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2020 DIGILAW 1335 (MAD)

Ponnumony (died) v. Thansilas

2020-08-21

RMT.TEEKAA RAMAN

body2020
JUDGMENT : (Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908, against the Judgment and Decree passed by the learned Subordinate Judge, Kuzhithurai in A.S.No.35 of 1998, dated 08.07.2002 reversing the judgment and decree of the learned Principal District Munsif, Kuzhithurai in O.S.No.573 of 1985 dated 23.02.1997.) 1. The defendants 4 to 7, 9 to 12, 14 to 18 are the appellants herein. The respondents 1 to 3 herein are the plaintiffs in O.S.No.573 of 1985 on the file of the Principal District Munsif, Kuzhithurai for partition of eight cents in the suit property. 2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. The gist of the facts of the case are as follows: 3(a). The suit was one for partition of eight cents of property purchased by plaintiffs 1 & 2 under Ex.A2 and Ex.A4 dated 10.03.1980 and 15.03.1980 respectively, from the legal representatives of T.C.Kesavan Pillai, who was the original owner. Plaintiffs 1 & 2 were minors on the date of Suit and hence the suit was filed by their mother, the third plaintiff. The plaintiffs claimed title to the suit property under Ex.A1 and Ex.A4. 3(b). The defendants resisted the claim of the partition under multiple grounds inter alia contended that the suit is not maintainable in law. The sale deeds, viz., Ex.A2 and Ex.A4 were executed by incompetent persons and the same did not take effect. The plaintiff's vendor claimed title under one T.C.Kesava Pillai. The said T.C.Kesava Pillai executed a Possessory mortgage dated 07.12.1104 M.E. in favour of the predecessor of the defendants. The mortgage was never redeemed either by the mortgagor or his successors in interest. The right of the mortgagor has already become barred by limitation. There are two earlier suits in O.S.No.467 of 1972 and O.S.No.762 of 1970. The plaintiffs are bound by those two decrees. Therefore, the present suit is barred by res judicata. The suit property is within the jurisdiction of Sub Registrar of Kollemcode within Kanyakumari istrict. The sale deeds were executed in Kerala. Therefore, the documents are void. Necessary parties were not impleaded in the suit. Therefore, the suit is bad for non-joinder of necessary parties. The entire property within the survey number belonging to the Nayar Tarawad was not included in the suit for partition. The sale deeds were executed in Kerala. Therefore, the documents are void. Necessary parties were not impleaded in the suit. Therefore, the suit is bad for non-joinder of necessary parties. The entire property within the survey number belonging to the Nayar Tarawad was not included in the suit for partition. Therefore, the suit is bad for partial partition. The third plaintiff has no joint possession as alleged. Further, the father of minor plaintiffs 1 and 2 is the natural guardian. He is alive and is impleaded as third defendant. There is no allegation in the plaint that he has any interest adverse to that of minor, plaintiffs 1 and 2. Therefore, the suit filed by the mother on behalf of the minor children is not maintainable. 4. The trial Court has formulated necessary issues. On the side of the plaintiffs, the third plaintiff examined herself as P.W.1 and documents Exs.A.1 to A.23 were marked. On the side of the defendants, 9th defendant was examined as D.W.1 and documents Exs.B1 to B13 were marked. 5. The trial Court, on consideration of both oral and documentary evidence dismissed the suit holding that the suit was not maintainable, bad for non-joinder of necessary parties, barred by limitation and that the suit was barred by res judicata. The trial Court also held that plaintiffs did not establish that title under Exs.A2 and A4. 6. Aggrieved against the said judgment and decree passed in O.S.No.573 of 1985, the plaintiffs have preferred an appeal in A.S.No.35 of 1998 before the learned Subordinate Judge, Kuzithurai. By a judgment and decree dated 08.07.2002, the learned Subordinate Judge, Kuzhithurai has reversed the judgment of the trial Court and allowed the Appeal and hence, this Second Appeal. 7. The Second Appeal was admitted. It appears that when the matter was posted for final disposal before one of the Judge of this Court, Judgment was reserved. Subsequently, the EB bundle was found missing and by an administrative order, dated 26.04.2019, the same was ordered to be re-constructed. 8. Following Substantial Questions of Law was considered in the Second Appeal: “1. Whether the lower Appellate Court is right in reversing the finding of the trial Court that the suit is barred by res judicata by virtue of the judgment in Ex.B3? 2. Whether the Suit is bad for non-joinder of necessary parties as held by the trial Court? 3. Following Substantial Questions of Law was considered in the Second Appeal: “1. Whether the lower Appellate Court is right in reversing the finding of the trial Court that the suit is barred by res judicata by virtue of the judgment in Ex.B3? 2. Whether the Suit is bad for non-joinder of necessary parties as held by the trial Court? 3. Whether the predecessor in title of the defendants who were mortgagees under Ex.B1 mortgages have become owners of suit property by non-redemption under Section 27 of the Limitation Act? 4. Whether Ex.A22 is valid? 5. Whether the Suit filed by the mother on behalf of the minors is maintainable when the father, who is the natural guardian, is alive and when there is nothing to show that he had any interest adverse to the minors. Additional Substantial Question of Law No.1: 1. When the properties conveyed under Exs.A2 and A4 situated within the State of Tamil Nadu, whether the registration of those documents within the State of Kerala after including a fictitious property as security is valid in law?” 9. Mr.K.Sreekumaran Nair, learned counsel appearing for the appellants/defendants contended that the plaintiffs have not derived any title under Exs.A1, A2 and A21 and the trial Court has rightly come to the conclusion and dismissed the suit. However, on erroneous consideration of res judicata point, the lower Appellate Court has allowed the same, and hence prayed for allowing the second appeal by restoration of the decree granted by the trial Court. 10. Per contra, Mr.P.Thiagarajan, learned counsel for the contesting respondents 1 to 3 would made submissions in support the judgment of the lower Appellate Court and hence prayed for dismissal of the second appeal by confirming the judgment of the lower Appellate Court. 11. Heard Mr.K.Sreekumaran Nair, learned counsel appearing for the appellants and Mr.P.Thiagarajan, learned counsel appearing for the contesting respondents 1 to 3 and perused the typeset of papers and the documents of evidence that has been recorded and marked before the trial Court. 12. After going through the respective pleadings and the respective oral evidence adduced before the Court and the respective documents marked before the trial Court, this Court finds that the documentary evidence viz., Exs.A2, A3 and A1 are relied upon by the respondents/plaintiffs while Exs.B3, B4, B5, B6, B11, B12 and B13 are relied upon by the defendants/appellants. 13. This suit is for partition. 13. This suit is for partition. The plaintiffs are the respondents 1 to 3 herein. The suit property purchased by the plaintiffs under registered sale deeds dated 10.03.1980 and 15.03.1980 under documents Exs.A2, A3, A4 and A5. Since it is an undivided property, the plaintiffs filed a suit for partition. The suit filed by the minors represented by the mother as guardian. Per contra, gist of the appellants/defendants case is that the vendor has no right to sell the suit to the appellants under a document dated 07.12.1104 ME(Ex.B1) and the same was not redeemed. The third defendant herein is the father of the plaintiffs 1 and 2. There were earlier suits O.S.No.467 of 1972 and O.S.No.762 of 1970 for partition and redemption of mortgage respectively, and the third defendant herein was already a party to the earlier suit. Hence, the suit is barred by res judicata. The plaintiffs' document Ex.A2 and A4, which were registered in Parasala Registration Office and hence those documents are void documents and the plaintiffs have no title over the suit property. 14. On perusal of the suit property, it is seen that the suit property is in old Survey No.1033 and 1034 measuring an extent 1.49 acre belongs to the Kallkurichi Nair house. The plaintiffs have purchased eight cents out the 1.49 acres. Hence they have sought for partition in the present suit. 15. It appears that the total extent of the land in the said Survey number is 1.49 acres, out of which, the suit property is part of the larger extent of land sold by one Kallakurichi Nair out of which 1.44 cents were left and remaining portion of the land in Kollamkode village in Vilavankode, Kanyakumari District were acquired by the Government for water-channel purpose. Though as per schedule, it is one acre 49 cents as per the lay on ground, it is one acre 31 cents. 16. The respondents 1 and 2 herein are minors at the time of filing of the suit and they are represented by the third respondent/third plaintiff, who has filed the suit for partition and they relied upon Exs.A1 and A2 alleged to have purchased the property from Ambujatchi Amma and Lalitha Bai to an extent of 5+3 cents, in toto 8 cents. The third defendant in the suit, namely, Thangamani is the father of the plaintiffs 1 and 2 and husband of the third plaintiff Lysammal. The relationship between the parties are not disputed. 17. The larger extent of land, namely, the subject matter of the suit property along with in One acre 49 cents along with 11.5 cents originally owned by T.C.Kesava Pillai Nair. The said Nair had two wives. The second wife Ambujatchi Ammal from whom the plaintiffs are claiming title. 18. In the earlier round of litigation between the first wife and the second wife of the said T.C.Kesava Pillai Nair, a partition suit in O.S.No.467 of 1972 and a redemption suit in O.S.No.762 of 1970 were filed. From the evidence that is produced before this court, this Court finds that this is the fourth round of litigation and the sum and summary of the admitted legal litigation are hereunder. (a) Kalakurichi Nair house effected a partition in which entire 1.49 acre were allotted to one T.C.Kesava Pillai dated 05.08.1104 ME. (b) On 07.12.1104ME, a mortgage was executed by T.C.Kesava Pillai in favour of D1 to D3 in O.S.No.762 of 1970 for the entire extent of 1.49 acre except Palmyra tree in the said property. (c) The suit in O.S.No.14/1105ME was filed by some of the family members those who were not party to the above partition suit and the said suit was decreed. Hence in the said suit 96 cents were allotted to the said T.C.Kesava Pillai. Another Oodukoor mortgage was executed in favour of D10, and D11 and predecessors of D6 to D9, D12 and D17 in O.S.No. 762 of 1970 dated 06.03.1110ME. (d) On 31.01.1964, O.S.No.12 of 1964 filed by Ambujatchi, second wife of T.C.Kesava Pillai for partition against the plaintiffs in O.S.No.762 of 1970, who were the first wife and her children of T.C.Kesavapillai. The said suit was dismissed and in appeal it was reversed and granted decree for partition in favour of Ambujatchi Amma. Challenging the same, the plaintiffs in O.S.No.762 of 1970 preferred a second appeal and finally the said Second Appeal was compromised on 08.12.1972. (e) In the year 1970, the defendants in the suit in O.S.No.12 of 1964 have filed a suit in O.S.No.762 of 1970 for redemption to redeem (96 cents) the property mortgaged by T.C.Kesava Pillai on 07.12.1104ME and 06.03.1110ME. (e) In the year 1970, the defendants in the suit in O.S.No.12 of 1964 have filed a suit in O.S.No.762 of 1970 for redemption to redeem (96 cents) the property mortgaged by T.C.Kesava Pillai on 07.12.1104ME and 06.03.1110ME. (f) In the year 1972, the defendants 6,8,10,13 & 14 in the suit in O.S.No.762 of 1970 have filed another suit in O.S.No.467 of 1972 for partition in respect of a southern half in Survey Nos.1033 and 1034 measuring 74 ½ cents claiming that they have purchased the said property. (g) On 18.11.1975, both the suits in O.S.No.762 of 1970 and O.S.No.467 of 1972 were tried together and after an elaborate trial the I-Additional District Munsif came to the conclusion that the plaintiffs in O.S.No.467 of 1972 were entitled to southern 74 ½ cents out of 1.49 cents and the judgment in O.S.No.14/1105ME will not bind them. Further, the defendants 8 to 16 in northern portion and the suit O.S.No.762/1970 filed by the legal heirs of the deceased T.C.Kesava Pillai was for redemption is decreed only with respect of remaining 22 ½ cents in the northern portion. Substantial Question of Law No.1: 19. This Court finds that the original mortgage was executed by T.C.Kesava Pillai in favour of the defendants 1 to 3 in O.S.No.762 of 1970 to a larger extent of 1.49 cents and with regard to other portion, another mortgage was executed in favour of DW.10 and DW.11 in the above said O.S.No.762 of 1970. Admittedly, the second wife of T.C.Kesava Pillai, namely, the said Ambujatchi Amma has filed O.S.No.12 of 1964 against the first wife and the mother, which has reached the Second Appeal stage and it was compromised on 08.12.1972. 20. The second round of litigation is redemption suit and partition suit filed by the respective purchaser of the property in O.S.No.467 of 2017. The purchasers have filed a suit for partition in respective southern half of the survey number measuring 7 ½ cents claiming their right over the suit property. 20. The second round of litigation is redemption suit and partition suit filed by the respective purchaser of the property in O.S.No.467 of 2017. The purchasers have filed a suit for partition in respective southern half of the survey number measuring 7 ½ cents claiming their right over the suit property. The defendants in O.S.No.12 of 1964 (filed by the second wife) have filed O.S.No.762 of 1970 for redemption to redeem 96 cents of the property mortgaged by T.C.Kesava Pillai and hence as stated supra, the defendants in the above said redemption suit have filed O.S.No.467 of 1972 for partition and O.S.No.762 of 1970 and 467 of 1972, redemption suit and partition suits were tried together and on 18.11.1975, the suits were decreed. The plaintiff in O.S.No.467 of 1972, namely, the purchasers were entitled to hold 74 ½ cents out of 1.49 acres, while the defendants 8 to 6 in O.S.No.467 of 1972 were allotted 52 cents on the northern portion. The above said facts are seen from a close scanning and scrutining of the Exs.B3 and B4 coupled with Exs.B5, B6 read with B11, B12, B13. Thus, this Court finds that the first wife of said T.C.Kesava Pillai was allotted 7/10 under Exs.A18 to A20 and A9 to A12. The second wife is allotted 3/10 under Exs.A14 and A16. Thus on a combined reading of Exs.B3 and B4 coupled with the delivery of possession of plots, as per the final decree in the mortgage suit under Exs.B5, B11, B12 and B13, this Court finds that the first and second wives of the said T.C.Kesava Pillai were allotted 7/10 and 3/10 shares respectively, under Ex.A12. With regard to the lands that were allotted to the first wife of the said T.C.Kesava Pillai, which was reflected in Exs.A18 to A20 along with Exs.A9 to A12. So also, the lands in respect of the second wife to an extent of 3/10 are duly reflected in Exs.A14 and A16. Thus, on combined reading of these documentary evidence of the plaintiff with the documentary evidence of the defendants, this Court finds that under Exs.B3 and B4, judgment and decree in O.S.No.467 of 1972, for partition, final decree proceedings have been concluded and based upon the Advocate Commissioner report in I.A.No.197 of 1975. Thus, on combined reading of these documentary evidence of the plaintiff with the documentary evidence of the defendants, this Court finds that under Exs.B3 and B4, judgment and decree in O.S.No.467 of 1972, for partition, final decree proceedings have been concluded and based upon the Advocate Commissioner report in I.A.No.197 of 1975. The Advocate Commissioner report dated 08.08.1989 was taken into consideration and respective shares of the land has been allotted to the respective parties as per Ex.B4 decree dated 08.11.1990, and it is seen from Ex.B5 that copies of delivery of possession in respect of E.P.No.1 of 1991 in O.S.No.467 of 1972. The respective parties are also taken delivery on 12.01.1997 in respect of the defendants herein, and for others it is Exs.B11, B12 and B13. Thus, this Court finds that in view of the previous suit in O.S.No.762 of 1970(redemption suit) and O.S.No.467 of 1972 (partition suit) entire property that was available after acquisition by the Government to an extent of 11 ½ cents, the balance land has been totally partitioned and delivery of possession has also been handed over and the same is recorded and hence the present suit, based upon the alleged Exs.A2 and A3 coupled with Ex.A21 appears to be a fabricated document to get over the previous judgment Ex.B3. 21. On the factual ground, the third defendant, who is the father of the defendants 1 & 2 and the husband of the third plaintiff is arrayed as 11th defendant in the previous suit in O.S.No.467 of 1972 in which the preliminary decree followed by the final decree followed by execution petition and delivery of possession wherein the entire property has been divided and allotted to various persons assumes significance and thus this court has no hesitation to hold that the alleged vendor of the plaintiffs 1 and 2 has no right or title of the suit property, much less, since the property has already been sold by those two first and second wives of the T.C.Kesavapillai and the entire purchasers have been put on record and the property has been totally divided among all the persons in the said survey number. While this being so, the alleged vendor of the plaintiffs has no piece of land to convey. Much less, has no title to convey under Exs.A1 and A2. While this being so, the alleged vendor of the plaintiffs has no piece of land to convey. Much less, has no title to convey under Exs.A1 and A2. Ex.A21 which is said to have been conveyance of the right of the mortgagee to the plaintiffs appears to be came into force or appears to be created to circumvent the Ex.B3-judgment. 22. Further more, as discussed by the trial Court, the father of the plaintiffs 1 & 2, the husband of the third plaintiff, who is the party in the earlier suit in respect of the division of the same property in the same said survey number had been allotted Plot No.11. Now that the plaintiffs appears to have created a fabricated document as if the vendor has taken over a little piece of the land and created to file this suit. Hence, I find that the case of the plaintiffs is based upon the fabricated document and they are not entitled to the relief of declaration. The lower Appellate Court has committed an error and without property looking into the Exs.B5, B11, B12 and B13 has committed error by holding that the same does not constitute res judicata. Thus the Substantial Question of Law is answered in affirmation in favour of the appellants. 23. Substantial Question of Law No.2: (a) As discussed supra, in O.S.No.467 of 1972 the entire property is included. Entire property is divided and delivery taken by respective parties. The suit Survey number is already partitioned and delivery taken by respective parties. The lower Appellate Court have rendered a finding that the previous suit was to divide the entire property into the northern ½ and southern ½ and the present suit is to sub-divide northern half. That is not correct. The previous suit was to divide the entire property to the various sharers. The father of the plaintiffs 1 and 2 was given a share in the northern half. (b) Several persons who were allotted share in the northern half ere omitted in the suit. The trial Court rightly dismissed the suit on the ground of non-joinder of necessary parties. The I-Appellate Court did not consider these documents and came to incorrect conclusion. Thus the Substantial Question of Law No.2 is answered in affirmation in favour of the appellants. 24. The trial Court rightly dismissed the suit on the ground of non-joinder of necessary parties. The I-Appellate Court did not consider these documents and came to incorrect conclusion. Thus the Substantial Question of Law No.2 is answered in affirmation in favour of the appellants. 24. Substantial Question of Law Nos.3 and 4: (a) The plaintiffs produced Ex.A21 alleged release deed in Malayalam whereby one of the legalheir of the said Pillai said to have released right of redemption, which is not signed by the real mortgagee. A specific plea was raised by the defendant that some of the married persons were described as minor as Ex.A22(tamil translation of Ex.A21). They had no power to execute Ex.A21. In this regard PW.1 in the cross-examination has admitted that as pointed out by the defendant those persons are major. However, they are shown as minor and hence this Court is of the considered view that Ex.A21 (in Malayalam) was surrounded by cloud of suspicion besides they have no subsisting right to convey the right of redemption since the mortgage deed is already held to be redeemed as discussed in the above Substantial Question of Law No.1. (b) It remains to be stated that the Ex.B1 mortgage deed was executed in the year 07.12.1104ME(equivalent to 1929 year) Ex.A21(release deed in Malayalam) Ex.A22 Tamil translation came into existence on 26.08.1993 and hence by operation of law even if there is an existing right, the same shall stand extinguished due to non-redemption under Section 27 of the Limitation Act. (c) Ex.A22 is the Tamil translation of Ex.A21 in view of the discussion in the Additional Substantial Question of Law No.1 that Ex.A21 is not true and valid. Consequently, Ex.A21 which is only a translation copy of Ex.A22 and Ex.A21 is also held to be invalid. In this view of the matter Substantial Question of Law Nos.3 and 4 are answered in favour of the appellants. 25. Substantial Question of Law No.5: As per Order 32 Rule 1 and 2, minor can be represented by even a next friend. Only when the suit filed against minors then the natural guardian or court guardian has to defend the case. But not in case of the suit filed by minor. Hence, the suit filed by the mother of the minor plaintiffs is valid. 26. Only when the suit filed against minors then the natural guardian or court guardian has to defend the case. But not in case of the suit filed by minor. Hence, the suit filed by the mother of the minor plaintiffs is valid. 26. Additional Substantial Question of Law No.1: (a) The appellants/defendant have raised a specific plea in paragraph No.14 of the written statement that the suit property situate in Kanyakumari District within Tamil Nadu both A2 and A4 were registered in Kerala State, by including some fictitious property as Security. The documents are nothing but fraud on Registration. (b) In this regard, the third plaintiff as PW.1 has stated in her evidence that Exs.A2 and A4 were registered in Kerala to save Stamp duty. The Stamp duty is higher in Tamil Nadu than Kerala. Therefore the document was registered in Kerala. In other words the documents were registered in Kerala to defraud the Government of Tamil Nadu. If the party to the document does not show a property within the jurisdiction of the Sub Registrar of Kerala as security in the document, the Sub Registrar would not register the document. Therefore, a fictitious property or a non-existing property will be shown as a security property by the parties. When the opposite party raises the contention that the property that was shown as security is fictitious, it is the duty of the plaintiff to prove that the property shown as Security is real and it is an existing property within the jurisdiction of the registering officer. Mere reading of recital in the document will not be sufficient to prove that the property shown as security is real and existing. (c) A similar view was expressed in the judgment of the Hon'ble Division Bench of Madras High Court reported in 1988 (1) MLJ 447 , this Court held that the document registered in Kerala in respect of property within Tamil Nadu is void. Thus a reading of the above decision cited goes to show that when a sale deed is registered at Kerala State for a property in Tamilnadu by showing another property as security property as if it is in Kerala, when the same was disputed by opposite party as fictitious property, a duty is caused upon the shoulder of the plaintiffs to prove the existence of that property in Kerala. In other words, it is the burden on the shoulder of the plaintiff to prove the factum of existence of such property in Kerala as real and in existence, on failure to do so, the ratio of the above decision shall operate. Consequentially, those document will be treatment and declared as void in law. As in the instance case, the plaintiffs have not discharged the burden of proof as he fails to do so, so fails this suit. Thus, the plaintiffs are to be non-suited. If the documents of title (Exs.A2 and A4) are void, no decree could be granted on the basis of these documents. Thus, the Additional Substantial Question of Law is answered in affirmation in favour of the appellants. 27. In view of the Substantial Question of Law No.5 is answered in negation against the defendants/appellants and all other Substantial Questions of Law and Additional Substantial Question of Law No.1 are held in favour of the appellants/defendants. Consequently, it is held that the respondents 1 to 3 have not established the title over the suit property. 28. In fine, The respondents/plaintiffs have filed the suit seeking the relief of declaration of title and for permanent injunction in respective of the suit property by relying upon Exs.A1 and A2 and Ex.A22. Exs.A1 and A2 are the sale deeds alleged to have been executed by the legalheirs of the T.C.Kesava Pillai, namely, through the second wife and Ex.A21 is alleged to be conveyance of right of redemption from the legal heir of the deceased Muthiah Pillai. 29. In the discussions in the preceding paragraphs, the sale deed Exs.A1 and A2 that was registered in Kerala along with fictitious property are void in law and further more Ex.A22 wherein the petitioner alleged that there was conveyance of redemption rights of the mortgage under Ex.B3. Ex.B3 mortgage deed was executed on 25.07.1996, the same was subject matter of the redemption suit in O.S.No.762 of 1970. Ex.B3 mortgage deed was executed on 25.07.1996, the same was subject matter of the redemption suit in O.S.No.762 of 1970. The said suit was contested wherein the father of the minor plaintiffs is arrayed as one of the party and is resulted in preliminary decree and subsequently final decree and thereafter based upon final decree in the redemption suit along with partition suit have filed by the some of the purchasers of the suit property (on the northern side and southern side) of the entire extent was considered in the execution proceedings and also been completed in respect of the entire extent of the land and the sketch is also marked the Advocate Commissioner's report which is suggested the mode and means and method for allocation of the properties to the various parties and the said the report of the Advocate Commissioner is also been accepted and execution proceedings are also been terminated after recording the delivery of possession to the various parties, as contained therein. 30. While that being so, the Ex.A22 dated 06.08.1996 is cleary out of period of limitation and hence there cannot be any conveyance of right of redemption as alleged by the plaintiffs and besides the suit based on the said mortgage Ex.B3 has also been culminated into final decree and execution of the final decree and allocation of the property to the various persons and delivery is also been ordered wherein father of the minor plaintiffs is also been taken part also had taken delivery of allotted portion of the property and he has also taken the possession and hence the decree shall operate as res judicata against the petitioner herein and hence viewing from any angle either the plaintiffs neither derives any title under Exs.A1 and A2 nor can seek support of Ex.A21 & Ex.A22(Tamil version of Ex.A21) which is exclusively barred under Section 27 of the Limitation Act and on the legal principle of the res judicata, thus the plaintiffs cannot maintain the suit. Cost: 31. On entirety of the circumstances I find that after more than three rounds of litigation infact four rounds of litigation the plaintiffs have chosen to fabricate certain documents to deviate the decree granted by the Civil Court on the earlier round of litigation and hence I find that this suit instituted by the respondents/plaintiffs is not only frivolous but also mischievous. In this view of the matter, I am inclined to award exemplary cost this appeal stands allowed with cost throughout and Advocate fee for second appeal is fixed at Rs.5000/-. 32. In the result, (i) The Second Appeal is allowed. (ii) The Judgment and Decree passed by the learned Subordinate Judge, Kuzhithurai in A.S.No.35 of 1998, dated 08.07.2002 is hereby set aside and the Judgment and Decree passed by the learned Principal District Munsif, Kuzhithurai in O.S.No. 573 of 1985 dated 23.02.1997 is restored. (iii) The suit is dismissed with exemplary cost and the appeal is allowed with cost throughout and advocate fee fixed at Rs.5000/- at High Court. Consequently, connected miscellaneous petitions are closed.