The court clarified that in execution proceedings, once a claimant establishes prima facie title, the burden shifts to the decree holder to prove their right to dispossess.

JUDGMENT

Dated this the 2^nd day of May, 2025 This appeal is filed challenging the judgment and decree dated

14.11.2018 of the Additional District Judge -II (Special), Kottayam in A.S.No.210 of 2018 from the order dated 22.07.2014 in E.A.No.51 of 2011 in E.P.No.181 of 2010 in O.S.No.135 of 1993 on the files of Munsiff Court, Vaikom. Appellants 1 to 7 are the respondents 1 to 7 in the E.A. The 1^st respondent herein is the petitioner in the E.A. (hereinafter referred to as the petitioner). The 2^nd respondent was the 8^th respondent in the E.A.

2. Petitioner had filed the E.A. before the Munsiff Court, Vaikom, invoking Order 21 Rule 99 of the Code of Civil Procedure , 1908 (CPC) inter alia contending that she has the title and possession to the petition schedule property. She had purchased the said property from the 9^th defendant in O.S.No.135 of 1993 vide Ext.A5 deed bearing No.2810 of 2005 of S.R.O., Vaikom. The 9^th respondent was one Sarathchandran Panicker. According to the petitioner, the suit was dismissed as against the said 9^th defendant.

But, when the decree in the said suit was executed by delivering the property scheduled therein, the property of the petitioner was also given possession of to the respondents. According to the petitioner, she is thus dispossessed of her motor shed and equipment therein. The portion of the properties or dispossessed is the petition scheduled item No.2 property and the property purchased by her is petition schedule item No.1 property. The electric motor shed in the petition is the petition schedule item No.3 property. Petitioner had filed the E.A. demanding recovery of possession of that property and seeking damages for the loss sustained by her.

3. The E.A. filed by the petitioner was dismissed by the Munsiff Court inter alia holding that the petitioner had failed to prove her case. It was held that the petitioner could not prove that the petition schedule item No.2 property, possession of which was sought by her was part of the property conveyed by Ext.A5 deed. Hence, her complaint that she was unlawfully dispossessed was termed as without merits and consequently the E.A. filed by her invoking Order 21 Rule 99 was dismissed. Aggrieved by the said dismissal, petitioner preferred an appeal (A.S.No.210 of 2018 ) before the Additional District Court-II (Special), Kottyam. After hearing the parties, the District Court allowed the A.S. and set aside the order of the Munsiff in the E.A. and remanded the matter back for fresh consideration. The said judgment and decree in A.S. is challenged by respondents 1 to 7 (appellants herein) in this FAO (RO).

4. Heard Sri.K.N.Chandrababu, Advocate for the appellants (respondents 1 to 7 in the E.A.) and Sri.B.Premnath for the 1^st respondent (petitioner in the E.A.) and Sri.T.G.Kaladharan for the 2^nd respondent (8^th respondent in the E.A.).

5. The learned counsel appearing for the appellants/ respondents 1 to 7, vehemently contended that the judgment and decree of the District Court in the A.S. is illegal, arbitrary and liable to be set aside. It is contended by him that the E.A. was correctly dismissed by the Munsiff Court, finding that the petitioner failed to prove possession of petition schedule item No.2 property as also part of petition schedule item No.1 property. The Munsiff Court had correctly found that as per the recitals contained in Ext.A5 deed, property of the petitioner is having 32 cents in extent. As per Ext.C1 Advocate Commissioner's report and Ext.C1(a) plan appended thereto ie., Ext. C1 (a) , the area of the property now in possession of the petitioner on the strength of Ext.A5 is 47.72