A.K.BALAKRISHNA PILLAI Vs. N.JANAKIRAMAN

JUDGEMENT

(1.) This Second Appeal is filed challenging the judgment and decree in A.S.No.131 of 2014, which reversed the order passed in E.A.No.4943 of 2006 in E.P.No.1848 of 2003 in O.S.No.2888 of 1973.

(2.) One A.K.Balakrishna Pillai filed a suit for partition and separate possession of the suit properties in O.S.No.2888 of 1973 against A.C.Kannan Pillai and others. The case in the partition suit, in brief, is that A.K.Balakrishna Pillai is the son of A.C.Kannan Pillai, first defendant and brother of A.K.Vasudeva Pillai, second defendant. They constituted undivided joint Hindu family. First defendant was allotted properties through a partition deed dtd. 21/5/1940. The properties allotted in the partition were enjoyed jointly by the joint family members and by the joint efforts and out of joint family nucleus, 'B' schedule properties in the suit were purchased. Whole 'A' schedule properties were allotted in the partition dtd. 21/5/1940 and 'B' schedule properties were purchased from the income derived from the joint family properties and the joint efforts made by the joint family members. As a joint family member, plaintiff is entitled for 1/3 share and thus, he filed a suit for partition. That suit was dismissed. Against the dismissal, A.K.Balakrishna Pillai filed appeal in A.S.No.44 of 1982. In appeal, this court found appellant A.K.Balakrishna Pillai was entitled to 7/18 share in respect of items 5 to 8 of the plaint 'B' schedule properties. It appears that there is no further proceedings against the judgment in A.S.No.44 of 1982 and it has become final. A.K.Balakrishna Pillai filed final decree petition for enforcing the preliminary decree. The final decree was passed on 21/8/2003. In the final decree, parties were allotted respective shares as per Commissioner's report. To take possession of the property allotted in the final decree, A.K.Balakrishna Pillai filed Execution Petition in E.P.No.1848 of 2003. Bailiff visited the property to deliver possession. Respondent and others said to have obstructed taking delivery of possession. Therefore, A.K.Balakrishna Pillai filed E.A.No.4943 of 2006, under Order 21 Rule 97 CPC for the removal of obstructions created by obstructors. This petition was allowed by learned X Assistant Judge, City Civil Court, Chennai, on 6/3/2014. Against that order, one of the obstructors/purchaser pendente lite/first respondent filed appeal in A.S.No.131 of 2014. First appellate Court allowed the appeal and therefore, this Second Appeal by the legal heirs of A.K.Balakrishna Pillai.

(3.) Learned counsel for the appellants submitted that except first respondent, other obstructors had delivered the property in their possession. First respondent is alone continued to obstruct the delivery of property. First respondent had purchased the properties from the persons, who had no right to sell the property. He is a pendente lite purchaser. First respondent's mother is one of the defendants in the suit and in the final decree proceedings. Knowing fully well that there are litigations pending, first respondent purchased the properties. The sale deeds in his favour on the basis of the settlement deed executed by A.C.Kannan Pillai are not valid for the reason that it was held in A.S.No.44 of 1982 that the settlement deed executed by A.C.Kannan Pillai is not legal. Therefore, vendors of first respondent had no right to sell the properties on the basis of the settlement deed executed by A.C.Kannan Pillai and thus, the sale in favour of the first respondent is not valid. Moreover, first respondent claims the portion in excess of the properties sold to him. In the final decree proceedings, properties had been allotted as per the preliminary decree to the parties to the proceedings. Contrary to the final decree, first respondent cannot claim any share in the properties. Therefore, the obstructions created by him is illegal and is liable to be removed. The executing Court rightly allowed the petition. However, the first appellate Court, without properly appreciating the factual background and legal position, wrongly allowed the appeal. Therefore, the Second Appeal. In support of his submission, he relied on the judgment reported in (2010) 14 SCC 370 (T.G.Ashok Kumar.vs. Govindammal and another) for the proposition that pendente lite purchaser's right is subject to the right of his owner.