UPPERI JANAKI Vs. BALAKRISHNAN NAMBIYAR

JUDGEMENT

(1.) The 2nd respondent in I. A. No. 432 of 1976 in E. P. No. 34 of 1976 in O. S. No. 470 of 1969 of the Munsiff's Court, Taliparamba is the appellant. The suit is for recovery of possession of property covered by a renewed marupat dated 27-5-1937 executed by one Elichi alias Chemarathi in favour of the plaintiff's predecessor in interest. The document is a composite deed; a portion of the property 13 1/2 X 24 six feet koles in extent was demised in Kuzhikanom and the right to take the usufructs of the properly alone was given in regard to the remaining extent. The total extent of the property is said to be 36 1/2 X 58 six feet koles. The first respondent in I. A. No. 432 of 1976 is the only defendant in the suit. He is the son of the executant of the marupat, namely Elichi alias Chemarathi. The property involved in the suit in respect of which recovery was sought is only the extent excluding the portion which was admittedly demised in kuzhikanom. The defendant 1st respondent raised a contention that the entire property is held as per the marupat in kuzhikanom right by his mother Elichi alias Chemarathi, that be has fixity of tenure in respect also of the property sought to be recovered and he is also entitled to all the rights of a tenant under the Land Reforms Act. The marupat sued on was marked in the suit as Ext. A2 and the prior marupat which was renewed under this document was marked as Ext. A1. The Trial Court overruled all the contentions of the defendant and decreed the suit for recovery of possession on 22-6-1972. There was an appeal -- A. S. No. 201 of 1972 --by the first respondent in the District Court, Tellicherry. The appeal was dismissed confirming the decision of the Trial Court. There was a further appeal to this Court as S. A. No. 1215 of 1972. This Court also held that the suit property is held under an arrangement for appropriating the usufructs only of the trees in the property and therefore the plaintiff is entitled to recovery of possession. The decrees of the courts below were accordingly confirmed. Thus the decree for recovery of possession of the suit property against the first respondent in I. A. No. 432 of 1976 has become final.

(2.) The plaintiff as per E. P. No. 34 of 1976 applied for execution of the decree and for delivery of possession of the property. When the Amin went to deliver the property, resistance was offered by the 2nd respondent appellant whereupon the plaintiff filed the present application I. A. No. 432 of 1976 under O.21 R.97, CPC for the removal of obstruction of the 2nd respondent and for delivery of the property to him. On notice issued to the 2nd respondent she filed a statement contending that since she is not a party to the decree, the decree is not binding on her, the property is held under the marupat dated 27-5-1937 executed by Elichi alias Chemmarathi, wherein it is wrongly stated that the rights created under the marupat is only a melpattom that the document evidences a kuzhikanom lease in respect of the suit property also. Elichi alias Chemmarathi had four children and on her death her tenancy rights in the property devolved on her children including the mother of the 2nd respondent by name Faidal. She is, therefore, entitled to remain in possession of the property as kuzhikanomdar in her own right as one of the legal representatives of deceased Elichi alias Chemmarathi. It may be stated that the petition I. A. No. 432 of 1976 by the decree holder for removal of obstruction does not state that he made due enquiries in regard to the legal representatives of Elichi alias Chemmarathi and that he was satisfied that the first respondent alone was her legal heir. On the other hand, the contention in the petition is that the obstructor has no right in the property, and she is being set up by the judgment debtor to defeat and delay the decree obtained against him as early as in 1972 and confirmed in appeal and second appeal.

(3.) On the plea of tenancy raised by the obstructor 2nd respondent the executing court referred the question of tenancy to the land Tribunal, Taliparamba. The Land Tribunal returned a finding dated 8-1-1977 to the effect that the obstructor 2nd respondent is a tenant entitled to fixity of tenure. This finding is based on a prior order of the same Land Tribunal in C. A. No. 1470 of 1976 which was marked by the Tribunal as Ext. B1 and the purchase certificate issued to the 2nd respondent was marked as Ext. B3. The executing court, as required by Sub-s.(5) of S.125, accepted the finding of the Land Tribunal and dismissed the application for removal of obstruction holding that the obstructor is a tenant entitled to fixity of tenure under the Kerala Land Reforms Act. The decision of the executing court is dated 28-2-1977 by which time the Code of Civil Procedure Amendment Act, 104 of 1976 bad come into force. O.21 R.103, C. P. C. as amended provides that an Order under R.98 on an application under R.97 of O.21 shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. The decree holder accordingly filed an appeal before the Sub Court, Tellicherry.