PANDARACHAMY Vs. THIRUMALAI AMMAL

JUDGEMENT

(1.) <FV>Appeal dismissed</FV> <DJG>PUSHPA SATHYANARAYANA,J.</DJG> The plaintiff, who is the appellant, is the purchaser of the suit property in the capacity of a mortgagee. The suit has been filed for declaration and injunction.

(2.) The case of the plaintiff is that the suit property originally belonged to one Sadayappa Konar, having acquired the same by his self-earnings. He had left a Will, dated 07.12.1994 and the same came into force on his death on 02.02.1995. As per the said Will, the suit property was bequeathed in favour of his daughter Ramathal children viz., Manimegalai, Thilagavathi and Arunpandian. The father of the legatees was appointed as guardian. Accordingly, after the Will came into force, the said beneficiaries have been in enjoyment of the property and subsequently, they mortgaged the suit property on 07.05.2008 with the plaintiff. In discharge of the mortgage, the suit property was sold in favour of mortgagee/plaintiff herein by virtue of the sale deed dated 20.04.2009. The plaintiff has been in possession of the property in his own capacity from the date of purchase. The second defendant had made a request to the plaintiff to sell the eastern side of the suit property which was refused by him. Enraged by the same, the second defendant along with the first defendant has been attempting to disturb the peaceful possession of the plaintiff. Hence, the suit was filed.

(3.) Denying the facts leading to the cause of action of the suit, the defendants contended that the Will, dated 07.12.2004, is not a valid document. It is also contended by the defendants that on the same cause of action, vendors of the plaintiff had filed O.S.No. 85 of 1996 which was left to be dismissed for default on 16.03.2001. Suppressing the same, the plaintiff's vendor had filed another suit in O.S.No. 1106 of 2004 for declaration and injunction against the first defendant, which was also dismissed for non prosecution on 09.11.2005. The property described in the above said suits and the present suit are one and the same. Therefore, having not taken the leave of the Court to file a fresh suit on the same cause of action, the suit filed as it is by the plaintiff is not maintainable as the same is hit by Order 9, Rule 9 of the code of Civil Procedure. It is further stated in the written statement that the first defendant and the mother of the plaintiff's vendors are sisters and there was an oral partition in which the suit property fell to the share of the first defendant-Thirumalai Ammal, who had now sold the same in favour of the second defendant for a valid consideration. As the possession is with the second defendant, the plaintiff is not entitled for any relief and thus, he prayed for dismissal of the suit.