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T. Kanchanadevi Vs. Dr. P. Balachander and Others - Court Judgment

LegalCrystal Citation
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 1265 of 2011, W.P.No. 23093 of 2011 & M.P.Nos. 1 of 2011 (in 2 Nos.)
Judge
AppellantT. Kanchanadevi
RespondentDr. P. Balachander and Others
Excerpt:
(prayer: second appeal filed under section 100 of the civil procedure code against the judgment and decree of the i additional districit judge, coimbatore dated 22.07.2011 in a.s.no.40 of 2010, reversing the fair and decreetal order of the principal subordinate court, tirupur dated 31.03.2010 in i.a.no.1686 of 2009 in o.s.no.291 of 2009. writ petition filed under article 226 of the constitution of india praying this court to issue a writ of certiorarified mandamus to call for the records of the first respondent pertaining to the proceedings in no.e1/10975/2010 dated 22.08.2011 and quash the same and consequently direct the respondents 1 and 2 to measure the property in g.s.no.805 at varapatty village, sulur taluk, coimabtore district by a different surveyor.) common judgment 1. the above.....
Judgment:

(Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree of the I Additional Districit Judge, Coimbatore dated 22.07.2011 in A.S.No.40 of 2010, reversing the fair and decreetal order of the Principal Subordinate Court, Tirupur dated 31.03.2010 in I.A.No.1686 of 2009 in O.S.No.291 of 2009.

Writ Petition filed under Article 226 of the Constitution of India praying this Court to issue a Writ of Certiorarified Mandamus to call for the records of the first respondent pertaining to the proceedings in No.E1/10975/2010 dated 22.08.2011 and quash the same and consequently direct the respondents 1 and 2 to measure the property in G.S.No.805 at Varapatty Village, Sulur Taluk, Coimabtore District by a different Surveyor.)

Common Judgment

1. The above Second Appeal arises against the Judgment and Decree passed in A.S.No.40 of 2010 on the file of I Additional District Court, Coimbatore, reversing the fair and final order passed in I.A.No.1686 of 2009 in O.S.No.291 of 2009 on the file of Principal Subordinate Court, Tirupur.

2. The first defendant is the appellant and the respondent is the plaintiff. The plaintiff filed a suit in O.S.No.291 of 2009 for Mandatory Injunction, Declaration and Permanent Injunction.

3. In the suit, the first defendant filed an application in I.A.No.1686 of 2009 under Order 7 Rule 11 of Civil Procedure Code to reject the plailnt. After contest, the trial Court allowed the application and rejected the plaint. Aggrieved over the same, the plaintiff preferred an appeal in A.S.No.40/2010 and the lower Appellate Court reversed the order passed by the trial Court and allowed the appeal. Against the judgment and decree passed in A.S.No.40/2010, the first defendant has filed the above Second Appeal.

4. The Writ petition in W.P.No.23083 of 2011 has been filed by the first defendant in the Suit to issue a Writ of Certiorarified Mandamus to call for the records of the first respondent pertaining to the proceedings dated 22.08.2011 and quash the same and consequently direct the respondents 1 and 2 to measure the property in G.S.No.805 at Varapatty Village, Sulur Taluk, Coimabtore District by a different Surveyor.

5. The brief case of the plaintiff in O.S.No.291/2009 is as follows:

According to the plaintiff, the first defendant and her sister Tmt.D. Kalpanarani purchased the properties, comprised in G.S.No.805 and 269/1 of Varapatty and Vadavedampatty Village in their joint names vide Sale Deed dated 1.07.1972. Under a Registered Partition Deed dated 10.12.1986, the properties were divided among the first defendant and her sister Tmt.D. Kalpanarani . An extent of 14.46 acres comprised in G.S.No.805, together with half right in the Well, 10 H.P Motor and Pump sets and a right in the passage were allotted to the share of Tmt.D. Kalpanarani, which is the "A" schedule property.

6. The first defendant filed a suit in O.S.No.72/2008 on the file of District Court, Coimbatore for permanent injunction restraining her sister Tmt.D. Kalpanarani from encumbering or alienating the properties, allotted to her under the Partition Deed dated 10.12.1986 and also for permanent injunction restraining her sister from pumping water from the Well situated in S.F.No269/1 to any other property without the consent of the first defendant.

7. In the said suit, the first defendant filed an application in I.A.No.147/2008 for temporary injunction, which was dismissed by the trial Court and on appeal, preferred by the first defendant, before this Court in C.M.A.No.1241/2008, the matter was compromised between the sisters and a Memo of Compromise was filed before this Court and the same was also recorded and the judgment was pronounced on the basis of the Memo of Compromise. Under the said Compromise, D. Kalpana Rani relinquished her right of half share in the Well, situated in S.F.No.269/1.

8. The plaintiff purchased the property from Tmt.D. Kalpana Rani, under a Registered Sale Deed dated 9.5.2008, with specific measurements and boundaries. The property, purchased by the plaintiff, is the suit property. The suit property is situated on the east of the property, owned by the first defendant. The plaintiff came to know that the first defendant appears to have submitted an application before the second defendant to measure the properties. She has also filed a Writ Petition in W.P.No.29291/2008 for a direction to the second defendant to consider the representation, given by her. This Court, by Order dated 11.02.2008 directed the second respondent to pass order on the representation given by the first defendant.

9. Pursuant to the order of this Court, the second defendant caused notice and measured the entire lands comprised in G.S.No.805. The first defendant did not raise any objection even after the measurement was completed by the second defendant. Due to misunderstanding with her sister, the first defendant again submitted an application before the second defendnat to remeasure the entire properties, comprised in G.S.No.805, on the ground that there is shortage of about 40 cents in her property. Her remedy is only to fight against her sister. In pursuance of the application, given by the first defendant, the second defendant issued a Communciation dated 10.07.2009 to the effect that the Defendants 2 and 3 intended to inspect the properties of the plaintiff. Though there is no necessity for inspecting the properties of the plaintiff, based on the application, given by the first defendant, the defendants 2 and 3 measured the properties, comprised in G.S.No.805 and found that the plaintiff was in possession of an extent of 4.18 acres, even though he is entitled to 4.20 acres as per the Sale Deed dated 9.5.2008.

10. The defendants 2 and 3 have not demarcated the suit property. The plaintiff requested the defendants 2 and 3 to demarcate the suit property. However, the defendants 2 and 3 are protracting the issue on some false pretexts. The first defendant has no semblance of title to the suit property. But with an intention to harass and brow beat the plaintiff, she is interfering with the plaintiff's peaceful posession and enjoyment of the suit property. In these circumstances, the plaintiff filed the suit.

11. The brief case of the first defendant in I.A.No.1686/2009 in O.S.No.291/2009 is as follows:

According to the first defendnat, G.S.No.805 measures a total extent of 20.89 acres and the first defendant is entitled to 6.43 acres and the remaining extent of 14.46 acres belonged to the plaintiff's vendor Kalpana Rani. The plaintiff purchased an extent of 4.20 acres from Kalapana Rani under a Sale Deed dated 9.5.2008. Out of the remaining extent of 10.26 acres, Kalpana Rani had sold 5.41 acres to one S.K. Kaleeswaran and an extent of 4.85 acres to one S. Veerakumaran, under two separate Sale Deeds dated 02.07.2008. These two purchasers were notimpleaded as parties in the above suit.

12. The suit in O.S.No.72/2008 was filed by her, mainly in respect of her rights in the Well in G.S.No.269/1. Under a Partition Deed dated 10.12.1986, an extent of 6.43 acres was allotted to the first defendant and 14.46 acres was allotted to Kalpana Rani. Similarly, an extent of 4.20 acres was purchased by the plaintiff; an extent of 5.41 acres was purchased by S.K. Kaleeswaran and 4.85 acres was purchased by S. Veerakumaran with specific boundaries. But the measurements of any of these portions were not given in the Partition Deed or in the Sale deeds. The plaintiff has falsely stated in the plaint that he has purchased 4.20 acres from Kalpana Rani with specific measurements and boundaries.

13. Based on an application dated 27.8.2008, the second respondent measured the property in G.S.No.805, however, the first defendant did not receive any communication on the sub division. Since the property was not sub divided, the first defedant filed a Writ Petition in W.P No.29291/2008.

14. Subsequent to the Orders of this Court, the Tahsildar, Palladam measured the property and issued a Notice dated 10.07.2009 for sub division. As against the order passed in the Writ Petition in WP No.29291/2008, the plaintiff filed a Writ Appeal. After filing of the Writ Appeal, the plaintiff filed the present suit, suppressing the pendency of the writ appeal. Without fixing the boundaries of the portions, owned by the other sharers, it is impossible to locate the portion, owned by the plaintiff. The relief, prayed for in the suit, is contrary to the direction, issued by this Court in the Writ Petition in W.P.No.29291/2008. The very purpose of the suit is to circumvent the order of this Court passed in the Writ Petition in W.P No.29291/2008. After getting an order of Interim injunction on 18.08.2009, the plaintiff withdrew the Writ Appeal in W.A.No.774/2009 on 20.08.2009. The first defendant sought for rejection of the plaint for the reason that there is no cause of action for filing the suit. The relief sought for in the suit is one seeking to restrain Public authorities from exercising their statutory rights and discharging their statutory duties. The claim made by the plaintiff in the suit is contrary to the directions issued by this Court in the Writ Petition in WP No.29291/2008.

15. When the plaintiff himself states that the Tahsildar had measured the lands pursuant to the orders of this Court, he cannot measure the land again. The plaintiff had suppressed the fact that he has filed a Writ Appeal as against the Order passed in the Writ Petition in W.P.No.29291/2008 and by withdrawing the Writ Appeal dated 20.08.2009, the order made in the Writ Petition in WP No.29291/2008 has become final. If the relief prayed for in the suit is granted, it will amount to setting aside the order passed in the Writ Petition in WP No.29291/2008. The suit properties comes within jurisdiction of Sulur Taluk and not within the jurisdiction of Palladam Taluk. The suit is also liable to be rejected on the ground of non-joinder of necessary parites viz., the other purchasers viz., S.K. Kaleeswaran and S. Veerakumaran.

16. The plaintiff filed his counter, disputing the averments, stated in the affidavit, filed in support of the petition.

17. Before the trial Court, on the side of hte plaintiff, twelve documents Exs.R.1 to R.12 were marked and on the side of the first defendant, three documents Exs.P.1 to P.3 were marked.

18. The trial Court, taking into consideration the case of both parties, allowed the application and rejected the plaint. Aggrieved over the order, passed by the trial Court, the plaintiff preferred an appeal in A.S.No.40/2010, and the lower Appelalte Court reversed the order, passed by the trial Court and allowed the appeal. Aggireved over the same, the first defendant has filed the above Second Appeal.

19. Heard Mr.S. Parthasarathy, learned Senior Counsel for the appellant in the Second Appeal and for the petitioner in the Writ Petition and Mr.V. Radhakrishnan, learned Senior Cousnel for the respondent in the Second Appeal and for third respondent in the Writ Petition and Mr.M. Ganesh, learned counsel appearing for the respondents 4 and 5 in the Writ Petition and Mr.T. Jayaramaraj, learned Government Advocate, for the respondents 1 and 2 in the Writ Petition.

20. The brief case of the petitioner in the Writ petition, who is the first defendant in the Suit , is as follows:

According to the petiitoner, she had sent a representation before the respondent on 16.4.2010, requesting him to inspect and measure the properties, comprised in G.S.No.805. However, the first respondent failed to take any action and stated that she can renew the application after taking possession of the property through Court.

21. The petitioner challenged the said order by way of Writ Petition in W..P No.12363/2010. The said Writ Petition was disposed of by this Court on 17.02.2011. The respondents 1 and 2 have failed to carry out the sub division, as directed by this Court and by the impugned order dated 22.08.2011, the third respondent/plaintiff is entitled to 4.11 acres, S.K. Kaleeswaran and S. Veerakumarn are entitled to an extent of 10.33 acres and the writ petitioner/first defendant is entitled to 6 acres in G.S.No.805.

22. The third respondent filed his counter, disputing the averments stated in the affidavit, filed in support of the writ petition and reitering the stand taken by him in the plaint. That apart, the third respondent/plaintiff also stated that the direction, given by this Court in the Writ Petition in W.P No.12363 of 2010, is binding on the peittioner and therefore, she is barred from approaching this Court for the same issue. Further, he has stated that even though he has purchased 4.20 acres, he is in possession and enjoyment of only to an extent of 4.11 acres. In these circumstances, the third respondent prayed for dismissal of the writ petition.

23. At the time of admission of the Second Appeal, the appellant has raised the following substantial questions of law:

A) When the suit reliefs "a" and "b" have been found to have been merged with the order of this Hon'ble Court in W.P.No.12363 of 2010 and binding on the respondent, whether the Lower Appellate Court is correct in law in reversing the order rejecting the plaint, by holding that the suit relief "c" pertaining to permanent injunction is an independent relief?

B) Whether the respondent can maintain the suit for permanent injunction, especially when the suit reliefs "a"and "b" have merged with the order of this Hon'ble Court in W.P.No.12363 of 2010?

C) Whether the plaint is liable to be rejected for the act of supression of the details pertaining to the Writ Appeal in W.A.No.774 of 2009, which was withdrawn only 2 days afer the filing of the present suit, but not disclosed in the plaint?

D) Whether the Lower Appellate Court is correct in law in not even rejecting the plalint with regard to suit reliefs "a" and "b" after having come to the conclusion that they were already decided by this Hon'ble Court in W.P.No.12363 of 2010?

E) When the appointment of Commissioner in the present case pertains only to the suit reliefs "a"and "b", whether the Lower Appellate Court is correct in law in holding that the appointment of Commissioner would not amount to a decree, especially when suit reliefs "a" and "b" have been found to be already covered by the decision of this Hon'ble Court in the Writ Petition in W.P.No.12363 of 2010?

F) Whether the Lower Appellate Court is correct in law in the interpretation of the order of this Hon'ble Court in W.P.No.12363 of 2010, especially when the respondent had not filed the suit for shortfall of land, but with an oblique motive?

24. Mr.S. Parthasarathy, learned Senior Counsel, appearing for the appellant in the Second Appeal and for the petitioner in the Writ Petition, submitted that the Lower Appellate Court, having found that the reliefs "a" and " b" have been merged with the order passed in the Writ Petition in W.P.No.12363/2010 and binding on the respondent, it should not have held that the suit relief "c", pertaining to the relief of permanent injunction is an independent relief and therefore, the plaint should not be rejected. Further, the learned Senior Counsel submitted that the respondent cannot maintain the suit for permanent injucntion especially, when the suit reliefs "a" and "b" have been merged with the order passed in the Writ Petition.

25. The learned Senior Counsel also submitted that the respondent had suppressed the filing of the Writ Appeal in W.A.No.774/1990 in the plaint, which was withdrawn two days after the filing of the suit. The Lower Appellate Court, having found that the suit relief "a" and "b" were already decided by this Court in the Writ petition, ought not to have declined to reject the plaint. Further, the learned Senior Counsel submitted that the suit was not filed for the shortfall of land, as directed in the Writ Petition and the same has been filed with an oblique motive. In support of his contention, the learned Senior Counsel relied on the following judgments:

(i) 2004 (3) SCC 137 (Sopan Sukhdeo Sable and Others vs Assistant Charity Commissioner and Others), wherein the Hon'ble Supreme Court has held as follows:

15. There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair- splitting technicalities.

16. Submission of learned counsel for respondent No.2- trust was that requirement of law being reading the plaint in its totality, the appellants cannot take the plea that they would give up or relinquish some of the reliefs sought for. That would not be permissible. The plea clearly overlooks the basic distinction between statements of the facts disclosing cause of action and the reliefs sought for. The reliefs claimed do not constitute the cause of action. On the contrary, they constitute the entitlement, if any, on the basis of pleaded facts. As indicated above, Order VI Rule 2 requires that pleadings shall contain and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim. If the plea of Mr. Savant, learned counsel for the respondent-trust is accepted the distinction between the statement of material facts and the reliance on them for the claim shall be obliterated. What is required in law is not the piecemeal reading of the plaint but in its entirety. Whether the reliefs would be granted on the pleaded facts and the evidence adduced is totally different from the relief claimed. All the reliefs claimed may not be allowed to a party on the pleadings and the evidence adduced. Whether part of the relief cannot be granted by the Civil Court is a different matter from saying that because of a combined claim of reliefs the jurisdiction is ousted or no cause of action is disclosed. Considering the reliefs claimed vis-a- vis the pleadings would not mean compartmentalization or segregation, in that sense. The plea raised by the respondent-trust is therefore clearly unacceptable.

17. Keeping in view the aforesaid principles the reliefs sought for in the suit as quoted supra have to be considered. The real object of Order VII Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, the Order X of the Code is a tool in the hands of the Courts by resorting to which and by searching examination of the party in case the Court is prima facie of the view that the suit is an abuse of the process of the court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order VII Rule 11 of the Code can be exercised.

18. As noted supra, the Order VII Rule 11 does not justify rejection of any particular portion of the plaint. Order VI Rule 16 of the Code is relevant in this regard. It deals with 'striking out pleadings'. It has three clauses permitting the Court at any stage of the proceeding to strike out or amend any matter in any pleading i.e. (a) which may be unnecessary, scandalous, frivolous or vexatious, or, (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or, (c) which is otherwise an abuse of the process of the Court.

(ii) AIR 1971 Andhra Pradesh 313 (Kalepu Pala Subrahmanyam vs Tiguti Venkata Peddiraju and others), wherein the Andhra Pradesh High Court has held that rejection of plaint should be of the whole of it only. Even when a portion of a plaint alone needs rejection the whole of it has to be rejected.

(iii) 2011 (5) CTC 241 (C. Sabesan Chettiar vs The Divisional Officer, Coimbatore District), wherein the Division Bench of this Court held that under Rule 4 of the Tamil Nadu Patta Pass Book Rules Act 1983, the Tahsildar should relegate parties to Civil Suit in case of disputed title and should not adjudicate title to property.

(iv) 2011 (5) CTC 94 (Vishwas Footwear Company Ltd vs The District Collector and others), wherein the Division bench of this Court held that when both the parties are claiming title and possession over the property, the Revenue Divisional Officer cannot decide title dispute between the parties. When there is dispute as to title, parties should be directed to approach competent Civil Court of law for adjudication of title dispute.

(v) 2014 (2) LW 455 (R. Riyaz Ahmed and others vs J.G. Glass Industries Pvt Ltd), wherein this Court has held as follows:

15. It is settled position that the plea of adverse possession can be raised only as a defence. In other words, the plea of adverse possession can be used only as a shield and not as a sword. In the judgment reported in (2014) 1 Supreme Court Cases 669 [Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and another], the Hon'ble Supreme Court held as follows:

"5. Insofar as Issue 4 pertaining to relief of injunction is concerned, the learned Civil Judge held that as long as uninterrupted possession of the appellant was established, the appellant was entitled to the decree of injunction and the respondents were restrained from dispossessing the appellant forcibly and illegally from the suit land and also restrained from damaging the building of Gurdwara Sahib. Issue 5 was decided against the respondent on the ground that no evidence was led to show how the suit was not maintainable in the present form. While granting relief, the learned Civil Judge partly decreed the suit holding as under:

It is held that the plaintiff is in adverse possession over the suit property since 13-4-1952 and the defendants are restrained from dispossessing the plaintiff forcibly and illegally from the suit property and further restrained from damaging the building of Gurdwara Sahib except according to due process of law. As discussed above, the remaining relief as sought by the plaintiff is dismissed. Decree-sheet be prepared. File be consigned to the record room.

6. It is pertinent to note that the respondents accepted the judgment and decree pertaining to prohibiting injunction. It is the appellant who filed the first appeal. Obviously, the confines of the said appeals related to the issue pertaining to declaration of ownership of adverse possession. The first appellate court while dismissing the appeal observed as under:

The respondents have not challenged the judgment and decree dated 6-1-2009 passed by the learned Civil Judge (Junior Division), Khanna, which means that they have accepted that the appellant was in adverse possession of the suit land since 13-4-1952. The issue whether adverse possession of the appellant-plaintiff had matured into his ownership is purely a question of law and it is a settled position that no declaration of title can be sought on the basis of adverse possession. The learned trial court has rightly relied upon the case titled Gurdwara Sahib Sannauli v. State of Punjab [(2009) 154 PLR 756] wherein it is held that no declaration can be sought by the plaintiff with regard to adverse possession because such a plea is available only to the defendant. Since the appellant was not the lawful owner of the property in dispute, therefore, Respondent 1 was within its rights to auction a part of the same on 19-12-2003 in favour of Respondent 2. Respondent 1 has proved that land measuring 13B-12B was auctioned on 19-12-2003 in the presence of BDPO, Doraha and Ranjit Singh was declared as the last bidder and the auction was struck in his name for a consideration of Rs 1,11,000 and the land measuring 6B on which the building of Gurdwara Sahib had been constructed, was not auctioned.

In view of my above discussion, I find no material illegality or irregularity in the judgment and decree dated 6-11-2009 passed by learned trial court and therefore the appeal is dismissed and the findings of the learned trial court are affirmed. Decree-sheet be prepared. File of the lower court be returned forthwith. File be consigned to the record room.

7. In the second appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable.

8. There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."

From the judgment of the Apex Court, it is clear that the issue whether adverse possession of the plaintiff had matured into his ownership is purely a question of law and it is a settled position that no declaration can be sought on the basis of adverse possession. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession had matured into ownership. Only if proceedings are filed against the plaintiff and the plaintiff is arrayed as defendant that it can use the adverse possession as a shield/defence.

16. In paragraph no.27 of the affidavit filed in support of the application in I.A.No.696 of 2006, the defendants have disputed the maintainability of the suit. As such, the present suit seeking for the relief of declaration on the ground of adverse possession is not maintainable and in view of the judgment of the Apex Court reported in (2014) 1 Supreme Court Cases 669 [Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and another], the said prayer is not maintainable. Therefore, on this ground also the plaint is liable to be rejected under Order 7 Rule 11 of the Code of Civil Procedure. The Courts below, taking into consideration the case of both parties, rightly rejected the plaint.

(vi) 2015 (3) LW 875 (Mrs.Vasumathi H. Shah vs Mrs.Pushpa Raju), wherein this Court has held as follows:

"14. It is another submission of the learned counsel for the respondent/plaintiff that while considering the application under Order VII Rule 11 of CPC to reject the plaint, the documents filed along with the plaint cannot be looked into; only the averments made in the plaint alone have to be taken into consideration. But, I find that since the suit itself has been filed only based on the sale agreement, the said document has to be treated as part and parcel of the plaint. In this regard, a useful reference could be placed in the decision, relied upon by the learned counsel showing as to the documents which are referred to as " agreement holder". We are satisfied that neither the documents were filed along with the Plaint nor the terms thereof have been set out in the Plaint. The above mentioned two documents were to be treated as part of the Plaint as being the part of the cause of action. It is settled law that where a document is used upon and its terms are not set out in th eplaint but referred to in the plaint, the said document gets incorporated by reference in the plaint."

26. Countering the submissions made by the learned Senior Counsel for the appellant/petitioner, Mr.V. Radhakrishnan, learned Senior Counsel, appearing for the respondent in the Second Appeal and the third repsondent in the Writ Petition submitted that the Lower Appellate Court has rightly set aside the order passed by the trial Court, rejecting the plaint. The learned Senior Counsel submitted that while deciding the application under Order 7 Rule 11 of the Civil Prcoedure Code, only the averments stated in the plaint should be taken into consideration. Further, the learned Senior Counsel submitted that the Lower Appellate Court has rightly dismissed the application, filed by the defendnat under Order 7 Rule 11 of Civil Procedure Code. The learned Senior Counsel, in support of his contention, relied upon the following judgments.

(i) 2015 (8) SCC 331( P.V. Guru Raj Reddy represented by GPA Laxmi Narayan Reddy and Another vs P. Neeradha Reddy and others), wherein the Apex Court has held as follows:

1. Both the suits were filed in July 2002 which is well within three years of the date of knowledge, as claimed by the plaintiffs, of the fact that the property had not been transferred in the name of plaintiff No.2 by the defendants Nos. 1 and 2. The aforesaid averments made in the plaint will have to be accepted as correct for the purposes of consideration of the application under Order VII rule 11 filed by the defendants Nos. 1 and 2. If that be so, the averments in the plaint would not disclose that either of the suits is barred by limitation so as to justify rejection of the plaint under Order VII rule 11 of the CPC.

(ii) 2012 (8) SCC 706 (Church of Christ Charitable Trust and Educational Charitable Society represened by its Chairman vs Ponniamman Educational Trust represented by its Chairperson/Managing Trustee), wherein the Hon'ble Supreme Court has held as follows:

8) While scrutinizing the plaint averments, it is the bounden duty of the trial Court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words cause of action . A cause of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue.

(iii)2008 (10) SCC 97 (Abdul Gafur and another vs State of Uttarkhand and others), wherein the Hon'ble Supreme Court has held as follows:

19. It is trite that the rule of pleadings postulate that a plaint must contain material facts. When the plaint read as a whole does not disclose material facts giving rise to a cause of action which can be entertained by a civil court, it may be rejected in terms of Order 7, Rule 11 of the Code. Similarly, a plea of bar to jurisdiction of a civil court has to be considered having regard to the contentions raised in the plaint. For the said purpose, averments disclosing cause of action and the reliefs sought for therein must be considered in their entirety and the court would not be justified in determining the question, one way or the other, only having regard to the reliefs claimed de'hors the factual averments made in the plaint. (See: Church of North India Vs. Lavajibhai Ratanjibhai and Ors.

(iv) 2006 (3) SCC 100 (Mayor (H.K) Ltd and Others vs Owners and Parties, Vessel M.V Fortune Express and Others), wherein the Hon'ble Supreme Court has held as follows:

11. Under Order VII Rule 11 of the Code, the Court has jurisdiction to reject the plaint where it does not disclose a cause of action, where the relief claimed is undervalued and the valuation is not corrected within a time as fixed by the Court, where insufficient court fee is paid and the additional court fee is not supplied within the period given by the Court, and where the suit appears from the statement in the plaint to be barred by any law. Rejection of the plaint in exercise of the powers under Order VII Rule 11 of the Code would be on consideration of the principles laid down by this Court. In T. Arivandandam vs. T.V. Satyapal and Another, (1977) 4 SCC 467, this Court has held 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, the Court should exercise its power under Order VII Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. In Roop Lal Sethi vs. Nachhattar Singh Gill, (1982) 3 SCC 487, this Court has held that where the plaint discloses no cause of action, it is obligatory upon the court to reject the plaint as a whole under Order VII Rule 11 of the Code, but the rule does not justify the rejection of any particular portion of a plaint. Therefore, the High Court could not act under Order VII Rule 11(a) of the Code for striking down certain paragraphs nor the High Court could act under Order VI Rule 16 to strike out the paragraphs in absence of anything to show that the averments in those paragraphs are either unnecessary, frivolous or vexatious, or that they are such as may tend to prejudice, embarrass or delay the fair trial of the case, or constitute an abuse of the process of the court. In ITC Ltd. Vs. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70, it was held that the basic question to be decided while dealing with an application filed by the defendant under Order VII Rule 11 of the Code is to find out whether the real cause of action has been set out in the plaint or something illusory has been projected in the plaint with a view to get out of the said provision. In Saleem Bhai and Others vs. State of Maharashtra and Others, (2003) 1 SCC 557, this Court has held that the trial court can exercise its powers under Order VII Rule 11 of the Code at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial and for the said purpose the averments in the plaint are germane and the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. In Popat and Kotecha Property vs. State Bank of India Staff Association, (2005) 7 SCC 510, this Court has culled out the legal ambit of Rule 11 of Order VII of the Code in these words :

19. "There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence of a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time, it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair- splitting technicalities."

12. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order VII Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order VII Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff-appellants.

(v) 2004 (9) SCC 512 (Liverpool and London S.P and I Associates s M.V Sea Success I and another), wherein the Hon'ble Supreme Court has held as follows:

132. It is trite that a party should not be unnecessarily harassed in a suit. An order refusing to reject a plaint will finally determine his right in terms of Order 7 Rule 11 of the Code of Civil Procedure.

133. The idea underlying Order 7 Rule 11A is that when no cause of action is disclosed, the courts will not unnecessarily protract the hearing of a suit. Having regard to the changes in the legislative policy as adumbrated by the amendments carried out in the Code of Civil Procedure, the Courts would interpret the provisions in such a manner so as to save expenses, achieve expedition, avoid the court's resources being used up on cases which will serve no useful purpose. A litigation which in the opinion of the court is doomed to fail would not further be allowed to be used as a device to harass a litigant. (See Azhar Hussain Vs. Rajiv Gandhi 1986 Supp SCC 315 at 324-35).

REJECTION OF PLAINT:

139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in its entirety, a decree would be passed.

CAUSE OF ACTION:

140. A cause of action is a bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit. For the aforementioned purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence.

141. Order 7 Rule 14 of the Code of Civil Procedure provides as follows:

"14 PRODUCTION OF DOCUMENT ON WHICH PLAINTIFF SUES OR RELIES.

(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. (2) Where any such document is not in the possession or power of the plaintiff, he shall, where possible, state in whose possession or power it is.

(3) Where a document or a copy thereof is not filed with the plaint under this rule, it shall not be allowed to be received in evidence on behalf of the plaintiff at the hearing of the suit.

(4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory."

(vi) 2003 (1) SCC 557 (Saleem Bhai and Others vs State of Maharashtra and Others), wherein the Hon'ble Supreme Court has held as follows:

" 9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of decidinig an application under clauses (1) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot be procedural irregularity touching the exercise of jurisdiction by the trial court. The order, therefore, suffers from non-exercising of the jurisdcition vested in the court as well as procedural irregularity. The High Court, however, did not advert to these aspects.

(vii) 2011(3) CTC 153,(N. Ravindran vs V. Ramachandran) wherein, the Division Bench of this Court held as follows:

10. The well settled position is that while considering the application under Order VII Rule 11 C.P.C., Court is not required to take into consideration the defence set up by the defendant in his written statement or other documents. The question whether plaint discloses any cause of action and whether it is barred by any law is to be decided by looking at the averments contained in the plaint itself and not the defence set up in the written statement. While considering the application, the strength or weakness of the case of the plaintiff is not to be examined. It is fairly well settled that the Court has to find out from the allegations made in the plaint itself and not beyond it as to whether any vexatious or frivolous litigation has been initiated by the plaintiff. The Court cannot take into account materials beyond the plaint to declare that the case of the plaintiff is frivolous or is barred by any law.

(viii) 2011 (6) MLJ 929 (Electronic Machine Tools Limited rep by its Branch Manager, Justin Joseph, Chennai-600 029 vs Power Engineers, Ramanathapuram, Coimbatore), wherein this Court held that the averments in the plaint are sufficient to decide as to whether the cause of action has been mentioned in the plaint or not and there is no need to decide as to whether the cause of action averred in the plaint is true and correct.

(ix) 2014 (5) MLJ 452 (V. Raveendran and Others vs Capt.S.K. Joshua and Others), wherein this Court has held as follows:

39. As illustrated by the Hon'ble Supreme Court in the judgment reported in (2003)9 SCC 606 [Banarsi and others vs. Ram Phal], the necessity to file the cross appeal or objection, arises only when the impugned decree is partly in favour of the appellant and partly in favour of the respondents and in other cases, namely when the decree is entirely in favour of the respondent, though an issue has been decided against the respondent or whether when the decree is entirely in favour of the respondents and all the issues are answered in favour of the respondent, but there is a finding against the respondents, there is no need to file cross appeal or objection and only it is an optional, even in the absence of any appeal or cross objection, adverse finding against the respondents can be challenged by the respondents in the appeal filed by the appellant. Hence, I answered the point No.1 in favour of the 3rd respondent and held that even in the absence of cross objection or appeal, the 3rd respondent is entitled to challenge the findings given in Issue Nos.2 and 3 by the trial court that the appellants were ready and willing to perform their part of their contract.

27. On a careful consideration of the materials available on record, the submissions made by the learned Senior Counsel on either side and also the judgments, relied on by the learned Senior Counsel on either side, it could be seen that the respondent filed a suit in O.S.No.291/2009 for the following reliefs:

"a) Directing the defendants 2 and 3 to measure, demarcate and fix the four boundaries of the suit property only as per the title deed viz., the sale deed dated 09.05.2008 with reference to metes and bounds by appointment of a commissioner;

b) For declaration, declaring that the defendants 2 and 3 are not entitled to measure the entire lands comprised in G.S.No.805 for fixing the four boundaries of the suit property and for consequential relief for permanent injunction restraining the defendants 2 and 3 from measuring other than the suit property for fixing the four boundaries of the suit property;

c) For permanent injunction restraining the first defendant, her men and agents or anybody claiming any right through her from in any interfering with the plaintiff's peaceful possession and enjoyment of the suit property;

d) directing the defendants to pay the plaintiff the costs and

e) grant such further and other relief as this Hon'ble Court may deem fit andproper in the circumstances of the case and render justice".

28. In the said Suit, the first defendant filed an application in I.A.No.1686/2009 under Order 7 Rule 11 of Civil Procedure Code to reject the plaint. In the affidavit, filed in support of the petition, the first defendant has stated that the total extent of the land in G.S.No.805 is 20.89 acres. The first defendant is entitled to 6.43 acres and the remaining extent of 14.46 acres belonged to the plainitiff's vendor Kalpana Rani, who is the sister of the first defendant.

29. The plaintiff purchased an extent of 4.20 acres from the said Tmt.Kalpana Rani under a Registered Sale Deed dated 9.5.2008, marked as Ex.R.5. Out of the remaining 10.26 acres, Tmt. Kalpana Rani had sold 5.41 acres to one S.K. Kaleeswaran and an extent of 4.85 acres to one S. Veerakumaran, under two separate sale deeds dated 02.07.2008, marked as Ex.P.3. However, the two purchasers were not impleaded as parties in the suit. Based on an application dated 27.08.2008, the second respondent Tahsildar measured the property in G.S.No.805, however, the first defendant did not receive any communication with regard to the sub division of the land. Since the property was not sub divided, as requested by the first defendant, she filed a Writ Petition in W.P.No.29291/2008. This Court, by order dated 11.12.2008, directed the official respondents viz., the Tahsildar and the Taluk Surveyor, Palladam Taluk to consider the first defendant's representation in accordance with law, following the procedure contemplated under the relevant Rules and after affording reasonable opportunity to the parties within a period of twelve weeks.

30. Subsequent to the order of this Court, the Tahsildar, Palladam Taluk measured the property and issued a Notice dated 10.07.2009, marked as Ex.R.6 for sub division of the land. As against the order passed in the Writ Petition in W.P.No.29291/2008, the plaintiff filed a Writ Appeal in W.A.No.774/2009. The said Writ Appeal was withdrawn by the plaintiff, after the filing of the suit in O.S.No.291/2009.

31. On a reading of the plaint, it is clear that the plaintiff had suppressed the pendency of the Writ Appeal. In W.P.No.29291 of 2008. this Court had directed the Tahsildar and Taluk Surveyor to consider the first defendant's representation for sub division, by fixing the boundaries and issuance of patta in respect of G.S.No.805 in Varapatty Village, Palladam Taluk, Coimbatore District, measuring 6.43 acres.

32. Challenging this order, the plaintiff filed a writ Appeal in W.A.No.774/2009. During the pendency of the Writ Appeal, the present suit has been filed by the plaintiff to direct the Tahsildar and the Taluk Surveyor to measure, demarcate and fix the four boundaries of the suit property only as per the Title Deed dated 09.05.2008 with reference to metes and bounds by appointment of Commissioner; for a declaration declaring that the Tahsildar and the Taluk Surveyor are not entitled to measure the entire lands, comprised in G.S.No.805 for fixing the four boundaries of the suit property and for consequential relief for Mandatory Injunction restraining them from measuring other than the suit property for fixing the four boundaries of the suit property and for permanent injunction restraining the first defendant from interfering with the plaintiff's peaceful possession and enjoyment of the suit property.

33. When this Court had directed the Tahsildar and the Taluk Surveyor to consider and pass orders on the representation made by the first defendant to meaure the property in G.S.No.805, which was also under challenge in Writ Appeal in W.A.No.774/2009, suppressing the filing of the Writ Appeal, the plaintiff has sought for the reliefs, which are contrary to the order passed by this Court. The Writ Appeal, filed by the plaintiff, was also withdrawn by him after the filing of the suit. The relief sought for in the suit is one seeking to restrain the public authorities from exercising the statutory duties.

34. Subsequently, on 16.04.2010, the first defendant sent a representation to the Tahsildar, requesting him to inspect and measure the properties comprised in G.S.No.805. However, the Tahsildar failed to take any action and stated that she can renew the application after taking possession of the property through Court.

35. Challenging the said order, the first defendant filed a Writ Petition in W.P.No.12363/2010 and this Court, by Order dated 17.02.2011 disposed of the writ petition with the following observations:

"7. Taking into consideration the submissions made on either side, this Court to put an end to this controversy directs the District Surveyor to carry out the measurement of the lands in G.S.No.805, Varapatty village, Palladam Taluk, Coimabtore District, once again in the presence of all the parties, namely, the petitioner and respondents 3, 4 and 5 herein, after giving prior notice to all the parties. After the mesurement, the Tahsildar shall inform the same to both parties. It is also made clear that in the event of any shortage of land the parties have to approach the approrpriate civil court for remedy."

36. From a reading of the above passage, it is clear that this Court had given liberty to the parties to approach appropriate Civil Court for remedy, in the event of any shortage of land found at the time of measuring the land. Subsequently, by Order dated 22.08.2011, the Tahsildar informed the parties that the plaintiff is in possession of to 4.11 acres; S.K. Kaleeswaran and S. Veerakumar are in possession of an extent of 10.33 acres and the first defendant is in possession of 6 acres in G.S.No.805. Challenging the order dated 22.08.2011, the first defendant has filed the Writ Petition in W.P.No.23093/2011.

37. While disposing of the writ petition in W.P.No.12363/2010, this Court also took into consideration the filing of the suit by the plaintiff in O.S.No.291/2009 and also the rejection of the plaint by the trial Court in I.A.No.1686 of 2009 on 31.03.2010.

38. On a perusal of Ex.R.5 Sale Deed dated 09.05.2008, it could be seen that the plaintiff purchased an extent of 4.20 acres of land, without mentioning the boundaries. It is not in dispute that the first defendant and the purchasers of lands from Tmt.D. Kalpanarani viz., S.K. Kaleeswaran and S. Veerakumaran, are also owning the lands in G.S.No.805. When the other parties are also owning lands in G.S.No.805, the plaintiff cannot seek for a direction to measure, demarcate and fix four boundaries of the suit property only as per his Sale Deed dated 09.05.2008. Further, the plaintiff sought for a declaration to declare that the Tahsildar and the Taluk Surveyor are not entitled to measure the entire land, comprised in G.S.No.805, for fixing the four boundaries and also sought for permanent injunction restraining them from measuring others' lands in G.S.No.805. Unless the lands, belonging to the other owners, are also measured and respective boundaries are fixed, the relief, sought for in the plaint, cannot be granted, when the plaintiff has got a sale deed in his favour and other purchasers are also having their respective sale deeds, executed in their favour. In these circumstances, the relief sought for by the plaintiff, cannot be granted. Unless the entire extent of the land in G.S.No.805 is measured and the boundaries are fixed for the lands, belonging to the respective land owners, the relief sought for by the plaintiff in the suit cannot be granted. When the defendants 2 and 3, who are the Tahsildar and the Taluk Surveyor of Palladam Taluk are discharging their duties, they cannot be prevented by a decree for declaration and permanent injunction from discharging their duties. When this Court had directed the official respondents to consider the first defendant's representation for sub division of the land in G.S.No.805, by fixing the boundaries and issuance of patta, in accordance with law, following the procedures, contemplated under relevant Rules and after affording opportunity to the parties are concerned, the filing of the present suit for declaration, mandatory injunction and permanent injunction, restraining the official respondents from carrying out their statutory duties, cannot be accepted. The filing of the suit by the plaintiff is contrary to the directions given by this Court.

39. Challenging the order passed in the Writ Petition in W.P.No.29291/2008, the plaintiff also filed a Writ Appeal in W.A.No.774/2009, which was also pending at the time of filing of the suit. But, for the reasons best known to the plaintiff, he suppressed the filing of the writ appeal and he withdrew the writ appeal on 20.08.2009 i.e., after filing of the suit. If the plaintiff is aggrieved over the order passed in the writ petition in W.P.No.29291/2008, he should have prosecuted the Writ Appeal and he cannot get the order passed in the Writ Petition nullified, by filing a Civil Suit before the Subordinate Court, Tirupur. The filing of the suit is only to nullify the order passed in the Writ Petition in W.P.No.29291/2008, which cannot be permitted by this Court. The very fact of filing the Writ Appeal, as against the order passed in the Writ Petition, itself would establish that the plaintiff is aggrieved over the order passed in the writ petition. Unless the order passed in the Writ Petition is set aside, by an appellate forum, the order is binding on the parties. At no stretch of imagination, the plaintiff can be allowed to nullify the order passed in the writ petition, by filing a civil suit.

40. In Ex.R.1 Partition Deed dated 10.12.1986, the first defendant was allotted to an extent of 6.43 acres in G.S.No.805, without mentioning the boundaries. The first defendant also gave applications before the Tahsildar to measure and sub divide the lands. When the main reliefs sought for in the suit i.e., declaration and mandatory injunction relates to the official defendants viz., the Tahsildar and the Taluk Surveyor of Palladam Taluk, the third relief sought for in the suit is as against the first defndant viz., T. Kanchana Devi, restraining her from interferring with the plaintiff's peaceful possession and enjoyment of the suit proprty.

41. On reading of the plaint, including the cause of action paragraph, it is clear that the plaintiff has not specifically stated as to the date on which, the first defendant tried to interfere with his possession. The plainiff has baldly stated that the first defendant tried to interfere with his possession. It is a settled position that the averments in the plaint should be specific and the cause of action for the filing of the suit would arise only on that specific date. In the absence of any date mentioned in the plaint, the relief cannot be granted.

42. The trial Court took into consideration all these aspects and rightly rejected the plaint. On appeal, preferred by the plaintiff, the Lower Appellate Court erroneously set aside the order passed by the trial court on untenable grounds. Even while setting aside the order, the Lower Appellate Court held that except the relief of permanent injunction i.e., relief "c", the other two reliefs viz., "a" and "b" in the suit have merged with the order passed in the Writ Petition in W.P.No.12363/2010. Further, the lower Appellate Court also observed that the order passed in the Writ Petition is binding on the plaintiff, as he is also a party to the same.

43. The Lower Appellate Court erroneously found that the decree for prohibitory injunction is sought for as an independent relief and therefore, the plaint cannot be rejected. There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. The real object of Order 7 Rule 11 of the Code is to keep out of courts irresponsible law suits. Order 7 Rule 11 does not justify rejection of any particular portion of the plaint. Order 6 Rule 16 of the Code is relevant in this regard. It deals with 'striking out of pleadings. The rejection of plaint should be of the whole of it only. Even when a portion of a plaint alone needs rejection the whole of it has to be rejected.

44. The lower Apellate Court also referred to the order passed in the Writ Petition in W.P.No.12363/2010 and also held that the order has a direct bearing on the present suit. When the Lower Appellate court found that the reliefs "a" and "b" sought for in the suit have merged with the order passed in the Writ Petition in W.P.No.12363/2010 and in the absence of any specific averment stated in the plaint, with regard to permanent injunction, the lower Appellate Court should have confirmed the order passed by the trial court. In these circumstances, the judgment and the decree passed by the Lower Appellate Court are liable to be set aside.

45. Sofar as the Writ Petition in W.P.No.23093/2011 is concerned, the same has been filed, challenging the order dated 22.08.2011 passed by the Tahsildar finding that the plaintiff is in possession of 4.11 acres; the first defendant is in possession of 6 acres and the purchasers viz., S.K. Kaleeswaran and S. Veerakumaran are in possession of 10.33 acres. The extent mentioned in the impugned order in respect of the parties are less than the extent mentioned in their respective sale deeds and in the partition deed. The proprety was measured by the Tahsildar, pursuant to the order passed in the Writ Petition in W.P No.12363/2010. While disposing of the Writ petiiton in W.P.No.12363 of 2010, this Court clearly observed that in the event of any shortage of land, the parties have to approach appropriate civil court for remedy. When liberty is given to the parties to go before a Civil Court, in the event of any shortage of land, found by the Tahsildar and the District Surveyor, to file a civil suit, the filing of the presnt writ petition is unwarranted. If the parties are aggrieved, they should have gone before a civil court to establish their right and possession over the suit property. In these circumstances, I am of the view that in view of the order passed in the Writ Petition in W.P.No.12363 of 2010, the aggrieved parties are at liberty to approach the Civil Court for establishing their right and possession over their lands.

46. In these circumstances, the substantial questions of law are decided in favour of the appellant/first defendant and the Judgment and Decree passed in A.S.No.40/2010 are set aside. The fair and decreetal order passed in I.A.No.1686/2009 in O.S.No.291/2009 on the file of Principal Subordinate Court, Tirupur are restored. The Second Appeal is allowed. The writ Petition is disposed of with the observations stated above. No costs. Consequently, connected MPs are closed.


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