1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:22.06.2011 CORAM: THE HONOURABLE MR.JUSTICE A.SELVAM S.A.(MD).No.197 of 2011 Paramasivam ... Appellant/Defendant Vs. Sundaramoorthy ... Respondent/Plaintiff Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree made in A.S.No.152 of 2006 dated 09.09.2008 by the Principal Subordinate Judge, Kumbakonam, reversing the judgment and decree of the Principal District Munsif, Valangaiman at Kumbakonam made in O.S.No.353 of 2004 dated 09.11.2005. For Appellant :Mr.N.Krishnaveni For Caveator :Mr.R.Rajaramani J U D G M E N T Challenge in this second appeal is to the judgment and decree dated 09.09.2008 passed in A.S.No.152 of 2006 by the Principal Sub-Court, Kumbakonam, wherein the judgment and decree passed in O.S.No.353 of 2004 by the Principal District Munsif Court, Valangaiman at Kumbakonam are reversed. 2.The respondent herein as plaintiff has instituted O.S.No.353 of 2004 on the file of the trial Court for the relief of mandatory injunction, wherein, the present appellant has been shown as defendant. 3.It is averred in the plaint that the suit property is comprised in S.No.319 and its total extent is 60 cents of land. The suit property has been described as ABCD in the plaint plan and its extent is 1 cent. The father of the plaintiff is a freedom fighter and he has been permitted to enjoy the entire extent of 60 cents. The entire extent is nothing but tope poromboke. But the Government, all of a sudden, converted the same into a natham poromboke. Under the said circumstances, the plaintiff has instituted O.S.No.8 of 2001 for getting appropriate relief. The defendant is not having any manner of right, title and interest over the suit property and on 01.12.2003, he trespassed into the same and put up a hut. Under the said circumstances, the present suit has been instituted for the relief sought for in the plaint. https://hcservices.ecourts.gov.in/hcservices/ 2 4.In the written statement filed on the side of the defendant, it is averred that the suit property is the absolute property of the defendant. The plaintiff is not having any manner of right, title and interest over the same. It is false to say that the defendant has trespassed into the suit property and put up a hut. There is no merit in the suit and the same deserves to be dismissed. 5.On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence, has dismissed the suit. Against the judgment and decree passed by the trial Court, the plaintiff as appellant has preferred A.S.No.152 of 2006 on the file of the first appellate court. 6.The first appellate Court, after hearing both sides and upon reappraising the evidence available on record, has allowed the appeal and thereby, set aside the judgment and decree passed by the trial Court. Against the judgment and decree passed by the first appellate court, the present second appeal has been preferred at the instance of the defendant as appellant. 7.As agreed by the learned counsel appearing on either side, the present second appeal is disposed of on merits at the stage of admission. 8.On the side of the appellant/defendant, the following substantial questions of law have been raised for consideration: “1.Is the suit filed by the plaintiff for mandatory injunction without a prayer for declaration of title is maintainable when the defendant has specifically denied the title of the plaintiff to the suit property? 2.When the plaintiff has not proved his title over the suit property, the learned Principal Subordinate Judge is right in granting a decree for mandatory injunction against the defendant to remove the superstructure put up by the defendant in the suit property? 3.Is not the judgment and decree of the learned Principal Subordinate Judge is perverse and liable to be set aside for not assigning any reason while reversing the well considered finding of the learned trial Judge and not following Sec.96 of the CPC?” 9.The contention of the plaintiff is that the suit property is comprised in S.No.319 and its total extent is 60 cents and the suit property measures 1 cent and the defendant has encroached the same and put up a hut and therefore the present suit has been instituted for the relief sought for therein. https://hcservices.ecourts.gov.in/hcservices/ 3 10.The defence taken on the side of the defendant is that the suit property is the absolute property of the defendant and in which the plaintiff is not having any manner of right, title and interest and the defendant has not encroached the suit property and therefore the present suit deserves to be dismissed. 11.The trial court has accepted the defence taken on the side of the appellant/defendant. But the first appellate court has rejected the same. 12.The learned counsel appearing for the appellant/defendant has contended that the suit property is comprised in S.No.319 and its extent is 1 cent. Even though the present suit has been instituted for the relief of mandatory injunction, the plaintiff is not having title to the suit property and further the suit property has been assigned in favour of the defendant and the first appellate court without considering the documents filed on the side of the defendant has erroneously rejected the defence. Therefore, the judgment and decree passed by the first appellate court are liable to be interfered with. 13.In order to dispel the argument advanced on the side of the appellant/defendant, the learned counsel appearing for the respondent/plaintiff has also equally contended that the suit S.No.319 is nothing but a tope poromboke and the Government has illegally converted the same into natham poromboke. Under the said circumstances, the plaintiff has instituted O.S.No.8 of 2001 and the trial court has dismissed the same. But the first appellate court has decreed the same. Under the said circumstances, except the plaintiff nobody is having any right over the suit property and the first appellate court, after considering the stand taken on the side of the defendant has rightly rejected the same and therefore the judgment and decree passed by the first appellate court are not liable to be interfered with. 14.The entire argument advanced on the side of the respondent/plaintiff is based upon the suit instituted in O.S.No.8 of 2001. It is an admitted fact that O.S.No.8 of 2001 has been instituted by the respondent/plaintiff as plaintiff against the Tahsildar, Papanasam and also against the District Collector, Thanjavur. The trial court has dismissed the same. Against the judgment and decree passed in O.S.No.8 of 2001, the plaintiff as appellant has preferred A.S.No.206 of 2005 on the file of the appellate court. The appellate court has allowed the same and thereby decreed the suit as prayed for. 15.It is also equally an admitted fact that O.S.No.8 of 2001 has been instituted in respect of 0.1 ares of land in S.No.319 and that too for the relief of permanent injunction. In the plaint, it has been specifically stated that in suit S.No.319, totally 60 cents of land is available. 16.The main stand taken on the side of the respondent/plaintiff is that even during the life time of the father of the respondent/plaintiff, the entire extent of 60 cents of land has been in possession and enjoyment of the father of the plaintiff and therefore the Government has no right to convert the same as natham poromboke. Under the said circumstances, any assignment granted by the Government is totally illegal. https://hcservices.ecourts.gov.in/hcservices/ 4 17.On the side of the appellant/defendant, Ex.B.1 has been marked. Ex.B.1 is nothing but an assignment in respect of 1.116 ares of land in S.No.319. The present suit has been instituted for the relief of mandatory injunction. Even though a stand has been taken on the side of the respondent/plaintiff to the effect that the Government has no power nor authority to assign any portion of land situates in S.No.319, the Government has not been impleaded in the present suit. Further the Government has given Ex.B.1. Since the suit S.No.319 absolutely belongs to the Government and since Ex.B.1 has been issued in the name of the defendant, the court cannot belittle the same. 18.As stated earlier, the present suit has been instituted for the relief of mandatory injunction. The first appellate court has simply observed that even though Ex.B.1 has been issued in the name of the defendant, the defendant is not entitled to get assignment of the property. The observation made by the first appellate court cannot be accepted. Considering the fact that on the side of the respondent/plaintiff, a definite stand has been taken to the effect that the Government has no power to assign any portion of the land in S.No.319, the Government is a necessary party so as to settle the present lis and further the property assigned under Ex.B.1 has also to be identified. If the two aspects mentioned supra are not solved, it is very difficult on the part of the court to give quietus to the parties. Under the said circumstances, the judgments and decrees passed by the courts below are liable to be set aside and the matter is liable to be remitted to the file of the trial court. Since the matter is liable to be remitted to the file of the trial court, the substantial questions of law raised on the side of the appellant/defendant need not be decided. 19.In fine, this second appeal is allowed without costs at the stage of admission. The judgments and decrees passed by the courts below are set aside and O.S.No.353 of 2004 is remitted to the file of the trial court. The respondent/plaintiff is directed to implead the Government as one of the defendants. The respondent/plaintiff is also entitled to take proper steps so as to amend the plaint. Further the appellant/defendant is also directed to take proper steps to identify the property mentioned in Ex.B.1. The court fee paid on the appeal memorandum is ordered to be refunded to the appellant. The appellant/defendant is also at liberty to file additional statement, if any. The trial court is directed to dispose of O.S.No.353 of 2004 within a period of six months from the date of receipt of copy of this judgment. Consequently, connected M.P.No.1 of 2011 is closed. Sd/- Assistant Registrar(T&P) /True Copy/ Sub Assistant Registrar To 1.The Principal Sub-Court, Kumbakonam https://hcservices.ecourts.gov.in/hcservices/ 5 2.The Principal District Munsif Court, Valangaiman at Kumbakonam. +1cc to Mr.N.Krishnaveni, Advocate, Sr.No.19801 +1cc to Mr.R.Rjaramani,Advocate, Sr.No. 19887 vs ssk/21.07.2011 /5c -5p/- SA.(MD).No.197 of 2011 22.06.2011 https://hcservices.ecourts.gov.in/hcservices/