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2017 DIGILAW 277 (MAD)

S. Perumal v. R. Saraswathi

2017-01-31

V.M.VELUMANI

body2017
ORDER : 1. This Civil Revision Petition has been filed against the fair and executable order, dated 10.11.2009, made in I.A. No. 205 of 2009 in O.S. No. 15 of 2009, on the file of the II Additional Subordinate Court, Nagercoil. 2. The petitioner is the plaintiff. The first respondent is the third party to the suit in O.S. No. 15 of 2009 and petitioner in I.A. No. 205 of 2009. The respondents 2 to 6 are the defendants 1 to 5. The petitioner filed the suit in O.S. No. 15 of 2009 before the Subordinate Court, Nagercoil, for declaration to declare that the sale deed, dated 15.07.1986, executed by the respondents 2 to 4/defendants 1 to 3 in favour of the fifth respondent/fourth defendant and also to declare that the sale deed, dated 28.06.2004, executed by the fifth respondent/fourth defendant in favour of the sixth respondent/fifth defendant as null and void and for demarcation of the plaint schedule property by appointing an Advocate Commissioner with the assistance of Taluk Surveyor and also for permanent prohibitory injunction restraining the respondents 2 to 6/defendants and his men or agents or anybody claiming under him from altering the physical features or putting up any new construction or any structure affecting the right of title, possession and enjoyment of the petitioner/plaintiff over the plaint schedule property or from interfering with the petitioner's possession and enjoyment over the plaint schedule property. 3. The first respondent filed I.A. No. 205 of 2009 to implead her as sixth defendant in O.S. No. 15 of 2009. According to her, she has right in the suit property to the extent of 600 square links. One Parvathiammal was the original owner of 2 ½ cents and after her death, her four daughters, viz., Valliammal, Ramalakshmi [mother of the first respondent], Aachiammal and Sivani @ Gomathi are entitled to 600 square links each in the said property. The first respondent's mother - Ramalakshmi was entitled to 600 square links. Valliammal, one of the daughters of Parvathiammal, sold 1¼ cents to one Nambi Narayanan on 13.06.1975. On the date of sale, the said Valliammal has no right to sell more than 600 square links. The sale deed executed by Valliammal in favour of Nambi Narayanan is not legal and valid document and it is only a sham and nominal document, which is not supported by any consideration. On the date of sale, the said Valliammal has no right to sell more than 600 square links. The sale deed executed by Valliammal in favour of Nambi Narayanan is not legal and valid document and it is only a sham and nominal document, which is not supported by any consideration. The first respondent's mother - Ramalakshmi executed a settlement deed on 15.07.1989 in respect of 600 square links in favour of the first respondent. The entire revenue records stand in the name of the first respondent. The petitioner on the basis of the forged sale deed, dated 15.12.1983, trespassing into the property of the first respondent. Therefore, the mother of the first respondent filed a suit in O.S. No. 830 of 1984 against the petitioner and Nambi Narayanan, for permanent injunction. Subsequently, there are several litigations are pending against the same parties. On 09.07.2009, the first respondent met one Rajammal, who is the fourth respondent herein/third defendant informed about the present suit filed by the petitioner against the respondents 2 to 6. The petitioner filed O.S. No. 261 of 2003 before the Principal District Munsif Court, Nagercoil, for permanent injunction against the first respondent herein and her brother Sethuraman. The said suit was dismissed for default. Suppressing the said fact, the petitioner filed the present suit for the very same property. Therefore, the petitioner is necessary and proper party to the suit. 4. The petitioner filed counter and denied all the averments made by the first respondent. The petitioner submitted that the first respondent's mother - Ramalakshmi filed O.S. No. 830 of 1984 against the petitioner and his vendor Nambi Narayanan. The said suit was dismissed on 15.02.1989. The said suit was filed on the basis of the partition deed, dated 31.07.1964, entered into between the daughters of Parvathiammal. Subsequently, she filed O.S. No. 429 of 1986 against the petitioner and others, for declaration and the said suit was dismissed as not pressed on 05.02.1992. In the meantime, the said Ramalakshmi had executed a gift deed on 15.07.1989 in favour of the first respondent, in respect of the plaint schedule property. Subsequently, she filed O.S. No. 429 of 1986 against the petitioner and others, for declaration and the said suit was dismissed as not pressed on 05.02.1992. In the meantime, the said Ramalakshmi had executed a gift deed on 15.07.1989 in favour of the first respondent, in respect of the plaint schedule property. On the basis of the above gift deed, the first respondent filed a suit in O.S. No. 80 of 1990 before the Subordinate Court, Nagercoil, against the petitioner herein and the second respondent/first defendant and six others, for declaration, in respect of the very same suit property, measuring 600 square links [North and Southern most 600 square links]. The said suit was transferred to the Principal District Munsif Court, Nagercoil, and renumbered as O.S. No. 427 of 1996. The said suit was also dismissed on 08.10.1998. Against the said judgment and decree, the first respondent filed A.S. No. 136 of 1998 before the District Court, Kanyakumari at Nagercoil, which was also dismissed on 01.09.2003. The said judgment and decree has become final, as no second appeal has been filed. One Sethuraman, the brother of the first respondent filed O.S. No. 835 of 1998 against the petitioner for permanent injunction for the very same property. The said suit was decreed in favour of the said Sethuraman. Against the said judgment and decree, the petitioner has also filed first appeal. The said first appeal was also dismissed. Therefore, the petitioner has filed S.A. No. 103 of 2005 before this Court. This Court allowed the second appeal, setting aside the judgment and decree passed in O.S. No. 835 of 1998. Against the judgment and decree passed in S.A. No. 103 of 2005, no appeal has been filed. In view of the dismissal of the suit filed by the mother of the first respondent, dismissal of the partition suit filed by the first respondent and also the dismissal of O.S. No. 835 of 1998 in S.A. No. 103 of 2005, the first respondent is not necessary and proper party and prayed for dismissal of the said application. 5. In view of the dismissal of the suit filed by the mother of the first respondent, dismissal of the partition suit filed by the first respondent and also the dismissal of O.S. No. 835 of 1998 in S.A. No. 103 of 2005, the first respondent is not necessary and proper party and prayed for dismissal of the said application. 5. The learned II Additional District Judge, Nagercoil, considering the averments mentioned in the affidavit and the counter affidavit and also considering the materials available on record, allowed the application based on the pendency of various suits filed in respect of very same suit property as well as the dismissal of the suit in O.S. No. 261 of 2003 filed by the petitioner. 6. Against the said order, dated 10.11.2009, the petitioner has come out with the present Civil Revision Petition. 7. The learned counsel for the petitioner submitted that the learned II Additional Subordinate Judge failed to see that the property mentioned in O.S. No. 261 of 2003 is different from the property mentioned in the present suit. The learned counsel for the petitioner further submitted that the learned II Additional Subordinate Judge failed to consider the suit in O.S. No. 830 of 1984 filed by the mother of the first respondent against the petitioner and his vendor Nambi Narayanan with regard to the very same property, was dismissed on 15.12.1989 and the said judgment has become final, as there was no appeal against the said judgment and the mother of the first respondent also filed O.S. No. 429 of 1986, which was dismissed as not pressed and O.S. No. 427 of 1996 filed by the first respondent, for partition of 2 ½ cents including the suit property, was dismissed and against which, the first respondent filed A.S. No. 136 of 1998, which was also dismissed. The learned counsel further submitted that the learned II Additional Subordinate Judge has failed to understand the fact that the present suit is filed to enforce the right established in S.A. No. 103 of 2005 on the file of this Court, to demarcate the property, against Aachiammal, the only contesting party and therefore, the first respondent is no way connected with the suit property. The learned counsel for the petitioner also submitted that the petitioner is in possession of 1225 square links as per sale deed, dated 15.12.1983, executed by his vendor - Nambi Narayanan, who had purchased the same from Valliammal. The said Valliammal derived absolute right of 1225 square links through the settlement deed, sale deed and partition deed and the petitioner has filed the documents to prove his title. The first respondent has filed application for impleading herself as sixth defendant only to drag on the proceedings, at the instigation of the sixth respondent/fifth defendant and the application was filed after completion of evidence on behalf of the petitioner. 8. The learned counsel for the first respondent submitted that the said Valliammal had title only for 600 square links and without having any title, she sold 1 ¼ cents to Nambi Narayanan, from whom, the petitioner purchased the property and the petitioner has not acquired any title to entire 1 ¼ cents. The mother of the first respondent - Ramalakshmi is owner of 600 square links and she settled the same in favour of the first respondent by the settlement deed, dated 15.07.1989. The petitioner suppressed the dismissal of the earlier suit filed by him against the first respondent and the learned II Additional Subordinate Judge has considered the various litigations between the parties and rightly allowed the application. There is no error or illegality in the said order in allowing the application. 9. Heard the learned counsel for the sixth respondent. 10. I have considered the submissions of the learned counsel for the parties and perused the materials available on record. 11. The first respondent filed application to implead her as sixth defendant in the suit in O.S. No. 15 of 2009. According to her, 600 square links out of 2 ½ cents devolved on her mother - Ramalakshmi on the death of her grandmother Parvathiammal. The petitioner claiming title over the property based on the sale deed dated 15.12.1983. The vendor of the petitioner and his vendor Valliammal did not have right to sell 1 ¼ cents of property and the petitioner has not acquired title over 600 square links of the property belonging to the mother of the first respondent. It is pertinent to note that O.S. No. 830 of 1984 and O.S. No. 429 of 1986 filed by Ramalakshmi, mother of the first respondent, were dismissed. It is pertinent to note that O.S. No. 830 of 1984 and O.S. No. 429 of 1986 filed by Ramalakshmi, mother of the first respondent, were dismissed. Similarly, the suit in O.S. No. 427 of 1996 filed by the first respondent, for partition, was also dismissed and against which, the first respondent filed A.S. No. 136 of 1998, which was also dismissed. In the circumstances, it cannot be said that the first respondent is proper and necessary party to the suit. In the nature of relief sought for by the petitioner, the learned II Additional Subordinate Judge failed to consider the dismissal of the suit filed by the mother of the first respondent and with regard to title to 600 square links and also the dismissal of suit and appeal filed by the first respondent, for partition. 12. Considering the above facts, the first respondent is not necessary and proper party in the suit filed by the petitioner. In the circumstances, the fair and executable order, dated 10.11.2009, passed in I.A. No. 205 of 2009 in O.S. No. 15 of 2009, by the learned II Additional Subordinate Court, Nagercoil, is set aside and the Civil Revision Petition is allowed. No costs. Consequently, connected miscellaneous petitions are closed.