Madras High Court
P.Devi vs / on 10 June, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
A.S.No.85 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 03.06.2025 Pronounced on : 10.06.2025
Coram::
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Appeal Suit No.85 of 2022
A.Palani Achari (died)
1. P.Devi, (F/30),
D/o.A.Palani Achari,
Residing at:
Vinayakar Street, Biyarnatham,
Pappireddipatti, Dharmapuri District. ... Appellants/Plaintiffs
/versus/
1. Mani,
2. Shanthi,
3. Elango,
4. Vennila,
5. Shanmugam, ... Respondents/Defendants, 1 to 4 and 13
Prayer: Appeal Suit has been filed under Section 96 of Code of Civil Procedure,
1908, praying to set aside fair and decreetal order dated 02.08.2021 in I.A.No.6 of
2021 in O.S.No.134 of 2019 passed by the Hon'ble Additional District Judge,
Dharmapuri and allow the Appeal Suit.
For Appellant : Ms.P.Devi,
for Mr.V.Vinayagamoorthy.
For Respondents : Mr.V.Sakkarapani
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A.S.No.85 of 2022
JUDGMENT
The appeal has been filed by the plaintiffs. On being aggrieved by the
rejection of their plaint pursuant to an application by the defendants filed under
Order VII Rule 11 of the Code of Civil Procedure (C.P.C.).
For the sake of convenience, the parties are referred as per their status
and ranking in the original suit.
2. The plaint in O.S.No.134 of 2019 which is the subject matter of the
appeal was filed by Mr.A.Palani Achari (deceased) and his daughter, P.Devi in
respect of the property purchased by the father of the first plaintiff Angachari in
the year 1956. The said Angachari died on 03/04/2000 leaving behind five sons
and two daughters. O.S.No.134 of 2019 filed by Palani Achari and his daughter
Devi against the other legal heirs of Angachari for partition contending that
Angachari during the lifetime gifted a portion of the property measuring 2616 sq.ft
in S.No.27/1B1 to his son Palani Achari (1st plaintiff) upon which he had
constructed a house and living along with his wife and daughter (2nd Plaintiff).
Thereafter, on 11/04/2019, the first plaintiff had settled the said property in favour
of his daughter the second plaintiff. After the demise of Angachari, the legal heirs
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were peacefully enjoying the remaining portion of the property as joint family
property. However on 20.07.2019, due to quarrel over a chit transaction, the 13th
defendant - Shanmugam who is one of the sons of Angachari and brothers of the
plaintiff tried to interfere with the peaceful possession of the portion of the
property upon which the plaintiff had constructed his house. Hence, the plaintiff
filed O.S.No.85/2019 before the District Munsif Court, Pappireddipatty for bare
injunction. Thereafter, 13th defendant - Shanmugam filed O.S.No.108/2019
contending that in view of misdescription of the property and in view of the civil
Court decree dated 08/07/2005 in O.S.No.318 of 2000 declaring the Will of
Angachari dated 01/06/1998 in favour of 13th Defendant - Shanmugam as valid.
The settlement deed of the first plaintiff in favour of the second plaintiff is null
and void. Then plaintiffs came to know about the Will and the declaration decree
obtained behind their back.
3. Hence, the suit O.S.No.134/2019 to: i) divide the suit property by
metes and bound and allot 1/8th share to the plaintiff. ii) declare the Will dated
01/06/1998 alleged to have been executed by Angachari as null and void ; and iii)
to cancel the decree passed in O.S.No.318/2000 as collusive and voidable.
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4. Shanmugam/the 13th Defendant, besides filing written statement
along with the defendants 1 to 4, had also filed an application under Order VII
Rule 11 of the C.P.C., to reject the plaint on the ground that the suit in O.S.No.134
of 2019 is barred by law, in view of the decree passed in O.S.No.318 of 2000 by
the District Munsif Court, Harur on 08/07/2005, which was confirmed by Sub-
Court, Harur in A.S.No.14 of 2009 on 23/03/2011. The earlier suit was in respect
of the same property and parties are almost same. The first plaintiff in this suit
was the second defendant in the earlier suit in O.S.No.318/2000. He know about
the Will executed by Angachari in favour of Shanmugam (fifth petitioner/13 th
defendant) and remained exparte with knowledge. The bare injunction suit
O.S.No.85/2019 filed by the plaintiffs was stayed by High Court on 27/08/2019 in
C.M.P.No.18338/2019 in C.R.P.No.2801/2019. Hence, the later suit filed in
respect of same property and same relief of declaration is barred by the principle
of resjudicata.
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5. Though, it was contended by the plaintiffs that the cause of action
for the subsequent suit is different and that the judgment and decree in the earlier
suit will not act as res judicata, the Trial Court held that the subsequent suit
O.S.No.134/2019 is barred by law in view of the earlier decree in
O.S.No.318/2000 as confirmed in A.S.No.14/2009.
6. In the above said background, the instant Appeal suit is filed on the
ground that, the decree passed in O.S.No.318/2000 is a collusive decree. The
limitation will not apply to file suit to declare a collusive decree as void. The said
decree is exparte decree. It was not heard and decided on merits. Therefore, the
principle of resjudicata will not apply. While considering application for rejection
of plaint, the Court ought to consider only the pleadings as found in the plaint and
nothing else. Adjudication of the plea of resjudicata requires consideration of
pleadings, issues and decision in the previous suit namely, O.S.No.318/2000, such
plea cannot be considered summarily in the application to reject the plaint. The
issues involved in O.S.No.318/2000 is different from the issues in the instant suit
O.S.No.134/2019. When the validity of the decree in O.S.No.318/2000 is the
issue and subject matter of the subsequent suit O.S.No.134/2019, citing judgment
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obtained under a cloud plea of resjudicata cannot be raised.
7. It was also contended that the revision petition filed to reject the
plaint dismissed by the High Court suppressing the said fact the petition under
Order VII Rule 11 C.P.C., filed for the same relief. The Court below failed to take
note of the fact that the C.R.P.No.3653/2019 before High Court filed by the
petitioner/defendant for rejection of plaint in O.S.No.134/2019 was dismissed.
8. The Learned Counsel for the appellant reiterated in her oral
submissions that, to the facts of the instant case, neither law of limitation nor
principle of resjudicata will apply. The decree in the earlier suit in
O.S.No.318/2000 obtained in collusion cannot be a ground to deprive the right of
the plaintiffs to prove their right/share in the suit schedule property. After the
settlement of a portion of the property measuring 2616 sq.ft of land in S.No.27/1
B1, vide settlement deed dated 29/02/2000 by Angarchari in favour of Palani
Achari/the first plaintiff, the Will dated 01/06/1998 executed by the Angachari has
become implicitly cancelled. The relief and cause of action in the subsequent suit
O.S.No.134/2019 is different, the trial Court ought not to have allowed the petition
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to reject the plaint particularly when High Court rejected the identical prayer in
C.R.P.No.3653/2019.
9. Per contra, the Learned Counsel for the respondent/defendants
submitted that, the matter directly and substantially in issue in the instant suit is
the suit property held by Angachari and the devolution of the said property after
his demise. The same matter been heard and decided finally in O.S.No.318/2000
wherein, the bequeath of the property to the 13th defendant (Shanmugam) through
the Will dated 01/06/1998 held valid and confirmed in the appeal filed by one of
the defendant by name Arumugam. The first plaintiff was a party to the earlier
suit. He did not contest the case despite notice. Though he was set exparte, the
other brother by name Arumugam contested the suit and it was heard and decided
on merits. It was not an exparte decree as contended by the Counsel for the
appellant/plaintiff. In a partition suit all the parties are plaintiffs. The matter in
issue thus heard and decided finally between the parties. One of the issue in the
earlier suit is whether the Will of Angachari dated 01/06/1998 is genuine. The
trial Court as well as the First Appellate Court had answered this issue in
affirmative.
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10. The first plaintiff in the instant case is a party to earlier suit. He
cannot feign ignorance about the earlier suit or the decree passed therein.
Therefore, the impugned plaint challenging a valid decree in a subsequent
proceeds after 14 years is vexatious. By suppressing material facts, the vexatious
suit filed seeking partition brushing aside the Will already proved in the manner
know to law.
11. After filing suit for bare injunction in O.S.No.85/2019 they tried
to interfere the peaceful possession hence the 13th defendant - Shanmugam was
constrained to file O.S.No.108/2019 against this plaintiffs and others to declare
the settlement deed executed by the first plaintiff herein in favour of his daughter
the second plaintiff herein with false description of survey number. Hence, the
suit O.S.No.134/2019 which is barred by law was rightly dismissed by the trial
Court on merits. Hence to be confirmed.
Point for determination:-
Whether O.S.No.134/2019 is a subsequent suit
between the parties for same matter which already
heard and decided in O.S.No.318/2000, thereby attracts
Order VII Rule 11 (4) of C.P.C ?
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12. The matter in dispute is the property left by Angachari. The real
dispute is between his two sons one by name Mr.Palani Achari (first plaintiff in
O.S.No.134/2019) and another by name Shanmugam (13th Defendant in
O.S.No.134/2019). The case of Shanmugam is that, his father during his lifetime
executed a Will on 01/06/1998 in respect of property morefully described in the
earlier suit O.S.No.318/2000 filed by him against his 4 brothers for declaration of
title over the property based on the Will and for perpetual injunction. In the
earlier suit Palani Achari who was arrayed as second defendant remained exparte.
Another brother Arumugam who was arrayed as 3rd defendant alone contested the
suit disputing the genuinity of the Will of Angachari. The District Munsif Court,
Harur allowed the suit declaring the Shanmugam the title holder of the suit
property. The Will of Angachari in favour of Shanmugam and marked as Ex.A-1
was held genuine.
13. Against the Judgment and decree dated 08/07/2005 in
O.S.No.318/2000, Arumugam filed A.S.No.14/2009 on the file of Sub-Court,
Harur and same was dismissed on 23/03/2011. Hence, the subsequent suit in
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O.S.No.134/2019 filed by Mr.Palani Achari and his daughter Devi for division of
the properties left by Angachari by metes and bound into 8 parts and allot 1/8 th
share to the plaintiffs is barred.
14. The contention that, during his lifetime Angachari settled 2616
sq.ft of land in S.No:27/1B1 in favour of his son Palani Achari on 29/02/2000 and,
he, in turn had settled it in favour of his daughter Devi on 03/04/2000, partition
suit excluding a portion does not change the character or cause of action.
15. The schedule of property in O.S.No.318/2000 refers lands in 5
different survey numbers in Pappireddipatty village, with extend and Kist as
under:-
Sl.Nos. Survey Number Extend Kist
1 26/2 2.81 Acres Rs.2.81
2 27/1B1 0.69 ½ acres Rs.0.68
3 27/4A 0.02 ½ acres Rs.0.06
4 19/2 4.67 acres Rs.5.84
5 27/1A3A 0.10 Acres Rs.0.11
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16. The judgment in O.S.No.318/2000, deals with issues whether the
Will dated 01/06/1998 is genuine?; whether the suit is bad for non-joinder of the
daughters of Angachari and whether the plaintiff (Shanmugam) entitle for
declaration of title and injunction. Based on the evidence, all were held in favour
of the plaintiff in that suit namely, Shanmugam.
17. Mr.Palani Achari in the instant suit who was a party to the earlier
suit had not participated in the suit and he had not brought to the notice of the
Court about the settlement deed dated 29.02.2000 executed in his favour by
Angachari. He contrarily, after settling the 2616 sq.ft of land in S.No.27/1B 1 in
favour of his daughter Devi on 11.04.2019 had first instituted O.S.No.85/2019 for
bare injunction in respect of the entire 5 items of properties mentioned above
without disclosing the fact that he suffers a declaration decree passed in favour of
Shanmugam in O.S.No.318/2000 and not even disclosed the settlement deed
alleged to have executed by his father Angachari to an extend of 2616 sq.ft in
S.No.27/1B1. Not stopping, the said Palani Achari and his daughter Devi had
filed the instant suit in O.S.No.134/2019, declaration of title and permanent
injunction for the very same properties which are subject matter of the bare
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injunction suit in O.S.No.85/2019. Conveniently, suppressing the suit institution
of the suit in O.S.No.85/2019.
18. The trial Court, after perusal of the record has rightly rejected the
plaint assigning reasons.
19. The Courts had consistently held that, the previous suit which has
reached its finality even if it is exparte decree, same cannot be reagitated. If such
practice is entertained, Section 11 of C.P.C., which has a strong basis of public
policy will become redundant.
i) R.Govindasamy (died) and others -vs- Kasthuri ammal and
others reported in AIR 1998 Mad 218.
ii) In Vishnu Sugar Mills Ltd., -vs- I.S.P. Trading Co., reported in
AIR 1984 Cal 246.
iii) P.Kaliammal -vs- V.Rathinammal reported in 2017 (2) CTC 160
are referred and relied.
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20. As a result, the irresistible conclusion would be, the judgment and
decree in the earlier suit O.S.No.318 of 2000 binds Mr.Palani Achari since he is
one of the party in that suit and it is a decree passed after contest, by other
defendant though not by Palani Achari. The Principle of resjudicata squarely
applies to the facts of this case. That apart, it is also noted that, the suit in
O.S.No.134/2019 is filed after filing a bare injunction suit in O.S.No.85/2019,
without disclosing it or without obtaining any leave to file a title suit
subsequently. Presumable the suppression of earlier suit filed for bare injunction
is to overcome the bar under Order II Rule (2) of C.P.C.
21. In the considered view of this Court, the facts narrated above,
Section 11 r/w explanation IV of C.P.C., which bars institution of fresh suit for
the same subject matter already heard and decided principle known as resjudicata
is clearly attracted. Hence due to the legal bar, the suit in O.S.No.134/2019 is
rightly rejected by the trial court.
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22. The point for determination is answered accordingly. In the result,
Appeal Suit No.85/2022 stands dismissed. No order as to costs.
10.06.2025
Index :Yes.
Internet :Yes.
Speaking order/Non Speaking order
bsm
To:-
1. The Additional District Judge, Dharmapuri.
2. The Section Officer, V.R.Section, High Court, Madras.
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Dr.G.JAYACHANDRAN,J.
bsm
Delivery judgment made in
10.06.2025
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