A suit against a deceased defendant is a nullity, but the right to sue survives against legal heirs; failure to properly implead heirs does not invalidate the claim.

ORDER :

R. SAKTHIVEL, J.

Captioned Civil Revision Petitions are filed under Article 227 of the Constitution of India, 1950 . The one in C.R.P. No.2470 of 2023 is filed praying to set aside the Order dated March 13, 2023 passed in I.A. No.1 of 2021 in O.S. No.38 of 2020 on the file of 'the Subordinate Judge, Thiruthani' ['Trial Court' for short] and allow the said petition and consequently dismiss the Suit. The one in C.R.P. No.2472 of 2023 is filed praying to confirm the Order of dismissal dated March 14, 2023 passed in I.A. No.3 of 2021 in O.S. No.38 of 2020 on the file of the Trial Court and dismiss the portion of the order granting liberty to file a fresh application with correct particulars to the Respondent herein /Petitioner/Plaintiff and consequently dismiss the Suit.

2. The Plaintiff filed the present Suit against one Vijayalakshmi seeking (i) declaration of title over the Suit ‘B’ schedule property, (ii) mandatory injunction to demolish the constructed portion therein, (iii) delivery of possession of the same after removing the construction put up there, (iv) permanent injunction restraining the Defendants from making further construction and for other reliefs.

3. The case of the Plaintiff is that the Suit 'A' schedule property is the self-acquired property of the Plaintiff’s mother, namely, Kamalammal vide Sale Deed dated April 19, 1980. After the purchase, Kamalammal constructed a terraced house in the northern portion of the Suit 'A' schedule property and left the southern portion vacant, which was used as backyard. While constructing the said house, Kamalammal left 6 feet lane on the eastern side of the Suit 'A' schedule property to access the backyard. The said 6 feet lane is described as the Suit 'B' schedule property. To be noted, Suit 'B' schedule property is part of the Suit 'A' schedule property.

3.1. Kamalammal executed a Settlement Deed dated September 26, 2007 in respect of the Suit 'A' schedule property to the Plaintiff and pursuant thereto, the Plaintiff was in possession and enjoyment of the same as its absolute owner by paying house-tax, electricity consumption charges and water-tax.

3.2. While so, on March 14, 2020, the Defendant with no right or title in the Suit Property, through her men, encroached over the eastern portion of the Suit 'A' schedule property and erected a wall in the front portion, preventing access to the Plaintiff. In other words, the Defendant encroached upon the Suit 'B' schedule property Hence, on March 15, 2020, the Plaintiff lodged a complaint before the Deputy Superintendent of Police, Tiruttani. Since there was no response, the Plaintiff filed a Suit against Vijayalakshmi seeking a declaration, mandatory injunction and permanent injunction.

3.3. According to the Plaintiff, the Defendant was residing in Anna Nagar, Chennai. The Suit summons were returned as unserved. Hence, the Plaintiff filed a petition under Order V Rule 20 of 'the Code of Civil Procedure, 1908 ' ['CPC' for short] seeking substitute service of summons and the same was allowed and was also subsequently effected.

3.4. In the meantime, the Petitioner namely Dr.G.Rajendra Prasad, who is a third party to the Suit filed a petition in I.A. No.1 of 2021 stating that his sister - Vijayalakshmi passed away on February 23, 2016 and the Suit was filed in March 16, 2020. Hence, the Suit filed against dead person is nullity. Accordingly, the third party prayed to dismiss the Suit under Section 151 of CPC.

3.5. After acquiring knowledge about the demise of the Defendant - Vijayalakshmi, the Plaintiff filed an Interlocutory Application under Order I Rule 10(2) of CPC in I.A. No.3 of 2021 praying to implead the proposed Defenda