Madras High Court
Mookkammal (Died) vs A/M. Chockkalingasamy Koil ... on 2 August, 2024
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
2024:MHC:3112
C.R.P(MD)No.686 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.08.2024
CORAM:
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
C.R.P(MD)No.686 of 2024
and
C.M.P.(MD)No.3476 of 2024
K.Subramaniam (Died)
1.Mookkammal (Died)
2.Selvaraj
3.Murugalakshmi ... Petitioners/Respondents 1, 2 and 3/
Defendants 2 and 3
vs.
A/m. Chockkalingasamy Koil Devasthanam,
Vembakottai,
Rep. by its Managing Trustee
S.Muthukrishna Thevar ... Respondent/Petitioner/Plaintiff
Prayer:- Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the order and decreetal order dated
06.01.2024 passed in E.A.No.03 of 2023 in E.P.No.02 of 2019 in O.S.No.
197 of 1988 on the file of the District Munsif of Sivakasi.
For Petitioner : Mrs.P.Jessi Jeeva Priya
For Respondent : Mr.P.Mahendran
1/8
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.686 of 2024
ORDER
The Civil Revision Petition is directed against the order dated
06.01.2024 passed in E.A.No.3 of 2023 in E.P.No.2 of 2019 in O.S.No.197
of 1988 on the file of the District Munsif of Sivakasi.
2.The respondent/decree holder herein had originally filed
O.S.No.197 of 1988 on the file of the Additional District Munsif, Sattur.
The prayer was to declare that the plaintiff Devasthanam is the owner of
the property and directing the defendants to quit and deliver possession to
the plaintiff temple and also for mesne profits etc. The suit was originally
dismissed by a judgment and decree dated 12.01.1990. As against the
same, the plaintiff filed an appeal suit in A.S.No.121 of 1990 on the file of
the Sub Court, Srivillputhur. By a judgment and decree dated 25.07.1994,
the appeal suit was allowed and the suit was decreed as prayed for. The
aggrieved defendants further filed Second Appeal No.1391 of 1994 and by
a judgment dated 27.10.2006, the second appeal stood dismissed and the
judgment and decree of the First Appellate Court was confirmed. In order
to execute the same, the present execution petition in E.P.No.2 of 2019 is
https://www.mhc.tn.gov.in/judis
filed. When the delivery warrant was issued, the Court bailiff visited the
site and made the following endorsement:
“bga;yPg; hpl;ld;:
07/02/2024e; njjp rK:f nfhh;l; cj;jut[go vGjpa
mtpltpl;. ,e;ePh; fl;lisapy; fz;l vjph;kDjhuh;fs;> kDjhuUld;
i\ tpyhrj;jpy; nehpy; brd;W tprhhpj;jnghJ 2k;
vjph;kDjhuh; ,we;Jtpl;ljhft[k;> 3> 4k; vjph;kDjhuh;fs; M
$hpy; ,y;yhjjhy; i\ xg;gilg;g[ brhj;ij ghh;itapl;l nghJ
f.vz;.1/309 Of;filahft[k;> f.vz;.1/310 ,oe;j epiyapy;
M];bgl;lh]; brl;lhft[k; ,Ue;jJ. i\ f.vz;.1/309 Of;filapy;
3k; vjph;kDjhuhpd; jk;gpahd R{h;auh$; vd;gth; ,Ue;jhh;. mthplk;
xg;gilg;g[ fl;lis tpguk; vLj;Jf; Twp brhj;ij xg;gilg;g[ bra;a
Twpa nghJ mtUila rfhf;fSld; brhj;ij
xg;gilg;g[ bra;atplhky; jLj;J fyfk; bra;a Kw;gl;ljhy; i\
brhj;ij xg;gilg;g[ bra;a ,ayhjjhYk; i\ brhj;ij
xg;gilg;g[ bra;tjw;F fpuhk eph;thf mYtyh;> rh;itah;> fhtyh;fs;
cjtp njitg;gLtjhYk;> i\ brhj;ij xg;gilg;g[ bra;a ,ayhj
fhuzj;jpw;F kDjhuhplk; rhl;rp ifbaGj;J thq;fpa[k;> mj;jhl;rpa[ld;
fl;lisia hpl;ld; bra;fpnwd; vd cWjpahf Twfpnwd;.”
The decree holder has now filed to amend the door number which was
originally mentioned in the schedule as 1/135A as 1/309 and 1/310. The
said amendment was allowed by the Executing Court. As against which,
the judgment debtors have come on revision.
3.Mrs.Jessi Jeeva Priya, the learned counsel appearing on behalf
of the petitioners would submit that the decree holders have to go only by
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the decree and cannot include a new door number and execute the decree.
According to her, the properties in new door numbers are different
properties and in the guise of the executing the earlier decree, now
possession is sought to be taken with reference to the Government
Poramboke land, which is not part of the decree property. As far as the
Government Poramboke land is concerned, government being the
predominant title holder had permitted the defendants to reside. Therefore,
that portion of the land cannot be taken possession by the decree holder by
trying to make an innocuous amendment of door number.
4.Per Contra Mr.P.Mahendran, the learned counsel appearing on
behalf of the respondent/decree holder would submit that even the tea shop
and the other superstructure is mentioned in the Appellate Court
judgement. The door number has since subsequently been changed, and
therefore it is only an innocuous amendment, which is sought to be
brought in the decree. The same having been allowed by the trial Court
after due consideration of the evidence on record, this Court need not
interfere.
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5.I have considered the rival submissions made on either side
and perused the material records of the case.
6.As a matter of fact, upon dismissal of the second appeal on
27.10.2006, the decree passed by the First Appellate Court has become
final. The decree is one of declaring the right of the petitioner/plantiff
Devasthanam with reference to the suit schedule property and for
consequential decree of ejectment of the defendants. Therefore, the decree
holder Devasthanam is entitled to get possession of the property which is
described in the suit. Upon, perusing the judgment and decree of the appeal
suit, dated 25.07.1994, in the decree, it is mentioned that schedule is as per
the trial Court's decree. Then upon perusal of the trial Court decree, the
following schedule, which is mentioned:
“SCHEDULE OF PROPERTY
Building bearing Door No.1/135 A Vembakottai Village,
Sivakasi Sub Registration District, Sattur Taluk, bounded on the west
by Temple property, on the south by Temple Building, on the north by
temple building occupied by Kandasamy Naicker, on the east by
Sivakasi to Kazhugumalai Road, measuring east to west 16 yards south
to north 8 ½ yards mud building with filed shed.”
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Therefore, it is clear that the temple is entitled for possession of the
property admeasuring East to West 16 yards and South to North 8 ½ yards,
which is surrounded on the south by the temple building itself and on the
north by the temple building occupied by one Kandasamy Naicker and on
the East by Sivakasi to Kalugumalai Road and on the west by remaining
temple property. Therefore, when the four boundaries and the linear
measurements are clear and categorical in the schedule, there is no
question of amendment of door number.
7.If door number is considered to be essential for executing a
decree, in our country, no decree can be executed. The door numbers will
keep on changing and sometimes the parties also do the mischief by
changing the door number. In this case, it is alleged that because of the
efflux of time, the municipality has changed the door numbers. The same is
contested by the petitioners herein. Be that as it may, I hold that the very
amendment sought for the plaintiff itself is unnecessary. The Executing
Court is directed to go by the linear measurements and four boundaries and
accordingly, issue a warrant to the bailiff and the bailiff has to go to the
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spot and has to identify the property and take delivery of the property and
not to find reasons to return the warrant.
8.Accordingly, the Civil Revision Petition is disposed of. In
view of the fact that the suit started in the year 1988, the Execution Court
is requested to proceed further with the original schedule itself and with
the linear measurements and the boundaries alone and the effect delivery
of the property accordingly. The proceedings shall also be expedited and
can be taken up on day-to-day basis as far as possible. No costs.
Consequently, connected miscellaneous petition is closed.
02.08.2024
NCC : Yes
sji
To
The District Munsif of Sivakasi.
https://www.mhc.tn.gov.in/judis
D.BHARATHA CHAKRAVARTHY, J.
sji
02.08.2024
https://www.mhc.tn.gov.in/judis
