Madras High Court
Pr.Palaniappan vs Ct.C.Nachiappa Chettiar on 17 December, 2020
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
C.S.No.710 of 2002
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 11.01.2019
Pronounced on : 17.12.2020
CORAM:
THE HON'BLE MR. JUSTICE R.SURESH KUMAR
C.S.No.710 of 2002
and A.No.2039 of 2016, A.No.2579 of 2016,
A.No.567 of 2016, A.No.427 of 2019 and A.No.682 of 2019
1. PR.Palaniappan
2. PR.Veerappan
3. RM.Visalakshi
4. RM.Periakaruppan
5. RM.Meyyammai
6. PR.Alagappan ........ Plaintiffs
(Defendants 3 to 6 transposed as the plaintiffs 3 to 6
as per order, dated 15.07.2009 in
A.No.3092 of 2009 in C.S.No.710 of 2002)
-vs-
1. CT.C.Nachiappa Chettiar
2. T.R.Rathineswaran
3. RM.Visalakshi
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C.S.No.710 of 2002
4. RM.Periakaruppan
5. RM.Meyyammai
6. PR.Alagappan
7. Dhanalakshmi Impex Pvt., Ltd.,
Rep. by its Managing Director
H.Vimala
D/o. late Hariharan,
No.366E, 36th Street,
T.V.S.Avenue,
Anna Nagar West Extension,
Chennai - 600 101.
8. SKV Import and Export
Rep. by its Proprietor
S.Vairavasundaram,
No.158/6, Golden Jubilee Flats,
Padikuppam Road,
Anna Nagar West,
Chennai - 600 040.
9. R.Rajam
10. M/s. Om Shakthy Agencies (Madras) Pvt., Ltd.,
No.1, Jawaharlal Nehru Road,
Ekkattuthangal,
Chennai - 600 097. ........ Defendants
(Defendants 7 to 10 impleaded as per order
dated 23.04.2008 in A.Nos.7533 of 2007,
1162 of 2004, 472 of 2004 and
O.A.No.709 of 2002 in C.S.No.710 of 2002)
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C.S.No.710 of 2002
Civil Suit filed under Order IV Rule 1 of the Madras High Court
Original Side Rules read with Order VII Rule 1 of C.P.C, seeking for a
Judgment and Decree against the first and second defendants (i) for a
permanent injunction restraining the first and second defendant, their agents
and servants any person, every person claiming under them either directly or
indirectly from in any way dealing with the suit properties more fully
described in the schedule hereunder or interfering with the plaintiffs use,
occupation and enjoyment of the suit properties morefully described in the
schedule hereunder; and (ii) directing the defendants 1 to 5 jointly and
severally pay damages of Rs.50,00,000/- (Rupees Fifty Lakhs only) to the
plaintiffs and pay to the plaintiffs interest at such rate that this Court deem
fit on Rs.50,00,000/- (Rupees Fifty Lakhs only) from the date of the
Judgment and Decree till realization of the same.
For Plaintiffs : Mr.PL.Narayanan
For Defendants : D1 - set exparte
Mr.P.Subba Reddy
for Mr.J.D.Srikanth Varma for D2
D3 to D6 are transposed as P3 to P6
Mr.Murugamanickam, Senior Counsel
for Mrs.Kavitha Nathan for D7 to D9
D10- set exparte
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C.S.No.710 of 2002
JUDGMENT
The Civil Suit has been filed under Order IV Rule 1 of the Madras High Court Original Side Rules read with Order VII Rule 1 of C.P.C., seeking for a Judgment and Decree against the first and second defendants
(i) for a permanent injunction restraining the first and second defendants, their agents and servants any person, every person claiming under them either directly or indirectly from in any way dealing with the suit properties more fully described in the schedule hereunder or interfering with the plaintiffs use, occupation and enjoyment of the suit properties morefully described in the schedule hereunder; and
(ii) directing the defendants 1 to 5 jointly and severally pay damages of Rs.50,00,000/- (Rupees Fifty Lakhs only) to the plaintiffs and pay to the plaintiffs interest at such rate that this Court deem fit on Rs.50,00,000/- (Rupees Fifty Lakhs only) from the date of the Judgment and Decree till realization of the same.
2. The prayer sought for in the respective applications are as follows :
(i) A.No.2039 of 2016 has been filed under 4/111 http://www.judis.nic.in C.S.No.710 of 2002 Order XIV Rule 8 of O.S.Rules r/w 151 of C.P.C, to direct the learned Advocate Commissioner Krishnakumar to deliver the applicants / plaintiffs herein the physical possession of the suit property measuring an extent of 10 Grounds and 1600 Sq.ft., morefully described in the schedule.
(ii) A.No.2579 of 2016 has been filed under Order XIV Rule 8 of O.S.Rules r/w Sections 45 and 73 of Indian Evidence Act and Section 151 of C.P.C, seeking a direction to obtain a report from an expert at Forensic Lan with respect to Exs.P.1 and P.2 (disputed documents) so as to test their age, genuineness, particularly compare the handwriting / signature of the executants, Sub-
Registrar in the Exs.P.1 and P.2 with handwriting / signature in contemporary documents provided.
(iii) A.No.567 of 2016 has been filed under Order XIV Rule 8 of O.S.Rules and Order 1 Rule 10(2) of C.P.C., to implead the applicant as the defendant in the above C.S.No.710 of 2002.
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(iv) A.No.427 of 2019 has been filed under Order XIV Rule 8 of O.S.Rules r/w section 151 of C.P.C., to direct the possession of property now in possession of this Court through Advocate Commissioner, be handed over back to the applicant / second defendant in C.S.No.710 of 2002.
(v) A.No.682 of 2019 has been filed under Order XIV Rule 8 of O.S.Rules r/w Order XXIII Rule 1A of C.P.C., to transpose the applicant / second defendant as the plaintiff in the suit in order to continue the suit in proceedings in C.S.No.710 of 2002.
3. The suit C.S.No.710 of 2002 was filed originally by the plaintiffs 1 and 2 against the defendants 1 and 2, where, the present plaintiffs 3 to 6 also had been shown as defendants for the relief of bare injunction against the defendants 1 and 2 from dealing with the suit property or interfering with the occupation and enjoyment of the plaintiffs in the suit property and also for the relief of damages from D1 to D5.
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4. Subsequently, the defendants 3 to 6 transposed as plaintiffs 3 to 6 as per order, dated 15.07.2009 in A.No.3092 of 2009. Also defendants 7 to 10 were impleaded subsequently as per order, dated 23.04.2008 in A.Nos.7533 of 2007, 1162 of 2004, 472 of 2004 and O.A.No.709 of 2002 in C.S.No.710 of 2002.
5. The suit against the first defendant has been decreed by the Judgment and Decree, dated 02.03.2016, whereby a learned Judge of this Court in respect of prayer (a) for permanent injunction against the first defendant, his agents or servants or any person claiming under him either directly or indirectly from in any way dealing with the suit properties morefully described in the suit schedule or interfering with the plaintiffs use, occupation and enjoyment of the suit properties morefully described in the schedule of the suit, was allowed, thereby the suit was partly allowed.
6. Insofar as the prayer (b), i.e., for damages sought for by the plaintiffs, that prayer could not be adjudicated at that stage, therefore the same was not granted.
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7. At this juncture, the aforesaid applications filed by both sides have been pending and those applications were agitated before this Court for disposal.
8. In the meanwhile, on 08.01.2019, on behalf of the plaintiffs, Mr.PL.Narayanan, the learned counsel appearing for the plaintiffs made an endorsement in the suit plaint to the effect that, the suit is not pressed against defendants 2 to 6, as the decree passed against the first defendant will suffice. However, on such decision taken by the plaintiffs to withdraw the suit as against defendants 2 to 6 is concerned, the defendants 2 to 6 represented by the learned counsel have vehemently opposed the said move on the side of the plaintiffs to withdraw the suit and they would contend that, the suit in respect of defendants 2 to 6 shall be proceeded on merits and the plaintiffs shall not be permitted to withdraw the suit.
9. Therefore the question posed before this Court are in two fold. One is that, whether the aforesaid applications can be allowed or not. The another question is, whether the plaintiffs can be permitted to withdraw the suit as against the defendants 2 to 6 at this stage. 8/111 http://www.judis.nic.in C.S.No.710 of 2002
10. In order to find out solution and to give answers to those two questions posed before this Court, first we have to look back the past history, as this suit has got a chequered history since the date of filing till now.
11. The father of first, second and sixth plaintiffs, one RM.PR. Periakaruppan Chettiyar by a registered sale deed bearing Doc.No.4177 of 1960, dated 08.12.1960 on the file of the Sub-Registrar, T.Nagar purchased the suit property (Ex.P.1) from one K.M.Lakshmanan to the extent of 10 Grounds 1600 Sq.ft., in Plot Nos.47, 48, 49, 50, 55, 56, 57 and 58 in S.No.158, Block No.2 in Saligramam Village with definite boundary. Like that, the mother of the plaintiffs 1, 2 and 6, one P.R.Meiyammai Achi, who is the wife of the said Periakaruppan Chettiyar purchased the adjacent property to the extent of 6 Grounds in Plot Nos.51, 52, 53 and 54 in S.No.158, Block No.2 in Saligramam Village with definite boundary by a registered sale deed bearing Doc.No.547 of 1961, dated 25.02.1961 registered on the file of the Sub-Registrar, T.Nagar (Ex.P.2). Both the sale was executed by one K.M.Lakshmanan, S/o. Kumarappa Chettiyar. 9/111 http://www.judis.nic.in C.S.No.710 of 2002
12. On the strength of the said sale deeds, the father and mother of the plaintiffs had possessioned the property and had been enjoying the same which were vacant plots at that time. During the life time of the said father and mother of the plaintiffs, the suit properties were proceeded under the Urban Land Ceiling Act. Challenging the said proceedings, they filed writ petitions before this Court in W.P.No.1846 of 1995 etc., and ultimately the matter had been transferred to the Tamil Nadu Land Reforms Special Appellate Tribunal, where, the said writ petitions transferred from this Court were decided and vide order, dated 10.01.2000 (Ex.P.16 series) by ascertaining the fact that the land owners were in the possession of the property and it had not been taken over, by virtue of the subsequent Act, i.e., the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act 1999 (Tamil Nadu Act 20 of 1999), all further proceedings shall abate and accordingly, the Transfer Petitions filed by the father and mother of the plaintiffs were ordered in their favour.
13. Meanwhile, the plaintiffs on 14.07.1997 arrived at an oral partition as regards division of the suit property. Accordingly, the share of 10/111 http://www.judis.nic.in C.S.No.710 of 2002 the property was allotted to each of the plaintiffs. Pursuant to the said partitions, the Tahsildar, Egmore, Nungambakkam Taluk had given pattas to the plaintiffs dated 12.09.2002 (Ex.P.22 series)
14. When that being so, according to the plaintiffs, the second defendant, viz., T.R.Rathineswaran, S/o. R.K.Ramachandra Servar, in conspiracy with the first defendant, CT.C.Nachiyappa Chettiyar said to had been residing in Kottaiyur, Sivaganga District, brought forged and false documents in respect of the suit property and with the strength of such forged documents, since the first and second defendants and their men were trying to encroach upon or occupy the property, it triggered the plaintiffs to file police complaint before the Deputy Commissioner of Police, Egmore, Chennai.
15. Only at this juncture, the suit C.S.No.710 of 2002 was filed by the plaintiffs with the aforesaid prayer.
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16. The case of the second defendant is that, the first defendant was the owner of the suit property and on that strength, he executed a power of attorney on 06.09.2001 to and in favour of the second defendant and on that strength, the second defendant had subsequently made sales of part of the suit property to defendants 7 to 10 and at that juncture, the suit had been filed by the plaintiffs as if that they are the owners of the property on the strength of the two sale deeds referred to above, dated 08.12.1960 and 20.02.1961 and according to the defendants, especially D2, the said sale deeds are forged documents, therefore on that strength, the plaintiffs cannot set up a case in respect of the suit property and seek for injunction as they claimed.
17. With the aforesaid claim and counter claim made by the plaintiffs and the defendants 1 and 2, especially the second defendant who had been the main contesting defendant all along, the suit was moved by the plaintiffs, where, on 03.02.2003, in O.A.No.709 of 2002 filed by the plaintiffs, order of interim injunction until further orders granted by this Court was made absolute. As against which, when Original Side Appeal in 12/111 http://www.judis.nic.in C.S.No.710 of 2002 O.S.A.No.143 of 2003 was filed, since the learned Judge granted interim order only in respect of Block No.2 of the property, that order was set aside and the matter was remanded back to the learned single Judge for fresh consideration by order of a Division Bench of this Court, dated 24.11.2003 in O.S.No.143 of 2003. Thereafter atleast two contempt petitions were filed, one is before the learned single Judge in Cont.P.No.173 of 2003 and another one is before the Division Bench in Cont.P.No.325 of 2006.
18. In Cont.P.No.173 of 2003, by taking note of the fact that, based on the power alleged to have been executed by the first defendant towards the second defendant, dated 06.09.2001, since the second defendant has effected further sale of suit property to the third party who are the defendants herein also (defendants 7 to 10), in order to restrain the second defendant from going on further sale of the suit property, the learned single Judge in the said Cont.P.No.173 of 2003, by order, dated 21.04.2006 had suspended the operation of the registered power of attorney, dated 06.09.2001 shown to have been executed by the first defendant in favour of the second defendant, until further orders.
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19. Like that, in the Cont.P.No.325 of 2006, a Division Bench of this Court, by order, dated 25.08.2006 had directed that, the third party rights created by the second defendant in respect of suit properties pursuant to or on the strength of the power dated 06.09.2001 said to have been executed by D1 to D2, shall not have any legal effect.
20. Thereafter, O.A.No.709 of 2002 filed by the plaintiffs to seek for injunction came up for further hearing before a learned Judge of this Court, where after having taken into account the developments taken place and the claim and counter claim made by the parties, the learned Judge, of course on the consent given by the second defendant, by order dated 11.03.2008 directed the second defendant to file an affidavit surrendering the possession of the property to the custody of the Court and further directed that, a notice board in the property informing the public that the property is under the physical custody of this Court in pursuance of the order passed in O.A.No.709 of 2002 indicating the names of the parties also shall be erected, and it was further directed that, till the disposal of the suit, the suit property shall be deemed to be in the custody of the Court. It was further 14/111 http://www.judis.nic.in C.S.No.710 of 2002 directed that, because of the court custody of the property, the prayer of the plaintiffs in the suit for a bare injunction shall not be defeated on the technical ground that, the Court is in possession of the property and therefore they are not entitled to seek a decree of permanent injunction.
21. That is how, the property in question have been made as property in custodia legis. Further contempt petition was also moved by the plaintiffs in Cont.P.Nos.731 of 2008 and 583 of 2009 for the alleged violation of the orders passed by a Division Bench of this Court, dated 24.11.2003 made in O.S.A.No.143 of 2003 and violation of the order of a Division Bench of this Court, dated 19.09.2008 made in Cont.P.No.731 of 2008.
22. The alleged contempt was that, the 2nd defendant executed a sale deed in favour of the 6th respondent, i.e., the 10th defendant herein. However before the Contempt Court, the second defendant counsel submitted that, the entire sale consideration had been returned to the 10th defendant (6th respondent therein), therefore both the 2nd defendant and 10th defendant were willing to execute the cancellation of the sale deed. Therefore, a 15/111 http://www.judis.nic.in C.S.No.710 of 2002 direction was given by the Division Bench in the said contempt proceeding to the concerned Registrar to receive the document of cancellation of the sale deed and register the same in accordance with law. Thereby a subsequent sale deed executed by D2 in favour of the third party who was subsequently impleaded as 10th defendant, had been cancelled.
23. In that juncture, an application was filed by the defendants 7, 8 and 9 in A.No.2448 of 2014 in C.S.No.710 of 2002 seeking a prayer that, the Exs.P.1, P2 and P21, they are, the two sale deeds by which the suit properties were purchased by the father and mother of the plaintiffs and also the original deed of family arrangement dated 29.04.2002, to refer to the Assistant Director, Forensic Laboratory, Chennai to examine the disputed documents more particularly with regard to the signatures of the Exs.P.1, P.2 and P.21, age of the stamp papers and age of the ink and submit a report to the Court.
24. The said application was rejected by the learned Judge, by order, dated 04.06.2014. As against the said order of the learned Judge in the 16/111 http://www.judis.nic.in C.S.No.710 of 2002 Original Side, O.S.A.No.165 of 2014 was filed, where a Division Bench of this Court, on 18.09.2014 by a detailed order, confirmed the order passed by the learned Judge. Subsequently it seems that, since the first defendant, namely, CT.C.Nachiyappa Chettiyar, according to the plaintiffs, is a fictitious character, as the second defendant perpetrated the first defendant to be impersonated as CT.C.Nachiyappa Chettiyar and claimed that from whom he got a power in respect of suit property, dated 06.09.2001 and since the said Nachiyappa Chettiyar being the D1 has not appeared before this Court and his whereabouts were not known to anyone including D2, to set the D1 exparte and to pass a decree in the suit in C.S.No.710 of 2002 against the first defendant, the plaintiffs made application under Order VI Rule 11 of the Original Side Rules.
25. The said application since was dismissed by the learned Judge, by order, dated 01.12.2014, the plaintiffs preferred O.S.A.No.65 of 2015. While deciding the said O.S.A, a Division Bench of this Court, by order, dated 09.09.2015 has come to the conclusion that, the plaintiffs were entitled to get a decree against the first defendant by invoking Order VI 17/111 http://www.judis.nic.in C.S.No.710 of 2002 Rule 11 of Original Side Rules and therefore such course of action can very well be taken and can be proceeded by the learned single Judge of the Original Side and accordingly, the said O.S.A.No.65 of 2015 was allowed by a Division Bench of this Court by order dated 09.09.2015. Pursuant to the clearance of decks for the learned Judge to decide the suit and pass a decree exparte against D1, a learned Judge of this Court, after having taken note of all these developments and by considering Exs.P.1 to P.52 filed in this regard on behalf of the plaintiffs, has passed a detailed Judgment and Decree, dated 02.03.2016 to and in favour of the plaintiffs against D1 by granting permanent injunction against him in respect of suit properties as prayed for by the plaintiffs. However, the second part of the prayer to seek for damages by the plaintiffs was not given, as the learned Judge stated that the same cannot be adjudicated at that stage. Accordingly, the suit was partly allowed with the Judgment and Decree for permanent injunction against the first defendant alone with the cost of the suit.
26. It is pertinent to be noted that, the said Judgment and Decree, dated 02.03.2016 made in C.S.No.710 of 2002, of course against the first 18/111 http://www.judis.nic.in C.S.No.710 of 2002 defendant, has not so far been appealed, varied or set aside, therefore it has, as of now, become final.
27. Only at this juncture, now the plaintiffs have made an endorsement on 08.01.2019 through their lawyer in the suit plaint that, they wanted to withdraw the suit against D2 to D6 who are originally D2 and D7 to D10. The said move on the part of the plaintiffs is opposed by the learned counsel appearing for the defendants, especially D2 who is the main contesting defendant. Also the learned counsel appearing for both sides have made submissions on the two applications, namely A.No.2039 of 2016 and A.No.2579 of 2016.
28. In respect of A.No.2039 of 2016, the prayer is that, the plaintiffs seek for delivery of possession of the suit property, which is in custodia legis by the orders of this Court. In A.No.2579 of 2016 filed by the second defendant, the prayer is, to refer Exs.P.1 and P.2 to the Forensic Lab so as to test their age, genuineness, particularly comparing with the handwriting / signature of the executants, Sub-Registrar, in Ex.P.1 and Ex.P.2 with handwriting / signature in the contemporary documents provided. 19/111 http://www.judis.nic.in C.S.No.710 of 2002
29. In the first part, insofar as the prayer sought for in A.No.2039 of 2016 which is coupled with the request of the plaintiffs to seek permission to withdraw the suit as against D2 to D6, the learned counsel appearing for the plaintiffs Mr.P.L.Narayanan has made detailed submissions. He has stated that, in view of the Judgment and Decree, dated 02.03.2016 made against D1 granting permanent injunction against D1, his men and agents or anyone claiming under him in respect of the suit property, which was granted in favour of the plaintiffs, based on the title of the plaintiffs on the strength of Exs.P.1, P.2 and P.21, the said decree would bind all other defendants, i..e, Defendants 2 to 6 now and therefore, if at all the plaintiffs want to withdraw the suit against the defendants 2 to 6 on the ground that, the relief granted by this Court, by decree, dated 02.03.2016 against D1 itself is suffice, the defendants 2 to 6 do not have any independent lis against the plaintiffs and therefore in the suit filed by the plaintiffs, defendants 2 to 6 cannot put forward their case to prove their claim or to prove their title as the defendants, especially the second defendant did not come forward to file any documents except the alleged power of attorney, dated 06.09.2001 said to have been executed by D1. 20/111 http://www.judis.nic.in C.S.No.710 of 2002
30. He would further submit that, the very D1 himself is a fictitious person and in this context, there have been enough materials filed before this Court. Some of them from Revenue Department, some of them from authorities under Urban Land Ceiling Act as well as the Urban Land Tax Act and some of them from police authorities who have investigated the matter thoroughly, of course pursuant to the various orders passed by this Court, where they found that, no such person called Nachiyappa Chettiyar was residing in Kottaiyur at Sivaganga District as claimed by D2 on the strength of the power of attorney and when that being so, since the said factor having been accepted by this Court and a Decree was passed by this Court against D1, dated 02.03.2016, the second defendant claimed to be the power agent of D1 cannot step into the shoes of D1 and whatever exparte decree passed on 02.03.2016 against D1 cannot be altered, modified or tinkered with by the effort being taken by D2, as a power agent of alleged D1. Therefore unless the decree passed against D1, dated 02.03.2016 is varied, modified or set aside, on the efforts to be taken only by D1, the D2 and other defendants do not have any independent legs to stand and 21/111 http://www.judis.nic.in C.S.No.710 of 2002 therefore, they have no locus to resist the plaintiffs from obtaining permission from this Court to withdraw the suit against D2 to D6.
31. In this context, the learned counsel appearing for the plaintiffs has relied upon number of Judgments which would be discussed later on.
32. On the plea raised by the plaintiffs in A.No.2039 of 2016 seeking for delivery of possession of suit property, which is in custodia legis, the learned counsel for the plaintiffs would further contend that, of course by relying upon some of the decisions of this Court, the decree has already been made by this Court against D1, where there had been 52 Exhibits filed on behalf of the plaintiffs side were relied. There is no contra title against Ex.P.1 and Ex.P.2, which are the clear title in favour of the father and mother of the plaintiffs and based on which, Urban Land Ceiling proceedings were initiated against the father and mother of the plaintiffs and subsequently against the plaintiffs and the said Urban Land Ceiling Proceedings ended in favour of the plaintiffs by the orders of the Special Appellate Tribunal, vide order dated 10.01.2000. Also the Tahsildar 22/111 http://www.judis.nic.in C.S.No.710 of 2002 concerned, by proceedings, dated 13.03.2003 (Ex.P.33) has given a clear finding in response to the query raised by the plaintiffs that what were all the documents produced by the defendants, especially D2 are fabricated documents, as those documents with their signature did not tally with the Zonal Deputy Tahsildar's signature who worked during the relevant period. On the strength of these documents of plaintiffs, since they have been accepted by this Court, ultimately a decree was passed against D1, dated 02.03.2016, as per the legal position as has been envisaged in number of decisions relied upon by him on this point, the plaintiffs would alone be entitled to get back the possession of the property which is in custodia legis and therefore, the plaintiffs are entitled to get delivery of possession of the property in question which is in custodia legis from this Court, therefore he seeks indulgence of this Court to allow A.No.2039 of 2016.
33. On the other hand, Mr.P.Subba Reddy, learned counsel appearing for the second defendant has made vehement contention that, the plaintiffs ought not to have filed only a bare injunction suit and if at all, according to the plaintiffs, they have been dispossessed by the defendants especially D1 23/111 http://www.judis.nic.in C.S.No.710 of 2002 and D2, they should have filed a suit for recovery of possession and injunction and such a prayer has not been sought for in the suit, therefore the suit for bare injunction is defective one.
34. He would also submit that, in order to get possession of the property in question, the plaintiffs should have established their title and insofar as the title which they claimed through Exs.P.1, P.2 and P.21 are concerned, they are, according to D2, forged or fabricated documents. Therefore on the strength of those documents, the plaintiffs cannot claim title over the property and since there has been defect in the title of the plaintiffs, they are not entitled to get any relief as sought for in the suit, even the bare injunction or injunction simpliciter.
35. The learned counsel for D2 would also contend that, if the documents in question especially Exs.P.1, P.2 and P.21 are referred to Forensic Science Laboratory, to verify the age of the ink as well as the signature of the parties of those documents comparing with the contemporary documents, then only the genuinity of the documents as 24/111 http://www.judis.nic.in C.S.No.710 of 2002 claimed by the plaintiffs can be ascertained. Unless and until the genuinity of those documents are ascertained beyond doubt by this Court, on the strength of those documents, the plaintiffs cannot seek any relief on the suit property.
36. He would also submit that, on the other hand, the second defendant has got the power from the original owner, i.e., D1 on 06.09.2001 and the said power is a registered power of attorney. In the said power, all deeds to be undertaken for the exploitation and development of the suit property since has been entrusted to or in this regard, D2 has been permitted to by D1 and pursuant to which, the property in question has been started exploiting and subsequently, some sales also had been effected by D2 in favour of the other defendants and only at that juncture, this Court had suspended the power, therefore the property on the volunteer surrender of D2 has been now in the custody of the Court as custodia legis.
37. In this context, the learned counsel appearing for D2 would also contend that, first of all, the plaintiffs, without proving the genuinity of the 25/111 http://www.judis.nic.in C.S.No.710 of 2002 documents, especially Ex.P.1 and Ex.P.2, which according to the plaintiffs are conferring the title on them, cannot escape from the clutches of law by snatching the order of exparte decree, dated 02.03.2016 only in respect of D1. He would further submit that, though D1 is the owner of the property and who executed the power in favour of D2, after some time D2 could not contact D1 and his whereabouts also were not known to D2 and he could not appear before this Court pursuant to the summons issued, thereby he has been absent in this suit, therefore D1 was set exparte and exparte Decree and Judgment was passed by this Court, dated 02.03.2016 against D1.
38. After getting such an exparte decree, now the plaintiffs want to withdraw the suit against the other defendants, especially D2, who is the main contesting defendant and in fact, in this regard, in order to establish the title flow to and in favour of the second defendant, he wants to prove his case, therefore he also filed an application to transpose him as a plaintiff to continue the suit, and that is also since is pending, the plaintiffs easily cannot escape by withdrawing the suit against D2 to D6, therefore the said plea made by the plaintiffs cannot be be permitted and therefore it has to be rejected, he contended.
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39. In support of his contention, the learned counsel appearing for the second defendant has relied upon some of the decisions of the Law Courts.
40. In respect of the prayer sought for in A.No.2579 of 2016 filed by D2, the learned counsel for D2 has contended that, as has been submitted earlier, unless the genuinity of Exs.P.1, P.2 and P.21 are made known before this Court beyond any reasonable doubt by way of Forensic Science Report, it cannot be conclusively decided the title of the property in question in favour of the plaintiffs, therefore in order to ascertain such genuineness of Exs.P.1 and P.2, those documents are to be referred to the Forensic Science Lab for getting a report with regard to the age, signature of the document in question. Therefore the learned counsel appearing for the second defendant would contend that, this application should be allowed and once that application is allowed, certainly the genuinity of the document can easily be ascertained by this Court and only thereafter whether the plaintiff is entitled to claim the relief of injunction against the defendants, especially D2 can also be decided. Till such time, the suit shall be kept pending before this Court for adjudication and therefore, at this juncture, the suit cannot be 27/111 http://www.judis.nic.in C.S.No.710 of 2002 permitted to be withdrawn as desired by the plaintiffs against D2 to D6. Therefore the said plea of withdrawing the suit also to be rejected and the A.No.2579 of 2016 is to be allowed by this Court, he contended.
41. The learned Senior counsel appearing for the other defendants, Mr.Murugamanickam, also made submissions stating that, they are the genuine purchasers of the part of suit property from the lawful owner, i.e., the first defendant who sold the property through the second defendant, who stood as a power agent of first defendant and therefore, their interest should be protected. Since they invested huge money in purchasing the properties, they are genuine purchasers and therefore, their right over the property in question cannot be easily brushed aside by merely allowing the plaintiffs to withdraw the suit against all the defendants including them and if such a permission is granted by this Court, the lawful right of these defendants who are the subsequent purchasers of the part of the suit property would get defeated and in that case, they would be greatly prejudiced and therefore the learned counsel appearing for the other defendants also would support the case of D2 and seeks indulgence of this Court on that line. 28/111 http://www.judis.nic.in C.S.No.710 of 2002
42. I have considered these rival submissions elaborately made by the learned counsel appearing for the parties and have perused the materials placed before this Court.
43. Before deciding the issue as to whether the plaintiffs are entitled to seek indulgence of this Court for permission to withdraw the suit against D2 to D6, let me take up the relevant developments taken place in this suit before filing of the suit as well as during the pendency of the suit for all these years which would throw some light on the issue which is now to be decided in this lis.
44. The basic documents under which the plaintiffs trace title is Exs.P.1 and P.2. Ex.P.1 is the sale deed executed by K.M.Lakshmanan in favour of Periakaruppan Chettiyar, who is the father of the plaintiffs. Like that, Ex.P.2 was executed by the same vendor in favour of Meiyammai Achi who is the mother of the plaintiffs. That is how both the suit properties have been bequeathed in favour of the parents of the plaintiffs. Both Exs.P.1 and P.2 are registered documents.
29/111 http://www.judis.nic.in C.S.No.710 of 2002
45. When a police enquiry was conducted as to the impersonation allegation made against D1 and D2 and also pursuant to the direction issued by this Court in a related proceedings on the criminal side to have an enquiry about the genuinity of Exs.P.1 and P.2, the vendor K.M.Lakshmanan who was alive at that time has given a statement before the police under Section 161 of Cr.P.C on 30.10.2006, which reads thus :
"jpU/K.M.byl;Rkzd;. M/t/81/06.
j/bg/Fkug;g brl;oahh;. vz;/3. lhf;lh;
ehah; nuhL. jp/efh;. brd;id 600 017.
vd;gtuJ thf;FK:yk;/
ehd; nkw;go tpyhrj;jpy; trpj;J
tUfpnwd;/ ehd; jw;nghJ AVM !;Lonah
nrul;oapy; ml;itruhf cs;nsd;/
7/12/1960k; njjp b$k;kp g[rr
; p byl;Rkp
eurpk;kd; mth;fs; tifawhf;fs;
trkpUe;J 7/12/1960-k; tUlk;
lhf;Fbkz;l; vz;/4159/1960-y; nkw;go
egh;fspd; epyj;ij jp/efh; rg; bu$p!;lh;
Mgprpy; gjpt[ bra;J ehd; th';fpndd;/
nkw;go epyj;ij gpshl;Lfshf gphpj;J
tpw;nwd;/ mjpy; 10 fput[z;l; 1600
30/111
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rJumo epyk; PLT No.47, 48, 49, 50, 55, 56,
57, 58 bkhj;jk; 8 gpshl;Lfis 8/12/1960-k;
tUlk; Doc.No.4177/1960-y; fhiuf;Fo
Tr.Vr.Rm.RR bghpa fUg;gd; brl;oahh;
mth;fSf;F jp/efh; rg;bu$p!;lh; Mgp!py;
itj;J gj;jpug; gjpt[ bra;J
bfhLj;njd;/ me;j ,lk; md;iwa
njjpapnyna brd;id khefuhl;rpf;F
cl;gl;lJ jhd;/ me;j njjpapy; rh;nt
vz;/158y; gpshf; 2 cl;gl;lJ jhd;/
md;iwa gj;jpug; gjptpYk; bjspthf
Fwpg;gplg;gl;Ls;sJ/ mjd; gpwF
20/2/1961k; njjp lhf;Fbkz;l;
vz;/547/1961/ nkw;go bghpa fUg;gd;
brl;oahh; mth;fs; kidtp
P.R.bka;ak;ik Mr;rp mth;fSf;F gpshl;
vz;/51.52.53.54 bkhj;jk; 4 gpshl;Lfs;
nrh;e;J bkhj;jk; 6 fput[z;il jp/efh;
rg;hp$p!;lh; mYtyfj;jpy; gjpt[ bra;jJ
25/2/1961k; njjp MFk;/ gj;jpuk; vGjp
(4) ehd;F khjj;jpw;Fs; gj;jpug;gjpt[
bra;ayhk; vd;gJ vdf;F ed;whfj;
bjhpa[k;/ nkw;go epy';fis nkw;go
,UtUf;Fk; ehd; jp/efh; rg;bu$p!;lh;
mth;fs; Kd;dpiyapy; jk; ,k;gpurd;
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bu$p!;lhpy; 24/2/1961y; ehd; ifbahg;gk;
,l;Ls;nsd;/ mnjnghy; Doc.No.4177/60y;
cs;sjw;Fk; jk; ,k;gpurd; bu$p!;lhpy;
ifbahg;gk; ,l;Ls;nsd;/ me;j
gj;jpu';fspy; cs;s ifbahg;g';fspy;
ehd; jhd; ifbahg;gkpl;Ls;nsd;/ ,d;W
Ma;thsh; mth;fs; vd;id tprhhpf;f
ele;j cz;ikfisr; brhd;ndd; goj;Jg;
ghh;j;njd; rhpahf ,Ue;jJ/"
46. In the said statement, the said Lakshmanan has categorically stated that, he was the owner of the property, as he purchased the same from Jemmi Puchilakshmi Narasimhan sometime in 1960 and out of the larger extent, he developed a layout and the first property consisting of 10 Grounds 1600 Sq.ft was sold by Ex.P.1 to the father of the plaintiffs and the second property of 6 Grounds sold under Ex.P.2 to the mother of the plaintiffs. These factors have been stated by him by his statement in Ex.P.52.
47. The plaintiffs father and mother made a statement in Form No.1 under the Tamil Nadu Urban Land Ceiling and Regulation Rules 1976 about 32/111 http://www.judis.nic.in C.S.No.710 of 2002 the total vacant land held by them in Ex.P.3, where they have declared both the suit properties, this was made on 29.10.1976. Under Ex.P.4, the competent authority under ULC Act has prepared a draft statement, where also the name of the parents of the plaintiffs have been mentioned in respect of the suit properties. The Urban Land Tax Authorities also assessed the suit properties for urban land tax and passed orders on 25.04.1988 under Ex.P.5, where the suit properties in the name of the parents of the plaintiffs have been covered.
48. The mother of the plaintiffs on 24.08.1989 sent a draft for a sum of Rs.3,254.70/- towards ULT in respect of the 2nd property. Thereafter also under Ex.P.7, the State Government through Joint Secretary, Revenue Department, sent a letter to the mother of the plaintiffs on 23.10.1989 requiring her to make the Court fee stamp for considering her request to give exemption from the ULC proceedings. Ex.P.8 is the receipt issued by ULT authorities. Like that, several letters and correspondences had been their between the parents of the plaintiffs and the ULC and ULT authorities at various point of time, which have been shown as Exhibits on behalf of the plaintiffs.
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49. On 10.01.2000, in the Transfer Petition Nos. 375, 444 and 445 of 1999 filed by the plaintiffs, which were transferred from this Court, the Tamil Nadu Land Reforms Special Appellate Tribunal has passed the following order :
"Heard both Counsel. It is stated by both Counsel that possession has not been taken over in this matter. Hence in view of Section 4 of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act 1999 (Tamil Nadu Act 20/99) all further proceedings in this matter shall abate. TRP.375/99 is disposed of accordingly."
50. Similar orders were passed in all these petitions by the Special Tribunal. The land in question are the suit property which had been under the clutches of the proceedings of the ULC. Ultimately it has been released by the orders passed by the Special Tribunal, dated 10.01.2000 in separate writ proceedings filed before this Court, which were subsequently transferred to the Special Tribunal and renumbered as TRP. 34/111 http://www.judis.nic.in C.S.No.710 of 2002
51. Thereafter also continuous payment seems to have been made by the plaintiffs towards Urban Land Tax at several point of time and those documents also had been filed by the plaintiffs as Exhibits. Under Ex.P.20, the Assistant Commissioner of ULT by proceedings, dated 18.07.2002 has recorded the following :
"cj;jut[ jpU/tp/Mh;/Mh;/vk;/gp/Mh;/ bghpa fUg;gd; vd;gUf;F rhypfpuhkk; gpshf; 6 Ys;s fPH;f; fhQqk; epy';fSf;F ghh;it xd;wpd; fz;l cj;jputpd;go efh;g[w epyth;
jkpH;ehL efh;g[w epythp jpUj;jr; rl;lk; 1975d;go
mtuJ bgahpy; efh;g[w epythpahf U:/1084/90
tpjpf;fg;gl;lJ/
fpuhkk; gpshf; vz;/ g[y vz;/ gug;g[
---------------------------------------------------------------------------------
rhypfpuhkk; 6 21 0.0635
6 22 10.1863
---------------------------------------------------------------------------------
2) jkpH;ehL efh;g[w epyth;r; rl;lk; 1966
jpUj;jr; rl;lk; 1991d;go efh;g[w epythp tpjpg;gJ
bjhlh;ghf 4rp mwptpg;g[ t/tp/vz;/5 / gpshf;6 /
rhypfpuhkk; ehs;/ 28/2/2001 d;go
jpUkjp/gp/Mh;/bka;ak;ik Mr;rp bgahpy; tH';fg;gl;lJ/
35/111
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mjidg; bgw;Wf; bfhz;L epyjhuhpd; kfd;
jpU/gp/Mh;/tPug;gd; vd;gth; 3/4/2001 md;W tprhuizf;F M$uhfp jdJ jfg;gdhh; jpU/bghpa fUg;gd; vd;gth;
10/4/86 njjpapYk; jdJ jhahh; jpUkjp/bka;ak;ik Mr;rp vd;gth; 8/7/95 njjpapYk; fhykhfp tpl;ljhf bjhptpj;Js;shh;/ jdJ jfg;gdhUf;F fPH;f;fhQqk; 11 egh;fs; thhpRjhuh;fshf cs;sdh; vd;gjw;F Mjhukhf fhiuf;Fo tl;lhl;rpahplkpUe;J bgwg;gl;l rhd;W vd;/o!;/7842/86 ehs; 18/8/86 efy; jhf;fy; bra;jhh;/
---------------------------------------------------------------------------------
t/vz;/ thhpRjhuh;fs; bgah; cwt[
---------------------------------------------------------------------------------
1) jpUkjp/bka;ak;ik Mr;rp kidtp
2) jpUkjp/ts;spak;ik kfs;
3) jpU/gp/Mh;/uhkrhkp kfd;
4) jpU/gp/Mh;/bghpa fUg;gd; vd;fpw
Rg;ukzpak; kfd;
5) jpU/gp/Mh;/ehuhazd; kfd;
6) jpUkjp/jp/kPdhl;rp kfs;
7) jpU/gp/Mh;/gHdpag;gd; kfd;
8) jpU/gp/Mh;/mHfg;gd; kfd;
9) jpU/gp/Mh;/tPug;gd; kfd;
10)bry;tp/mgpuhkp kfs;
11)bry;tp/tprhyhl;rp kfs;
3) 1/7/91 njjpapy; epyjhuh; jpU/bghpa fUg;gd;
capUld; ,y;yhjjhy;. nkw;go. epyk; mtuJ 11
thhpRjhuh;fSf;Fk; clikahf ,Ue;Js;sJ/ vdnt
rhypfpuhkk; gpshf; 6 g[y vz;/22Ys;s 10 fp/ 1978
36/111
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r/mo epyj;jpid 11 egh;fSf;Fk; g';fPL bra;a[k;nghJ egh; xUtUf;F 2362 r/mo epyk; kl;Lnk ifg;gw;whf tUfpwJ/ epyjhuh; xt;bthUthpd; clika[k; ,uz;L fput[z;Lf;Fk; Fiwthf ,Ug;gjhy;. ,t;tpdk; rl;lk; gphpt[ 29(V) d; fPH; tpyf;F bgWtjhy; rhypfpuhkk; gpshf; 6 g[y vz;/22Ys;s epyj;jpw;F 1991k; Mz;L jpUj;jr; rl;lg;go thptpjpg;g[ ,y;iy vd ,jd; K:yk; Mizaplg;gLfpwJ/ cjtp Mizahsh;.
efh;g[w epythp. jp/efh;.
brd;id/ 24/"
52. Ex.P.22 series dated 12.09.2002 are the pattas issued by the Revenue Department to the plaintiffs. Ex.P.23, dated 01.10.2002 is the complaint given by the plaintiff to the Deputy Commissioner of Police, Egmore, Chennai, against the first and second defendants. Thereafter a notice was issued on behalf of the plaintiffs by their counsel seeking to produce the certified copy of the sale deed claimed by the first defendant and the relevant portion of the said notice of the plaintiffs counsel reads thus :
"You are hereby called upon to produce certified copy of the aforesaid Sale Deed and in case if it is not readily available please furnish the date of the 37/111 http://www.judis.nic.in C.S.No.710 of 2002 Sale Deed, the Document Number and the name of the Sub-Registrar's office concerned, if you fail to do so, a true copy of this notice will be placed before the Hon'ble High Court so as to impress the Hon'ble High court to draw adverse inferences against your client, 1st Respondent / 1st Defendant."
53. But the fact remains that, no response was from the first defendant to the said notice issued on behalf of the plaintiffs, this was filed as Ex.P.25. Then, series of Encumbrance Certificates under Ex.P.26 series taken in the month of December 2002 and January 2003 also had been filed on behalf of the plaintiffs.
54. Again on 11.01.2003 under Ex.P.27 further police complaint was given to the Inspector of Police, Virugambakkam Police Station against the defendants by the plaintiffs. Further police complaint under Ex.P.30, dated 21.02.2003 was given by the plaintiffs to the Joint Commissioner of Police (Crime), Egmore, Chennai.
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55. Ex.P.32 is the deposition of D2 Rathineswaran before the learned Master of this Court in Cont.P.No.173 of 2003 and related sub-applications, where he has stated that, it is the stand now that, one Sivaramachandran was impersonating CT.C.Nachiyappan and the second defendant deposed he had never seen that, Sivaramachandran and he did not know him. He also stated in the deposition that, he did not know the whereabouts of the said CT.C.Nachiyappa Chettiyar. D2 claimed that, the said Nachiyappa Chettiyar was introduced by one of his friend one M.U.Liyakath Ali of Tirupattur, whom he knew about 20 years and he only brought Nachiyappa Chettiyar to him, therefore at the instance and the assurance given by his friend M.U.Liyakath Ali, he had come forward to purchase the suit property from that Nachiyappa Chettiyar and accordingly, he paid a sum of Rs.40 lakhs only in cash and in response to the same, the Nachiyappa Chettiyar executed the power of attorney in question to and in favour of D2.
56. When he was questioned by the Lawyer on behalf of the plaintiffs to produce the three sale deeds or sale transaction the D2 entered subsequently with the third parties, who are the other defendants, to produce 39/111 http://www.judis.nic.in C.S.No.710 of 2002 those documents before the Court for scrutiny, he has stated in the cross- examination that, he would consult his lawyer and tell. It was also stated by D2 before this Court in the said deposition that, his principal, i.e., D1 had given original revenue records like TSLR copy, patta, land survey notice etc.,
57. In this context, it is to be noticed that, all those documents produced by D2 claimed to have been given by D1 since had been referred by the plaintiffs to the Tahsildar concerned, who after scrutinising the same, under Ex.P.33, has categorically stated that, the xerox copies, i.e., photo copies produced by the plaintiffs for verification were fabricated documents, that means, the documents produced by D2 are fabricated documents. The relevant portion of the communication of the Tahsildar concerned under Ex.P.33 reads thus :
"You have enclosed xerox copies of the following documents, stated to have been issued by this office.
1.Patta in Form No.11 for 59 cents in S.No.158/22 stated to have been issued by the Zonal Deputy 40/111 http://www.judis.nic.in C.S.No.710 of 2002 Tahsildar on 27.2.2000.
2.Chitta extract for S.No.158 pt measuring H.2.24.13.5 sqm. stated to have been issued by the Zonal Deputy Tahsildar on 27.2.2000.
3.Adangal extract for S.No.6/22 Old S.No.158 pt stated to have been issued by the Zonal Deputy Tahsildar on 27.2.2000.
4.TSLR Extract issued by the Tahsildar E.N. Taluk for the tands in TSNos.17, 18/2, 19, 21 and 22 Block No.6
5.Patta in Form 11 for 59 cents in S.No.158/22 stated to have been issued by the Zonal Deputy Tahsildar on 12.4.2002.
6.Chitta Extract for S.No.158 pt Block No.6 measuring H.0.24.13.5 sqm. stated to have been issued by the Zonal Deputy Tahsildar on 12.4.2002.
All the Xerox copies (except Item No.4) produced by you are fabricated documents. The signatures in these documents did not tally with that of the Zonal Deputy Tahsildars who worked during the relevant periods. I, therefore request you to intimate the person who has given these documents for taking appropriate action.41/111
http://www.judis.nic.in C.S.No.710 of 2002 It appears that the TSLR Extracts (Xerox copy) mentioned in item No.4 above has been signed by my predecessor and it reflects the exact entries in the TSLR as on 28.3.02."
58. The Village Administrative Officer concerned of the Kottaiyur, Karaikudi Taluk has given the following certificate on 24.05.2003, i.e., Ex.P.34 which reads thus :
"rhd;wpjH;
rptbf';if khtl;lk; fhiuf;Fo tl;lk;
nfhl;ila{h; FU:g; 13-1-9 bg/K/tPjp
nfhl;ila{h; vd;w Kftupapy;
CT/brhf;fyp';fk; brl;oahh; kfd;
ehr;rpag;g brl;oahh; vd;W ahUk;
jw;nghJ ,e;j Kfthpapy; trpf;ftpy;iy
vd;gij cWjp bra;J rhd;W
tH';Ffpnwd;/"
59. Pursuant to the enquiry sought for in Cont.P.Nos.166 and 173 of 2003 filed by the plaintiffs against D1 and D2, the Inspector of Police, Crime Branch CID, Sivaganga District has filed an affidavit before this 42/111 http://www.judis.nic.in C.S.No.710 of 2002 Court in the said contempt proceedings, dated 22.07.2005 having the following content :
"Enquiry with important and responsible persons at Kottaiyur village and with revenue officials has revealed that one Sivaramachandran Aged 72/05, S/o.Chinnaiya Chettiyar registered a document to one T.R.Rathineswaran in the name of Nachiappachettiyar who is original owner of the land situated in Saligramam, Madras. He has two wife namely Lakshmi aged 70/05 and S.Thaiyammal @ Helan bai, aged 70/05 and begot four female children by his first wife and three male children two female children by the second wife. Sivaramachandran worked as a village munshif and was dismissed from the service during 1964 for misappropriation of the government money. He is the native of Chendurai near Natham. After dismissal he was doing textile business and living with his second wife at 1/985, Anna Nagar, Natham Taluk, Dindigul District. Further it is submitted that said Sivaramachandran, S/o. Chinnaiah Chettiyar admitted in Ramakrishna Hospital, Natham on 4.7.05 and then referred to 43/111 http://www.judis.nic.in C.S.No.710 of 2002 Gunasundari Bose Hospital, Madurai for further treatment. On 6.7.05 at 9.15 pm, Sivaramachandran died due to Cardio pulmonary arrest due to brain stem Herniation due to massive vermicular Hemorrhage. The attested death certificate obtained from Gunasundarai Bose Hospital is herewith submitted for favour of perusal.
Further it is submitted that the statements were recorded from his first wife Lakshmi, second wife Tmt.Thayammal @ Helam bai, daughters Julia and Thanselvi and submitted for perusal. Discreet enquiry made has discharged disclosed that Sivaramachandran and Nachiappachettiyar are one and the same person. Sivaramachandran, S/o. Chinnaiah Chettiyar impersonated himself as Nachiyappa Chettiyar, S/o. C.T.Chokkalinga Chettiyar and made the said transaction.
Further it is humbly submitted the said C.T.C.Natchiyappa chettiyar @ Sivaramachandran expired, hence the contempt petition may kindly be disposed off on merits and render justice."44/111
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60. Like that, in W.P.No.47616 of 2006 filed by the plaintiffs, where the Inspector of Police, Crime Branch CID, Sivaganga District is also a party, the said respondent, i.e., the Inspector of Police, Crime Branch CID, Sivaganga District, has filed an affidavit on 17.05.2010, where he stated the following :
"2.Our investigation reveals that the writ petitioner's father RM.PR.Periyakaruppan Chettiar Purchased large extent of land measuring about 10 grounds and 1600 Sq.ft. at Kumaran Colony, 2nd Street, Saligramam Village, Chennai - 600 093 from K.M. Lakshmanan on 08.12.1960 by a registered sale deed bearing Document No.4177 of 1960 on the file of the Sub-Registrar, T.Nagar, The adjacent piece of land measuring about 6 grounds belonged to the petitioner's mother PR.Meyyammai Achi. The Petitioner's father died on 10.04.1986 and mother died on 08.07.1995. Subsequently their legal heirs PR.Veerappan, PR.Ramasamy (Since deceased), PR.Palaniappan the petitioner herein, PR.Veerappan, PR.Alagappan have been taking care of the property and were in possession.45/111
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3.Enquiry with important and responsible persons at Kottaiyur village and with revenue officials has revealed that T.R.Rathineswaran arranged for registration of a Power of Attorney in his favour asking said Sivaramachandran to sign as CT.C.Nachiappa Chettiar, after learning that the property belonged to Chettiar family.
4.Upon further enquiry it was known that the said impersonator Sivaramachandran who called himself as CT.C. Nachiappa Chettiar was originally from Chendurai near Natham. He had two Wife viz., Lakshmi and S.Thaiyammal @ Helan Bai and he had 4 female children by his first wife and 3 male children, 2 female children by the second wife. When he worked as a village Munsif he was dismissed from service during 1964 for misappropriation of Government money. After dismissal he was doing textile business and living with his second wife at Anna Nagar, Natham Taluk, Dindigul District.
5.Further enquiry with the original owners of Door No.13.01.9, P.M. Street, Kottaiyur, Sivagangai District which was the address given by said Sivaramachandran as his and his so called 46/111 http://www.judis.nic.in C.S.No.710 of 2002 fictitious father CT.Chokkalingam's residential address in all documents i.e., Death Certificate of CT.Chockkalingam Chettiar and Legal Heirship Certificate of CT. Chokkalingam Chettiar, We were informed that nobody by name CT.C.Nachiappa Chettiar, Son of Chokkalingam Chettiar Lived in their building at Door No:13-1-9, P.M. Street, Kottaiyur Sivagangai District. 6.The said Sivaramachandran, S/o.Chinnaiah Chettiar admitted in Ramakrisha Hospital, Natham on 04.07.2005 and Subsequently referred to Gunasundari Bose Hospital, Madurai for further treatment. On 06.07.2005 at 9.15 p.m. Sivaramachandran died due to Cardio Pulmonary arrest due to brain stem Herniation due to massive Vermicular Hemorrahage.
7.T.R. Rathineswaran is the perpetrator of the offence of impersonation committed by Sivaramachandran and T.R. Rathineswaran has also brought about various fictitious documents.
Such as death Certificate of non-existent
CT.Chokalingam Chettiar, forged revenue
documents etc. He has made money be effecting sale of the property to 3rd parties. Thus the said 47/111 http://www.judis.nic.in C.S.No.710 of 2002 Sivaramachandran at the behest of T.R.Rathineswaran has impersonated the fictitious character CT.C.Nachiappa Chettiar."
61. With the strength of these documents, the plaintiffs projected their case before this Court. Initially an injunction was granted by this Court by order, dated 10.10.2002. Since it was said to have been floated by defendants, especially D2 as D1 never appeared before this Court, a learned Judge of this Court in Cont.P.No.173 of 2003, dated 21.04.2006 has suspended the operation of the power, dated 06.09.2001 and the relevant portion of the said order reads thus :
"In these circumstances, to preserve the property until further orders, I am inclined to suspend the operation of the registered power of attorney dated 6.9.01 shown to have been executed by the first respondent in favour of the second respondent until further orders. Call on 12.6.06."
62. Then yet another contempt petition in Cont.P.No.325 of 2006 was moved by the plaintiffs before a Division Bench of this Court, where the 48/111 http://www.judis.nic.in C.S.No.710 of 2002 learned counsel at that time appeared for D2 conceded before the Court that, part of the property in question has been sold and third party purchaser has been put in possession of the same. Having taken note of the violation on the part of D2, the Division Bench in the contempt proceeding has declared that, the said transaction shall not have any legal effect. The relevant portion of the order reads thus :
"If that be so, since the transaction has not only attracts lis pendens but also contrary to the direction issued by the Division Bench of this Court, dated 24.11.2003 and therefore, I am of the considered view, suffice it to direct that the same shall not have any legal effect and consequently Mr.Narayanan, is at liberty to work out his rights in appropriate proceedings, ofcourse without prejudice to the rights of the parties, including the 3rd party purchaser, in a manner known to law."
63. Thereafter when O.A.No.709 of 2002 came up for further hearing, the learned Judge had directed the D2 to file an affidavit for surrendering the possession of the property in question to the custody of the Court and accordingly, the Court by order, dated 11.03.2008 directed that the suit 49/111 http://www.judis.nic.in C.S.No.710 of 2002 property shall be in custodia legis. The relevant portion of the order reads thus :
"6. After hearing the learned counsel for the plaintiffs and the second respondent, the counsel for the second respondent agreed that his client is prepared to hand over possession to this Court. The learned counsel for the plaintiffs also agreed to the suggestion. Therefore, the second defendant or any of his alienees are directed to file an affidavit, within a week surrendering the possession of the property to the custody of the Court. The plaintiffs shall erect a Notice Board in the property informing the public that the property is under the physical custody of this Court in pursuance of the orders passed in O.A.No.709 of 2002 in C.S.No.710 of 2002 indicating the names of the parties also. Till the disposal of the suit, the property shall be deemed to be in the custody of the Court. I also make it clear that the prayer of the plaintiffs in the suit for a bare injunction shall not be defeated on the technical ground that the Court is in possession of the property and that therefore, they are not entitled to seek a decree of permanent 50/111 http://www.judis.nic.in C.S.No.710 of 2002 injunction. This order is passed without prejudice to the rights of both the parties. Call this application on 18.3.2008 for the second respondent / second defendant and any of his alienees to file the affidavit surrendering the possession of the property to the Court."
64. Thereafter also, further contempt petition had been filed by the plaintiffs in Cont.P.Nos.731 of 2008 and 583 of 2009, as the plaintiffs noticed continuous floating of the orders of this Court by D2 by creating third party right in respect of suit property, where the original 10 th defendant, the present 6th defendant's favour some part of the suit property seems to have been sold by the second defendant and when this was brought to the notice of the Division Bench in the said contempt proceedings, the Division Bench having taken note of the said development and the violation on the part of D2 has passed the following order :
"Respondents No.2, 3, 5 and 7 are present today. The first act of contempt that is alleged in the execution of a sale deed by the 2nd respondent in favour of the 6th respondent.51/111
http://www.judis.nic.in C.S.No.710 of 2002 Today, the learned counsel for the 2nd respondent submits that the entire sale considerations has been returned to the 6th respondent. Learned counsel for the 6th respondent submits that both of them are willing to execute the cancellation of the sale deed, but the Registrar is not willing to register the document because of the order of status quo.
Learned Additional Government Pleader shall instruct the Registrar to receive the document of cancellation of sale deed and register the same in accordance with law. Counsel for respondent No.2 undertakes that Respondents 3, 4 and 5 will sign this document since all of them are parties to the original sale deed."
65. Thereafter A.No.2448 of 2014 in C.S.No.710 of 2002 was filed by the defendants 3 to 5 with a prayer to refer Exs.P.1, P.2 and P.21 to the Forensic Laboratory and the same having been considered by a learned Judge of this Court was rejected through the order, dated 04.06.2014. The relevant portion of the order of the learned Judge reads thus : 52/111
http://www.judis.nic.in C.S.No.710 of 2002 "5. The only question that arises for consideration is whether the documents Exs.P-1, P-2 and P-21 should be sent for expert opinion, to give a finding with regard to the signatures found therein and the age of the stamp papers and ink.
6. The suit in C.S.No.710/2002 was instituted by respondents 1 to 6. They have produced the documents in Exs.P-1, P-2 and P-21 along with several other documents. The burden of proof is clearly on respondents 1 to 6 to prove their case.
The plaintiffs should win or lose their case on the basis of their pleadings and evidence. Exs.P-1, P-2 and P-21 are all registered documents. The documents are of the year 1960, 1961 and 2002. It is not possible to arrive at an opinion with regard to the age of the stamp papers and the age of the ink at this point of time.
7. This court, in S.Gopal vs. D.Balachandran, 2008(1) CTC 491, has already taken a view that it is not possible to examine the age of the ink. There is no question of sending these documents for expert opinion at the instance of the defendants.
8. The petitioners have already taken up a contention that the documents are not genuine.
53/111 http://www.judis.nic.in C.S.No.710 of 2002 Therefore, the burden of proof is clearly on respondents 1 to 6 to prove that the documents were all executed by the executants, whose names are shown in the respective documents.
9. While considering an application of this nature, the background facts of the case should also be taken note of. There were several proceedings between the parties earlier. These documents were the subject matter of criminal prosecution also. Police appears to have submitted a report stating that the documents are all genuine. The suit is now in the advanced stage of recording evidence. These documents were all marked without any protest. It is always open to the petitioners to make their submissions with regard to the genuineness of the documents during the time of arguments. The petitioners have also not produced any contemporary documents to compare the signatures found in Exs.P-1, P-2 and P-21. Therefore, on that ground also, the documents cannot be sent for opinion. I do not find any merit in the contention taken by the petitioners.
10. In the upshot, I dismiss the Interlocutory Application. No costs."
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66. Against the said order, dated 04.06.2014 of the learned Judge, Intra Court Appeal in O.S.A.No165 of 2014 was filed by the said defendants 3 to 5, which was heard by a Division Bench and passed an elaborate order, confirming the order of the learned Judge by rejecting the said O.S.A filed by D3 to D5.
67. Subsequently since D1 was not appeared before this court, as he is a fictitious person, according to the plaintiffs, where he has been impersonated as if CT.C.Nachiappa Chettiar as perpetrated by D2, it seems that, the plaintiffs sought for a Judgment and Decree against D1 by setting him exparte and in this regard, the plaintiffs wanted to invoke Order VI Rule 11 of Original Side Rules. However since the said move on the part of the plaintiffs was not accepted by a learned Judge of this Court, plaintiffs were triggered to file Original Side Appeal in O.S.A.No.65 of 2015, where a Division Bench of this Court, by a detailed Judgment, dated 09.09.2015, having traced out the factual matrix of the case, has allowed the said Original Side Appeal by permitting the single Judge of the Original Side to decide the plea made by the plaintiffs to pass a Judgment and Decree 55/111 http://www.judis.nic.in C.S.No.710 of 2002 against D1 alone. The relevant portion of the Judgment of the Division bench, dated 09.09.2015 are extracted hereunder for easy reference.
"7.It may also be noticed that respondents 3 to 5 had executed a sale deed in favour of the 6th respondent which was cancelled in the contempt proceedings and thus, practically all sale deeds executed by the second respondent or others have been declared not to have force of law or cancelled. In the suit proceedings, it is the claim of the appellants that the second respondent continues to obstruct the early disposal alleging that he needs to summon all the family members of the appellants and other oral evidence numbering over to 100 witnesses. In the meantime, the first respondent had stopped appearing and had not even filed a written statement and was, thus, proceeded ex parte. It is in these circumstances that the appellants claim that a decree should be passed against the first respondent under Order 6 Rule 11 of the O.S. Rules of this Court when the matter was listed before the Court by the Master on account of alleged obstructionable tactics by the second respondent. This relief was, however, 56/111 http://www.judis.nic.in C.S.No.710 of 2002 denied to the appellants by the learned Single Judge as per the impugned order dated 01.12.2014 stating that the decree could not be passed against the first respondent / first defendant alone.
8.In the present appeal, a number of orders had been passed. On 01.06.2015, we recorded the plea of the appellants that the respondents should be called upon to produce title documents through which they claim title and even if original title documents have been lost, at least the registration particulars of the title documents through which the first respondent claims title may be produced. Despite our direction, the learned counsel for the second respondent on 22.06.2015 failed to answer this question and finally conceded, as recorded in the order, that there may not be any proper title.
9.This Court was of the view that the matter was of such a nature that it should be referred to the Economic Offences Wing and the concerned officer was called. The information obtained, as recorded in our order dated 25.06.2015, is that in respect of the same land, the matter was directed to 57/111 http://www.judis.nic.in C.S.No.710 of 2002 be investigated and forgery and impersonation in documents of the respondents were found and a final report was filed before the XI Metropolitan Magistrate Court on 12.04.2013 and taken on file in C.C.No.1683 of 2013 on 17.04.2013. However, those proceedings were stayed by the learned Single Judge of this Court in Crl.O.P.No.5350 of 2014 on 17.03.2014. The counter to vacate the stay had already been filed. There was also stated to be another Crl.O.P.No.17911 of 2011 filed by the appellants. These matters were, thus, requested to be taken up by the learned Single Judge and were finally disposed of with adverse observations against the respondents. On 11.08.2015, the learned counsel for the second respondent sought an adjournment on the ground that his senior counsel was not available and the matter was deferred to 08.09.2015. None appeared for any of the respondents on that date and in the interest of justice, we listed the matter today. The position is no different today.
...
...
...58/111
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12.In the aforesaid peculiar circumstances, the question is whether a decree can at least be passed against the first respondent.
13.We do believe that the procedures are man-made procedures, as observed by the Hon'ble Supreme Court. The very purpose of introduction of the aforesaid Rule is to facilitate passing of a decree against the defendant, who absents himself. This, however, does not imply that in every case, such a decree should be passed. But, it is a matter of discretion for the Court examining the facts and circumstances of the case.
14.We have sketched out the facts aforesaid to show how the first respondent / first defendant is continuing to absent himself from the proceedings and has not even disclosed his defence. The claim of the second respondent / second defendant, who now seems to have disappeared from the scene at least before this Court, is predicated on the title of the first respondent, which was now conceded to be not valid. In these circumstances, we see no reason 59/111 http://www.judis.nic.in C.S.No.710 of 2002 why a decree is not capable of being passed under the provisions of Order 6 Rule 11 provided that the requirements under which rules under Order 6 including specifically Rule 2 are followed. It is towards this direction that the matter be now posted before the learned Single Judge, as the evidence of P.W.1 on behalf of plaintiffs is over and the learned counsel for the appellants states that there are only two formal witnesses, one being P.W.2, who is a police officer whose evidence is over and P.W.3, who is the Commissioner appointed by the Court, whose evidence is capable of being closed at this stage.
15.Original Side Appeal, accordingly, stands allowed, the impugned order is set aside and the matter be placed before the learned Single Judge on 06.10.2015. No costs.”
68. Thus, decks were cleared by the said decision of the Division Bench, dated 09.09.2015 enabling the single Judge of the Original Side to decide the plea raised by the plaintiffs side to pass a Judgment and Decree 60/111 http://www.judis.nic.in C.S.No.710 of 2002 against D1 who stood exparte. Accordingly, a learned Judge has taken up the suit and having taken note of all the aforesaid developments by exhaustively discussing various exhibits filed on behalf of the plaintiffs, has passed a Judgment and Decree, dated 02.03.2016 to the following effect :
"41. In the result, there shall be a judgment and decree for permanent injunction restraining the 1st defendant, his agents and servants any person every person claiming under him either directly or indirectly from in any way dealing with the suit properties more fully described in the Schedule hereunder or interfering with the plaintiffs use, occupation and enjoyment of the suit properties morefully described in the schedule hereunder.
42. In so far as prayer (b) is concerned, where the plaintiffs have prayed for mulcting the defendants 1 to 5 to jointly and severally pay damages, the same cannot be adjudicated at this stage.
43. In the result the suit is partly allowed. There shall be a judgment and decree for permanent injunction as against the 1st defendant alone, with cost of the suit payable by the 1st defendant."61/111
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69. Only in that circumstances, where, the plaintiffs were able to get a judgment and decree in favour of them atleast insofar as the first part of the prayer for injunction simpliciter against D1, they moved this Court now to seek permission of this Court to withdraw the suit against D2 to D6 and also consequently seek a direction from this Court to deliver the possession of the suit property, which is in custodia legis, thereby they want to allow the A.No.2039 of 2016.
70. Insofar as the genuinity of the claim of the plaintiffs for having a Judgment and Decree for a permanent injunction simpliciter, they mainly relied upon Ex.P.1 and Ex.P.2, which are the registered sale deeds in favour of the parents of the plaintiffs and also all other allied documents up to Ex.P.52. Under Ex.P.52, the vendor Lakshmanan had given a categorical statement before the police authorities under Section 161 Cr.P.C that how he purchased the property from the lawful owner sometime in 1960 and developed larger property into a layout and thereafter part of property in the layout, i.e., group of plots were sold in two separate sale deeds in the year 1960 and 1961 to and in favour of the said Periakaruppan Chettiyar and Meiyammai Achi respectively, the parents of the plaintiffs. 62/111 http://www.judis.nic.in C.S.No.710 of 2002
71. Having considered all these aspects, the learned single Judge who passed the decree in favour of the plaintiffs against D1 has categorically held as follows :
"32. In the considered opinion of this Court, the plaintiffs have established that their father and mother have purchased the suit properties under Exs.P1 and P2, which is also the subject matter of the Urban Land proceedings, wherein very many communications have been addressed to the father and mother of the plaintiffs and they also paid the land tax. Subsequently, the plaintiffs themselves got the pattas in their favour and having come to know that the 2nd defendant has indulged in criminal acts, has also lodged a complaint and during the course of investigation by CBCID of Chennai as well as Sivaganga, it came to light that the 2nd defendant with the help of Sivaramachandran, who acted to impersonate CT.C.Nachiappa Chettiar, managed to get the power of attorney and transferred some portion of the property in favour of the 3rd parties, who are arrayed as other defendants. Therefore, Issue No.1 63/111 http://www.judis.nic.in C.S.No.710 of 2002 is answered in affirmative in favour of the plaintiffs."
72. The Issue No.2 which was framed by the learned Judge is that, whether the second defendant, who is the power agent of the first defendant can step into the shoes of the first defendant and project his case. In respect of the said issue, the learned Judge has held in the said Judgment, dated 02.03.2016 as follows :
“34. The defendants 7 to 9 had filed O.S.A.No.165 of 2014, challenging the order of dismissal dated 04.06.2014, made in A.No.2448 of 2014 in C.S.No.710 of 2002, which was taken out praying for examination of disputed documents viz., Ex.P1
- Original registered sale deed dated 08.12.1960, Ex.P2 - Original registered sale deed dated 20.02.1961 and Ex.P21 - Original deed of Family Arrangement dated 24.04.2002, more particularly with regard to signatures found in the said exhibits, age of the stamp papers and age of the ink in those documents by the Forensic Laboratory and to submit a report.
35. The said appeal was taken up for final disposal by the First Bench of this Court and the judgment was authored by one of us (MSNJ). The First Bench, taking into consideration the specific case of the plaintiffs, that the 7th respondent/1st 64/111 http://www.judis.nic.in C.S.No.710 of 2002 defendant was set up by 8th respondent/2nd defendant T.R.Rathineswaran and a fictitious power of Attorney dated 06.09.2001 was executed in respect of the suit property, has observed in paragraph Nos.8 ad 9 as follows:
"8. When this appeal was listed for admission on 13.08.2014, this Court has passed the following order: "it is not disputed that the 8th respondent before us is an attorney or authorised representative of 7th respondent. The learned counsel for the appellant also appears for 8th respondent, who is stated to be available. Some doubt is raised on the very existence of the 7th respondent. To remove such doubt, let the 7th respondent remain present in the Court with some identity paper."
On behalf of the appellants/applicants, a memo dated 09.09.2014 was filed stating as follows:
"The respondents 7 and 9 remain exparte in the main suit in C.S.No.710 of 2002. Hence, the respondents 7 and 9 viz., CT.C.Nachiappan Chettiar and M/s.Om Shakthy Agencies (Madras) Pvt. Ltd., are given-up in the above O.S.A.No.165 of 2014 and miscellaneous petition. The memo may be received and appropriate suitable orders may be passed and thus render justice."65/111
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9. A perusal of the orders dated 13.08.2003 and 21.04.2006 made in Cont.P.Nos.166 and 173 of 2003 arising out of orders dated 10.10.2002 and 03.02.2003 respectively O.A.No.709 of 2002 in C.S.No.710/2002 (present suit), would disclose that the stand taken by the contesting respondents/plaintiffs that the 1st defendant namely Mr.C.T.C.Nachiappa Chettiar, appears to be fictitious person, was taken into consideration. The learned Judge has suspended the operation of the Registered Power of Attorney dated 06.09.2001, seem to have been executed by the 1st defendant, namely Mr.CT.C.Nachiappa Chettiar, in favour of the 2nd defendant Mr.TR.Rathineswaran / 2nd respondent in the present application, until further orders and the Registry was also directed to communicate the order, so as to enable the Registrar of Assurances, Virgambakkam, Chennai to take necessary steps."
36. The said judgment, which formed part of the record, coupled with admission of RW1 and 2nd defendant in Ex.P32, prima facie establishes that the 1st defendant appears to be a fictitious person, whose services have been utilised by the 2nd defendant to get the abovesaid power of attorney and he in-turn conveyed some portion of the property in favour of some other 66/111 http://www.judis.nic.in C.S.No.710 of 2002 defendants. Therefore, Issue No.2 is answered in affirmative in favour of the plaintiffs.”
73. The learned Judge also has considered the scope of Order IX Rule 13 of C.P.C, in the said Judgment, as to whether D2 can step into the shoes of D1 to defend his case as the owner of the property in question as claimed by them and in this regard, having relied upon a decision of this Court in Muthulingam v. Gangai Ammal reported in 2001-2-LW-347 has held as follows :
“38. In the light of the said observation, this Court is of the view that there need not be any separate application by the plaintiffs to invoke the jurisdiction of the Court under the above said provisions. That apart, it is not open to the 2nd defendant to espouse the cause of the 1st defendant as per the ratio laid down by this Court in 2001- 2-L.W.-347 [Muthulingam vs. Gangai Ammal], wherein this Court has considered the scope of Order IX Rule 13 and in paragraph No.8, held as follows:
"8. ... On the very reading of the above Rule, it is clear that it is only the defendant in an action who can move an application under the provisions of law. Though the first defendant has interest in the 67/111 http://www.judis.nic.in C.S.No.710 of 2002 suit, he is not entitled to invoke this Rule. In Santosh v. Teja Singh (AIR 1977 Delhi 110) a learned single Judge has held that even a person who is formally a party but against whom nothing is said in the operative portion of the decree or who has been expressly exempted from a decree cannot apply under this Rule to set aside an exparte decree. Where there is a specific provision for setting aside the exparte order / decree, at the instance of the person concerned, as rightly contended, the first defendant has no locus standi to file a petition under Section 151 C.P.C., praying the Court to rectify the mistake of the order setting the third defendant exparte."
39. In the light of the facts and circumstances of the case, coupled with the ratio laid down by this Court, it is not open to the 2nd defendant to espouse the case of the 1st defendant by stepping into the shoes of the 1st defendant insofar as passing of the exparte decree. It is also very pertinent to note that this Court has also put a specific question to the learned counsel for the 2nd defendant as to whether, his alleged principal/1st defendant, is alive or not, the learned counsel for the 2nd defendant is unable to come out with any 68/111 http://www.judis.nic.in C.S.No.710 of 2002 answer.
40. In the light of the documentary evidence as pointed out, the 1st defendant appears to be a fictitious person created by the 2nd defendant to suit his needs and criminal prosecution is also pending against the 2nd defendant in the Court and therefore, the plaintiffs are entitled to a decree by invoking the abovesaid provisions.”
74. Therefore by the said Judgment and Decree made by the learned Judge, dated 02.03.2016, of course against D1, all these queries now raised by or on behalf of the defendants have been answered in favour of the plaintiffs. That apart, insofar as A.No.2579 of 2016 is concerned, a similar prayer has already been sought for by then R8, R9 and R10 in A.No.2448 of 2014, which was dismissed by a learned Judge of this Court on 04.06.2014 and the relevant portion of the said order has already been quoted herein above. As against which, when the said defendants filed Intra Court Appeal in O.S.A.No.165 of 2014, where also the view taken by the learned Judge was confirmed, thereby, whether the documents in question, especially Exs.P.1 and P.2 are to be referred to Forensic Science Laboratory or not has been concluded by rejecting the said plea raised on behalf of some of the 69/111 http://www.judis.nic.in C.S.No.710 of 2002 defendants. After having considered all those aspects only, the learned Judge while passing the Judgment and Decree, dated 02.03.2016 in answering Issue No.1 has given a categorical finding that, the documents, Exs.P.1 and P.2 are genuine documents, under which the properties were purchased by the father and mother of the plaintiffs and in this regard, finding has been given by the learned Judge at para 32 of the Judgment, dated 02.03.2016, which has also already been quoted herein above.
75. When that being so, once again D2 has now filed an Application in A.No.2579 of 2016 or the said application filed in the year 2016 now is persuaded by the learned counsel appearing for D2 that, the documents in question, i.e., Exs.P.1 and P.2 should be referred to the Forensic Science Laboratory. In view of the conclusive finding given by the learned single Judge, which was confirmed by a Division Bench as referred to above on the very same point in a related application, of course filed by other defendants, this Court feel that, the said plea now raised by D2 in A.No.2579 of 2006 cannot be countenanced, therefore the said application is liable to be rejected.
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76. Insofar as the permission sought for by the plaintiffs to withdraw the suit against D2 to D6, in view of the endorsement having been made by the learned counsel for the plaintiffs on 08.01.2019 is concerned, it was vehemently contended by the learned counsel appearing for the defendants that such a permission cannot be granted at this stage.
77. In this context, the learned counsel has relied upon a Judgment of this Court made in Arcot Textiles Mill Ltd., Ulagamkathan village, Kallakurichi Taluk by Managing Director, Nadrajh Annamali v. S.Rajendran and others reported in 2000 (2) MLJ 76, where they relied upon the following passage :
"19. From the above decisions it is clear that plaintiff has got right to withdraw suit at any stage unless defendant is able to show that he has got vested right.
20. Courts below have held that permission cannot be granted since it is representative suit. I do not think the finding of the lower court is correct. Plaintiff has filed the suit against defendants who are various Trade Unions. Plaintiff is a legal 71/111 http://www.judis.nic.in C.S.No.710 of 2002 person and only for the purpose of effective representation of defendants an application was filed under O.1, Rule 8, C.P.C. It is not representative suit as found by court below. A suit is filed by a legal person against various persons who are represented by Secretaries or presidents of various Trade Unions. A Trade Union is not a legal person. It is recognised only for the purpose of Industrial Disputes Act. In the civil suit, actual person must be made as party, since the workers are numerous, their cause is taken by various Trade Unions represented by its office bearers. Instead of impleading all the workers, plaintiff has impleaded all the Trade Unions and moved an application under O.1, Rule 8."
78. The learned counsel appearing for the defendants have also relied upon the following two decisions, in support of their contention with regard to the withdrawal of the suit.
(i) Nila Bauart Engg. Ltd., v. Rajasthan Urban Infrastructure Project, AIR 2004 Gujarat 221
(ii) Syed Ahmed,T.H. v. T.H.Mustaq Ahmed, (2005) 4 M.L.J. 445 (2) 72/111 http://www.judis.nic.in C.S.No.710 of 2002
79. In Nila Bauart Engg. Ltd., v. Rajasthan Urban Infrastructure Project, reported in AIR 2004 Gujarat 221, they have relied upon the following :
"27. In view of the above discussion, the order directing the parties to maintain status qua the bank guarantees cannot sustain. On the contrary while passing the order below Exh.39, challenged by the defendant No.1 before this court by an independent petition is an erroneous order. There was no prohibitory relief in favour of the plaintiff after 5.5.2003 and the plaintiff had no legal right to pray such relief in absence of any formal order of extension of the relief till 30.7.2003. On the contrary the language of the letter dated 22.5.2003 confirms the withdrawal . The act of withdrawal of the suit on 5.5.2003 disentitled the plaintiff to pray any prohibitory order qua the same bank guarantees in the very suit and therefore, I am inclined to accept the argument of the learned counsel for the defendant No.1 that while passing this order under challenge directing the parties to maintain status quo, is an error of law and failure 73/111 http://www.judis.nic.in C.S.No.710 of 2002 on the part of the court in exercise of discretionary jurisdiction properly."
80. By relying upon the aforesaid Judgment, the learned counsel would contend that, once the suit itself is sought to be withdrawn, there could be no further orders or direction to be passed by this Court, as the one now has been sought for by the plaintiffs side to deliver the property in question, which is in court custody, in favour of the plaintiffs. In this context, they would further contend that, unless the plaintiffs establish their title followed by possession of the property after full fledged trial on those issues, they cannot seek for any relief in the application to deliver the possession of the property from the court custody especially in the context of withdrawal of the suit.
81. In the other Judgment, in Syed Ahmed,T.H. v. T.H.Mustaq Ahmed, reported in (2005) 4 M.L.J. 445 (2), they relied upon the following:
"7. The grant of relief under Order 23 Rule 1 C.P.C to withdraw the suit with leave to file a fresh suit is at the discretion of the court, which 74/111 http://www.judis.nic.in C.S.No.710 of 2002 could be exercised only where the Court satisfies that the suit is filed by one reason of formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim. The Court must also get satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of a claim on the cause of action. Accordingly, the Court is under the duty mandated to take into consideration the relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. In other words, grant of permission to withdraw the suit with leave to file a fresh suit may result in annulment of a right vested in the defendant or even a third party and such facts are also be taken into consideration while granting permission to withdraw the suit with leave to file a fresh suit under Order 23 Rule 1 C.P.C. Unless there exists proper grounds for granting permission for withdrawal of the suit with leave to file fresh suit by the plaintiff, the relief cannot be granted for merely asking for.75/111
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8. In the instant case, the defendant came with the plea that he is in exclusive possession of the property to non-suit the revision petitioner/plaintiff for bare injunction, in which case, if leave is granted to withdraw the suit and to file fresh suit for declaration and injunction, the right of the defendant would be greatly prejudiced. If the revision petitioner/plaintiff ultimately fails in the suit on a finding of the Court that the defendant is in possession of the property, the revision petitioner/plaintiff is always at liberty to file a fresh suit for declaration and injunction, if he is so advised. 9. Hence, finding no reason to interfere with the order of the trial Court, this revision petition is dismissed. No costs. Consequently, C.M.P.No.12673 of 2004 is also dismissed."
82. The aforesaid Judgment, on perusal, in the considered opinion of this Court, may not apply to the facts of this case. First of all, no new relief is sought to be granted to the plaintiffs in the eve of withdrawing the suit. If the withdrawal is permitted by this Court as desired by the plaintiffs, the natural corollary would be to release the possession of the property in 76/111 http://www.judis.nic.in C.S.No.710 of 2002 question, to the plaintiffs, as there could be no contra claim in the eye of law atleast in the present suit.
83. Like that, on the principle laid down in the second case, i.e., Syed Ahmed's case (cited supra) is concerned, here, the plaintiffs do not want any liberty to file a fresh suit on the same cause of action. Here invoking Order XXIII Rule 1 of CPC alone endorsement has been made on behalf of the plaintiffs to withdraw the suit against D2 to D6. Therefore it could only be treated as a withdrawal simpliciter attaching with no other relief like liberty to file a fresh suit on behalf of the plaintiffs on the same cause of action. Therefore the said principle heavily relied upon by the learned counsel appearing for the defendants in the second case, i.e., Syed Ahmed's case (cited supra) also would not be applicable to the present facts of the case.
84. The enabling provisions for the plaintiffs to withdraw the suit is Order XXIII Rule 1 of C.P.C. In order to appreciate the same, Order XXIII Rule 1 of C.P.C is extracted hereunder :
"1. Withdrawal of suit or abandonment of part of 77/111 http://www.judis.nic.in C.S.No.710 of 2002 claim— (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other persons.
(3) Where the Court is satisfied,—
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-
matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim 78/111 http://www.judis.nic.in C.S.No.710 of 2002 with liberty to institute a fresh suit in respect of the subject- matter of such suit or such part of the claim. (4) Where the plaintiff—
(a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be preclude from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.]"
85. Under Order XXIII Rule 1 of CPC, it prescribes that, at any time after institution of a suit, the plaintiff may, as against all or any of the defendants abandon his suit or abandon a part of his claim. Only in case of minors interest is there, then leave of the Court has to be obtained under 79/111 http://www.judis.nic.in C.S.No.710 of 2002 sub-rule (2).
86. Insofar as the present claim made by the plaintiffs is concerned, there is no minor's interest and all the plaintiffs are major. Therefore, the plaintiffs are at liberty to withdraw the suit, i.e., abandoning of the suit or part of the claim against all or any of the defendants.
87. Here in the case in hand, there has already been a decree, dated 02.03.2016 in favour of the plaintiffs against D1. Insofar as the suit against D2 to D6 is concerned, the plaintiffs have come forward to say that, they want to withdraw the suit against them, as the relief already granted by this Court in favour of the plaintiffs against D1 is suffice. Therefore, only in respect of some of the defendants, now the plaintiffs come forward to withdraw the suit. Since the language used in the Code is very clear and unambiguous to state that, at any time, after the institution of the suit, the plaintiff can abandon the suit, this Court feel that, such a right conferred on the parties, i.e., the plaintiffs cannot be taken away or restricted by the plea to be raised by the defendants.
88. Moreover, if at all the defendants, especially D2 wants to 80/111 http://www.judis.nic.in C.S.No.710 of 2002 establish his case that he got title over the property in question, he should independently act upon, if he is advised to do so. Here, even whether that may be possible for the second defendant to proceed is still a question, because, the second defendant is not the owner of the suit property as he has, admittedly, claimed that he is only a power agent of D1 and according to D2, D1 is the owner of the property. However, insofar as D1 is concerned, D1 is not the person as projected by D2. The reason being that, after investigation by the police, atleast two reports had been filed before this Court. According to the said reports, which have been already quoted herein above, one Sivaramachandran, S/o. Chinnaiya Chettiyar, native of Natham, Dindigul District impersonated himself as Nachiyappa Chettiyar, S/o. Chockalingam Chettiyar. In this context, it is the further report of the police that, D2 had been the perpetrator to make the said Sivaramachandran to impersonate Nachiyappa Chettiar. The said Sivaramachandran also died on 06.07.2005 on illness and therefore, he is no more. Even before his death neither Sivaramachandran, nor the alleged Nachiyappa Chettiar (D1) had appeared before this Court to putforth their case that, he or they are the owner of the suit property. If they themselves had not come and the 81/111 http://www.judis.nic.in C.S.No.710 of 2002 documents under which the said D1 claimed to have been the owner of the property as projected by D2 were not the original documents and when the certified copy of the documents also was sought for by the learned counsel appearing for the plaintiffs by sending notice to that effect, that was also not responded and at no point of time, the documents in favour of D1 to establish that, he was the owner of the suit property had ever been filed before this Court.
89. Moreover since the second defendant admittedly being the power agent of D1, assuming that, D1 genuinely executed the power in favour of D2, believing that D2 started acting upon and created third party rights, now by virtue of the Judgment and Decree, dated 02.03.2016, where this Court has held that, Exs.P.1 and P2 are genuine documents based on which prima facie it was established that the parents of the plaintiffs had purchased the suit property and the documents whatever had been shown by way of photo copies on behalf of D1 and D2 had been considered to be an ingenuine documents and based on which, a decree against D1 have been issued, still whether D2 has got any independent legs to stand dehors the D1 being the 82/111 http://www.judis.nic.in C.S.No.710 of 2002 owner of the property as per the claim of D2, is the question.
90. In fact this was exactly discussed by the learned Judge in the said Judgment, dated 02.03.2016, where, the learned Judge by relying upon the law laid down by this Court in 2001-2-LW-347 has held that, the second defendant cannot espouse the cause of the first defendant in view of the ratio laid down by this Court in the said Judgment in Muthulingam's case. Therefore, the second defendant absolutely does not have any right whatsoever to espouse the cause of the first defendant for the simple reason that, first of all the first defendant has not come before this Court to prove his case or to establish his case or title over the suit property, secondly, he said to have impersonated and the said impersonation allegedly perpetrated by D2. All these aspects can only be cleared by the presence of D1 who never appeared before this Court, despite several chances given by this Court. This has been mentioned or taken note of by this Court at various point of time in various orders referred to above by both the single Benches and Division Benches of this Court.
91. That apart, it was contended by the learned counsel appearing for 83/111 http://www.judis.nic.in C.S.No.710 of 2002 the plaintiffs that, the person with unclean hands or tainted person who come to the Court, for whatever genuine reason, is not entitled for any relief and no indulgence can be shown by this Court in favour of such tainted person or person with unclean hands. In this context, the learned counsel appearing for the plaintiffs relied upon two decisions of the Hon'ble Apex Court.
(i) In Prakash Wati v. R L Kapur, reported in 1995 Supp (3) SCC 709, he relied upon the following passage :
"2. We have perused the record and heard Shri. P. N. Lekhi and Shri. R. P. Bansal, the learned counsel for the petitioners at length. From the perusal of the partnership deed, the employees' register of the hotel etc. it appears that the finding recorded by the High Court and the rent control authorities that the petitioners were guilty of forgery and fabrication is well founded. The jurisdiction exercised by this Court is extraordinary to promote and advance justice. A party who is guilty of forgery and fabrication has an unclean hand. The equity courts refrain from exercising discretion in favour of such a person.84/111
http://www.judis.nic.in C.S.No.710 of 2002 Therefore, even if there is some merit in the legal proposition advanced on behalf of the petitioners, we are not inclined to examine it."
(ii) In Kishore Samrite v. State of U.P, reported in (2013) 2 SCC 398, he has relied upon the following passage :
"Abuse of the process of Court
31. Now, we shall deal with the question whether both or any of the petitioners in Civil Writ Petition Nos. 111 of 2011 and 125 of 2011 are guilty of suppression of material facts, not approaching the Court with clean hands, and thereby abusing the process of the Court. Before we dwell upon the facts and circumstances of the case in hand, let us refer to some case laws which would help us in dealing with the present situation with greater precision.
32. The cases of abuse of the process of court and such allied matters have been arising before the Courts consistently. This Court has had many occasions where it dealt with the cases of this kind and it has clearly stated the principles that would govern the obligations of a litigant 85/111 http://www.judis.nic.in C.S.No.710 of 2002 while approaching the court for redressal of any grievance and the consequences of abuse of the process of court. We may recapitulate and state some of the principles. It is difficult to state such principles exhaustively and with such accuracy that would uniformly apply to a variety of cases.
These are:
32.1. Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the Courts, initiated proceedings without full disclosure of facts and came to the courts with ‘unclean hands’. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor entitled to any relief.
32.2. The people, who approach the Court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant.
32.3. The obligation to approach the Court 86/111 http://www.judis.nic.in C.S.No.710 of 2002 with clean hands is an absolute obligation and has repeatedly been reiterated by this Court.
32.4. Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and malicious intent have over-shadowed the old ethos of litigative values for small gains.
32.5. A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final."
92. It was the further contention of the learned counsel appearing for the defendants that, as per Exs.P.1 and P.2, the properties which were claimed to have been sold in favour of the parents of the plaintiffs are located in Block No.2, whereas the present property which are claimed to be the ownership of D1 through him by D2 is located at Block No.6, therefore this aspect has to be clarified. Unless and until such clarification comes from the authorities concerned, it cannot be construed that, on the strength 87/111 http://www.judis.nic.in C.S.No.710 of 2002 of Exs.P.1 and P.2, the plaintiffs can seek any claim or right over the property in question.
93. In this context, the learned counsel appearing for the defendants have relied upon a decision of the Hon'ble Supreme Court in State of M.P., v. Nomi Singh, reported in (2015) 14 SCC 450. On perusal of the said Judgment, the principle laid down therein was that, under Sections 101, 102 and 110 of Indian Evidence Act, 1872, burden of proof on the title and possession to be established in the suit lies on the plaintiff only.
94. Absolutely, there could be no quarrel on the said principle, as the plaintiff should seek any remedy based on possession of an immovable property, it is for the plaintiff to establish the possession of course based on title. When a suit is filed for bare injunction, as has been held in number of cases by the Hon'ble Apex Court, if it is an injunction simpliciter, normally the question of title would not arise in such case to be explored. However, for the limited purpose of deciding as to whether the plaintiffs are entitled to get an order of injunction simpliciter, the title as well as the possession of 88/111 http://www.judis.nic.in C.S.No.710 of 2002 the property on the part of the plaintiffs would also to be examined.
95. Here in the case in hand, since the plaintiffs claim only a relief of injunction simpliciter, they have already filed number of documents, especially Exs.P.1 and P.2, which are the registered sale deeds to and in favour of the parents of the plaintiffs and genuinity of those documents have already been considered by this Court and a decree also on merits has been passed by this Court against D1, by order, dated 02.03.2016.
96. Therefore, it goes without saying that, the title and possession has already been in favour of the plaintiffs. Hence, strictly inconsonance with the said principle that, burden of proof of title and possession lies only on the shoulders of the plaintiffs, they acted upon and therefore as has been quoted herein above in Nomi Singh's case (cited supra), if the said principle is applied in the facts of the case, this also go in favour of the plaintiffs.
97. In this context, the learned counsel appearing for the plaintiffs has 89/111 http://www.judis.nic.in C.S.No.710 of 2002 relied upon the following decisions :
(i) In the matter of Sheodhyan Singh and Others., v. Sanichara Kuer and Others reported in AIR 1963 SC 1879, he relies the following passage :
"We are of opinion that the present case is analogous to a case of misdescription. As already pointed out the area, the khata number and the boundaries all refer to plot No. 1060 and what has happened is that in writing the plot number, one zero has been missed and 1060 has become 160. It is also important to remember that there is no plot bearing No. 160, in khata No. 97. In these circumstances we are of opinion that the High Court was right in holding that this is a case of misdescription only and that the identity of the property sold is well established namely, that it is plot No. 1060. The matter may have been different if no boundaries had been given in the final decree for sale as well as in the sale certificate and only the plot number was mentioned. But where we have both the boundaries and the plot number and the circumstances are as in this case, the mistake in the plot number must be treated as a mere 90/111 http://www.judis.nic.in C.S.No.710 of 2002 misdescription which does not affect the identity of the property sold. The contention of the appellants therefore with respect to this plot must fail."
(ii) In a Judgment of this Court in Roohnisha Beevi and 15 others v. A.M.M.Mahudu Mohamed and 29 others reported in 1998-1-LW-244, a learned Judge has relied upon Chumar v. Narayanan Nair, reported in AIR 1986 Kerala 236 to the following effect :
"18. In A.I.R. 1986 Kerala 236 (Chumar v. Narayanan Nair), learned Judge said thus :
"Where on a construction of a document transferring title to hold a property, it is clear that the intention of the parties was to transfer a parcel of land within well defined boundaries, any erroneous statement of survey number or omission to state it should be rejected as false demonstratis."
(iii) In Subramania Bathar v. Srinivasa Bathar reported in 2002-1- 91/111 http://www.judis.nic.in C.S.No.710 of 2002 LW 120, he relied the following :
"18. No doubt in the present case the earlier documents show the total extent as 53 Sq. ft. but when the appellant's vendor purchased the property in 1976, the area rose to 90 sq. ft. Ex. A13/release deed refers to Ex. A2 Sale Deed in favour of the appellant's vendor and also earlier Sale Deed Ex. A1 dated 2.6.1952, but gives the extent as 90 sq. ft. Ex.A15 the Municipal map gives the extent for T.S. No. 628 as 90 sq. ft. Ex. A15 coupled with the legal position that boundaries should prevail over measurements should set at rest the controversy. This can be looked at from another angle also. The defendants' claim that 191-A was the property of the Mosque and that the Mosque was being paid rent every month. Let us see, whether this has been established apart from the fact that nobody connected with the Mosque was examined. The title deeds relating to the adjacent properties clearly identified the suit property, within the stated boundaries. Ex. A6 relating to door No. 192 shows the suit property as the western boundary. Ex. A10 suit register extract in respect of door No. 92/111 http://www.judis.nic.in C.S.No.710 of 2002 192, though there is a mistake with regard to the description as Naguda Maracair's land instead of his building gives the western boundary as the suit property. It is also the oral evidence by PW1 Kaliamoorthy and PW2 Hazan on this aspect. Between door Nos. 191 and 192 there cannot suddenly appear a new property belonging to a third party. The receipts purported to have been issued on behalf of the Mosque cannot in any way disprove the case of the appellant that the suit property comprising door Nos. 191 and 191-A belonged to him. I have no hesitation in holding, differing from the finding of the Lower Appellate Court that the plaintiff/appellant had established his title to the suit property bearing door Nos. 191 and 191-A. The Lower Appellate Court has failed to draw proper inference from established facts and apply law in the proper perspective, this Court is therefore entitled to interfere."
98. In this context, it is further to be noted that, the Advocate Commissioner in his report, dated 11.03.2003 in Sub-Appln No.95 of 2003 93/111 http://www.judis.nic.in C.S.No.710 of 2002 in Cont.P.No.166 of 2003 filed by the plaintiffs against defendants 1 and 2 has stated the following about the identification of the suit property :
"Accordingly that on 27.2.2003 at 4.30 p.m, I made the inspection of warrant schedule property. The counsel for petitioners, the counsel for first respondent and the counsel for the second respondent and his client were present during my inspection.
The warrant schedule property is measuring on the East : 160 feet West : 160 feet South : 160 feet North : 160 feet in all, 25600 Sq.feet (twenty five thousand six hundred square feet only). It is in square shape. The extent shown in the warrant and the actual measurement in the site tallies. Plot No.46 and 59 are shown as western boundaries in the warrant. I ascertained the same from the western boundary resident. On the west Sai Lokh Apartment is situated. I enquired Thiru.Lokesh Raju residing in First Floor, Door No.1, Kumaran Colony Second Street and one Thiru.Srinivasan residing Flat No.F, 94/111 http://www.judis.nic.in C.S.No.710 of 2002 Second Floor. They could not furnish any useful information.
One Tmt.Jayalakshmi Srinivasan residing at Flat No.E, Second floor, resident of western boundary said that she purchased the flat in September 2002. She produced here copy of the title deed in her favour bearing Document No.4195 of 2001 (undivided share). In the schedule of her document, the Eastern boundary is shown as Plot No.47, and southern boundary is shown as Plot No.49, Plot No.59 is lying vacant on the west.Thus the western boundary, Plot No.46 and 59
tallies with the warrant schedule property. I have ascertained the eastern boundary which is belonging to the petitioners from the counsel for the petitioners bearing Plot Nos.51 and 54. The Northern boundary is Kumaran colony second street - which is shown as proposed 30 feet Road in the warrant.
The Southern boundary is Kumaran Colony First Street - which is shown as proposed 30 feet road in the warrant.
Thus I have identified the four boundaries shown in warrant schedule property.95/111
http://www.judis.nic.in C.S.No.710 of 2002 The entire extent of 10 grounds and 1600 Sq.feet, i.e., 25600 Sq.feet is at one stretch. Individual Plot Nos. unable to be gathered."
99. In this regard, it is further to be noted that, originally at the time of development of layout by the vendor of the parents of the plaintiffs, it seems that, he had given Block numbers and subsequently the Governmental authorities had given the Metric Block numbers, accordingly, Block No.2 which was given by the Developer of the layout had been given Block No.6 of Metric Block numbers by the Governmental authorities, therefore these aspects need not detain much to decide that, the property in question, which was originally shown as Block No.2 has subsequently been given as Block No.6 are one and the same and this has been identified by the Advocate Commissioner through his report quoted above.
100. Moreover, as per the judgments referred to above, only the boundary, i.e., four boundary of the property concerned is important and if that is matching, the identification of the property is very easy and therefore, merely because the Block number originally given was subsequently 96/111 http://www.judis.nic.in C.S.No.710 of 2002 changed, cannot alter the suit property. Therefore in this regard, the objection raised by the learned counsel for the defendants, that what was claimed by the plaintiffs is a different property than what has been claimed by D1 and D2, cannot be accepted.
101. The learned counsel appearing for the defendants would also rely upon two decisions, viz.,
(i) Jemma v. Raghu, AIR 1977 Orissa 12
(ii) Karthiyayani Amma v. Govindan, AIR 1980 Kerala 224
102. In the first decision, the principle is that, a plaintiff not in possession of the suit property is not entitled to the relief of injunction without claiming recovery of possession. In the second case, the principle is, person in possession without title, whether can maintain a suit for injunction against true owner restraining him from disturbing his possession, it was negatived that such injunction cannot be granted against the true owner.
103. Absolutely, there could be no quarrel on these two principles. Though these principles have been quoted by the learned counsel appearing 97/111 http://www.judis.nic.in C.S.No.710 of 2002 for the defendants, this Court is of the firm view that, both these cases would not advance the cause of the defendants. The reason being that, it has not been held anywhere that, the plaintiffs are not in possession of the suit property. The possession of the suit property had been proved beyond doubt by the plaintiffs by relying upon number of documents from Ex.P.1 to Ex.P.52, including the basic documents of Exs.P.1 and P.2 which are the registered sale deeds, under which, the property in question were purchased by the parents of the plaintiffs. Subsequently there had been number of proceedings between the plaintiffs father and subsequently with plaintiffs and the Governmental authorities in the Department of Urban Land Ceiling and Urban Land Tax. Therefore, it cannot be said to be a case, where the plaintiffs have not proved their possession.
104. Like that, the second principle that, the person in possession without title cannot maintain the suit for injunction is concerned, herein in the case in hand, it is not the case where the plaintiffs claim only possession without title. In fact the plaintiffs have, with confidence filed the suit for injunction simpliciter that, the plaintiffs had got title over the property and 98/111 http://www.judis.nic.in C.S.No.710 of 2002 also based on the title, they have been in possession of the property. These factors had been proved before this Court by number of documents as quoted herein above and therefore, this principle also would no way detain the plaintiffs to claim the relief of bare injunction, i.e., injunction simpliciter against the defendants.
105. Insofar as the objection raised by the learned counsel appearing for the defendants that, when the genuinity of the documents, i.e., Exs.P.1 and P.2, sale deeds are in question and the same are sought to be referred to Forensic Science Laboratory, the claim now made by the plaintiffs to withdraw the suit against the defendants 2 to 6 without establishing the title and the case of the plaintiffs and by thus, without giving a chance to the defendants to establish their case, cannot be permitted to, is concerned, the learned counsel appearing for the plaintiffs has relied upon a decision of the Hon'ble Apex Court in Anathula Sudhakar v. P.Buchi Reddy reported in (2008) 4 SCC 594, where he has relied upon the following :
"(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a 99/111 http://www.judis.nic.in C.S.No.710 of 2002 consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary 100/111 http://www.judis.nic.in C.S.No.710 of 2002 pleadings and appropriate issue regarding title [either specific, or implied]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or 101/111 http://www.judis.nic.in C.S.No.710 of 2002 wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
106. By relying upon the said decision, the learned counsel appearing for the plaintiffs has submitted that, when there has been a cloud over the title of the property, then only the plaintiffs has to file a suit for declaratory relief and also for a relief for possession and injunction and here in the case in hand, absolutely there has been no cloud over the title of the plaintiffs in the context of Exs.P.1 and P.2 which are very genuine documents, i.e., Registered sale deeds, pursuant to which there has been a partition among the legal heirs of the parents of the plaintiffs and subsequently the proceedings initiated by the Urban Land Ceiling authorities ended in favour of the plaintiffs. All these documents would coherently go to show that, the plaintiffs have title over the property and the question of filing a suit for declaratory relief does not arise.
102/111 http://www.judis.nic.in C.S.No.710 of 2002
107. The said contention made by the learned counsel appearing for the plaintiffs can very well be accepted in view of the facts of the case, as umpteen number of documents filed on behalf of the plaintiffs have established that, the plaintiffs do have title over the property and this has also been examined and answered in favour of the plaintiffs by the learned Judge, in the Judgment and Decree, dated 02.03.2016 against D1.
108. It is a fact remains that, the decree, dated 02.03.2016 against D1 is still intact and in force and the same cannot be appealed, altered or modified as till date, D1 has not come and the D1 may not come in view of the categorical investigating report filed by the police more than once that the D1 was an impersonated person and the person who impersonated as D1 also no more as he died already and therefore, D2 being the perpetrator of such impersonation cannot step into the shoes of D1 to take steps to erase the Judgment and Decree of this Court, dated 02.03.2016 made in favour of the plaintiffs.
109. When that being the position, on what basis the defendants now want to pursue the suit despite the desire having been expressed by the plaintiffs to withdraw the same against all these defendants. 103/111 http://www.judis.nic.in C.S.No.710 of 2002
110. Moreover the decree passed against D1 was inconsonance with Order VI Rule 11 of Original Side Rules and that has been exhaustively discussed and decided by the learned Judge of this Court as confirmed by a Division Bench of this Court and both the orders have been quoted herein above.
111. Moreover the decree passed by this Court dated 02.03.2016 though against D1 alone, as has been rightly pointed out by the learned counsel for the plaintiffs, would also bind the other defendants. The reason being that, D2 is admittedly a power holder of D1 and other defendants are subsequent purchasers at the hands of D2 on behalf of D1. Therefore, none of the defendants who are now before this Court in this suit have any independent right to agitate the issue with regard to the title of the suit property against the plaintiffs. If at all any right accrues, that must be only with the first defendant, who is the impersonated person. Moreover the person who impersonated as first defendant also is no more. 104/111 http://www.judis.nic.in C.S.No.710 of 2002
112. When such an ingenuine or tainted person or person with unclean hands approached this Court and when such person seeks for indulgence of this Court to pursue the suit by not giving permission to the plaintiffs to withdraw the suit as desired by them, whether that attempt would be a genuine one or whether it has to be accepted, is concerned, this Court absolutely has no hesitation to hold that, such a plea can never be raised by these defendants as they do not have any such locus to raise such a plea to retain the suit for adjudicating the issue against the present defendants also.
113. Therefore, this Court has no hesitation to hold that, the plaintiffs are entitled to withdraw the suit against defendants 2 to 6 within the meaning of Order XXIII Rule 1 of CPC as it envisages with clear language that the plaintiffs has got right to abandon his claim that means withdrawal of suit at any stage of suit after institution against any of the defendants. Since that right has been recognised by the Code, under the said order, on the plaintiffs, the same cannot be denied by this Court at the instance of the defendants, as they do not have any such independent right to thwart such 105/111 http://www.judis.nic.in C.S.No.710 of 2002 attempt to be made by the plaintiffs to withdraw the suit.
114. Like that, the plea raised by the second defendant in A.No.2579 of 2016 to refer Exs.P.1 and P.2 to Forensic Laboratory, as has been held above, is liable to be rejected for all the reasons stated in this regard.
115. Now the only aspect to be looked into is that, whether the plaintiffs are entitled to get back the possession of the property from this Court which is under custodia legis. No doubt, by the orders of this Court, dated 11.03.2008 made in O.A.No.709 of 2002 in C.S.No.710 of 2002, the property in question has been brought under the custody of this Court as custodia legis and an Advocate Commissioner had been appointed and the property is still being with the custody of the Court.
116. The power of attorney, dated 06.09.2001 was suspended by the orders of this Court, dated 21.04.2006. Also the claim of the plaintiffs based on Exs.P.1 and P.2 to seek injunction against D1 was considered, 106/111 http://www.judis.nic.in C.S.No.710 of 2002 recognised and approved by this Court and accordingly, the Judgment and Decree was passed in C.S.No.710 of 2002 against D1 on 02.03.2016. All these judicial pronouncements and orders made successively at various point of time by this Court both by the learned Single Benches as well as Division Benches as has been exhaustively discussed above, would go to show that, the plaintiffs would also be entitled to get the relief as claimed by them in A.No.2039 of 2016.
117. In view of the aforesaid discussions and the reasons stated herein above, this Court is inclined to pass the following Judgment and Order in this Civil Suit as well as in the connected applications :
(i) that the plaintiffs are hereby permitted to withdraw the suit C.S.No.710 of 2002 against D2 to D6 as per the written endorsement made by the learned counsel appearing for the plaintiffs, dated 08.01.2019 in the original plaint. Accordingly, the suit C.S.No.710 of 2002 against D2 to D6 is dismissed as withdrawn.
(ii) In view of the coming to an end of the suit 107/111 http://www.judis.nic.in C.S.No.710 of 2002 C.S.No.710 of 2002 in entirety, the possession of the suit property which has been in custodia legis, pursuant to the orders of this Court, dated 11.03.2008, shall be delivered to the plaintiffs and accordingly, the Advocate Commissioner on receipt of this order shall hand over the possession of the suit property to the plaintiffs in proper documents and acknowledgement and file a report to that effect before this Court for record purpose.
A.No.2039 of 2016 is ordered accordingly.
(iii) A.No.2579 of 2016 is devoid of merits, therefore the same is dismissed.
(iv) In view of the aforesaid orders, A.No.567 of 2016, A.No.427 of 2019 and A.No.682 of 2019 are liable to be dismissed and accordingly, they are dismissed.
118. With the above orders, this Civil Suit is disposed of on the terms indicated above. Hence, there shall be a Judgment and Decree to that effect in this suit. However, there shall be no order as to costs. 108/111 http://www.judis.nic.in C.S.No.710 of 2002 17-12-2020 Index : Yes Speaking order tsvn Schedule -I All that piece of parcel of land situate in Saligramam Village, bearing Plot Nos.51, 52, 53 & 54, within the Sub-Registration District of Thyagarayanagar, Madras and in the Registration District of MadrasChingleput the said Plots bearing Nos.51, 52, 53 and 54, Survey No.158, in Block No.2 and is of the extent of 6 grounds or thereabouts and is bounded on the North by : Proposed 30 feet road;
East by : Proposed 40 feet main road;
South by : Proposed 30 feet road; and
West by
: Plot Nos.50 and 55
belonging to VR.RM.PR.Periyakaruppan.
[Amended as per order dated 30.12.2002 passed in Application No.4802/2002 and order dated 07.03.2003 passed in Application No.1187/2003] AND All that piece of parcel of land situate in Saligramam Village, bearing Plot Nos.47, 48, 49, 50, 55, 56, 57 and 58, within the Sub Registration District of Thyagarayanagar, Madras and in the Registration District of Madras- Chingleput the said Plots bearing Nos.47, 48, 49, 50, 55, 56, 57 and 58 Survey No.158, in Block No.2 and is of the extent of 10 grounds and 1600 109/111 http://www.judis.nic.in C.S.No.710 of 2002 sq.ft., or thereabouts and is bounded on the North by : Proposed 30 feet road;
East by : Plot Nos.51 and 54
South by : Proposed 30 feet road; and West by : Plot Nos.46 and 59 38 These plots are situated within the limits of Madras Corporation. [Amended as per order dated 30.12.2002 passed in Application No.4802/2002 and order dated 07.03.2003 passed in Application No.1187/2003] Schedule - II Plot Nos.49, 50, 55, 56, 47, 48, 57 and 58 in the above Schedule-I property as shown in Pattas in C.A.No.1053 of 2002 standing in the names of the Plaintiffs and Defendants 3 to 6 appended to the Plaint as Annexure 1 to 4.
17-12-2020 R.SURESH KUMAR, J.
tsvn 110/111 http://www.judis.nic.in C.S.No.710 of 2002 Judgment in C.S.No.710 of 2002 17.12.2020 111/111 http://www.judis.nic.in