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2009 DIGILAW 743 (MAD)

Kesavan & Others v. Seethalakshmi (died) & Others

2009-03-18

S.PALANIVELU

body2009
Judgment Common allegations contained in the petitions filed by the Revision Petitioners under Section 47 of C.P.C. are as follows: The decree passed in O.S.No.485 of 1969 on the file of the District Munsif Court, Poonamallee, is in executable and unenforceable in law. It is also stated that the trial Court inherently lacked jurisdiction. The property sought to be delivered under the decree is shown as 30ft. X 20ft. and the said measurement does not show on which direction both the measurements are available. This part of decree is nebulous and the property cannot be identified. Item No.2 of the decree is shown as being the middle part of the North East portion. This actually measures something different from the measurement shown in the decree. Deceased Ponnammal did not have any right over the property owned by her husband Dilli Babu. Hence decree against Ponnammal is not binding on Dilli Babu. These claimants and the said Dilli Babu are not parties to the original Suit and the decree passed thereon is not binding on them. Hence the decree is non-est. The decree is in executable for want of proper boundaries for the small extent sought to be delivered under the above decree. Without proper boundaries, the decree holders cannot locate 600 Sq.ft. as per their own whims and fancies. Their claim of title as against the entire land was hit and lost by limitation. Hence it may be declared that the decree passed in O.S.No.485 of 1969 is not executable. 2. The following are the common allegations found in the counter filed by the decree holders: These petitions are not maintainable. The matter came up to the High Court in Second Appeal No.1000 of 1976 and the High Court had remanded the case to the trial Court for fresh disposal with certain directions. The suit ended in favour of the plaintiffs and the appeal in A.S.No.25 of 1984 was dismissed by the Sub-Court, Poonamallee and thereafter no second appeal was preferred. Even though the claimants and others filed suits for partition and obtained preliminary decrees, they are only to protract the proceedings and they are not binding on these respondents. The property has been described properly and could be identified easily. Ponnammal and Munusamy, defendants in the original Suit did not plead before the trial Court that they were in possession and enjoyment of property measuring 27ft. 300 ft. The property has been described properly and could be identified easily. Ponnammal and Munusamy, defendants in the original Suit did not plead before the trial Court that they were in possession and enjoyment of property measuring 27ft. 300 ft. These petitions are vexatious and hence they have to be dismissed with costs. 3. Learned District Munsif, Poonamallee, after hearing both parties dismissed all the applications with costs by observing that there is no ambiguity as regards the schedule of property specified in the decree and the decree is for delivery of entire 63 cents and the claimants would not be entitled to any relief sought for on the ground that the suit property has not been described properly in the decree and that the decree for the entire 63 cents, irrespective of the fact that they had put up superstructure and they are living in various corners, is executable. 4. When the case, in the first round of litigation, came up to this Court, it was remanded with directions and the trial Court afterwards decreed the Suit. The defendants in the suit preferred appeal, which was dismissed. There had been no second appeal. While the decree holders filed E.P.No.127 of 1989 for delivery of the suit property, the claimants resisted the proceedings by projecting a plea that the suit property has not been identified properly. 5. Mr. A. Thayappan, the learned counsel for the petitioner would contend that inasmuch as there had been specific plea in the written statement and the claimants and their ancestors have been in possession and enjoyment of various portions of land with different dimensions, not according to the plaint schedule, the decree passed in the original suit should have been held to be an in executable one and the order passed by the executing court does not stand. 6. Repelling the arguments of the learned counsel for the petitioners, Mr. 6. Repelling the arguments of the learned counsel for the petitioners, Mr. Parthasarathy, learned Senior Counsel would submit that a study of the measurements of the property would reveal a fact that the suit property has been properly identified and the location of which has been unambiguously shown in the plaint and through oral evidence and it is futile to contend that the property has not been duly identified in view of the nonacceptance of the pleadings of the defendants in the suit as regards the measurements of the property by both the trial court and appellate court. It is his further contention that for more than three decades the defendants and their descendants have been procrastinating the proceedings by filing vexatious suits and petitions, preventing the decree holder from enjoying the fruits of the decree. 7. In order to have a glance of the matter, the schedule furnished in the plaint has to be seen. It is stated that an extent of 63 cents in Survey No.4 is the suit property situated in Sivapootham Village, Saidapet Taluk, Chengleput District, in which four portions have been approximately furnished with reference to the measurements occupied by the then 4 defendants in the suit. 8. In the written statement, it is stated that it is false to allege that each defendant is in possession of 30 x 20 , but they are each in possession of 27 feet west to east and more than about 300 feet from North to South and that they have also fenced the property. It is to be noted that the said contention was not accepted by the trial Court and the Appellate Court before and after the remand. While this Court remanded back the suit to the trial court, it was observed that the parties can ask for a commissioner to be appointed for localizing the property and once all relevant evidence is brought before court, the plea of adverse possession can be properly upheld. But none of the parties initiated steps to have appointment of Commissioner to locate the property. Since the burden is on the defendants to establish the adverse possession, the trial Court by its Judgment dated 210. 1982 has observed that the defendants have not taken steps for appointment of Advocate Commissioner to show that there is a superstructure as described by them in the property. 9. Since the burden is on the defendants to establish the adverse possession, the trial Court by its Judgment dated 210. 1982 has observed that the defendants have not taken steps for appointment of Advocate Commissioner to show that there is a superstructure as described by them in the property. 9. A careful scrutiny of the trial Court Judgment after remand would show that the witnesses of the defendants, including the defendants in the suit, have deposed about the measurements which are not in consonance with the pleadings in the written statement. Upon a thorough analysis of the matter, the trial Court rejected the plea of the defendants and decreed the suit, so also the appellate Court. 10. As the things remain presently, the findings and observations found in the Judgments of the Trial Court and the Appellate Court after the remand shall stand. After the findings in the said Judgments, the objections taken by the defendants are not sustainable and the plaintiffs are entitled for decree for possession. 11. Considering the circumstances of the case, the executing court has also rendered a correct finding that the property has been properly located. In the plaint, the total extent mentioned is 63 cents in Survey No.4 and the portions occupied by the defendants, even though mentioned approximately, on the evidence available as regards the encroachments of the defendants and when the courts below had adjudicated the rights of the parties, particularly all the plaintiffs in the suit, and passed decree for eviction. Hence it has to be held that the claimants have no basis to contend. 12. Learned counsel for the respondents placed reliance upon a decision of the Supreme Court in AIR 2004 SUPREMENT COURT 904 [Ravinder Kaur v. Ashok kumar and another] in which Their Lordships have dealt with a matter in the eviction proceedings with reference to the identity of the property. The following are the propositions systematized by the Apex Court, which are followed in this case: "20… As noted earlier this very issue was specifically raised in the original ejectment proceedings and was held against the respondents based mainly on the admission of the first respondent which we have already extracted hereinabove. The following are the propositions systematized by the Apex Court, which are followed in this case: "20… As noted earlier this very issue was specifically raised in the original ejectment proceedings and was held against the respondents based mainly on the admission of the first respondent which we have already extracted hereinabove. At the cost of repetition, we must restate that this question of identity of the property was never again raised in the appeal before the appellate authority, in the revision before the revisional authority, namely, the High Court or in the SLP before this Court. In such circumstances, we fail to understand how this very issue can be reagitated in the execution proceeding by the tenants. It is also to be noticed that the executing Court has rightly observed that reopening of this issue would amount to asking that Court to go behind the decree which is impermissible in law. We must note this finding of the executing court is not even noticed by the High Court in the impugned order. The High Court also did not take into consideration the reasoning of the co-ordinate bench of the same High Court in the dismissal order made in C.R.P.No.5175/2002 on 210. 2002 which while rejecting the similar contention of the respondents had specifically observed the attempt of the tenants was with a view to delay their ejectment. In such a factual background, we think the impugned judgment is wholly erroneous having no legal or factual basis to sustain it..." 13. Even though the defendants got defeated in various proceedings with regard to the suit property, they have made another attempt by filing applications under Section 47 of C.P.C. to make the decree a non-est. by portraying the same as unworkable. It is reiterated that the suit property has been properly identified and the superstructures available inside the suit property of 63 cents have been put up by the defendants and by means of the decree of ejectment, the delivery has to be effected as the trial Court and Appellate Court directed. 14. In such view of this matter, this court does not find any illegality or infirmity in the impugned order which deserves to be confirmed and it is accordingly confirmed. The Civil Revision Petitions are devoid of merits. They suffer dismissal. 15. In the result, all the three Civil Revision Petitions are dismissed. No costs. Connected M.Ps. 14. In such view of this matter, this court does not find any illegality or infirmity in the impugned order which deserves to be confirmed and it is accordingly confirmed. The Civil Revision Petitions are devoid of merits. They suffer dismissal. 15. In the result, all the three Civil Revision Petitions are dismissed. No costs. Connected M.Ps. also dismissed.