Madras High Court
M.Gopal vs M.Manikandan on 8 January, 2024
CRP.No.2142 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.01.2024
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
CRP.No.2142 of 2019
and
CMP.No.13805 of 2019
M.Gopal ... Petitioner
Vs.
1.M.Manikandan
N.Madhavan (Deceased)
M.Kamalakannan (Deceased)
M.Raghuraman (Deceased)
2.M.Venkatraman
M.Vijayaragharan (Deceased)
M.Lakshmi (Deceased)
3.K.Dhanalakshmi
4.K.Anand
5.K.Chitra ...Respondents
Prayer: Civil Revision Petition filed under Section 115 of the Code of Civil
Procedure, against the fair and final order dated 11.06.2019 made in
1/6
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CRP.No.2142 of 2019
E.P.No.1901 of 2012 in OS.No.7479 of 1994 on the file of the IX Assistant
City Civil Court, Chennai.
For Petitioner : Mr.D.Padmanabhan
For Respondents : Mrs.B.N.Sivagama Sundari
for Mr.R.Balasubramanian for R1
R2- Died step due
R3 to R5 Batta due reg.
ORDER
Aggrieved by the order directing the delivery of property in
execution, the judgment Debtor-3/third defendant has come by way of this
Revision.
2. The first respondent filed a suit for recovery of possession
against the petitioner and other respondents in respect of the property
described in the plaint schedule with four boundaries. It was the case of the
petitioner that the defendants executed a sale deed in favour of the
plaintiff/first respondent herein on 27.04.1987 and the same was registered as
Document No.859 of 1987 on the file of the Sub-Registrar, Mylapore.
Subsequently, inspite of repeated requests, the judgment debtors/defendants
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failed to hand over the physical possession of the property and hence, the first
respondent was constrained to file a suit for recovery of possession.
3. The suit was decreed by this Court on 10.11.2008 and
thereafter the first respondent filed an Execution Petition seeking delivery of
the property described in the decree in E.P.No.1901 of 2012 on the file of the
IX Assistant Judge, City Civil Court, Chennai. The said execution petition
was resisted by the petitioner/3rd judgment debtor on the ground that though
the extent of the suit property was mentioned as 1660 sq.ft in the plaint, the
property available on the ground within four boundaries mentioned in the
plaint is 1870 sq.ft as found by the Advocate Commissioner. Therefore,
without demarcating the correct extent, the first respondent is not entitled to
take possession of the entire property covered by the four boundaries. Not
satisfied with the objection raised by the petitioner herein, the Court below
passed the order of delivery and aggrieved by the same, the petitioner is
before this Court.
4. The decree for possession was passed in favour of the first
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respondent in respect of the property covered by four boundaries. It is settled
law, in case of any dispute with regard to the extent boundaries will prevail
over the extent. Therefore, the points raised by the petitioner cannot be
accepted. Further, the dispute with regard to the extent was not raised by the
petitioner in his written statement. When he had an opportunity to raise the
dispute with regard to the discrepancy in the extent he failed to raise the same
in the written statement. In such circumstances, the petitioner is not entitled to
raise the same points at the time of execution.
5. Accordingly, I do not see any reason to interfere with the
orders passed by the Court below and hence, this Civil Revision Petition is
dismissed. No costs. Consequently, connected Miscellaneous Petition is
closed.
08.01.2024
Index : Yes / No
Internet : Yes / No
Neutral Citation Case : Yes/No
dna
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To
The IX Assistant City Civil Court, Chennai.
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S.SOUNTHAR , J.
dna
and
08.01.2024
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