Mohammad Jannath Beevi, v. A.M. Mohamed Shafee,

ORDER

C.R.P(MD)No.1046 of 2023 has been filed against the fair and decretal order, dated 07.01.2022 passed in I.A.No.122 of 2021 in O.S.No.60 of 2019 on the file of the Additional District Court, Ramanathapuram.

¶2C.R.P(MD)No.1047 of 2023 has been filed against the fair and decreetal order, dated 07.01.2022 passed in I.A.No.179 of 2021 in O.S.No.25 of 2019 on the file of the Additional District Court, Ramanathapuram.

¶3By the impugned order, the Additional District Court, Ramanathapuram has dimissed I.A.No.122 of 2021 in O.S.No.60 of 2019 and I.A.No.179 of 2021 in O.S.No.25 of 2019 filed by the petitioners herein. The respective suits have been filed by the respondents for partition of the suit schedule property. The respective interlocutory applications in the respective suits have been filed by the petitioners under Order 7 Rule 11 (a) of C.P.C for rejecting the plaint on the ground that the suit is barred under law. The relevant portion of the order in I.A.No.122 of 2021 in O.S.NO.60 of 2019 reads as under:

¶16kDjhuh;fspd; kD vjph;kDjhuh;fspd; vjph; ciu> Mtzq;fs; kw;Wk; ,Ujug;G thjciufs; midj;Jk; ,e;ePjpkd;wj;jhy; ed;F ghprPypf;fg;gl;lJ. vjph;kDjhuh;fs;/thjpfs; ,t;tof;fpy; jhf;fy; nra;Js;s gpuhij ghh;f;Fk;NghJ gpuhjpy; ve;j ,lj;jpYk;

01.04.1973-k; Njjpa ghf[hgpjh gw;wp Fwpg;gpltpy;iy vd;gJk; njhpatUfpwJ. mNjNghy ,t;tof;fpy; Nrh;f;fg;glhj kw;w nrhj;Jf;fs; Fwpj;J ,Nj vjhpkDjhuh;fs; thjpfshf ,Ue;J jhf;fy; nra;j O.S.No.25 of 2019 tof;fpy; jhf;fy; nra;ag;gl;l gpuhjpYk;

01.04.1973-k;

Njjpapl;l

ghf[hgpjhit

gw;wp ve;j ,lj;jpYk; Fwpg;gpltpy;iy vd;gJk; njhpatUfpwJ. Mf ,t;tof;fpd; gpuhJ kw;Wk; O.S.No.25 of 2019 tof;fpd; gpuhJ Mfpatw;wpy; 01.04.1973-k; Njjpapl;l ghf[hgpjhit gw;wp ,e;j vjph;kDjhuh;fs;/thjpfs; Fwpg;gpl;L VJk; nrhy;ytpy;iy vd;gJk; vjph;kDjhuh;fs; jug;gpy; xg;Gf;nfhs;sg;gl;Ls;sJ. Mdhy; mNjrkak;

01.04.1973-k; Njjpapl;l ghf[hgpjhit gw;wp jhth ,uz;L tof;FfspYk;

vjph;kDjhuh;fs;

kiwj;Js;shh;fs; vd;gij kl;Lk; itj;Jf;nfhz;L jhth ,uz;L tof;Ffspd; gpuhijAk; ePf;fuT nra;ag;glf;$bajh? vd;gij ehk; Muha Ntz;bAs;sJ.

17.

jhth

,uz;L

tof;FfspYk; kDjhuh;fs;/gpuhjpthjpfs;

jhf;fy;

nra;js;s vjph;tof;Fiuapy; 01.04.1973-k; Njjpapl;l ghf[hgpjhit gw;wp Fwpg;gpl;L Nkw;gb ghf[hgpjhtpd; mbg;gilapy; jhth nrhj;Jf;fs; mtuth; ghfj;jpw;F xJf;fg;gl;L mtuth;fshy; jdpj;jdpahf mDgtk; nra;J mtuth;fs; ngahpy; gl;lh kw;Wk; ngah; khw;wk; nra;ag;gl;L mDgtpj;J tUtjhfTk;> jhth nrhj;Jf;fs; Vw;fdNt

01.04.1973-k; Njjpapl;l ghf [hgpjhtpd; mbg;gilapy; ghfg;gphptpid nra;ag;gl;Ltpl;ljhy; kPz;Lk; ghfg;gphptpid nra;af;Nfhhp vjph;kDjhuh;fs;/thjpfs; Nfl;Ls;s ghpfhuKk; mth;fSf;F fpilf;fj;jf;fjy;y vdW; $wg;gl;Ls;sJ. 01.04.1973-k; Njjpapl;l ghf[hgpjh rl;lg;gb nry;yf;$ba Mtzkh? kw;Wk mJTk; rl;lg;gb Vw;fj;jff; Mtzkh? vd;gij gw;wp jw;Nghija epiyapy; ,e;ePjpkd;wk; KbT nra;aKbahJ. 01.04.1973-k; Njjpapl;l ghf[hgpjh rl;l eilKiwf;F nfhz;Ltug;gl;ljh? vdg; ijAk; mjd; mbgg; ilapy; mtuth;fSf;F ghfq;fs; jdpj;jdpahf gphptpid nra;ag;gl;L mtuth;fshy; mDgtpj;J tug;gLfpwjh? vd;gijAk; jw;Nghija epiyapy; ,e;ePjpkd;wk; jPh;khdpf;f ,ayhJ. 01.04.1973-k; Njjpapl;l ghf[hgpjh rl;lg;gb Vw;fj;jf;f Mtzkh? my;yJ rl;lg;gb nry;yf;$ba Mtzkh? kw;Wk; mjd; mbgg; ilapy; ,t;tof;F nrhj;Jf;fs; ghfg;gphptpid nra;ag;gl;Ltpl;ljh? vd;gijgw;wp Kjd;ik tof;fpy; ,Ujug;gpYk; Kd;dplg;gLk; Mtzq;fspd; %yk;jhd; jPh;khdpf;f KbANk jtpu vLj;j vLg;gpNyNa Nkw;fz;l Mtzj;jpd; nry;Yk; jd;ik Fwpj;J jPh;khdk; nra;a KbahJ vd;W ,e;ePjpkd;wk; fUJfpwJ.

¶18NkYk; 01.04.1973-k; Njjpapl;l ghf[hgpjh gw;wp vjph;kDjhuh;fs;/thjpfs; jhf;fy; nra;Js;s ,uzL; tof;Ffspd; gpuhjpy; Fwpg;gplhky; kiwj;Js;shh;fs; vd;w fhuzj;ij kl;LNk mbg;gilahf itj;Jf;nfhz;L vjph;kDjhuh;fs;/thjpfs; jhf;fy; nra;Js;s gpuhij ,t;tof;fpd; Muk;g fl;l epiyapNyNa epuhfhpf;f KbahJ vd;Nw ,e;j ePjpkd;wk; fUJfpwJ. kDjhuh;fs;/gpuhjpthjpfs; jug;gpy; Nkw;Nfhs; fhl;lg;gl;Ls;s jPh;gG; fs; midj;Jk; ,t;tof;fpd; nghUz;ikj;jd;ikf;F vt;tpjj;jpYk; nghUe;jf; $bajpy;iy vd;Wk; Nkw;fz;l jPh;gG; fspd; mbg;gilapy; jhth gpuhij ePf;fuT nra;tJ ePjpapd; eyDf;F cfe;jjy;y vd;Wk; ,e;ePjpkd;wk; fUJfpwJ. vjph;kDjhuh;fs;/ thjpfs; ,t;tof;if jhf;fy; nra;tjw;F vt;tpj tpah[;[pa%yKk; fpilahJ vdW; k;> mjd; mbgg; ilapy; gpuhij ePf;fuT nra;aNtz;Lnkd;Wk;

kDjhuh;fs;

jug;gpy; nrhy;yg;gl;Ls;s thjKk; rl;lg;gb Vw;fj;jf;fjy;y vd;Nw ,e;ePjpkd;wk; fUJfpwJ.

19.vjph;kDjhuh;fs;/thjpfs; jhf;fy; nra;Js;s tof;fpw;F

tpah[;[pa%yK;k

,Uf;fpwjh? my;yJ

,y;iyah?

vd;gijg;gw;wp

Kjd;ik tof;fpy; ,Ujug;gpYk; rhl;rpaq;fs; Kd;dplg;gl;l gpwFjhd; jPh;khdpf;fKbANk jtpu> jw;Nghija epiyapy;

tprhuiz

njhlq;Ftjw;F Kd;ghfNt ,t;tof;fpy; tpah[;[p%yKk; ,y;iy vd;W KbT nra;a KbahJ vd;Nw ,e;ePjpkd;wk; fUJfpwJ.

01.04.1973-k; Njjpapl;l ghf[hgpjh gw;wp thjpfs; jq;fsJ gpuhjpy; Fwpg;gplhky; kiwj;jpUg;gjpd; thapyhf vjph;kDjhuh;fs; "Suppression of Material facts and Abuse of process of Court" vd;w nraiy nra;jpUg;gjhf jw;Nghija epiyapy; jPh;khdk; nra;a ,ayhJ. mijg;gw;wp Kjd;ik tof;fpy; jhd; jPh;khdk; nra;a KbAk; "Suppression of Material facts and Abuse of process of Court" vd;w mbg;gilapy; gpuhij ePf;fuT nra;af;Nfhhp kDjhuh;fs; NfhhpapUg;gJk; rl;lg;gb Vw;fj;jf;fjy;y vd;W ,e;ePjpkd;wk; fUJfpwJ. vjph;kDjhuh;fs;/thjpfs; ,e;j tof;if "Suppression of Material facts and Abuse of process of Court" Fradulent-Mf jhf;fy; nra;Js;shh;fs; vd;Wk;> Rj;jkhd fuq;fSld; ePjpkd;wj;ij mZftpy;iy vd;Wk;> kDjhuh;fs;

$wpAs;s

Fw;wr;rhl;il

nghWj;J jw;Nghija

epiyapy;

,e;ePjpkd;wk;

KbT fhz ,ayhJ.

¶20mjidg;gw;wp Kjd;ik tof;fpy; jhd; ,U jug;G rhl;rpaj;jpw;F gpwFjhd; KbT nra;a ,aYk;. Nkw;fz;l fhuzj;jpw;fhf gpuhij jw;Nghija epiyapy; ePf;fuT nra;aKbahJ vd;Nw ,e;ePjpkd;wk; jPh;khdk; nra;fpwJ. kDjhuh;fs; $wpAs;s fhuzq;fspd; mbg;gilapy;

vjph;kDjhuh;fs;/thjpfs;

jhf;fy; nra;Js;s gpuhij vLj;j vLg;gpNyNa ePf;fuT nra;tjw;F ve;jtpj mbg;gil rl;l Kfhe;jpuKk; fhzg;gltpy;iy vd;gjhy; kDjhuh;fs; jhf;fy; nra;Js;s ,e;j kDTk; rl;lg;gb epiyf;fj;jf;fjy;y vd;Wk;> vjph;kDjhuh;fs; jhf;fy; nra;Js;s gpuhJk; jw;Nghija epiyapy; ePf;fuT nra;af;$bajy;y vd;Wk; kDjhuh;fspd; kDthdJ nryTj; njhifAld; js;Sgb nra;ag;glf;$baJ vd;W jPh;khdpj;J ,e;j gpur;ridf;F jPh;T fhzg;gLfpwJ.

¶21Kbtpy; ,k;kDthdJ nryTj;njhifAld; js;Sgb nra;ag;gLfpwJ.

¶4Similar observations have been made by the Additional District Court, Ramanathapuram in I.A.No.179 of 2021 in O.S.No.25 of 2019.

¶5The petitioners are the defendants in O.S.No.25 of 2019 and 60 of 2019 before the Additional District Court, Ramanathapuram. The respective suits have been filed by the respondents herein for partition of the suit schedule property. The petitioners herein and the plaintiffs are the paternal cousins.

¶6It is the specific case of the petitioners that the plaint in the above suits have been instituted before the Additional District Court, Ramanathapuram supressing material information regarding yadast, vis, family arrangement entered between the petitioner's father and three of his brother on 01.04.1973. The petitioners and the respondents herein in the respective suits have entered into an oral partition and agreed to divide the property by identify different extent and survey numbers which were purchased by the petitioners and the respondents fathers.

¶7It is submitted that the respondents have also filed O.S.No.57 of 2012 before the Sub Court, Ramanathapuram against the third party wherein also the respondents/plaintiff in O.S.No.57 of 2012 have reiterated their right in terms of yadast signed on 01.04.1973 between them. It is submitted that the suit was filed for declaration and for permanent injunction to restrain the third party from interfering with the peaceful possession of the property. That apart, it is submitted that the respondent have also filed W.P(MD)No.9739 of 2012, which arising out of pattas under the UDR Scheme.

¶8The learned counsel for the petitioners submits that though these proceedings are pending as on date, the fact remains that the yadast was signed on 01.04.1973, which has been suppressed by the respondents while instituting the respective suits in O.S.No.60 of 2019, which is the subject matter of CRP(MD)No.1046 of 2023 and O.S.No.57 of 2012, which is subject matter of CRP(MD)No.1047 of 2023. It is submitted that the Trial Court ought to have considered the facts regarding suppression of material information in the plaint and that the subsequent suit for partition are barred under law.

¶9Per contra, the learned counsel for the first respondent on the other hand fairly conceeds that there was a mistake on part of the respondents to make suitable averments in the respective suits relating to yadast, dated 01.04.1973. However, he would further submitted that there are 7 yadasts, which were signed on the said date. However, these yadasts are not registered documents. That apart, it is submitted that there is no determination of the rights in O.S.No.57 of 2012.

¶10Reference is made to Section 17 of the Registration Act, 1903 and Section 2(15) of the Stamp Act, 1889 and Article 45 of the Stamp Act, which prescribes the stamp duty payable on date of partition. It is submitted that the yadast documents can be relied upon collateral purpose in terms of Section 49 of the Registration Act, 1990. The fact however remains that these documents are not registered although signed by the parties. It is submitted that the law on the subject relating to rejection of the plaint is well settled. The Court is not required to look into the averments in the written statement or the documents or the evidence that may be produced by the defendants while presenting the application. All that the Court is required to examine the suit is whether barred under law or attracts the sting under other Sub Clause to Rule 11 to Order 7 of C.P.C.

¶11Reference is made to the decision of the Hon'ble Supreme Court in the case of Kamala and others Vs K.T.Eshwara Sa and others reported in (2008) 12 SCC 661.The relevant portion of the order reads as under:

¶21Order VII, Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order VII, Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order VII, Rule 11 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order VII, Rule 11 of the Code is one, Order XIV, Rule 2 is another.

¶22For the purpose of invoking Order VII, Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject matter of an order under the said provision.

23.The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage.

¶24It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law.

¶25The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact of law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject matter thereof, the application for registration of plaint should be entertained. As far as the suppression is concerned, the Hon'ble Supreme Court held as under: "39. We may place on record that the plaintiffs are said to be guilty of suppression of facts, as would appear from para 2 of the application filed under Order VII, Rule 11(d) of the Code, but then what would be the effect of such suppression has to be determined. [See S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and others, AIR 1994 SC 853] What would be the effect of non-availability of the property vis-`-vis the contentions of the respondents in regard to Item No. 8 is a question which requires further probe."

¶12I have considered the arguments advanced by the learned counsel for the petitioner and the learned counsel for the first respondent and perused the decision cited by the learned counsel for the petitioner and the learned counsel for the respondent. I have also perused the copy of the yadasts, dated 01.04.1973.

¶13However, these documents are matters, which have to be gone into after the evidence is recorded during trial and after arguments. The pendency of O.S.No.57 of 2012 against the third party based on the aforesaid yadasts, dated 01.04.1973 in respect of particular portion of the suit schedule property would not compel the Court to come to conclusion that the suit instituted subsequently in O.S.Nos.60 of 2019 and 25 of 2019 filed by the respondents are barred under law.

¶14In my view, the Trial Court has come to a fair conclusion that the petitioner had not made out a case for rejecting the plaint. The impugned order does not call for any interference. Therefore, the respective civil revision petitions are dismissed. However, there shall be a direction to the Additional District Court, Ramanathapuram to dispose of the O.S.No.60 of 2019 and 25 of 2019 as expeditiously as possible.

¶15Considering the fact that the respondents have also filed O.S.No.57 of 2012 on the strength of yadasts, dated 01.04.1973, there also shall be a direction to the sub Court, Ramanathapuram to dispose of the O.S.No.57 of 2012 as expeditiously as possible preferably within a period of 9 months from the date of receipt of copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.

24.04.2023 NCC : Yes / No Index : Yes / No Internet : Yes / No sn To

1.The Additional District Court, Ramanathapuram.

2.The Sub Court, Ramanathapuram.

3.The Vernacular Section, Madurai Bench of Madras High Court, Madurai. C.SARAVANAN

,J.

SN C.R.P(MD)Nos.1046 and 1047 of 2023

24.04.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24.04.2023 CORAM THE HON'BLE MR.JUSTICE C.SARAVANAN and C.M.P(MD)Nos.4930 and 4932 of 2023 C.R.P(MD)No.1046 of 2023 1.Mohamad Jannatha Beevi ...1st Petitioner/1st Petitioner/ 29th Defendant Mohamed Jameel (died on 15.03.2022) 2.Mohamed Jamaludeen 3.Ahmad Mauroof 4.Abdul Majeed 5.Mohamed Nijamudeen 6.Mohamed Sharif 7.Thajus Sherifa 8.Noorul Arifa 9.Jamal Sherif 10.Muzammil Bakir 11.Zahir Fathima 12.Naeemul Faiza 13.Aashiqa Parveen 14.Ahamed Marzuka 15.Hilur Sharifa 16.Mufiha Parveen 17.Mohamed Mukthar 18.Hameed Tahir 19.Naina Mohamed Sahib 20.Ahamed Azhar ...1 to 20 Petitioners/ 21 to 23 Petitioners/ 50, 51 & 53 Defendants 21.Minor.Mohamed Hassan Almas 22.Minor.Seyed Hassan Afras 23.Minor.Ahmed Zaeem ...21 to 23 Petitioners/ LR's of deceased Mohamed Jameel and 2nd Petitioner and 30th Defendant (21 to 23 Petitioners are Minors represented through his Mother Ahamad Marzukal/14th Petitioner) Vs. 1.A.M.Mohamed Shafee 2.A.M.Syed Ahmed ... 1 to 2 Respondents/ Respondents/Plaintiffs 3.Mohamed Lafir 4.Mohammad Sadiq ...3 to 4 Respondents/ 18 to 20 Petitioners/ 47 & 49 Defendants PRAYER: Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the fair and decretal order, dated 07.01.2022 passed in I.A.No.122 of 2021 in O.S.No.60 of 2019 on the file of the Additional District Court, Ramanathapuram. For Petitioners : Mr.S.Vashik Ali For R1 : Mr.K.Guhan Caveator C.R.P(MD)No.1047 of 2023 1.Abida Beevi 2.Seyed Luthufia 3.Seyed Casim 4.Seyed Sulthan Beevi 5.Ummul Khair Sidiqua ...1 to 5 Petitioners/ 1 to 5 Defendants Majeethathul Ameen (Died on 30.04.2021) 6.Zeenath Marlia ...6th Petitioner/ 7th Petitioner/ 7th Defendant 7.Fousul Ameena 8.Ahmed Shafeeq 9.Zameek Mohideen 10.Ahmed Musthaq ...7 to 10 Petitioners/ 11 to 14 Defendants Mohamed Sathak Ummal (Died on 18.12.2022) Lathifa Beevi (Died on 01.12.2019) 11.Noorul Mahriba 12.Jamal Ashraj 13.Mohideen Meera Beevi 14.Ahamed Jalaludeen 15.Rifath 16.Mahmood Ali 17.Kamila Beevi ...11 to 17 Petitioners/ 19 to 25 Defendants 18.Mohamed Jannath Beevi 19.Inul Shareefa ...18 & 19 Petitioners/ 28 & 29 Defendants Mohamed Jameel (Died on 15.03.2022) 20.Mohamed Jamaludeen 21.Ahmed Mauroof 22.Abdul Majeed 23.Mohamed Nijamudeen 24.Mohamed Sharif 25.Thajus Sherfia 26.Noorul Arifa ...20 to 26 Petitioners/ 31 to 37 Defendants 27.Jamal Sherif 28.Muzammil Bakir 29.Zahir Fathima 30.Ahmed Marzuka 31.Hilur Sharifa 32.Mufliha Parveen ...27 to 32 Petitioners/ 39 to 44 Defendants 33.Mohamed Mukthar 34.Seyed Hameed Thahir 35.Naina Mohamed Sahib 36.Seyed Amina Ummal 37.Shamed Azhar ...34 to 37 Petitioners/ 48 to 51 Defendants 38.Syed Mirfaqha 39.Jamal Muadh ...38 & 39 Petitioners/LR's of Deceased majeethathul Ameena and 6th Petitioner and 6th Defendant 40.Minor.Mohamed Hassan Almas 41.Minor.Seyed Hassan Afras 42.Minor.Ahmed Zaeem ...40 to 42 Petitioners/ LR's of deceased Mohamed Jameel and 30th Petitioner and 30th Defendant (40 to 42 Petitioners are Minors represented through his Mother Ahamad Marzukal/30th Petitioner) 43.Naeemul faiza 44.Aashiqa Parveen ...43 & 44 Petitioners/ LR's of deceased Lathifa Beevi and 16th Petitioner and 16th Defendant Vs. 1.A.M.Mohamed Shafi 2.A.M.Syed Ahamed 3.A.M.Abdul Malik ...1 to 3 Respondents/ Respondents/Plaintiffs 4.A.M.Mohammad Sahul Hameed 5.Ahamad Bais 6.Majeedhu Nisha Bheevi ...4 to 6 Respondents/ 8 to 10 Petitioners/ 8 to 10 Defendants 7.Thapule Aalam @ Nathharthple Aalam Bhadhusha 8.Amir Amanulla ...7 & 8 Respondents/ 17 & 18 Petitioners/ 17 & 18 Defendants 9.Mohammad Noorul Amin 10.Inul Aarifa Bheevi ...9 & 10 Respondents/ 26 & 27 Petitioners/ 26 & 27 Defendants 11.Bajrool Amin ...11th Respondent/ 38th Petitioner/ 38th Defendant 12.Mohamed Lafir 13.Mohamad Sadiq ...12 & 13 Respondents/ 45 & 47 Petitioners/ 45 & 47 Defendants PRAYER: Civil Re