O R D E R

The petitioner aggrieved by the order dated

20.04.2019, passed in Ex.Case No.50/2017 on the file of Principal Civil Judge & JMFC, Puttur, DK, has filed this writ petition.

2. Brief facts leading rise to filing of this petition are as under:

The petitioner filed a suit for declaration of title and possession of encroached area of 0-16 acres in Sy.No.213/3 which was described as ‘B’ schedule property in the suit. The said suit came to be decreed vide judgment dated 13.04.2017 and it was declared that the petitioner is the owner of land bearing Sy.No.213/3 measuring 1 acre and decree was also passed and defendant was directed to surrender the vacant possession of plaint ‘B’ schedule property to the petitioner within 3 months from the date of judgment and on his failure to do so, the petitioner is at liberty to get the same through the process of Court. Inspite of the direction issued by the trial Court, respondent did not deliver the vacant possession of ‘B’ schedule property. The petitioner filed an execution case in Ex. Case No.50/2017. On 21.04.2018, the executing Court issued delivery warrant. On 27.10.2018, the Court Ameen submitted the report reporting the execution of delivery warrant and handed over the possession of the property to the petitioner along with delivery receipt and mahazar report. The executing Court has recorded about the delivery of possession of ‘B’ schedule property vide order dated 27.10.2018. The petitioner raised an oral objection stating that the Court Ameen did not deliver the alleged shed in the ‘B’ schedule property and hence sought to redirect the Court Ameen to remove the shed situated in the ‘B’ schedule property and the executing Court rejected the contention of the petitioner and closed the execution case. Hence this writ petition.

3. Heard the learned counsel for petitioner.

4. Learned counsel for the petitioner submits that though the petitioner has pleaded in the petition that after service of summons, respondent has raised construction in the schedule property and hence he submits that that the executing Court directed the Court Ameen to deliver the shed also. On the contrary, the executing Court has committed an error in not redirecting the Court Ameen to remove the shed situated in the schedule property. He submits that the executing Court has committed an error in passing the impugned order. Hence on these grounds he prays to allow the writ petition.

5. Perused the records and considered the submissions made by learned counsel for the petitioner.

6. It is not in dispute that the petitioner filed a suit for declaration and possession in respect of the ‘B’

schedule property. The said suit came to be decreed vide judgment dated 13.04.2017. While decreeing the suit, the trial Court has directed the respondent to surrender the vacant possession of ‘B’ schedule property to the plaintiff within a month from the date of judgment and on his failure to do so, liberty was reserved to the petitioner to take possession through the process of Court. Pursuant to the judgment passed by the trial Court, respondent did not comply with the said judgment. Hence, the petitioner filed an execution case. In the execution case, the trial Court issued warrant for delivery of possession. The Court Ameen delivered the possession of the ‘B’ schedule property. The petitioner has accepted the possession of ‘B’ schedule property without any protest and did not raise any objection for removal of alleged shed constructed in the ‘B’ schedule property and he has signed on the mahazar and thereafter the executing Court was about to accept the mahazar. At that time, the petitioner raised oral objection contending that the Court Ameen has not removed the shed situated in ‘B’ schedule property. At the cost of repetition, the petitioner did not raise any objection at the time of delivery of possession by the Court Ameen. The objection raised by the petitioner is only an afterthought.

7. The trial Court while decreeing th