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2015 DIGILAW 944 (MAD)

Venugopal v. Latha Maheswari

2015-02-17

D.HARIPARANTHAMAN

body2015
Judgment 1. The appellants herein are defendants in O.S.No.123 of 2011 of on the file of the II Additional District Court, Trichy. The respondents are plaintiffs in the aforesaid suit. The plaintiffs have filed the said suit for partition and claimed 2/7 share in A schedule property. The plaintiffs also sought for permanent injunction restraining the appellants/ defendants from alienating A schedule property. The plaintiffs also prayed for permanent injunction restraining the appellants/defendants from interfering with the peaceful possession and enjoyment of B schedule property either by removing Lathe machine and other machinery. 2. The respondents/plaintiffs filed I.A.No.717 of 2011 in O.S.No.123 of 2011 for appointment of Advocate Commissioner to take inventory of the machineries in B schedule property. The trial Court passed an order dated 08.10.2013 appointing an Advocate Commissioner. The Advocate Commissioner filed an interim report and the same is extracted hereunder:- "I submit that, as the respondent and others provoked to open the premises on 29.9.11 in spite of police presence, I could not inspect the property. Hence, I inspected the property once again after giving notice to the advocate of both the parties, on 9.10.2011 at 11 a.m. The warrant issued to me is to take inventory in the "B" schedule property. Both the parties were present, but the doors were found locked by additional locks and could not be opened. The petitioner's keys could not open the locks. I notice a new flex board fixed depicting "Venugopal Lethe Works". It was not there on the first day of inspection. Hence I am filing this interim report to this effect." 3. Thereafter, the Trial Court passed an order dated 08.10.2013 for police protection to break open the lock of the B schedule property. While passing the order, the Trial Court has stated that key should be given back to the appellants/defendants. Thereafter, the respondents/plaintiffs filed I.A.No.701 of 2013 in O.S.No.123 of 2011 to review the order dated 08.10.2013. The said application was allowed on 20.12.2013, so far as modifying the portion of the order in I.A.No.717 of 2011 dated 08.10.2013 to the extent that after inspection, the Advocate Commissioner shall hand over the key of the suit property to the II Additional District Court, Tiruchirappalli. The Trial Court has held that the claim is made by both parties about the possession of B schedule property. The Trial Court has held that the claim is made by both parties about the possession of B schedule property. Further, it is found that more than one lock was put on the premises of the B schedule property. In these circumstances, the Trial Court passed the order dated 20.12.2013 directing the Advocate Commissioner to hand over the key of the suit property to the Court and also held that merely based on lock and key, possession cannot be determined and the issue of possession can be gone into only in the suit. The said order dated 20.12.2013 made in I.A.No.701 of 2013 in O.S.No.123 of 2011 is challenged before this Court. 4. Learned counsel for the appellants has taken so many adjournments and further argued at length and whenever this Court proceeded to pass order, adjournment was taken. Today also, after arguing for half an hour, the learned counsel sought to take adjournment. However, this Court refused to grant adjournment. 5. I have perused the order and I do not find any infirmity with the same. The respondents/plaintiffs filed a partition suit claiming that they are the daughter and son of one late Sri.Ramamoorthy. The appellants/defendants are his sons and daughter. The plaintiffs claimed 2/7 share in A schedule property. It is also contended by the learned counsel for the respondents/plaintiffs that Late Ramamoorthy filed a suit in O.S.No.777 of 2010 on the file of the District Munsif, Tiruchirappalli, against the present appellants for permanent injunction restraining them from interfering with the possession and enjoyment of B schedule property. 6. Taking into account the entirety of the circumstances, I do not find any infirmity in the impugned order. In fact, this does not give any right to the respondents/plaintiffs. The trial Court has simply held that the issue of possession can be decided later. I am not able to understand as to how this could cause prejudice to the appellants. In the facts and circumstances of the case, I do not find any merit in the appeal. Accordingly, the appeal fails and the same is dismissed. No costs. Consequently, M.P. (MD) No. 1 of 2014 is closed.