M. VELUSAMY Vs. JAGATHMALA

JUDGEMENT

(1.) Against the dismissal of the transfer petition dated 13.02.2019 made in Tr. O.P. No. 26 of 2017 on the file of the Principal District Court, Madurai , the petitioner has filed this revision petition.

(2.) The revision petitioner is the plaintiff in O.S. No. 5/2017 filed against the respondents herein before the I Additional District Court, Madurai, for the relief of declaration and permanent injunction in respect of the suit property. In the above suit, the petitioner would contend that originally, the suit property was allotted to the share of one J.B.Anandhajothi/2nd defendant in O.S. No. 663/2006 through a registered partition dated 30.04.1975 and she and her sons sold the same to one A. Vasantharaja and others on 19.08.1987 and his legal heirs sold the suit property to the revision petitioner/plaintiff. Since the defendants interfered with the possession of the petitioner over the suit property and disputed the title of the revision petitioner/plaintiff, the above suit has been filed. The petitioner would further state that earlier, suit for partition was filed in O.S. No. 303/1999 before the Principal Sub Court, Madurai, in respect of the suit property and other properties. Later on, it was transferred to the Principal District Munsif, Madurai, and renumbered as O.S. No. 663/2006, in which, his vendors namely, A. Vasantharaja and his heirs were not impleaded and a preliminary decree was passed. In the final decree proceedings, an advocate commissioner was appointed and when he came to the suit property, the revision petitioner came to know about the filing of the partition suit and therefore, filed O.S. No. 5/2017 for declaration and permanent injunction. Pending the above suit, the petitioner filed Tr. O.P. No. 26 of 2017 on the file of the Principal District Court, Madurai, to transfer O.S. No. 663/2006 and connected I.As to the I Additional District Court, Madurai, to be tried along with O.S. No. 5/2017 filed by him. The respondents 1 to 5 herein filed counter opposing the transfer petition stating that the petitioner has purchased the suit property after the passing of preliminary decree in O.S. No. 303 of 1999 on the file of the Sub-Court, Madurai, on 11.10.2000 and hence, the sale is vitiated and only to harass the respondents, the petitioner has filed the transfer petition. The Court below finding that the alleged purchase of suit property by the petitioner was during the pendency of the partition suit, thereby hit by the doctrine of lis pendens, dismissed the transfer petition, against which, this revision petition is filed.

(3.) Learned counsel for the petitioner would submit that since the petitioner is the purchaser of the suit property in both the suits, final decree proceedings in O.S. No. 663/2006 ought to have been tried along with O.S. No. 5/2017 which would avoid conflicting judgments and multiplicity of proceedings. He would further state that the petitioner 's vendors namely, A. Vasantharaja and his heirs were not added as parties in O.S. No. 663/2006 and after selling the suit property to A. Vasantharaja, his vendor namely, J.B.Anandhajothi/2nd defendant in O.S. No. 663/2006, cannot represent A. Vasantharaja and since the purchase of suit property by A. Vasantharaja was earlier to the filing of O.S. No. 303/1999(renumbered as O.S. No. 663/2006), the sale deed by A. Vasantharaja and his heirs in favour of the plaintiff in respect of the suit property, is not at all hit by the doctrine of lis pendens. Thus, he would state that the petitioner being a proper and necessary party, a joint trial of the partition suit and the declaration suit filed by the petitioner, is necessary and would pray for allowing this petition.