Dismissed

Khadeeja v. Shiju

Kerala HC28 Jan 2016RSA/1370/2012

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a second appeal against the dismissal of an execution application. The appellant challenged an order refusing to grant eviction stay based on her claim of constructing a building via loan. The court found discrepancies in building age and cost estimates. Appeal dismissed; appellant granted time for vacant possession.

What did the court decide?

Time granted to appellant until 31.7.2016 to surrender vacant possession of the building.

Khadeeja Vs Shiju — Execution and Attachment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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THURSDAY, THE 28TH DAY OF JANUARY 2016/8TH MAGHA, 1937

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RSA.No. 1370 of 2012

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EA.645/2008 IN EP.249/2007 IN OS 420/2006 OF PRINCIPAL MUNSIFF, COURT, ERNAKULAM DATED 03-03-2009 AS 423/2009 OF DISTRICT COURT, ERNAKULAM

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APPELLANT(S)APPELLANT/CLAIM PETITIONER:

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KHADEEJA, W/O.LATE MOIDEEN, ATHIPARAMBIL, THAMMANAM DESOM, ERNAKULAM.

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BY ADVS.SRI.SAJU.S.A SMT.P.A.SHEEJA SRI.K.C.KIRAN

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RESPONDENT(S)/RESPONDENT/DECREE HOLDER:

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SHIJU, S/O.ABDUL SHAHAD, ATHIPARAMBIL, KOZHITHARA, THAMMANAM P.O., THAMMANAM DESOM, ERNAKULAM-682032.

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BY ADV. SRI.JESWIN P.VARGHESE (CAVEATOR)

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.B.SURESH KUMAR, J.

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R.S.A.No.1370 of 2012.

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Dated this the 28^th day of January, 2016.

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J U D G M E N T

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The order passed in an application filed by a third party in a proceedings for execution of a decree for mandatory injunction, as confirmed in appeal, is under challenge in this second appeal.

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The facts relevant for decision of the second appeal are the following:

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The respondent instituted O.S.No.420 of 2006 against the husband of the appellant namely, Moideen, alleging that the suit property and the building therein was purchased by him from Moideen on 5.4.2005 and that the defendant who was permitted to occupy the building in the suit property for some more time after the purchase has refused to vacate the suit property and the building therein

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RSA.No.1370/2012.

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as agreed to by him. The relief claimed in the suit, in the circumstances, was a decree of mandatory injunction directing the defendant to vacate the suit property. The suit was decreed ex parte. The defendant died after the decree. Consequently, execution proceedings have been initiated against the appellant. In the execution proceedings, the appellant filed E.A.No.645 of 2008 alleging that the building in the suit property is one constructed by her by availing a loan from the Corporation of Cochin and therefore, she is not liable to be evicted from the building. Since E.A.No.645 of 2008 was filed in the form of a claim petition, the same was adjudicated by the execution court as a suit. The appellant has produced documents before the execution court to establish that she has availed a loan of Rs.24,850/during 2003 from the Corporation of Cochin for construction of a residential building in the suit property having an area of 29.65 sq.meters. Ext.C1 is the report submitted by the Advocate Commissioner appointed in the proceedings and

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RSA.No.1370/2012.

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Ext.C1(b) is the report of the expert who assisted the Advocate Commissioner. The advocate Commissioner and the expert inspected the suit property during 2008. In Ext.C1(b) report, the expert has stated that the building in the suit property is one measuring 50.76 sq.meters and that the building appeared to be ten years old. In Ext.C1(b) report, the expert has also estimated the cost incurred for construction of the building at Rs.2,00,000. Though the execution court found that the appellant has availed a loan of Rs.24,850/- from the Corporation of Cochin to construct a building in the suit property, it came to the conclusion that the appellant has not established that the building in the suit property is one constructed by the appellant making use of the loan availed by her. Consequently, E.A.No.645 of 2008 was dismissed. Though the matter was taken up by the appellant in appeal, the appellate court confirmed the decision of the execution court. The appellant who is aggrieved by the concurrent decisions against her has thus

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RSA.No.1370/2012.

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come up in this second appeal.

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Heard the learned Senior Counsel for the

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appellant.

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The learned Senior Counsel for the appellant pointed out that the materials on record would indicate beyond doubt that the building in the suit property is one constructed by the appellant based on the permission given by her husband and therefore, the courts below ought to have held that the appellant is a licensee entitled to the protection of section 60 (b) of the Indian Easements act.

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It has come out in evidence that the building

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which is in existence now in the suit property is a building measuring 50.76 sq.meters, whereas the loan is claimed to have been availed for construction of a building measuring 29.65 sq.meters. Going by the case set up by the appellant, the loan availed by the appellant for construction of the building was only Rs.24,850/-, whereas the expert who assisted the Advocate Commissioner, has estimated the cost

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RSA.No.1370/2012.

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of construction of the building at Rs.2,00,000/-. The case of the appellant is that the building has been constructed during 2003. The advocate Commissioner inspected the building during 2008. The expert who assisted advocate Commissioner has stated in his report that the building appeared to be 10 years old. In the aforesaid circumstances, the courts below cannot be faulted for having come to the conclusion that the building in the suit property cannot be said to be a building constructed during 2003 by making use of the loan of Rs.24,850/-availed by the appellant from the Corporation. In the circumstances, I do not find any illegality in the decisions impugned in the second appeal. 6. When the contentions of the appellant were found not acceptable, alternatively, the learned Senior Counsel prayed for time to surrender vacant possession of the building. Having regard to the facts and circumstances of the case, I deem it appropriate to grant the appellant time upto 31.7.2016 to surrender vacant possession of the

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RSA.No.1370/2012.

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building.

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In the result, the second appeal is dismissed. However, the appellant is granted time upto 31.7.2016 to surrender vacant possession of the building in the suit property to the respondent on condition that the appellant shall file before the execution court within two weeks from the date of receipt of a copy of this judgment, an affidavit undertaking to surrender vacant possession of the suit property and the building therein unconditionally, on or before 31.7.2016. All the interlocutory applications in the appeal are closed.

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Sd/-

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P.B.SURESH KUMAR,

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JUDGE.

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Kvs/-

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// true copy //

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PA TO JUDGE.

Khadeeja v. Shiju

Case brief

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Khadeeja v. Shiju

Case brief

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