BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON: 08.07.2024 DELIVERED ON: 12 .07.2024 CORAM THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR C.M.S.A.(MD).No.32 of 2017 and CMP(MD).No.9748 of 2017 Abdul Kadhar ...Appellant Vs

1.Barakath Begum

2.P.K.Ibrahim

3.P.K.Yusuf

4.A.M.Sulthan

5.Kathija

6.Muhamath ....Respondents Memo dated 19.01.2024 is recorded to the effect that issuance of notice to second respondent is dispensed with, as he was set exparte before the Court below, vide Court order dated

15.03.2024)

PRAYER: The Civil Miscellaneous Second Appeal has been filed under Order 21 Rules 97 & 103 of Civil Procedure Code against the judgment and decree passed in C.M.A.No.8 of 2011 on the file of the Principal Sub Court, Tirunelveli dated 17.03.2017 reversing the fair and decreetal order passed in E.A.No.175 of 2009 in E.P.No.17 of 2009 in O.S.No.1233 of

1986 on the file of the Principal District Munsif Court, Tirunelveli.

For Appellant :Mr.H.Arumugam For R1 : Mr.R.Balakrishnan R2 : Exparte For R3 :Mr.M.P.Senthil For R4 & R6 : No appearance

J U D G E M E N T

The instant second appeal has been filed by a third party to O.S.No.1233 of 1986 on the file of the Principal Subordinate Court, Tirunelveli.

(A) Factual background:

2. The first respondent herein as plaintiff had filed the above said suit for the relief of partition and separate possession of his ½ share in the ground floor of Door Nos.51 and 52 of the suit schedule properties. A preliminary decree came to be passed on 17.08.1992 and a final decree was passed on 02.08.2007. In the final decree proceedings, Shop No.51 was allotted to the share of the plaintiff.

3.Based upon the above said final decree, the decree holder had filed E.P.No.17 of 2009 for taking delivery of the property. While the said Execution Petition was pending, the present appellant had filed E.A.No. 175 of 2009 under Order 21 Rule 97 of C.P.C, raising objection to the delivery of the property on the ground that he is in possession of the Shop in Door No.51 from the year 1976 onwards, having taken the building on lease from the defendants 1 and 2 in the suit.

4.According to the appellant/tenant, his father has taken the lease from the year 1976 and after the death of his father, he is the tenant of the property in dispute from the year 1995 onwards. According to the tenant, he had been regularly paying rent to the first defendant without any default. He had further contended that he is regularly paying licence fee to the municipal corporation for the said shop and he is in settled possession. The tenant had further contended that the plaintiff/decree holder is not entitled to take actual delivery of the property under Order 21 Rule 35 of C.P.C, but he is entitled only for a constructive possession as contemplated under Order 21 Rule 36 of C.P.C. Based upon the said averments, the appellant herein had filed the said application.

5.The decree holder had filed a counter contending that the appellant herein is not in a possession of the Door No.51 of the property and they have also disputed the appellant's father's possession from the year 1976 or the tenant's possession from the year 1995 onwards. According to the decree holder, the appellant was not running a footwear or fancy item business in Door No.51. The decree holder had further contended that the suit was instituted in the year 1986 and after institution of the suit, the parties to the suit are not entitled to encumber or alienate the said schedule properties and if any encumbrance is created it is subject to Section 52 of the Transfer of Property Act.

6.The tenant had examined himself as PW1 and opposite shop owner as PW2 and the brother of the third defendant as PW3 to establish his possession over the suit schedule properties prior to the filing of the suit. The tenant had filed Exhibits P1 to P6. On the side of the decree holder, the husband of the decree holder was examined as RW1.

7.The Executing Court after considering the various judgments filed on the side of