(Prayer: Civil Revision Petition is filed under Article 227 of Constitution of India to set aside the fair and decreetal order passed in C.M.A.No.3 of 2019, dated 07.11.2023 on the file of the Subordinate Court, Manamadurai and confirmed the order in I.A.No.36 of 2018 in O.S.No.9 of 2018 on the file of the Principal District Munsif Court, Manamadurai, dated 22.03.2018.
Civil Revision Petition is filed under Section 115 of the of Code of Civil Procedure, to call for the records in pursuant to the impugned fair and decreetal order passed in E.P.No.1 of 2024 in O.S.No.311 of 1991, dated 30.04.2024 on the file of the Principal District Munsif Court, Manamadurai and to set aside the same.
Civil Revision Petition is filed under Article 227 of Constitution of India to set aside the fair and decreetal order passed in I.A.No.5 of 2023 in C.M.A.No.3 of 2019, dated 07.11.2023 on the file of the Subordinate Court, Manamadurai.)
Common Order
1. C.R.P(MD)No.3325 of 2023 has been filed challenging the order passed by the learned Subordinate Judge, Manamadurai in C.M.A.No.3 of 2019, dated 07.11.2023.
2. C.R.P(MD)No.1866 of 2024 has been filed challenging the order passed by the learned Principal District Munsif, Manamadurai, in E.P.No.1 of 2024 in O.S.No.311 of 1991, dated 30.04.2024.
3. C.R.P(MD)No.2075 of 2024 has been filed challenging the order passed by the learned Subordinate Judge, Manamadurai, in I.A.No.5 of 2023 in C.M.A.No.3 of 2019, dated 07.11.2023.
4. Heard Mr.J.John, learned Counsel for the Revision Petitioner and Mrs.Vijayakumari Natarajan, learned Counsel for the respondents 1 and 2 in C.R.P(MD)Nos.3325 of 2023 and 2075 of 2024 and for the respondents in C.R.P(MD)No.1866 of 2024.
5. Originally, the suit property belonged to one Dr.Sundar Raju. After his demise, one Dr.Mallika Arjunaraj, had inherited the suit property. She had a son by name, Ramasamy Raju and a daughter by name, Ushadevi. One Ramakrishan was the tenant over the suit schedule property. Ramakrishnan had purchased the suit property from Ramasamy Raju vide registered sale deed, dated 03.03.1989. From that date, Ramakrishnan was in possession and enjoyment of the suit property as a lawful owner and after his demise, his wife, Jeyalakshmi and his son, Senthil Kumar have inherited the suit property.
6. In the meanwhile, in respect of Door No.149, Ramakrishnan Pillai had instituted a suit in O.S.No.138 of 1991 against Mallika Arjunaraju and his brothers before the District Munsif Court, Manamadurai, for declaration and permanent injunction. The said suit was dismissed vide judgment and decree, dated 18.08.1995. Challenging the same, an appeal in A.S.No.160 of 1997 was filed before the Principal District Court, Sivagangai, in which, the judgment and decree in O.S.No.138 of 1991 was modified.
7. In respect of Door No.150, a suit in O.S.No.311 of 1991 was filed by Mallika Arjunaraju against Ramakrishnan before the District Munsif Court, Manamadurai, for declaration and permanent injunction. The said suit was decreed vide judgment and decree, dated 18.08.1995. Against which, an appeal in A.S.No.133 of 1996 was filed before the Principal District Court, Sivagangai, in which the judgment and decree in O.S.No.311 of 1991 was modified by holding that the property owned by joint family including Ramasamy Raju.
8. In respect of Door Nos.148 and 151, Mallika Arjunaraju filed two suits in O.S.No.49 of 1996 and 107 of 1998 were filed against Ramakrishnan and Ramasamy Raju for declaration and recovery of possession. The said suits were decreed vide judgment and decree, dated 17.11.2008. Challenging the same, appeals in A.S.Nos.24 and 25 of 1999 were filed, which were dismissed vide judgment and decree, dated 24.08.1999. Challenging the same, Second Appeals were preferred before this Court in S.A.Nos.384 and 385 of 2000. This Court vide judgment, dated 13.02.2002, had partly allowed the Second Appeals with the following observations:
“20.With respect to the shop bearing Door No. 151, the appellant is not claiming any right as a tenant, but he is trying to safeguard his possession only on the basis of the purchase of moity interest from the said Ramasami Raju, the co-parcener. His possession is not in dispute as the plaintiff himself has filed the suit for possession against the appellant.
21.So, even with respect to the said property, as held by the Division Bench of this Court in 1984 (97) L.W. 334, the appropriate relief could be, a declaration that the possession of the appellant should be construed as joint possession by the plaintiff also, and separate possession could be taken by filing a suit for partition. On the basis of the reasonings given in the said decision of the Division Bench, the plaintiff is not entitled to get possession till the relief of partition and separate possession is decided before the appropriate court.
22.Learned counsel appearing for the 1st respondent relied on the decision in Thangamani v. Natesan, 2001 (9) SCC 299, in support of his submission that suit for recovery of possession against the tenant who purchased the land can be sustained. But, unfortunately, the said decision will not apply to the facts of the present case. In the said decision, under the agreement entered into between the landlords and tenant, the tenant failed to pay the sale consideration and so the landlords filed the suit for recovery of possession of the land. It was also found on the basis of the recitals in the agreement that the tenants agreed to surrender their possession of the land to the landlords, pursuant to the said agreement, and on the basis of the above said facts, the Apex Court further held that after such surrender, the defendants-tenants were in possession only as agreement holders, and so the decree for delivery of possession as granted by the courts below are sustainable. The said decision has no application to the facts of the present case, as the appellant herein had purchased the moity interest, and so, as held by the Division Bench cited supra, his possession need not be disturbed till appropriate relief is obtained for partition and separate possession of the said property.
23.In view of the above discussion, the judgments and decrees of the lower appellate court insofar as they relate to the decree for possession cannot be sustained. Hence they are alone set aside and these Second Appeals are allowed partly. No costs.”
9. As one Ushadevi, daughter of Mallika Arjunaraja, has made an attempt to disturb the possession of the suit properties, namely, Door Nos.148, 149, 150 and 151, Ramakrishnan filed a suit in O.S.No.50 of 2001 for permanent injunction, which was partly allowed vide judgment and decree, dated 16.03.2004. In the appeal filed by the said Ushadevi, in A.S.No.75 of 2004, the lower appellate Court vide judgment and decree, dated 22.06.2009, had confirmed the judgment and decree passed in O.S.No.50 of 2001.
10. Even thereafter, the said Ushadevi, had executed two documents in respect of Door Nos.148, 149, 150 and 151 in favour of Muruganantham and Saritha and when they attempted to disturb the peaceful possession and enjoyment of the suit properties by the plaintiffs, the plaintiffs filed a suit in O.S.No.9 of 2018 for permanent injunction before the Principal District Munsif Court, Manamadurai.
11. In the said suit, an application was filed in I.A.No.9 of 2018 for interim injunction against the said Muruganantham and Saritha, and the same was allowed vide order, dated 22.03.2018, against which, Muruganantham and Saritha filed an appeal in C.M.A.No.3 of 2019 before the Subordinate Court, Manamadurai. During the said proceedings, they also filed an application in I.A.No.5 of 2023 for filing additional documents. The learned Subordinate Judge, Manamadurai, vide impugned common order, dated 07.11.2023, had dismissed both C.M.A.No.3 of 2019 and I.A.No.5 of 2023. Challenging the same, Saritha had filed the above C.R.P(MD)Nos.3325 of 2023 and 2075 of 2024.
12. In the interregnum, the aforesaid Saritha, had filed an Execution Petition in E.P.No.1 of 2024 before the District Munsif Court, Manamadurai. The learned District Munsif, Manamadurai, vide impugned order, dated 30.04.2024, had dismissed the said application. Challenging the same, C.R.P(MD)No.1866 of 2024 has been filed.
13. The learned Counsel for the revision petitioner made the following submissions in respect of C.R.P(MD)Nos.3325 of 2023 and 2075 of 2024:
1)The suit properties are four Doors Nos.148 to 151. The plaintiffs got favourable order by way of false statement and suppression of earlier judgement and decree in O.S.Nos.138 of 1991 and 311 of 1991. It is his primary contention that the first appellate Court ought to have looked into the prayer in the interim relief in I.A.No.36 of 2018 and prayer in the main suit in O.S.No.9 of 2018. Admittedly, main relief cannot be granted in the interim application. However, both the Courts below have committed error on the face of it, which is against the settled principle of law. It is also submitted that even after the orders passed by the Courts, encumbrances were made in the suit properties and that those documents were necessary for deciding the suit. He also submitted that the Court below deliberately ignored the earlier declaration and permanent injunction suit filed by the parties in respect of Door Nos.149 and 150. The Courts below have not considered the documents produced by the parties in a proper manner and both the Courts below have adopted the pick and choose method, which is against law. It is his further contention that the Court below erred in dismissing the application to receive additional documents, which needs interference of this Court.
14. The learned Counsel for the revision petitioner made the following submissions in respect of C.R.P(MD)No.1866 of 2024:-
1)The trial Court has erroneously relied upon the judgment of this Court S.A.Nos.384 and 385 of 2000. The subject matter of the properties are Door Nos.148 and 151 and in this case, the subject matter of the property is Door No.150. Hence, by relying on judgment, which is not relevant to the facts of the present case, the Court below has erred in dismissing the execution petition filed by the petitioner, which is per se illegal. Further, the documents relied upon by the petitioner have not been considered by the Court below, which needs interference of this Court. Hence, he sought for appropriate orders.
15. In support of his contention, the learned Counsel for the petitioner has relied upon the following judgments:
1)The judgment of Hon'ble Supreme Court in the case of Ved Kumari (Dead) through her legal representative, Dr.Vijay Agarwal vs Muncipal Corporation of Delhi, through its Commissioner, reported in (2023) 13 SCC 651, wherein, the Hon'ble Supreme Court has held as follows:
“26.Similarly, in Shreenath v. Rajesh [Shreenath v. Rajesh, (1998) 4 SCC 543] this Court observed thus : (SCC pp. 548-49, para 10)
“10. Under sub-clause (1) Order 21 Rule 35, the executing court delivers actual physical possession of the disputed property to the decree-holder and, if necessary, by removing any person bound by the decree who refuses to vacate the said property. The significant words are by removing any person bound by the decree. Order 21 Rule 36 conceives of immovable property when in occupancy of a tenant or other person not bound by the decree, the court delivers possession by fixing a copy of the warrant in some conspicuous place of the said property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place, the substance of the decree in regard to the property. In other words, the decreeholder gets the symbolic possession. Order 21 Rule 97 conceives of resistance or obstruction to the possession of immovable property when made in execution of a decree by “any person”. This may be either by the person bound by the decree, claiming title through the judgment-debtor or claiming independent right of his own including a tenant not party to the suit or even a stranger. A decree-holder, in such a case, may make an application to the executing court complaining such resistance for delivery of possession of the property. Sub-clause (2) after 1976 substitution empowers the executing courts when such claim is made to proceed to adjudicate upon the applicant's claim in accordance with the provisions contained hereinafter. This refers to Order 21 Rule 101 (as amended by the 1976 Act) under which all questions relating to right, title or interest in the property arising between the parties under Order 21 Rule 97 or Rule 99 shall be determined by the court and not by a separate suit. By the amendment, one has not to go for a fresh suit but all matter pertaining to that property even if obstruction by a stranger is adjudicated and finally given even in the executing proceedings. We find the expression “any person” under sub-clause (1) is used deliberately for widening the scope of power so that the executing court could adjudicate the claim made in any such application under Order 21 Rule 97. Thus by the use of the words “any person” it includes all persons resisting the delivery of possession, claiming right in the property, even those not bound by the decree, including tenants or other persons claiming right on their own, including a stranger.”
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29.In view of the settled legal position, as noted (supra), it was the duty of the executing court to issue warrant of possession for effecting physical delivery of the suit land to the decree-holder in terms of suit schedule property and if any resistance is offered by any stranger to the decree, the same be adjudicated upon in accordance with Rules 97 to 101 of Order 21CPC. The executing court could not have dismissed the execution petition by treating the decree to be inexecutable merely on the basis that the decree-holder has lost possession to a third party/encroacher. If this is allowed to happen, every judgment-debtor who is in possession of the immovable property till the decree is passed, shall hand over possession to a third party to defeat the decree-holder's right and entitlement to enjoy the fruits of litigation and this may continue indefinitely and no decree for immovable property can be executed.”
2)The judgment of Hon'ble Supreme Court in the case of Bhudev Mallick Alias Bhudeb Mallick and another vs Ranajit Ghoshal and others, reported in 2025 SCC OnLine 360, wherein, the Hon'ble Supreme Court has held as follows:
“40.The High Court of Punjab and Haryana in the case of Dilbagh Singh v. Harpal Singh Alias Harpal Singh Chela, 2020 Supreme (P&H) 944, has held as under:—
“6. Although learned counsel for the petitioners has laid much stress on the fact that to seek execution of the decree, qua the restoration of the possession in his favour, the decree holder was supposed to plead specifically as to when and in what manner he has been dispossessed. This Court finds this argument to be noted only to be rejected. The provisions of sub Rule (5) Rule 32 of Order 21 CPC do not prescribe any such condition. Rather, Order 21 Rule 32 CPC prescribes that for execution of a decree if any act is required to be done by the judgment debtor, the Executing Court can order that such an act be done by the judgment debtor; as claimed. Sub Rule (5) Rule 32 of Order 21 CPC has been interpreted by the Supreme Court in various judgments viz. “Samee Khan v. Bindu Khan, (1998) 4 RCR (Civil) 125 (SC)” to mean that in an execution proceedings of a decree for injunction, if it is found that the decree holder has been dispossessed after the date of decree, the restoration of possession can also be ordered by the Executing Court. Hence, it is no more res-integra that in execution of a decree for injunction, even restoration of possession can be ordered by the Executing Court. This view has also been taken by this court in ‘Kapoor Singh v. Om Parkash, PLR (2009) 154 P&H 178’. Hence, no fault can be found, per-se, with the action of the Executing Court in issuing warrants of possession in the execution proceedings.”
(Emphasis supplied)
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45. Where the judgment-debtor disobeys a decree of injunction, he can be dealt with under this rule by his imprisonment or by attachment of his property or by both. But the court has to record a finding that the judgment-debtor wilfully disobeyed or failed to comply with the decree in spite of opportunity afforded to him. Absence of such finding is a serious infirmity vitiating the order.”
3)The judgment of Rajasthan High Court in the case of Naurang vs Legal heirs of Sri Chunnilal and others in S.B.Civil Revision Petition No. 145 of 2025, dated 04.08.2025, wherein, it has been held as follows:
“10.However, where a decree of prohibitory injunction has been rendered nugatory by the willful and unlawful act of the judgment-debtor particularly dispossession of the decreeholder from the decreetal property; the executing court is vested with the power, under Order XXI Rule 32(5) CPC, to direct measures necessary to secure compliance, including restoration of possession. To give full effect to an injunction decree, the executing court may remove any obstruction caused in violation thereof, so that the successful litigant reaps the benefits of the adjudication.
11.In the present case, where the litigation has already consumed nearly a decade or more in the corridors of law, it would be wholly unjust to permit the decree to be frustrated or defeated by the sheer force or unlawful activity of the judgment-debtor. The civil court cannot be rendered helpless or handicapped in the face of such conduct. The essence of an injunction decree is to preserve possession and to restrain intrusion, “injunct” in itself means you shall not enter or to restrain by injunction. If, in defiance thereof, possession is forcibly taken, then the concept of injunction equally encompasses the authority “to expel” and to restore the rightful party back into possession.”
16. The learned Counsel for the respondents 1 and 2 in C.R.P(MD)Nos. 3325 of 2023 and 2075 of 2024 and the respondents in C.R.P(MD)No.1866 of 2024 submitted that the Court below after considering the entire facts and evidences available on record had passed the impugned orders. The orders passed by this Court in S.A.Nos.384 and 385 of 2000 has been relied upon by the Court below in negativing the claim made by the petitioners and that the petitioners without filing any partition suit, as was directed by this Court in the Second Appeals, have filed the Execution Petition, which has been rightly negatived by the Court below. Further, the trial Court has given an interim relief, which has been rightly concurred by the appellate Court, which does not warrant any interference of this Court. Further, filing an application in the first appellate Court, when the trial is pending before the trial Court, is an abuse of process of law and that without properly taking recourse the provisions, the petitioners have filed an interlocutory application, which has been rightly refused by the appellate Court. Hence, she seeks dismissal of these petitions.
17. This Court considered the submissions made on either side and perused the materials available on record.
18. From the above, it is clear that originally, the suit property owned by one Dr.Sundar Raju and thereafter, her daughter, Dr.Mallika Arjunaraj, had inherited the properties. Dr.Mallika Arjunaraj, had two legal heirs, namely, Ramasamy Raju and Ushadevi. From Ramasamy Raju, one Ramakrishnan had purchased the suit property by way of a registered sale deed, dated 03.03.1989 and was in possession and enjoyment of the suit property as a lawful owner and after his demise, his wife, Jeyalakshmi and his son, Senthil Kumar have inherited the suit property.
19. In the meanwhile, O.S.No.138 of 1991 (Door No.149) O.S.No.311 of 1991 (Door No.150), O.S.No.49 of 1996 (Door No.148), O.S.No.107 of 1998 (Door No.151) were filed for declaration, for permanent injunction and for other reliefs. O.S.No.138 of 1991 was dismissed and against which, an appeal A.S.No.160 of 1996 filed and the said appeal was partly allowed, which has reached finality, as no appeal has been filed. O.S.No.311 of 1991 was decreed and as against the said judgment and decree, an appeal in A.S.No.133 of 1996 was filed, which was was partly allowed, which has also reached finality, as no appeal has been filed. Further, O.S.Nos.49 of 1996 and 107 of 1998 was partly decreed and against which, A.S.Nos.24 and 25 of 1999 were filed, which were allowed by the appeal Court. Challenging the same, Second Appeals in S.A.Nos.384 and 385 of 2000 were filed before this Court and the Second Appeals were partly allowed by this Court vide judgment, dated 13.02.2002. The observations of this Court in S.A.Nos.384 and 385 of 2000, dated 13.02.2002, is once again reproduced hereunder for ease reference:
“20.With respect to the shop bearing Door No. 151, the appellant is not claiming any right as a tenant, but he is trying to safeguard his possession only on the basis of the purchase of moity interest from the said Ramasami Raju, the co-parcener. His possession is not in dispute as the plaintiff himself has filed the suit for possession against the appellant.
21.So, even with respect to the said property, as held by the Division Bench of this Court in 1984 (97) L.W. 334, the appropriate relief could be, a declaration that the possession of the appellant should be construed as joint possession by the plaintiff also, and separate possession could be taken by filing a suit for partition. On the basis of the reasonings given in the said decision of the Division Bench, the plaintiff is not entitled to get possession till the relief of partition and separate possession is decided before the appropriate court.
22.Learned counsel appearing for the 1st respondent relied on the decision in Thangamani v. Natesan, 2001 (9) SCC 299, in support of his submission that suit for recovery of possession against the tenant who purchased the land can be sustained. But, unfortunately, the said decision will not apply to the facts of the present case. In the said decision, under the agreement entered into between the landlords and tenant, the tenant failed to pay the sale consideration and so the landlords filed the suit for recovery of possession of the land. It was also found on the basis of the recitals in the agreement that the tenants agreed to surrender their possession of the land to the landlords, pursuant to the said agreement, and on the basis of the above said facts, the Apex Court further held that after such surrender, the defendants-tenants were in possession only as agreement holders, and so the decree for delivery of possession as granted by the courts below are sustainable. The said decision has no application to the facts of the present case, as the appellant herein had purchased the moity interest, and so, as held by the Division Bench cited supra, his possession need not be disturbed till appropriate relief is obtained for partition and separate possession of the said property.
23.In view of the above discussion, the judgments and decrees of the lower appellate court insofar as they relate to the decree for possession cannot be sustained. Hence they are alone set aside and these Second Appeals are allowed partly. No costs.”
20. In the meanwhile, O.S.No.50 of 2001 was filed in respect of Door Nos.148 to 151 by Ramakrishnan against Ushadevi for injunction and the said suit was partly decreed. Challenging the same, an appeal in A.S.No.75 of 2004 was filed and the lower appellate Court vide judgment and decree, dated 22.06.2009, had confirmed the judgment and decree passed in O.S.No.50 of 2001. Subsequently, the respondents in legal heirs of Ramakrishnan, had filed a suit in O.S.No.9 of 2018 permanent injunction before the Principal District Munsif Court, Manamadurai against the Saritha and Muruganantham. In the said suit, the plaintiffs have obtained an interim injunction and against which, the petitioner had filed an appeal in C.M.A.No.3 of 2019 and had also filed an application in I.A.No.5 of 2023 to receive additional documents.
Conclusion:-
C.R.P(MD)No.1866 of 2024:-
21. Saritha had filed an execution petition E.P.No.1 of 2024 for execution of the decree in O.S.No.311 of 1991. The said petition was dismissed by the executing Court by relying on the judgment passed by this Court in S.A.Nos. 384 and 385 of 2000, in which, this Court has observed that since coparcener right is also involved in the suit property, it is only appropriate for the parties to file a partition suit. Even though the subject properties are different in both the cases, ie., O.S.Nos.49 of 1996 and 107 of 1998 and O.S.No.311 of 1991, as there is no proper partition among the family members, it is appropriate to direct the parties to file a partition suit and get their shares in the partition suit. As there is a finding by this Court that since the properties are joint family properties, the properties can be divided only by way of partition suit among the joint family members. Hence, the Executing Court has rightly dismissed the application in E.P.No.1 of 2024 in O.S.No.311 of 1991, by relying on the judgment of this Court in S.A.Nos.384 and 385 of 2000. Hence, this Court does not find any irregularity or infirmity in the order passed by the Executing Court.
C.R.P(MD)Nos.3325 of 2023 and 2075 of 2024:-
22. With regard to the filing of additional documents, the lower appellate Court has rightly concluded that the petitioner has not given any valid reasons for not filing those documents before the trial Court. Further, the lower appellate Court has rightly observed that the Document Nos.5 and 7, namely, orders of this Court in Crl.O.P.(MD)No.15451 of 2018, dated 30.08.2018 and W.P(MD)No.367 of 2018, dated 09.01.2018 are all the documents, subsequent to the filing of the Civil Miscellaneous Appeal, and that there is no necessary for the Court to accept those documents to arrive at conclusion in the Civil Miscellaneous Appeal.
23. Insofar as the Civil Miscellaneous Appeal is concerned, the lower appellate Court after considering the earlier suits as well as the documents filed in support of the petitioner, has rightly come to the conclusion that as per the judgment and decree in O.S.No.50 of 2001, the possession of the plaintiffs and his predecessor has been confirmed and the said judgment and decree in O.S.No.50 of 2001, has reached finality, as there is no appeal filed, after the dismissal of A.S.No.75 of 2004. Since the possession of the plaintiffs has been proved in the earlier suit, the trial Court has rightly granted the interim injunction and the same was rightly confirmed by the first appellate Court, which needs no interference of this Court.
24. Insofar as the contention that the main relief cannot be granted by way of interim injunction is concerned, there is some force in the argument of the learned Counsel for the petitioner. However, since the plaintiffs have made out a prima facie case that if the interim relief is not granted, then it will cause irreparable loss to them and for balance of convenience, the trial Court has rightly granted an order of interim injunction, which has been rightly affirmed by the lower appellate Court, which needs no interference of this Court.
25. In fine, all the Civil Revision Petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
