S RAJAN Vs. A SURIYANARAYANAN

JUDGEMENT

(1.) THE unsuccessful applicant in E.A.No.(unnumbered)/2004 filed under Order 21 Rule 97 and Section 151 of the Code of Civil Procedure, 1908 in E.P.No.319 of 2000 in O.S.No.288 of 1981 on the file of the trial Court (Ist Additional Subordinate Judge, Madurai) preferred an appeal on the file of the learned Principal District Judge, Madurai as A.S.No.174 of 2004 challenging the order of the trial Court rejecting the said claim petition. THE learned appellate Court (Principal District Court, Madurai) after hearing, dismissed the above said appeal A.S.No.174 of 2004 by its Judgment dated 23.11.2005. Hence the present civil miscellaneous second appeal has been brought forth before this Court.

(2.) THE brief facts leading to the filing of the Civil Miscellaneous Second Appeal can be briefly stated thus: A.Suriyanarayanan, the present first respondent in this civil miscellaneous second appeal filed a suit O.S.No.288 of 1981 on the file of the trial Court (first Additional Subordinate Judge, Madurai) for partition and mesne profits in respect of the suit properties, which include the petition properties described in the schedule annexed to the above said unnumbered E.A. One Chinnathambia Pillai, who was arrayed as the sixth defendant in the above said suit, resisted the plaintiff's claim setting up title in himself on the strength of an alleged oral purchase. On the other hand, the plaintiff-A.Suriyanarayanan contended that the said Chinnathambia Pillai was only a tenant in respect of the suit properties. After full trial, the learned Subordinate Judge rejected the claim of title made by Chinnathambia Pillai, decreed the suit and passed a preliminary decree directing the division of the suit properties into three equal shares and allotment of one such share to the plaintiff by Judgment dated 26.11.1983. As against the said Judgment and preliminary decree, the above said Chinnathambia Pillai filed an appeal A.S.No.1483 of 1988 on the file of the High Court, Madras. During the pendency of the said appeal, the sole appellant Chinnathambia Pillai died. Subsequent to his death, S.Rajan, the present appellant got a sale deed from Kalimuthu, son of the said Chinnathambia Pillai on 05.02.1999. THEreafter, the sixth respondent herein filed applications in A.S.No.1483 of 1988, to condone the delay in filing set- aside the abatement petition, to set aside the abatement and to bring him on record as legal representative of the deceased Chinnathambia Pillai. THE said applications were numbered as C.M.P.Nos.8589 to 8591 of 1995 respectively. By a common order dated 25.08.1999, all the three petitions were dismissed and consequently the appeal itself was also dismissed as abated. Meanwhile, the trial Court passed a final decree on 17.02.1989 for partition. Based on the final decree dated 17.02.1989, A.Suriyanarayanan, the first respondent in the present appeal, levied execution for getting possession of the properties alleged to his share in the final decree by filing E.P.No.319 of 2000 on the file of the trial Court. In the execution proceedings, the appellant in the present C.M.S.A. resisted execution by filing a claim petition under Order 21 Rule 97 and Section 151 of the Code of Civil Procedure, 1908, praying for adjudication of his claim and consequential dismissal of E.P. THE trial Court, after hearing, rejected the unnumbered claim petition by its order dated 30.09.2004. THE same was challenged before the Principal District Court, Madurai in A.S.No.174 of 2004. THE learned Principal District Judge, Madurai, after hearing, dismissed the said appeal by its Judgment dated 23.11.2005. Hence the present Civil Miscellaneous Second Appeal before this Court.

(3.) ADVANCING arguments on behalf of the appellant Mr.M.Valli Nayagam, learned counsel would contend that the Courts below have committed an error in holding the appellant's claim petition under Order 21 Rule 97 liable to be rejected even without numbering; that the Courts below have erred in not considering an order passed by a competent civil Court (Second Additional Subordinate Judge, Madurai) in the counter claim made in O.S.No.434 of 1999 by the appellant herein and that the Courts below should have upheld the claim made by the appellant and dismissed E.P. as against the appellant so far as the properties described in the schedule attached to the claim petition are concerned and that the appellant's claim of adverse possession could not have been rejected at the threshold itself.