IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 22ND MAY 2008 / 1ST JYAISHTA 1930 RSA.No. 420 of 2008 --------------------------------- AS.20/2008 of D.C & SESSIONS COURT,TRIVANDRUM OS.1460/2003 of III ADDL.M.C.,TRIVANDRUM .................... APPELLANT/APPELLANT/PETITIONER/CLAIMANT: JUSTIN F.ROSARIO, T.C.34/1613, SHOSHAMMA COTTAGE, KOCHUTOPPU, PETTAH VILLAGE, TRIVANDRUM. BY ADV. SRI.T.C.MOHANDAS SRI.T.M.SUNIL SMT.S.CHITHRA RESPONDENTS/RESPONDENTS/DEFENDANTS: 1. ELEAMMA PEREIRA. 2. PERIRA NAZARETH XAVIER. ALL RESIDING AT 13, JALAN GRISEK, SIONGAPORE, MOLE COTTAGE, T.C.45/36, VALAKANNI JUNCTION, CHERIYATHURA, TRIVANDRUM. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P. Balachandran, J. --------------------------- R.S.A.No.420 of 2008 --------------------------- JUDGMENT The appellant before me is an obstructor to the execution of the decree in O.S.No.1460/03 on the file of the Munsiff's Court, Thiruvananthapuram, who filed E.A.No.81/07 in E.P.No.85/06 in the said suit O.S.No.1460/03. It appears that no application had been filed by the decree holders complaining of such resistance or obstruction, but, still the Munsiff was disposing of E.A.No.81/07 filed by the appellant adjudicating the claim advanced over the scheduled property by the appellant/obstructor. However, inasmuch as the application has been considered on merits by the execution court as also by the first appellate court, I do not find any reason why sticking to technicalities, the decree holders are to be directed to file appropriate application for removal of obstruction. Counsel for the appellant also wanted this appeal to be heard on merits and the claim of the appellant RSA 420/08 2 being considered on merits. Consequently, therefore, in the event of the dismissal of this appeal, the execution court can direct that the decree holders be put in possession of the scheduled property in execution of the decree. 2. The case of the appellant in E.A.No.81/07 filed by him before the execution court, briefly stated, is that he had been residing in the building bearing Door No.T.C.34/1613 comprised in Sy.No.1818/2 of Pettah Village; that he has been thus in absolute possession and enjoyment of 20.5 cents of land and building therein since 1990; that his title and possession over the property is perfected by adverse possession by reason of his continuous, open and uninterrupted possession for more than the statutory period; that on 3.1.2007 he came to know that delivery order was passed by the execution court against the defendants in the suit, who are not residing in the building in the scheduled property; that the suit has been filed by the plaintiffs in the suit in connivance with the RSA 420/08 3 third defendant, who is the elder brother of the appellant himself; that the decree is not binding on the petitioner/appellant, who is not a party to the said suit; that the respondents/plaintiffs have no right to get the property delivered over to them from the possession of the petitioner/appellant and that a decree be passed declaring that the petitioner/appellant is the absolute owner in possession of the scheduled property, as he has perfected his title thereto by adverse possession and limitation. 3. The respondents/decree holders resisted the application contending that the appellant is the younger son of the fourth defendant and younger brother of the first defendant and he has no connection at all with the scheduled property, as he is married and is residing with his two children at Cheriyathura and his wife is employed in Gulf and has no manner of right or possession over the scheduled property and he has come forward to help the judgment debtors by protracting the litigation. RSA 420/08 4 The judgment debtors and the appellant have fabricated sham documents anticipating eviction of the judgment debtors from the scheduled properties. He is only an agent of the judgment debtors and has no independent right over the scheduled property. The appellant and his children were residing in a hut near seashore. The said hut was not having any door number and they have been using the address of the scheduled property for correspondence. The appellant is bound by the decree and E.A.No.81/07 filed by him has only to be dismissed. 4. The execution court, on the basis of the evidence adduced in the enquiry, which consisted of oral evidence of PWs 1 and 2 and DW1 and documentary evidence Exhibits A1 to A6, B1 to B11 (a) and X1 and X1(a), held that the appellant does not have any independent right, title or interest over the decree schedule property or the building therein and dismissed the application with costs. The appellant filed A.S.No.20/08 before the District Court, Thiruvananthapuram and that was RSA 420/08 5 dismissed vide judgment dated 25.3.2008, confirming the order passed by the execution court against the appellant. Hence this Regular Second Appeal. 5. Heard arguments of the counsel for the appellant. 6. It is not in dispute that judgment debtors 3 and 4 are respectively the father and mother of the appellant; that the first judgment debtor is his elder brother and that the second judgment debtor is the wife of the first judgment debtor. According to the appellant, he has been in possession of the building in the decree schedule property since 1990 and was residing in the property and building therein comprised in Sy.No. 1818/2 ever since his birth along with his brother and parents. According to him, he was residing along with his father till 1990 and thereafter he was residing alone till 1997 and after his marriage in 1997 he has been residing with his wife. His case is that his father and brother were colluding with the decree holders so as to defeat his RSA 420/08 6 legitimate rights. The appellant has produced Exhibit A1 duplicate Secondary School Leaving Certificate, Exhibit A1 passport issued in his favour, Exhibit A3 Electoral Identity Card, Exhibit A4 copy of the voters list, Exhibit A5 certificate of income issued by the Village Officer, Pettah and Exhibit A6 residential certificate issued from the Thiruvananthapuram Corporation. All the same, Exhibit B1 showed that the appellant and his wife are also having another residence bearing Door No.45/43/1 in the West Assembly Constituency of Thiruvananthapuram District. According to the appellant, who has tendered evidence as PW1, the scheduled property was the asset belonging to his grandmother and he does not know the right of the grandmother over the property in dispute nor does he know the rights of the decree holders over the decree schedule property. According to him, his father permitted him to reside in the decree schedule property when he demanded money, which is due from his father. There is absolutely no RSA 420/08 7 evidence to establish those aspects. 7. It is pertinent to note that the appellant does not know who is the actual owner of the property in dispute as also the building therein. A mere possession of the land by the appellant would not suffice to claim title over the property in dispute by adverse possession. He has to show that the right he claims is independent of the rights of the judgment debtors and further that he was holding the property adverse to the real owner openly and uninterruptedly for the required length of time, without any obstruction. 8. In the instant case, the decree passed in the suit is directing defendants 1 to 6 to surrender the decree schedule property and the building therein to the respondents/decree holders. Exhibits B6 to B9 are respectively the plaint, written statement, judgment and decree in O.S.No. 1460/03. It is seen that Exhibit B9 decree was confirmed vide Exhibit B10 common judgment passed by the District Court in A.S.Nos.172/04 and 75/06 RSA 420/08 8 on 18.12.2006 and the appeal preferred therefrom was dismissed by this court vide Exhibit B11 judgment in R.S.A.No.52/07. 9. It is pursuant thereto that execution petition was filed by the decree holders and it was then that the appellant came forward with obstruction to resist execution of the decree. It is true that the appellant was not made a party in O.S.No.1460/03 filed by the respondents, but his elder brother and his wife and the parents of the appellant were the defendants in the said suit and they have vehemently contested the suit up to this Court. It is further seen that the elder brother of the appellant filed O.S.No.1744/00 against the respondents for declaration of title and for consequential injunction. The said suit was also contested up to this Court in vain. 10. It is worthwhile to note in this context that the appellant, who has alleged collusion between the decree holders and the judgment debtors in O.S.No.1460/03, has avoided impleadment of the RSA 420/08 9 judgment debtors in O.S.No.1460/03 in the EA filed by them. The claim of adverse possession advanced by the appellant was the very same contention raised by the elder brother and parents of the appellant in O.S.No.1460/03, which was found against concurrently up to this Court. In O.S.No. 1744/00 (Exhibit B4) filed by the elder brother of the appellant also, the claim advanced was the very same claim that he raised in O.S.No.1460/03. There is absolutely no evidence or circumstance available in the case to conclude that there is any collusion between the judgment debtors and the decree holders. On the other hand, what is seen is that decree was obtained by the respondents/decree holders after long drawn out fight with the brother and parents of the appellant. 11. It is also apposite to point out in this context that the elder brother and parents of the appellant had no contention at all in the suit that the appellant also is a person having any right or interest over the decree schedule property and the RSA 420/08 10 building therein or even that he is in occupation of the said house or that he also is a necessary party to the suit. In the suit for recovery of possession filed by the respondents based on title, there is, however, substantial representation and the non impleadment of the appellant is not at all fatal to the suit. The appellant himself, even according to his case, was born and brought up in the building in the scheduled property, which pre- supposes that his parents were in occupation under their independent right and that he came into occupation for the sole reason that he is the son of his parents. The nature of his possession cannot turn to be adverse to the real owner and as long as his parents are alive, possession of the appellant cannot disturb the rights of his parents or alter the nature of possession detriment to the real owners. The appellant has also no case that his possession started with a wrongful dispossession of the rightful owner and his exclusive possession was publically and openly RSA 420/08 11 hostile to the rights of the real owner. The documents produced on the side of the appellant to advance claim over the scheduled property and the building therein are all documents obtained after dispute arose between the respondents/decree holders on one side and the parents and the elder brother of the appellant on the other. It is seen observed by the appellate court that the appellant as PW1 has admitted that he is a voter in the constituency where his wife's house is situated and that it was when he was confronted with Exhibit B1 voters list of Thiruvananthapuram West Assembly Constituency. This also suggests that the appellant was not having residence in the scheduled building and as contended by the respondents, he was having his residence somewhere else and he has been set up by the judgment debtors to resist eviction in execution of the decree in O.S.No.1460/03 passed concurrently against them by the trial court, first appellate court and by this Court. There is absolutely no iota of evidence to substantiate the RSA 420/08 12 claim advanced by the appellant. The dismissal of the claim of independent possession and perfection of title by adverse possession advanced by the appellant was repelled by the execution court as also by the first appellate court concurrently and there is no question of law and much less, any substantial question of law to be considered in this case by this Court in this Regular Second Appeal. This Regular Second Appeal is, hence, devoid of any merit and is dismissed in limine refusing admission. 22nd May, 2008 (K.P.Balachandran, Judge) tkv