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2014 DIGILAW 4256 (MAD)

S. Kennedy v. G. Gogulakrishnan

2014-11-14

P.R.SHIVAKUMAR

body2014
Order 1. The judgment debtors in E.P.No.135 of 2005 in O.S.No.444/1999 on the file of the Principal District Munsif Court, Alandur are the petitioners in the present civil revision petitions. The decree holder is the respondent in both the revisions. 2. The above suit O.S.No.444/1999 came to be filed by the respondent herein for the following reliefs: (i) for a declaration that the construction made by the revision petitioners in the common space lying on the sought of the respondent's property was illegal; (ii) for a permanent injunction restraining the revision petitioners from putting up further constructions in the said property; and (iii) for a mandatory injunction directing the revision petitioners to remove the illegal construction including balcony, staircase, septic tank and the parapet wall in the first floor made in the common space lying on the south side of the respondent's property. 3. The suit was decreed by the trial court on 30.09.2005. The appeal preferred by the revision petitioners in A.S.No.26/2008 on the file of the Sub Court, Tambaram was also dismissed by a judgment and decree of the first appellate court dated 16.02.2010. Thereafter, the revision petitioners preferred a second appeal on the file of this court in S.A.No.1610/2010. This court, while confirming the judgment of the lower appellate court, clarified and modified the decree by directing that the over bridge and the pillars supporting the over bridge alone were liable to be demolished and removed and that the staircase and other constructions raised by the revision petitioners referred to in the trial court's decree should remain in tact. The said decree as modified by the High Court in its judgment dated 09.09.2011 pronounced in S.A.No.1610/2010 has admittedly become final. 4. Meanwhile, the respondent herein/decree holder filed E.P.No.135/2005 on the file of the trial court for executing the decree granting mandatory injunction. Such an Execution Petition came to be filed even before the filing of the first appeal before the first appellate court. The Executing Court, without properly reading and understanding the decree of the trial court, instead of directing removal of the construction directed to be removed, ordered delivery of possession. The said order passed in the Execution Petition was set aside by this court by its order dated 16.09.2010 made in C.R.P.No.594 of 2010. The Executing Court, without properly reading and understanding the decree of the trial court, instead of directing removal of the construction directed to be removed, ordered delivery of possession. The said order passed in the Execution Petition was set aside by this court by its order dated 16.09.2010 made in C.R.P.No.594 of 2010. Subsequently, the first appeal came to be dismissed and in the second appeal, the decree of the trial court was modified to the extent indicated supra. 5. Thereafter, the Executing Court took up the Execution Petition E.P.No.135/2005 and passed an order on 07.07.2011 directing the revision petitioners/judgment debtors to remove the over bridge and pillars supporting the over bridge put in the common space lying on the south of the respondent's/decree holder's property, within 15 days from the date of the said order. It was also ordered therein that in case of failure on the part of the revision petitioners/judgment debtors to comply with the said order, necessary further orders would be passed making the revision petitioners/judgment debtors to bear the expenses. As the revision petitioners/judgment debtors had not removed the structures as directed, the Executing Court, by an order on 22.07.2011, appointed an Advocate-Commissioner to carry out the demolition work as per the decree. As against the said order of the Executing Court dated 22.07.2011, the revision petitioners/judgment debtors filed a revision in C.R.P.(NPD) No.3254 of 2011 on the file of this court. This court, by an order dated 09.09.2011 upheld and confirmed the order of the Executing Court. However, the Advocate Commissioner was directed to take the assistance of a qualified civil engineer so as to ensure that the portions allowed to be retained by the revision petitioners/judgment debtors are retained while carrying out the demolition work. This court also directed that the remuneration payable to the engineer should be paid by the revision petitioners/judgment debtors. 6. Thereafter, the revision petitioners/judgment debtors filed two execution applications in E.A.Nos.275/2012 and 276/2012 in E.P.No.135/2005 praying for the rejection of the Execution Petition on the ground that the amended decree copy as modified by the High Court in the second appeal had not been produced and that and for an order recalling the warrant was issued to the Advocate-Commissioner. Thereafter, the revision petitioners/judgment debtors preferred another revision in C.R.P.No.2658/2012 against the alleged oral instructions of the Executing Court to remove the illegally constructed building. Thereafter, the revision petitioners/judgment debtors preferred another revision in C.R.P.No.2658/2012 against the alleged oral instructions of the Executing Court to remove the illegally constructed building. It was contended therein that the revision petitioners/judgment debtors themselves had removed the objectionable portion as per the decree as modified by the judgment of this court in S.A.No.1610/2010 and that no more portion was available to be demolished. This court, by an order dated 12.07.2012 disposed of the said civil revision petition with the following direction: "Here, even though in para No.15 this court in CRP NPD No.3254 of 2011 dated 09.09.2011 mandated the Executing Court to carry out certain mission with the help of the Civil Engineer, the judgment debtors claimed otherwise. It is quite obvious and axiomatic that if the area to be demolished was already demolished and it is not there, the question of once again demolishing the said portion would not arise at all and by way of disambiguating the ambiguity, I would reiterate that the Advocate Commissioner appointed by the Executing Court shall note as to whether still any more portion has to be demolished as per the decree, which attained finality and that too that has to be ascertained with the help of a qualified civil engineer as already mandated by this court and there should not be any violation." 7. Subsequently, the revision petitioners/judgment debtors filed two miscellaneous petitions M.P.Nos.1 and 2/2012 in C.R.P.(NPD) No.3254/2011 seeking extension of time to carry out the demolition work and an order staying the execution of the warrant issued by the Executing Court till then, on the ground that the daughter-in-law of the first revision petitioner was in the family way and they sentimentally felt that demolition work had to be postponed till she would deliver the child. This court showed indulgence by suspending the execution of the warrant till 03.06.2012, besides permitting the revision petitioners/judgment debtors to comply with the decree themselves or in the alternative to permit the Executing Court to proceed with the execution. 8. Even after the expiry of the time extended by this court, the revision petitioners/judgment debtors were not cooperating and they obstructed and resisted the attempt made by the Advocate-Commissioner who went along with the civil engineer to carry out the direction issued to him in the warrant. 8. Even after the expiry of the time extended by this court, the revision petitioners/judgment debtors were not cooperating and they obstructed and resisted the attempt made by the Advocate-Commissioner who went along with the civil engineer to carry out the direction issued to him in the warrant. Hence the Advocate Commissioner filed a Memo on the file of the Executing Court on 23.08.2012 to which the letter of the engineer was annexed. Pursuant to the same, the respondent herein/decree holder filed a petition for contempt in Contempt Petition No.1212/2012 on the file of this court. In the said contempt petition, the revision petitioners/judgment debtors put-forth a plea that the demolition work, in accordance with the decree of the trial court as amended by the judgment in the second appeal, had already been carried out and a Memo to that effect had also been filed before the Executing Court. The respondent/decree holder contended that the revision petitioners/judgment debtors did not fully comply with the decree and on the other hand, they removed only a portion, namely a slap linking the balconies in both the blocks, leaving the pillars and the bridge over the pillars and also the construction put up over the bridge in tact. As this court felt that it was a contentious issue, this court, by an order dated 14.09.2012 disposed of the said contempt petition with the following direction: "Therefore, the contempt petition is disposed of directing the Executing Court to conduct an enquiry after re-issuing the warrant of commission to the Advocate Commissioner and calling upon him to file a report along with the report of a qualified civil engineer to find out as to whether the demolition has been carried out in tune with the decree. If the Executing Court finds that the demolition has not been carried out in tune with the decree, the Commissioner shall be empowered to carry out the same." Thereafter, the learned Judge of the Executing Court conducted an enquiry in the Execution Application Nos.275 and 276 of 2012 filed by the revision petitioners/judgment debtors and dismissed both the applications by an order dated 24.06.2013, in which the learned judge of the Executing Court has narrated the sequence of events. As against the dismissal of E.A.No.275/2012, C.R.P.(NPD) No.3142/2013 has been filed. As against the dismissal of E.A.No.276/2012, C.R.P.(NPD) No.3143/2013 has been filed. 9. As against the dismissal of E.A.No.275/2012, C.R.P.(NPD) No.3142/2013 has been filed. As against the dismissal of E.A.No.276/2012, C.R.P.(NPD) No.3143/2013 has been filed. 9. At the time of hearing of the present civil revision petitions, the counsel for the revision petitioners/judgment debtors maintained their earlier stand that the portions that were directed to be demolished as per the decree as modified by the High Court in the second appeal, had been demolished and removed by the revision petitioners/judgment debtors themselves; that nothing more remained to be done in execution of the decree except recording full satisfaction and that hence the Execution Petition should be terminated after recording full satisfaction. 10. Per contra, the learned counsel for the respondent/decree holder contended that the revision petitioners/judgment debtors had put up as many as 12 pillars in the common space and put up a bridge in between block Nos.54 and 55 and rested the floor portion on the above said bridge like construction on the pillars referred to as bridge in the decree passed in the second appeal; that the said pillars, the floor supported by the pillars and the first floor portion put up above the floor should be demolished as per the modified decree; that retention of sceptic tank, staircase, balcony, landing space and the parapet wall alone were permitted to be retained as per clause 3 of the modified decree and that the judgment debtors after removing the structures connecting the balconies alone came forward with the contention that the direction made in the decree had been fully carried out and falsely claimed that there remained nothing more to be executed. 11. In view of the fact that the revision petitioners/judgment debtors have taken a stand that they have demolished and removed the constructions directed to be demolished and removed and nothing more remains to be demolished and that such a contention was denied by the respondent herein/decree holder, this court deemed it fit to make a local visit to the property. Counsel for both the parties consented for the same and on 29.01.2014, I myself made a personal visit and inspected the property in the presence of the parties as well as their counsel. A Notes of Inspection was also prepared and the case was adjourned for further hearing. Counsel for both the parties consented for the same and on 29.01.2014, I myself made a personal visit and inspected the property in the presence of the parties as well as their counsel. A Notes of Inspection was also prepared and the case was adjourned for further hearing. After the personal inspection made by the court, on the adjourned date of hearing, the learned counsel for the revision petitioners/judgment debtors argued that though Block Nos.54 and 55 were disjunct at the inception and the open space in between the same was meant for the common use of the allottees (owners) of twin houses in Pallavan Quarters, by a subsequent oral understanding, the allottees (owners) of the ground floor portion in both the blocks were allowed to use the open space in the front and back side of the constructed portion of the respective blocks, whereas the allottees (owners) of the first floor portions of both the blocks were permitted to put up their construction in the space in between the two blocks leaving the stilt floor open and joining the first floor portions of both blocks together. Such a contention was denied to be false on behalf of the respondent herein/decree holder. 12. In fact, it is an admitted fact that there is no agreement in writing to the above said effect as contended by the learned counsel for the revision petitioners/judgment debtors. However, the learned counsel for the revision petitioners/judgment debtors raised a contention that since the allottees (owners) of the ground floor portion have already converted the common space available in the backyard and front-yard for their exclusive use, they were estopped from denying the right in respect of the space in between the two blocks claimed by the revision petitioners/judgment debtors. It has also been contended by the learned counsel for the revision petitioners/judgment debtors that though the objected construction was made without obtaining planning permission from the local planning authority, availing the provisions for regularisation, the revision petitioners had applied for regularisation of the unauthorised construction and therefore, the application is yet to be disposed of and the same has not been rejected by the local planning authority. 13. 13. In this regard, the mere fact that the petitioners/judgment debtors have chosen to apply to the local planning authority for the retention of the unauthorised construction over the common space shall not defeat the rights of the allottees (owners) of the ground floor portions. Even if the local planning authority grants such a permission to retain the unauthorised additional construction, the respondent/decree holder, being the co-owner of the common space in between the two blocks, can very well sustain his claim for the removal of the additional constructions put up on the common space in between the two blocks. If at all the revision petitioners/judgment debtors have also converted the other portions meant for common use, it shall be left to the revision petitioners and other co-owners to proceed against them in the manner known to law. Moreover when such a contention was raised in the suit, in the first appellate court and in the second appeal before the High Court, the same was rejected and the claim of the respondent/decree holder for mandatory injunction for the removal of the additional constructions put up over the common space in between Block Nos.54 and 55 came to be sustained. However, in the second appeal, this court modified by clarifying the decree of the trial court that the over bridge put up on the common space in between the two blocks and also pillars supporting the over bridge alone should be removed leaving the staircase, sceptic tank and the allied constructions in tact. Such a direction is sought to be improperly interpreted by the revision petitioners/judgment debtors to mean that only the slab connecting the balconies serving as the landing space from the staircase to have access to the first floor portion was directed to be removed leaving the 12 pillars and the construction put up over those pillars in tact. Such a contention cannot be countenanced, because the main prayer itself is for the removal of the additional construction put up over the common space in between the two blocks connecting the first floor portions of the two blocks has been sustained and the decree came to be passed. 14. Such a contention cannot be countenanced, because the main prayer itself is for the removal of the additional construction put up over the common space in between the two blocks connecting the first floor portions of the two blocks has been sustained and the decree came to be passed. 14. By the modification made by this court in the second appeal, only minor portions, namely staircase, the landing slab and the parapet wall on the landing slab besides the sceptic tank put up in the common space alone were permitted to be retained. In fact, the revision petitioners/judgment debtors, after suffering an adverse order against them in the previous civil revision petition, namely C.R.P.(NPD) No.3254 of 2011, chose to file two miscellaneous petitions seeking stay of execution of the warrant and time for complying with the direction on the ground that the daughter-in-law of the first revision petitioner was in the family way and they sentimentally felt that the demolition of any part of the building would be viewed as a bad omen. While making such a prayer, they had undertaken to carry out the demolition work themselves. As such, this court granted time till 03.06.2012. Even after the expiry of the said time, they did not comply with the direction and they simply removed a small portion, namely a slab connecting the landing slabs of the staircases leaving the major portion of the construction which were supported by 12 pillars in tact. 15. The very attitude of the revision petitioners/judgment debtors will show the high handedness with which they are prepared to act. Repeatedly they had come forward with the very same contention, which was rejected by the trial court, appellate court and the second appellate court. Such steps taken by the revision petitioners/judgment debtors can even be construed to be an abuse of process of court. Therefore, this court comes to the conclusion that the claim of the revision petitioners/judgment debtors that the direction issued in the decree for demolition and removal of the construction was fully carried out and the Execution Petition has to be terminated after recording the full satisfaction, has got to be rejected as untenable. 16. Therefore, this court comes to the conclusion that the claim of the revision petitioners/judgment debtors that the direction issued in the decree for demolition and removal of the construction was fully carried out and the Execution Petition has to be terminated after recording the full satisfaction, has got to be rejected as untenable. 16. In view of the reasons stated above, this court finds no valid reason to interfere with the orders passed by the Executing court in E.A.Nos.275 and 276 of 2012 in E.P.No.135 of 2005 in O.S.No.444/1999, which are impugned in the present civil revision petitions and hence both the civil revision petitions are liable to be dismissed. In the result, both the Civil Revision Petitions are dismissed. The warrant issued to the Commissioner shall be executed by the Advocate-Commissioner with the assistance of a civil engineer to ensure that other portions are not affected while carrying out the demolition work of the additional constructions, which have been directed to be removed. The expenses for such demolition work and the remuneration of the engineer shall have to be recovered from the revision petitioners/judgment debtors. However, there shall be no order as to cost in the civil revision petitions. Consequently, the connected miscellaneous petitions are closed.