IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH OCTOBER 2011 / 27TH ASWINA 1933 OP(C).No. 3366 of 2011(O) ------------------------- E.P.NO.40/09 IN OS.381/1993 of SUB COURT,KATTAPPANA .................... PETITIONER: ---------------------- SANTHOSH, S/O.CORNOLIOSE, BANGLAVIL HOUSE, RESIDING AT VISHANTHAKKA HOSPITAL ALPARA KARA, KANJIKUZHY VILLAGE, THODUPUZHA. BY ADV. SRI.ROY CHACKO RESPONDENT(S): --------------------------- 1. PAILY PAILY, S/O.PAILY, RESIDING AT PULICKAL HOUSE, RAMANGALAM KARA, MARADI VILLAGE, MUVATTUPUZHA TALUK,PIN 686661 (DIED). 2. SAJU, RESIDING AT PULICKAL HOUSE, RAMANGALAM KARA, MARADI VILLAGE, MUVATTUPUZHA TALUK,PIN 686 661. 3. REENA TOMY, MADAVAN HOUSE, CMC 30, CHERTHALA, ALAPPUZHA DISTRICT, PIN 688 524. 4. JOMY (JOSEPH), RESIDING AT PULICKAL HOUSE, RAMANGALAM KARA, MARADI VILLAGE, MUVATTUPUZHA TALUK, PIN 686 661. 5. RITTY JOHNEY, CHEMMAMMADIYIL HOUSE, KUMBALAM, ERNAKULAM, PIN 682 506. 6. SAJI PAUL, PULICKAL HOUSE, NELLIMALA, MUVATTUPUZHA- 686 661. Kss ..2/- ..2.... OPC.NO.3366/2011 O 7. RIJI (SR.REJIN MARY), ADORATION CONVENT, THANKAMANY, IDUKKI-685 602. 8. SIJI PAUL PULICKAL, NELLIMALA, MUVATTUPUZHA-686 661. 9. RINCY TOMY (THOMAS), VADACKAL HOUSE, THURUTHU DESAM, ALUVA, ERNAKULAM DISTRICT, PIN 683 101. 10. ANNAKUTTY PAILI, RESIDING AT PULICKAL HOUSE, RAMANGALAM KARA, MARADI VILLAGE, MUVATTUPUZHA TALUK-686 661. 11. JOSE, S/O.CORNOLIOSE, BANGALVIL HOUSE, RESIDING AT VISHANTHAKA HOSPITAL, ALPARA KARA, KANJIKUZY VILLAGE, THODUPUZHA TALUK, PIN 685 584. 12. JOHN, S/O.CORNOLIOSE, BANGALVIL HOUSE, RESIDING AT VISHANTHAKA HOSPITAL, ALPARA KARA, KANJIKUZHY VILLAGE, THODUPUZHA TALUK, PIN 685 584. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.3366/2011 O APPENDIX PETITIONER'S EXHIBITS: EXHIBIT-P1. TRUE COPY OF THE JUDGMENT IN OS NO.381/93 DT 7.8.2000 SUB COURT KATTAPANA. EXHIBIT-P2. TRUE COPY OF DECREE IN OS NO.38193 DT.7.8.2000 S.C.KATTAPANA. EXHIBIT-P3. TRUE COPY OF THE JUDGMENT HONOURABLE HIGH COURT IN AS 657/2001 DT 24.2.2011. EXHIBIT-P4. TRUE COPY OF EP NO.40/2009 DT 6.4.2009. EXHIBIT-P5. TRUE COPY OF NOTICE UNDER ORDER 21 RULE 35 CPC DT. 22.10.2010. EXHIBIT-P6. TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN EP 40/2009 DT.16.6.2011. EXHIBIT-P7. TRUE COPY OF THE COMMISSION REPORT DT 25.7.2011. EXHIBIT-P7(A).TRUE COPY OF PLAN DT.18.7.2011. EXHIBIT-P8. TRUE COPY OF THE ORDER DT.24.9.2011 IN EP NO.40/2009 IN OS NO.381/93 SUB COURT KATTAPANA. RESPONDENTS' EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.3366 of 2011 --------------------------------------- Dated this 19th day of October, 2011 JUDGMENT Respondents 2 to 10 appear through counsel. Learned counsel for petitioner submits that notice to respondents 11 and 12 is not necessary. Hence notice to respondents 11 and 12 is dispensed with. 2. This original petition is in challenge of Ext.P8, order passed by the learned Sub Judge, Kattappana on 24.09.2011 in E.P.No.40 of 2009 in O.S.No.381 of 1993. Predecessor-in-interest of respondents 2 to 10 obtained a decree for recovery of possession of the suit property excluding the building situated therein from the predecessor-in-interest of petitioner, one Telma. Telma was a tenant of the said building. According to the original plaintiff, there was an agreement for sale of the entire property to the said Telma but, on account of subsequent events the agreement was rescinded and the original plaintiff sued for recovery of possession of property excluding the building. The decree was granted in favour of the original plaintiff which is sought to be executed by his legal representatives – respondents 2 to 10. The original defendant also died. Legal representatives of O.P(C).No.3366 of 2011 -: 2 :- the deceased defendant including petitioner raised objection to the delivery of property on the ground that since the building is excluded from the decree, the building takes in the land appurtenant as well and hence no delivery could be effected until the Advocate Commissioner demarcated the land appurtenant to the building. That objection was rejected by the learned Sub Judge by Ext.P8, order. Hence the challenge to Ext.P8, order. 3. Learned counsel submitted that though certain observations are made in paragraph 8 of Ext.P8, order as regards right of legal representatives of the deceased defendant/tenant as such tenants, the ultimate order in Ext.P8, affects the interest of petitioner and other judgment debtors in that learned Sub Judge has directed delivery of the entire property. It is argued that being tenants, legal representatives of deceased defendant are entitled to use the land appurtenant to the building as well. 4. Learned counsel for respondents 2 to 10 contends that whatever right petitioner and other legal representatives of the deceased defendant/tenant have, as tenants of the building in question has been protected by the learned Sub Judge as seen from the observations and directions in paragraph 8 of Ext.P8, order. It is contended that there could be no demarcation of the O.P(C).No.3366 of 2011 -: 3 :- land appurtenant to the building as petitioner and other legal representatives of the deceased defendant claims. 5. Having heard learned counsel on both sides I am inclined to think that there could be no demarcation of the land appurtenant to the building as petitioner and other legal representatives of the deceased defendant claim. At the same time their enjoyment of amenities as tenants cannot be prevented or obstructed. 6. I find from paragraph 8 of Ext.P8, order that learned Sub Judge has observed that defendant is entitled to the enjoyment of land appurtenant (to the building) as per the lease agreement between the defendant and the original plaintif and that it is settled law that 'building' included the land appurtenant thereto. It is admitted that the 'building' was taken on rent by the tenant as per agreement between the defendant and original plaintiff and the building is enjoyed by the defendant as a tenant. The defendant could continue occupation and enjoyment of the building as a tenant and further whatever amenities as are enjoyed by the defendant as per the lease agreement could be continued after execution of the decree also. It is in the view of above observations made by the learned Sub Judge that delivery O.P(C).No.3366 of 2011 -: 4 :- of possession without demarcating the land appurtenant to the building was ordered. 7. In so far as interest of petitioner and other legal representatives of the deceased defendant as tenant of the building in question is protected by the observations in paragraph 8 of the order and delivery of the property will be subjected to the right protected as aforesaid in paragraph 8, I do not think it necessary to interfere with the order directing delivery of possession without demarcating the building and the land appurtenant thereto. I make it clear that delivery of possession of the property (excluding the building) will be subject to the right of petitioner and other legal representatives of the deceased defendant as tenants of the building as referred to in paragraph 8 of Ext.P8, order. With the above clarification this original petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-