P.K. Govindan vs N.R. Aadhikesavalu and Others

S. Palanivelu, J.—In the affidavit filed by the petitioners the following are stated:

1.(a) The first petitioner has been in occupation and possession along with other petitioner in respect of two portions measuring about 400 Sq.ft.in

the first floor of the petition premises No. 23, Venkata Krishna Street, Old Washermenpet, Chennai-21. The said portions were constructed 10

years back with the own cost of the first petitioner. For the said construction of 400 Sq.ft. first petitioner gave Rs. 1,50,000/- to one

Shanthiveeran, on whose permission only the first petitioner put up the superstructure in the first floor. He also obtained electricity sub-meter,

family card and voters identity card along with his family members on the same address of the petition premises. The petitioners are not included as

parties in any of the proceedings arise between the ground floor owner Adikesavalu/respondent and the above said Santhiveeran. But the

petitioners heard about the litigation between the above stated two persons.

1.(b) Though Mr. Adhikesavalu the respondent/decree holder is well aware of the petitioners'' possession in the two first floor portions, he never

issued any notice to vacate nor filed any case against them, in fact Mr.Adhikesavalu does not want to disturb the possession of the petitioners, that

is the reason the respondent claimed only about 680 sq.ft. alone in the main RCOP. When the court bailif tried to execute order of delivery in

respect of 680 sq.ft. without exact description of boundaries and the area mentioned in the decree against the petitioners portion, they obstruct the

said execution. Petitioners have valid documents to prove their claim and right over superstructure built by them in the I floor 400 sq.ft. of the

petition premises portion. Hence they filed this petition to stop the execution proceedings in E.P. No. 528 of 2006.

In the counter filed by the respondent it is stated that the first obstructor is the father of one Mahalakshmi, 8th Respondent in E.P. as well as in

the RCOP Proceedings. The said Mahalakshmi already filed M.P.277/2008 u/s 47 C.P.C. in respect of the same petition premises and same was

dismissed after due enquiry on 16.11.2008. Against that order she preferred CRP No. 25/2009, that also dismissed by the High Court. The

obstructor forged the door number of the petition premises to obtain family card and voters I.D. The First obstructor being the father of 8th

respondent, stayed along with his daughter after the death of her husband, hence the first petitioner and his family members and hence they cannot

be treated as obstructors. The said Shanthiveeran himself was a tenant under the respondent/decree holder, hence under what right and capactiy

the said Shanthiveeran gave permission to the obstructors to built up the construction in the petition premises to be explained by the petitioners.

Hence, the obstructors must be treated as trespassers. This petition is filed only to protract the E.P. Proceedings. Hence it is liable to be dismissed.

The learned 10th Judge, Court of Small Causes, Chennai, after recording the evidence and hearing the arguments of both sides, dismissed the

obstruct petition filed by the petitioners, by observing that their case has not been established that the first petitioner took the property on

permission and put up superstructures.

The earlier proceedings have been categorically and chronically narrated in the counter. One Mahalakshmi is daughter in law of Shanthiveeran,

who was tenant in the demised premises. Pending the enquiry in R.C.O.P. No. 2415 of 1994 the said Shanthiveeran died and hence his legal

representatives were brought to record. Along with them, Mahalakshmi was also impleaded as 8th respondent in the eviction petition. With herself

on the array of respondent, it was heard and eviction order was passed .

Mahalakshmi preferred R.C.A. No. 702 of 2005 and the same suffered dismissal on 8.8.2005. She and other respondents carried the matter in

revision before this Court in C.R.P.(NPD) No. 1583 of 2006 and the same also met similar fate before this Court. The said Mahalakshmi filed

application u/s 47 of C.P.C in M.P. No. 277 of 2007 during pendency of the executing proceedings, questioning the executability of the decree.

The said petition faced dismissal on 10.11.2008. The respondents preferred Civil Revision Petition from the said order in C.R.P.(NPD) No. 25 of

2009 which also got dismissed in the High Court on 13.3.2009.

The said Mahalakshmi in her pleadings in all earlier proceedings had mentioned that she and other respondents in R.C.O.P. had been in

possession of the first floor of the premises. Presently the first petitioner has come forward with this obstruction petition alleging that on the strength

of an agreement of permission reported to have been executed by Shanthiveeran, he has put up superstructure in the first floor and that he is the

owner thereof. The contents of the said agreement captioned as (sic) in which it is stated that for the superstructure to be earmarked in Door No.

23 Venkata Krishnan Street, Old Washermenpet, Chennai, with the consent of the owner of the ground floor Mr.Ganapathy, he (Shanthiveeran)

constructed superstructure viz., on the western side measuring 600 Sq.ft.is entrusted to P.K. Govindan (first petitioner) on receipt of Rs.

1,50,000/- for his business and medical treatment, that the said Govindan may construct 2 portions at his own expenses, that he (Shanthiveeran)

has no interest over the said portions and that the rights in the site upon which the building stands may be purchased from the Mudaliar family.

The petitioner appears to have stated in his evidence that he had been in possession of the petitioner''s premises nearly for ten years, that he

does not throw anything as regards earlier litigations. One Ravichandran S/o Shanthiveeran filed O.S. No. 6832 of 2004 in which he has stated

that his father Shanthiveeran had constructed the entire first floor consisting of six portions in 2400 sq.ft. By means of the above said pleadings and

the verision of Mahalakshmi it can be observed that Shanthiveeran had put up the superstructures and no portion could have been built by the

petitioner.

In order to show that the petitioner is in possession of the property, he has produced two documents. One is Family Card for the years 2005-

2009 and the identity card issued by Election Commission of India issued on 24.12.2007. In the Family Card the address has been mentioned has

23 Venkata Krishnan Street, Old Washermenpet, Chennai, whereas the Voters Identity Card shows the address as 13-8, Venkata Krishnan

Street, Old Washermenpet, Chennai-600021. It is to be clarified by the petitioner herein that the address mentioned in voters'' list is relating to the

first floor which is in dispute. It has not been done so. As far as the production of family card is concerned, it appears to have been issued in 2005.

By means of these documents it cannot be concluded that the first petitioner is the owner of the first floor. The petitioner could not plead ignorance

of proceedings in which his daughter had been party. There is no pleading nor evidence to show that there was love-lost between both of them.

They have been continuously living under the same roof. It is far-fetched contention that the petitioner does now know about the proceedings in

which his daughter was party.

As far as agreement aforestated dated 9.5.2001 is concerned, it has not been properly proved before the executing Court. Excepting the first

petitioner nobody else was brought to box to establish that there was an agreement between Shanthiveeran and first petitioner. In this regard ipse

dixit of the first petitioner is alone is available. There is no proof that such an agreement came to existence as early as on 9.5.2001. It is to be noted

that the consent of the landlord was not obtained by the first petitioner and it is the conceded fact also. In these circumstances it could not be held

that the first petitioner is owner of the superstructure in the first floor as alleged by him. The Executing Court in its order has followed a decision of

the Supreme Court in B. Gangadhar Vs. B.G. Rajalingam, in which it is held as under:

Rule 35(3) of Order 21 C.P.C itself manifests that when a decree for possession of immovable property was granted and delivery of possession

was directed to be done, the court executing the decree is entitled to pass such incidental, ancillary or necessary orders for effective enforcement

of the decree for possession. That power also includes the power to remove any obstruction or super-structure made pendente lite. The exercise

of incidental, ancillary or inherent power is consequential to deliver possession of their property in execution of the decree. No doubt, the decree

does not contain a mandatory injunction for demolition. But when the decree for possession had become final and the judgment-debtor or a person

interested or claiming right through the judgment-debtor has taken law in his hands and made any constructions on the property pending suit, the

decree-holder is not a bound by any such construction. The relief of mandatory injunction therefore is consequential to or necessary for affectation

of the decree for possession. It is not necessary to file a separate suit when the construction was made pending suit without permission of the court.

Otherwise, the decree becomes in the code expressly prohibits such multiplicity of proceedings.

The Supreme Court is of the view that the unauthorised constructions in the suit property has to be removed at the time of execution of the

decree and the Executing Court is empowered to pass the delivery of the possession after removal of superstructures and such incidental,

necessary orders for effective enforcement of decree for necessary possession may be passed by it. Even though the Executing Court has

recorded the finding that the first petitioner can be treated to be a sub-tenant and there is no privity of contract between him and the landlord and

hence he is not entitled for the relief, this Court is of the considered view that the first petitioner cannot be termed to be a sub-tenant since as far as

landlord is concerned, he is a trespasser and the present proceedings would manifestly show that his initiative in this regard is vexatious and that his

alleged possession could not be recognised by law. It is reiterated that there is no material to establish that the first petitioner has put up

superstructure in pursuance of the alleged agreement dated 9.5.2001 and that even if he is in possession he has to be treated as trespasser and that

decree for eviction could very well be executed by the Executing Court inspite of the obstruction or objection by the petitioner. The Executing

Court can very well pass necessary orders for delivery of the property in favour of the landlord after removal of superstructures, for effectively

executing the eviction decree.

In the light of the observations made above, the order challenged before this Court passed by the Executing Court deserves to be confirmed

and it is accordingly confirmed. The petitioners have to be non-suited for any relief. The petition is devoid of merits, which is liable to be dismissed.

In fine, the Civil Revision Petition is dismissed with costs. Connected M.P. is also dismissed.