Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH THURSDAY, THE 1ST DAY OF AUGUST 2013 10TH SRAVANA, 1935 Ex.FA.No. 3 of 2013 (A) ------------------------ APPELLANT(S)/PETITIONER: ---------------------------------------------- C.VIJAYAN AGED 5 YEARS S/O.THE LATE CHELLAPPAN CHETTIAR, CHAMBAVIL HOUSE THEKKUM BHAGAM, KADAKKAVOOR DESOM, KADAKKAVOOR P.O. THIRUVANANTHAPURAM, PINCODE-695306. BY ADVS.SRI.P.JACOB VARGHESE (SR.) SRI.V.R.GOPU RESPONDENT(S)/RESPONDENTS 1 TO 3.--------------------------------------------------- 1. C.K.RAVIKUMAR S/O.KUTTAN NAIR, KOLLAMVILAKATHU VEEDU, KARAMANA MELARANNOOR MURI, THYCADU VILLAGE, THIRUVANANTHAPURAM NOW RESIDING AT H.NO.51/2753, GANESHAM, ESTATE ROAD PAPPANAMCODE.P.O., THIRUVANANTHAPURAM, PINCODE ”
018.
2. J.WILSON S/O.JAMES, KUZHIVILA VEEDU, PAVAKKOTTUKONAM VILAVOORKAL DESOM, THIRUVANANTHAPURAM NOW RESIDING AT ASOKA, HOUSE NO.MSRA-2D, THACHOTTUKAVU,MALAYINKEEZHU P.O., THIRUVANANTHAPURAM DISTRICT PINCODE-695571.
3. BABY ROSE D/O.SARASA BAI, RESIDING AT KUZHIVILA VEEDU PAVAKKOTTUKONAM, VILAVOORKAL DESOM NOW RESIDING AT ASOKA, HOUSE NO.MSRA-2D, THACHOTTUKAVU MALAYINKEEZHU P.O., THIRUVANANTHAPURAM DISTRICT PINCODE-695571. R1 BY ADV. SRI.S.EASWARAN R1 BY ADV. SRI.P.MURALEEDHARAN (IRIMPANAM) R1 BY ADV. SRI.M.A.AUGUSTINE R2 & 3 BY ADV. SRI.S.V.RAJAN R2 & 3 BY ADV. SRI.R.SUDHISH R2 & 3 BY ADV. SMT.M.MANJU R2 & 3 BY ADV. SRI.K.R.RANJITH R2 & 3 BY ADV. SRI.R.SANTHOSH (VARKALA) R2 & 3 BY ADV. SMT.S.UMA THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 01-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: I.A. NO. 101/2013 IN EX.F.A. No.3/2013 DISMISSED SD/- THOTTATHIL B.RADHAKRISHNAN, JUDGE. 1-8-2013 SD/- BABU MATHEW P.JOSEPH, JUDGE. APPENDIX PETITIONER'S EXHIBITS: ANNEXURE-A1: TRUE COPY OF THE I.A.NO.5504/2012 IN OS NO.1388/1994 ON THE FILE OF THE FIRST ADDITIONAL SUB COURT, THIRUVANANTHAPURAM. ANNEXURE-A2: TRUE COPY OF THE ORIGINAL LEASE DEED DATED 18 10-1977 EXECUTED BETWEEN CHELLAPPAN CHETTIAR AND JAMES. ANNEXURE-A3: TRUE COPY OF THE ORIGINAL AGREEMENT DATED 28 1-1986 EXECUTED BETWEEN WILSON AND VIJAYAN FOR REVISION OF RENT. ANNEXURE-A4: TRUE COPY OF THE STATEMENT OF OBJECTION FILED BY THE PLAINTIFF TO I.A.NO.5304/2012 IN OS NO.1388/1994 DTD. 4-10-2012. ANNEXURE-A5: TRUE COPY OF THE ORDER DATED 1 12.2012 OF THE HON'BLE FIRST ADDITIONAL SUB JUDGE, THIRUVANANTHAPURAM, IN I.A.NO.6382/12 IN I.A. NO.5504/2012 IN O.S. NO.1388/1994. ANNEXURE-A6: TRUE COPY OF THE ORDER DATED 13 12.2012 OF THE HON'BLE FIRST ADDITIONAL SUB JUDGE, THIRUVANANTHAPURAM, IN I.A.NO.6065/12 IN I.A. NO.5504/2012 IN O.S. NO.1388/1994. ANNEXURE-A7: THE TRUE COPY OF THE ORDER DATED 13 12.2012 OF THE HON'BLE FIRST ADDITIONAL SUB JUDGE, THIRUVANANTHAPURAM, IN I.A. NO.5791/12 IN I.A.NO.5504/2012 IN O.S.NO.1388/1994. RESPONDENTS' EXHIBITS:- ANNEXURE-B1: COPY OF ENCUMBRANCE CERTIFICATE DATED 7 2.2013 ISSUED BY THE OFFICE OF THE SUB REGISTRAR, MALAYILKEEZH. ANNEXURE-B2: COPY OF GIFT DEED NO.1338/1980 DATED 30 4-1980 EXECUTED BY THE FATHER OF THE 2ND RESPONDENT IN HIS FAVOUR. THOTTATHIL B. RADHAKRISHNAN & BABU MATHEW P.JOSEPH, JJ.
=.=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=.= Ex. F.A. No. 3 of 2013 =.=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=.= Dated this the 1st day of August, 2013 JUDGMENT
THOTTATHIL B. RADHAKRISHNAN, J.
This appeal is filed challenging an order dismissing an application filed by the appellant invoking, among other provisions, section 47 C.P.C. during the course of execution of a decree passed in a suit for specific performance of a contract for sale of immovable property.
2. Heard learned counsel for parties.
3. The case set up by the appellant before the court below was that the property covered by the decree was leased out to the appellant's father sometime in 1958 for agricultural purpose and there are subsequent transactions between the lessor and the lessee, followed by documentary evidence to show that the successor in interest of the lessor and the appellant, as the successor in interest of his father, had agreed on the upward revision of rent to be paid. Ex.FA 3/201”
4. The court below held that the documentary evidence placed before it by the appellant could not be acted upon, as they are unregistered documents and that the appellant's claim cannot be upheld on the basis of materials produced by the plaintiff/decree holder. The judgment debtor who is the son of James, is alleged to be the lessor. He did not contest the petition filed by the appellant before the court below.
5. At the outset, we may notice that the decree put in execution is one for specific performance of a contract for sale of immovable property. Jurisprudentially, it is nothing but a bundle of directions in terms of the provisions of the Specific Relief Act, 1963, which enables the vendee to obtain the conveyance through judicial process by enforcement of the directions issued by the trial court. That had been done. Resultantly the vendee gets all the rights of the vendor. Obviously, that is not free of all encumbrances which would stand attached to the vendor's title. The fact of the matter remains that after the impugned order was issued by the trial court, Ex.FA 3/2013 3 the decree holder has obtained possession by enforcement of an order issued by the trial court. This means that as of now, for all intents and purposes, the decree holder, 1st respondent herein, is in possession of the property covered by the directions for specific performance.
6. In terms of what we have noted above as regards the contents and quality of the decree for specific performance, it cannot be said that any rival issue as to claim of ownership or tenancy can be agitated exclusively under section 47 C.P.C. That being so, if at all the appellant has any right or claim as a tenant entitled to the benefit of the Kerala Land Reforms Act, it is for him to agitate such issue, in accordance with law, before appropriate forum conferred with the jurisdiction to decide that issue.
7. For the aforesaid reasons, we dismiss this appeal, however, vacating the findings in the impugned order and recording that the 1st respondent/decree holder is in possession of the property. This leaves the appellant Ex.FA 3/2013 4 with liberty to pursue remedy, if any available to him, in accordance with law as noted above. No costs. It is clarified that the contentions of both sides are left open on the merits of the claim. Send LCR to the court below at the earliest. THOTTATHIL B. RADHAKRISHNAN JUDGE BABU MATHEW P.JOSEPH JUDGE nkm