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2010 DIGILAW 4375 (MAD)

Epsiba Selva Kumari v. Home Secretary, Government of Tamil Nadu

2010-09-30

M.Y.EQBAL, T.S.SIVAGNANAM

body2010
Judgment :- M.Y. Eqbal, C.J. 1. This Appeal filed by the Appellants/Writ Petitioner is directed against the judgment and order dated 16.04.2010 passed in W.P. No. 1089 of 2010. whereby the learned Single Judge dismissed the Writ Petitioner holding that the dispute raised by the Writ Petitioner is purely of Civil nature and therefore, no relief can be granted. 2. The Appellant/Writ Petitioner filed the aforesaid Writ Petitioner praying for the issuance of a Writ of Mandamus to direct the Respondents 1 to 3 to take appropriate action against the 5th Respondents, who alleged to have forcibly entered in her Flat No.3 in the Ground Floor of the premises bearing Door No.8, Thiruveedian Street, Gopalapuram, Chennai-86. 3. The case of the Petitioner was that she had been in possession of Flat No.3 in the premises described herein above since 2001. According to the Petitioner originally the property in its entirety bearing Door No.8, Thiruveedian Street, Gopalapuram, Chennai belonged to her three brothers namely, Selvanathan, Inbanathan and Arumainathan. In the year 1999 the old structure was demolished and new flats had been constructed. Petitioner was put in possession of Flat No.3 by her brothers in 2001. It is alleged that Selvanathan, one of the brother of the Petitioner, died in July, 2003 and before his death he did not occupy the newly constructed flat. After the death of her brother Selvanathan one Amsaveni claiming to be the widow of the deceased Selvanathan sold the flat, which was in possession of the Petitioner, after obtaining Legal Heir Certificate from the Tahsildar, Egmore-Nungambakkam Taluk, in favour of the 6th Respondents, who was the wife of 5th Respondent. Petitioner’s further case was that originally the 5th Respondent with his family was in occupation of Flat No.10 in the second floor on rental basis. It was stated that when the Petitioner’s brother came to know of the transfer of Flat No.3 in favour of the 5th Respondent they filed a Suit being 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 Amsaveni claiming herself to be the widow of deceased Selvanathan is null and void and not binding on them. The 6th Respondent also filed O.S. No. 6929 of 2006 claiming herself to be in possession of the flat in question. The 6th Respondent also filed O.S. No. 6929 of 2006 claiming herself to be in possession of the flat in question. The Petitioner further alleged that in the meantime the 5th Respondent, who is working as Inspector of Police forcibly took possession of the flat in question from the Petitioner with the help of other persons. As a result, the Petitioner filed a Complaint before the 4th Respondent against the 5th and 6th Respondent making allegations of Criminal trespass. The Petitioner, therefore, sought relief from Respondents 1 to 3 against Respondents 5 and 6. 4. On the other hand, the 6th Respondent on notice in the Writ Petition, took a stand that the flat in question was purchased from the rightful owner on 03.03.2006 for a valuable consideration by virtue of a registered Deed of Sale and came in possession of the flat as an absolute owner right from the date of purchase. When the brothers of the Petitioner attempted to interfere with her possession she filed a Suit being O.S. No. 6929 of 2006 against the petitioner’s brothers for a permanent injunction restraining them from interfering with her peaceful possession and enjoyment of the flat in question. It is stated that an injunction order was passed in favour of the 6th Respondent holding that the 6th Respondent was in possession of the flat in question. Against the said order the Defendants, who were the Petitioner’s brothers preferred an Appeal being c.M.A. No. 159 of 2006 before the VII Additional Judge, City Civil Court Chennai, which was ultimately dismissed. 5. Learned Single Judge after considering the entire facts of the case, particularly the fact that the 6th Respondent obtained an order of injunction from a Civil Court and the Appeal filed by the Petitioner’s brothers against the granting of interim injunction was also dismissed, and further the Suits are pending between the parties in a Civil Court, held that it is appropriate for the Petitioner to get her claim adjudicated by the Civil Court in the pending Suits. 6. We have heard Mr. G. Rajagopal, lesrned Senior Counsel for the Appellant/Writ Petitioner, Mr. J. Raja Kalifulla, learned Government Pleader appearing on behalf of the Respondents 1 to 4 Mrs. P.T. Asha, learned Counsel appearing on behalf of the 5th Respondent and Mr. K.V. Babu, learned Counsel appearing for the 6th Respondent. 7. 6. We have heard Mr. G. Rajagopal, lesrned Senior Counsel for the Appellant/Writ Petitioner, Mr. J. Raja Kalifulla, learned Government Pleader appearing on behalf of the Respondents 1 to 4 Mrs. P.T. Asha, learned Counsel appearing on behalf of the 5th Respondent and Mr. K.V. Babu, learned Counsel appearing for the 6th Respondent. 7. Learned Senior Counsel appearing for the Appellant vehemently argued that the 5th Respondent, who is an Inspector of Police by taking law on his own hands along with his henchmen forcibly took possession of the flat in question from the Appellant and also caused injuries to her. It is contended that although Complaint was lodged with the 3rd Respondent against 5th and 6th Respondent yet no action was taken. According to the learned Senior Counsel the alleged Sale Deed executed by one Amsaveni as widow of deceased Selvanathan in favour of the 6th Respondent is null and void. On the other hand, the 6th Respondent had also filed O.S. No. 6929 of 2006 claiming her title and possession of the flat in question. In the said Suit an order of injunction was passed in favour of the 6th Respondent and the Appeal filed by the Appellant’s brothers against the order of injunction was dismissed. It is also not in dispute that the above mentioned two Suits are pending before the Civil Court where the parties seriously disputed the title and possession in respect of the flat in question. In the aforesaid premises the learned Single Judge has rightly held that the Writ Court in exercise of its power under Article 226 of the Constitution of India cannot decide the dispute which is sub-judge before a Civil Court. We fully agree with the view taken by the learned Single Judge. 8. So far as the grievance of the Petitioner/Appellant with respect to her alleged Complaint lodged with the 4th Respondent against the 5th Respondent for forcibly evicting her from the flat in question is concerned, in the Counter Affidavit filed by the 4th Respondent it is stated that on 13.01.2010 one Mr. J.A. Inbanathan came to the Police Station and lodged a Complaint against Mr. Chandrasekaran stating that he has sent henchmen and entered into the house at Flat No.3, Thiruveedian Street, Gopalapuram and threw away all the things out of the house and assaulted him and his sister. The said Complaint was immediately taken on file. J.A. Inbanathan came to the Police Station and lodged a Complaint against Mr. Chandrasekaran stating that he has sent henchmen and entered into the house at Flat No.3, Thiruveedian Street, Gopalapuram and threw away all the things out of the house and assaulted him and his sister. The said Complaint was immediately taken on file. Thereafter, on the same day one Mrs. Kaliammal W/o. Mr. Chandrasekaran gave a Complaint against Arumainathan, Inbanathan, Kamia Selvakumari, Epsiba Selvakumari, Marthal Selvakumari and Paulraj stating that they are trying to disturb her peaceful possession. The said Complaint was also taken in file. Both the parties were called to produce relevant records relating to their respective claims, and thereafter, an opinion was obtained from the Assistant Public Prosecutor, Saidapet. On enquiry it was found that Mrs. Kaliammal was in possession of the property in question by virtue of a valid Sale Deed executed in her favour and when her possession was sought to be disturbed she moved the Civil court and obtained an order of interim injunction. 9. Considering the entire facts of the case and the rival submissions made by the parties over the flat in question, it would be most appropriate for them to get their and possession decided by the Civil Court in the pending Suits filed by the respective parties. 10. For all these reasons, we do not find any merit in this Appeal. Accordingly, this Writ Appeal is dismissed. However, in the facts and circumstances of the case, we direct the learned Court before whom the two Suits are pending to hear and dispose of the pending Suits as expeditiously as possible, preferably within a period of six months from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is also dismissed.