K. VASU Vs. K. THANGAIYA

JUDGEMENT

(1.) The suit in O.S. No. 66 of 2015 has been laid by the respondent/plaintiff for permanent injunction. Briefly stated claiming that the plaint schedule property is in his possession and enjoyment and with reference to the same, the Government had also issued a 2C Patta in his favour and further complaining that as the petitioner/defendant, without any authority, is attempting to interfere with his possession and enjoyment of the suit property as such, according to the respondent/plaintiff, he has been necessitated to lay the suit for permanent injunction.

(2.) Complaining that the suit laid by the respondent/plaintiff does not disclose any cause of action, the petitioner/defendant had moved an application, under Order 7, Rule 11(a) of the Code of Civil Procedure, to reject the plaint. The plea of the petitioner/defendant is that inasmuch as the 2C Patta claimed by the respondent/plaintiff to have been issued in his favour pertains only in respect of the enjoyment of the trees and plants and not to the suit property as such, according to him, the suit laid by the respondent/plaintiff on the basis of the 2C Patta is without any foundation and cause of action and hence, the suit is liable to be dismissed. That apart, according to the petitioner/defendant, inasmuch as in respect of the same property, there has been already a list between the parents of the petitioner/defendant and the respondent/plaintiff and others and inasmuch as the right and enjoyment of the parents of the petitioner/defendant in respect of the said property had been upheld in the said suit i.e., in O.S. No. 382 of 1998 and when the same had been confirmed by the High Court also in S.A.(MD) No. 120 of 2008, the petitioner/defendant cannot be allowed to again re-agitate the issue in the guise of the present suit and if the respondent/plaintiff is permitted to continue the suit, according to the petitioner/defendant, it would amount to enabling the respondent/plaintiff to challenge the wisdom of the High Court as regards the Judgment passed by it in S.A.(MD) No. 120 of 2008 and therefore, urged that the present suit, without any cause of action, is liable to be rejected.

(3.) On a consideration of the rival contentions put forth by the respective parties, it is found by the Court below that inasmuch as the respondent/plaintiff has laid the suit claiming to be in possession and enjoyment of the suit property on the basis of the Patta issued by the Government and when prima facie the respondent/plaintiff has established the cause of action to institute the suit against the petitioner/defendant holding that the plea of the petitioner/defendant that the said issue had already been adjudicated in O.S. No. 382 of 1998 could be gone into at this stage of the matter and the same could be determined during the course of trial and thereby further holding that the plea of res judicata pleaded by the petitioner/defendant also could be adjudicated only during the course of trial and accordingly, on a reading of the plaint averments as a whole, when it has been clearly alleged that the petitioner/defendant is attempting to interfere with the possession and enjoyment of the suit property of the respondent/plaintiff, without any authority and when admittedly, the petitioner/defendant is the owner of the suit property and only the Government being the owner and as the issues sought to be raised by the petitioner/defendant in the application could be adjudicated only during the course of trial, held that the application laid by the petitioner/defendant to reject the plaint does merit acceptance and accordingly, dismissed the application. Impugning the same, the present civil revision petition has been preferred.