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M. Subash Chandra Bose & Another v/s M. Ramanathan

    C.R.P. (PD) (MD) No. 1531 of 2009 & M.P. (MD) No. 1 of 2009

    Decided On, 14 December 2018

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE T. RAVINDRAN

    For the Petitioners: R. Sundar Srinivasan, Advocate. For the Respondent: G. Prabhu Rajadurai, Advocate.



Judgment Text

(Prayer: Civil revision petition is filed, under Article 227 of the Constitution of India, to call for the records relating to the fair order and decreetal order, dated 09.06.2009 passed by the learned Sub Ordinate Judge, Devakkottai in I.A.No.136 of 2009 in O.S.No.17 of 2009 and set aside the same.)

1. The civil revision petition is directed against the fair order and decreetal orders, dated 09.06.2009, passed in I.A.No.136 of 2009 in O.S.No.17 of 2009, on the file of the Subordinate Court, Devakkottai.

2. The suit, in O.S.No.17 of 2009, has been laid by the respondent / plaintiff for the relief of permanent injunction. The revision petitioners / defendants had filed the written statement disputing the entitlement of the respondent / plaintiff to the suit property legally and thereby, sought for the dismissal of the said suit. Pending suit, seeking to reject the plaint preferred by the respondent / plaintiff, under Order VII Rule 11(d) and Section 151 of the Code of Civil Procedure, the revision petitioners / defendants had preferred I.A.No.136 of 2009, on the reasonings that the respondent had claimed right to the suit property through one Sakthivel, said to be the adopted son of Ramayee Ammal and in fact, the said Ramayee Ammal herself had filed a suit, against the first revision petitioner's mother, namely, Ponnammal, in O.S.No.57 of 1994, on the file of the Subordinate Court, Devakottai, claiming right over the suit property as the legal heir of the defendants 110 and 111, namely, Murugappan Ambalam and Nachammai in O.S.No.72 of 1933 and in the abovesaid suit, the first revision petitioner's mother contended that the share of the defendants 110 and 111 had been conveyed to one Solachi by them, by way of a registered sale deed, dated 08.07.1957 and from the said Solachi, his mother had purchased the property by way of a registered sale deed, dated 04.12.1980 and the abovesaid suit laid by the said Ramayee Ammal for declaration and recovery of possession, after contest and determining that the said Ramayee Ammal has no title to the property for claiming right to the same through the defendants 110 and 111 and upholding the title of the first revision petitioner's mother in respect of the suit property purchased from Solachi, who in turn purchased the same from the defendants 110 and 111, the abovsaid suit was dismissed and the first appeal and thereafter, the second appeal preferred were also dismissed. Therefore, there had been a final decision and adjudication regarding the title of the first revision petitioner's mother to the suit property as above stated and while so, the present suit has been laid by the respondent on the footing that from Ramayee Ammal, one Sakthivel has become entitled to the suit property as her adopted son and the respondent has purchased the suit from from the said Sakthivel and on that basis, he seeks title to the suit property and on the other hand, when in the earlier suit, the title of the suit property had been determined and finally adjudicated, the respondent is not entitled to reopen the same and hence, the present suit is nothing but an abuse of the process of law and when there is a clear admission in the plaint itself that the suit property originally belonged to the defendants 110 and 111 and the said Ramayee Ammal is the legal heir of the abovesaid defendants and one Sakthivel, claiming to be the adopted son of Ramayee Ammal, putforth the claim of title to the suit property and thereby, conveyed the same to the respondent and as abovestated, in the earlier proceedings initiated by Ramayee Ammal, the claim of title to the suit property by the said Ramayee Ammal through the defendants 110 and 111 had been negatived and on the other hand, the claim of title of the first revision petitioner's mother from Solachi, who in turn had purchased the suit property from the defendants 110 and 111, by way of the registered sale deed 04.12.1980 had been upheld and when the said Ramayee Ammal herself has been held not to be entitled to the suit property, which point had been confirmed by the High Court also, there cannot be any further devolution of interest in respect of the suit property through the said Ramayee Amma and therefore, as the abovesaid issue of title involved in the present suit has been determined in the earlier proceedings, the present suit laid by the respondent is barred by res judicata and in such view of the matter, the trial of the suit would involve unnecessary wastage of the judicial time and also lead to further litigation once again and therefore, sought for the rejection of the plaint preferred by the respondent.

3. The abovesaid application has been resisted by the respondent contending that it is true that Ramayee Ammal, the respondent's mother, had filed the suit in O.S.No.57 of 1994, against the first revision petitioner's mother Ponnammal in respect of the property comprised in Survey No.9/6A1B and the same was dismissed. However, according to him, the present suit property is not the subject matter of the earlier litigation and the present suit property is entirely different from the suit property covered in O.S.No.57 of 1994 and hence, the plea of res judicata would not arise in this case and therefore, the cause projected by the revision petitioners that the title of the first revision petitioner's mother had been upheld in the earlier suit and confirmed by the High Court would not in any manner be useful for the rejection of the present plaint. The document of title of Solachi, dated 08.07.1957 did not contain the survey number and the said Solachi purchased the lands situated in No.22 of the 6th Block, 12 of the 7th Block, 37 of the 8th Block and as the said sale deed did not contain any entry regarding the conveyance of the suit property and the encumbrance certificate obtained from the Sub-Registrar concerned contains only the respondent's name, if really, the said Solachi had purchased the suit property, his name would have been reflected in the encumbrance certificate and hence, the question of res judicata does not arise and as the suit property had not been conveyed to the said Solachi by the defendants 110 and 111, the first revision petitioner's mother cannot lay any claim of title to the suit property, hence, there is no question of rejection of the plaint, on the ground of res judicata as putforth by the revision petitioners. Inasmuch as the property involved in O.S.No.57 of 1994 and the property involved in the present suit are completely different and having no nexus to each other and furthermore, as the issue of res judicata, being a mixed question of law and facts, cannot be decided in the preliminary stage, the plea of rejection of the plaint on that ground is not legally sustainable and therefore, prayed for the dismissal of the rejection application.

4. The Court below, on a consideration of the materials placed on record by the respective parties and the submissions made, was pleased to dismiss the application preferred by the revision petitioners and aggrieved over the same, the present civil revision petition has been laid.

5. The respondent has laid the suit in O.S.No.17 of 2009 against the revision petitioners for the relief of permanent injunction in respect of the suit property. Briefly stated, the respondent claims title to the suit property from one Sakthivel said to be the adopted son of Ramayee Ammal, by way of purchase from him on 24.11.2008 and thereby, putting forth that the suit property is in his possession and enjoyment and as the revision petitioners attempted to trespass into the suit property, putforth the case that he has been necessitated to levy the suit for the necessary relief. The revision petitioners, after challenging the respondent's title to the suit property, have putforth the defence, in brief, that the respondent's derivement of title to the suit property, through Ramayee Ammal, is untenable as the said Ramayee Ammal's claim of title to the suit property and to recover the possession of the same in O.S.No.57 of 1994 laid against the first revision petitioner's mother, namely, Ponnammal had been negatived and in the said suit, the said Ramayee Ammal had claimed title to the suit property as the legal heir of the defendants 110 and 111, namely, Murugappan Ambalam and Nachammai in O.S.No.72 of 1933 and in the abovesaid suit, the first revision petitioner's mother had contended that the share of the defendants 110 and 111 had been conveyed by them to one Solachi, by way of the registered sale deed, dated 08.07.1957 and from the said Solachi, the first revision petitioner's mother had purchased the same, by way of the registered sale deed, dated 04.12.1980 and accordingly, in the abovesaid suit, considering the materials placed on record by the respective parties, the Court below had held that the said Ramayee Ammal is not entitled to the suit property and that it is only the first revision petitioner's mother Ponnammal, who had title to the suit property and thereby, dismissed the suit levied by the said Ramayee Ammal. The first appeal and the second appeal preferred as against the Judgment and Decree of the Trial Court had also been dismissed and therefore, it is contended that when in the earlier litigation i.e., in O.S.No.57 of 1994, the title of the vendor's mother of the respondent to the suit property had been negatived and on the other hand, the title of the first revision petitioner's mother to the suit property had been upheld, the respondent, by way of the sale deed, dated 24.11.2008, said to have been executed by Sakthivel, the adopted son of Ramayee Ammal, cannot be allowed to putforth the claim of title to the suit property once again in the present suit and therefore, contended that considering the nature of the derivement of title to the suit property by the respondent through Ramayee Ammal, the same having been resolved in the earlier suit i.e. O.S.No.57 of 1994, according to the revision petitioners, the present suit laid by the respondent is clearly and patently barred by the principle of res judicata and in such view of the matter, the continuation of the present suit would only result in the wastage of the judicial time and accordingly, prayed for the rejection of the plaint.

6. Though the respondent would admit that he derived title to the suit property, through Ramayee Ammal, by way of the sale deed, dated 24.11.2008, executed by the adopted son of Ramayee Ammal, contended that the property purchased by him has no nexus to the property involved in O.S.No.57 of 1994 and further contended that the abovesaid two sets of properties are different and accordingly, putforth the plea that the suit cannot be rejected at the threshold on the principle of res judicata as it involves a mixed question of law and facts and the same can be decided only during the course of trial and accordingly, prayed for the dismissal of the rejection application preferred by the revision petitioners.

7. The Court below, on a consideration of the case putforth by the respective parties, determining that the revision petitioners had failed to correlate the property involved in the present suit with the property involved in O.S.No.57 of 1994 and accordingly, on that footing, dismissed the rejection application.

8. As to how the respondent claims title to the suit property, as rightly contended by the revision petitioners' counsel, the same could be assessed based on the pleas putforth by the respondent in Paragraph No.3 of the plaint, which reads as follows:

“3. The plaintiff respectfully submits that the civil property with larger extent belonged to Kottaiyur Nattar Yettukarai Vallambar 71 Thalaikattu. The suit property comprised in Checkkalaikottai 2nd Block, Plot No.44 was allotted to Murugappan, Nachammai Thalaikattu. The said plot comprised in new Survey No.193/23. After the death of Ramayee and Chidambaram and also son Solaimalai, the adopted son of Ramayee namely Sakthivel inherited the property in New Survey No.193/23 and had been in possession and enjoyment of the same.”

9. Therefore, it is seen that even as per the admitted case of the respondent, the suit property with larger extent belonged to Kottaiyur Nattar Yettukarai Vallambar 71 Thalaikattu and accordingly, the suit property, comprised in Checkkalaikottai 2nd Block, Plot No.44, was allotted to Murugappan and Nachammai Thalaikattu and thereby, Ramayee Ammal and his vendor Sakthivel had derived title to the suit property.

10. As could be seen from the copy of the Judgment rendered in O.S.No.57 of 1994, it is found that the property bearing Plot No.44 in Block No.2 in Checkkalaikottai Village, was part of the larger extent of the property belonging to the estate of Kottaiyur Nattar and the same is the subject matter of O.S.No.72 of 1933, on the file of the Subordinate Court, Devakkottai and in the abovesaid suit laid for partition, a preliminary decree had come to be passed and the Advocate Thiru.S.R.Govindayyar has been appointed as the Receiver-cum-Commissioner in I.A.No.701 of 1944 with a direction to divide the estate amongst the sharers. Accordingly, it is seen that the Plot No.44 in Block No.2 had been allotted to the share of Murugappan Ambalam and Nachammai, the defendants 110 and 111 in O.S.No.72 of 1933 and accordingly, Ramayee Ammal claiming to be the legal heir of the defendants 110 and 111, laid the claim of title to the suit property in O.S.No.57 of 1994. On the other hand, the first revision petitioner's mother, namely, Ponnammal had putforth the case that the defendants 110 and 111 in O.S.No.72 of 1933 had alienated their share allotted to them to one Solachi by way of the registered sale deed, dated 08.07.1957 and the said Solachi in turn had conveyed the same in favour of Ponnammal, the first revision petitioner's mother, by way of the registered sale deed, dated 04.12.1980. Accordingly, based on the abovesaid rival contentions putforth by the respective parties in O.S.No.57 of 1994, considering the materials placed on record, the said Ramayee Ammal's claim of title to the suit property had been negatived and the said Ponnammal's title to the suit property had been upheld. As above noted, the first appeal and the second appeal preferred against the abovesaid determination had also been dismissed. It is noted further that on Ramayee Ammal passing away, it is found that Sakthivel and two others had been impleaded in the abovesaid suit and therefore, it is seen that the abovesaid suit had been disposed of only in the presence of the respondent's vendor Sakthivel and accordingly, when the declinement of Ramayee Ammal's claim of title to the suit property and the acceptance of Ponnammal's claim of title to the suit property have been upheld by the High Court in the abovesaid litigation, when it is seen that the respondent seeks claim of title to the suit property only through Ramayee Ammal and she in turn is also found to be claiming title to the suit property only through Murugappan Ambalam and Nachammai as above discussed, it is found that the title issue in respect of the suit property between the respondent's predecessor-in-title and the first revision petitioner's predecessor-in-title having been determined in the earlier litigation in O.S.No.57 of 1994, accordingly, when the parties are also litigating in the present suit under the very same title and claiming title to the suit property, as rightly putforth by the revision petitioners, obviously, the suit laid by the respondent is found to be barred by the principle of res judicata.

11. As could be seen from the sale deed of the respondent, dated 24.11.2008, it is found that he had only purchased the property allotted to Murugappan Ambalam and Nachammai Thalaikattu bearing Plot No.44 in Block No.2 of Checkkalaikottai Village and when from the Judgment passed in O.S.No.57 of 1994, it is found that only the property bearing Plot No.44 in Block No.2 of Checkkalaikottai Village, comprising of 50 Cents in Survey No.9/6A2A1B is involved and when only the abovesaid property had been allotted to Murugappan Ambalam and Nachammai, who had alienated the share allotted to them to Solachi Achi as above pointed about, the case of Ramayee Ammal's title to the suit property as the legal heir of Murugappan Ambalam and Nachammai had been rightly discountenanced in O.S.No.57 of 1994. That apart, as rightly putforth by the revision petitioner's counsel, as we could gather from the Judgment passed in O.S.No.57 of 1994, when there is a clear determination in the said suit that Murugappan Ambalam and Nachammai had alienated the entire property allotted to them in their Thalaikattu, as above pointed out, in favour of Solachi Achi, by way of the sale deed, dated 08.07.1957 and also not retained any property with them after the abovesaid sale transaction, in such view of the matter, the Court below in O.S.No.57 of 1994, on that footing also, dismissed the claim of title to the suit property putforth by Ramayee Ammal and thereby, upheld the title of Ponnammal in respect of the suit property on the basis of the sale deed, dated 04.12.1980, executed in her favour by Solachi Achi. Therefore, when considering the issues involved in O.S.No.57 of 1994 and in the present suit and also the contesting parties putforth the claim of title to the suit property as above discussed, accordingly, when the respondent's vendor Sakthivel seeks to derive title to the suit property only through Ramayee Ammal, who in turn seeks to derive title to the suit property through Murugappan Ambalam and Nachammai and when from the copy of the Judgment passed in O.S.No.57 of 1994, there is a clear determination that the said Murugappan Ambalam and Nachammai had alienated the share allotted to them in entirety to Solachi Achi and had not retained any property with them thereafter, in such view of the matter, the case projected by the respondent that his vendor or his vendor's mother had title to the suit property in Plot No.44, Block No.2, in Checkkalaikottai Village, Karaikudi Taluk, as such, cannot be readily accepted and accordingly, when the issue of title to the suit property putforth by the respondent's predecessor-in-title and the first revision petitioner's predecessor-in-title having been directly and substantially in issue of O.S.No.57 of 1994 and the same having been determined against the said Ramayee Ammal and in favour of Ponnammal as above discussed and when the respondent had not putforth any material to show that even after the sale deed, dated 08.07.1957, Murugappan Ambalam and Nachammai had retained any other property in Checkkalaikottai Village, as having been allotted to them towards their share, the suit laid by the respondent, as putforth by the revision petitioners, is found to be clearly barred by the principle of res judicata.

12. The Court below, on the footing that the revision petitioners have failed to correlate the property involved in the present suit with the property involved in O.S.No.57 of 1994, had chosen to dismiss the rejection application. However, even as per the case of the respondent, the suit property is comprised only in Plot No.44 in Block No.2 of Checkkalaikottai Village, having been allotted to Murugappan Ambalam and Nachammai and when after the sale deed, dated 08.07.1957, the said Murugappan Ambalam and Nachammai are not pleaded to have retained any other property in the subject Village as having been allotted to them, as rightly putforth, it is evident that the respondent has purchased only the litigation and thereby, attempting to re-agitate the same issue involved in O.S.No.57 of 1994 once again by way of filing the present suit and in such view of the matter, the present suit being nothing but an abuse of the process of law and would involve the wastage of the Court's time, as rightly putforth by the revision petitioners, the suit laid by the respondent is liable to be rejected on the principle of res judicata.

13. With a view to avoid the abovesaid legal bar in laying of the present suit, conveniently, the respondent is found to have described the suit property by giving the measurements in Meters, however, having admitted that the suit property is situated in Checkkalaikottai Village in Plot No.44 in Block No.2 and in such view of the matter, the contention putforth by the respondent's counsel that the property involved in the present suit and the property involved in O.S.No.57 of 1994 are entirely different and therefore, the Court below is justified in rejecting revision petitioners' application for rejection of plaint on the plea of res judicata, as such, cannot be countenanced.

14. Accordingly, it is found that the Court below, without appreciating the materials placed on record by the respective parties, in the right perspective seems to have accepted the case of the respondent, merely on the footing that the present suit has been laid in respect of the other property belonging to Murugappan Ambalam and Nachammai ignoring the fact that in O.S.No.57 of 1994, there is a clear determination that other than the suit property, no other property has been allotted to the abovesaid persons and they had also not retained any other property with them, after the sale transaction made by them in favour of Solachi Achi and accordingly, the determination of the Court below that the revision petitioners had failed to correlate the property involved in the present suit with the property involved in O.S.No.57 of 1994 by acceptable and reliable materials, as such, cannot be countenanced, when as above discussed, clear and reliable materials have been projected by the revision petitioners for holding that only the present suit property is involved in O.S.No.57 of 1994 and inasmuch as the issue of title regarding the suit property had been determined in favour of the first revision petitioner's mother Ponnammal and against the respondent's predecessors-in-title Ramayee Ammal and Sakthivel in O.S.No.57 of 1994, it is found that the provisions of Order VII Rule 11(d) of the Code of Civil Procedure are found to be applicable to the case at hand and the same having been established by the revision petitioners, without any ambiguity, and as above discussed, it is seen that the suit laid by the respondent is liable to the rejected on the principle of res judicata.

15. The materials placed on record would further go to disclose that the respondent's vendor, in respect of the suit property, had laid O.S.No.383 of 1993 for the relief of permanent injunction against the first revision petitioner and others, however, did not endeavour to prosecute the suit and resultantly, the said suit came to be dismissed for default. Subsequently, his mother, as above noted, claiming title and recovery of possession of the suit property had laid O.S.No.57 of 1994 in respect of the same suit property as above discussed, however, the said suit had been dismissed, after contest.

16. The respondent's counsel contended that the principle of res judicata is a mixed question of law and facts and the same cannot be determined at the threshold and requires the examination of the plaint and other evidence, as such, cannot be a ground to reject a plaint and in this connection, placed reliance upon the decisions in Vaish Aggarwal Panchayat v. Inder Kumar and others, reported AIR 2015 SC 3357; C.V.Karthikeyan vs. P.Subramaniam and another, reported in (2014) 8 MLJ 513 and Vishnu Dutt Sharma vs. Daya Sapra, reported in (2009) 13 SCC 729.

17. On a perusal of the above cited decisions, it is seen that in the light of the facts and circumstances involved in the above cited decisions, the Court concerned had determined that in such a factual matrix, the suit cannot be rejected on the plea of res judicata and accordingly, held that as the pri

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nciple of res judicata involved mixed question of law and facts, the same could be determined during the course of trial based on the materials placed on record by the respective parties. 18. On a reading of the above cited decisions relied upon by the respondent's counsel, it is seen that it has been determined that there is no absolute proposition that the application under Order VII Rule 11(d) C.P.C. can never be based on the principle of res judicata and accordingly, considering the factual aspects of the matter involved in the respective suits of the above cited decisions, the Court had held that in such a context, the suits cannot be rejected on the principle of res judicata. 19. On the other hand, insofar as the present case is concerned, when considering the position that it is only the same property, which is involved in the present suit as well as in O.S.No.57 of 1994 and both parties are vying with each other for claiming title to the suit property, through their predecessors-in-title and when it is noted that the claim of their predecessors-in-title to the suit property having been directly and substantially in issue in O.S.No.57 of 1994 and the same having been determined against the respondent's predecessor-in-title and in favour of the first revision petitioner's predecessor-in-title as above pointed out and when it has also been determined that the said Murugappan Ambalam and Nachammai had no property retained with them after the sale transaction effected in favour of Solachi Achi and when it is seen that they had alienated the entire property to him in Plot No.44, Block No.2 in Checkkalaikottai Village,the case of the respondent that the present suit has been laid in respect of the other property allotted to the abovesaid persons in O.S.No.72 of 1933, as such, cannot be accepted, when it has not been made out by the respondent that any other property other than the suit property had been allotted to them in O.S.No.72 of 1933. Therefore, the decisions relied upon by the respondent's counsel could be distinguished on factual matrix as above discussed. 20. In the light of the above discussions, the fair order and decreetal orders, dated 09.06.2009, passed in I.A.No.136 of 2009 in O.S.No.17 of 2009, on the file of the Subordinate Court, Devakottai, are hereby set aside and resultantly, I.A.No.136 of 2009 laid by the revision petitioners is allowed with costs and consequently, the suit in O.S.No.17 of 2009 laid by the respondent is hereby rejected and the civil revision petition is, accordingly, allowed with costs. Consequently, connected miscellaneous petition is closed.
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