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2011 DIGILAW 1209 (MAD)

Kanniappan v. Ekambaram

2011-03-04

T.S.SIVAGNANAM

body2011
Judgment :- 1. This Revision has been filed under Section 115 of the Code of Civil Procedure (hereinafter referred to as the "CPC") against the fair and decreetal order dated 28.12.2004 in E.P.No.103 of 2004 in O.S.No.626 of 1982 on the file of the Court of Principal District Munsif, Kancheepuram. 2. The Decree-holder is the petitioner. The petitioner filed a suit in O.S.No.626 of 1982, before the District Munsif Court, Kancheepuram. In the suit, the petitioner sought for a Judgment and decree to declare that the suit property marked ABCD in the plaint plan absolutely belongs to the plaintiff and as a consequence direct the defendant to vacate and handover vacant possession of the suit property, failing which the same may be done through Court and for grant of decree of permanent injunction restraining the defendant and his men from in any way putting up a bunk or superstructure in front of the plaintiffs' property in door No.73/A/1, Mettu Street, Kancheepuram in T.S.Nos.2626 & 2617, both on the western and southern sides. 3. At this stage, it would be necessary to take note of the plaint averments. According to the petitioner, he is the absolute owner of the bunk shop and aerated water shop in premises No.73/A/1, Mettu Street, Kancheepuram and on the southern side, there is a private road belonging to the petitioner, which is an access for all the owners of the plots including the petitioners and that the petitioners are having access and frontage both on the western and southern sides. While so, the respondent/defendant with a view to cause loss to the petitioner and preventing access on the southern side has placed a wooden bunk in front of the petitioners' shop in the road portion of the layout, which is a private property of the petitioners marked ABCD in the plan in or about 1978. As the respondent failed to remove the bunk and handover vacant possession, the petitioner was obliged to file for declaration of their title to the suit property and for consequential relief of possession of the suit property from the defendant. As the respondent failed to remove the bunk and handover vacant possession, the petitioner was obliged to file for declaration of their title to the suit property and for consequential relief of possession of the suit property from the defendant. Further, it was stated that the defendant was threatening to put a bunk in front of the road margin preventing the frontage on the western and southern side of the petitioners' shop and that this would be affecting his right of easement and therefore, the petitioner prayed for a decree of permanent injunction restraining the respondent from putting up any bunk blocking the frontage of the petitioners in future. According to the plaint, the cause of action for the suit arose in or about 1978, when the defendant put up the bunk in the suit property and subsequently, when the petitioner requested the defendant remove the same from 1982. 4. The respondent/defendant resisted the suit claim by filing a written statement inter alia contending that the petitioners have to prove that they are the absolute owners of the property in door No.73/A/1 and they have to prove that there is a private road leading to the suit property. Further, it was stated that the suit property is a Government poromboke land and not a private road and that the plaintiff purchased the property only recently and that the respondent has erected the bunk shop in 1978, after obtaining due permission from the Municipalities and that prior to the purchase made by the petitioner, one other person one Mr.Thayalan was carrying on business and he had entry only through the northern side and the respondent bunk shop is not a hindrance to the petitioners' right of ingress and egress to the property and non-impleading of the Municipality in suit is bad and for these reasons, the suit is liable to be dismissed. 5. The Trial Court by its Judgment and decree held that the suit property is a private pathway and the petitioner/plaintiff is entitled to use the same to reach his property and that the non-impleading of the Municipality is not fatal to the suit and that the respondent is not entitled to prevent the petitioner from using the private passage and accordingly the respondent was restrained by a decree of permanent injunction. In respect of other reliefs sought for, namely that for possession was rejected by the Trial Court. In respect of other reliefs sought for, namely that for possession was rejected by the Trial Court. 6. As against the Judgment and decree in O.S.No.626 of 1982, the petitioner filed an appeal before the lower Appellate Court in A.S.No.17 of 1988 and the respondent/defendant also filed an appeal in A.S.No.23 of 1988. Both these appeals were heard together and lower Appellate Court by its common Judgment and decree dated 13.08.1990, held that the plaintiff is entitled to use the suit pathway and the respondent is restrained by decree of permanent injunction from interfering with such right. Aggrieved by the said Judgment and decree passed by the Lower Appellate Court, the respondent/defendant filed appeal before this Court in S.A.No.1247 of 1991. This Court by order dated 30.10.2001, dismissed the appeal holding that both the Courts below have concurrently held that the petitioner is entitled to have their access through the ABCD pathway and therefore, there is no infirmity in the Judgment and decree passed by the Courts below. The Judgment rendered in S.A.No.1247 of 1991, became final as no further proceedings were taken. 7. It appears that the petitioners filed E.P.No.184 of 2003, for delivery of the suit property, which was dismissed. However, the copy of such order of dismissal has not been filed before this Court. Thereafter, the petitioner filed second execution petition in E.P.No.103 of 2004 for removal of the bunk shop put up by the respondent by invoking the power under Order 21, Rule 32 (5) read with Section 151 CPC. The petitioner has stated in the execution petition that the respondent in utter disobedience of the decree has put up construction and preventing the access of the petitioner in the suit pathway and inspite of the repeated request the respondent is continuing to flout the lawful decree, and therefore, the obstruction and encroachment in the pathway marked as ABCD should be removed. 8. The respondent resisted the execution petition by filing a counter inter alia contending that the execution petition is against the terms of the decree and that the petitioner has suppressed truth and filed the petition. 8. The respondent resisted the execution petition by filing a counter inter alia contending that the execution petition is against the terms of the decree and that the petitioner has suppressed truth and filed the petition. Further, it was stated that the relief sought for in the execution petition was not granted to the petitioners in decree dated 21.08.1987 and even in the modified decree passed by the lower Appellate Court in A.S.No.17 of 1988 and A.S.No.23 of 1988, which was confirmed by this Court and that the relief sought for regarding recovery of possession has been laid to rest and has been denied in the toto by the Court. Further, it was stated that the relief of recovery of possession was negatived by the Court and even the declaration granted by the trial Court was modified by the first Appellate Court and therefore, the claim in the execution petition is totally erroneous. Further, it was stated that the allegation that the respondent put up construction after the decree is not true and the construction existed even prior to the filing of the suit and the relief of recovery of possession sought in the suit was negatived by the trial Court as well as by the first Appellate Court and confirmed by this Court in second appeal and having failed in their attempt before all the three Courts, the petitioners have now introduced a new story as if, the respondent has put up construction after passing of the decree. Further, that the petitioners cannot maintain the present execution petition under Order 21, Rule 11(A) and the petitioners themselves have encroached into the Municipal land. Further, the previous execution petition in E.P.No.184 of 2003 was also dismissed by the Court and the present execution petition has been filed on imaginary grounds. The respondent also sought for appointment of Advocate Commissioner to verify the true facts. 9. The Executing Court after considering the respective pleadings and the Judgment passed by the trial Court and the lower Appellate Court dismissed the execution petition as against the said order, the petitioners have filed the present revision petition. 10. The respondent also sought for appointment of Advocate Commissioner to verify the true facts. 9. The Executing Court after considering the respective pleadings and the Judgment passed by the trial Court and the lower Appellate Court dismissed the execution petition as against the said order, the petitioners have filed the present revision petition. 10. The learned counsel appearing for the petitioners submitted that the Court below did not properly appreciated the scope of the execution petition and failed to appreciate that there is already a decree for permanent injunction restraining the respondent from interfering with the plaintiffs right to use the "ABCD" pathway and the respondent has put up obstruction in the pathway thereby preventing the petitioners from realising the fruits of the decree. That this Court confirmed the decree of permanent injunction granted by the Courts below and therefore, first respondent is bound to obey the said decree by not making any obstruction on the pathway and the petitioners being owners of the corner building have every right of access to the private road which is located on the southern side of the property and the Court below ought to have allowed the execution petition. In support of his contention, the learned counsel placed reliance on the decision of this Court in 2000 (II) CTC 136 [Kaliammal and another vs. D.C.Arunachalam and 6 others]. 11. Per contra, the learned counsel appearing for the respondent submitted that the petitioners sought for the relief of possession in the suit, which was negatived by the Courts below and in such circumstances, the petitioners have now filed the present execution petition, alleging as if, the construction has been put up by the respondent after the decree, which is absolutely false, since in the plaint, the petitioners admitted that the bunk shop put up by the respondent has been in existence in 1978. Therefore, the learned counsel would submit that in the absence of any decree for possession the executing court cannot go behind the decree, more particularly when the relief sought for by the petitioner for removal of the bunk was negatived by the trial Court as well as the first Appellate Court and therefore, the executing Court rightly dismissed the execution petition as it is not in the consonance with the decree. 12. Heard the learned counsels appearing for the parties and perused the materials available on record. 12. Heard the learned counsels appearing for the parties and perused the materials available on record. The copies of the Judgments and decrees passed by the Courts below were not furnished by both the counsels, therefore, the available case papers in S.A.No.1247 of 1991 were called for and perused, and the copies of the Judgments and decrees passed by the Courts below were available and were carefully perused. 13. As seen from the plaint filed in O.S.No.626 of 1982, the petitioner sought for a Judgment and decree to declare that the suit property marked "ABCD" in the plaint plan as absolutely belonging to them and as a consequence to direct the defendant to vacate and hand over the vacant possession of the suit property, failing which the same should be done by the Court and for a decree of permanent injunction to restrain the defendant from in any manner putting up a bunk or superstructure in front of the petitioners' property both on the western and southern side were sought for. In the plaint, the petitioners admitted that the bunk shop is in existence, since 1978, much prior to the filing of the suit. Owing to the said fact, the petitioners sought for relief of recovery of possession. 14. As rightly pointed out by the learned counsel appearing for the respondent, this relief of recovery of possession/handing over the possession was negatived by the Court below. In such circumstances, the only question to be considered in the present case is as to whether the Executing Court was bound to grant the relief sought for in the execution petition. It is a settled proposition of law that the Executing Court cannot go behind the decree. Likewise, the Executing Court cannot enlarge the scope of the decree to give a different relief, which was not granted by the Court after full-fledged trial. It is seen from the averments made in the execution petition, the petitioners have contended as if that after the decree was obtained, the respondent had put up the bunk shop. In fact the averments in the execution petition is to the effect that the respondent in utter disobedience of the decree has put up construction thereby preventing the access of the petitioners in the suit pathway. This pleading is totally in-consistence to the plaint averment as well not in consonance with the decree granted by the Courts below. In fact the averments in the execution petition is to the effect that the respondent in utter disobedience of the decree has put up construction thereby preventing the access of the petitioners in the suit pathway. This pleading is totally in-consistence to the plaint averment as well not in consonance with the decree granted by the Courts below. In such circumstances, the said averment in the execution petition deserves to be rejected as being false and contrary to the pleadings in the plaint filed in O.S.No.626 of 1982. 15. The learned counsel for the petitioners by placing reliance on the decision of this Court in Kaliammal and another, referred supra, would contend that once a declaratory relief has been granted by the trial Court, it is the duty of the Executing Court to ensure that there is no multiplicity of proceedings and even in the absence of any mandatory decree, the Court would see that the litigation comes to an end and not to direct the parties to file a separate suit. In the said case, a decree was obtained by the plaintiffs therein, declaring their rights to use the cart track and the defendants were restrained by means of permanent prohibitory injunction. Alleging that the decree was not obeyed, since the Judgment Debtors caused obstruction to the cart tract, execution petition was filed and one of the relief sought for was to appoint Commissioner under Order 21, Rule 32(5) read with Section 151 CPC and remove all types of obstructions. This petition was resisted by contending that unless there is a positive direction by the Court by way of decree of mandatory injunction such relief can be granted in the execution petition. The Executing Court overruled the objection and appointed an Advocate Commissioner for the purpose of removal of obstruction. Aggrieved by such order, the Judgment-Debtor filed revision before this Court. This Court after considering the various decision on the point held that when the Court declares that the plaintiff is entitled to make use of the cart track, various rights flow that, which seeks to right to enjoy the cart track without obstruction and if that is the effect of the decree, the plaintiff cannot contend that there is no mandatory injunction against the defendants and therefore, the petition under Order 21, Rule 32(5) CPC is not maintainable. Further, this Court observed that even if it is accepted that Rule 32(5) applies only for a decree of mandatory nature, that does not follow that the principles therein cannot be followed in cases where there had been utter violation of decree for declaration and injunction when interest of justice so requires and in such circumstances, this Court in the aforementioned decision held that the execution petition having been filed to see that while clearing the obstruction, the defendant do not cause any further obstruction, the relief could be granted. 16. Though, at the first blush, it appears that the law laid down by this Court in the above Judgment could be fully applied to the case on hand. Yet on a closure scrutiny of the facts of the present case proves otherwise. In the present case, the petitioners/plaintiffs admitted that the bunk was in existence, since 1978 i.e., much prior to the filing of the suit. Therefore, consciously the plaintiffs sought for a relief of declaration that they are exclusively entitled to the pathway and for a relief of recovery of possession and permanent injunction. The Court below did not grant the relief of declaration of title in respect of pathway but held that the suit pathway was a private passage and the petitioners were entitled to use the same. As regards the relief of recovery of possession, the Courts below negatived the relief. 17. Thus the Court below specifically rejected the relief of recovery of possession. No doubt, the Court below granted relief of permanent injunction, however by virtue of this order of injunction, now the petitioners cannot seek for a larger relief, which was specifically denied by the trial Court as well as lower appellate Court. Therefore, the decision relied on by the learned counsel appearing for the petitioners, referred supra, cannot be made applicable to the facts and circumstances of the present case. Admittedly, the petitioners did not file any second appeal before this Court against the Judgment and decree rejecting the relief of recovery of possession, when such be the factual situation, the executing Court was fully justified in holding that it cannot be compelled to grant a relief, which was not granted under the decree. 18. Hence, this Court is of the firm view, the petitioners have not made a case for interference with the order passed by the Executing Court. 19. 18. Hence, this Court is of the firm view, the petitioners have not made a case for interference with the order passed by the Executing Court. 19. In the result, the Civil Revision petition fails and it is dismissed. No costs.