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2010 DIGILAW 1816 (MAD)

Epsiba Selvakumari v. The Home Secretary, Government of Tamil Nadu, Fort St. George, Chennai

2010-04-16

R.SUBBIAH

body2010
Judgment : 1. Invoking the Writ jurisdiction of this Court, the petitioner has filed this Writ Petition to issue a Mandamus, directing the respondents 1 to 3 to take appropriate action against the 5th respondent, who forcibly entered in the petitioner’s flat No.3 in the ground floor in the premises bearing door No.8 (Old door No.33 to 35), Tiruveedian Street, Gopalapuram, Chennai-86 along with his wife, the 6th respondent herein and their henchmen and to restore possession of the said flat to the petitioner. 2. The averments found in the affidavit filed in support of the Petition are as follows: The Petitioner had been in possession of the above mentioned subject property from 2001. Originally, the said property belonged to his three brothers, viz., Selvanathan, Inbanathan, Arumainathan. After demolishing the existing building in 1999, new flats had been constructed, of which, the petitioner’s brothers put her into the possession of the flat in question in the year 2001. Selvanathan, one of the brothers of the petitioner died in July, 2003 and he did not occupy any of the constructed flats in the aforesaid premises. The petitioner’s another sister and her two brothers are residing in flat Nos.4, 8 and 9 respectively. After the demise of Selvanathan, one Amsaveni, claiming to be the widow of deceased Selvanathan, fraudulently obtained a Legal Heir Certificate from the Tahsildar, Egmore-Nungambakkam Taluk, and unauthorisedly sold the property which was in the possession of the petitioner in favour of the 6th respondent, who is the wife of the 5th respondent. Originally, the 5th respondent with his family was in occupation of flat No.10 in the Second floor of the premises on rental basis. On coming to know of the fraudulent sale by the said Amsaveni, the other two brother of the petitioner filed a Suit in O.S. No.775 of 2007 on the file of XI Assistant Judge, City Civil Court, Chennai, for a declaration that the sale deed executed by the alleged wife of Selvanathan in favour of the 6th respondent is null and void and not binding on them. Similarly, the 6th respondent also filed a Suit O.S. No.6929 of 2006 before the same Court as if she along with her family was in possession of flat No.3, While the matter stood thus, on 13.1.2000, by taking advantage of the pongal holidays, the 5th respondent, who is the Inspector of Police, by taking law into his hands, along with his henchmen, forcibly took possession of flat No.3, causing injuries to the petitioner. Hence, the petitioner filed a Complaint before the 4th respondent as against the 5th and 6th respondents stating that the 5th respondent has committed a Criminal trespass; but there was no response. Hence, the petitioner sent a telegram and notice to respondent Nos.1 to 3 complaining about the missing items and stating that the petitioner’s life was in danger and all her belongings were thrown outside the flat. Since there was no action by respondent Nos.1 to 3, the present Writ Petition is filed. 3. When the matter is taken up for consideration, the learned counsel appearing for the petitioner made elaborate arguments by narrating various incidents said to have been taken place for taking possession of flat No.3 by respondent Nos.5 to 6 from the petitioner. 4. The learned counsel appearing for the 5th respondent submitted that the possession of the 5th respondent in the subject property had been upheld in O.S.No.6929 Of 2006 and also in C.M.A. No.159 of 2006 on the file of the City Civil Court and the same has not been challenged and hence, the question in respect of possession of the property had attained the finality. 5. The learned counsel appearing for the 6th respondent submitted that the 6th respondent is the lawful owner as he purchased the property on 3.3.2006 for valid consideration and the sale deed was duly registered in the office of the Sub-Registrar, Central Chennai and he has been in possession of the flat as absolute from the date of purchase. When the brothers of the petitioner attempted to interfere with his possession, the 6th respondent filed a Suit in O.S. No.6929 of 2006 against the petitioner’s brothers for a permanent injunction restraining them from interfering with his peaceful possession and enjoyment of the subject property. When the brothers of the petitioner attempted to interfere with his possession, the 6th respondent filed a Suit in O.S. No.6929 of 2006 against the petitioner’s brothers for a permanent injunction restraining them from interfering with his peaceful possession and enjoyment of the subject property. In the said Suit, an interim order was also granted in favour of the 6th respondent and thereafter, the said interim order was made absolute an 22.9.2006, holding that the 6th respondent was in possession of the subject property. Against the same, the brothers of the petitioner also filed C.M.A. No.159 of 2006 the 7th Additional Judge, City Civil Court, Chennai and the same was dismissed. During the pendency of O.S. No.6929 of 2006, the petitioner’s brothers have filed O.S. No.775 or 2007 before the XI Assistant Judge, City Civil Court and the same is still pending. Further, the learned counsel submitted that the issue involved in the Writ Petition is purely Civil in nature. Moreover, before filing the Writ Petition, the petitioner had filed Crl.O,P. No.5231 of 2010 seeking a direction to the Inspector Nos.5 to 6 and investigate the same and the same was allowed by this Court on 10.3.2010. Thereafter, once again the petitioner has initiated parallel proceedings for the similar relief in this Writ Petition. Thus, the attitude of the petitioner shows that she is initiating litigation one after another by abusing the process of the Court. Therefore, the Writ petition is liable to be dismissed. 6. The learned counsel for the 6th respondent also produced a ration card of the petitioner vide the typed set of papers and submitted that the said document would show that the petitioner was residing at Old No.4/5, New No.7/5, Mylapooran Street, Chennai, pertaining to the period 2005-2009, wherein it has been stated that the petitioner’ was residing in the address as mentioned above. Further, the learned counsel submitted that the statement of the petitioner that she was residing in the said premises right from 2001 is nothing but a false and concocted story. Under such circumstances, the Writ Petition is liable to be dismissed. 7. Heard the learned counsel for both sides and perused the materials available on record. 8. A Perusal of the averments made in the affidavit filed in support of the Writ Petition would show that the dispute between the petitioner and respondent Nos.5 to 6 is purely Civil in nature. 7. Heard the learned counsel for both sides and perused the materials available on record. 8. A Perusal of the averments made in the affidavit filed in support of the Writ Petition would show that the dispute between the petitioner and respondent Nos.5 to 6 is purely Civil in nature. Moreover, the order of interim injunction passed in favour of the 6th respondent in O.S.No.6929 of 2006 restraining the brothers of the petitioners from interfering with his possession and enjoyment, was made absolute. Even the Appeal filed against the said order was also dismissed. Though it was claimed by the petitioner that originally she was in possession of flat No.3, the issue raised by the petitioner cannot be decided in the Writ Petition. It is to be pointed out that already two Civil Suits are pending between the 6th respondent and the petitioner’s brothers before the City Civil Court and the petitioner can redress her grievance be filing appropriate Application in any of the said Suits by impleading herself. Moreover, the petitioner had obtained a direction in the Criminal Original Petition as against the 4th respondent to register a case against the 5th and 6th respondent and to investigate the same. Thereafter, the petitioner had chosen to file the present Writ Petition for a direction to direct respondent Nos.1 to 3 to take appropriate action against the 5th and 6th respondents for forcibly entering into the petitioner’s flat No.3 along with his wife, the 6th respondent and also for restoration of possession of the subject flat. 9. In my opinion, such a prayer cannot be entertained in the Writ Petition because the issue raised in this Writ Petition needs to be proved by way of evidence oral and documentary. Further, I find that the petitioner, having obtained a direction in the Criminal Original petition for the same relief, which is nothing but a sheer abuse of the process of law and she cannot conduct parallel proceedings for a similar relief under different jurisdictions. Under such circumstances, I am of the view that the Writ Petition is not maintainable. For the reason stated above, the Writ Petition fails and accordingly, it is dismissed. No costs. Consequently, connected M.Ps. are closed.