IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929 RP.No. 181 of 2001(D) ------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRP.2603/2000 Dated 15/02/2001 .................... REVIEW PETITTIONER/RESPONDENT -------------------------------- 1. GOVINDAN NAIR, S/O. PAZHUR GOVINDAN NAIR, MANAKKODY VILLAGE, TRISSUR TALUK. * ADDL. PETITIONER 2. P.KRISHNANKUTTY, S/O. GOVINDAN NAIR, PATTATHIL HOUSE, POOTHOLE, TRICHUR. THE ADDL. PETITIONER NO.2 IS IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED REVIEW PETITIONER VIDE ORDER DT. 12.4.02 ON CMP. 1942/02. BY ADV. SRI.SAJAN VARGHEESE K. RESPONDENTS/ REVISION PETITIONERS ---------------------- 1. KOCHU DEVASSY, S/O. CHITTILAPPILLY ANTHONY, MANAKKODY VILLAGE, MANAKKODY DESOM, TRISSUR TALUK. 2. THOMAS KUTTY, S/O. DO. DO. 3. OUSEPH, S/O. DO. DO. 4. POULOSE, S/O. DO. DO. 5. VERONICA, W/O. LATE RAPPAI, DO. DO. 6. MINI, D/O. LATE RAPPAI, DO. DO. 7. BIJU, S/O. LATE RAPPAI, DO. DO. 9. SHAJI, S/O. LATE RAPPAI, DO. DO. BY ADV. SRI. VENUGOPAL M.R. - R1 TO R4 THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 14/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RP. NO.181/2001 ORDER ON CMP. NOS. 2291/2001 , 1941/2002 IN RP. NO.181/2001 DISMISSED 14.02.2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE tss M.N.KRISHNAN, J. -------------------------- R.P. NO. 181 OF 2001 IN C.R.P. NO. 2603 OF 2000 --------------------- Dated this the 14thday of February, 2008 REVISED ORDER IN THE CRP This review petition is preferred against the order of this court in civil revision petition whereby this court dismissed the execution petition for delivery of the property. Review petition is allowed and revised order is passed as follows: 2. Few facts are necessary to understand the materials. There was a suit in OS 1043/74 for recovery of possession of the property on the strength of a title. It was dismissed by the trial court. An appeal was filed against it as AS 87/1981. The appeal was allowed and the plaintiff is given a decree for recovery of possession of the suit property on the strength of title. Aggrieved by that decision, the 2nd appeal was preferred before this court as SA 944/89 whereby this court held that he is only a tenant of the building. 3. It is concluded by valid judgment and decree of the court that the defendant in the suit is only a building tenant. The suit is for recovery of possession of a large extent of property. When a RP No.181/01 2 person is a building tenant and if that area is covered by Act 2 of 1965 then necessarily he can be evicted only under the provisions of Act 2 of 1965. A building tenant is not a person entitled to enjoy one acre of land which belonged to the landlord. Therefore in a case of this nature, the appropriate relief that can be moulded is to preserve the building as well as the minimum required land appurtenant to the building which is necessary for the convenient enjoyment of the dweller with a passage for his ingress and aggress. After demarcating the said property in the light of the decree passed by the appellate court and confirmed by this court, the remaining property has to be given delivery to the decree holder, which he is entitled to get in law. 4. Therefore the order passed by this court in the civil revision petition requires modification. A revised order is passed whereby the executing court is directed to carve out the portion, where the building is situated, with the appurtenant land necessary for the enjoyment of the said building and also a passage and reserve the same for the enjoyment of the judgment debtor and then deliver the remaining property to the decree holder in accordance with the law. For the said purpose the decree holder is permitted to RP No.181/01 3 submit a sketch and the court can conduct an enquiry after hearing both sides. I also make it clear that this will not affect the right of the landlord to proceed against the building tenant for eviction under Act 2 of 1965. The revision petition is disposed of accordingly. Parties are directed to appear before the court below on 4.3.08. M.N.KRISHNAN, JUDGE vps RP No.181/01 4