Raju Gounder v. Periyasamy

ORDER The Civil Revision Petition is directed against the order passed in E.P.No.21 of 2007 in O.S.No.44 of 1994, dated 18.09.2017, on the file of the District Munsif Court, Kulithalai, dismissing the petition seeking orders to punish the respondents 2, 4 and 5 for the disobedience of the decree of the trial Court dated 30.09.1996 and also the appellate Court dated 31.01.2002.

¶2The revision petitioner as plaintiff has filed the suit against the respondents 1 to 3 claiming permanent injunction in respect of "A" and "B" schedule of suit properties. After full trial, the learned District Munsif, Kulithalai vide judgment and decree dated 30.09.1996 has granted relief of permanent injunction in respect of "B" schedule property and dismissed the suit in respect of "A" schedule of property. The plaintiff has filed an appeal in A.S.No.116 of 1998 challenging the dismissal of the suit in respect of "A" schedule property and the learned Subordinate Judge, Kulithalai vide judgment and decree dated

31.01.2002 by setting aside the judgment and decree of the trial Court dismissing the suit in respect of "A" schedule property and granted permanent injunction in respect of "A" schedule property as claimed by the plaintiff.

¶3The plaintiff, by alleging disobedience of the decree against the original defendants 1 to 3 and also against the respondents 4 and 5 alleging that they are colluding with the original defendants and disobeying the decree of the Court, has filed execution petition in E.P.No. 21 of 2007 before the District Munsif Court, Kulithalai. The second defendant has filed a counter statement raising serious objections. The other respondents had remained exparte. During enquiry, the plaintiff/decree holder has examined himself as P.W.1 and exhibited 12 documents as Exs.P.1 to P.12. The second respondent has examined himself as R.W.1 and adduced no documentary evidence. The Advocate Commissioner who was appointed in the execution proceedings has been examined as Court witness as C.W.1 and through him, his report and plan came to be exhibited as Exs.C.1 and C.2 respectively. The learned Judge of the Executing Court, upon considering the evidence available on records and on hearing the arguments of both sides, has passed the impugned order dated 18.09.2017, dismissing the execution petition. Aggrieved by the order of dismissal, the present revision came to be filed.

¶4The main contention of the revision petitioner / decree holder in the execution petition is that the plaintiff has been in possession and enjoyment of the suit properties continuously, that the respondents 2 and 4 even after knowing that the suit properties are in possession and enjoyment of the plaintiff and passing of decrees in his favour, have been attempting to disturb the plaintiff's possession, that they have cut and remove the Neem tree and Portia tree and also broke the door and ceiling tiles and also caused damages to the household articles, that the plaintiff has immediately lodged a complaint with the fifth respondent – Inspector of Police, Mayanur Police Station on 24.02.2007 and obtained a receipt therefor, that though the plaintiff has shown the judgment and decree passed by the trial Court as well as the appellate Court to the fifth respondent, the fifth respondent by alleing that the Court orders will not bind him in any way and with the sole intention to help the fourth respondent, has not taken any action so far, but on the other hand, he had taken signatures in white papers from the plaintiff by coercion, that when the same was questioned by the plaintiff, the fifth respondent has informed that he would take criminal action against him, that when the plaintiff has informed about the complaint to the higher officials, the fifth respondent by suppressing the Court proceedings, has furnished wrong particulars, that the respondents 2 and 4 with the help of the fifth respondent have been interfering with the plaintiff's possession of the suit properties in several ways and hence, the plaintiff was constrained to send a legal notice dated 04.03.2007, that since the respondents 2 and 4 were continuing their interference, the plaintiff has also lodged a complaint before the Deputy Superintendent of Police, Karur, on

24.03.2007 and the same was forwarded to the Mayanur Police Staion, but even thereafter the fifth respondent has not taken any action and that since the respondents 2, 4 and 5 have been continuously disobeying the decrees of the trial Court as well as the appellate Court, the plaintiff with no other option has laid the execution petition for sending the said respondents to civil prison for disobeying the orders of the Court.

¶5The second respondent has raised a stand that his father alone had been looking after the case proceedings, that he was not aware of the disposal of the appeal, that since his father had died, in the meanwhile, he was not informed about the decree passed by the appellate Court, that the contention of the plaintiff that he has been in possession and enjoyment of "A" schedule property is not correct and that he has been taking steps for filing the Second Appeal challenging the judgment and decree passed in A.S.No.116 of 1998.

¶6Though the second respondent has alleged that he has been taking steps for filing the Second Appeal, he has not shown that any Second Appeal was filed by him and the judgment and decree of the trial Court as well as the appellate Court were stayed by the second appellate Court. Even before this Court, it is not the case of the second respondent that he has already filed Second Appeal and the same is pending. Moreover, the contention that the second respondent was not aware of the disposal of the appeal, cannot also be accepted, as he was a party to the proceedings thereon.

¶7The main defence of the second respondent is that they have not interfered with the plaintiff's possession and enjoyment in violation of the decrees of the Court, that the second respondent has been residing in Evur, Ayyampalayam, Musiri Taluk for the past 14 years, that no such incedent had occurred as alleged by the plaintiff and the same was invented for the purpose of the petition, that the allegation of the plaintiff that they have cut and removed the Neem tree and Portia tree and broke the house door and ceiling tiles and caused damages to the household articles are false and fraudulent, that the second respondent never interfered with the plaintiff's possession and that he has not caused any damages to any of the property and that therefore, the execution petition is liable to be dismissed.

¶8No doubt in the enquiry, the plaintiff as well as the second defendant would depose before the executing Court reiterating the contentions raised in their respective pleadings. It is pertinent to note that an Advocate Commissioner was appointed in the execution proceedings and the said Commissioner, after visiting the property has filed his report and plan as Exs.C.1 and C.2 respectively. As already pointed out, the main contention of the plaintiff is that the respondents 2 and 4 have cut and removed the Neem tree and Portia tree and that they had broken the house door and ceiling tiles and that they have caused damages to the household articles. Except the above vague allegations, the plaintiff has not elaborated anything further. As already pointed out, except examining himself, the plaintiff has not chosen to examine any other witness nor produced any evidence to substantiate the allegations.

¶9It is pertinent to mention that the Advocate Commissioner in his report has specifically observed that none was in possession of the suti properties at the time of his visit, that the tiled house was in a dilapidated condition, that the house was found to be not in use for a very long time and that there were no household articles in the said property. It is necessary to refer the Commissioner's report hereunder for better appreciation: " ........ Xl;Ltpy;iy tPl;od; Bkw;g[w Rthpy; tphpry; fhzg;gl;lJ. bjw;F RtUk; mBjBghd;W fhzg;gl;lJ. Xl;L tpy;iy tPL fl;o ePz;lfhykhfptpl;lJ. Xl;Ltpy;iy tPl;od; Bkw;g[w RtUk; C.R.P.(MD)No.1228oofo2018 tphprYld; fhzg;gl;lJ. tPl;ow;Fs; ?Lfs; bjw;Fg[wj;jpy; cile;J fhzg;gl;lJ. mjw;F fhuzk; ?l;Ltpy;iy fl;lolk ; btF fhyj;jpw;F Kd;g[ fl;lg;gl;ljhf fhzg;gl;lJ. 可?gl;oay ; ?l;Ltpy;iy tPL g{l;lg;gl;L nUe;jJ. 可?gl;oay; brhj;ij ghh;itapLtjw;F kDjhuh; g{li; l jpwe;J tpl;lhh;. Bkw;go tPL btFfhykhf cgBahfj;jp;y; ny;yhjJ bjhpate;jJ. tPl;oy; kDjhuh;fs; FoapUe;jjw;F tPl;Lg;bghUs;fs; vJt[k; ny;iy. Bkw;go ?l;Ltpy;iy tPl;oy; nuz;L miwfs; nUe;jd. miwfSf;F kpd; nizg;g[ vJt[k; fpilahJ. 可?gl;oay; tPl;ow;Fk; fPH;g[wk; cs;s uhkrhkp tPl;ow;Fk; gphpf;Fk; tifapy; xU Rth; nUe;jJ. tPl;od; fjtpy; fiuahd; fhzg;gl;lJ. rikay; miwa[k; cgBahfg;gLj;jg;glhky; nUe;jJ. ................. fhypaplj;jpy; khkuk;, vYkpr;ir kuk;, khJis kuk;, cile;j KUA;if kuk; nUe;jJ. kuA;fs; gyd;fis bfhLf;Fk; tifapy; nUe;jJ. BkYk; ?l;Ltpy;iy tPl;ow;F bjw;Fgf;fk; thiHkuk; nUe;jJ. bjw;F gf;fk; caph;Btyp nUe;jJ. fpHBkypy; nUe;jJ. Bkw;go caph;Btyp tiuglj;jpy; gr;ir th;zkpl;L fhl;lg;gl;Ls;sJ. 可 gp rp vd;w nlj;jpw;F tlg[wk ; fhypaplk; nUe;jJ. fhypaplk;, Bfhapy; epyj;jpw;Fk; 可?gl;oay; tPl;Lf;Fk; nilapy; nUe;jJ. Bkw;go ghfk; cs;s fhyp nlj;jpy; itf;Bfhy; Bghh; Bghl;L Brfhpf;fg;gl;L nUe;jJ. 可 kw;Wk; gp gl;oay; ?l;Ltpy;iy tPLfs; nUe;jJ vd;Wk; Rtw;wpy; tphpry;fs; nUe;jJ vd;Wk; tPL gHikahdjhy; XLfs; cile;J fple;jJ. cile;j KUA;if kuk; fhzg;gl;lJ. BkYk; BtW kuA;fs; vJt[k; btl;lg;gl;ljhf fhzg;gltpy;iy."

¶10Though the plaintiff has alleged that there were traces for removing the Neem tree and Portia tree, the Advocate Commissioner has specifically observed that there were no such traces. Though the plaintiff has raised objections to the Advocate Commissioner's report, he has not taken any steps to scrap the Commissioner's report and to appoint another Commissioner. More importantly, he has not produced any material or evidence to show that the contents of the Commissioner's report are not correct.

¶11It is pertinent to note that the houses in the suit property were found to be not in use for a long time and the walls and the ceiling tiles were also not in good condition. It is not the case of the plaintiff that after the incident alleged by him, he has shifted to some other place. He has also not furnished any particulars about the damages caused to the household articles as alleged by him. No doubt, the plaintiff has produced the complaint given to the fifth respondent on 24.02.2007 and another complaint to the Superintendent of Police, Karur on 24.03.2007. Though the plaintiff has alleged that the fifth respondent has not taken any action, as he was helping the fourth respondent, has not lodged any complaint to the higher officials. Though he has alleged that he has informed about his complaint to the higher officials, he has not elaborated anything further.

¶12As already pointed out, the respondents 4 and 5 had remained exparte before the executing Court. When service for the fifth respondent is pending in the present revision, the Counsel for the petitioner has filed a memo stating that the fifth respondent remained exparte before the executing Court and that therefore, notice to the fifth respondent may be dispensed with. Whatever it is, though the plaintiff has alleged that his possession and enjoyment of the suit property came to be interfered by the respondents 2 and 4 with the help of the fifth respondent and caused damages to his property, he has miserably failed to prove the same. There is absolutely no evidence to show that the respondents 2, 4 and 5 have disobeyed the decrees of the trial Court as well as the appellate Court. Considering the above, the impugned order dismissing the execution petition cannot be found fault with. Consequently, the Court concludes that the Civil Revision Petition is devoid of merits and the same is liable to be dismissed.

¶13In the result, the Civil Revision Petition is dismissed. There shall be no order as to costs.

26.04.2024 NCC : Yes : No Index : Yes : No Internet : Yes : No SSL To

¶1The District Munsif Court, Kulithalai.

2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai. K.MURALI SHANKAR,J. SSL

26.04.2024

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON: 12.03.2024 PRONOUNCED ON: 26.04.2024 CORAM THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR Raju Gounder : Petitioner/Petitioner/Plaintiff Vs. 1.Periyasamy 2.Krishnan 3.Govindasamy 4.Kambathi 5.Natarajan Inspector of Police, Mayanur Police Station, Krishnarayapuram Taluk. : Respondents/Respondents/Defendants (Memo dated in 26.02.2024 in USR No.7308 is recorded to the effect that issuance of notice to the 5th respondent is dispensed with, as he was set exparte before the Court below, vide Court order dated 26.02.2024) PRAYER:- Civil Revision Petition is filed under Section 115 of the Code of Civil Procedure against the fair and decreetal order dated 18.09.2017 made in E.P.No.21 of 2007 in O.S.No.44 of 1994, on the file of the District Munsif Court, Kulithalai. For Petitioner : Mr.G.Sridharan For Respondents : Mr.K.Prabhakar for R.2 : No Appearance for R.4 : R.1 and R.3 died : R.5 – exparte