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IN THE HIGH COURT OF JUDICATURE AT MADRAS
C.V.KARTHIKEYAN, J.
R.Gnanprakasam – Appellant
Versus
P.I. Mohammed Kutty 2 Mammootty – Respondent
C.R.P. (PD) No. 2745 of 2021 And C.M.P.No. 18072 of 2019
Decided on : 03-06-2021
Limitation Act - Articles 56, 58, 59, 65 or 110 - Civil Procedure Code,1908 - Order 7 Rule 11(d) - Specific Relief Act - Section 31 - Agreement of sale - Seeking declaration of title will not lie - Notices informing cancellation of sale deeds - Whether plaint discloses a cause of action by scrutinising the averments in the plaint - Whether the suit is barred by any law - Whether a case for rejecting plaint at threshold is made out - Whether plaint discloses any cause of action or - Whether the suit is barred by any law, on face of averments contained in plaint itself - Whether the Suit was filed within the period of limitation - Whether Suit is barred by limitation - Whether parties should face trial to decide question of limitation - Whether the plaint will have to be rejected as barred by law of Limitation - Whether there are facts which will require inviting parties to adduce evidence and the said issue be decided on analysis of the oral and documentary evidence so adduced - Whether in his suit, he disclosed pendency of the suit instituted by the plaintiffs - whether he disclosed that their possession had been recognized by the revenue authorities - His bonafide requires examination - O.S. No had been filed by the plaintiffs seeking a judgment and decree to declare that 13 Cancellation Deeds bearing document on the file of the Sub Registrar null and void under section 31 of Specific Relief Act, or to declare that Compromise Decree in O.S. as null and void and not binding on plaintiffs and to grant permanent injunction restraining the defendants from interfering with peaceful possession of the plaintiffs over the suit schedule property and for costs of suit - Decade of pendency of suit, without any effective progress, 35th defendant filed I.A. under Order VII Rule 11 CPC to reject plaint on ground that, out of 40 acres mentioned as suit property, he is in possession acres on strength of a Sale Deed by Principal District Court, Chengalpattu, pursuant to a decree in his favour in O.S. which suit had been filed for specific performance of an agreement of sale and also on the ground that therefore the title of the plaintiffs is clouded, and a suit filed without seeking declaration of title will not lie, and further there was no cause of action for instituting the suit. During arguments before Court, it was also stressed that suit was barred by the law of Limitation – Held, Collusion have to be decided on basis of evidence adduced - Prima facie finding can never be given - Plaintiffs must be given an opportunity to graze witness box, present their evidence and to invite the defendants to test same during cross examination - Questions have to be put to him whether in his suit, he disclosed the pendency of suit instituted by the plaintiffs, and whether he disclosed that their possession had been recognized by the revenue authorities, His bonafide requires examination - All this requires the process of trial to be undertaken - Sale Deeds, Cancellation Deeds, the Compromise Decree and grant of patta are all subject matter of evidence - Defendants will certainly try to justify execution of Cancellation Deeds by alleging non payment of consideration, which fact plaintiff will deny. Evidence is required on this aspect - Grant of patta to the plaintiff is another contentious issue - Compromise Decree is assailed on ground of collusion - Plaintiffs claim that Cancellation Deeds and the Compromise Decree are not binding on them - They will necessarily have to state the reasons during trial, and such reasons will have to withstand the test of cross examination – Totality and complexity of facts pleaded in plaint - Learned Sub Judge, Chengalpattu was right in dismissing application seeking to reject the plaint. The issue of limitation will have to be adjudged only on analysis of evidence presented by the parties to the suit, and the plaintiffs cannot be non suited on the ground taken and alleged - Miscellaneous Petition is closed
ORDER :
This Civil Revision Petition has been filed by the 35th defendant in O.S. No. 7 of 2008, now pending on the file of the Principal Sub Court, Chengalpattu, questioning the order dated 03.07.2018 dismissing I.A. No. 2019, which Interlocutory Application had been filed by the petitioner herein under Order VII Rule 11 of CPC to reject the plaint in O.S. No. 7 of 2008.
2. O.S. No. 7 of 2008 had been filed by the plaintiffs seeking a judgment and decree to declare that 13 Cancellation Deeds all dated 06.05.1998 bearing document nos. 996 to 1008 of 1998 on the file of the Sub Registrar, Thiruporur, Chengalpattu District, as null and void under section 31 of the Specific Relief Act, or to declare that the Compromise Decree in O.S. No. 209 of 2004 dated 10.02.2005 as null and void and not binding on the plaintiffs and to grant permanent injunction restraining the defendants from interfering with the peaceful possession of the plaintiffs over the suit schedule property and for costs of the suit.
3. The suit schedule property had been described as Agricultural lands measuring an extent of 40 acres comprised in Old Survey No. 41/3, and as per Patta No. 238, New Survey No. 41/4A to 41/4M, in Karunkuzhipallam Village, Kanchipuram District.
4. The suit was originally filed by 5 plaintiffs against 36 defendants. As years passed, the 37th to 60th defendants came to be impleaded.
5. After about a decade of the pendency of the suit, without any effective progress, the 35th defendant filed I.A. No. 1 of 2019 under Order VII Rule 11 CPC to reject the plaint on the ground that, out of the 40 acres mentioned as the suit property, he is in possession of 22.86 acres on the strength of a Sale Deed dated 26.03.2008 by the Principal District Court, Chengalpattu, pursuant to a decree dated 06.11.2007 in his favour in O.S. No. 488 of 2007, which suit had been filed for specific performance of an agreement of sale dated 06.11.2006, and also on the ground that therefore the title of the plaintiffs is clouded, and a suit filed without seeking declaration of title will not lie, and further that there was no cause of action for instituting the suit. During arguments before this Court, it was also stressed that the suit was barred by the law of Limitation.
6. That application came to be dismissed, as aforesaid, by order dated 03.07.2019, with the Learned Sub Judge primarily holding that the facts in the case revealed that the issue of limitation is merged with facts and law and opportunity must be given to the plaintiffs to establish their claim. Questioning the reasons, the present Civil Revision Petition has been filed.
7. Heard arguments advanced by Mr. T.M. Hariharan, learned Counsel for the revision petitioner/35th defendant and Mr. V. Ramesh, learned Counsel for the 1st to 5th respondents/plaintiffs.
8. For the sake of convenience, the parties shall be referred as plaintiffs and defendants.
9. Mr. T.M. Hariharan took the Court through the averments in the plaint. He pointed out the trace of title as claimed by the plaintiffs. They claimed title on the strength of 13 Sale Deeds executed by the 1st and 3rd to 11th defendants dated alternatively 03.03.1997 and 24.03.1997 conveying in all 40 acres of agricultural land in Survey No. 41/3, Karunguzhipallam Village in Chengalpattu Taluk. The said defendants were the male heirs of one Kapali Pillai, who had purchased the lands from one V. Kunnappa Naicker, by sale deed dated 29.06.1936. The said 40 acres was part of a larger extent of land measuring 247.16 acres in a revenue auction. Revenue auction of the lands were resorted to since, the earlier purchaser G. Sirur, who himself had purchased the lands in an auction held by the Official Assignee had failed to pay the Government dues. The Official Assignee had brought the lands to auction owing to insolvency of the original owner, V. Subburaya Kottadiar.
10. After tracing the title thus, Mr. T.M. Hariharan then pointed out that the vendors of the plaintiffs, namely t
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