KALAVATHY Vs. SARADHA

JUDGEMENT

(1.) THE plaintiff -decree holder is the appellant herein. The Second Appeal is filed against the judgment and decree dated 6.4.2000 made in A.S.No.19 of 1999 on the file of the Additional District Court, Pondicherry at Karaikal reversing the order dated 28.7.1999 made in E.A.No.427 of 1998 in E.P.No.20 of 1997 in O.S.No.215 of 1995 on the file of the Principal District Munsif Court, Karaikal.

(2.) THE appellant herein filed O.S.No.215 of 1995 against the respondents 2 and 3 herein as the defendants 1 and 2 and the suit was after due contest by the second defendant, decreed as prayed for by directing the defendants to surrender vacant possession of the suit property to the plaintiff after dismantling the superstructure and to pay arrears of rent and future menses profit at the rate of Rs.5/ - per month till date of actual delivery of the suit property. Aggrieved against the same, the second defendant preferred appeal along with an application to condone the delay in filing the appeal. Section 5 of the Limitation Act petition was dismissed and hence, the decree of the trial court has become final and binding on the parties to the suit. Thereafter, the plaintiff -decree holder filed EP.No.20/96 against the judgment debtors for delivery of possession and the Executing Court after hearing both sides, ordered delivery of possession after break opening the lock with police protection. When the court officer sought to execute the delivery order, the same is obstructed to by the first respondent herein who is none else than the mother of the second respondent/second defendant -Judgment Debtor and the same compelled the plaintiff to file E.A.No.427/98 under Order 21 rule 97 r/w Section 151 C.P.C for removal of obstruction caused by the first respondent/obstructor.

(3.) THE application was seriously contested by the obstructor on the ground that the obstructor purchased the superstructure on 6.4.85 from the first defendant/second respondent herein for Rs.80/ - and the ownership of the superstructure and the right to be in possession of the suit property was transferred in favour of the obstructor by Ex.B1 document dated 6.4.85 executed by the first defendant and thereafter, the obstructor has been along with her family members including her son/ the second defendant living in the same by making improvement of the superstructure. It is her case that the vacant site upon which superstructure is situated, belongs to Sri Kaliamman Koil, but no rent was claimed for the vacant site on behalf of the temple and the decree holder is a stranger in respect of the suit property and is in no way related to the suit property and neither the vendor nor the obstructor had paid any rent at any point of time for the property and the second defendant who is her first son is living with her as one of her family members without any independent right, title and interest over the property and the decree is passed only against the defendants 1 and 2 and not against the obstructor and she is not liable to be removed from the suit property.