S V NAGESWARAN Vs. R T GURUMURTHY

JUDGEMENT

(1.) This revision is directed against the order of the learned X Assistant Judge, City Civil Court, Chennai passed in E.P.No.2324 of 2009 in O.S.No.2395 of 1966 dated 21.06.2010.

(2.) The revision petitioner herein is the judgment debtor in E.P.No.2324 of 2009. The respondents who are the decree holders in O.S.No.2395 of 1966 sought for delivery of possession of the suit property as described in the execution petition as per the final decree passed in O.S.No.2395 of 1966. The petitioners are the legal representatives of the deceased first plaintiff and they are pursuing the decree after the death of the first plaintiff and subsequently, the second plaintiff. The judgment debtor is the legal representative of the deceased judgment debtor namely Pattu Sasthri, who is now in the occupation of the suit property. The request of the petitioners/decree holders is, for delivery of possession of schedule mentioned property of an extent of 2000 sq.ft as detailed in Ex.C2, Commissioner's sketch under Order 21 Rule 35 CPC. However, the respondent had raised the objections in the form of counter affidavit that the first plaintiff R.V.Thirunavukarasu died and therefore, his wife T.Lakshmi Ammal, R.T.Gurumoorthy and T.M.Thilagavathy were brought on record as legal representatives of the said Thirunavukarasu. During 2006, the said Lakshmi Ammal passed away and however, her legal representatives were not brought on record within the stipulated period of 90 days. Therefore, nothing survives in the E.P., without amending the cause title, since it is more than three years. The appeal itself would be deemed to have been abated and therefore, the petitioners are not entitled to file the E.P.

(3.) It is also contended that the revision petitioner/ respondents is in possession and enjoyment of the property for over 50 years and the petitioners never stepped into the property. Three years ago, the respondent demolished the old building after obtaining sanctioned plan for demolition and re-construction from the Corporation and accordingly, he constructed 3 storeyed building in the suit property. The petitioners who were well aware of the construction kept quiet without taking any action to stop the construction. The petitioners are estopped from claiming over the property since their right in the property has been extinguished. Therefore, the respondent prayed for the dismissal of the E.P.