Research › Search › Judgment

Madras High Court · body

2025 DIGILAW 1357 (MAD)

Usha Maheswari v. R. Varadarajaperumal

2025-03-06

R.VIJAYAKUMAR

body2025
ORDER : The third party to O.S.No.208 of 2020 on the file of Sub-Court, Madurai, is the Revision Petitioner herein. 2. One Rajendran son of Balasubramanian had filed the above said Suit as against Mr.Manickam , son of Periyasamy Gounder for the relief of suit for specific performance of contract. The suit was placed before the Lok Adalat and it was settled on 11.04.2015, wherein the defendant in the said suit had agreed to execute a sale deed in favour of the plaintiff, and on execution of the said sale deed, the defendant had agreed to hand over the possession of the property to the plaintiff. Since, the defendant has not executed the sale deed in compliance with the Lok Adalat settlement, the decree-holder/plaintiff had filed E.P.No.139 of 2015 for execution of sale deed by the Court. 3. The defendant had remained ex-parte in the said execution petition and a sale deed came to be executed by the Principal Sub-Court, Madurai in favour of the Plaintiff on 22.09.2015. According to the learned counsel appearing for the decree holder, out of 53 Cents (suit schedule property), 15 cents was in possession of some third parties. Excluding the said 15 cents, 38 cents was taken possession by the decree holder from the judgment debtor out of the Court. 4. When the decree holder attempted to put up a fence for the said 38 cents, there was obstruction from the revision petitioner and from other third parties. The decree holder had given an application to the Inspector of Police, Law and Order, S.S.Colony, Police Station on 29.12.2023, seeking police protection for fencing the 38 cents. Since, there was no response, the decree holder has filed W.P.(MD).No.2488 of 2024 seeking a mandamus for directing police officials to provide adequate police protection. This writ petition was disposed of by this Court on 07.02.2024, directing the Decree Holder to approach the executing Court by filing appropriate application for providing police protection. 5. After sale deed was executed by the Court, the decree-holder son has executed a settlement deed in favour of his son namely R.Varadarajaperumal on 03.11.2023 to an extent of 38 Cents. In compliance with the orders of this Court, the decree holder had filed E.A.No.1 of 2024 in E.P.No.139 of 2015. 5. After sale deed was executed by the Court, the decree-holder son has executed a settlement deed in favour of his son namely R.Varadarajaperumal on 03.11.2023 to an extent of 38 Cents. In compliance with the orders of this Court, the decree holder had filed E.A.No.1 of 2024 in E.P.No.139 of 2015. The decree holder's son has filed E.A.No.1 of 2024 in E.P.No.139 of 2015, seeking adequate police protection to him for fencing the 38 cents of the property. The said petition came to be allowed on 18.10.2024. The Learned Judge had issued a direction to the concerned police officials to provide adequate police protection to the revision petitioner for fencing around the petition mentioned property. 6. The revision petitioner herein who a the third party to the suit had filed E.A.No.2 of 2024 to suspend the said order granting police protection. In the said application, the police help was suspended by the executing Court on 30.01.2025 till 25.02.2025 and the said application is pending till date. 7. The civil revision petitioner herein has filed E.A.No.3 of 2024 to implead herself in E.P.No.139 of 2015. The said application is also pending. It is brought to the notice of the Court that some other third parties have filed E.A.No.4 of 2024 claiming right over the property and the said application is also pending. 8. In the light of the above said facts, the present revision petition has been filed by the petitioner in E.A.No.2 of 2024 to set aside the order passed in E.A.No.1 of 2024 granting police protection. 9. According to the learned counsel appearing for the revision petitioner, the suit is a collusive suit and the decree-holder has not taken possession through Court, as per the sale deed executed by the Court. The revision petitioner further contends that she is having independent right and title over the property. Apart from the right of the private parties, the Corporation of Madurai has also laid a road over the portion of the property, therefore, granting police protection to the decree-holder for fencing the property to an extent of 38 cents would affect their rights. 10. Apart from the right of the private parties, the Corporation of Madurai has also laid a road over the portion of the property, therefore, granting police protection to the decree-holder for fencing the property to an extent of 38 cents would affect their rights. 10. The learned Special Government Pleader appearing for the 3 rd Respondent/Tahsildar, Madurai West, Madurai District also submits that a road has been laid by the Madurai Corporation in a portion of the 38 cents and therefore without hearing Commissioner of Madurai Corporation, the issue relating to obstruction of possession cannot be decided. 11. The learned counsel appearing for the 2 nd Respondent/Son of the decree-holder had contended that the suit for Specific Performance has been settled in the Lok-Adalat. Since, the defendant had not executed the sale deed as per the settlement, this Court has executed a sale deed, therefore, there is no dispute with regard to the title of the 1 st respondent for an extent of 53 cents. However, the decree holder was able to take possession only to an extent of 38 cents. 12. The learned counsel appearing for the son of the decree-holder had further contended that they have filed O.S.No.277 of 2019 before the V th Additional District and Sessions Court, Madurai as against 5 th respondent, temple and Madurai Corporation seeking a prayer for declaration of title and for recovery of possession of 15 cents (over which the decree holder was not in a possession) to take possession, in view of the encroachment made by some third parties. The said suit is pending. 13. The learned counsel appearing for the first respondent herein had further contended that the revision petitioner herein had filed W.P(MD).No.27962 of 2024 seeking a writ of mandamus forbearing the respondent, namely, the decree holder and other official respondents from fencing or blocking in respect of the road situated in T.S.No.9, Ellis Nagar, Ponmeni Village, Madurai and the said writ petition was dismissed after contest was dismissed. Therefore, the present petition is not maintainable. 14. The learned counsel appearing for the first respondent herein has further contended that when the Court has already executed a sale deed in favour of the father of the first respondent, the title of the first respondent is not in dispute and therefore, he should be permitted to fence the 38 cents over which he has already taken possession. 15. The learned counsel appearing for the first respondent herein has further contended that when the Court has already executed a sale deed in favour of the father of the first respondent, the title of the first respondent is not in dispute and therefore, he should be permitted to fence the 38 cents over which he has already taken possession. 15. Heard both sides and perused all the materials available on record. 16. The facts narrated above would clearly indicate that the father of the first respondent herein had obtained a decree for Specific Performance for an extent of 53 cents. The Court has executed a sale deed for the entire extent of 53 cents in E.P.No.139 of 2015. According to the first respondent in the revision petition, they have taken possession of 38 cents of land from the defendant in the said suit, but they were not able to take possession of the balance 15 cents. 17. In view of the fact that there are some encroachments for removing the said encroachments and to take possession, they had to file a separate suit. Though it is contended that the first respondent has taken possession of 38 cents of land, the disputes which are narrated above would clearly indicate that there is some resistance/obstruction to the possession of the first respondent, even over the said 38 cents. 18. In such circumstances, the Trial Court ought not to have ordered police protection petition for fencing the entire 38 cents especially in view of the fact, the first respondent has not taken possession of the 38 cents through Court. The revision petitioner herein, has already filed E.A.No.3 of 2024 to implead herself in E.A.No.1 of 2024. The Trial Court shall proceed to implead the revision petitioner in E.A.No.1 of 2024. The Trial Court shall also tag the other application filed by certain third parties under Order XXI Rule 97 of Code of Civil Procedure, 1908 along with E.A.No.1 of 2024 and a common order shall be passed. 19. The Trial Court shall conduct trial of E.A.No.1 of 2024 as an application under Order XXI Rule 97 of Code of Civil Procedure, 1908 and decide the rights of the persons who are obstructing or resisting the possession of the first respondent in the revision petition. The right of the first respondent in the revision will be restricted to 38 cents. The right of the first respondent in the revision will be restricted to 38 cents. As regards the right of the first respondent with regard to the balance 15 cents, it shall be decided in O.S.No.277 of 2019. 20. In view of the above said deliberations, the revision petition stands allowed and the order passed in E.A.No.1 of 2024 is set aside. The matter is remitted back to the Principal Sub Court, Madurai. The learned Judge is directed to dispose of the said application on the basis of the observations made by this Court. The Trial Court shall do well to dispose of E.A.No.1 of 2024 on or before 31.07.2025 and the parties are at liberty to raise additional pleadings and all the issues to be raised are left open. No costs. Consequetly, connected miscellaneous petition is also closed.