R. Dharman v. Tamil Nadu Slum Clearance Board, Represented by its Chairman, Chennai
2013-06-18
M.JAICHANDREN, M.M.SUNDRESH
body2013
DigiLaw.ai
JUDGMENT M.M. Sundresh, J. 1. This writ appeal has been filed by the appellants being aggrieved against the dismissal of the writ petition in W.P.No.24727 of 2010 filed by them. 2. Facts in brief: 2.1. The appellants' father late K. Ranganathan Udayar was allotted a plot by the first respondent-The Tamil Nadu Slum Clearance Board, in and by the proceedings dated 12.12.1983. The said Ranganathan Udayar died on 10.05.1989. One Mrs.Saradammal claiming to be the wife of the deceased Ranganathan Udayar, made a representation before the first respondent, enclosing a certificate of legal heirs of the said Ranganathan Udayar for change of allotment in her name. By the proceedings dated 01.12.1992, the allotment was changed in her name. In the meanwhile, even during the life time of late Ranganathan Udayar, he sold the property to one Mr.Sivalingam-second respondent herein. The sale deed was said to have been executed on 10.04.1989. The second respondent, on knowing the transfer of allotment in the name of Mrs.Saradammal, made a representation to the first respondent. Thereafter, by the proceedings dated 24.04.1995, the allotment was changed in the name of the second respondent, after cancelling the earlier allotment made in the name of Saradammal. 2.2. In the year 1993, the appellants filed a suit in O.S.No.6794 of 1993 on the file of VII Assistant Judge, City Civil Court, Chennai, seeking to declare themselves as legal heirs of late Raganathan Udayar and for the consequential reliefs including one for a mandatory injunction directing defendants 2,3,4 and 5 therein to vacate the schedule mentioned property. The said suit was decreed ex-parte on 17.02.1996. The appellants filed an execution petition, which was also dismissed as not maintainable, on 18.07.2006, on the ground of delay. Thereafter, the writ petition in W.P.No.24727 of 2010 has been filed by the appellants seeking to quash the order of allotment dated 29.04.1995 passed by the first respondent with a consequential direction to cancel the allotment made in favour of the second respondent. 2.3. The learned single Judge was pleased to dismiss the writ petition by holding that the appellants, having approached the Court belatedly, are not entitled for the relief. Challenging the same, the present writ appeal has been filed. 3. The learned counsel appearing for the appellants would submit that the delay by itself cannot be a ground to deny the relief sought for.
Challenging the same, the present writ appeal has been filed. 3. The learned counsel appearing for the appellants would submit that the delay by itself cannot be a ground to deny the relief sought for. The first respondent has not followed the procedure in a proper manner. The decree obtained from the civil Court will have to be given effect to. In support of his contention, the learned counsel has made reliance upon the decision of the Honourable Apex Court in the case of Tukaram Kana Joshi And Others V. Maharashtra Industrial Development Corporation And Others (2013) 1 Supreme Court Case 353. 4. Per contra, the learned counsels appearing for the respondents would submit that the appellants have not placed the correct facts before the Court. The allotment made in favour of Saradammal was cancelled. Thereafter, it was given in favour of the second respondent. The second respondent has also transferred the plot in favour of the third party. The writ petition has been filed by the appellants after a long delay. A decree of the Court cannot be executed by approaching the Honourable High Court after expiry of the statutory period. Therefore, the writ appeal has to be dismissed. DISCUSSIONS 5. It is seen from the records that the allotment of plot made in favour of Ranganathan Udayar by the first respondent was transferred in favour of one Saradammal. Later it was cancelled. Thereafter, the said plot was allotted to the second respondent, who got a sale deed executed as mentioned above even during the existence of the first allotment with late Ranganathan Udayar. The appellants have not challenged the above said proceedings at the appropriate time. 6. Further more, the appellants have not taken appropriate steps after obtaining a decree. The second respondent was not a party to the decree. By the time the decree was passed, the transfer was already effected in his name. The appellants have not filed the execution petition in time. The execution application filed by the appellants was also dismissed and the same has become final. A perusal of the decree passed by the City Civil Court leaves much to be desired. Absolutely no reasons have been assigned by the learned single Judge. The second respondent was in possession of the property from 1995 onwards. Thereafter, the subsequent purchaser has been in possession. He is also not a party to this proceeding.
A perusal of the decree passed by the City Civil Court leaves much to be desired. Absolutely no reasons have been assigned by the learned single Judge. The second respondent was in possession of the property from 1995 onwards. Thereafter, the subsequent purchaser has been in possession. He is also not a party to this proceeding. It is also not known as to how the second respondent took possession from the said Saradammal as it is the specific case of the appellants themselves that defendants 1 to 4 were in possession. Therefore, we do not find any reason to interfere with the order of the learned single Judge. 7. Coming to the question of delay, we are of the view that the appellants are guilty of the delay, laches and acquiescence. Further more, the writ petition as filed by the appellants is also not maintainable in view of the decree obtained already, which could not be executed by reason of having been barred by limitation. The judgment relied upon by the learned counsel appearing for the appellants does not apply to the case on hand. It is no doubt true that the delay is one of discretion. However, when a third party right has been set in and when the competent Civil Court has already rejected the relief sought for by the appellants, then such a relief cannot be given by invoking the discretionary jurisdiction of the Court. Therefore, the writ appeal fails and accordingly, the same is dismissed. No costs.