IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 Ex.SA.No. 17 of 2009() ---------------------- AS.59/2009 of SUB COURT,NEYYATTINKARA EA NO.588/2006 IN EP NO.33/2006 IN OS.389/2002 of I ADDL. MUNSIFF COURT,NEYYATTINKARA ............. APPELLANTS/APPELLANTS/LRS. OF OBSTRUCTION PETITIONER: ------------------------------ 1. HAMEEDA BEEVI, W/O.LATE NOOHUKANNU MADEENA, ANCHUVARNA THERUVU, BALARAMAPURAM P.O. NEYYATTINKARA, TRIVANDRUM. 2. RASEENA BEEGAM D/O. HAMEEDA BEEVI, DO..DO.. 3. ANSAR BEEGAM D/O. HAMEEDA BEEVI, DO..DO.. BY ADV. SRI.L.MOHANAN SMT.LIGEY ANTONY RESPONDENT(S)/RESPONDENTS/DECREE HOLDER AND JUDGMENT DEBTORS: --------------- 1. SAUDA BEEVI W/O.ABDULSALAM, RUKIYA MANZIL BALARAMPURAM POST 695 501 NEYYATTINKARA, TRIVANDRUM DISTRICT.. 2. THAJUDEEN S/O.NOOHUKANNU ANCHUVARNA THERUVU, BALARAMAPURAM PO 695 501 NEYYATTINKARA, TRIVANDRUM DISTRICT( IST JUDGEMENT DEBTOR) 3. NAUSAD S/O.NOOHUKANNU, DO..DO.. (2ND JUDGMENT DEBTOR) THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Ex.S.A.No.17 of 2009 -------------------------------------- Dated this the 17th day of December, 2009. JUDGMENT The Execution Second Appeal arises from judgment and decree of learned Sub Judge, Neyyattinkara in A.S.No.59 of 2009 refusing to interfere with the order passed by the learned Additional Munsiff-I on E.A.No.588 of 2006 in the course of execution of the decree in OS.No.389 of 2002 of that court. The predecessor-in-interest of the appellants with the object of resisting the decree obtained by respondent No.1 in the said suit filed E.A.No.588 of 2006 under Order 21 Rule 97 of the Code of Civil Procedure (for short, “the Code”). He claimed that the decree schedule property was originally Government puramboke which was vested with the local authority, he took possession of the said property 50 years back, constructed shop room, engaged in business therein and is in absolute possession and enjoyment of the said property. He is not a party in O.S.No.389 of 2002 and hence the decree does not bind him. He also claimed that Ext.A2, settlement deed relied on by the respondent in the trial side claiming right over the property is not valid. Respondent No.1, decree holder resisted the application contending that claim petitioner is none other than the father of respondent Nos.2 and 3 who had even figured as DW4 on their side speaking for them in the course of trial of the case, all these contentions were stated by the claim petitioner as DW4 and rejecting the contentions raised by respondent Nos.2 and 3 supported by the claim petitioner Ex.S.A.No.17/2009 2 as DW4, trial court found title of the decree schedule property with respondent No.1 and ordered eviction. Respondent No.1 denied that claim petitioner has been in possession and enjoyment of the property or that it was puramboke land. Executing court recorded evidence, found that claim petitioner has not proved possession or title over the disputed property and dismissed the claim petition. That was confirmed by the first appellate court. Hence this Second Appeal urging by way of substantial questions of law whether courts below should have enquired into the question whether the decree holder has title over the schedule property and whether, when the advocate commissioner has identified that a portion of the building falls outside the extent of land to which respondent No.1 is entitled it was legal and proper to order eviction. Raising the above contentions, learned counsel for the appellants relied on the decision of this Court in Babu Raj v. Vasanthi Devi (2008 (4) KLT 761). According to the learned counsel in so far as claim petitioner was not claiming under the judgment debtors executing court should have gone beyond the decree to find whether respondent No.1 has title over the property as against the claim of claim petitioner. Learned counsel contends that burden of proof is wrongly cast on the claim petitioner which is illegal. 2. It is true that in the decision relied on by the learned counsel it has been stated that the enquiry should be as to whether 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 Ex.S.A.No.17/2009 3 from the property. That decision has to apply to the facts referred to therein where the objector was found to be in possession of the property independent of the claim of judgment debtor. In this case though claim of claim petitioner is not under the judgment debtors (respondent Nos.2 and 3) courts below found that apart from what claim petitioner asserted as PW1, no reliable evidence is produced to show that claim petitioner is in possession of the decree schedule property, not to say about his alleged possession for about 50 years. Though it is the case of the claim petitioner that he obtained permit and other authority from the local authority for the purpose of construction of the building no such document has been produced. A further fact which is not disputed is that claim petitioner had figured as DW4 speaking in favour of his sons (respondent Nos.2 and 3). That means claim petitioner was aware of pendency of the suit and nature of claim being made by respondent No.1. True that does not prevent him from filing an application under Order 21 Rule 97 of the Code at the appropriate stage. But the fact that he had spoken in favour of judgment debtors, that was found against by the trial court and in the executing court he raised the very same claim but failed to produce any reliable evidence is certainly relevant for consideration. On the facts of the case, respondent No.1 cannot be asked to prove his title as against the claim petitioner. Courts below rightly found that claim petitioner did not prove title or possession of the decree schedule property. Ex.S.A.No.17/2009 4 3. Next contention is based on the report of the advocate commissioner that on measurement at the spot actual extent of the decree schedule property is found to be two (2) cents and a portion of the building according to learned counsel was found to be extending beyond the said two (2) cents. Assuming so, that does not in any way result in advantage to the appellants for, courts below found and I said that there is no reason to interfere that claim petitioner did not prove his title or possession of the decree schedule property and there is no evidence to show his possession of any property adjacent thereto. Executing court observed though there appears to be discrepancy in the extent, boundaries described in the decree schedule tallied with the boundaries of the disputed property and relying on the decision in Parameswaran Pillai v. Gowrikutty Amma (1984 KLT SN 65 - Case No.111) held that on the facts of the case description by boundaries has to be accepted as against the description by extent. I have gone through the judgment under challenge and heard counsel for appellants. I do not find any substantial question of law involved in this appeal requiring its admission. Resultantly the Execution Second Appeal is dismissed in limine. THOMAS P.JOSEPH, Judge. cks