Madras High Court
R.Vijayalakshmi vs T.P.Kathiresan (Died) on 20 November, 2024
Author: S.Srimathy
Bench: S.Srimathy
REV.APLC(MD)No.151 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.11.2024
CORAM :
THE HON'BLE MRS.JUSTICE S.SRIMATHY
REV.APLC(MD) No.151 of 2024
and
C.M.P.(MD)Nos.16811 and 16814 of 2024
Ramadoss (Died)
1.R.Vijayalakshmi
2.R.Sundar
3.R.Arun .. Petitioners
Petitioners are represented by their Power Agent.
T.Nellaikumar,
Manager,
Dar Fireworks Industries,
No.9-E, NPSN Arumugam Road,
Sivakasi Town,
Virudhunagar District.
Vs.
T.P.Kathiresan (Died)
1.Bhuvaneswari
2.Sivakameshwari
3.Saratha Devi
4.Saravanan
5.Lalithambigai
6.Senthilkani
7.Abirami
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REV.APLC(MD)No.151 of 2024
8.Sankareswaran
9.Ramachandra Ganesh .. Respondents
Memorandum of Grounds of Review Application under Section 114 read with
Order 47 with Rule 1 and 2 of C.P.C., to review the order dated 15.10.2024 made in
C.R.P.(MD)No.1897 of 2023.
For Petitioner :: M/s.N.Krishnaveni
Senior Counsel
for Mr.A.Sivaji
*****
ORDER
The Learned Senior Counsel appearing for the petitioners requested to hear the review application on merits, since delivery of property was ordered in C.R.P. (MD)No.1897 of 2023 against the review applicants, wherein the review applicants were directed to hand over the possession on 15.11.2024. Hence, the review application is heard on merits.
2. The Civil Revision Petitioners are the Review Applicants. The case between the review applicants and the respondents have chequered history and the same is narrated in the impugned order dated 15.10.2024 passed in C.R.P.(MD)No.1897 of 2023, which is sought to be reviewed. The cases/issues between the parties had seen several Courts and all the Courts unanimously held against the review applicants Page 2 of 14 https://www.mhc.tn.gov.in/judis REV.APLC(MD)No.151 of 2024 especially, in CRP(MD)No. 2275 of 2011 and W.P.(MD)No.14899 of 2022, CRP(MD)No.81 of 2023 and of course, the impugned order in C.R.P.(MD)No.1897 of 2023 as well. All the Courts had directed the review applicants to hand over the possession to the respondents. But till date, the review applicants failed to hand over possession. Infact, this Court of the considered opinion that the review applicants had committed contempt of Court by not obeying the orders of the Court.
3. Further, whenever the Courts have passed orders, the review applicants have the tendency to file the review applications or applications to modify the order so that the review applicants can drag on the proceedings and further, the respondents cannot implement the orders of the Courts. Infact, the review applicants had filed a petition to modify the order against the order passed in CRP(MD)No.2275 of 2011, review application against the order passed in W.P.(MD)No.14899 of 2022. Now, the present review application is filed against the order passed in C.R.P.(MD)No. 1897 of 2023. It is pertinent to state that the review applicants had approached the Hon'ble Supreme Court and the case was dismissed.
4. Since the review applicants are having two shares in the disputed property, they are litigating the cases, but declining the rights of other three shares to the sons Page 3 of 14 https://www.mhc.tn.gov.in/judis REV.APLC(MD)No.151 of 2024 or eight shares of other co-sharers namely the daughters and sons’ shares. It is in this background the review application is heard on merits.
5. The contention of the review applicants is that in the review application filed in R.A.(MD)No.77 of 2022 against W.P.(MD)No.14899 of 2022, the Court had granted liberty to raise the issue in E.P., hence, the issue was raised in E.P. Since there is no suppression, hence, the cost of Rs.10,000/- imposed in C.R.P(MD)No. 1897 of 2023 is not warranted. It is seen that the only contention in all the aforesaid litigations is that the review applicants are having two shares which they had purchased from two sons of the respondent T.D.Kathiresan and hence, they are entitled to possession of the “entire property” against the other co-owners.
6. In C.R.P(NPD)(MD)No.2275 of 2011 it has been clearly held that the review applicants had suffered as decree in O.S.No.10 of 2007 (this suit is filed by the review applicants) for eviction, that too a compromise decree. Thereafter the review applicants had purchased the undivided interest from the two coparceners and the property being undivided the tenant cannot claim to be in possession of the entire property and cannot claim the decree had become inexecutable. Against which SLP is preferred and the same was dismissed, after suffering dismissal again filed petition Page 4 of 14 https://www.mhc.tn.gov.in/judis REV.APLC(MD)No.151 of 2024 to recall the order passed in C.R.P(NPD)(MD)No.2275 of 2011. Then the review applicants had preferred W.P.(MD)No.14899 of 2022 raising the same contention, the same was dismissed, then review application in R.A.(MD)No.77 of 2022 was filed wherein a liberty was granted to “challenge the execution proceedings independently on any legal grounds, if it is available to him”. This Court is of the considered opinion that the Court had granted liberty to raise if the party is having legal ground, which is only qualified liberty. But already in the all the litigations it has been held that the review applicants are not having any legal ground to retain the possession against the co-owners. Infact the compromise decree dated 31.04.2010 was not executed till date even after 14 years. The only remedy is to file partition suit and the review applicants had not filed any partition suit independently but had filed impleading petitions in the suit filed by the other co-owners. As on date there is no decree for partition. On the one hand, there is “14 years old decree for eviction” and on the other hand there is no decree for partition as on date and the suit for partition in O.S.No.38 of 2012 is still pending. Therefore, this Court is of the considered opinion that the review applicants are making the judicial system a mockery, hence the cost of Rs.10,000/- is valid and sustainable. Therefore, the ground raised against the imposition of cost is rejected.
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7. The next contention of the review applicants is that the respondents are having only the right of symbolic possession under Order 21 Rule 35 of CPC. The said provision is extracted hereunder:
“35. Decree for immovable property.—(1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.
(2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree. (3) Where possession of any building on enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.” The clause (1) speaks of delivery of possession of immovable property to decree holder and by removing any person bound by the decree who refuses to vacate the property. In the present case the respondents are the decree holders and the review applicants are bound by the decree and he refuses to vacate the property, therefore the said clause is favoring the respondents herein and not the review applicants. The Page 6 of 14 https://www.mhc.tn.gov.in/judis REV.APLC(MD)No.151 of 2024 clause (2) speaks of joint possession, but as on date the review applicants cannot claim joint possession since there is no decree for joint possession in favour of the review application, since the suit for partition is still pending. Further, this clause is applicable only for tenants and sub tenants who is not bound by any decree. In clause (3) it speaks of possession of building is to be delivered and the person in possession, being bound by the decree, does not afford free access, then the Court shall break open any door for putting the decree-holder in possession. In the present case there is no building, the disputed property is only parking space with shed wherein the review applicants uses the same for parking his college buses. Therefore, this Court is of the considered opinion that the said provision of Order 21 Rule 35 has no application in the present case and hence this ground is also rejected.
8. The next contention of the review applicants is that they had filed counter claim in the partition suit in O.S.No.38 of 2012 and the same was not taken into consideration. This Court had taken both the partition suits filed by sons in O.S.No.1 of 2008 and also partition suit filed by daughters in O.S.No.38 of 2012. The partition suit in O.S.No.1 of 2008 preliminary decree dated 06.01.2011 was granted. After two months the review applicants had purchased the two shares in sale deed dated 17.03.2011, thereafter the review applicants had created complications by filing E.A. Page 7 of 14 https://www.mhc.tn.gov.in/judis REV.APLC(MD)No.151 of 2024 petitions in E.P.No.26 of 2010 in O.S.No.10 of 2007 and I.A.’s in O.S.No.1 of 2008. Had he filed any petition for passing final decree, the review applicants would have ended the litigation long back. Except the petition for passing final decree, the review applicants had filed several other petitions and dragged on the proceedings. The attitude of the review applicants in each and every petition would clearly indicate that the review applicants would not vacate the premises come what may and would disobey any orders.
9. As far as the O.S.No.38 of 2012 is concerned, the contention of the review applicants that based on the preliminary decree the father T.P.Kathiresan had executed settlement deed marked as Ex.B21 in the year 2006 granting 1/5th share to respondents 6 and 7 and that this court had held that the daughters along with sons are entitled to 8/10th share in the suit property and the same would affect the rights of the parties in O.S.No38 of 2010. And the family has other properties for partition. Further another C.R.P.(MD)No.1261 of 2024 is pending. From this plea itself it is evident that the share of the review applicants are not crystalized at all, but the review applicants are praying to pass an order to retain possession of the “entire property”, which is atrocious. Further this Court is of the considered opinion that after the amendment of the section 6 of Hindu Succession Act vide Hindu Succession Page 8 of 14 https://www.mhc.tn.gov.in/judis REV.APLC(MD)No.151 of 2024 (Amendment) Act 2005 with effect from 09.09.2005 and the judgment of Hon’ble Supreme Court rendered in Vineetha Sharma -vs- Rakesh Sharma reported in 2020 (9) SCC 1 the daughters are considered as coparcener along with the sons and any disposition, partition or testamentary disposition prior to the cutoff date i.e. 20.12.2004 are saved. If the said settlement in the year 2006 is taken into consideration, the same is not saved by the aforesaid amendment. Infact this Court had opined in paragraph 18 “As per the suit the legal heirs are entitled to 8/10th share and the tenant is having only 2/10th share, in such circumstances the tenant cannot claim to hold the entire property”. This Court had recorded the facts stated in the plaint. It is pertinent to observe that the review applicants had invited further adverse remarks by raising this ground in the present review application.
10. The next contention of the review applicants is that the Court had not considered the decision rendered in 2002 (2) SCC 656 in the case of Ratan Lal Jain &others Vs. Uma Shankar Vyas & others for granting symbolic possession. The said judgment was rendered when there were sub tenants and who had parted the possession with further sub tenants. The issue thereunder was that the plaintiff was the owner of several shops and the defendants are tenants and sub tenants were resisting eviction. Hence the Hon’ble Supreme Court had held that, “the plaintiffs Page 9 of 14 https://www.mhc.tn.gov.in/judis REV.APLC(MD)No.151 of 2024 will be entitled to possession from defendants of those shops and land which is in actual possession of defendants and the remaining shops which are in possession of sub tenants they will be entitled to only symbolic possession.” Based on this the review applicants are claiming that they are tenants in the suit disputed place, then the respondents ought to be granted only symbolic possession. The review applicants are absolutely incorrect in claiming such relief of symbolic possession to the landlord. In the same judgment the Hon’ble Court had elaborately considered and held as follows:
“Having heard the learned counsel for the parties, we are of the opinion that the appeals are devoid of any merit and no fault can be found with the view taken by the High Court. Rules 35 and 36 of Order 21 of the CPC are relevant and clinch the issue arising for decision. Where a decree is for the delivery of any immoveable property, possession thereof shall be delivered to the party to whom it has been adjudged, or his agent, by removing any person bound by the decree who refuses to vacate the property, if it becomes necessary to do so. (Rule 35, sub-rule 1). Where a decree is for the delivery of any immoveable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property. (Rule 36) The former is known as actual or physical delivery of possession while the latter is known as delivery of formal Page 10 of 14 https://www.mhc.tn.gov.in/judis REV.APLC(MD)No.151 of 2024 or symbolic possession. In the latter case, the person in actual occupation is not physically dispossessed from his possession of the decretal property. Still delivery of possession in the manner contemplated by Rule 36 remains delivery of formal or symbolic possession so far as the person in actual possession is concerned but as against the person bound by the decree, it amounts to actual delivery of possession. (See five Judges Bench decision in Juggobundhu Mukerjee and ors. Vs. Ram Chunder Bysack 1880 ILR 5 Calcutta 584 and Full Bench decision in Jayagopal Mundra Vs. Gulab Chand Agarwalla and Ors. AIR 1974 Orissa 173). The rights of the person bound by the decree stand extinguished, he is removed from the property in the eye of law and his right and entitlement whatever it may be qua the person in actual possession and not bound by the decree stand vested in the decree holder. Clause (h) of Section 108 of the Transfer of Property Act, 1882 confers a right on the lessee to remove either during or even after the determination of the lease, at any time whilst he is in possession of the property leased but not afterwards, all things which he has attached to the earth which will include any building raised by him on the leased land. However, such right is subject to a contract or local usage to the contrary. In the present case, Clause 16 of the Lease Deed obliges the lessee to hand-over, at the end of the lease, all the construction with fittings and with tenancy to the owners. In the facts very similar to those before us, this Court held in Dr.A.K.Dhairyawan and Ors. Vs. J.R.Thakur and Ors. AIR 1958 SC 789 that although under Section 108 of the T.P. Act, the lessee had the right to remove the building but by the contract he had agreed to handover the same to the lessors without the right to receive compensation at the end of the lease. The matter would be governed by the contract between the parties. Such a contract did not transfer the ownership in the building to the lessors only while the lease subsisted. Obviously at the end Page 11 of 14 https://www.mhc.tn.gov.in/judis REV.APLC(MD)No.151 of 2024 of the lease, the things attached to earth by the tenants pass over to lessor- owners of land in accordance with the contract. On determination of lease, as entered into between the parties the consequences which follow are: (i) the lease of land comes to an end, (ii) the ownership of building raised by principal tenants stand vested in the lessor-owners of land, the building goes with the land, (iii) the principal tenants have to physically vacate the property, and (iv) the lessor-owners stand subrogated in place of principal tenants.” Infact the said judgment had stated that the party who is “not bound” by the decree is entitled to retain the premises and the judgment holder is entitled to symbolic possession. The only ingredient to grant such relief is that “the person is not bound by the decree” are entitled to retain possession and the decree holder is entitled to symbolic possession. In the present case the respondents herein are the decree holders in O.S.No.10 of 2007 and the review applicants are “bound” by the decree passed in O.S.No.10 of 2007 and hence there is no question of symbolic possession.
In other words, the review applicants cannot be stated he is a person who is not bound by the decree passed in O.S.No.10 of 2007, consequently he is not entitled to the plea that the respondents are entitled to symbolic possession.
11. Therefore, this Court is of the considered opinion that the review application is devoid of merits and liable to be dismissed on cost of Rs.1,00,000/-. Page 12 of 14 https://www.mhc.tn.gov.in/judis REV.APLC(MD)No.151 of 2024 Accordingly, the review application is dismissed with cost as stated supra. Consequently, the review applicants are directed to hand over the possession to the respondents forthwith.
12. With the above said directions, the present review application is dismissed with a cost of Rs.1,00,000/- payable by the review applicants to the respondents herein. Consequently, connected miscellaneous petitions are closed.
13. Since at the admission stage itself, the review application is dismissed, notice to the respondents are dispensed with.
14. Post the case on 22.11.2024 for reporting compliance.
Index : yes/no 20.11.2024
Neutral citation : yes/no
Tmg
Note: Issue order copy on 21.11.2024
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REV.APLC(MD)No.151 of 2024
S.SRIMATHY,J.
Tmg
REV.APLC(MD)No.151 of 2024
20.11.2024
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