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Sevugan Chetti, Minor, by Next Friend Chockalingam Chetty Vs. Rungammal - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in32Ind.Cas.34
AppellantSevugan Chetti, Minor, by Next Friend Chockalingam Chetty
RespondentRungammal
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 59 - claimant to attached property not adducing any evidence as to possession--court, whether can decide on title. - .....in exclusive possession of the property attached in her or his own right. it was her duty to have adduced evidence of such possession if she wanted to resist the attachment on the ground of possession. it is not shown that evidence of such possession was offered before the district munsif and refused by him; he was, therefore, bound to proceed only upon the evidence of title that was before him. sankaran nair, j., however, thought that the district munsif was bound to enquire into the question of possession and if he found that the petitioner was in exclusive possession of the property, to allow the claim, it does not appear to have been brought to his notice that, as a matter of fact, no evidence of possession was tendered, and if no evidence of such possession was adduced, the.....
Judgment:

1.This appeal arises out of a claim preferred under the provisions of the Civil Procedure Code. It appears that the 1st defendant was the judgment-debtor and the property which was attached stood in the name of himself and his nephew, one Rajam Aiyangar. Rajam Aiyangar is dead and his widow, the claimant, is in possession of the property. The District Munsif dismissed the petition holding that the title to the property vested both in the 1st defendant and his nephew in equal moieties, and there was no deed of sale or of release in favour of the claimant of the uncle's share of the property. He also observed that even if the petitioner's husband had alone been in enjoyment of the property, he had not acquired any right by prescription, that is to say, he proceeded upon the evidence of title that was before him. No evidence was adduced on the question of possession as required by rule 59 of Order XXI of the Code of Civil Procedure, which says that the claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached.' The claimant did not attempt to prove that she or her husband was in exclusive possession of the property attached in her or his own right. It was her duty to have adduced evidence of such possession if she wanted to resist the attachment on the ground of possession. It is not shown that evidence of such possession was offered before the District Munsif and refused by him; he was, therefore, bound to proceed only upon the evidence of title that was before him. Sankaran Nair, J., however, thought that the District Munsif was bound to enquire into the question of possession and if he found that the petitioner was in exclusive possession of the property, to allow the claim, It does not appear to have been brought to his notice that, as a matter of fact, no evidence of possession was tendered, and if no evidence of such possession was adduced, the District Munsif was entirely justified in confining himself to the question of title. That being the state of the facts, we are bound to hold that the District Munsif's order was right. We allow the appeal and restore the order of the District Munsif. The respondent must pay the costs of this appeal. The revision petition is dismissed with costs.


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