Research › Search › Judgment

Madras High Court · body

2004 DIGILAW 751 (MAD)

V. S. KAMARUDDIN v. M. A. ABDUL MAJID

2004-05-25

S.SARDAR ZACKRIA HUSSAIN

body2004
Judgment : ( 1 ) THE revision petitioner in both the revision petitions is the first defendant/judgment-debtor in O. S. No. 68 of 1993 on the file of the District Munsif Court, Senkottah (Originally O. S. No. 449 of 1992 on the file of District Munsif Court, Tenkasi ). Both the revision petitions are filed against the dismissal of the claim petition E. A. No. 52 of 2000 filed under Section 47 C. P. C. and against the dismissal of E. A. No. 54 of 2000 filed under Order 26 Rule 9 C. P. C. for the appointment of advocate-commissioner. ( 2 ) THE respondent/plaintiff/decree-holder filed the suit O. S. No. 449 of 1992 in the District Munsif Court, Tenkasi which was on transfer renumbered as O. S. No. 68 of 1993 in the District Munsif Court, Senkottah against the first defendant/revision petitioner and four others for declaration that the suit second schedule of the suit properties belongs to the plaintiff and the defendants 2 to 5 and for permanent injunction from putting up construction in the suit properties by the first defendant/revision petitioner and for mandatory injunction for removal of the construction put up by the first defendant/revision petitioner in the suit second schedule of the suit properties and after such removal to deliver the same to the plaintiff. The suit was filed on 9. 9. 1992. The suit was not contested by the defendants including the first defendant/revision petitioner, though the first defendant entered appearance through advocate and filed written statement on 4. 1. 1993 and so ex parte decree was passed on 6. 3. 1996 as prayed for directing the first defendant to remove the construction put up in the second schedule of the suit properties on or before 6. 4. 1996. It appears previously an ex parte decree was passed on 28. 11. 1994 and that was set aside as per order in I.A. No. 333 of 1994 dated 18. 8. 1995. It also appears an advocate-commissioner was appointed in the suit and the report has been filed by the advocate-commissioner after visiting the suit properties. ( 3 ) SINCE the construction was not removed as decreed by the trial Court, the respondent/plaintiff/decree-holder filed E. P. No. 15 of 1997, in which there was an ex parte order dated 21. 11. 1997. It also appears an advocate-commissioner was appointed in the suit and the report has been filed by the advocate-commissioner after visiting the suit properties. ( 3 ) SINCE the construction was not removed as decreed by the trial Court, the respondent/plaintiff/decree-holder filed E. P. No. 15 of 1997, in which there was an ex parte order dated 21. 11. 1997. The appeal in C. M. A. No. 9 of 1997 filed against the ex parte order was dismissed. Such order has been confirmed by this Court in C. R. P. No. 3649 of 1997 dated 8. 12. 1998, but, however, directed the Executing Court to pass fresh order on the basis of counter filed by the first defendant/revision petitioner and the order of the Executing Court for removal of superstructure was set aside. In the meantime, the plaintiff/decree-holder filed unnumbered E. A. of 1997 on 15. 12. 1997 under Order 26 Rule 9 and Section 151 C. P. C. For appointment of advocate commissioner to demarcate the second schedule of the suit properties with the assistance of the Civil Engineer for the removal of the concrete beds laid in the second schedule of the suit properties in the presence of the Court Amin. The said petition was rejected as not maintainable on 28. 1. 1998. As per the direction issued by this Court in C. R. P. No. 3649 of 1997, the Executing Court granted two weeks time for removal of the construction put up by the first defendant in the second schedule of the suit properties and to deliver after removal of such construction. The delivery warrants were returned for want of time, for want of police help and for non availability of Village Administrate Officer and it was finally returned on 7. 1. 2000 as not executable without giving notice to occupants of the schedule of the suit properties. It appears again delivery was ordered and the delivery warrant was returned unexecuted as plaintiff absent on 20. 3. 2000. Then E. A. Nos. 52, 53, 54, 68 and 69 of 2000 were filed. E. A. No. 52 of 2000 was filed under Section 47 of Civil Procedure Code by the first defendant subject matter of C. R. P. No. 2184 of 2000. 3. 2000. Then E. A. Nos. 52, 53, 54, 68 and 69 of 2000 were filed. E. A. No. 52 of 2000 was filed under Section 47 of Civil Procedure Code by the first defendant subject matter of C. R. P. No. 2184 of 2000. E. A. No. 54 of 2000 was filed under Order 26 Rule 9 C. P. C. for appointment of advocate-commissioner, subject matter of C. R. P. No. 2185 of 2000. Both the applications E. A. Nos. 52 of 2000 and 54 of 2000 were dismissed by the executing Court on 25. 7. 2000 stating that the Executing Court cannot go beyond the scope of the decree. It appears E. A. Nos. 53 of 2000, and 68 of 2000 were also dismissed on 25. 7. 2000. Therefore, the first defendant has filed these Civil Revision Petitions against the dismissal of E. A. Nos. 52 of 2000 and 54 of 2000 respectively. ( 4 ) HEARD the learned counsel for the revision petitioner/first defendant/judgment-debtor and the learned counsel for the respondent/plaintiff/decree-holder. ( 5 ) THE learned counsel for the revision petitioner/first defendant contended reiterating the stand taken in the E. A. No. 52 of 2000 that no construction has been put up by encroaching the second schedule of the suit properties and that the decree-holder is not entitled more than what is decreed in the suit, viz. , east to west 8 Thatchmulam or 22 feet and to order delivery only for the above 8 Thatchumulam or 22 feet from the western limit of the property of the plaintiff/decree-holder. ( 6 ) THE learned counsel for the revision petitioner/first defendant has placed the following decisions:- (1) Kamalavathy vs.- B. Subramaiah reported in 2001 (2) C. T. C. 331, in which this Court has held:-Code of Civil Procedure, 1908, Section 47. Executability of decree. Ex parte decree passed in suit for mandatory injunction to remove illegal construction put up by defendant on land belonging to plaintiff. Defendant raising defence in execution petition that decree was wrong in that exact area of encroachment had not been indicated and decree is ambiguous. Section 47 empowers court to determine all questions arising between parties to suit their representatives relating to execution, discharge or satisfaction of decree. Underlying object is that parties should not be driven to another suit. Defendant raising defence in execution petition that decree was wrong in that exact area of encroachment had not been indicated and decree is ambiguous. Section 47 empowers court to determine all questions arising between parties to suit their representatives relating to execution, discharge or satisfaction of decree. Underlying object is that parties should not be driven to another suit. Ambiguity in decree could be removed and exact area of encroachment could be found out by appointing an Advocate commissioner who shall be assisted by Licensed surveyor to note down area of encroachment. Case remanded to appoint Commissioner to note down area of encroachment and judgment debtor prohibited from raising any other question. " (2) Mahaboova Beevi vs.- Nataraja Chettiar reported in (1995 I) C. T. C. 224, in which this Court has held:-"civil Procedure Code, 1908, Section 47 and Order 21. Jurisdiction of the Executing Court. When a question arises as to the identity of the property to be delivered pursuant to the decree, the Executing Court has the powers to enquire into the same. The Executing Court can go beyond the decree and hold an enquiry to find out the true effect of the decree. " (3) Smt. Lalmuni Devi and others vs.- Shiv Shanker Tiwary and others reported in A. I. R. 1980 Patna 184, in which a Division Bench of Patna High Court has held:-"a compromise can be effected in a suit "in respect of the whole or in part of the subject-matter of the suit" only as envisaged in Order 23, Rule 3 as it stood prior to its amendment in the year 1976. However, where a compromise included matters extraneous to the suit it was not altogether unlawful and the decree was still executable with respect to the matters that related to the suit. In order to make the compromise enforceable the requirement of Section 17 (2) (vi) of the Registration Act was to be complied with. Under Rule 3 of Order 23 as amended in 1976, the court can clearly pass a decree in terms of the agreement even though it includes matters not forming the subject matter of the suit provided that such extraneous matters related to the parties to the suit. Under Rule 3 of Order 23 as amended in 1976, the court can clearly pass a decree in terms of the agreement even though it includes matters not forming the subject matter of the suit provided that such extraneous matters related to the parties to the suit. " ( 7 ) THE learned counsel for the respondent/plaintiff/decree-holder argued that though the revision petitioner/first defendant/judgment-debtor entered appearance through advocate and also filed written statement, since remained absent, later he was set ex parte and an ex parte decree was passed and as such, now that decree cannot be challenged in the execution proceedings. As regards the appointment of advocate-commissioner sought in E. A. No. 54 of 2000, which was dismissed, the learned counsel argued that inasmuch as an advocate-commissioner was appointed in the suit and the advocate-commissioner also filed report, again another advocate-commissioner cannot be appointed without setting aside the report and plan filed by the advocate-commissioner appointed previously. The learned counsel also pointed out that when there is dispute with regard to the boundaries and measurement, the boundaries will prevail. ( 8 ) IN the suit O. S. No. 449 of 1992 on the file of the District Munsif Court, Tenkasi (now O. S. No. 68 of 1993 on the file of District Munsif Court, Senkottah), already an advocate-commissioner was appointed at the instance of the plaintiff in I. A. No. 1077 of 1992. The advocate-commissioner after inspecting the suit properties filed report and plan Exs. R-3 and R-4 (certified copies) respectively on 26. 10. 1992 and before filing the written statement that filed on 4. 1. 1993 by the first defendant/revision petitioner. Certified copy of the written statement is Ex. R-1. Certified copy of the plaint in that suit is Ex. R-5. Certified copy of the plaint plan in that suit, which is attached with the decree, is Ex. R-6. The eastern boundary of the first item of the first schedule of the suit properties is described as West of the common wall and the building of Kamruddin vagairah and the extent is given as East to West Thatchmulam 8 (22 feet), South to North Thatchmulam 15 (41-1/4 feet ). R-6. The eastern boundary of the first item of the first schedule of the suit properties is described as West of the common wall and the building of Kamruddin vagairah and the extent is given as East to West Thatchmulam 8 (22 feet), South to North Thatchmulam 15 (41-1/4 feet ). The eastern boundary of item 2 of the first schedule of the suit properties is described as West of the common wall and the building of Kamruddin and the extent of pathway is given as East to West Thatchmulam 1-1/2 (4-1/8 feet), South to North Thatchmulam 3 (8-1/4 feet) and shown as by letters B2, B1, B, B5, in the plaint plan. The eastern boundary of the second schedule is mentioned as West of the first defendants property and shown as by letters "b, B1, C1, C" in the plaint plan. ( 9 ) INthe report Ex. R-3 and the plan Ex. R-4 of the advocate-commissioner, the property of the plaintiff/respondent in respect of the second schedule of the suit properties is shown as by letters "a, B, C, I, D" and that of the first defendant by the letters "a, D, E, F". 8 pillars newly put up by the first defendant are shown in the letters "p1, P2, P3, P4, P5, P6, P7, P8". The property of the plaintiff is situated on the West of the property of the first defendant. The advocate-commissioner, who inspected the suit properties pending suit, has stated in his report Ex. R-3 in paragraph 9 that on measuring the length of the pathway, it was found that to the extent of 2 feet and 4 inches from P2 Pillar towards West, 3 feet and 4 inches from P3 Pillar and 1 feet and 5 inches from P4 Pillar were demolished ( 10 ) IN paragraph 3 of the plaint it is set out that the first defendants property is situated on the East of the first schedule suit property and in between the said properties i. e. , the properties of the plaintiff, his brothers, the defendants 2 to 5 and the property of the first defendant, there have been a common mud wall on the North-south belonging to the plaintiff, his brothers, the defendants 2 to 5 and the first defendant for about 1-1/2 feet thickness. The plaintiff and his brothers, the defendants 2 to 5 opposed the first defendant in April, 1992 to put up new construction in his property and for that purpose, to demolish the common wall which was refused by the plaintiff and his brothers, the defendants 2 to 5 and at the instance of one Lathi related to the first defendant and one Velsamy, after obtaining consent from his brothers, the defendants 2 to 5, the plaintiff agreed for demolition of the common wall and for construction of a common wall newly using the stone and bricks. The first defendant put up iron concrete pillars after digging in common place and started to construct wall in his place. It is further stated in the said paragraph that when the plaintiff was away, the first defendant had put up the concrete pillars by encroaching 2 feet belonging to the plaintiff and his brothers, the defendants 2 to 5. It is also stated in paragraph 3 of the plaint that when the plaintiff on return questioned at the end of August, 1992, the first defendant agreed to demolish the cement pillar which was constructed by encroaching, in two days, but without doing so, he continued to construct. The first defendant also put up a septic tank East to West by encroaching the property of about 2 feet which belongs to the plaintiff and his brothers, the defendants 2 to 5 to the depth of 8 feet. ( 11 ) THE first defendant, who entered appearance through advocate on receipt of summons in the suit, filed written statement on 4. 1. 1993. It is admitted in paragraph 3 of the written statement that the first defendant is owning a house immediately East of the house of the plaintiff and his brothers and that there was a north-south common wall in between their houses. It is further admitted in paragraph 4 of the written statement that the common wall was demolished with the consent and in the presence of the plaintiff and that a new wall in that place was constructed by the first defendant by using concrete pillars with the cement and in the immediate presence of the plaintiff and the defendants 2 to 5. It is denied that the first defendant claimed that the wall newly built in between the properties of the plaintiff and the first defendant is that of his wall and it is further stated that the first defendant is prepared to make the newly built wall as a common wall, if the plaintiff pays half the cost of the wall as agreed. The first defendant has not encroached any portion of the plaintiffs property for the construction of the new building. However, in the affidavit filed in support of the application E. A. No. 52 of 2000, the first defendant has stated in paragraph 7 that there is no new construction in the second schedule of property. In paragraph 8 it is stated that the plaintiff is entitled to only 8 Thatchumulam (22 feet) on the East of the common wall, but there is 25 feet including 3 feet of his property in which he has put up construction to maintain his western wall. In the affidavit filed in support of the application E. A. No. 54 of 2000 it is stated by the first defendant that the plaintiff is not entitled to more than 22 feet from his western limit, for which purpose and to find out that there is no encroachment and to measure the property of about 22 feet from West, an advocate-commissioner is to be appointed. ( 12 ) THE definite case is set up in the plaint and it is also admitted by the first defendant that there have been a common wall North to South in between the properties of the plaintiff, his brothers, the defendants 2 to 5 and that of the first defendant. It is also admitted by the first defendant in the written statement that he demolished the common wall and had put up new construction raising concrete pillars as shown P1 to P4 in the advocate-commissioner plan Ex. R-4. As per the description of the property to the schedule to the plaint, the plaintiff claims that he is entitled to East to West Thatchumulam 8 (22 feet) form the common wall situated in between the properties of the plaintiff, his brothers, the defendants 2 to 5 and that of the first defendant which is the eastern boundary to the property of the plaintiff. As such, the plaintiff and the defendants 2 to 5 are entitled to 22 feet only from the common wall running North to South and which was existing before demolition by the first defendant. It is well settled that the boundaries will prevail over measurement when there is dispute with regard to the extent of the property, in view of the fact, it is clearly mentioned and described in the plaint that the eastern boundary is that of the common wall and so the plaintiff and his brothers, the defendants 2 to 5 are entitled to 22 feet from the common wall. Therefore, the argument advanced for the revision petitioner/first defendant that the plaintiff and his brothers 2 to 5 are entitled to 22 feet North from the West of the plaintiffs property is not acceptable and there is no force in that contention. The revision petitioner/first defendant, who having remained absent after filing of the written statement and in fact admitting the demolition of the common wall in between the properties of the plaintiff, his brothers, the defendants 2 to 5 and that of the first defendant, cannot be heard to say that the plaintiff and his brothers, the defendants 2 to 5 are entitled to 22 feet from West of their property and not from the common wall on the East. ( 13 ) THE dispute between the parties having been set at rest, the suit was decreed ex parte as prayed for, in that the first defendant remained absent after filing of the written statement. On the basis of the decree, the plaintiff filed Execution Petition No. 15 of 1997 and the same was allowed. In C. R. P. No. 3649 of 1997, this Court remanded the matter back to the Executing Court to pass fresh order on the basis of the counter filed by the first defendant and without setting aside the order passed by the Executing Court, as per order dated 8. 12. 1998. Hence, no further question arises for determination by the Executing Court. As such, the order of the Executing Court in dismissing the E.A. No. 52 of 2000 filed under Section 47 C. P. C. does not call for any interference. In that view the C. R. P. No. 2184 of 2000 is to be dismissed. 12. 1998. Hence, no further question arises for determination by the Executing Court. As such, the order of the Executing Court in dismissing the E.A. No. 52 of 2000 filed under Section 47 C. P. C. does not call for any interference. In that view the C. R. P. No. 2184 of 2000 is to be dismissed. ( 14 ) BUT, however, conferring that the plaintiff himself filed an application previously seeking appointment of an advocate-commissioner for the purpose of demarcating the second schedule property with the assistance of a Civil Engineer for the removal of the concrete pillars put up in the second schedule and though E. A. No. 54 of 2000 has been filed seeking for appointment of advocate-commissioner to find out that there have been no encroachment and that the plaintiff is entitled to only 22 feet from West, it would be just and proper, if an advocate commissioner is appointed to find out the exact area of encroachment assisted by a qualified surveyor and to note down the area encroached so that the same can be handed over to the plaintiff and his brothers, the defendants 2 to 5 by allowing the application E. A. No. 54 of 2000. The expenses have to be borne out by both parties, In that view, the C. R. P. No. 2185 of 2000 is to be allowed. ( 15 ) C. R. P. NO. 2184 of 2000:- In the result, this Civil Revision Petition is dismissed confirming the order and decretal order dated 25. 7. 2000 dismissing the claim petition E. A. No. 52 of 2000 filed under Section 47 C. P. C. by the Executing Court. No cost. ( 16 ) C. R. P. NO. 2185 of 2000:- In the result, this Civil Revision Petition is allowed setting aside the order and decretal order dated 25. 7. 2000 made in E. A. No. 54 of 2000 by the Executing Court. No cost. ( 16 ) C. R. P. NO. 2185 of 2000:- In the result, this Civil Revision Petition is allowed setting aside the order and decretal order dated 25. 7. 2000 made in E. A. No. 54 of 2000 by the Executing Court. The Executing Court is directed to restore E. A. No. 54 of 2000 for the purpose of appointing an advocate-commissioner to inspect the suit property with the assistance of a qualified surveyor and to find out the exact area of encroachment and to note down the area encroached so that the same can be handed over to the plaintiffs and his brothers, the defendants 2 to 5 and as per the observation made above and the expenses in respect of the appointment of advocate-commissioner have to be borne out by both parties in equal moities. No cost.