JACINTHA SWETHA D'SOUZA Vs. LOUISA D'SOUZA

JUDGEMENT

(1.) The petitioners are before this Court as objectors against the order passed by III Additional District and Sessions Judge, D.K., Mangalore in RRP No.9/2013.

(2.) Originally, Eviction Petition was filed by the respondents as landlords/co-owners for eviction against one Balakrishna and these petitioners as respondents 2 to 4 in respect of premises situated at 1-9-597, Urva Stores, Kandettu, Ashoknagar, Mangalore. The Court below decreed the petition against Balakrishna and also these petitioners. It appears, thereafter respondents filed Execution Petition in Ex.P.No.117/2010 before the Executing Court seeking to execute the decree for possession. The petitioners herein filed an application before the Executing Court Under Order 21 Rule 91 of CPC seeking for clarification and to remand the matter. The Executing Court dismissed the application on 24.06.2013 holding that the objectors have failed to prove their case and the decree holders have successfully disproved the objectors' case by producing cogent and acceptable evidence and that the objectors have not entitled for relief. Thereafter, petitioners filed revision petition before the Executing Court and the same was also dismissed. Aggrieved by the order of the Executing Court and Revision Court, the revision petitioners are before this Court.

(3.) The learned Counsel for the petitioners contend that eviction is sought only against respondent No.1 Balakrishna and not against the petitioners herein. The petitioners are residing in the portion of the property since several years and they are the co-owners and decree for eviction is not passed against them. However, this aspect has been negatived by the Executing Court. Against this order, RRP No.9/2013 was preferred before the III Additional District and Sessions Judge, D.K., Mangalore. The revision Court after re-appreciation of the material on record held that the petitioners herein are unable to produce any document to prove their co-ownership and confirmed the order of the Executing Court and in Para 19 of the Order, it held that the evidence on record did not point out and which has been admitted by the respondents No.1 to 4 in the original proceedings that the petition schedule premises consists of two portions, one is in occupation of Mr.Balakrishna and another is in occupation of 1st petitioner and further held that what is the portion of the premises bearing D.No.1-9-597/1, 2, 3 is of no consequence. That apart, the judgment debtors have no legal right to invoke the provision under Order 21 Rule 97 of CPC as the original judgment debtors have no legal right to take any independent plea other than what has been pleaded in HRC No.12/2005.