In Order XXI Rule 97 CPC claims, obstructor bears burden of proof; purchase certificates under Kerala Land Reforms Act invalid without notice to parties.

J U D G M E N T

The decree holder in OS No.40 of 1974, who filed EP No.444 of

2010 before the Principal Munsiff’s Court, Palakkad, for execution of the decree, faced a claim petition underSection 151of theCode of Civil Procedure, 1908which was considered as though it was an application under Order XXI Rule 97 of the . 2. The brief facts necessary for the disposal of this appeal are as follows:

The appellant/decree holder derived the right title and interest from one Hridayaswamy, pending a suit for partition. In the final decree proceedings, the property was in possession of the receiver. On 19.01.2011, the decree holder attempted to secure delivery of the property. The Amin, who went to deliver the property, was told that after the final decree was passed in OS No.40 of 1974, the claim petitioner herein had obtained purchase certificate No.77 of 1984 of Special Tahsildar, Coyalmannam in SM proceedings No.523 of 1983. Originally, he had taken the property on verumpattam right in the year 1961. In the claim petition, it was thus contended that the 1st respondent herein was in possession of the plaint schedule property from 1961. However, initially, there was a statement made by him that he had obtained the property on verumpattam in the year 1969 and later the year was sought to be amended as 1961. The executing court appointed an advocate commissioner, who inspected the property and reported that there were two huge mango trees aged 30 - 35 years, and two other mango trees aged 10 - 15 years and certain other fruit- bearing trees of 4 - 6 years, besides other trees standing within the natural fencing. As per the report, many of the trees were aged around 10 years, and a substantial number of trees were over 20 years old. The claim petitioner further contended that there was a house facing north towards the National Highway and that there was a KSEB meter board with Consumer No.14447. Thus, based on the purchase certificate issued, the claim petitioner claimed absolute right title and possession over the property by virtue of Section 72K of the Kerala Land Reforms Act, 1963 . On behalf of the appellant/first respondent, documents were produced to show that in the proceedings in SM No.523 of 1983, which culminated in the issuance of the purchase certificate, notice was not ordered to Hridayaswamy and therefore the purchase certificate issued without notice to the intermediary is not binding upon him. Further, no evidence was available in the files of the Land Tribunal to show that notice was issued to the landlord, one Harinarayana Iyer. The executing court, on appreciation of the material evidence, came to the conclusion that the claim is unsustainable and accordingly dismissed the application. Aggrieved, the claim petitioner preferred an appeal as AS No.214 of 2012 before the I Additional District Court, Palakkad and the first appellate court reversed the findings of the executing court by holding that the possession certificate proves the conclusive title and possession of the claim petitioner over the decree-scheduled property. Accordingly, the order rejecting the claim petition was reversed and the claim petition was allowed. Hence, the present second appeal.

3. On 28.10.2015, this Court admitted the appeal and issued notice to the respondents on the substantial questions of law, which read as under:

1) Was the Court below justified in assuming that in an O XXI R 99 proceeding, the decree-holder is in the position of the plaintiff and the claim petitioner is the defendant, and inspite of the decree in favour of