K SIVASUBRAMANIAM Vs. LEIGH BAZAAR MERCHANTS ASSOCIATION LTD

JUDGEMENT

(1.) THIS Revision Petition is directed against the Order of delivery of possession made in E. P. No. 341/1993 in O. S. No. 4/1970, by the Sub Court, Salem. For convenience, parties are referred to in their original rank in O. S. No. 4/1970.

(2.) THE case had a chequered career of several rounds of litigation. Respondent/plaintiff Association is pitted against the Superintendent of Police [now retired], relating to the site measuring 35' x 15' in Leigh Bazaar, Salem which is one of the main commercial area in Salem.

(3.) FACTUAL background and various proceedings in nutshell are as follows :-1]. In the property measuring 35' x 15' in Leigh Bazaar, late Karupanna Gounder/d-1 had put up superstructure and running a Beeda Stall and tea stall, paying rent for the vacant land. The Plaintiff Association filed suit O. S. No. 4/1970 for removal of superstructure and to hand over vacant possession. The first Defendant Karupanna Gounder died on 07. 05. 1977. Other Defendants viz. , his wife, the Petitioner and daughter Sathyavathi were impleaded as Defendants. A compromise was effected between the parties on 23. 02. 1983 and a Compromise Decree was passed incorporating the various terms in the Compromise, setting out time frame for performance of those clauses. 2]. As per the terms of the Compromise, Defendants are to surrender the western side of the suit property to an extent of 13' x 15' before 30. 04. 1983 after removal of the superstructure. As per clause 4, Respondent should construct shop in the vacant site and let it for rent as fixed in the compromise Decree and hand over the other property to the Defendant on or before 31. 10. 1983. Alleging that after construction the Plaintiff has not handed over the property, Defendants have filed O. S. No. 531/1984 for damages. The Plaintiff Association has resisted that suit interalia finding that after construction shop was handed over to the possession of the Defendants, suit O. S. No. 531/1984 was dismissed. Appeal against that Judgment in A. S. No. 135/1989 was also dismissed. C. R. P. No. 4620 and 4622/1987 :-3]. Plaintiff Association filed E. P. No. 81/1986 to direct the Respondents to vacate the remaining portion of the suit property and the E. P. was ordered in favour of the Plaintiff Association. Challenging that Order, Defendants have filed CRP No. 4620 and 4622 of 1987. Making certain observations, both the CRPs were dismissed, however giving liberty to the Plaintiff Association to take appropriate proceedings. 4]. Plaintiff Association has filed E. P. No. 341/1993 to execute Clause 5 and 6 of the Compromise Decree. Parties have adduced elaborate oral and documentary evidence. Before the Executing Court the short question that fell for consideration was whether the Tenant has handed over 13' x 15' to the landlord and whether possession of remaining property is to be delivered to the Plaintiff Association. Holding that the findings in O. S. No. 531/1984 is binding upon the parties, the lower Court held that after construction of the shop, Defendants have taken possession of constructed portion of 13' x 15' and are bound to deliver possession of the remaining property and ordered delivery of the remaining portion.