Kerala High Court
Santha vs V.N.Ramachandran @ Ramachandra ... on 31 January, 2013
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
FRIDAY, THE 20TH DAY OF DECEMBER 2013/29TH AGRAHAYANA, 1935
OP(C).No. 4392 of 2013 (O)
---------------------------
EA.NO.618/2013 IN E.P.NO.165/13 IN OS NO.699/1997 OF
II ADDL.MUNSIFF COURT, THIRUVANANTHAPURAM
....
PETITIONERS:
----------------------
1. SANTHA,
D/O. PONNAMMA, TC 14/1764, PARIS ROAD,
THYCAUD VILLAGE, THIRUVANANTHAPURAM.
2. RAJKUMAR,
TC 14/1764, PARIS ROAD, THYCAUD VILLAGE,
THIRUVANANTHAPURAM.
3. DHANJAYA,
TC 14/1764, PARIS ROAD, THYCAUD VILLAGE,
THIRUVANANTHAPURAM.
BY ADV. SRI.K.P.SUJESH KUMAR
RESPONDENTS:
------------------------
1. V.N.RAMACHANDRAN @ RAMACHANDRA PANICKER,
'SANDHYA'.ASRAMAM ROAD, NETTAYAM.P.O.,
PEROORKADA VILLAGE, THIRUVANANTHAPURAM-691 537.
2. SOUDA DEVI,
W/O.RAMACHANDRA PANICKER, 'SANDHYA', ASRAMAM ROAD,
NETTAYAM.P.O,PEROORKADA VILLAGE,
THIRUVANANTHAPURAM - PIN-691 537.
BY ADV. SRI.G.S.RAGHUNATH
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20-12-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Kss
OP(C).No. 4392 of 2013 (O)
----------------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS:
---------------------------------------
EXT.P1 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN
R.S.A.NO.470/2003 DATED 31/01/2013.
EXT.P2 TRUE COPY OF THE EXECUTION PETITION FILED BY THE PETITIONER IN
O.S.NO.699/1997 DATED 10/06/2013.
EXT.P3 TRUE COPY OF THE PLAINT SCHEDULE DATED 1/04/1997 PRODUCED BY
THE RESPONDENTS ALONG WITH THE PLAINT IN O.S.699/1997.
EXT.P4 TRUE COPY OF THE E.A.618/2013 IN E.P.165/2013 IN O.S.699/1997 DATED
1/10/2013.
EXT.P5 TRUE COPY OF THE E.A.639/2013 IN E.P.165/2013 IN O.S.699/1997 DATED
7/10/2013.
EXT.P6 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONERS
IN E.A.618/2013 IN E.P.165/2013 IN O.S.699/1997 DATED 9/10/2013.
EXT.P7 TRUE COPY OF THE COMMON ORDER PASSED BY THE EXECUTING
COURT IN E.A.NOS.618/2013,EA.NO. 619/2013 AND E.A.NO.639/2013 IN
E.P.NO.165/2013 IN O.S.NO.699/1997,DATED 19/11/2013.
RESPONDENT(S)' EXHIBITS:
-----------------------------------------
EXT.R1(A): TRUE COPY OF THE E.A.NO.459/2013 IN O.S.NO.699/97 FOR
APPOINTING A COMMISSIONER AND AN EXPERT TO ASCERTAIN THE VALUE OF
THE UNAUTHORIZED CONSTRUCTION MADE BY THE PETITIONER ABOVE THE
DECREE SCHEDULE BUILDING DATED 19/07/2013.
EXT.R1(B): TRUE COPY OF THE OBJECTION IN EP.NO.165/13 IN O.S.NO.699/97
DATED 24/07/2013.
EXT.R1(C): TRUE COPY OF THE E.A.NO.460/2013 IN O.S.NO.699/97 IS FILED BY
THE PETITIONERS FOR RECOVERY OF RS.5 LAKHS TOWARDS THE VALUE OF
THE CONSTRUCTION MADE ABOVE THE DECREE SCHEDULE BUILDING DATED
19/07/2013.
Kss ..2/-
..2.....
OP(C)NO.4392/2013 (O)
EXT.R1(D): TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS IN
E.P.165/13 IN O.S.NO.699/97 DATED 24/07/2013.
EXT.R1(E): TRUE COPY OF THE E.A.NO.462/13 WAS FILED BY THE
PETITIONERS PRAYING FOR TIME TILL A DECISION IS TAKEN IN THE SLP
13275/13 FILED BEFORE THE HON'BLE SUPREME COURT DATED 20/07/2013.
EXT.R1(F): TRUE COPY OF THE ORDER IN SLP AGAINST RSA NO.470/2003.
EXT.R1(G): TRUE COPY OF THE OBJECTION DATED 12/08/2013 INI E.P.165/13
IN O.S.699/97.
EXT.R1(H): TRUE COPY OF THE ORDER DATED 24/08/2013 INI E.A.459/13 AND
E.A.460/13 IN E.P.NO.165/13 IN O.S.NO.699/97 OF THE II ADDITIONAL MUINSIFFS
COURT, THIRUVANANTHAPURAM.
EXT.R1(I): TRUE COPY OF THE PHOTOGRAPH SHOWING THE UNLAWFUL
LEANTO CONSTRUCTED BY THE PETITIONERS ON THE WESTERN PORTION OF
THE DECEE SCHEDULE PROPERTY AFTER EXHIBIT R1(H) ORDER.
EXT.R1(J): TRUE COPY OF THE REPORT OF THE AMIN IN E.P.NO.165/13 IN
O.S.NO.699/97.
EXT.R1(K): TRUE COPY OF THE E.A.NO.618/2013 IN E.NO.165/13 IN
O.S.NO.699/97 FOR APPOINTING A COMMISSIONER FOR MEASURING THE
DECREE SCHEDULE PROPERTY AND PREPARING A PLAN AND FOR REPORTING
WHETHER THE LEANTO IS WITHIN THE DECREE SCHEDULE PROPERTY.
EXT.R1(L): TRUE COPY OF THE AFFIDAVIT IN EA.N.619/13 IN E.P.NO.165/13 IN
O.S.NO.699/97.
EXT.R1(M): TRUE COPY OF THE OBJECTION TO E.A.NO.618/2013 DATED
7/10/2013.
EXT.R1(N): TRUE COPY OF THE OBJECTION TO E.A.NO.639/13 DATED
10/10/2013.
EXT.R1(O): TRUE COPY OF THE APPROVED PLAN.
EXT.R1(P): TRUE COPY OF THE BUILDING PERMIT ISSUED FROM
CORPORATION OF TRIVANDRUM.
EXT.R1(Q): TRUE COPY OF THE FIELD ABSTRACT.
EXT.R1(R): TRUE COPY OF THE PLAN.
/TRUE COPY/
P.S.TOJUDGE
Kss
P.N.RAVINDRAN, J.
-----------------------------------------
O.P.(C).No.4392 of 2013
-----------------------------------------
Dated this the 20th day of December, 2013
JUDGMENT
The petitioners are defendants 1, 2 and 5 in O.S.No.699 of 1997 on the file of the Court of the II Additional Munsiff of Thiruvananthapuram. The respondents are the plaintiffs therein. The suit instituted by the respondents/plaintiffs for declaration of title and for recovery of possession and other reliefs was dismissed after trial by judgment delivered on 7.10.1998 accepting the contention raised by the defendants that they have perfected title to the plaint schedule property by adverse possession and limitation. The appeal filed by the plaintiffs as A.S.No.111 of 1998 was dismissed by the Court of the I Additional Subordinate Judge of Thiruvananthapuram. Aggrieved thereby the plaintiffs filed R.S.A.No.470 of 2003 in this Court. The said appeal was allowed, the decrees and judgments of the trial court and the first appellate court were reversed and the suit was decreed by this Court by judgment delivered on 31.1.2013. By that judgment, a decree was passed declaring the plaintiffs' title and possession over the plaint schedule property and restraining the defendants from committing acts of waste therein. The O.P(C)No.4392/2013 -:2:- defendants were also directed by a decree of mandatory injunction to vacate the plaint schedule property within three months from the date of the judgment. The defendants were also directed to pay to the plaintiffs the sum of Rs.1,200/- as damages for wrongful occupation of the plaint schedule premises during the period from August 1996 to March 1997 and at the rate of Rs.200/- per month thereafter. This Court also held that in the event of failure on the part of the defendants to vacate the plaint schedule property within the stipulated time, the plaintiff can execute the decree through court.
2. Alleging that the judgment debtors have not vacated the plaint schedule property though the period stipulated by this Court has expired and they have also not paid damages/mesne profits as directed by this Court, the decree holders filed E.P.No.165 of 2013 in the Court of the II Additional Munsiff of Thiruvananthapuram. Upon receipt of notice in the execution petition, judgment debtors 1, 2 and 5 filed E.A.No.459 of 2013 and E.A.No.460 of 2013. In the first of the applications they prayed for the appointment of an Advocate Commissioner to inspect the plaint schedule building and to ascertain the value of improvements made by them. In the second of the applications O.P(C)No.4392/2013 -:3:- they prayed for an order directing payment of Rs.5,00,000/- towards value of improvements. They contended that they had spent more than Rs.5,00,000/- for the construction of second floor of the building and therefore, they are entitled to the said amount towards value of improvements. In the affidavit filed in support of E.A.No.460 of 2013 the first defendant had averred as follows:-
"5)egNW U_Ux_:n 5 \f" xbI^ f:\U^A_ IC_D A_d5_MmG_5UXqaU_f\ 2_^" H_\Oaf? Beneficiaries ( g5X_f\ U_G_ )?NXmEVA^Cm.e( g5X_f\ U_G_5?A^VAm D^NX_A^X Nxa f5G_?" '\o^JD_H^\a" NxaUxaN^H N^VPBZe'\o^JD_H^\aN^Cm M^U_<`U_DJ_HagUI_ U_G_5?A^xaf? XO^Fc" )IgO^7_:nm %x5axIC_ H?J_ 2_^" H_\ IC_DDm.e?_ f5G_?" 2]_M_AagO^Z &OD_fa benefits Na]aUX U_G_ )?NXmEVA^Cm. \M_AaKDm.e?_ Da5 U_G_5?A^VAm HW5^X U_G_ )?NXmEV L^icXmEx^Cm."
3. The decree holders resisted the applications contending inter alia that under the decree passed by this Court they are not entitled to value of improvements. They also contended that it was in violation of the order of injunction passed by this Court on I.A.No.619 of 2013 that the judgment debtors had put up the building, that the Corporation of Thiruvananthapuram has passed an order directing demolition of the said structure and therefore, for that reason also, they are not entitled to value of O.P(C)No.4392/2013 -:4:- improvements.
4. The execution court considered the rival contentions and dismissed E.A.Nos.459 and 460 of 2013 by Ext.R1(h) order passed on 24.8.2013. The execution court held that the first floor of the building was constructed by the judgment debtors without the requisite plan and licence, that it is an unauthorised construction which has been ordered to be demolished by the Thiruvananthapuram Corporation and that in the absence of any declaration by this Court to the effect that the judgment debtors will be entitled to the value of improvements, they are not entitled to the reliefs prayed for in the applications.
5. Judgment debtors 1, 3 and 5 had in the meanwhile filed Ext.R1(g) objections to E.P.No.165 of 2013 wherein they contended that there is no decree directing the defendants to vacate the first floor of the building and therefore, the execution petition is not maintainable. They also contended that 2= cents of land lying immediately to the south of the decree schedule property and the shed therein belong to them. They further contended that the first floor of the building was constructed expending Rs.5,00,000/-, that there is no decree directing demolition of the first floor of the building or directing the O.P(C)No.4392/2013 -:5:- defendants to vacate the said portion of the building and that in the event of payment of Rs.5,00,000/-, they are willing to vacate the shed situate immediately to the south of the decree schedule property.
6. Shortly thereafter, judgment debtors 1, 3 and 5 filed E.A.Nos.618 and 619 of 2013. The relief sought in E.A.No.618 of 2013 (Ext.P4) was for a direction not to evict them from the shed situated outside the decree schedule property. The relief sought in E.A.No.619 of 2013 was for the appointment of an advocate commissioner and a surveyor to inspect the decree schedule property and to file a report and plan. E.A.No.619 of 2013 was later withdrawn and E.A.No.639 of 2013 was filed seeking the very same reliefs. In the affidavit filed in support of E.A.No.618 of 2013, a copy of which is on record as Ext.P4, the first judgment debtor had averred that under the decree passed in favour of the plaintiffs they are entitled only to 2= cents and the building therein, that when the Amin came to the decree schedule property on 30.9.2013 the judgment debtors voluntarily vacated the building situate in the decree schedule property and shifted to the shed situate to the west of the decree schedule property, that the plaintiffs had no case either in the plaint or in the execution O.P(C)No.4392/2013 -:6:- petition that they are in possession and enjoyment of any land in excess of 2= cents and therefore, they are not entitled to evict them from the shed situate outside the decree schedule property. The relevant averments contained in paragraphs 2 to 5 of the affidavit filed support of E.A.No.618 of 2013 are extracted below:
2.e A_d5_IG_5 2 1/2 fXam UXqaU_\a", f5G_?J_\a"
%U5^VUa" h5UVUa" XmE^I_A^Ha" f5G_?J_WH_Ka"
dID_5f{ 2]_M_A^HaN^C^ &U\^D_Oa" LYaN^HfMG hYgA^?D_ U_G_Oa", U_G_ H?JaU^Ha".
3.e LYaN^HfMG hYgA^?D_ 2 1/2 fXam UXqaU_\^C^ U_G_ )?NXqVA^ %U5^VUa" h5UVUa" XmE^I_:na U_G_:n_GaUD^
4.e d?OW XNOgJ^ U_G_H?JbK^yJ_g\^ 2 1/2 fXam UXqaU_W 5b?aDW %U5^VgN^ h5UVgN^ )fIK^ U_G_Oa?NXqVA^ 2xag5XaN_\o.
5.e 30.9.13 W &N_X A_d5_IG_5 UXqaU_WH_Ka" U_G_5?A^gx 2]_M_A^X UK XNO" U_G_5?A^V IG_5UXqaU_\a {{ f5G_?J_WH_Ka" X^GHBZ XbO" IG_5UXqaU_H^ I?_E^y^ UVNaU fWAmA_g\A^ N^x_O_GaUDa", XbO" ?_ fWAmA_g\A^ N^y^X DOn^y^O_GaUDaN^C^.
7. The decree holders resisted the said applications by filing written objections. The execution court considered the rival contentions and dismissed all the three applications by Ext.P7 common order passed on 19.11.2013. The execution court held that there is no dispute between the parties that at present a road exists on the western side of the property, that a drainage had also come into existence later and therefore, the non mentioning of the road and the drainage in the schedule to the plaint or in the decree is of no consequence. The execution court O.P(C)No.4392/2013 -:7:- also took note of the fact that while the stand of the judgment debtors in E.A.Nos.459 and 460 of 2013 was that they are willing to shift to the shed situate on the southern side of the decree schedule property if the decree holders pay the value of improvements made by them in the decree schedule building, the stand taken in the instant application is that they have already vacated the building situate in the decree schedule property and have shifted to a shed situate on the western side of the decree schedule property. Ext.P7 is under challenge in this original petition filed under Article 227 of the Constitution of India.
8. I heard Sri.K.P.Sujesh Kumar, learned counsel appearing for the petitioners and Sri.G.S.Raghunath, learned counsel appearing for the respondents. Sri.K.P.Sujesh Kumar, learned counsel appearing for the petitioners contended that even in the trial court, the defendants had put forward the plea that besides the plaint schedule property they are in possession of 2= cents of land adjacent to the plaint schedule property, that they have reduced it to a single holding and are in possession thereof. The learned counsel contended that the decree in the instant suit is only in relation to one acre of land and building therein and that going by the description of the decree schedule property and its O.P(C)No.4392/2013 -:8:- boundaries, the execution court ought to have granted the request made by the petitioners for the appointment of an Advocate Commissioner for the purpose of ascertaining whether they are in possession of any property other than the decree schedule property, sought to be obtained under the guise of the decree passed in the suit. Per contra, Sri.G.S.Raghunath, learned counsel appearing for the respondents contended with reference to the inconsistent pleadings put forward by the judgment debtors in the affidavit filed in support of E.A.Nos.459 and 460 of 2013 and in the affidavit filed in support of E.A.No.618 and 619 of 2013 that while in the first set of applications the contention was that the defendants are in possession of a shed situate on the southern side of the plaint schedule property, the case now put forward is that they have shifted to a shed situate on the western side of the plaint schedule property and that even on their own showing it is evident that the case now put forward by the judgment debtors is not tenable. Referring to Ext.R1(i) photograph produced along with the counter affidavit, the learned counsel appearing for the respondents contended that the shed over which the defendants claim possession is a lean to which was put up after E.A.Nos. 459 and 460 of 2013 were filed, that it is a O.P(C)No.4392/2013 -:9:- lean to attached to the building situate in the plaint schedule property and that the attempt of the judgment debtors is to thwart the execution of the decree by putting forward a right over the shed and the site on which the shed stands. Referring to the plan produced on the trial side, a copy of which is produced as Ext.R1(o) along with the counter affidavit, the learned counsel appearing for the respondents contended that in the said plan which was submitted by the plaintiffs when they applied for a building permit in the year 1968, the western boundary is shown as drainage road and therefore, the mere fact that the western boundary was not described as a road in the plaint schedule is of no consequence. The learned counsel contended that it is evident from the conduct of the defendants that their attempt is to delay and defeat the execution of the decree and that the impugned order does not merit interference.
9. I have considered the submissions made at the Bar by the learned counsel on either side. I have also gone through the pleadings and the materials on record. It is evident from a mere look at Ext.R1(o) photograph that the so called the shed over which the defendants claim possession is actually a lean to attached to the building situate in the plaint schedule property. O.P(C)No.4392/2013 -:10:- In the objections filed by the judgment debtors on 12.8.2013 the case set out by them was that they are in possession of 2= cents of land immediately to the south of the decree schedule property and the shed therein. On the other hand, the case set out by them in the affidavit filed in support of E.A.No.618 and 619 of 2013 is to the effect that the said shed is on the western side. There is no explanation forthcoming from the side of the defendants as to the aforesaid contradiction which cannot be ignored or wished away as of no consequence. The Amin appointed by the execution court has in Ext.R1(j) interim report reported that the defendants declined to surrender possession of the building raising various contentions and that he found that they have kept their belongings in a temporary shed 2= metre wide and 10 metre long, constructed of tin sheets and Kaattadimaram (casuarina tree).
10. It is evident from the pleadings and the materials on record that the so called shed is a temporary shed which is attached to the decree schedule building. The defendants have no case that there is no space left between the wall of the decree schedule building and the boundary of the decree schedule property. It is thus evident from the materials on record that the O.P(C)No.4392/2013 -:11:- claim put forward by the judgment debtors is nothing but an attempt to get over the decree passed by this Court and to remain in possession of the decree schedule property. Their request for the appointment of Advocate Commissioner was in my opinion rightly declined by the execution court.
I accordingly hold that there is no merit in the original petition. It fails and is dismissed. No costs.
P.N.RAVINDRAN, Judge.
ahg/vps.
P.N.RAVINDRAN, J.
---------------------------
O.P.(C).No.4392 of 2013
----------------------------
JUDGMENT 20th December, 2013