IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 420 of 2008()
1. JUSTIN F.ROSARIO,
... Petitioner
Vs
1. ELEAMMA PEREIRA.
... Respondent
2. PERIRA NAZARETH XAVIER.
For Petitioner :SRI.T.C.MOHANDAS
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :22/05/2008
O R D E R
K.P. Balachandran, J.
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R.S.A.No.420 of 2008
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JUDGMENT
The appellant before me is an obstructor to the
execution of the decree in O.S.No.1460/03 on the
file of the Munsiff’s Court, Thiruvananthapuram,
who filed E.A.No.81/07 in E.P.No.85/06 in the said
suit O.S.No.1460/03. It appears that no application
had been filed by the decree holders complaining of
such resistance or obstruction, but, still the
Munsiff was disposing of E.A.No.81/07 filed by the
appellant adjudicating the claim advanced over the
scheduled property by the appellant/obstructor.
However, inasmuch as the application has been
considered on merits by the execution court as also
by the first appellate court, I do not find any
reason why sticking to technicalities, the decree
holders are to be directed to file appropriate
application for removal of obstruction. Counsel
for the appellant also wanted this appeal to be
heard on merits and the claim of the appellant
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being considered on merits. Consequently,
therefore, in the event of the dismissal of this
appeal, the execution court can direct that the
decree holders be put in possession of the
scheduled property in execution of the decree.
2. The case of the appellant in E.A.No.81/07
filed by him before the execution court, briefly
stated, is that he had been residing in the
building bearing Door No.T.C.34/1613 comprised in
Sy.No.1818/2 of Pettah Village; that he has been
thus in absolute possession and enjoyment of 20.5
cents of land and building therein since 1990; that
his title and possession over the property is
perfected by adverse possession by reason of his
continuous, open and uninterrupted possession for
more than the statutory period; that on 3.1.2007 he
came to know that delivery order was passed by the
execution court against the defendants in the suit,
who are not residing in the building in the
scheduled property; that the suit has been filed by
the plaintiffs in the suit in connivance with the
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third defendant, who is the elder brother of the
appellant himself; that the decree is not binding
on the petitioner/appellant, who is not a party to
the said suit; that the respondents/plaintiffs have
no right to get the property delivered over to them
from the possession of the petitioner/appellant and
that a decree be passed declaring that the
petitioner/appellant is the absolute owner in
possession of the scheduled property, as he has
perfected his title thereto by adverse possession
and limitation.
3. The respondents/decree holders resisted the
application contending that the appellant is the
younger son of the fourth defendant and younger
brother of the first defendant and he has no
connection at all with the scheduled property, as
he is married and is residing with his two children
at Cheriyathura and his wife is employed in Gulf
and has no manner of right or possession over the
scheduled property and he has come forward to help
the judgment debtors by protracting the litigation.
RSA 420/08 4
The judgment debtors and the appellant have
fabricated sham documents anticipating eviction of
the judgment debtors from the scheduled properties.
He is only an agent of the judgment debtors and has
no independent right over the scheduled property.
The appellant and his children were residing in a
hut near seashore. The said hut was not having any
door number and they have been using the address of
the scheduled property for correspondence. The
appellant is bound by the decree and E.A.No.81/07
filed by him has only to be dismissed.
4. The execution court, on the basis of the
evidence adduced in the enquiry, which consisted of
oral evidence of PWs 1 and 2 and DW1 and
documentary evidence Exhibits A1 to A6, B1 to B11
(a) and X1 and X1(a), held that the appellant does
not have any independent right, title or interest
over the decree schedule property or the building
therein and dismissed the application with costs.
The appellant filed A.S.No.20/08 before the
District Court, Thiruvananthapuram and that was
RSA 420/08 5
dismissed vide judgment dated 25.3.2008, confirming
the order passed by the execution court against the
appellant. Hence this Regular Second Appeal.
5. Heard arguments of the counsel for the
appellant.
6. It is not in dispute that judgment debtors
3 and 4 are respectively the father and mother of
the appellant; that the first judgment debtor is
his elder brother and that the second judgment
debtor is the wife of the first judgment debtor.
According to the appellant, he has been in
possession of the building in the decree schedule
property since 1990 and was residing in the
property and building therein comprised in Sy.No.
1818/2 ever since his birth along with his brother
and parents. According to him, he was residing
along with his father till 1990 and thereafter he
was residing alone till 1997 and after his marriage
in 1997 he has been residing with his wife. His
case is that his father and brother were colluding
with the decree holders so as to defeat his
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legitimate rights. The appellant has produced
Exhibit A1 duplicate Secondary School Leaving
Certificate, Exhibit A1 passport issued in his
favour, Exhibit A3 Electoral Identity Card, Exhibit
A4 copy of the voters list, Exhibit A5 certificate
of income issued by the Village Officer, Pettah and
Exhibit A6 residential certificate issued from the
Thiruvananthapuram Corporation. All the same,
Exhibit B1 showed that the appellant and his wife
are also having another residence bearing Door
No.45/43/1 in the West Assembly Constituency of
Thiruvananthapuram District. According to the
appellant, who has tendered evidence as PW1, the
scheduled property was the asset belonging to his
grandmother and he does not know the right of the
grandmother over the property in dispute nor does
he know the rights of the decree holders over the
decree schedule property. According to him, his
father permitted him to reside in the decree
schedule property when he demanded money, which is
due from his father. There is absolutely no
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evidence to establish those aspects.
7. It is pertinent to note that the appellant
does not know who is the actual owner of the
property in dispute as also the building therein.
A mere possession of the land by the appellant
would not suffice to claim title over the property
in dispute by adverse possession. He has to show
that the right he claims is independent of the
rights of the judgment debtors and further that he
was holding the property adverse to the real owner
openly and uninterruptedly for the required length
of time, without any obstruction.
8. In the instant case, the decree passed in
the suit is directing defendants 1 to 6 to
surrender the decree schedule property and the
building therein to the respondents/decree holders.
Exhibits B6 to B9 are respectively the plaint,
written statement, judgment and decree in O.S.No.
1460/03. It is seen that Exhibit B9 decree was
confirmed vide Exhibit B10 common judgment passed
by the District Court in A.S.Nos.172/04 and 75/06
RSA 420/08 8
on 18.12.2006 and the appeal preferred therefrom
was dismissed by this court vide Exhibit B11
judgment in R.S.A.No.52/07.
9. It is pursuant thereto that execution
petition was filed by the decree holders and it was
then that the appellant came forward with
obstruction to resist execution of the decree. It
is true that the appellant was not made a party in
O.S.No.1460/03 filed by the respondents, but his
elder brother and his wife and the parents of the
appellant were the defendants in the said suit and
they have vehemently contested the suit up to this
Court. It is further seen that the elder brother of
the appellant filed O.S.No.1744/00 against the
respondents for declaration of title and for
consequential injunction. The said suit was also
contested up to this Court in vain.
10. It is worthwhile to note in this context
that the appellant, who has alleged collusion
between the decree holders and the judgment debtors
in O.S.No.1460/03, has avoided impleadment of the
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judgment debtors in O.S.No.1460/03 in the EA filed
by them. The claim of adverse possession advanced
by the appellant was the very same contention
raised by the elder brother and parents of the
appellant in O.S.No.1460/03, which was found
against concurrently up to this Court. In O.S.No.
1744/00 (Exhibit B4) filed by the elder brother of
the appellant also, the claim advanced was the very
same claim that he raised in O.S.No.1460/03. There
is absolutely no evidence or circumstance available
in the case to conclude that there is any collusion
between the judgment debtors and the decree
holders. On the other hand, what is seen is that
decree was obtained by the respondents/decree
holders after long drawn out fight with the brother
and parents of the appellant.
11. It is also apposite to point out in this
context that the elder brother and parents of the
appellant had no contention at all in the suit that
the appellant also is a person having any right or
interest over the decree schedule property and the
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building therein or even that he is in occupation
of the said house or that he also is a necessary
party to the suit. In the suit for recovery of
possession filed by the respondents based on title,
there is, however, substantial representation and
the non impleadment of the appellant is not at all
fatal to the suit. The appellant himself, even
according to his case, was born and brought up in
the building in the scheduled property, which pre-
supposes that his parents were in occupation under
their independent right and that he came into
occupation for the sole reason that he is the son
of his parents. The nature of his possession
cannot turn to be adverse to the real owner and as
long as his parents are alive, possession of the
appellant cannot disturb the rights of his parents
or alter the nature of possession detriment to the
real owners. The appellant has also no case that
his possession started with a wrongful
dispossession of the rightful owner and his
exclusive possession was publically and openly
RSA 420/08 11
hostile to the rights of the real owner. The
documents produced on the side of the appellant to
advance claim over the scheduled property and the
building therein are all documents obtained after
dispute arose between the respondents/decree
holders on one side and the parents and the elder
brother of the appellant on the other. It is seen
observed by the appellate court that the appellant
as PW1 has admitted that he is a voter in the
constituency where his wife’s house is situated and
that it was when he was confronted with Exhibit B1
voters list of Thiruvananthapuram West Assembly
Constituency. This also suggests that the appellant
was not having residence in the scheduled building
and as contended by the respondents, he was having
his residence somewhere else and he has been set up
by the judgment debtors to resist eviction in
execution of the decree in O.S.No.1460/03 passed
concurrently against them by the trial court, first
appellate court and by this Court. There is
absolutely no iota of evidence to substantiate the
RSA 420/08 12
claim advanced by the appellant. The dismissal of
the claim of independent possession and perfection
of title by adverse possession advanced by the
appellant was repelled by the execution court as
also by the first appellate court concurrently and
there is no question of law and much less, any
substantial question of law to be considered in
this case by this Court in this Regular Second
Appeal.
This Regular Second Appeal is, hence, devoid of
any merit and is dismissed in limine refusing
admission.
22nd May, 2008 (K.P.Balachandran, Judge)
tkv