Madras High Court
Subbaiah Nadar vs Ramalakshmi on 6 December, 2023
CRP (MD) No.1524 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 28.07.2023
Pronounced on 06.12.2023
CORAM:
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN
THILAKAVADI
CRP (MD) No.1524 of 2023
and
CMP (MD).No.7534 of 2023
Subbaiah Nadar
... Petitioner/Defendant
Vs
Ramalakshmi ... Respondent/Plaintiff
PRAYER: Civil Revision Petition filed under Section 115 of the Civil
Procedure Code seeking to set aside the order dated 31.03.2023 made in
E.P.No.26 of 2019 on the file of the learned Principal Subordinate Judge,
Tenkasi in O.S.No.328 of 2015 on its file and set aside the same as illegal by
allowing this Civil Revision Petition.
For Petitioner : M/s.T.Indrachithu
For Respondent : Mr.Sankara Rama Subramanian
*****
1/7
https://www.mhc.tn.gov.in/judis
CRP (MD) No.1524 of 2023
ORDER
This revision petition is preferred as against the order dated 31.03.2023
passed in E.P.No.26 of 2019 on the file of the learned Principal Subordinate
Judge, Tenkasi in O.S.No.328 of 2015.
2.According to the revision petitioner, the revision petitioner had
constructed a house in the land which is the subject matter in the suit in
O.S.No.328 of 2015 which is in door No.59. However, the door number was
wrongly mentioned as 14.11.4 in all the connected proceedings including the
suit in O.S.No.328 of 2015 and E.P.No.26 of 2019. It is submitted that
E.P.No.26 of 2019 was ordered based on the wrongful door number
mentioned by the respondent/plaintiff in the plaint, though the correct door
number of the revision petitioner is door number 59. Moreover, the
Executing Court allowed the execution petition in E.P.No.26 of 2019 while
the first appeal in A.S.No.20 of 2023 is pending before the learned Additional
District Judge, Tenkasi for adjudication. Since the revision petitioner is in
possession of the property from the year 1998 after purchasing the same from
the respondent by way of unregistered sale deed, the revision petitioner has
https://www.mhc.tn.gov.in/judis
good case to succeed in the appeal. While so, the Executing Court erred in
allowing the execution petition, moreover the revision petitioner is entitled to
adverse possession in the suit property. Hence, the order passed by the
learned Principal Sub Judge, Tenkasi, in E.P.No.26 of 2019 in O.S.No.328 of
2015 is liable to be set aside.
3.On the other hand, the learned counsel appearing for the respondent
would submit that the suit in O.S.No.328 of 2015 was filed by the
respondent/plaintiff for recovery of possession. It is submitted that on
22.02.1995 the Revenue Authorities assigned the suit property in favour of
the respondent/plaintiff in which the plaintiff constructed a house and was
residing there along with his family. The house tax was assessed in the name
of the respondent/plaintiff. The husband of the respondent/plaintiff was a
drunkard who left the family in the year 1998. At that time, the
respondent/plaintiff's husband borrowed a sum of Rs.10,000/- from the
defendant and since he was unable to repay the same, the petitioner/defendant
was allowed to enjoy the suit property. At that time, the petitioner/defendant
obtained the signatures of her husband in blank stamp papers, which were
fabricated by the petitioner/defendant and the petitioner/defendant had also
https://www.mhc.tn.gov.in/judis
taken the original patta from the respondent/plaintiff's husband. The
petitioner/defendant attempted to transfer the patta in his name which was
objected by the respondent/plaintiff on 03.09.2015. The respondent/Plaintiff
caused the legal notice to the petitioner/defendant for which he had sent a
reply notice with false allegations. Hence, the respondent/plaintiff was
constrained to file the above suit for recovery of possession of the suit
property. The suit was decreed in favour of the respondent/plaintiff and he
filed E.P.No.26 of 2019 for execution of the decree. Mere filing of the appeal
would not prevent the respondent/plaintiff in filing the execution petition to
execute the decree passed in favour of the respondent/plaintiff. Hence, the
civil revision petition is devoid of merits and is liable to be dismissed.
4.Heard on both sides and records perused.
5.The respondent/plaintiff has filed a suit in O.S.No.328 of 2015 for
recovery of possession of the suit property. According to the
respondent/plaintiff the suit property was assigned in her favour. The suit
property originally belong to the Government and the same was assigned in
her favour by the Government and patta was also issued in the name of the
https://www.mhc.tn.gov.in/judis
plaintiff. The husband of the respondent/plaintiff borrowed a sum of Rs.
10,000/- from the petitioner/defendant and that time, the petitioner/defendant
was allowed by the respondent/plaintiff's husband to enjoy the suit property
and also the petitioner/defendant had taken the signature of the plaintiff's
husband in blank stamp papers and the original patta from the plaintiff's
husband. Thereafter, the petitioner/defendant attempted to transfer the patta
in his name which was objected by the plaintiff and therefore, she was
constrained to file the above suit for recovery of possession.
6.The trial Court after considering the material on record decreed the
suit in favour of the plaintiff and ordered for recovery of possession directing
the respondent to hand over possession of the suit property to the plaintiff.
The plaintiff filed E.P.No.26 of 2019 for execution of the decree passed in
her favour. Though the revision petitioner/defendant had submitted that he
had preferred the first appeal against the decree and judgment passed by the
trial Court, that alone would not prevent the respondent/plaintiff from filing
an application before the Executing Court to execute the decree passed in
favour of the respondent/plaintiff. However, the petitioner/defendant has
sufficient opportunity to approach the appellate Court for staying the
https://www.mhc.tn.gov.in/judis
proceedings in the execution petition until disposal of the appeal suit.
7.With the above observation, this Civil Revision Petition stands
dismissed. No costs. Consequently, connected miscellaneous petition is
closed.
06.12.2023
vsn
To
The Principal Subordinate Judge, Tenkasi
https://www.mhc.tn.gov.in/judis
K.GOVINDARAJAN THILAKAVADI
vsn
and
06.12.2023
https://www.mhc.tn.gov.in/judis
