Madras High Court
J.Rajasekaran vs Uma @ Govindammal on 6 April, 2022
C.R.P.(PD) No.1200 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.04.2022
CORAM : JUSTICE N.SESHASAYEE
C.R.P.(PD) No.1200 of 2021
and CMP.No.9251 of 2021
1.J.Rajasekaran
2.R.Alice Thabitha ... Petitioners / Petitioners /
Defendants 9 & 10
Vs.
1.Uma @ Govindammal
2.K.Mallika ... Respondents / Respondents /
Plaintiffs
Prayer : Civil Revision Petition filed under Article 227 of the Constitution
of India, praying to set aside the order dated 22.02.2021 made in I.A.No.3
of 2019 in O.S.No.102 of 2019 on the file of the learned III Additional
District and Sessions Judge, Tiruvallur at Poonamallee, with costs.
For Petitioners : Mr.Jeremiah Gregory John
For Respondents : Mr.K.Harikrishnan
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C.R.P.(PD) No.1200 of 2021
ORDER
The 9th and 10th defendant in O.S.No.102/2019 on the file of III Additional
District and Sessions Court, Tiruvallur @ Poonamallee, have come before
this Court, challenging the order in I.A.No.03/2019, dismissing their
application to reject the plaint.
2. The learned counsel for the revision petitioners introduced the
controversy as below :
● The suit property originally belonged to a certain Kumarasamy,
the father of the plaintiffs/respondents herein, and that on
19.09.1982, he had entered into an agreement with John, the
father of 9th defendant / 1st revision petitioner, for sale of the suit
property. To enforce the said sale, John had instituted
O.S.No.158/1983 before Sub Court, Chengalpattu, for specific
performance, which subsequently was transferred to Sub Court,
Poonamallee and renumbered as O.S.No.104/1984, and that came
to be decreed on 07.11.1986.
● Challenging which, Kumarasamy preferred A.S.No.567/1987
before this Court, and on 07.03.1993, that came to be dismissed.
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C.R.P.(PD) No.1200 of 2021
Pending first appeal, John died, and consequently his widow
Jayamary and his son, the 9th defendant in the present suit came to
be impleaded.
● Thereafter, the heirs of John laid an execution petition in
E.P.No.108/1993, for obtaining sale of the property. Pending E.P,
the parties however compromised the matter, by which
Kumarasamy executed a General Power of Attorney in favour of
Jayamary (the widow of John) on 29.01.1998, and the execution
petition came to be closed.
● On the strength of that Power of Attorney, the property came to
be sold to third parties. These sale deeds are now in challenge in
the present suit, which is laid in 2019, by the daughters of
Kumarasamy.
● While so, Kumarasamy died on 26.08.2002. When he was alive,
Jayamary as Power of Attorney of Kumarasamy executed two sale
deeds one on 29.01.1998, and the other on 27.01.1999. After the
demise of Kumarasamy, on the strength of the same Power of
Attorney, she had executed three sale deeds in 2004, one sale
deed in 2007, and an another sale deed in 2011.
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C.R.P.(PD) No.1200 of 2021
● The property covered in the sale agreement which John has
obtained from Kumarasamy includes the properties in Survey
Nos.282, 286/3, 286/10, 144/2 and 286/8. Jayamary however
appeared to have dealt with the property in Survey No.144/1.
3. The plaintiffs would now contend that :
● Turning to E.P.No.108/1993 which John had filed, and
subsequent to its closure, some of the other heirs other than the
9th defendant and Jayamary had come up with E.P.No.62/2005,
which was laid against the 9th defendant and that came to be
dismissed on 05.02.2018.
● Contending that when E.P.No.62/2005 was dismissed, the
property would revert back to the family of Kumarasamy or the
heirs of Kumarasamy.
● The heirs of Kumarasamy has laid the present suit.
● In such circumstances, the 9th defendant has taken out an
application for rejecting the plaint on the grounds that :
➔ Suppression of material facts leading to abuse of judicial
process.
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C.R.P.(PD) No.1200 of 2021
➔ Limitation.
➔ Non-disclosure of cause of action.
4.1 Mr.Jeremiah, the learned counsel appearing for the revision petitioners
submitted that earlier some of the heirs of Kumarasamy had laid
O.S.No.244/2005 before the Additional District Munsif Court,
Poonamallee, for bare injunction against Jayamary and Rajasekaran, the 9th
defendant in the present suit, and others. In that suit, Jayamary and the 9th
defendant herein have contested the suit, and rested the defence on the
Power of Attorney executed by Kumarasamy in favour of Jayamary on
29.01.1998. Indeed, the Power of Attorney itself came to be registered as
Ex.B3, and the Court acted on that, as could be seen in paragraph No.31 of
its judgment dated 22.04.2008, and this decree became final. There was
yet another suit, which the plaintiffs in the present suit and others have
filed is O.S.No.678/2006 before the Additional District Munsif,
Poonamallee, for bare injunction. In this, the 9th defendant herein was
arrayed as second defendant. Even in this suit, the 9th defendant has filed
the Power of Attorney referred to above, which came to be marked as
Ex.B2. Yet another time the plaintiffs were unsuccessful, and the suit came
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C.R.P.(PD) No.1200 of 2021
to be dismissed and the decree has become final.
4.2 The learned counsel argued that in the present suit, no reference is made
to neither of the two decrees passed in O.S.No.245/2005 and
O.S.No.678/2006 .
4.3 The learned counsel would further argue that when once the sales were
made by Jayamary on the strength of the Power of Attorney executed by
Kumarasamy, and if at all it has to be challenged, it should have been
challenged at the earliest point of time. But here the suit is laid after
several years, not only after the execution of sale deeds by Jayamary, but
also after the expiry of limitation prescribed therefor.
4.4 Thirdly, the cause of action is founded on the dismissal of
E.P.No.62/2005. This execution petition was filed by some of the heirs of
John against the 9th defendant. When this execution petition was
dismissed, it cannot give any cause of action to Kumarasamy.
5. The learned counsel for the respondents would argue that :
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C.R.P.(PD) No.1200 of 2021
(a) Of the few sale deeds that Jayamary had executed as the Power of
Attorney of Kumarasamy, only two may be valid, because they
were executed before the demise of Kumarasamy and the rest of
the sale deeds cannot have any legitimacy in law, since on the
date they executed, Kumarasamy, the principal had already died.
(b) And three of such sale deeds which Jayamary had executed in
favour of the 9th defendant, who in turn had sold the property to
third parties through his Power of Attorney. When the 9th
defendant himself cannot derive any title under the sale deeds
executed by Jayamary after the demise of Kumarasamy, the
principal, those sale deeds necessary are invalid.
(c) While the Power of Attorney document does not deal with Survey
No.144/1, Jayamary generously included this survey number
when she sold the properties.
(d) When E.P.No.62/2005 was dismissed on 05.02.2018, the property
would revert back to the family of Kumarasamy, who is now
dead.
(e) In the suit, the 9th and 10th defendants, the revision petitioners
herein have already filed their written statement on 28.10.2021,
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and issues too have been framed. Hence, the revision has literally
become infructuous.
6. In response, the counsel for the revision petitioners submitted that
E.P.No.62/2005 and its dismissal may have to be understood in the context,
John had instituted a suit for specific performance, obtained a decree, and
laid an execution petition in E.P.No.30 of 1987. His widow Jayamary got
impleaded in his place, and Jayamary and Kumarasamy arrived at a certain
understanding, by which Kumarasamy has executed the Power of Attorney
referred to earlier, and the execution petition laid by John also came to be
closed alongside. Few years later, the other heirs of John and Jayamary
came to file E.P.No.62/2005 for protecting certain issues vis-a-vis, the 9th
defendant / revision petitioner herein, and when that came to be dismissed,
the benefit would go to the 9th defendant and not the plaintiffs.
7. After carefully weighing the rival submissions, this Court finds that :
(a) There is considerable merit in the core contention of the counsel
for the plaintiffs/respondents herein, that when once Kumarasamy
had passed away, Jayamary, his agent did not have any right to
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C.R.P.(PD) No.1200 of 2021
deal with the property covered by the Power of Attorney. But the
merit ends right there. Here is a situation where the plaintiffs
herein have either on their own or along with others have laid
atleast two suits in O.S.No.244/2005 and O.S.No.678/2006, to
which reference has already been made above. In both the suits,
Rajasekaran, the first revision petitioner was arrayed as second
defendant, and he has pleaded about the Power of Attorney
executed by Kumarasamy, and also about his own title. This
came to be considered by the trial Court and acting upon which,
the trial Court dismissed both the suits. The date of filing of
written statement in O.S.No.244/2005 by the 9th defendant is the
earliest date, the plaintiffs ought to have known what they are up
against, but they did not act. Then, this was followed by another
litigation in O.S.No.678/2006, wherein the present revision
petitioner is the second defendant, has taken up almost identical
plea, and this came to be dismissed on 31.03.2011. In this suit,
not only the Power of Attorney was marked on the side of the
defendants, but a copy of the judgment in O.S.No.244/2005 also
came to be marked. Even now, the plaintiffs remain immobile
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C.R.P.(PD) No.1200 of 2021
and they waited for another eight years to file the present suit, not
for declaration of title, or recovery of possession, but for
cancellation of several sale deeds and for partition. The
limitation for cancellation of documents in all such circumstances
would start is three years, and even if the date of knowledge has
to be reckoned, as already indicated, it has to be reckoned from
the time when the 9th defendant presented his written statement in
O.S.No.244/2005. This had happened any time before
22.04.2008, the date on which O.S.No.244/2005 came to be
dismissed. In fine, the suit is terribly barred for the prayers that
are sought. If it were to be considered even as a case for
possession, still the relief would be badly hit by limitation today.
(b) The next point involved is inclusion of Survey No.144/1.
Admittedly, this survey number is not included in the Power of
Attorney executed by Kumarasamy in favour of Jayamary.
Obviously Jayamary would not have title to deal with the property
on the strength of Power of Attorney. But here, the learned
counsel for the revision petitioner would submit that in the earlier
suits, it has been found that the property covered in S.No.144/1 is
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C.R.P.(PD) No.1200 of 2021
an Eri Poromboke or a Water body, and the plaintiffs cannot
claim right of partition over the same. If at all, the better title
holder is the Government and not the plaintiffs.
(c) Turning to the allegation of cause of action for filing the suit is
concerned, the plaintiffs have rested the cause of action on the
dismissal of E.P.No.62/2005. This E.P is between the children of
John, and it is no way concerned with the plaintiffs. The
plaintiffs can hardly derive any benefit out of the existence or
pendency or dismissal of the said E.P., since their right does not
flow from the petitioners in E.P.No.62/2005. It may also be
added here that this Court witnessed that the plaintiff has not even
been fair to the Court in not pleading O.S.No.244/2005 and
O.S.No.678/2006, in the plaint. This is not only something that
need to be deprecated, but taken alongside the alleged cause of
action constitutes an abuse of judicial process.
8. On the aforesaid three scores, the present suit cannot survive. However,
there is one contention pertaining to Survey No.144/1. It is contended that
this property is stated to be an Eri Poromboke, yet in the earlier round of
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C.R.P.(PD) No.1200 of 2021
litigations, the Revenue Officials were not a party. This property is also a
subject matter in dispute in O.S.No.678/2006, wherein the Revenue
Officials came to be examined and who had deposed before the Court that
it is an Eri Poromboke and that unless the plaintiffs show pre-existing title
to S.No.144/1, they cannot sustain the suit.
9. The learned counsel for the plaintiffs/respondents submitted that
Kumarasamy was issued with patta in Survey No.144/1. Therefore, if at all
any triable issue should arise, it is only with regard to Survey No.144/1,
and not with others. Therefore, this revision is partly allowed and the
suit as concerning all the survey numbers except Survey No.144/1, needs to
be struck off. No costs. Consequently, connected miscellaneous petition
is closed.
06.04.2022
ds
Index : Yes / No
Internet : Yes / No
Speaking order / Non-speaking order
To:
The III Additional District and Sessions Judge,
Tiruvallur at Poonamallee.
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C.R.P.(PD) No.1200 of 2021
N.SESHASAYEE.J.,
ds
C.R.P.(PD) No.1200 of 2021
06.04.2022
https://www.mhc.tn.gov.in/judis
