The plaintiff in O.S.No.1 of 2007, on the file of the Additional District Court/Fast Track Court, Thanjavur, aggrieved by the judgment and decree dated 28.08.2009, dismissing the said O.S.No.1 of 2007, has filed the present appeal.
2.O.S.No.1 of 2007 has been filed for a declaration that the plaintiff is the absolute owner of the suit property and for a consequential injunction restraining the defendants from interfering with the possession of the plaintiff. The suit property is a Plot measuring about 5455 square feet in Ward No.6, T.S.No.2063 in Kumbakonam Town, Thanjavur District. The plaintiff Suseela has claimed title over the suit property and has consequently filed the said suit seeking declaration of her title on the ground that the defendants, who are the President, Secretary and Court Committee Member of the Sourashtra Dharma Paripalana Committee, Kumbakonam, had challenged the right and title of the plaintiff over the suit property.
3.In the plaint, the plaintiff Suseela has claimed that she had purchased the property along with the adjoining property in the same Town Survey Number by a registered sale deed dated 19.07.1976 from Shri.Venugopala Naidu, who was in long and continuous possession. His father Varadaraja Naidu had put up a thatched superstructure and living there with his family. After purchase, the plaintiff along with her husband and children were living in the thatched superstructure. The total extent of the property was 6345 square feet and the thatched superstructure was about 500 square feet. Subsequently, the plaintiff purchased the western portion to an extent of 2115 square feet by means of an unregistered document dated 05.08.1989, for valuable consideration of Rs.25,000/-. The present total available area is 7235 square feet, but as stated above, the suit has been filed with respect to 5455 square feet of land. The plaintiff claimed that by means of the said two transactions she became the absolute owner. The Defendant Committee had filed a suit against one of the vendors of the plaintiff, namely, Govindaraj, who was then a minor at the time of sale. During the pendency of the suit O.S.No.427 of 1987, the said Govindaraj died and the plaintiff's husband Durairaj was impleaded as a legal heir in the suit. He was set exparte without filing written statement and an exparte decree was passed on 23.10.1997 by the learned Principal District Munsif, Kumbakonam. The plaintiff claimed that her husband Durairaj had no right or title over the suit property and consequently had remained exparte. She further claimed that pursuant to the exparte decree an execution petition was also filed and her son Jayasankar was impleaded as party subsequent to the death of her husband in 2004. The plaintiff claimed that the defendant did not implead her and this was a deliberate exercise of fraud. It was further stated that another suit in O.S.No.428 of 1987 was filed against the plaintiff and her husband. The said suit was allowed to be dismissed for default. The plaintiff claimed that she is the absolute owner of the suit property and consequently filed the said suit claiming declaration of title and permanent injunction.
4.In the written statement filed, all the facts were disputed by the defendant. They denied each and every fact stated by the plaintiff. They further stated that the Civil Court had no jurisdiction in view of Sections 109 and 110 of the HR & CE Act. They claimed that the plaintiff had no title since her vendor did not have any title. They further claimed that purchase of property under the unregistered document would not convey any title. They further stated that as against the decree in O.S.No.427 of 1987, Govindaraj had filed an appeal and an interlocutory application in I.A.No.155 of 1988 was also filed. It was stated that the plaintiff as the daughter-in-law of the Govindaraj cannot claim to be his legal heir when her husband was living. It was further claimed that an exparte decree is a valid decree in the eyes of law. It had been further claimed that the plaintiff was bound by the said decree and consequently it was claimed that the suit should be dismissed.
5.A reply statement was filed by the plaintiff stating that O.S.No.428 of 1987 was transferred to the District Munsif Court, Valangaiman and renumbered as O.S.No.101 of 1997 and was allowed to be dismissed for default and consequently that decree had become final.
6.On the basis of the above pleadings, the learned Additional District Judge/Fast Track Judge, Thanjavur had framed the following issues for trial:
(i) Whether the plaintiff had right and title over the suit property?
(ii) Whether the plaintiff is entitled for the relief of declaration and permanent injunction?
(iii) Whether the decree in O.S.No.427 of 1987 on the file of the District Munsif Court, Kumbakonam is binding on the plaintiff?
(iv) Whether, after the dismissal of O.S.No.428 of 1987, the defendant can claim that they have title over the suit property?
(v) To what relief the plaintiff is entitled?
7.The parties went on trial, and during trial, the plaintiff Suseela examined herself as P.W.1 and marked Exs.A1 to A53. On the side of the defendant, D.G.Mohan @ Chandra Mohan, Member of the defendant Trust was examined as D.W.1 and he marked Exs.B1 to B4. The documents marked on the side of the plaintiff include, Revenue Receipts for payment of House Tax for the period from 13.08.1991 to 11.01.2003. These Revenue Receipts were marked as Exs.A3 to A43 individually. The document of title dated 19.07.1976 was marked as Ex.A1 and the receipt given for the purchase of the adjacent land in August, 1989 was marked as Ex.A2. The suit documents with respect to O.S.No.427 of 1987 were marked as Exs.A45 to A47 and the suit documents with respect to O.S.No.428 of 1987 and renumbered as O.S.No.101 of 1995 were marked as Exs.A48 to A50. The notice in E.P.No.112 of 2006 was marked as Ex.A51. Another copy of the title deed, which was earlier marked as Ex.A1, was marked as Ex.A52. The cancellation deed dated 20.02.2015, was marked as Ex.A53. On the side of the defendant, the decree in O.S.No.427 of 1987 dated 25.01.1988 was marked as Ex.B.1, copy of I.A.No.155 of 1988 along with affidavit was marked as Ex.B2, the scheme decree of the defendant committee was marked as Ex.B.3 and the settlement deed was marked as Ex.B.4.
8.On consideration of the oral and documentary evidence, the learned Additional District Judge/Fast Track Judge, Thanjavur had found that as against the exparte decree in O.S.No.427 of 1987, Govindaraj filed appeal and in the appeal he had filed I.A.No.155 of 1988, which was dismissed and it was produced as Ex.B.2 and it was only thereafter that the defendant had filed an Execution Petition with respect to the suit property and therefore, the present suit, seeking declaration of title would not lie in the face of the decree in O.S.No.427 of 1987. The learned Judge also found that the said decree had attained finality with respect to the suit property. It was found that the suit property had been settled in favour of the defendant by Arivanantha Parathesi Swamigal and after such settlement and handing over of possession, revocation of such settlement is not legally valid. The learned Judge further found that the plaintiff had no title and interest over the suit property and consequently dismissed the suit with costs. Challenging the said judgment and decree, the plaintiff has filed the present appeal.
9.Heard Mr.H.Lakshmi Shankar, learned counsel appearing on behalf of Mr.T.V.Sivakumar, learned counsel for the appellant and Mr.M.V.Santharaman, learned counsel for the respondent.
10.Mr.H.Lakshmi Shankar, learned counsel appearing for the appellant had vigourously argued that the conduct of the defendant would be exposed by the fact that they had filed two separate suits in O.S.No.427 of 1987 and O.S.No.428 of 1997 before the District Munsif Court, Kumbakonam. O.S.No.427 of 1987 had been filed as against one Govindaraj and the husband of the plaintiff, namely, Durairaj was subsequently impleaded as a party. An exparte decree was obtained in O.S.No.427 of 1987. The learned counsel stated that both Govindaraj and Durairaj were not necessary or proper parties to the suit. Consequently, it was the reason that they remained exparte. It is the contention of the learned counsel for the appellant that the plaintiff was necessary party in the suit and she was not shown as defendant. Thus, according to the learned counsel, there was an exercise in fraud. The learned counsel stated that since the appellant also was not a party in O.S.No.427 of 1987, the exparte decree obtained therein was not binding on the appellant and consequently, she did not have any obligation to file any petition to set aside the said exparte decree or to file any suit to declare that the decree is null and void. Since she had title to the suit property by way of Ex.A1, she had filed the present suit for declaration of title. The learned counsel further pointed out the house tax receipts for the period from 1991 to 2003, which were marked as Exs.A3 to A43 and stated that the plaintiff was in continuous possession of the suit property. The learned counsel also pointed out that the parallel proceedings in O.S.No.428 of 1987 was deliberately allowed to be dismissed for default by the respondent herein since they knew that they had no title over the property. The learned counsel further stated that the settlement in favour of the defendant committee by Arivanantha Parathesi Swamigal had been cancelled by Ex.A53 and consequently, the defendant cannot claim any title over the suit property. The learned counsel further stated that the plaintiff had valid title over the property as found in Ex.A1 and consequently stated that the judgment has to be interfered by this Court.
11.On the other hand Mr.M.V.Santharaman, learned counsel appearing for the respondent was emphatic in his submission that a valid and legally enforceable decree in O.S.No.427 of 1987 had been obtained by the respondent. They had impleaded necessary parties, namely, Govindaraj and Durairaj. The plaintiff was the daughter-in-law in the family. She was not the proper party. In fact Ex.A.1, through which she claimed her title, is non-est in the eyes of law since the vendor therein had no right to convey the title. The learned counsel further stated that after obtaining a decree and after filing E.P. in E.P.No.112 of 2006 and when orders to take delivery had been obtained from Court, the appellant should have, if so, had any right, title or interest over the suit property, obstructed the execution and thereafter proceedings under Order 21 Rule 97 of C.P.C. should have been lodged and legally proceeded with. The learned counsel pointed out that the provision under Order 21 Rule 97 of C.P.C. prohibits a separate suit being filed. The learned counsel, therefore stated that the suit was not maintainable. The learned counsel stated that the appeal should be dismissed with costs.
12.I have carefully considered the rival submissions.
13.The earliest mention regarding the suit property which is a substantial plot of land measuring 5455 square feet in Ward No.6, T.S.No.2063, Kumbakonam Town, Thanjavur District is found in Ex.B.4 settlement deed dated 20.07.1904. Ex.B.4, dated 20.07.1904 had been executed by Narayana Chetty @ Arivanantha Parathesi. He belonged to the Sourashtra community at Kumbakonam, Thanjavur District. In the circumstances, in the document, which is of the year 1904, he had stated that the property was his ancestral property and he was settling the said property in favour of Sri.Varatharaja Perumal Temple, which was owned by the Sourashtra community people. He further stated that the bequeathee, which was actually the Panchayatars, who are in management of the said temple and that from the revenue received from the said property, they can construct building and carry out repairs and also conduct Guru Poojas and other Dharma activities. He further stated that the Mandabam in the temple should be completed out of the revenue from the lands. He further stated that the entire property had been given to Shri. Varatharaja Perumal temple. He also mentioned the persons who were in management, namely, Chinna Vengidapathy Krishnasamy Chettiar, Vengidachalapathy Chettiar, Bonisamy Chettiar. The settlement is an absolute settlement. On the date of the settlement, the property stood transferred to the Sourashtra community, which was in management of the Shri. Varatharaja Perumal Temple. It has come out in evidence of D.W.1 that the Sourashtra Dharma Paripalana Committee, which is the defendant had benefitted by a scheme decree in O.S.No.1 of 1904 of the Principal District Court, Thanjavur under the guidance of the HR & CE Department and the Act governing the Hindu Religious and Charitable Endowments. It has also been stated by D.W.1 in his evidence that the property had been granted to the defendant committee by Arivanantha Parathesi Swamigal nearly 100 years before in 1904. The defendant Trust has title through Ex.B.4, which is the settlement deed dated 20.07.1904 and the sanctity of the defendant has been upheld by the Scheme decree in O.S.No.1 of 1904 by the Principal District Judge, Thanjavur.
14.On the other hand, the appellant relied on Ex.A53, which is a cancellation deed of the settlement deed mentioned in Ex.B4. This cancellation deed is dated 20.04.1915. In the said cancellation deed, the said Arivanantha Parathesi Swamigal had stated that the Panchayatars of Shri. Varatharaja Temple had not acted in accordance with his wish mentioned in the settlement deed Ex.B4 and consequently, he had cancelled the said deed. In this connection, the primary issue which has to be decided is whether the settlement deed in which possession has been handed over and title had also been acknowledged can be cancelled by the settlor after nearly 10 years.
15.
Section 122 of the Transfer of Property Act, 1882 defines Gift. ?122. ?Gift? defined. - ?Gift? is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.?
Section 123 deals with Transfer and the manner in which it is effected.
?123. Transfer how effected. - For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods sold may be delivered.?
Section 126 deals with the suspension or revocation of gift.
?126. When gift may be suspended or revoked. - The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be.
A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.
Save as aforesaid, a gift cannot be revoked.
Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.?
16.In this case Arivanantha Parathesi Swamigal had stated as follows: ?g{h;tk; vd; Kd;ndhh;fSk; gpwF ehDk; mDgtpj;J tUfpw ,jdoapy; fz;l U:.1000 bghUkhd brhj;Jf;fs; Fk;gnfhzj;jpypUf;fpw i\ brsuh\;l;u$hjpahh;fSf;F brhe;jkhd _tujuh$g; bgUkhs; nfhtpYf;F ehsJ njjpapy; ehd; bfhLj;Jtpl;lgoahy; i\ brhj;Jf;fis mg;nghijf;fg;nghJ i\ nfhtpYf;F Vw;gLfpw gQ;rhaj;jhh;fs; mDgtpj;Jf;bfhd;L mjpy; fpilf;fpw tUk;goapypUe;J i\ epyj;jpypUf;fpw fl;olq;fis mg;nghijf;fg;nghJ g[Jg;gpj;Jk; hpg;ngh; KjypaJk; bra;J tUfpwJkd;wp tU\h tU\k; ele;J bfhz;oUf;fpw K:d;W FUg{i$fs; Kjyhd jh;kq;fisa[k; i\ahh;fns elj;jp tuntz;oaJ.?
A reading of the above, very clearly shows that possession had been handed over. Possession had not been handed over to Urchavar in its individual capacity, but to the Panchayatars who were in management of Shri. Varatharaja Perumal temple. Once possession has been handed over and title also flowed, revocation of such a gift is extremely barred under
Section 126 as pointed above.
Section 126 states that gift cannot be revoked by the mere will of the donor. This is what Arivanantha Parathesi Swamigal had done subsequently by Ex.A53. Ex.A53 cannot stand the scrutiny of law. It is not a document, which can be accepted as a legally enforceable document. As on 20.07.1904, when Arivanantha Parathesi Swamigal had given away the property, his right, tittle and interest stood extinguished with respect to the property which he handed over to the Panchayatars of the Shree Varatharaja Perumal. He stood as a third party to the suit property. Once he had given away the property he cannot take back the consequential right, title and interest of the defendant and the right of defendant cannot be questioned by any person, much less the appellant herein, who is totally a stranger to Arivanantha Parathesi Swamigal and family. Further, the appellant claimed title by Ex.A1, which is a sale deed dated 19.07.1976. Ex.A.1 is a sale deed for Rs.8,000/-. It had been executed by Venugopal Naidu on his behalf and on behalf of his minor son Govindaraj in favour of the appellant Suseela W/o. Durairaj Nadar. While tracing his title, Venugopal Naidu had stated that his father R.Varatharaj Naidu was also the father-in-law of Suseela Ammal, though her husband was called Durairaj Nadar. Further, he stated that his father R.Varatharaj Naidu took possession of the property from Arivanantha Parathesi Swamigal about 40 years prior to 1976.
17.In fact the exact words reads thus:
?,g;gt{k; vq;fspy; 1 yf;fkpl;lth;f;F jfg;gdhUk; 2 yf;fkpl;lth;f;F khkdhUkhd nyl; Mh;.tujuh$; eha[L fhyj;jpy; ,jd; jgrpy fz;l brhj;ij mhpthde;jg[unjrpahhplkpUe;J jd; mDnghfj;Jf;F vLj;J mjpy; i\ tujuh$; eha[Lthy; Rkhh; 40 tU\q;fSf;F Kd; fl;lg;gl;l ,jd; brhj;J tpguj;jpy; fz;l kz;fl;L fPj;J tPl;ila[k; mij nrh;e;j kid epyj;ija[k; mth; mDgtpj;J te;J mth;fs; fhyj;Jf;F gpd; thhPR Kiwg;go vq;fSf;F ghj;jpag;gl;L ehq;fs; mDgtpj;J tUfpw ,jd; brhj;J?
A reading of the above shows that Varatharaj Naidu has suo motu taken possession of the property from Arivanantha Parathesi Swamigal. The relationship between Arivanantha Parathesi Swamigal and Varatharaj Naidu was not given. Under what circumstances, he took possession has not been deposed. When he had no title, a gratuitous possession cannot confer title. Consequently, the vendor of the appellant herein, namely, Varatharaj Naidu himself did not have any title over the suit property and as a matter of fact, as discussed above, Arivanantha Parathesi Swamigal himself after settling the property in favour of the respondent, had lost right, title and interest over the suit property. Therefore, the appellant cannot had, at any stretch of imagination, better title than the respondent herein.
18.The learned counsel appearing for the appellant relied on the decision of the Hon'ble Apex Court reported in (2004) 1 SCC 769 [Rame Gowda v. M. Varadappa Naidu] and stated that the occupant in ?settled possession? cannot be dispossessed without recourse to law.
19.This had been subsequently discussed in the decision of the Hon'ble Apex Court reported in 2017 (1) CTC 755 [Behram Tejani v. Azeem Jagani], wherein principles of law were enunciated as follows:
?No one acquires tittle to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
And The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.? Finally the Hon'ble Supreme Court held at paragraph 14 as follows:
?14. Thus, a person holding the premises gratuitously or in the capacity as a caretaker or a servant would not acquire any right or interest in the property and even long possession in that capacity would be of no legal consequences.?
20.The learned counsel for the appellant further pointed out the decision reported in 1927 Law Weekly 806 [Semba Parayan v. Maral], wherein a Full Bench of this Court held that dedication of property to God by a Hindu does not require any document and that property can be validly dedicated without any registered instrument and further held that by no stretch of imagination, legal or otherwise, can it be said that the Almighty is a living person, within the meaning of the Transfer of Property Act. Consequently, the learned counsel stated that the settlement deed Ex.B.4 in favour of Shri. Varatharaja Perumal Temple and the settlement in favour of the idol can be questioned under the ambit of Transfer of Property Act.
21.A further reading of Ex.B.4 would show that the property had been given to the Panchayatars of the temple. But subsequently, the temple extracted title in Scheme Decree in O.S.No.1 of 1904 by the Principal District Court, Thanjavur and consequently, I hold that the settlement deed was perfectly valid.
22.The contention of the learned counsel for the appellant that in parallel proceedings in O.S.No.428 of 1987, the respondent herein allowed the said suit to be dismissed for default cannot come to her rescue since the appellant in this case has to stand on her own legs. She has to establish her title. Mere possession cannot establish the title. She did not pursue title through any valid title. Her vendor had no valid right to confer the title. Consequently, the suit in O.S.No.427 of 1987 had been filed as against Durairaj and subsequently, against his son Govindaraj, which I hold is perfectly valid.
23.The reliance placed by the appellant on Ex.A.1, seeking title and Exs.A3 to A43, seeking right of possession will not come to rescue since Ex.A1 did not in any manner convey title to her. In this connection in 2009 (2) TNLJ 65 (Civil) [Anjalai Ammal W/o. Ram Mohan v. Duraisamy and another, it had been held by this Court that the law is well settled that where a donor had no power of revocation at all, he ceased to have any interest or right in the property on his divesting himself of his title in favour of the donee in which case there is no question of the donor continuing after the gift to be an ostensible owner. Consequently, by no stretch of imagination, can the appellant claim title over the suit property.
24.The respondent has obtained a decree, which is still valid and binding. They filed an Execution Petition. Instead of taking steps under Order 21 Rule 97 of C.P.C. and obstructing the decree, the appellant had rushed to the Court and filed a suit, which is specifically barred under Order 21 Rule 97 and Section 105 of C.P.C. As a matter of fact, the appellant had not even declared that the decree in O.S.No.427 of 1987 is not binding her. The effect of exparte decree had been discussed in AIR 1964 Supreme Court 993 [Arjun Singh v. Mohindra kumar], wherein it had been held as follows:
?The principle underlying the distinction between the rule of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order is vital. If the principle of res judicata is applicable to the decision on a particular issue of fact, even if fresh facts were placed before the Court, the bar would continue to operate and preclude a fresh investigation of the issue, whereas in the other case, on proof of fresh facts, the court would be competent, nay would be bound to take those into account and make an order conformably to the facts freshly brought before the court.?
Consequently, the decree is an effective decree and valid in the eyes of law.
25.In (1998) 4 SCC 543 [Shreenath v. Rajesh], while discussing the scope of Order 21 Rule 97 of C.P.C. and the enquiry under the provision and the bar to file a separate suit, the Hon'ble Supreme Court had held as follows:
?Order 21, Rule 97 conceives of resistance or obstruction to the possession of immovable property when made in execution of a decree by ?any person". This may be either by the person bound by the decree, claiming title through the judgment debtor or claiming independent right of his own including a tenant not party to the suit or even a stranger. A decree holder, in such a case, may make an application to the Executing Court complaining such resistance, for delivery of possession of the property. Rule 97 (2) after 1976 substitution empowers the executing Courts when such claim is made to proceed to adjudicate upon the applicant's claim in accordance with the provisions contained hereinafter. This refers to Order 21, Rule 101 (as amended by 1976 Act) under which all questions relating to right, title or interest in the property arising between the parties under Order 21, Rule 97 or Rule 99 should be determined by the Court and not by a separate suit. By the amendment, one has not to go for a fresh suit but all matters pertaining to that property including any obstruction by a stranger are adjudicated in the executing proceedings. The expression "any person" in Rule 97(1) is used deliberately for widening the scope of power so that the Executing court could adjudicate the claim made in any such application under Order 21, Rule
97. Thus, by the use of the words 'any person' it includes all persons resisting the delivery of possession, claiming right in the property, even those not bound by the decree, including tenants or other persons claiming right on their own, including a stranger. So, under Order 21, Rule 101 all disputes between the decree-holder and any such person is to be adjudicated by the Executing Court. A party is not thrown out to relegate itself to the long-drawn-out arduous procedure of a fresh suit. This is to salvage the possible hardship both to the decree-holder and other person claiming title on their own right to get it adjudicated in the very same execution proceedings.?
26.Again in 2002 (1) SCC 662 [N.S.S. Narayana Sarma v. Goldstone Exports (P) Ltd.,], while dealing with Order 21 Rule 97 of C.P.C. and scope and power of the Court, the Hon'ble Supreme Court had held as follows:
?Provision is made in the Civil Procedure Code for delivery of possession of immovable property in execution of a decree and matters relating thereto. In Order 21 Rule 35 provisions are made empowering the executing court to deliver possession of the property to the decree holder if necessary, by removing any person bound by the decree who refuses to vacate the property. Rules 97 to 101 of Order 21 contain the provisions enabling the executing court to deal with a situation when a decree holder entitled to possession of the property encounters obstruction from ?any person?. From the provisions in these Rules the scheme is clear that the legislature has vested wide powers in the executing court to deal with ?all issues? relating to such matters. It is a general impression prevailing amongst the litigant public that difficulties of a litigant are by no means over on his getting a decree for immovable property in his favour. Indeed, his difficulties in real and practical sense, arise after getting the decree. Presumably, to tackle such a situation and to allay the apprehension in the minds of litigant public that it takes years and years for the decree holder to enjoy fruits of the decree, the legislature made drastic amendments in provisions in the aforementioned Rules, particularly, the provision in Rule 101 in which it is categorically declared that all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application shall be determined by the court dealing with the application and not by a separate suit and for this purpose, the court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.
The legislature has enacted the provision with a view to remove, as far as possible, technical objections to an application filed by the aggrieved party whether he is the decree holder or any other person in possession of the immovable property under execution and has vested the power in the executing court to deal with all questions arising in the matter irrespective of whether the court otherwise has jurisdiction to entertain a dispute of the nature. This clear statutory mandate and the object and purpose of the provisions should not be lost sight of by the courts seized of an execution proceeding. The court cannot shirk its responsibility by skirting the relevant issues arising in the case.
When any person claiming title to the property in his possession obstructs the attempt by the decree-holder to dispossess him from the said property the executing court is competent to consider all questions raised by the persons offering obstruction against execution of the decree and pass appropriate order which under the provisions of Order 21 Rule 103 is to be treated as a decree.?
27.From the above, it is clear that a person, who challenges the decree and claim title had to obstruct the execution of the decree and cannot file a suit. The possession is very clear and a separate suit is not maintainable. Consequently, the appeal flowing from a suit which is not maintainable and which is specifically barred cannot also be entertained by this Court.
28.Going through the facts of this case, once again it is clear that the suit property had been originally settled on the defendant committee, who were in management of Shri. Varatharaja Perumal Temple, which is a temple owned by the members of the Sourashtra Community in Kumbakonam by Arivanantha Parathesi Swamigal by Ex.B.4 dated 20.07.1904. This settlement cannot be revoked by him and consequently, the cancellation deed Ex.A53 dated 20.04.1915, is not a valid document in the eyes of law. Any title flows through Arivanantha Parathesi Swamigal subsequent to execution of settlement deed cannot be recognised by this Court. In this case the vendor of the appellant claimed that he took possession from Arivanantha Parathesi Swamigal. There is no document to show as to how he obtained possession and when he obtained possession. Consequently, the vendor himself had no title. It is also seen that the vendor is the father-in-law of the appellant herein. The claim of appellant that she was not a party in O.S.No.427 of 1987 would not come to her rescue and give her an opportunity to file a separate suit. She should have challenged the decree as a third party by obtaining leave. If she obstructed the decree by entering appearance, the execution Court has to decide her right and contention and a separate suit is not maintainable and the dismissal of O.S.No.1 of 2007 by the learned Additional District Judge/Fast Track Judge, Thanjavur, does not deserve interference and consequently uphold the decree.
29.In the result, the Appeal is dismissed with costs. The judgment and decree of the Additional District Court/Fast Track Court, Thanjavur, dated 28.08.2009, dismissing O.S.No.1 of 2007 with costs is confirmed.
To:
1.The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai.
2.The Additional District Judge/Fast Track Judge, Thanjavur..