Madras High Court
Chinnathayammal vs Chinathambi on 14 October, 2022
C.R.P.(PD)No.2233 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 14.10.2022
CORAM :
THE HON'BLE Mrs.Justice J.NISHA BANU
C.R.P.(PD)No.2233 of 2019
and
C.M.P.No.14030 of 2018
1. Chinnathayammal
2. K.Saravanan
3. Kumaravel
4. Kumuthavalli .. Petitioners
Vs
1. Chinathambi
2. Dhanasekaran ..Respondents.
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India against the fair order and decree dated 18.06.2018
made in I.A.No.1304 of 2015 in O.S.No.4 of 2015 on the file of the District
Munsif, Pappireddipatti.
For Petitioners : Mr.G.Arul Murugan
For Respondents : Mr.S.N.Subramani
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C.R.P.(PD)No.2233 of 2018
ORDER
This Civil Revision Petition has been filed by the defendants against
the fair order and decree dated 18.06.2018 made in I.A.No.1304 of 2015 in
O.S.No.4 of 2015 on the file of the District Munsif, Pappireddipatti. The
said I.A. was filed to reject the plaint.
2. The case of the petitioners in short is as follows:
The Suit in O.S.No.4 of 2015 has been filed by the
plaintiffs/respondents herein praying for declaration to declare that the
registered Will dated 04.10.1980 executed by Kolandai Gounder and
registered as Document No.37/1980 on the file of Sub-Registrar,
Pappireddipatti as null and void and will not bind on the plaintiffs. The
petitioners/defendants' father Kolandai Gounder has executed the said Will
in their favour. Earlier the plaintiffs have filed a suit against these
petitioners/defendants in O.S.No.5/1989 before the District Munsif Court,
Harur, for declaration and the petitioners defended the same. The suit was
dismissed on 07.10.1993. Challenging the same, the plaintiffs filed First
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C.R.P.(PD)No.2233 of 2018
Appeal in A.S.No.17 of 1997 before the Subordinate Court, Krishnagiri,
which was also dismissed and they filed Second Appeal in S.A.No.886 of
2008 before this Court and the same is pending. As such, the plaintiffs had
knowledge of the Will dated 04.10.1980 from the year 1989. But the
plaintiffs have filed the present suit only on 05.10.2015, challenging the
Will dated 04.10.1980, which is beyond the period of limitation and hence,
the suit is barred by limitation. The plaintiffs have not explained the delay
or stated any details about the knowledge of the Will dated 04.10.1980 or
reasons as to why the same is challenged after 35 years. Hence, the
petitioners filed interlocutory application in I.A.No.1304/2015 to reject the
plaint but the same was dismissed by the trial Court. Hence, this C.R.P.
3. Heard the learned counsel for the petitioners/defendants and the
learned counsel appearing for the respondents/ plaintiffs.
4. Learned counsel for the petitioners would submit that the
respondents/plaintiffs had knowledge of the Will dated 04.10.1980 in the
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C.R.P.(PD)No.2233 of 2018
year 1989 itself, when they filed O.S.No.5 of 1989 and the Will has been
furnished in the said suit by the petitioners herein. But the plaintiffs have
filed this suit only on 05.01.2015, which is beyond the period of limitation
and therefore, the suit is barred by law of limitation. The
respondents/plaintiffs have not explained the delay as to why they have
challenged the same after 35 years. Learned counsel would further submit
that the validity of the Will dated 04.10.1980 has been upheld in the
judgments rendered in the former suits in O.S.No.8 of 2008, O.S.No.9 of
2008 and O.S.No.44 of 2008 between the same parties and hence, the suit is
barred by doctrine of res judicata. He would further submit that the suit has
been filed suppressing the material facts and the plaintiffs have not
approached the court with clean hands. The learned trial Judge has failed to
give any valid and cogent reason in support of his findings rendered in the
said application. Hence, the order passed in I.A.No.1304 of 2015 is liable to
be set aside and the C.R.P. has to be allowed.
5. In support of his contentions, the learned counsel for the
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C.R.P.(PD)No.2233 of 2018
petitioners would rely on the following decisions:
i) 1977 (4) SCC 467 (T.Arivandandam v. T.V.Satyapal)
ii) 2002 (10) SCC 501 (Raj Narain sarin v. Laxmi Devi)
iii) 2007 (5) SCC 614 (Hardesh Ores (P) Ltd. vs. Hede and Company)
iv) 2016 (15) SCC 654 (Venkatanatha Chary v. Nalla Raji Reddy)
v) 2021 SCC Online (SC) 238 ( K.Akbar Ali v. K.Umar Khan)
6. On the other hand, the learned counsel for the
respondents/plaintiffs would submit that they were not party to the
proceedings in O.S.Nos. 8 and 9 of 2008. It is to be noted that when the
Court is called upon to exercise the jurisdiction to reject the plaint under
Order 7 Rule 11 of CPC, the averments made in the plaint and the
documents filed along with the plaint which form part thereof alone, have
be taken into consideration and the Court cannot consider the defence pleas
or materials submitted by the defendant for the purpose of rejecting the
plaint. Insofar as the plaintiffs' plea of res-judicata is concerned, there is
nothing to indicate that the validity of the Will dated 04.10.1980 was
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C.R.P.(PD)No.2233 of 2018
already upheld in the former litigations arose between the same parties. At
no point of time, the patta, chitta, tax receipts stand in the name of
Kolandaigounder with regard to the plaint schedule properties. So
Kolandaigounder has no right to execute the alleged Will. Chitta, A-
Register, patta stand in the name of respondents/plaintiffs only and the
respondents/plaintiffs are continuously paying tax to the authorities. The
trial Judge in O.S.No.5 of 1983 had clearly held that the documents clearly
proved that the respondents/plaintiffs are in possession of the suit schedule
properties.
7. The suit in O.S.No.9/2008 filed by the petitioners/defendants
against the respondents/plaintiffs and government authorities seeking
mandatory injunction restraining the government authorities not to issue
patta in favour of the respondents/plaintiffs was dismissed with costs on
28.08.2014 and the petitioners/defendants did not prefer any appeal,
eventhough the court decided that the petitioners/defendants did not prove
their possession and did not seek for declaration of title. Hence, this C.R.P.
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C.R.P.(PD)No.2233 of 2018
has got to be dismissed.
8. In support of his contentions, the learned counsel for the
respondents/plaintiffs would rely on the following decisions:
i) 2012 (8) SCC 701 (Bhau ram v.Janka Singh)
ii) 2019(13) SCC 372 (Urvashiben v. krishnakant Manuprasad
Trivedi)
iii) 2020 (12) SCC 809 (Vaish Aggarwal Panchayat)
iv) 2020 SCC Online SC 482 (Shakti Bhog Food Industries Ltd. v.
Central Bank of India).
9. This Court, considered the submissions made on either side and
perused the materials available on records.
10. From perusal of the records, it is seen that the
respondents/plaintiffs have established that they are in possession and
enjoyment of the property from the year 1975. The petitioners/defendants
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C.R.P.(PD)No.2233 of 2018
herein have not sought for declaration of title to the suit property but have
sought for mandatory injunction restraining the government authorities not
to issue patta in favour of the respondents/plaintiffs in O.S.No.9 of 2008
and the said suit was dismissed with costs. The revision petitioners did not
file any appeal against the said judgment. The Courts below have
specifically given a finding that the petitioners did not prove possession and
did not seek for declaration of title. Further, the respondents/plaintiffs are
continuously paying tax to the authorities. Apart from that, Chitta, A-
Register, Patta stands in the name of the respondents/ plaintiffs only,
whereas the revision petitioners name do not find place in the revenue
records. Therefore, this Court is of the considered opinion that Kolandai
Gounder was not having any right over the suit schedule property and does
not have right to execute the Will. In respect of one of the issues of the
respondents/plaintiffs' regarding possession, raised in O.S.No.5 of 1989,
the learned trial Judge came to the conclusion that the respondents/plaintiffs
are in possession of the suit schedule properties and the same was accepted
by the revision petitioners/defendants in their evidence. Since the revision
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C.R.P.(PD)No.2233 of 2018
petitioners/defendants have not preferred any appeal against the dismissal of
the suit in O.S.No.9 of 2008 filed by them, the judgment is binding on the
revision petitioners/defendants and it is still in favour of the
respondents/plaintiffs. Further, there is nothing to indicate that the validity
of the Will dated 04.10.1980 was already upheld in the former litigations
arose between the same parties. The decisions relied on by the learned
counsel for the petitioners do not apply to the facts of the present case.
11. Under such circumstances, this Court finds that there is no
illegality or infirmity in the order dated 18.06.2018 passed in I.A.No.1304
of 2015. Accordingly, the Civil Revision Petition stands dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
14.10.2022
Index :Yes/No
Speaking/Non-speaking order
vsi
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C.R.P.(PD)No.2233 of 2018
To
The District Munsif,
Pappireddipatti.
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C.R.P.(PD)No.2233 of 2018
J.NISHA BANU, J.
(vsi)
C.R.P.(PD)No.2233 of 2018
14.10.2022
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