Madras High Court
Usha Maheswari vs R.Varadarajaperumal on 6 March, 2025
Author: R.Vijayakumar
Bench: R.Vijayakumar
CRP.(MD).No.3149 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.03.2025
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
CRP.PD.(MD).No.3149 of 2024
against
E.A.No.1/2024
in
E.P.No.139 of 2015
in
O.S.No.208 of 2015
and
CMP(MD).No.18813 of 2024
Usha Maheswari .. Petitioner/Petitioner/Third Party/Third Party
(Cause title is accepted vide Court order dated 13.12.2024 made in CMP
(MD).No.18112 of 2024 in CRP (MD).No.3149 of 2024)
Vs.
1.R.Varadarajaperumal ... Respondent/Third Party/Third Party
2.S.Banumoorthy ... Respondent/Respondent/Third Party
3.The Tahsildar,
Madurai West,
Madurai District. .. Respondent
(R3 is Suo Motu impleaded as per the order of this Court dated
13.12.2024 made in CRP(MD) No.3149 of 2024 and CMP (MD) No.
18113 of 2024)
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CRP.(MD).No.3149 of 2024
Prayer: This Civil Revision Petition is filed under Section 115 of the
Code of Civil Procedure, 1908 to set aside the order passed in E.A.No.
1/2024 in EP.No.139/2015 dated 18.10.2024.
For Petitioner : Mr.R.Maheswaran
for M/s.R.Ramasamy
For R1 : Mr.V.K.Vijayaragavan
for Mr.K.C.Rmalingam
For R2 : Mr.S.Nagarajan
For R3 : Mr.S.P.Maharajan,
Special Government Pleader
ORDER
The third party to O.S.No.208 of 2020 on the file of Sub-Court,
Madurai, is the Revision Petitioner herein.
2. One Rajendran son of Balasubramanian had filed the above said
Suit as against Mr.Manickam, son of Periyasamy Gounder for the relief
of suit for specific performance of contract. The suit was placed before
the Lok Adalat and it was settled on 11.04.2015, wherein the defendant
in the said suit had agreed to execute a sale deed in favour of the
plaintiff, and on execution of the said sale deed, the defendant had agreed
to hand over the possession of the property to the plaintiff. Since, the
defendant has not executed the sale deed in compliance with the Lok
Adalat settlement, the decree-holder/plaintiff had filed E.P.No.139 of
2015 for execution of sale deed by the Court.
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3. The defendant had remained ex-parte in the said execution
petition and a sale deed came to be executed by the Principal Sub-Court,
Madurai in favour of the Plaintiff on 22.09.2015. According to the
learned counsel appearing for the decree holder, out of 53 Cents (suit
schedule property), 15 cents was in possession of some third parties.
Excluding the said 15 cents, 38 cents was taken possession by the decree
holder from the judgment debtor out of the Court.
4. When the decree holder attempted to put up a fence for the said
38 cents, there was obstruction from the revision petitioner and from
other third parties. The decree holder had given an application to the
Inspector of Police, Law and Order, S.S.Colony, Police Station on
29.12.2023, seeking police protection for fencing the 38 cents. Since,
there was no response, the decree holder has filed W.P.(MD).No.2488 of
2024 seeking a mandamus for directing police officials to provide
adequate police protection. This writ petition was disposed of by this
Court on 07.02.2024, directing the Decree Holder to approach the
executing Court by filing appropriate application for providing police
protection.
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5. After sale deed was executed by the Court, the decree-holder son
has executed a settlement deed in favour of his son namely
R.Varadarajaperumal on 03.11.2023 to an extent of 38 Cents. In
compliance with the orders of this Court, the decree holder had filed
E.A.No.1 of 2024 in E.P.No.139 of 2015. The decree holder's son has
filed E.A.No.1 of 2024 in E.P.No.139 of 2015, seeking adequate police
protection to him for fencing the 38 cents of the property. The said
petition came to be allowed on 18.10.2024. The Learned Judge had
issued a direction to the concerned police officials to provide adequate
police protection to the revision petitioner for fencing around the petition
mentioned property.
6. The revision petitioner herein who a the third party to the suit
had filed E.A.No.2 of 2024 to suspend the said order granting police
protection. In the said application, the police help was suspended by the
executing Court on 30.01.2025 till 25.02.2025 and the said application is
pending till date.
7. The civil revision petitioner herein has filed E.A.No.3 of 2024
to implead herself in E.P.No.139 of 2015. The said application is also
pending. It is brought to the notice of the Court that some other third
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parties have filed E.A.No.4 of 2024 claiming right over the property and
the said application is also pending.
8. In the light of the above said facts, the present revision petition
has been filed by the petitioner in E.A.No.2 of 2024 to set aside the order
passed in E.A.No.1 of 2024 granting police protection.
9. According to the learned counsel appearing for the revision
petitioner, the suit is a collusive suit and the decree-holder has not taken
possession through Court, as per the sale deed executed by the Court.
The revision petitioner further contends that she is having independent
right and title over the property. Apart from the right of the private
parties, the Corporation of Madurai has also laid a road over the portion
of the property, therefore, granting police protection to the decree-holder
for fencing the property to an extent of 38 cents would affect their rights.
10. The learned Special Government Pleader appearing for the 3rd
Respondent/Tahsildar, Madurai West, Madurai District also submits that
a road has been laid by the Madurai Corporation in a portion of the 38
cents and therefore without hearing Commissioner of Madurai
Corporation, the issue relating to obstruction of possession cannot be
decided.
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11. The learned counsel appearing for the 2nd Respondent/Son of
the decree-holder had contended that the suit for Specific Performance
has been settled in the Lok-Adalat. Since, the defendant had not executed
the sale deed as per the settlement, this Court has executed a sale deed,
therefore, there is no dispute with regard to the title of the 1st respondent
for an extent of 53 cents. However, the decree holder was able to take
possession only to an extent of 38 cents.
12. The learned counsel appearing for the son of the decree-holder
had further contended that they have filed O.S.No.277 of 2019 before the
Vth Additional District and Sessions Court, Madurai as against 5th
respondent, temple and Madurai Corporation seeking a prayer for
declaration of title and for recovery of possession of 15 cents (over
which the decree holder was not in a possession) to take possession, in
view of the encroachment made by some third parties. The said suit is
pending.
13. The learned counsel appearing for the first respondent herein
had further contended that the revision petitioner herein had filed
W.P(MD).No.27962 of 2024 seeking a writ of mandamus forbearing the
respondent, namely, the decree holder and other official respondents from
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fencing or blocking in respect of the road situated in T.S.No.9, Ellis
Nagar, Ponmeni Village, Madurai and the said writ petition was
dismissed after contest was dismissed. Therefore, the present petition is
not maintainable.
14. The learned counsel appearing for the first respondent herein
has further contended that when the Court has already executed a sale
deed in favour of the father of the first respondent, the title of the first
respondent is not in dispute and therefore, he should be permitted to
fence the 38 cents over which he has already taken possession.
15. Heard both sides and perused all the materials available on
record.
16. The facts narrated above would clearly indicate that the father
of the first respondent herein had obtained a decree for Specific
Performance for an extent of 53 cents. The Court has executed a sale
deed for the entire extent of 53 cents in E.P.No.139 of 2015. According
to the first respondent in the revision petition, they have taken possession
of 38 cents of land from the defendant in the said suit, but they were not
able to take possession of the balance 15 cents.
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17. In view of the fact that there are some encroachments for
removing the said encroachments and to take possession, they had to file
a separate suit. Though it is contended that the first respondent has taken
possession of 38 cents of land, the disputes which are narrated above
would clearly indicate that there is some resistance/obstruction to the
possession of the first respondent, even over the said 38 cents.
18. In such circumstances, the Trial Court ought not to have
ordered police protection petition for fencing the entire 38 cents
especially in view of the fact, the first respondent has not taken
possession of the 38 cents through Court. The revision petitioner herein,
has already filed E.A.No.3 of 2024 to implead herself in E.A.No.1 of
2024. The Trial Court shall proceed to implead the revision petitioner in
E.A.No.1 of 2024. The Trial Court shall also tag the other application
filed by certain third parties under Order XXI Rule 97 of Code of Civil
Procedure, 1908 along with E.A.No.1 of 2024 and a common order shall
be passed.
19. The Trial Court shall conduct trial of E.A.No.1 of 2024 as an
application under Order XXI Rule 97 of Code of Civil Procedure, 1908
and decide the rights of the persons who are obstructing or resisting
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the possession of the first respondent in the revision petition. The right of
the first respondent in the revision will be restricted to 38 cents. As
regards the right of the first respondent with regard to the balance 15
cents, it shall be decided in O.S.No.277 of 2019.
20. In view of the above said deliberations, the revision petition
stands allowed and the order passed in E.A.No.1 of 2024 is set aside. The
matter is remitted back to the Principal Sub Court, Madurai. The learned
Judge is directed to dispose of the said application on the basis of the
observations made by this Court. The Trial Court shall do well to dispose
of E.A.No.1 of 2024 on or before 31.07.2025 and the parties are at
liberty to raise additional pleadings and all the issues to be raised are left
open. No costs. Consequetly, connected miscellaneous petition is also
closed.
06.03.2025
NCC : Yes/No
Index : Yes/No
Internet : Yes
nst
Note- Registry is directed to issue order copy on 10.03.2025
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R.VIJAYAKUMAR,J.
nst
To
1.The
Principal Sub Court, Madurai.
2.The Section Officer,
VR Record Keeper,
Madurai Bench,
High Court of Madras.
against
in
in
and
Dated: 06.03.2025
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