Kerala High Court
Ponnuse vs Khadeeja on 14 February, 2025
FAO (RO) NO.13/2023 1
2025:KER:33383
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
FRIDAY, THE 2ND DAY OF MAY 2025 / 12TH VAISAKHA, 1947
FAO (RO) NO. 13 OF 2023
ARISING OUT OF THE JUDGMENT AND DECREE 14.11.2018 IN
AS NO.210 OF 2018 OF THE ADDITIONAL DISTRICT JUDGE - II
(SPECIAL), KOTTYAM
ORDER DATED 22.07.2014 IN EA NO.51/2011 IN
E.P.NO.181/2010 IN O.S.NO.135/1993 OF MUNSIFF COURT, VAIKOM
APPELLANTS/RESPONDENTS/RESPONDENTS:
1 PONNUSE,
S/O KURIAN, KADUNGOTHU HOUSE, CHEMPU P.O.,
CHEMPU MURI AND VILLAGE, VAIKOM TALUK,
KOTTAYAM (DIED).
2 ANNAKUTTY
AGED 74 YEARS
W/O KURIAN, KADUNGOTHU HOUSE, CHEMPU P.O.,
CHEMPU MURI AND VILLAGE, VAIKOM TALUK,
KOTTAYAM (DIED).
3 K.A.KURIAN @ PONNUSE KURIAN
AGED 66 YEARS
S/O PONNUSE, KADUNGOTHU HOUSE, CHEMPU P.O.,
CHEMPU MURI AND VILLAGE, VAIKOM TALUK, KOTTAYAM.
4 PONNUSE SARAMMA
AGED 62 YEARS
D/O. PONNUSE, KADUNGOTHU HOUSE, CHEMPU P.O.,
CHEMPU MURI AND VILLAGE, VAIKOM TALUK, KOTTAYAM.
5 PONNUSE RUBY
AGED 60 YEARS
D/O PONNUSE, KADUNGOTHU HOUSE, CHEMPU P.O.,
CHEMPU MURI AND VILLAGE, VAIKOM TALUK, KOTTAYAM.
6 PONNUSE MOLLY
AGED 56 YEARS
FAO (RO) NO.13/2023 2
2025:KER:33383
D/O PONNUSE, KADUNGOTHU HOUSE, CHEMPU P.O.,
CHEMPU MURI AND VILLAGE, VAIKOM TALUK, KOTTAYAM.
7 PONNUSE ABRAHAM
AGED 48 YEARS
S/O PONNUSE, KADUNGOTHU HOUSE, CHEMPU P.O.,
CHEMPU MURI AND VILLAGE, VAIKOM TALUK, KOTTAYAM.
BY ADV K.N.CHANDRABABU
RESPONDENTS/APPELLANTS/CLAIM PETITIONER/AND 8TH RESPONDENT
IN APPEAL NO.210/2018:
1 KHADEEJA,
AGED 65 YEARS
W/O BAPPUKUTTY, KATTAMBALLIL,
CHEMPU MURI, CHEMPU VILLAGE,
VAIKOM TALUK, KOTTAYAM DISTRICT, PIN 686608.
2 PONNUSE GEORGEKUTTY
AGED 46 YEARS
S/O PONNUSE, KADUNGOTHU HOUSE, CHEMPU P.O.,
CHEMPU MURI AND VILLAGE, VAIKOM TALUK,
KOTTAYAM DISTRICT, PIN 686608.
BY ADVS.
SRI.B.PREMNATH (E), R1
SRI.MANI GOVINDA MARAR, R1
SRI.T.G.KALADHARAN, R2
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING
BEEN FINALLY HEARD ON 14.02.2025, THE COURT ON 02.05.2025
DELIVERED THE FOLLOWING:
FAO (RO) NO.13/2023 3
2025:KER:33383
JUDGMENT
Dated this the 2nd day of May, 2025 This appeal is filed challenging the judgment and decree dated 14.11.2018 of the Additional District Judge -II (Special), Kottayam in A.S.No.210 of 2018 from the order dated 22.07.2014 in E.A.No.51 of 2011 in E.P.No.181 of 2010 in O.S.No.135 of 1993 on the files of Munsiff Court, Vaikom. Appellants 1 to 7 are the respondents 1 to 7 in the E.A. The 1st respondent herein is the petitioner in the E.A. (hereinafter referred to as the petitioner). The 2 nd respondent was the 8th respondent in the E.A.
2. Petitioner had filed the E.A. before the Munsiff Court, Vaikom, invoking Order 21 Rule 99 of the Code of Civil Procedure, 1908 (CPC) inter alia contending that she has the title and possession to the petition schedule property. She had purchased the said property from the 9th defendant in O.S.No.135 of 1993 vide Ext.A5 deed bearing No.2810 of 2005 of S.R.O., Vaikom. The 9 th respondent was one Sarathchandran Panicker. According to the petitioner, the suit was dismissed as against the said 9 th defendant. FAO (RO) NO.13/2023 4
2025:KER:33383 But, when the decree in the said suit was executed by delivering the property scheduled therein, the property of the petitioner was also given possession of to the respondents. According to the petitioner, she is thus dispossessed of her motor shed and equipment therein. The portion of the properties or dispossessed is the petition scheduled item No.2 property and the property purchased by her is petition schedule item No.1 property. The electric motor shed in the petition is the petition schedule item No.3 property. Petitioner had filed the E.A. demanding recovery of possession of that property and seeking damages for the loss sustained by her.
3. The E.A. filed by the petitioner was dismissed by the Munsiff Court inter alia holding that the petitioner had failed to prove her case. It was held that the petitioner could not prove that the petition schedule item No.2 property, possession of which was sought by her was part of the property conveyed by Ext.A5 deed. Hence, her complaint that she was unlawfully dispossessed was termed as without merits and consequently the E.A. filed by her invoking Order 21 Rule 99 was dismissed. Aggrieved by the said dismissal, petitioner preferred an appeal (A.S.No.210 of 2018 ) before the Additional District Court-II (Special), Kottyam. After FAO (RO) NO.13/2023 5 2025:KER:33383 hearing the parties, the District Court allowed the A.S. and set aside the order of the Munsiff in the E.A. and remanded the matter back for fresh consideration. The said judgment and decree in A.S. is challenged by respondents 1 to 7 (appellants herein) in this FAO (RO).
4. Heard Sri.K.N.Chandrababu, Advocate for the appellants (respondents 1 to 7 in the E.A.) and Sri.B.Premnath for the 1 st respondent (petitioner in the E.A.) and Sri.T.G.Kaladharan for the 2 nd respondent (8th respondent in the E.A.).
5. The learned counsel appearing for the appellants/ respondents 1 to 7, vehemently contended that the judgment and decree of the District Court in the A.S. is illegal, arbitrary and liable to be set aside. It is contended by him that the E.A. was correctly dismissed by the Munsiff Court, finding that the petitioner failed to prove possession of petition schedule item No.2 property as also part of petition schedule item No.1 property. The Munsiff Court had correctly found that as per the recitals contained in Ext.A5 deed, property of the petitioner is having 32 cents in extent. As per Ext.C1 Advocate Commissioner's report and Ext.C1(a) plan appended thereto ie., Ext. C1 (a) , the area of the property now in possession FAO (RO) NO.13/2023 6 2025:KER:33383 of the petitioner on the strength of Ext.A5 is 47.72 cents. As per the report of the Advocate Commissioner, petition schedule item No.2 property, which is claimed by the petitioner by filing the E.A. and shown as number 3 in Ext.C1 (a) plan, clearly falls within the property shown in the decree schedule to O.S.No.135 of 1993. Therefore, it is amply clear that the petitioner is possessing more extent of property than what she is entitled to. The District Court ought not have gone into the question of identity of the decree scheduled property. It is further contended that the claim petition filed under Order 21 Rule 99 of CPC can be maintained by the petitioner only if it is proved that she was in lawful possession of the property allegedly dispossessed. In the present case, there is no dispossession at all since the Advocate Commissioner's report and plan would reveal that the property claimed is already included in the decree schedule of O.S.No.135 of 1993. Hence, the Munsiff Court had rightly dismissed the E.A. as the petitioner had failed to prove possession and also her title over the said property. However, the District Court unsettled the same. The judgment and decree of the District Court is hence illegal and unsustainable. The purported reliance was placed by the District Court on the dictum in John A. FAO (RO) NO.13/2023 7 2025:KER:33383 Augustine v. Renjen [2016 (3) KLT 670]. The said reliance is baseless. Basing on the dictum laid down by the Hon'ble Supreme Court in Usha Sinha v. Dina Ram [2008 (3) KLT 848 (SC)], it is contended that a purchaser of suit property during the pendency of litigation has no right to resist or obstruct the execution of the decree passed by a competent court. If resistance is caused or obstruction offered by a transferee pendente lite of the judgment debtor, he cannot seek benefit of Rule 98 or 100 of Order 21 of CPC. The doctrine of lis pendens prohibits a party from dealing with the property, which is the subject matter of the suit. Lis pendens itself is treated as constructive notice to a purchaser that he is bound by a decree to be entered in the pending suit. Rule 102 therefore clarifies that there should not be resistance or obstruction by a transferee pendente lite. It declares that if the resistance is caused or obstruction is offered by a transferee pendente lite of the judgment debtor, he cannot seek the benefit of Rule 98 or 100 of Order 21 of CPC. The learned counsel places reliance on the dictum laid down by this Court in Ittiyachan v. Tomy [2001 (3) KLT 117] and it is contended that mere possession by the claimant would not be sufficient while invoking Order 21 Rule 97 and 98 and that the FAO (RO) NO.13/2023 8 2025:KER:33383 claimant has also to show a right to possession independent of the judgment debtor.
6. Per contra, the learned counsel, appearing for the 1 st respondent/petitioner in the E.A., contended that the judgment and decree of the District Court does not warrant any interference. The same had been rendered in accordance with law and after taking note of the material facts and the relevant precedents. The District Court had validly found that the E.A. as well as the appeal filed therefrom are maintainable in law. The learned counsel sought to buttress the said contention by placing reliance on the dictum laid down by the Hon'ble Supreme Court in Yogesh Goyanka v. Govind [2024 (4) KLT 730 (SC)]. Basing on the same, it was contended that doctrine of lis pendens as provided under Section 52 of the Transfer of Property Act, 1882 does not render all transfers pedante lite to be void ab initio and that it merely renders the rights arising from such transfers to be subservient to the right of the parties to the pending litigation subject to any direction that the court may pass thereunder. The contention to the contrary put up by respondents 1 to 7 are unsustainable. As regards the contention put forth on behalf of the respondents 1 to 7 by regarding the alleged errors in appreciation of FAO (RO) NO.13/2023 9 2025:KER:33383 evidence by the District Court, the learned counsel for the petitioner placed reliance on the dictum laid down by the Supreme Court in J. Balaji Singh v. Divakar Cole and others [(2017) 14 SCC 207] and contended that in this appeal, this Court is only examining the legality of the remand order and ought not go on to the merits of the matter. It had been held in J. Balaji Singh (supra) that once the High Court comes to the conclusion that the remand order was bad in law, then it could only remand the case to the First Appellate Court with a direction to decide the first appeal on merits. Only the legality of the remand order could be thus examined and merits could be decided only in an appeal that is filed under Section 96 or 100 of the CPC against the decree. Insofar as the case at hand was only an appeal that had been filed under Order 43 Rule 1(u), according to the learned counsel, there was no scope to consider the contentions raised by the learned counsel for the appellant touching on the merits of the matter. Reliance is also placed by the learned counsel on the decision of the Supreme Court reported in Narayanan v. Kumaran and others [(2004) 4 SCC 26], wherein it was held that in an appeal against an order of remand the High Court can and should confine itself to such facts, conclusions and FAO (RO) NO.13/2023 10 2025:KER:33383 decisions which have a bearing on the order of remand and cannot canvass all the findings of facts arrived at by the lower appellate court. So as to substantiate the reasoning of the District Court in the judgment and decree under challenge and reasoning therein, substantial reliance is placed by the learned counsel for the petitioner on the dictum down by this Court in Babu Raj v. Vasanthi Devi [2008 (4) KLT 761]. This Court had in the said case elaborated on the scope and ambit of an adjudication under Order 21 Rule 97 to 101 CPC. In the said context, it had been held therein that the proposition that the decree itself is the title of the decree holder may be valid as between the parties to the decree or their privies, but not against strangers to the decree. The argument that the executing court cannot go behind the decree is not available to the decree holder or auction purchaser in the case of an adjudication under Order 21 Rule 97 to 101 CPC. The authority given to the court under Rule 98 and 100 of Order 21 CPC includes the power to put the decree holder or auction purchaser or the stranger objector in possession of the property. It is such an order passed under Rules 98 or 100 as the case may be of Order 21 CPC which will be deemed to be a decree and which will be executable and FAO (RO) NO.13/2023 11 2025:KER:33383 appealable. Such an order supersedes the earlier decree to which the stranger obstructor was not a party.
7. Basing on the said law and precedents governing the subject, the learned counsel for the petitioner contended that the Munsiff Court had erred in concluding that the petitioner had failed to prove that the petition schedule item No.2 property was part of the property conveyed to her by Sri.Sarathchandran Panicker vide Ext.A5 deed. The conclusion arrived at by the learned Munsiff that the petitioner's complaint that she was unlawfully disposed of is without merits, is incorrect and a faulty understanding of the law and facts that had been placed before the court. The order of the learned Munsiff is cryptic and does not reflect the proper application of law and facts. The learned Munsiff had failed to note that the decree schedule property and the property allegedly possessed by respondents 1 to 7 are different from each other. The learned Munsiff had failed in discharging its duty to conduct a comprehensive inquiry into the application filed by the petitioner under Order 21 Rule 99 which should have included an enquiry into the title of the decree holder as regards the decretal property. The course of action and approach to be adopted as laid down in the FAO (RO) NO.13/2023 12 2025:KER:33383 dictum in Baburaj (supra) were lost sight of and not complied with by the Munsiff Court while rendering the order which was impugned in the appeal. The District Court had after a proper and detailed appreciation of facts and law correctly concluded that the judgment and decree of the Munsiff Court is to be reversed and that a retrial is essential for the complete adjudication of the lis between the parties. The same does not require any interference. The FAO (RO) is only to be dismissed.
Discussion and Analysis:
8. The maintainability of the E.A. filed invoking Order 21 Rule 99 CPC at the instance of the petitioner before the Munsiff Court and the appeal filed therefrom filed before the District Court are contested by the respondents 1 to 7 in this appeal. The said question of maintainability merits to be considered at the threshold. The contention put forth is that the petitioner, if she had any dispute regarding loss of her property, she ought to have filed a suit. The petition filed under Order 21 Rule 97 by her is not maintainable. The District Court, however, concluded that Order 21 Rule 99 envisages that all questions including questions relating to right, title and interest in the property arising between the parties to the proceedings shall be FAO (RO) NO.13/2023 13 2025:KER:33383 determined by the court dealing with the application and not by a separate suit. Reliance is seen placed by the District Court on the judgment and dictum laid down by the Hon'ble Supreme Court in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another [(1997) 3 SCC, 694] and Silverline Forum Pvt. Ltd. v. Rajiv Trust and another [(1998) 3 SCC 723], wherein it was held that not only a decree holder, but also a third party can file an application under Order 21 Rule 97. The question of maintainability of such an application and its scope and ambit has been lucidly laid down by this Court in Babu Raj (supra). An enquiry contemplated under Order 21 Rule 97, the scope is not just limited to whether the obstructor has made out his claim in support of the obstruction. Since an obstructor is setting up an independent claim, if in the adjudication of such a claim the court were to merely call upon the obstructor to establish his case, then there could be situations where a person in actual possession under a valid title could be thrown out of the property by another person obtaining a decree for possession not against the person who is in actual possession under a valid title, but against somebody who may have a semblance of title, and it will be a travesty of justice if the person in actual possession under a FAO (RO) NO.13/2023 14 2025:KER:33383 lawful title were to be ejected without examining the title of the person who seeks to dispossess or eject such person. This, as enunciated by this Court in Babu Raj (supra), explains the language used by the legislature under Rule 101 of Order 21 to indicate that all the questions including questions relating to right, title or interest in the property arising between the parties to the proceedings are to be determined by the court. It has also been held in Babu Raj (supra) that the position of an obstructor would be analogous to the position of a defendant in a suit for recovery of possession on the strength of title and the inquiry in such proceedings should be not to consider whether such a person has better title over the person who seeks the recovery of possession. The enquiry should be as to whether the person who seeks to displace or dispossess or eject the person who is admittedly found in possession has sufficient title qua the person in possession, so as to eject him from the property. The enquiry should be to find out whether the decree holder has sufficient title dehors the decree to dispossess or eject the obstructor. I find that the District court was right in holding that the E.A. is maintainable and had properly appreciated the scope of such an E.A. filed under Order 21, Rule 99 FAO (RO) NO.13/2023 15 2025:KER:33383 of CPC.
9. The application by the petitioner thus having been found maintainable, the other conclusions arrived at by the Munsiff Court needs to be scrutinised. The Munsiff Court concluded that the petitioner could not successfully challenge the genuineness of Ext.C1 report and Ext.C1(a) plan submitted by the Advocate Commissioner. It is also concluded by the Munsiff Court that, as it stood then, except on the portion shown as '4' in Ext.C1(a) plan, the delivery of property effected while executing the decree in O.S.No.135 of 1993 was without flaws. According to the Munsiff Court, it was the burden of the petitioner to clearly prove the western boundary of her property and she had failed to discharge the said burden and could not clearly point out the western boundary. It is also seen reasoned by the learned Munsiff that though it may be true that the electric motor shed and the equipments therein were dismantled and removed while the decree in O.S.No.135 of 1993 was executed, it was clear that the shed was installed only in the year 2008 and hence the petitioner cannot, merely because of the fact that an electric motor shed was there and that was erected by her, claim that the said property belonged to her. Based on the said FAO (RO) NO.13/2023 16 2025:KER:33383 reasoning, the learned Munsiff had held that the petitioner had failed to prove her case. Holding that the petitioner could not prove petition schedule item No.2 was part of the property conveyed by Ext. A5 deed, the Munsiff Court had concluded that Petitioner's complaint that she was unlawfully dispossessed is without merits. I note that the District Court had, after a detailed analysis of the materials available, come to the conclusion that the Munsiff Court had "inadvertently placed all the burden upon the appellant to prove her title". Based on the precedents on the point, the District Court had reasoned that even though the person who was in possession and was allegedly dispossessed has the burden to prima facie prove his title over the property from which he has been allegedly dispossessed, once he is able to prima facie convince the court of the same, the onus of proof would shift to the decree holder who claims entitlement over the property which has been held by the obstructor based on the decree. The District Court concluded that this course, which is settled and trite, had been overlooked by the Munsiff Court in multing all burden on the petitioner and then finding her unable to discharge the same. I find force in the conclusion arrived at by the District Court that the learned Munsiff had not FAO (RO) NO.13/2023 17 2025:KER:33383 properly appreciated the scope and ambit of the application filed under Order 21, Rule 99 of CPC.
10. The District Court had thereafter proceeded to examine the correctness of the finding of the Munsiff Court based on the factual material placed on record. In deference to the law as laid down in J. Balaji Singh (supra) and in Narayanan (supra), I note that there is no scope in this appeal for this Court to scrutinise the appreciation of facts by the District Court. The examination here can only be limited to the legality of the remand order. This Court ought not canvass all the findings of facts arrived at by the lower appellate court in this FAO. Bearing the said trite law in mind, I note that the District Court had duly taken note of all relevant factual aspects that had weighed with the Munsiff Court and had scrutinised its factual correctness. That the boundaries of the plaint schedule property as shown in the plaint and boundaries of the delivery kaichit executed by the Amin had significantly differed was specifically noted by the District Court. The evident differences in the boundary had been highlighted and brought out by the District Court by reproducing in the judgment the description of boundaries in the plaint schedule as well as the delivery kaichit. The District Court had also noted that the FAO (RO) NO.13/2023 18 2025:KER:33383 appellant had purchased the petition schedule property as per Ext.A5 sale deed from Sarathchandran Panicker who had been arrayed as the additional 9th defendant, in O.S.No.135 of 1993. The said property is alleged to be on the south eastern boundary of the plaint schedule property in O.S.No.135 of 1993. PW1 in O.S.No.135 of 1993, who is none other than the father of the respondents had been examined and based on his deposition the court in the suit judgment had been concluded that the plaintiff had impleaded the additional 9th defendant in the suit without any proper basis and he had no cause of action against the additional 9 th defendant in the suit. The District Court had concluded that since it had been found in the judgment to O.S.No.135 of 1993 that no property of the 9 th defendant, Sharath Chandran Panikkar, borders on any boundary of the plaint schedule properties, the eastern and southern boundary of the property delivered to the respondents cannot be that of the husband of the petitioner. The property of the petitioner had not been referred to in the plaint schedule of O.S.No.135 of 1993 nor in Ext.A1 title deed. This had led the District Court to opine relying on the dictum in Babu Raj v. Vasanthi Devi [2008 (4) KLT 761] that all the questions including the questions relating to right, title or interest FAO (RO) NO.13/2023 19 2025:KER:33383 in the property arising between the parties to the proceedings are to be determined by the court, and that the inquiry should be as to whether the person who seeks to displace or dispossess or eject the person who is admittedly found in possession has sufficient title qua the person in possession, so as to eject him from the property. The inquiry before the Munsiff Court thus ought to have been to find out whether the decree holder has sufficient title de hors the decree to dispossess or eject the obstructor. In Ext.C1 Commission report, it had been clearly stated that a comparison of the description of the decree schedule property and the description in the delivery kaichit reveals that the boundaries of the decree schedule property does not tally with the actual boundaries and that PW2 the Taluk surveyor had deposed in support of the contention of the petitioner in the objection to the Commission report stating that a Panchayat road was constructed almost through the centre of the property claimed to be in the possession of the respondents and the said road had effectively bifurcated the property had also weighed with the District Court. The District Court had thus concluded, based on very elaborate reasoning, that there were ample materials to show that the decree schedule property and the property allegedly possessed FAO (RO) NO.13/2023 20 2025:KER:33383 by the petitioner are different from one another.
11. I note that the specific contention of the petitioner all along was that in so far as her predecessor viz., Sarathchandran Panicker did not have a boundary with the property of respondents 1 to 7, she too being successor to the said property cannot be stated to have such a boundary to share. In spite of the same, she was dispossessed of her property, which according to her, could only point towards the faulty and improper execution of the decree. Though detailed arguments had been addressed by both sides on merits based on the evidence tendered, I desist from entering into an appreciation of inter se merits and deem it best to be left open to be decided by the trial court in the remand that had already been directed. Suffice to say that I find the order dated 22.07.2014 of the Munsiff Court, Vaikom to be cryptic, based on an erroneous understanding of the scope of Order 21 Rule 97 CPC and as one not meeting the mandates of the dictum laid down in Ajith Kumar M.R. (supra). The District Court has not committed any error in setting aside the same and in remanding the matter back directing a retrial. The finding of the District Court that a thorough inquiry is necessary, so as to do complete justice to the parties to the litigation is valid and FAO (RO) NO.13/2023 21 2025:KER:33383 proper.
In view of the above, this FAO (RO) is dismissed. The judgment and decree dated 14.11.2018 of the Additional District Judge-II (Special), Kottayam in A.S.No.210 of 2018 is upheld. No costs.
Sd/-
SYAM KUMAR V.M. JUDGE csl