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2010 DIGILAW 4194 (MAD)

D. Singaravelu v. D. Selvaraj

2010-09-17

R.S.RAMANATHAN

body2010
Judgment :- 1. The first defendant in O.S.No.215 of 2009 on the file of the Principal District Munsif Cum Judicial Magistrate Court, No.I, Cheyyar is the revision petitioner. 2. The respondent herein has filed the above suit in O.S.No.215 of 2009 for partition, claiming 1/4th share in the A-Schedule property and ½ share in the B Schedule property and for injunction, restraining the defendants 1 to 3 from alienating the suit property and also from claiming any right over the B Schedule property and for other reliefs. The revision petitioner, who is the first defendant in that suit has filed an application in I.A.No.632 of 2009 under Section 11 of Civil Procedure Code seeking for the prayer that the suit filed by the respondent herein is barred by res judicata by reason of the judgment rendered in O.S.Nos.371 and 372 of 2004 on the file of the Additional District Munsif Court, Vandavasi. That application was dismissed by the Lower Court and aggrieved by the same, this Revision is filed by the first defendant viz., the revision petitioner. 3. The learned counsel appearing for the revision petitioner submitted that in the Suit in O.S.Nos.371 and 372 of 2004 on the file of the Additional District Munsif Court, Vandavasi, the properties involved in O.S.No.215 of 2009 on the file of the Principal District Munsif Court, Cheyyar were included and the suit in O.S.No.372 of 2004 was filed by the revision petitioner against the respondent herein and the defendants 2 to 3 in O.S.No.215 of 2009 for injunction, restraining the defendants in that suit not to alienate the suit properties and that suit was decreed as prayed for. He has further submitted that the respondent herein has filed the suit in O.S.No.371 of 2004 on the file of the Additional District Munsif Court, Vandavasi, for a permanent injunction, restraining the revision petitioner herein and the second defendant in O.S.No.215 of 2009 restraining them not to interfere and to cut the trees in the suit property and that suit was dismissed and therefore, the present Suit in O.S.No.215 of 2009 is barred by res judicata. Hence, the order of the Lower Court has to be set aside and the revision has to be allowed. Hence, the order of the Lower Court has to be set aside and the revision has to be allowed. He has further submitted that the properties in O.S.No.215 of 2009 are the same properties involved in O.S.No.372 of 2004 filed by the revision petitioner and therefore, the present suit is barred by res adjudicata. He has further submitted that in the suit in O.S.No.372 of 2004, issues were framed regarding the title to the suit property and a finding was given that the revision petitioner herein is also entitled to a share in the suit property and injunction was granted. 4. On the other hand, the learned counsel for the respondent submitted that the Lower Court has rightly dismissed the application, holding that the relief prayed for in the earlier suits are not similar and whether the earlier suits will operate as res judicata can be decided only during trial and that cannot be considered in an interlocutory application and therefore, there is no need to interfere with the order of the Lower Court. 5. Heard both sides. 6. It is seen from the order of the Lower Court that a common order was passed in I.A.No.632 of 2009 and I.A.No.633 of 2009 in O.S.No.215 of 2009. I.A.No.632 of 2009 was filed by the revision petitioner with a prayer not to try the suit, as it is hit by the rule of res judicata and I.A.No.633 of 2009 was filed by the revision petitioner to reject the plaint under Order 7 Rule 11 (a) of C.P.C. The Lower Court by a common order has rejected both the prayers and against the same, the revision petitioner has filed the revision only against the order passed in I.A.No.632 of 2009. Though in the order, the Learned Judge has referred to the earlier suits in O.S.No.371 of 2004 and O.S.No.372 of 2004, it is not known whether the judgments rendered in the above suits were filed and marked before the Lower Court. Further, from a perusal of the judgment in O.S.Nos.371 and 372 of 2004, filed along with the typed set of papers in this revision, it is seen that the suit in O.S.No.372 of 2004 was filed for injunction restraining the respondent and others from alienating the suit property on the ground that the plaintiff is also having a share in the suit property. In the suit filed by the respondent in O.S.No.371 of 2004, he prayed for injunction not to interfere with his possession and restraining the revision petitioner herein and the second defendant from cutting or removing the trees grown on the suit property. It is further seen from the judgment in O.S.No. 372 of 2004 that issue No.2 was framed with regard to the title to the suit property and while answering the issue No.2, the Lower Court has held that the properties are the joint properties of the parties to the suit. In this case also the plaintiff viz., the respondent herein has filed a suit for partition of his 1/4th share in the A Schedule property and ½ share in the B Schedule property and he has also relied upon a settlement deed dated 30.08.1958 in respect of B Schedule property to claim half share in the B Schedule property. In the judgement rendered in O.S.No.372 of 2008, a finding has been given that the settlement deed dated 30.08.1958, which was marked as exhibit A-12 was not valid. Therefore, even assuming that the settlement deed was not valid, as held in O.S.No.372 of 2004, the present suit for partition filed by the plaintiff, the respondent herein in respect of the A Schedule property and B Schedule property, cannot be said to be barred by res judicata by a reason of the judgments rendered in O.S.No.372 and O.S.No.371 of 2004 at this stage. Further, as rightly held by the Lower Court, the question of res judicata could be gone into at the time of trial, after the evidences are let in by the parties and after marking the pleadings and judgments in O.S.No.371 of 2004 and O.S.No.372 of 2004 and at this stage it is premature on the part of the Court to arrive at a conclusion whether the suit is barred by res adjudicata or not. Moreover, the Court has rejected the application filed by the petitioner under Order 7 Rule 11 and against that order, no revision has been preferred by the revision petitioner. Considering all these aspects, I do not find any reason to interfere with the order of the Lower Court and hence, it is dismissed. Consequently, connected Miscellaneous Petition is closed. 7. Moreover, the Court has rejected the application filed by the petitioner under Order 7 Rule 11 and against that order, no revision has been preferred by the revision petitioner. Considering all these aspects, I do not find any reason to interfere with the order of the Lower Court and hence, it is dismissed. Consequently, connected Miscellaneous Petition is closed. 7. The Lower is directed to dispose of the suit without being influenced by any of the observations made by this Court in this revision petition on the basis of the evidence before the Lower Court on merits. No costs.