Justin F.Rosario vs Eleamma Pereira on 22 May, 2008

Kerala High Court
Justin F.Rosario vs Eleamma Pereira on 22 May, 2008
       

  

  

 
 
  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.
            ---------------------------
               R.S.A.No.420 of 2008
            ---------------------------

                     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

RSA 420/08 2

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

RSA 420/08 3

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

RSA 420/08 6

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

RSA 420/08 7

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

RSA 420/08 9

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

RSA 420/08 10

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

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