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2012 Supreme(Mad) 3893
High Court of Judicature at Madras
R.SUBBIAH
K.Chandran
Versus
V.Geethalakshmi
Application No.2469 of 2012 in Civil Suit No.339 of 2012
Decided On : 20-09-2012
For the Petitioner:N.Anand, Advocate.
For the Respondent:S.Saravanan, Advocate.
Headnote:
CIVIL PROCEDURE CODE - Order 7 Rule 11 - Rejection of Plaint - Suit for declaration of title and injunction - Sale deeds executed by legal heirs of deceased owner in favour of defendants - Subsequent sale deed executed by legal heirs in favour of plaintiff - Plaintiff's suit for declaration of title and injunction - Defendants' application for rejection of plaint - Whether suit is barred by limitation - Whether subsequent purchaser can file suit for title when suit by predecessor-in-title is pending - Whether filing of present suit amounts to re-litigation - Whether suit is liable to be rejected on ground of abuse of process of court.
Fact of the Case:
Plaintiff purchased property from 11th defendant, who had purchased the same from one of the legal heirs of deceased Balakrishna Naicker. Legal heirs of Balakrishna Naicker had executed sale deeds in favour of defendants 1 and 2 and one Varadhan in 1985. Plaintiff filed suit for declaration of title and injunction. Defendants filed application for rejection of plaint on grounds of limitation, abuse of process of court, and re-litigation.
Finding of the Court:
1. Suit is barred by limitation as plaintiff had knowledge of earlier sale deeds at the time of purchase and suit was filed after 27 years from the date of execution of sale deeds in favour of defendants. 2. Subsequent purchaser cannot file suit for title when suit by predecessor-in-title is pending. 3. Filing of present suit amounts to re-litigation as plaintiff is seeking same relief as in earlier suits filed by legal heirs of Balakrishna Naicker. 4. Suit is liable to be rejected on ground of abuse of process of court as plaintiff is filing multiple suits on same cause of action.
Issues: 1. Whether suit is barred by limitation? 2. Whether subsequent purchaser can file suit for title when suit by predecessor-in-title is pending? 3. Whether filing of present suit amounts to re-litigation? 4. Whether suit is liable to be rejected on ground of abuse of process of court?
Ratio Decidendi: 1. Limitation period for filing suit to declare forgery of an instrument is 3 years from the date on which the registration becomes known to the plaintiff. 2. A subsequent purchaser of the suit property is not entitled to file a suit for title in respect of the property purchased by him when already a suit for title filed by the predecessors-in-title is pending. 3. Filing of another suit for the same relief by the subsequent purchaser in respect of the property purchased by her from the predecessor-in-interest is not legally sustainable. 4. If the property is transferred pendente lite and if the transferor is held to have no right or title in that property, the transferee will not have any title over the property.
Final Decision: Application allowed. Suit rejected. O.A.No.444 of 2012 dismissed.
R.SUBBIAH, J.
This is an application filed by defendants 1 to 3 and 12 to reject the plaint in the present suit.
2. Respondent is the plaintiff and she filed the suit as against the defendants numbering 12 for the following reliefs;
"(a) to declare the plaintiff as the absolute owner of the suit schedule property;
(b) to direct defendants 1 to 3 to surrender vacant possession of the suit property;
(c) to declare the sale deed executed by late Mrs.Dhanalakshmi, Nirmala (D4) and late Purushothaman in favour of K.Chandran (D1) registered as Doc.No.1305 of 1985 dated 06.05.1985 on the file of SRO., Saidapet, Chennai-15 as null and void and unenforceable;
(d) to declare the sale deed executed by late Mrs.Dhanalakshmi, Nirmala (D4) and late Purushothaman in favour of Meena (D2) registered as Doc.No.1303 of 1985 dated 06.05.1985 on the file of SRO., Saidapet, Chennai-15 as null and void and unenforceable;
(e) to declare the sale deed executed by late Mrs.Dhanalakshmi, Nirmala (D4) and late Purushothaman in favour of Varadhan (D2's father) registered as Doc.No.1304 of 1985 dated 06.05.1985 on the file of SRO., Saidapet, Chennai-15 as null and void and unenforceable;
(f) for a permanent injunction restraining the defendants and their men from interfering with the plaintiff's peaceful possession and enjoyment of the suit property; and
(g) for a permanent injunction restraining the defendants and their men from altering, developing or encumbering or dealing with the suit property;
3. Before traversing through the averments made in the affidavit filed by the applicants for rejection of plaint, it would be appropriate to narrate the brief facts about the case of the plaintiff, as averred in the plaint, which reads as under:
According to the respondent/plaintiff, she is the owner of the property bearing house, ground and premises bearing New Door No.75, situate in old S.No.103/1, T.S.No. 118, Block No.1, bearing patta No.C.A.805/06-07 in Ekkattuthangal Village, Mambalam Guindy Taluk, Chennai District, measuring 54 cents, more fully described in the schedule, having purchased the same from one Vee Rajmohan, the 11th defendant in and through a sale deed dated 01.07.2005, registered as Doc.No.4611 of 2005 on the file of District Registrar, Madras South for valuable consideration. On the date of sale, as per clause 7 of the sale deed, the vendor has handed over possession of the suit property to the respondent and from that date, she is in possession and enjoyment of the same. Now, presently the respondent's tenants are in possession of the property. While so, the 4th applicant/12th defendant, who has been claiming the schedule mentioned property as power of attorney agent of applicants 1 to 3 (defendants 1 to 3), wanted to construct a huge multi-storey building and attempted to develop the schedule mentioned property. When the respondent came to know about the same, she gave advertisement in newspapers that she is the absolute owner of the property and thereafter, she filed the present suit against the applicants and other defendants for the reliefs mentioned supra.
4. On appearance, the applicants (defendants 1 to 3 and 12) filed this application for rejection of the plaint stating that the suit property was originally owned by one Vedhachala Naicker, who had purchased the same by a registered sale deed dated 05.11.1941. The said Vedhachala Naicker subsequently settled the suit property in favour of one Kanniammal in and by a settlement deed dated 26.10.1959 registered as document No.2268/59 on the file of SRO., Saidapet. After the demise of said Kanniammal, her son Balakrishna Naicker became the absolute owner of the suit property. The said Balakrishna Naicker was missing since 1972 and was not traceable and not heard for 7 years. Therefore, he is presumed to be dead as per section 108 of the Evidence Act. The legal heirs of Balakrishna Naicker are Dhanalakshmi-wife, Nirmala-daughter, Purushothaman-son and 3 minor daughters,
