In this appeal, the appellant who is the claim petitioner before the court below assails the finding of both the courts to the effect that the building in respect of which she laid claim is not in existence and that the claim petitioner cannot resist the execution taken out by the decree holder of the order in R.C.P.No. 81/2009 by filing E.A.No. 1002/2010.
2. The claim of the appellant was that she was in absolute possession and enjoyment of the building bearing No. T.C.67/537 within Thiruvananthapuram Corporation. She claims to be residing there with her parents, husband and children. She claims to have obtained the property where the building is situated as per settlement deed No. 887/2003 of Thiruvallam SRO. Pointing out that the eviction order was in respect of another building and taking aid of that eviction order, the petitioner and others are sought to be evicted which is illegal. The dubious act of the decree holder compelled the petitioner to approach the court for relief.
3. The decree holder resisted the claim petition by pointing out that the building bearing T.C.No. 67/537 was not in existence at the relevant time and that had been demolished long ago and a new building has been put up in that place. It was also contended that the claim petitioner had no subsisting right over the property and the said property has been assigned by her and her brother who originally had title over which the building No. 67/537 stood.
4. The execution court raised necessary issues for consideration and the parties went to trial. The claim petitioner examined PWs 1 and 2 and had documents marked as Exts. A1 to A16. The decree holder had DW1 examined and had Exts. B1 to B10 marked.
5. Both the courts below concurrently found that the claim of the claim petitioner that the building in T.C.No. 67/537 was in existence, could not be proved or established.
On the other hand, there were convincing evidence adduced by the decree holder to show that that building had been demolished and a new building had come in its place. Further, both the courts below also found that as on the date of filing of the claim petition, the claimant had no subsisting title over the property. Accordingly, the claim petition was rejected and it was confirmed in appeal.
6. The learned counsel appearing for the appellant pointed out that both the courts below have erred both on facts and in law in rejecting the claim put forward by the claim petitioner. Admittedly, the eviction order was in respect of T.C.67/539(2) and that is sought to be executed in respect of building bearing T.C.No. 67/537 in which the claim petitioner and her family are residing. The learned counsel pointed out that the courts below have omitted to note the significance of Exts. A6 to A13 which would clearly show that the claimant is in possession of the property and the building. She has paid tax for the same and she has adduced other items of evidence to show that the building is in existence and the courts below were not justified in holding that the building bearing T.C.67/537 does not exist.
7. Even assuming ,according to the learned counsel, that the claim petitioner had sold the property over which the building stood and she is in actual physical possession of the building and the order of eviction obtained against another person cannot be executed against her since she was not a party to that proceedings.
8. Arguments taken at its face value is formidable and convincing. But on a closer scrutiny, it is found to be without any basis at all. The assignment deed in favour of the claim petitioner shows that there was a small building at the relevant time. While the properties obtained by the claim petitioner and her brother were assigned as per Ext. A14, that sale deed is conspicuously silent about the existence of the building. This led the courts below to come to the conclusion that at the time when the property was sold by the claim petitioner and her brother, in all probability the building which was there earlier was not then in existence.
9. Both the courts below have found that as on the date of filing of the claim petition, the claim petitioner did have title to the property over which the building is alleged to be situated, as that has already been sold. It is true that a suit has been filed assailing the sale deed as forged and concocted. But as things now stand and as rightly observed by the lower appellate court, the claim petitioner cannot be said to have subsisting title over the property.
10. Even assuming that she has no title to the property, her claim that she is in possession of the building also has to be rejected for various reasons. True, the claim petitioner has produced certain documents to show that building bearing T.C.No.67/537 exists and tax has been paid in respect of the same.
11. The definite stand of the decree holder was that building bearing T.C.67/537 which the claim petitioner claims to be in possession of, had been demolished long ago and a new building had been put up in that place as T.C.67/539. The decree holder has produced all the relevant documents to show that such a building had come up.
12. It cannot be disputed by the claim petitioner that there is a building bearing T.C.67/539 in the property in question.
13. As rightly noticed by the lower appellate court, if as a matter of fact, if the claim petitioner had a contention that there were two buildings in existence, the best method to establish the said fact would have been to take out a Commission. For the reasons best known to the claim petitioner, she was shy to do so and that would fortify the finding by the lower appellate court that the claim that building bearing T.C.67/537 exists is untrue. Further, the decree holder has produced Exts. B5 to B7 which are communications issued from the corporation which shows that building bearing T.C.7/537 was no longer in existence and in its place building bearing T.C.67/539 had been put up. Communication also reveals that by mistake, property tax was assessed and received for building No. 67/537 which actually was not in existence. The lower appellate court has noticed that when this aspect was put to the appellant, she had no answer for the same.
14. After having heard the learned counsel for the appellant and after having gone through the records and also the orders of the courts below, this Court finds no ground to interfere with the findings of the courts below. There is no merit in the contentions raised by the appellant in this case.
This appeal is without merits and is accordingly dismissed.
P.BHAVADASAN JUDGE ds