D MUTHUKRISHNAN Vs. KASTHURI

JUDGEMENT

(1.) THE civil revision petitioners/defendants 1 and 2 have filed this civil revision petition praying to strike off the plaint in O.S.No,828 of 2007 pending on the file of District Munsif Court, Alandur.

(2.) THE revision petitioners in the civil revision petition have averred that the suit O.S.No,828 of 2007 on the file of District Munsif Court, Alandur is an abuse of process of Court and hit by the principles of law and re-litigation and principles of res judicata and therefore, is liable to be struck off and that the lands in Paimash No.170 and 173 (New Survey No.179/1) in Adambakkam village and other properties originally belongs to the joint family of Veerbathra Chettiar and that in the partition suit C.S.No,564 of 1926 on the file of this Court, a final decree has been passed and that the aforesaid property and other properties have been allotted to the share of Veerabathra Chettiar and Appa Kannu Chettiar and that the title of the present petitioners, predecessors in interest has been confirmed by this Court and that the suit for partition mentioned supra has been filed between Veerabathra Chettiar and brothers and in another partition suit between the legal representatives of Appa Kannu Chettiar O.S.No,669 of 62 on the file of District Munsif at Poonamallee one Desappa Chettiar, father of the first revision petitioner and Sankaran Chettiar have been added as defendants and that the said Sankaran Chettiar has taken delivery of the property in E.P.No,9 of 67 on 06.01.1967 and that the western portion of the aforesaid property has been allotted to the share of Sankaran Chettiar who has taken delivery also and eastern portion of the property will go to the other sharer viz., Desappa Chettiar and that the revision petitioner's late father Desappa Chettiar has omitted to seek patta under Minor Inam Abolition Act 30 of 1963 and that the lands have been declared as Poramboke wrongly on 10.10.1988 by the Assistant Settlement Officer and as such the revision petitioners along with his brothers have filed C.M.A.No,40 of 1991 on the file of Principal Sub Court, Chengalpattu to set aside the order and that the first respondent herein who is the plaintiff in the impugned suit has filed I.A.No.172 of 1993 to get herself impleaded on the basis of agreement dated 20.12.1990 by the Kundrakudi Aadheenam and that the Sub Court has allowed the C.M.A.No,40 of 1991 and dismissed the impleading I.A.No.172 of 1993 mentioned that Kundrakudi Aadheenam has no right on 15.02.1965 and hence, the first respondent/plaintiff has no right over the suit properties.

(3.) THE learned counsel for the revision petitioners urges that the first respondent/plaintiff has no interest in the suit property and that has been suppressed in the plaint and a similar suit for permanent injunction has been filed earlier and has not been pursued against the revision petitioners and in the absence of liberty being taken the suit is barred under the relevant provisions of Civil Procedure Code and that the first respondent/plaintiff filed I.A.No.172 of 1993 in C.M.A.No,40 of 1991 stating that she entered into an agreement of sale with Kundrakudi Aadheenam and that application has been dismissed and moreover, C.M.A.No,40 of 1991 filed by Desammal and four others have been dismissed by the learned Principal Judge, Chengalpattu on 30.09.1993 and that the revision petitioners herein who figured as appellant No,3 and 5 in C.M.A.No,40 of 1991 filed O.S.No,264 of 1991 on the file of Sub Judge, Poonamallee for the relief of specific performance of the contract and also praying for an order of permanent injunction and in I.A.No.172 of 1993 the first respondent herein has filed an application stating that she may be impleaded as a party respondent in C.M.A.No,41 of 1991 and in the judgment in C.M.A.No,40 of 1991 in paragraph 10 for the point No.1 the Court has inter alia observed that 'the first respondent ought to conduct enquiry after obtaining the encumbrance certificate and find out the persons who purchased the properties and issued notice to them legally and then an opportunity to examine the witness on their behalf on perusing the documents filed by the appellants etc. and since it is just and necessary that the first respondent has passed a final order after perusing the documents by him and examining the witnesses on their behalf and held that for the interest of justice the order passed by the first respondent has been set aside and allowed the Minor Inam Abolition Civil Miscellaneous Appeal and the first respondent has been directed to conduct the enquiry on these petitions as per the instruction stated above and for the issue No,2 whether I.A.No.172 of 1993 etc. may be accepted it is inter alia held that 'the Kundrakudi Aadheenam did not object the order passed by the first respondent. Hence, that order is final, further the first respondent stated that he enquired the Kundrakudi Aadheenam at the time of enquiry and he had no right on 15.02.65. In this circumstance, the prayer of the petitioner who entered into an agreement with him that he may be impleaded as a party is not proper and sustainable. Hence, I find, according to the argument of appellant/respondent that Tmt.Kasthuri Ammal is not entitled to be impleaded as a party in this appeal since this petitioner had no cultivation occupancy (Kudivaram right) on 15.2.65 over the suit property since the Kundrakudi Aadheenam himself had no right on that date etc. and resultantly, the applications have been dismissed on considering that the petitioners also are not entitled to be impleaded as parties in the civil miscellaneous appeal and in W.A.No,580 of 1996 dated 10.07.1997 this Court has held that the second respondent therein has not established his case that he is a person interested as per Rule 9(5) framed under the Minor Inams (Abolition and Conversion into Ryotwari) Act which will cover persons only who have got any interest in the lands at the time of the commencement of the Act etc. and further that the President of the Sangam is not a necessary party since 'B' memos have been issued only after 1990 and moreover, the Assistant Settlement Officer has erred in coming to the conclusion that the 'person' in Rule 9(5) includes the Sangam ignoring the object of the Act and the person mentioned in Rule 9(5) should have an interest in the proceeding at the time of commencement of the Act and the members of the Association having obtained 'B' memos after the first order passed by the Assistant Settlement Officer declaring the lands as house site poramboke are, in our opinion, not entitled to participate in the proceedings as the order of the Assistant Settlement Officer was first stayed by the High Court and later set aside by the Tribunal and this apart, Rule 9(5) under the Act is beyond the scope of Section 11 as notice has been contemplated only to persons who are entitled to get patta and resultantly, the writ appeal has been allowed.