R. Tharani, J. - (1.) The petitioner filed the above Civil Revision Petition, challenging the order dated 26.04.2006 in C.M.A.No.33 of 2001 passed by the learned V additional Sub Judge (District Judge, Trainee) Madurai and the order dated 26.04.2004 in I.A.No.164 of 2000 in O.S.No.165 of 1961 passed by the learned Principal District Munsif, Madurai.
(2.) On the side of the petitioner, it is stated that this petition is to condone the delay of 1509 days in filing the petition to set aside the abatement caused due to the death of the respondent. It is stated that in the last week of November 2012, the petitioner came to know that the sole respondent one Razool Bibi died on 17.08.2009 itself and that one of her son one Peer Masthan also died on 27.07.2012 itself. It is stated that death of the above said persons was not reported by the learned counsel for the respondent and no memo was served to the petitioner. It is stated that the respondent 7 to 14 herein are the legal heirs of Peer Masthan and the respondents 2 to 6 are the other legal heirs of the sole respondent and they are to be impleaded in the petition.
(3.) The learned counsel for the petitioner would submit that the reason for the delay is that the petitioner is aged about 80 years and was not able to get the details of the legal heirs of the deceased. 4.The learned counsel for the respondent argued that the property belonged to two brother, and that one of the brother died and his wife has filed a suit for partition and from that date onwards, the petitioners have filed vicious petitions asking for the right of per-emption. He would submit that the sole respondent is the sister-in-law of the petitioners and the petitioners cannot claim that they are unaware of the death of the sole respondent since they are close relatives. He would further submit that the petitioners are very well aware of the particulars of the members of the legal heirs of the deceased sole respondent. 5.Records perused. It is seen that the respondent filed a suit for partition in O.S.No.165 of 1961 on the file of the learned District Munsif, Madurai and obtained preliminary decree for partition on 14.06.1962. Then a final decree was passed on 25.08.1967. The sixteenth defendant in the suit challenged the final decree in O.S.No.638 of 1971 before the learned District Munsif, Madurai Town and obtained decree on 25.07.1972. Against the judgment, the respondents preferred the appeal in A.S.No.65 of 1973 before the Sub Court, Madurai and the appeal was allowed on 13.12.1974. 6.Again the sixteenth defendant filed S.A.No.187 of 1975 in O.S.No.165 of 1961 before this Court and obtained stay order. Thereafter, the appeal was dismissed by this Court on 18.04.1998. The respondent filed a petition in E.P.No.439 of 1980 for delivery of possession. A tenant of the petitioner filed O.S.No.798 of 1978 for permanent injunction and interim injunction has also been granted in that suit. Due to injunction, E.P.No.439 of 1980 was dismissed on 27.07.1981. Then, O.S.No.798 of 1978 was dismissed in favour of the respondent on 27.07.1981. Against the judgment, appeal in A.S.No.206 of 1981 was filed and the said appeal was also dismissed. 7.Against the appeal, S.A.No.1649 of 1982 has been filed before this Court and the same was dismissed by this Court on 03.01.1984. Thereafter, the respondent filed E.P.No.380 of 1984. When the E.P. is pending, the respondent filed E.A.No.1405 of 1987 to correct the discrepancy in his shares. The same was allowed on 14.12.1987. Against E.A. Petition, the petitioners filed a C.R.P.No.4773 of 1987 before this Court and the same was dismissed on 10.03.1988. In the meanwhile, eleventh defendant's son filed O.S.No.5282 of 1988 for injunction claiming his rights as tenant and an order of interim injunction has been granted by the Trial Court in I.A.No.119 of 1988. In view of the Injunction order passed, E.P.No.380 of 1984 filed by the respondent, was also dismissed on 30.11.1990. 8.On the side of the respondent, it is stated that in the final decree in O.S.NO.165 of 1961, the petitioners have not claimed any right of pre- emption and that the property was divided and alloted 50 years ago but the petitioners are preventing the respondent to take delivery of the suit property. The petitioners have not claimed any right of pre-emption even in the E.P. proceedings. It is further submitted that the respondent filed E.P.No.151 of 1997 for delivery of possession and Execution Petition was ordered in favour of the respondent. Against the order, the petitioner preferred a revision petition before this Court in C.R.P.No.3769 of 1999 and the same was dismissed directing the lower Court to effect delivery of the property on or before 29.02.2000 and to file a report before this Court on 06.03.2000. The said property was delivered to the respondent on 02.03.2000 and the same was recorded before this Court. After delivery is effect, the petitioner filed an I.A.No.164 of 2000 in O.S.No.165 of 1961, claiming right of pre-emption and the petition was dismissed on 17.11.2000. The petitioner preferred a C.M.A.No.33 of 2001. The C.M.A. Was dismissed on 26.04.2006. Against the order in C.M.A.No.33 of 2001, this C.R.P.(MD)No.387 of 2006 was filed by the petitioner. It is further argued that as the property was already delivered and as the property is not handover to a stranger, the petitioner has no right to invoke right of pre-emption. 9.On the side of the petitioner, it is stated that the property belong to undivided joint family of Abdul Raheman and the suit was filed, after the death of Gulam Dastagir, by the respondent's husband and the respondent is not a member of the family and cannot be named as a 'member of the joint family' but he is a stranger to the family. The General law of pre-emption is available to the petitioner and it is futher argued that Section 4 of partition Act is applicable in the case of transfer of dwelling house and it is prayed that the order passed by the learned V Additional Sub Judge, Madurai, in C.M.A.No.33 of 2001 dated 26.04.2004 and I.A.NO.164 of 2000 in O.S.No.165 of 1961 is to be set aside. 10.Admittedly, the suit property belong to Gulam Dastagir, who is the brother of Abdul Raheman, and the respondent's husband is the legal heir of the Gulam Dastagir and she cannot be named as a stranger. The property is not an individual property of Abdul Raheman. Claim the property through Abdul Raheman, who was one of the co-owner of the property, the respondent claiming the title through the other co owner by name Gulam Dastagir. The petitioner have not raised this point of right of pre-emption before the passing of final decree and only after delivery is ordered, the petitioner came forward with this petition. 11.A perusal of the records reveals that the petitioner is dragging on the matter from the year 1961 onwards and the records reveals that the first petitioner is the brother of the husband of the sole respondent and the respondent had taken delivery of possession of the property in the year 2000 itself. 12.As such the contention of the petitioners that they were unaware of the death of the deceased sole respondent and they could not collect the particulars of the legal heirs of the sole respondent is unbelievable. The property delivered to the respondent is only a portion of the said main property and there is no merits in the civil revision petition and the civil revision petition is liable to be dismissed. 13.Each day delay is to be explained. The petitioners who are having share in the same property and who are close relatives of the deceased have not explained the delay of five years for filing the legal heir petition and this delay excuse petition is liable to be dismissed in the interest of justice. 14.Thus, as the delay excuse petition is dismissed and as there is no merits in the civil revision petition, the Civil Revision Petition is dismissed. Hence, M.P.(MD)Nos.2 and 3 of 2014 are also dismissed. No Costs.;