S.A. No. 449 of 2016. Case: A.E. Rathina Naicker Vs V. Thirumalai and Ors.. High Court of Madras (India)

Case NumberS.A. No. 449 of 2016
CounselFor Appellant: N.R. Gopaalan, Adv. and For Respondents: V. Lakshminarayanan, Adv.
JudgesM. Sathyanarayanan, J.
IssueCode of Civil Procedure, 1908 (CPC) - Order II Rule 2; Order VI Rules 2, 2(1); Order VII Rules 11, 11(a), 11(d); Order X Rule 10; Order XX Rules 4, 5; Section 11
Judgement DateMarch 24, 2017
CourtHigh Court of Madras (India)

Judgment:

M. Sathyanarayanan, J.

  1. The appellant is the plaintiff in O.S. No. 238 of 2010 on the file of the Court of Subordinate Judge, Poonamallee, filed for the relief of declaring that he is the lawful owner of "C" Suit schedule mentioned property admeasuring to an extent of 3 ares (7.41 cents) comprised in Punja S. No. 148/6. Paruthipattu Village, Poonamalle Taluk, Thiruvallur District and recovery of possession of the same from the defendant and handover vacant possession to the plaintiff and also for permanent injunction restraining the defendant, his men, agents, servants or any other person claiming under him not to alienate the "C" suit schedule property to any third party and also for costs of the suit.

  2. The Suit was entertained and after receipt of summons, the defendant had entered appearance and filed I.A. No. 15/2012 under Order 7 Rule 11(d) of Civil Procedure Code, 1908 to reject the plaint and the Court of Subordinate Judge, Poonamallee, vide order dated 05.07.2012, has allowed the said petition and thereby rejected the plaint.

  3. The appellant/plaintiff, aggrieved by the rejection of plaint, filed an appeal in A.S. No. 23 of 2013 on the file of the Principal District Court, Thiruvallur and vide, impugned judgment and decree dated 01.04.2015, the Appeal Suit was also dismissed. The appellant/plaintiff, challenging the legality of the impugned judgment and decree passed by the Lower Appellate Court in A.S. No. 23 of 2013, holding the order of rejection of plaint passed by the Trial Court, has filed this Second Appeal.

  4. Facts leading to the filing of this Second Appeal, briefly narrated, are as follows:

    4.1. The appellant/plaintiff would aver that land and property admeasuring to an extent of 0.78 cents, comprised in Punja S. No. 148A situated at Paruthipattu Village, Poonamallee Taluk, Thiruvallur District originally belong to his paternal grandfather and he had purchased the same through registered Sale Deed dated 12.08.1909 and he has also purchased other items of property in S. No. 129B from the very same person. The plaintiff would further aver that one Ponnappa Naicker had purchased a property admeasuring 0.32 cents from and out of 2.48 ares comprised in S. No. 148/1 through a registered sale deed dated 11.09.2009. It is the case of the plaintiff that in the year 1911, resettlement of survey records took place in respect of the property in S. No. 148/A, which was mistakenly referred as 0.78 cents instead of 0.70 cents and despite the said mistake, the entire extent of 0.78 cents was in possession and enjoyment by the plaintiff and his predecessor in title.

    4.2. It is further averred by the appellant/plaintiff that in the year 1943 Mr. Raji Naicker, one of the legal heir of Ponnappa Naicker had created false document, laying his claim over 0.40 acres of land, though he had actually purchased 0.32 acres and in this regard, a Suit was also filed by the plaintiff and other legal heirs of Chella Perumal Naicker in O.S. No. 1819/1981 on the file of the District Munsif Court, Poonamalle against the District Collector of Chengalpet and legal heirs of Ponnappa Naicker to rectify the revenue records and pending disposal of the same, the legal heirs of Ponnappa Naicker had sold 20 cents through registered sale deed. The said Suit in O.S. No. 1819/1981 was decreed ex-parte on 10.01.1986, marked as Exs. P23 and P24 and as a result, S. No. 145/5B1 was resurveyed by the Revenue Officials and 0.03 ares have been carved out from S. No. 148/5B1 and new Survey Number was assigned as 148/6 and patta was also issued in his favour. The plaintiff would further state that though the erroneous nature of the revenue records was rectified in 1997, by virtue of Court order, the local body did not carryout the same in the revenue records and taking advantage of the same, the defendant encroached and had put up a compound wall and therefore, the plaintiff came forward to file the Suit.

    4.3. The defendant has entered appearance and filed I.A. No. 15/2012 under Order 7 Rule 11(d) of CPC for rejection of the plaint, denying the averments made in the plaint and took a stand that the plaintiff's predecessor in title own only 0.70 cents and not 0.78 cents and the defendant's predecessor in title own 0.40 cents and the earlier Suit in O.S. No. 190/1969 on the file of the District Munsif, Court, Poonamallee between the plaintiff and his family members and the defendants predecessors in title for recovery of possession was dismissed on merits, marked as Exs. P18 and P19 and challenging the same, A.S. No. 116/1974 was filed before the Sub-Court, Chengalpattu and it was also dismissed on 01.08.1978, marked as Ex. P20 and as such, the present Suit is hit by the principle of res judicata.

    4.4. The defendant/petitioner in the said application contended that the plaintiff had deliberately suppressed the filing of the earlier Suit in O.S. No. 190/1969 on the file of the District Munsif Court, Poonamalleee and that apart, the present suit is also barred by limitation for the reason that in the Suit in O.S. No. 190/1969 the defendant's predecessor in title had trespassed into the "C" Suit Schedule Property on 01.01.1969 and therefore, prays for rejection of the plaint.

    4.5. It is the case of the plaintiff/respondent in the said application that Order 7 Rule 11(d) CPC cannot be invoked and in the Suit in O.S. No. 1819/1981 on the file of the District Munsif Court, Poonamalle, facts relating to the filing of the earlier suit in O.S. No. 190/1969 on the file of the District Munsif, Poonamallee has been stated and after framing of issues, the Suit came to be decreed ex-parte in favour of the plaintiff and though there was mutation of revenue records by one of the local bodies, the plaintiff faced certain difficulty and therefore, he was constrained to approach this Court and also took a stand that the prayer in the earlier suit and the present suit are entirely different and the application of the principle of res judicata does not arise at all and prays for dismissal of the petition for rejection of the plaint.

    4.6. During the course of enquiry in the application filed for rejection of plaint, on behalf...

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