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2006 DIGILAW 3587 (MAD)

Lakshmi & Others v. E. Davamani & Others

2006-12-22

S.ASHOK KUMAR

body2006
Judgment :- (Civil Revision Petition Nos: 1286 and 1287/05 are filed against the common order dated 9.8.2005, made in IA.No. 8458 and 8459 of 2005 in O.S.No. 4747 of 1977 passed by the learned VI Assistant Judge, City Civil Court, Chennai.) Common Order The legal heirs of the sole defendant are the revision petitioners. They filed the present revisions as against the dismissal of the two I.A.Nos:8458 and 8459 of 2005 which have been filed respectively (i) to reopen the enquiry for the purpose of marking subpoena documents and recording oral evidence and (ii) to issue Subpoena Summons to the Tahsildar of Purasawalkkam Taluk, Chennai for the purpose of production of documents (patta extracts with measurements in respect of T.S.No:71,71/1, 712 and 71/3 of Ayanavaram Village and for giving oral evidence on those documents. 2. The plaintiff/respondents herein (legal heirs of the sole plaintiff) filed the suit for partition and for separate possession. The suit is of the year 1977. A preliminary decree was passed by the trial court on 18.7.1983 in the said suit. The defendant preferred first appeal in A.S.No:384/1984 against the same. The First Appeal was dismissed confirming the preliminary decree. Subsequently the defendant preferred S.A.No:649 of 1987 before this Court. This court set aside the preliminary decree and allowed the Second Appeal. Aggrieved of the same, the plaintiff preferred SLP before the Supreme Court of India in Civil Appeal No:8720/97. The Supreme Court set aside the judgment of this Court in the Second Appeal and confirmed the preliminary decree of the trial court by order dated 26.9.2003. 3. A final decree application in I.A.No:10461/84 for dividing the properties into two shares between the parties and for separate possession was pending before the trial court for more than two decades. Two Advocate commissioners were also appointed to divide the suit property and to submit their report. They also inspected and given interim as well as final reports demarcating the suit property. At the time of inspection, the defendant raised an objection that the suit property is not in Survey No.71/2 but in 71/1 and to that effect they filed an I.A.No.8391/1991 and sought for Taluk Surveyor's assistance to the Advocate Commissioners in order to locate and ascertain the suit property. The plaintiff filed counter stating that the suit property is situate within the four boundaries along with building bearing Door Nos:96 and 96/1. The plaintiff filed counter stating that the suit property is situate within the four boundaries along with building bearing Door Nos:96 and 96/1. After perusal of the records and hearing both sides, the court below dismissed the sand Interlocutory Application on 29.4.1992 holding that the Commissioner is able to locate the suit property an there is no need to appoint a Taluk Surveyor. Against the said order, the defendant neither preferred any appeal nor revision and it became final. 4. Now nearly after lapse of 13 years the final decree application viz.,after restoration of the preliminary decree by the Supreme Court, was taken up for enquiry by the trial court an after receiving objections, and additional counters of the defendants and subsequent purchasers of the suit property and also hearing arguments of both sides, the matter has been reserved for orders. At that stage, the defendants/revision petitioners filed the present two I.A.s to reopen and to examine the surveyor to let in oral evidence and also to issue subpoena to Tahilsdar to produce the revenue documents. 5. The learned VI Assistant Judge, City Civil Court, Chennai after considering the averments and the documents let in by both the parties, dismissed both the I.A., by a common order. Aggrieved over the same, the present CRPs are filed by the defendants. 6. Learned Counsel appearing for the revision petitioners mainly contended that Ex.A.6 which is the joint patta itself is a forged and fabricated document when compared to the original patta issued to the defendants. According to the learned counsel, patta can be issued only after passing an order of assessment by the Revenue Settlement Tahsildar. In the instant case the Assessment order was passed on 28.8.1970 vide Ex.A.7, whereas the revenue patta has been issued in anticipation on 18.9.1962 which only goes to show that it is a forged document. When the third defendant applied for certified copies of Ex.A.6 and other field maps for survey numbers, the revenue authorities refused to furnish the same as there is no such procedure for grant of certified copies to individuals and they will furnish before the court if there is a summon to the said effect. According to the learned counsel, unless enquriy is reopened, evidence cannot be recorded on the subpoena documents and mark those documents. The impugned order does not speak about the genuineness of A.6 patta. 7. According to the learned counsel, unless enquriy is reopened, evidence cannot be recorded on the subpoena documents and mark those documents. The impugned order does not speak about the genuineness of A.6 patta. 7. Learned counsel emphasised on Order XI, Rule 14 as well as Order XVI, Rule 7 & 7A(1) to hold that at any time during the pendency of the suit, the court can order for production of such documents and any person present in court may be required by the court to give evidence. According to the learned counsel, there is no time limit for issue of such summons for production of records and in this case the pending the final decree proceedings, it shall be deemed that the suit is still pending. The scope and object of the procedure in passing the preliminary decree and final decree in the partition suit is to remove all defects in the preliminary decree before passing final decree. Hence the revision petitioners are having every right to oppose the final decree proceeding as per law. Learned cousnel for the revision petitioners contended that a fraud can be set aside even after passing of final decree as laid down by the Apex Court in the decision reported in 1994 (1) SCC page 1. 8. On the other hand learned counsel for the respondents/plaintiffs contended that the preliminary decree was confirmed by the Supreme Court after elaborately discussing about Exs.A.6 and A.7 and A.15 to A.21. Therefore once again it cannot be reopened. If any interference regarding the reopening of the preliminary decree as demanded by the revision petitioners, it will amount to res judicata under Section 11 of CPC. More over there is no dispute with regard to either the boundaries or location of the suit property. 9. A perusal of the typed set of papers and the impugned orders would make it clear that the objection as to the genuineness of Ex.A.6, which is a joint patta issued as early as on 18.9.1962, has never been raised by the revision petitioners all along and only after the preliminary decree was passed and in the final decree proceedings when the Advocate Commissioners were inspecting the suit property such an objection has been raised by filing I.A.No:8391/91. But the trial court dismissed the said I.A., on 29.4.1992 holding that it is not necessary to appoint any Surveyor as the Advocate Commissioners have identified the suit property without any difficulty. It is pertinent to mention here that as against the said dismissal, no revision or appeal has been preferred by the revision petitioners. Therefore, once again they cannot raise the same issue in the final decree application after lapse of 13 years. 10. As rightly contended by the learned counsel for the respondents Exs.A.6, A.7, A.15 to A.21 have already been considered by the Hon'ble Supreme Court whereby the rights of the parties have been determined and adjudicated by the Apex Court and therefore any interference at this stage of passing of final decree proceedings by letting in oral or documentary evidence as to the description of the suit property with reference to the alleged pattas would amount to setting aside the preliminary decree itself which has been affirmed by the Apex Court. 11. As regards the contention to refer the final decree proceedings to the Revenue Authorities viz., the District Collector for partition of the suit properties, such a contention had not been raised since 1984 to till the date of filing of this CRPs and the same is unsustainable in law, because the rights of the parties have already been determined by the competent court which is ultimately confirmed by the Apex Court. More over there is no encroachment over the suit property and the demand to refer to the matter to the Collector is not correct since the suit property is not assessed to land revenue. On the other hand the suit property is a land with house building for which relevant court fee has already been paid based on the Corporation Property Tax. In fact the revision petitioners/defendants have filed the Interlocutory Applications only to delay the final decree proceedings and to gain time with an ulterior motive. 12. Under these circumstances, both the CRPs are dismissed. Consequently, CMP.No.15691/05 is also dismissed and no order need be passed in VCMP.No:17258/2005. No costs.