An amendment of a plaint may be barred by limitation if the plaintiff does not give adequate reason for not including the relief at the outset.

C.R.P.(MD) No.1389 of 2021

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED :12.01.2022

CORAM

THE HONOURABLE MS.JUSTICE P.T.ASHA

C.R.P(MD)No.1389 of 2021 &

CMP(MD)No.7864/2021

Stella Poongodi

... Petitioner

P.Daniel is recognised as Power Agent of the petitioner vide order

dated 24.08.2021 made in C.M.P.(MD).No.6618 of 2021 in C.R.P.(MD)

SR.No.37798 of 2021.

Vs.

1.S.Mathiyarasan

2.B.Jeyagar

... Respondents

PRAYER:- Civil Revision Petition filed under Article 227 of the

Constitution of India, to call for the records and set aside the

Fair and Decreetal order dated 14.03.2020 in I.A.No.3 of 2019 in

O.S.No.255 of 2013 on the file of the Sub-ordinate Court,

Thoothukudi.

For Petitioner

:

Mr.G.Prabhu Rajadurai

For Respondents

:

No appearance

ORDER

The plaintiff whose application for amending the plaint has

been dismissed is the revision petitioner before this Court.

2. The plaintiff had filed a suit in OS.No.255/2013 on the file

of the Subordinate Court, Thoothukudi for a declaration that the

plaintiff alone is entitled to the suit schedule property and for an

injunction; and to declare the mortgage deed executed by the first

defendant in favour of the second defendant as null and void and not

binding on the plaintiff. The plaintiff had contended that the suit

schedule property belongs to one Shankaralinga Nadar under a sale

deed dated 23.09.1954. The property had been purchased in an

auction sale pursuant to a decree in OS.No.286/1968. The property

had been brought to sale in execution proceedings in EP.No.308/1969

and the sale was confirmed in favour of one Durairaj Nadar and Sale

Certificate was issued on 01.08.1970. The order has not been set

aside to date. The said Durairaj Nadar is the father-in-law of the

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C.R.P.(MD) No.1389 of 2021

plaintiff. Durairaj Nadar died on 25.02.1982 and the property was

inherited by the plaintiff's husband Prakash, who was in possession

and enjoyment of the same. Patta by mistake has been issued in the

joint names of the plaintiff's husband and the first defendant. It

appears that the plaintiff's husband Prakash had made an application

to the Revenue Divisional Officer, Kovilpatti to remove the name of

the first defendant from the joint Patta and by order dated

04.05.2012, the joint Pattta dated 06.02.2004 issued in the joint

names has been rectified and the name of the first defendant was

removed. The said Shankaralinga Nadar, who had lost in the above

proceedings, in connivance with his brother Boologa Rajan and the

first defendant / Mathiyarasan had fabricated a sale deed dated

18.09.1978. It also appears that the first defendant by concealing

the old Patta had mortgaged the property to the second defendant on

03.07.2012 for a sum of Rs.1,00,000/- under a registered mortgage

deed. Since a cloud has been caused on the title, the plaintiff

whose husband had died, has filed the above suit for the relief

stated therein.

3. In the written statement filed on behalf of the first

defendant, the first defendant would submit that he is a bonafide

purchaser for value from Shankaralinga Nadar and his brother Boologa

Rajan. The first defendant would submit that the two brothers had

sold 88 and 1/2 cents being the western portion of 1 acre and 77

cents of the land comprised in SR.No.364/1 along with 31 cents of

land in the western portion which totally measures 62 cents

comprised in S.No.364/3 under a registered sale deed dated

18.09.1978.

He would further submit that the Sale Certificate

issued in favour of the plaintiff's husband Prakash has not been

registered before the Sub Registrar's Office. From the date of the

purchase, the first defendant had been in open, continuous and

hostile possession of the schedule property without disturbance of

any one. This written statement had been filed on 04.10.2013.

Therea