Kandapazha Nadar & Ors vs Chitraganiammal & Ors

According to the plaintiff, the suit properties originally belonged to one Chelliah Nadar, he had purchased the suit properties under sale deed Ex.A1 dated 26.2.1973, the defendants 1 to 3 fraudulently created a conveyance deed in their favour the defendants had earlier instituted O.S. No. 298 of 1973 on the file of the District Munsif Court, Srivaikuntam, the defendants obtained orders of injunction and managed to enter into the suit properties; the defendants have no right whatsoever, the suit 0. S. No. 298 of 1973 was dismissed after contest, in appeal , the first appellate Court decreed the suit in favour of the plaintiffs in the said suit , present plaintiff preferred Second Appeal , No. 8 of 1977, pending the said Second Appeal, said suit was permitted to be withdrawn i.e. suit 0.S. No.298 of 1973 but without liberty to file a fresh suit on the same cause of action, the defendants have no right in the suit property and the defendants who have no right are in enjoyment of the suit properties since 11.6:1973.

It was the further case of the plaintiffs that the defendants have cut and carried away the Odai trees worth Rs.1500/- the defendants have been tapping toddy from 42 palmyra trees since 1973 standing on the suit properties; the defendants have also cut and carried away two palmyra trees worth Rs. 200/-, the defendants have been cultivating ground nut and derived income of Rs. 1000/- , the palmyra trees would fetch an income of Rs. 400/- per annum; the defendants 1 and 3 are liable to pay Rs. 5100/- towards past mense profits and the plaintiffs are entitled for recovery of possession besides past and future mense profits from the defendants.

The defendants 1 and 3 filed a written statement inter alia pleading that the suit properties originally belonged to Chelliah Naoar and his brother; the defendants have purchased the properties from Chelliah Nadar on 8.10.1971, the plaintiff herein attempted to interfere with the defendants' possession, the plaintiff had not purchased the suit property from Chelliah Nadar, on the dismissal of the said suit the defendants herein preferred A.S.No.51 of 1975 which was allowed and decreed; the Second Appeal preferred by the plaintiff herein was pending, pending the Second Appeal , the defendants herein withdrew the suit itself as they have not proved execution of the sale deed by Chelliah Nadar, the plaintiff has no right to institute this suit, the plaintiff is not entitled to the suit property, the plaintiff is not entitled to any income or value of the trees or income from palmyra trees and that the suit is liable to be dismissed.

In view of the above judgments, the position in law is clear that when the court allows the suit to be withdrawn without liberty to file a fresh suit, without any adjudication, such order allowing withdrawal cannot constitute a decree and it cannot debar the petitioners herein from taking the defence in the second round of litigation as held in the impugned judgment. The above judgments indicate that if the plaintiff withdraws the suit, the order of the court allowing such withdrawal does not constitute a decree under Section 2(2) of Code. That in any event, it will not preclude the petitioners herein (defendants in second round) from raising the plea that the sale deed executed by Chelliah Nadar on 26.2.73 in favour of Thangaraj Nadar was not true and valid. Thus, the civil appeal needs to be allowed.