IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 11119 of 2009(O)
1. AMMUKUTTY, W/O. ARUMUGHAN,
... Petitioner
2. SAROJINI, D/O. PULIKKATHODI
3. PADVATHY,
4. BHASKARAN, S/O. PULIKKATHODI
Vs
1. SMITHA, D/O. INDIRA,
... Respondent
2. SARITHA, D/O. INDIRA,
For Petitioner :SRI.G.SREEKUMAR (CHELUR)
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :03/04/2009
O R D E R
M. SASIDHARAN NAMBIAR, J.
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W.P.(C).No.11119 OF 2009
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Dated this the 3rd day of April, 2009
J U D G M E N T
This petition is filed by the petitioners in E.A.63 of
2009 in E.P.8 of 1996 in O.S.99 of 1997 on the file of Munsiff
Court, Tirur. They are respondents 7 to 16 in the execution
petition. A final decree dividing and allotting different shares
was passed by the Munsiff in O.S.99 of 1997 . E.P.8 of 1996 was
filed for execution of the decree to get delivery of the property.
When respondents 1 to 3 sought to take delivery of plot A
allotted to them, petitioners filed E.A.92 of 2006 contending that
subsequent to the final decree, there was an exchange of the
properties by the petitioners and respondents 1 to 6 whereunder
20 cents from plot A was given to the petitioners in exchange of
an equal extent of property allotted to them to respondents 1 to
3 and with their consent petitioners constructed a house, a well,
latrine and a cattle shed spending Rs.3,30,000/- and therefore
the said extent of 20 cents including the building, cattle shed,
latrine and well shall not be given delivery to respondents 1 to 3.
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As per Ext.P3 order that petition was dismissed. Though
petitioners filed W.P(C)5200 of 2008 challenging that order,
evidenced by Ext.P4 judgment, the writ petition was dismissed as
withdrawn. Petitioners thereafter instituted O.S.147 of 2008
before Sub Court, Tirur contending that the building in the 20
cents was constructed by them out of their own funds pursuant
to an exchange of the said property belonging to respondents 1
to 3 with the property of the petitioners and therefore petitioners
have right and title to the land and the building and it cannot be
taken delivery in execution of the final decree. A decree for
declaration was also sought. I.A.1312 of 2008 was filed under
Order XXXIX Rule 1 of Code of Civil Procedure for an order of
temporary injunction. That application was dismissed.
Petitioners challenged that order before District Court, Manjeri
in C.M.A.18 of 2008. Under Ext.P5 order, it was also dismissed.
Petitioners challenged that order before this Court in WP(C)5851
of 2009. Under Ext.P9 order the writ petition was dismissed as
withdrawn. Petitioners thereafter filed E.A.63 of 2009 for an
order to exclude the building, well, latrine, and bathroom while
giving delivery of the property to respondents 1 to 3 and for an
WP(C)11119/09
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order not to remove the structures. Under Ext.P9 order the
petition was dismissed. It is challenged in this petition filed
under Article 227 of Constitution of India.
2. Learned counsel appearing for the petitioners was
heard.
3. The argument of the learned counsel is that the
structures in the property claimed by the petitioners were not
there at the time of passing the final decree and respondents 1
to 3 have no case that they constructed the building and it is the
case of the petitioners that they constructed the building
pursuant to an exchange of the said property with the property
of the petitioners and therefore respondents 1 to 3 cannot claim
any right on the building. Learned counsel argued that as
distinct from the English law, Indian Law is that a building
standing in the property can be owned by another person and in
such circumstances even if the land belongs to respondents 1 to
3 under the final decree and even if petitioners did not succeed
in establishing that there was an exchange of the property, if
they have constructed the building, they have title to the
building and so long as they are the owners of the building they
WP(C)11119/09
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are entitled to remove the structures the building cannot be
taken delivery by respondents 1 to 3 and learned Munsiff should
have at least permitted the petitioners to remove the structures
and the impugned order is illegal.
4. On hearing the learned counsel, I do not find any
reason to interfere with Ext.P9 order as it is not illegal.
Petitioners are the legal heirs of the original defendant.
Subsequent to the preliminary decree a final decree was passed.
Execution petition is filed to take delivery of the property
allotted to the share of the plaintiffs. The case of the petitioners
is that subsequent to the final decree there was an exchange of
the property and pursuant to that exchange they constructed a
residential building, well, latrine and a cattle shed in the
property exchanged and therefore respondents 1 to 3 cannot
claim any right or title to the structures and the land with the
building are to be excluded from taking delivery and even if it is
not possible, petitioners are to be permitted to remove the
structures belonging to them. The petitioners have earlier filed
E.A.92 of 2006 for exclusion of the same property contending
that there was an exchange of the property. It was found against
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them under Ext.P3 order. That order has become final.
Therefore petitioners are not entitled to agitate the very same
question in a subsequent stage of the same proceedings.
Therefore petitioners are not entitled to contend that there was
an exchange of properties and the 20 cents with the structures
belong to them therefore the property cannot be taken delivery.
5. Then the only question is whether petitioners could
claim exclusion of the property for the reason that they
constructed the building. I cannot agree with the submission
that in a plot allotted to the plaintiffs under the final decree a
defendant could construct a building, well, cattle shed and
latrine subsequent to the allotment of the properties then resist
the prayer for delivery of the property. If such a contention is to
be upheld, no relief could be obtained by a sharer, by filing a suit
for partition as another person who has sufficient wealth could
construct a structure in the property allotted to the other sharer
and scuttle the allotment in spite of the final decree.
6. Then the only question is whether petitioners are
entitled to remove the structure in the event of taking delivery.
First of all, even in E.A.63 of 2009 petitioners have not sought
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permission of the court to remove the structure. Instead the
main relief sought for was to exclude the property with the
structures. The other relief was for a direction to respondents 1
to 3 not to demolish the structures. There was no prayer for
permission to remove the structures. Therefore, when such
prayer is not raised before the executing court, petitioners are
not entitled to raise such a new contention by filing a petition
under Article 227 of Constitution of India. Moreover, petitioners
have already filed a suit claiming title to the property including
the building. If ultimately petitioners could succeed in the suit,
they could claim the structure or the value from respondents 1 to
3. They are not entitled to contend that the property cannot be
taken delivery by the respondents 1 to 3.
Writ petition is therefore dismissed.
M. SASIDHARAN NAMBIAR, JUDGE
okb