S.Lingamurthy vs Rose Ammal And Others

T. Ravindran, J

Challenge in this second appeal is made to the Judgement and Decree dated 17. 12. 2018 passed in A. S. No. 44 of 2016 on the file of the IV Additional Judge, City Civil Court, Chennai, confirming the fair order and Decreetal order dated 27. 11. 2015 passed in E. A. No. 235 of 2012 in E. P. No. 1625 of 2011 in O. S. No. 1244 of 1987 on the file of the IX Assistant Judge, City Civil Court, Chennai.

For the sake of convenience, the parties are referred to as per their rankings in the trial Court.

It is found that the petitioners/plaintiffs had preferred the suit against the defendants in O. S. No. 1244 of 1987 for the reliefs of declaration, recovery of possession, rendition of accounts, past and future mesne profits.

The defendants resisted the abovesaid suit of the plaintiffs on various grounds. After contest, it is noted that the suit laid by the plaintiffs had been partly decreed. Aggrieved over the same, the plaintiffs had preferred the first appeal in A. S. No. 11 of 1998. The first appellate Court, on an appreciation of the materials placed on record and the submissions made, was pleased to allow the appeal preferred by the plaintiffs and accordingly, granted the decree in favour of the plaintiffs as prayed for. The defendants challenged the judgment and decree of the first appellate Court by way of the second appeal in the High Court S. A. No. 645 of 2000 and the High Court had dismissed the same and thereby, confirmed the judgment and decree of the first appellate Court. Pursuant to the same, it is seen that the petitioners had preferred the execution petition in E. P. No. 1625 of 2011 for the recovery of possession and the executing Court had ordered the delivery in favour of the petitioners by issuing the delivery warrant. When the petitioners had endeavoured to execute the delivery warrant through Ameen, it is found that the judgement debtor had left the suit property by keeping the same as locked and thereafter, the petitioners had also moved for break open the lock and again when the petitioners have endeavoured to take the delivery of the suit property through the Court process, according to them, the obstructors claiming that they have acquired right through the judgment debtor as well as from the plaintiffs, without any basis, put forth the obstruction to the delivery of possession and hence, to remove the obstruction, according to the petitioners, they had been necessitated to levy the petition for the removal of obstruction caused by the obstructors.

The obstructors resisted the abovesaid execution petition preferred by the petitioners/plaintiffs contending that they have been in the possession and enjoyment of the suit property for several years and according to them, they had entered into an agreement of sale with the judgement debtor Kannan on 19. 12. 1997 and paid the part of the sale consideration to him and the agreement had been registered and they have also put forth that they had entered into an agreement of sale with the petitioners/plaintiffs for the sale of the suit property and the metro water, service connection etc. , had been obtained in the name of the obstructors and it is further contended that it is only the judgment debtor Kannan, who had been collecting the rent from the obstructors and furthermore, according to them, they had also initiated the suit for the relief of specific performance in the High Court in C. S. No. 324 of 2011 and the same is pending and the petitioners/plaintiffs had suppressed the abovesaid materials of facts and come forward with the application without any basis and thereby, prayed for the dismissal of the application.

In support of the petitioners' case, PW1 was examined and Exs. P1 to P6 were marked. On the side of the obstructors, RW1 was examined and no document has been marked.

On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the Courts below were pleased to allow the application preferred by the petitioners/plaintiffs. Impugning the same, the present second appeal has been laid.

Considering the materials placed on record, it is found that the petitioners/plaintiffs had obtained the decree in the suit levied by them and the same had been confirmed by this Court in second appeal No. 645 of 2000. Pursuant to the same, it is found that they had levied the execution petition for obtaining the delivery of the suit property and the same had been resisted by the obstructors on the footing that they had been entered into the agreement of sale with the judgment debtor Kannan on 19. 12. 1997 and also would state that they had entered into a sale agreement with the petitioners/plaintiffs with reference to the suit property and would further plead that the suit for specific performance in C. S. No. 324 of 2011 is pending in connection with the same and therefore, according to them, the petitioners/plaintiffs had suppressed the abovesaid materials facts and come forward with the application without any basis and therefore, sought for the dismissal of the application.

As abovenoted, as rightly determined by the Courts below, the petitioners had been declared to be the lawful owners of the suit property and based on the same, the relief of possession has also been granted in favour of the petitioners. In such view of the matter, as determined by the courts below, the petitioners are entitled to seek the delivery of the suit property from the defendants/judgment debtors. Pursuant to the abovesaid decree, accordingly, it is also seen that they had levied the execution application to enforce the decree obtained by them. However, it is found that the judgment debtors had left the suit property and it is only the obstructors, who had been resisting the delivery of possession to the petitioners on the footing that they had entered into a sale agreement with the judgment debtors and also would contend that they had entered into a sale agreement with the petitioners/plaintiffs and therefore, obstructed the delivery of possession sought for by the petitioners.

However, the Courts below had noted that the obstructors, without any manner of right, title or interest in respect of the suit property, are not entitled to resist the delivery of possession of the suit property sought for by the petitioners/plaintiffs and accordingly, entertained the application preferred by petitioners/plaintiffs.

The main ground that had been projected by the obstructors for resisting the delivery is that they had entered into a sale agreement with the judgement debtors as well as with the petitioners/plaintiffs and therefore, the petitioners are not entitled to obtain the delivery of the property and according to them, the suit in C. S. No. 324 of 2011 is pending in the High Court with reference to the same. According to the petitioners/plaintiffs, the abovesaid alleged agreement projected by the obstructors is not true, invalid and unenforceable and accordingly, contended that on the basis of the abovesaid sale agreement, the obstructors cannot base any claim of title to the suit property in their favour and the abovesaid contention had been accepted by the Courts below. As determined by the courts below, when the agreement of sale does not, of itself, create any interest in the suit property described in the said agreement, in such view of the matter, the Courts below are found to be wholly justified in not accepting the case projected by the obstructors that they have derived a valid title to the suit property based on the sale agreement projected by them. When as abovenoted, the petitioners claim of title to the suit property has been declared and confirmed by this Court in the second appeal and when the agreement of sale projected by the obstructors does not enable the obstructors to derive any valid claim of title to the suit property as such and if at all, the obstructors are entitled to seek any remedy based on the same, the obstructors should persue their remedy available to them in C. S. No. 324 of 2011, which, according to them, had been levied for seeking the relief of specific performance based on the sale agreement. When the sale agreement by itself does not create any interest in the suit property in favour of the obstructors, in such view of the matter, the Courts below are found to be wholly justified in not acceding to the case projected by the obstructors and rightly held that the petitioners/ plaintiffs are entitled to obtain the delivery of possession of the suit property, after seeking the removal of the obstruction.

The determination of the Courts below and the order of the Courts below in directing the removal of the obstruction caused by the obstructors by entertaining the application preferred by the petitioners/plaintiffs do not warrant any interference and the reasonings and conclusions of the Courts below with reference to the same, being based on the proper appreciation of the materials available on record both factual wise and legal wise and not suffering from any perversity or irrationality in any manner, in such view of the matter, they do not warrant any interference, and accordingly, the second appeal is found to be devoid of merits.

The learned counsel for the obstructors, in support of his contention, relied upon the decisions reported in (2015) I Supreme Court Cases 379 (Sameer Singh and another Vs. Abdul Rab and others) and (2007) 13 Supreme Court Cases 421 (Niyamat Ali Molla Vs. Sonargon Housing Cooperative Society Ltd. And others).

The principles of law outlined in the abovesaid decisions are taken into consideration and followed as applicable to the case at hand.

For the reasons aforestated, no substantial question of law is found to be involved in the second appeal. Resultantly, the second appeal is dismissed. Consequently, connected miscellaneous petition, if any, is closed.