C RAJGOPAL Vs. C PARANKUSHAM

JUDGEMENT

(1.) This appeal arises out of the Judgement and decree dated 21.07.1992 passed by the learned Subordinate Judge, Medak in the claim petition in E.A.No.5 of 1984 filed in E.P.No.10 of 1983 in O.S.No.37 of 1969.

(2.) To avoid any confusion it is expedient to refer the parties as they are arrayed in the claim petition. The petitioner is the third party to the Suit, O.S.No.37 of 1969 filed on the file of Subordinate Judge Medak and the consequential E.P.No.10 of 1983 filed in execution of the decree passed therein. The first respondent filed the said suit for partition against the respondents 2 and 3 who are the defendants 1 and 2 respectively in the suit along with one Kanakamma. The said Kanakamma died during the pendency of the suit. The suit was dismissed at the culmination of the trial. The appeal in A.S.No.25 of 1970 filed by the plaintiff-appellant was allowed by a learned single Judge of this Court reversing the Judgement and decree in the suit. The Letters Patent Appeal No.5 of 1972 filed against the Judgement and decree passed in A.S.No.25 of 1970 was allowed. However, in view of the compromise entered into between the respondents 1 and 2 (who are the plaintiff and the first defendant therein) agreeing inter alia by the second respondent to give 1/6th share to the 1st respondent, although he was not entitled to receive, a decree was passed to that extent in terms of the compromise. Thus, out of the 1/3 share of the second respondent, 1/6th share was given to the 1st respondent (the plaintiff in the suit).

(3.) The 1st respondent filed a petition in I.A.No.363 of 1981 and eventually took possession of 1/6th share out of the second respondent's share pursuant to the final decree passed therein. The third respondent also filed I.A.No.363 of 1982 and eventually final decree was passed on 21.10.1982 in his favour. He filed E.P.No.10 of 1983 for execution. The property in question is a house bearing No.2-1-83 situate in Medak consisting of one room and kitchen. When the property was ordered to be delivered, the petitioner approached the executing Court through the claim petition in E.A.No.5 of 1984 mentioning inter alia that he was the owner and possessor of a portion of the house bearing No.2-1-83 consisting of one room and kitchen as he had been enjoying the said room and kitchen in his own right for more than 35 years to the knowledge of the respondents; and that he perfected his title by adverse possession by paying the tax collectively along with the respondents and, therefore, the decree in execution would not bind him. The petitioner further claimed that he came to know about the collusive decree in O.S.No.37 of 1969 only on 07.05.1983 and since he was not claiming any right through any of the parties to the suit and he was claiming independently on his own right, the decree in execution was illegal and unexecutable. He further claimed that the, respondent No.3 (second defendant) was not entitled to take possession of the suit house except symbolic possession and that too under due process of law and, therefore, he sought for a direction to the third respondent not to take possession of the suit property.