M S MANSOOR DEEN Vs. FATHIMUTHU BEEVI

JUDGEMENT

(1.) COMMON ORDER: The civil revision petitioners have filed the present three civil revision petitions as against the order dated 21.04.2008 in E.A.No.766 of 2000 in E.P.No.156 of 1996 in O.S.No.25 of 1958 passed by the learned District Munsif Court, Mathuranthakam in allowing the execution application in E.A.No.766 of 2000 filed by the decree holder/plaintiff without costs. 2.The Executing Court, while passing orders in E.A.No.766 of 2000 dated 21.04.2008, has come to the conclusion that 'at a time when the suit is pending the respondents have purchased the property and later has constructed buildings and as such there has been no occasion to file an application to demolish the buildings at the initial stage and as per decree the buildings constructed in the petition properties are ordered to be demolished and since the sale obtained by the respondents are invalid the patta, house tax receipt, electricity receipt are not maintainable and resultantly the buildings are ordered to be demolished and obstructions are ordered to be removed and also the electricity connection has to be disconnected and vacant possession in regard to petition properties item No.14, 18, 21 are to be handed over to the plaintiff/decree holder and the petitioner/decree holder is entitled to obtain the deliver of possession and resultantly allowed the application without costs.' C.R.P.Nos.1804 & 1805/2008: 3.According to the learned counsel for the revision petitioners, the order of the Executing Court in directing the removal of obstructions in E.A.No.766 of 2000 is contrary to law and evidence of record and at the Executing Court has failed to take note of the fact that the obstructions are genuine inasmuch as the property sought to be delivered in execution of the decree is not the property covered under the decree and moreover, the settlement proceeding has been concluded in 1960, long prior to passing of the preliminary decree dated 16.4.1980 and the final decree dated 31.3.1983. But the decree holder/plaintiff has not taken any steps to amend either the plaint or the preliminary decree so as to incorporate the new survey numbers in place of Paimash number described in the suit schedule and also that in the order dated 22.2.2007 in C.R.P.Nos.1462 and 1463 of 2006 this Court has left open the question pertaining to the identity of the property sought to be taken delivery and also whether the inclusion of the alleged corresponding survey numbers in execution petition are all issues to be determined in E.A.No.766 of 2000 but these material aspects have not been considered by the Executing Court at the time of passing orders in E.A.No.766 of 2000 and as a matter of fact, the Executing Court ought not to have allowed the amendment of execution petition to include new survey numbers as corresponding to the Paimash numbers mentioned in the decree in the absence of any material on record and in fact, the Executing Court must have noted that item 14 of the decree relates to old S.No.45/2 of an extent of 7.81 acres. But by virtue of an amendment, the S.No.178/1, 0.96 acres, New Survey No.178/2, 0.98 acres, and New Survey No.178/3, 1.08 acres, New Survey No.178/4, 1.14 acres, New Survey No.178/5, 3.02 acres have been added and the disparity in the total extent has been completely lost sight of by the Executing Court and in reality the Executing Court should have taken into consideration that Old Survey No.45 has an extent of 7.81 acres and further that there cannot be any correlation between Old Survey No.45 and newly introduced Survey No.178 and in short, the order passed in E.A.No.766 of 2000 by the Executing Court is in violation of specific directions issued by this Court in C.R.P.Nos.1462 and 1463 of 2006 and added further, in respect of item 21 of the execution petition this Court has found that Old Survey No.69/7, has an extent of 2.68 cents out of which 1 acre is within the specified boundaries has claimed by the plaintiff/decree holder, while the New Survey No.200/4 has been introduced by means of an amendment has an extent of only 1 acre and this discrepancy also has not been taken note of by the Executing Court and apart from the above, the Executing Court has also not taken into account of the fact that the petitioners are bonafide purchasers for a valuable consideration and they have been in possession and enjoyment of the property for several decades and the respondents are endeavouring to grab the petitioners' properties by wrongly introducing their properties by means of an amendment and these factual aspects of the matter have not been appreciated by the Executing Court in a proper perspective which has culminated in an erroneous order being passed against the petitioners and therefore, prays for allowing these revisions. C.R.P.No.1835 of 2008: 4. The learned counsel for the revision petitioners/ respondents 1, 4, 5 and 6/third parties submits that the Executing Court while passing orders in E.A.No.766 of 2000 has acted with material irregularity when the petitioners herein have been treated as obstructors under Order 21 Rule 97 of Civil Procedure Code and in fact, the petitioners herein have been arrayed as respondents 1, 4, 5 and 6 and the respondents in the civil revision petition have not given the description of each property purchased by the petitioners individually as per registered sale deeds Ex.R.1, R.3 and R.4 and R.5 in E.A.No.766 of 2000 and merely mentioned the entire final decree property as the petition property in the execution proceedings which is vague and bald and it is also an abuse of process of the Court and as such, the Executing Court ought to have dismissed the execution application and furthermore, in the absence of specific schedule of property owned and occupied by each petitioner in the petition, the Executing Court has no jurisdiction to go into the sale deeds and identify them to the suit properties and therefore, the order of the Executing Court is an unreasonable one and in fact, the Executing Court has passed impugned order without providing reasonable opportunity to the petitioners and in E.A.No.353 of 1998 for demolition and removal of superstructure filed against the 63 respondents therein, the revision petitioners are not parties and the Executing Court has acted with material irregularity by passing a common order and the impugned order which is perverse and not valid in law. 5. The further pleas of the revision petitioners are that inasmuch as this Court has directed the plaintiffs in O.S.No.25 of 1958 to implead the alienees as defendants in the suit so that they can claim equities against their vendors in the final decree in the partitions, the respondents have deliberately failed to implead the father of the first petitioner i.e. Syed Ibrahim who has purchased the properties under Ex.R.1, R.3 and R.4 between 1972 to 1977, the final decree is not enforceable against the first petitioner herein and the Executing Court has wrongly applied the Doctrine of Lis Pendens, which has no application for the present suit in view of the judgments passed in S.A.No.863 of 1965 and L.P.A.No.90 of 1969 arising out of O.S.No.25 of 1958 and also that when the petitioners have purchased the properties and when they are in continuous physical possession of the same for well over a period of 12 years after improving the same by means of paying taxes, kists etc. the impugned order terming the petitioners as obstructors is not correct in law and moreover, when the Advocate Commissioner has been appointed by the trial Court to divide the suit properties in terms of preliminary decree and inspite of the demand made by the petitioners to the respondent to submit an Advocate Commissioner's report the same has not been filed by the respondents to fix the boundaries of properties and as such, the impugned order is perverse and therefore, prays for allowing the civil revision petition. 6. Countering the submissions of the learned counsel for the petitioners (in all civil revision petitions), the learned counsel for the respondents submits that the Executing Court has rightly allowed E.A.No.766 of 2000 praying for the removal of obstruction under Order 21 Rule 97 of Civil Procedure Code and therefore, the same need not be interfered by this Court after a long lapse of time when a preliminary decree in O.S.No.25 of 1958 has been passed on 15.4.1980 and followed by a final decree has been passed on 31.3.1983. 7. It is to be borne in mind that the original plaintiff/decree holder in his affidavit in E.A.No.766 of 2000 has inter alia stated that he has filed the suit for partition and after trial he has been allowed the properties mentioned in execution petition by the Sub Court, Chengalpet and in execution petition, the Court has passed an order of delivery and the respondents therein have purchased the properties from the Judgment Debtor and they are bound by the decree and in fact, they have purchased the properties during the pendency of suit and hence, they cannot claim any interest over the suit properties and as such, they are bound to deliver possession to him and the application has been filed to remove the obstruction for delivery of the suit properties by the respondents to him. 8. It is useful to refer to the order passed by this Court on 22.02.2007 in C.R.P.Nos.1462 and 1463 of 2006 (filed by the petitioners/3rd parties thereto) wherein while dismissing the civil revision petitions directions have been given to the Executing Court to offer sufficient opportunity to both parties to adduce evidence in E.A.No.766 of 2000 and also the Executing Court has been directed to proceed with E.A.No.766 of 2000 in accordance with law. 9. The learned counsel for the revision petitioners (C.R.P.No.1835/2008) cites the decision in Howrah Daw Mangla Hat B.B. Samity V. Pronab Kumar Daw (2001) 6 SCC 534 at page 537 wherein it is held as follows: