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2017 DIGILAW 383 (KER)

L. S. DINKAR v. DIVAKARA KAMMATH

2017-02-22

K.HARILAL

body2017
JUDGMENT : The appellant is the petitioner in E.A.No.105/2014 in E.P.No.18/2012 in R.C.P.No.6/2011 on the files of the Munsiff's Court, Kochi. The aforesaid application was filed under Order XXI Rule 97 of the Code of Civil Procedure. E.P.No.18/2012 was filed by the respondents herein for execution of the decree granting eviction passed in R.C.P.No.6/2011. According to the petitioner, he has been in actual and continuous possession of the tenanted shoproom in R.C.P.No.6/2011 and he was not a tenant of the respondents in the above Rent Control Petition. He was a permanent licensee under the original owner of the said building by name Yogya Prabhu and he has put up permanent structure in the said property. So, his possession was open, continued and uninterrupted for a long period of more than 12 years and thereby he had acquired title by adverse possession over the said property. The petitioner further admits that in R.C.P.No.6/2011 he had filed a petition to get impleaded and the same was dismissed by the Rent Control Court and he had preferred R.C.A.No.137/2011 before the Rent Control Appellate Authority, Ernakulam and the Appellate Authority also dismissed the said appeal and thereafter he preferred R.C.R. No.82/2013 before this Court and this Court disposed of the said revision on the submission made by the respondents that the respondents will not seek execution of the order in R.C.P.No.6/2011 till O.S.No.241/2011 of the Principal Munsiff's Court, Kochi is disposed of. O.S.No.241/2011 was a suit filed by the petitioner himself claiming that he is an irrevocable licensee under the prior owner. 2. The defendant filed objection contending that the petition itself is not maintainable as the Rent Control Court itself dismissed the application seeking impleadment filed in R.C.P.No.6/2011, by the very same petitioner and the said order stands confirmed by the Appellate Authority and this Court. It is also contended that during the pendency of R.C.P.No.6/2011, the petitioner instituted O.S.No.241/2011 and contended that the definite case of the petitioner in that case was that he was a permanent irrevocable licensee of the petition schedule shop room and he has constructed a building of permanent nature and his possession was well protected under Section 60 of the Indian Easements Act. After taking evidence, the Munsiff's Court rejected the said contention and held that he is not a permanent licensee of the petition schedule shop room and that judgment had attained finality, in the absence of appeal. Thus, it is contended that the petitioner had been given sufficient opportunities to raise his claim over the petition schedule shop room and got it rejected by the competent court in R.C.P.No.6/2011 and O.S.No.241/2011. 3. On the aforesaid rival pleadings both parties adduced evidence which consists of the oral testimony of P.W.1 and Exts.A1 to A4 and B1 to B3. After considering the aforesaid evidence on record, the Execution Court dismissed the petition and in E.F.A.No.1/2015 the appellate court dismissed the appeal. Thus, the concurrent findings of the courts below rejecting the claim of adverse possession over the petition schedule shop room have come up before this Court on the basis of the question of law shown in the Memorandum of Appeal. 4. Heard the learned counsel for the appellant and the learned counsel appearing for the respondents. 5. It is the case of the appellant that he has been in actual and continuous possession of the tenanted shop room in R.C.P.No.6/2011. In the present petition, he claims that he got title by adverse possession over the said tenanted shop room for the last so many years. But, going by the impugned judgments passed by the courts below, it could be seen that in R.C.P.No.6/2011 this petitioner had filed an application to get impleaded in the said proceedings on the ground that he is an irrevocable licensee of the petition schedule shop room under the prior owner Yogya Prabhu and he has put up permanent structures in the said property. But the Rent Control Court dismissed the said petition on a finding that he was a stranger to the proceedings and he has no right to get impleaded in the Rent Control Petition. Feeling aggrieved, though he had preferred an appeal before the Rent Control Appellate Authority and thereafter a revision before this Court, the Appellate Authority as well as this Court confirmed the said finding. 6. Feeling aggrieved, though he had preferred an appeal before the Rent Control Appellate Authority and thereafter a revision before this Court, the Appellate Authority as well as this Court confirmed the said finding. 6. During the pendency of the said impleading petition in R.C.P.No.6/2011, the petitioner filed O.S.No.241/2011 before the Munsiff's Court, claiming that he is a permanent irrevocable licensee who has constructed a building of permanent nature and thereby he is entitled to protection under Section 60 of the Easements Act, and that claim was also rejected by the civil court and that judgment has attained finality, in the absence of appeal. Thus, in R.C.P.No.6/2011 and O.S.No.241/2011 the petitioner had taken inconsistent pleas, which are mutually destructive and opposing. 7. Now the claim of the petitioner is that he has been in possession for a long period of more than 12 years and thereby he had acquired title by adverse possession over the said property. Needless to say, the present claim also goes against the earlier claims raised by the petitioner in R.C.P.No.6/2011 and O.S.No.241/2011. As rightly held by the lower appellate court, since he had proceeded with O.S.No.241/2011 on the ground that he is a permanent licensee and tendered evidence on that line and he cannot later turn up with a claim of title by adverse possession against the respondents. That apart, he failed to plead and prove that his possession has become adverse to the title of the real owner. It is pertinent to note that in O.S.No.241/2011 he has claimed that he is a permanent licensee without having any case that his possession became adverse to the title of the real owner later from a particular point of time. So, after the dismissal of O.S.No.241/2011, he cannot be heard to say that his possession became adverse and the same is protected by limitation. Besides, it is to be remembered that subtenant has no independent right to raise any objection before the Execution Court and he is legally bound by the order to be passed against the original tenant, particularly when the decree granting ejectment has become final. I do not find any kind of illegality or impropriety in the aforesaid reasoning whereby the lower appellate court has rejected the claim of adverse possession. 8. I do not find any kind of illegality or impropriety in the aforesaid reasoning whereby the lower appellate court has rejected the claim of adverse possession. 8. Another contention raised by the petitioner was that the judgment and decree passed in R.C.P.No.6/2011 is void ab initio as the Rent Control Court had accepted the Will produced by the respondents, without examining one of the attesting witnesses, as provided under Section 68 of the Indian Evidence Act, on the basis of an admission made by the petitioner. The petitioner further contends that the Apex Court later ruled that a Will could not be admitted in evidence without examining at least one of the attesting witnesses as provided under Section 68 of the Indian Evidence Act, notwithstanding the admission of the defendant. 9. Going by the impugned judgment passed by the lower appellate court, it could be seen that the lower appellate court has well considered the above contention in the light of the decision of the Apex Court in Antony v. Thandiyode Plantations Pvt. Ltd. [1995 KHC 342], Balvant N. Viswamitra and others v. Yadav Sadashiv Mulle (dead) through Lrs. and others [2004 KHC 1643] and Vicar, Jerusalem Marthoma Church Nandankode v. Mammen Thomas and others [2010 (4) KHC 812]. The proposition that can be culled out from all the aforesaid decisions is that there is vast difference between void decree and illegal, incorrect or irregular decree and the validity of a void decree can be challenged at any stage even in execution or collateral proceedings. But the erroneous or illegal decision, which is not void cannot be objected to in execution or the collateral proceedings. Where court lacks inherent jurisdiction in passing a decree or making an order, the decree or order passed by such court would be without jurisdiction. Here, the petitioner has no case that the impugned decree in R.C.P.No.6/2011 was passed without jurisdiction. It is the case of the petitioner that in the aforesaid decree the Rent Control Court has taken an erroneous decision in the matter of admission of the Will in evidence. This Court is of the view that if the Rent Control Court had taken an erroneous decision, it could have been corrected in appeal or revision, as the case may be, and it cannot be treated as a void decree. 10. It is trite law that Execution Court cannot go behind the decree. This Court is of the view that if the Rent Control Court had taken an erroneous decision, it could have been corrected in appeal or revision, as the case may be, and it cannot be treated as a void decree. 10. It is trite law that Execution Court cannot go behind the decree. It is amply clear that all irregular or wrong decrees are not necessarily null and void. A wrong or erroneous decision cannot be challenged in execution proceedings on that ground and the Execution Court has no jurisdiction to interfere with the decree, even if it is erroneous or irregular. Therefore, the courts below rightly rejected the contention that the decree is not an executable one as the same was an erroneous decision. Thus, I do not find any kind of illegality or impropriety in any of the findings of the courts below or any kind of perversity in the appreciation of evidence from which those findings have arrived at. No question of law arises for consideration in this Appeal, as the findings are just and legally perfect. This Execution Second Appeal will stand dismissed. All pending Interlocutory Applications will stand closed.