Madras High Court
Saraswathyammal vs Parkavakula Nainargal Sangam on 23 August, 2023
CRP No.1238 of 2017
and CMP.Nos.5857 & 6411 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.08.2023
CORAM :
THE HONOURABLE MRS. JUSTICE T.V. THAMILSELVI
Civil Revision Petition No.1238 of 2017
and
C.M.P. Nos. 5857 & 6411 of 2017
---
Pachaiyammal (Deceased)
1.Saraswathyammal ... Petitioner
Versus
1. Parkavakula Nainargal Sangam,
Tiruvannamalai
Rep.by its President
Krishnamurthy
S/o.Arunachala Nair,
Kudagaman Village,
Tiruvannamalai Taluk.
2. Lakshmi Ammal
3.Murugan
4.Devaki ...Respondents
Civil Revision Petition filed Under Section 115 of the Code of Civil
Procedure, praying to set aside the fair and decretal order dated 29.11.2016,
made in E.A.No.178 of 2002 in E.P.No.218 of 2001 in O.S.No.132 of 1976,
on the file of the District Munsif, Tiruvannamalai.
https://www.mhc.tn.gov.in/judis
1\14
CRP No.1238 of 2017
and CMP.Nos.5857 & 6411 of 2017
For Petitioner : Mr. R. Subramanian for
Mr. C. Ashok kumar
For R1 : Mr. R. Rajarajan
For R2 : No appearance
For R3 : Died
For R4 : No such person
ORDER
The petitioner has filed this revision petition to set aside the fair
and decretal order dated 29.11.2016, made in E.A.No.178 of 2002 in
E.P.No.218 of 2001 in O.S.No.132 of 1976, on the file of the District Munsif,
Tiruvannamalai.
2. The 2nd defendant / 2nd respondent in the above proceedings
has preferred this revision. The 1st respondent herein/ parkavakula Nainargal
Sangam is the plaintiff in O.S.No.138 of 1976 and the said Sangam filed the
suit against the original defendant Patchayammal. The 1st respondent /
Sangam herein filed the suit for eviction of the defendant from the suit
property with a direction to remove the thatched shed put up by her. The
plaintiff claimed that the suit property belongs to the Sangam and originally
leased out to Mannangatti Achari for monthly rent under whom the
defendant's husband become sub-tenant and after death of her husband the
defendant patchayammal continued in possession of the suit property, which
https://www.mhc.tn.gov.in/judis
2\14
CRP No.1238 of 2017
and CMP.Nos.5857 & 6411 of 2017
is forming part of the property belongs to the Sangam. The plaintiff / Sangam
is the owner of the vacant site measuring East to West 162 ft. and North to
South 45 ft. bounded with 4 boundaries.
3. As per the sale deed dated 21.01.1900, the defendant took a
portion of the property as lease and there is a thatched house in the said
property and as shown in the rough plan as demised premises as IJKL. So
they filed a suit for eviction in O.S.No.132 of 1976 before the trial Court and
the suit was dismissed against which A.S.No.93/77 was filed on the file of
Sub-Judge, Tiruvannamalai, and the same also dismissed. The plaintiff has
preferred the Second Appeal in S.A.No.1290 of 1985, before this Court and
the same was allowed on 09/09/1998. While allowing the Second Appeal,
this Court directed the respondent to deliver the possession of the suit vacant
site to the appellant, within a period of three months from the date of
Judgment. But as the original defendant died, her daughter was impleaded as
her legal heirs, and she refused to hand over the possession of the property.
Hence, as a decree holder, filed execution application, wherein the Court
ordered for delivery. When the Court Amina went to the suit property, the
Judgement debtor caused obstruction, so the Amina delivered only the
portion of the property i.e., 16x25 ft., on the eastern corner of the demise
https://www.mhc.tn.gov.in/judis
3\14
CRP No.1238 of 2017
and CMP.Nos.5857 & 6411 of 2017
premises and the remaining portion under the occupation of the Judgment
Debtor was obstructed. Hence, only a portion of the property was given
delivery and still the Judgment Debtor occupied 16x24 ft., which belongs to
the plaintiff / Sangam, because the thatched house possessed by the Judgment
Debtor was surrounded by the vacant site property belongs to the plaintiffs
Sangam and also encroaching the said vacant site, the judgment debtor /
defendant put up construction which, she is not entitled to obstruct to take
possession. Hence, the Sangam filed an application to remove the thatched
Shed and deliver the vacant possession in I.A.No.178 of 2002.
4. The respondent states that description of the property in the
executive proceedings is totally contrary to the decree passed by the Court
and the plaintiff took possession of the property as per the decree and for the
remaining extent there is no decree. Thereby, the plaintiff has no right to seek
the delivery of the remaining extent of 16x24 = 384 sq.ft.
5. Before the Executing Court, both the parties adduced evidence.
On considering the oral and documentary evidence, the executing Court
concluded that at the time of filing of the suit the thatched house was
constructed in East to West 32 ft. and North to South 45 ft., and during the
https://www.mhc.tn.gov.in/judis
4\14
CRP No.1238 of 2017
and CMP.Nos.5857 & 6411 of 2017
pendency of the proceedings the defendant demolished the thatched house
and constructed a terraced building and she is residing there, so the
description of the property as described in the plaintiff schedule more
particularly the physical feature is not present as on date. However, the suit
property 32x44 sq.ft though mentioned as 16x24ft.,but as per the evidence of
the Judgment Debtor, she occupied 32x44 sq.ft which belongs to the Sangam
and she put up terraced building by demolishing the thatched roof, but the
entire extent belongs to the Sangam and the defendant has not produced any
document to show that she is the owner of the property thereby concluded
that the plaintiff is entitled to take delivery of the possession of the remaining
extent by removing the construction. Accordingly, Execution Application
was allowed. Aggrieved by the said order the tenant / defendant / judgment
debtor has preferred this revision.
6 The learned counsel for the revision petitioner submitted that the
Executing Court failed to take note of the schedule of property mentioned in
O.S.No.132 of 76 which would disclose, the extent of property only 384
Sq.ft. more than that plaintiff is not entitled to take delivery. But without
appreciating the legal aspect, granting an order for removal of obstruction in
favour of the plaintiff is totally unfair and liable to be set aside.
https://www.mhc.tn.gov.in/judis
5\14
CRP No.1238 of 2017
and CMP.Nos.5857 & 6411 of 2017
7. Further, the learned counsel for the Revision Petitioner also
argues that Executing Court failed to appreciate the delivery, took out by the
plaintiff through Court amina with regard to the extent of 384 sq.ft. itself
proves that the decree was properly executed, and more than that the plaintiff
is not entitled. The evidence adduced by the Revision Petitioner as such is
not properly appreciated. Hence, he prays to set aside the findings of the
Executing Court as it is sustained with illegality.
8. By way of reply the learned counsel for the respondent / Decree
holder / plaintiff submits that even after 40 years of the decree the Sangam is
not able to take possession of the property due to unlawful obstruction made
by the judgment debtor / defendant and the obstruction was rightly ordered
to be removed by the executing Court. As the defendant failed to prove that
she has right over the property, he prayed to dismiss the petition as devoid of
merits.
9. Heard, Mr. R. Subramaniam, learned counsel for Mr. C. Ashok
Kumar, learned counsel for the petitioner and Mr. R. Rajarajan, learned
Counsel for the first respondent and perused the materials available on
record.
https://www.mhc.tn.gov.in/judis
6\14
CRP No.1238 of 2017
and CMP.Nos.5857 & 6411 of 2017
10. Considering both side submissions and on a perusal of the
record, it reveals that the plaintiff / Sangam is the owner of the vacant site
measuring East to West 162 ft. and North to South 45 ft. bounded with 4
boundaries. as shown as ABCD in the rought sketch, by way of purchase on
25.01.1900. The Husband of the original defendant was a tenant and after his
death the defendant patchayammal was continuously enjoying the suit
property as a tenant, after her demise, now her daughter is in the occupation
of the property. With regard to the dispute, the Sangam filed the suit for
eviction before the Court below it was dismissed but in Second Appeal the
decreed was granted in favour of the plaintiff in S.A.No.1290 of 1985 on
09.09.1998. Thereafter, he filed executing proceedings to take the delivery of
the property. When the Amina went to the property, he found that the
plaintiff encroached some of the property and put up terraced building by
removing thatched shed and also caused obstruction stating that as per the
decree the plaintiff is entitled only for the 16 x 24=384 sq.ft, more than that
they are not entitled to take possession of the property. But admittedly at the
time of filing of the suit there was a thatched shed in the suit property but
during the pendency of the proceedings the said thatched shed was removed
and the defendant put up a pucca terraced building by encroaching the
portion of the property of plaintiff / Sangam. This aspect was illustrated from
https://www.mhc.tn.gov.in/judis
7\14
CRP No.1238 of 2017
and CMP.Nos.5857 & 6411 of 2017
the mouth of RW1, during the Cross Examination before the executing Court
as follows:
"kD brhj;J vdf;F brhe;jkhd brhj;jhFk;
kDbrhj;ij ehd; fpuak; bgwtpy;iy/ Mdhy;
fle;j 50 Mz;Lfhykhf mDgtpj;J tUfpnwd;/
... eluhrd;. jzpfhryk; brhj;Jf;F njw;fhy;
vd;Dila brhj;J mike;Js;sJ/ mtu;fis
kDjhuh;fs;jhd; fhypbra;Jtpl;lhh;fs; vd;why;
rhpjhd;//// nkw;brhd;d brhj;Jf;Fj;jhd; vdf;Fk;
kDjhuUf;Fk; tHf;F ele;J tUfpwJ//////
,t;tHf;F jhf;fyhd fhyfl;lj;jpy; Tiu tPl;od;
ePsk; fpHf;F nkw;F 32 tlf;F bjw;F 44 mo
MFk;/ jw;nghJ ehd; me;j Tiu tPl;il
,oj;Jtpl;L jhd; bkj;ij tPlhft[k; Xl;L
tPlhft[k; fl;o cs;nsd;/ bkj;ij tPl;il fl;o
Rkhh; 15 Mz;Lfs; Mfpd;wd. nkw;brhd;d
,lj;jpw;F jhd; thjp vd;kPJ tHf;F jhf;fy;
bra;jpUe;jhh;/"
The evidence of RW2, which reads as follows:
"jhth brhj;jpd; fjt[ vz; 58/ ,e;j tHf;F
45 tUl';fSf;F nkyhf elf;fpwJ. fjt[ vz; 58.
Muk;gj;jpy; Tiu tPL vd;why; rhpjhd;/ mJ
jw;nghJ bkj;ij tPlhf cs;sJ/ vd; mk;kh nyhd;
nghl;L fl;oaJ/ bkj;ij tPL fl;o 20. 30
tUlkhfpwJ//// Tiu tPl;Lf;F ePs mfyk;
https://www.mhc.tn.gov.in/judis
8\14
CRP No.1238 of 2017
and CMP.Nos.5857 & 6411 of 2017
bjhpahJ/ me;j Tiu tPl;il ,oj;J jhd;
bkj;ij tPL fl;odhh;fs;/ tHf;F epYitapy;
,Uf;Fk;nghJ jhd; me;j Tiu tPl;il ,oj;J
jhd; bkj;ij tPL fl;odhh;fs; vd;why; rhpjhd;/////
vd; mg;gh fl;oa Tiu tPL eapdhh; r';fj;jpw;F
brhe;jkhdJ vd;W cah;ePjpkd;wj;jpny jPh;g;ghdJ
vd;why; ,y;iy/"
11. Therefore, from the evidence of RW.1 and RW.2 as well as the
physical feature as on date, the suit property clearly reveals that the defendant
removed the thatched house and constructed a terraced building for an extent
of 32x44 ft. Admittedly the entire extent ABCD as shown in the rough plan
belongs to the plaintiff Sangam within that suit property was forming part of
the one portion, now the thatched shed was demolished and the defendant put
up a terraced building by encroaching the property, can be vacant site
belongs to the Sangam. Furthermore, it is an admitted fact that the defendant
has no title over the property, within ABCD portion, though she obtained
patta during the pendency of the proceedings, paid the property tax as if they
are the absolute owner of the property, demolished the thatched shed and put
up terraced building. Therefore, these documents will not support the case of
the judgment debtor. Further, during the trial proceedings, they did not claim
that, they are the absolute owner of the property and as per the findings of the
https://www.mhc.tn.gov.in/judis
9\14
CRP No.1238 of 2017
and CMP.Nos.5857 & 6411 of 2017
Second Appeal, the plaintiff Sangam is the owner of the property against
which the defendant has not preferred any appeal before the Hon'ble Supreme
Court, so as on date, the decree is in force.
12. Accordingly, the plaintiff is the absolute owner of the property
eventhough the thatched shed was described in the suit schedule property, at
the time of filing of the suit, during the pendency of the proceedings the
thatched shed was removed and the terraced building was constructed in that
place by occupying the same and also enhanced the property of Sangam. The
vacant site belongs to the Sangam, and it clearly shows that the defendant
caused obstruction to take the delivery possession of the property belonging
to the plaintiff. Therefore, the Executing Court has rightly accepted the claim
of the plaintiff and gave a direction to remove the obstruction, as such it is
valid and permissible under law which needs no interference by this Court.
13. Furthermore, the learned counsel for the petitioner relied the
following authorities (i) reported in (1996) 4 SCC 144, Samir Sobhan
Sanyal vs.Tracks Trade Private Ltd. and others, which reads as follows:
"6.It would thus be clear that without any decree or
order of eviction of the appellant from the demised premises, he
https://www.mhc.tn.gov.in/judis
10\14
CRP No.1238 of 2017
and CMP.Nos.5857 & 6411 of 2017
has been unlawfully dispossessed from the premises without any
due process of law. The question, therefore, is: whether he
should be allowed to remain in possession till his application
under Order 21, Rules 98 and 99 is adjudicated upon and an
order made. Though the learned counsel for the first respondent
and also for the third respondent, ho is one of the transferees
from the sixth respondent, sought to contend that the appellant
has no right to remain in possession after the lessee, M/s.India
Foils Ltd. had admitted by a resolution with the arguments. At
this stage, we are only concerned with his admitted possession
of the demised premises......"
(ii) (2002) 2 SCC 256, Om Prakash Gupta vs.Ranbir B.Goyal, in which it
was held as follows:
"11.The ordinary rule of Civil Law is that the rights of the
parties stand crystallised on the date of the institution of the suit
and, therefore, the decree in a suit should accord with the rights
of the parties as they stood at the commencement of the lis.
However, the Court has power to take note of subsequent events
and mould the relief accordingly subject to the following
conditions being satisfied: (i) that the relief, as claimed
originally has, by reason of subsequent events, become
inappropriate or cannot be granted; (ii) that taking note of such
subsequent event or changed circumstances would shorten
litigation and enable complete justice being done to the parties;
and (iii) that such subsequent event is brought to the notice of
https://www.mhc.tn.gov.in/judis
11\14
CRP No.1238 of 2017
and CMP.Nos.5857 & 6411 of 2017
the Court promptly and in accordance with the rules of
procedural law so that the opposite party is not taken by
surprise. In pasupuleti venkateswarlu V.Motor & General
Traders this Court held that a fact arising after the lis, coming
to the notice of the Court and having a fundamentaly impact on
the right to relief or the manner of moulding it and brought
diligently to the notice of the Court cannot be blinked at. The
court may in such cases bend the rules of procedure if no
substantial justice provided that there is absence of other
disentitling factors or just circumstances. The Court speaking
through Krishna Iyer, J. affirmed the proposition that the Court
can, so long as the litigation pends, take note of updated facts to
promote substantial justice. However, the Court cautioned:(i)
the event should be one as would stultify or render inept the
decretal remedy, (ii) rules of procedure may be bent if no
specific provision or fair play is violated and there is no other
special circumstances repelling resort to that course in law or
justice,(iii) such cognizance of subsequent events and
developments should be cautious, and (iv) the rules of fairness
to both sides should be scrupulously obeyed......"
Though the ratio relied by the petitioner is acceptable one, it does not
apply to the facts of the case in hand as discussed above.
14. Accordingly, this Civil Revision Petition is dismissed as devoid
https://www.mhc.tn.gov.in/judis
12\14
CRP No.1238 of 2017
and CMP.Nos.5857 & 6411 of 2017
of merits. The order passed by the Executing Court is confirmed and the
petitioner is directed to surrender the vacant possession of the Suit property
within a period of three months from the date of receipt of a copy of this
order. Consequently, connected miscellaneous petitions are closed. No costs.
23.08.2023
Index : Yes/No
Speaking/Non Speaking order
Neutral Citation:Yes/No
rri
To
1.The District Munsif, Tiruvannamalai.
2.The Section Officer,
VR-Section, High Court of Madras.
https://www.mhc.tn.gov.in/judis
13\14
CRP No.1238 of 2017
and CMP.Nos.5857 & 6411 of 2017
T.V.THAMILSELVI, J.
rri
Civil Revision Petition No.1238 of 2017
and
C.M.P. Nos. 5857 & 6411 of 2017
23.08.2023
https://www.mhc.tn.gov.in/judis
14\14
