Kerala High Court
Sarasibhai vs Kunjupanicken Maniyan
Author: J.M.James
Bench: J.M.James
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 422 of 2004()
1. SARASIBHAI, VELIYIL HOUSE,
... Petitioner
Vs
1. KUNJUPANICKEN MANIYAN,
... Respondent
For Petitioner :SRI.K.K.JOHN
For Respondent :SRI.K.P.DANDAPANI
The Hon'ble MR. Justice J.M.JAMES
Dated : / /
O R D E R
K.Padmanabhan Nair, J.@@ j @@ j
-----------------------------@@ j C.R.P.Nos.422 of 2004 &@@ j 600 of 2004@@ j
-----------------------------@@ j @@ j Dated this the 27th day of May, 2005.@@ j @@ j Order@@ j .PL 55 .SP 2 ((HDR 0 C.R.P.Nos. 422 & 600 of 2004
-#-
)) .HE 1 The third judgment debtor in E.P.No.243 of 1992 in O.S.No.10 of 1988 on the file of the Munsiff Court, Kayamkulam is the revision petitioner in C.R.P.No.422 of 2004. The decree holder in that E.P. is the revision petitioner in C.R.P.No.600 of 2004.
2. The facts necessary for the disposal of these Civil Revision Petition are as follows: One Neelakantan Raghavan filed O.S.No. 10 of 1988 against his brother Neelakantan Madhavan, son Rajan and also the revision petitioner in C.R.P.No.422 of 2004 for a decree declaring his right and possession over the suit property and also for permanent prohibitory injunction restraining the defendants from trespassing into the suit property or from appropriating any portion of the property by widening an existing pathway or interfering with the plaintiff's possession and enjoyment of the suit property. The suit was decreed on 21-11-1990. The 3rd defendant filed A.S.No.42 of 1991 before the Addl.District Court, Mavelikkara. Defendants 1 and 2 filed A.S.No.50 of 1991 before the same court. Both the appeals were heard together and dismissed by judgment dated 31-1-1991. The decree passed by the trial court has become final and conclusive. Even while the appeals were pending, the original plaintiff filed E.P.No.243 of 1992 under Order XXI Rule 32 C.P.C. alleging that the judgment debtors had violated the injunction decree passed and hence they may be prosecuted. In the E.P. it was averred that after passing of the decree the judgment debtors destroyed the boundaries on the south, west and north of the decree schedule property and committed waste in the suit property. It was averred that the decree holder attempted to construct boundaries on the south, west and north on 23-11-1992 and the judgment debtors prevented the decree holder from constructing the boundaries and hence the decree holder is entitled to construct a fence on the south west and north of the decree schedule property with the help of the police. It was also alleged that since the judgment debtors are wilfully disobeying the decree, they are to be prosecuted.
3. The third judgment debtor filed an objection contending that though the trial court had decreed the suit declaring the right and possession of the plaintiff over the suit property, the property was not identified or demarcated by preparing a sketch. It was contended that the decree holder purchased the property under Sale Deed No. 2978 of 1963 and the description of the property given in that sale deed will show that the decree holder had purchased two plots, one having an area of 13 cents comprised in Sy.No.5458 and another having an area of 9 cents comprised in Sy.No.5450. It was contended that the case of the decree holder that these two plots are lying as compact plots is false and in between Sy.No.5458 and 5450, the properties comprised in Sy.No.5448 is situated. That property is having an area of 58 cents and that property was purchased by the husband of the third judgment debtor as per Sale Deed No.4216 of 1965 of Kayamkulam S.R.O. It was also contended that the description of the property given in the plaint is not in conformity or consistent with the description of the property purchased by the decree holder. The averment that the third judgment debtor violated the decree and attempted to trespass the property was denied. It was contended that those allegations are false and was made only to harass the third judgment debtor. It was also contended that the third judgment debtor had no intention to trespass into the property belonging to the decree holder, but she is in actual possession of the property comprised in Sy.No.5448.
4. The original decree holder sold the properties to the second decree holder who got himself impleaded as additional second decree holder. On 30-7-1997, the second decree holder filed E.A.No.87 of 1997 for prosecuting the third judgment debtor. In the affidavit filed in support of that petition, it was averred that at about 8 a.m. on 27-7-1997, the third judgment debtor and her children trespassed into the suit property and reclaimed a portion in the south using gravel and sea sand.
5. The third judgment debtor filed an additional counter affidavit denying all the allegations levelled against her. It was contended that the properties purchased by the decree holder is lying as two plots and in between those plots, the third judgment debtor is having property comprised in Sy.No.5448 AB and through that property, a road was constructed long back. It was also averred that during rainy season sand will be dumped to protect the pathway and the place where the pathway begins, she has constructed a gate. It is contended that the decree holder is claiming that the gate and pathway are situated in the decree schedule property. It was reiterated that the property claimed by the decree holder is yet to be identified and hence no relief can be granted to him. The averment that on 27-07-1997, the third judgment debtor and her children trespassed into the suit property and constructed a road was denied.
6. On 6-2-2000, the additional second decree holder filed E.A.No.153 of 2000 alleging that on 25-9-2000 the third judgment debtor trespassed into the suit property and constructed a gate on the eastern side of the property. It was alleged that the gate was constructed on the southern corner of the eastern boundary and the third judgment debtor had placed slabs on the entire eastern boundary of the suit property. It was further averred that the decree holder came to know about it only on 4-10-2000. So he again prayed that the third judgment debtor and her children may be detained in civil prison.
7. The third judgment debtor filed E.A.No.171 of 2003 on 31-10-2003 to accept the objection to E.A.No.153 of 2003. In the affidavit it was averred that slabs were placed and that the gate was not constructed on 25-9-2000 but years back. The learned Munsiff dismissed the petition filed by the third judgment debtor to accept the objection filed by her to E.A.No.153 of 2000 and proceeded as if the third judgment debtor had not filed any objection to that E.A.
8. Both sides adduced oral and documentary evidence. The additional second decree holder gave evidence as P.W.1. P.W.2 is the Commissioner. On the side of the judgment debtor, D.Ws. 1 and 2 were examined. On the side of the decree holder, Exts. A1 to A7 proved and marked. Exts.B1 to B13 proved and marked for the judgment debtor. Exts.C1 and C2 are the two commission reports filed by the Advocate Commissioner in the execution proceedings. After considering the evidence, the executing court found that the judgment debtor and her children had effected constructions in the property on a bona fide belief that the properties in which they were effecting construction belong to them as it was made in Sy.No.5448 which is part of their properties and there was no willful disobedience on the part of the judgment debtor. The executing court found that it was not necessary to execute the decree by initiating prosecution proceedings against the judgment debtor and it is not necessary to afford police protection as prayed for in the petition. But it was further found that the same Advocate Commissioner who prepared Ext.B6 report can be deputed to locate the southern boundary of the decree schedule property leaving the pathway portion in the south which he had specifically reported with the measurements in Ext.C1 report and to put up fencing along with the other sides where there are no boundary lines and to give possession of the suit property to the additional second decree holder. It was also held that the decree holder is at liberty to restore the plaint schedule property back in its original position after removing the additional constructions effected therein and to remain in possession and enjoyment. The third judgment debtor has filed C.R.P.No.422 of 2004 challenging that part of the order by which the executing court directed the Advocate Commissioner to demarcate the southern boundary and for construction of boundary walls on the other portions where there are no boundary walls and also for further direction to the Advocate Commissioner to give possession of the decree scheduled property to the additional second decree holder. The second decree holder has filed C.R.P.No.600 of 2004 challenging that part of the order by which the prayer for prosecuting the third judgment debtor and her children for violating the decree is refused.
9. For the sake of convenience, parties will be referred to as arrayed in the execution petition.
10. Before proceeding to consider the matter on its merits, I may note that in E.A.No. 153 of 2000 the prayer was to prosecute not only the third judgment debtor but her two children also. They are Dinamon and Premiermon. But those persons were not impleaded in the E.P. So their names are not stated in the order also. In C.R.P.No.600 of 2004, the second additional decree holder has sought relief against those persons also. But those two persons are not impleaded in the C.R.P. No notice was issued to them. So no relief can be granted against the two sons of the third judgment debtor.
11. The learned counsel appearing for the third judgment debtor has argued that the decree passed in the suit consists of two parts. The first part consists of a declaratory decree which is inexecutable. It is argued that the decree of prohibitory injunction is executable but the decree is to be executed as provided under Order XXI Rule 32 of the Code of Civil Procedure. It is argued that no proceedings under Order XXXIX rule 2A can be invoked in execution of a decree. It is also argued that the view taken by the court below that the property need not be identified is not correct. The very case put forward by the decree holder is that the original plaintiff had only 22 cents of land and the original plaintiff sold 14 cents of land. In that sale deed it was stated that 22 cents is lying as two plots; 11 cents of property is comprised in Sy.No.5458 and 3 cents in Sy.No.5450. It is argued that the original decree holder Raghavan himself had admitted that 2 cents of property was acquired for widening of the road and the balance property is only six cents but he had executed Ext.B3 sale deed for 8 cents. It is argued that that fact alone is sufficient to hold that there is no property as claimed by the decree holder. It is also contended that this Court had permitted the third judgment debtor to take out a commission to demarcate the property claimed by her and Ext.C2 commission report will prove beyond any reasonable doubt that in between the properties claimed by the decree holder the third judgment debtor is having property. It is also contended that reliance placed by the learned Munsiff on Ext.A7 was illegal. It is also argued that the learned Munsiff acted without jurisdiction in ordering delivery of the property by an Advocate Commissioner in the absence of a decree for recovery of possession.
11. It is argued that the second decree holder is not entitled to execute the decree since the decree of injunction is a personal decree and the same will not run with the land. He relied on a decision reported in Somanath Honappa Bennalkar v. Bhim Rao Subbarao Patil@@ EEEEEEEEEEEEEEEEEEEEEEEEEEE EEEEEEEEEEEEEEEEEEEEEEE (I.L.R. [1974] Karnataka 1506). The additional decree holder filed E.A.No.90 of 1996 to implead him in the E.P. and to execute the decree. That prayer was opposed by the third judgment debtor. Overruling the objection raised by the third judgment debtor, the E.A. was allowed. She filed C.R.P.No.134 of 1997 before this Court challenging that order. This Court dismissed the C.R.P. finding that the additional decree holder is entitled to proceed with the execution. Hence the third judgment debtor is not entitled to challenge the executability of the decree again in this proceedings.
12. The original plaintiff filed the suit for a declaration of his title and for a decree of permanent prohibitory injunction alleging that he was having title over the suit property and the defendants tried to trespass into the same. It is specifically alleged that on the southern side of the property claimed by the petitioner there was a pathway and the third defendant is trying to trespass into a portion of the suit property so as to widen the existing pathway. These averments were denied by the third judgment debtor. A commission was deputed who filed a report which is marked as Ext.A2 in the execution proceedings. The Commissioner did not prepare any plan identifying and locating the suit property. He had reported that the property claimed by the plaintiff is lying on a lower level from the property which lies on the west and north. It was also reported that on the south of the property, there is a road which lies on the south and the property is slopping from east to west. It was also reported that on the south of the property noted by the Commissioner, a pathway starts from the road which lies on the east of the suit property and proceeds to the house of the third judgment debtor. It was reported by the Commissioner that a portion of the suit property was already reclaimed and that was lying as part of the pathway and the rest of the property was lying on a lower level. The Commissioner had reported that the pathway connecting the road on the east and the property of the third judgment debtor is having a width of 15 feet on the east and 13 feet on the west. He had also reported that a portion of the suit property was filled up and that forms part of the road and that portion is having 3 1/2 to 4 feet width and that portion cannot be separated from the rest of the road. It was also reported that the age of the entire road portion was 10 to 15 years. The report also shows that the length of the road was 80 feet. The decree holder had no case that the road having 15 feet width and 80 feet length is part of the suit property. On the other hand, a reading of Ext.A6 report shows that on the south of the property there was a road having the length of 80 feet and width of 13 to 15 feet. The report also shows that a portion of the suit property having the width of 3.5 feet to 5 feet was reclaimed 10 to 15 years prior to the date of inspection by the Commission on 10-8-1989. It also shows that that portion lies as part of the pathway and cannot be separated from the rest of the road. The report further shows that on the north of that road, there was absolutely no boundary to separate the road from the rest of the disputed property. He had also reported that on the west of the property identified by him, the third judgment debtor had constructed a wire fence and on the north one Bahuleyan had constructed a wire fence. He had specifically reported that there was absolutely no identification mark to separate the suit property from the road on the south. The trial court accepted the report.
13. Originally, the decree holder had filed the E.P. under Order 21 Rule 32 C.P.C. complaining violation of the decree as early as in 1992. The third judgment debtor had filed a counter denying all the allegations levelled against her in the E.P. In the E.P. the averment was that the judgment debtors are trying to destroy the boundaries on the south, west and north. Ext.A6 report will show that the averment that the judgment debtors made an attempt to destroy the boundary on the south is false. Ext.A6 further shows that the western boundary of the disputed property was constructed by the third judgment debtor. The Commissioner as P.W.2 has reiterated that the fence on the west was constructed by the judgment debtor and not by the decree holder. The allegation is that the third judgment debtor had destroyed the wire fence. Even accepting for the sake of argument that the third judgment debtor had removed a wire fence constructed by her, the same will not amount to violation of the terms of the decree. There is absolutely nothing on record to show that any damage was caused to the wire fence on the northern side. Though in Ext.A6, the Commissioner had reported that the fence on the north was constructed by one Bahuleyan, at the time of oral evidence, the Commissioner had stated that it was constructed by one Surendran and not by Bahuleyan. So the averment in the E.P. that the judgment debtors had violated the decree of injunction by destroying the boundaries is not established. Though the additional decree holder had filed E.A.No.87 of 1997 on 30-07-1997, no commission was taken out immediately. The allegation is that on 27-7-1997 at about 8 a.m. a portion of the property on the southern side was reduced by the third judgment debtor by reclaiming the same by gravel etc. That averment was denied by the judgment debtor. In E.A.No.153 of 2000 filed on 6-10-2000, the averment is that the third judgment debtor along with her two children had placed a gate on the southern corner of the eastern boundary. Going by the admission of the decree holder as well as Ext.A6 commission report it is seen that there is a road having 19 to 20 feet on the south of the suit property.
14. The executing court dismissed E.A.No.171 of 2003 filed by the third judgment debtor for the purpose of accepting the objection on the ground that a time limit was fixed by the High Court to dispose of the E.P. Though a time limit was fixed by the High Court, the learned Munsiff should have allowed the petition filed by the third judgment debtor and accepted the objection. The third judgment debtor had denied the allegation that she reclaimed a portion of the decree schedule property on 27-7-1997.
15. The Commissioner inspected the property only on 23-05-2000. So there is absolutely no legal or acceptable evidence to show that the averments contained in the E.P. that the judgment debtors wilfully violated the injunction decree by destroying the boundaries on the south, west and north prior to the date of filing of the E.P. On the other hand, the judgment debtor has got a specific case that there is no such property as reported by the Commissioner in Ext.A6. Ext.B2 is the certified copy of the sale deed taken by the original plaintiff. Ext.B2 shows that the properties originally belonged to Smt. William Violet Robert. She got it under a will executed by her mother in the year 1960. In the sale deed, the property is described as two plots. Ext.C2 report filed by the Commissioner shows that in between the properties claimed by the decree holder which is comprised in Sy.No.5458 and 5450, there is another plot comprised in Sy.No.5448. According to the third judgment debtor that property belongs to her. The learned Munsiff found that though the properties comprised in Sy.No.5448 is situated in between the two survey numbers, the judgment debtor failed to establish her title over the same. The question to be considered is whether the judgment debtor is having title over the property or not. According to the decree holder, he purchased 22 cents of property. 14 cents were already alienated and 2 cents were acquired by the Government. So the balance can be only 6 cents. How exactly that property belonged to him was not identified before passing the decree.
16. The report of the Commissioner shows that on the south there is a road. Ext.A6 report prepared during trial shows that road was having an average width of 20 feet and there is no boundary separating that property from the rest of the suit property. There was no prayer to fix the boundaries of the disputed property. There was no prayer for recovery of any property also.
17. The court below found that there is no evidence to hold that there is any wilful disobedience on the part of the judgment debtor to obey the decree. The evidence discussed above clearly shows that the decree holders had no consistent case at all. The averments in the original E.P. are not proved. The averments contained in the two execution applications filed by the additional decree holder were also not proved. The court below, after analysing the evidence, found that the decree cannot be executed as provided under Order XXI rule 32 of the Code of Civil Procedure. That is a finding of fact based on good evidence. I do not find any reason to interfere with that finding. It is well settled position of law that without holding that the judgment debtor has wilfully failed to obey the decree, the execution court cannot order his arrest. (See Keeran@@ EEEEEE v. Mohanan (1980 K.L.T.32).@@ EEEEEEE
18. The next question to be considered is whether the further direction issued by the executing court is legal and proper. It is well settled position of law that the duty of the executing court is to execute the decree as it stands. Normally the executing court has no jurisdiction to grant a relief which the decree does not provide. In Alla Bakhash v. Nissar Hussain@@ EEEEEEEEEEEE EEEEEEEEEEEEEEE (1904 [Vol.1] AL.JR 541) it was held that when the decree does not contain any direction to the defendant to do or refrain from doing any act, the court executing the decree has no power to amplify its term by calling in aid section 260 of the Code of Civil Procedure, 1882.
19. In this case the decree contains two parts. The first part of the decree is a declaration of the right and possession of the plaintiff. The second part is a decree of permanent prohibitory injunction restraining them from trespassing into the plaint schedule property or from appropriating any portion of the property in widening the pathway or from interfering with the plaintiffs' possession and enjoyment of the property. There is no decree of mandatory injunction.
20. In Maluka v. Sunder Singh (A.I.R.1921@@ EEEEEE EEEEEEEEEEEEE Lahore 376) it was held that a declaratory decree is not capable of being executed. In Ajayakumar v. Damayanthi@@ EEEEEEEEEE EEEEEEEEEE (2004(2) K.L.T.48) this Court has held that under Order XXI, Rule 32 of the Code of Civil Procedure, a decree for prohibitory injunction can be enforced as in the case of a mandatory injunction. In Krishnan Namboodiri v.@@ EEEEEEEEEEEEEEEEEEEE A.P.Unnikrishnan Namboodiri (I.L.R.2005(2) Ker. 239)@@ EEEEEEEEEEEEEEEEEEEEEEEEEEE this Court held that the inherent powers of the civil court can be invoked to enforce a decree of injunction and delivery of possession can be given to the decree holder. But in Krishnan Namboodiri's Case (supra) it was@@ AAAAAAAAAAAAAAAAAAAAAAAAAA proved that the judgment debtor who suffered a decree of permanent prohibitory injunction forcibly dispossessed the decree holder in violation of the injunction decree.
20. Now I shall proceed to consider whether any such evidence was adduced in this case. In the E.P. the original decree holder had no case that the judgment debtors reduced any portion of the property in their possession. His only grievance was that the judgment debtors attempted to destroy the boundaries of the property, on the south, west and north. The materials on record show that no damage is caused to the boundary on the north. The boundary on the west was constructed by the third judgment debtor in her property. There is absolutely no evidence to hold that she destroyed the same. In E.A.No.87 of 1997 or in E.A.No.153 of 1997, the additional decree holder also had no case that the judgment debtor reduced the entire property into her possession. The only allegation in E.A. No. 87 of 1997 was that on the southern side of the property, a portion was reclaimed using gravel and on the top of it sea sand was spread. The length and width of that area is not stated in the E.A. Though such a petition was filed as early as on 30-7-1997, no commission was taken out along with that E.A. to conduct a local inspection and file a report. In E.A.No.153 of 1997 the only averment made was that on the southern portion of the eastern boundary a gate was constructed by the judgment debtor and on the eastern side slabs were placed. So the decree holder had no case that the third judgment debtor trespassed in the suit property after the passing of the decree and reduced the same into her possession. The consistent case put foward by the third judgment debtor is that she is having property in Sy.No.5448 and the decree holders are having no right or possession over the same. Since the decree holder himself had no case that any of the judgment debtors trespassed into the suit property and reduced the same into their possession, the court below has no jurisdiction to invoke the powers conferred on it under section 151 C.P.C and direct an Advocate Commissioner to give possession of the entire suit property. The executing court has not stated any reason for not deputing the officer of the court to effect delivery. The court below exceeded in exercise of its jurisdiction and acted illegally in ordering delivery of the property. Equally unsustainable is the order passed by the court below ordering construction of the boundaries after locating the southern boundary. The property was never measured. In spite of Ext.A6 report filed by the Commissioner in the year 1989, the plaintiff never amended the suit by incorporating a prayer for putting up a boundary on the south. There was no prayer in the plaint to locate the southern boundary or put up the same. The Commissioner had reported the existence of a wire fence separating the disputed property from the property where the third judgment debtor resides. He had also reported that the wire fence was constructed by the third judgment debtor. Even assuming that that fell down due to old age without identifying and locating the boundary covered by Ext.A3 sale deed, the additional decree holder is not entitled to get the boundaries put up in execution of a decree of declaration and prohibitory injunction. The court below went wrong in issuing such a direction after holding that the decree need not be executed.
21. The court below had assumed that the third judgment debtor had constructed a new pathway. It is not factually correct. The decree holder is the best person to speak about the possession of the suit property. If he is not having actual physical possession, he must admit the same and file a suit for recovery of possession. The materials on record show that there were a number of litigations in respect of the disputed property. The records show that there was a suit, O.S.No.38 of 1981 between the original decree holder and his brother. It also shows that the owners of the southern property had filed a suit against the third judgment debtor admitting that she is in possession of the same. The records also show that one of the sons of the third judgment debtor had filed a suit against the original decree holder. In spite of all these litigations, for reasons best known to the decree holder, he never applied for identifying the properties covered by the sale deed with the help of the Surveyor. Further the executing court had found that the judgment debtor had not wilfully disobeyed or violated the decree. The plaintiff cannot be allowed to take possession of an unidentified property after getting a decree of declaration. So the order passed by the executing court ordering delivery of the property and also construction of the boundaries on the south and other boundaries of the decree schedule properties where there are no boundary walls at present by deputing the Advocate Commissioner who prepared Ext.A6 report is without jurisdiction and liable to be set aside. So the Civil Revision Petition filed by the third judgment debtor is only to be allowed and the other C.R.P. is only to be dismissed.
22. In the result, C.R.P.No.422 of 2004 is allowed. The orders passed by the court below ordering delivery of the suit properties and directing the Advocate Commissioner to put up boundaries to the decree schedule property strictly in accordance with Ext.A6 report is set aside. E.P.No.243 of 1992 is dismissed.
23. C.R.P.No.600 of 2004 filed by the additional decree holder is also dismissed.
I.A.No.1313 of 2004 in C.R.P.No.422 of 2004 shall stand dismissed.
.SP 1 K.Padmanabhan Nair, Judge.
s.