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2015 DIGILAW 2318 (MAD)

R. S. Sathishkumar v. M. Radha

2015-07-01

M.DURAISWAMY

body2015
Judgment : 1. The above second appeal arises against the judgment and decree passed in A.S.No.35 of 2011 on the file of Subordinate Court, Arni confirming the judgment and decree passed in O.S.No. 35 of 2009 on the file of District Munsif Court, Arni. 2. The plaintiff is the appellant and the respondents were the defendants in the suit. 3. The plaintiff filed the suit in O.S.No.35 of 2009 for injunction restraining the defendants 1 and 2 from interfering with his possession and for mandatory injunction directing the third defendant to delete the entry in the revenue records with regard to the attachment in respect of the suit property. 4. It is the case of the appellant/plaintiff that he purchased the suit property from the respondents 1 and 2/defendants 1 and 2. Further, the appellant contended that there was a dispute between the defendants 1 and 2 and one K.T.Ramakrishnan in respect of the suit properties and pursuant to the decree passed in O.S.No.60 of 1998 on the file of Sub Court, Arni, the said K.T.Ramakrishnan filed an Execution Petition in E.P.No.190 of 2005 wherein, the respondents 1 and 2 had paid the decree amount and the Execution Petition was terminated and full satisfaction was recorded. Pursuant to the attachment order by the Execution Court, the said entry was incorporated in the revenue records and for removing the said entry from the revenue records, the plaintiff has filed the present suit. 5. The Trial Court, after taking into consideration the oral and documentary evidences of both parties, decreed the suit in respect of injunction and dismissed the suit in respect of mandatory injunction. 6. Aggrieved over the dismissal of the relief of mandatory injunction, the plaintiff preferred an appeal in A.S.No. 35 of 2011 and the Lower Appellate Court also confirmed the judgment and decree of the Trial Court and dismissed the appeal. 7. Aggrieved over the judgment and decree of the courts below, the plaintiff has filed the above second appeal. 8. Heard Mr.T.Dhanasekaran, learned counsel appearing for the appellant and Mrs.M.Jahyashree, learned Government Advocate (C.S.) appearing for the 3rd respondent. Respondents 1 and 2 remained ex parte before the courts below, therefore, notices to the respondents 1 and 2 were given up. 9. 8. Heard Mr.T.Dhanasekaran, learned counsel appearing for the appellant and Mrs.M.Jahyashree, learned Government Advocate (C.S.) appearing for the 3rd respondent. Respondents 1 and 2 remained ex parte before the courts below, therefore, notices to the respondents 1 and 2 were given up. 9. The appellant has raised the following substantial questions of law in the above second appeal:- “(i) Whether the Lower Courts are correct in dismissing the suit partly? (ii) Whether the Lower Appellate Court correct in confirming the Trial Court decree? iii) Is the Lower Appellate correct in deciding not to grant mandatory injunction against the 3rd respondent directing him to remove the encumbrance in the relevant register?” 10. On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side, it could be seen that the appellant/plaintiff had purchased the suit property from the respondents 1 and 2/defendants 1 and 2 under Ex.A1 dated 04.12.2006. There is no dispute that an Execution Petition in E.P.No.190 of 2005 was filed by one K.T.Ramakrishnan as against the respondents 1 and 2 for bringing the suit property for sale prior to the purchase of the appellant. The said Execution Petition was terminated and full satisfaction was recorded. Pursuant to the order of attachment by the Execution Court, the said entry was incorporated in the revenue records. For deleting the said entry, the appellant has filed the suit for mandatory injunction. 11. The Courts below while rejecting the relief of mandatory injunction found that the appellant/plaintiff has not proved the full satisfaction recorded in the Execution Petition and also the raising of the order of attachment. The entry made by the 3rd respondent/3rd defendant in the Encumbrance Certificate was only at the instance of the decree holder and not on its own. If the Execution Petition is terminated and full satisfaction was recorded and the order of attachment was raised by the Execution Court, the appellant/plaintiff could have produced the certified copy of the order passed by the Execution Court and got it registered before the 3rd respondent/3rd defendant. If the said document is registered, the Encumbrance Certificate in respect of the suit property would also reflect the said entry with regard to the raising of the order of attachment. If the said document is registered, the Encumbrance Certificate in respect of the suit property would also reflect the said entry with regard to the raising of the order of attachment. In these circumstances, the Courts below rightly came to the conclusion that the appellant/plaintiff is not entitled to the relief of mandatory injunction. 12. In these circumstances, I find no ground much less any substantial question of law to interfere with the concurrent findings of the courts below. The Second Appeal is liable to be dismissed. Accordingly, the Second Appeal is dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.