The application under Order 21 Rule 58 C.P.C is not maintainable if no attachment of the property was ordered, and the burden of proof lies on the claimant to establish their title over the property.

1. This revision arises out of the order passed by the District Munsif Cum Rent Controller at Tirupur in E.P.No.22 of 2008 in R.C.O.P No.8 of 2005.

2. The first respondent had initiated eviction proceedings against the second respondent in RCOP No.8 of 2005 on the grounds of wilful default and for demolition and reconstruction. Due to non-appearance of the second respondent, the Rent Controller passed an order of eviction on 16.06.2006. The first respondent laid an execution petition in E.P.No.22 of 2008 for recovery of possession. In the execution petition, the petitioners filed E.A.No.107 of 2008 under Order 21 Rule 58 C.P.C contending that the tenanted premises originally belong to the first petitioner's ancestors namely Sheik Mohammed and others. He died long back leaving the first petitioner's mother Fathima Bibi and the petitioner's father Gows Bai as his legal heirs. Since then, they are in possession and enjoyment of the property and the second respondent Mrs. Mohamed Bibi is their distant relative and she was not in possession of the premises.

3. Resisting the application, the first respondent filed his counter stating that the petition property was purchased by one Velammal in the year 1964 from the respondent's father and her aunty namely Kair Mohideen Saheb, Ameena Bibi and Azmed Bibi, that the second respondent has filed a vexatious suit in O.S.No.20 of 1981 alleging that sale deed was not binding upon her and the signature was obtained by fraud, however the suit was dismissed and the same was confirmed by the Appellate Court also, that the first respondent became the absolute owner of the petition property by virtue of sale deed dated 31.03.1994 executed by his father Deivasigamani and others. On the above grounds, he prayed for dismissal of the application.

4. The second petitioner Mrs. Noorjahan examined herself as PW1 and also produced documents. PW1 in her evidence has admitted that she was not aware on whose name the house tax receipts stand, that whereabouts of her father Mohammed Gows is not known, that she has not given any complaint nor given advertisement about missing of her father, that she was not aware of the property details, viz. Plot Number, T.S. Number, and the extent of the property, etc. She has further deposed that she was not aware of the payment of water tax and she has fairly admitted that she has not produced any documents of title standing in the name of her predecessors.

5. PW1 has further admitted in her evidence that her neighbour Swaminathan had informed her about the notice in the petition, about 7 to 8 years ago and she also met her counsel in this regard, that she was not aware of Nachimuthu Gounder, Vellamal and Deivasigamani and she also was not aware of the suit filed by the said Vellamal before Sub Court, Tirupur in O.S.No.20 of 1981 against her and her mother and the settlement reached in the suit. The learned District Munsif, Tirupur dismissed the application and ordered delivery of possession. Challenging the order, the present revision is filed.

6. Mr. V. Raghavachari, learned counsel for the petitioners submitted that the order of the Rent Controller is manifestly erroneous, illegal and without jurisdiction, that the first respondent has not at all approached the Court with clean hand since the second respondent herein is insane and she is not actually residing in the petition mentioned property; that the petitioners are actually residing in the petition premises and therefore the court below ought to have allowed the claim petition filed by the petitioners in E.A.No.107 of 2008 instead of that, the executing court, while dismissing the application had ordered delivery of possession in E.P.No.22 of 2008, without considering the evidence of PW1 and various exhibits marked in the claim petition and therefore the order of delivery is liable to be set aside in limini. It is further contended that the court below ought not to have ordered delivery of possession based on t