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2007 DIGILAW 1670 (MAD)

E. Jayaraman & Another v. L. Pushpa & Others

2007-06-08

M.CHOCKALINGAM

body2007
Judgment :- A challenge is made to a order of dismissal made by the IX Assistant Judge, City Civil Court, Chennai made in E.A.No.1879 of 2007, seeking a specific direction to the bailiff to measure 42 feet from East to West starting from Razak Garden street, strictly in accordance with the schedule of property while executing the warrant in the E.P. filed by the respondents herein pursuant to a decree in a suit for recovery of possession in O.S.No.6876 of 1988. 2. The court heard the learned counsel for the revision petitioners and also the learned Senior Counsel appearing for the respondents. 3. Admittedly, the respondents filed O.S.No.6876 of 1988 for recovery of possession of immovable property found in the schedule annexed to the plaint. The said suit was decreed. Aggrieved the defendants, who are the revision petitioners herein, filed an appeal in A.S.No.802 of 1991 and the same also ended in dismissal. The revision petitioners filed O.S.No.8013 of 1987 for declaration that they had prescribed title by adverse possession and also for permanent injunction in respect of the immovable property and the same was also dismissed. In respect of the same also, they had preferred an appeal in A.S.No.819 of 1992. The Honourable Division Bench of this court took both the appeals together and gave a common judgment, whereby the judgment of the trial court in O.S.No.6876 of 1988 was affirmed. Following the same, the respondents filed E.P.No.543 of 2007 for execution of decree granted in their favour and subsequently affirmed by this court. Pending E.P., the instant E.A.No.1879 of 2007 was filed for the above direction to the bailiff. The said application was dismissed on contest. Hence, this revision petition has been filed before this court. .4. Advancing his arguments on behalf of the revision petitioners, the learned counsel would submit that it is not in controversy that the respondents have succeeded in their suit in O.S.No.6876 of 1988 and the decree was also confirmed by the order of this court and they are entitled for recovery of possession as per the schedule annexed to that plaint, i.e. the respondents/plaintiffs are entitled to have 42 feet from East to West commencing from Razak Garden Street, which has been shown as Eastern boundary even as per the schedule and it must be measured only from the Razak Garden street. Immediately abutting the Razak Garden street, there is a property of one Meenakshi Ammal and even the West of that property, the revision petitioners were in possession and that the petitioners have vacated the property, in question, which is in the schedule. The further West of the property, which is in their possession, is nothing to do with the said schedule and by filing E.P., the respondents cannot take the property of the revision petitioners/defendants, who have been in possession of the same and nothing to do with the suit, in question. Under these circumstances, the lower court should have allowed the application with a direction to the bailiff to measure the property and deliver as per the decree granted in their favour. 5. Contrary to the above, the learned Senior Counsel appearing for the respondents would submit that these contentions have already been negatived. The revision petitioners/defendants have already filed an another suit in O.S.No.8013 of 1987 for declaration of the property, which they call as if it is situated on the extreme West and that relief was denied. They took it on appeal and the appeal was taken along with A.S.No.802 of 1991, which was preferred by the revision petitioners from the judgment and decree in O.S.No.6876 of 1988 filed by the respondents, wherein the relief of recovery of possession in respect of the suit property was granted. It is pertinent to point out that there was a specific issue whether the properties in both the suits were one and the same. On trial, the lower court has found that both the properties were same. When this point was raised before the Division Bench of this court, the Honourable Division Bench of this court observed that the identity of the property could not be canvassed at this stage and therefore, different findings cannot be recorded and hence, denied the case of the appellants. Under these circumstances, what all are put forth before the lower court was thoroughly erroneous and the application must be dismissed. .6. Added further the learned Senior Counsel that when there was a request made at the time when the first appeal was argued that time should be given for vacating the premises, the Court considered the same and granted stipulated time, but it was not complied with. .6. Added further the learned Senior Counsel that when there was a request made at the time when the first appeal was argued that time should be given for vacating the premises, the Court considered the same and granted stipulated time, but it was not complied with. Hence, a contempt application was taken out and in that contempt application, since it was represented that the property has been vacated, the same was closed. It is to be further pointed out that the revision petitioners were in possession of Door No.61, but there was no D.No.61, but there was only D.No.60, which is the subject matter before the court and both the properties were found to be same and identical and under these circumstances, the petition before the lower court for direction was misconceived. The lower court was perfectly correct in passing an order of dismissal and hence, the order has got to be sustained. 7. The court has paid its anxious consideration on the rival submissions made and also had a thorough scrutiny of the materials available. Concedingly, the respondents herein filed O.S.No.6876 of 1988 for recovery of possession and on trial, it was decreed. Equally, the revision petitioners filed O.S.No.8013 of 1987 for declaration that they had prescribed title by adverse possession and for permanent injunction. At this juncture, it is to be pointed out that the suit for declaration filed by the revision petitioners in O.S.No.8013 of 1987 is in respect of the property situated on western end, in respect of which, now they want to claim title and possession by making an application now. Further, it is pertinent to point out that when both the suits were taken up, a common issue was raised whether the properties claimed by the revision petitioners and the properties claimed by the plaintiffs in O.S.No.6876 of 1988 were one and the same or different. On trial, it was found to be same. Now, thereafter two appeals were preferred by the revision petitioners, having failed in their attempt in both the suits. When the matter came up before the Honourable Division Bench, a specific question was raised and this Court has also found that the identity of the property cannot now be canvassed before this Court and thus, it comes to finality. Now, thereafter two appeals were preferred by the revision petitioners, having failed in their attempt in both the suits. When the matter came up before the Honourable Division Bench, a specific question was raised and this Court has also found that the identity of the property cannot now be canvassed before this Court and thus, it comes to finality. It is to be further pointed out that once the identity of the property is found to be same and not different and a question has also been raised and answered, there is no meaning in raising the same question by way of execution application, when the matter came up for delivery. .8. The contention, now, raised by the learned counsel for the revision petitioners that eastern boundary is found in the Razak Garden Street and even abutting the Razak Garden street, there is a property of one Meenakshi Ammal and therefore, the respondents cannot execute the decree is of no avail. The contention raised by the revision petitioners in O.S.No.8013 of 1987 filed by them and also their defence in O.S.No.6876 of 1988 was that the revision petitioners were in possession of the West of the property and they had prescribed title by adverse possession. The issue raised before the court was that whether the properties claimed by the plaintiffs in O.S.No.6876 of 1988 and the properties claimed by the revision petitioners in O.S.No.8013 of 1987 are one and the same or different. But, they found to be identical. Under these circumstances, now it was too late for the revision petitioners to canvass so and ask the relief as one asked before the lower court. 9. At last, it has to be pointed out that even time was granted to vacate the premises, but not done so. Hence, a contempt application was taken out and it has been mentioned that, they had vacated the premises. According to the revision petitioners, they are in possession of the West end property, which according to them, they had acquired title by way of adverse possession. The said fact was denied not only by the trial court, but also by the Division Bench of this Court. According to the revision petitioners, they are in possession of the West end property, which according to them, they had acquired title by way of adverse possession. The said fact was denied not only by the trial court, but also by the Division Bench of this Court. Under these circumstances, it was a futile attempt made on the part of the revision petitioners to say that they had prescribed title by adverse possession and they have been in possession of the property and the decree holder in O.S.No.6876 of 1988 should be deterred from getting the fruit of the same. This court is unable to see any merit in this civil revision petition. The lower court has passed a reasoned order and the question as to the identity of the property cannot now be raised. The lower court was perfectly correct in dismissing the application. This civil revision petition does not carry any merit and the same is dismissed. No costs. Consequently, connected MP is also dismissed.