N.BABU Vs. S.SHANMUGAM

JUDGEMENT

(1.) Second defendant is the revision petitioner. He filed the revision to strike off the plaint in O.S. No. 97 of 2012 filed by the first respondent herein for injunction. It is submitted by the learned counsel for the revision petitioner that the subject matter of the suit in O.S. No. 97 of 2012 originally belonged to the third defendant/third respondent herein. The third defendant/third respondent herein agreed to sell the property to the revision petitioner, who is the second defendant in O.S. No. 97 of 2012 and also executed the sale deed on 2.1.1993 after receiving consideration and did not turn up for registration. Therefore, the revision petitioner applied to the Registrar for compulsory registration and after enquiry, the sale deed was directed to be registered by order dated 1.12.1994. Thus, the revision petitioner became the owner of the property and he also filed the suit in O.S. No. 522 of 1996 on the file of the District Munsif, Villupuram against the third defendant herein and one T. Paramasivam, the father of the second respondent herein/first defendant in O.S. No. 97 of 2012. The suit was for declaration of title of the revision petitioner herein and also for recovery of possession of the suit property from by the third defendant/third respondent herein and the father of the second respondent herein. That suit was decreed on 14.8.2000 and the father of the second respondent herein filed an appeal in A.S. No. 101 of 2000 on the file of the District Court, Villupuram and the appeal was dismissed and the second appeal filed by the father of the second respondent herein in S.A. No. 262 of 2002 was also dismissed on 16.4.2008. It is further submitted that the first respondent herein claims to have obtained a registered lease deed dated 25.9.2009 from the first defendant viz., the second respondent herein and under that lease deed, claimed to have been inducted into possession of the suit property by the second respondent herein and on that basis, the first respondent herein filed the suit for injunction and admittedly, the second respondent herein, who is the lessor of the first respondent/plaintiff had no title to the property and the second appeal was dismissed on 16.4.2008 and therefore, on the date of the alleged lease deed, the lessor viz., the second respondent herein had no title and therefore, the possession of the first respondent/plaintiff is unlawful and he can be termed only as a trespasser and the revision petitioner, being the original owner, is entitled to claim possession and the suit for injunction will not lie against the true owner and therefore, the suit is liable to be struck off. He also relied upon the following judgments:

(2.) Mr. V. Lakshminarayanan, learned counsel appearing for the first respondent submitted that under the registered lease deed dated 25.9.2009, the first respondent was inducted into possession of the property by the second respondent who is the first defendant in O.S. No. 97 of 2012 and admittedly, the first defendant is the owner of the property and therefore, the possession of the first respondent cannot be termed to be unlawful and the first respondent cannot be characterized as a trespasser and even assuming that the revision petitioner has got a decree, he has to execute the same in the manner known to law and the possession of the first respondent cannot be disturbed by the revision petitioner without recourse to law and for that purpose, the injunction suit was filed and the prayer in the injunction suit is also to the effect that the first respondent is entitled to be in possession of the property till he is evicted under due process of law and therefore, till the revision petitioner evicts the first respondent by executing the decree in O.S. No. 522 of 1996, the first respondent is entitled to be in possession of the property and he cannot be prevented from filing the suit for injunction. He also submitted that the revision petitioner is entitled to delivery of symbolic possession as provided under Order 21 Rule 36 of the Code of Civil Procedure and the rights of the parties are to be worked out under Order 21 Rules 95 to 102 of the Code of Civil Procedure. Further, the first respondent is in possession of the property under a lease deed executed by the second respondent herein who is the first defendant in the suit and therefore, he is entitled to protect his possession until he is evicted by due process of law and therefore, the plaint cannot be struck off by invoking the provisions of Article 227 of the Constitution of India and when alternative remedy is available to the revision petitioner by filing an application to execute the decree passed in O.S. No. 522 of 1996, without resorting to such procedure, he cannot file a revision to strike off the plaint and relied upon the following judgments:

(3.) It is admitted by both the parties that the suit property originally belonged to one Velu Udayar, the third respondent herein and the revision petitioner got a sale deed from the said Velu Udayar on 2.1.1993 and the document was compulsorily registered on 1.12.1994 and prior to that, the father of the second respondent herein viz., T. Paramasivam purchased the property from Velu Udayar, the third respondent herein under a registered sale deed dated 24.2.1993 and put the father of the second respondent viz., T. Paramasivam into possession of property and from that date, the said T. Paramasivam was in possession of the property. It is also admitted in the plaint that the revision petitioner filed a suit in O.S. No. 522 of 1996 against the third respondent/third defendant and also against the father of the second respondent herein for declaration of title and for recovery of possession and that suit was decreed and in appeal in A.S. No. 101 of 2000 and in S.A. No. 262 of 2002, the judgment and decree was confirmed. Therefore, the title of the revision petitioner over the suit property has been confirmed by this Court in S.A. No. 262 of 2002 by judgment dated 16.4.2008. Therefore, from 16.4.2008, the father of the second respondent herein had no title over the property and it is further admitted in the plaint that the father of the second respondent viz., T. Paramasivam executed a Will dated 1.10.2008 in favour of the second respondent herein bequeathing the suit property in his favour and after the death of his father, under the said Will, the second respondent became the absolute owner of the property and he executed a lease deed in favour of the first respondent/plaintiff on 25.9.2009.