Kamurunisha Beevi v. Muppidathi Muthuvellar

O R D E R The present Civil Revision Petition has been filed by the petitioner under Section 115 of the Civil Procedure Code, against the fair and decreetal order dated 19.10.2016 passed in E.A.No.214 of 2014 in E.P.No.182 of 2006 in O.S.No.354 of 1999 on the file of the Principal District Munsif Court, Tenkasi.

¶2The petitioner herein is the plaintiff, and the respondents 1 and 2 herein are the defendants 2 and 3 before the Court below.

¶3For the sake of convenience, the parties will be referred to as per the litigative status before the trial Court.

¶4The learned counsel for the petitioner would submit that the petitioner/plaintiff has filed the suit in O.S.No.354 of 1999. In which, a decree of mandatory injunction was granted in respect of the 3rd schedule property. It is the further submission of the learned counsel for the petitioner that, in pursuance of the decree, they also moved an execution petition in E.P.No.182 of 2006 and obtained the removal of encroachment and delivery of the suit schedule property.

¶5It is the further submission of the learned counsel for the petitioner that after the removal of encroachment, she filed a suit for permanent injunction and mandatory injunction with the following prayer:-

(M) tof;Fj; njhFg;Giu 3–tJ ml;ltizr; nrhj;jpy; eilghij chpik ,e;j tof;fUf;F> mtUf;F chpikg;gl;l ,jd; 2– tJ ml;ltizr; nrhj;jpid mDgtpg;gjw;F Easement by Necessity %yk; chpikg;gl;L tpl;lJ vd tpsk;Gif (declaration) – nra;tjpd; %yk; i\ nrhj;jpYs;s tof;fhpd; eilghij chpik kw;Wk; mDgtj;ij ,ila+W nra;Ak; tifapy; ,e;j vjph; tof;fh;fNsh> md;dhh;fspd; tifahl;fNsh> Vty; ngw;wth;fNsh> ,jd; 3– tJ nrhj;jpd; ml;ltizr; nrhj;jpy; ve;j gFjpapYk; fl;blk; fl;bNah> my;yJ NtW vt;tifapYk;> vt;tpjj;jpYk;> vf;fhyj;jpYk; ,ilA+W nra;af;$lhJ vd ,e;j vjph;

tof;fh;fSf;F

vjpuhf

epue;ju cWj;Jf;fl;lis (Permanent

Injunction) gpwg;Gtpf;Fk;gbf;Fk; (,) tof;Fj;njhFg;Giu 3 tJ ml;ltizr; nrhj;jpd; Nkw;F filrp gFjpahd GJhh; gs;spf;$lj;njUtpypUe;J EioAk; gFjpapy; tiuglj;jpy; 'X' vd;w FwpaPL nra;j ,lj;jpy; ,e;j vjph; tof;fh;fs; thdk; Njhz;b fl;bAs;s mbj;jsr; Rth;fis khz;GkpF ,e;j ePjpkd;wk; Fwpg;gpLk; xU fhyf; nfLtpw;Fs; ,e;j vjph;tof;fh;fNsh

i\

Rth;fis

,bj;J mg;Gwg;gLj;Jk;gbf;Fk; mt;tpjk; nra;aj; jtWk; gl;rj;jpy; khz;GkpF ,e;j ePjpkd;wk; %yk;> ,e;j vjph; tof;fh;fspd; nrytpy; ,bj;J mg;Gwg;gLj;j tof;fUf;F

mDkjpaspj;J>

,e;j vjph;tof;fh;fSf;F vjpuhf nray; cWj;Jf; fl;lis –(Mandatory

Injunction) gpwg;Gtpf;Fk;gbf;Fk;."

¶6The learned counsel appearing for the petitioner would submit that, as prayed supra, a decree of permanent injunction restraining the respondents not to interfere in the peaceful enjoyment of passage in the third schedule property was granted. It is the submission of the learned counsel for the petitioner that, contrary to the above decree, during 2013, the respondent has again made an encroachment by putting thatched sheds. Therefore, they moved an application in E.A.No.214 of 2014 so as to remove the thatched shed by way of execution of the decree of permanent injunction granted against the respondents.

¶7The learned counsel for the petitioner would invite the attention of this Court in respect of the counter statement filed by the decree holder in paragraph No.9. Wherein it has admitted as follows: "9. ,e;j 2-k; vjph;kDjhuh; VNjh ePjpkd;w mtkjpg;G nra;J kD 3 - tJ ml;ltizr; nrhj;jpid Mf;fpukpg;Gr; nra;Js;sJ Nghy $wpAs;s kDjhuh; kl;LNk Nkw;gb kD 2k; ml;ltiz nrhj;jpw;F njd;gf;fk; fpoNky; 6 ½ mbAk;> njd;tly; 6 mbAk; kDjhuh; kD 3 - k; ml;ltizr; nrhj;jpid Mf;fpukpg;G nra;J epue;jukhd fl;blk; kw;Wk; jfu nrl; Vw;gLj;jp Mf;fpukpg;G

nra;Js;shh;.

cz;ik epiy ,t;thwpUf;f Nkw;gb r%fk; ePjpkd;w cj;jputpid kDjhuNu mtkjpg;G nra;J tpl;L ,e;j 2-k; vjph;kDjhuh; kPJ filaey;Yhh; fhty; epiyaj;jpy; ngha; Gfhh; nfhLf;f kDjhuh; vj;jdpj;jjpy; Nkw;gb cz;ik epiyapid njhpe;jjhy; jhd; filaey;Yhh; fhty; epiyaj;jhh; ,e;j 2-k; vjph;kDjhuh; kPJ ahnjhU Fw;w eltbf;ifAk; vLf;ftpy;iy."

¶8By relying upon the above admission, the learned counsel for the petitioner would submit that the respondent, though categorically admitted the existence of the encroachment, contend that such an encroachment was not made by him but by the petitioner herein. Therefore, the learned counsel for the petitioner would submit that, when the encroachment is admitted, and when pleaded that the same was done by this defendant himself, there cannot be any objection to the respondents herein qua the defendants, for the removal of the said encroachment.

¶9Per contra, the learned counsel appearing for the respondents would contend again by reiterating his contention made in paragraph No.9 of the counter statement which is extracted elsewhere in this order.

¶10This Court has given anxious consideration to the submissions of the learned counsel on either side.

¶11It is an admitted fact that there was decree against the respondent herein for a permanent injunction not to disturb the peaceful possession and enjoyment over the passage which exist in the third schedule property. Though the counter statement the respondents admits the existence of encroachment. But, the issue here is, the encroachment was not done by the respondents herein.

¶12It is pertinent to mention that, by way of permanent injunction, the petitioner's peaceful possession and enjoyment has been protected from any type of encroachment. Therefore the core issue here is, whether, such encroachment has to be removed by way of execution of decree. Here, the respondents have admitted the encroachment and pleaded that it was not made by them. Hence, they cannot have any grievance over the removal of such encroachment incompliance to the decree passed by the Court below. However, contrary to the said course, the Court below has arrived at a conclusion that there was an identity issue in respect of the suit property. But while perusing the counter statement filed by the respondents, such finding is contrary to the pleadings and not supported by any of the defences put forth by the respondents.

¶13Therefore, this Court is of the view that, the learned trial Judge without any basis has arrived at a conclusion in respect of the identity issue. Since the trial Court has already granted the permanent injunction and when, there is an encroachment in the third schedule property, a duty cast upon the trial Court to remove such an encroachment so as to execute the decree.

¶14Therefore, this Court is of the view that the very order passed by the Court below is liable to be interfered with. Having considered the above aspects, this Court is of the view that this Civil Revision Petition is liable to be allowed. Further to have the execution of the decree, this Court deem it fit to remit this matter back to the Court below for an appointment of Commissioner and to proceed with the matter according to law.

¶15In the result, this Civil Revision Petition is allowed as indicated above. There shall be no order as to costs.

16.08.2023 NCC : Yes/No Index : Yes / No Internet : Yes / No ebsi To

¶1The Principal District Munsif Court, Tenkasi. C.KUMARAPPAN,J. ebsi C.R.P(NPD)(MD)No.229 of 2017

16.08.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 16.08.2023 CORAM: THE HONOURABLE MR.JUSTICE C.KUMARAPPAN C.R.P.(NPD)(MD)No.229 of 2017 Kamurunisha Beevi ... Petitioner/Petitioner/Petitioner/ Decree Holder/Plaintiff -vs- 1. Muppidathi Muthuvellar 2. Madasamy Vellar (Died) ... Respondents/Respondents/Respondents/ Judgment Debtors/ Defendants 2 and 3 3. Maadatthiyammal 4. Murugan 5. Mariyappan 6. Vellatthai 7. Muthu Lakshmi 8. Velammal 9. Annamalaiammal 10. Saraswathi ... Proposed Respondents (Respondents 3 to 10 are brought on record as Lrs of the deceased 2nd respondent vide Court order dated 19.12.2022 made in C.M.P(MD)Nos.2373 to 2375 of 2022 in C.R.P(MD) No. 229 of 2017) PRAYER: Civil Revision Petition is filed under Section 115 of the Civil Procedure Code, against the fair and decreetal order dated 19.10.2016 passed in E.A.No.214 of 2014 in E.P.No.182 of 2006 in O.S.No.354 of 1999 on the file of the Principal District Munsif Court, Tenkasi. For Petitioners : Mr.A.Arumugam for M/s.Ajmal Associates For Respondents : Mr.R.J.Karthick for R1, R3 to R10