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2014 DIGILAW 596 (KAR)

Jacintha Swetha D’Souza v. Louisa D’Souza

2014-06-20

H.G.RAMESH

body2014
ORDER The petitioners are before this Court as objectors against the order passed by III Additional District and Sessions Judge, D.K., Mangalore in RRP No.9/2013. 2. Originally, Eviction Petition was filed by the respondents as landlords/coowners for eviction against one Balakrishna and these petitioners as respondents 2 to 4 in respect of premises situated at 19597, Urva Stores, Kandettu, Ashoknagar, Mangalore. The Court below decreed the petition against Balakrishna and also these petitioners. It appears, thereafter respondents filed Execution Petition in Ex.P.No.117/2010 before the Executing Court seeking to execute the decree for possession. The petitioners herein filed an application before the Executing Court Under Order 21 Rule 91 of CPC seeking for clarification and to remand the matter. The Executing Court dismissed the application on 24.06.2013 holding that the objectors have failed to prove their case and the decree holders have successfully disproved the objectors’ case by producing cogent and acceptable evidence and that the objectors have not entitled for relief. Thereafter, petitioners filed revision petition before the Executing Court and the same was also dismissed. Aggrieved by the order of the Executing Court and Revision Court, the revision petitioners are before this Court. 3. The learned Counsel for the petitioners contend that eviction is sought only against respondent No.1 – Balakrishna and not against the petitioners herein. The petitioners are residing in the portion of the property since several years and they are the coowners and decree for eviction is not passed against them. However, this aspect has been negatived by the Executing Court. Against this order, RRP No.9/2013 was preferred before the III Additional District and Sessions Judge, D.K., Mangalore. The revision Court after reappreciation of the material on record held that the petitioners herein are unable to produce any document to prove their coownership and confirmed the order of the Executing Court and in Para 19 of the Order, it held that the evidence on record did not point out and which has been admitted by the respondents No.1 to 4 in the original proceedings that the petition schedule premises consists of two portions, one is in occupation of Mr.Balakrishna and another is in occupation of 1st petitioner and further held that what is the portion of the premises bearing D.No.19597/1, 2, 3 is of no consequence. That apart, the judgment debtors have no legal right to invoke the provision under Order 21 Rule 97 of CPC as the original judgment debtors have no legal right to take any independent plea other than what has been pleaded in HRC No.12/2005. 4. Both the Courts below have gone through the material and evidence placed on record and have come to the conclusion that the petitioners herein have not produced any document to show that they are the coowners of the petition schedule property. 5. The Apex Court in the case of MANJIT KAUR AND ANOTHER VS. JAIN PRAKASH AND OTHERS reported in ILR 2002 KAR 2749 referring to Section 47 of CPC observed that the decree for eviction was passed against the tenants in eviction proceedings. The Preliminary Decree was passed in favour of one of the sharer landlords in suit for partition. Tenant handed over possession to the person in whose favour a Preliminary Decree had been passed. In execution of a decree for eviction, the sharers to whom the tenants had handed over possession tried to defend their possession on the basis of a preliminary decree. In this regard, the Apex Court held that the sharers in possession are not entitled to justify their possession as no final decree is passed and partition of the property has not taken place by metes and bounds. 6. The petitioners are unable to demonstrate and produce any documents to show that they are the coowners of the schedule property. Unless the petitioners establish that they are the coowners of the property by producing cogent and documentary evidence, the petitioners are not entitled for relief as sought for. In the circumstances, the order passed by both the Courts below cannot be faulted. Accordingly, the petition is dismissed. The petitioners are granted one month’s time to vacate and hand over the possession to the respondents.