S.Mallika vs T
2023 Latest Caselaw 2185 Mad

Citation : 2023 Latest Caselaw 2185 Mad
Judgement Date : 9 March, 2023

Madras High Court

S.Mallika vs T on 9 March, 2023

                                                                             C.R.P(MD).No.32 of 2023


                        BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                             DATED : 09.03.2023

                                                   CORAM

                                  THE HONOURABLE MR.JUSTICE C.SARAVANAN
                                           C.R.P(MD).No.32 of 2023
                                                   and
                                           CMP(MD)No.196 of 2023

                  S.Mallika                               ... Petitioner/1st Respondent/
                                                                      1st Defendant

                                                    Vs.

                  1.T,Dhanalakshmi                        ... 1st Respondent/Petitioner/Plaintiff
                  S.Pownammal (Died)
                  2.V.Tamilselvi
                  3.The Idol of Arulmighu Subramania Swamy Thirukoil,
                    Rep by its Executive Officer,
                    Having Office at
                    Sri Subramania Swamy Thirukkoil,
                    Kumaravayalur-620 102,
                    Srirangam Taluk.
                  4.Vijaya
                  5.Kala
                  6.Kannan                             ... Respondents2-6/Respondents 3-7/
                                                                     Defendants 3 - 7


                  PRAYER:- This Civil Revision Petition has been filed under Article 227 of
                  the Constitution of India, to set aside order dated 29.09.2022 in E.P.No.573
                  of 2019 in O.S.No.198 of 2008 on the file of the III Additional District

                  1/5
https://www.mhc.tn.gov.in/judis
                                                                                C.R.P(MD).No.32 of 2023


                  Judge, Tiruchirappalli, and allow the present Civil Revision Petition.


                                      For petitioner    : Mr.P.Vinoth


                                                        ORDER

This petition has been filed to set aside the order dated 29.09.2022 in

E.P.No.573 of 2019 in O.S.No.198 of 2008 on the file of the III Additional

District Judge, Tiruchirappalli.

2.The petitioner is the first defendant in the aforesaid suit which came

to be decreed on 14.10.2011. In pursuant to the judgment and decree of the

Trial Court, the first respondent herein filed E.P.No.573 of 2019 under Order

XXI Rule 11 of CPC for delivery of the suit property.

3.Before the lower Court, it was contended by the petitioner that the

property in question was a joint property belonging to the petitioner and the

temple and that without the proper partition of the property, delivery cannot

be ordered.

4.The Trial Court after examination come to the conclusion that in the

absence of an appeal against the judgment and decree of the Trial Court dated

https://www.mhc.tn.gov.in/judis C.R.P(MD).No.32 of 2023

14.10.2011, the prayer of the petitioner before the lower Court cannot be

accepted. Accordingly, the lower Court has allowed the delivery of the suit

schedule property to the respondent herein in support of the plea.

5.The learned counsel for the petitioner has placed the reliance of the

following decision of the Hon'ble Supreme Court in Gajara Vishnu Gosavi

Vs Prakash Nanasaheb Kamble and Others reported in (2009) 10 SCC

654. para 12 of the said order reads as under:-

“12.There is another aspect of the matter. An agricultural land belonging to the co-parceners/co-sharers may be in their joint possession. The sale of undivided share by one co-share may be unlawful/illegal as various statutes put an embargo on fragmentation of holdings below the prescribed extent.”

6.The learned counsel for the petitioner also drawn attention to the

order of this Court dated 03.03.2023, in CMP(MD)No.2717 of 2023 in

CMA(MD)No.232 of 2023, which was arising out of the same impugned

order passed by the III Additional District Judge, Tiruchirappalli, wherein

stay has been granted.

https://www.mhc.tn.gov.in/judis C.R.P(MD).No.32 of 2023

7.The petitioner cannot maintain this Civil Revision Petition.

Particularly, in the light of the fact that the suit was decreed as earlier as

dated 14.10.2011. That apart, the temple has independently initiated the

proceedings against the impugned order passed by this Court in

CMA(MD)No.232 of 2023. If at all it is for the temple to object the delivery

and not the petitioner who had agreed to sell the land to the first

respondent/plaintiff herein.

8.Therefore, the Civil Revision Petition is dismissed of. No costs.

Consequently, the connected miscellaneous petition is closed.

09.03.2023 NCC : Yes/No Index : Yes/No Internet:Yes/No dss

1.The III Additional District Judge, Tiruchirappalli.