CHIRAYIL SUGATHAN Vs. ASEES

JUDGEMENT

(1.) Can a person claiming as a co-owner obstruct the delivery of a building, pursuant to an order of eviction obtained by another co-owner, is the question to be decided in this original petition filed under Article 227 of the Constitution.

(2.) The petitioner obtained an order of eviction against one Sadanandan, under the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, the 'Act'). The order of eviction attained finality by dismissal of the revision (R.C.R.No.129/2016) by this Court as early as on 23/3/2017. The petitioner, thereafter, filed an execution petition. It appears that several attempts have been made to obtain delivery through the execution court including with the aid of the police. Respondents 1 to 3 herein filed an execution application under Rule 97 & 98 of Order XX1 of the Code of Civil Procedure. Their claim was that they have a share in the tenanted premises and the petitioner herein is only a co-owner along with them. According to them, the rent control petition was filed without their consent and they are not interested in evicting the tenant. The Rent Controller, after hearing both sides, came to the conclusion that the respondents 1 to 3 are the co-owners and the tenanted premises being a dwelling house cannot be claimed by a person (petitioner), not being the member of the family of the original owner of the building, and such person is not entitled to get possession of the dwelling house. This finding was made with reference to Sec. 44 of the Transfer of Property Act. Challenging this order, this original petition was filed.

(3.) The first objection that was raised before this Court is on the maintainability of the original petition in the light of the remedy available to the petitioner to challenge the impugned order in appeal, as provided under Rule 103 of Order XXI CPC. We shall answer the objection relating to maintainability of the original petition at the later stage, after adverting to the nature of the right that can be claimed by a co-owner in objecting to the delivery of a building obtained by another co-owner.