Kerala High Court
O.V.Alexander vs Treesa Mohanan@ Lilly on 6 February, 2024
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
CRP NO. 745 OF 2019
AGAINST THE ORDER/JUDGMENT OS 414/2010 OF PRINCIPAL
MUNSIFF COURT, KOCHI
REVISION PETITIONER/S:
O.V.ALEXANDER
AGED 58 YEARS
S/O.VINCEN, HOUSE NO.1/1081, (1/934)
ODATHAPRAMBU, KUNNUMPURAM, NORTH THAMARAPARAMBU
DESOM, FORTKOCHI VILLAGE, KOCHI TALUK
BY ADVS.
GEORGE SEBASTIAN
SRI.ARUN LUCKOSE ABRAHAM
RESPONDENT/S:
1 TREESA MOHANAN@ LILLY
AGED 70 YEARS
W/O.MOHANAN, HOUSE NO.1/1081,(1/934)
ODATHAPRAMBU, KUNNUMPURAM, VADAKKETHAMARAPARAMBU
DESOM, FORT KOCHI VILLAGE, KOCHI TALUK-682002
2 ANUMOL.K.M
AGED 29 YEARS
D/O.MOHANAN, HOUSE NO.1/1081,(1/934)
ODATHAPRAMBU, KUNNUMPURAM VADAKKETHAMARAPRABU
DESOM, FORTKOCHI VILLAGE, KOCHI TALUK-682002
3 MARY JOSHY
AGED 54 YEARS
W/O.E.P.JOSHY, HOUSE NO.1/1081, (1/934)
ODATHAPRAMBU, KUNNUMPURAM, NORTH THAMARAPARAMBU
DESOM, FORTKOCHI VILLAGE, KOCHI TALUK-682002
BY ADVS.
SRI.S.GOPAKUMAR
SMT.SINDHU SANTHALINGAM
SRI.A.D.SHAJAN
SMT.T.M.BINITHA
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
11.01.2024, THE COURT ON 06.02.2024 DELIVERED THE FOLLOWING:
CRP No.745 of 2019
-2-
ORDER
Dated this the 06th day of February, 2024
The revision petitioner is the 1st judgment
debtor in E.P.No.137 of 2017 in O.S.No.414 of
2010 of the Principal Munsiff's Court, Kochi. The
suit was filed by respondents 1 and 2 for a
declaration that they have perfected their title
over plaint B schedule property by virtue of
their exclusive, open, continuous and
uninterrupted possession and occupation against
the lawful title of the defendants. The other
prayer in the suit was for a perpetual injunction
restraining the defendants from interfering with
the peaceful possession and enjoyment of the
plaintiffs over B schedule item and from
dispossessing the plaintiffs otherwise than
through due process of law. In support of the
prayers, the following averments were made in the
plaint;
Plaint A schedule item is 5.25 cents with a
residential building in Sy.No.259/1 in Fort Kochi
Village. Plaint B schedule item is the northern
room in that house occupied by the plaintiffs and
the property having an extent of one cent in
which the said room is situated. Plaint A
schedule item originally belonged to late Simon
Vincent and his wife, the parents of the first
plaintiff and defendants 1 and 2. The second
plaintiff is the daughter of the first plaintiff.
The plaintiffs had been residing in the house
situated in plaint A schedule. Simon Vincent and
his wife executed Ext.P8 gift deed dated
16.02.1993, in respect of Plaint A schedule
property, in favour of defendants 1 and 2. Simon
Vincent died on 15.06.1994. Thereafter,
defendants 1 and 2 propounded Ext.P8 gift deed on
17.07.1994 and, claiming absolute title over
plaint A schedule property, demanded the
plaintiffs to vacate from the house. Instead of
vacating, the plaintiffs shifted to a room in the
northern portion of the building and from then
onwards, were in uninterrupted possession of that
room and the one cent of land in which the room
is situated.
2. The suit was dismissed by the trial
court and that judgment was affirmed by the I st
appellate court. Thereupon, the plaintiffs filed
second appeal before this Court and as per the
judgment in RSA No.1501 of 2013, the second
appeal was allowed and the suit decreed in part
by declining the relief of declaration and
granting the prayer for perpetual injunction.
3. Sometime later, respondents 1 and 2
filed execution petition before the Munsiff's
Court seeking arrest and detention of the
defendants, revision petitioner and third
respondent, for wilful disobedience of the
judgment and decree by their illegal interference
with the peaceful possession and enjoyment of the
decree holders over plaint B schedule. In the
execution petition, it is alleged that the
judgment debtors were attempting to carry out
some construction over plaint B schedule
property. The judgment debtors filed objection
stating that they had not done anything to
disturb the occupation of the one room in one
cent claimed by the decree holders. It was
submitted that the judgment debtors had
partitioned the property equally and B schedule
room and the appurtenant one cent is in the
portion allotted to the revision petitioner. It
was also submitted that the revision petitioner
wanted to construct a bathroom with latrine on
the north-eastern corner of the property. For
that, a coconut tree had to be cut to facilitate
the bringing of construction materials to the
site. It was finally contended that the decree
holders are not entitled to seek relief without
demarcating the one room with one cent of land
occupied by them. By the impugned order, the
execution court rejected the contentions and
proceeded to hold that the judgment debtors have
wilfully disobeyed the injunction and decree
passed in the second appeal and is therefore
liable to be prosecuted under Order 21 Rule 32 of
the Code of Civil Procedure.
4. Learned Counsel for the revision
petitioner assailed the order on the following
grounds;
(i) The execution petition is silent with
respect to the alleged violation and the manner
in which the peaceful possession of the decree
holders was interfered with.
(ii) The order directing detention, based on
the allegation of violation, cannot be sustained
without identifying the decree schedule
property.
(iii) Even in cases of violation, detention
cannot be ordered unless the violation and
disobedience is found to be wilful.
5. As regards the first ground, it is
submitted that the only averment in the execution
petition is that the judgment debtors are
attempting to carry out some construction over
plaint B schedule. It is contended that the court
below committed gross illegality in ordering
detention of the judgment debtors based on such a
vague allegation. In support of this contention,
reliance is placed on the decisions in Padmakshi
Amma v. Hashim [1999 KHC 54] and Chellamma and
Others v. Santhimadam, Sivakshetram, Venjaramoodu
and Others [2009 (4) KHC 985].
6. With respect to the second ground of
challenge, i.e, identity of the property not
being established, attention is drawn to the
Advocate Commissioner's report filed in the
execution petition wherein the Commissioner has
noted that B schedule was identified based on the
boundary descriptions and its extent can be
ascertained only on measurement. Referring to the
judgment of this Court in RSA No.1501 of 2013, it
is submitted that B schedule is declared to be
the northern room in the building in A schedule
occupied by the plaintiffs and the property
having an extent of one cent in which the said
room is situated. The coconut tree cut stood on
the extreme north-eastern corner of the property,
which portion is not part of the one cent claimed
by the decree holders. Reliance is placed on the
decision in Abraham v. Chellan and Others [2009
(1) KHC 1335] to contend that, for considering
whether the decree of injunction with respect to
an immovable property is violated, it is
imperative to establish the identity of the
property with precision.
7. In support of the third ground, reliance
is placed on the decisions in Keeran v. Mohanan
and Others [1980 KHC 10], Padmanabhan v.
Narayanan [1987 KHC 431] and Raman Nambissan v.
Damodaran Nambissan [1995 KHC 187], wherein it
has been held that the judgment debtor cannot be
detained in civil prison on a mere finding that
the injunction decree is violated or disobeyed,
without holding that the judgment debtor had
wilfully failed to obey the decree. It is
submitted that mere cutting of a coconut tree and
stacking of construction materials in the
revision petitioner's property cannot be termed
as wilful disobedience, more so when the decree
holders failed to establish as to how those acts
of the revision petitioner affected their
peaceful possession.
8. Learned Counsel for respondents 1 and 2
contended that the grounds urged by the revision
petitioner are liable to be discarded in view of
his admission in the cross-examination that he
had cut the coconut tree and stacked building
material in the property. Moreover, the
boundaries of B schedule is clearly described.
Insofar as the boundaries are clear, it is not
necessary to measure the property for the purpose
of deciding whether the injunction decree is
violated or not. No explanation as to how the
peaceful possession is affected is required when
a standing coconut tree is cut and building
materials stacked, affecting the free movement of
the decree holders. It is hence contended that
the impugned order warrants no interference.
9. Although various grounds are raised
against the impugned order, for the purpose of
deciding this civil revision petition, the
consideration is being confined to the ground
regarding failure to identify the decree schedule
property. It is true that going by the
description of the boundaries of B schedule, the
coconut tree that was cut and the area where the
construction materials are stacked would fall
within the boundaries. At the same time, based on
the case put forth by respondents 1 and 2, this
Court had declared the decree B schedule property
to be the one room on the northern corner and the
one cent in which the that room is situated.
Being so, the revision petitioner cannot be
proceeded against for violating the injunction
decree, without ascertaining whether the alleged
acts of violation were committed inside the
decree schedule property. For that, the decree
schedule one cent, including the room occupied by
respondents 1 and 2 will have to be measured and
demarcated. As held by this Court in Abraham
(supra), to decide whether a decree of injunction
in respect of an immovable property is violated,
it is imperative to establish the identity of the
property with precision. Insofar as the decree
schedule property is not identified and
demarcated in the present case, the court below
went wrong in finding the revision petitioner to
have violated the injunction decree and ordering
civil detention as per Order 21 Rule 32 of CPC.
For the aforementioned reasons, the civil
revision petition is allowed and the impugned
order is set aside. The court below shall proceed
with the execution petition after the decree
schedule property is identified and demarcated by
the Advocate Commissioner. The rest of the
contentions urged on behalf of the revision
petitioner can be raised before the execution
court.
Sd/-
V.G.ARUN
JUDGE
Scl/
