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Judgment
K.K. Sasidharan, J.—Introductory:
The claim made by the defendants in O.S.No.398 of 1999 that they are in unauthorised occupation of a portion of the land shown in the Schedule to the suit was negatived by the Trial Court and the decree was upheld by the Hon''ble Supreme Court. The first respondent has now come with a similar contention of encroachment and unauthorised occupation in the related Execution Petition presumably at the instance of the judgment debtors.
Brief Facts:
The petitioner filed a suit in O.S.No.398 of 1999 before the learned District Munsif, Tuticorin. The suit was filed against Thiru. Rajkumar and two others. It was a comprehensive suit for declaration, injunction, recovery of possession and damages for use and occupation.
The Trial Court, after contest, passed a judgment and decree on 26 August, 2003. The decree was reversed by the Sub Court, Tuticorin, in A.S.No.94 of 2003. The decree dated 18 January, 2005 was challenged in Second Appeal before this Court. This Court allowed S.A.(MD)No.833 of 2005, by judgment and decree dated 09 July, 2010. The unsuccessful respondents in S.A.(MD)No.833 of 2005 filed Special Leave Petition challenging the judgment and decree dated 09 July, 2010. The Special Leave Petition was dismissed by the Supreme Court, by judgment dated 05 January, 2012.
The petitioner filed E.P.No.24 of 2011 before the learned Principal District Munsif, Tuticorin, to execute the decree in O.S.No.398 of 1999. Before the Executing Court, the first respondent filed an application in E.A.No.102 of 2012 invoking Section 47 r/w Order 21 Rule 58 of Code of Civil Procedure.
According to the petitioner, the attempt of the first respondent is to re-agitate the entire issues raised earlier by the defendants in O.S.No.398 of 1999 and as such, it should be treated as a re-litigation. The petitioner, therefore, wanted this Court to reject the execution application as abuse of process of law.
I have heard the learned counsel for respective parties.
Analysis:
The petitioner obtained a decree in O.S.No.398 of 1999. The decree passed by the learned Principal District Munsif, Tuticorin, dated 26 August, 2003 was the subject matter in A.S.No.94 of 2003.
The first Appellate Court found that the petitioner has claimed an area of 5400 square feet. However, the Advocate Commissioner appointed by the Court found that the suit property is having 6160 square feet. The learned Subordinate Judge, Tuticorin allowed the first appeal and dismissed the suit.
The petitioner filed a Second Appeal before this Court. This Court recorded a clear finding that the respondents in the Second Appeal were claiming that the suit property is a poramboke land and they are in unauthorised occupation. This Court accepted the contention raised by the petitioner and restored the decree passed by the Trial Court.
The decree dated 09 July, 2010, in S.A.(MD)No.833 of 2005 was upheld by the Supreme Court in S.L.P.(Civil)No.6851 of 2011.
The first respondent is now claiming that he is in unauthorised occupation of a portion of the land, which is part and parcel of the decree obtained by the petitioner. According to the first respondent, he is in possession of Government land having an area of 540 square feet and is running a second hand car business. It is his contention that the Government alone is entitled to evict him from the property shown as third schedule to the execution application filed by him.
The execution petition filed by the petitioner contains a schedule. The schedule corresponds to the decree in O.S.No.398 of 1999. The petitioner claimed an area of 5400 square feet only. The schedule to the execution petition tallies with the decree schedule. The first respondent now carved out a third schedule and he is claiming right in respect of the suit property as an encroacher.
The first respondent is not making a claim on the basis of a document. Even according to the first respondent, he is in unauthorised occupation of Government land. There is no question of considering the claim made by the first respondent in respect of a portion of land in the execution petition filed by the petitioner to execute the decree in O.S.No.398 of 1999. The background facts clearly shows that the first respondent is making an attempt to re-agitate the entire matter, at the instance of the defendants in O.S.No.398 of 1999. It is nothing but a proxy litigation. The judgment debtors in O.S.No.398 of 1999 are behind the curtain.
The suit in question was filed in 1999. The petitioner obtained a decree way back on 26 August, 2003 and it was, ultimately, confirmed by the Supreme Court, by judgment dated 05 January, 2012. The petitioner should be permitted to enjoy the fruits of the decree. The Claim Petition filed by the first respondent on the ground that he is in unauthorised occupation of a portion of the land covered by the Execution Petition is devoid of merit. Such mischievous application should be axed at the threshold.
Disposition:
In the result, the Claim Petition in E.A.No.102 of 2012 is struck off from the file. The Executing Court is directed to execute the decree in O.S.No.398 of 1999, as expeditiously as possible and in any case, on or before 31 July, 2015.
The Civil Revision Petition is allowed as indicated above. No costs. Consequently, the connected miscellaneous petition is closed.