Subramanian & Ors. v. Vijayalakshmi & Ors.

Judgment

2. SUBRAMANIAN, S/O. PULIAMBRA SANKARAN, MULLASSERY AMSOM AND DESOM, CHAVAKKAD TALUK. AJITH KUMAR, S/O. SUBRAMANIAN DO. DO. DO. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENT-JJUDGMENT DEBTOR-RESPONDENTS DECREE HOLDERS: ----------------------------------------------------------------------

5. VIJAYALAKSHMI, D/O. PULAYANTHARA KUNJU KUNJU, PERINGANNUR DESOM, PERINGALAM VILLAGE, THRISSUR TALUK. JANAKI, W/O. LATE ARUMUGHAN, PATTIKKARA DESOM, CHIRANELLUR VILLAGE, THALAPPALLY TALUK. ASOKAN, S/O. LATE ARUMUGHAN, DO. DO. PRABHAKARAN, S/O. DO. DO. DO. ARVANINDAKSHAN, S/O. DO. DO. DO.

8. DIVAKARAN, S/O. DO. DO. DO. DO. ANITHA, D/O. DO. DO. DO. DO. AMBUJAKSHAN, S/O. DO. DO. DO.

BY ADV. SRI.P.VIJAYA BHANU SRI.M.GEORGE THOMAS SRI.C.A.CHACKO THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/02/2008 ALONG WITH RFA NO. 265 OF 2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR, J. = = = = = = = = = = = = = = = = = = = E.F.A. NO.19 OF 2000 AND R.F.A. NO.265 OF 2006 = = = = = = = = = = = = = = = = = = = Dated this the 26th day of February, 2008 J U D G M E N T -------------------- These two appeals arise from a common judgment of the trial court which disposed of three suits and an execution application. E.F.A. NO.19 OF 2000

2. This appeal arise from an order passed by the Subordinate Judge's Court, Thrissur, dismissing E.A. No.1040 of 1991 in O.S. No.597 of 1979. The application was filed by the appellants, who were strangers to the decree and execution proceedings, under Order XXI Rule 99 of the Code of Civil Procedure for re-delivery of the property which was stated to have been taken delivery from their possession in execution of the decree passed in O.S. No.597 of 1979. The affidavit filed in support of the application contains the following averments. The second applicant is the son of the first applicant. As per the decree passed in O.S. No.597 of E.F.A. NO.19 OF 2000 & R.F.A. NO.265 OF 2006 -: 2 :- 1979 there was a direction to deliver the suit property to the decree holder. The property scheduled in the plaint as well as in the decree is the northern 3 acres of property. First respondent was having an extent of 5.99 acres of land as per document No.1373 of 1978 of the Mundoor Sub Registry Office. Southern portion of the entire property was owned by the appellants and other strangers. First appellant purchased

42.5 cents of land comprised in Sy.No.269/3, 69 cents of land in Sy.No.269/4, 2 cents of land in Sy.No.269/5, 40 cents of land in Sy.No.320/3 and 3 cents of land in Sy.No.270/5. The second appellant along with his brother Udayakumar had purchased 36.6 cents in Sy. No.269/4 and 16.4 cents of land in Sy. No.270/5 and they are in absolute possession of the same. The property purchased by the appellants was not covered by the decree, but the decree holder, playing fraud on the court, had taken delivery of the property which was in the possession of the appellants instead of taking delivery of 3 acres of property on the northern side. A plot of land touching north-south was now taken delivery. Though the actual extent of property comprised in Sy.No.269/1 is 93 cents, E.F.A. NO.19 OF 2000 & R.F.A. NO.265 OF 2006 -: 3 :- in the sale deed executed by the court below, the extent is shown as 1.16 acres. The decree holder is entitled to get delivery of only 3 acres of property on the northern side of the suit property. Though the property is in the actual physical possession of the appellants, in view of the delivery kaichit, it is necessary to order re-delivery of the property. Hence the execution application under Order XXI Rule 99 CPC for re-delivery.

3. Decree holder filed an objection contending that the property conveyed to him is specifically described in the schedule to the plaint and also in the decree. It was further contended that there was an agreement for sale between the decree holder and the first respondent and the first respondent did not execute the sale deed. So he filed a suit for specific performance and that suit was decreed. During the pendency of the suit, to defeat the interest of the decree holder, first respondent sold the property to her husband and others. It was contended that appeal filed against the decree was dismissed and court had executed a sale deed. On several occasions Amin was deputed to effect delivery and finally E.F.A. NO.19 OF 2000 & R.F.A. NO.265 OF 2006 -: 4 :- delivery was effected with the help of police. It was contended that the decree holder is in possession of the property delivered over to him and the application was filed in collusion with the first respondent to harass the decree holder. It was contended that at no point of time the appellants were in possession of the property and they did not get any right or possession over the said property. The averment that the actual extent of the property comprised in Sy.No.269/1 was 93 cents was not correct. It was contended that the first respondent had fabricated documents to defeat the interest of the decree holder. The property was identified with the help of Taluk Surveyor. There was no bona fides in the application filed by the appellants.

4. Execution Application No.1040 of 1991 was tried along with O.S. No.1021 of 1991 and two other suits. The court below dismissed the execution application. The E.F.A. is filed challenging the order dismissing the execution application.

5. Appellants filed O.S. No.1021 of 1991 also for injunction restraining the respondents from trespassing into E.F.A. NO.19 OF 2000 & R.F.A. NO.265 OF 2006 -: 5 :- the suit property which was in their possession. The averments in that plaint and the execution application were identical. In that suit also the decree holder filed written statement contending that there was an agreement for sale between himself and the first respondent. Since the first respondent refused to execute the sale deed, he had to file a suit for specific performance and in execution of the decree, property was delivered over to him and hence the appellants are not entitled to get any right over the property.

6. During the pendency of the proceedings decree holder-second defendant died and additional defendants were impleaded. They filed an additional written statement reiterating the contentions made in the original written statement.

7. One of the children of the first respondent- Vijayalakshmi filed O.S. No.292 of 1997 for a decree of permanent prohibitory injunction impleading the children of the deceased decree holder in the other suit and also others. Two other children of first respondent filed O.S. 328 of 1997 for a decree of permanent prohibitory injunction. All the three E.F.A. NO.19 OF 2000 & R.F.A. NO.265 OF 2006 -: 6 :- suits and the execution application were consolidated and tried together in view of the order passed by the District Court, Thrissur in T.O.P. No.10 of 1999. The court below dismissed all the three suits. The plaintiffs in O.S. No.1021 of 1991 has filed A.S. No.44 of 2000 before the District Court, Thrissur, challenging the decree and common judgment passed in O.S. No.1021 of 1991. Since all the proceedings were disposed of by a common judgment, A.S. No.44 of 2000 was withdrawn to this Court and the same was renumbered as R.F.A. No.265 of 2006. Both the appeals were heard together and disposed of by this judgment.

8. Learned counsel appearing for the appellants argued that the predecessor in interest of respondents 2 to 8, who was the original decree holder, played fraud on the court and attempted to take delivery of the property which was not the subject matter of the suit at all. It is argued that the agreement for sale was in respect of northern 3 acres of property from 5.99 acres of property belonging to the first respondent and in that agreement of sale there was no mention of any survey numbers. It is argued that in O.S. E.F.A. NO.19 OF 2000 & R.F.A. NO.265 OF 2006 -: 7 :- No.597 of 1979 the deceased plaintiff-decree holder without any factual basis and according to his whims and fancies included 4 survey numbers. In the sale deed, a property which was entirely different from the decree schedule was shown and the learned Sub Judge simply executed such a document and with the help of that document the decree holder cannot be allowed to take delivery of any property. Learned counsel appearing for respondents 2 to 8 strenuously argued before me that the property taken delivery by the decree holder was the property scheduled in the plaint and decree and the first respondent with a mala fide intention of causing obstruction to the decree holder executed documents which were the subject matter of the suit.

9. The question arising for consideration is what exactly was the property which the decree holder sought to take delivery and he took delivery.

10. There are certain admitted or proved facts. First respondent-Viajayalakshmi was the owner of 5.99 acres of land. She hypothecated the said property to a Co-operative Society and obtained a loan. She committed default in making E.F.A. NO.19 OF 2000 & R.F.A. NO.265 OF 2006 -: 8 :- re-payment of the loan. The Co-operative Society initiated arbitration proceedings as ARC Nos.1643, 1644 and 1645 of

1974. Awards were passed. The Society filed E.P. Nos.84, 92 and 93 of 1975 for realisation of the decree debt. The property hypothecated was brought to sale by the court and sold in public auction. The Society itself purchased the property and sale sannad was issued. Subsequently, first respondent approached the Society and the Society had agreed to re-convey the property to the first respondent provided she repay the entire amount due to the Society. She had not enough funds to pay off the amount to the Society. So the first respondent entered into an agreement with late Shri Arumughan, the decree holder and predecessor in interest of respondents 2 to 8, by which the said Arumughan had agreed to pay the amount due to the Society. He paid an amount of Rs.27,348.55 to the Society. On Such deposit, the Society executed Exhibit A6 sale deed (marked in O.S. No.1021 of 1991) in favour of first respondent-Vijayalakshmi. Schedule of the property shows that the property re-conveyed was comprised in Sy.Nos.269/1, 269/3, 269/4, 269/5, 270/5, 320/3 E.F.A. NO.19 OF 2000 & R.F.A. NO.265 OF 2006 -: 9 :- and 340/5. Exhibits A6 shows that in Sy.No.269/1 first respondent had 93 cents of land, in Sy. No.269/3 71 cents, in Sy. No.269/4 1.58 acres, in Sy. No.269/5 73 cents, in Sy. No.269/9 13 cents, in Sy. No.270/5 94 cents, in Sy. No.320/3 59 cents and in Sy. No.240/5 38 cents. On the very same day Vijayalakshmi entered into Exhibit A11 agreement for sale with Arumughan. In the agreement though space was left for writing survey numbers, no survey number was stated. It was stated that Vijayalakshmi was having 5.99 acres of land and the entire property was brought to sale by the Society, sold in auction and purchased by the Society itself. It was also agreed that the decree holder had agreed to pay Rs.27,500/- to the Society and on payment of such amount, the Society will re-convey the property to Vijayalakshmi. It was also agreed that decree holder paid Rs.27,500/- on 10.3.1978 and as and when the Society executes the sale deed, the northern 3 acres of land including the building will be conveyed to him. It is very pertinent to note that in Exhibit A11 agreement for sale no survey number was mentioned and in fact the space left for writing survey number is still remaining blank and the E.F.A. NO.19 OF 2000 & R.F.A. NO.265 OF 2006 -: 10 :- agreement was to sell the northern 3 acres of the entire 5.99 acres of land. The relevant description in the agreement reads as follows: "മ(cid:3)പട(cid:6) സ(cid:9)ഖ(cid:11) സ(cid:9)ഘത(cid:6)ല അടചത(cid:6)ന(cid:19) ത (cid:20)ടര(cid:22)(cid:23) സ(cid:9)ഘത(cid:6)ല (cid:19)(cid:6)(cid:22)(cid:24)(cid:9) ട(cid:6) വഹകള ത(cid:29)റ (cid:20) തര (cid:20)ന !ള അത(cid:6)ല വടക (cid:20) ഭ!ഗ(cid:9) നക!ണ(cid:23) പ (cid:20)രയ(cid:6)ര(cid:6)ക (cid:20)(cid:22) സല(cid:9) ഉളപനട 3 ഏകക പറ (cid:20)(cid:9) പ(cid:20)ര ച(cid:3)യങള (cid:20)(cid:9) ഒ(cid:22)!(cid:9) പ!ര2(cid:6) രണ!(cid:9) പ!ര2(cid:6) മപര(cid:6)മല! രണ!(cid:9) (cid:19)(cid:9)കപ(cid:23) ക!രന (cid:19)(cid:6)ശയ(cid:6)ക (cid:20)(cid:22) ആള (cid:20)നട മപര(cid:6)നല! ത(cid:29)റ(cid:20)(cid:9) കകവശവ(cid:20)(cid:9) നക!ട(cid:20)ക(cid:20)വ!ന (cid:19)(cid:6)ശയ(cid:6)ക (cid:20)കയ(cid:20)(cid:9) സമത(cid:6)ക (cid:20)കയ(cid:20)(cid:9) നചയ(cid:23)ത(cid:6)2 (cid:20)ളത!ക(cid:20)(cid:22)(cid:20) Vijayalakshmi did not execute the sale deed as agreed. Arumughan filed O.S. No.597 of 1979 from which the E.F.A. arises. Copy of the plaint is produced and marked as Exhibit A12. A reading of the description given in Exhibit A12 shows that the property scheduled is not exactly the property described in Exhibit A11 agreement for sale. In addition to the description of the property given in the agreement for sale, 4 survey numbers were stated in the plaint. Those survey numbers were 269/1, 269/5, 270/5 and 240/5. Though E.F.A. NO.19 OF 2000 & R.F.A. NO.265 OF 2006 -: 11 :- four survey numbers were stated, there was no statement as to what exactly was the extent of property comprised in each survey numbers or what exactly was the extent of property agreed to be conveyed from each survey numbers. As I have already stated, Sy.No.269/1 had an extent of 93 cents, Sy.No.269/5 had 73 cents, Sy. No.270/7 had an extent of 94 cents and Sy. No.240/5 had an extent 38 cents. The suit was decreed. Appeal filed against that decree was also dismissed. Still Vijayalakshmi did not execute sale deed. So the decree holder produced a draft sale deed which was approved. The court below executed Exhibit A7 sale deed. In Exhibit A7 description of the property given was entirely different. It was stated that Sy.No.269/1 was having an extent of 1.16 acres and the entire property was to be conveyed. It was stated that in Sy.No.269/5 the property comprised is 73 cents, but in the deed it was stated as 53 cents. As per the description given, Sy.No.270/5 was having an extent of 94 cents and the entire 94 cents were stated to be conveyed. In Sy.No.240/5 the extent of land shown was 38 cents and that 38 cents were stated to be conveyed. As I have already E.F.A. NO.19 OF 2000 & R.F.A. NO.265 OF 2006 -: 12 :- stated in the agreement for sale those survey numbers were not mentioned. The learned Sub Judge acted mechanically without any application of mind and approved the sale deed. The learned Sub Judge did not even bother to compare the description of property in the agreement for sale, plaint or in the schedule to the decree. The learned Sub Judge ought note have approved the draft sale deed at all. Since the description of the property given in the sale deed is not in conformity with that mentioned in the agreement for sale, no value can be given to the extent of the property which is stated to be conveyed under each survey numbers in Exhibit A7 sale deed. So irrespective of the description given in Exhibit A7 sale deed, the decree holder is entitled to take delivery of the only northern 3 acres of land including the building from the total 5.99 acres of property. The execution court had not considered this aspect at all. Decree holder had admitted that on several occasions the Amin visited the property, but he was unable to identify the property. In the report of the Amin he had given details of the area under each survey numbers. Surveyor had given 4 survey numbers and it E.F.A. NO.19 OF 2000 & R.F.A. NO.265 OF 2006 -: 13 :- was recorded that the total extent was 1.20 hectares. It was also stated that as per the document the area conveyed was

1.213 hectares. The Amin himself had stated that that property could not be identified at all. It is to be noted that the appellants are not bound by the decree or the sale deed executed by the court. Merely because the decree holder had managed to get a sale deed executed by the court, that property cannot be delivered unless a decree was granted for that property. No attempt was made by the appellants or by the decree holder to get the property covered by Exhibits A6, A11 and A12 plaint and the decree identified. The proper procedure ought to have been was to depute a Commissioner with the help of a competent Surveyor to locate and identify the property covered by Exhibit A6, the plaint and decree and then demarcate the northern 3 acres including the building. If, as a matter of fact, the property claimed by the appellants does not form part of that 3 acres so identified, they are entitled to get re-delivery of the same. So the order passed by the executing court dismissing E.A. No.1040 of 1991 is unsustainable and liable to be set aside and the application is E.F.A. NO.19 OF 2000 & R.F.A. NO.265 OF 2006 -: 14 :- to be reconsidered. For that purpose, that application is to remanded. R.F.A. NO.265 OF 2006

11. In this case, the grievance of the appellants is that a strip of land lying on the western side of the entire property was taken delivery by the decree holder and on the strength of that delivery, they were prevented from entering into the remaining portion of the property. 12 Going by the description given in the agreement for sale and plaint, the decree holder is not entitled to get any plot of land on the south of the northern 3 acres. He is not entitled to get a plot touching the southern boundary of the entire property. If, as a matter of fact, the property claimed by the appellants does not form part of the property to be delivered over to the decree holder, necessarily, O.S. No.1021 of 1991 is to be allowed. So the proper course open to me is to set aside the decree and judgment passed in O.S. No.1021 of 1991 and remand the case to the court below for fresh consideration.

13. Learned counsel appearing for respondents 2 to 8 E.F.A. NO.19 OF 2000 & R.F.A. NO.265 OF 2006 -: 15 :- submitted that if it is found that the description given in Exhibit A7 is not correct, they may be given an opportunity to effect necessary rectification.

14. In the result, both the appeals are allowed. The order passed by the court below dismissing E.A. No.1040 of 1991 is hereby set aside. The decree and the judgment dismissing O.S. No.1021 of 1991 are also set aside. Execution Application No.1040 of 1991 and O.S. No.1021 of 1991 are remanded to the court below. The court below is directed to take E.A. No.1040 of 1991 and O.S. No.1021 of 1991 back to file and dispose of the same afresh in accordance with law after giving both sides opportunity to adduce evidence, if so advised. It is open to the appellants to take out a commission to get the property covered by Exhibits A6, A11 and A12 identified to find out whether that was the property delivered. If such a request is made, the court below shall appoint a Commissioner to identify the property covered by the decree in O.S. No.597 of 1979 with the help of a competent Surveyor. I make it clear that this judgment will not be a bar for respondents 2 to 8 to get the description of E.F.A. NO.19 OF 2000 & R.F.A. NO.265 OF 2006 -: 16 :- the property in Exhibit A7 corrected in accordance with law, if the same is permissible. Parties are directed to appear before the court below on

28.3.2008. K. PADMANABHAN NAIR, JUDGE. K. PADMANABHAN NAIR, J. ===================== E.F.A. NO.19 OF 2000 AND R.F.A. NO.265 OF 2006 ===================== J U D G M E N T ------------------------------------------- 26TH FEBRUARY, 2008