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2012 Supreme(Mad) 3791
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 : 06-09-2012
For the Petitioner:N. Anand, Advocate.
For the Respondent:S. Saravanan, Advocate.
Headnote:
SUIT FOR TITLE - PENDENTE LITE TRANSFER - ABUSE OF PROCESS OF COURT - RE-LITIGATION - LIMITATION - REJECTION OF PLAINT - APPLICABILITY OF ORDER 7 RULE 11 C.P.C. - SALE DEED - LIS PENDENS - CAUSE OF ACTION - SUBSEQUENT PURCHASER - RIGHT TO FILE SUIT FOR TITLE - SECTION 52 OF THE TRANSFER OF PROPERTY ACT, 1882 - SECTION 56 OF THE LIMITATION ACT, 1963 - ORDER 2 RULE 2 OF THE CODE OF CIVIL PROCEDURE, 1908.
Fact of the Case:
The respondent, claiming right over the property through an illegal sale deed dated 01.07.2005, filed the suit in O.S.1307 of 2012 before the 16th Assistant Judge, City Civil Court for bare injunction against the 4th applicant, who was given power to develop the suit property. In the said suit, applicants 1 to 3 were not impleaded as parties. In the said suit, the respondent filed I.A.3383 of 2012 seeking interim injunction restraining the 4th applicant from interfering with possession of the respondent herein and another I.A.3389 of 2012 for interim injunction restraining the 4th applicant from altering and developing the suit property. In the said applications, the 4th applicant herein filed a detailed counter and finally, the said applications were dismissed by the City Civil Court on 22.03.2012. After the dismissal of the same, the respondent filed another suit in O.S.2867 of 2012 before the 16th Judge, City Civil Court against Corporation of Chennai and CMDA seeking for injunctions restraining the authorities from granting permission to demolish the existing structure in the suit property and from sanctioning building plan for putting up a multi-storeyed building in the suit property. In the said suit, I.A.Nos.7417 and 7418 of 2012 were filed seeking identical interim relief.
Finding of the Court:
The suit is hit by limitation and on this ground, the plaint is liable to be rejected. Further, a reference could be placed in the other judgment relied on by the applicants in the case of N.Ravindran.vs. V.Ramachandran (2011(3) CTC 153), wherein a Division Bench of this Court has held as follows: "10. The well settled position is that while considering the application under Order VII Rule 11 C.P.C., Court is not required to take into consideration the defence set up by the defendant in his written statement or other documents. The question whether plaint discloses any cause of action and whether it is barred by any law is to be decided by looking at the averments contained in the plaint itself and not the defence set up in the written statement. While considering the application, the strength or weakness of the case of the plaintiff is not to be examined. It is fairly well settled that the Court has to find out from the allegations made in the plaint itself and not beyond it as to whether any vexatious or frivolous litigation has been initiated by the plaintiff. The Court cannot take into account materials beyond the plaint to declare that the case of the plaintiff is frivolous or is barred by any law". Therefore, in my considered opinion, on a perusal of the averments made in the plaint as well as supporting materials, it is clear that the suit is hit by limitation and on this ground, the plaint is liable to be rejected.
Issues: 1. Whether the suit is liable to be rejected on the ground of limitation ? 2. Whether a person, who had purchased the property pendentelite can file a suit for title in respect of the said property ? 3. Whether the filing of the present suit would amount to re-litigating the same issue ? 4. Whether the suit is liable to be rejected on the ground of abuse of process of court ?
Ratio Decidendi: The main allegation in the plaint is that the applicants have obtained sale deeds dated 06.05.1985 by playing fraud on the legal heirs of Balakrishna Naicker, which allegation is similar to that of the allegation made in C.S.No.123 of 2005 filed by the legal heirs of Balakrishna Naicker as against the applicants. As per section 56 of the Limitation Act, to declare the forgery of an instrument issued or registered, the period of limitation is three years. But, this suit has been filed much after from the date of registration of the sale deeds in favour of applicants 1 and 2 and one Varadhan. Hence, on that ground also, the suit is hit by limitation.
Final Decision: Resultantly, the application is allowed and the suit in C.S.No.339 of 2012 is rejected. Consequently, O.A.No.444 of 2012 is dismissed.
R. Subbiah, J.
1. 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 daughter
