BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 31.03.2008 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN C.R.P.(NPD).No.1165 of 2008 and M.P.No.1 of 2008 K.Vijayakumar .. Petitioner Vs. 1.N.Sriramulu 2.E.Jayagopal .. Respondents Prayer:-This revision petition is filed under Article 227 of the Constitution of India against the order dated 18.03.2008 in E.A.No.97 of 2008 in E.A.Nos.86 to 88 of 2008 in E.P.No.70 of 2002 in RCOP.No.133 of 1993 on the file of the District Munsif, Alandur. For Petitioner : Mr.T.M.Hariharan, Advocate For Respondents : Mr.M.K.Hidyadhullah, Advocate (For R1) O R D E R
The order passed in E.A.No.97 of 2008 in EP.No.70 of 2002 in RCOP.No.133 of 1993 on the file of the District Munsif, Alandur is under challenge in this revision. E.A.No.97 of 2008 was filed by the present revision petitioner under Section 45 of the Evidence Act r/w Order 26 Rule 10A and 151 of CPC. The revision petitioner is a third party to the RCOP proceedings in RCOP.No.133 of 1993 on the file of the Rent Controller, Thambaram, against which E.P.No.70 of 2002 was filed to execute the decree of eviction.
2.It is the case of the revision petitioner that the landlord in RCOP.No.133 of 1993 had entered into an agreement of sale dated 12.08.1992 with the landlord in respect of the petition scheduled property and that in pursuance of it, he had paid Rs.9 lakhs out of the total sale consideration of Rs.10 lakhs and he is yet to pay only a sum of Rs.1 lakh to get the sale deed executed in his favour. It is the case of the learned counsel appearing for the revision petitioner that in pursuance of the sale agreement dated 12.08.1992 entered into between the landlord and him, he was put in possession of the petition scheduled property. But the learned counsel appearing for the 1st respondent / landlord would state that he has obtained an order of eviction in RCOP.No.133 of 1993 on the file of the Rent Controller, Thambaram, against the tenant and that in EP.No.70 of 2002 delivery was ordered and he got possession of the property and only delivery is to be recorded. The revision petitioner had filed EA.No.97 of 2008 seeking indulgence of the Execution Court to compare the signature of the landlord in the sale agreement dated 12.08.1992 with that of the admitted signature to show that the sale agreement entered into between the landlord and the revision petitioner herein is valid and binding on the 1st respondent / landlord. As rightly observed by the learned Execution Court in EA.No.97 of 2008, whether the sale agreement dated 12.08.1992 entered into between the landlord and the revision petitioner is valid or not is not the matter to be decided in the EP, but the point for determination is whether the landlord / petitioner in E.P.No.70 of 2002 is entitled to execute the decree passed in RCOP.No.130 of 1993. The Execution Court has rightly dismissed EA.No.97 of 2008.
3.The learned counsel for the revision petitioner relying on 2002(1) SCC 662 (N.S.S.Narayana Sarma and Others Vs. Goldstone Exports (P) and others), would contend that he had filed an application under Order 21 Rule 97 of CPC along with E.A.No.97 of 2008 and all the disputes relating to the petition scheduled property is to be decided only in the EP and the petitioner, who is a third party, cannot be directed to initiate a separate proceedings to settle his dispute. There cannot be any two opinion with regard to the dictum laid down in 2002(1) SCC 662 (N.S.S.Narayana Sarma and Others Vs. Goldstone Exports (P) and others) by the Honourable Apex Court. Only point to be decided in this case is whether the petitioner can get a decree for specific performance on the basis of an agreement of sale dated 12.08.1992. As I have observed earlier that whether the sale agreement dated 12.08.1992 between the landlord and the present revision petitioner is a valid and genuine is the question to be decided in EP.No.70 of 2002, there is no necessity for sending the disputed signature in the sale agreement dated 12.08.1992 for getting an expert opinion.
4.It is represented by the learned counsel for the revision petitioner that if he is in possession of the petition scheduled property as per the agreement of sale dated 12.08.1992 his possessions is to be protected. The learned counsel for the revision petitioner would contend that the tenant is in occupation of the front portion of the petition scheduled building and the revision petitioner is in occupation of the rear portion of the petition scheduled building in E.P.No.70 of 2002. If it is so, then the petitioner in E.P.No.70 of 2002 / decree holder is entitled to get only possession from the tenant and if the revision petitioner is in possession of the petition scheduled building then, he is to be evicted only under due process of law.
5.With these observations, the Revision is dismissed confirming the order passed in E.A.No97 of 2008 in E.P.No.70 of 2002 in RCOP.No.133 of 1993 on the file of the District Munsif, Alandur. No costs. Connected Miscellaneous petition is closed.
31.03.2008
Index:yes
Internet:yes
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NOTE:-Issue on 01.04.2008.
To,
The District Munsif, Alandur.
A.C.ARUMUGAPERUMAL ADITYAN, J.
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C.R.P.(NPD).No.1165 of 2008
31.03.2008