(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order and decreetal order dated 19.12.2022 of the Court of the learned Additional District Judge of Kuzhithurai, made in I.A.No.6 of 2021 in O.S.No.61 of 2019 on its file, allowing the said I.A.)

1. This Civil Revision Petition challenges the order passed by the learned Additional District Judge, Kuzhithurai in I.A.No.6 of 2021 in O.S.No.61 of 2019 dated 19.12.2022.

2. O.S.No.61 of 2019 is a suit presented for declaration of title and for possession of the plaintiffs and the fourth defendant over the suit schedule mentioned property and for the consequential relief of injunction restraining the defendants 1 to 3 from interfering with the peaceful possession and enjoyment of the plaintiffs and the fourth defendant.

3. The case of the plaintiffs is that the suit schedule mentioned property originally belonged to Mukkadu Veedu of Somasimangalam Desom, Vilavancode Taluk, Kanyakumari District. One Sundaresan Nair of the said Mukkadu Veedu, who had acquired title to the suit schedule mentioned property, executed a mortgage in favour of one Ponnumuthu Nadar in Document No.5391/1956. On and from that date, Ponnumuthu Nadar took possession of the suit property. The said Ponnumuthu Nadar assigned his right acquired under the aforesaid document in favour of 3 brothers, namely,

                   (i) Chellayyan Nadar,

                   (ii) Chinna Pillai Nadar and

                   (iii) Mathiyas Nadar.

This was by way of a document in Document No.5422/1958. The three brothers took possession of the property and were in possession and enjoyment of the same. It is further pleaded that on 31.12.1958, one Jabamony Nadar and others released their rights over the suit property in favour of Chellayyan Nadar, Chinna Pillai Nadar and Mathiyas Nadar.

4. The plaintiffs urged that the father of the defendants 1 and 2, one Pakeer Mytheen Pillai, presented a suit for partition in O.S.No.183 of 1967. This suit ended with a decree in his favour on 11.09.1970. The appeal preferred by the aforesaid three brothers in A.S.No.161 of 1971 was dismissed on 11.03.1973. The plaintiffs urged that pursuant to the partition decree, possession had not been taken and therefore, their rights over the property had crystallised into adverse possession. The plaintiffs further urged that a suit was presented in O.S.No.497 of 1978, on the file of the District Munsif Court at Kuzhithurai seeking delivery of possession. The suit came to be dismissed. The appeal preferred therefrom in A.S.No.149 of 1979, on the file of the Subordinate Court at Kuzhithurai also ended in dismissal. Pending this proceedings, the third of the brothers, Mathiyas Nadar passed away and the property devolved on the other two brothers, Chinna Pillai Nadar and Chellayyan Nadar.

5. Chinna Pillai Nadar passed away on 06.12.1985 leaving behind the plaintiffs 1 to 4 as his legal heirs. Similarly, Chellayyan Nadar passed away on 26.12.2004 leaving behind the plaintiffs 5 to 7 and the fourth defendant as his legal heirs. The plaintiffs urged that since they have continued to be in peaceful possession of the suit property undisturbed by the defendants from 11.09.1970, that is the date from which O.S.No.183 of 1967 had been decreed, the defendants had lost their right over the property.

6. The plaintiffs pleaded that they filed O.S.No.52 of 2013 on the file of the Subordinate Judge at Kuzhithurai seeking declaration of title and possession with consequential injunction. They conceded that the said suit was dismissed. They preferred an appeal against the said judgment and decree in A.S.No.105 of 2018. Pending the appeal, the plaintiffs moved an application in I.A.No.255 of 2018 under Order 23 Rule 1(3) of the Code of Civil Procedure and obtained leave of the Court to file a fresh suit on the same cause of action. Hence, the present suit for the aforesaid reliefs.

7. The defendants 1 and 2, who, as pointed out, are the children of Pakeer Mytheen Pillai, along with the third defendant, moved an application for rejection of plaint. They pleaded that the suit is a sheer abuse of process of law. They pointed out the earliest suit (O.S.No.183 of 1967), had ended in favour of their father, Pakeer Mytheen Pillai and the suits initiated against them too ended in dismissal. They urged that the liberty granted by the learned District Judge in A.S.No.105 of 2018 would not in any way assist the plaintiffs to re-agitate the same issue all over again. Consequently, they sought for rejection of the plaint.

8. The plaintiffs resisted this claim stating that, as Pakeer Mytheen Pillai had not taken possession of the property from 1971, thereby, on the expiry of 12 years, the plaintiffs have crystallised their right over the suit property by adverse possession. They further pleaded that on account of the non-challenge of the liberty granted by the learned Principal District Court at Nagercoil in I.A.No.255 of 2018 in A.S.No.105 of 2018, the defendants are barred from questioning the lack of cause of action.

9. The learned Additional District Judge, Kuzhithurai took up the application for disposal. He relied upon the liberty granted in I.A.No.255 of 2018 in A.S.No.105 of 2018 dated 13.03.2019 and held that, as liberty to file a fresh suit on the same cause of action had been granted, the plaintiffs are entitled to present a suit on the same cause of action and it is not a case for rejection of plaint. Aggrieved by the same, the present Civil Revision Petition.

10. This Court had entertained the revision and ordered notice to the respondents.

11. Mr.S.C.Herold Singh appears for the contesting respondents.

12. After hearing arguments on both sides, I found that the decree, on the basis of which the defendants seek to non-suit the plaintiffs, is a suit for partition. Hence, I called for a report from the learned District Munsif at Kuzhithurai as to whether any final decree proceedings had been initiated in O.S.No.183 of 1967. For ready reference, the decree is extracted hereunder:

                   “It is hereby ordered and decreed that.

                   1) The separate possession plaintiffs I acre and 19.III cents in plot No.2 is be and hereby declared.

                   2) Plaintiff is allowed to get partition of this portion of metes and bounds in an equitable way adjacent to plot No.I.

                   3) Plaintiff is be and hereby allowed to demarcate his plot by taking out a comission through court.

                   4) The parties do bear their respective costs.”

13. The learned Principal District Munsif, Kuzhithurai has sent a report dated 12.03.2026 stating that no final decree application had been filed or pending in the said suit.

14. It is the settled position of law that a suit for partition does not get extinguished with the passing of a preliminary decree. The decree that has been passed on 11.09.1970 is not even an executable decree. In order to convert a preliminary decree into an executable decree, a final decree is essential. It is only thereafter, the question of filing an execution petition to take delivery of possession of the property allotted to the plaintiff would arise. As is clear from the decree passed in O.S.No.183 of 1967, the suit was adjourned sine die enabling the plaintiff to file an application for final decree by taking out an application for appointment of a Commission through Court. For whatever reasons, the plaintiff has not presented the same. There being no dispute in the relationship between the present defendants 1 to 3 as the legal heirs of Pakeer Mytheen Pillai, the plaintiff in O.S.No.183 of 1967, certainly, the defendants 1 to 3 are entitled to present an application for final decree. As the suit had been adjourned sine die, I find the plea of the plaintiffs, that they have crystallised rights by adverse possession, extremely intriguing.

15. In order to crystallise a right by adverse possession under Section 27 or under Article 64 or 65 of the Limitation Act, possession would become adverse, if no steps had been taken 12 years prior to the presentation of the plaint. The plea of the plaintiffs in the present case seems to be that they have crystallised rights by adverse possession, on account of the fact that further proceedings in O.S.No.183 of 1967, had not been initiated. No person, who is in possession of the property pending a litigation, can claim adverse possession. For a person to successfully claim adverse possession, he/she must have already perfected his/her title through 12 years or more of open, hostile and continuous possession. By no stretch of imagination, can a possession pending a litigation be treated as adverse possession. On the presentation of a plaint, the period of adverse possession comes to a grinding halt. As already pointed out, adverse possession can be pleaded, if a person is in open, hostile and continuous possession for 12 years prior to the presentation of the plaint.

16. Till the partition suit is finally disposed of by way of filing of a final decree application, the partition suit is deemed to be pending [See, Shub Karan Bubna v. Sita Saran Bubna, (2009) 9 SCC 689 (para 9.3)]. Hence, a prayer for declaration of title for a property covered by a preliminary decree for partition, which is yet to crystallise into a final decree, is certainly not maintainable. Insofar as the preliminary decree is concerned, I have to point out that an appeal had been preferred therefrom in A.S.No.161 of 1971 on the file of the Subordinate Court at Nagercoil. On dismissal of the appeal, a Second Appeal had also been filed before this Court in S.A.No.1269 of 1978. It had ended in confirmation of the preliminary decree granted. In other words, there is absolutely no impediment in the way of the Court to proceed further with the final decree.

17. If I were to give that finding and reject the plaint as one lacking cause of action, the litigation, which seems to have commenced some time in 1950's, would never come to an end. Already parties have been litigating for more than 59 years and they are yet to see the end of litigation. If at all anyone has benefitted on account of the litigation between the parties, it is only the members of the Bar.

18. This Court possesses in itself, the power to transfer suits from any Court subordinate to it to any other Court subordinate to it. The partition suit in O.S.No.183 of 1967 on the file of the District Munsif at Kuzhithurai is still pending. It had only been adjourned sine die. Hence, in exercise of the powers under Article 227 of the Constitution of India, I transfer the suit in O.S.No.183 of 1967 from the file of the District Munsif Court at Kuzhithurai to the file of Additional District Judge, Kuzhithurai.

19. The suit filed in O.S.No.61 of 2019 has all parties, who claim through the contesting parties in O.S.No.183 of 1967. Hence, the learned Additional District Judge, Kuzhithurai shall treat O.S.No.61 of 2019 as a final decree application in O.S.No.183 of 1967. In fact, as pointed out by the Supreme Court, a final decree application is not essential and it is the duty of the Court to ensure that after the period of filing an appeal is expired, final decree proceedings are commenced immediately so that the parties will be granted their respective portions and start enjoying the same free of litigation [See, Shub Karan Bubna's case cited supra].

20. In the light of the above discussion, with the consent of the counsel, who have been duly interested in this regard, this Civil Revision Petition is disposed of in the following terms:

                   (i) The suit in O.S.No.183 of 1967 on the file of the learned District Munsif at Kuzhithurai is withdrawn and transferred to the file of the learned Additional District Judge at Kuzhithurai.

                   (ii) The suit in O.S.No.61 of 2019 shall be treated as a final decree application filed by the defendants 1 to 3 in O.S.No.183 of 1967.

                   (iii) The present plaintiffs, being the legal heirs of defendants 1 and 2 in O.S.No.183 of 1967, shall pay the Court fee for the share, which the defendants 1 to 3 had to originally pay to have a share declared in their favour. Mr.S.C.Herold Singh states that the Court fee, that the legal representatives of the defendants 1 to 3, will have to be paid, will be deposited within a period of two (2) weeks from the date of receipt of a copy of this order.

                   (iv) On receipt of the records in O.S.No.183 of 1967 from the learned District Munsif at Kuzhithurai and on payment of the Court fee by the plaintiffs herein, the learned Additional District Judge, Kuzhithurai shall appoint a person reasonably seasoned in civil law as an Advocate Commissioner to visit the suit schedule mentioned property and to file a report before the Court.

                   (v) On the report of the Advocate Commissioner, the learned Additional District Judge at Kuzhithurai is requested to pass a final decree. This Court requests the learned Additional District Judge at Kuzhithurai to pay utmost attention and ensure that atleast two hearing dates are given every week so that the litigation, which has commenced in the year 1967, is put an end at least before the end of June 2026. No costs. Consequently, connected Miscellaneous Petition is closed.

21. Registry shall communicate a copy of this order to the learned Additional District Judge, Kuzhithurai and to the learned District Munsif, Kuzhithurai forthwith. The learned Additional District Judge is requested to act upon a web copy of this order and not wait for a certified copy.