Madrasdated High Court · 2025

S.A.No.504 of 2025The petitioners in E.A.No.182 of 2017 in E.P.No.58 of 2000 in O.S.No.1 of 1983 have preferred this Second Appeal against the judgment passed in A.S.No.9 of 2024 dated 13.02.2025 by the II-Additional Subordinate Court, Cuddalore.2. The parties are indicated herein as per their litigative status and ranking before the Execution Court.3. Originally, the Execution Officer of Sri Padalaeeswarar Devasthanam, Cuddalore laid down a suit against S.Dhanam, S.R.Subramanian, S.Dhandapani, S.Babu and S.Jayakumar for removal of superstructure put up on the suit property and for delivery of vacant possession. According to the plaintiff-Temple Devesthanam, the property shown as ABCDEFG in the plan attached to the plaint, belongs to the plaintiff-Temple Devesthanam. The property EFGD also belongs to the plaintiff-Temple Devesthanam. It was leased to the 1st defendant S.Dhanam under Registered Deed dated 16.10.1958, which measures 10 feet east-west and 60 feet north-south. The 1st defendant S.Dhanam trespassed into the suit property, which is shown as ABCDEFG and she put up construction. 2/14 https://www.mhc.tn.gov.in/judis S.A.No.504 of 2025The plaintiff objected to the same and filed a suit in O.S.No.1436 of 1969 on the file of the District Munsif Court, Cuddalore for declaration of title and for permanent injunction restraining the 1st defendant from putting up any construction upon the suit property. In spite of the said suit, the 1st defendant put up construction illegally as no proper sanction was obtained from the plaintiff-Temple Devesthanam and from Cuddalore Municipality. The suit was decreed in favour of the plaintiff-Temple Devesthanam. 3.1. When the plaintiff-Temple Devesthanam filed E.P.No.83 of 1976, it was dismissed on the ground that delivery cannot be ordered as the suit was only filed for declaration of title and for permanent injunction. Hence, this suit was filed by the plaintiff-Temple Devesthanam for recovery of possession of property to an extent of 31624 sq.ft in T.S.No.1752 Acre 1.00. The 1st defendant could be in possession of the property leased to her to an extent of 10 feet east-west 60 feet north-south. The 1st defendant high-handedly in collusion with the other defendants encroached upon the suit property. 3.2. The defendants are the trespassers and they are illegal occupants of the suit property. The construction put up by them are to be removed and the defendants are liable to deliver the vacant possession to the plaintiff-3/14 https://www.mhc.tn.gov.in/judis S.A.No.504 of 2025Temple Devesthanam. The suit property is in a busy locality. The plaintiff restricts his claim to a sum of Rs.100/- per month by way of damages and claimed for three years amounting to Rs.3,600/-. Since the defendants have not removed superstructure put up on the suit property, the suit is laid for relief of delivery of vacant possession after removing the superstructure.4. Per contra, the 1st defendant, S.Dhanam would inter alia contend that it is false to state that the plaintiff raised any objection to the construction made by the defendants. The 1st defendant is the tenant of entire property and it is wrong to state that she is tenant, only for the extent of 10 feet east-west 60 feet north-south. The suit is barred under Order II Rule 2 CPC.5. It was counteracted by the plaintiff-Temple Devesthanam by way of filing reply statement to the effect that even during the pendency of OS.No.1436 of 1969, the 1st defendant tried to trespass and put up construction and at a later point of time it was protested. After the dismissal of the said suit, the defendants completed construction. Therefore, this suit for recovery of possession and for mandatory injunction was filed. The suit is not barred under Order II Rule 2 CPC and at no point of time, the plaintiff remained silent. In spite of the protest made by the plaintiff, the 1st defendant 4/14 https://www.mhc.tn.gov.in/judis S.A.No.504 of 2025put up construction.6. The Trial Court upon consideration of the oral and documentary evidence and after hearing arguments advanced by either sides, the suit was decreed for the relives to vacate the property, for delivery of possession of the suit property free from obstruction from the defendants after removing the superstructure and for past profits, it was quantified at Rs.1,800/- and the plaintiff was entitled to future profits of Rs.50/- per month till the delivery of the suit property. The suit in O.S.No.1 of 1983 was decreed on 30.07.1984. 7. Based on the above said judgment and decree, the plaintiff-Temple Devesthanam took out an Execution Petition in E.P.No.58 of 2000. During the pendency of the said Execution Petition, the present appellants Dhanam, W/o. late Babu and her daughter Sharmila filed an application under Section 47 of Code of Civil Procedure, 1908, against the plaintiff-Temple Devesthanam to declare that the decree passed in O.S.No.1 of 1983 is inexecutable and E.P.No.58 of 2000 is not maintainable on the ground that the description of the property is not given properly and the property is not identical. Hence the decree is inexecutable.8. On behalf of the plaintiff / decree holder, Sri Padalaeeswarar 5/14 https://www.mhc.tn.gov.in/judis S.A.No.504 of 2025Temple Devesthanam, it was objected by stating that the petitioners were not parties to the suit. Against the judgment and decree passed in O.S.No.1 of 1983, the defendants preferred appeal in A.S.No.183 of 1984 and it was dismissed on 10.02.1988. After the dismissal of A.S.No.183 of 1984, the 5th defendant Jayakumar filed a suit for permanent injunction against the plaintiff – Temple Devesthanam in respect of the property mentioned in the Execution Petition in O.S.No.581 of 1984 before the District Munsif Court, Cuddalore. Upon application by the plaintiff Jayakumar in I.A.No.402 of 1995 in O.S.No.581 of 1994, an Advocate Commissioner was appointed to inspect and measure the property with the help of Surveyor and to file a report with plan. The report and the plan marked by the Advocate Commissioner were marked as Ex.C1 to Ex.C4. The suit was decreed in favour of plaintiff Jayakumar and against which, the plaintiff-Temple Devesthanam preferred an Appeal in A.S.No.17 of 1999, and the Appeal was allowed on 12.05.1999 by setting aside the judgment and decree of the Trial Court. 9. The unsuccessful plaintiff, Jayakumar filed Second Appeal before this Court in S.A.No.1863 of 1999 and it was dismissed by this Court on 25.06.2001. The plaintiff in O.S.No.591 of 1994 has clearly mentioned the area under his possession. The 1st defendant S.Dhanam, who is the mother-6/14 https://www.mhc.tn.gov.in/judis S.A.No.504 of 2025in-law of the present 1st appellant paid the rent arrears upto 09.04.1999 for the property leased out to her. On the request of the original tenant, the rent agreement was transferred in the name of Babu in respect of 10 feet east-west 60 feet north-south. The suit leased out property to an extent of 10 feet east-west and 60 feet north-south situate to the east of the suit property. Excluding the said 600 sq.ft, the suit in O.S.No.1 of 1983 was laid by the Temple Devesthanam and it was shown as ABCDEFG. The petitioners namely Dhanam wife of Babu and Sharmila daughter of Babu are trespassers and they are in enjoyment of the Temple property for a long period.10. The Executing Court allowed E.A.No.182 of 2017 filed by the present appellants by an order dated 21.12.2023. 11. Against which, appeal was preferred by the plaintiff-Temple Devesthanam in A.S.No.9 of 2024. The II-Additional Subordinate Court, Cuddalore allowed the appeal by stating that the Executing Court has authority to address issues such as change in survey numbers and change in boundaries during the execution of decree. Against the said judgment dated 13.02.2025 passed in A.S.No.9 of 2024 in E.A.No.182 of 2017 in E.P.No.58 of 2000 in O.S.No.1 of 1983 by the II-Additional Subordinate 7/14 https://www.mhc.tn.gov.in/judis S.A.No.504 of 2025Court, Cuddalore, the respondents Tmt.Dhanam W/o late Babu and Sharmila D/o late Babu have preferred this appeal. 12. For easy reference, the case details have been tabulated hereunder:-S.No.Case No.Relief sough forDetails of judgment1.O.S.No.1436 of 1969 (on the file of District Munsif Court, Cuddalore)For declaration of title and for permanent injunctionAllowed on 30.07.19842.A.S.No.183 of 1984 filed by the defendants before the District Munsif Court, Cuddalore-Dismissed on 10.02.19883.E.P.No.58 of 2000-Dismissed on 21.12.20234.E.A.No.182 of 2017 filed by the petitioners under Section 47 of CPC on 08.03.2017 on the file of Principal District Munsif Court, Cuddalore-Allowed on 21.02.20235. A.S.No.9 of 2024 in E.A.No.182 of 2017, filed by the Plaintiff--Allowed on 13.02.20258/14 https://www.mhc.tn.gov.in/judis S.A.No.504 of 2025S.No.Case No.Relief sough forDetails of judgmentTemple Devesthanam on the file of II-Additional Subordinate Court, Cuddalore13. The learned counsel for the appellants would strenuously argue that the property details are not described in the plaint properly. Therefore, the decree passed in O.S.No.1 of 1983 is not executable. It is relevant to refer to the evidence of the present first appellant, who has given evidence in E.A.No.182 of 2017. It is her evidence that (P.W1 – B.Dhanam wife of Babu):-“....,e;j ,lj;ij nfhtpy; epuh;thfk; thliff;F tplntz;Lk; vd;W vdJ fztu; nfl;Ls;shuh vd;why; vdJ khkpahUk; vdJ fztUk; nfl;Ls;sdu;/ ehDk; me;j ,lj;ij thliff;F tplntz;Lk; vd;W nfhapy; epu;thfj;jplk; nfl;Ls;nsd;/ 600 rJuof;F fpHf;nf cs;s ,lj;ij bghWj;J ,Jehs;tiu v';fSf;F ve;j thlifa[k; xg;ge;jKk; Vw;gLj;jgltpy;iy vd;whYk; ehd; ve;j thlifa[k; brYj;jtpy;iy vd;whYk; ehd; Mf;fpukpg;ghsuhfjhd; mDgtpf;fpnwd; vd;whYk; rupjhd;/”it is her further evidence that:9/14 https://www.mhc.tn.gov.in/judis S.A.No.504 of 2025ehd; jw;nghJ jhf;fy; bra;Js;s kDtpy; 600 rJuof;F“ fpHf;nf cs;s ,lj;ij v';fSf;F thliff;F bfhLf;f ntz;Lk; vd;Wjhd; kD jhf;fy; bra;Js;nsd; vd;why; rupjhd;/ nkw;go ,lj;ij vdf;F thliff;F bfhLf;f ntz;Lk; vd;gij jtpu ntW Vjk; Ml;nrgida[k; ,y;iy/”14. It is relevant to extract the schedule of property mentioned in the plaint in the year 1983:-“In Cuddalore Joint II Sub-Registry, Tirupapuliyur in Damarakaran Thottam dry land North of Lawrence road, in north of lawrence road, and D.G.site leased to first defendant; east of E.F.site leased to first defendant; west of passage leading Devesthanam dry land, and south of Devasthanam dry land. Municipal ward No.5, Block 45, T.S.No.1752 out of Ac.1, 31624 square feet, excluding the area 10 feet east to west and 60 feet north to south leased to the first defendant as shown in the plan ABCDEFG.15. The issue raised in the execution application by the present appellants is that the measurements in the given suit schedule property are not proper and therefore, decree is inexecutable. This Court is reminded of the fact that the present appellant's mother-in-law got lease to an extent of 10 feet east-west x 60 feet north-south from Temple Devesthanam in the 10/14 https://www.mhc.tn.gov.in/judis S.A.No.504 of 2025year 1958 (dated 16.10.1958 lease deed) in respect of the suit property, excluding 600 sq.feet as mentioned supra. Sri Padalaeeswarar Devasthanam initiated its legal battle in the year 1969 by filing suit in O.S.No.1436 of 1969. Thereafter, the present suit in O.S.No.1 of 1983 filed for recovery of possession and it was decreed in favour of the plaintiff-Temple Devesthanam. Of course, identification of the suit property is an important aspect in execution of decree relating to immovable property. It is imperative that the plaint shall disclose identity of the property without any ambiguity. It is relevant to note that the schedule details found in the plaint was never controverted by the defendants. Therefore, after some 41 years, this issue is raised that too by the person who has not taken the property for lease. With regard to the suit property, even the appellant B.Dhanam's mother-in-law, S.Dhanam Ammal W/o. S.R.Subramanian, was held to be a trespasser when the suit was decreed in favour of the Temple and it has reached its finality long before. 16. The present appellants are the defendants in O.S.No.1 of 1983 do not have any locus standi to raise this issue. Originally, in the year 1968, (16.10.1968), the 1st defendant in the suit namely Dhanam Ammal W/o. S.R.Subramanian has taken out lease to an extent of 10 feet x 60 feet from the plaintiff-Temple Devesthanam, which is the property situate to the east of the suit schedule property. 11/14 https://www.mhc.tn.gov.in/judis S.A.No.504 of 202517. The appellants have neither privity of contract nor privity of estate so far as the suit property is concerned. Therefore, the present appellants are bound by the decree. It is also relevant to note that the judgment was passed in the year 1984 and since then the plaintiff-Temple Devesthanam has been suffering to enjoy the fruits of the decree and not in a position to recover the possession of the suit property. Technicality should not be come in the way of dispensation of justice. It is the duty of the Court to ensure that the decree is executed effectively. The Executing Court may take suitable steps such as verifying the records of the Revenue Department or to direct the judgment debtor to effect necessary corrections to facilitate the process of execution. Order XXI of CPC empowers the Execution Court to resolve minor obstacles in the process of execution. Law is well settled that minor discrepancies such as revenue updates in respect of survey numbers, boundaries shall not cause obstacle for the purpose of execution, as long as the identity of the property remains the same. In certain cases, if necessary, the Execution Court may come into necessary enquiries in order to take corrective measures to ensure that the decree is executed in its true spirit.18. The appellant who is a third party to the proceedings is precluded from raising issue about the executability of decree. In such a view of the 12/14 https://www.mhc.tn.gov.in/judis S.A.No.504 of 2025matter, no substantial questions of law arise for consideration. This Court does not find any perversity or infirmity in the judgment of the First Appellate Court. This Court also does not find any good reasons to upset the finding of the well considered judgment of the learned First Appellate Court.19. With these observations and discussions, this Second Appeal stands dismissed. Sequel to this, the judgment dated 13.02.2025 passed in A.S.No.9 of 2024 by II-Additional Subordinate Court, Cuddalore, is confirmed. There is no order as to costs. Consequently, connected Civil Miscellaneous Petition stands closed. 31.07.2025Index:Yes/NoSpeaking/Non-speaking ordermacR. KALAIMATHI, J.macCopy to 1.The II Additional Sub Judge, Cuddalore2.The Principal District Munsif Court, Cuddalore. 3. Sri Padalaeeswarar Devesthanam, Thirupapuliyur, Represented by its Executive Officer,13/14 https://www.mhc.tn.gov.in/judis S.A.No.504 of 2025 Cuddalore -2 S.A.No.504 of 2025and C.M.P.No.16867 of 2025 31.07.202514/14