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2017 DIGILAW 2358 (MAD)

Chellan @ Velayudham v. Sasidharan

2017-08-02

T.RAVINDRAN

body2017
ORDER : 1. The civil revision petition has been preferred by the second defendant impugning the order passed in E.P.No.58 of 2016 in O.S.No.293 of 1983, dated 25.04.2017, on the file of the Principal District Munsif Court, Kuzhithurai. 2. It is found on the materials placed that the suit in O.S.No.293 of 1983 has been preferred by the first respondent/plaintiff for redemption of the mortgage and possession. The said suit, after contest, has ended in a decree in favour of the first respondent. It is also found that the first appeal as well as the second appeal preferred against the Judgment and Decree passed by the Trial Court have ended in dismissal. It is found further that the first respondent has also meanwhile preferred I.A.No.98 of 2013 in the above said suit for passing the final decree in accordance with the preliminary decree passed in the suit. The said final decree application also, after contest, considering the rival contentions put forth by the respective parties, was allowed with costs holding that the first respondent is entitled to obtain the delivery of the suit property, measuring 22 Cents, and accordingly, the final decree had been passed in favour of the first respondent. It is found that as against the final decree passed in the suit, no appeal as such had been preferred by the contesting defendants. Therefore, it is seen that the final decree passed in the suit, dated 10.02.2014, has become final. 3. Inasmuch as the defendants failed to comply with the final decree and deliver possession of the property to which the first respondent is entitled to as per the final decree passed in the suit, it is seen that the first respondent has levied execution proceedings in E.P.No.58 of 2016 against the defendants under Order XXI Rule 35 of the Code of Civil Procedure. The said execution petition has been resisted by the revision petitioner by contending that his wife had obtained a sale deed for 10 Cents from the original owner Velayudhan Nadar in the suit survey number and under the guise of the decrees passed in the suit it is his case that the first respondent is trying to grab his wife's property by giving a wrongful description of the property and hence, according to him, the execution petition is liable to be dismissed. 4. 4. In support of the contentions put forth by the respective parties, it is found that no witness was examined on either side and on the side of the plaintiff, Exs.P1 to P6 were marked and on the side of the defendants, Exs.R1 to R11 were marked. 5. The Court below, on a consideration of the materials placed, found that the case of the revision petitioner that his wife had purchased 10 Cents in the suit survey number has not been established and the said claim of the revision petitioner has already been negatived by the proceedings in the main suit itself and therefore discountenanced his request and ordered delivery of possession of the property involved in the matter in favour of the plaintiff. Impugning the same, the present civil revision petition has come to be preferred. 6. As rightly found by the Court below, a perusal of the description of the mortgaged property, it is seen that there is a specific reference about the Door No.23-10B and the property has also been described with specific boundaries. It is the case of the revision petitioner that the original owner was owning 42 Cents in Survey No.2010 and his wife had purchased 10 Cents out of the same, however, it is found that as rightly determined by the Court below also, the document relied upon by the revision petitioner with reference to the same has been found to be a false document and the Court has also held that Velayuthan Nadar had only possessed 32 Cents in the said survey number and he, after selling 10 Cents in favour of one Muthaiyan Nadar and the remaining 22 Cents in favour of one Sami Pillai under Exs.A10 and A11 respectively, he is not having any remaining extent of land in the said survey number. Therefore, the Court below did not accept the case of the revision petitioner that the original owner Velayuthan Nadar was owning 42 Cents and out of the same 10 Cents had been purchased by his wife and held that the document projected by the revision petitioner is a false document. 7. As adverted to above, the first appeal and the second appeal preferred against the Judgment and Decree of the Trial Court have also come to be dismissed. 7. As adverted to above, the first appeal and the second appeal preferred against the Judgment and Decree of the Trial Court have also come to be dismissed. The Court below has also noted that even in the second appeal, this Court has also observed that the case of the revision petitioner that 10 Cents of land had been acquired by his wife from Velayuthan Nadar has not been established and therefore, his contention that the first respondent by way of the suit as well as the decrees passed in the suit is attempting to usurp the property of his wife is unacceptable. When from the inception i.e., right from the mortgage deed as well as the suit, the suit property is described with specific boundaries comprising of Door No.23-10B and when as per the decrees passed in the suit the first respondent is entitled to seek for delivery of possession of the suit property including the superstructure put up thereon, it is found that the revision petitioner, without any basis, is attempting to stall the execution of the decrees passed in the suit one way or the other and hence, it is found that the Court below has rightly rejected his contentions and ordered delivery of possession in the execution petition. 8. 8. The learned counsel for the revision petitioner, however, contended that as per the Commissioner's plan marked in the proceedings, it is found that the revision petitioner's wife is the owner of 10 Cents in the survey number concerned and therefore, based upon the report of the Commissioner and plan, the Court should hold that the first respondent is attempting to grab his wife's property by way of the suit as well as the decrees passed in the suit does not merit acceptance, when it has been determined by the Court while deciding the suit that the claim of the revision petitioner that his wife had purchased the 10 Cents in the suit survey number from the erstwhile owner is not true and the erstwhile owner had only 32 Cents and he had already conveyed the same under Exs.A10 and A11, in such view of the matter, the revision petitioner cannot be allowed to lay a claim of title in respect of 10 Cents in the survey number concerned and as rightly put forth by the first respondent's counsel, the Commissioner's report and plan would not confer any title on the revision petitioner or his wife in the suit survey number. Therefore, it is found that the revision petitioner has, without any basis, set up a false title in the name of his wife to stall the execution proceedings and the same has been rightly discountenanced by the Court below. 9. In view of the foregoing discussions, it is found that the impugned order has been passed by the Court below taking into consideration all the materials placed in the right perspective both factually as well as legally and therefore, the same does not warrant any interference from this Court. 10. Resultantly, the civil revision petition is dismissed with costs. Consequently, connected miscellaneous petition is closed.