Subsequent application for removal of obstruction whether maintainable.

The properties involved in these proceedings belonged to the family of one Narayanasami Pillai. Respondents 1 and 2 herein are the heirs of Venkatesan Pillai, brother of Narayanasami Pillai. Venkatesan Pillai, filed a suit for partition which was numbered as Affair No.431 of 1962 against Narayanasami. A preliminary decree was passed on 24. 1967. Narayanasami Pillai died on 20.10.1967. But, he had executed a will and registered it on 13. 1966 bequeathing the property to one Balaraman, his grandson. Balaraman was brought on record as the legal representative of Narayanasami Pillai in the final decree proceedings. A final decree was passed on 33. 1977 allotting the properties now in dispute to Venkatesan’s branch. Venkatesan having died in the meanwhile, respondents 1 and 2 herein were brought on record as his legal representatives. Thus, in the final decree, the properties in question have been allotted to respondents 1 and 2.

2. In execution of the decree, respondents 1 and 2 filed E.P.No.141 of 1984 for delivery of possession. It was resisted by the appellants herein and one Kuppusamy Pillai. E.ANo.433 of 1985 was filed for removal of obstruction. On 11. 1988, E.ANo.433 of 1985 was dismissed. The court observed that the obstructors did not appear before court and prove their claim. But, the petition was dismissed as the petitioners’ counsel reported no oral evidence. I am unable to understand the reasoning of the learned Principal Subordinate Judge, Pondicherry, in dismissing E.ANo.433 of 1985 on 11. 1988. But it is clear that there was no adjudication of the claims made by the parties by the court at that time. It was also mentioned in the order that the third obstructor who is the second appellant herein had filed O.S.No.1395 of 1987 on the file of the Principal District Munsif, Pondicherry.

3. The main execution petition was dismissed on 4. 1989. The second appellant who had filed O.S.No.1395 of 1987 on the file of the District Munsif, Pondicherry, for declaration of his title and a consequential injunction obtained an order of interim injunction. Respondents 1 and 2 would appear to have filed a petition for vacating the injunction. It is stated that the said proceeding is still pending.

4. Respondents 1 and 2 filed E.P.No.169 of 1990 for delivery of possession. They filed E.ANo.560 of 1991 for removal of obstruction caused by the appellants herein. The appellants filed a counter statement contending that the execution petition and the application for removal of obstruction were not maintainable. In the counter statement, reference is made not only to O.S.No.1395 of 1987 filed by the second appellant which has since been transferred to the file of the Subordinate Judge and numbered as O.S.No.172 of 1990, but also to anothersuitO.S.No.1171 of 1988 filed by the legal representatives of Kuppusamy Pillai in the Court of Principal District Munsif, Pondicherry. The appellants made reference to the improvements said to have been made by them on the property. In short, the claim of the appellants was that respondents 1 and 2 were not entitled to take delivery of possession as against them. The Additional Subordinate Judge has allowed the application for removal of obtruction by a short order. Aggrieved by the same, the appellants have preferred this appeal.

5. No doubt the grievance of the appellants that the order of the Additional Subordinate Judge does not consider the merits of the claim put forward by them is justified. But, in fact, there are no merits in many of the contentions put forward by the appellants. It is better in this case to separate the claims of the two appellants and deal with them independently.

6. In so far as the first appellant is concerned, she claims to have purchased one item of property from the heirs of Kuppusamy Pillai on 7. 1990 Kuppusamy Pillai had, in turn, purchased it from Balaraman who was the legatee under Narayana-sami Pillai’s will. I have already referred to the fact that a f