First respondent filed suit for the relief of partition and separate possession of his 1/2 share in ground floor of door nos.51 and 52 - suit Decreed - Execution petition filed - Tenant filed petition under rule 97 - Tenancy having been created during the pendency of the partition suit would not confer any right upon the tenant to call upon the decree holder to take only symbolic possession under Order 21 rule 36 and not a physical possession.

Citation 

2024-3-L.W. 789

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on: 08.07.2024

Delivered on: 12.07.2024

C.M.S.A.(MD).No.32 of 2017 and CMP(MD).No.9748 of 2017 

R.Vijayakumar, J.Abdul Kadhar...Appellant

...Vs...

Barakath Begum & others... Respondents

Memo dated 19.01.2024 is recorded to the effect that issuance of notice to second respondent is dispensed with, as he was set exparte before the Court below, vide Court order dated 15.03.2024)

PRAYER: The Civil Miscellaneous SecondAppeal has been filed under Order 21 Rules 97 & 103 of Civil Procedure Code against the judgment and decree passed in C.M.A.No.8 of 2011 on the file of the Principal Sub Court, Tirunelveli dated 17.03.2017 reversing the fair and decreetal order passed in E.A.No.175 of 2009 in E.P.No.17 of 2009 in O.S.No.1233 of 1986 on the file of the Principal District Munsif Court, Tirunelveli.

C.P.C., Order 21 rules 35, 36, 97

Transfer of property act, Section 52, Lis pendens, section 105

First respondent filed suit for the relief of partition and separate possession of his 1/2 share in ground floor of door nos.51 and 52 of the suit schedule properties.                para 2

while the said execution petition was pending, the present appellant had filed under Order 21 rule 97, raising objection to delivery of the property on the ground that he is in possession of the shop in door no.51, having taken the building on lease from the defendants 1 and 2 in the suit para 3

Neither the documentary evidence nor the oral evidence let in on the side of the tenant is sufficient to prove that tenancy had commenced prior to the filing of the partition suit para 17

Section 52 not only prohibits transfer of property, but also dealing with the property in any manner Court not inclined to accept contention that creation of tenancy during the pendency of the partition suit would not be hit by section 52 Tenancy having been created during the pendency of the partition suit would not confer any right upon the tenant to call upon the decree holder to take only symbolic possession under Order 21 rule 36 and not a physical possession paras 24, 26, 27

AIR 1941 Calcutta 436 (Bhupati Banerjee Vs. Bon Behary Roy and another);

AIR 1946 OUDH 99 (Ram Narain and others Vs. Nawab Sajjad All Khan);

(2008) 15 SCC 705 (Rajesh Kumar Vs. State of Himachal Pradesh);

2011-1-L.W. 394 = (2010) 14 SCC 370 (T.G.Ashok Kumar Vs. Govindammal and another);

(2003) 1 SCC 722 (Venkatrao Anantdeo Joshi and others Vs. Malatibai and others);