Madras High Court
Kannan vs Venkatachalam on 31 January, 2022
C.R.P. (NPD) Nos.680 of 2019 & 1426 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.01.2022
CORAM:
THE HONOURABLE MR. JUSTICE S.S.SUNDAR
C.R.P. (NPD) Nos.680 of 2019 & 1426 of 2020
and
C.M.P.Nos.4446 of 2019 & 8200 of 2020
Kannan
Represented by his Wife and
Power of Attorney
Sinnammal .. Petitioner
in both petitions
Vs.
1.Venkatachalam
2.Sadasivam
3.Subramanian
4.Balayya .. Respondents in
C.R.P. (NPD) No.680 of 2019
1.Venkatachalam
Represented by Power Agent
Subramanian
2.Sadasivam
3.Subramanian
4.Balayya .. Respondents in
C.R.P. (NPD) No.1426 of 2020
https://www.mhc.tn.gov.in/judis
C.R.P. (NPD) Nos.680 of 2019 & 1426 of 2020
Civil Revision Petitions in C.R.P. (NPD) Nos.680 of 2019 & 1426 of
2020 are filed under Article 227 of Constitution of India, to set aside the
fair and decretal orders passed by the II Additional District Munsif,
Puducherry, dated 07.09.2018 and 20.02.2020 respectively in E.A.No.334
of 2012 in E.P.No.15 of 2012 in O.S.No.356 of 1989 and E.A.No.51 of
2019 in E.P.No.15 of 2012 respectively.
For Petitioner : Mr.V.Raghavachari
in both petitions
For Respondents : Mr.Babu Rangasamy
in both petitions
COMMON ORDER
These Civil Revision Petitions are directed against the order passed in
E.A. No.334 of 2012 in E.P. No.15 of 2012 in O.S. No.356 of 1989
dismissing the petition filed by the revision petitioner under Section 47
C.P.C. dismissing the Execution Petition in E.P. No.15 of 2012 and against
the order passed in E.A. No.51 of 2019 in E.P. No.15 of 2012 allowing the
petition filed by the respondent to execute the warrant of delivery by
removing the super structure which is put up by the revision petitioner.
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C.R.P. (NPD) Nos.680 of 2019 & 1426 of 2020
2. The revision petitioner is the defendant in the suit in O.S. No.356 of
1989 on the file of II Additional District Munsif Court, Puducherry. The
suit was filed for declaration that the respondents are the owners of suit 'B'
Schedule property and for recovery of possession. The suit is also for
mandatory injunction for the removal of the super structure stated to have
been constructed by the revision petitioner in suit 'B' schedule property.
Based on the Commissioner's report and title documents, the suit was
decreed as prayed for. A specific issue was framed in the suit itself whether
the defendant in the suit namely the revision petitioner had trespassed into
the suit property and raised a construction and whether the construction
put up by the defendant should be demolished by issuing a mandatory
injunction. The trial Court, after holding that the suit 'B' schedule property
is the absolute property of respondents, further held that the defendant has
raised a construction in the plaintiff's property without any manner of right
and therefore, the plaintiffs are entitled to get the relief of mandatory
injunction to demolish the construction raised in the suit 'B' schedule
property.
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C.R.P. (NPD) Nos.680 of 2019 & 1426 of 2020
3. Aggrieved by the judgment and decree, the revision petitioner
preferred an appeal in A.S. No.78 of 1996 on the file of I Additional Sub
Court, Puducherry. The appeal filed by the revision petitioner was also
dismissed by judgment and decree dated 17.01.1997 It is admitted that in
the Second Appeal, this Court also confirmed the judgment and decree of
the trial Court and the lower appellate Court. Thereafter, the respondents /
plaintiffs filed an Execution Petition in E.P. No.15 of 2012 before the II
Additional District Munsif Court, Puducherry. During pendency of
execution petition, the revision petitioner filed an Execution Application in
E.A. No.334 of 2012 under Section 47 C.P.C., to dismiss the execution
petition in E.P. No.15 of 2012 since the decree in the suit is having a legal
infirmity and the decree is not executable in nature.
4. In the affidavit filed in support of the petition, the revision
petitioner has stated that the respondents have committed fraud and
obtained decree without proper records and justification. It is further stated
that the respondents have misrepresented the facts and obtained decree as
if they are the owners of the property to which the respondents have
obtained a declaration of their title. Several allegations are made in the
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C.R.P. (NPD) Nos.680 of 2019 & 1426 of 2020
affidavit pointing out how the Court has granted decree in favour of the
respondents without considering the defects and irregularities pointed out
in the affidavit. One of the allegations in the affidavit is that the description
of the property for suit 'A' and 'B' schedule are not real and that the
respondents are trying to grab the petitioner's property in R.S. No.232/1A3,
which is not the subject matter of suit.
5. It is admitted now before this Court that an Advocate
Commissioner was appointed during trial of the suit to identify whether
there was any encroachment in suit 'B' schedule property by the revision
petitioners. Based on the Commissioner's report, the trial Court came to the
conclusion that the revision petitioners have encroached into a portion of
the property of plaintiff and that the respondents are entitled to get a decree
as prayed for. Ignoring the findings of the trial Court on the crucial issues,
the revision petitioner has filed E.A. No.334 of 2012 which is nothing but
an attempt to re-litigate and reopen issues which have become final. It is to
be noted that the revision petitioner has also made an alternative
submission in the suit that the plaintiff is not entitled to any relief
particularly the relief of mandatory injunction by applying the doctrine of
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C.R.P. (NPD) Nos.680 of 2019 & 1426 of 2020
acquiescence. In other words, in a way the revision petitioner has admitted
the encroachment and pleaded that the plaintiff is not entitled to the relief
by relying upon the principle of estoppel by acquiescence which enable the
defendant in such cases to save the property by paying the value of the
property which was encroached by him by putting up a construction. The
revision petitioner wanted to establish during trial that the plaintiff did not
object to the construction when it was made and that therefore, they are not
entitled to delivery of suit 'B' schedule property while was encroached by
the defendant as the plaintiff can only get the value of the property
encroached by the defendant. This plea was rejected which granting a
decree as prayed for.
6. The Executing Court, after considering the pleadings and the
submissions of both sides, dismissed the application in E.A. No.334 of
2012 in E.P. No.15 of 2012. The trial court has considered the objections
raised by the revision petitioner and had rendered a categorical finding that
the defendants are liable to hand over possession of the property mentioned
in the Commissioner's report. It is pointed out that the trial Court has
considered all the issues and found that the construction put up by the
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C.R.P. (NPD) Nos.680 of 2019 & 1426 of 2020
defendant encroaching the plaintiff's property is proved as seen from the
Commissioner's report. Since the findings of the trial Court has reached
finality though the matter was taken up to this Court by way of Second
Appeal, the lower Court has found that the application filed by the revision
petitioner is devoid of merits and lacks bonafides.
7. The suit was pending from the year 1989. In the affidavit filed in
support of the petition, the revision petitioner has to establish as to how the
decree in the suit is not executable. None of the issues raised by the
petitioner would come under the purview of Section 47 C.P.C. to enable the
defendant in the suit to obstruct the execution of decree. The decree that
was obtained by the respondent plaintiff is executable and the contention of
the revision petitioner in the application filed under Section 47 C.P.C. had
already been negatived by the Court at the time of trial. The revision in
C.R.P. No.680 of 2019 has no merits.
8. The other Civil Revision Petition in C.R.P. No.1426 of 2020 is
directed against order allowing the petition filed by the respondents decree
holders directing the Amine and Surveyor to execute the warrant of
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C.R.P. (NPD) Nos.680 of 2019 & 1426 of 2020
delivery by removing the super structure put up by the defendant in the suit
as per the Commissioner's report which was marked as Ex.C1. The
Commissioner's report gives a clear finding with regard to the portion
which was found to be encroached by the revision petitioner's
unauthorizedly. The Court has considered the facts in detail and found that
the decree which has become final has to be executed as the plaintiff's
decree holders are entitled to the fruits of the decree.
9. This Court find no reason to interfere with the findings of the
Court below in allowing the execution petition for delivery of property after
demolishing the super structure which was put up by the revision
petitioners unauthorisedly over the property of the respondents plaintiffs.
For the reasons recorded above, this Court finds no merits in these Civil
Revision Petitions. Thus the Civil Revision Petitions are dismissed with
costs. Consequently, connected miscellaneous petitions are closed.
31.01.2022
Internet : Yes
Speaking order / Non-speaking order
Index: Yes / No
bkn
https://www.mhc.tn.gov.in/judis
C.R.P. (NPD) Nos.680 of 2019 & 1426 of 2020
To
The II Additional District Munsif, Puducherry.
https://www.mhc.tn.gov.in/judis
C.R.P. (NPD) Nos.680 of 2019 & 1426 of 2020
S.S.SUNDAR, J.,
bkn
C.R.P. (NPD) Nos.680 of 2019 & 1426 of 2020
31.01.2022
https://www.mhc.tn.gov.in/judis
