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2017 DIGILAW 3019 (MAD)

K. Vasu v. K. Thangaiya

2017-09-05

T.RAVINDRAN

body2017
ORDER : The suit in O.S.No.66 of 2015 has been laid by the respondent/plaintiff for permanent injunction. 2. Briefly stated claiming that the plaint schedule property is in his possession and enjoyment and with reference to the same, the Government had also issued a 2C Patta in his favour and further complaining that as the petitioner/defendant, without any authority, is attempting to interfere with his possession and enjoyment of the suit property as such, according to the respondent/plaintiff, he has been necessitated to lay the suit for permanent injunction. 3. Complaining that the suit laid by the respondent/plaintiff does not disclose any cause of action, the petitioner/defendant had moved an application, under Order VII Rule 11(a) of the Code of Civil Procedure, to reject the plaint. The plea of the petitioner/defendant is that inasmuch as the 2C Patta claimed by the respondent/plaintiff to have been issued in his favour pertains only in respect of the enjoyment of the trees and plants and not to the suit property as such, according to him, the suit laid by the respondent/plaintiff on the basis of the 2C Patta is without any foundation and cause of action and hence, the suit is liable to be dismissed. That apart, according to the petitioner/defendant, inasmuch as in respect of the same property, there has been already a lis between the parents of the petitioner/defendant and the respondent/plaintiff and others and inasmuch as the right and enjoyment of the parents of the petitioner/defendant in respect of the said property had been upheld in the said suit i.e., in O.S.No.382 of 1998 and when the same had been confirmed by the High Court also in S.A.(MD) No.120 of 2008, the petitioner/defendant cannot be allowed to again re-agitate the issue in the guise of the present suit and if the respondent/plaintiff is permitted to continue the suit, according to the petitioner/defendant, it would amount to enabling the respondent/plaintiff to challenge the wisdom of the High Court as regards the Judgment passed by it in S.A.(MD) No.120 of 2008 and therefore, urged that the present suit, without any cause of action, is liable to be rejected. 4. 4. On a consideration of the rival contentions put forth by the respective parties, it is found by the Court below that inasmuch as the respondent/plaintiff has laid the suit claiming to be in possession and enjoyment of the suit property on the basis of the Patta issued by the Government and when prima facie the respondent/plaintiff has established the cause of action to institute the suit against the petitioner/defendant holding that the plea of the petitioner/defendant that the said issue had already been adjudicated in O.S.No.382 of 1998 could not be gone into at this stage of the matter and the same could be determined during the course of trial and thereby further holding that the plea of res judicata pleaded by the petitioner/defendant also could be adjudicated only during the course of trial and accordingly, on a reading of the plaint averments as a whole, when it has been clearly alleged that the petitioner/defendant is attempting to interfere with the possession and enjoyment of the suit property of the respondent/plaintiff, without any authority and when admittedly, the petitioner/defendant is not the owner of the suit property and only the Government being the owner and as the issues sought to be raised by the petitioner/defendant in the application could be adjudicated only during the course of trial, held that the application laid by the petitioner/defendant to reject the plaint does not merit acceptance and accordingly, dismissed the application. Impugning the same, the present civil revision petition has been preferred. 5. As seen above, claiming that the suit property is in his possession and enjoyment for a long period of time and in evidence thereof, he had also been issued a 2C Patta by the Government, the real owner and further complaining that the petitioner/defendant is attempting to interfere with his possession and enjoyment of the suit property, according to the respondent/plaintiff, he has been necessitated to lay the suit for permanent injunction. A perusal of the plaint as such would go to show that the suit property is described to be located in two schedules within specific boundaries in Survey No.296, measuring an extent of 50 Cents and there are trees and plants etc. A perusal of the plaint as such would go to show that the suit property is described to be located in two schedules within specific boundaries in Survey No.296, measuring an extent of 50 Cents and there are trees and plants etc. Therefore, as rightly determined by the Court below, prima facie, a perusal of the plaint averments and also the documents filed by the respondent/plaintiff along with the plaint would go to show that the respondent/plaintiff, as pleaded, has a sustainable cause of action to maintain the suit against the petitioner/defendant. 6. If according to the petitioner/defendant, if it is only he, who had been granted 2C Patta in his favour in respect of the suit property and accordingly, it is he only who is in possession and enjoyment of the suit property as now claimed, nothing prevented him from resisting the suit laid by the respondent/plaintiff in the manner known to law. In such view of the matter, to say that the respondent/plaintiff has no cause of action at all and therefore, his suit is liable to be rejected on that ground as such, particularly, in the light of the plaint averments and also the documents filed along with the plaint, cannot be accepted. 7. In such view of the matter, to say that the respondent/plaintiff has no cause of action at all and therefore, his suit is liable to be rejected on that ground as such, particularly, in the light of the plaint averments and also the documents filed along with the plaint, cannot be accepted. 7. However, it is argued by the learned counsel for the petitioner/defendant that the issue as regards the subject matter of the suit had already been determined in the earlier litigation between the parties in O.S.No.382 of 1998, which according to the petitioner/defendant, had been laid in respect of the same suit property and when the possession and enjoyment of the petitioner/defendant's predecessor-in-interest had been upheld in the said suit by the High Court in S.A.(MD) No.120 of 2008, on that score alone, according to the learned counsel for the petitioner/defendant, the respondent/plaintiff cannot be allowed to re-agitate the issue once again in the mien of the present suit and on that basis it should be held that the suit laid by the respondent/plaintiff is without any cause of action and in such view of the matter, the further continuance of the suit would only amount to enabling the respondent/plaintiff to question the wisdom of the High Court in upholding the case of the petitioner/defendant's predecessor-in-title in respect of the suit property and therefore, the Trial Court, according to the learned counsel for the petitioner/defendant, had erred in dismissing the application preferred by the petitioner/defendant to reject the plaint. However, the above contention is controverted by the learned counsel for the respondent/plaintiff by arguing that there is no nexus whatsoever with reference to the earlier litigation and the present litigation as the suit properties involved in both the litigations are different and the predecessors-in-title of the petitioner/defendant had only claimed a pathway right in O.S.No.382 of 1998 and accordingly they had been granted the said right alone and that apart, the petitioner/defendant cannot be allowed to claim anything more and in such view of the matter, according to him, the determination of the issues in O.S.No.382 of 1998 upto the level of the High Court would not in any manner preclude the respondent/plaintiff from instituting the present suit, when it is the specific case of the respondent/plaintiff that the suit property is in his possession and enjoyment and in recognition thereof, the real owner i.e., the Government had issued a 2C Patta in his favour and hence, according to him, the Court below has rightly rejected the application preferred by the petitioner/defendant seeking to reject the plaint. 8. On a perusal of the materials placed, it is found that as rightly argued by the learned counsel for the respondent/plaintiff, the suit in O.S.No.382 of 1998 has been laid only claiming the pathway right running in the suit property described therein and nothing more. In the said suit, though the relief of declaration has also been sought for, it is found that the said relief has been negatived by the Courts concerned and only the relief of injunction has been granted in favour of the petitioner/defendant's predecessors-in-title. The subject matter of the present suit is to an extent of 50 Cents within specific boundaries in two schedules and there are trees and plants. A reading of the schedule of property given in O.S.No.382 of 1998 would go to show that the land, comprised in Survey No.296, is a poramboke land and the total extent of the same is 8 Acres and 45 Cents and it is further found that out of the above said extent, only in respect of 1 Acre and 50 Cents within specific boundaries, the petitioner/defendant's predecessors-in-title had claimed mamool pathway right alleging that the same had been in their possession and enjoyment and the respondent/plaintiff and others are unlawfully interfering with their possession of the same. Therefore, it is found that the suit property involved in O.S.No.382 of 1998 is noway connected with the suit property involved in the present suit. Even the boundaries given to the suit property involved in O.S.No.382 of 1998 and the boundaries given to the suit property involved in the present suit are found to be not similar and therefore, the contention that the issue involved in the present suit had already been determined in O.S.No.382 of 1998 upto the level of the High Court as such cannot be readily accepted. As already adverted to, the present suit property is stated to be lying in two schedules within specific boundaries. That apart, a perusal of the plaint description given in O.S.No.382 of 1998 also would go to show that the lands in the enjoyment of the first defendant and the ninth defendant therein (the first defendant in O.S.No.382 of 1998 is the plaintiff in the present suit) are shown as the boundaries of the suit property involved in O.S.No.382 of 1998. Therefore, when such being the position, the contention put forth by the learned counsel for the petitioner/defendant that the issue involved in this litigation has already been determined in the earlier litigation as such cannot be countenanced. 9. According to the petitioner/defendant, the claim of the respondent/plaintiff to be in the possession and enjoyment of the suit property has been negatived by the High Court in the earlier litigation. However, when it is found that the present suit property is not involved in the earlier litigation, the argument put forth that the petitioner/defendant's claim of enjoyment of the suit property had been negatived in the earlier litigation as such cannot be accepted. That apart, a reading of the Judgment of the High Court in S.A.(MD)No.120 of 2008, dated 12.02.2008, would go to show that it has been held therein that the Government is the owner of the poramboke land in Survey No.296 and it has also been held therein that considering the fact that the respondents 1 and 2 (predecessors-in-interest of the petitioner/defendant herein) were also using the pathway situated in the poramboke land, which is also borne out by the plan submitted by the Advocate Commissioner, the Trial Court had granted injunction restraining the appellants in the second appeal from interfering with the use of the pathway by the respondents 1 and 2. It has been further observed by the High Court that the respondent/plaintiff and the other appellants had urged that they had been issued a 2C Patta to establish their possession in the suit property and however, it has been held that the same does not pertain to the poramboke land and as such on the basis of the 2C Patta put forth by the respondent/plaintiff and others, they are held to be not entitled to claim that the Government poramboke land exclusively belonged to them and thereby, the respondents 1 and 2 have to be non-suited. Therefore, it is found that even in the Appellate Court, the respondent/plaintiff and others had been urging the issuance of the 2C Patta in respect of the property in their possession and enjoyment. However, the High Court has only held that the 2C Patta cannot be construed to be issued in respect of the entire poramboke land lying in the said survey number and accordingly, held that the enjoyment of the respondents 1 and 2 cannot be allowed to be interfered as they also have the pathway right in the property concerned. Further, it is seen that in the second appeal, a request has been made by the respondent/plaintiff and the other appellants that the respondents 1 and 2 therein are entitled only for the right of pathway as noted by the Advocate Commissioner and they do not have any right in respect of the poramboke land and the same had been accepted by the High Court also by observing that it is not the case of the respondents 1 and 2 that they are entitled for the entire property shown as poramboke and that they have claimed only right of usage in respect of the pathway running through the Government poramboke land and therefore, there need be no apprehension on the part of the respondent/plaintiff and the other appellants. 10. In such view of the contentions put forth by the respective parties in the second appeal with reference to O.S.No.382 of 1998, it is not as if the High Court in the earlier litigation had completely rejected the case of the respondent/plaintiff that he is not in possession and enjoyment of the property located in Survey No.296. 10. In such view of the contentions put forth by the respective parties in the second appeal with reference to O.S.No.382 of 1998, it is not as if the High Court in the earlier litigation had completely rejected the case of the respondent/plaintiff that he is not in possession and enjoyment of the property located in Survey No.296. On the other hand, it has been only observed that the 2C Patta projected by the respondent/plaintiff and others does not show that they are in possession and enjoyment of the entire poramboke land situated in the said survey number and accordingly, held that by granting the relief of right of use of the pathway to the petitioner/defendant's predecessor-in-interest, the respondent/plaintiff and others need not feel unsafe with reference to the enjoyment of their property. In such view of the matter, it is found that the contention now put forth by the learned counsel for the petitioner/defendant that the High Court in O.S.No.382 of 1998 has completely determined the litigation between the parties in respect of the present suit as such cannot be accepted. Therefore, as rightly determined by the Court below, the principles of res judicata pleaded by the petitioner/defendant cannot be decided at this stage of the matter and the same can be gone into only during the course of trial. 11. As rightly determined by the Court below, on the basis of the plaint averments and the documents filed along with the plaint, it is found that the respondent/plaintiff has made out a clear cause of action to maintain the suit against the petitioner/defendant and inasmuch as the issue involved in the suit had not been as such determined in the earlier litigation as seen from the above discussions and when in particular the subject matter of the present suit is found to be not involved in the earlier litigation and only the right of use of the pathway is found to have been claimed by the petitioner/defendant's predecessors-in-title in respect of the property described in O.S.No.382 of 1998 and when the said property is noway found to be connected with the present suit property, it is found that the plea put forth by the petitioner/defendant that the respondent/plaintiff has no cause of action to maintain the suit as such cannot be countenanced in any manner. Thus, it is found that the Court below has rightly, taking into consideration all the aspects of the matter, rejected the application preferred by the petitioner/defendant seeking to reject the plaint and the impugned order of the Court below does not warrant any interference from this Court. 12. In support of his contentions, the learned counsel for the petitioner/defendant placed reliance upon the decisions reported in 1998 (3) CTC 165 [Nesammal and another vs. Edward and another], 2015 (1) L.W. 450 [Kuzhanthiappa Gounder vs. Nachimuthu and others] and (2017) 4 MLJ 40 [A.E. Rathina Naicker vs. V. Thirumalai]. The principles of law outlined in the above cited decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand. 13. Resultantly, the civil revision petition is dismissed with costs. Consequently, connected civil miscellaneous petition is closed.