Judgment :- The appellant herein who is the owner in possession of 1.127 cents of land comprised in Sy.No.223/6-1 of Aluva Village and the building thereon, preferred a claim petition before the court below as E.A.No.49/02 challenging the execution proceedings under which he was admitted to be dispossessed. The court below as per the impugned order dismissed the claim petition under Section 47 read with Order XXI Rule 99 C.P.C. against which the present appeal is preferred. 2. The suit O.S.No.328/87 was filed before the Munsiff’s Courts, Aluva for partition of the property. The suit was decreed and thereafter, E.P. was filed as E.P.44/01. According to the appellant he purchased the petition schedule property from one Sulaiman as per sale deed no.1787/89 dated 27/7/1989 of the S.R.O., Aluva. The said Sulaiman purchased the property and building therein from one Padmavathi Ammal as per sale deed No.2382/86. Padmavathi Ammal had purchased kudikidappu right over the property as per order in O.A.No.409/72 dated 11/9/1972 of the Land Tribunal, Vazhakkulam. Subsequent to the abolition of the Land Tribunal Office, Vazhakkulam, the entire file was transferred to the Land Tribunal. Aluva and new number was assigned to the file as 336/76. Purchase certificate was issued in favour of Padmavathi Ammal from the Land Tribunal. Aluva on 10/8/1979. It is also averred that the petition schedule property and other properties originally belonged to Parattu Tharwad and it was outstanding on Kanom rights with one Neelakanta Iyer. Arumughan Chettiar, husband of Padmavathi Ammal had tenancy right over the shop-room under the original owner where he was running a vegetable shop. Behind that vegetable shop with the consent of the landlord Sankara Pillai Krishna Pillai Padmavathi Ammal constructed a shed in the year 1943. Subsequent to the enactment of the Land Reforms Act Padmavathi Ammal claiming herself to be entitled to purchase the kudikidappu right filed O.A.No.409/72. Since then she was holding the properties as fill owner with the knowledge of all persons including the original owners and intermediary Neelakanta Iyer and his successors-in-interest. Subsequent to the purchase of the land by Sulaiman, he renovated the building after demolishing the old structure there and rented out the same to M/s. Kerala Radient Roadways and subsequently evicted the tenant as per order in R.C.P.No.29/87. The appellant/petitioner is thus in exclusive possession and ownership of the plaint schedule building ever since its purchase in 1989. Subsequent to the purchase of the land by Sulaiman, he renovated the building after demolishing the old structure there and rented out the same to M/s. Kerala Radient Roadways and subsequently evicted the tenant as per order in R.C.P.No.29/87. The appellant/petitioner is thus in exclusive possession and ownership of the plaint schedule building ever since its purchase in 1989. The predecessors-in-interest of Arumughan Chettiar filed a suit for partition of the property as O.S.No.10/59 before the Additional District Court, North Paravur. That suit was compromised except item No.6. In respect of item No.6 separate compromise was entered into between the parties on 23/9/1973. That compromise was also accepted by the court and a final decree was passed in respect of plaint schedule item No.6. As per the decree, Achuthan Pillai got 9/10 share in respect of item No.6 property. Neelakanda Iyer had filed another suit O.S.No.11/59 against Achuthan Pillai and others before the same court. The said suit was also decreed in terms of the compromise. Under the said compromise the property now owned and occupied by the petitioner/appellant was given to Ramachandran Nair. The 1st respondent herein filed O.S.No.328/87 for partition of the property alleging that an amount of Rs.8,500/- was paid on behalf of Raghavan Nair, Ramachandran Nair and others to Harihara Iyer and that Ramachandran Nair is in possession of the property on behalf of Raghavan Nair also and that Raghavan Nair has executed a sale deed in favour of the 1st respondent as document No.3539/83. Even though the plaintiff in O.S.No.328/87 had information that Padmavathi Ammal was having kudikidappu right over the property, she was not made a party nor her successors-in-interest were made a party. Even though there was an application filed by the 1st respondent herein for appointment of a Receiver, the appellant herein filed an application under Order 40 Rule 1 CPC which was rejected by the trial court, appellate court and also in revision by this Court. However this Court has made it clear that if the appellant files a fresh suit, that will be disposed of uninfluenced by any of the observations made in the impugned orders. Thereafter, the appellant also filed O.S.No.595/98 before the Munsiff’s Court, Aluva for a declaration that he has exclusive right, title and possession over the petition schedule property and building which is still pending trial. Thereafter, the appellant also filed O.S.No.595/98 before the Munsiff’s Court, Aluva for a declaration that he has exclusive right, title and possession over the petition schedule property and building which is still pending trial. In the meanwhile, the 1st respondent herein who got assigned the property from Mohammed Azeem, filed an execution petition for exection of the final decree. Since the appellant has exclusive ownership and possession of the property, the possession is not liable to be dispossessed and the same cannot be delivered over to the executant. It was in such circumstances that the appellant prayed for declaration about his right over the property and resisted the delivery proceedings. 3. The claim was resisted by the respondents. According to them, the appellant is a stranger to the execution proceedings. As per the final decree passed in the partition suit O.S.No.328/87, the respondents have got absolute right over the property and the final decree stood confirmed by this Court as per the judgment in S.A.No.921/2001 dated 4/1/2002. Purchase certificate issued in favour of Padmavathi Ammal is a sham document and as such the successors-in-interest of Padmavathi Ammal will not derive any right or title over the property. She was never in possession of an extent of 1.27 cents of property at any point of time. Even before the purchase certificate was issued in her favour, she had transferred her right to one Khader Pillai Moideen on 19/3/1975 and subsequently to Sulaiman on 19/12/1975 by Khader Pillai Moideen. Sulaiman was in possession of the property when Kudikidappu certificate was manipulated in favour of Padmavathi Ammal on 10/8/1979. According to them, the purchase certificate itself was issued in favour of Padmavathi Ammal, when she has no possession over the property and the Kudikidappu certificate is only inheritable and not alienable. It is also contended that the real owner of the properties was not impleaded as a party in the O.A. filed before the Land Tribunal. The lawful owner of the property is Achuthan Pillai and after his death his sons, Raghavan Nair, Ramachandran Nair and Ambika Kumari, who are the legal heirs. They also disputed the contention that this is a property belonging to Parattu Tharwad. Neelakantan Iayer was only a mortgagee in respect of the property. Padmavathi Ammal never constructed any shed or verandah as alleged in the claim petition. They also disputed the contention that this is a property belonging to Parattu Tharwad. Neelakantan Iayer was only a mortgagee in respect of the property. Padmavathi Ammal never constructed any shed or verandah as alleged in the claim petition. The title in respect of 9/10 share passed on to predecessor-in-interest of Hamsa and Raghavan Nair as early as in 1960 and 1/10 share belonged to defendants 3 and 4 in O.S.No.328/87 was purchased by the predecessor-in-interest of Hamsa in 1984 as per sale deed in the year 1985. The 1st respondent herein purchased 3/10 share over the plaint schedule property in O.S.No.10/59 as per sale deed No.1535/83. Subsequently, 2nd respondent purchased the same from the 1st respondent. The person who is in possession of the petition schedule property was impleaded as defendant No.15 in O.S.No.328/87. Hence, they prayed that the petition be dismissed. 4. PW-1 and RW-1 were examined and Exts.A1 to A15, B1 to B9 were marked. The court below found that the petitioner is a stranger to the execution proceedings and impleading petition filed by the appellant as I.A.No.962/96 was dismissed and in view of the dismissal of I.A.No.962/96 the order having become final the court below found that there is merit in the contention of the 2nd respondent that the present petition is barred by res judicata. However, the court below held that his application can be considered as an application under Order XXI Rule 99 C.P.C. and as per the judgment in O.P.No.5305/2002 of this Court observed in Ext.A15 that if the petitioner/appellant moves the execution court or raises his objection before that court, it shall consider and dispose of the same in accordance with law before dispossessing him. Therefore, the court below rightly held that the petitioner/appellant, though as a stranger, is entitled to file the application as contemplated under Order XXI Rule 97 and 101 and that the rule will not disentitle him before the claim being considered on merits. 5. Coming to the merit on the contention the court below found that the appellant herein is bound by the decree in O.S.No.328/87 and it is also held that the purchase certificate was obtained without consent of the real owners and that the same was obtained by suppressing material facts in Ext.B2 application. 5. Coming to the merit on the contention the court below found that the appellant herein is bound by the decree in O.S.No.328/87 and it is also held that the purchase certificate was obtained without consent of the real owners and that the same was obtained by suppressing material facts in Ext.B2 application. According to the court below, the status of the appellant is that of a transferee pendent life and the decree in O.S.No.328/87 is binding on him. It is also found that he petitioner/appellant has not proved valid tile over the property in question. It is against the said decision that the present appeal is filed. 6. The first question to be considered is as to whether purchase certificate issued in favour of Padmavathi Ammal is valid in law and constitutes a valid title in her favour. Ext.B2 is an application preferred before the Land Tribunal filed by Padmavathi Ammal. The claim is in respect of an extent of 4 cents of land in Sy.No.23-6-1 of Aluva Municipality. As against column 5 it is stated that since 1943 the applicant was staying in the property with the permission from Parattu Veettil Sankara Pillai Krishna Pillai. As against column 18 regarding the ownership of the property it is stated by the applicant that Parattu Veettil Sankara Pillai Krishna Pillai, Achuthan Pillai Narayana Pillai as owners of the property. As against column 10 mortgage in favour of H.Neelakanda Iyer is also shown and since he died, the name of his son N.Hariharan has been shown as the legal heir of Neelakanda Iyer. From the above application itself it can be seen that the kudikidappu claim is in respect of an extent of 4 cents of land owned by Parattu Veettil Sankara Pillai Krishna Pillai, Achuthan Pillai Narayana Pillai in which there is a possessory mortgage in favour of one Harihara Iyer, S/o.Neelakanda Iyer as it exists at the time of purchase certificate that Harihara Iyer was a contesting respondent in the said application. So however, the owners of the property, Sankara Pillai Krishna Pillai Achuthan Pillai Narayana Pillai who were shown as respondents 1 and 2, were ex parte. Admittedly, there was a suit for partition as O.S.No.10/59 instituted by Padmanabha Pillai Kumara Pillai and others. The 2nd defendant is P.R.Achuthan Pillai, the 10th defendant is Harihara Iyer Neelakanta Iyer and the 50th defendant is Neelakanta Iyer Harihara Iyer. Admittedly, there was a suit for partition as O.S.No.10/59 instituted by Padmanabha Pillai Kumara Pillai and others. The 2nd defendant is P.R.Achuthan Pillai, the 10th defendant is Harihara Iyer Neelakanta Iyer and the 50th defendant is Neelakanta Iyer Harihara Iyer. The 10 defendant Harihara Iyer Neelakanta Iyer died and his legal representatives were impleaded as per order dated 6/9/1967 in I.A.No.3336/67. The legal representatives thus impleaded were defendants 50, 51 and 52. Achuthan Pillai also died in the year 1968 and his legal representatives were impleaded as defendants 54, 55 and 56 as per order dated 17/12/1969 in I.A.No.103/69. These details are available from Ext.A11 (compromise decree) produced in the case. So much so, both Achuthan Pillai and Neelakanta Iyer were not alive as on the date on which the Ext.B2 purchase application was filed. However, Neelakanta Iyer’s legal representatives alone were impleaded and Harihara Iyer, his son was the defendant in the said proceedings. It is therefore found that owners of the property namely, Sankara Pillai Krishna Pillai and Achuthan Pillai Narayana Pillai, who died in the year 1968 were alone made parties in the O.A. without impleading their legal representatives. Therefore, even going by the application filed by the claimant in the O.A. the real owners of the property were not represented in the proceedings without which the purchase certificate then issued in favour of the applicant cannot validly hold against the real owners of the property. 7. In this connection a Division Bench of this Court in George v. State of Kerala (1987 (1) KLT SN 50 – Case No. 67)) held that a purchase certificate is not conclusive as against a person to whom individual notice was not issued. 8. Even though the tribunal passed the order allowing the purchase application by its order dated 11th September, 1972, Ext.B2 certificate was issued by the Land Tribunal only on 20/12/1975 But even before that Padmavathi Ammal had already transferred her right over the property in favour of Khader Pillai Moideen and Moideen also transferred his right to Sulaiman. It is necessary to go into the question as to whether before issuing the purchase certificate the same could be transferred in favour of the third party. It is necessary to go into the question as to whether before issuing the purchase certificate the same could be transferred in favour of the third party. Since the purchase certificate is issued without impleading the legal heirs of the true owners of the property, whose rights were declared in the suit O.S.No.10/59, it was the successor-in-interest of that right who has instituted the present suit for partition and filed the execution proceedings. In such circumstances a person who has not validly obtained the kudikidappy right by impleading all the parties, it cannot assign validly any right over the said property based on a purchase certificate and the assignee therein cannot give better right over the property. 9. The court below by a detailed order has also found that Padmavathi Ammal was not even in possession of the property. Even Padmavathi Ammal had a possessory right over the plaint schedule property unless the same has been purchased validly by impleading all the necessary parties and her right having been transferred long back, the present claimant/appellant cannot step into the shoes of Padmavathi Ammal and claim such a right. Even though it is contended by the learned counsel for the appellant that in the compromise decree in O.S.10/59 the fact that an appeal against the order of the Land Tribunal was pending before the Appellate Court is known to the owners of the property, since there is a clear reference that in respect of item No.6 in the suit property there is a Kanom right against which the appeal is pending before the Appellate Authority and the concerned parties can therefore agitate their rights before the Appellate Authority. According to the appellant, from Ext.A11 the fact that the he had purchased the kudikidappu right in 1972 and therefore he has perfected his title by adverse possession and limitation, since the real owner did not choose to agitate the matter before the appellate authority by getting himself impleaded and the appeal itself was dismissed for non-prosecution. According to him, a plea of adverse possession was raised in paragraph 7 which is to the following effect:- ‘The request of the petitioner is that he may be impleaded in the execution proceedings, since he has exclusive right, title; and possession over the petition schedule property which forms part of the property scheduled to the final decree in O.S.No.328/87. According to him, a plea of adverse possession was raised in paragraph 7 which is to the following effect:- ‘The request of the petitioner is that he may be impleaded in the execution proceedings, since he has exclusive right, title; and possession over the petition schedule property which forms part of the property scheduled to the final decree in O.S.No.328/87. As I stated earlier the impleading petition filed by the petitioner herein in the final decree proceedings was dismissed holding that the petitioner need not be impleaded in the final decree proceedings. Order 1 rule 10(2) CPC “enables the court to strike out or add parties to a suit at any stage of the proceedings, either upon or without the application of the parties.” Sub rule 2 of rule 10 permits addition of parties in pending suits. Since the request of the petitioner herein is to implead himself in the party array of the execution petition, I am of the view that the petition filed under Order 1 Rule 10(2) CPC is not maintainable.” 10. According to him, this aspect of the matter has been omitted to be considered by the court below, according to him. Even though the learned counsel for the appellant has raised an argument on the basis of adverse of possession and limitation, I do not find that any specific ground has been urged in the appeal memorandum. Though paragraph 7 raised such a plea of adverse possession, it does not affect the order passed by the court below that the said question was not pressed into service by raising any argument. It as a matter of fact, a question was raised and the court below had omitted to consider the same, certainly that should have find a place in the grounds urged in the appeal memorandum. However, since the question has been raised before me as a legal question by the learned counsel for the appellant, I shall consider the same on its merits. From paragraph 7 itself it is clear that what is pleaded by way of adverse possession is that the predecessor-in-interest Padmavathi Ammal have obtained kudikidappu right as per order dated 11/9/1972 in O.A.No.409/72. From that time onwards she is in adverse possession, title and ownership. In other words, the ownership pleaded based on the purchase certificate is stated to be adverse. 11. From that time onwards she is in adverse possession, title and ownership. In other words, the ownership pleaded based on the purchase certificate is stated to be adverse. 11. In this connection, he also placed reliance on the decision of the Supreme Court in Bondar Singh and others v. Nihal Singh and others (2003) 4 SCC 161) wherein it was held that unstamped and unregistered sale deed car at least be looked into for collateral purposes. That the nature of the possession and the plaintiff was in continuous and uninterrupted possession and have set up a hostile tile, the plea of adverse possession of the plaintiff stand established. According to him, the case on hand is similar to the case decided by the Supreme Court the aforesaid decision. That was a case where an appeal had preferred against the judgment and decree passed by the High Court of Madhya Pradesh. The suit was decreed and the plaintiffs sought for declaration that the plaintiffs had become owners of the lands by adverse possession and for injunction to restrain the defendants from interfering with the suit. The trial court decreed the suit which was reversed by the District Court and on appeal filed by the plaintiffs the suit was decreed by the High Court against which the defendants preferred the appeal. The fact relating to the case was that the predecessor-in-interest of the defendant was the owner of the property, who sold the land to the predecessor-in-interest of the plaintiff by an unstamped and unregistered sale deed of the year 1931. The plaintiffs claim to have entered into possession of the land based on the said sale deed and they were in continuous possession. The defendants tried to dispossess them which led to the filing of the suit for declaration. The defendants had denied the sale in favour of the plaintiffs predecessor-in-interest. They also took the plea that the sale deed was false, fictitious and without consideration and after the death of the defendants predecessor-in-interest, the land was also mutated in the name of the defendants. The plea of adverse possession was also denied. The court took notice to the fact that the defendants had stated asserting their title to the suit since 1956 when they issued the notice to the plaintiffs and alleged that the plaintiffs were only a trespasser. The plea of adverse possession was also denied. The court took notice to the fact that the defendants had stated asserting their title to the suit since 1956 when they issued the notice to the plaintiffs and alleged that the plaintiffs were only a trespasser. It was held that the plaintiffs were setting up a hostile against the defendants. Thus that was a case where plea of adverse possession was raised by the plaintiffs and was established. 12. On the other hand, the learned counsel for the respondents placing reliance on the decision of the Supreme Court in Chapsibhai Dhanjibhai Dand v. Purushottam (AIR 1971 SC 1878) contended that a person who assessed title over the property cannot claim adverse possession unless he disclaims ownership and specifically contends that his possession is animus to the real owner and such possession animus to the real owner is with the knowledge of the owner concerned and thus perfected his title by efflux of time over 12 years. That was a case where the easement by prescription claimed and considering the said plea the Supreme Court in paragraph 19 held as follows:- Court in paragraph 19 held as follows:- “……A party to a suit can plead inconsistent pleas in the alternative such as the right of ownership and a right of easement. But, where he has pleaded ownership and has failed, he cannot subsequently turn around and claim that right as an easement by prescription. To prove the latter, it is necessary to establish that it was exercised on someone else’s property and not as an incident of his own ownership of that property. For the purpose, his consciousness that he was exercising that right on the property treating it as someone else’s property is a necessary ingredient in proof of the establishment of that right as an easement.” 13. In D.N.Venkatarayappa and another v. State of Karnataka and others (AIR 1997 SC 2930) the Supreme Court held that mere uninterrupted and continuous possession without the animus to continue in possession hostile to the rights of the real owner will not constitute adverse possession in law. One of the important ingredients to claim adverse possession is that the person who claims adverse possession must have set up hostile title to the true owner. One of the important ingredients to claim adverse possession is that the person who claims adverse possession must have set up hostile title to the true owner. In the decision of the Supreme Court in State of West Bengal v. The Dalhousie Institute Society (AIR 1970 SC 1778) the same view was expressed by the Apex Court. The Supreme Court considered the question as to whether a person has perfected his title by adverse possession based on the long possession. The claim itself is that he came into possession by a derivative title from the original grantee. It was found that the original grantee has no right to alienate the land. Therefore, having come into possession under colour of title from original grantee, if the applicant intends to plead adverse possession as against the State, it was held that he must disclaim his title and plead his hostile (sie) and that the State had not taken any action thereon within the prescribed period. But no such stand was taken nor evidence has been adduced in that behalf. The same view was expressed in Deva (Dead) through LRs. V. Sajjan Kumar (Dead) by LRS. ((2003) 7 SCC 481). From the above decision of the Supreme Court, it can be seen that a person, merely pleads that he is in possession of the land by a derivative title from a person who had no right over the property, cannot claim adverse possession, unless he pleads that he was holding the property adverse to the real owner and proves the same in evidence. He should also show that the possession animus to the real owner is with the knowledge of the owner. There is no such plea raised in the present case. On the other hand, the appellant was only ascertaining his ownership over the property based on the title obtained by him. There is no plea that disclaim the right of ownership and is claiming possession animus to that of the real owner for the prescribed period. 14. In such circumstances, I do not find that there is sufficient plea of adverse possession. In the circumstances, I do not find any merit in the appeal and the same is dismissed. No order as to costs.