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IN THE HIGH COURT OF JUDICATURE AT MADRAS
V. BHAVANI SUBBAROYAN, J.
K. Jaganathan & Others - Appellants
Versus
S. Vijayalakshmi & Others - Respondents
C.R.P. No. 1636 of 2019 & C.M.P. Nos. 10709 & 25564 of 2019
Decided on : 10-03-2021
Constitution of India-Article 227-Civil Revision- To strike off the suit - Suit was filed by the respondents/plaintiffs seeking declaration declaring that the deed of revocation of the settlement registered as document on the file of 5th defendant therein and the 4th respondent herein in this Revision Petition with respect to the suit property, viz., the land and two storey building is valid, ab initio and not binding on the suit property and on the plaintiffs and for a permanent injunction against the 3rd defendant therein from dealing with the suit property in any manner - whether the suit is barred by any law
Finding of the Court:
It is evidently clear on reading of the plaint that the respondents/plaintiffs who have approached the trial court to set it right the deed of revocation of settlement deed dated 10.02.2009 which is registered as document no.6261 of 2009 after a period of almost 11 years, is certainly barred by limitation. However, the circumstances under which the plaintiffs have approached the trial court seeking a declaratory relief should be inferred from the averments made from the plaint, which in the considered opinion of this Court is a triable issue, as the question of limitation is the next question of law and fact. It may not be appropriate for this Court to nib the said bud at the very initial stage. It would be appropriate for the trial court to decide the issues on merits after affording sufficient opportunities to other parties. There are ample opportunities for the petitioners/defendants to resist the suit on basis of ordinary provisions of law - Court is of the view that the rejection of suit at threshold which is under challenge under Article 227 Constitution of India, where an extraordinary jurisdiction has to be exercised very cautiously and to be exercised when there are no other alternative and efficacious remedy available for the petitioners. As such, Court should impose itself a self restrain in exercising jurisdiction under Article 227 Constitution of India, unless a prima facie has been made out and the suit is an abuse of process of law. When the said settlement deed executed in favour of the 1st plaintiff's husband and the said deed was accepted and the mutation of the names have been changed in the revenue records and they have pledged the same in the bank and obtained loan for construction and later on, the 1st plaintiff's husband who had settled the said property in his wife's favour, this Court is of the view that the petition filed by the petitioners herein cannot be accepted and the said petitioners have remedy under Civil Procedure Code and they cannot invoke the extraordinary jurisdiction of Article 227 of Constitution of India to reject the plaint
Result: Civil Revision Petition is dismissed
JUDGMENT :
(Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India to strike off the suit in O.S.No.73 of 2018 on the file of the learned District Munsif Court, Tiruchengode by allowing the Civil Revision Petition.)
1. The present Civil Revision Petition has been filed to strike off the suit in O.S.No.73 of 2018 on the file of District Munsif Court, Thiruchengode by allowing this petition filed under Article 227 of Constitution of India by raising various grounds.
2. The case of the petitioners is that the suit was filed by the respondents/plaintiffs seeking declaration declaring that the deed of revocation of the settlement dated 10.02.2009 registered as document no.6261 of 2009 on the file of 5th defendant therein and the 4th respondent herein in this Revision Petition with respect to the suit property, viz., the land and two storey building at No.69, Ayyan Thottam, New Pallipalayam road, Kumarapalayam, Namakkal District is valid, ab initio and not binding on the suit property and on the plaintiffs and for a permanent injunction against the 3rd defendant therein from dealing with the suit property in any manner.
3. The respondents/plaintiffs in the said O.S. No.73 of 2018 has submitted that the 1st plaintiff married her husband late K.J. Sivaraman during 09.03.2006 and the said marriage was an arranged marriage and they gave birth to the 2nd and 3rd plaintiffs, who were born on 16.10.2009 and 02.11.2011 respectively. The 1st defendant and the 2nd defendant are the parents of the 1st plaintiff's husband and the 3rd defendant is the daughter of the 1st and 2nd defendants. The 4th defendant is the husband of the 3rd defendant and son-in-law of the 1st and 2nd defendants and they are closely related to each other.
4. It is further submitted by the respondents/plaintiffs before the court below that the 1st and 2nd defendants had purchased a vacant house site bearing No.69, Ayyan Thottam, New Pallipalayam Road, Kumarapalayam, Bimash No.119, of Kumarapalayam Agraharam Village, Periya murungaithar punjai land, measuring to an extent of 2307 and a half square feet, which has been registered as Document No.389 of 2004 SRO Kumarapalayam, by paying valuable consideration and enjoyed the same. The said property was settled on 28.11.2005 through a registered deed of settlement, which is registered as Document No.3957 of 2005 before the Sub Registrar Office, Kumarapalayam on the 1st plaintiff's husband and he was put in possession of the suit property and mutation of all revenue records were carried out in his name and was enjoying the same without any hindrance whatsoever. As per the covenants of the said settlement deed, the 1st and 2nd defendants did not reserve any right for cancellation of the said settlement deed executed by them and the 1st Plaintiff's husband got it as an absolute property by way of settlement.
5. The respondents/plaintiffs also submits that the 1st plaintiff's husband has mortgaged the suit property with State Bank of India, SSI Bhavani vide Housing Term Loan Account 30026680812 and has repaid the loan and the same was closed on 15.04.2010. The said property was settled in favour of 1st plaintiff by way of a registered settlement deed dated 20.04.2010 as document No.2636 of 2010 at SRO Kumarapalayam and they are the owner and in absolute possession of the said property.
6. The 1st and 2nd defendants were in possession of the ground floor of the building and occupied the 1st floor and since the 2nd defendant harassed the 1st respondent therein in many days, she vacated the 1st floor premises and took lease of a house in a nearby area where the plaintiffs are presently residing. The 1st and 2nd defendants leased out the 1st floor portion to a tenant and getting monthly rent from the tenant. The 1st plaintiff is in possession and enjoyment of the said property settled on her ever since the date of settlement and they are the absolute owner of the property. The petitioners 3 and 4/respondents
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