IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 WP(C).No. 23976 of 2009(O) --------------------------------------- [E.P. NO. 404/2007 IN OS.NO. 50/1983 OF MUNSIFF COURT, TIRUR .................... PETITIONER: ------------------- KOZHIPURATH MUHAMMED, AGED 78 YEARS, S/O.KUNHIMOIDEEN KUTTY, KARATHOOR DESOM, THIRUNAVAYA AMSOM, TIRUR TALUK. BY ADV. SRI.RAJIT. RESPONDENT/JUDGMENT DEBTOR/DEFENDANT: ------------------------------------------------------------------------ VATTAPARAMBIL MOIDEENKUTTY, S/O.KUNHALI, KARATHOOR DESOM, THIRUNAVAYA AMSOM, TIRUR TALUK. BY SRI.K.RAMAKUMAR, SENIOR ADVOCATE, ADVS. SRI.T.RAMPRASAD UNNI, SRI.J.R.PREM NAVAZ. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.23976/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGMENT DTD. 05/04/06 IN S.A. 926/92 OF THIS HON'BLE COURT. EXT.P.2: COPY OF THE ORDER DTD. 05/07/2008 IN O.P. NO. 404/2007 PASSED BY THE EXECUTING COURT. EXT.P.3: COPY OF THE JUDGMENT DTD. 21/07/2008 IN C.R.P. NO. 555/2008 OF THIS HON'BLE COURT. EXT.P.4: COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER WITH PLAN. EXT.P.5: COPY OF THE JUDGMENT OF THIS HON'BLE COURT DTD. 05/12/2008 IN W.P.(C). NO.35947/2008. EXT.P.6: COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER WITH PLAN WITH THE ASSISTANCE OF THE SURVEYOR. EXT.P.7: COPY OF THE ORDER DTD. 30/05/2009 IN E.P. 404/2007 IN O.S. NO. 50/1983 OF THE MUNSIFF COURT, TIRUR. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO.23976 OF 2009 ------------------------------- DATED THIS THE 8TH DAY OF OCTOBER, 2010 JUDGMENT Petitioner herein is the plaintiff and the respondent is the lst defendant in O.S.No.50/1983 on the file of the Munsiff's Court, Tirur. The present matter arises in execution. 2. The brief facts leading to the filing of the execution petition are as follows: The plaint schedule property in O.S.No.50/83 is 50 cents of land in R.S.No.100/1A. The suit was filed for permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule property or from disturbing the peaceful possession and enjoyment of the plaintiff. The trial court dismissed the suit and was confirmed in appeal. The 2nd defendant is the son of the lst defendant. In the appeal preferred as S.A.No.929/92 by the plaintiff, this Court held that the dismissal of the suit and the confirmation of the decree by the Lower Appellate Court are bad -2- W.P.(C).No.23976/2009 and therefore the said decree and judgment are set aside, the second appeal was allowed and the plaintiff is given a decree for permanent prohibitory injunction restraining the defendants and their men from interfering with the peaceful possession and enjoyment of the property except 10 cents wherein the house of the defendants is situate. Ext.P1 is the judgment in S.A.No.929/92. In paragraph 7 of the judgment the learned Judge noted that the learned counsel for the appellant submits that since the defendant has been granted permission to construct a house in the land appurtenant to the house which is in the possession of the defendant, there need not be an injunction. It is further stated that in other words, the plaintiff is entitled to permanent prohibitory injunction with respect to 40 cents of property other than 10 cents covering the house of the defendants and the land appurtenant thereto. The reason for restricting the injunction with respect to 40 cents is for the reasons stated above. The plaintiff in the suit -3- W.P.(C).No.23976/2009 conceded that the defendants are residing in a portion of the property with permission and that he has no objection in defendants continuing the residence and enjoying 10 cents of land appurtenant to his residence. The plaintiff claimed title to the property by virtue of the lease deed No.809/47 executed by the landlord in favour of the father of the plaintiff. 3. According to the plaintiff, he permitted the defendant to put up residence in a portion of the plaint schedule property and accordingly the defendant has constructed a residence and is occupying the same. The suit was filed on the allegation that the respondent taking advantage of the petitioner's absence tried to encroach upon the plaint schedule property and therefore he filed O.S.No.50/83 before the Munsiff's Court, Tirur against the respondent and his brother Saidalavi, who are defendants 1 and 2 for permanent prohibitory injunction. In the second appeal filed before this Court the petitioner submitted that he had no objection -4- W.P.(C).No.23976/2009 to the defendant residing in his house and enjoying 10 cents of land, which is appurtenant to the residential house. 4. The petitioner filed E.P.No.404/07 seeking to execute the decree stating that despite having obtained Ext.P1 decree he is not being permitted by the respondent and his people to enter the plaint schedule property. The learned Munsiff deputed a Commissioner to identify 10 cents of property granted in favour of the respondent. The description of the property scheduled in the plaint is 50 cents. The residential house of the respondent and the land appurtenant thereto having an extent of 10 cents is not separately shown in the paint. It was only in the appellate stage the petitioner conceded to permit the respondent to be in possession of the 10 cents of property. Therefore, there was no demarcation of the property excluding 10 cents. In the said circumstances the plaintiff applied to the execution court to depute a Commissioner to identify the 10 cents of land. Ext.P2 is the copy of the order dated -5- W.P.(C).No.23976/2009 5/7/2008 allowing the application for deputation of an Advocate Commissioner. Ext.P2 order was challenged by the respondent in CRP.No.555/2008. Ext.P3 is the copy of the order dated 21/7/2008 passed by this Court dismissing the said CRP. The Advocate Commissioner measured and demarcated the 10 cents of property wherein the house of the respondent is situated. Ext.P4 is the copy of the Commissioner's report. The Advocate Commissioner demarcated 10 cents of property without the assistance of the Surveyor. The respondent seriously objected Ext.P4 report. According to him, the identification of the property by the Commissioner was not in tune with the survey records and was not as per Ext.P2 decree. The court below remitted the report to the same Advocate Commissioner for measuring and demarcating the property with the help of survey records. The order of remittance was issued finding that there were some patent mistakes in the Commissioner's report and that the demarcation of -6- W.P.(C).No.23976/2009 the property was not as per the survey records. The Commissioner with the help of a Surveyor again measured and demarcated the 10 cents of property surrounding the house where the respondent is residing. The Commissioner's report with sketch are marked as Exts.P6. The respondent again raised objection to the Commissioner's report. It is contended that the entire suit property is the decree schedule property and that there cannot be an execution by excluding 10 cents and by setting apart 40 cents to the petitioner. Ext.P7 is the copy of the order passed by the court below on 30/5/2009. 5. It is submitted by the counsel for the petitioner that the execution court, without properly appreciating the facts of the case, rejected the Advocate Commissioner's report (Ext.P6) and dismissed the execution petition holding that the property was not identifiable. Ext.P7 order is under challenge. 6. This Court by Ext.P1 judgment rendered in -7- W.P.(C).No.23976/2009 S.A.No.929/92 granted a decree in O.S.No.50/83 in favour of the petitioner, who is the plaintiff in the suit. The plaintiff was given a decree for permanent prohibitory injunction restraining the defendant and their men from interfering with the peaceful possession and enjoyment of the property except 10 cents covering the house of the defendants plus the land appurtenant thereto. In paragraph 7 of Ext.P1 this Court considered the submission of the learned counsel for the appellant that since the defendant has been granted permission to construct a house in the land appurtenant to the house which is in the possession of the defendants, there need not be an injunction. Considering the said submission, this Court held that the plaintiff is entitled to permanent prohibitory injunction with respect to 40 cents of property other than 10 cents covering the house of the defendants and the land appurtenant thereto. The decree in the suit is very clear. The plaintiff is given a decree of permanent prohibitory injunction in respect of 40 cents of land out -8- W.P.(C).No.23976/2009 of 50 cents scheduled in the plaint. Since the respondent caused obstruction to the enjoyment of the property covered by the decree, the plaintiff moved the execution court for appropriate reliefs. The defendant, who is occupying the residential house in the property, has raised all sorts of objections against the identification and demarcation of 40 cents of land and also against granting of relief to the plaintiff. 7. The execution court considered the contentions of the parties in Ext.P2 order dated 5/7/2008. In paragraph 10 of Ext.P2 order the court below observed that in this case there can be no scope for a doubt that identification of 10 cents, excluded from operation of decree is a question relating to execution of decree, which shall be determined by the execution court. The court further held that without such an identification, the court may not be able to execute the decree, if the decree is violated or not obeyed by the respondent. Section 47 C.P.C. gives ample power to the court, -9- W.P.(C).No.23976/2009 rather confers a duty on the court, to identify the area of operation of the decree, without relegating the parties to another round of litigation. In paragraph 14 of Ext.P2 order it was held that “hence, as a stage anterior to actual execution of decree in O.S.No.50/83 by arrest and detention of respondents in civil prison or for attachment of property as per Order XXI Rule 32 C.P.C., the court is duty bound to identify the area of operation of decree by determining the house plot of 10 cents, possessed by the respondent.” By Ext.P2 the court ordered that An Advocate Commissioner shall be deputed to identify the 10 cents of property from the decree schedule property, which is intended by decree to be excluded from operation of decree in O.S.No.50/83, and to file a report and plan accordingly. The execution court also observed in Ext.P2 that in case of any violation or disobedience of terms of decree by the respondent in respect of the property beyond the plot so identified to be excluded from the operation of decree, the petitioner is at -10- W.P.(C).No.23976/2009 liberty to approach the court again by filing fresh execution petition in accordance with law and procedure. Ext.P2 order is challenged by the respondent/defendant in CRP.No.555/08. This Court by Ext.P3 order dated 21st July, 2008 confirmed Ext.P2 order finding that there is no illegality or irregularity and dismissed the CRP. Pursuant to the direction issued by the execution court in Ext.P2, the Advocate Commissioner measured and demarcated 10 cents of land and submitted report and plan which were marked as Exts.C1 and C2 respectively. The respondent filed I.A.No.273/08 to remit Exts.C1 and C2 report and plan. The execution court allowed the said application and the Commissioner was directed to hold further inspection and to file report and plan. The Commissioner for a second time measured and demarcated 10 cents of property and the rest of the plaint schedule property with the assistance of the Surveyor and submitted second report and plan dated 8/4/2009. The second report with plan is marked as Ext.P6. After the submission -11- W.P.(C).No.23976/2009 of the report and plan by the Commissioner, the execution court considered the objection against Exts.C3 report and C4 plan (Ext.P6) in Ext.P7 order dated 30th May, 2009. 8. The court below held that the Commissioner was not able to identify the property and that the petitioner was not able to show the property to the Advocate Commissioner, which would probabilise the contention of the respondent that the property cannot be identified at all. The court also held that without proper description of the property in the decree, especially for the 10 cents to be excluded from the purview of operation of the decree, there is no possibility to identify the property at the execution stage. Therefore, there is no other option, but to close this execution petition with the above observation. The conclusions arrived at as stated above are not justified on the facts, circumstances and the evidence in the case. I have already referred to the decree passed by this Court in the second appeal. There is only single description -12- W.P.(C).No.23976/2009 in the plaint schedule property, i.e. 50 cents of land. Only when the matter was considered by this Court in S.A.No.929/92, the plaintiff in the suit extended a concession saying that a decree of injunction may be passed limiting the property to 40 cents. The plaintiff requested this Court to exclude the residential house and the appurtenant 10 cents of land from the purview of operation of the decree of injunction. Therefore, it has become necessary to locate and identify 10 cents of land from the larger extent of 50 cents. Therefore, the finding of the execution court that without proper description of the property in the decree, especially for the 10 cents to be excluded from the purview of operation of the decree, there is no possibility to identify the property at the execution stage is without understanding the decree passed in the suit and the description of the property. In paragraph 14 of Ext.P2 order dated 5/7/2008, the execution court held as follows: “Hence, as a stage anterior to actual -13- W.P.(C).No.23976/2009 execution of decree in O.S.No.50/83 by arrest and detention of respondents in civil prison or for attachment of property as per Order 21 Rule 32 C.P.C. the court is duty bound to identify the area of operation of decree by determining the house plot of 10 cents, possessed by respondent. The respondent, who got such an exemption by way of a concession from the petitioner before Hon'ble High Court, has no business to oppose the prayer for identification of that property. Only if the excluded portion is identified the court can exercise an effective supervision over the decree.” 9. After entering a finding in Ext.P2 as stated above, the very same court in Ext.P7 order held that without proper description of the property in the decree, especially for the 10 cents to be excluded from the purview of operation of the decree, there is no possibility to identify the property at this execution stage. According to the execution court, there is no proper description of the property in the the decree and therefore, identification of 10 cents is not possible. This observation is against the spirit of Ext.P1 judgment and Ext. P2 order. The finding of the court below that -14- W.P.(C).No.23976/2009 there is no proper description of the property in the decree is wrong. The decree schedule property is 50 cents of land. This Court granted a decree of injunction against the respondent. The decree schedule property is 50 cents. The property to be excluded is 10 cents out of 50 cents. The house and the appurtenant 10 cents of land are the property liable to be excluded from the operation of the decree. So, the court below went wrong in concluding that there is no proper description of the property and therefore there is no possibility to identify the property at the execution stage. The other reason stated by the court below for rejecting the Commissioner's report and plan is that there is no proper identification of the property. Exts.C1 and C2 are the first report and sketch dated 12/8/2008. The execution court remitted the report and sketch to the same Commissioner as per order in E.A.No.273/08 dated 18/10/2008. The execution court held that there is no proper identification of the property and therefore the -15- W.P.(C).No.23976/2009 report and sketch are remitted. On 8/4/2009 the Commissioner submitted Exts.C3 report and C4 plan. Exts.C3 and C4 were prepared with the assistance of an expert Surveyor. Exts.C3 report and C4 plan are produced as Ext.P6. The Commissioner issued notice to both parties and they were present during inspection. It is stated so in Ext.P6. The residential building put up by the respondent is in the property which is identified by the Commissioner with the help of the Surveyor. The parties had no case at the time of inspection that the property measured and demarcated is not the property adjacent to the decree schedule property. In the presence of both parties, the Commissioner with the help of a Surveyor, measured and demarcated the property. From the plan produced it can be seen that the residential house and the appurtenant land having an extent of 10 cents were measured, demarcated and identified. Under Ext.P1 judgment the defendant is entitled to 10 cents of land. On a proper measurement it was found -16- W.P.(C).No.23976/2009 that the extent to be allotted is more than 10 cents i.e. 10.02 cents. The petitioner/plaintiff has no objection to the defendant in enjoying 10.02 cents of land in stead of 10 cents. The Commissioner demarcated the rest of the property covered by the decree. The plaint schedule property is situated in R.S.No.100/1A. The plan shows that the property identified as the decree schedule property is comprised in R.S.No.100/1A, 102/1 and 85/1. On a perusal of the plan also shows that 10 cents of land earmarked for the defendant is in the plaint survey number and that out of 40 cents of land earmarked for the plaintiff in the suit a small strip of land is comprised in R.S.No.102/1 and 85/1 i.e. out of 40 cents less than half a cent in these two survey numbers. The Commissioner could have avoided addition of the small strip of land comprised in Sy.Nos.102/1 and 85/1, when the plan was prepared. 10. The learned counsel for the plaintiff submitted that he has no idea to enjoy any property in survey numbers 102/1 and 85/1 -17- W.P.(C).No.23976/2009 as noted by the Commissioner. Excluding ½ cent approximately the plaint schedule property shall be limited to the rest of the property namely, approximately 39 ½ cents instead of 40 cents in the plaint survey number and the plaintiff can proceed with the execution in respect of the property identified by the Commissioner in Ext.C4 plan excluding the small strip of land comprised in Sy.No.102/1 and 85/1. Without understanding the scope of the decree of execution and without examining the Commissioner's report properly, the court below took the stand that the property under any circumstance is not identifiable and therefore cannot proceed with the execution. In fact, the entire property on measurement is having more or less the same extent. Ten cents of land has been identified by the Commissioner and the balance portion of 40 cents was also identified by the Commissioner. The Commissioner wrongly included half cent of property in two other survey numbers. Instead of excluding the small strip of land the -18- W.P.(C).No.23976/2009 execution court simply said that the property cannot be identified at all. The court also took the view that the description of the property is wrong and therefore identification is not possible. The execution court in Ext.P2 order also noted that in order to pass effective orders, 10 cents has to be demarcated. In this case 10 cents of land was demarcated, which belongs to the respondent and he has no right to contend that identification of the rest of the property is not correct. He has no case that the 10 cents of land earmarked to him is not portions of decree schedule property and that his residential house is not situated in the said 10 cents of land earmarked by the Commissioner in Ext.C4 plan. 11. The execution court rejected the Commissioner's report and plan stating the aforesaid reasons. The learned Munsiff held that since the identified property is comprised in two other survey numbers as well, the identification is against the spirit of the decree and therefore detrimental to the interest of the respondent. I -19- W.P.(C).No.23976/2009 have already stated that the property comprised in two other survey numbers is negligible extent, which is more or less half cent of property. In the plan a portion of the said extent is shown in R.S.85/1, which is part of a road. The extent included in R.S.No.102/1 is a property of a stranger. As I said earlier, the total extent in these two survey numbers is negligible extent. The Commissioner identified that portion as part of the decree schedule property. The court below rejected the Commissioner's report and plan. The court below held that the plaintiff is not entitled to any relief and dismissed the execution petition. It is true that the portion of property in R.S.No85/1 and 102/1 are properties not included in the decree and so the injunction order passed against the respondent cannot operate over such a portion; but the court below did not consider the fact that this portion could have been excluded from the operation of the decree. The Commissioner ought to have measured only the extent available in -20- W.P.(C).No.23976/2009 R.S.No.100/1A. The extent available in R.S.No.100/1A, which is the decree schedule property, may be a lesser extent. That does not mean that the plaintiff is not entitled to enforce the decree as against the respondent. Therefore, the finding of the court below that the property is not identified is not correct. In detail I have stated that the measurement and demarcation were done by the Commissioner in the presence of the parties. The property measured and demarcated is the property comprised in R.S.No.100/1A. The property wherein the house of the respondent is situated, is part of the property identified by the Commissioner as the decree schedule property comprised in R.S.No100/1A. The only defect which can be pointed out is that the Commissioner has also included a small strip of land in the other survey numbers, which is not part of the decree schedule. 12. Learned counsel for the petitioner submitted that he is seeking relief against the respondent only in respect of the property -21- W.P.(C).No.23976/2009 comprised in R.S.No.100/1A and not the extent of property comprised in R.S.No.102/1 and 85. 13. For the reasons stated in the preceding paragraphs, Ext.P7 order passed by the execution court finding that the decree schedule property is not identifiable and therefore the court has no other option, but to close the execution petition, is set aside. The decree schedule property was identified by the Commissioner in Exts.C3 report and C4 plan. In view of the Order XXI Rule 32 (1) CPC, the act required to be done by the respondent is to obey the decree which prohibits him from entering the portion of the plaint schedule property except 10.02 cents which takes in his house and the appurtenant land. Therefore the petitioner/decree holder is at liberty to move the execution court for execution of the decree under Order XXI Rule 32 of the CPC. The decree schedule property is the extent of land comprised in Sy.No.100/1A only excluding 10.02 cents in the same survey number as shown in -22- W.P.(C).No.23976/2009 Ext.C3 report and C4 plan produced and marked as Ext.P6 in this writ petition. Writ Petition is therefore allowed. HARUN-UL-RASHID, Judge. kcv.