Madras High Court
Abdul Samadhu vs Varusai Mohideen on 7 January, 2021
S.A.(MD)No.718 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD)No.718 of 2020
and
C.M.P.(MD)No.7351 of 2020
Abdul Samadhu ... Appellant
versus
1. Varusai Mohideen
2. Fathima
3. Seyyed Appas ... Respondents
Second Appeal filed under Section 100 of the Civil Proceedure
Code, against the Judgment and Decree dated 11.02.2020 passed in A.S.No.70
of 2017 on the file of the Additional Sub Court, Tirunelveli, confirming the
Judgment and Decree dated 07.09.2017 passed in O.S.No.221 of 2008 on the
file of the Principal District Munsif, Tirunelveli.
For Appellant : Mr.M.P.Senthil
JUDGMENT
The defendant in O.S.No.221 of 2008 has come up with this Second
Appeal, challenging a decree for permanent injunction restraining him from
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S.A.(MD)No.718 of 2020
interfering with the plaintiffs' peaceful possession and enjoyment of the
property.
2. A suit was laid by the first respondent claiming that the suit
property originally belonged to one Mohamed Ibrahim Ammal, who settled it
in favour of her daughters, namely, Pethammal @ Shekku Meerammal Beevi
and Mohamed Pitchammal, under a Deed of Settlement, dated 12.11.1933.
The half share of Pethammal devolved on her son, namely, Nayina Mohamed
Marakkayar. The said Nayina Mohamed Marakkayar had three children,
namely, Syed Mohamed Marakkayar, Samsu Mohideen Beevi and Sheriba
Ammal Beevi. The first plaintiff had purchased the half share from the above
persons and their heirs, under a sale deed, dated 02.06.1968. The other half
share, which belonged to Mohamed Pitchammal, was settled by her on
29.08.1968 to one P.A.Pakkir Mohideen. The first plaintiff, after his purchase,
had filed a suit for partition in O.S.No.142 of 1988, seeking a division of
property and allotment of his half share. Though the suit was initially
dismissed, on appeal in A.S.No.179 of 2000, a preliminary decree was passed,
which was followed by a final decree on 26.07.2006. Pursuant to the final
decree, the plaintiff filed an Execution Petition in E.P.No.149 of 2007 and had
taken possession of the suit property, which was allowed to him under the final
decree on 28.01.2008 through Court. Contending that the defendant has got
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S.A.(MD)No.718 of 2020
nothing to do with the property and the defendant attempted to interfere with
his possession, the plaintiff filed the above suit.
3. The suit was resisted by the defendant contending that the
plaintiff was never in occupation of the property. The delivery that was
effected on 28.01.2008 was not an actual delivery and it was only a paper
delivery. It was also claimed that the defendant was permitted by the heirs of
P.A.Pakkir Mohideen, to be in occupation of the property and now, he is in
possession of the property and not the heirs of P.A.Pakkir Mohideen.
4. At the time of trial, the plaintiff was examined as P.W.1. One
Jamal Mohideen was examined as P.W.2. Exs.A1 to A6 were marked. On the
side of the defendant, the defendant, Abdul Samadhu, was examined as D.W.1
and one Syed Ali Fathima was examined as D.W.2. Exs.B1 to B38 were
marked.
5. The trial Court, upon consideration of the evidence on record,
concluded that the first plaintiff has proved that he is in possession of the
property. It was also concluded that all the documents produced by the
defendant stood in the name of P.A.Pakkir Mohideen and the same will not
establish the claim of the defendant that he has been in possession of the
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S.A.(MD)No.718 of 2020
property. On the said finding, the learned trial Judge decreed the suit as
prayed for. Aggrieved over the same, the defendant preferred an appeal in
A.S.No.70 of 2017. The learned Appellate Judge, who heard the appeal upon
reconsideration of the evidence, concluded that the findings of the trial Court
do not call for interference. Upon such conclusion, the learned Appellate
Judge dismissed the appeal.
6. I have heard Mr.M.P.Senthil, learned counsel for the appellant.
7. Mr.M.P.Senthil, learned counsel for the appellant, would
strenuously contended that the Appellate Court has overlooked the specific
admission of P.W.1, wherein, he had accepted that the defendant is in
possession of the property. He would also draw my attention to the
non-consideration of his specific claim that the delivery effected on
28.01.2008 in E.P.No.149 of 2007 was only a paper delivery and not an actual
delivery.
8. I have considered the submissions of the learned counsel for the
appellant.
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S.A.(MD)No.718 of 2020
9. As regards the second contention, the defendant claims under
P.A.Pakkir Mohideen, who suffered a decree for partition in O.S.No.142 of
1988 in execution of which the possession was delivered through Court in
E.P.No.149 of 2007 on 28.01.2008.
10. It is a settled law that a party to the proceedings or a person
claiming under such party, cannot contend that the delivery, effected in
execution of a decree, is a paper delivery and actual physical possession was
not handed over.
11. This Court, in C.Ramasami vs. Kuruva Boyan and others, (in
C.M.P.Nos.15647 of 1990 and C.M.P.No.17116 of 1990 in S.A.No.1706 of
1990, dated 18.01.1991) reported in 1991 (1) L.W. 244, held that it is not open
to a party or a representative of the party to raise such contention. In view of
the same, the second contention of the learned counsel stands rejected.
12. As regards the first contention, the learned Appellate Judge has
considered that portion of evidence of P.W.1 and concluded that it would not
amount to admission of possession of the defendant. I am unable to see any
perversity in consideration of evidence on this aspect by the learned appellate
Judge. Despite his best efforts, Mr.M.P.Senthil, learned counsel for the
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S.A.(MD)No.718 of 2020
appellant, is unable to make out a question of law much less a substantial
question of law in order to enable me to entertain this Second Appeal. Hence,
the Second Appeal fails and it is accordingly dismissed without being
admitted. No costs. Consequently, connected miscellaneous petition is closed.
07.01.2021
Index : Yes / No
Internet : Yes / No
ogy
Note: In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order
that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To
1. The Additional Sub Court,
Tirunelveli.
2. The Principal District Munsif,
Tirunelveli.
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S.A.(MD)No.718 of 2020
R.SUBRAMANIAN, J.
ogy
S.A.(MD)No.718 of 2020
07.01.2021
http://www.judis.nic.in
