NACHAMMAL Vs. C. MURUGESAN

JUDGEMENT

(1.) This Second Appeal is preferred challenging the judgment and decree dtd. 27/3/2018 made in A.S.No.43 of 2017 on the file of the learned I Additional District and Sessions Judge, Tiruppur reversing the judgment and decree dtd. 8/6/2017 made in I.A.No.14 of 2012 in O.S. No. 174 of 2007 on the file of the Additional Sub-ordinate Judge, Tiruppur.

(2.) The defendants in O.S.No.174 of 2007 on the file of Additional Sub Court,Tiruppur have filed the petition in I.A.No.14/2012 under Order 7 Rule 11(d) of CPC to reject the plaint.

(3.) The brief contents of the petition is that the respondents/plaintiffs have filed the suit for setting aside the decree passed in O.S. No.637/1994, Sub-Court, Tirupur, for declaration of title and for Permanent Injunction. The petitioners filed a suit for partition and separate possession against the grandfather of the respondents/plaintiffs and his brother regarding the properties under the suit survey fields in O.S.637/1994. The respondents/plaintiffs' grandfather and his brothers have not chosen to file written statement and they were set exparte and preliminary decree was passed on 2/1/1997. Subsequently in final decree (I.A.1717/1999) proceedings the respondent/plaintiffs' grand father was served with notice and he remained ex-parte and final decree was passed on 24/9/2001. Subsequently first and second petitioner filed an execution petition in E.P.74/2003. During execution proceedings, the grandfather of respondents/plaintiffs died and steps were taken to implead these respondents/plaintiffs. The respondents also appeared in the said execution proceedings on 8/1/2004. Meanwhile, the brother of respondent's grandfather filed a petition in I.A. No.1575/2003 to set aside the decree passed in 1997 along with Sec. 5 application after lapse of 7 years. After detailed enquiry the trial Court was pleased to dismiss the petition and revision was preferred against the order before this court in CRP No.105/2006 and the same was also dismissed and thereby the decree passed in O.S.637/1994 became final. The respondents being party to the above proceeding are estopped from filing the present suit by suppressing all the above material facts. If at all the respondents/plaintiffs have any objection or valid grounds, they ought to have raised it in the execution proceedings alone and not by way of fresh suit as the same is prohibited by the express provision given under sec. 47(1) of the Civil Procedure Code. The respondents/plaintiffs had instigated his relative Palanisamy to file a vexatious suit in O.S. 386/2006 for Permanent Injunction. The same is also pending before the District Munsif Court, Tirupur. The respondents/plaintiffs are fully aware of all the above proceedings. That being so, the respondents/plaintiffs stepping into the shoes of their grand father Rakkiappa Gounder who is the 1st defendant in the previous suit in O.S.637/1994 has chosen to file the present suit and they are estopped from filing this suit. Hence, there is no cause of action arose and suit is squarely barred by limitation. It is further stated that the respondents/plaintiffs are claiming right over the property through their grandfather as his legal heirs and they cannot say that the decree in O.S.637/1994 against their grandfather will not bind them as they are not parties in the above suit. The present suit is also barred by the Principles of Res-Judicata. The pleadings revealed in the plaint itself is sufficient to prove that the present suit is not maintainable under law. Further, the plaintiffs have categorically and candidly admitted about the earlier proceedings and its results. Further the plaintiffs candidly pleads and claims right over the suit property only as legal heirs of the deceased Rakkiappa Gounder, who is the 1st defendant in the previous suit. As such the plaint has to be rejected under law. Hence this petition.