Sivakumar vs R. Devamony @ Many Amma and S. Rengaswamy

Justice Thomas P. Joseph

Admit. Following substantial question of law is framed for a decision:

Whether, appellant who is in occupation of the building in the plaint A schedule could be evicted by the respondents otherwise than by due process of law?

Respondents appear through counsel.

In view of the facts admitted before me, the decision I propose to take on the substantial question of law framed and as agreed by the learned counsel on both sides it is not necessary to call for entire records of the case.

The Second Appeal is brought from the judgment and decree of learned II Additional District Judge, Mavelikkara in A.S. No.31 of 2011 modifying the judgment and decree passed by the learned Munsiff, Kayamkulam in O.S. No. 160 of 2007.

Appellant/plaintiff raised various contentions regarding the suit property. The trial court granted a decree in favour of the appellant. In appeal at the instance of the respondents, the first appellate court modified the judgment and decree of the trial court. As it stands now, there is a decree restraining the respondents from forcibly evicting the appellant from room No. 327 in plaint B schedule. Appellant/plaintiff is aggrieved since there is no decree in his favour concerning plaint A schedule.

The learned counsel for the appellant has contended that plaint A schedule is 48 cents and that the appellant is residing in the building situated in the said 48 cents. It is further contended by the learned counsel that otherwise than by due process of law appellant could not be evicted from the building in the plaint A schedule. The learned counsel submits that the appellant is in settled possession of the said building so that even if the respondents are found to be the owner of the property where the building is situated, his eviction could only be by due process of law.

The learned counsel for the respondents submits that the claim of appellant as regards plaint A schedule is based on Exts.A1 and A2 alone while the 1st respondent has title over the property covered by Exts.A3 and A5 and Manikantan, who is not a party to the suit has title over the property covered by Ext.A4. (According to the learned counsel for the appellant, property belonging to Manikantan has been purchased by the appellant.) Learned counsel also submitted that respondents do not intend to evict the appellant forcibly from the building in the plaint A schedule. Respondents have obtained a decree for fixation of boundary in O.S. No. 253 of 2007 as per Ext.C1(a) marked in that case and the execution of that decree may not in any way be prevented. Having heard the learned counsel on both sides I am inclined to accept the contention of the appellant that he could be evicted from the building in the plaint A schedule only as per due process of law. At the same time, since this Court is not sitting in appeal over the decision in O.S. No. 253 of 2007, execution of that decree in whatever way it is, cannot be prevented. The substantial question of law framed is answered as above.

Resultantly this Second Appeal is allowed in part as under:

The judgment and decree of learned II Additional District Judge, Mavelikkara in A.S. No. 31 of 2011 is modified as under:

(i) Respondents are restrained by a decree for prohibitory injunction from evicting the appellant from the building in the plaint A schedule otherwise than by due process of law.

(ii) In other respects, the judgment and decree in A.S. No. 31 of 2011 will remain intact.

(iii) It is made clear that this decree will not stand in the way of respondents executing the decree in O.S. No. 253 of 2007 (if they are entitled to that course), in whatever manner that decree directs even if it includes demolition of the whole or portion of the building in the plaint A schedule.

(iv) Parties shall suffer their costs in this appeal.

All pending interlocutory applications will stand dismissed.