and on behalf of the petitioner. 28. As rightly noticed by the lower court, apart from the fact that the said endorsement is suspicious, it is extremely doubtful whether even assuming it to be correct, that by itself is sufficient to confer any right on the petitioner. 29. Ext.A1 is only an agreement for sale. A reading of Ext.A1 shows that there are eight executants. Out of them three are minors, namely, executants 5, 7 and 8. It is strange to note that they are not represented by anybody. Nobody has signed Ext.A1 on behalf of the minors. Ex.F.A.19/2011. 19 30. Ext.A1 shows that the total consideration is Rs.15,000/- and only Rs.5,000/- has been paid as advance. Period of execution is two years from the date of Ext.A1. There is no evidence at all of any demand having made by the petitioner or Nadarajan to have the sale deed executed. What is more significant is that there is no recital in Ext.A1 that possession has been handed over to the proposed vendee. Apart from all these, there is absolutely no indication in Ext.A1 to show that Nadarajan was acting for and on behalf of the petitioner. 31. Further, Ext.A1 is only an agreement for sale. Section 54 of the Transfer of Property Act clearly mentions that agreement for sale confers no right on the proposed transferee. At the risk of repetition, one may notice that there is nothing in Ext.A1 to show that the proposed vendee was put in possession of the property. 32. Coming to the oral evidence, the petitioner examined himself as P.W.1. He says that he obtained possession as per Ext.A1 document. But there is no Ex.F.A.19/2011. 20 evidence regarding the same. He claims that he is in exclusive possession of the property in pursuance to Ext.A1. He claims that he has been in exclusive possession from 11.8.1969 and had made valuable improvements in the property. He would also assert that he has been staying in the property involved in the execution proceedings from 11.8.1969 onwards. 33. In cross examination, he admitted that O.S.34 of 1978 was directed against his father and an order of eviction has been passed. He would also concede that his father resided there as a tenant for more than 20 years. His father died in 2000. He had to concede that there is no registered document in his name relating to the property involved in the execution petition. He admitted that he is not a party to Ext.A1 document. He also admitted that he is not even a witness to that document. His version is that since he was unable to obtain permission from the department, he engaged his cousin Nadarajan to enter into Ext.A1 document. But he is unable to give details regarding Ex.F.A.19/2011. 21 the same. The stamp papers were not purchased in his name and he does not know who the scribe is. He would say that later on he obtained permission from the department to purchase the property. But for reasons best known to him, he has not produced those documents. He would then say that he had demanded in 1971 to the legal heirs of Thirumala Gouder to execute the sale deed. But they postponed the execution of the deed under one pretext or another and did not execute the deed. He would also admit that there is no agreement between him and Nadarajan in relation to the property. Surprisingly enough he does not know the number