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2014 DIGILAW 2494 (MAD)

M. M. S. Hasan Ali v. Haji M. Nazar

2014-08-08

V.M.VELUMANI

body2014
Judgment 1. The Judgment and Decree dated 28.02.2014 passed in I.A.No.84 of 2014 in O.S.No.34 of 2014 on the file of the Subordinate Judge, Tuticorin, dismissing the Interlocutory application, is under challenge in this Civil Revision Petition. 2. The revision petitioner herein is the plaintiff in O.S.No.34 of 2014 on the file of the Court of Subordinate Judge, Tuticorin, whereas the respondents herein are the defendants. 3. The petitioner filed O.S.No.34 of 2014 on the file of the Sub Court, Tuticorin under Order 7 Rule 1 and Section 6 of the Specific Relief Act (hereinafter referred to as 'the Act'). According to the petitioner, the suit property belonged to him and his two brothers Sulthan Mohideen and Mathar Sahib. The respondents are the sons of Mathar Sahib, who died in the year 2011. 4. While his brother was alive, the suit property was in a dilapidated condition and roofs started falling down. Therefore, the petitioner renovated the suit property by spending Rs.5 lakhs with the knowledge of his brothers. He is in possession and enjoyment of the property and is paying all statutory dues. His brothers agreed to pay their share of the expenses spent by the petitioner at the time of partition. 5. While so, on 25.12.2013, the respondents herein with the help of 25 rowdy elements broke open the house and removed all the belongings of the petitioner. They removed the window of the northern side and put up their lock and they are in possession in portion of the suit property. The petitioner gave complaint on 26.12.2013 to the Inspector of Police, Kulasekarapattinam Police Station. The said complaint was received, but no further action was taken and the petitioner was informed to approach the civil Court for his remedy. Under these circumstances, the petitioner filed O.S.No.34 of 2014 for recovery of possession and for injunction. Along with the suit, the petitioner filed two applications in I.A.Nos.84 and 85 of 2014 seeking for an order of temporary injunction restraining the respondents from interfering with his peaceful possession and enjoyment of the remaining portion of the schedule-I property. 6. The respondents filed counter affidavit stating that the suit property belonged to the petitioner and his two brothers, Sulthan Mohideen and the father of the respondents Mather Sahib. 6. The respondents filed counter affidavit stating that the suit property belonged to the petitioner and his two brothers, Sulthan Mohideen and the father of the respondents Mather Sahib. The central portion of the suit property was allotted to the father of the respondents and the backside portion was allotted to Sulthan Mohideen. From that day onwards, parties are in possession and enjoyment of their respective portion. 7. Patta was issued in the year 1991 in the name of the petitioner and respondent's father under the Natham Land Tax Plan (“TAMIL”). The petitioner in a fraudulent manner changed the joint electricity connection in his own name. The toilet constructed, which is alleged to be put up by the petitioner may be in the front portion allotted to the petitioner. The petitioner is not financially sound to spend a sum of Rs.5 lakhs either in 2007 or thereafter. The petitioner was at no point of time in possession of the entire property. They also further stated that having filed a suit under Section 6 of the Specific Relief Act, the petitioner is not entitled to claim perpetual injunction under Section 38 of the Specific Relief Act. 8. The learned Judge after considering the plaint, affidavit, counter affidavit, documents and also arguments of the parties has noted that the petitioner himself admitted that the suit property belongs to him and his two brothers. Even though the petitioner has stated that he has spent Rs.5 lakhs and he is in exclusive possession of the suit property, he has not produced or filed any document to substantiate his claim. The petitioner alleges that the respondents have taken possession of a portion of the suit property illegally, but the learned Judge held that the said portion belongs to the respondents. Further any order passed under Section 6 of the Act is a final order and therefore, the arguments of the learned counsel for the respondents that the relief cannot be sought for under both the Sections, i.e., Sections 6 and 38 of the Specific Act, is tenable and acceptable. 9. The learned Judge has held that the respondents have filed documents to show that they are in possession and enjoyment of the central portion of the suit property consisting of two rooms and kitchen. If any injunction is granted that will amount to curtailing the rights of the respondents. 9. The learned Judge has held that the respondents have filed documents to show that they are in possession and enjoyment of the central portion of the suit property consisting of two rooms and kitchen. If any injunction is granted that will amount to curtailing the rights of the respondents. Therefore, he dismissed the application in I.A.No.84 of 2014 holding that there is no reason to grant any interim injunction pending suit. 10. Considering the arguments and perusal of the documents and the order of the learned Judge, it is clear that the respondents are entitled to a share in the property and they are in possession of the central portion of the property, as the same was allotted to their father. They have filed documents to show that they are in possession of the property and the petitioner himself has admitted that the respondents are in possession of the property even though according to the petitioner they occupied the portion illegally. The learned Judge has gone through all the materials in the proper perspective and exercised his power judicially. Therefore, there is no illegality or irregularity in the said order and no interference is warranted by this Court. 11. The question of not filing appeal and maintainability of Civil Revision Petition, in view of Section 6 of the Act is not tested in this order, as the revision is dismissed on the ground that there is no infirmity or illegality in the order of the Court below. 12. In the result, the Civil Revision Petition is dismissed. Consequently connected Miscellaneous Petition is closed. No costs.