Madras High Court
Rajeswaran vs Saifulla on 29 November, 2021
C.R.P(PD)(MD) No.1866 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.11.2021
CORAM
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P (PD)(MD)No.1866 of 2021
and
C.M.P(MD) No.10021 of 2021
Rajeswaran ... Petitioner
Vs.
1.Saifulla
2.M.M.Jamal Mohaideen ... Respondents
PRAYER:- Civil Revision Petition filed under Section 115 of the Civil
Procedure Code, to call for the records pertaining to the Fair Order and
Decreetal order in E.A.No.7 of 2021 in E.P.No.37 of 2018 in O.S.No.71
of 2007 on the file of the Sub Court, Thiruchendur dated 12.11.2021 and
to set aside the same.
For Petitioner : Mr.P.Gowrishankar
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C.R.P(PD)(MD) No.1866 of 2021
ORDER
The third party, whose application under the provision of Order 21
Rule 97 r/w section 47 C.P.C in E.A.No.7 of 2021 in E.P.No.37 of 2018
was dismissed by the learned Subordinate Judge, Thiruchendur, is the
party aggrieved before this Court.
2. The facts in brief are as follows:-
(i) The first respondent herein who is the plaintiff in the suit in
O.S.No.71 of 2007 had filed the above suit to declare that he is the
absolute owner of the suit schedule property and directing the
defendant /second respondent herein to deliver the possession of the suit
property to him. The said suit after contest was decreed in favour of the
plaintiff. Thereafter, the second respondent had filed an appeal in
A.S.No.12 of 2015 on the file of the 1st Additional District Court,
Thoothukudi. The said appeal after contest was dismissed on
23.03.2018, against which the second appeal in S.A(MD)No.52 of 2019
was filed and the same was dismissed on 16.03.2021 and thereby, the
judgment and decree in O.S.No.71 of 2007 attained finality.
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C.R.P(PD)(MD) No.1866 of 2021
(ii) Thereafter, the first respondent had filed E.P.No.37 of 2018
against the second respondent for delivery of possession. Since the
execution petition was not being proceeded with, the first respondent had
filed C.R.P(MD) No.810 of 2021 on the file of this Court for a direction
to dispose of E.P.No.37 of 2018 expeditiously. The revision was allowed
and the Executing Court was directed to dispose of E.P.No.37 of 2018 on
or before 01.09.2021. At this juncture, the second respondent had filed
in E.A.No.2 of 2021 for stay and the same was dismissed by order dated
25.08.2021 and on 31.08.2021, the Executing Court had directed delivery
and the decree holder / first respondent was directed to submit the
delivery batta. Since the proceedings could not be concluded on
01.09.2021 as directed by this Court, extension was sought for and time
was granted till 27.11.2021. The delivery warrant in the meanwhile was
returned for want of police protection and the first respondent had filed
E.A.No.6 of 2021 for providing police protection to effect delivery of the
property and when the said application was pending, the impugned
E.A.No.07 of 2021 came to the filed by the third party/ revision
petitioner herein.
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C.R.P(PD)(MD) No.1866 of 2021
(iii)The revision petitioner had set up a lease cum sale agreement
dated 15.05.1993 said to have been executed by one Sehu Sulaiman in
his favour renting the property on an annual rental of Rs.6,000/- with an
advance of Rs.10,000/- for a period of 28 years commencing from
15.05.1993 and ending on 14.05.2020. The case of the petitioner is that
under the agreement, i.e., lease cum sale agreement, it was agreed that at
the end of 28 years the said Sehu Sulaiman would execute a sale deed in
favour of the petitioner herein and he has been in continuous possession
and enjoyment of the property and he had come to know about the suit in
O.S.No.71 of 2007 only when the bailiff had visited the suit property.
The decree in O.S.No.71 of 2007, according to the revision petitioner,
was obtained by collusion and fraud. Therefore, he had filed an
obstruction petition.
(iv) The first respondent had filed a detailed counter stating that
not a single document had been filed to show that the petitioner was in
possession and enjoyment of suit schedule property. That apart, the deed
of lease cum agreement dated 15.05.1993 appears to be a fraudulent
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C.R.P(PD)(MD) No.1866 of 2021
document. The second respondent had been contesting the said petition
all along claiming to be in possession of the property and the present
application was nothing, but a last ditch attempt on the part of the second
respondent to ensure that the first respondent herein does not take
possession of the suit property.
(v) The learned Subordinate Judge, Thiruchendur, after hearing
both parties dismissed the said application. The learned Judge held that
the petitioner, who claims to be in possession and enjoyment of the
property for over 20 years, had not produced a single document to show
that he has been in possession of the suit property at any point of time.
That apart, the document in question was unregistered and not adequately
stamped, which cannot be accepted in evidence. The revision petitioner
had not stepped into the witness box to adduce evidence. Therefore, the
learned Judge had dismissed the petition. Challenging the same the
revision petitioner is before this Court.
3.Heard the learned counsel for the petitioner and perused the
records.
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C.R.P(PD)(MD) No.1866 of 2021
4.As rightly pointed out by the learned Subordinate Judge,
Thiruchendur, the petitioner has not produced any documents to show his
possession and enjoyment of the suit property for over 28 years. The
documents filed by him namely Ex.P1 and Ex.P2 do not in any way
prove his case. The lease cum sale agreement dated 15.05.1993 has
rightly been rejected to be received an evidence by the learned Judge,
since the same is not registered and not adequately stamped. If really the
petitioner was in possession of the property, he would have definitely
come to know about the proceedings much earlier. Further, if the lease
cum sale agreement was a true document, the said Sehu Sulaiman would
not have sold the suit property to the plaintiff under the registered
document on 26.03.2007 and once the sale is effected in favour of the
first respondent, the petitioner cannot claim any right over the same.
5.In the result, this Civil Revision Petition is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
29.11.2021
Index :Yes/No
Internet :Yes/No
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C.R.P(PD)(MD) No.1866 of 2021
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:-
The Subordinate Judge,
Thiruchendur.
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https://www.mhc.tn.gov.in/judis
C.R.P(PD)(MD) No.1866 of 2021
P.T.ASHA, J.
cp
C.R.P (PD)(MD)No.1866 of 2021
and
C.M.P(MD) No.10021 of 2021
29.11.2021
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https://www.mhc.tn.gov.in/judis
