M.SUBASH CHANDRA BOSE Vs. M.RAMANATHAN

JUDGEMENT

(1.) The civil revision petition is directed against the fair order and decreetal orders, dated 09.06.2009, passed in I.A.No.136 of 2009 in O.S.No.17 of 2009, on the file of the Subordinate Court, Devakkottai.

(2.) The suit, in O.S.No.17 of 2009, has been laid by the respondent / plaintiff for the relief of permanent injunction. The revision petitioners / defendants had filed the written statement disputing the entitlement of the respondent / plaintiff to the suit property legally and thereby, sought for the dismissal of the said suit. Pending suit, seeking to reject the plaint preferred by the respondent / plaintiff, under Order VII Rule 11(d) and Section 151 of the Code of Civil Procedure, the revision petitioners / defendants had preferred I.A.No.136 of 2009, on the reasonings that the respondent had claimed right to the suit property through one Sakthivel, said to be the adopted son of Ramayee Ammal and in fact, the said Ramayee Ammal herself had filed a suit, against the first revision petitioner's mother, namely, Ponnammal, in O.S.No.57 of 1994, on the file of the Subordinate Court, Devakottai, claiming right over the suit property as the legal heir of the defendants 110 and 111, namely, Murugappan Ambalam and Nachammai in O.S.No.72 of 1933 and in the abovesaid suit, the first revision petitioner's mother contended that the share of the defendants 110 and 111 had been conveyed to one Solachi by them, by way of a registered sale deed, dated 08.07.1957 and from the said Solachi, his mother had purchased the property by way of a registered sale deed, dated 04.12.1980 and the abovesaid suit laid by the said Ramayee Ammal for declaration and recovery of possession, after contest and determining that the said Ramayee Ammal has no title to the property for claiming right to the same through the defendants 110 and 111 and upholding the title of the first revision petitioner's mother in respect of the suit property purchased from Solachi, who in turn purchased the same from the defendants 110 and 111, the abovsaid suit was dismissed and the first appeal and thereafter, the second appeal preferred were also dismissed. Therefore, there had been a final decision and adjudication regarding the title of the first revision petitioner's mother to the suit property as above stated and while so, the present suit has been laid by the respondent on the footing that from Ramayee Ammal, one Sakthivel has become entitled to the suit property as her adopted son and the respondent has purchased the suit from from the said Sakthivel and on that basis, he seeks title to the suit property and on the other hand, when in the earlier suit, the title of the suit property had been determined and finally adjudicated, the respondent is not entitled to reopen the same and hence, the present suit is nothing but an abuse of the process of law and when there is a clear admission in the plaint itself that the suit property originally belonged to the defendants 110 and 111 and the said Ramayee Ammal is the legal heir of the abovesaid defendants and one Sakthivel, claiming to be the adopted son of Ramayee Ammal, putforth the claim of title to the suit property and thereby, conveyed the same to the respondent and as abovestated, in the earlier proceedings initiated by Ramayee Ammal, the claim of title to the suit property by the said Ramayee Ammal through the defendants 110 and 111 had been negatived and on the other hand, the claim of title of the first revision petitioner's mother from Solachi, who in turn had purchased the suit property from the defendants 110 and 111, by way of the registered sale deed 04.12.1980 had been upheld and when the said Ramayee Ammal herself has been held not to be entitled to the suit property, which point had been confirmed by the High Court also, there cannot be any further devolution of interest in respect of the suit property through the said Ramayee Amma and therefore, as the abovesaid issue of title involved in the present suit has been determined in the earlier proceedings, the present suit laid by the respondent is barred by res judicata and in such view of the matter, the trial of the suit would involve unnecessary wastage of the judicial time and also lead to further litigation once again and therefore, sought for the rejection of the plaint preferred by the respondent.

(3.) The abovesaid application has been resisted by the respondent contending that it is true that Ramayee Ammal, the respondent's mother, had filed the suit in O.S.No.57 of 1994, against the first revision petitioner's mother Ponnammal in respect of the property comprised in Survey No.9/6A1B and the same was dismissed. However, according to him, the present suit property is not the subject matter of the earlier litigation and the present suit property is entirely different from the suit property covered in O.S.No.57 of 1994 and hence, the plea of res judicata would not arise in this case and therefore, the cause projected by the revision petitioners that the title of the first revision petitioner's mother had been upheld in the earlier suit and confirmed by the High Court would not in any manner be useful for the rejection of the present plaint. The document of title of Solachi, dated 08.07.1957 did not contain the survey number and the said Solachi purchased the lands situated in No.22 of the 6th Block, 12 of the 7th Block, 37 of the 8th Block and as the said sale deed did not contain any entry regarding the conveyance of the suit property and the encumbrance certificate obtained from the Sub-Registrar concerned contains only the respondent's name, if really, the said Solachi had purchased the suit property, his name would have been reflected in the encumbrance certificate and hence, the question of res judicata does not arise and as the suit property had not been conveyed to the said Solachi by the defendants 110 and 111, the first revision petitioner's mother cannot lay any claim of title to the suit property, hence, there is no question of rejection of the plaint, on the ground of res judicata as putforth by the revision petitioners. Inasmuch as the property involved in O.S.No.57 of 1994 and the property involved in the present suit are completely different and having no nexus to each other and furthermore, as the issue of res judicata, being a mixed question of law and facts, cannot be decided in the preliminary stage, the plea of rejection of the plaint on that ground is not legally sustainable and therefore, prayed for the dismissal of the rejection application.