IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 WP(C).No. 11119 of 2009(O) -------------------------- OS.99/1977 of MUNSIFF COURT, TIRUR .................... PETITIONERS: --------------- 1. AMMUKUTTY, W/O. ARUMUGHAN, KURUMBATHUR AMSOM, PUNNATHALA DESOM.P.O, PUNNATHALA, TIRUR TALUK. 2. SAROJINI, D/O. PULIKKATHODI ARUMUGHAN, MAKKARAPARAMBA AMSOM, PERINTHALMANNA TALUK. 3. PADVATHY, D/O. PULIKKATHODI ARUMUGHAN, KOTTAKKAL AMSOM, MALAPPURAM DISTRICT. 4. BHASKARAN, S/O. PULIKKATHODI ARUMUGHAN, KURUMBATHUR AMSOM, PUNNATHALA DESOM, TIRUR TALUK. BY ADV. MR. G.SREEKUMAR (CHELUR) MR. K.RAVI (PARIYARATH) RESPONDENTS: --------------- 1. SMITHA, D/O. INDIRA, THALAKKAD AMSOM, MANGATTIRI DESOM, MAGATTIRI POST OFFICE, TIRUR TALUK. 2. SARITHA, D/O. INDIRA, THALAKKAD AMSOM, MANGATTIRI DESOM, MANGATTIRI POST OFFICE, TIRUR TALUK. (...2/-) WP(C).11119/09 (2) 3. INDIRA W/O. AYYAPPAN, THALAKKAD AMSOM, MANGATTIRI DESOM, MANGATTIRI POST OFFICE, TIRUR TALUK. 4. SOBHA, D/O. ARUMUGHAN, MUKEELIPEEDIKA, P.O. KADAMPUZHA, THIRUR TALUK. 5. SHEEBA, D/O. ARUMUGHAN, PUZHAKKATTIRI AMSOM DESOM, P.O. PUZHAKKATTIRI, THIRUR TALUK. 6. PREMAN, S/O. ARUMUGHAN, KURUMBATHUR AMSOM, PUNNATHALA DESOM, P.O. PUNNATHALA, THIRUR TALUK. 7. INDIRA, D/O. ARUMUGHAN, THANALUR AMSOM, MEENADATHUR DESOM, THIRUR TALUK. 8. BINDU, D/O. ARUMUGHAN, MOOLAKKAL OLAPEEDIKA, P.O. MOOLAKKAL, THIRUR TALUK. 9. EASWARI, D/O. ARUMUGHAN, P.O. MATTUMMAL, THIRUR TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- W.P.(C).No.11119 OF 2009 -------------------------------------------------- Dated this the 3rd day of April, 2009 J U D G M E N T This petition is filed by the petitioners in E.A.63 of 2009 in E.P.8 of 1996 in O.S.99 of 1997 on the file of Munsiff Court, Tirur. They are respondents 7 to 16 in the execution petition. A final decree dividing and allotting different shares was passed by the Munsiff in O.S.99 of 1997 . E.P.8 of 1996 was filed for execution of the decree to get delivery of the property. When respondents 1 to 3 sought to take delivery of plot A allotted to them, petitioners filed E.A.92 of 2006 contending that subsequent to the final decree, there was an exchange of the properties by the petitioners and respondents 1 to 6 whereunder 20 cents from plot A was given to the petitioners in exchange of an equal extent of property allotted to them to respondents 1 to 3 and with their consent petitioners constructed a house, a well, latrine and a cattle shed spending Rs.3,30,000/- and therefore the said extent of 20 cents including the building, cattle shed, latrine and well shall not be given delivery to respondents 1 to 3. WP(C)11119/09 2 As per Ext.P3 order that petition was dismissed. Though petitioners filed W.P(C)5200 of 2008 challenging that order, evidenced by Ext.P4 judgment, the writ petition was dismissed as withdrawn. Petitioners thereafter instituted O.S.147 of 2008 before Sub Court, Tirur contending that the building in the 20 cents was constructed by them out of their own funds pursuant to an exchange of the said property belonging to respondents 1 to 3 with the property of the petitioners and therefore petitioners have right and title to the land and the building and it cannot be taken delivery in execution of the final decree. A decree for declaration was also sought. I.A.1312 of 2008 was filed under Order XXXIX Rule 1 of Code of Civil Procedure for an order of temporary injunction. That application was dismissed. Petitioners challenged that order before District Court, Manjeri in C.M.A.18 of 2008. Under Ext.P5 order, it was also dismissed. Petitioners challenged that order before this Court in WP(C)5851 of 2009. Under Ext.P9 order the writ petition was dismissed as withdrawn. Petitioners thereafter filed E.A.63 of 2009 for an order to exclude the building, well, latrine, and bathroom while giving delivery of the property to respondents 1 to 3 and for an WP(C)11119/09 3 order not to remove the structures. Under Ext.P9 order the petition was dismissed. It is challenged in this petition filed under Article 227 of Constitution of India. 2. Learned counsel appearing for the petitioners was heard. 3. The argument of the learned counsel is that the structures in the property claimed by the petitioners were not there at the time of passing the final decree and respondents 1 to 3 have no case that they constructed the building and it is the case of the petitioners that they constructed the building pursuant to an exchange of the said property with the property of the petitioners and therefore respondents 1 to 3 cannot claim any right on the building. Learned counsel argued that as distinct from the English law, Indian Law is that a building standing in the property can be owned by another person and in such circumstances even if the land belongs to respondents 1 to 3 under the final decree and even if petitioners did not succeed in establishing that there was an exchange of the property, if they have constructed the building, they have title to the building and so long as they are the owners of the building they WP(C)11119/09 4 are entitled to remove the structures the building cannot be taken delivery by respondents 1 to 3 and learned Munsiff should have at least permitted the petitioners to remove the structures and the impugned order is illegal. 4. On hearing the learned counsel, I do not find any reason to interfere with Ext.P9 order as it is not illegal. Petitioners are the legal heirs of the original defendant. Subsequent to the preliminary decree a final decree was passed. Execution petition is filed to take delivery of the property allotted to the share of the plaintiffs. The case of the petitioners is that subsequent to the final decree there was an exchange of the property and pursuant to that exchange they constructed a residential building, well, latrine and a cattle shed in the property exchanged and therefore respondents 1 to 3 cannot claim any right or title to the structures and the land with the building are to be excluded from taking delivery and even if it is not possible, petitioners are to be permitted to remove the structures belonging to them. The petitioners have earlier filed E.A.92 of 2006 for exclusion of the same property contending that there was an exchange of the property. It was found against WP(C)11119/09 5 them under Ext.P3 order. That order has become final. Therefore petitioners are not entitled to agitate the very same question in a subsequent stage of the same proceedings. Therefore petitioners are not entitled to contend that there was an exchange of properties and the 20 cents with the structures belong to them therefore the property cannot be taken delivery. 5. Then the only question is whether petitioners could claim exclusion of the property for the reason that they constructed the building. I cannot agree with the submission that in a plot allotted to the plaintiffs under the final decree a defendant could construct a building, well, cattle shed and latrine subsequent to the allotment of the properties then resist the prayer for delivery of the property. If such a contention is to be upheld, no relief could be obtained by a sharer, by filing a suit for partition as another person who has sufficient wealth could construct a structure in the property allotted to the other sharer and scuttle the allotment in spite of the final decree. 6. Then the only question is whether petitioners are entitled to remove the structure in the event of taking delivery. First of all, even in E.A.63 of 2009 petitioners have not sought WP(C)11119/09 6 permission of the court to remove the structure. Instead the main relief sought for was to exclude the property with the structures. The other relief was for a direction to respondents 1 to 3 not to demolish the structures. There was no prayer for permission to remove the structures. Therefore, when such prayer is not raised before the executing court, petitioners are not entitled to raise such a new contention by filing a petition under Article 227 of Constitution of India. Moreover, petitioners have already filed a suit claiming title to the property including the building. If ultimately petitioners could succeed in the suit, they could claim the structure or the value from respondents 1 to 3. They are not entitled to contend that the property cannot be taken delivery by the respondents 1 to 3. Writ petition is therefore dismissed. M. SASIDHARAN NAMBIAR, JUDGE okb