Madras High Court
Muthukrishnan vs Muthusamy
Author: M.Dhandapani
Bench: M.Dhandapani
____________
C.M.S.A. No.13/2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
17.10.2023 20.11.2023
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
C.M.S.A. NO. 13 OF 2012
AND
M.P. NO. 1 OF 2012
Muthukrishnan .. Appellant
- Vs -
1. Muthusamy
2. Ganapathy
3. Lakshmi
Palani (Died)
4. Krishnaveni
Dhanam (Died)
Alamelu (Died)
5. Vijayan
Fathima (Died)
6. Thangarasu (Died)
7. Kannan
8. Kanagasabai
9. Kannan R
10. R.Kaliaperumal
11. Arumugam
A.Venu Chettiar (Died)
12. M.Kaliaperumal (Decd.)
Arunachalam (Died)
1
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C.M.S.A. No.13/2012
13. Rajendran
Meenakshi (Died)
14. Janathunnisa
15. Thillaiam Ammal
16. R.Kunjukannan
17. P.Ranganathan
18. Bhanumathi
Raja Pillai (Died)
Ranganayaki (Died)
19. Kaliaperumal
20. Krishnamurthy
21. Govindaraj
22. Sarangan
Shanmuga Udayar (Died)
Venu Udayar (Died)
Ramasamy (Died)
Rathinavel Nadar (Died)
23. K.Vasantha
24. K.Arul
25. Anand
26. Elavarasi
27. Chitra
28. Priya
(RR-1 to 5, 7 to 10, 18 to 22 – Deleted
As per memo dt. 29.08.2018 & order of
Court dated 29.08.2018)
(RR-23 to 26 brought on record as LRs
Of deceased R-12 vide order dt. 9.4.2019)
(RR-27 & 28 brought on record as LRs
Of deceased R-6 vide order dt. 29.9.23) .. Respondents
Civil Miscellaneous Second Appeal filed under Order XXI Rule 107 r/w
Section 100 C.P.C. against the order and decreetal order made in C.M.A. No.7
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C.M.S.A. No.13/2012
of 2002 dated 31.10.2011 on the file of the Subordinate Judge, Chidambaram,
reversing the Order and decreetal order made in E.A. No.229 of 1983 in O.S.
No.61 of 1968 dated 19.4.2002 on the file of the District Munsif Court,
Chidambaram.
For Appellant : Mr. S.Veeraraghavan
For Respondents : Mr. A.Muthukumar for
RR-11, 12 & 15 and 23 to 26
No Appearance for RR-13, 14,
16, 17, 27 & 28
JUDGMENT
Assailing the judgment and decree of the learned Subordinate Judge, Chidambaram, made in C.M.A. No.2 of 2002 dated 31.10.2011 in and by which the judgment and decree passed by the learned District Munsif in E.A. No.229 of 1983 in O.S. No.61 of 1968 dated 19.4.2002 was reversed, the present appeal has been preferred by the appellant.
2. For the sake of convenience, the appellant and the respondents herein would be referred to in the same manner as arrayed herein. 3 https://www.mhc.tn.gov.in/judis ____________ C.M.S.A. No.13/2012
3. It Is the case of the appellant that vide court auction, the disputed property was purchased by the appellant and, thereafter, sale certificate was issued by the District Munsif, Chidambaram, in favour of the appellant on 4.3.1982. Thereafter, the appellant took steps for taking possession of the property by filing E.A. No.682/1982 and accordingly it was ordered and the appellant tried to take possession of the property through Court Amin. However, when the appellant went to take over the property on 23.4.1982, the objectors, who are the respondents herein, in connivance with the defendants in the suit, had put up huts and houses and refused to vacate the property and, thereby, prevented the appellant from taking possession of the property, which was duly purchased by the appellant in the auction sale conducted by the Court on 26.6.1980. Aggrieved by the said act, the appellant preferred E.A. No.229/1983 in O.S. No.61/1968 by invoking Order XXI Rule 26 r/w Section 151 C.P.C. and Order XXI Rule 95 r/w Section 47 CPC.
4. The said application was resisted by the objectors, who are the respondents herein, by contending that the property belonged to Rathanavel Nadar, the 2nd defendant in the suit, who had leased out the property to the 4 https://www.mhc.tn.gov.in/judis ____________ C.M.S.A. No.13/2012 respondents herein. Though the lands were classified as agricultural lands, but time immemorial, the lands have been put to use as residential lands and that the respondents herein have put up houses in the property by spending substantial sums of money and that they have been in occupation of the property and that they have been paying the taxes due on the property. It was the further stand of the respondents herein that there was no written rental agreement between the defendants in the suit and the respondents herein and it was by means of oral agreement and that no receipt was given by the defendants, the alleged owners of the property, to the respondents for the rent paid by the respondents. It is the further stand of the respondents that the respondents are legally entitled to hold the property by virtue of their being the tenants in the property and to prove the said tenancy, the respondents are in possession of documents to prove the same. It is the further case of the respondents that they are not aware of the judgment and decree passed against the defendant, Rathanavel Nadar, the defendant in the suit in O.S. No.61/1968 and that only when the Amin came to dispossess them from the property, they came to know about the judgment and decree. Further, the respondents have been provided with ryotwari patta on the basis 5 https://www.mhc.tn.gov.in/judis ____________ C.M.S.A. No.13/2012 of their possession of the said property under the Inam Abolition Act. Further, without putting the respondents herein on notice and without rendering a finding that the respondents are not tenants under Rathanavel Nadar, the Court cannot grant any order in favour of the appellant and, therefore, the appellant can only take symbolic delivery and actual physical possession cannot be taken by the appellant without contesting the issue against the respondents individually. Further, it is the stand of the respondents that they have entered into a oral lease agreement with Rathanavel Nadar for a period of 30 years. The suit having been laid before the entering of tenancy between the defendant in the suit and the respondents herein, the judgment and decree in the suit would in no way bind the respondents herein. It is the further stand of the respondents that the application is barred by limitation under Article 129 of the Limitation Act and, therefore, not entertainable.
5. Framing the necessary issue for consideration, the trial court held that the court itself having granted time to the appellant to take steps in the application filed by the appellant under Order XXI Rule 95 CPC with regard to 6 https://www.mhc.tn.gov.in/judis ____________ C.M.S.A. No.13/2012 the other properties barring the two properties, which were given possession in favour of the appellant, the plea of bar of limitation raised by the respondents against the application filed under Order XXI Rule 97 CPC does not deserve acceptance and, accordingly, allowed the application.
6. Aggrieved by the said order, appeal in C.M.A. No.7/2002 was filed before the Sub Court, Chidambaram and after contest, the appellate court held that the appellant herein had not put the respondents on notice about the property being taken on auction nor has the appellant impleaded them as party in the execution proceedings and further held that the application is barred by limitation as it has not been filed within the period prescribed and the findings rendered by the trial court is wholly erroneous and further held that the trial court had not clearly spelt out the details of the respondents, who are the obstructers/encroachers and, therefore, set aside the order passed by the trial court and allowed the appeal. The present civil miscellaneous second appeal is directed against said judgment and decree passed by the appellate court.
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7. Learned counsel appearing for the appellant submits that the property being purchased in auction in view of non-payment made by the judgment debtors, who are allegedly behind the respondents by filing one application or the other to defeat the legitimate rights of the appellant, the trial court had rightly passed the order by construing the limitation that it was the Court, which had allowed the filing of the application under Order XXI Rule 97 CPC and, therefore, the limitational bar would not stand attracted. However, without properly appreciating the above, the appellate court has set aside the said finding, which is wholly unsustainable and clearly reveals non-application of mind. It is the further submission of the learned counsel that the condonation of delay, even otherwise, is within the domain of the court so long as the court is of the considered opinion that the person praying condonation had acted legitimately and diligently. In the case on hand, the trial court, rightly appreciating the stand of the appellant that upon receiving the sale certificate, execution petition was filed and the appellant along with the Amin went for taking possession of the property, which was thwarted by the encroachers, viz., the respondents herein, acting in connivance with the judgment debtors.
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8. It is the further submission of the learned counsel that though initially 55 persons had encroached upon the property, however, 38 persons, who were initially shown as respondents/encroachers, had paid sale consideration for the lands on which they have put up their houses and the appellant had executed sale deeds in their favour, which clearly shows that the contesting respondents herein, similarly placed like the others, are also encroachers and they do not have any right or title over the said property and merely on the alleged oral lease agreement, they claim the rights, which has been erroneously appreciated by the appellate court while setting aside the order passed by the trial court.
9. It is the further submission of the learned counsel that even the stand of the respondents in E.P. No.229/1983 would clearly reveal that the appellant is possessed of right and title over the property and, in fact, the respondents were ready and willing to be tenants under the appellant. Further, the lease agreement alleged to have been executed by the respondents with Rathnavel Nadar is purely a fabricated document and even 9 https://www.mhc.tn.gov.in/judis ____________ C.M.S.A. No.13/2012 the very admission of the respondents that they do not have receipts for the rents paid nor are they possessed of any written lease agreement clearly show that the respondents have been put in the property by the judgment debtor solely for the purpose of frustrating the purchase made by the appellant in the court auction.
10. It is the further submission of the learned counsel that the plea of the respondents that the property is an inam property is wholly is totally baseless as Rathnavel Nadar is the original and absolute owner of the property from whom the property was taken away by way of court auction. The property is a private property of Rathnavel Nadar stands proved by the order passed by this Court in CRP No.3994/1999 against which no appeal has been filed and the order having attained finality, the respondents cannot take the said plea.
11. It is the further submission of the learned counsel that the right flows, if at all to the respondents, from the judgment debtor, viz., Rathanavel Nadar, who is their predecessor and the respondents having no independent 10 https://www.mhc.tn.gov.in/judis ____________ C.M.S.A. No.13/2012 right or title over the property, they cannot plead that the appellant has to proceed independently against the individual respondents. Further, the right of the judgment debtor does not stand passed on to the tenant for the purpose of questioning the auction sale
12. It is the further submission of the learned counsel that rightly the appellant has filed the application under Order XXI Rule 97 CPC seeking possession of immovable property, which has been duly considered and ordered favourably in favour of the appellant by the trial court and without properly appreciating all the aforesaid facts, the appellate court, has erroneously set aside the order passed by the trial court, which is unsustainable and reveals non-application of mind and deserves interference at the hands of this Court.
13. In support of the aforesaid submissions, learned counsel for the appellant relied upon the decision of the Apex Court in Maria Margarida Sequeira Fernandes & Ors. – Vs – Erasmo Jack De Sequeira (Dead) Through LRs (2012 (5) SCC 370).
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14. Per contra, learned counsel appearing for the contesting respondents 6, 11 to 13, 15, 17 and 23 to 28 submitted that E.A. No.229/1983 is not maintainable for want of separate boundary description for the portion of property under possession of each and every respondent. It is the submission of the learned counsel that to file an application under Order XXI Rule 97 CPC without clearly and separately mentioning the portion under the occupation of the obstructers, more particularly in view of the order passed in the petition filed by the Obstructors, marked as Ex.A-1, operates as res judicata and, therefore, the present execution application is not maintainable.
15. It is therefore the submission of the learned counsel that the appellant having sought for possession of the entire 1 acre 30 cents of property which is alleged to be in possession of 55 obstructors, of whom some of them have died and the legal representatives having not been brought on record, to take possession of the property alleged to be under the occupation of the contesting respondents, clear boundary descriptions are 12 https://www.mhc.tn.gov.in/judis ____________ C.M.S.A. No.13/2012 necessary, which has been rightly appreciated by the first appellate court and, therefore, the said finding is liable to be sustained.
16. It is the further submission of the learned counsel that the lands, which are claimed to have been purchased by the appellant in the court auction sale are inam lands, which stands proved by Ex.B-2 and had vested with the Government for which Rathanavel Nadar had not claimed patta and that ryotwari patta was granted in favour of the contesting respondents. The said grant of patta was not challenged and that on the date of vesting of the land with the Government, none had challenged the vesting and, therefore, Rathnavel Nadar, the 4th respondent in the suit had no right, title or interest over the property and the suit having been filed long after 15.2.1965, when the lands vested with the Government, the auction purchase of the property itself is erroneous as the said property could not have been brought on sale. It is the further submission of the learned counsel that when the judgment debtor itself had no right over the property, the appellant, being a court auction purchaser would not have a better right and title over the property. When Rathanavel Nadar had no subsisting right over the property as 13 https://www.mhc.tn.gov.in/judis ____________ C.M.S.A. No.13/2012 predecessor-in-title, the auction purchaser cannot have any right over the property.
17. It is the further submission of the learned counsel that the order of the trial court is erroneous insofar it has not spelt out the obstructors against whom the application is allowed and the obstructors against whom the application is dismissed, as many of the obstructors had died pending the application and without impleading the legal heirs and in the absence of boundary description, the order passed by the trial court reveals non- application of mind.
18. It is the further submission of the learned counsel that the limitation of 30 days is prescribed under Article 129 of the Limitation Act for filing an application under Order XXI Rule 97 CPC and the said limitation starts from the date of obstruction of each and every obstructor and each and every obstruction will have a separate cause of action. The Amin having visited the property on 24.4.1982, E.A. No.229 of 1983 ought to have been 14 https://www.mhc.tn.gov.in/judis ____________ C.M.S.A. No.13/2012 filed before the expiry of 30 days from 24.04.1982 but the said application having been filed only on 2.11.1982, is barred by limitation.
19. It is the further submission of the learned counsel that CRP No.3994 of 1999, which has been relied on by the appellant would not be relatable to the present case, as it pertains to a different suit in O.S. No.1446/1971 and relates to a different property. However, the present property, being alleged to be a trust property, is the issue which requires determination and, therefore, the said order cannot be relied on to the detriment of the respondents.
20. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the contesting respondents and perused the materials available on record as also the decision relied on, on behalf of the appellant.
21. Though initially notice was served on the respondents, however, the matter had not been admitted and, therefore, this Court, though heard 15 https://www.mhc.tn.gov.in/judis ____________ C.M.S.A. No.13/2012 the arguments in extenso on 17.10.2023 and reserved orders, however, relisted the matter on 31.10.2023 for the purpose of rectifying the technical mistake and, accordingly, on 31.10.2023, the matter was listed and it was admitted and the substantial questions of law framed by the appellant were taken on record for being considered.
22. Though certain contentions have been raised, however, the following substantial questions of law were framed for consideration in this appeal :-
i) Whether the learned first Appellate Court is right in allowing the Civil Miscellaneous Appeal even when the obstructers do not claim title independently, but claim their title only through the decree-holders predecessors.
ii) Whether the learned first appellate court is right in allowing the civil miscellaneous appeal when the obstructers clearly admitted in their counter statement that the property originally belonged to Rathnavel Nadar.
iii) Whether the court below is right in holding against the appellant herein on the point of 16 https://www.mhc.tn.gov.in/judis ____________ C.M.S.A. No.13/2012 principles of limitation when it is only the duty of the Court to see that the period of limitation should be construed only from the original presentation of the petition and not subsequently.
iv) Whether the property, namely T.S. No.130/1, which has been sold by way of auction sale by the court is an inam land and, consequently vested in the Government on and from 15.2.1965.
23. All the substantial questions of law, being intricately connected on the basis of the facts, they are taken up together and answered below.
24. The main issue that requires to be addressed is the maintainability of the application in E.A. No.229/1983 by the appellant in view of the bar on limitation canvassed by the contesting respondents.
25. Article 129 of the Limitation Act provides for a period of 30 days to file application for possession after removing resistance or obstruction to delivery of possession of immovable property decreed or sold in execution of a decree. According to the contesting respondents, the Amin had gone for 17 https://www.mhc.tn.gov.in/judis ____________ C.M.S.A. No.13/2012 removing the obstruction and delivering possession to the appellant on 24.04.1982, but the application had been filed only on 2.11.1982, which is beyond the period of limitation and, therefore, not maintainable.
26. Though such a contention is advanced, but the crux of the matter remains, as could be ascertained from the order passed by the trial court is that the appellant had, under Order XXI Rule 95 CPC filed E.A. No.681/1982, seeking delivery of the properties, which were purchased by the appellant in the auction sale from the occupancy of judgment debtor. In the said application, while the Court delivered the two properties sought for in the said application, however, in respect of the other properties, the Court had granted liberty to the appellant to take steps to seek for possession of the immovable property after removing the obstruction by filing application under Order XXI Rule 97 CPC. Only based on the liberty granted, the application in E.A. No.229/1982 had been filed on 2.11.1982, which is after the period of 30 days limitation prescribed under Article 129 from the date on which the Amin had gone to deliver possession of the property under the occupancy of the judgment debtor.
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27. However, one important fact, which requires to be remembered in the present scenario is the fact that originally the application in E.A. No.681/1982 had been filed under Order XXI Rule 95 CPC seeking delivery of property in occupancy of judgment debtor in which it had come to notice that there were obstruction, which was recorded by the Amin for which the Court, vide its order had directed the appellant to file application under Order XXI Rule 97 CPC with regard to two properties, while delivery of possession of the other properties were given to the appellant. From the above, it is unambiguously clear that E.A. No.229/1983 is an off-shoot of EA. No.681/1982, that too on the basis of the liberty granted by the Court to file the said application. When the Court had granted such liberty, in effect, it only means that the limitation under Article 129 cannot be pressed into service, which stood condoned by the Court, as already E.A. No.681/1982 had been filed and any additional application would only be in addition to and would not be in derogation of the original execution application. The trial court had rightly concluded the issue and had held that the application in E.A. No.229/1983 is maintainable, as it is on the basis of the order passed by the 19 https://www.mhc.tn.gov.in/judis ____________ C.M.S.A. No.13/2012 Court the said execution application had been filed and, therefore, the limitational bar would not stand attracted, as already an execution application for delivery of possession had been granted.
28. Further, the finding of this Court is strengthened by the fact that even according to the contesting respondents, they have no independent title or right, but they derive strength only from the alleged tenancy with Rathnavel Nadar, the judgment debtor, whose property was auctioned. Therefore, when delivery of possession is sought for from the judgment debtor by filing an application under Order XXI Rule 95 CPC and resultantly the Court directed the filing of an application under Order XXI Rule 97 CPC for removing the obstructors, the application in E.A. No.229/1983 would stand merged with E.A. No.681/1982 and the delivery of property in the occupancy of the judgment debtor, which had, in turn, been allegedly tenanted out to the contesting respondents would also be a delivery of property by removing the obstruction caused by the judgment debtors and the obstructors would not have any separate legal entity to claim any right over the said property. 20 https://www.mhc.tn.gov.in/judis ____________ C.M.S.A. No.13/2012
29. The other aspect of the issue is that on the one hand, the contesting respondents claim their right over their occupancy from the tenancy agreement orally entered with the judgment debtor, viz., Rathanavel Nadar, while on the other hand, it is their case that the land is an inam land and that the judgment debtor has no right over the said property on and from the appointed date.
30. The said contention of the contesting respondents is mutually destructive, as the claim of inam, if allowed to be canvassed, then no patta having been granted to the predecessor-in-title to the property, viz., Rathanavel Nadar, the contesting respondents would not derive any right over the said property to claim ryotwari patta. However, it is the claim of the contesting respondents that they are tenants under Rathanavel Nadar and that the tenancy agreement had been entered into orally and that they have put up construction over the said property and have been in occupation by paying rent to the judgment debtor. If such is the case, the land cannot be classified to be a ryotwari land for the purpose of grant of ryotwari patta. Further, materials with regard to the said lands being a ryotwari land has not 21 https://www.mhc.tn.gov.in/judis ____________ C.M.S.A. No.13/2012 been established by the contesting respondents. Further, even according to the contesting respondents, the lands have been utilised for construction of dwelling houses. However, it is to be pointed out that ryotwari lands are agricultural lands, which could be used only for agricultural purposes and its character cannot be altered. Such being the position, the stand of the contesting respondents that they were granted ryotwari patta is wholly unsustainable and the same deserves to be rejected.
31. Further, one other aspect which is against the lands being ryotwari lands is the grant of patta in favour of the appellant by the Tahsildar. The said patta is still in subsistence and had not been challenged by the contesting respondents. Further, the encumbrance certificate also reveals the name of the appellant as the owner of the lands. Such being the position as is evidenced from the materials available on record, the only conclusion that could be arrived at is that the plea of the lands being ryotwari and grant of ryotwari patta in favour of the contesting respondents does not merit acceptance in view of the abundant materials available on record, which disprove the case of the contesting respondents.
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32. The other aspect which leans the case most in favour of the appellant is the order passed in CRP No.3994 of 1999. Though it is the case of the contesting respondents that the said order does not pertain to the lands in issue and that it is with regard to some other set of lands, but the fact remains that the judgment debtor in O.S. No.1446 of 1971 in which E.A. No.1748/1982 and E.P. No.149/1977 have been filed is one and the same. In fact, in the said decision, the learned single Judge had deprecated the act of the judgment debtor in trying to frustrate the execution application and execution proceedings by resorting to filing various applications so as to defeat the rights of the decree holder, viz., the appellant herein. The act of the judgment debtor had been succinctly pointed out in the said decision and for better appreciation, the same is extracted hereunder :-
“10. The intention of the judgment debtors to delay the further proceedings is also to be taken note of . In the counter affidavit filed in I.A. No.1748 of 1982, it is averred that during the pendency of the application under O. 21 R. 90 CPC on 29.03.1980, the judgment debtor has leased out the petition mentioned property to one Adhimoolam for a period of 30 years and he put up houses in the leased out properties. It is 23 https://www.mhc.tn.gov.in/judis ____________ C.M.S.A. No.13/2012 further averred that the intention of the judgment debtors is only to prevent the sale in favour of the second respondent being confirmed and the second respondent taking delivery of the property through court and only for that purpose, the judgment debtor is filing various applications. Having been unsuccessful int he earlier application filed under O.21 R.90 CPC, the judgment debtor is precluded from raising the same plea by filing application under Section 47 CPC. In consideration of the materials and other circumstances, the Executing Court has rightly dismissed the application and the same is to be confirmed.”
33. The judgment debtor therein and the judgment debtor herein are one and the same and the manner in which the property has been allegedly leased out to the contesting respondents is also one and the same and the contesting respondents, under the guise of obstructors, is trying to do the very same act, which the judgment debtor was trying to perpetuate and, therefore, necessarily the decision rendered in the civil revision petition, would result in this Court drawing an adverse inference against the contesting respondents herein, though the property involved is different. 24 https://www.mhc.tn.gov.in/judis ____________ C.M.S.A. No.13/2012 Therefore, the plea of the contesting respondents that the decision in the civil revision petition cannot be applicable to this case deserves to be rejected.
34. One other stand of the contesting respondents that the property is a Government property, the same being Trust properties. However, learned single Judge in C.R.P. No.3994 of 1999 had negatived the said contention as well by holding as under :-
“7. Though spate of documentary evidence is adduced, the point for consideration involves in a narrow compass. The only contention raised by the revision petitioners is that the property, which is referred in the application is inalienable pursuant to a Trust Deed executed under Exs.A-1 and A-2 by father and uncle. Number of documents have been filed showing that the properties was never treated as Trust property. The first respondent has filed Ex.A-26, copy of the judgment in O.S. No.61 of 1968 dated 22.08.1972, in which the Court has held that the properties are not trust properties and Rathinavelu Nadar was not a trustee.
8. Number of documents have been produced showing that the family members of judgment debtor have alienated all those items alleged to have been Trust properties. Various documents would clearly show that the property was always treated as personal property of the family members of the 25 https://www.mhc.tn.gov.in/judis ____________ C.M.S.A. No.13/2012 judgment debtors. Patta and other revenue documents also stand in the name of the individuals. Had it been treated as Trust properties, the family members could not have alienated the same. No material had been produced to show performance of any religious or charity and no account is maintained.
9. Stating that the properties sold in the Court Auction are the Trust properties to “Enathi Nainar Mutt Trust” and are inalienable and alleging irregularities in the conduct of sale, the judgment debtors have already filed application under O.21 R.90 C.P.C. That application was dismissed and the Civil Miscellaneous Appear preferred against that order was also dismissed. When the petitioners have raised the same plea in the earlier application under O.21 R.90 CPC and when the same was dismissed, the petitioners are precluded from raising the same plea under the pretext of filing another application under Section 47 CPC.”
35. From the above it is clear that the properties are individual properties of the judgment debtor, which is alleged to have been leased out to the contesting respondents and there is no trace of it being Trust properties. That being the case, once this Court, in another case has dealt with the same issue and given a finding, which has not been challenged, 26 https://www.mhc.tn.gov.in/judis ____________ C.M.S.A. No.13/2012 under the guise of obstructors, the contesting respondents are also barred from raising the plea, as the said plea is hit by the res judicata. The contesting respondents, even according to their own admission, being tenants under the judgment debtors, cannot raise the very same plea for adjudication once again and, therefore, the said contention also deserves to be dismissed.
36. Insofar as the contention of the contesting respondents that non- marking of boundary in the schedule relating to the properties under the occupation of the respective contesting respondents renders the application not maintainable, the said contention deserves to be accepted for the simple reason that the entire property of 1 acre and 30 cents were sold by way of auction purchase to the appellant. In the application filed by the contesting respondents under the relevant provisions of the Code, the same was dismissed for want of boundary description. However, what is necessary to be pointed out here is the fact that the application filed by the appellant against the judgment debtor under Order XXI Rule 95 CPC was allowed in respect of all properties barring two, which is under the occupation of the 27 https://www.mhc.tn.gov.in/judis ____________ C.M.S.A. No.13/2012 contesting respondent, which properties were also sold in court auction. The execution is with regard to the entire extent, however, what was sought for by the contesting respondents in their application is for their individual right, for which the trial court had dismissed the said application for want of boundaries. When the appellant claims the entire land, the boundary description of the entire land is sufficient and individual boundary description under the occupation of the individual contesting respondent is not necessary to be given as what is sought for delivery is the entire extent and not a particular piece under the occupation of the individual contesting respondents. Further, what is to be pointed out is that the execution is initially sought for against the judgment debtor and because of the obstruction caused by the contesting respondents, the application in question has been filed and, therefore, the contesting respondents are construed to have stepped into the shoes of the judgment debtor, as they have no independent right or title over the property and, therefore, the non-providing of individual boundaries with regard to the land under the occupation of the respective contesting respondents would in no way vitiate the application and, therefore, the said contention also deserves to be rejected. 28 https://www.mhc.tn.gov.in/judis ____________ C.M.S.A. No.13/2012
37. In view of the discussion made above, all the substantial questions of law are answered in favour of the appellant and against the contesting respondents and, necessarily, the present appeal deserves to be allowed by setting aside the order passed by the first appellate court.
38. In the result, the appeal is allowed setting aside the impugned order passed in C.M.A. No.7 of 2002 dated 31.10.2011 on the file of the Subordinate Judge, Chidambaram, and the Order and decreetal order made in E.A. No.229 of 1983 in O.S. No.61 of 1968 dated 19.4.2002 on the file of the District Munsif Court, Chidambaram stands restored. The trial court is directed to take necessary action for delivery of the property from the clutches of the obstructors to the appellant in accordance with law. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs in this appeal.
20.11.2023
Index : Yes / No
GLN
29
https://www.mhc.tn.gov.in/judis
____________
C.M.S.A. No.13/2012
To
1. The Subordinate Judge
Chidambaram.
2. The District Munsif
Chidambaram.
30
https://www.mhc.tn.gov.in/judis
____________
C.M.S.A. No.13/2012
M.DHANDAPANI, J.
GLN
PRE-DELIVERY ORDER IN
C.M.S.A. NO.13 OF 2012
31
https://www.mhc.tn.gov.in/judis
____________
C.M.S.A. No.13/2012
Pronounced on
20.11.2023
32
https://www.mhc.tn.gov.in/judis