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2004 DIGILAW 282 (MAD)

K. Samy v. Smt. Sulochana & Others

2004-02-25

S.K.KRISHNAN

body2004
Judgment :- The Civil Revision Petition is directed against the fair and executable orders passed in E.P.No.43 of 1995 in O.S.No.62 of 1981 on the file of the District Munsif Court, Gudalur, The Nilgiris, dated 23.10.2000. 2. As against the petitioner, the respondents' father one Sangameswaran instituted a suit for permanent injunction on the ground that the revision petitioner attempted to trespass into the suit land on 29.11.1980 and 30.11.1980 when the plaintiff was away at Coonoor. 3. It is further alleged that the revision petitioner and his men have already attempted to trespass into the suit land and dispossess the plaintiff; that the revision petitioner and his men not only trespassed into the suit property but also destroyed the standing paddy crops raised by the plaintiff. In order to restrain the revision petitioner and his men from interfering into the peaceful possession and enjoyment of the property, the respondents' father Sangameswaran has preferred the suit. 4. The said suit was contested by the revision petitioner. It was contended by the revision petitioner herein that he was a lessee under one S. Shanmugasundaram. The said Shanmugasundaram leased out the property to the revision petitioner to the extent of 7 acres and 25 cents. It is alleged that the revision petitioner was cultivating paddy to an extent of 5 acres and in the remaining vacant portion, the revision petitioner had put up a house and is living with his family members. It was the case of the revision petitioner that when he was about to hand over the property to the brother of Shanmugasundaram who came over to Gudalur from Pollachi after the death of his brother Shanmugasundaram, the plaintiff obtained an order of injunction and entered into the suit property and harvested the standing paddy crops raised by the revision petitioner. Further, the revision petitioner prayed the Court for a direction to pay the money value of the standing crops by the plaintiff. 5. It is an admitted fact that the said suit filed by the father of the respondents was decreed ex parte. It is stated that when the order of decree was in force, on 3.2.1995, the revision petitioner and his men violated the order of injunction and entered into the suit property and broke open the house and also damaged the standing crops cultivated by the respondents' father. It is stated that when the order of decree was in force, on 3.2.1995, the revision petitioner and his men violated the order of injunction and entered into the suit property and broke open the house and also damaged the standing crops cultivated by the respondents' father. Since the local police did not take any action against the trespassers, the father of the respondents filed a petition in E.P.No.43 of 1995 for causing arrest of the revision petitioner. 6. At this juncture, it is pertinent to discuss certain facts connected with this dispute. It is seen that the respondents preferred a revision petition against the dismissal of the E.P.No.43 of 1995 by the District Munsif. While allowing the revision petition, the learned Judge of this Court gave a specific direction in para 10 of the order which is as follows: "10. Therefore, the order of the learned District Munsif cannot be sustained and the execution petition filed by the Revision Petitioners has to be held to be maintainable. However, the learned District Munsif did not go into the issue as to whether there was any violation of the decree as contended by the Revision Petitioners. The finding on the said issue would be necessary before invoking the provisions under Order 21, Rule 32, and therefore, the order passed in Execution Petition No.43 of 1995 in O.S.No.62 of 1981 is liable to be set aside and has to be remanded back to the learned District Munsif for further enquiry and specific finding as regards whether there is any violation of the decree for injunction." 7. As per the directions issued by the learned Judge of this Court, the learned District Munsif, Gudalur, disposed of the execution petition in E.P.No.43 of 1995 on 23.10.2000 holding that the revision petitioner and his men have violated the injunction order passed by that Court. As against the said order, present revision has been preferred by the petitioner. 8. Now, the point that arise for consideration is whether the order passed by the learned District Munsif is irregular and improper and in such circumstances, whether this Court has to necessarily interfere with the said order. 9. The main contention of the revision petitioner is that he and his family members have been in occupation of the house bearing door No.12/683 continuously from 1975. 9. The main contention of the revision petitioner is that he and his family members have been in occupation of the house bearing door No.12/683 continuously from 1975. Since the revision petitioner and his family members were in occupation of the house in question for a long time, he denied the allegation of the respondents that he violated the injunction order and thereby trespassed into the house and damaged the standing crops cultivated by the respondents. 10. The learned counsel appearing for the revision petitioner would vehemently contend that without any valid reasons and appreciation of Ex.B.1 Voter Card, the court below simply rejected the contention of the revision petitioner. It is pointed out that from Ex.B.1., which was issued in the month of June 1975 and also the same is having the Door No.12/683 of the petitioner's house, it is evident that the revision petitioner was in uninterrupted possession and occupation of the said house with his family members from the year 1975. 11. With regard to the violation of the injunction order, that on 3.2.1995, the revision petitioner and his men forcibly entered into the said house by breaking open the door and destroyed the standing crops cultivated by the respondents, the learned counsel for the petitioner would point out that the respondents have not adduced any satisfactory evidence in regard thereto. 12. In this regard, it is pointed out that the revision petitioner's son, C.Appu, had opened a S.B. Account at Gudalur Bazaar Branch Post Office, on 3.9.1997. The pass book, which has been marked as Ex.Y3 reveals that the door no. of the petitioner's house is 12/683. In addition to that Ex.Y2., a pass book bearing A/c No.NL/GDR/0052/87 issued under a Special Scheme by the Tahsildar (Labour Welfare), Gudalur, The Nilgiris, is bearing the same address as that of Ex.Y3 and therefore, it is more evident from the said exhibits that the petitioner is living in door No. 12/683 from the year 1975 onwards and there is no trespass as alleged by the respondents. 13. The further contention raised by the revision petitioner is that they were never evicted from the premises, at any point of time, even though the respondents have claimed that they have got the injunction order against them on 21.12.1983. 13. The further contention raised by the revision petitioner is that they were never evicted from the premises, at any point of time, even though the respondents have claimed that they have got the injunction order against them on 21.12.1983. It is pointed out that the learned District Munsif without considering the significance of the documents Ex.B.5 to 9, simply rejected those documents as not genuine. The reason given by the learned District Munsif is unsound and unacceptable in the eye of law. 14. While emphasising the above reasons, the learned counsel appearing for the revision petitioner would vehemently contend that the burden lies only on the respondents to prove their allegations. In support of his contention, the learned counsel relied upon the decision in SHIVAMURTHY MAHALINGAPPA KUCHANAUR V. DANNAMMADEVI CYCLE MART, RABAKAVI (AIR 1987 KARNATAKA 26), wherein in PARA 7, it was held as follows : "If regard is had to the above scope and ambit of the sub-rule, it follows that the executing court required to execute the decree for injunction against the person bound by that decree, by ordering this detention, cannot do so without recording a finding on the basis of the materials to be produced by the person seeking the execution of the decree that the person bound by the decree that he has had an opportunity of obeying the decree, has wilfully failed to obey it, as a condition precedent. Hence, what is required of the person seeking execution of the decree or injunction under the sub-rule is to place materials before the executing Court as would enable it to conclude (i) that the person bound by the decree, was fully aware of the terms of the decree and its binding nature upon him ; and (ii) that that person has had an opportunity of obeying such decree, but has wilfully, i.e., consciously and deliberately, disobeyed such decree, so that it can make an order of his detention as sought for. Thus, the onus of placing materials before the executing Court for enabling it to record a finding that the person against whom the order of detention is sought, has had an opportunity of obeying the decree for injunction, but has wilfully disobeyed it, lies on the person seeking such order of detention, lest the person seeking deprivation of the liberty of another cannot do so without fully satisfying the Court about its need. " 15. Per contra, the learned counsel appearing for the respondents would vehemently contend that sufficient materials have been placed by the respondents before the learned District Munsif, Gudalur, for arriving a just decision in this matter. In addition to that, the respondents have adduced satisfactory evidence for proving their case. In such circumstances, the learned counsel would point out that when the sufficient materials have been placed and have been adduced satisfactory evidence and on that basis the Court below arrived at a just decision, there is no possibility for this Court to interfere with the order passed by the learned District Munsiff in favour of the respondents. In support of the contention, the learned counsel relied on the following decision in RADHAKRISHNAN VS. VETRI VELAYUTHASAMI (1999-II-MLJ-100) for consideration. 16. Even though the respondents would contend that on 3.2.1995, the revision petitioner and his men in utter violation and in disobedience of the injunction order, trespassed into the property and broke open the house, to substantiate the same , they have not adduced any satisfactory evidence before the Court below. On the contrary, the evidence adduced by P.W.1, reveals that the revision petitioner is in continuous possession and occupation of the property in question. P.W.1 deposed in his evidence as follows: Even though P.W.1 has set out in paragraphs 3 and 5 of the affidavit that revision petitioner and his men have trespassed into the property and broke open the house and damaged the crops, to substantiate these allegations, P.W.1 has not adduced any satisfactory evidence. In such circumstances, in the absence of satisfactory and clear evidence, the finding of the learned District Munsif is perverse and contrary to law. 17. Further, it is pointed out that even though the respondents have claimed that on the next day, they lodged a complaint before the local police, they have not chosen to file a copy of the complaint. To disprove the facts referred to in Ex.B.5, P.W.2 was examined. The evidence of P.W.2 is also not helpful to corroborate the case of the respondents. Further to disprove the Ex.X2, P.W.3 was examined, whose evidence is also not helpful to the case of the respondents. 18. To disprove the facts referred to in Ex.B.5, P.W.2 was examined. The evidence of P.W.2 is also not helpful to corroborate the case of the respondents. Further to disprove the Ex.X2, P.W.3 was examined, whose evidence is also not helpful to the case of the respondents. 18. On a careful analysis of the contentions of both the parties and on a perusal of the materials placed before this Court, this Court is of the view that the petitioner has made out his case. As already discussed above, the burden lies only on the respondents to place materials before the Court below in support of their contention. In this regard, the respondents have not placed sufficient materials before the Court below, for arriving a decision that the revision petitioner and his family members violated the order of injunction on 3.2.1995. 19. Moreover, with regard to trespass into the house and breaking open the door and subsequent act of damaging crops, no materials have been placed by the respondents before the Court below. Further, a copy of the complaint said to have been lodged by the respondents has not been placed before the Court below. In such circumstances, this Court feels that there are sufficient and valid reasons to interfere with the order passed by the learned District Munsiff. 20. For the foregoing reasons, the order of the District Munsiff, in E.P.No.43 of 1995, dated 23.10.2000 is liable to be set aside. Accordingly, the same is set aside. 21. In result, the revision petition is allowed. No costs. Consequently, the connected C.M.Ps are closed.