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Madras High Court · body

2017 DIGILAW 2771 (MAD)

T. Pandiselvam v. M. Sikkandar

2017-08-21

T.RAVINDRAN

body2017
ORDER : The respondents/plaintiffs levied the suit in O.S.No.232 of 2010 for specific performance. It is found that pursuant to the decree passed in the above mentioned suit, the respondents, also obtaining the sale deeds in respect of the suit properties involved in the said suit, preferred E.P.No.9 of 2011 for obtaining the possession of the properties involved in the subject matter. It is further found that the respondents have been delivered the possession of the properties for which they had levied the execution proceedings, by the Amin concerned and while so, the revision petitioners seem to have moved the Executing Court by filing various claim applications under Order XXI Rule 58 of the Code of Civil Procedure. 2. It is further found that the respondents have been delivered the possession of the properties for which they had levied the execution proceedings, by the Amin concerned and while so, the revision petitioners seem to have moved the Executing Court by filing various claim applications under Order XXI Rule 58 of the Code of Civil Procedure. 2. According to the revision petitioners, the respondents in the guise of the decree obtained in the suit preferred by them against the defendants in the said suit are attempting to grab their properties to which the respondents are not entitled to and further according to the revision petitioners, the suit properties of O.S.No.232 of 2010 do not exist or lie on the ground as claimed by the respondents and on the other hand, according to the revision petitioners, they had purchased the properties by way of the sale deed, dated 03.10.1983 from their vendors and they have been in possession and enjoyment of the same by paying necessary revenue charges etc., without any interruption and further according to them, the suit is pending as levied by them for permanent injunction in respect of the properties purchased by them in O.S.No.254 of 2009, on the file of the District Munsif Court, Melur and it is their further case that the Commissioner had also been appointed in the said suit and accordingly, he had also inspected the properties concerned and filed his report and it is also their case that there is another suit pending with reference to the same issue in O.S.No.5 of 2008, on the file of the District Munsif Court, Melur and therefore, according to them, the respondents without establishing that the properties in respect of which they had obtained the decree actually exist or lie on the ground, in collusion with the defendants in the said suit having obtained a decree fraudulently are attempting to grab the properties belonging to the revision petitioners in the guise of the said decree to which, the respondents are not legally entitled to and hence, according to them, the claim applications. 3. 3. Pending the above said claim applications and also the proceedings in the execution proceedings as detailed above, it is found that the revision petitioners have also preferred applications seeking for the appointment of the Advocate Commissioner to inspect the properties concerned with the help of the Surveyor along with the title deeds of the revision petitioners and other documents and file a report and plan so as to enable the Court to determine that the properties involved in the suit in O.S.No.232 of 2010 do not exist or lie on the ground all. The said applications preferred by the revision petitioners seeking for the appointment of the Advocate Commissioner was stoutly resisted by the respondents herein by stating that only with a view to delay the delivery proceedings and the recording of the same and further in order to stifle the genuine attempts of the respondents from getting the delivery of the properties concerned to which they are entitled to as per the decree obtained by them in the suit, the claim applications have been preferred by the revision petitioners, for the same reason, the applications seeking for the appointment of the Commission have also been preferred and if at all the revision petitioners have got any valid claim to the properties involved in the subject matter, it is for them to establish their case with the documents available with them and they cannot seek any title to the properties concerned through the Commission Report etc., and hence, the Commission applications preferred by the revision petitioners are liable to be rejected. 4. The Court below had accepted the contentions of the respondents/ plaintiffs and held that the revision petitioners in the guise of the applications for the appointment of Commission are only seeking to cull out the evidence in support of their claim applications to which they are not legally entitled to and if at all the revision petitioners are entitled to the properties concerned as they claimed and also have title documents and possessory documents with reference to the same to establish their case, it is upto them to adduce the evidence based on the same and cannot seek to collect evidence through the appointment of Commission and accordingly, rejected the applications. 5. Impugning the same, the present civil revision petitions have been preferred. 6. 5. Impugning the same, the present civil revision petitions have been preferred. 6. On a perusal of the averments contained in the claim applications preferred by the revision petitioners and also the applications preferred by them seeking for the appointment of the Commission, it is found that according to the revision petitioners, they have voluminous documents in their custody to establish their claim of title to the properties concerned, which are alleged to have been purchased by them from their vendors. In that situation, as rightly determined by the Court below, it is for the revision petitioners to establish their claim to the properties involved in the subject matter through the evidence available with their custody and they cannot be allowed to seek materials to establish their case through the Commissioner's Report and plan. The present Commission applications, as rightly found by the Court below, are nothing but camouflaged attempts on their part to collect evidence for sustaining their claim applications. The Court below has rightly discountenanced their request. 7. Prima facie also the revision petitioners have not established their case for the appointment of the Commission. It is the main case of the revision petitioners that the properties concerned, to which the respondents have obtained decree do not exist or lie on the ground. But, the fact remains that in the execution proceedings levied by the respondents/plaintiffs, the Amin had pursuant to the directions of the Court delivered the possession of the properties concerned to the respondents/plaintiffs and only when the said delivery is about to be recorded, the present applications have been preferred by the revision petitioners. Therefore, when the respondents are found to have obtained the possession of the properties concerned from the Amin in the execution proceedings, the case of the revision petitioners that only through the appointment of Commission, the real issue could be sorted out i.e., that the suit properties of O.S.No.232 of 2010 do not exist or lie on the ground, as such cannot be countenanced. It is, thus, seen that the applications preferred by the revision petitioners for the appointment of Commission are nothing but, as rightly determined by the Court below, to delay the execution proceedings one way or the other and therefore, it is found that the Court below has rightly dismissed the Commission applications preferred by the revision petitioners. 8. It is, thus, seen that the applications preferred by the revision petitioners for the appointment of Commission are nothing but, as rightly determined by the Court below, to delay the execution proceedings one way or the other and therefore, it is found that the Court below has rightly dismissed the Commission applications preferred by the revision petitioners. 8. In the light of the above discussions, the impugned orders of the Court below do not call for any interference, they having been passed by the Court below taking into consideration all the facets of the case in the right perspective both factually as well as legally. 9. Resultantly, the civil revision petitions are dismissed with costs. Consequently, connected miscellaneous petitions are closed.