Thimma.V.Saradha Ammal(Died) v. M.N.Kumaresh Babu

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Civil Appellate Jurisdiction ) Thursday, the Nineteenth day of July Two Thousand Eighteen PRESENT The Hon`ble Mr.Justice M.SUNDAR CMP(MD) No.5896 of 2018 IN AS(MD) No.60 of 2010 T.V.SARADHAMMAL(DIED) 1.T.V.VISWANATHAN 2 T.V.SIVANATH ... PETITIONERS 1 & 2/APPELLANTS 1 & 2 Vs 1 KUMARESH BABU 2 THE DISTRICT COLLECTOR, MADURAI DISTRICT, MADURAI -20.

... RESPONDENTS/RESPONDENTS 1 & 2 3 T.V.PREMNATH ... RESPONDENT/3rd APPELLANT Petition praying that in the circumstances stated therein and in the affidavit filed therewith the High Court may be pleased to direct the 1st Respondent or his henchmen not to interfere with the peaceful possession and enjoyment by the petitioner of the suit property bearing D.No.41a, mahalvadampokki street, Madurai -1, pending disposal of the above appeal A.S.(MD).No.60/2010 and thus render justice.

Prayer in AS(MD). 60/ 2010 :

To set aside the Decree and Judgment dated 18.11.2009 passed in OS.36 of 2008 on the file of the Honourable FTC.No.II, Madurai and to decree the Suit as prayed for with costs throughout and thus render justice.

ORDER : This petition coming on for orders upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of M/S.M.S.SURESH KUMAR, Advocate for the petitioners and of Mr.M.N.SANKARAN, Advocate for the 1st respondent, the court made the following order:- Appellants 2 and 3 in the main first appeal are petitioners 1 and 2 respectively, in the instant 'Civil Miscellaneous Petition' [hereinafter referred to as 'CMP' for brevity]. 2.Respondents 1 and 2 in the main first appeal are respondents 1 and 2 in the instant CMP.

3.Appellant No.4 in the main first appeal has been arrayed as Respondent No.3 in the instant petition.

4.Main appeal arises out of a suit being O.S.No.36 of 2008, on the file of 'Additional District Judge's Court / Fast Track Court No.II, Madurai', which shall hereinafter be referred to as 'trial Court'.

5.From the averments in the affidavit filed in support of this CMP, it can be gathered that the aforesaid suit in the trial Court was filed inter-alia with a prayer for a declaratory relief. It also emerges from the averments in the affidavit that the declaratory relief pertains to limited rights given to one T.V.Saradhammal, under a Will executed by her father. It is further averment of petitioners that this limited right has blossomed into a absolute right in lieu of pre-existent right of maintenance. 6.Be that as it may, the aforesaid suit, after full contest and trial, was dismissed vide judgment and decree dated 18.11.2009, made by the trial Court, against which the instant main appeal has been preferred.

7.Array of parties in the main appeal with cross reference in the CMP has already been given supra.

8.It is not in dispute before this Court that Door No.41-A, Mahal Vadampokki Street, Madurai, is the suit property. 9.Instant CMP has been filed with the following prayer: "For the reasons stated in the accompanying affidavit, it is therefore prayed that this Hon'b;e Court may be pleased to direct the 1st Respondent or his henchmen not to interfere with the peaceful possession and enjoyment by the petitioner of the suit property bearing D.No.41A, Mahalvadampokki Street, Madurai-1, pending disposal of the above appeal A.S.(MD)No.60 of 2010 and thus render justice."

10.First respondent in the instant CMP has filed a counter affidavit dated 18.07.2018.

11.Today, Mr.M.S.Suresh Kumar, learned Counsel on record is before this Court on behalf of the petitioners in the instant CMP and Mr.M.N.Sankaran, learned Counsel is before this Court on behalf of first respondent. Additional Government Pleader Mr.C.Ramar has entered appearance on behalf of second respondent, but there is no prayer against him in the instant CMP.

12.To be noted, there is no prayer against Respondent No.3 in the instant CMP (Appellant No.4 in the main first appeal) also.

13.The prayer in the instant CMP as would be evident from the prayer extracted supra is only against the first respondent in the instant CMP i.e., Kumaresh Babu, who is also first respondent in the main first appeal.

14.Today, learned Counsel Mr.M.N.Sankaran, appearing for the first respondent emphatically asserted that the first respondent has not made any attempt to interfere with the possession and enjoyment of the first petitioner herein qua the aforesaid suit property. Learned Counsel also affirms that the first respondent having not done so, shall not do so till the disposal of the first appeal and of course, remedies if any of the parties in this regard are subject to outcome in the first appeal. This emphatic submission is also buttressed by the averments in the counter affidavit in paragraph No.6, which reads as follows:

"6) On the death of Saradhammal, I never indulged to forcibly evict the petitioners herein, nor any police complaint as alleged is given."

15.To be noted, the counter affidavit has been sworn to by the first respondent, Kumaresh Babu.

16.The submission made in Court today and the aforesaid averment in the counter affidavit made by first respondent are recorded.

17.As there is no disagreement that the possession as of today will remain unaltered till the disposal of the first appeal, this CMP is disposed of, recording the aforesaid submission and averments. No further orders are required.

sd/- 19/07/2018 / TRUE COPY / Sub-Assistant Registrar (C.S.IV) Madurai Bench of Madras High Court, Madurai - 625 023.

TO THE ADDITIONAL DISTRICT JUDGE, FAST TRACK COURT NO.II, MADURAI.

+1. C.C. to M/S.M.S.SURESH KUMAR Advocate SR.No.13489

ORDER

IN CMP(MD) No.5896 of 2018 IN AS(MD) No.60 of 2010 Date :19/07/2018 JM/VR/SAR 4/25.07.2018/3P/3C