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2009 DIGILAW 695 (MAD)

Valarmathi & Others v. Kasthuri Ammal & Others

2009-03-06

G.RAJASURIA

body2009
Judgment Civil revision petition filed against the fair and decretal order dated 31.08.2007 passed by the learned Additional District Munsif, Chengam, Tiruvannamalai District in I.A.No.243 of 2006 in O.S.No.127 of 2006. Inveighing and impugning upon the order dated 31.08.2007 passed by the learned Additional District Munsif, Chengam, Tiruvannamalai District in I.A.No.243 of 2006 in O.S.No.127 of 2006, the defendants 1 to 5 has preferred this civil revision petition. 2. A summation and summarization of the relevant facts, which are absolutely necessary and germane for the disposal of this civil revision would run thus: The respondents 2 and 3 viz., Devi and Maragatham herein/plaintiffs filed the suit O.S.No.127 of 2006 seeking the following reliefs: - directing a partition of suit schedule of properties into four equal shares taking into good and bad soil by metes and bounds into consideration through a commissioner appointed by this Court and allot two such share to the plaintiffs. - to deliver possession of ½ th share allotted to the plaintiff through court, free of obstructions of the defendants. - direct an enquiry made under Order 20 Rule 12 CPC into mesne profits from the date of the suit to the date on which the properties are given possession of the plaintiff and to determine the amount of future mesne profits and direct the defendants to pay the plaintiff to the amount to be determined. The defendants filed the written statement; while so, I.A.No.243 of 2006 was filed by the sixth defendant Kasthuri Ammal under Rule 75 (1) of the Civil Rules of Practice r/w Section 151 of the Code of Civil Procedure so as to summon the following documents from the sub registrar office concerned: Tamil The lower court allowed the prayer subject to payment of cost. Being disconcerted and aggrieved by the order of the lower Court, this revision petition is focussed on various grounds inter alia thus: The order of the lower court is against law, weight of evidence as it was passed without taking into consideration the plea of res judicata as put forth on the side of the defendants 1 to 5 based on the fact that in the previous suit in O.S.No.592 of 1996, the same dispute was decided finally but the lower court failed to consider it. The alleged thumb impression of Amuchi Ammal found in the sale deed dated 3. The alleged thumb impression of Amuchi Ammal found in the sale deed dated 3. 1967 is not an admitted one by the defendants and hence summoning that document for comparison purpose, so as to verify the genuineness of the purported thumb impression of Amuchi Ammal in the settlement deed dated 110. 1990 executed by Amuchi Ammal in favour of Arumugam S/o Gunasekaran does not arise. Accordingly, they prayed for setting aside the order of the lower court. 3. Despite printing the names of the persons concerned, none appeared. 4. A plain poring over and perusal of the typed set of papers including the order of the lower Court would display and evince that the respondents 2 and 3 herein filed the suit for partition. However, D1 in the written statement contended that the settlement deed executed by Amuchi Ammal in favour of her son Arumugam is missing. In fact, it appears D1 very much relies upon the said settlement deed. However D1 herself could not produce the said deed. The defendant No.6, who disputes the said settlement deed wants to establish before the court that the said settlement deed dated 110. 1990 is a a forged and fabricated one and according to him somebody impersonated Amuchi Ammal, whereupon the said settlement deed emerged and in order to canvass and establish before the court, the plea of D6, I.A.No.243 of 2006 was filed by D6 so as to summon those documents referred to supra from the Sub Registrar Office so that a comparison between the two thumb impressions, one in the earlier sale deed and another in the impugned settlement deed could be compared. The lower court got satisfied with the genuineness of the prayer and accordingly allowed the I.A, subject to payment of costs. 5. The defendant No.1, who was expected to produce the main document, viz., Settlement Deed dated 110. 1990 on her side could not produce the same for some reasons, which at present, this Court need not delve deep into and it is for the lower court to decide her plea at the appropriate stage. D6 with an intention to expose the falsity of D1s case wanted to summon those documents and as such, the prayer cannot be labelled or dubbed as illegal. D6 with an intention to expose the falsity of D1s case wanted to summon those documents and as such, the prayer cannot be labelled or dubbed as illegal. The plea of res judicata or estoppel – there is no concinnity in using of the terms res judicata as well as estoppel in the pleadings and it is for the lower court to decide at the appropriate stage – so to say, while disposing of the suit itself and not at the time of disposing of the present I.A. 6. Regarding records relating to 07.03.1967, which the D1 wants to take it as a sample one for comparing the thumb impression in the settlement deed dated 110. 1990, it is for the Court, while deciding the suit should come to a conclusion as to whether such comparison is tenable or not. At present, here the short point involves is as to whether D6 has got right to summon the documents or whether at the threshold itself such an attempt should be thwarted. Hence, I could see no infirmity in the order passed by the lower Court. In fact, such comparison would help the Court to analyze the oral evidence as well as the already available documentary evidence so as to arrive at a firm conclusion. 7. Accordingly, I could see no merit in this revision and the same is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.