IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 CRP.No. 399 of 2009(e) --------------------- AGAINST THE ORDER DATED 05/06/2009 IN EP/146/2006 IN OS.227/1996 of PRL.M.C.KOZHIKODE-I .................... REVN. PETITIONER(S): CLAIM PETITIONER/3RD PARTY ----------------------------------------------- K.BHASKARAN, 72 YEARS, S/O.AYYAPPUTTI, WORKING IN WORK SHOP, KARUTHEDATHU VEEDU, MALAPARAMBA P.O., VENGERI VILLAGE, NEDUNGATTOOR DESOM, KOZHIKODE TALUK. BY ADV. SRI.PHILIP ANTONY CHACKO SRI.P.M.SEBASTIAN RESPONDENT(S): RESPONDENTS/PLAINTIFF AND DEFENDANTS ------- -------------------------------------------- 1. KOLASSERRY YAMUNA, 60 YEARS, D/O.DAMODHARAN, OWN AFFAIRS, "YAMUNA", KALATHINKUNNU AMSOM AND DESOM, KOZHIKODE TALUK. 2. P.C.PANKAJAM SREENIVASAN, 77 YEARS, ELAYANIPURAM AMSOM AND DESOM, KANNUR TALUK, KANNUR DISTRICT. 3. KARUTHEDATHU SATHI DEVI, 56 YEARS, W/O.BHASKARAN, KARUTHEDATHU, VENGERI VILLAGE, NEDUNGATTOOR DESOM, KOZHIKODE TALUK. ADV. SRI.V.V.SURENDRAN FOR R1 SRI.P.A.HARISH FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: : 2 : ORDER ON I.A.NO.1910/2009 IN C.R.P.NO.399 OF 2009 (e) DISMISSED 18/9/2009 S.S.SATHEESACHANDRAN, JUDGE /True Copy/ sks/ P.A.TO JUDGE S.S.SATHEESACHANDRAN, J. ----------------------------------- C.R.P.No.399 of 2009 --------------------------------- Dated this the 18th day of September, 2009 O R D E R Revision is directed against the order dated 5.6.2009 in E.A.No.178 of 2007 in E.P.No.146 of 2006 in O.S.No.227 of 1996 passed by the learned Principal Munsiff I, Kozhikode. The above suit was one for partition which was filed by the first respondent. Second and third respondents are the defendants in the suit. The decree passed in the suit allotting one half right over the schedule property in favour of the first respondent/plaintiff, execution proceedings were taken for division of the property by meats and bounds and separate possession. Petitioner, a stranger to the proceedings filed an application under Order XXI Rule 36 CPC contending that he is having tenancy right over the plaint schedule property and so much so, only symbolic possession can be given to the decree holder. The decree holder filed objections to the application. The learned Munsiff, after considering the materials produced and hearing the counsel on both sides dismissed the application of the petitioner vide the C.R.P.No.399 of 2009 2 impugned order. Propriety and correctness of that order is challenged in this revision. 2. I heard the counsel on both sides. Admittedly, the property covered by the suit originally belonged to one Sreenivasan. On his death leaving behind his widow, but, without issues, the property equally devolved upon his wife and his mother. His widow, the second respondent, claiming exclusive title and possession over the entire property assigned her rights in favour of the third respondent, wife of the revision petitioner. First respondent, who got assignment of the one half right of the property from the mother of the aforesaid Sreenivasan filed the suit for partition seeking allotment of her share and separate possession. The decree passed in the suit in favour of the first respondent was challenged in first and second appeals by the second respondent, but, unsuccessfully. When the decree was put in execution to have separate possession of the share allotted to the first respondent, the revision petitioner moved the application under Order XXI Rule 36 CPC contending that he is a tenant in occupation of the property and so much so, C.R.P.No.399 of 2009 3 only an order of symbolic possession can be made in the proceedings. In enquiry over that application, the revision petitioner was examined as PW1 and Exts.A1 to A17 were exhibited on his side and the first respondent got herself examined as RW1 and exhibited Exts.B1 to B3. 3. The learned counsel for the petitioner assailed the order passed by the execution court contenting that the execution court has assessed his claim of tenancy in the wrong perspective as if he had claimed only the status of a building tenant. His claim was as a tenant of land, as a lessee who has come into possession of that land under the original owner, Sreenivasan. The claim so raised was not examined by the execution court but holding wrongly that he is a building tenant and therefore governed by the Kerala Building (Lease and Rent Control) Act, 1965, his claim was rejected. On the other hand, the learned counsel for the first respondent submitted that the petitioner/claimant is none other than the husband of the second respondent, who as a party to the suit had resisted the decree by filing first and second appeals. The case advanced by the C.R.P.No.399 of 2009 4 claimant is totally bereft of any value and he was only a tenant under the mother of Sreenivasan in respect of a different property unconnected with the property allotted to Srrenivasan is the submission of the learned counsel. Though the court below considered the claim of the petitioner as if he has claimed the status of a building tenant, on the materials produced, it is submitted by the counsel, he has no legal right over the property as a tenant or otherwise, and as such the dismissal of his petition contending that only symbolic possession can be given to the decree holder calls for no interference at all. 4. What was the case set up by the petitioner to resist the execution and delivery of the property in terms of the decree to the first respondent deserve to be examined with reference to the petition filed by him whereunder he contended that only symbolic possession can be given in execution as he has got tenancy right over the property. Annexure A is the copy of his petition. He has alleged in his petition that in plot ABCRS allotted in favour of the first respondent under the decree he has tenancy right as having got such rights from the previous owner, C.R.P.No.399 of 2009 5 Sreenivasan on 7.6.1969. The monthly charge for such tenancy, according to him, was Rs.50/- and in that property, he claimed of conducting a workshop in the name, Sreehari Motors. Subsequently, the rent was enhanced to Rs.60/- is his further case. At the time of hearing, the learned counsel for the petitioner submitted before me that there is no structure as such in the above plot but the flooring is cemented. The vehicles repaired in his workshop are parked and attended to in the above plot also as an appurtenant premises forming part of his workshop. Irrespective of the question whether there is any structure or not and also the use of the land allotted to the first respondent for any purpose in connection with the activity of the workshop the petitioner can sustain his application only if he is capable of showing that he has tenancy right over the land. Other than producing four rent receipts, A series, for the period from 12.6.1971 to 20.6.1973 alleged to have been issued by the previous owner, Sreenivasan, the petitioner could not produce any deed by which the above Sreenivasan had entered any agreement with him for the use of his land collecting any C.R.P.No.399 of 2009 6 premium. Receipts purported to have been issued by Sreenivasan have not been proved in the case also. The circumstances that his wife got assignment of the whole property from the wife of Sreenivasan who claimed exclusive title and possession over the property by way of inheritance excluding the mother of Sreenivasan and she had resisted the claim for partition by the first respondent, assignee who claimed one half right over the property from the mother of Sreenivasan, challenging the decree passed in the suit by first appeal and second appeal are so eloquent with the nonproduction of any written agreement executed by the Sreenivasan in favour of the petitioner to show that there is no merit in his claim for tenancy right over the land allotted under the decree in favour of the first respondent. The learned counsel for the petitioner submitted that there was a written lease executed by all the members even after the death of Sreenivasan recognising his tenancy right, but, that had been lost. That submission cannot be accepted on its face value when no documentary evidence to establish the lease in writing executed by Sreenivasan had been produced to prove the C.R.P.No.399 of 2009 7 tenancy. His petition is also silent whether possession was given under a written or oral lease. In the given facts of the case, I find no impropriety or illegality in the order passed by the court below that claim of the petitioner of having tenancy right over the land allotted in favour of the first respondent is unsustainable. That order though for different reasons as adverted to above has to be confirmed where it is shown that the case advanced by the petitioner claiming tenancy right over the land allotted in favour of the first respondent is totally unworthy of any merit. It is interesting to note that in his petition Annexure A, he had set up a case that in the plot allotted to the first respondent under the decree ABCRS and also the plot marked under the decree as CDEOPQR, he has been conducting a workshop by name 'Sreehari Motors'. He has no case that the plot ABCRS was used as a working area without any structures for the workshop eversince the possession of it was got from Sreenivasan by way of tenancy right. It is further interesting to note that he has not produced any scrap of paper to show that in any portion of the property belonging to Sreenivasan, the prior C.R.P.No.399 of 2009 8 owner, any structure of his workshop is situate. Even assuming that some portion of the land allotted to the first respondent is being used for the purpose of his workshop situate nearby for parking of the vehicles coming to the workshop that also would not lead to the inference that he has any right over that land as a tenant. His wife had claimed exclusive title over the property resisting the suit claim of the first respondent by virtue of the assignment derived from the widow of Sreenivasan is a circumstance to be taken note of in judging the merit of his claim set up as a tenant over the plot allotted to the first respondent under the decree. Other than exhibiting some receipts and vouchers and the self serving evidence of the petitioner, he has not even shown that his activities in the workshop extended to the plot allotted under the decree in favour of the first respondent. The rent receipts produced by him which are disputed by the first respondent are not proved in the case and the tenancy claim raised by the petitioner remained unsubstantiated with any convincing material. The dismissal of the petition by the court below in such circumstances in only to C.R.P.No.399 of 2009 9 be upheld , in the above circumstance, though for different reasons, as indicated above. Revision lacks merit, and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-