Madras High Court

Kalaiselvi vs A.R.Mohamed Unais on 29 March, 2023

                                                                           C.R.P(MD).No.1053 of 2022


                        BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED : 29.03.2023

                                                      CORAM

                                  THE HONOURABLE MR.JUSTICE C.SARAVANAN
                                           C.R.P(MD).No.1053 of 2022
                                                     and
                                           CMP(MD)No.4223 of 2022

                  1.Kalaiselvi
                  2.Mohan
                  3.Ponmalar
                  4.Jeyabalan
                  5.Poongodi
                  6.Maanvizhi
                  7.Minor.Dharshana Nachiyar
                   (represented by the Grandmother and Guardian
                    1st Petitioner/Kalai Selvi)
                                                  ... Petitioners/Respondents 1 to 7/Plaintiffs

                                                        Vs.

                  1.A.R.Mohamed Unais
                   (Power of Attorney is deleted vide
                  court order dt 20.03.23 made in
                  CRP(MD) No.1053/2022 by CSNJ)
                                                    ... Respondent/Petitioner/3rd Party

                  2.The State represented by the District Collector,
                    Having office at Sethupathy Nagar,
                    Ramanathapuram Town.

                  3.The Revenue Divisional Officer,
                    Having office at G.H.Road,
                    Ramanathapuram Town.



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                                                                            C.R.P(MD).No.1053 of 2022


                  4.The Tahsildar,
                    Having office at
                    Vandikara Theru,
                    Ramanathapuram Town.

                  5.The Chief Educational Officer,
                    having office at OM Sakthi Nagar,
                    Aranmanai Salai,
                    Ramanathapuram Town.

                  6.Nubulath Beevi
                  7.Fathuma Beevi
                  8.Panchavarnam
                  9.Mohamed Hanifa

                  10.The President,
                     North Street Mosque Jamath,
                     Puthu Madam,
                     Ramanathapuram Taluk,
                     Ramanathapuram District.

                  11.Ramamoorthy
                  12.Pasool Raheem
                  13.Arul Raj                           .... Respondents 3 to 13/Respondents
                                                                  8 to 19/Defendants

                  PRAYER:- This Civil Revision Petition has been filed under Article 227 of
                  the Constitution of India, to call for the records of the impugned fair and
                  decreetal order in I.A.No.265/2021 in O.S.No.45/2020 dated 25.11.2021 on
                  the file of the learned Principal District Court, Ramanathapuram. quash the
                  same and directing the trial court to reopen the suit in O.S.No.45/2020
                  forthwith and granting such other and further reliefs which this Hon'ble court
                  deems fit and proper in the circumstances of this case.




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                                                                                C.R.P(MD).No.1053 of 2022


                                    For petitioners         : Mr.RM.Arun Swaminathan

                                    For Respondent No. 1 : Mr.J.Barathan


                                                         ORDER

This petition has been filed seeking to quash the impugned fair and

decreetal order in I.A.No.265/2021 in O.S.No.45/2020, dated 25.11.2021, on

the file of the learned Principal District Court, Ramanathapuram, and

directing the trial court to reopen the suit in O.S.No.45/2020.

2.The petitioners are the plaintiffs before the learned Principal District

Court, Ramanathapuram, in O.S.No.45 of 2020. In the said suit, the first

respondent herein represented by his power of attorney filed an application in

I.A.No.265 of 2021 under Order 1 Rule 10(2) of CPC to impleade himelf as a

defendant. The said application was allowed by the Principal District Court,

Ramanathapuram, vide impugned fair and decreetal order dated 25.11.2021.

Aggrieved by the same, the petitioners, who are the plaintiffs in the said suit

have filed this Civil Revision Petition.

3.Specifically, reference is made to the affidavit filed by the first

respondent before the Court in I.A.No.265 of 2021, wherein, the first

respondent herein has stated that the land in question in S.No.147/1A1A has

https://www.mhc.tn.gov.in/judis C.R.P(MD).No.1053 of 2022

been gifted by his mother along with the other lands in S.No.156/1B1 and

S.No.147/8 to him.

4.The specific case of the petitioner is that the petitioners are the

dominus litis. They are entitled to chose the parties and therefore the first

respondent have indeed rights over the property by a gift deed in favour of

the Government. It is further submitted that the petitioners who are the

plaintiffs in O.S.No.45 of 2020 are the owners of the land and have been in

possession of the land measuring on extent of 5.5 acres in S.No.141/1A1A

and an extent of 2.5 acres had already been sold and the balance of 3 acres

which has been partitioned among the petitioners herein.

5.It is submitted that the first respondent is a stranger to the

proceedings and that the suit has been filed only for a declaration and

permanent injunction to restrain the official respondents or their agents from

interfering with the compound wall sought to be put up by the petitioners'

safeguard in the interest of the property.

6.Opposing the present Civil Revision Petition, the learned counsel for

the first respondent submits that the conduct of the petitioners is dubious. It

https://www.mhc.tn.gov.in/judis C.R.P(MD).No.1053 of 2022

is submitted that earlier O.S.No.24 of 2014 was filed among the petitioners

for partition among the family members. It is submitted that in O.S.No.24 of

2014, a preliminary decree was also secured by them on 22.01.2015 in a

fraudulent manner. It is submitted that the fourth defendant, who is the fifth

defendant in O.S.No.45 of 2020 and all the other defendants remained absent

in the said proceedings. Thus the ex-parte preliminary decree was obtained

by filing a collusive suit in O.S.No.24 of 2014. It is further submitted that the

said suit partition is itself based on the gift deed which is said to have been

executed by the Late.Kajendran Pandian, the father of the petitioners and few

revenue records which were also cancelled. It is further submitted that the

land was gifted by the first petitioner's mother to the fifth respondent for

constructing a school. It is submitted that the contesting petitioners, who are

the plaintiffs in O.S.No.45 of 2020, cannot inter meddle with the land which

was gifted by the first respondent's mother for constructing a School.

Therefore, the Trial Court has rightly allowed the application for impleading

the first respondent as a defendant. Further submitted that the first respondent

has right under Section 55(1)(g) of the Transfer of Property Act,1982 in

terms of interpretation given by this Court and therefore, the order passed by

the Trial Court does not require any interference on the hands of this Court.

https://www.mhc.tn.gov.in/judis C.R.P(MD).No.1053 of 2022

7.The learned counsel for the petitioners would submit that an

Advocate Commissioner was also appointed prior to impleading of the first

respondent vide order in I.A.No.115 of 2020. The Advocate Commissioner

also given a report on 04.02.2021 wherein it has been categorically stated as

under:-

7.tiuglk; 1y; fz;l A Kjy; A1 tiuapyhd gFjp ghijahf ,Ue;jJ. A Kjy; A1 tiuapyhd gFjp 8 rJu kPl;lh; Mf ,Ue;jJ. Tiuglk; 1y; rh;nt vz;.147/1A1Ay;> A, A1, A2, A3, Ay; fz;l gFjpahdJ ghijahf fhzg;gl;lJ. nkw;fz;l A1, A2, A3 gFjpa[k; jFe;j ,ilbtspapy; nty;pf;fw;fs; Cd;wg;gl;L ,Ue;jd.

8.rh;nt vz; 147/1A1A y; fz;l brhj;jpd; tiuglk; 1y;

                             fz;l                     F ghap;z;oy; S.O.M.mg;Jy;u]Pd;-ep
                             $hk;ngfk;      mth;fshy;        g[Jklk;      muR           bgz;fs;

cah;epiyg;gs;spf;F jhdkhf tHq;fg;gl;l 5 (Ie;J) Vf;fh; epyk; jkpHf muR khtl;l eph;thfk; fy;tpj;Jiwf;F brhe;jhkhdJ. ,e;j ,lj;ij Mf;fpukpg;;g[ bra;tnjh> thq;Ftnjh> tpw;gnjh rl;lg;go Fw;wkhFk;. ,g;gof;F jkpHf muR khtl;l eph;thfk; khtl;l fy;tpj;Jiw vd;w mwpt[g;g[ gyif itf;fg;gl;L ,Ue;jJ. ,e;j gyif nkYk;