K NATARAJAN Vs. TIRUNELVELI DISTRICT, SIVAGIRI TALUK

JUDGEMENT

(1.) The Petitioner has filed this Civil Revision petition under Section 115 of C.P.C., to set aside the fair and decreetal order passed in E.A.No.52 of 2015 in E.P.No.2 of 2009 in O.S.No.36 of 2002 dated 01.08.2017 on the file of the learned District Munsif Cum Judicial Magistrate, Sivagiri.

(2.) It is the case of the Revision Petitioner that he is a 3rd party to the execution proceedings in E.P.No.2 of 2009. He filed an application in E.A.No.52 of 2015 under Section 47(3)(b) of CPC praying to dismiss the Execution Petition. It is his case that the Petition mentioned property and its Northern side property originally belonged to one Ganesa Thevar and his Wife Ganapathy ammal. The 1st Respondent herein is the son of the above said Ganesa Thevar and Ganapathy ammal. The 1st Respondent had relinquished his right by executing a registered release deed dated 01.05.1978 in favour of his parents. Thereafter the property was leased to the Petitioner herein by K.G.Durai who is also the son of Ganesa Thevar. The sisters of K.G.Durai also released their right over the said property. By virtue of the said release deed the above said Ganesa Thevar's son K.G.Durai became the absolute owner of the Petition mentioned property and he leased the same to the Revision Petitioner for 99 years on 23.06.2005. Thereafter the Petitioner herein is in continuous possession and enjoyment over the same without any interference from anybody and doing his business. While so, the 1st Respondent herein sent advocate notice to the Petitioner stating that the lease deed obtained by the Petitioner from K.G.Durai is not valid. Thereafter the 1st Respondent declared him as Trustee of Pandia Thevar @ Vairamuthusamy and filed a suit in O.S.No.82 of 2009. There is no order passed against the Revision Petitioner in the said suit and the same is pending. However, he filed execution Petition on the strength of the decree obtained in O.S.No.36 of 2002 wherein he has mentioned the entire extent of property in the scheduled of property. The E.P is liable to be dismissed as against 3.3/4 cent on the Southern part of the property mentioned in the E.P Petition in which the Petitioner is having his Welding workshop. Hence the delivery order made in E.P.No.2 of 2002 dated 06.02.2015 is liable to be set aside.

(3.) Resisting the said application, the 1st Respondent herein contented that the property comprised in Punja S.No.1082/2 measuring an extent of 7.41 cents absolutely belongs to the 1st Respondent Trust and the Revision Petitioner has right over the same. He has no right to file the petition as against the private Trust. The petition mentioned property is not belonged to the family of K.G.Durai. Already the right of the 1st Respondent's Trust was declared in A.S.No.48 of 2005. Hence, he prayed to dismiss the application filed under Section 47(3)(b) of CPC by the revision petitioner.