Madras High Court
Velathal vs K. Balasubramanian on 13 April, 2016
Author: V.M. Velumani
Bench: V.M. Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13.04.2016
CORAM
THE HONOURABLE MS.JUSTICE V.M. VELUMANI
CRP(PD)(MD).Nos.2377 of 2015 and 1893 of 2015 and
M.P(MD).No.1 of 2015 in CRP(MD).No.1893 of 2015 and
M.P(MD).No.2 of 2015 in CRP(MD).No.2377 of 2015
1. Velathal
2. T. Babu : Revision Petitioners in
both CRPs
Vs.
1. K. Balasubramanian
2. V. Bose : Respondents in
Both CRPs.
Prayer in CRP(MD).No.2377 of 2015: Civil Revision Petition is filed under
Article 227 of the constitution of India against the fair and decreetal order
passed in E.A.No.51 of 2012 in E.P.No.86 of 2008 in O.S.No.53 of 1977 on the
file of District Munsif Court, Palani, dated 03.09.2015.
Prayer in CRP(MD).No.1893 of 2015: Civil Revision Petition is filed under
Article 227 of the constitution of India against the fair and decreetal order
dated 16.06.2015 passed in E.A.No.90 of 2015 in E.A.No.51 of 2012 in
E.P.No.86 of 2008 in O.S.No.53 of 1977 on the file of District Munsif Court,
Palani.
!For Petitioners : Mr. M.P.Senthil in both CRPs
^For Respondent No.1: Mr.B. Senthilkumar in both CRPs
:COMMON ORDER
Both the Civil Revision Petitions are filed by the respondents 15 and 16, in final decree application in E.A.No.51 of 2012 in E.P.No.86 of 2008 in O.S.No.53 of 1977 and E.A.No.90 of 2015 in E.A.No.51 of 2012 in E.P.No.86 of 2008 in O.S.No.53 of 1977, on the file of the learned District Munsif, Palani, dated 03.09.2015 and 16.06.2015 respectively.
2. The issues involved are interlinked and hence, both the Civil Revision Petitions are disposed of, by this common order.
3. One Ponnuswamy, younger brother of first respondent herein filed O.S.No.53 of 1977, for partition in respect of three immovable properties and other movable properties. The first respondent was fourth defendant in the suit. A preliminary decree was passed on 16.03.1979. As per the preliminary decree, first respondent and his brother and sisters are entitled to 1/9 share each. The first respondent filed I.A.No.1209 of 1991 for passing of final decree. Meanwhile, parties have divided the properties as per preliminary decree. The Advocate Commissioner appointed by the Court visited the property confirmed the contentions of parties and filed his report with Sketch. The issue in these proceedings relate to only 1/9 share of first respondent in respect of Schedule-II immovable property. As per division, among parties and report of Advocate Commissioner, the first respondent was allotted 1/9 share in the Eastern end of Schedule -II property in the final decree. The husband of first petitioner, father of second petitioner, purchased 8/9 share in the said property from the sharers, other than first respondent and put up a superstructure and was running a hotel. After his death, petitioners are impleaded as respondents 15 and 16 in I.A.No.1209 of 1991 final decree proceedings. They are also respondents 15 and 16 in E.P.No.86 of 2008 filed by first respondent.
4. The first respondent filed E.P.No.86 of 2008 for taking possession of his 1/9 share in Schedule - II property, as per final decree. He has also filed E.A.No.51 of 2012 to order help of Surveyor to bailiff to measure the property and hand over the same to him. According to first respondent, when the bailiff went to take possession and hand over the property to him, the second respondent threatened the Bailiff with deadly weapons and with dire consequences. The petitioners filed E.A.No.90 of 2015 in E.A.No.51 of 2012 to implead themselves as respondents 2 and 3. According to petitioners, first respondent is trying to take possession of property belonging to them in an indirect way, by seeking the help of Surveyor. The first respondent filed counter affidavit and opposed the same. According to the first respondent, he is seeking taking possession of the property allotted to him in final decree. Second respondent is obstructing taking possession and hence, the petitioners are not necessary parties.
5. The second respondent filed counter affidavit and submitted that first respondent is trying to take wrong property.
6. The learned Judge considering the materials on record and facts of case and arguments of the leaned counsel for parties, dismissed the E.A.No.90 of 2015. Against the said order dated 16.07.2015, the petitioners have filed CRP.(MD).No.1893 of 2015.
7. E.A.No.51 of 2012 for ordering help of Surveyor to Bailiff to measure the property and hand over the same to the first respondent was allowed by order dated 03.09.2015. Against the said order, the petitioners as third parties have filed C.R.P(MD).No.2377 of 2015.
8. The learned counsel for the petitioners contended that:-
(i) The learned Judge failed to consider the fact that petitioners are parties in Final Decree proceedings and did not consider specific reasons given by the petitioners for impleading themselves as parties in E.A.No.51 of 2012.
(ii) The learned Judge failed to see that the petitioners are also allotted property in the same Survey Number, which is touching the property claimed by first respondent and any order passed in E.A.No.51 of 2012, without hearing the petitioners would affect their interest.
(iii) If any adverse order is passed without hearing the petitioners, they will not be in a position to challenge the said order, by revision or appeal.
(iv) The petitioners being parties in final decree proceedings and in Execution Proceedings in E.P.No.86 of 2008, the learned Judge erred in holding that they are not necessary parties.
(v) The learned Judge failed to see that first respondent deliberately mis-described the property.
(vi) The learned Judge failed to consider scope of Order 1 Rule 10 of CPC.
(vii) The learned Judge failed to see that petitioners have filed CRP(MD).No.1893 of 2015 and ought to have awaited result instead of passing order in E.A.No.51 of 2012.
(viii) The learned Judge failed to see that petitioners are necessary parties while appointing an Advocate Commissioner or Surveyor.
(ix) The first respondent by mis-describing the property alleged to have been allotted, to him is trying to demolish the stair case put up by petitioners which will cause hardship to tenants residing in the first and second floor of the building belonging to the petitioners.
9. The learned counsel for first respondent contended that as per final decree first respondent is entitled to 1/9 share in Easter most part of first item of property. In the E.P.No.86 of 2008 filed by him to take possession of his 1/9th share the bailiff found some encroachment in the property allotted to him. The bailiff filed report seeking assistance of Surveyor to demarcate 1/9th share of first respondent and remove the same. Therefore, the first respondent filed E.A.No.51 of 2012. The E.A.No.90 of 2015 filed by the petitioners to implead them as respondents 2 and 3 is devoid of merits and the learned Judge rightly dismissed the application.
10. The learned counsel for the first respondent submitted that petitioners were not parties in the suit for partition. After preliminary decree, 8/9 share was purchased by Thirumalaisamy, husband of first petitioner, father of second petitioner. After his death, the petitioners inherited the same. Hence, they are impleaded as respondents 15 and 16 in final decree application. The first respondent is unable to take possession of the property allotted to him, due to encroachments and Bailiff could not locate the property and take possession, due to want of Police aid and break open and remove the encroachment.
11. The learned counsel for the first respondent further contended that petitioners not being defendants in the suit cannot claim relief as a matter of right. They can claim relief only based on the principles of equity. In E.P.No.86 of 2008 filed by first respondent, Bailiff has sought help of Surveyor to demarcate his land and remove the encroachment. In the circumstances, the learned Judge has rightly dismissed the E.A.No.90 of 2015 filed by petitioners and allowed E.A.No.51 of 2012. The petitioners are not necessary parties in E.A.No.51 of 2012 and they are not aggrieved by the orders passed by the learned Judge.
12. On earlier occasion, petitioners filed claim petition in E.A.No.156 of 2013, to exclude the property mentioned in the said petition. The petitioners included the property of first respondent also. The first respondent filed detailed counter affidavit. After enquiry, the said E.A was dismissed. The petitioners only to prevent the first respondent from taking possession of his 1/9 share in the property and to prevent first respondent from enjoying his property has come out with the present revisions. The contention of the petitioners are devoid of merits and prayed for dismissal of the revisions.
13. I have heard the learned counsel appearing on either side and perused the materials available on record.
14. From the materials on record it is seen that petitioners are owners of 8/9 share and first respondent is owner of 1/9 share in the property in the same Survey Number. The petitioners have put up a superstructure and are running a hotel in their property. The first respondent is yet to take possession of his 1/9 share and he has filed E.P.No.86 of 2008 for taking possession of his property. In execution proceedings 18 persons including the petitioners are shown as respondents, but, the relief is sought only against the second respondent herein who is the first respondent in Execution petition.
15. According to the first respondent, second respondent is running a Tea stall in the property allotted to him and sought for eviction of second respondent and hand over the possession to him. Bailiff in his report has stated that steps (staircase) are to be removed and Police aid and break open of lock is necessary. The first respondent has not stated in E.A.No.51 of 2012, who has put up steps (staircase). On the other hand, petitioners have stated that their property is touching the property of first respondent and that they have put up stair case and if stair case is demolished, their tenants in first and second floor would be put to hardship. To demarcate 1/9 share of the first respondent, the entire property in the said Survey Number including the property of the petitioners has to be measured. It has to be ascertained by Bailiff, whether the steps (staircase) are in the property of the first respondent or in the property of the petitioners. The property has to be measured in the presence of the petitioners. In view of these facts, the petitioners are necessary parties in E.A.No.51 of 2012.
16. In the result, the order dated 16.07.2015 made in E.A.No.90 of 2015 in E.A.No.51 of 2012 in E.P.No.86 of 2008 in O.S.No.53 of 1977 on the file of District Munsif Court, Palani, dated 16.06.2015 is set aside. The petitioners are ordered to be impleaded as respondents 2 and 3 in E.A.No.51 of 2012. Accordingly, the CRP.(MD).No.1893 of 2015 is allowed.
17. In view of the order passed in CRP(MD).No.1893 of 2015, the CRP(MD).No.2377 of 2015 is allowed setting the order passed in E.A.No.51 of 2012 in E.P.No.86 of 2008 in O.S.No.53 of 1977 on the file of District Munsif Court, Palani, dated 03.09.2015.
18. The learned Judge is directed to implead the petitioners as respondents 2 and 3 in E.A.No.51 of 2012 and pass orders on merits and in accordance with law, after affording an opportunity to the petitioners and respondents to putforth their case, as expeditiously as possible. No costs. Consequently, connected Miscellaneous Petitions are closed.
.