JUBEDABAI Vs. LAKSHMI AMMAL

JUDGEMENT

(1.) THE properties involved in these proceedings belonged to the family of one Narayana-sami Pillai. Respondents 1 and 2 herein are the heirs of Venkatesan Pillai, brother of Narayanasami Pillai. Venkatesan Pillai, filed a suit for partition which was numbered as Affair No.431 of 1962 against Narayanasami. A preliminary decree was passed on 28.4.1967. Narayanasami Pillai died on 20.10.1967. But, he had executed a will and registered it on 11.3.1966 bequeathing the property to one Balaraman, his grandson. Balaraman was brought on record as the legal representative of Narayanasami Pillai in the final decree proceedings. A final decree was passed on 31.3.1977 allotting the properties now in dispute to Venkatesan's branch. Venkatesan having died in the meanwhile, respondents 1 and 2 herein were brought on record as his legal representatives. Thus, in the final decree, the properties in question have been allotted to respondents 1 and 2.

(2.) IN execution of the decree, respondents 1 and 2 filed E.P.No.141 of 1984 for delivery of possession. It was resisted by the appellants herein and one Kuppusamy Pillai. E.ANo.433 of 1985 was filed for removal of obstruction. On 3.11.1988, E.ANo.433 of 1985 was dismissed. The court observed that the obstructors did not appear before court and prove their claim. But, the petition was dismissed as the petitioners" counsel reported no oral evidence. I am unable to understand the reasoning of the learned Principal Subordinate Judge, Pondicherry, in dismissing E.ANo.433 of 1985 on 3.11.1988. But it is clear that there was no adjudication of the claims made by the parties by the court at that time. It was also mentioned in the order that the third obstructor who is the second appellant herein had filed O.S.No.1395 of 1987 on the file of the Principal District Munsif, Pondicherry.

(3.) RESPONDENTS 1 and 2 filed E.P.No.169 of 1990 for delivery of possession. They filed E.ANo.560 of 1991 for removal of obstruction caused by the appellants herein. The appellants filed a counter statement contending that the execution petition and the application for removal of obstruction were not maintainable. In the counter statement, reference is made not only to O.S.No.1395 of 1987 filed by the second appellant which has since been transferred to the file of the Subordinate Judge and numbered as O.S.No.172 of 1990, but also to anothersuitO.S.No.1171 of 1988 filed by the legal representatives of Kuppusamy Pillai in the Court of Principal District Munsif, Pondicherry. The appellants made reference to the improvements said to have been made by them on the property. In short, the claim of the appellants was that respondents 1 and 2 were not entitled to take delivery of possession as against them. The Additional Subordinate Judge has allowed the application for removal of obtruction by a short order. Aggrieved by the same, the appellants have preferred this appeal.