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2007 DIGILAW 1824 (MAD)

Mijajunnissa & Another v. M. Thajul Hudha & Others

2007-06-19

M.CHOCKALINGAM

body2007
Judgment :- Challenge is made to an order of the learned Additional Subordinate Judge, Mayiladuthurai, made in E.A.No.75 of 2002 in O.S.No.37 of 1984. 2.The revision petitioners, who failed in their attempt before the Court below in the said application, have brought forth this revision. It was contended by them before the lower Court that O.S.No.37/84 was filed in which it was contended that A Schedule property was with the first plaintiff, and B Schedule property was with the plaintiffs 2 to 7; that a decree has also been passed; that the delivery has also been ordered; that A and B Schedule properties belonged to the petitioners 1 and 2 and another sister Navurunnisa Begum; that they have been in possession of the property; that there were two other suits filed in respect of A and B Schedule properties one between the first plaintiff and his brother Abdullah in O.S.No.5/63 and the other between the first plaintiff and the father of the petitioners herein in O.S. No.4/63, whereby declaration was sought for; that the said Abdullah died; that his legal representatives were added as parties, who are the respondents 2 to 7 herein; that it ended in favour of the respondents 1 to 7; that though it ended in their favour, the properties were not taken from the father of the petitioners; that these petitioners father Abdulsalam was in continuous possession of the property from 1959 till his life time in 1998; that thereafter, the petitioners have been in possession and enjoyment along with their sister Navurunnisa Begum, and thus, they have been in continuous possession for more than the statutory period; that in view of the fact that delivery was not taken at all, and the petitioners have been in possession and enjoyment of the properties without any interruption for more than the statutory period, they are the owners of the properties, and hence, the application was to be allowed. The application was seriously opposed by the opposite party namely the petitioners in the E.P. On enquiry, the application was dismissed by the Court below. Hence, this revision has arisen before this Court. The application was seriously opposed by the opposite party namely the petitioners in the E.P. On enquiry, the application was dismissed by the Court below. Hence, this revision has arisen before this Court. 3.The learned Counsel for the revision petitioners reiterated the very same contentions raised before the Court below, and also would submit that number of tax receipts have been filed before the lower Court pointing to their possession and enjoyment of the properties, and under the circumstances, the lower Court should have ordered the application. 4.After careful consideration of the submissions made by the learned Counsel for the petitioners, this Court is of the considered opinion that the revision does not require an admission. The only contention raised before the Court below by the petitioners herein is that the decree though passed in favour of the respondents 1 to 7, neither it was put in execution, nor delivery was taken; but, on the contrary, the petitioners father was in possession and on his death, from 1998 onwards the petitioners have been in continuous possession for more than the statutory period without any interruption. The lower Court was not prepared to accept the contention in view of the availability of the documents namely Exs.R1 and R2, and rightly too. These documents would clearly indicate that there was proper delivery of the property pursuant to the decree passed. In the instant case, delivery has been ordered, and possession has also been taken. The documents namely the tax receipts relied on by them, cannot in any way affect the delivery which has already taken place. Needless to say that in a case like this, where delivery is ordered by the Court, and sufficient evidence is also forthcoming for the delivery, it has got to be inferred that delivery has taken place as found in the documents. If there is anything contrary, a duty is cast upon the petitioners who are challenging the same, to prove the same. But, nothing is available to accept their case. The lower Court was perfectly correct in dismissing the application. This Court is unable to notice anything to deviate from the order passed by the Court below. Accordingly, it is sustained. 5.In the result, this civil revision petition is dismissed. No costs. Consequently, connected MP is closed.