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2018 DIGILAW 4146 (MAD)

Vadivel v. Ayyavu

2018-11-09

T.RAVINDRAN

body2018
ORDER : 1. Challenge in this civil revision petition is directed against the order, dated 08.11.2006, passed in I.A.No.6 of 2006 in O.S.No.62 of 1985, on the file of the District Munsif Court, Paramakudi. 2. From the materials placed on record and it is also not in dispute that the partition suit had been pending between the petitioner and the respondent in O.S.No.62 of 1985 and it is seen that the petitioner had been granted final decree in respect of his share in the above said partition suit with reference to his 3/4th share and it is also not in dispute and also established by the petitioner that he has taken possession of his declared share by way of the Court process on 19.08.2003 itself. Furthermore, it could also be seen that while obtaining the possession of his declared share, the superstructure available in the suit property was in a dilapidated position and at that point of time, the respondent was not in the suit property. The same could be gathered from the report of the Ameen placed in the matter. Furthermore, as could be seen from the document produced by the respondent marked as Ex.R1, it is found that the respondent had constructed a new house and shifted his residence therein even during the year 1989 and it is, therefore, noted that the respondent was not in the possession of the suit property over a period of time and inasmuch as the superstructure available in the suit property has been in a dilapidated condition for a long period of time, accordingly, it is found that the respondent had also constructed a new house and shifted his residence therein and in such view of the matter, the claim of the petitioner that the respondent has been earning income out of the suit property, as put-forth by him, as such cannot be readily countenanced. 3. Insofar as this case is concerned, it is noted that the petitioner has been granted final decree allotting his share in I.A.No.77 of 1989, by order dated 30.07.1989 itself. 3. Insofar as this case is concerned, it is noted that the petitioner has been granted final decree allotting his share in I.A.No.77 of 1989, by order dated 30.07.1989 itself. Now, according to the respondent, following the same, the parties entered into a compromise, whereby it is his case that the petitioner had given receipts in his favour accepting that he has received the entire amount due to him in respect of the suit property and the said receipts had come to be marked as Exs.R4 and R5. The execution of Ex.R4 has not been controverted by the respondent. Though the petitioner would claim that the said receipt had been signed by him, without knowing the contents thereof, however, as rightly determined by the Court below, the petitioner being an employee in Railways and in such view of the matter, to say that he had signed the above said document, without knowing the contents thereof, as such, cannot be accepted rightly. Furthermore, though the petitioner had disputed the execution of Ex.R5, however on the facts and circumstances of the case projected, when it is noted that the petitioner had issued Ex.R5 – Receipt also only in respect of the proceedings levied between the parties in O.S.No.62 of 1985 and when there are clear recitals, as regards the above suit particulars and when there is no material placed on the part of the petitioner that the above said receipt had been secured by the respondent, either by way of deceit or by way of force, in such view of the matter, it is seen that the Court below has rightly appreciated the materials placed on record in the correct perspective and found that the parties have already arrived at a settlement as regards the issues involved between them in O.S.No.62 of 1985 and accordingly, accepting his satisfaction, it is found that the petitioner had issued the receipts marked as Exs.R4 and R5 in favour of the respondent. 4. 4. In the light of the above said factors, when it is noted that the superstructure available in the suit property has been in a dilapidated condition over a long period of time and even prior to the same, the respondent has shifted his residence elsewhere and furthermore, when the parties had arrived at a settlement among themselves in respect of their respective claims with regard to the subject matter and accordingly, Exs.R4 and R5 had come to be issued by the petitioner in favour of the respondent, in such view of the matter, as rightly determined by the Court below, nothing further remains in the matter for considering the claim of the petitioner to receive mesne profits, for which he has laid the application in I.A.No.6 of 2006. 5. On the facts and circumstances of the case as above discussed, when the parties had already arrived at a settlement between them as regards the issues involved in the subject matter and furthermore, when the superstructure available in the subject property has not been shown fetching any income as such, as it had already been in a dilapidated condition, in such view of the matter, the Court below is wholly justified in dismissing the application preferred by the petitioner seeking mesne profits in I.A.No.6 of 2006. 6. The Court below has also rejected the application preferred by the petitioner on the point of limitation. According to the Court below, the petitioner should have instituted the application within a period of three years from the date of order i.e.30.07.1989 passed in I.A.No.77 of 1989. However, the petitioner's counsel would contend that the limitation would start only from the date of taking delivery of his share in the suit property and accordingly, it is his contention that the petitioner having been allotted his share only on 19.08.2003, the application preferred by him for mesne profits within three years from the above said date is not hit by the law of limitation. 7. 7. Be that as it may, inasmuch as for the reasons aforestated, the parties are found to have effected a settlement in respect of their respective claims with reference to the subject matter and the same has been amply established by the respondent by way of Exs.R4 and R5 and furthermore, when the superstructure available in the suit property has been in a dilapidated condition over a long period of time and the petitioner has also not established that the respondent has been earning income out of the suit property, in such view of the matter, it is seen that on the factual matrix, the petitioner is found to be not entitled to seek any mesne profits in respect of his share in the suit property as putforth by him. 8. In the light of the above position, as regards the point of limitation, inasmuch as the petitioner's entitlement for mesne profits is found to be not sustainable, considering the settlement effected between the parties, the point as regards the question of limitation, in my considered opinion, is not necessary to be gone into for disposing this civil revision petition and therefore, the same is left unanswered. 9. For the reasons aforestated, the impugned order, dated 08.11.2006, passed in I.A.No.6 of 2006 in O.S.No.62 of 1985, on the file of the District Munsif Court, Paramakudi, does not warrant any interference and resultantly, the civil revision petition is dismissed. Considering the facts and circumstances of the case, there is no order as to costs.