P. Selvi vs K. Arumugham

P.R. Shivakumar, J.—This revision is directed against the order of the learned Subordinate Judge, Rasipuram dated 29.01.2011 made in I.A. No. 489/2010 in O.S. No. 123/2010 on the file of Sub Court, Rasipuram.

The above said suit has been filed by the respondents 1 to 3 herein against the revision petitioners for partition in respect of 76 1/2 cents of land comprised in S. No. 133/3 of Minnakkal Agraharam Village, Rasipuram Taluk, Namakkal District into two equal shares and allot one such share to the plaintiffs and also for a permanent injunction restraining the petitioners herein from in any way preventing the respondents herein from using the alleged cart track marked as ABCD in the plaint plan to reach their share in the above said property comprised in S. No. 133/3.

The suit is resisted by the revision petitioners contending that the suit has been filed with an ulterior motive to claim a cart track which is not in existence and the prayer has been camouflaged as if they are simply seeking division of the property comprised in S. No. 133/3. The claim of the respondents herein that they do have a right to pass through the alleged cart track shown as ABCD in the plaint plan is resisted by the petitioners herein on the premise that such a plea raised by the respondents herein in a former suit O.S. No. 161/2008 filed by the first petitioner on the file of the District Munsif Court, Rasipuram, wherein they resisted the prayer made by the first respondent herein for permanent injunction in respect her enjoyment of the property comprised in S. No. 133/2 claiming that on the eastern side of the said survey number there was a cart track with a breadth of 12" and that subject to the right of the owners of the property comprised in S. No. 133/3 and 133/5 to use the cart track alone, the first respondent herein could get the relief sought for in the former suit, was negatived by the learned District Munsif, Rasipuram and a decree for permanent injunction came to be granted in favour of the first petitioner.

It is the further contention of the petitioners that only in order to overcome the difficulty caused by such a decree, they have chosen to file the present suit for partition of S. No. 133/3 and in the guise of claiming partition of the said property, they have also made an attempt to give a resurrection to their plea regarding the cart track, which was negatived by the District Munsif Court, Rasipuram in the former suit in O.S. No. 161/2008. Besides filing the suit for partition in respect of S. No. 133/3 and injunction in respect of the alleged cart track shown as ABCD in the plaint plan, the respondents herein also chose to file I.A. No. 489/2010 for appointment of a Commissioner to note down the physical features of the property and also to verify whether the alleged cart track is in existence on ground? Such an attempt was also resisted by the petitioners herein stating that the suit in respect of the second prayer is not maintainable, as it is barred by the principle of res judicata and that the respondents besides making a second attempt to claim a right to such a cart track want to create evidence by appointment of the Commissioner.

Despite such an objection being raised for allowing the prayer made by the respondents herein for appointment of a Commissioner, the learned Subordinate Judge, Rasipuram, chose to allow the said petition and appointed an Advocate Commissioner to make a visit and find out whether there is any cart track in existence, as shown in the plaint plan. The said order of the learned Subordinate Judge dated 29.01.2011 is impugned in the present revision.

The arguments advanced by Mr. K.Vasuvenkat, learned counsel appearing on behalf of the petitioners and by Mr. T.Murugamanickam, learned counsel appearing on behalf of the respondents are heard. The impugned order and the copies of the other documents produced in the form of typed set of papers, the correctness of which has been admitted by both parties, are also taken into consideration.

It is not in dispute that the property comprised in S. No. 133/2 lies on the north, the property comprised in S. No. 133/3 lies in the middle and the property comprised in S. No. 133/5 lies on the south. The first petitioner Selvi is admittedly the owner of the property comprised in S. No. 133/2. She filed a suit in O.S. No. 161/2008 against the respondents herein for a permanent injunction that they were making attempts to trespass into her land and prevent her peaceful enjoyment of the property, the subject matter of O.S. No. 161/2008. It is also an admitted fact that the respondents herein, who were the defendants in the said suit, without disputing the fact that the first petitioner was the owner of the property comprised in S. No. 133/2, contended that there was a common cart track on the eastern portion of S. No. 133/2 as an access to the sub divisions lying on the south of S. No. 133/2 and that excluding the said portion alone, the first petitioner herein would be entitled to an injunction. The claim of the respondents herein that there was a cart track on the eastern portion of S. No. 133/2 was denied by the first petitioner in the former suit.

Ultimately, after trial, the learned District Munsif, Rasipuram allowed the suit holding that the respondents herein, who figured as defendants in the said suit, were not able to prove the existence of the said cart track. As against the said decree dated 29.07.2010 passed in O.S. No. 161/2008, an appeal came to be filed by the respondents herein in A.S. No. 51/2010 on the file of the Sub Court, Rasipuram, wherein the suit filed by the present respondents, from which the present civil revision petition has arisen, is also pending.

As rightly pointed out by the learned counsel for the petitioners, having lost the legal battle in the former suit by their failure to establish the existence of a cart track on the eastern part of S. No. 133/2, the respondents have made a second attempt by filing the present suit O.S. No. 123/2010 on the file of Sub Court, Rasipuram, not only for partition of S. No. 133/3, but also reviving their claim of user of the cart track allegedly in existence on the eastern part of S. No. 133/2, by seeking a permanent injunction not to prevent them from using the said cart track. Prima facie such a plea shall be barred by the principle of res judicata, as a competent court had already decided the said issue.

During the course of arguments in the revision, learned counsel appearing for the petitioners has also brought to the notice of the court that the appeal filed against the decree passed in O.S. No. 161/2008, namely A.S. No. 51/2010 on the file of Sub Court, Rasipuram also came to be dismissed, confirming the decree of the trial court, by its judgment dated 21.07.2012 and that no second appeal there from came to be filed. The said fact is not disputed by Mr. T.Murugamanickam, learned counsel for the respondents and on the other hand, learned counsel admits the correctness of the said submission. As such, it is quite clear that the issue regarding the existence of otherwise of the cart track on the eastern part of S. No. 133/2 has been decided in the former suit and the judgment has become final. As such, the impugned order by which the commissioner has been appointed is aimed at nullifying the finding rendered in the former suit. Therefore, the said order, as rightly contended by the learned counsel for the petitioner, cannot stand the scrutiny of this court and the same deserves to be set aside.

Accordingly, the revision succeeds. The impugned order of the learned Subordinate Judge, Rasipuram dated 29.01.2011 passed in I.A. No. 489 of 2010 in O.S. No. 123 of 2010 is set aside. I.A. No. 489/2010 shall stand dismissed. However, there shall be no order as to cost. Consequently, the connected miscellaneous petition is closed.