Allowed

N.Karuppanna Gounder(Died) v. Kulanthaivel Gounder (Died)

Madras HC25 Mar 2021CRP(MD)/1369/2011

Case brief

AI extract

What is this about?

The Madurai Bench set aside an unsustainable ex-parte decree and condoned a 10-year delay in a property suit between cousin parties, directing the trial court to re-measure land extents to ensure substantive justice.

What did the court decide?

Ex-parte decree set aside; delay condoned; trial court directed to appoint commissioner for fresh survey and measure land extents within 6 months.

N.Karuppanna Gounder(Died) Vs Kulanthaivel Gounder… — Execution and Attachment | Madras HC (2021)

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CRP(MD)Nos.1369 of 2011 and 1886 of 2009

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 25.03.2021 CORAM

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THE HONOURABLE MR. JUSTICE R.SUBRAMANIAN CRP(MD)Nos.1369 of 2011 and 1886 of 2009 and M.P(MD)No.1 of 2009

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In both revisions:

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1.N.Karuppanna Gounder

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2.K.Karuppana Gounder

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3.Palaniyammal

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4.Valliyammal @ Valliyathal

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(RR3 and 4 are brought on record as lrs of the deceased first petitioner Vide court order dated 13.11.2019 made in CMP(MD)Nos.10525 and 10519 of 2019)

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... Petitioners/Petitioners/Defendants 4 & 5 Vs.

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Kulanthaivel Gounder (Died)

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1.K.Karuppana Gounder

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2.K.Palanisamy Gounder

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.. Respondents/Respondents/Plaintiffs

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PRAYER in C.R.P(MD)No.1369 of 2011:- Civil Revision Petition is filed under Section 115 of the Civil Procedure Code to set aside the fair and decreetal order made in I.A.No.351 of 2010 in O.S.No.877 of 1998 by the District Munsif Court, Oddanchatram dated 10.06.2011.

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PRAYER in C.R.P(MD)No.1886 of 2009:- Civil Revision Petition is filed under Section 115 of the Civil Procedure Code to set aside the fair and decreetal order made in E.A.No.134 of 2008 in E.P.No.80 of 2008 by the District Munsif Court, Oddanchatheram dated 18.09.2009.

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In CRP(MD)No.1369 of 2011:

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For Petitioners : Mr.M.P.Senthil for Mr.D.Venkatesh For R2 : Mr.V.Janaki Ramulu For R1 : Mr.Sades Kumar

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In CRP(MD)No.1886 of 2009:

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For Petitioners : Mr.M.P.Senthil for Mr.D.Venkatesh For R1 : Mr.Sades Kumar For R2 : Mr.S.R.Suresh Kumar

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COMMON ORDER

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These two revisions stem out of the same proceedings. While C.R.P(MD)No.1369 of 2011 is filed by the defendants 4 and 5 in O.S.No.877 of 1998 challenging an order of the trial court refusing https://hcservices.ecourts.gov.in/hcservices/

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CRP(MD)Nos.1369 of 2011 and 1886 of 2009

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to condone the delay of 3961 days in seeking to set aside the exparte decree made in the said suit. CRP(MD)No.1886 of 2009 is filed against an order of the Executing Court refusing to set aside the ex-parte order made in E.P.No.46 of 2007. As disposal of C.R.P(MD) No.1369 of 2011 would substantially affect the result of C.R.P(MD) No.1886 of 2009, CRP(MD)No.1369 of 2011 is taken up first.

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The suit in O.S.No.877 of 1998 was filed by the respondents herein and their father one Kulanthaivel Gounder seeking the relief of permanent injunction and recovery of possession of 94 cents of land said to have been encroached upon. The parties are the descendants of common ancestors. They had entered into a partition deed in respect of the suit properties even in the year 1978, under which an extent of 4 acres 7 cents situate in the southern most extremity of Survey No.334 now sub divided as Survey No.334/1C was allotted to the plaintiffs. The middle portion, which has been subdivided as Survey No.334/1C, measuring about 3 acres and 45 cents was allotted to the petitioners herein. Northern most portion measuring about 3 acres and 57 cents was allotted to the first defendant in the suit,namely Palaniappa Gounder. Complaining that the other sharers, namely, the defendants had encroached upon 94 cents in the southern most portion, the plaintiffs came up with the above suit.

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The suit was resisted by the defendants on various grounds. The first defendant died pending suit and his legal heirs were brought on record and the plaint was subsequently amended. Two Commissioners were appointed by the trial court and they filed their report and plan. The suit was pending for nearly 10 years till 09.02.1998. It appears that on 09.02.1998, the counsel for the defendants reported no instructions. P.W.1 was examined and Exs.A1 to A.4 were marked. The Commissioners' report and plan were marked as Exs.C1 and C.2. The learned trial Judge decreed the suit exparte. The judgment of the learned trial Judge reads as follows:

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jPh ;g ;g [iu

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gpuhJ gpshdpy; lgps;a{2 vd;W fhl;lg;gl;Ls;s bghJf; fpzw;wpypUe;J thjpf;F cz;lhd 1/3 mjhtJ 6 ehspy; 2 ehs; jz;zPh; ,iwg;gija[k; mjd; cgfuzq;fisa[k; thjp mDgtpg;gij gpujpthjpfnsh mth; tifahl;fnsh vt;tpj jilnah ,ilQ;rnyh bra;af;Tlhbjd;W epue;ju jila[j;jut[ tHq;ff; nfhhpa[k; gpuhJ gpshdpy; lgps;a{2 vd;W fhl;lg;gl;Ls;s bghJf; fpzw;wpypUe;J thjpapd; brhj;jpw;F bry;Yk; 9 tpy;iy tlf;F> bjw;F ghijia gpujpthjpfnsh mth; tif Ml;fnsh vt;tpj jilnah ,ilQ;rnyh bra;af;Tlhbjd;W epue;ju cWj;Jf; fl;lis tHq;ff; nfhhpa[k;> gpuhJ gpshdpy; rptg;g[ epwkpl;l (94 brd;l;) ghfj;ij thjpapd;

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CRP(MD)Nos.1369 of 2011 and 1886 of 2009

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RthjPdj;jpw;F bfhLf;Fk;goa[k;> jtwpdhy; ePjpkd;wk; Kyk; RthjPdk; bfhLf;Fk;go nfhhpa[k; kw;Wk; ,t;tHf;fpy; bryt[ bjhif nfhhpa[k; thjpahy; ,t;tHf;F jhf;fy; bra;ag;gl;Ls;sJ.

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,d;W ,e;j tHf;F ,Wjpahff; jPh;f;fg;gLtjw;fhf te;jpUg;gjpy; gpujpthjp jug;g[ tHf;fwpQh; jfty; VJk; ,y;iy vd mwptpj;jhh;. gpujpthjpfs; miHf;fg;gl;L M$uhfhjjhy; mth;fs; xUjiyg;gLj;jg;gl;ldh;. th.rh.1 tprhhpf;fg;gl;lhh.; nfl;fg;gl;l ghpfhuk;epUgpf;fg;gl;lJ. Vdnt tHf;Fiug;go jPh;g;ghiz bryt[j; bjhifa[ld; tHq;fg;gl;lJ.

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The said ex-parte decree was not put in execution immediately. The Execution Petition came to be filed on 05.02.2007 that is nearly 9 years after ex-parte decree came to be passed. Even in the execution petition, an ex-parte order came to be passed by the trial court on 13.08.2008. The petitioners herein, who claim under the fourth defendant in the suit, were shown to have refused to receive the notice and hence, set ex-parte.

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Immediately thereafter, the petitioners filed the instant application in I.A.No.351 of 2010 on 09.01.2009 seeking condonation of delay of 3961 days in filing the petition to set aside the exparte decree. Sum and substance of the reasons assigned by the petitioners for the delay is that there was a panchayat in order to solve the dispute between the cousins and a compromise deed titled as 'rk;kj gj;jpuk'; was also entered into on 10.12.1998, wherein the parties had recognized the fact that the first defendant and his heirs were in possession of excess land, while the petitioners, who claim under the fourth defendant, are in possession of the land allotted to them under the partition namely, 3 acres and 45 cents. It was also specifically agreed between the parties that they may be allowed to continue to enjoy the land as found to be in possession as on ground and all cases will have to be withdrawn. Believing that the plaintiffs having signed the compromise will not re-agitate the matter by filing execution petition, they did not choose to have the ex-parte decree set aside. The fact that the execution petition itself was filed after 9 years was also projected as the cause for the delay. This application was resisted by the plaintiffs contending that the delay is huge and the reasons would not amount to sufficient cause in order to enable the court to condone such inordinate delay.

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The trial court, upon consideration of the facts and circumstances and the evidence that was let in, concluded that the petitioners herein namely, the fourth defendant and his legal representatives have not made out a cause for condonation of delay. On the said finding, the learned trial Judge dismissed the https://hcservices.ecourts.gov.in/hcservices/ application. Aggrieved, the present revision was filed at the

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CRP(MD)Nos.1369 of 2011 and 1886 of 2009

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instance of the defendants 4 and 5.

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The fourth defendant, who was the first petitioner in the revision, died pending the revision and his legal heirs were brought on record as the petitioners 3 and 4. The first plaintiff also died and his legal heirs were shown as the respondents 1 and 2.

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I have heard Mr.M.P.Senthil, learned counsel for the petitioners and Mr.Sades Kumar, learned counsel appearing for the first respondent in both petitions.

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Considering the fact that the dispute is between the cousins, I had also required the parties to appear before me in order to resolve the dispute. Unfortunately, neither the defendants 1 to 3 or the legal heirs of the first defendant have been made as parties to these revisions and I find that a resolution of the dispute in their absence is not possible.

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A perusal of the Commissioner's report and plan, which have been marked as Exs.C.1 and C.2, would show that the plaintiffs are actually not in enjoyment of 4 acres and 7 cents that was allotted to them in the partition of the year 1978. At the same time, it is also seen that the petitioners, who claim under the fourth defendant, are also not in possession of the entire extent of 94 cents, which is now being claimed as an encroachment.

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As per the Commissioner's report, the plaintiffs, who were entitled to 4 acres and 7 cents, are in possession of 3 acres and 13 cents. Therefore, there is a short fall of 94 cents. The plaintiffs are allotted southern extremity. The fourth defendant and his hears, who are the petitioners in the revisions, are found to be in possession of 3 acres 77 cents whereas they were allotted only 3 acres 45 cents under the partition. Therefore, there is an excess of 32 cents in the middle portion that was allotted to the fourth defendant and his heirs. As far as the northern potion which is allotted to the first defendant and his family is concerned, the Commissioner found that they are in possession of nearly 4 acres 24 cents, whereas the extent allotted to them under the partition was only 3 acres 57 cents i.e an excess of 67 cents. In the compromise deed dated 10.12.1998, while acknowledging the fact that the petitioners are only in possession of an extent of 3 acres 45 cents that was allotted to them and the first defendant Palaniappa Gounder is in possession of about 3 acres 91 cents, the plaintiffs are shown to be in possession of 3 acres 75 cents instead 4 acres 7 cents allotted to them. The parties agreed to maintain status quo and enjoy the lands in 'as is where is' condition. The second and the third plaintiffs namely, the respondents 1 and 2, who were present in the court, would now state that 'rk;kj gj;jpuk'; or the compromise deed is not binding on them and they are not willing to abide by it. I am not entering into the dispute as to whether the 'rk;kj gj;jpuk'; is https://hcservices.ecourts.gov.in/hcservices/

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CRP(MD)Nos.1369 of 2011 and 1886 of 2009

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valid or not. But at the same time, it is clear that the ex-parte decree would work irreparable hardship to the fourth defendant and his heirs even though they are found to be in possession of a lessor extent than what has been allotted to them and what has been now decreed. The plaint plan, which has been marked as Ex.A.2, shows that the encroached portion is shown to be lying on the immediate north of the property allotted to the plaintiff and south of the property allotted to the fourth defendant and his heirs. Therefore, the entire 94 cents of land, for which a decree for possession, has been granted will have to be carved out of the property, which is allotted to the fourth defendant's heirs if the decree is executed. Whereas even as per the Commissioner's report and plan, it is the first defendant's heirs who are in possession of 67 cents in excess of what has been allotted to them. I therefore, find that the mechanical ex-parte decree that has been passed by the trial court is unsustainable.

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No doubt, I am not hearing the appeal against the exparte decree but at the same time, this Court and the Hon'ble Supreme court have repeatedly pointed out that even while passing the ex-parte decree, the court must advert to the evidence and give some reasons for granting ex-parte decree. I have extracted the exparte judgment that was passed on 09.02.1998 in the case on hand. Needless to state that the judgment does not qualify to be the judgment within Order 41 Rule 31 of the Code of Civil Procedure.

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This Court in Meenakshisundaram Textiles, Bangalore – 52 Vs. Valliammal Textiles, Tiruppur reported in 2011(3) CTC 168, has held as follows:

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''In order to bring a decree within the provisions of Section 2(2) the following essential elements are necessary. There must be a Suit, as such a decree could be given only in relation to a Suit. There must be an adjudication of the dispute. Adjudication means the judicial determination of the matter in dispute. Adjudication, in other words, also would mean that the court must have applied its mind ot the facts of the case to resolve the matter in dispute. Such adjudication must be about any or all the matters in controversy in the Suit. After adjudication, there must be a conclusive determination of the rights of the parties. Finally, in order to pass a decree, the court must formally express its decision in the manner provided by law, In this regard, the provisions of Section 33 of Civil Procedure ode are also relevant to be kept in mind. That provision states that the decree shall follow on the basis of the judgment pronounced''.

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CRP(MD)Nos.1369 of 2011 and 1886 of 2009

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In view of the above, I find that this ex-parte judgment and decree dated 09.02.1998 does not confirm the requirement of law. On the question of delay, the execution of the compromise deed is not disputed. No doubt, it is now contended that it is not binding. The said document, which is an unregistered instrument, varies the terms of a registered partition deed. Therefore, the same may not be a valid instrument. At the same time, in order to explain the delay, the petitioners can very much rely upon the instrument and claim that they did not seek to set aside the ex-parte decree in time because of the intervening circumstances that is execution of the 'rk;kj gj;jpuk'; dated 10.12.1998. The fact that the execution petition was filed after 9 years is also a fact to be borne in mind while deciding the question of delay.

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The Commissioner's report had pointed out that the first defendant and his heirs are in possession of atleast 67 cents in excess of what was allotted to them and if this decree that is to be put in execution, they will go scot free and the petitioners, who are the fourth defendant and his heirs, will loose a larger extent of land even though they are in possession of lesser extent than what was allotted to them. I am therefore, of the opinion that this is a fit case where the delay has to be condoned as I feel that the decree as it is if executed will result in substantial injustice to one of the parties.

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The Hon'ble Supreme Court has time and again pointed out that a party, opposing the delay, has no vested right in legalising injustice. Since I am prima facie of the view that this decree if put in execution would result in injustice, I find that the best course would be to condone the delay and direct the trial court to give an opportunity to the defendants and thereafter decide the issues relating to encroachment that has been raised in the suit. Therefore, the fair and decreetal order made in I.A.No.351 of 2010 in O.S.No.877 of 1998 by the District Munsif Court, Oddanchatram dated 10.06.2011 is set aside. The delay of 3961 days in seeking to set aside the ex-parte decree is condoned. Accordingly, CRP(MD) No.1369 of 2011 is allowed.

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At this juncture, the learned counsel for the first respondent, after taking instruction from the respondents, who are present in court, though vehemently opposed the delay, would magnanimously agree that the ex-parte decree has to be set aside with a direction to the trial court to dispose of the suit within a time frame. Taking note of the above submission of the learned counsel, I exercise my power under Article 227 of the Constitution of India and set aside the ex-parte decree passed in O.S.No.877 of 1998 dated 09.02.1998.

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Since the ex-parte decree is set aside, execution petition has to be closed for the present. Hence, C.R.P(MD)No.1886 https://hcservices.ecourts.gov.in/hcservices/

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CRP(MD)Nos.1369 of 2011 and 1886 of 2009

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of 2009 is allowed and the order made in E.A.No.134 of 2008 in E.P.No.80 of 2008 by the District Munsif Court, Oddanchatheram dated 18.09.2009, is set aside. Execution Petition in E.P.No.46 of 2007 is closed for the present. The trial court is directed to restore the suit to file and appoint a Commissioner, who will take help of the District Surveyor and measure the entire extent of land in Survey No.334/1 and demarcate the extent of land in possession of each of the parties with reference to the partition deed of the year 1978. The Commissioner will also point out the excess extent or deficit extent in the entitlement of each of the parties as per the partition deed dated 22.06.1978, which has been marked as Ex.A.1 in the suit. Once the said exercise is carried out by the Commissioner, the trial court shall proceed to determine the excess extent or deficit extent in possession of each of the parties. The trial court shall pass a decree thereby ensuring that the parties are put in possession of extent of land that is allotted to them under the partition deed dated 22.06.1998. Even though the prayer is for possession of a particular extent of land situate at a particular place, since the trial court is empowered to do complete justice between the parties, the trial court can mould the relief as above. The trial court shall ensure that the suit is disposed of within a period of 6 months from the date of receipt of a copy of this order. The Registry is directed to return the records and a copy of the order forthwith. Consequently, connected miscellaneous petition is closed.

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Sd/-

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Assistant Registrar(P & A)

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CM To: The District Munsif Court, Oddanchatram

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Copy to

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The Section Officer,V.R.Section,

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Madurai Bench of Madras High Court, Madurai.(2 copies) (To return the records forthwith)

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+2 CC to M/s.D.VENKATESH, Advocate ( SR-13932 & 13934[F] dated 26/03/2021 )

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+1 CC to M/s.S.SADESKUMAR, Advocate ( SR-13934[F] dated 26/03/2021 ) Order in

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CRP(MD)Nos.1369 of 2011 and 1886 of 2009 and M.P(MD)No.1 of 2009 25.03.2021

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NS(CO)

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https://hcservices.ecourts.gov.in/hcservices/ TR(30.03.2021) 7P 7C

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N.Karuppanna Gounder(Died) v. Kulanthaivel Gounder (Died)

Case brief

What is this about?

What did the court decide?

N.Karuppanna Gounder(Died) v. Kulanthaivel Gounder (Died)

Case brief

What is this about?

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