Madras High Court · 2009

THE HON'BLE MR. JUSTICE K.CHANDRU APPLICATION NOS.2962 TO 2964 OF 2009 and 2631 OF 2009 AND ORIGINAL APPLICATION NOS.523 AND 524 OF 2009 IN C.S.NO.438 OF 2009 ORDER Application Nos.2962 to 2964 of 2009 and 2631 of 2009 were filed by the defendants 2 to 5. A.No.2631 of 2009 is for the appointment of an Advocate Commissioner to inspect and submit a report regarding the possession and status of construction in the suit property. 2.A.No.2962 of 2009 is for vacating an interim order granted in O.A.No.523 of 2009 in C.S.No.438 of 2009. A.No.2963 of 2009 is also for vacating the interim order granted in O.A.No.524 of 2009 in C.S.No.438 of 2009. A.No.2964 of 2009 is for taking cognizance of offence committed by respondents 1 to 4/plaintiffs in making false statements and making false claims in their affidavits in support of O.A.Nos.523 and 524 of 2009 in terms of Sections 191 and 209 of IPC and to initiate action by exercising power under Section 340 of Cr.P.C. 3.The respondents/plaintiffs filed the suit in C.S.No.438 of 2009 for the relief of partitioning of the suit schedule property in five equal shares and for a separate possession of plaintiffs' 4/5th share in the property, declaring the sale deed, dated 29.5.2006 registered as document No.630 of 2006 with the District Registrar Office, Central Chennai executed by the first defendant in favour of the second defendant as null and void and not binding on the plaintiffs' 4/5th share. A further declaration that the sale deed, dated 29.5.2006 in document No.631 of 2006 registered in the same office executed by the first defendant in favour of the third defendant as null and void and not binding on the plaintiffs in respect of their 4/5th share in the suit property and also for a declaration that the sale deed, dated 29.5.2006 in document No.632 of 2006 registered in the same office executed by the first defendant in favour of the fourth defendant as null and void and not binding on the plaintiffs in respect of their 4/5th share. Again a declaration is sought for that the sale deed, dated 29.5.2006 in document No.633 of 2006 registered in the same office by the first defendant in favour of the fifth defendant as null and void and not binding on the plaintiffs' 4/5th share. A further relief of permanent injunction, restraining the defendants from interfering with the plaintiffs' peaceful possession and enjoyment of 4/5th share of the suit property, is sought for. 4.Pending the suit, the respondents/plaintiffs took out two applications in O.A.Nos.523 and 524 of 2009. The first O.A. is for an interim injunction restraining the respondents/defendants from creating any encumbrance over the suit property, pending disposal of the suit. O.A.No.524 of 2009 is for an interim injunction, restraining the respondents/defendants in any manner interfering with the plaintiffs' peaceful possession and enjoyment of the suit property or from putting up any construction, pending disposal of the suit.

5.The suit was filed on 4.5.2009 and on being represented on 15.5.2009, was admitted on the same date. This Court, by an order, dated 20.5.2009 found a prima facie case in favour of the plaintiffs and in the interest of justice, granted an interim injunction against the respondents/defendants from alienating or encumbering the suit property and also they were further restrained from putting up any construction in the suit property. In so far as the injunction restraining the respondents from interfering with the possession, in view of the earlier suit as no order was granted and that prayer was declined at that stage. It is on receipt of this order, the defendants have come up with these applications as set out already. 6.It is the case of the plaintiffs that the first plaintiff was the mother and the plaintiffs 2 to 4 are her sons. The suit property is situated in Plot No.6 (Old No.5), Cenotaph Road, 2nd Lane, Teynampet, Chennai-18, measuring an extent of 4 grounds in R.S.No.3847/121 in Mylapore village, which formed part of a larger extent of land measuring 50 grounds in R.S.NO.3847 (Part). The suit property belonged to the plaintiffs 2 to 4's grand mother late Mrs.Rau Indira Devi. She had purchsed the same from one T.Alavandar Gramani by a sale deed, dated 17.08.1939 bearing document No.1690 of 1939. Their grand mother was the wife of late R.V.M.Surya Rao, their grand father. The grand mother died in the year 1942 leaving behind her, her husband and the daughter Chinnamamba. The plaintiffs 2 to 4's grand father married the first respondent Mrs.Rau Padma in the year 1944. Through the marriage with her, they had one son and daughter. The plaintiffs 2 to 4's grand father died on 19.11.1961 leaving behind him the first defendant and a son through her R.V.M.Pradeep Rao and M/s.Chinnamamba and Rao Suhasa as his only legal heirs. He also left a Will, dated 15.11.1961, wherein the first defendant was appointed as an executrix. By the said Will, 50 grounds of land known as Indra Vihar was bequeathed to the father of plaintiffs 2 to 4 who is the husband of the first plaintiff. Pursuant to the Will and testament, the first defendant applied for the grant of probate. The said probate proceedings were objected to by Chinnamamba. Thereafter, the first defendant entered into an agreement for herself and being the guardian of minor son and minor daughter Pradeep Rao and Rau Shuasa with Chinnamamba. The said Chinnmamba agreed for the grant of probate to the first defendant on receiving a sum of Rs.1,30,000/- and transfer of 12 grounds 98 sq. ft. in her favour. 7.By an agreement, dated 7.2.1963, it was agreed by the first defendant that Chinnamamba will receive Rs.1,30,000/- and also transfer of vacant site measuring 12 ground and 98 sq.ft. In respect of Indra Vihar consisting of 50 grounds and a bungalow, the plaintiffs 2 to 4's father R.V.M.PRadeep Rao shall be the absolute owner. The Will was probated in O.P.No.16 of 1963. Thus, the first plaintiff's husband and the father of plaintiffs 2 to 4 became the absolute owner of 50 grounds known as Indra Vihar, the suit schedule property. The said Pradeep Rao was minor aged 12 years at the time of death of his father late R.V.M.Surya Rao. The first defendant being the natural guardian was managing the properties and affairs of the minor. After attainment of majority by R.V.M.Pradeep Rao, he started dealing with his property on his own. He formed a partnership firm under the name and style of R.S.R.Enterprises in the year 1981, wherein he and his mother, the first defendant and his sister were the partners. Late Pradeep Rao developed a portion of the property through the said partnership firm and constructed flats under the name "Manor" wherein 21 flats were put up. He reserved thre flats for himself. The plaintiffs, the first respondent and the plaintiffs' aunt were residing in these three flats. The properties were further developed in flats named as Citadel, wherein again 11 flats, were constructed. He retained four flats and sold the remaining flats to others. The Citadel apartments were not a part of RSR Firm. It was built up in his own name and from his own funds. R.V.M.Pradeep Rao, the father of the plaintiffs 2 to 4, expired on 10.1.1988, leaving behind him, the applicants as well as the first respondent as his class I legal heirs.

8.After the sale of those portions of the total 50 grounds bequeathed to him under the Will of late R.V.M.Surya Rao, an extent of 4 grounds was left behind by late R.V.M.Pradeep Rao. The applicants/plaintiffs and the first defendant being the legal heirs of Pradeep Rao were entitled to succeed to the above said property measuring 4 grounds. The applicants and the first defendants are in joint possession and enjoyment of the suit property. In terms of the Will executed by the plaintiffs' 2 to 4 grand father, 50 grounds in Indra Vihar was bequeathed absolutely to late R.V.M.Pradeep Rao and he also developed the said property leaving behind the suit property of 4 grounds, which was vacant at the time of his death. The first defendant after the death of R.V.M.Pradeep Rao came into possession of documents and records belonging to late R.V.M.Pradeep Rao and started creating documents as though she is the owner of the property and intermeddled with the estate of R.V.M.Pradeep Rao. 9.The first defendant filed a suit in C.S.No.89 of 1989 against the plaintiffs and asked for appointment of an Administrator of the properties of R.V.M.Pradeep Rao and also for determination of her share in the same. The suit is still pending on the file of this Court. The first defendant also filed an another suit in C.S.No.88 of 1989 (renumbered as Tr.C.S.No.34 of 1999) for dissolution of the partnership firm R.S.R. Enterprises and for accounts.

10.In the meantime, since the first defendant was attempting to alienate the suit property and creating encumbrance, the first plaintiff filed a suit in O.S.No.3338 of 1997 before the II Assistant Judge, City Civil Court, Chennai, seeking for a permanent injunction restraining the first defendant herein from interfering with the possession of the suit property and creating any encumbrance over the same. In that suit, an interim injunction was granted against the first defendant in I.A.No.9842 of 1997 restraining her from creating any right in favour of a third party. The said interim injunction is said to be in force and the above suit is still pending. 11.It was stated that the remaining 4 grounds devolve upon the legal heirs of late R.V.M.Pradeep Rao, which included the applicants and the first defendant. Since there are 5 shares, 4/5th share must come to the plaintiffs and the first defendant was only entitled to 1/5th share. Disregarding this fact, the first defendant on 29.5.2006 had executed four sale deeds in favour of defendants 2 to 5 conveying 1/4th undivided share each in the suit property measuring 4 grounds in favour of defendants 2 to 5. Since the defendants are trying to deal with the property of the plaintiffs contrary to the probate and also without any authority and contrary to the interim injunction granted by the Civil Court, the present suit came to be filed for partition and for setting aside the sale deeds. 12.The plaintiffs came to know that the defendants 2 to 5 based on the sale deeds have applied for planning permission from the Corporation of Chennai for construction of flats. Notice was also issued to the CMDA and the Corporation of Chennai by the plaintiffs. Since there was no reply from the authorities, the suit came to be filed along with the above applications. If respondents were allowed to develop the property, it will cause detriment to the interests of the plaintiffs. It was on a prima facie case, the learned Judge had granted an injunction. 13.In the counter affidavit filed by the first defendant in these O.As., the allegations made by the plaintiffs were denied. It was stated that the present suit for partition is not maintainable as already an another suit in C.S.No.89 of 1989 is pending before this Court. The property in the present suit is not mentioned in that suit. This suit property was not brought into the common pool. This suit with its main relief was filed with nominal court fee without seeking for specific relief in respect of the transaction, which is only to evade the court fee. No declaration be granted as there is no prayer for title or possession. It was stated that the plaintiffs' title were denied in the suit pending before the City Civil Court. The claim of the plaintiffs that they were in possession of the suit property is denied. Already planning permission has been granted by the Corporation of Chennai after verification of records. The interpretation placed by the plaintiffs on the Will, dated 15.11.1961 is not correct as can be seen from the conduct of the legatees thereafter and the documents executed. Moreover, the omission of the plaintiffs seeking for the relief of recovery of possession is only to evade the payment of court fee. Since 1963, the first defendant is in possession first as an Executrix and then as the residuary legatee. She claims title to the entire property. 14.It was stated that the sale deeds were executed by her as the owner of the property as as the title to this property is not questioned. The reliefs claimed by the first plaintiff before the City Civil Court and the relief claimed in the present suit are identical. The plaintiffs ought to have claimed relief of title and possession in this suit. In any event, it was claimed that the suit was barred by limitation as the cause of action for the suit is from the date on which the plaintiffs questioned their title and not from the date of sale deeds. The plaintiffs have not come to this court with clean hands and have suppressed the facts of the licence granted by the first defendant to M/s.Devinarayan under a Licence Agreement, dated 30.04.1997. The property was also handed over to the licencee. A police complaint was also lodged against them in the year 1997 when the plaintiffs attempted to trespass into the property. 15.The licensee M/s.Devinarayan Housing and Property Development Pvt. Ltd. also filed a suit in O.S.No.6518 of 1997 seeking for an injunction restraining the plaintiffs from interfering with their possession. An interim injunction was also granted in I.A.No.17241 of 1997 in that suit. A judgment and decree was also passed in O.S.No.6518 of 1997 granting permanent injunction in favour of the developers and that fact was also suppressed. It was also stated that the interim injunction obtained in I.A.No.9842 of 1997 in O.S.No.3338 of 1997 was closed, by an order, dated 27.9.2002. This fact also was not brought to the notice of this court in this suit. 16.With reference to the factual situation, it was stated that Indra Vihar (suit schedule property) was purchased by Smt.Rau Indrani, the first wife of R.V.M.Surya Rau, the husband of the first defendant and the father of Pradeep Rao, under a sale deed dated 17.8.1939. Smt.Rau Indrani died leaving behind her, her husband and the daughter Chinnamamba. R.V.N.Surya Rao treated the property as his own and out of his own monies and borrowings, he built the house in the property bearing No.7, Cenotaph Road, Madras. In 1944, he married the first defendant and there are two children out of that marriage. Surya Rau died on 19.11.1961 leaving the Will dated 15.11.1961. In the Will, he had expressed a desire that the house at No.7, Cenotaph Road should go to his son R.V.M.Pradeep Rau in discharge of his debts to Pradeep Rau. After making some legacies, he left his residual estate to the first defendant. The Will was also probated in O.P.No.16 of 1963 in this Court on 22.03.1963. 17.Mrs.Chinnamamba, the elder daughter of Surya Rau, by entering into an agreement, dated 7.2.1963 and also by letters dated 20.01.1963 and 09.03.1964, gave up all her rights as an heir of her mother in the property known as Indra Vihar, including superstructures and the land of 50 grounds. After probate, the property is vested with the first defendant as an executrix of the estate. The first defendant and her two children plotted out the property and sold certain properties, retaining the balance area. While executing those sale deeds, the late Pradeep Rau joined in the execution. In 1972, as per the arrangements between the first defendant and R.V.M.Pradeep Rau, the first defendant handed over the house and also 10 grounds to him in partial discharge of his dues as set out in the Will of late R.V.M.Pradeep Rau. The value of the house and 10 grounds are at Rs.3,43,151/-. The balance of Rs.2,42,507/- are still due from the estate. This arrangement was accepted by Pradeep Rau by his letter, dated 15.01.1972. After this transaction, the entire balance of the property belonged exclusively to the first defendant as the residuary legatee of the Will. 4 grounds and 833 sq.ft. bearing plot No.8 as per L.A.No.152/71 were settled by the first defendant on her daughter Suhasa Roy under a settlement deed, dated 06.10.1972 registered as document No.7026/1972. During the year 1976, she transferred a plot of about 2 grounds of late R.V.M.Pradeep Rao and an another two grounds to Rau Suhasa by deeds of settlement, dated 4.2.1976 registered as document Nos.612 and 613 of 1976 and retained balance to herself. 18.It was stated that after the sale of various portions of land, out of total extent of 50 grounds, only these four grounds remained with her. She being the absolute owner, had sold the four grounds to defendants 2 to 5 under four different sale deeds. It was stated that as an executrix and trustee, she also transferred the house to R.V.M.Pradeep Rau in discharge of her husband's liability due to him. But, nowhere in the Will, the testator had bequeathed to her an extent of 50 grounds to late R.V.M.Pradeep Rau. The agreement entered into between Chinnamamba and the first defendant is factually correct and Chinnamamba relinquished all her rights on receipt of Rs.1,30,000/- and on transfer of the vacant site of 12 grounds and 98 sq.ft. was denied. That agreement was never acted upon and it was never mentioned in the deed of transfer executed between the parties on 20.12.1963. The allegation that the first defendant had attempted to alienate the suit property and created encumbrance to defeat the rights of the plaintiffs is also denied. The plaintiffs never had any right over the suit property. The interim injunction granted by the city civi court is no longer in existence and the plaintiffs were not interested in pursuing the said suit. Since the first defendant is in possession of the property and its exclusive owner, she is entitled to dispose of the same and she had already done it by virtue of the impugned sale deeds. The settlement deed, dated 6.10.1972 registered as document No.7026 of 1972 will prove that the first defendant's son (husband of the first plaintiff) has only taken the house and 10 grounds alone leaving the residual property to the first defendant as per the will.

19.It was also stated that the settlement deed, dated 4.2.1976 in document Nos.612 and 613 of 1976 in favour of the first defendant's children will prove that the intention of Pradeep Rau was to take the house and 10 grounds alone. It was also stated that as per the partnership deed in R.S.R.Enterprises, late Pradeep Rao, the first defendant and Suhasa Rau have to carry out the business of real estate and it will also prove that late Pradeep Rau was not the absolute owner of the entire 50 grounds. The entire 50 grounds was not the capital for the development and sale of flats known as Manor. It was also stated that the first defendant had shown that he became the owner of 4 grounds as residuary legatee in all his returns filed under Income Tax Act, Wealth Tax Act and Urban Land Tax Act, etc. In the earlier suits filed in C.S.No.88 of 1989 and 89 of 1989, these documents were not challenged. It was also stated that patta was also standing in her name. The first defendant claimed the property on the basis of various documents (totalling 19) listed in paragraph 42 of her counter affidavit. The possession of the suit property was sought to be established by 8 documents listed in paragraph 43 of the counter affidavit. In the light of the above, she had asked for the dismissal of the interim applications. 20.Defendants 2 to 5 (purchasers of the property) have also filed four applications for the reliefs which are set out earlier. 21.In the light of these contentions, the questions arise are whether the interim injunction granted by this Court on 20.05.2009 in O.A.Nos.523 and 524 of 2009 in C.S.No.438 of 2009 should be vacated and whether the applications filed by the defendants should be ordered? 22.The plaintiffs 2 to 4 already filed a suit before this Court in C.S.No.357 of 2009. But, however in that suit, the first plaintiff was not a party. Therefore, the suit was withdrawn with liberty to file a fresh suit on the very same cause of action and that liberty was also granted by this Court on 27.04.2009. 23.In support of the applications for vacating the order of interim injunction and the other applications, Mr.M.Subramanian, learned Senior Counsel leading Mr.M.Aravind Subramaniam, learned counsel appearing for the first defendant and Mr.J.A.S.Sathish Kumar, learned counsel for defendants 2 to 5 have made elaborate submissions. He had also filed a written arguments and typed set containing 4 volumes in support of his arguments. 24.The learned Senior counsel submitted that the relief of partition cannot be granted as it is only for partial partition. Since already a suit for partition is pending, the present suit is not maintainable. The suit is filed for partition only for payment on nominal court fee to bring it within the jurisdiction of this Court. Only after the sale deeds were set aside, the partition suit will lie. Therefore, they cannot maintain the suit with nominal court fee. The sale deeds were valid and were binding on the parties till they are set aside. The purchasers, who purchased the property, have every right to construct the buildings. There was an extraordinary delay in filing the suit. Hence the discretionary relief under Section 42 of the old Limitation Act cannot be granted. Even if any declaration is given, that would be a futile declaration. Though the title of the property was disputed, no declaratory relief and consequential relief under Section 34 of the Specific Relief Act was also sought for. Where there is no prayer for declaration of title, the title to the property cannot be agitated. The plaintiffs are not in possession as evidenced from various documents produced by the first defendant. 25.The learned Senior Counsel further stated that the relief claimed and the suit relief are contradictory. There is also suppression of facts. The defendants' written statement filed in O.S.No.3338 of 1997 clearly expressed that the first defendant was the owner and was in possession. In the complaint made by the plaintiffs to the Corporation, they never mentioned that they were in possession. The preamble to the earlier sale deed narrates the entire history of the property. Therefore, the plaintiffs are aware of the various transfers effected in the properties. The cause of action is only for denial of title and not for sale of the property. Under Section 34 of the Specific Relief Act, it is only discretionary and a mere declaratory relief does not serve any purpose. The plaintiffs have not satisfied the three conditions for getting declaratory relief. Proper stamp duty had not been paid for all the reliefs claimed. 26.The learned Senior Counsel further submitted that no injunction can be sought for against the first defendant and the relief of partition cannot be maintained against D-2 to D-5. Since similar allegations have been made in the earlier suit in O.S.No.3338 of 1997 regarding the interpretation of the Will, Order 2 Rule 2 of CPC will apply and therefore, the second suit is not maintainable. After serving the suit summons on 23.6.2009, it is not open to the plaintiffs to move to other court on the same facts adding only the relief of partition. In the present plaint, the disposal of earlier suit is not mentioned. 27.In support of these submissions, the learned Senior Counsel also placed reliance on certain decisions. It is unnecessary to refer to all the decisions as it will be only multiplying the number of decisions. This court is inclined to take up only such of those decisions which may have bearing on the issues raised by the defendants. 28.Mr.R.Yashod Varadhan, learned Senior Counsel leading Mr.K.Sridhar, learned counsel for the plaintiffs submitted that the suit in C.S.No.357 of 2009 was withdrawn and a liberty was granted by this court, by an order, dated 27.04.2009 and that issue cannot be raised all over again. In those applications, counter affidavit has also been filed by the plaintiffs. After referring to the counter affidavit, the learned Senior Counsel stated that at no point of time, the first defendant denied their title and the suit property is a joint property of plaintiffs and the first defendant. Having inherited the same, each one of them is entitled to 1/5th share. The first defendant cannot dispose of the property, in which the plaintiffs have 4/5th share. The suit property is a vacant land. Since the plaintiffs are also in joint possession, there is no necessity to seek for possession or declaration. The defendants 2 to 5 cannot derive any title based on the sale deeds, since the 4/5th share of the property of the plaintiffs cannot sell it away and no valid title was derived by her. 29.The first defendant on violation of the interim order passed by the City Civil Court, created a licence agreement. The defendants 2 to 5 cannot derive any right through the licence agreement. If at all their right can be based upon the sale deeds only. The developers filed the subsequent suit only as a counter blast to the suit filed by the plaintiffs. The order obtained by the developers was only an ex-parte order and the plaintiffs are taking steps to set aside that ex-parte order. In I.A.No.9842 of 1997 in O.S.No.3338 of 1997, the subsequent order passed is to the effect that I.A.No.9842 of 1997 is closed subject to the outcome of the suit and the injunction was not vacated. Though the sale deeds were of the year 2006, the respondents kept silent for 3 years. It is only when they attempted to encroach upon the property, the present suit came to be filed and it is well within time. No material facts have been suppressed from this court. It is only the first defendant who has violated the terms of the probate granted by this Court. 30.The learned Senior counsel for the plaintiff also submitted that the probate was granted in terms of the Will, dated 15.11.1961, which clearly showed that it is the house which was transferred to the son in view of the discharge of the liability. But, with reference to the land, it was clearly stated that the entire property should be divided between the son R.V.M.Pradeep Rau and the daughter Rao Suhasa. Therefore, there is no doubt about bequeathing of the properties. He submitted that pursuant to the probate granted, the first defendant filed accounts of the properties and credits before this Court on 22.4.1964. In respect of bequeath made of the properties, it had been described as Indra Vihar, Cenatoph Road house and 50 grounds of land. He also submitted that the letter, dated 15.1.1972 subsequent to the Will alleged to have been written by late R.V.M.Pradeep Rau, dated 15.1.1972 cannot have any bearing and it cannot be acted upon. He further submitted that preamble to the sale deed in document No.1421/1986 cannot determine the right of the parties. Since 4/5th share of the plaintiffs have been parted by the first defendant, it is a fit case where prima facie the plaintiffs are entitled to succeed in the suit. Further, since defendants 2 to 5 are attempting to put up construction in the property, the plaintiffs will have no method of recovering the property in its original form. Therefore, both on the ground of prima facie case and the balance of convenience, the orders, dated 20.5.2009 were passed by this court and it need not be disturbed. 31.It is also said that with reference to the previous suit, it is only a bare injunction suit and the present suit is for partition and for further reliefs to set aside the sale deeds and it is maintainable notwithstanding the pendency of the earlier suit. In a suit for partition, there is no necessity to seek for declaration of possession or delivery. Because after partition, appropriate reliefs can be claimed. The question of limitation did not arise in a suit for partition. The courts have held that successive suits for partition is even permissible since cause of action is a continuous one. 32.On the question of deficit court fee, the suit cannot be thrown out and the Court can direct the plaintiffs to pay such deficit court fee. In this context, Section 149 of the CPC will govern the situation. The scope of Section 149 and power of the Court to reject the plaint on grounds of deficit court fee under Order VII Rule 11(d) came to be considered by a recent decision of the Supreme Court in P.K.Palanisamy Vs. N.Arumugam & another reported in JT 2009 (10) SC 79. In that decision, the Supreme Court rejected a petition filed under Order VII Rule 11(d). Therefore, at this stage, this Court cannot deal with the question of deficit court fee. 33.In this context, it is necessary to refer to the decision of the Supreme Court in Des Raj and others v. Bhagat Ram (dead) by LRs and others reported in (2007) 9 SCC 641. The question of application of order 2 Rule 2 CPC or the concept of res judicate in terms of Section 11 of CPC or the issue of estoppel will not arise in the present case since the earlier suit is only for a bare injunction, whereas the present suit is for a new cause of action.

34.It is also necessary to refer to the decision of the Supreme Court in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas reported in (2008) 11 SCC 753. Basing on the judgment, the learned counsel for the plaintiffs pressed for injunction since if status quo is changed at this juncture, then the third party interest will come in, which will lead to multiplicity of proceedings. The Courts have held that in a case where a party is unjustly made to suffer, that can be compensated by way of damages and then on no account, the status quo order to preserve the property can be varied. 35.He also made a reference to the judgment of the Supreme Court in Maharwal Khewaji Trust (Regd.) v. Baldev Dass reported in (2004) 8 SCC 488 for similar purpose. 36.On the contrary, the learned Senior Counsel Mr.M.Subramanian appearing for the defendants submitted by placing reliance upon the judgment of the Supreme court Rukhmabai v. Lala Laxminarayan reported in AIR 1960 SC 335 that when the plaintiff asked for a bare declaration though he was in possession to ask for further relief within the meaning of Section 42 of the Specific Relief Act, the suit should be dismissed in limine and in such an event, the plaintiff could have asked for a necessary amendment to comply with the provision of Section 42. In such circumstances, the well settled rule of practice is not to dismiss the suit automatically, but allow the plaintiff to make necessary amendments when there is successive denial of right. In this case, the defendants have denied the title of the plaintiffs. When there are successive denial of right, the right to sue under Article 120 accrues. It is not clear as to how this case will be of any assistance to the defendants. 37.Similarly, the learned Senior counsel also relied upon the judgment of the Supreme Court in Ram Saran v. Ganga Devi reported in (1973) 2 SCC 60 to contend that when defendant is in possession of some of the suit properties and if the plaintiff in the suit did not seek for possession of those properties, for the mere claim of declaration that he is the owner of the suit property, the suit is not maintainable. 38.He further relied upon the judgment of the Supreme Court in Vinay Krishna v. Keshav Chandra reported in 1993 Supp (3) SCC 129, wherein Section 42 of the Specific Relief Act, 1877 was considered. It was held that if plaintiff was not in exclusive possession of the property because there are two other persons and tenants were in occupation and the failure of the plaintiff to claim a relief of possession, the discretion of the court in granting a decree of declaration is barred. 39.The learned Senior Counsel also placed reliance upon the judgment of the Supreme Court in Kunjan Nair Sivaraman Nair v. Narayanan Nair reported in (2004) 3 SCC 277 for the purpose of pressing into service Order 2 Rule 2. In that case, it was held that the doctrine of res judicata differs from the principle under lying Order 2 Rule 2. In the former case, its emphasis on the plaintiff's duty to exhaust all available grounds in support of his claim, whereas in the latter, it requires the plaintiff to claim all reliefs emanating from the same cause of action. 40.The learned Senior counsel also placed reliance upon the judgment of the Supreme Court in N.V. Srinivasa Murthy v. Mariyamma reported in (2005) 5 SCC 548. That was a case arose on an application filed under Order 7 Rule 11(d). The Supreme court held that if the plaint is cleverly drafted with a view to get over the bar of limitation and payment of ad valorem court fee, the plaint was rightly to be rejected not on the ground of non disclosure of any cause of action, but on the ground of Order 7 Rule 11(d). 41.The learned Senior counsel further placed reliance upon the judgment of the Supreme Court in Meharchand Das v. Lal Babu Siddique reported in (2007) 14 SCC 253 for the purpose of showing that the plaintiff if not in possession of the property, the suit for a mere declaration will not be maintainable. 42.The learned Senior counsel also placed reliance upon the judgment of the Supreme Court in Anathula Sudhakar v. P. Buchi Reddy reported in (2008) 4 SCC 594. It is for the purpose of showing that if two persons claim to be in possession of the vacant site and one is able to establish title and will be considered to be in possession as against the one who is not able to establish his title. It only means that when any suit relating to vacant site, it is for mere injunction and the issue is one of possession which will be necessary to examine and determine the title. In a case where title is clear and simple, the court can venture its decision on the issue of title. Where the issue of title involves complicated and complex question of factum of law, the court should not decide the issue of title in a suit for injunction. The appropriate course is to relegate the plaintiff to file a full-fledged suit for declaration and the consequential reliefs. 43.The other decisions relied on by the learned Senior counsel for the defendants are not referred to herein as either it was rendered by other High Courts or covered by the decisions of the Supreme Court referred to herein before. But though no one can doubt the propositions laid thereunder, as to how far they apply to the facts of this case is a moot question. 44.In the light of the above factual matrix and legal precedents, it can be safely held that the plaintiffs are entitled to maintain the present suit. The plea of Order 2 Rule 2 or res judicata or limitation will not be a bar for maintaining the suit since it is only a suit for partition. The plaintiffs have asserted 4/5th share in the suit property, any sale of such interest will be automatically be held to be invalid. Therefore, if the suit for partition is decreed, than the persons who have got sale deeds in terms of the property, will not draw any clear title. As the plaintiffs are ascertaining their case as owners of the property and it is only a case of partition, the question of seeking for any declaratory relief regarding the ownership did not arise. Further, this Court had already granted probate in respect of the Will bequeathing the suit property. Therefore, that itself can be a sufficient proof as grant of probate is judgment in rem. It is unnecessary to seek for a declaratory relief, since the title of the testator in bequeathing the property is not disputed. 45.Whatever had happened subsequent to the probate proceedings including sale, cannot change the right of a beneficiary to get the bequeathed property restored to their name. As held by the Supreme Court in 2008 (II) SCC 753, if the suit is relating to the immovable properties and that has also been sold to a third party, it is safe to maintain status quo till the end of the suit, so that it will not lead to multiplicity of proceedings. Without a full-fledged trial, the claim of the defendants cannot be determined. Therefore, at this stage, the question of vacating the interim order already granted does not arise. Hence Application Nos.2962 and 2963 of 2009 will stand dismissed.

46.The question of the appointment of an Advocate Commissioner for inspecting and submitting the report regarding the possession and status of construction on the property will not arise at this stage as the defendants will have to prove their possession by producing necessary records and not prove it by a Commissioner's report. Even otherwise, such questions can be gone into at the time of trial of the suit. This application can be revived if necessary during the trial of the suit. Hence, Application No.2631 of 2009 stands dismissed for the present.

47.The court is satisfied with the explanation given by the plaintiffs and therefore, this court is not inclined to take any action as prayed for in A.No.2964 of 2009. Accordingly, Application No.2964 of 2009 also stands dismissed. 48.In the light of the above factual matrix, Original applications No.523 and 524 of 2009 will stand allowed. However, there will be no order as to costs.