VARADAN Vs. M SUBBULAKSHMI AMMAL

JUDGEMENT

(1.) THE civil miscellaneous second appeal is against the decree dated 19-8-1989 in A.S. 721 of 1988 on the file of the 6th Addl. Judge, City Civil Court, Madras, confirming the order dated 21-1-1986 in E.P. No. 2026 of 1983 in O.S. 1633 of 1968 on the file of the 10th Asst. Judge, City Civil Court, Madras, THE C M.S.A. is filed by the obstructors 5 and 6 against the decree holder-respondent, who secured the decree for possession as early as 31-10-1971. It arises out of E.P. 2026 of 1983 filed by the respondent decree holder for removal of obstruction by the obstructors 1 to 8. Both the courts below have concurrently held that the obstruction is unlawful and ordered removal. In the C.M.S.A. filed by the obstructors 5 and 6, a new ground, which was not raised in the courts below has been raised, viz, that the petitioners cannot be evicted from the suit property without obtaining prior permission as required in S. 29 of the Tamil Nadu Slum (Improvements and Clearance) Act 1971. This has been raised on the ground that T.S. 48C0/2, a part of which is the suit property was declared as a slum area under S 3 of the said Act as per the the relevant notification.

(2.) AS per the relevant notificaiton, the suit property comes within the ?slum area? under the said Act and S. 29(1)(b) runs as follows:? ?Notwithstanding anything contained in any other law for the time being in force, no person shall except with the previous permission in writing of the prescribed authority (b) where any decree or order is obtained in any suit or proceeding instituted before such commencement for the eviction of an occupant from any building or land in such area, execute such decree or order.? Further, the learned counsel for the appellants very much relied on the decision in Parthasarathi v. Kuppammal 1 . The learned Judges who decided the said case observed:? ?A conjoint reading of all the sub-sections of S. 29 of the Act would clearly indicate that the Legislature intended to impose a restriction on the owner of the land either executing the decree obtained earlier or instituting, a suit for eviction against an occupant of a slum area, by imposing a precondition that the owner of the slum area should getthe permission of the requisite authority either for filing the suit for eviction or for executing the decree that had already been obtained. S. 29 in express terms, prohibits the owner of the slum area from instituting a suit for eviction or executing a decree obtained earlier against an occupant without such permission.? The learned Judges further concluded by saying as follows? ??So long as there is no permission obtained in writing by the respondent, execution proceedings cannot be maintained in view of the prohibition contained in S. 29.? In the case referred to in the above said decision the short facts are as follows:? The suits for eviction were filed on 7-9-1971, by the respondent therein on the ground that the petitioners were unauthorised occupants of the vacant land. Jn those suits, the defence of the petitioners was that they have prescribed title over the land by adverse possession. They set up independent title in themselves over the same. But, the said defence was rejected by all the three courts, including the High Court in t he second appeal, which resulted in the decree for possession in favour of the respondent therein. In the meanwhile, under the provisions of the above said Slum Areas Act, a declaration was made under S. 3 of the said Act, declaring the suit property therein as slum area. Thereafter the respondent filed in 1977, execution petition for taking possession from the petitioners therein. Then, the petitioners took up for the first time, a new defence, viz, that the decree was not executable on the ground of S. 29 of the above said Act, the written permission mentioned therein having not been obtained by the respondent.