SREEBALA AND ORS. Vs. EDWIN PEREIRA

JUDGEMENT

(1.) THE judgment debtors/respondents in E.A. No. 74 of 2009 in E.P. No. 359 of 2005 in O.S. No. 885 of 1960 on the file of the II Additional Munsiff Court, Thiruvananthapuram are the appellants. The said application was filed by the 22nd decree holder (the sole respondent in this proceedings) under Section 151 read with Order XXI Rule 97 of the Code of Civil Procedure, 1908 (in short, "the Code"). Prayer in the petition reads as follows:

(2.) THE appellants (judgment debtors) filed a counter affidavit contending that the petition is not maintainable. The property over which the appellants set up right, title and interest has been described in the schedule to the counter affidavit. According to them, they purchased the property by sale deed No. 872 of 1977 of Sub Registrar Office, Vithura. The property was purchased in the name of their mother, Saradamma, for and on behalf of the appellants. Subsequently a release deed was executed bearing No. 1488 of 1998. Third appellant purchased ten cents of property in survey No. 3/1 by sale deed No. 488 of 1983. Out of 2.88 acres of land in survey No. 3/1, 48 cents was sold by the appellants and the balance is held and owned by them in which building Nos. VI/627 and 628 were constructed by them and they are residing therein without any objection from anyone. Though the entire 2.40 acres was shared between the appellants, it was held as one block within which there are two independent houses. Neither the appellants nor their predecessors -in -interest were judgment debtors in the execution petition. The proceedings therefore is not binding on the appellants. Decree C schedule item No. 1 measuring 8.68 acres is lying on the east of the appellants' property measuring 2.10. acres. The property claimed by the appellants is not part of the decree schedule property. They claimed right over a property lying on the west of the decree schedule property which had not been measured by the Amin or any of the commissioners. The respondent has no right to evict the appellants from the property over which they lay a claim. The Amin did not report that the houses bearing Nos. VP 686 and 687 have been evicted pursuant to the decree. The Amin did not identify the properties. They raised serious challenge against the Amin's report and various commissioner's reports and sketches. The contention that they trespassed upon the property subsequent to eviction is false.

(3.) HEARD Sri K.P. Sreekumar, learned counsel for the appellants and Smt. Daisy A. Philipose for the respondent.