Madras High Court
D.Muthukrishnan vs Ms.Kasthuri on 25 February, 2009
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.02.2009 CORAM THE HONOURABLE Mr. JUSTICE M.VENUGOPAL C.R.P.(PD).No.786 of 2008 and M.P.No.1 of 2008 1.D.Muthukrishnan 2.D.Manickaraj .. Petitioners -Vs- 1.Ms.Kasthuri 2.N.Murugan 3.Palani 4.The Tahsildar, Tambaram Taluk .. Respondents Petition filed under Article 227 of The Constitution of India, praying to call for the entire records in O.S.No.828 of 2007 on the file of District Munsif at Alandur and struck off the plaint in O.S.No.828 of 2007. For Petitioners :: Mr.V.T.Gopalan Senior Counsel for M/s.R.Veeramani For 1st respondent :: Mr.A.Venkatesan For 2nd respondent :: Mr.W.M.Abdul Majeed For 3rd respondent :: Mr.K.Surendranath For 4th respondent :: Mr.V.Srikanth, AGP (CS) ORDER
The civil revision petitioners/defendants 1 and 2 have filed this civil revision petition praying to strike off the plaint in O.S.No.828 of 2007 pending on the file of District Munsif Court, Alandur.
2.The revision petitioners in the civil revision petition have averred that the suit O.S.No.828 of 2007 on the file of District Munsif Court, Alandur is an abuse of process of Court and hit by the principles of law and re-litigation and principles of res judicata and therefore, is liable to be struck off and that the lands in Paimash No.170 and 173 (New Survey No.179/1) in Adambakkam village and other properties originally belongs to the joint family of Veerbathra Chettiar and that in the partition suit C.S.No.564 of 1926 on the file of this Court, a final decree has been passed and that the aforesaid property and other properties have been allotted to the share of Veerabathra Chettiar and Appa Kannu Chettiar and that the title of the present petitioners, predecessors in interest has been confirmed by this Court and that the suit for partition mentioned supra has been filed between Veerabathra Chettiar and brothers and in another partition suit between the legal representatives of Appa Kannu Chettiar O.S.No.669 of 62 on the file of District Munsif at Poonamallee one Desappa Chettiar, father of the first revision petitioner and Sankaran Chettiar have been added as defendants and that the said Sankaran Chettiar has taken delivery of the property in E.P.No.9 of 67 on 06.01.1967 and that the western portion of the aforesaid property has been allotted to the share of Sankaran Chettiar who has taken delivery also and eastern portion of the property will go to the other sharer viz., Desappa Chettiar and that the revision petitioner's late father Desappa Chettiar has omitted to seek patta under Minor Inam Abolition Act 30 of 1963 and that the lands have been declared as Poramboke wrongly on 10.10.1988 by the Assistant Settlement Officer and as such the revision petitioners along with his brothers have filed C.M.A.No.40 of 1991 on the file of Principal Sub Court, Chengalpattu to set aside the order and that the first respondent herein who is the plaintiff in the impugned suit has filed I.A.No.172 of 1993 to get herself impleaded on the basis of agreement dated 20.12.1990 by the Kundrakudi Aadheenam and that the Sub Court has allowed the C.M.A.No.40 of 1991 and dismissed the impleading I.A.No.172 of 1993 mentioned that Kundrakudi Aadheenam has no right on 15.02.1965 and hence, the first respondent/plaintiff has no right over the suit properties.
3.The stand of the revision petitioner is that to get over the impediment, the first respondent/plaintiff has obtained a collusive decree against the Kundrakudi Aadheenam and obtained a registered sale deed in her favour and on the basis of sale deed from the individual who has no right and that the impugned suit has been filed and obtained an order of ad-interim injunction and further it is to be noted that the Special Tribunal has dismissed the appeal filed against I.A.No.172 of 1993 and that the present petitioners has filed W.P.No.4881 of 1996 against the encroachers, which has been dismissed and later W.A.No.580 of 1996 has been filed and this Court has held in the writ appeal that 'encroachers need not be heard in the settlement proceedings' and as against the W.A.No.580 of 1996 order S.L.P.No.18512 of 1997 has been filed and the same has been dismissed as withdrawn and therefore, the title and possession of the revision petitioners/defendants 1 and 2 have been confirmed right from Munsif Court to Hon'ble Supreme Court and in fact, the possession lies with the revision petitioners and not with the first respondent/ plaintiff who claims title which has been passed under E.P.No.8 of 2004 in O.S.No.140 of 2001 under a collusive decree after dropping the revision petitioners viz., the contesting parties etc. and therefore, it will be a waste of precious judicial time in relitigating and reappraising the title of the suit property, which is a part of the property, which has been the subject matter of the aforesaid proceedings and moreover, a relitigation may or may not be barred as res judicata, but if the same issue is sought to be projected again, it amounts to abuse of process of Court and therefore, prays for allowing the civil revision petition in the interest of justice by striking off the plaint in O.S.No.828 of 2007 on the file of District Munsif, Alandur.
4.The contention of the revision petitioners is that the plaint in O.S.No.828 of 2007 on the file of District Munsif, Alandur does not disclose about the judgment in C.M.A.No.40 of 91 nor about the filing of I.A.No.172 of 1993 to implead the first respondent/plaintiff in the said proceedings and there has been a complete suppression of material and vital facts and that the plaint also does not disclose the settlement proceedings where the title of Kundrakudi Aadheenam has been negatived etc. and therefore, the ordeal of trial is unwarranted and that the present suit is barred by the principles of res judicata.
5.The learned counsel for the revision petitioners urges that the first respondent/plaintiff has no interest in the suit property and that has been suppressed in the plaint and a similar suit for permanent injunction has been filed earlier and has not been pursued against the revision petitioners and in the absence of liberty being taken the suit is barred under the relevant provisions of Civil Procedure Code and that the first respondent/plaintiff filed I.A.No.172 of 1993 in C.M.A.No.40 of 1991 stating that she entered into an agreement of sale with Kundrakudi Aadheenam and that application has been dismissed and moreover, C.M.A.No.40 of 1991 filed by Desammal and four others have been dismissed by the learned Principal Judge, Chengalpattu on 30.09.1993 and that the revision petitioners herein who figured as appellant No.3 and 5 in C.M.A.No.40 of 1991 filed O.S.No.264 of 1991 on the file of Sub Judge, Poonamallee for the relief of specific performance of the contract and also praying for an order of permanent injunction and in I.A.No.172 of 1993 the first respondent herein has filed an application stating that she may be impleaded as a party respondent in C.M.A.No.41 of 1991 and in the judgment in C.M.A.No.40 of 1991 in paragraph 10 for the point No.1 the Court has inter alia observed that 'the first respondent ought to conduct enquiry after obtaining the encumbrance certificate and find out the persons who purchased the properties and issued notice to them legally and then an opportunity to examine the witness on their behalf on perusing the documents filed by the appellants etc. and since it is just and necessary that the first respondent has passed a final order after perusing the documents by him and examining the witnesses on their behalf and held that for the interest of justice the order passed by the first respondent has been set aside and allowed the Minor Inam Abolition Civil Miscellaneous Appeal and the first respondent has been directed to conduct the enquiry on these petitions as per the instruction stated above and for the issue No.2 whether I.A.No.172 of 1993 etc. may be accepted it is inter alia held that 'the Kundrakudi Aadheenam did not object the order passed by the first respondent. Hence, that order is final, further the first respondent stated that he enquired the Kundrakudi Aadheenam at the time of enquiry and he had no right on 15.02.65. In this circumstance, the prayer of the petitioner who entered into an agreement with him that he may be impleaded as a party is not proper and sustainable. Hence, I find, according to the argument of appellant/respondent that Tmt.Kasthuri Ammal is not entitled to be impleaded as a party in this appeal since this petitioner had no cultivation occupancy (Kudivaram right) on 15.2.65 over the suit property since the Kundrakudi Aadheenam himself had no right on that date etc. and resultantly, the applications have been dismissed on considering that the petitioners also are not entitled to be impleaded as parties in the civil miscellaneous appeal and in W.A.No.580 of 1996 dated 10.07.1997 this Court has held that the second respondent therein has not established his case that he is a person interested as per Rule 9(5) framed under the Minor Inams (Abolition and Conversion into Ryotwari) Act which will cover persons only who have got any interest in the lands at the time of the commencement of the Act etc. and further that the President of the Sangam is not a necessary party since 'B' memos have been issued only after 1990 and moreover, the Assistant Settlement Officer has erred in coming to the conclusion that the 'person' in Rule 9(5) includes the Sangam ignoring the object of the Act and the person mentioned in Rule 9(5) should have an interest in the proceeding at the time of commencement of the Act and the members of the Association having obtained 'B' memos after the first order passed by the Assistant Settlement Officer declaring the lands as house site poramboke are, in our opinion, not entitled to participate in the proceedings as the order of the Assistant Settlement Officer was first stayed by the High Court and later set aside by the Tribunal and this apart, Rule 9(5) under the Act is beyond the scope of Section 11 as notice has been contemplated only to persons who are entitled to get patta and resultantly, the writ appeal has been allowed.
6.The substance of the contention of the learned counsel for the revision petitioners is that when the earlier proceedings have become final and binding and when the earlier proceedings have been suppressed in the plaint by the first respondent/plaintiff any subsequent suit filed by her will be barred by the principles of res judicata under Civil Procedure Code.
7.In support of his contention that the present suit O.S.No.828 of 2007 is barred by the principles of respondent judicata, the learned counsel for the revision petitioners cites the decision in Ishwar Dutt V. Land Acquisition Collector and another (2005) 7 SCC 190 at page 198 of Hon'ble Supreme Court wherein at paragraph 20 it is observed as follows:
"20. In Hope Plantations Ltd. v. Taluk Land Board, this Court observed: (SCC p. 611, para 31) 31. Law on res judicata and estoppel is well understood in India and there are ample authoritative pronouncements by various courts on these subjects. As noted above, the plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however, different if an issue which had been decided in an earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is continuous cause of action. The parties then may not be bound by the determination made earlier if in the meanwhile, law has changed or has been interpreted differently by a higher forum.
8.He also cites the decision in Hope Plantations Limited V. Taluk Land Board, Peermade and another (1999) 5 SCC 590 at page 607, 608 wherein the Hon'ble Supreme Court has held as follows:
"26.It is settled law that the principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are cause of action estoppel and issue estoppel. These two terms are of common law origin. Again, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice."
Further, in the aforesaid decision at page 611 in para 31 it is held as follows:
"31.Law on res judicata and estoppel is well understood in India and there are ample authoritative pronouncements by various courts on these subjects. As noted above, the plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however, different if an issue which had been decided in an earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is continuous cause of action. The parties then may not be bound by the determination made earlier if in the meanwhile, law has changed or has been interpreted differently by a higher forum. But that situation does not exist here. Principles of constructive res judicata apply with full force. It is the subsequent stage of the same proceedings. If we refer to Order XLVII of the Code (Explanation to Rule 1) review is not permissible on the ground that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment.
9.He presses into service the decision in A.Sreedevi V. Vicharapu Ramakrishna Gowd 2005(5) CTC 748 at page 754 wherein this Court in para 17, it is observed as follows:
"17. If on a meaningful, not formal reading of plaint or petition, it is manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, the trial court should exercise its power under Order VII Rule 11 CPC. The trial court should insist imperatively on examining the party at the first hearing so that bogus litigation can be shut down at the earliest stage. In the decision reported in (T. Arivandandam vs. T.V. Satyapal and another) AIR 1977 Supreme Court 2421, it was held in para-5 thus:-
"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsifs Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful not formal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Ch. XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi:
It is dangerous to be too good. It is seen from the above said judgment that it is the duty of the trial court to read the plaint, not formally, but on a meaningful way and on such reading it is manifestly vexatious and meritless in the sense of not disclosing a fair right to sue, it should exercise its power exercisable under Order VII Rule 11 CPC taking care to see that the grounds mentioned therein are fulfilled and if clear drafting has created the illusion of cause of action, nip it in the bud. The Penal Code is also resourceful enough to meet such men, and must be triggered against them.
10.Moreover, he brings it to the notice of this Court the decision of the Hon'ble Supreme Court in T.Arivandandam V. T.V.Satyapal and another (1977) 4 SCC 467 at page 468 wherein the Hon'ble Supreme Court has inter alia held that "In the present case it is perfectly plain that the suit is a flagrant misuse of the mercies of the law in receiving plaints. The trial Court here will remind itself of Section 35-A, C.P.C. and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. The suit has no survival value and should be disposed of forthwith after giving an immediate hearing to the parties concerned.
It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients."
11.Added further, the learned counsel for the revision petitioners cites the decision of the Hon'ble Supreme Court in I.T.C. Limited V. The Debts Recovery Appellate Tribunal and others 1997 (III) CTC 746 whereby and whereunder the Hon'ble Supreme Court has held that 'clear right to sue should be disclosed in plaint and clever drafting creating illusions of cause of action are not permitted.' He also relies on the decision of the Hon'ble Supreme Court K.K.Modi V. K.N.Modi and others (1998) 3 Supreme Court Cases 573 at page 574 wherein it is held that 'the plaint in the suit to the limited extent that it raised an alternative independent plea, would not amount to relitigation of the same issue and hence would not amount to abuse of the process of Court.' Reliance is also placed on the side of the revision petitioners to the decision of this Court Srinivasan and six others V. Sri Madhyarjuneswaraswami, Pattaviathalai, Tiruchirapally District 1998 (I) CTC 630 (FB) wherein it is held that 'the jurisdiction of Civil Court is not totally and completely ousted or barred in respect of adjudication of claims of title, questions or issues which requires to be decided for implementing ryotwari settlement in areas governed by legislation abolishing minor inams.'
12.Contending contra, the learned counsel for the first respondent/plaintiff submits that the revision petitioners are defendants 1 and 2 in O.S.No.828 of 2007 on the file of District Munsif Court, Alandur and that 3rd defendant is one of the rival claimants to patta in respect of the suit property and the 4th defendant is another claimant of patta in respect of suit property and 5th defendant is the Tahsildar of Tambaram Taluk and that the first respondent/ plaintiff has filed O.S.No.828 of 2007 on the file of District Munsif Court, Alandur praying for the relief of permanent injunction restraining defendants 1 to 4, their men, agent, servants are anyone claiming through them from in any manner interfered with the plaintiff's peaceful possession and enjoyment of the suit property by trespassing into the same and for permanent injunction restraining defendants 1 to 4 etc. from in any manner encumbering or alienating the suit property, ignoring the right of the plaintiff and for permanent injunction restraining the 5th defendant, his men, agents, etc. from in any manner making entries of the names of defendants 1 to 4 are anybody else against the interest of the plaint over the suit property and that the 5th defendant takes sides and that the revision petitioners are successor in interest of Desappa Chettiar and that S.No.179/1(part) of the suit property mentioned in the plaint refers to an extent of land measuring 0.45 cents and that the Pymash No.170, 172, 173 and 174 are correlated to S.No.179/1 which is an extent of 3 acres and 28 cents and this is by means of the record of the settlement proceedings and the revision petitioners have got an extent of one acre 63 cents in Pymash No.170 and 173 as per partition suit and in a subsequent partition suit and that the Desappa Chettiar has got half of 81 cents and that the Sankaran Chettiar and Desappa Chettiar are brothers and that in the partition suit in O.S.No.669/92 on the file of District Munsif, Poonamallee final decree has been passed and that the Commissioner has been appointed and that the predecessor of petitioners Desappa Chettiar has been given 18 = cents out of total extent of 3 acres and 60 cents in S.No.179/1 and that in O.S.No.669/62 E.P.No.9/67 has been filed and that in item 2 in Pymash No.170 and in Pymash No.173 the revision petitioners get 0.9.8 and 0.10.4 and they cannot get more and further they want to make a wrongful claim of other items of neighbouring properties and in short the revision petitioners/defendants 1 and 2 cannot lay claim beyond one acre and 63 cents and that Inam has been taken over by the Government on 10.02.1965 and thereafter, the settlement proceedings have been commenced and later has given patta for the properties falling under Inam, as per Minor Inams Act, 1963 (30 of 63) and that the revision petitioners properties are on the western side of the suit property and that the petitioners cannot invoke the jurisdiction of this Court under Article 227 of the Constitution and that I.A.No.172 of 1993 filed by the first respondent/plaintiff as petitioner/ 3rd party in C.M.A.No.40 of 1991 has been dismissed by the learned Principal Sub Judge, Chengalpattu (Minor Inam Tribunal) on 30.09.1993 and belatedly S.T.A. has been filed and due to subsequent events, it has not been pursued further and as against the same property W.P.No.10999 of 1994 has been filed by Desammal and 4 others (the revision petitioners figured as petitioner Nos.3 and 5) against the Assistant Settlement Officer, Tiruvannamalai and 3 others, in which the first respondent/plaintiff has figured as 4th respondent and the same has been dismissed on 13.01.1995 by this Court and in the said order it is observed that 'the petitioners therein have filed the present writ petition for issuance of a writ of mandamus or any other appropriate writ or order or direction, directing the first respondent to conduct the enquiry for the grant of patta under the Act in respect of the lands comprised in SR.No.999/88 G-25 T.S. No.7 to an extent of 0.04819.0 Hec. Are. Sq.M in 136, Adambakkam Village, Saidapet Taluk, Chengai MGR District without permitting the respondents 2 to 4 to participate in the enquiry and further, it is held that the Assistant Settlement Officer has ample power to decide in accordance with the Act whether the petitioners and respondents 2 to 4 are entitled to patta or not under the Act and further respondents 2 to 4 and others have already been made party before the enquiry for the issuance of patta under the Act and in view of the above, no prejudice will be caused to the petitioners on such position being taken by the Assistant Settlement Officer and it will be open to the respective parties to let in evidence before the Assistant Settlement Officer to substantiate their respective claims for the grant of patta and that the Assistant Settlement Officer has been directed to consider and dispose of the petitions for the grant of patta on merits and in accordance with law and that the order passed in aforesaid writ petition on 13.01.1995 is subsequent to the dismissal of I.A.No.172 of 1993 and from the year 1995 to 2008 much water has flown under the bridge and that the Civil Court jurisdiction is not ousted and in spite of the fact that the patta has not been granted the first respondent/plaintiff is entitled to obey the matter before a Civil Court and that principles of res judicata will not apply and that as an aggrieved party, the first respondent/ plaintiff is entitled to get a proper remedy in civil suit.
13.Moreover, in the plaint in O.S.No.828 of 2007 on the file of District Munsif Court, Alandur in para 32 the cause of action alleged is that when the first respondent/plaintiff is put into the possession of the property on the basis of the sale agreement on 29.07.2004 when the sale deed has been executed by the Additional Subordinate Judge, Chengalpattu thereby transferring the title in the name of the first respondent/plaintiff, on various dates when the first respondent/plaintiff has demanded for mutation of revenue records in her name and took all efforts against 5th defendant (The Tahsildar, Tambaram Taluk) for the same and on 11.09.2007 when the 5th defendant has made a wrong order revealing his intention, which is under appeal and on 10.11.2007 when the defendants 1 to 4 made an attempt to trespass into the suit property etc. and in fact the cause of action in O.S.No.828 of 2007 goes to show that the entire matter has to be dealt with by means of adducing evidence and also that Order 23 Rule 1(4) of Civil Procedure Code will not apply since the parties are different and therefore, prays for dismissing the civil revision petition.
14.Continuing further, the learned counsel for the first respondent/plaintiff contends that the Settlement Forum is not a Court of law and hence, the decision passed by the Settlement Forum is not binding on the first respondent/plaintiff.
15.In support of his contention that patta is not a document of title the learned counsel for the first respondent/plaintiff cites the decision in Guruvammal and another V. Subbiah Naicker and others 1999 (III) CTC 650 wherein this Court has inter alia held that 'Mutation of entries are done to enable state to collect revenue from persons who are in possession of property and that patta is not document of title etc.' He also relies on the decision Kammavar Sangam through its Secretary R.Krishnasamy V. Mani Janagarajan 1999 (III) CTC 304 whereby this Court has held that 'reliance on patta cannot be made to prove title as patta which mutates entries cannot convey or extinguish right over property etc.' He brings it to the notice of this Court to the decision Srinivasan and 6 others V. Sri Madhyarjuneswaraswami, Pattavaithalai 1998 II MLJ 722 (FB) whereby this Court has held that 'Ryotwari Patta granted by the tribunal constituted under Minor Inams Abolition Act, could be questioned before a civil Court and that order passed and decisions rendered under the Act being given finality does not have the effect of ousting jurisdiction of civil Court etc.' Moreover, in the aforesaid decision at page 722 it is held that 'it is by now well-settled that even in cases where finality is accorded to any decision or order, these are certain well-settled exceptions and proved the existence of such exceptional factors, the civil Court is entitled to nullify any or all such decisions. Similarly, even in cases where the principles of res judicata are rendered applicable, the jurisdiction of the competent civil court to go into the question and find out whether the necessary ingredients to apply the principles of res judicata exist in a given case or not cannot be denied to the civil court and from the mere fact of according finality to the orders or decisions rendered under the Act of the application of the principles of res judicata, a total or complete bar or ouster of the jurisdiction of the civil Courts for all and any purpose cannot be automatically inferred or implied. Before a plea of res judicata can be given effect, to, it must be sufficiently pleaded and established that the litigating parties are the same, that the subject matter of the suit and the other proceedings also are identical, that the questions arising in the suit and other proceedings were directly and substantially in issue and the same was finally decided and that too by an authority or court of competent jurisdiction.'
16.He also seeks in aid of the decision S.Krishnamurthy, Joint Family Manager and another V. Thakkar K.G.Krishnaswamy (Deceased) and 4 others 2002 (2) CTC 655 at page 666 at para 34 and 35 it is observed as follows:
"34.Let me refer to certain other aspects put forward by the learned Counsel for the review petitioner. This I am doing more for the sake of completeness. According to the learned Counsel, there was non-perception of authorities under the Minor Inams (Abolition and Conversion into Ryotwari) Act, in particular, the ratios of the decision in State of Tamil Nadu V. Ramalinga Swamigal Madam, AIR 1986 SC 794 and the other decisions, viz., T.K.Ramanuja Kavirayar and others V. Srilasri Sivaprakasa Pandara Sannadhi Avargal, Thiruvaduthurai Adheenam, 1988 (1) LW 513; Srinivasan and Six others V. Sri Madhyarjuneswaraswami Etc., 1998 (1) CTC 630; Society of St. Josephs's College V. A.Doraisami (died) and others, 1998 (2) CTC 196 and Ramalingam & others V. The Idol of Sri Thayumanasamy Etc., 1998 (3) CTC 665.
35.In State of Tamil Nadu V. Ramalinga Swamigal Madam, AIR 1986 SC 794 it has been held that, "a person who was refused ryotwari patta would be entitled to protect his possessory title and long enjoyment of the land and seek an injunction preventing Government's interference otherwise than in due course of law and surely before granting such relief the Civil Court may have to adjudicate upon the real nature or character of land if the same is put in issue. The civil Court's jurisdiction is not ousted simply because finality had been accorded to the settlement proceedings."
To the same effect are the other decisions referred to. The jurisdiction of the Civil Court to consider title of parties is not ousted. The Civil Court is entitled to nullify decisions of authorities, which had been accorded finality under the Act."
17.Further, he presses into service the decision Fathima Beevi V. M.Ramalingam (deceased) and 8 others 2008-3-L.W.74 at page 75 wherein this Court has held that 'the grant of ryotwari patta by the Assistant Settlement Officer under Ex.A.3 jointly in favour of H and two other persons is not enough to establish the pre-existing title of the appellant or the persons through whom she claimed to have derived title and absolutely, there is no document to show the per-existing title of any of the persons through whom the appellant/plaintiff claimed to have derived title and further, it is held that the adjudications made by the authorities acting under the Tamil Nadu Estates Inams Abolition Act (1963), and Tamil Nadu Estates Minor Inams Abolition Act (1963), are not intended to be a substitute or alternate mode of resolution of ordinary civil rights of a citizen and they do not have the effect of ousting the jurisdiction of the civil courts.' In regard to the controversy which relates to entries in the revenue records it is the contention of the learned counsel for the first respondent that the revenue records does not create or extinguish title nor it has any presumptive value, he relies on the decision of this Court M.E.A.Mohamed Ali and others V. The District Revenue Officer, Ramnad Collectorate, Ramanathapuram and others 2005(4) CTC 9 at page 10 wherein this Court has held that 'the parties aggrieved by entries in the revenue records should get their rights adjudicated in a civil suit and that the order of the revenue authorities is not binding in the civil suit and that the Civil Court will decide the rights of the parties independently of the order of the revenue authority.'
18.The learned counsel for the first respondent/ plaintiff cites the decision of this Court D.Ganesan and 2 others V. M.S.Chandra Bose and another 1996 (II) CTC 490 wherein it is held that 'the revision under Article 227 of the Constitution is not maintainable against ex parte interim injunction and when there is provision for appeal against such ex parte order, the power of superintendence does not vest with the High Court with any unlimited prevarication to correct all species of hardship or wrong decisions.' Further, he cites the decision of Hon'ble Supreme Court in Punjab National Bank V. O.C.Krishnan and others AIR 2001 Supreme Court 3208 wherein it is held that 'writ petition under Article 227 of the Constitution of India challenging the said order passed by Debt Recovery Tribunal is barred on the grounds of alternative and efficacious remedy and that civil suit is also expressly barred.' He also cites the decision of this Court Ramalinga Bajanai Madam by Muthupillai V. Gerart Pappammal and 19 others 1998 (I) CTC 85 wherein this Court has held that 'the word "Matter" occurring in Order 23, Rule 1(4) is other than "cause of action" and the Rule is not applicable when the cause of action is different in second suit even though defence may be the same and that the cause of action in the first suit and the second suit are different and hence, the suit is maintainable.'
19.The learned Additional Government Pleader appearing for the 4th respondent/5th defendant submits that the suit O.S.No.828 of 2007 is filed against the 4th respondent/5th defendant, being a Public Officer and therefore, as per Section 80 of Civil Procedure Code, two months prior notice has to be given and in the instant case, the first respondent/plaintiff has not issued Section 80 notice to 4th respondent/5th defendant before filing the suit and therefore, for want of compliance of Section 80 of Civil Procedure Code, the suit O.S.No.828 of 2007 filed by the first respondent/plaintiff is liable to be dismissed in so far as 4th respondent/5th defendant is concerned. It is also the further contention of 4th respondent/5th defendant side that the first respondent/plaintiff has not filed any application seeking leave of the Court to institute a suit without issuance of prior notice as required under Section 80 of Civil Procedure Code.
20.According to the learned counsel for the first respondent/plaintiff is only a party in I.A.No.172 of 1993 on the file of Principal Judge, Chengalpattu and this is the only litigation in which she is a party and that in Writ Appeal No.580 of 1996, the first respondent/plaintiff is not a party and that the 4th respondent/5th defendant in his order dated 11.09.2007 has inter alia stated that the revision petition between Palani and Muthukrishnan and others is pending before the Chennai Settlement Office in regard to the land right and till date the ownership of the land has not yet been decided and therefore, the first respondent/plaintiff in respect of 45 cents of land is not a party entitle to claim a right etc.
21.The learned counsel for the revision petitioners submits that a distinction is maintained between an ordinary patta claim in revenue laws and grant of patta under a ryotwari settlement and further that the Inam Act has come into force and that the land in issue is an inam and once the Inam Act has come into force the land vests with the Government and who is entitled to get possession and who will be entitled to patta are all answered by the Full Bench decision in 1998 III MLJ 722 and that the sale agreement has been put in issue before the authority and on that date itself, the Executor of that sale deed has no right and that the order passed by the Assistant Settlement Officer is final and as a matter of fact, the Assistant Settlement Officer in his order dated 10.10.1988 has inter alia stated that enquiry has been taken suo moto under the provision of Tamil Nadu Minor Inam Abolition and Conversion into Ryotwari Act, 1963 (Act 30 of 63) in respect of the lands comprised in TD 482 to Adambakkam Village given in the schedule etc. appended to this order to decide whether anybody else is entitled for the grant of patta and has come to the conclusion that 'it is clear from the evidence of C.W. and the Settlement records available that the lands and superstructure were occupied by the persons reported to be occupants only recently after 15.2.1965, the crucial date and in the absence of valid documents, it is not possible to conclude that paimash numbers and survey numbers of the lands in question correlate and the boundaries also agreeable and distinct and furthermore, it is clear and crystal that the superstructure on the lands dealt with in this case, were constructed only after the tenure of the T.D.482 is ceased and the lands transferred to Government and therefore, none of the persons reported to be the occupants of the sites and the superstructure thereon are not entitled to get patta and has directed under Section 11 of the Act, that the lands involved in these cases be vested to Government under Section 3(b) of the Act 30/63 and further directed that the lands to be registered as poramboke etc.' It is significant to make a mention that in the order of the Assistant Settlement Officer, Tiruvannamalai dated 10.10.1988 Sri Kundrakudi Aadheenakarthar Thiruvannamalai is mentioned as Inamdar and that the enquiry has commenced on 05.02.1988 and has been completed on 16.09.1988.
22.According to the learned counsel for the revision petitioners as per Section 14 of the Patta Pass Book Act, no suit will lie and therefore, the present suit O.S.No.828 of 2007 on the file of District Munsif, Alandur is not maintainable before the trial Court and since the earlier suit for permanent injunction has not been pursued against the revision petitioners in the absence of liberty being taken from the competent Court of law, the present suit O.S.No.828 of 2007 on the file of District Munsif, Alandur is barred under Order 23 Rule (4)(b) of Civil Procedure Code.
23.It is to be pointed out that Order 23 Rule 1 of Civil Procedure Code restricts instituting of a fresh suit, even abandonment of part of the claim without the permission of the Court for a liberty to institute a fresh suit in respect of a subject matter of such suit or such part of the claim.
24.It is not out of place for this Court to cite the decision of Hon'ble Supreme Court in Ranen Roy V. Prakash Mitra (1998) 9 Supreme Court Cases 689 at page 690 wherein it is held that 'Order XXIII sub-rule (4) of Rule 1 of the Code of Civil Procedure provides that where the plaintiff either abandons any suit or part of a claim under sub-rule (1) or withdraws from a suit or part of a claim without seeking any liberty to institute a fresh suit in respect of the subject-matter of such suit or part of the claim, he shall be precluded from instituting any fresh suit in respect of that subject-matter or that part of the claim. This provision is clearly attracted to he facts of the present case.' Further, in the decision Smt.Geeta V. Vijaychandra Sharma and others 2000 A.I.H.C. 4007 at page 4011 it is held that 'it is no doubt true that the applicant had withdrawn Spl. Civil Suit No.672/98 and, therefore, as per the provisions of Order 23 Rule 1(4) of Code of Civil Procedure she is precluded from instituting a fresh suit in respect of the same subject matter. However, it does not prevent her from setting up a defence in another suit because what the rule bars is the remedy and not right or title of the party to a particular property. Similar view has been taken by Punjab & Haryana High Court in Balwant Singh V. Union of India, reported in AIR 1990 Punj & Har 26, (cited supra).'
25.Moreover, in the decision Order of the Holy Cross V. Lonnappan Thattil AIR 1990 Kerala 215 at page 217 it is held that '... The terms "subject-matter of the suit" means the plaintiff's cause of action in the suit and if that be so a suit on a different cause of action is not barred under this Rule, although the suit may relate to the same property. From the facts discussed above, it is clear that the cause of action for the earlier suit is the same as the cause of action for the present suit from out of which this revision arises. But to make it appear that the present suit is different from the earlier suit, the plaintiffs have made certain statements in the plaint which as already noted, are of no consequence. On a perusal of the pleadings of the plaintiffs in both suits, it is clear that the subject-matter of the earlier suit. Remove the camouflage, introduced in the pleadings in the present suit, then it could be seen that the present suit is based on the same cause of action as the one on which the earlier suit is based. The issue therefore requires to be answered in favour of the petitioner.'
26.In regard to the applicability of the principles of res judicata under Section 11 of Civil Procedure Code, this Court pertinently points out the decision of Hon'ble Supreme Court in Devidayal Rolling Mills V. Prakash Chimanlal Parikh and others (1993) 2 Supreme Court Cases 470 at page 472 it is inter alia held that 'though the principle of res judicata can be invoked not only in separate subsequent proceedings but they can also get attracted in subsequent stage of the same proceedings, but this question would depend on the facts and circumstances of each case and the nature of the order passed at an earlier stage of the proceedings.'
27.Indeed, res judicata will have to be considered by a Court of law with reference to pleading, record and judgment.
28.Added further, in the decision K.A.Abdul Jaleel V. T.A.Shahida of Hon'ble Supreme Court (2003) 4 SCC 166 it is among other things observed that 'moreover, the question of jurisdiction having already been determined in an inter parties judgments of High Court which had become final, that judgment, held, operated as res judicata in present proceedings.' Also in the decision of Hon'ble Supreme Court K.Muthuswami Gounder V. N.Palaniappa Gounder (1998) 7 Supreme Court Cases 327 at page 329 it is held that 'when the entire matter was still in appeal and the matter had not attained finality and was still in dispute, the principle of res judicata could not arise - Though in some cases, finding recorded at an earlier stage will operate as res judicata if such finding had become final, but in the present case that was not the position.'
29.It is significant to make a mention that in the decision Bhagwan Sahai V. Daryao Kunwar and another AIR 1963 Allahabad 210 it is held that 'where the issues raised in a suit concerning the jointness of the parties and the nature of the property in question in the suit are decided against a party, that decision, unless varied in appeal, is final and binding on the parties concerned. This is so, even if the party prefers an appeal but allows it to be dismissed. ILR 33 All 51 (FB), Rel. on.'
30.It is to be borne in mind that unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject matter of the second suit is the same as in the first. Mere identity of the some of the issues in the two suits does not bring about an identity of the subject matter in the two suits. As a matter of fact, the plea of bar under Order 23 Rule 1(4) of Civil Procedure Code is a pure question of law that can be debated at any stage of the suit including appeal and affects the jurisdiction of the Court as it goes to the route of the matter and can be put forward at any stage of the suit or appeal as the case may be in the considered opinion of this Court.
31.It is not out of place to point out that Section 3 of the Tamil Nadu Patta Pass Book Act, (4 of 1986). Section 3 speaks of the 'Issue of Patta Pass Book' and Section 4 says that the entries in the patta pass book and the certified copies of entries in the patta pass book shall be presumed to be true and correct until the contrary is proved or a new entry is lawfully substituted therefor. Also Section 6 of the said Pass Book Act enjoins that the entries in the patta book issued by the Tahsildar under Section 3 of the Act shall be prima facie evidence of title of the person whose name the patta pass book has been issued to the parcels of the land entry in the patta pass book, free of any prior encumbrance, unless otherwise specified therein. Further, Section 10 refers to the modification of entries in the patta pass book etc. In fact, Section 14 of the Tamil Nadu Patta Pass Book Act, bar of suits against the Government or any officer of the Government in respect of a claim to have an entry made in any patta pass book that is maintained under this Act or to have any such entry omitted or amended. Provided that if any person is aggrieved as to any right of which he is in possession, by an entry made in the patta pass book under this Act, he may institute a suit for a declaration of his rights under Chapter VI of the Specific Relief Act, 1963 (Central Act 47 of 63); and the entry in the patta pass book shall be amended in accordance with any such declaration.
32.Continuing further, Section 46(1) of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 speaks of finality of orders passed under this Act and it is specifically states that any order passed by any officer, the Government or other authority or any decision of the Tribunal or the Special Appellate Tribunal under this Act in respect of matters to be determined for the purposes of this Act shall, subject only to any appeal or revision provided under this Act, by final and sub-section (2) says that 'no such order or decision shall be liable to be questioned in any Court of law'. Section 47 refers to jurisdiction of Courts barred in certain cases as mentioned therein.
33.In the decision Addanki Tiruvenkata Thata Desika Charyulu (since deceased) V. State of Andhra Pradesh and another AIR 1964 Supreme Court 807 at page 808 and 809 the Hon'ble Supreme Court has inter alia observed as follows:
"Section 9 (4)(c) of the Abolition Act in terms bars the jurisdiction of the Civil Court from questioning the correctness of the appellate decision. In such a situation, there is an express bar to the jurisdiction of the Civil Court to adjudicate upon the question whether "any inam village" is an inam estate or not". But S.9(4)(c) has to be read in conjunction with the positive provision in sub-s. (6) with which it is closely related and under this the decision of the Tribunal is declared to be binding on all persons interested, and a precisely similar effect is predicated as regards the decisions of the Settlement Officer where no appeal has been filed from his decision. The Act thus never meant to draw any distinction between orders of Settlement Officers which were affirmed by Tribunals and other orders which by reason of their not being appealed against within the time prescribed, attained finality.
The very provision setting up an hierarchy of judicial tribunals for the determination of the question on which the applicability of the Act depends, is sufficient in most cases for inferring that the jurisdiction of the Civil Courts to try the same matter is barred. In addition, there is the provision in S. 9(4)(c) read with S. 9(6). In those circumstances, it must be held that to the extent of the question stated in S.9(1), the jurisdiction of the Settlement Officer and of the Tribunal are exclusive and that the Civil Courts are barred from trying or retrying the same question.
This exclusion o jurisdiction of the civil courts would be subject to two limitations: First, even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. AIR 1940 PC 105 at p.106 and AIR 1964 SC 322, Foll.
The second is as regards the exact extent to which the powers of statutory tribunals are exclusive. When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of legislature- the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the legislatures are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts including the existence of the preliminary facts on which, the further exercise of their jurisdiction depends, and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction. (1888) 21 QBD 313 (319-320). Foll.
It is manifest that the answer to the question as to whether any particular case falls under the first or the second of the above categories would depend on the purpose of the statute and its general scheme, taken in conjunction with the scope of the enquiry entrusted to the tribunal set up and other relevant factors."
34.In the decision Katikara Chintamani Dora and others V. Guatreddi Annamanaidu and others AIR 1974 Supreme Court 1069 the Hon'ble Supreme Court has observed as follows:
"There is an express bar to the jurisdiction of the Civil Court to adjudicate upon the question whether "any inam village" is an "inam estate" or not, and to the extent of the question stated in Section 9(1), Madras Act 26 of 1948, the jurisdiction of the Settlement Officer and of the Tribunal are exclusive. But this exclusion of the jurisdiction of the Civil Court would be subject to two limitations. First, the Civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. The second is as regards the exact extent to which the powers of statutory tribunals are exclusive.
35.In the decision S.Vanathan Muthuraja v. Ramalingam @ Krishnamurthy Gurukkal and others (1997) 6 Supreme Court Cases at page 143 wherein it is inter alia held that 'Where statute provides express bar of Civil Court's jurisdiction, examination of the scheme of the statute to find adequacy or sufficiency of the remedies provided may be relevant but not decisive. But in absence of express exclusion such examination to find out intendment is necessary and where Land Reform Act extinguishes pre-existing rights, creates new rights and provides jurisdiction of the tribunals to enquire into rival claims and decide and also provides for appeal and finality of orders passed under the Act, held, by necessary implication civil court's jurisdiction excluded giving not only the finality to the decisions of the tribunal but also ensuring disposal of the matters by the tribunal and making the ryotwari patta granted to the tiller of the soil conclusive.'
36.Admittedly, as far as the present case is concerned, the revision petitioners/defendants 1 and 2 have not filed any application before the trial Court under Order 7 Rule 11 (a) to (d) of Civil Procedure Code praying for rejection of plaint in O.S.No.828 of 2007 on the file of District Munsif, Alandur filed by the first respondent/plaintiff.
37.No doubt, the inclusion of cause of action is a requirement under Order 7 Rule 1 of Civil Procedure Code. Generally, the Court has to presume that every allegation in the plaint is true. But when the plaint raises arguable points the same may not be rejected in law. In fact, if the averments made in the plaint and the documents relied upon discloses a cause of action, then the plaint should not be merely rejected on the ground that the averments are not sufficient to prove the facts stated therein. Moreover, a Court of law can examine the parties to clear the pleadings.
38.It is to be remembered that in respect of matters dealt with by the authorities under the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963, the jurisdiction of the civil Courts is barred, except where title to property is to be adjudicated and any decision by the Civil Court on the question of title is binding on the functionaries under the Act. One may add, the mere fact that the orders have been passed or decisions rendered under the Tamil nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 and also the other Abolition Acts have been given finality for the purpose of those Acts or that issues which they are obliged or required to be decided, when so decided are ordained to bind the parties to the proceedings or their privies and successors-in-interest applying the principles of res judicata does not have the effect of ousting the jurisdiction of the civil Court, in the considered opinion of this Court. There may be well settled exceptions where the civil Courts are entitled to nullify any or all the decisions. As a matter of fact, the jurisdiction of the Civil Court to go into the question of applicability of principles of res judicata in a particular case or not cannot be denied to a civil Court and the mere factum of reaching finality to the orders or decisions given under the Act of the application of principles of res judicata, a bar or ouster of jurisdiction of a civil Court cannot be inferred automatically on any score. Further, in the decision Manicka Naicker V. Elumalai Naiker of Hon'ble Supreme Court (1995 4 SCC at page 156), the jurisdiction of the civil Court to entertain a suit for recovery of land, which has earlier been the subject matter of Inams Abolition Act has been upheld.
39.On a careful consideration of respective contentions and in view of the conflicting and competing stand taken by the respective parties which are a mixed question of fact and law, to be proved by means of oral and documentary evidence besides raising contentious points, this Court without going into the merits of the matter opines that the civil revision petitioners cannot seek in aid of the jurisdiction of this Court under Article 227 of the Constitution of India and further, on the basis of Equity, Fair play and even as per Law directs the trial Court viz., the learned District Munsif, Alandur to dispose of the main suit O.S.No.828 of 2007 within a period of five months from the date of receipt of copy of this order in accordance with the well settled principles of law and to report compliance to this Court and added further, the supervisory discretionary jurisdiction of this Court under Article 227 of the Constitution of India has to be sparingly exercised based on the overall assessment of facts and circumstances of the case in a cumulative fashion. Liberty is given to the revision petitioners to raise all factual and legal contentions before the trial Court including the plea of maintainability of suit (even on the ground of applicability of principles of res judicata under Section 11 of C.P.C. and the applicability of Order 23 of C.P.C.) in the manner known to law. The parties are directed to cooperate with the trial Court in regard to the completion of proceedings.
In fine, the Civil Revision Petition is disposed of in above terms, leaving the parties to bear their own costs. Consequently, connected miscellaneous petition is closed.
sgl To The District Munsif, Alandur