Madras High Court
Leelavathy vs Jambuveni (Died)
Author: J.Nisha Banu
Bench: J.Nisha Banu
C.R.P. (NPD) Nos.3456 and 3169 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders reserved on 29.04.2022
Orders delivered on 12.07.2022
CORAM :
THE HON'BLE Mrs.Justice J.NISHA BANU
C.R.P. (NPD) Nos.3456 and 3169 of 2016
and C.M.P.Nos.16053 of 2016 & 9635 of 2017
Leelavathy .. Petitioner in both the CRPs.
Vs
1. Jambuveni (died)
2. Balaguru
3. Pattamma
4. Arumugham
5. Gandhima
6. Mahalingam
(RR2 to 6 are given up)
7. M.Venkatesan
R-7 brought on record as LRs. of
the deceased R-1 vide Court order
dt.4.8.2021 made in CMP.10827/21. .. Respondents in
both CRPs.
PRAYER: Petitions under Section 115 of the Code of Civil Procedure
against the decree and judgment dated 29.08.2016 in E.P.No.107 of 2004 in
EJT Suit No.32 of 1986 (C.R.P. (NPD) No.3456 of 2016) and decree and
____________
Page 1 of 26
https://www.mhc.tn.gov.in/judis
C.R.P. (NPD) Nos.3456 and 3169 of 2016
judgment dated 12.08.2016 in M.P.No.284 of 2004 in E.P.No.107 of 2004 in
EJT Suit No.32 of 1986 (C.R.P. (NPD) No.3169 of 2016 respectively passed
by the Registrar, Court of Small Causes, Chennai.
For Petitioner : Mr.S.Suresh Kumar
for Ms.S.Indhumathi
For Respondents : R-1 died
RR2 to 6 given up
Mr.Francis Paul Ashirwadam
for R-7
COMMON ORDER
The present civil revision petitions are directed against the order dated 12.08.2016 passed in M.P.No.284 of 2004 in E.P.No.107 of 2004 in Ejectment Suit No.32 of 1986 and the order dated 29.08.2016 passed in E.P.No.107 of 2004 in Ejectment Suit No.32 of 1986 by the learned Registrar, Court of Small Causes, Chennai.
2. The plaintiff in the ejectment suit is the revision petitioner herein ____________ Page 2 of 26 https://www.mhc.tn.gov.in/judis C.R.P. (NPD) Nos.3456 and 3169 of 2016 and the defendants are the respondents. Defendants 2 to 6 were already given up. The ejectment suit was filed under Section 41 of the Presidency Small Causes Courts Act, 1982, for a judgment and decree to direct the defendants to vacate and deliver vacant possession of the portions under the occupation of the defendants.
3. The brief facts of the case are as follows:
The plaintiff purchased the property bearing Door Nos.22 and 23, Beerkaran 2nd Street, Vellala Teynampet, Madras-96, comprised in R.S.No.168, measuring about 1737 sq. ft. by a registered sale deed dated 30.01.1982, from one Mr.Mohammed Sheriff. After she purchased the property, it came to light that the defendants were in occupation of 742 sq. ft. of the land and the first defendant, claiming as a chief tenant, collected rent from the other defendants having let out the property without any authority or permission from the plaintiff or from the predecessor in title.
On notices being issued, the first defendant claimed protection under the City Tenants Protection Act. The plaintiff, issued another notice, calling ____________ Page 3 of 26 https://www.mhc.tn.gov.in/judis C.R.P. (NPD) Nos.3456 and 3169 of 2016 upon the defendants to vacate and deliver vacant possession. However, the plaintiff agreed to pay the value of the superstructure put up by the defendants. With these pleadings, the ejectment suit has been filed.
4. In reply to the suit, the first defendant filed a written statement, which was adopted by the other defendants. It is stated that the predecessors of the defendants have taken the suit vacant site on lease 50 to 60 years ago from the predecessor of Mohammed Sheriff and that rents are being paid till date to Mohammed Sheriff. Therefore, the disputed portion of Door No.22 does not belong to the plaintiff, which is evident from the document filed on the side of the plaintiff, being Ex.P23, copy of patta, which stands in the name of one Leeladevi and not the plaintiff, Leelavathi. Thus, the defendants sought for dismissal of the suit.
5. During the pendency of the suit, the first defendant filed an application under Section 9 of the City Tenants Protection Act, to direct the plaintiff to sell the vacant site, however, the said application was withdrawn ____________ Page 4 of 26 https://www.mhc.tn.gov.in/judis C.R.P. (NPD) Nos.3456 and 3169 of 2016 by the defendant. Thereafter, the trial in the suit proceeded and P.W.1 Suganchand, husband of the plaintiff, was examined on the side of the plaintiff and Exs.P1 to P27 were marked. On the side of the defendants, D.W.1, Mohammed Sheriff, was examined and Exs.R1 and R2 were marked.
6. The trial Court, on careful examination of the oral and documentary evidence,found that the evidence of D.W.1 creates suspicion. The trial Court, took into consideration the report and the sketch submitted by the Advocate Commissioner. Ex.P.1, the sale deed coupled with the report of the Advocate Commissioner which clearly exhibits that the property sold to the plaintiff includes the property in occupation of the defendants and accordingly, the trial Court disbelieved the evidence of D.W.1, vendor of the plaintiff, that the defendants are not in occupation of the portion of the property purchased by the plaintiff and held that the defendants are tenants under the plaintiff. Thus, the trial Court concluded by holding that the plaintiff is entitled to receive rent as a landlady and the ____________ Page 5 of 26 https://www.mhc.tn.gov.in/judis C.R.P. (NPD) Nos.3456 and 3169 of 2016 failure on the part of the defendants to pay the rent entitles the plaintiff to the relief sought for and accordingly, decreed the suit in favour of the plaintiff vide judgment and decree dated 22.09.2003 and directed the defendants to quit and deliver vacant possession of the portions under their occupation.
7. Having succeeded in the suit, the plaintiff filed E.P.No.107 of 2004 to execute the decree by ejecting the defendants from the suit property and deliver the vacant possession of the suit property. The first defendant filed M.P.No.4713 of 2004 seeking condonation of delay in filing the appeal against the fair and decretal order in the suit and the said petition was dismissed. Aggrieved by the same, the first defendant approached this Court by filing CRP (NPD) No.2127 of 2004. This Court, by an elaborate order dated 23.02.2021, dismissed the said CRP. Aggrieved against the order dated 22.09.2003 passed in the Ejectment Suit, the first defendant filed C.R.P(NPD) No.1961 of 2012 before this Court. This Court, by an elaborate order dated 23.06.2014 dismissed the said CRP granting three months time ____________ Page 6 of 26 https://www.mhc.tn.gov.in/judis C.R.P. (NPD) Nos.3456 and 3169 of 2016 to vacate the premises. Challenging the same, the 1st defendant filed Special Leave to Appeal No.20156/2014 before the Hon'ble Supreme Court, the same was also dismissed on merits. Subsequently, the 1st defendant filed E.A.No.150 of 2014 in M.P.No.284 of 2004 before the Registrar, Court of Small Causes, a Memo raising additional grounds to the petition filed under section 47 C.P.C. seeking to dismiss E.P.No.107/2004 filed on the strength of the decree passed in Ejectment Suit No.32 of 1986. The plaintiff also filed her objections to the additional grounds filed by the 1st defendant and additional counter affidavit has also been filed by the 1st respondent In the meantime, the 1st defendant approached this Court by filing a suit praying to set aside the decree of eviction dated 22.09.2003 passed in Ejectment Suit No.32 of 1986. Since the Registry of this Court questioned the maintainability, the suit was not numbered and it was posted 'for maintainability' in C.S.D.No.31735 of 2014. On 05.01.2016, this Court, by a detailed order, rejected the plaint as not maintainable. Thereafter, the 1st defendant filed CR.P.(NPD)Nos.2869 & 2870 of 2016 before this Court against the order passed in E.A.Nos.156 and 157 of 2014. E.A.No.156/2014 ____________ Page 7 of 26 https://www.mhc.tn.gov.in/judis C.R.P. (NPD) Nos.3456 and 3169 of 2016 was filed by the 1st defendant/1st judgment debtor to direct the plaintiff/decree holder to produce the original patta in Ex.P.23 obtained by the 7th respondent, the Tahildar, Mylapore Chennai and the original sketch plan in Ex.P24 before the Execution Court for the purpose of comparison with the copies marked in Exs.P23 and P.24. E.A.No.157/2014 was filed by the 1st defendant/1st judgment debtor to direct the 7th respondent, the Tahildar, Mylapore Chennai to produce the Revenue records relating to issuance of patta dated 16.07.1991 in the name of the plaintiff/decree holder in respect of the suit property and to give evidence. This Court, on considering the said petitions, dismissed the petition with cost of Rs.25,000/- and directed to dispose of M.P.No.284 of 2004 within a period of four weeks and to dispose of the E.P.No.107 of 2004 within a period of two weeks thereafter. Aggrieved by the same, the 1st defendant filed Special Leave Petition before the Hon'ble Supreme Court and the same was also dismissed. Thereafter, the 1st defendant filed CRP.(NPD).No.1747 of 2016 against the order dated 22.04.2016 passed in E.A.No.5 of 2016 in E.A.No.150 of 2014 in M.P.No.284/2004. This Court, considered the same ____________ Page 8 of 26 https://www.mhc.tn.gov.in/judis C.R.P. (NPD) Nos.3456 and 3169 of 2016 and observed that the prayer sought in E.A.No.5 of 2016 and E.A.No.156 of 2014 are almost one and the same except for production of patta marked as Ex.P24 and also observed that the petitioner therein has successfully dragged on the matter for over 30 years inspite of the directions given by this Court on 05.01.2016 and dismissed the C.R.P. with cost of Rs.25,000/- to be paid to the decree holder and also directed the Register Court of Small Causes, Chennai to dispose of M.P.No.284 of 2004 within three weeks and also directed to dispose of the E.P.No.107 of 2004 within two weeks thereafter. The Registrar, Court of Small Causes, Chennai passed the judgment and decree dated 12.08.2016 in M.P.No.284 of 2004 holding that the decree holder is not entitled to the property at Door No.22 and that the decree holder is entitled to get possession in the E.P. of any shortage area out of 1737 sq.ft. purchased by her vide Ex.P1 sale deed. The Registrar, Court of Small Causes, Chennai passed the judgment and decree dated 29.08.2016 in E.P.No.107 of 2004 in Ejectment Suit No.32 of 1986 holding that judgment debtor should hand over vacant possession of the deficit land belonging to Door No.23 to the decree holder and that as per the Advocate ____________ Page 9 of 26 https://www.mhc.tn.gov.in/judis C.R.P. (NPD) Nos.3456 and 3169 of 2016 Commissioner's report the deficit land of Door No.23 is only vacant land and that Door No.23 is measuring only 1177 sq.ft and thus, the deficit land out of 1737 sq.ft should be handed over by the judgment debtor to the decree holder. Aggrieved by the judgment and decree passed in M.P.No.284 of 2004 in E.P.No.107 of 2004, the plaintiff/decree holder has filed the present Civil Revision Petition No.3169 of 2016. Aggrieved by the judgment and decree passed in E.P.No.107 of 2004, the plaintiff/decree holder has filed the present Civil Revision Petition No.3456 of 2016.
8. Learned counsel for the petitioner would submit that the execution court has exercised revisional and appellate jurisdiction, which is against law. The Court below has made material findings regarding the title and extent of the suit property and the decree of the impugned order is not in conformity with its judgment. The Court below has erred in holding that the petitioner has no right over Door No.22, Beerkaran Second Street, contrary to the evidence and pleading on record, the Commissioner's report and the specific findings in the judgments rendered by the trial Court in Ejectment ____________ Page 10 of 26 https://www.mhc.tn.gov.in/judis C.R.P. (NPD) Nos.3456 and 3169 of 2016 Suit No.32 of 1986 and the order passed by this Court in CRP.No.1961 of 2012. No documents were filed to establish the change of Door No.23 as Door Nos.22 and 23 by the Corporation of Chennai, contrary to the pleadings and evidence on record and that the said fact is mentioned in Ex.P2 and not denied in the reply Ex.P3 and no objection to the door number was made in the written statement and the Door Nos.22 and 23 are mentioned in Ex.P23, the patta issued by the Government.
9. Learned counsel would further submit that the Court below had reopened the case which had attained finality by the judgment of this Court and the Hon'ble Supreme Court. The impugned order is contrary to the findings of the trial Court that “the plea of the defendant that Door No.22 is a different property and not forming part of the property purchased by the Plaintiff cannot be accepted because the Plaintiff marked Ex.P23, Patta of Door No.22 which stands in the name of the plaintiff. The defendant has not filed any document to show that Door No.22 stands in the name of either DW1 or some other person other than the plaintiff.” The impugned order is ____________ Page 11 of 26 https://www.mhc.tn.gov.in/judis C.R.P. (NPD) Nos.3456 and 3169 of 2016 also against the findings made in the judgment in Ejectment Suit No.32 of 1986 that “the first defendant filed a petition under Section 9 of the City Tenants Protection Act praying for an order to direct the plaintiff to sell the vacant site measuring 1152 square feet in the suit schedule property.” The decision made in CRP (NPD)No. 2127 of 2004 dated 23.02.2012 would squarely bind the 1st defendant as regards her status as the tenant of the premises in the schedule to Ejectment Suit No.32/1986. The Court below overlooked the findings of this Court that “Even after a lapse of nearly 30 years, inspite of the judgment and decree passed in Ejectment Suit which was confirmed by the Hon'ble Apex Court, the proceedings has not reached finality till today.” The petitioner's title and right over Door No.22 has been proved and confirmed as per the pleadings, documents and the findings of this Court. The findings of the Court below that as per the Commissioner's report, the petitioner is in possession of 1177 square feet and he is entitled only to the balance area out of 1737 square feet in Door No.23 amounts to revision of the findings of the judgment of the trial Court in Ejectment Suit No.32 of 1986 wherein it is held in para 8 of the judgment “ the sketch of ____________ Page 12 of 26 https://www.mhc.tn.gov.in/judis C.R.P. (NPD) Nos.3456 and 3169 of 2016 the Advocate Commissioner appointed as per orders in M.P.No.497/97 shows that the plaintiff is in occupation of a portion measuring 22 feet East to West (A to X in the sketch of the Commissioner) 53'5” inches north to south (A to C in the sketch of the Commissioner). As per the admitted sketch annexed to the sale deed Ex.P1 the length of the property sold to the plaintiff is 81 feet on the western side. Hence, the property sold as per Ex.P1 extends upto 27.5 after AC (Commissioner's sketch) up to a point near G (Commissioner's sketch). The Commissioner has stated that the First Defendant and her tenants are in occupation of the above portion. The Defendants are in occupation of a portion of the property purchased by the Plaintiff. Regarding the extent of land mentioned in Ex.P23 and P24, the Court below accepted the genuineness of Ex.P23 and the trial Court and the Appellate Courts have also not suspected or set aide the measurements mentioned in those documents. The court below ought to have ordered delivery of the portion described in the Commissioner's report measuring 27.5 feet North to South and 22 feet East to West as held by the trial Court corresponding to C to Y and from C to a point in between G and K as per ____________ Page 13 of 26 https://www.mhc.tn.gov.in/judis C.R.P. (NPD) Nos.3456 and 3169 of 2016 the sketch annexed to the Commissioner's report. With the above pleadings, the learned counsel would pray to set aside the order in M.P.No.284 of 2004 and E.P.No.107 of 2004 in EJT Suit No.32 of 1986 and order delivery of the suit property.
10. In support of his contentions, learned counsel for the petitioner relied upon the decision reported in 2020 (4) CTC 201 (Shantilal Kothari vs. Sathrasala Venkatram (since deceased), Shatrasala Sharathbabu.
11. Countering the above submissions, the learned counsel for the 7th respondent would submit that the petitioner/decree holder purchased the property bearing Door No.23 measuring 1737 sq.ft from Mohammed Sheriff under sale deed Ex.P1 dated 30.01.1982. In the Ejectment suit No.32/1986, it is the case of the petitioner that she purchased Door Nos.22 and 23 Beerkaran Street measuring 1737 sq.ft and out of 1737 sq.ft an area measuring 742 sq.ft in Door No.22 is in possession of respondents 1 to 6 who committed wilful default in payment of rent and hence, prayed for ____________ Page 14 of 26 https://www.mhc.tn.gov.in/judis C.R.P. (NPD) Nos.3456 and 3169 of 2016 ejectment decree against them. The property at Door No.22 is not forming party of the property purchased by the petitioner and respondents 1 to 6 are not tenants of the petitioner. Ex.P23 and 24 patta and sketch plan are forged and fabricated documents, based on which decree, for ejectment was granted. Hence, the respondent filed M.P.No.284 of 2004 under section 47 CPC challenging the maintainability of the execution proceedings. Though the said petition was dismissed, the execution court has given a finding that the petitioner is not the owner of the property bearing Door No.22 and that the petitioner has not proved that she purchased Door No.23 measuring 1737 sq.ft. and out of which 742 was in Door No.22. It was also observed that the petitioner has not given any explanation as to how she got patta in Ex.P23 measuring 2017 sq.ft. The Executing Court gave finding that the the petitioner is entitled to get the shortage area out of 1737 sq.ft purchased by her and directed that if any shortage of property out of 1737 sq.ft in Door No.23 is in possession of judgment debtors, the senior bailiff is directed to take possession from the judgment debtors and hand it over to the decree holder. He would further submit that the execution court passed an order ____________ Page 15 of 26 https://www.mhc.tn.gov.in/judis C.R.P. (NPD) Nos.3456 and 3169 of 2016 dated 14.09.2016 stating that the suit property measuring 742 sq.ft incorporated in the warrant of delivery is not correct. The delivery warrant dated 02.09.2016 was suo motu recalled and the court directed the senior bailiff to re-deliver the property to the respondent and to file redelivery report on 21.09.2016 and redelivery warrant was executed and endorsement was also made by the bailiff on 21.09.2016. On 6.10.2016, the revision petitioner filed a memo stating that the Hon'ble High Court has granted stay of all further proceedings in E.P.No.107/2004 by order dated 05.10.2016 in C.M.P.No.16053/2016 in CRP.No.3169/2016. The petitioner has prayed for an order modifying and deleting the finding pertaining to the title and extent of the suit property. The CRP.No.3169/2016 is not maintainable either on facts or on law for the reason that the revision petitioner had waived her right to challenge the impugned order dated 12.08.2016 made in M.P.No.284/2004 and had accepted the subsequent order passed in E.P.No.107/2004 dated 29.08.2016 wherein the execution court has given a direction to the senior bailiff as to how to execute the warrant for delivery of possession and now the revision petitioner is estopped from contending ____________ Page 16 of 26 https://www.mhc.tn.gov.in/judis C.R.P. (NPD) Nos.3456 and 3169 of 2016 that the earlier order passed in M.P.No.284/2004 dated 12.08.2016 is against the provisions of law and the same must be set aside, modified and deleted pertaining to the title and extent of the suit property.
12. Learned counsel for the 7th respondent would further submit that neither the title is proved nor tenancy is proved by the petitioner in respect of the suit property and there is no jurisdiction for the trial court (Court of Small Causes) to decide the question of title to the suit property as per the provisions of Section 19(d) and (g) of the Presidency small Causes Court Act, 1882. The decree of ejectment passed by the trial Court is without jurisdiction and it is a nullity. The trial Court and the execution court failed to note that in partition deed in Ex.B1, it is clearly shown in Item 18 of B schedule, the property bearing No.69/40A new No.22, belonged to Mohamed Sheriff and the 1st defendant is the tenant of the vacant land as per the records and as per the admitted evidence of Mohamed Sheriff DW-1 and the execution court has given a finding that the decree holder is not the owner of the property bearing door No.22 and also held that the decree ____________ Page 17 of 26 https://www.mhc.tn.gov.in/judis C.R.P. (NPD) Nos.3456 and 3169 of 2016 holder is entitled to get possession in E.P. only the shortage area out of 1737 sq.ft purchased by the petitioner in door No.23 vide Ex.P1 sale deed. The property bearing door No.22 is not forming part of the property purchased by the petitioner. The trial Court should have taken into consideration the measurement of 1737 sq.ft only ( the property purchased vide Ex.P1 sale deed) to decide the case of the decree holder whether the defendants in ejectment suit are in possession of the property purchased by the decree holder. The trial court had taken into consideration the enlarged and fraudulent measurement of 2072 sqft. measuring 81 feet North to South and 27' East to West as found in Ex.P24 and the finding given by the trial court that the defendants in the ejectment suit are in possession of the property purchased by the decree holder is vitiated because it is neither the case of the revision petitioner nor the case of the respondents that 2072 sq.ft of property was purchased or sold vide Ex.P1 sale Deed. The property purchased by the decree holder in door No.23 in Ex.P1 sale deed is 1737 sq.ft as found in ABCD marked area as per the report of the Advocate Commissioner. But the Advocate Commissioner has stated in the report and ____________ Page 18 of 26 https://www.mhc.tn.gov.in/judis C.R.P. (NPD) Nos.3456 and 3169 of 2016 sketch that the area XYBD is 307 feet (10.5' x 53.5') which is wrong but the actual area of XYBD comes to 561 feet (10.5' x 53.5'). The trial Judge has omitted the area XYBD occupied by the decree holder. If the trial Judge had not omitted XYBD area 561 sq.ft from the main ABCD area 1738 sq.ft., the learned Judge would have clearly stated that the decree holder is in possession of building measuring 1738 sq.ft. The defendants 1 to 6 are not in possession of the property purchased by the decree holder. Hence, he prays for dismissal of the civil revision petitions.
13. In support of his contentions learned counsel for the 7th respondent relied on the following decisions:
i) AIR 1972 SC 1371 (Bhavan Unja & others v. Solanki Hanuji)
ii) AIR 2000 SC 1165 (United India Insurance Company Limited vs Rajendra Singh & others)
iii) 1995(1) CTC 224 (Makaboova Seevi vs Nataraja Chethan)
iv) AIR 2003 Kerala 288 (P.N.Kurian vs. Thulasidoss)
v) 2000(6) SCC 506 (Rajudev & Co. vs Union of India & others)
vi) AIR 2003 Bombay 52 (Khurshed Banoo v. Murtaza Hasan)
vii) AIR 1953 Patna 133 (Ashutosh & another vs. R.C.Dey & ____________ Page 19 of 26 https://www.mhc.tn.gov.in/judis C.R.P. (NPD) Nos.3456 and 3169 of 2016 another)
viii) 2007(4) SCC 221 (A.V.Pappayya Sastry vs. Government of Andhra Pradesh)
ix) 2005(4) SCC 424 (UP State Road Transport Corporation vs. Omaditya Verma & others)
x) 1990 (1) SCC 193 (Sushil Kumar Mehta vs Govhind Ram Bohra (dead) through Lrs.
xi) AIR 2004 Calcutta 267 (Saraswat Trading Agency v. Union of India & others)
xii) AIR 1994 SC 853 (S.P.Chengalvaraya Naidu (dead) by LRs vs. Jagannath (dead) by LRs & others
xiii) 2003 (6) SCC 595 (Roopkumar v Mohan Thendani
xiv) AIR 2006 Andhara Pradesh 8 ( Nandamohanamma & others vs. Markonda Narashima Rao & anoehr)
xv) 2013 (10) SCC 136 (Jagmittar v. Dir.Health Services, Haryana)
14. Heard the learned counsel for the petitioner and the learned counsel appearing for the 7th respondent, who is the legal heir of the 1st respondent. Respondents 2 to 6 are given up.
15. The petitioner herein/plaintiff filed Ejectment Suit in EJT.Suit ____________ Page 20 of 26 https://www.mhc.tn.gov.in/judis C.R.P. (NPD) Nos.3456 and 3169 of 2016 No.32/1986 under Section 41 of the Presidency Small Causes Courts Act, 1942. The trial Court, after trial, passed a judgment and decree dated 22.09.2003 directing the defendants to quit and hand over vacant possession of the property. The petitioner/ plaintiff filed E.P.No.107 of 2004 to execute the decree by ejecting the defendants from the suit property and deliver vacant possession of the suit property. The Registrar, Court of Small Causes, Chennai, passed the judgment and decree dated 12.08.2016 in M.P.No.284 of 2004 holding that the decree holder is not entitled to the property at Door No.22 and that the decree holder is entitled to get possession in the E.P. of any shortage area out of 1737 sq.ft. purchased by her vide Ex.P1 sale deed. The Registrar, Court of Small Causes, Chennai, passed the judgment and decree dated 29.08.2016 in E.P.No.107 of 2004 in Ejectment Suit No.32 of 1986 holding that judgment debtor should hand over vacant possession of the deficit land belonging to Door No.23 to the decree holder (plaintiff) and that as per the learned Advocate Commissioner's report, the deficit land of Door No.23 is only vacant land and that only 1177 sq.ft is at Door No.23 and thus, the deficit land out of ____________ Page 21 of 26 https://www.mhc.tn.gov.in/judis C.R.P. (NPD) Nos.3456 and 3169 of 2016 1737 sq.ft should be handed over to the decree holder. Aggrieved by the judgment and decree passed in M.P.No.284 of 2004 and in E.P.No.107 of 2004, the present Civil Revision Petitions are filed by the plaintiff.
16. The main contention of the petitioner is that the Executing Court has exceeded its jurisdiction by modifying the decree and judgment of the trial Court in Ejectment Suit No.32 of 1986. The disputed land in question is 742 sq.ft as mentioned in suit schedule and in E.P. Petition. It is mentioned that the said 742 sq.ft is situated at Old No.69/27, New No.23, Beerkaran Second Street, Vellala Teynampet Chennai. Door No.23 is the front portion of Beerkaran Second Street and Door No.22 is the rear portion. It is the case of the 7th respondent that Door No.22 is in their possession and that the petitioner is not entitled to the property at Door No.22. It is the case of the petitioner/plaintiff that the property measuring about 1737 sq.ft. situated in R.S.No.16 in Door Nos.22 and 23 Beerkaran 2 nd Street, has been purchased by her from one Mohamed Sheriff by way of registered sale deed Ex.P1. But in Ex.P1 sale deed, it is mentioned that the measurement of ____________ Page 22 of 26 https://www.mhc.tn.gov.in/judis C.R.P. (NPD) Nos.3456 and 3169 of 2016 1737 sq.ft is in respect of Door No.23 and there is no measurement shown for Door No.22 is mentioned in Ex.P23 patta, which stands in the name of the petitioner/plaintiff. From the oral and documentary evidence, it is clear that the 7th respondent did not prove through any documentary evidence to show that he is the owner of Door No.22.
17. The petitioner/successful plaintiff should not be deprived of the fruits of decree. As per Ex.P1 sale deed, the property purchased by the petitioner measuring 1737 sq.ft., is at Door No.23, which is in possession of the petitioner. The petitioner/plaintiff has proved through documentary evidence that she is entitled for 1737 sq.ft as per Ex.P1 sale deed. The learned Advocate Commissioner's report shows that only 1177 sqft in Door No.23 which is in possession of the petitioner/plaintiff and hence, there is shortage between Door No.23 and Door No.22. A decree of a competent Court should not be allowed to be defeated on account of an accidental slip or omission in the measurement of the property. At the same time, the petitioner cannot get more relief than what she had prayed for. The ____________ Page 23 of 26 https://www.mhc.tn.gov.in/judis C.R.P. (NPD) Nos.3456 and 3169 of 2016 petitioner/plaintiff is entitled only to 1737 sq.ft purchased by her under Ex.P1 sale deed. Thus, if Door No.23 is not actually measuring 1737 sq.ft., only the shortage area shall be taken from Door No.22 and the same shall be delivered to the petitioner/plaintiff .
18. The judgments relied on by the learned counsel for the parties are distinguishable on facts and hence, they are not applicable to the facts of the present case.
19. With the above said observations and direction, the Civil Revision Petitions are disposed of. No costs. Consequently, connected miscellaneous petitions are closed.
12.07.2022 Index :Yes/No Speaking/Non-speaking order vsi ____________ Page 24 of 26 https://www.mhc.tn.gov.in/judis C.R.P. (NPD) Nos.3456 and 3169 of 2016 To The Registrar Court of Small Causes, Chennai.
____________ Page 25 of 26 https://www.mhc.tn.gov.in/judis C.R.P. (NPD) Nos.3456 and 3169 of 2016 J.NISHA BANU, J.
(vsi) Pre-delivery order in C.R.P.(NDP)Nos.3456 and 3169 of 2016 12.07.2022 ____________ Page 26 of 26 https://www.mhc.tn.gov.in/judis