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2024 Supreme(Online)(Mad) 78048
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Mrs.Justice S.Srimathy, J
RAMADAOSS (DIED) 1.R.VIJALAK – Appellant
Versus
T.P.Kathiresan (died) T.BHUV – Respondent
C.R.P.(MD)No.1897 of 2023
Mr.A.Sivaji, Mr.S.Parthasarathy
A tenant cannot resist eviction based on the purchase of undivided shares without seeking partition; execution of a decree for eviction remains valid.
Headnote:(A) Code of Civil Procedure, 1908 - Section 47 - Legal Services Authorities Act, 1987 - Execution of decree - Tenant's claim of possession based on purchase of undivided shares from coparceners rejected; tenant must seek partition for defined rights - Tenant's application under Section 47 deemed an abuse of process of law. (Paras 30, 31, 19)
(B) Decree Execution - A decree for eviction can be executed against a tenant who has not obtained a partition of the property - The tenant cannot claim possession of the entire property without a partition. (Paras 15, 16)
Facts of the case:
The tenant filed a suit for injunction against the landlord, leading to a compromise and decree for eviction. The tenant later purchased shares from coparceners but failed to vacate the property, prompting the landlord to file an execution petition. (Paras 3, 5)
Findings of Court:
The tenant's claim to hold the entire property based on undivided shares is invalid; the tenant must seek partition to establish rights. The execution proceedings are to continue as per the original decree. (Paras 30, 19)
Issues: Whether the tenant can resist eviction based on the purchase of undivided shares without seeking partition. (Paras 15, 16)
Ratio Decidendi: The court held that a tenant who has suffered a decree for eviction cannot resist execution based on undivided shares; the remedy lies in seeking partition. (Paras 30, 31)
Result: Civil revision petition dismissed with costs.
ORDER
The present civil revision petition is filed by the plaintiff / tenant against the order, dated 24.07.2023, passed in E.P.No.26 of 2010 in O.S.No.10 of 2007 on the file of the District Munsif Court, Sivakasi.
2. The suit in O.S.No.10 of 2007 was filed by the tenant Mr.Ramadass against the landlord Mr.T.P.Kathiresan. Since both the plaintiff and the defendant died, their legal heirs are impleaded as parties. For the sake of convenience, the parties are referred as landlord Mr.T.P.Kathiresan and tenant Mr.Ramadass. When legal heirs were impleaded the parties are referred as legal heirs of landlord and legal heirs of tenant.
3. The present litigation have chequered history. The facts are that the landlord Mr.T.P.Kathiresan had let the suit property admeasuring 7 cents for lease to the tenant Mr.Ramadass to use the place as parking place for the college buses by erecting iron shed. Interestingly the tenant Mr.Ramadass had filed the suit in O.S.No.10 of 2007 inter alia praying for permanent injunction restraining the landlord Mr.T.P.Kathiresan from interfering in the peaceful possession and enjoyment of the suit property by the tenant Mr.Ramadass. Pending suit the parties had filed compromise memo in I.A.No.153 of 2010 in O.S.No.10 of 2007, wherein it was agreed by the tenant Mr.Ramadass that he would remove the iron shed before 30.06.2010 and hand over the vacant possession of the suit property, failing which the landlord Mr.T.P.Kathiresan is entitled to evict the tenant Mr.Ramadass by filing execution petition. Thereafter, the said compromise was referred to Lok Adalat, wherein the settlement memo was recorded and an award dated 31.03.2010 was passed in Lok Adalat and the same is recorded in B Diary as “the suit is disposed of in accordance with terms of settlement entered into between the parties at Lok Adalat and decree is ordered to be drafted in accordance with the award passed by the Lok Adalat”. Thereafter decree dated 31.04.2010 was passed. Since the tenant/plaintiff had not vacated the premises as per compromise terms, the landlord/defendant had filed execution petition in E.P.No.26 of 2010.
4. Meanwhile, two sons of landlord Mr.T.P.Kathiresan namely T.P.K.Saravanan and K.Senthilnathan had filed O.S.No.1 of 2008 on the file of District Court, Srivilliputtur for partition of the schedule of properties claiming 1/5th shares each and to allot 2/5th shares to them and the remaining 3/5th shares to Mr.T.P.Kathiresan and his other sons namely K.Sankareswarn and Ramachandra Ganesh. In the suit, the tenant Mr.R.Ramadass and his brother Mr.Solaisamy were arrayed as the defendants. Pending suit the said K.Sankareswarn and Ramachandra Ganesh had entered into sale agreement to sell their share in the suit property to the tenant Mr.R.Ramadass. A preliminary decree dated 06.01.2011 was passed by the District Court, Srivilliputtur in O.S.No.1 of 2008 on 06.01.2011. Meanwhile, tenant Mr.R. Ramdass had purchased 2/5th shares from the said K.Sankareswarn and Ramachandra Ganesh through two separate sale deeds dated 17.03.2011.
5. Then to execute the Judgment and Decree passed in O.S.No.10 of 2007, the landlord Mr.T.P.Kathiresan had filed E.P.No.26 of 2010 to evict the tenant Mr.R.Ramadass. In the light of the purchase of 2/5th shares from the said K.Sankareswarn and Ramachandra Ganesh, the tenant Mr.R.Ramadass had filed E.A.No.27 of 2011 under Section 47 of the Code of Civil Procedure, 1908 to declare the decree passed in O.S.No.10 of 2007 on 31.03.2010 as inexecutable. Further the tenant Mr.R.Ramadass had also filed O.S.No.142 of 2010 on the file of Principal District Court, Virudhunagar District at Srivilliputtur to declare the award passed by the Lok Adalat on 31.03.2010 as null and void. During the interregnum, daughters of the landlord Mr.T.P.Kathiresan had filed O.S.No.38 of 2012 before the Additional District Court, Srivilliputtur claiming 1/10th share each and the O.S.No. 38 of 2012 is still pending.
6. In the meanwhile the E.A.No.2
