R.Mohan vs Sathya Narayanan
2021 Latest Caselaw 9427 Mad

                                                                                C.R.P.(N.P.D).No. 843 of 2018

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 09.04.2021

                                                           CORAM

                                   THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN

                                                C.R.P.(NPD) No.843 of 2018
                                                 and CMP No.4665 of 2018

                     R.Mohan                                               ... Petitioner
                                                              Vs.
                     1.Sathya Narayanan
                     2.Srini
                     3.Murali                                              ... Respondents

                     Prayer :- Civil Revision Petition is filed under Section 115 of Civil
                     Procedure Code, to set aside the order and decreetal order dated 17.07.2017
                     made in I.A.No.4 of 2013 in O.S.No.126 of 2002 on the file of
                     the Additional Sub Court, Vaniyambadi.
                                   For Petitioner      :   M/s.K.M.Vijayan Associates
                                   For Respondents     :   Mr.V.Lakshminarayanan

                                                           ORDER

This Civil Revision Petition is filed against the fair and decreetal

order dated 17.07.2017 made in I.A.No.4 of 2013 in O.S.No.126 of 2002 on

the file of the Additional Sub Court, Vaniyambadi, thereby dismissing the

Execution Petition.

https://www.mhc.tn.gov.in/judis/ C.R.P.(N.P.D).No. 843 of 2018

2. The petitioner is the plaintiff and the respondents are the

defendants in the suit. The petitioner filed a suit for bare injunction in

respect of the suit property. According to the petitioner, his father and

father of the respondents have jointly purchased the suit property to the

extent of 3528 sq.ft, in which the petitioner's father entitled to ½ share. In

the ½ share, the petitioner and his brother partitioned the suit property.

Therefore, the respondents have no right or interest in the suit property.

However, the respondents attempted to trespass into the suit property and

tried to demolish the wall. Therefore, the petitioner filed a suit for bare

injunction in respect of the suit property and the same was decreed by a

judgment and decree dated 26.04.2012, in which, it was concluded that the

property ad-measuring 1764 sq.ft. comprised in Survey No.379/1B, the front

portion of the suit property was purchased by the father of the petitioner and

the same was categorically admitted by the respondents herein.

3. In pursuant to the said decree, the petitioner filed an Execution

Petition for arrest of the respondents for violating the judgment and decree

passed in favour of the petitioner herein. In the execution petition, the

https://www.mhc.tn.gov.in/judis/ C.R.P.(N.P.D).No. 843 of 2018

petitioner examined PW.1 and P.W.2 and marked Ex.A1. The said

respondent examined as DW.1 and documents were marked as Exs.R1 to

R22. Pending Execution Petition, an Advocate Commissioner was

appointed and he also filed his report and the same was marked as Ex.R8.

In fact, pending suit, the Advocate Commissioner was appointed and as per

his report, in the front portion of the suit property, the first respondent is

running a clinic and also a shop was rented out by him to the Sathya Cloth

Centre. Therefore, admittedly the first respondent is in possession and

enjoyment of the part of the suit property. The report also revealed that the

first respondent is running a clinic in a portion of the suit property and also

he rented out a small portion for Sathya Cloth Centre.

4. Admittedly, the property ad-measuring 3528 sq.ft was

purchased by the petitioner's father as well as the father of the respondents.

Thereafter, no partition was done between them. According to the

petitioner, the front portion of the entire suit property ad-measuring 1764

sq.ft was allotted to the petitioner's father and in which the first respondent

occupied a small portion in the front side and he is running a clinic.

https://www.mhc.tn.gov.in/judis/ C.R.P.(N.P.D).No. 843 of 2018

G.K.ILANTHIRAIYAN.J,

lpp Therefore, the Execution Court rightly dismissed the petition. Accordingly,

this Court finds no illegality or infirmity in the order passed by the Court

below. The Civil Revision Petition is dismissed. However, the petitioner is

at liberty to file a suit for partition and proper relief in the manner known to

law, if so advised.

09.04.2021 lpp

Index:Yes/No Internet:Yes/No Speaking Order: Yes/No

To

The Additional Sub Court, Vaniyambadi.

C.R.P.(NPD) No. 843 of 2018 and CMP No.4665 of 2018

https://www.mhc.tn.gov.in/judis/