Research › Search › Judgment

Madras High Court · body

2007 DIGILAW 1915 (MAD)

Kullan & Another v. Raniammal (Deceased) & Others

2007-06-26

M.CHOCKALINGAM

body2007
Judgment :- This order shall govern these two civil revision petitions. 2.C.R.P.Nos.1655 of 2007 has arisen from the orders of the learned District Munsif, Coonoor made in E.A.No.84 of 2004 in E.P.No.54 of 2004, whereby the police aid was ordered, pursuant to the decree passed in O.S.No.43 of 1984, while the other C.R.P.No.1733 of 2007 has been preferred against the order of dismissal in E.A.No.156 of 2004 in the said E.P. 3.The court heard the learned counsel on either side. In O.S.No.43 of 1984 on the file of the said court, pursuant to the decree passed, the same was challenged by the petitioners in A.S.No.18 of 1985 and the same was dismissed. Subsequently, it was also appealed against in this court in the second appeal and the same was also dismissed, affirming the judgment of the court below. It was a suit for permanent injunction, alleging that the first respondent and on her death, her legal representatives have been in possession that too in lawful possession of the property. The suit, on contest, was decreed and it culminated in the judgment of this court, affirming the judgment of the court below. The decree holder laid E.P.No.54 of 2004, alleging that there was disobedience of permanent injunction order by the respondents/defendants and under these circumstances, this has got to be dealt with in accordance with law. While it was pending, they filed E.A.No.84 of 2004, seeking police aid in order to put up fence around the property, which was the subject matter in OS No.43 of 1984. It was contested and the same was ordered. While the matter stood thus, the revision petitioners, who are the original defendants and judgment debtors, filed E.A.No.156 of 2004 under Section 47 C.P.C., alleging that the property in question was originally assigned in favour of ancestors of the first petitioner Kullan and he was also called as Rajkambattan. Actually, the property has been in enjoyment for the past more than 25 years with them and earlier, there was an assignment made in favour of hill tribe and hence, no question of conveyance or retransfer would arise. The E.A. was filed to receive the documents and the application was allowed and the documents were marked. Actually, the property has been in enjoyment for the past more than 25 years with them and earlier, there was an assignment made in favour of hill tribe and hence, no question of conveyance or retransfer would arise. The E.A. was filed to receive the documents and the application was allowed and the documents were marked. All would go to show that there was assignment in favour of ancestors of the first petitioner and thus, it has come to him by operation of law and the first petitioner has been in possession of the property for more than 25 years and under these circumstances, this was not focused in the earlier proceedings. Section 47 CPC application was filed, but the same was dismissed. 4.The contentions put forth by the learned counsel for the revision petitioners is that there was originally an assignment in favour of the Hill tribe ancestors of the first petitioner Kullan; that the documents would clearly reveal that the property has come to the hands of the first petitioner, who is having alias name Rajkambattan and thus, he has been in possession of the property, pursuant to the assignment made in favour of hill tribe ancestors; that the same was not brought to the notice of the court on earlier occasions; that all documentary evidence have been brought forth and thus, the decree originally passed has become unenforceable and in executable and that all these aspects have not been considered by the lower court and thus, it is a case where the order of the lower court has got to be set aside. Added further the learned counsel that originally what was sought for was only permanent injunction and this has also been granted, but now, they wanted to convert the same to mandatory injunction and they wanted to fence the property, which is in possession of the petitioners herein and under these circumstances, the lower court should not have ordered for police aid for an unlawful act and hence, that order has got to be set aside. 5.The court heard the learned counsel for the respondents on the above contentions. The learned counsel for the respondents would submit that originally, a suit in O.S. No.43 of 1984 was filed and the matter was pending for past two years. 5.The court heard the learned counsel for the respondents on the above contentions. The learned counsel for the respondents would submit that originally, a suit in O.S. No.43 of 1984 was filed and the matter was pending for past two years. The suit was originally decreed before the District Munsif, Coonoor, which was appealed against by the petitioners herein before the District Court in A.S.No.18 of 1985 and the same was also dismissed. Thereafter, second appeal has been preferred before this court and the same also met the same fate and now, the decree was put in execution and the execution was sought for in view of the disobedience of the order of the court. What was contended by the respondents/plaintiffs in the suit was that they have been in lawful possession of the property and this has been recognised by the court, despite contest made by the opposite party, namely the revision petitioners herein. Now, they have raised a new plea as if there was assignment in favour of hill tribe ancestors, whose name was not mentioned, but they have filed an application under Section 47 IPC. The lower court has considered all these aspects of the matter and hence, both the orders of the lower court have got to be sustained. 6.After careful consideration of the rival submissions made, the court is of the considered opinion that both the civil revision petitions have got to be dismissed. Admittedly, it was a suit for permanent injunction filed in O.S.No.43 of 1984 and a decree was passed. The revision petitioners took it on appeal in first appeal and on dismissal of the first appeal, the second appeal was filed before this court and the same was also dismissed. Thus, the proceedings have been pending for nearly about two decades. 7.The contention is that the first petitioner Kullan was the descendant of hill tribe and there was assignment in favour of the ancestors and thus, the property became not transferable and it has come to the hands of the first petitioner and he has been in possession for a long period. 7.The contention is that the first petitioner Kullan was the descendant of hill tribe and there was assignment in favour of the ancestors and thus, the property became not transferable and it has come to the hands of the first petitioner and he has been in possession for a long period. It is to be pointed out that had it been true that he was conscious of the fact that he has been in possession of the property, pursuant to the assignment in favour of the ancestors, he would have spelt out the same at least at any stage in the past two decades, but not done so. Secondly, when the documentary evidence adduced, the documents were actually considered by the lower court. It has to be pointed out that the documents would bear the name of descendants of so called ancestors, namely Rajkambattan. But, it is to be pointed out that when the matter was pending in court on earlier occasion, Kullan, the first petitioner was examined as D.W.1, who has categorically stated that he had no alias name Rajkambattan and under these circumstances, even the documents were of no avail to the petitioners to show that he was either the descendants of the original assignee or he is the person, who claims the property. Apart from that, when the matter was agitated for the past two decades, it has not been whispered at any point of time. But, for the first time, when the matter was put in execution, such an application that too under Section 47 C.P.C. has been filed, alleging that the decree was not executable as if there was assignment in favour of the ancestors, but whose name was not made mentioned. The name of Rajkambattan was found in the document, but in the evidence, he has given a statement contra that he had no alias name, namely Rajkambattan. All would go to show that it was nothing, but an application was filed to defeat the decree, but in vain. The lower court was perfectly correct in dismissing the application. 8.Sofar as E.A.No.84 of 2004, seeking police aid, is concerned, the court is of the considered opinion that the lower court was perfectly correct in doing so, because when permanent injunction was granted, it was affirmed by this court. There was disobedience and E.P. was filed to take necessary action against the judgment debtor. 8.Sofar as E.A.No.84 of 2004, seeking police aid, is concerned, the court is of the considered opinion that the lower court was perfectly correct in doing so, because when permanent injunction was granted, it was affirmed by this court. There was disobedience and E.P. was filed to take necessary action against the judgment debtor. The decree holder desires to put up fence and since he found obstruction, the decree holder came to the court for getting police aid for carrying out the work. The lower court has considered the reasons for such police aid and has granted the relief as one asked for and warranted. Under these circumstances, this Court is unable to see any merit in both the civil revision petitions. Both require an order of dismissal. Accordingly, both the civil revision petitions are dismissed. No costs. Consequently, connected MPs are also dismissed. All or any one of the observations made by this court earlier will not stand in the way of the petitioners in either filing a suit or putting forth their contentions or getting the relief, if so advised.