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2009 DIGILAW 5169 (MAD)

R. Srinivasal Naidu v. V. Chockalingam Chetty

2009-11-27

M.VENUGOPAL

body2009
Judgment :- The revision petitioner/respondent/plaintiff has filed this civil revision petition as against the order dated 03.09.2009 in E.P.No.40 of 2009 in O.S.No.476 of 1996 passed by the Learned District Munsif Court, Gudiyatham, Vellore District. 2. The Executing Court while passing orders in E.P.No.40 of 2009 on 03.09.2009 has inter alia observed that "for peaceful and proper segregation he appoints Mr. K. Rajini, Advocate as Commissioner by suo motu and has directed him to inspect the suit property with the help of town surveyor after due notice to either sides and to divide and allot 43 cents to the respondent etc., and allot 22 cents to the respondent/defendant/petitioner and to mark the boundary lines (2-1) in the land and file a detail report by 010. 2009 etc." 3. The learned counsel for the revision petitioner/respondent/plaintiff urges that the Executing Court has committed an error in directing the Advocate Commissioner to inspect the suit property and to divide it into three parts and even prior to the judgment in Second Appeal No.141 of 2007, the revision petitioner continued to be in possession and enjoyment of only 43 cents out of 65 cents and therefore there is no need for division of property and that the Executing Court cannot go beyond the decree made in Second Appeal No.141 of 2007 and in short the impugned order of the Learned Judge is vitiated by material irregularity and illegality, and therefore, prays for allowing the civil revision petition in the interest of justice. 4. 4. However, the learned counsel for the respondent/defendant/petitioner submits that this Court in the judgment in Second Appeal No.141 of 2007 has suitably modified the decree and while confirming the revision petitioners 2/3rd share in 65 cents in Survey No.199 in respect of suit property a decree has been passed declaring the respondent share of 22 cents in the suit property and therefore, the respondent is entitled to take possession of the said suit property and that he is not in possession of the said 2 cents and therefore, projected the E.P. No.40 of 2009 in O.S.No.476 of 1996 on the file of Learned District Munsif Court, Gudiyatham, Vellore District, for taking possession and as a matter of fact the revision petitioner/plaintiff is in possession of entire property of 65 cents and if the revision petitioner is in possession of 43 cents, he can identify the remaining 22 cents to the Advocate Commissioner and the surveyor to be demarcated and indeed the petitioner cannot have any objection for the respondent to take possession of his share of 22 cents already declared and that the respondent is a senior citizen cannot deprive the fruits of the decree made in the Second Appeal No.141 of 2007, and therefore, prays for dismissal of the civil revision petition. 5. The pith and substance of the contention of the respondent/defendant/petitioner is that there is no illegality or irregularity committed by the Executing Court in passing the impugned order dated 03.09.2009 in E.P.No.40 of 2009 in appointing of an Advocate Commissioner etc., and therefore, this Court sitting in revision may not interfere with the order so passed. 6. It is useful to refer to the judgment of this Court passed in Second Appeal No.141 of 2007 dated 22.09.2008 which is inter alia to the following effect and the same runs thus; "After the final decree, TS No.199 has been sub divided. The 1/3rd share to which was declared as belonging to the Appellant is an extent of approximately 22 cents out of 66 cents in survey No.199. As seen from the extract of the sale Certificate, the Respondent is entitled to 43 cents. The 43 cents to which the Respondent claims title added to 22 cents which is the total extent to TS No.199. As seen from the extract of the sale Certificate, the Respondent is entitled to 43 cents. The 43 cents to which the Respondent claims title added to 22 cents which is the total extent to TS No.199. Therefore, it is clear that the claims of both the Respondent and the Appellant can be upheld and the substantial law referred to in paragraph 1 must be answered in favour of the Appellant. Having done that, I asked both the counsel, whether it is necessary to drive the Appellant to a separate suit, and whether it would not serve the interest of justice if the decree is suitably modified. They agreed to the second option. Therefore, the decree granted by the Lower Appellate Court is modified and a decree passed in the Second Appeal will be the final decree in so far as the suit item is concerned and shares of the parties are apportioned as follows:- The Respondents shares of 2/3 in 0.65 acres in Survey No.199 is declared with regard to the property described as follows:- a) To the south of the property belonging to Ranganatha Naidu, bounded on the north by Puskanoor Amman Koil Chatram, bounded on the west by Punganoor Amman Koil Street, on the east by Nathamuni Pandaram Patta Jagadha and he is entitled to an injunction for 0.43 cents alone. b) As regards the remaining 22 cents, the title of the share of the Appellant has already been given to the Appellant and he is entitled to take possession. The Second Appeal is disposed of accordingly. No Costs." 7. Also in the final decree, the proceedings under which the respondent/defendant/appellant claims that he has been granted exclusive right in respect of the property, the decree is to the following effect; “that the Plaintiff is entitled to 1/3 share in the house described as items 3, 5 and the house sites described as item No.6 in the plaint B schedule. Now if we look at item No.6 of B schedule property, it reads as follows: "6. House site TS No.199 extent 0.65 cents TS No.201 extent 0.11 cents value Rs.1,000/-at Punganoor Amman Koil Street, Chunampet, Gudiyatham." 8. Now if we look at item No.6 of B schedule property, it reads as follows: "6. House site TS No.199 extent 0.65 cents TS No.201 extent 0.11 cents value Rs.1,000/-at Punganoor Amman Koil Street, Chunampet, Gudiyatham." 8. Apart from the above the decree in Second Appeal No.141 of 2007 dated 22.09.2008 runs thus; "(1) This Second Appeal coming on for hearing on this day and upon perusing the grounds of appeal, the judgment and decree of the Lower Appellate Court and the material papers in the suit and upon hearing the arguments of Mr. K.V. Anantha Krishnan, Advocate for the Appellant, and of Mr. D. Rajagopal, Advocate for the Respondent, and this Court while observing that 22 cents in S.A.No.199 had already been allotted to the share of the Appellant (Defendant) and in modification of the decree of the Trial Court, as confirmed by the Lower Appellate Court, order and decree as follows: 2) That for clause (1) of the decree of the trial Court, for following substituted:- "(1)(a) That 43 cents out of 65 cents in SA.No.199 in Poonganoor Amman Koil Street in Chunampet in Gudiyattam Town, Gudiyattam Taluk, N.A.A. District bounded South by Property belonging to Ranganatha Naidu North by Poonganoor Amman Koit Chatram East by Nathamuni Pandaram Patta site West by Punganoor Amman Koil Street is allotted to 2/3 share of the Respondent (Plaintiff) 1) (b) That the Appellant (Defendant) do take possession of the remaining 22 cents in SA.No.199 already allotted to his share." 2) That clause (2) of the decree of the trial Court do stand modified in so far as it relates to the Respondent (Plaintiff) share as decreed under clause (1)(a) above. 3) That clause (3) of the decree of the trial Court do stand. 4) That there be no costs in this Second Appeal." .9. At this stage this Court recalls the observations made in P.N. Kurian v. Thulasidas AIR 2003 Kerala 288 whereby and whereunder it is held that; ."an application for appointment of Commissioner and surveyor for measuring an identified property in terms of decree in execution can be allowed at execution stage." .10. Also in Dr. At this stage this Court recalls the observations made in P.N. Kurian v. Thulasidas AIR 2003 Kerala 288 whereby and whereunder it is held that; ."an application for appointment of Commissioner and surveyor for measuring an identified property in terms of decree in execution can be allowed at execution stage." .10. Also in Dr. Madhukar Trimbak Gore v. Vasant Ramakrishna Kolhatkar AIR 1983 Bombay 277 it is held that; ."when in execution a question arises as to the identity of the property of which possession has to be delivered to the decree holder, obviously such a question will relate to the execution of the decree which will be for the executing Court to decide as required by Sub-section of Section 47 of the Civil Procedure Code and also that the executing Court will do well to hold proper enquiry and determine the question in regard to the identity of the property which has to be delivered to the applicant." 11. Moreover, in Kassim Beevi v. Meeranchi Mytheen Beevi AIR 1987 Kerala 226 after examining the question of execution of a decree for specific performance it is held that; "the executing Court is bound to carry out and implement its decree in accordance with its tenor which in turn will imply that the property should be correctly described with the proper boundaries and it is not as if by doing so the Court is traversing beyond the decree or causing any prejudice to any of the parties or conveying property not agreed to be conveyed. 12. On a careful consideration of respective contentions and on an over all assessment of the facts and circumstances of the case in a cumulative fashion and also by taking note of the judgment and decree of this Court passed in SA.No.141 of 2007 dated 22.09.2008 this Court is of the considered view that the Court of Law can appoint a Commissioner at any stage of a given proceedings where it deems fit for the purpose of elucidating any matter in controversy/dispute and in the present case on hand the Executing Court as exercised its discretionary suo motu power in a lawful and proper manner by appointing an Advocate Commissioner to inspect the suit property with the help of town surveyor etc., but however, direction to divide the suit property in to three equal parts is not perse correct in the considered opinion of this Court. However, the Advocate Commissioner is directed to identify the respondent/defendant/petitioners share of 22 cents of the scheduled mentioned property in the Execution Proceedings with the help of the surveyor excluding the 43 cents alleged to be in possession of the revision petitioner and to submit his detailed report along with plan within two weeks. As a matter of fact the revision petitioner cannot deprive the respondent/defendant/petitioner in enjoying the fruits of the decree made in the judgment of Second Appeal No.141 of 2007 dated 22.09.2008. In this view of the matter this Court finds that the civil revision petition filed by the revision petitioner is devoid of merits and consequently, the same fails. 13. In the result, the civil revision petition is dismissed leaving the parties to bear their own costs. Further, the Advocate Commissioner appointed by the Executing Court is directed to inspect the suit property and to identify the same with the help of the surveyor excluding the 43 cents alleged to be in possession of the revision petitioner and to specify and demarcate the portion of 22 cents to which the respondent/petitioner/defendant is entitled to, and to submit his detailed report along with plan within a period of two weeks from the date of receipt of the copy of this order. The Commissioners remuneration of Rs.2000/-fixed by the Executing Court in its order dated 03.09.2009 in E.P.No.40 of 2009 to be paid by the respondent/defendant is not interfered with, by this Court in this revision. The respective parties are at liberty to file their objections to the commissioners report if they so require and if the objections are filed to the Commissioners report, the Executing Court shall take in to consideration of the same and further, it is directed to dispose of, the E.P.No.40 of 2009 pending on its file in a complete and comprehensive manner so as to put at rest the controversies/disputes, once and for all. Consequently M.P.1 of 2009 is closed.