C A KHABEER Vs. ABDUL MUBEEN

JUDGEMENT

(1.) THE 4th defendant is the petitioner and appellant. THE respondents herein are the plaintiffs who filed O.S.No.5115 of 2000 for partition. THE petitioner is in possession of the suit property and therefore, the respondents filed I.A.No.17084 of 2000 for interim injunction restraining the respondent from altering the physical feature of the property or putting up any construction etc. Injunction was granted. Against that the civil miscellaneous appeal has been filed.

(2.) THE petitioner on the other hand filed I.A.Nos.17817 and 17818 of 2000 to decide the preliminary issue and for direction to furnish security for payment of all costs. Against the order deciding the preliminary issue, the civil revision petition has been filed.

(3.) MR.Hameed Mohideen, learned counsel for the respondent on the other hand referred to the judgment in A.S.No.577 of 1985 wherein he pointed out to the following para: "In this case, we are not called upon to decide as to who is the present owner of the suit property. In a regularly framed suit, where we are all the necessary parties are added, such a question has to be decided." and said that in the earlier suit the title was not in issue and in any event that was a suit for declaration that the petitioner was a landlord within the meaning of the Tamil Nadu Buildings (Lease and Rent Control) Act. The learned counsel submitted that even if the title of the petitioner had been declared in the suit, it was only to the limited extent of establishing his right as a landlord under the Rent Control Act. So it will not operate as res judicata in a partition suit. He also referred to the following para in "Where Ghulam Hussain had any other property and whether his properties were divided among his heirs, and the other details of partition are not available in this suit.