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Goudhul Alam Meera Maideen Pallivasal, Rep. Through its President v/s Mahaboob John & Another


Company & Directors' Information:- MEERA AND COMPANY LIMITED [Active] CIN = U29210DL1979PLC009486

Company & Directors' Information:- ALAM & CO LTD [Strike Off] CIN = U60210WB1946PLC014227

Company & Directors' Information:- A N JOHN PVT LTD [Active] CIN = U74999WB1950PTC019260

    C.R.P(MD)No. 995 of 2008 & M.P.(MD)No. 1 of 2018

    Decided On, 24 October 2018

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE KRISHNAN RAMASAMY

    For the Petitioner: P. Velmurugan, Advocate. For the Respondents: R1, P.T.S. Narendravasan, Advocate, R2, No Appearance.



Judgment Text

(Prayer: Civil Revision Petition is filed, under Article 227 of the Constitution of India, against the Judgment and decree dated 26.11.2007 made in O.S.No.32 of 1999 on the file of the Subordinate Court (Wakf Tribunal), Srivilliputhur.)

1. Challenge in this Civil Revision Petition is to the order dated 26.11.2007 passed in Original Suit No.32 of 1999 by the Subordinate Judge (Wakf Tribunal), Srivilliputhur.

2. The petitioner herein as plaintiff has instituted Original Suit No.32 of 1999 on the file of the Court below for the relief of declaration and recovery of possession, wherein the respondents herein have been shown as defendants. It is the case of the plaintiff/Pallivasal that originally the suit property comprised in old Survey Nos.63, 65/3 and 65/4, now comprised in T.S.No.22/1. The suit in O.S.No.32 of 1999 was filed plaintiff/Pallivasal for declaration and recovery of possession, as the first respondent made encroachment in the suit property.

3. The Court below after considering the divergent contentions put forth on either side has dismissed suit. Against the dismissal order passed by the Court below, the present Civil Revision Petition has been filed at the instance of the petitioner/plaintiff/Pallivasal as revision petitioner.

4. Heard the learned counsel for the petitioner and the learned counsel for the first respondent.

5. The learned counsel appearing for the Civil Revision Petitioner advanced his arguments stating that the Tribunal failed to see the available records in proper perspective and the suit is barred by res judicata is totally false, as the earlier suit in S.C.No.03 of 1995 was filed only for recovery of rent, whereas the present suit is filed for declaration and recovery of possession. Hence, the earlier suit and the present suits are entirely different. Under the said circumstances, the present suit is legally maintainable and the same is not barred by res judicata.

6. On the other hand, the learned counsel for the respondent submitted that earlier suit filed by the petitioner against the first respondent and others for recovery of rent and the same was dismissed on the ground that the plaintiff/Pallivasal, failed to prove that it has title in Survey Nos.65/2 and 65/3. As against the said order, no appeal was preferred and hence, the said order has become final. The subject property in the present Civil Revision Petition is with regard to Survey No.65/3, which is the subject matter in the earlier suit also. As already title was negatived in respect of Survey No.65/3, the petitioner herein to get over the said finding, again filed the present suit for declaration of title in Survey No.65/3, which is totally not maintainable and hence, the same was dismissed on the point of res judicata.

7. The learned counsel for the respondent would further contend that once the Court decided in Rent Control Proceedings that the petitioner herein failed to prove the title in respect of Survey No.65/3, the petitioner cannot once against file another suit for declaration and recovery of possession claiming the title in Survey No.65/3 impleading the tenant as respondent, which is totally barred by res judicata. Hence, on this ground, the dismissal of the suit in O.S.No.32 of 1999 by the Tribunal is proper and therefore the dismissal order passed by the Court below need not be interfered with.

8. Further, the learned counsel for the respondent would submit that the petitioner herein failed to issue notice under Section 90 of the Wakf Act, 1995, which is mandatory as per the Provisions of the Wakf Act, which was not done. If at all, if the petitioner is the owner, it is mandatory to issue notice under Section 90 of the said Act, but they have not issued notice and therefore, on this ground also, the suit is not maintainable and consequently, this Civil Revision Petition is also liable to be dismissed. As per Order 2 Rule 2 of C.P.C., in the first suit itself, they ought to have included the whole claim and different suits cannot be filed in respect of the same property against the same parties.

9. The learned counsel for the respondent would also submit that here, the petitioner/Pallivasal, in order to get over the res judicata, came up with a story as if the first respondent encroached the property. In the present case, even after the Advocate Commissioner's report to the trial Court, the petitioner/Pallivasal has not come forward to amend the plaint to show the correct discrepancy of the property, which has been encroached by the first respondent. Further, the first respondent's wife is the owner of the property in Survey No.65/3. In order to prove the said contention Ex.B1- receipt was filed. Even subsequent to the filing of Ex.B1-receipt, the petitioner/Pallivasal never impleaded the first respondent/wife as a party to the proceedings, who is a necessary party. Therefore, the suit is liable to be dismissed on the ground of non-joinder of necessary parties, as per Order 1 Rule 9 of C.P.C. Accordingly, the Tribunal dismissed the suit for non joinder of necessary parties and this Court also may uphold the finding of the lower Court, as there is no need to interfere in its finding on the issue of non joinder of necessary parties.

10. With regard to the finding in O.S.No.722 of 1974 and in O.S.No.1 of 1986, which were filed by the third parties against the Pallivasal, it is the contention of the learned counsel for the first respondent that he was not a party to the said proceedings and therefore, the finding given in the above suit will not bind him. Further, mere dismissal of the suit filed by the third party will not give any legal right to the Pallivasal for the subject properties. On the other hand, the suit filed by the Pallivasal as plaintiff against the first respondent herein and others before the District Munsif Court, Srivilliputhur in S.C.Nos.3/1995, 1/94, 2/94 and 1956/96 for recovery of rent, were dismissed on the ground that the petitioner/Pallivasal has failed to prove its title in Survey No.65/3 and that the said order has become final, since the Pallivasal has not preferred any appeal.

11. Admittedly, the suit in O.S.No.03 of 1995 was filed by the petitioner/Pallivasal for recovery of rent, claiming ownership in Survey No.65/3 and that the same was rejected by the lower Court. Therefore, it is proved beyond doubt that the Pallivasal is not the owner of Survey No.65/3. The said order has not been challenged and hence, it

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has become final. Under such circumstances, the petitioner cannot file the present suit in O.S.No.32 of 1999 for declaration and recovery of possession, as the previous decision made in O.S.No.03 of 11995 has become final. Therefore, this Court is of the view that the contentions raised on the side of the revision petitioner/Pallivasal are not having subsisting force. The Court below after considering all the contentions raised on either side has rightly dismissed the suit and hence, the present Civil Revision petition deserves to be dismissed. 12. In fine, this Civil Revision Petition deserves dismissal and accordingly is dismissed. No costs. Consequently, connected Miscellaneous Petition is also dismissed.
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