IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929 Ex.SA.No. 1 of 2008() --------------------- AS.60/2007 of SUB COURT,NEYYATTINKARA E.A.32/2006 IN E.P.131/2005 INOS.292/1980 of I ADDL.M.C.,NEYYATTINKARA .................... : APPELLANT/CLAIM PETITIONER ------------------------------------------- SADASIVAN NAIR, RESIDING AT KAMUKARAVILA VEEDU, NEAR GOVT. GIRLS HIGH SCHOOL, MALAKKAVILA PUTHEN VEEDU, MURIYATHOTTAM, PARASSALA VILLAGE, NEYYATTINKARA. BY ADV. SRI.L.MOHANAN SMT.LIGEY ANTONY RESPONDENTS: RESPONDENT/COUNTER PETITIONER/ADDL.3 DECREE HOLDER --------------------------------------------------------------- VIJAYAKUMARAN NAIR, S/O SANKARA PILLAI, RESIDING AT AAITHUVILA VIJAYAVILASOM, PALUKAL DESOM, DO VILLAGE, VILAVAMKODU TALUK, FROM ARUN VIHAR, MURIYATHOTTAM, PARASSALA VILLAGE, NEYYATTINKARA. BY THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.13/2008 IN EXSA NO.1/2008 3.1.08 DISMISSED SD/- M.Sasidharan Nambiar P.S. To Judge M.SASIDHARAN NAMBIAR,J. =========================== Ex.S.A.NO.1 OF 2008 =========================== Dated this the 3rd day of January, 2008 JUDGMENT Claim petitioner in E.A.32/2006 in E.P.131/2005 in O.S.292/1980 on the file of Munsiff Court, Neyyattinkara is the appellant. Respondent is the decree holder. E.P was filed for a declaration of title and recovery of possession. When delivery was ordered in the E.P. appellant filed E.A.32/2006 contending that 6 ¼ cents property including the shop room bearing No.PPXII/295 belong to him and he is conducting a Hotel in the building under the name and style “Hotel and Tea Shop” and he has been in possession of the property from the time of it previous owner Samdevid and his possession was not challenged for the last twenty five years and respondent is not entitled to evict him by executing the decree in O.S.292/1980. It was contended that he is not a party to the suit and first plaintiff filed O.S.247/1994 to get his share Ex.S.A.No.1/2008 2 in 25 cents of the property in Sy.No.155/5 and final decree was passed and he was not a party in O.S.247/1994 and that decree is not binding on petitioner and he came to know about the decree only on 3.1.2006 and appellant is not liable to be evicted in execution of decree in O.S.292/1980 or O.S.247/1994. Respondent the assignee decree holder resisted the petition contending that first defendant Krishna Pillai was conducting a tea shop in the petition shop building and he contested the suit as well as the appeal and also the proceedings before the Land Tribunal and appellant has no right over the building and after the death of first defendant his wife and children were impleaded as legal heirs and appellant is the brother of first defendant and he was conducting the tea shop under the first judgment debtor and therefore he is not entitled to file a petition and the decree is binding on him and respondent purchased the rights of Sukumaran, second decree holder and therefore he is entitled to get the decree executed and the petition is only to be dismissed. 2. Learned Munsiff on the evidence of Pws.1 to Ex.S.A.No.1/2008 3 4, Dws. 1 and 2 and Exts.A1 to A12 and B1 to B9 and Exts.X1 and X1(a) dismissed the application holding that appellant has no right over the decree schedule building and respondent is entitled to take delivery of the property in execution of the decree. Appellant challenged the judgment before Sub Court,Neyyattinkara in A.S.60/2007. Learned Sub Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. Challenging the judgment this appeal is filed. 3. Though in the appeal appellant has challenged the judgment on several grounds, no substantial question of law was raised. 4. On hearing the learned counsel appearing for appellant as well as the learned counsel who appeared for the respondent by filing a caveat, I do not find any substantial question of law involved in the appeal. Appellant is the direct brother of first judgment debtor. He has no independent right in the decree schedule building. Therefore the appeal can only be dismissed. 4. Learned counsel appearing for appellant Ex.S.A.No.1/2008 4 then submitted that appellant is conducting a tea shop therein for the last several years and therefore he may be granted sufficient time to find out an alternate building and to surrender the same. As it was found that appellant has no right to continue in possession of the building and respondent is entitled to take delivery of the property in execution of the decree, appellant cannot be granted time as sought for. But in the interest of justice, appellant is granted time, to surrender possession of the building, for thirty days from today on condition that appellant shall file an affidavit before the executing court within ten days from today unconditionally undertaking to surrender vacant possession of the building on the expiry of thirty days from today. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006