Madras High Court
Kamurunisha Beevi vs Muppidathi Muthuvellar on 16 August, 2023
C.R.P.(MD).No.229 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(NPD)(MD)No.229 of 2017
Kamurunisha Beevi
... Petitioner/Petitioner/Petitioner/
Decree Holder/Plaintiff
-vs-
1. Muppidathi Muthuvellar
2. Madasamy Vellar (Died)
... Respondents/Respondents/Respondents/
Judgment Debtors/ Defendants 2 and 3
3. Maadatthiyammal
4. Murugan
5. Mariyappan
6. Vellatthai
7. Muthu Lakshmi
8. Velammal
9. Annamalaiammal
10. Saraswathi ... Proposed Respondents
(Respondents 3 to 10 are brought on record as Lrs of the
deceased 2nd respondent vide Court order dated 19.12.2022
made in C.M.P(MD)Nos.2373 to 2375 of 2022 in
C.R.P(MD) No. 229 of 2017)
PRAYER: Civil Revision Petition is filed under Section 115 of the Civil
Procedure Code, against the fair and decreetal order dated 19.10.2016 passed
in E.A.No.214 of 2014 in E.P.No.182 of 2006 in O.S.No.354 of 1999 on the
file of the Principal District Munsif Court, Tenkasi.
1/10
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C.R.P.(MD).No.229 of 2017
For Petitioners : Mr.A.Arumugam
for M/s.Ajmal Associates
For Respondents : Mr.R.J.Karthick
for R1, R3 to R10
ORDER
The present Civil Revision Petition has been filed by the petitioner
under Section 115 of the Civil Procedure Code, against the fair and decreetal
order dated 19.10.2016 passed in E.A.No.214 of 2014 in E.P.No.182 of 2006
in O.S.No.354 of 1999 on the file of the Principal District Munsif Court,
Tenkasi.
2. The petitioner herein is the plaintiff, and the respondents 1 and 2
herein are the defendants 2 and 3 before the Court below.
3. For the sake of convenience, the parties will be referred to as per the
litigative status before the trial Court.
4. The learned counsel for the petitioner would submit that the
petitioner/plaintiff has filed the suit in O.S.No.354 of 1999. In which, a
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C.R.P.(MD).No.229 of 2017
decree of mandatory injunction was granted in respect of the 3rd schedule
property. It is the further submission of the learned counsel for the petitioner
that, in pursuance of the decree, they also moved an execution petition in
E.P.No.182 of 2006 and obtained the removal of encroachment and delivery
of the suit schedule property.
5. It is the further submission of the learned counsel for the petitioner
that after the removal of encroachment, she filed a suit for permanent
injunction and mandatory injunction with the following prayer:-
(M) tof;Fj; njhFg;Giu 3–tJ
ml;ltizr; nrhj;jpy; eilghij chpik ,e;j
tof;fUf;F> mtUf;F chpikg;gl;l ,jd; 2– tJ
ml;ltizr; nrhj;jpid mDgtpg;gjw;F Easement
by Necessity %yk; chpikg;gl;L tpl;lJ vd
tpsk;Gif (declaration) – nra;tjpd; %yk; i\
nrhj;jpYs;s tof;fhpd; eilghij chpik kw;Wk;
mDgtj;ij ,ila+W nra;Ak; tifapy; ,e;j vjph;
tof;fh;fNsh> md;dhh;fspd; tifahl;fNsh> Vty;
ngw;wth;fNsh> ,jd; 3– tJ nrhj;jpd; ml;ltizr;
nrhj;jpy; ve;j gFjpapYk; fl;blk; fl;bNah>
my;yJ NtW vt;tifapYk;> vt;tpjj;jpYk;>
vf;fhyj;jpYk; ,ilA+W nra;af;$lhJ vd ,e;j
vjph; tof;fh;fSf;F vjpuhf epue;ju
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C.R.P.(MD).No.229 of 2017
cWj;Jf;fl;lis (Permanent Injunction)
gpwg;Gtpf;Fk;gbf;Fk;
(,) tof;Fj;njhFg;Giu 3 tJ
ml;ltizr; nrhj;jpd; Nkw;F filrp gFjpahd
GJhh; gs;spf;$lj;njUtpypUe;J EioAk; gFjpapy;
tiuglj;jpy; 'X' vd;w FwpaPL nra;j ,lj;jpy; ,e;j
vjph; tof;fh;fs; thdk; Njhz;b fl;bAs;s
mbj;jsr; Rth;fis khz;GkpF ,e;j ePjpkd;wk;
Fwpg;gpLk; xU fhyf; nfLtpw;Fs; ,e;j
vjph;tof;fh;fNsh i\ Rth;fis ,bj;J
mg;Gwg;gLj;Jk;gbf;Fk; mt;tpjk; nra;aj; jtWk;
gl;rj;jpy; khz;GkpF ,e;j ePjpkd;wk; %yk;> ,e;j
vjph; tof;fh;fspd; nrytpy; ,bj;J mg;Gwg;gLj;j
tof;fUf;F mDkjpaspj;J> ,e;j
vjph;tof;fh;fSf;F vjpuhf nray; cWj;Jf;
fl;lis –(Mandatory Injunction)
gpwg;Gtpf;Fk;gbf;Fk;.”
6. The learned counsel appearing for the petitioner would submit that,
as prayed supra, a decree of permanent injunction restraining the respondents
not to interfere in the peaceful enjoyment of passage in the third schedule
property was granted. It is the submission of the learned counsel for the
petitioner that, contrary to the above decree, during 2013, the respondent has
again made an encroachment by putting thatched sheds. Therefore, they
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C.R.P.(MD).No.229 of 2017
moved an application in E.A.No.214 of 2014 so as to remove the thatched
shed by way of execution of the decree of permanent injunction granted
against the respondents.
7. The learned counsel for the petitioner would invite the attention of
this Court in respect of the counter statement filed by the decree holder in
paragraph No.9. Wherein it has admitted as follows:
“9. ,e;j 2-k; vjph;kDjhuh; VNjh ePjpkd;w
mtkjpg;G nra;J kD 3 - tJ ml;ltizr;
nrhj;jpid Mf;fpukpg;Gr; nra;Js;sJ Nghy
$wpAs;s kDjhuh; kl;LNk Nkw;gb kD 2k;
ml;ltiz nrhj;jpw;F njd;gf;fk; fpoNky; 6 ½
mbAk;> njd;tly; 6 mbAk; kDjhuh; kD 3 - k;
ml;ltizr; nrhj;jpid Mf;fpukpg;G nra;J
epue;jukhd fl;blk; kw;Wk; jfu nrl; Vw;gLj;jp
Mf;fpukpg;G nra;Js;shh;. cz;ik
epiy ,t;thwpUf;f Nkw;gb r%fk; ePjpkd;w
cj;jputpid kDjhuNu mtkjpg;G nra;J
tpl;L ,e;j 2-k; vjph;kDjhuh; kPJ filaey;Yhh;
fhty; epiyaj;jpy; ngha; Gfhh; nfhLf;f kDjhuh;
vj;jdpj;jjpy; Nkw;gb cz;ik epiyapid
njhpe;jjhy; jhd; filaey;Yhh; fhty; epiyaj;jhh;
,e;j 2-k; vjph;kDjhuh; kPJ ahnjhU Fw;w
eltbf;ifAk; vLf;ftpy;iy.”
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C.R.P.(MD).No.229 of 2017
8. By relying upon the above admission, the learned counsel for the
petitioner would submit that the respondent, though categorically admitted
the existence of the encroachment, contend that such an encroachment was
not made by him but by the petitioner herein. Therefore, the learned counsel
for the petitioner would submit that, when the encroachment is admitted, and
when pleaded that the same was done by this defendant himself, there cannot
be any objection to the respondents herein qua the defendants, for the
removal of the said encroachment.
9. Per contra, the learned counsel appearing for the respondents would
contend again by reiterating his contention made in paragraph No.9 of the
counter statement which is extracted elsewhere in this order.
10. This Court has given anxious consideration to the submissions of
the learned counsel on either side.
11. It is an admitted fact that there was decree against the respondent
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C.R.P.(MD).No.229 of 2017
herein for a permanent injunction not to disturb the peaceful possession and
enjoyment over the passage which exist in the third schedule property.
Though the counter statement the respondents admits the existence of
encroachment. But, the issue here is, the encroachment was not done by the
respondents herein.
12. It is pertinent to mention that, by way of permanent injunction, the
petitioner's peaceful possession and enjoyment has been protected from any
type of encroachment. Therefore the core issue here is, whether, such
encroachment has to be removed by way of execution of decree. Here, the
respondents have admitted the encroachment and pleaded that it was not
made by them. Hence, they cannot have any grievance over the removal of
such encroachment incompliance to the decree passed by the Court below.
However, contrary to the said course, the Court below has arrived at a
conclusion that there was an identity issue in respect of the suit property. But
while perusing the counter statement filed by the respondents, such finding is
contrary to the pleadings and not supported by any of the defences put forth
by the respondents.
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C.R.P.(MD).No.229 of 2017
13. Therefore, this Court is of the view that, the learned trial Judge
without any basis has arrived at a conclusion in respect of the identity issue.
Since the trial Court has already granted the permanent injunction and when,
there is an encroachment in the third schedule property, a duty cast upon the
trial Court to remove such an encroachment so as to execute the decree.
14. Therefore, this Court is of the view that the very order passed by
the Court below is liable to be interfered with. Having considered the above
aspects, this Court is of the view that this Civil Revision Petition is liable to
be allowed. Further to have the execution of the decree, this Court deem it fit
to remit this matter back to the Court below for an appointment of
Commissioner and to proceed with the matter according to law.
15. In the result, this Civil Revision Petition is allowed as indicated
above. There shall be no order as to costs.
16.08.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
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C.R.P.(MD).No.229 of 2017
To
1. The Principal District Munsif Court,
Tenkasi.
C.KUMARAPPAN,J.
ebsi
C.R.P(NPD)(MD)No.229 of 2017
16.08.2023
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C.R.P.(MD).No.229 of 2017
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