S. Gunaseelan vs C. Valarmathi and 2 Others

Aruna Jagadeesan, J.—This Civil Revision Petition is filed to strike off and to reject the Plaint in O.S. No. 98/2008 on the file of the learned

District Munsif cum Judicial Magistrate, Andipatti. The brief facts, which are essential for the disposal of this Civil Revision Petition, are as follows:

The Suit has been filed by the 1st respondent/plaintiff against the petitioner and the respondents 2 and 3 for declaration of her title and for

consequential relief of injunction. The suit schedule property is described as S. No. 892/2 4 acres 80 cents situated at Sanmugasundrapuram

Village. The 2nd respondent/2nd defendant is the daughter of the petitioner/1st defendant and the 3rd respondent/3rd defendant is the power agent

of the 2nd respondent. The 1st respondent has traced her title to the Suit lands on the basis of the sale deed executed in favour of one Rasu Thevar

by one Thayammal and the 1st respondent has also referred to the earlier litigation in O.S. No. 354/1961, A.S. No. 144/1962 and S.A. No.

1023/1964.

The said Thayammal is the original owner of an extent of 6.20 acres in S. No. 892, 2.77 Acres in S. No. 880 and 1.57 acres in S. No. 881 of

Sanmugasundarapuram Village, Andipatti Taluk. She has executed a sale deed dated 4.5.1956 to Seeni Thevar registered as document No.

589/1956 for 4.80 acres in S. No. 892 and she had also executed a sale deed dated 3.8.1961 to Rasu Thevar registered on 28.11.1961 for 2.77

acres in S. No. 880, 1.57 acres in S. No. 881 and 0.40 acres in S. No. 892, excluding the land sold to the Seeni Thevar. One Thangaraj and

Seeni Thevar filed a Suit in O.S. No. 354/1961 against Thayammal and Rasu Thevar for declaration and injunction with regard to 2.77 acres in S.

No. 880, 1.57 acres in S. No. 881 and 0.40 acres in S. No. 892. The said Suit was dismissed on 6.10.1962 and the Appeal filed in A.S. No.

144/1962 was allowed on 30.9.1963, as against which, Thayammal and Rasu Thevar filed S.A. No. 1023/1964 and the same was dismissed on

10.7.1964.

Pursuant to the said litigation, the Special Tahsildar by his order dated 24.12.1985 granted patta to Seeni Thevar for S. Nos. 880, 881 and

1.40 acres in S. No. 892 and to Rasu Thevar for 4.80 acres in S. No. 892 by subdividing S. No. 892. The legal heirs of Rasu Thevar executed a

sale deed dated 30.10.1992 in favour of C. Valarmathi, the 1st respondent. On 18.11.1994 the legal heirs of Rasu Thevar executed a sale deed in

favour of M/s. RJ Textiles for 2.70 acres in S. No. 880 and 1.57 acres in S. No. 881 and 1.40 acres in S. No. 892/1 and 70 cents in S. No.

882/2C. On an Application by the petitioner for rectification of patta regarding S. No. 892/1 and 892/2, the Tahsildar by his order dated

2.11.1996 rectified patta for S. No. 892/2 measuring 4.80 acres in the name of Seeni Thevar and S. No. 892/1 in the name of Thayammal. The

Appeal filed by the 1st respondent to the Revenue Divisional Officer was allowed, as against which, the petitioner filed a Revision to the District

Revenue Officer and the same was allowed by order dated 26.11.2001. The 2nd Revision was filed by the 1st respondent to the Special

Commissioner of Land Administration and the same was allowed. The petitioner filed W.P. No. 21019/2003 as against the said order on the

ground that the 2nd Revision is not maintainable under Sections 11 and 12 of the Patta Pass Book Act, 1983. The said Writ Petition was allowed

on 7.7.2006 and the order of the Special Commissioner was set aside, however, the matter was remanded back to the District Revenue Officer

for fresh disposal. The order passed in the Writ Petition was challenged by the petitioner in W.A. No. 1170/2006 and the same was allowed,

holding that the original order passed by the District Revenue Officer dated 26.11.2001 had become final. The Review Petition filed by the 1st

respondent in No. 155/2008 was dismissed as not pressed. Again, the 2nd review was filed by the 1st respondent and the same was dismissed

with cost on 22.7.2009.

In the mean while, the petitioner had settled the property in favour of his daughter the 2nd respondent herein and when her possession was

attempted to be disturbed, she filed O.S. No. 115/2007 through her Power of Attorney the 3rd respondent herein. Subsequently, the document in

favour of the 2nd respondent had been cancelled by the petitioner. On the said basis, the Suit was also withdrawn on 10.7.2009.

The petitioner seeks rejection of Plaint on the following grounds:

a. Purposely suppressing vital facts:-- Though in the Plaint the 1st respondent has narrated the facts upto the order of the Special Commissioner

dated 24.2.2003 and relied upon the consequential patta in favour of the plaintiff, but purposely suppressed the order of the Special

Commissioner, which has been set aside in the Writ Petition in W.P. No. 21019/2003 which was confirmed in the Writ Appeal in W.A. No.

1170/2006. According to the petitioner, the above facts relating to the order passed in the Writ Petition and the Writ Appeal were purposely

suppressed and the order of the Special Commissioner which has been set aside has been relied upon by the 1st respondent in the Plaint.

b. Fraudulently shown previous title deed:-- The plaintiff in her title deed dated 30.10.1992 claimed purchase of the suit property from the legal

heirs of Rasu Thevar wherein the previous title deed in favour of Rasu Thevar has been shown as the document dated 22.7.1948 in document No.

4925 in Book 1 on the file of the Registrar of Madurai. But that document relates to the sale deed executed by one Ramakrishna Mudhaliar in

favour of one Sundara Rao relating to a different property and hence, the prior title deed relied upon by the plaintiff is totally irrelevant to the suit

property and the sale deed dated 30.10.1992 is a fraudulent one and hence, the Plaint is liable to be rejected without any further trial.

c. Distortion of facts:-- Though the plaintiff relied upon the sale deed dated 3.8.1961 executed by Thayammal in favour of Rasu Thevar, but by the

said document only 40 cents in S. No. 892 had been purchased by Rasu Thevar. In the earlier proceedings in A.S. No. 144/1962, after referring

to the sale deed dated 4.5.1956 executed by the Thayammal in favour of Seeni Thevar and the sale deed 3.8.1961 executed by Thayammal in

favour of Rasu Thevar, it has been held that if the suit properties were included in Ex. A2 document dated 4.5.1956 the sale deed in favour of

Seeni Thevar, then Thayammal had no right to convey the same property in favour of the 2nd defendant, Rasu Thevar under Ex. B1, sale deed

dated 3.8.1961 executed in favour of Rasu Thevar the plaintiff''s vendor. In spite of the said finding, the vendor of the plaintiff has not taken any

steps to rectify either to get another sale deed from Thayammal for 4.80 acres in S. No. 882 or to rectify the same. Therefore, according to the

petitioner the plaintiff has no right to file the present Suit on the basis of the document dated 30.10.1992 claiming 4.80 acres in S. No. 892.

d. In the Plaint it has been purposely described as if Seeni Thevar the father of the petitioner, who purchased the property under sale deed dated

4.5.1956 has sold the same to M/s. RJ Textiles by sale deed dated 18.11.1994 and this statement is made knowingly. The legal heirs of the Rasu

Thevar has executed a sale deed in favour of the M/s. RJ Textiles and the derivation of the title to the vendor has been described in paragraph 4 of

the sale deed, wherein the sale deed executed by Thayammal in favour of Rasu Thevar dated 3.8.1961 registered on 28.11.1961 had been relied

upon and after Rasu Thevar the legal heirs have succeeded and executed the sale deed in favour of M/s. RJ Textiles. According to the petitioner,

since the patta alone stood in the name of Seeni Thevar, he was asked to sign the document as 5th person as patta holder and at that time, he had

no knowledge of the sale deed in favour of the 1st respondent and he has put his signature only as a patta holder. Though the sale deed has been

executed by the legal heirs of Rasu Thevar in favour of M/s. RJ Textiles in the Plaint, it has been purposely distorted as if Seeni Thevar sold the

property.

e. In the cause of action paragraph the document dated 3.8.1961 in favour of Rasu Thevar is shown as prior title deed, but by the said document

only 40 cents were purchased by Rasu Thevar. There is no reference to the previous Civil cases and further the document dated 2.11.1992 has

been shown as plaintiff title deed, wherein there is no such document dated 2.11.1992. The petitioner, who has been in continuous possession and

succeeded before the District Revenue Officer which has become final, has obtained patta and in such circumstances and in the factual matrix, the

plaintiff has no right to rely upon the order of the Special Commissioner, which has been set aside.

The main issue in the Suit is as to who is the owner of S. No. 892 measuring 4.80 cents. According to the 1st respondent, both Seeni Thevar

and Rasu Thevar were cordial and they claimed title through their vendor Thayammal. The Suit is not filed during his life time. Seeni Thevar during

his life time purchased the lands measuring 4.80 acres in S. No. 892 whereas Rasu Thevar had purchased from Thayammal on 3.8.1961 an extent

of 4.80 acres. There was dispute regarding the identity of the lands purchased by the Seeni Thevar and Rasu Thevar and therefore, Seeni Thevar

filed O.S. No. 354/1961 on the file of the District Munsif, Periyakulam on the ground that he had purchased 2.77 acres in S. No. 880, 1.57 acres

in S. No. 881 and 0.46 (on the west) acres in S. No. 892 in all 4.80 acres.

The Trial Court dismissed the Suit and the First Appeal filed by the petitioner''s father was allowed on 30.9.1963. Thayammal and Rasu Thevar

challenged the decree and judgment of the Lower Appellate Court in the Second Appeal, which was dismissed, confirming the judgment and

decree of the Trial Court, which according to the 1st respondent had become final in respect of the survey numbers purchased. By reason of the

above Suits and Appeals filed by Seeni Thevar his ownership was declared for 2.77 acres in S. No. 880, 1.57 acres in S. No. 881 and 0.46 acres

in S. No. 892 in all 4.80 acres. So according to the 1st respondent, after the disposal of the above litigation, except in respect of 46 cents in S.

No. 892, Seeni Thevar has nothing to do with the remaining extent in S. No. 892.

The learned counsel for the 1st respondent would contend that after the above litigation both Seeni Thevar and Rasu Thevar approached the

Special Tahsildar and sought patta for their holdings and accordingly patta was granted to them by the Special Tahsildar in proceedings dated

24.12.1985. He would submit that in the patta proceedings S. No. 882/2C had been referred to and it was observed that S. No. 882/2C was in

enjoyment of Rasu Thevar vendor of the 1st respondent and S. No. 882/2C did not belong to Seeni Thevar nor to Thayammal and thus the

dispute between Seeni Thevar and Rasu Thevar was settled completely and by reason of the judgment of the Civil Court Seeni Thevar did not

claim 4.80 acres in S. No. 892. He would submit that the 1st respondent claims right under Rasu Thevar who was the exclusive owner of 4.80

acres in S. No. 892 and the 1st respondent had purchased the said extent on 30.10.1992 under the sale deed executed by the legal heirs of the

Rasu Thevar in favour of the 1st respondent as Rasu Thevar died subsequently. He would further submit that while tracing title to the lands the legal

heirs mistakenly mentioned in the sale deed dated 30.10.1992 that the lands were purchased by Rasu Thevar on 22.7.1948 and the reference to

the sale deed dated 22.7.1948 is obviously a mistake. In the earlier Suits and the Appeals, the sale deed in favour of Rasu Thevar executed by

Thayammal was referred to as 3.8.1961 and thus the 1st respondent has become the absolute owner of 4.80 acres in S. No. 892 as per her sale

deed and therefore, her title is perfect.

As regards the lands sold to M/s. RJ Textiles by sale deed dated 8.11.1994, four items have been sold i.e. 2.77 acres in S. No. 880, 1.57

acres in S. No. 881 and 1.40 acres in S. No. 892 and 70 cents in S. No. 882/2C. It is submitted by the learned counsel for the 1st respondent

that though 46 cents has been granted in the decree of the Civil Court to Seeni Thevar, but he was granted patta for 1.46 cents in S. No. 892.

Therefore, he would contend that claiming right on the basis of the sale deed dated 4.5.56 by the petitioner is totally fraudulent especially when his

father himself had contended in the suit that he was not the owner of the lands measuring 4.80 acres in S. No. 892 and claimed lands in the Civil

Suit in O.S. No. 354/61 more particularly 0.46 acres in S. No. 892.

The facts involved in this case indicate that the predecessors of both the parties though acquired lands by title deeds but in the prior litigation

their entitlement to their respective properties were not determined in accordance with their respective title deeds. Even the revenue authorities

have granted patta to the respective parties not in accordance with the extent mentioned therein. The complexity of facts requires complete

investigation which can be done only at the stage of the trial when both the parties adduce evidence both oral and documentary. Admittedly, there

are some mistakes in the Plaint in tracing out the title of the vendor of the plaintiff and on the said ground the Plaint cannot be rejected or struck off.

It is the case of the respondent that in appropriate proceedings, the ownership of Seeni Thevar the vendor of the plaintiff has been held only for

0.46 cents in S. No. 892, but whereas the patta has been granted to him for 1.40 acres. Another important aspect in this case is that Seeni Thevar

has joined the legal heirs of Rasu Thevar in executing the sale deed in favour of M/s. RJ Textiles. It is the contention of the learned counsel for the

petitioner that since patta stood in his name he had joined the legal heirs of Rasu Thevar in executing the documents, which on the face of it does

not merit acceptance. There are many factors which have to be gone into in detail and considering the entire materials placed on record, it cannot

be said that the 1st respondent has suppressed purposely many facts or distorted the facts. It is no doubt true that there are some discrepancies

and controversies in tracing the title of the vendor and in order to determine the relevancy of documents and to settle the real controversy the trial

of the Suit is necessary and it cannot be said that the plaintiff is relitigating the matter especially in the factual matrix of the case.

It is to be noted that when this Court is called upon to exercise jurisdiction to reject the Plaint under Order 7, Rule 11 of C.P.C., the

averments made in the Plaint and the documents filed along with the Plaint, which form part thereof alone will be taken into consideration and this

Court cannot consider the defence, pleas or materials submitted by the defendant for the purpose of rejecting the Plaint. In other words, what can

be a defence to the plaintiff cannot be taken into consideration for deciding as to whether the Plaint should be rejected or not under Order 7, Rule

11 of CPC.

The learned counsel for the petitioner drew the attention of this to the decisions rendered in the cases of Samar Singh Vs. Kedar Nath alias

K.N. Singh and Others, M. Raja Appar and Others Vs. M. Gnanasambandam (deceased by L.R''s.), Poppat Jamal and Sons Vs. N.M.

Venkatachalapathy @ Babulal and N.M. Krishnamoorthy, ; A. Sreedevi Vs. Vicharapu Ramakrishna Gowd, Nesammal and another Vs. Edward

and another, and T. Arivandandam Vs. T.V. Satyapal and Another, , in support of his contention that when the Plaint is based on fraud and

misrepresentation and the plaintiff had come with unclean hands, then this Court exercise its power and reject the Plaint. The learned counsel

would further contend that when a party to a litigation is said to be guilty of abuse of process of Court, this Court can exercise its power under

Article 227 to strike off the Plaint.

The power under Order 7, Rule 11 of C.P.C. speaks about rejection of Plaint in four circumstances. The first one being non disclosure of

cause of action and the last one is of a bar on Suit under any provision of law. The other two grounds on which the Plaint could be rejected relate

to valuation and non-payment of Court fee, which are not matters concerned with the present case. The disputed questions cannot be decided at

the time of considering an Application filed under Order 7, Rule 11, of C.P.C. For an order under Order 7, Rule 11 of C.P.C., it is the Plaint

alone which has to be considered and if the Plaint makes out a case indicating a cause of action, then falsity of the claim would be a matter to be

determined at the time of trial and if at all the Suit is found to be vexatious or based on false assertion, then the plaintiff would be liable for

compensatory cost u/s 35-A of C.P.C. The intention of the party concerned is to be gathered primarily from the tenor and terms of pleadings

taken as a whole. At the same time, it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair splitting

technicalities.

For the reasons aforesaid, the Plaint cannot be thrown out at the threshold and this Civil Revision Petition for striking off and rejection of Plaint

cannot be entertained. In the result, this Civil Revision Petition is dismissed. No costs. Consequently, the connected M.P. is closed.