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2021 DIGILAW 3406 (MAD)

P. Santhi v. B. Mala

2021-12-03

S.S.SUNDAR

body2021
ORDER : S.S. Sundar, J. 1. This Civil Revision Petition is directed against the order dated 23.01.2019 made in I.A. No. 9578/2018 in O.S. No. 675/2017 by the learned XV Assistant Judge, City Civil Court, Chennai. 2. The revision petitioner is the plaintiff in the suit in O.S. No. 675/2017 filed before the learned XV Assistant Judge, City Civil Court, Chennai and the said suit is filed for a declaration that the Settlement Deed dated 27.04.2016 executed by the 2nd defendant in favour of the 1st defendant is null and void and not binding on the plaintiff. The consequential prayer was to grant permanent injunction restraining the defendants and their men from in any manner dealing with or encumbering the suit "A" Schedule property adverse to the interest of the revision petitioner/plaintiff. 3. During the pendency of the suit, the revision petitioner/plaintiff filed I.A. No. 9578/2018 to issue subpoena to the Tahsildar, Ayanavaram Taluk, to attend personally or depute any one of the officials to attend the Court and to give oral evidence regarding the genuineness of Ex. B1-patta. 4. The said Interlocutory Application was dismissed by the Lower Court holding that the revision petitioner/plaintiff had not pleaded in the plaint that the Tahsildar, Ayanavaram Taluk, had not issued patta in favour of the 2nd defendant. In other words, the Lower Court was of the view that the revision petitioner/plaintiff who has not disputed the genuineness of the document, cannot seek for examination of an official witness to show that the document is a forged one. 5. From the reading of plaint, the revision petitioner/plaintiff has specifically raised a ground that the defendants have fraudulently obtained Natham Patta in the name of the 2nd defendant by including the property of the revision petitioner/plaintiff. 6. In paragraph No. 11 of the plaint, it is stated as follows:- "11. The plaintiff further states that immediately she had applied Encumbrance Certificate and copy of the documents, shocking to the plaintiff that the second defendant fraudulently got Natham Patta in his name and the same is doubt about the originality. Further the second defendant allegedly gets Town Survey Register in S. No. 368/1 part and 281/2B part. The plaintiff further states that immediately she had applied Encumbrance Certificate and copy of the documents, shocking to the plaintiff that the second defendant fraudulently got Natham Patta in his name and the same is doubt about the originality. Further the second defendant allegedly gets Town Survey Register in S. No. 368/1 part and 281/2B part. Based on the said fraudulent patta, the second defendant deliberately executed the alleged settlement deed dated 27.04.2016 in favour of his wife, the first defendant herein in respect of schedule-B mentioned property by including the schedule-A mentioned property. The said alleged settlement deed was registered as Document No. 2067/2016, on the file of the SRO, Konnur, and the same was sham and nominal. There was contraction in alleged patta and Town Survey Register. The defendant are owned only to the extent of below 600 square feet but the defendants deliberately with a cheating intention included the plaintiff's property and fraudulently got Natham Patta and created alleged settlement deed by adding plaintiff's property [Schedule-A mentioned property]". 7. Since the defendants have produced a document against the interest of the revision petitioner/plaintiff and it is the case of the revision petitioner/plaintiff that she is in possession of the property, she should he given an opportunity to examine the Tahsildar, about the genuineness or validity or irregularity if any about the document that was authorised by the official witness who sought to be examined. 8. It is too early to conclude that the examination of the Tahsildar, Ayanavaram Taluk, is not required having regard to the pleadings in the plaint. From the pleadings it is evident that the plaintiff raises an issue about the regularity in issuing natham patta to a person who is not in possession of the property [as stated by the plaintiff]. The witness who is sought to be summoned is an official who is competent to speak about the document Ex. B1 with reference to the specific allegations in the plaint. The object of Order 16 Rule 1[3] CPC will be defeated if the Court has to examine the bona fides with reference to the pleading in the plaint ignoring the nature of dispute or the issue that may arise for consideration for an effective adjudication of the dispute by the Lower Court. The object of Order 16 Rule 1[3] CPC will be defeated if the Court has to examine the bona fides with reference to the pleading in the plaint ignoring the nature of dispute or the issue that may arise for consideration for an effective adjudication of the dispute by the Lower Court. In view of the clear object set out in Order 16 Rule 1[3] CPC, this Court is unable to sustain the order passed by the Court below. 9. In the result, the Civil Revision Petition is allowed and the order passed in I.A. No. 9578/2018 in O.S. No. 675/2017 dated 23.01.2019 by the learned XV Assistant Judge, City Civil Court, Chennai, is hereby set aside. The application in I.A. No. 9578/2018 stands allowed. The Lower Court shall pass further orders as may be necessary in terms of Code. No costs. Consequently, connected miscellaneous petition is closed.