T KANTHARAJU Vs. N KUPPUSWAMI

JUDGEMENT

(1.) This Civil Revision Petition has been filed against the fair and decretal order dated 9.10.2001 made in I.A.No.1202 of 1998 in O.S.No.318 of 1996 by the Court of District Munsif, Krishnagiri by the third defendant to the suit who is also the third respondent in the I.A.No.1202 of 1998.

(2.) Tracing the history of the above Civil Revision Petition having come to be filed, it comes to be known that the respondents 1 and 2 herein are the plaintiffs 3 and 4 in O.S.No.40 of 1983 on the file of the Court of Subordinate Judge, Krishnagiri; that the said suit was filed by their mother for possession of the suit property, past and future mesne profits and for costs and the same was decreed allotting the suit properties to her after contest by the defendants therein; that pending suit, first plaintiff Rajammal died leaving behind her husband Gopal @ Narayanaswami Naidu, son and daughter as legal heirs and they were brought on record as plaintiffs 2 to 4; that subsequently the second plaintiff also died; that the said suit was transferred to Additional Special Court, Krishnagiri to be tried along with the another suit O.S.No.41 of 1983 filed by Rajammal for partition of suit house into two equal shares by metes and bounds and for direction to defendants to deliver separate possession of half share and for future mesne profits on the basis of the final decree passed by the Sub Court, Salem; that the defendants therein filed a suit in O.S.No.311 of 1984 on the file of the Court of Subordinate Judge, Krishnagiri against Rajammal for a decree directing her to execute a relinquishment deed for the suit properties as per the terms of the agreement dated 26.1.1981 and in default to get the document executed by Court; that the respondents 1 and 2 herein were also brought on record as defendants 3 and 4; that the said suit was also transferred to Additional Special Judge, Krishnagiri and the same was renumbered as O.S.No.157 of 1986 for joint trial; that a memo was filed for a joint trial and the plaintiff in O.S.No.40 of 1983 was examined and their evidence was also closed; that the first defendant was examined as D.W.1 and when the impugned muchalika was sought to be marked, the plaintiffs took objection that it is not properly stamped and it cannot be received in evidence; that an order was passed holding that it is only an agreement against which revision was filed and the same was dismissed by this Court; that as per the agreement, the first plaintiff was entitled to possession of the properties as proposed amendment in the alternative in the accompanying petition for amendment.

(3.) In the counter filed by the respondent in I.A.No.1202 of 1998, it is stated that the suit properties were never delivered to deceased Rajammal and she was not entitled to any share in the suit house of O.S.No.41 of 1983; that the petition for amendment is belated one and the same was filed as an after thought; that with regard to the properties sought to be added by way of amendment, their possession continued with the respondents and the same was admitted by the plaintiffs and therefore, there would be no cause of action; that the plaintiffs have challenged the validity of the Muchalika on the ground that the signatures of the plaintiffs were obtained by using undue influence; that the plaintiffs' right to sue for specific performance for enforcing the terms of the Muchalika got extinguished by expiry of the prescribed period of limitation; that the respondents' suit for specific performance requiring the petitioners in O.S.No.157 of 1986 to execute the relinquishment deed is pending and the joint trial is ordered would not enlarge the period of limitation and therefore, they cannot claim alternative relief and therefore, the petition has to be dismissed.