IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 23.01.2008 CORAM THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR. JUSTICE M.VENUGOPAL O.S.A. NO. 287 OF 2007 Mansooralikhan .. Appellant - Vs - 1. V.K.John 2. Appu John 3. Leela Seetharaman 4. W.S.Seetharaman .. Respondents Appeal filed under order XXXVI Rule 1 of O.S. Rules r/w clause XI of Letter Patent against the order dated 17th Sept., 2007, passed by learned Judge in C.S. No.423/95. C.S.No. 423 of 1995. V.K. John .... Plaintiff VS 1.Appujohn 2.Lilly Seetharaman 3.W.S. Seetharaman .... Defendants. For Appellant : Mr. G.Saravanakumar For Respondents: Mr. Markose for M/s.King & Patridge for R-1 Mr. W.S.Seetharaman – Party-in-Person (R-4) JUDGMENT S.J.MUKHOPADHAYA, J. This appeal has been preferred by the appellant against order dated 17th Sept., 2007, passed by learned Judge in C.S. No.423/95, whereby and whereunder the Commissioner of Police has been directed to take steps on the complaint, whereby request has been made to the Commissioner of Police to evict the encroachers, who have no legal right on the property. https://hcservices.ecourts.gov.in/hcservices/ 2. As the case could be disposed of on a short point, it is not necessary to discuss all the facts, except the relevant ones and the relevant submissions as made by the parties. 3. The appellant claims to be the tenant of the suit property through the 2nd respondent, Appu John (since deceased). He is not a party to the suit nor any application was preferred against him either by the plaintiff or the defendant. V.K.John, the first respondent in the present case is the plaintiff, who preferred the suit for partition of immovable properties set out in Schedule A and B by meets and bounds and prayed for allotting to plaintiff his 50% share. The 2nd respondent, Appu John (since deceased), is the 1st defendant; one Leela Seetharaman (since deceased) is the 2nd defendant and her husband, W.S.Seetharaman, 4th respondent herein, is the 3rd defendant to the suit. It appears that orders were passed in the case from time to time in different applications preferred in the said suit. It further appears that O.A. No.293/95 filed by plaintiff in the suit in which learned Judge, vide order dated 22nd July, 1996, granted an order of injunction restraining the defendants of the suit from alienating, altering and demolishing the property described in the schedule. The 1st defendant, Appu John (since deceased), created an encumbrance in favour of one Goenka for which both of them were punished by this Court in contempt proceeding for violating the order and awarded cost of Rs.5,000/=, which was affirmed in contempt appeal No.15/05. Learned Judge noticed that another alienation stated to have been made by said Appu John (since deceased) in favour of Manzoor Ali Khan (appellant herein), which is the subject matter of a contempt proceeding. 4. It further appears that in one O.S. No.1242/07, the appellant, Manzoor Ali Khan preferred one application, I.A. No.3198/07 before the 11th Assistant Judge of City Civil Court, Chennai and prayed for injunction. The application was dismissed by the Court on 19th Sept., 2007. The 4th respondent, W.S.Seetharaman, who is the 3rd defendant in the suit made a complaint that he has already filed a complaint before the Commissioner of Police to remove the encroachments, but alleged that no action was taken. In the said suit, one intervention petition was filed by a person stating that Appu John (since deceased) had created a Will in his favour and pleaded that he will also take steps to evict the encroachers to the suit property. Taking into consideration the aforesaid submissions and that the suit property is situated in the heart of Madras city and is a valuable https://hcservices.ecourts.gov.in/hcservices/ property and that the 4th respondent has filed representation even before the Governor of Tamil Nadu, learned single Judge, by impugned order dated 17th Sept., 2007, directed the Commissioner of Police to take steps on the complaint for eviction. 5. Learned counsel appearing on behalf of the appellant submitted that the appellant being a tenant having an agreement with Appu John (since deceased - 1st defendant to the suit), he cannot be evicted by an order passed in suit for partition, particularly when he is not a party to the said suit. According to appellant, he could be evicted only by an order of a court of competent jurisdiction by following the procedure prescribed under the law. It was submitted that the Court has practically directed the Police Commissioner to take action on the application of the 4th respondent and, thereby, to evict the tenants, including the appellant, from the private suit property by police force. Learned counsel appearing on behalf of the plaintiff - 1st respondent, while accepted that the police cannot be given free hand to evict any person from a private property, but submitted that the Court can give a direction to take steps in a complaint petition. However, counsel could not lay hand on any law to show that in a suit for partition a direction could be given for taking action in a police complaint. 6. We have heard the parties and noticed the rival contentions. We are of the view that except a court of competent jurisdiction, no direction could be given to act on a police complaint in a suit for partition. 7. The 4th respondent, W.S.Seetharaman, appeared in person and highlighted the facts. It was submitted that the appellant, Manzoor Ali Khan, is trying to stall and delay the partition suit. 8. In the present case, we are not supposed to deliberate on the merits of the claim of any of the party, nor we are supposed to make any observation whether the appellant is a tenant in the suit property and has any right. The only question raised for consideration is whether the learned Judge should have directed the https://hcservices.ecourts.gov.in/hcservices/ Commissioner of Police to take steps on the complaint for eviction of any unauthorised encroacher from the property in question, we have already answered the same in negative. We, accordingly, set aside the order dated 17th Sept., 2007, passed by learned Judge in C.S. No.423/95. The appeal is allowed. But there shall be no order as to costs. GLN Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar To 1.The Sub Assistant Registrar, Original Side, High Court, Madras. + One cc to Mr. G. Saravana Kumar, Advocate sR 2394 + One cc to Mr. King and Partridge, Advocates SR 2536 MS (co) sg 23/01/08 JUDGMENT IN O.S.A. NO. 287 OF 2007 Pronounced on 23.01.2008 https://hcservices.ecourts.gov.in/hcservices/