Kerala High Court
Moorkhankandy Chandukutty(Died) vs Kalathil Balakrishnan on 29 January, 2014
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
WEDNESDAY, THE 29TH DAY OF JANUARY 2014/9TH MAGHA, 1935
CRP.No. 288 of 2007 ( )
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EXP.66/03 IN OS 95/1983 of MUNSIFF COURT, KOYILANDY
REVISION PETITIONER(S)/PETITIONERS/(DECREE HOLDERS):
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1. MOORKHANKANDY CHANDUKUTTY(DIED)
S/O PERACHAN, THURUTHUMMAL THAZHATH HOUSE
THIRUVANGOOR AMSOM, VENGALAM DESOM, KOYILANDY.
2. DO. KALLIANI, AGED 76 YEARS,
W/O. LATE CHANDUKUTTY, DO. DO.
3. DO. NANDINI, D/O LATE CHANDUKUTTY,
THIRUVANGOOR AMSOM, VENGALAM DESOM, DO. DO.
4. DO. BABU, S/O LATE CHANDUKUTTY,
AGED 46 YEARS, DO. DO.
5. DO. PREMRAJ, AGED 40 YEARS,
S/O LATE CHANDUKUTTY,DO. DO.
6. DO. KARTHI, D/O LATE CHANDUKUTTY,
AGED 35 YEARS, DO. DO.
BYADVS.SRI.T.SETHUMADHAVAN
SRI.PUSHPARAJAN KODOTH
RESPONDENT(S)/RESPONDENTS/(JUDGMENT DEBTORS):
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1. KALATHIL BALAKRISHNAN, S/O GOVINDAN,
AGED 50 YEARS, THIRUVANGOOR AMSOM, VENGALAM DESOM
KOYILANDY, PRESIDENT
PALLIYARA SREE BHAGAVATHI KSHETHRA, COMMITTEE
VENGALAM.
2. RAJAN, S/O RARICHAN, AGED 30 YEARS,
SECRETARY, PURAKKOTTUVAYALIL HOUSE, DO. DO.
3. P.PRAKASAN, S/O CHOYI, AGED 40 YEARS,
SECRETARY, EX-COMMITTEE, DO. DO.
4. MADHAVAN.M., S/O KANARAN,
AGED 55 YEARS, MUKKADAVATH HOUSE, MEMBER, DO. DO.
5. AZHEEKKAL SIVANANDAN, S/O KITTAN,
AGED 40 YEARS, PRESIDENT, EX-COMMITTE, DO. DO.
R1-4 BYADV.SRI.R.PARTHASARATHY
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29-01-
2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
OKB
K.HARILAL, J.
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C.R.P. No.288 of 2007
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Dated this the 29th day of January, 2014
O R D E R
The revision petitioners are the successors in interest of the decree holder in O.S.No.95/1983 on the files of the Munsiff's Court, Koyilandy and the respondents are the judgment debtors. This Revision Petition is filed against the order dismissing E.P.No.66/2003 in O.S.No.95/1983 filed under Order XXI Rule 32(5) of the Code of Civil Procedure, alleging violation of a decree passed against the judgment debtors. The predecessors of the revision petitioners filed O.S.No.95/1983 against the office bearers of Palliyara Sree Bhagavathi Kshetra Committee for a decree of perpetual injunction against the trespass and peaceful enjoyment of the property scheduled to the plaint. Even though the suit was dismissed by the trial court, in appeal A.S.No.78/1987, the Sub Court, Vadakara, allowed the appeal and decreed the suit as prayed for. In the E.P., it is alleged that in disregard to the decree and in gross violation of the decree, C.R.P.288/07 :2:
the respondents had trespassed into the plaint schedule property and constructed a wall annexing a portion of the decree schedule property willfully violating the decree. Therefore, the original decree holder filed the above application under Order XXI Rule 32(5) of the Code of Civil Procedure seeking an order attaching the property of the respondents and detaining them in prison so as to make them obey the decree of the court and demolish the compound wall constructed and also if the respondents are not willing to do so, it has to be done through the process of the court.
2. The respondents filed a counter disputing the claim of the petitioners. They contended that they have not violated the decree of the court. The wall was not constructed on 5.3.2000. In fact, earlier, another E.P. as E.P.No.96/1995 was filed stating that the respondents have violated the decree and the same was dismissed after the evidence on 4.12.1996. No further action was taken on the order dismissing that E.P. Subsequently, the original decree holder had filed O.S.No.78/2005 against the respondents stating that the respondents have constructed a wall violating the decree on 5.3.2000. There was a plan and a report in that suit showing C.R.P.288/07 :3:
the actual lie of the property. The plan and report in O.S.No.95/1983 are not correct. The petitioners have no right over the property in Re-Sy. No.50/2 and a portion of Re-Sy. No.51/1 and these properties belonged to the temple. It is also contended that the petitioners cannot claim the property in accordance with Exts.A1 and A2, the report and plan in O.S.No.95/1983 and the plan is incorrect. The plan in O.S.No.78/2000 gives a clear idea as to the lie of the property and it is the correct plan, according to them. The identity of the decree schedule property is still not clear. The respondents 2 and 4 are not the members of the temple committee and parties to earlier suit. So, they cannot be punished. The Commissioner, who prepared Exts.C1 and C2, was examined as P.W.1 and Exts.A1 to A6 and C1 and C2 were marked for the decree holder. The Commissioner, who prepared Exts.C1 and C2 plan and report in O.S.No.78/2000, was examined as R.W.1 and Exts.B1 to B5 were marked. R.W.2 is the Surveyor who measured the properties in Ext.B1 plan. After considering the evidence on record, the court below dismissed the E.P. on a finding that the petitioners have failed to prove the alleged trespass and wilful disobedience to the decree. The legality and C.R.P.288/07 :4:
propriety of the above finding are under challenge in this Revision Petition.
3. The learned counsel for the revision petitioners advanced arguments assailing the findings of the court below.
According to the learned counsel, the court below failed to notice that Exts.A1 and A2 coupled with the evidence of P.W.1 and Exts.C1 and C2 are sufficient to prove that the respondents have violated the decree of injunction and have constructed the compound wall on the portion of the plaint schedule property. But the court below failed to appreciate Exts.A1 to A3 and Exts.C1 and C2 in their correct perspective. On a comparison of Exts.A1 to A3 with Exts.C1 and C2, it could be seen that there is clear violation of the decree passed in O.S.No.95/1983. The court below failed to notice that the plaint schedule property in O.S.No.95/1983 is situated in Re-Sy.No.51/1, 51/2 and 51/3. But, the temple property is comprised in Re-Sy.No.50/2 only. Even after the passing of decree rejecting the contention that the judgment debtors have property in Re-Sy.No.51/1 also, in the E.P. they reiterated the said contention again to justify the violation of the decree. But, the court below failed to consider the said contention in its correct perspective. Similarly, the C.R.P.288/07 :5:
court below erred in accepting Exts.B1 and B2, commission report and plan, in O.S.78/2000, which was dismissed for non prosecution. Thus, the court below ought to have found that the construction of the compound wall is by trespassing into the plots H and H3 in Exts.B1 and B2 which are situated in Re- Sy.No.51/2. Admittedly, there is no property in Re-Sy.No.51/2 belonged to the temple committee.
4. Per contra, the learned counsel for the respondents advanced arguments to justify the impugned order under challenge. According to him, the Commissioner has considered Exts.A1 to A3 and Exts.C1 and C2 in their correct perspective.
In the absence of evidence to show that on 5.3.2000 the respondents had trespassed into the property and constructed a compound wall encroaching the decree schedule property, the court below can be justified in passing the impugned order dismissing the Execution Petition. Earlier, the revision petitioners had filed an original suit alleging the very same contentions and sought for a mandatory injunction for admeasuring the wall allegedly constructed in violation of the decree. In that suit, a Commissioner was appointed and he filed Ext.B1 and B2 report and plan respectively, which show the C.R.P.288/07 :6:
exact lie of the property. Thus, the court below can be justified in dismissing the petition relying on Exts.B1 and B2. In view of the rival contentions, the short question that arises for consideration in the Revision Petition is, whether the court below has failed to exercise jurisdiction vested in it correctly? Or, whether the court below has exercised its jurisdiction illegally or with material irregularity?
5. Going by the impugned order, it could be seen that the court below has rightly framed four issues covering all the matter in dispute. As regards the maintainability of the petition, the court below rightly found that the petition is maintainable under Order XXI Rule 32(5) of the C.P.C. As regards the question of limitation also, the court below rejected the contention raised by the respondents. But, the third and fourth issues are found against the revision petitioners. Therefore, the matter in issue to be decided in this Revision Petition will be confined to these two issues only.
6. It is the specific case of the revision petitioners that on 5.3.2000 the respondents had trespassed into the decree schedule property and constructed a compound wall encroaching a part of B portion of the decree schedule property, C.R.P.288/07 :7:
in violation of the decree passed against them. But, according to the respondents, they had not trespassed into the decree schedule property nor had they constructed any compound wall on 5.3.2000. According to them, the identity of the decree schedule property is not clear. More importantly, their contention is that Ext.A1 report and Ext.A2 plan are not correct and the same do not show the exact lie of the property. Hence no reliance can be placed on Exts.A1 and A2 to arrive at a finding that the respondents have constructed the compound wall encroaching B portion of the plaint schedule property by violating the decree. According to them, Exts.B1 and B2 are the correct plan and report. It is also contended that absolutely there is no evidence as to the fact that the respondents 2 to 4 have anything to do with the Kshetra Committee and, therefore, they are not liable to be proceeded against. Going by the impugned order, it could be seen that for the alleged encroachment and construction of the compound wall, in violation of the decree on 5.3.2000, no oral evidence had been adduced except the evidence of P.W.1, the Commissioner, who had prepared Exts.C1 and C2. Similarly, as rightly found by the court below, the respondents cannot be heard to say that C.R.P.288/07 :8:
Exts.A1 and A2 are not the correct plan and report and the property cannot be identified because Exts.A1 to A3 had attained finality and the same were not challenged in appeal. Therefore, any kind of challenge against identity of the property under Exts.A1 to A3 is unsustainable and liable to be rejected at the threshold. As rightly found by the court below, execution court cannot go behind the decree.
7. The question is whether the petitioners have succeeded in proving that the wall was constructed by trespassing into plaint schedule property, in violation of the decree. Admittedly, there is no oral evidence to prove the alleged violation of decree except the evidence of P.W.1, the Commissioner. But, P.W.1 also admitted that she has not identified the decree schedule property on the basis of re-survey numbers. She is not aware of the fact that decree schedule property and temple property are in different survey numbers. It is to be remembered that in Ext.A4 judgment passed by the appellate Court, the appellate Court found that the defendants/judgment debtors have property in Re-Sy.No.50/2 only and they have no property in Re-
Sy.Nos.51/1, 51/2 and 51/3. The appellate Court negatived their contention that they have property in Re-Sy.No.51/1. So, C.R.P.288/07 :9:
the point is, whether the judgment debtors have violated the decree by making construction in Re-Sy.No.51/1. But, I find that the evidence of P.W.1 is not sufficient to arrive at a conclusion that the judgment debtors have made constructions in Re-Sy.No.51/1, violating the decree. Similarly, the respondents are office bearers of the temple committee. But there is no evidence to show that the respondents were holding the office of the temple committee as on 5.3.2000, the alleged date of violation. In short, the evidence available on record is not sufficient to prove the alleged violation of decree.
8. The settled legal position is that there must have strict proof for punitive action for violation of decree. The standard of proof required is akin to that of criminal prosecution. I have already found that the evidence of P.W.1 cannot be relied on to arrive at a conclusion that there is violation of decree by the respondents. The learned counsel for the revision petitioner urged for granting an opportunity to adduce proper evidence.
9. It is to be remembered that every law abiding citizen in a civilized society has the duty to obey the decree passed by the competent civil court. The violation of a hard earned decree cannot be taken in a lighter way. It is the duty of the Court also C.R.P.288/07 :10:
to see that the decree passed by the Court is obeyed by the parties to the lis.
In the above view, the parties can be given a further opportunity to adduce proper evidence. Consequently, the impugned order is set aside and the matter is remitted back to the execution court for passing order afresh, after giving further opportunity to both parties to adduce further evidence. The parties shall appear before the execution court on 06.6.2014.
Sd/-
(K.HARILAL, JUDGE) okb.