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2005 DIGILAW 653 (MAD)

Rajan & Another v. Thalaimalaikonar & Others

2005-04-15

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition, filed under Sec.115 C.P.C against the fair and decretal order dated 03.09.2001 passed in I.A.No.1597 of 2000 in O.S.No.238 of 1997 by the Principal District Munsif, Srivilliputhur, as stated therein.) This Civil Revision Petition is directed against the Order of the Principal District Munsif, Srivilliputhur dated 03.09.2001 made in I.A.No.1597 of 2000 in O.S.No.238 of 1997, dismissing the Petition filed by the Petitioners under Order 23 Rule 1-A C.P.C to transpose the Revision Petitioners / Defendants 3 and 4 as Third and Fourth Plaintiffs. 2. The Suit Property relates to Ramakrishna Primary School and the Building in Door No.1-B/6 and the dwelling House in Door No.1-A/5, Chidambarapuram Village, Rajapalayam Taluk. The Plaintiffs / Respondents 5 and 6 have filed O.S.No.238 of 1997 for Permanent Injunction restraining the Defendants from interfering with their peaceful possession and enjoyment of the suit properties. Case of the Plaintiffs is that the First Plaintiff's Paternal Uncle viz., Muthiah Konar had established the School called "Ramakrishna Primary School" in Chidambarapuram Village, Rajapalayam Taluk in the year 1953. He has constructed the school building with his own funds. The Education Department of Government of Tamil Nadu has also issued recognition to the School. In the year 1960, the said Muthiah Konar has transferred the Management of the School to his Brother – Subbiah Konar, who is the Father of the First Plaintiff. From then onwards, the First Plaintiff's Father was running and managing the School. After his death, the First Plaintiff has been managing and running the School managing the Administration. Adjacent to the School Building, there is a dwelling house bearing No.1-A/5, which stands in the name of the Second Plaintiff – Wife of the First Plaintiff. The Family of the Plaintiffs are residing in the dwelling house for more than 45 years. Even the service connection was issued by Tamil Nadu Electricity Board in the name of the Second Plaintiff and she has been regularly paying the Electricity Consumption charges. The Plaintiffs have claimed that they are in uninterrupted possession and enjoyment of the School Building and the Residential House. The Defendants are the local residents of Chidambarapuram Village and are inimical towards the family of the Plaintiffs. Without any Title or Right in the Suit Properties, the Defendants have attempted to enter into the School premises and demolish the Buildings, which were thwarted with the help of well-wishers. The Defendants are the local residents of Chidambarapuram Village and are inimical towards the family of the Plaintiffs. Without any Title or Right in the Suit Properties, the Defendants have attempted to enter into the School premises and demolish the Buildings, which were thwarted with the help of well-wishers. Hence, the Plaintiffs filed the Suit restraining the Defendants with their peaceful possession and enjoyment of the Suit Properties. 3. Claiming that the Suit Property – School Buildings and the Property thereon belongs to Chidambarapuram Village Yadhava community, the Defendants have filed the Written Statement. According to the Defendants, for maintenance of the School Buildings and for Management, Muthiah Konar was nominated by the Yadhava Community People. Muthiah Konar has authorised his son to receive the grant issued by the Education Department, Government of Tamil Nadu. School Building and the property thereon does not belong to the Plaintiffs. Patta was granted in favour of Yadhava Community People of Chidambarapuram Village on 30.06.1994 with the help of officials, the Plaintiffs have clandestinely has obtained a favourable order, cancelling the Patta issued to the Chidambarapuram Village Yadhava Community People. As against the cancellation of Patta, the Defendants and other Yadhava community people have preferred an Appeal before the Revenue Divisional Officer, Rajapalayam in Revision Petition No.31595 of 1995. The said Revision Petition was dismissed. The Defendants and other community people have taken steps for filing the Writ Petition, challenging the cancellation of the patta issued to Yadhava community people. In the Written Statement, it is further alleged that the Plaintiffs have created documents regarding the dwelling House and have obtained service connection in the name of the Second Plaintiff. Thus, the Defendants have set forth the main contention, denying the Plaintiff's exclusive Right and Title to the Suit Property. The Defendants have adopted a definite plea that the School and the Building thereon and the immovable property belongs to Yadhava Community People of Chidambarapuram Village. During the pendency of the Suit, the Plaintiffs have sold the Suit Properties to the Revision Petitioners in 1999. As per the Order in I.A.No.1151 of 1999, the Revision Petitioners were impleaded as Defendants 3 and 4. 4. During the pendency of the Suit, the Plaintiffs have sold the Suit Properties to the Revision Petitioners in 1999. As per the Order in I.A.No.1151 of 1999, the Revision Petitioners were impleaded as Defendants 3 and 4. 4. I.A.No.1597 of 2000:- When the Suit has been pending, the Revision Petitioners / Defendants 3 and 4 have filed this Petition under Order 23 Rule 1-A and Sec.151 C.P.C stating that the Suit Property has been sold to them by the Plaintiffs and that the sale is onbehalf of Yadhava community. Claiming that the Plaintiffs and the Defendants 3 and 4 have the same case and common interest, the Defendants 3 and 4 have filed the Application to transpose them as Plaintiffs. The Defendants 3 and 4 have further expressed apprehension that if the Plaintiffs abandoned the Suit without conducting the same, it would cause irreparable loss to the Defendants 3 and 4 and hence, in the interest of justice, seeks to transpose them as Plaintiffs 3 and 4. 5. The Defendants have filed the Counter Statement, resisting the Application for transposing the Defendants 3 and 4 as Plaintiffs. In the Counter Statement, it is alleged that the sale in favour of the Defendants 3 and 4 is fradulant one and the Sale Deed is hit by Doctrine of Lis Pendens. Having purchased the property during the pendency of the Suit, the Defendants 3 and 4 cannot seek to transpose them as the Plaintiffs. 6. The Petition filed under Order 23 Rule 1-A and Sec.151 C.P.C was dismissed by the learned Principal District Munsif, Srivilliputhur mainly on the following grounds:- i. that the Sale Deed in favour of the Revision Petitioners / D-3 and 4 is hit by Doctrine of Lis Pendens ; ii.that the Provision under Order 23 Rule 1-A C.P.C would apply only when the suit is withdrawn or abandoned by the Plaintiffs; since the Plaintiffs have neither withdrawn the Suit nor abandoned it, the Petition filed for transposing D-3 and 4 as Plaintiffs cannot be allowed ; iii.cause of action for the Suit arises only for the Plaintiffs 1 and 2 and not for the Petitioners / Defendants 3 and 4, who have subsequently purchased the Suit Property. 7. Aggrieved over the dismissal of the Petition filed under Order 23 Rule 1-A and Sec.151 C.P.C, the Revision Petitioners / Defendants 3 and 4 have filed this Revision Petition. 7. Aggrieved over the dismissal of the Petition filed under Order 23 Rule 1-A and Sec.151 C.P.C, the Revision Petitioners / Defendants 3 and 4 have filed this Revision Petition. Respondents 1 to 4 are served. Notice sent to Respondents 5 and 6 returned unserved. Service held sufficient for the Respondents. Heard the submissions of the learned counsel for the Revision Petitioners / Defendants 3 and 4. 8. Assailing the impugned order, learned counsel for the Revision Petitioners has submitted that the Defendants having purchased the Suit Property in 1999 for better adjudication are necessarily to be added as the Plaintiffs. Mainly relying upon Order I Rule 10(2) C.P.C., it is contended that Order 23 Rule 1-A C.P.C is to be read along with Order I Rule 10(2) C.P.C and the Trial Court erred in dismissing the Application on the ground that the Plaintiffs have neither withdrawn nor abandoned the Suit. Submitting that the Court has enormous power to strike out or add the parties, it is submitted that for the effectual adjudication, the Revision Petitioners are to be transposed as the Plaintiffs. 9. Whether the Revision Petitioners / Defendants 3 and 4 – newly impleaded as Defendants 3 and 4 (on the basis of the subsequent sale in their favour) can invoke Order 23 Rule 1-A C.P.C for transposing them as Plaintiffs and whether the impugned order suffers from any serious infirmity warranting interference are the points that arises for consideration in this Revision Petition. 10. The rule provided for the circumstances in which a Defendant is transposed as a Plaintiff where a suit is abandoned or withdrawn under the preceding rule. The rule is mandatory and requires the Court to consider whether the Defendant – Applicant has a substantial question to be decided against any of the other Defendants. Thus, the Court can transpose the Defendants as Plaintiffs only when the original Plaintiffs seek to abandon or withdraw the Suit. The language employed in Order 23 Rule 1-A C.P.C is "....withdrawn or abandoned...." and not "....likelihood of withdrawal or abandoned...." In this case, the original Plaintiffs have not withdrawn or abandoned the Suit. Only apprehension is expressed by the Revision Petitioners / Defendants 2 and 3 that in case, the Plaintiffs do not conduct the case, they would be subjected to hardship. Only apprehension is expressed by the Revision Petitioners / Defendants 2 and 3 that in case, the Plaintiffs do not conduct the case, they would be subjected to hardship. In such cases of mere apprehension of abandonment of the case or withdrawal, Order 23 Rule 1-A C.P.C cannot be invoked to exercise power of transposition. 11. As noted earlier, the Defendants 1 and 2 have posed stiff resistance to the Suit by filing the Written Statement raising serious contention regarding the Title of the Plaintiffs. The Plaintiffs claimed to be the absolute owners of the Suit Property. The Defendants have set forth the main defence, denying the Plaintiffs' exclusive Right and Title. The Defendants have adopted a definite plea that the Suit Property belonged to Yadhava community people of Chidambarapuram Village. During the pendency of the Suit, reiterating their absolute right, the Plaintiffs 1 and 2 have sold the Suit Property to the Revision Petitions. Obviously, the Sale Deed in favour of the Revision Petitioners is bit by the Doctrine of Lis Pendens. It may be that the Revision Petitioners may have a common case along with the Plaintiffs. But, if the Revision Petitioners are allowed to be transposed as the Plaintiffs, it would amount to encouraging such transaction during the pendency of the Suit. The finding of the learned District Munsif that the Doctrine of Lis Pendens arises is neither erroneous nor perverse warranting interference. 12. In paragraph 13 of the Plaint - cause of action for the Suit is alleged to have arisen on 11.06.1997 when the Defendants have alleged to have attempted to enter into the premises and attempted to demolish the Suit Buildings. The Revision Petitioners are said to have purchased the Suit Property in 1999. If the Revision Petitioners are transposed, the entire cause of action would change. Further, if the Revision Petitioners are transposed as Plaintiffs, the Suit is to be amended including the averments regarding the Sale in 1999. The Amendment has the effect of referring date of filing of the Suit. Subsequent Purchaser cannot claim to be impleaded as the Plaintiffs regarding the earlier cause of action. Such right might accrue to the Revision Petitioners only if the Suit is withdrawn or abandoned. When the original Plaintiffs have neither withdrawn nor abandoned the Suit, the learned District Munsif has rightly declined to order transposition of the Revision Petitioners as the Plaintiffs. 13. Such right might accrue to the Revision Petitioners only if the Suit is withdrawn or abandoned. When the original Plaintiffs have neither withdrawn nor abandoned the Suit, the learned District Munsif has rightly declined to order transposition of the Revision Petitioners as the Plaintiffs. 13. Yet another aspect is to be pointed out. The Revision Petitioners, being the purchasers, the question of bonafide purchase for value would also arise in the Suit. The Revision Petitioners also claimed the sale in their favour is onbehalf of the Yadhava Community people. Thus, by transposing the Revision Petitioners as the Plaintiffs, there is every likelihood of the issues being widened and complicated. The issues regarding the bonafide purchase for value and whether the sale is onbehalf of the Yadhava Community would arise for determination. Apart from the issues arising in the Suit regarding the absolute right of the Plaintiffs over the Suit Property, if the Revision Petitioners are to be transposed as Plaintiffs, the new issues whether the Defendants 3 and 4 are bonafide purchasers for value and whether the sale is onbehalf Community are also to be determined in the Suit, Those grounds as such do not arise in the light of the averments in the Suit; such interse dispute between the Defendants would complicate the issues involved in the Suit. 14. Placing much reliance upon Order I Rule 10(2) C.P.C, learned counsel for the Revision Petitioners has contended that to avoid multiplicity of proceedings and for complete adjudication, the Revision Petitioners are to be necessarily transposed as the Plaintiffs. Since the issues arising for determination in the Suit would be complicated and widened, the Court cannot order transposition of the Revision Petitioners as Plaintiffs. 15. Learned District Munsif has rightly dismissed the Application filed under Order 23 Rule 1-A C.P.C. The Impugned Order does not suffer from any serious infirmity warranting interference. This Revision Petition has no merits and is bound to fail. 16. Therefore, the order of Principal District Munsif, Srivilliputhur dated 03.09.2001 passed in I.A.No.1597 of 2000 in O.S.No.238 of 1997 is confirmed and this Civil Revision Petition is dismissed. However, there is no order as to costs.