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2007 DIGILAW 1603 (MAD)

S. Ashokan & Others v. Santhanalaskhmi Ammal & Another

2007-06-05

S.ASHOK KUMAR

body2007
Judgment :- Aggrieved over the order passed in CMA.No:21 of 2002, confirming the order of dismissal passed in I.A.No:2115 of 2001 in O.S.No:481 of 2001 filed for interim injunction, CRP.NO:317 of 2007 has been preferred by the revision petitioner/plaintiffs. 2. While so, CRP.Nos:1020 and 1021 of 2007 are filed against the order of return of the petitions field in I.A.SR.No.10098 of 2005 which were filed to reopen the case and to receive additional documents detailed in the annexure to the petition. .3. As regards CRP.Nos:1020 and 1021 of 2007 are concerned, the plaintiffs invoking Order 41, Rule 27(aa) of the Code of Civil Procedure field two Interlocutory Applications to reopen the case and summon the first defendant for cross examination and to receive 33 additional documents as detailed in the annexure to the petition. In the affidavits filed in support of the said Interlocutory Applications, the plaintiffs have stated that the main CMA is posted for filing written arguments and at this juncture the additional documents sought to be filed are vital and very essential and relevant for deciding the points in the appeal and in spite of due diligence, it could not be produced and that no prejudice will be caused to the defendants. The said applications were returned on 18. 2005 for compliance of certain defects and it was re-presented only on 139.2005 and once again the applications were returned on 10. 2005 for compliance of defect. By that time the Subordinate Judge reserved the final orders in CMA No.21 of 2002, Chengalpattu and the same was pronounced on 10. 2005. Therefore, both the Interlocutory Applications were returned consequent to the delivery of judgment in the Appeal on 10. 2005. Challenging the return of the said two I.As., these two CRPs are filed by the plaintiffs. 4. Under Order 41, Rule 27(aa) CPC, to receive additional documents the plaintiff has to establish; that notwithstanding the exercise of due diligence, such evidence/documents was not within his knowledge or could not after the exercise of due diligence, be produced by him at the time when the decree appealed against him was passed. 4. Under Order 41, Rule 27(aa) CPC, to receive additional documents the plaintiff has to establish; that notwithstanding the exercise of due diligence, such evidence/documents was not within his knowledge or could not after the exercise of due diligence, be produced by him at the time when the decree appealed against him was passed. However, a perusal of the affidavit filed in support of the said applications would show that the plaintiffs have not stated any reason as to what precluded them from filing 33 documents which are sought to be produced as additional evidence before the trial court and the said affidavits are only bereft of any reasons. When there is no explanation as to why the said documents were not produced before the trial court and when no details have been given as to where the documents were found and in whose custody, the mere statement that in spite due diligence the said documents could not be produced, will not fulfill the requirement of Order 41, Rule 27(aa) CPC. 5. Further in the case on hand, the plaintiffs have filed by the two Interlocutory Applications defectively and even though ample opportunities were given by the lower appellate court to rectify those defects, right from 18. 2005, the plaintiffs have not chosen to comply with the returns and rectified the defects till delivery of judgment in the CMA, which will only exhibit the supine indifference and careless attitude on the part of the plaintiffs. Thus both the I.As have become infructuous as judgment was delivered in the appeal even before the I.As were taken up on file. If the said two I.As were taken on file after numbering the same, then the lower appellate court would have deferred the delivery of judgment in the appeal. But in the present case, the I.As were not taken on file since there were certain defects, which have not been rectified and represented in time. Therefore, the lower appellate court rightly returned the two I.As (SR) after delivery of judgment in the main appeal. I do not find any illegality or error of jurisdiction in the order of return passed by the lower appellate court. Therefore, these two CRPs are liable to be dismissed. .6. Therefore, the lower appellate court rightly returned the two I.As (SR) after delivery of judgment in the main appeal. I do not find any illegality or error of jurisdiction in the order of return passed by the lower appellate court. Therefore, these two CRPs are liable to be dismissed. .6. As regards CRP (PD) No: 317 is concerned, since it arises from the judgment delivered in CMA.No: 21 of 2002 by the lower appellate court, viz., it is a non pending decree matter, and the office ought to have numbered it and classified the revision as one of Civil Revision Petition (NPD). However, it has been inadvertently numbered and posted before this court and the learned counsel for both sides as well submitted their arguments and therefore, this court decided to consider the merits of the case and dispose of the same. 7. The revision petitioners/plaintiffs filed O.S.No: 481 of 2001 against the respondents/defendants on the file of the court of District Munsif, Alandur for permanent injunction restraining the defendants from disturbing their peaceful possession and enjoyment of the lands situated in Survey No.84/1A, No.134, Neelangarai Village, measuring 1.50 acres out of the total extent of 1.90 acres. The case of the plaintiffs in brief is that their father V.Subramani Iyer purchased an extent of 96.48 acres in Survey No.84/1, 91/2 and 95 along with his friend Anathanarayanan by means of two registered Sale Deeds dated 12. 1943 and 23. 1945. One of the joint owners namely Ananthanarayanan had relinquished his share in the suit properties in favour of the plaintiffs father vide registered release deed dated 11. 1960. The plaintiffs father sold about 94.57 acres out of the total extent of 96.48 acres through 5 registered sale deeds after retaining 1.91 acres in Survey No.84 which was later on sub divided as 24/1, and continue to enjoy the same till his demise on 6. 1986. 8. It is their further case that since the plaintiffs father died intestate, the plaintiffs succeeded to the said estate. The plaintiffs mother also died on 29. 1998 and thus the plaintiffs had became the absolute owners of the suit properties. 1986. 8. It is their further case that since the plaintiffs father died intestate, the plaintiffs succeeded to the said estate. The plaintiffs mother also died on 29. 1998 and thus the plaintiffs had became the absolute owners of the suit properties. It is alleged by the plaintiffs that they came to know that the person who had no connection with the suit property had fabricated the document in respect of the suit property through revenue officials and they raised their objections for patta transfer with the Tahsildar, Tambaram and the Tahsildar vide proceedings dated 20.7.2001 had cancelled the patta. According to them, the first defendant had entered collusive litigation with the second defendant and entered into a compromise deed to defeat the rights of the plaintiffs and both the defendants attempted to disturb possession and enjoyment of the plaintiffs and hence they filed the said suit. 9. The defendants contested the suit and according to them, they have already sold the suit property to one S.R.Selvarajan and his family members and in spite of that the plaintiffs having knowledge of the same, failed to implead them as parties in the suit and as such the suit itself is bad for non joinder of necessary parties. The first defendant purchased 20.85 acres in Survey No.84/1 by way of a registered sale deed. In the year 1962, as per Survey Settlement Register, patta was issued to the plaintiffs father G.Subramani Iyer and Ananthanarayanan to the entire extent of 20.85 acres instead of 18.95 acres and the first defendant raised objection for the same. The plaintiffs father realising the mistake, gave a written statement Ex.R.1 dated 18. 1963 giving no objection for issuance of a joint or separate patta for 1.90 acres in Survey No.84/1. Accordingly joint patta dated 110. 1963 under Ex.r.2 was issued in the names of the first defendant and also the plaintiffs father. Subsequently, plaintiffs father sold entire 18.95 acres to RMTC Traders, Vadapalani and patta was also issued to them after sub division as survey No.84/1B. 10. It is the further allegation of the defendants that one Srinivasa Naicker had fabricated the documents as if he is the owner of the the land purchased by the first defendant and he in turn sold 1.50 acres of land in Survey No.84/1A in favour of the second defendant under Ex.R.6 dated 8.81975. 10. It is the further allegation of the defendants that one Srinivasa Naicker had fabricated the documents as if he is the owner of the the land purchased by the first defendant and he in turn sold 1.50 acres of land in Survey No.84/1A in favour of the second defendant under Ex.R.6 dated 8.81975. The said alienation was challenged by the first defendant in O.S.No:904 of 1976 before the court of the District Munsif, Poonamallee and the same was decreed. On appeal by the second defendant, it was allowed by the Sub Court, Poonamallee and the first defendant preferred Second Appeal No.870 of 1994 which was ultimately ended in compromise on 3. 1998 and after the said compromise, both the defendants sold the said property in favour of S.R.Selvaraj and his family members by a sale deed dated 12. 2000 and as on date the said S.R.Selvaraj and his family members are the real owners. 11. It is to be noted that the proceedings of the Tahildar, Tambaram under Ex.P.20 dated 20.7.2001 which was decided in favour of the plaintiff was set aside by the Revenue Divisional Officer, Chengalpattu under Ex.R.16, dated 112. 2001 in favour of the first defendant and as against the said proceedings, the plaintiffs preferred Writ Petition and it is pending before this Court. It is also pertinent to point out that a this juncture, the proceedings of RDO issued under Ex.R.16 wherein the first defendant was once again granted patta is yet to be set aside. 12. The plaintiffs application in I.A.No:2115 of 2001 for ad interim injunction was dismissed by the Trial Court after appreciation of the above facts and consideration of the documentary evidence under Exs.P.1 to P.32 and Exs.R.1 to R.16 after coming to the conclusion that the plaintiffs were not in possession of the suit properties. The said findings have been affirmed in the Civil Miscellaneous Appeal by the lower appellate court by independent application of mind to the materials available on record. The lower appellate Judge also recorded a finding that it cannot be held that the plaintiffs are in possession and enjoyment of the suit property. The said findings have been affirmed in the Civil Miscellaneous Appeal by the lower appellate court by independent application of mind to the materials available on record. The lower appellate Judge also recorded a finding that it cannot be held that the plaintiffs are in possession and enjoyment of the suit property. In view of the categorical findings of the courts below on factual aspects, no interference is warranted in this revision under Art.227 of the Constitution of India, which is primarily a supervisory jurisdiction and that too concurrent findings of the courts below shall not be interfered with, unless grave irregularity or illegality has occurred. It is also to be pointed out that right from the day of vacating the ex parte order of injunction by the trial court by order dated 212. 2001, the revision petitioners did not have the benefit of the order of injunction till this date and it will be prejudicial if the same is granted at this stage contrary to the concurrent findings of fact by the courts below. Therefore, this CRP is also liable to be dismissed. 13. In the result, all the three CRPs are dismissed. Consequently, connected M.P., is also dismissed. No costs.