Madras High Court
Gurupakiyam vs Pitchaiammal ... 1St on 9 June, 2022
W.A.(MD)No.502 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.A(MD)No.502 of 2022
and
C.M.P(MD)No.4571 of 2022
1.Gurupakiyam
2.P.Vigneshwaran
3.P.Subash Saravanan
4.P.Maheswaran ... Appellants/third party
Vs.
1.Pitchaiammal ... 1st Respondent/writ petitioner
2.The Commissioner of Police,
Madurai City,
Madurai.
3.The Assistant Commissioner of Police,
Thallakulam Division,
Madurai.
4.The Inspector of Police,
Thallakulam Police Station,
Madurai. ... Respondents 2 to 4/Respondents 1 to 3
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.502 of 2022
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent against the
order of this Court in W.P(MD)No.5513 of 2022,dated 29.03.2022.
For Appellants :Mr.S.Siva Ilayaraja
For R-1 :Mr.J.Gunaseelan Muthiah
For R-2 to R-4 :Mr.S.P.Maharajan,
Special Government Pleader
***
JUDGMENT
(Judgment of the Court was delivered by S.S.SUNDAR, J.)
This writ appeal is preferred by third parties to the writ petition in
W.P(MD)No.5513 of 2022, challenging the order passed in the writ petition,
dated 29.03.2022.
2. The writ petitioner is the mother-in-law of the first appellant. The
appellants 2 to 4 are the children of the first appellant. The writ petitioner has
filed an application before Revenue Divisional Officer, for getting possession
of her property by resorting to the provisions of the Maintenance and Welfare
of Parents and Senior Citizens Act, 2007(hereinafter referred to as 'the Act').
The Revenue Divisional Officer, Madurai, by an order dated 12.11.2021, after
hearing the writ petitioner and her son, directed the writ petitioner's son, to
vacate the house belonged to the writ petitioner and handover possession to her,
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W.A.(MD)No.502 of 2022
within a period of three months. Despite the specific order passed by the
Revenue Divisional Officer and the fact that no appeal
had been filed before District Collector under Section
16 of the Act, challenging the order the Revenue Divisional Officer, the writ
petitioner's son failed to handover possession of the house to the writ petitioner.
This propelled the writ petitioner to file a writ petition for issuance of a Writ of
Mandamus, directing the first respondent Commissioner of Police, to take
necessary steps to handover possession of the premises bearing Door No.7,
Jamburapuram Main Road, Goripalayam, Madurai-2, to the writ petitioner, as
per Rule 21 of the Rules framed under the Act.
3. After considering the order passed by the Revenue Divisional
Officer and the provisions of the Act and the Rules framed thereunder, the
learned single Judge allowed the writ petition with a specific direction to the
first respondent in the writ petition to take necessary steps to handover
possession of the property bearing Door No.7, Jamburapuram Main Road,
Goripalayam, Madurai-2, by vacating the writ petitioner's son and daughter-in-
law from the said premises, within a period of four weeks from the date of
receipt of a copy of the order.
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W.A.(MD)No.502 of 2022
4. Challenging the said order passed by the learned single Judge in
the writ petition, the appellants have preferred this writ appeal after getting
leave of this Court on the ground that they are living in the upstairs portion and
that they had been asked to vacate the premises, without being made them as
parties to the writ petition.
5. Though permission was granted to the appellants to file this appeal
without deciding the petitioners' right, this Court is unable to find any
independent right in favour of the appellants to resist the application filed by
the writ petitioner, who is the owner of the property, which is not disputed.
6. It is an admitted fact that the property namely the dwelling house
in respect of which proceedings were initiated by the writ petitioner, belongs to
the writ petitioner. In the complaint given to Revenue Divisional Officer, the
writ petitioner has stated that she was driven out from the residence by her son
and daughter-in-law.
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W.A.(MD)No.502 of 2022
7. Even before this Court, the fact that the property belongs to the
writ petitioner is not disputed. However, the writ petitioner's son wanted some
time to move out from the residence as he does not own another house. Hence,
granting three more months time to the writ petitioner's son to handover
possession, an order was passed. The writ petition is only to direct the official
respondents to execute the order of the Revenue Divisional Officer in terms of
the Rules framed under the Act.
8. In such circumstances, when the appellants have no independent
right, their case as that they are residing in the upstairs portion independently
and the first appellant is not in good terms with her husband cannot be
countenanced. As a matter of fact, in the affidavit filed in support of the stay
petition, the appellants have stated that they have filed a suit in O.S.No.73 of
2022 on the file of the Principal District Munsif, Madurai Town.
9. It is to be noted that under Section 27 of the Act, the civil Court's
jurisdiction is barred and the appellants cannot maintain the suit without an
independent right. This Court is unable to accept the contentions of the learned
counsel appearing for the appellants as having merits.
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W.A.(MD)No.502 of 2022
10. In view of the above, the order of the learned single Judge is in
order and this appeal cannot be entertained as the appellants have no
independent right in respect of the premises. Even in the suit, the first appellant
has stated that she believed that the property would be given to her husband. In
such circumstances, this writ appeal is liable to be dismissed as devoid of
merits.
11. In the result, this writ appeal is dismissed. No Costs.
Consequently, connected miscellaneous petition is closed.
12. The appellants now admit that they are in the first floor of the
building. Though the appellants state that the writ petitioner lives in the ground
floor, the learned counsel appearing for the first respondent/writ petitioner
states that she had already been driven out from the house and she is literally in
street.
13. The learned counsel appearing for the appellants though disputes
the said allegation, the appellants cannot have any objection for the first
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W.A.(MD)No.502 of 2022
respondent/writ petitioner being in possession of the ground floor of the
premises.
14.Therefore, the respondents 2 to 4, are directed to ensure that the
first respondent / writ petitioner is in possession of the ground floor of the
premises. The respondents 2 to 4, shall take possession of the first floor from
the appellants. The respondents shall give four weeks time to the appellants to
vacate the first floor of the premises.
[S.S.S.R., J.] [S.S.Y., J.]
09.06.2022
Index : Yes / No
pm
To
1.The Commissioner of Police, Madurai City,
Madurai.
2.The Assistant Commissioner of Police,
Thallakulam Division, Madurai.
3.The Inspector of Police,
Thallakulam Police Station, Madurai.
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.502 of 2022
S.S.SUNDAR, J.
and
S.SRIMATHY, J.
pm
W.A(MD)No.502 of 2022
09.06.2022
https://www.mhc.tn.gov.in/judis
