Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 18TH DAY OF OCTOBER 2022 / 26TH ASWINA, 1944 OP(C) NO. 306 OF 2013 OS 633/2005 OF PRINCIPAL MUNSIFF COURT,TRIVANDRUM PETITIONERS: 1 LEELA SATHYAN AGED 37 YEARS W/O.SATHYAN, KARAVANNOOR HOUSE, KARAMALLOR VILLAGE, PATHANAPURAM 689695. 2 ANOOP KUMAR @ UNNI S/O.SATHYAN, KARAVANNOOR HOUSE, KARAMALLOR VILLAGE, PATHANAPURAM-689695. 3 ANIL KUMAR S/O.SATHYAN, KARAVANNOOR HOUSE, KARAMALLOR VILLAGE, PATHANAPURAM- 689695. BY ADVS. SRI.M.RAJAGOPALAN NAIR SRI.G.BIJU RESPONDENT: SREEDEVI W/O.P.K.SIVAN, PARVATHI VILLA, ILANTHOOR P.O., PATHANAMTHITTA, NOW RESIDING AT KAVUMPATTA HOUSE, ILANTHOOR P.O., PATHANAMTHITTA-689643. BY ADVS. SRI.T.I.UNNIRAJA SRI.VICTO VARGHESE THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO.306 OF 2013 2 Dated this the 18th day of October, 2022
JUDGMENT
Aggrieved by Ext.P9 order passed in E.A No.780/2012 in E.P. No.285/2012 in O.S. No.633/2005 of the Court of the Principal Munsiff, Thiruvananthapuram (Trial Court/Execution Court), the respondents in the above application have filed the original petition. The petitioner in the application is the respondent in the original petition.
2. The bare minimum facts, relevant for the determination of the original petition, are:-
(i) the petitioners are the wife and children of late Sathyan. Sathyan was the brother of late Sivan, the
husband of the respondent. Sivan had filed O.S.No.633/2005 (Ext.P1) against the petitioners, to declare that he was the owner of the plaint schedule property and, therefore, petitioners have to be restrained by a decree of injunction and they are directed to execute a deed of conveyance in favour of Sivan. OP(C) NO.306 OF 2013 3
(ii) By Ext.P3 judgment, the Trial Court decreed the
suit, by declaring that Sivan was the owner of the plaint schedule property and, thereby, retraining the petitioners from interfering with his peaceful possession in the property and further directing the petitioners to execute a deed of re-conveyance in favour of Sivan.
(iii) Aggrieved by Ext.P3 judgment, the petitioners filed A.S. No.42/2007 before the District Court, Thiruvananthapuram (Appellate Court). By Ext.P4
judgment, the Appellate Court set aside Ext.P3 judgment
and dismissed the suit. During the pendency of the appeal, Sivan died and the respondent was impleaded as his legal representative.
(iv) The respondent, through her next friend, had filed R.S.A No. No.470/2010 before this Court. This Court, by Ext.P5 judgment, dismissed the Second Appeal.
(v) During the intervening period, i.e., after the passing of Ext.P3 judgment and before the filing of appeal, the niece of the respondent named Rani,
OP(C) NO.306 OF 2013 4 trespassed into the plaint schedule property on the strength of Ext.P3 judgment with police assistance. The police registered a case at the instance of Rani alleging that somebody has trespassed into the plaint schedule property.
(vi) After passing of Ext.P4 judgment, the petitioners filed E.P.No.285/2012 (Ext.P7) before the Trial Court,
seeking for the restitution of the property. The respondent filed Ext.P8 objection to Ext.P7 application. By the impugned Ext.P9 order, the Execution Court has dismissed Ext.P7, holding that there is no decree to be executed. Ext.P9 is irregular, improper and erroneous and liable to be set aside. Hence, the original petition.
3. Heard; Sri.G.Biju, the learned counsel appearing for the petitioners and Sri.T.I.Unniraja, the learned counsel appearing for the respondent.
4. Sri.G.Biju argued that Ext.P9 order is erroneous and unsustainable in law. The court below has failed to consider the scope and purport of Sections 144 and 151 OP(C) NO.306 OF 2013 5 of the Code of Civil Procedure in their proper perspective. He relied on the decisions of this Court in Karunakaran
Nair v. Mehta (P) Ltd [1998 (2) KLT 260], Sudhirkumar v. Floria Films [2014 (3) KLT 216], Udayakumar and others v. Rajalekshmi and others [2010(4) KHC 509] and Kitta v.Kuttan and Others [1995 KHC 517] to buttress his contention, that the
Execution Court has ample jurisdiction to order
restitution of the property to the petitioners in view of the reversal of Ext.P3 judgment by Ext.P4 judgment. He prayed that Ext.P9 order may be set aside and E.P.No.285/2012 be allowed.
5. Sri.T.I. Unniraja countered the above submission
by arguing that the suit was filed by Sivan for a declaration, injunction and to execute a deed of re- conveyance. The Trial Court had categorically found in Ext.P3 judgment, that Sivan was residing in the plaint schedule property. The petitioners have not raised any
counter claim in the suit. Even though, Ext.P3 judgment
OP(C) NO.306 OF 2013 6 was set aside by Ext.P4 judgment and the suit was dismissed, there is no decree passed in favour of the
petitioners. There is nothing on record to substantiate that the petitioners were in possession of the property prior to the filing of the suit, to order restitution, especially since it is the respondent who is in possession of the property. The petitioners would have to work out their remedies as per the procedure established by law,
to get possession of the property. Merely because some person has allegedly filed a complaint, that too without instructions from the respondent, does not mean that the respondent is not in possession of the property. There is no error in Ext.P9 order warranting interference by this Court. The original petition may be dismissed.
6. The point is whether there is any error or illegality in Ext.P9 order.
7. Sivan had instituted Ext.P1 plaint against the petitioners, alleging that his brother Sathyan - husband of the first petitioner, father of the petitioners 2 and 3 - OP(C) NO.306 OF 2013 7 had misutilised the money that was sent by him, by purchasing the property in favour of the petitioners
instead of purchasing it in the name of Sivan. The petitioners were permitted to reside in the plaint schedule property after the death of Sathyan. Two years prior to the suit, the petitioners had shifted their residence and started residing in the house of the first petitioner. On 10.03.2005, Sivan asked the petitioners to return the documents that were entrusted to Sathyan. Then, he came to learn about the fraud perpetrated by
Sathyan. Accordingly, he filed the suit for declaration that he is the owner of the property and the petitioners may be restrained by an order of injunction, and they may be directed to re-convey the property to his name.
8. The Trial Court, after a full fledged trial, by Ext.P3 judgment, decreed the suit as prayed for. The petitioners assailed Ext.P3 judgment, by filing A.S. No.42/2007 before the Appellate Court. The Appellate Court, by Ext.P4 judgment, allowed the appeal and set
OP(C) NO.306 OF 2013 8 aside Ext.P3 judgment, and dismissed the suit. Even though the respondent had filed R.S.A.No.470/210 before this Court, through a next friend, this Court declined to grant leave to the next friend to sue on behalf of the respondent and consequently the Second Appeal was also dismissed by Ext.P5 judgment. Thus, as the matters stand now, there is no decree and there is no suit, relegating the parties back to the pre-suit stage.
9. The petitioners have alleged that subsequent to
the passing of Ext.P3 judgment and before the filing of the appeal, the respondent’s niece had trespassed into the plaint schedule property, on the strength of Ext.P3 judgment, and is in possession of the property. In the light of the dismissal of the suit by Ext.P4 judgment, ‘status quo’ ante has to be restored, by restitution, and the petitioners have to be put in possession of the property.
10. On an appreciation of the pleadings and materials on record, I do not find any material to OP(C) NO.306 OF 2013 9 substantiate that the petitioners were in possession of the property as on the date of passing of Ext.P3 judgment.
11. Admittedly, the petitioners have not filed any counter claim or suit as against the respondent for a decree of injunction or recovery of possession or any
other relief. Furthermore, nothing prevented the petitioners from seeking a stay of Ext.P3 judgment, during the pendency of the appeal. The allegation that the respondent’s niece trespassed into the property after Ext.P3 judgment cannot be used as a tool to evict the respondent from the property. Unless, there is proof, that the respondent trespassed into the property making use of Ext.P3 judgment, there is no question of ordering restitution, by ordering the respondent to be evicted from the plaint schedule property. By the impugned
order, the court below has rightly declined to order
restitution. I do not find any error or illegality in Ext.P9
order warranting interference by this Court under Article
227 of the Constitution of India. It is made clear that, the OP(C) NO.306 OF 2013 10 petitioners had filed the original petition on 21.1.2013 and this Court had, by order dated 23.01.2013, directed the Court of the Principal Munsiff, Thiruvananthapuram to keep E.P. No.285/2012 alive in O.S. No.633/2005 until further orders. The said order was in force till today. Resultantly, without prejudice to the right of the petitioners to work out their remedies as per the procedure established by law, the original petition is dismissed.
Sd/- C.S.DIAS, JUDGE rmm18/10/2022 OP(C) NO.306 OF 2013 11 APPENDIX PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF PLAINT IN O.S.633/2005 ON THE FILE OF THE MUNSIFF COURT, TRIVANDRUM Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS/PETITIONERS IN EXT.P1 Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 31.08.2006 IN O.S. NO.633/2005 Exhibit P4 A TRUE COPY OF THE JUDGMENT IN A.S. NO.42/2007 BY THE APPELLATE COURT Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 17.12.2010 IN RSA FILED BY THE RESPONDENT Exhibit P6 TRUE COPY OF THE CASE DIARY IN CRIME NO.52/2007 Exhibit P7 TRUE COPY OF THE EXECUTION PETITION NO.285/2012 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, TRIVANDRUM Exhibit P8 TRUE COPY OF THE AFFIDAVIT AND PETITION IN E.A NO.780/2012 FILED BY THE RESPONDENT. Exhibit P6 TRUE COPY OF THE ORDER DATED 29.11.2012 EXT.P8