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2013 DIGILAW 486 (MAD)

Abdul Majeeth v. Kadhar Hussain

2013-01-22

G.RAJASURIA

body2013
Judgment :- 1. The Civil Revision Petition has been filed to get set aside the order dated 06.11.2012 passed in I.A.No.214 of 2012 in O.S.No.61 of 2012, by the learned District Munsif, Thiruvaiyaru. 2. Heard the learned Counsel for the revision petitioner. Despite printing the name of the respondents, there is no representation on behalf of the respondents. 3. A thumb-nail sketch of the germane facts, which are absolutely necessary for the disposal of this Civil Revision Petition would run thus: Kadhar Hussain who is the third party to the proceedings in the suit in O.S.No.61 of 2012 filed I.A.No.214 of 2012 to get himself impleaded in the suit. The plaintiff resisted the said application. However, after hearing both sides, the lower Court allowed the application. 4. Being aggrieved by and dissatisfied with the order passed by the lower Court, the Civil Revision Petition is focussed on various grounds. 5. The learned Counsel for the revision petitioner would detail the facts which could be narrated in brief thus: Earlier, the said Kadhar Hussain and his brother filed the suit in O.S.No.208 of 1993 seeking declaration and injunction in respect of 2 Acres and 10 Cents of land and in that the lower Court partly decreed the suit, as against which, the plaintiffs as well as the defendant preferred separate appeals. Whereupon the appeal filed by the defendant was allowed and the appeal filed by the plaintiffs was dismissed. Whereby the entire suit filed by the said Kadhar Hussain and his brother stood dismissed. Subsequently, the defendant therein viz., Abdul Majeeth filed the suit in O.S.No.61 of 2012 as against one Mohamed Ususf, who is the third party to the earlier proceedings for declaration and recovery of possession in respect of 75 cents of the land out of larger extent contemplated in the earlier suit. While so, the said Kadhar Hussain filed I.A.No.214 of 2012 in the present O.S.No.16 of 2012 for getting himself impleaded. After hearing both sides, the said application was allowed. 6. The learned Counsel for the revision petitioner would appositely and appropriately, legally and correctly argue that the reasoning cited by the lower Court for allowing the I.A. is far from satisfactory, because according to the lower Court, even though the said Kadhar Hussain in the previous litigation lost his appeal, yet there was likelihood of filing a Second Appeal. 6. The learned Counsel for the revision petitioner would appositely and appropriately, legally and correctly argue that the reasoning cited by the lower Court for allowing the I.A. is far from satisfactory, because according to the lower Court, even though the said Kadhar Hussain in the previous litigation lost his appeal, yet there was likelihood of filing a Second Appeal. Such first appeal itself was disposed of during the year 1999 and there is no question of the said appellants filing the Second Appeal would arise. Even for argument's sake, it is taken that he has the right to file a Second Appeal, the said fact would be having nothing to do with the present suit, which has been filed by the plaintiff herein as against one other facts. As such, he would pray that the order of the lower Court has to be set aside. 7. The point for consideration is as to whether there is any perversity or illegality in the order passed by the lower Court or not? The Point: 8. At the outset itself, I would like to point out that the judgments emerging in matters of this nature are only judgments in personamand not judgments in rem. The plaintiff is dominuslitis. He has been given the liberty as well as rights by law to choose as to who should be his opponent as defendant. 9. At this juncture, I would like to recollect the following legal maxim: "Res inter alios judicatae nullum aliis praejudicium faciunt."[Matters adjudged in the lawsuits of others do not prejudice those who were not parties to them.] 10. In such a case, the lower Court was not justified in simply allowing the application of Kadhar Hussain to get himself impleaded as defendant in the suit. The lower Court referred to two other suits in O.S.Nos.45 and 58 of 2006 in the same Court between the same parties and in that suit, the parties have to work out their remedy. As such, the order passed by the lower Court is far from satisfactory. On balance, the order passed by the lower Court is liable to be set aside. As such, the order passed by the lower Court is far from satisfactory. On balance, the order passed by the lower Court is liable to be set aside. My mind is reminiscent and redolent of the following legal maxims: (i) "Affirmanti, non neganti, incumbit probatio." [The proof is incumbent upon the one who affirms, not on the one who denies.] (ii) "Affirmantisest probare." [The person who affirms must prove.] As per those legal maxims, the plaintiff has to succeed or fail on his own pleadings and proof. The plaintiff has come forward with the specific case that the defendant Mohamed Usuf encroached 16 1/2 cents of land in the property of the plaintiff and the petitioner has to prove it and get a decree and such a decree would not bind any party other than the defendant Mohamed Ususf. The point is answered accordingly. 11. Accordingly, the Civil Revision Petition is allowed and the order passed by the lower Court in I.A. No. I.A.No.214 of 2012 set is aside. Consequently, the connected Miscellaneous Petition is closed. No costs.