IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 WP(C).No. 23614 of 2010(O) -------------------------- OS.70/1997 of SUB COURT,NEYYATTINKARA .................... PETITIONER: --------------- M.RADHAKRISHNAN, AGED 54 YEARS, S/O.MADHAVAN PILLAI, VALIYAMEDAYIL VEEDU, FORT WARD, NEYYATTINKARA. BY ADV. SRI.K.P.SREEKUMAR RESPONDENT: --------------- MADHAVAN NAIR, S/O.PARAMESWARAN PILLAI, MADHAVAN, EEZHAKULAM, ARASUMMOODU WARD, KADAVATTARAM DESOM, NEYYATTINKARA PO, PIN - 695121 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------- W.P.(C) No.23614 OF 2010 -------------------------------------- Dated this the 28th day of July, 2010 J U D G M E N T ~~~~~~~~~~~ Judgment debtor in E.P.No.10/2005 in O.S.No.70/1997 of the court of learned Sub Judge, Neyyattinkara is the petitioner before me challenging Ext.P11, order on E.A.No.16/2010 as per which objection raised by petitioner as to the delivery of a small plot of land where an old tiled building is situated has been rejected by the executing court. It is not disputed that 19 cents of land with specific reference to a terraced building situated thereon and bearing door No. XX1/298 was brought up for sale, sold in execution of the decree and purchased by the respondent/decree holder. 2. Though, there was some challenge to the sale proclamation and its validity at the instance of petitioner, that challenge did not succeed as the execution first appeals were decided against the petitioner. After sale of property in favour of respondent, sale certificate also has been issued to him. W.P.(C) No.23614/2010 2 Later, respondent filed E.A.No.16/2010 for delivery of property covered by the sale certificate. Petitioner raised objection that sale concerned only the land where terraced building is situated and that it did not take in the building with tiled roof which according to the petitioner is situated in a separate compound. 3. In the executing court Advocate Commissioner visited the property and submitted a report and plan (Exts.P8 and P9). Based on that report and plan, executing court found that the property covered by the sale certificate took in not only the terraced building but also the old building with tiled roof and that objection raised by petitioner is not tenable. However, accepting a concession made by the respondent/decree holder that he has no objection in petitioner removing the old building with tiled roof executing court permitted petitioner to do so. According to the petitioner, there was no sufficient time for him to remove the building with tiled roof and in the meantime, delivery was effected. It is also the contention of petitioner that finding of the executing court that the plot of land where the old W.P.(C) No.23614/2010 3 building with tiled roof is situated is part of property covered by the sale and sale certificate is erroneous and delivery ought to have been confined to the plot of land where terraced building is situated. Learned counsel for petitioner has invited my attention to the various documents produced along with the Writ Petition to support his contention that sale and the sale certificate do not relate to the plot of land where the old building with tiled roof is situated. Learned counsel contends that neither in the proclamation schedule nor in the sale certificate, there is any mention of the old building with the tiled roof. According to the learned counsel, in the circumstances executing court was wrong in applying Section 8 of the Transfer of the Property Act to hold that plot of land where the old building is situated formed part of property covered by the sale certificate. Alternatively, it is contended that in case contention of petitioner does not find favour with this Court, petitioner may be permitted to remove the old building with tiled roof. Learned counsel for respondent supported Ext.P11 order. Learned counsel invited my attention to Ext.P9, plan prepared by the Advocate Commissioner in the W.P.(C) No.23614/2010 4 executing court which according to the learned counsel would show that both the buildings came in the property covered by the sale certificate based on the resurvey number and the lie of the property. 4. It is true that neither the sale proclamation nor the sale certificate refers to the old building with tiled roof and instead it refers to 19 cents with the terraced building situated thereon. Report of the Advocate Commissioner shows that the old building bears door No.XXI/299 while terraced building bear door No. XXI/298. It is reported by the Advocate Commissioner in Ext.P8, in paragraph 4 that property covered by the sale certificate is the plot marked 'BCDEFGHITNOYZXLM', having a total extent of 19.891 cents. Commissioner has also reported that as per lie of the land, property sold and covered by the sale certificate is the plot, 'BCDEFGHIJSRPQUVXLM' having a total extent of 18.13 cents. According to the learned counsel for petitioner Commissioner was not able to explain how the deficit (from 19.891 to 18.13 cents) occurred. W.P.(C) No.23614/2010 5 5. There is no dispute that extent of property sold is 19 cents though, according to the Advocate Commissioner as per lie of the property extent is only 18.13 cents. No doubt, entire property belonging to the petitioner appears to be taking a larger extent. But this court is now concerned with property covered by the sale and certificate of sale which as per measurement is 19.891 cents and as per lie of the property is 18.13 cents. It is apposite to refer to Ext.P9, plan prepared by the Advocate Commissioner. In Ext.P9, item No.1 is the property covered by sale certificate. It is seen from Ext.P9 that both the buildings (marked No.1 and 2) are situated in the property sold and covered by the sale certificate. In that situation, petitioner cannot successfully contend that building with tiled roof is outside the land sold to the respondent. That contention therefore has to fail. 6. Next question is whether petitioner has to be permitted to remove the old building with tiled roof. I referred to the concession made by the respondent in the executing court and order passed by the executing court that petitioner is W.P.(C) No.23614/2010 6 free to remove the said structure. Learned counsel for respondent has a contention that though there was sufficient time, petitioner did not remove it and in the meantime the property has already been delivered to the respondent. Learned counsel for petitioner states how execution petition which was originally posted on 28.8.2010 was advanced as per request of respondent to 15.7.2010 and delivery was ordered. 7. On the request made by petitioner for permission to remove old structure, I heard learned counsel for respondent as well. Executing court is legally correct in observing that when the land where that structure is situated is sold (in court auction) in favour of respondent, whatever right, interest and tile petitioner had over the said property stands transferred to the respondent and that takes in whatever that is embedded in that land also. Fact remains that though land sold encompassed portion where the old structure is also situated, that structure was not referred to either in the proclamation schedule or in the sale certificate. I must also bear in mind that though on a concession made by the respondent, executing court permitted W.P.(C) No.23614/2010 7 petitioner to remove the said structure. I do not think that for the mere reason that before delivery was effected that structure was not removed, petitioner should not get benefit of that direction issued by the executing court. 8. Having regard to the facts and circumstances of the case and with intent to put an end to this litigation, I am inclined to allow request of petitioner. Accordingly, petitioner is permitted to remove the old structure with tiled roof bearing door No.XXI/299 situated in the plot of land referred to in the sale certificate and delivered over to the respondent. Respondent shall permit petitioner to remove the said structure. The modalities for removal of the structure are to be worked out in the executing court. I make it clear that it will be open to the petitioner (since probably the execution petition itself has been closed) to make an application under Section 47 of the Code of Civil Procedure in the executing court for the limited purpose of removing the old building bearing door No.XXI/299. It will be open to the petitioner to request the assistance of an Advocate Commissioner or the Amein of the executing court to W.P.(C) No.23614/2010 8 supervise removal of the structure. Executing court shall after hearing both sides, fix dates for removal of the structure. I make it clear that removal of the structure shall be at the expense of petitioner. Resultantly, this Writ Petition is dismissed. But, petitioner is permitted to remove the old building bearing door No.XXI/299 situated in the land covered by the sale certificate and delivered over to the respondent. The modalities for removal shall be worked out in the executing court in the light of the observations made above. (THOMAS P. JOSEPH, JUDGE) ps