IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.12.2010 CORAM THE HONOURABLE MR. JUSTICE K.MOHAN RAM SECOND APPEAL NOS.1025 TO 1028 OF 2004 AND ALL CONNECTED PENDING CMPs AND CONTEMPT PETITION NO.925 OF 2005 P.Kumar ...Appellant in all the SAs (3rd Party/LR of Plaintiff) Vs 1.The State of Tamilnadu rep.by the District Collector, Salem. 2.The Anna Transport Corporation Ltd., rep.by its Managing Director Salem. 3.The Salem Municipality, rep.by its Commissioner, Salem. ...Respondents in SA.No.1025/2004 (Defendants) 1.The State of Tamilnadu rep.by the Chief Secretary, Fort.St.George Chennai-9. 2.The District Collector, Salem. 3.M/s.Anna Transport Corporation Ltd., rep.by its Managing Director, Ramakrishna Road, Salem-7 ...Respondents in SA.No.1026/2004 (Defendants) The Salem Municipal Corporation (erstwhile Salem Municipality) rep.by its Commissioner, Salem. ...Respondent in SA.No.1027/2004 (Defendant) https://hcservices.ecourts.gov.in/hcservices/ 1.The Salem Municipal Corporation (erstwhile Salem Municipality) rep.by its Commissioner, Salem. 2.The State of Tamilnadu rep.by the District Collector, Salem. 3.M/s.Anna Transport Corporation Ltd., rep.by its Managing Director Ramakrishna Road, Salem. ...Respondents in SA.No.1028/2004 (Defendants) CONTEMPT PETITION NO.925 OF 2005 P.Kumar ..Petitioner(Appellant) -vs- P.T.Paulchamy ..Respondent (3rd Respondent) APPEALS under Section 100 of the Civil Procedure Code against the judgments and decrees dated 30.1.2004 made in AS.Nos.80, 79, 94 and 102 of 2000 on the file of the First Additional District Court, Salem, respectively against the judgments and decrees dated 27.4.2000 made in OS.Nos.342 of 1996 (SA Nos.1025 & 1028/96), 34 of 1985 and 2066 of 1996 (SA Nos.1026 & 1027/1996)on the file of the Second Additional District Munsif Court, Salem and PETITION under Order XXXIX Rule 2A of the Civil Procedure Code to issue notice to the third respondent and punish him for violation of the order of interim injunction dated 28.4.2004 in CMP.No.7572 of 2004 in SA.No.1025 of 2004. For Appellant : Mr.T.Mani, SC for Mr.T.M.Hariharan For State : Mr.P.Wilson, AAG assisted by, Mr.V.Srikanth, GA For Transport Corporation : Mr.K.Ravi Bharathi For Salem Municipal Corporation: Mr.K.Muthukumarasamy, SC Mr.K.Sridhar C O M M O N J U D G M E N T The above second appeals have been filed against the judgments and decrees passed in AS.Nos.79, 94, 80 and 102 of 2000 on the file of the First Additional District Court, Salem, respectively dated 30.1.2004 arising out of the common judgment and decrees dated 27.4.2000 made in OS. Nos.34 of 1985, 2066 of 1996 and 342 of 1996 (against which, two appeals viz AS.Nos.80 and 102 of 2000 have been preferred), on the file of the Second https://hcservices.ecourts.gov.in/hcservices/ Additional District Munsif Court, Salem. 2. OS.No.34 of 1985 on the file of the District Munsif Court, Salem was filed by Mr.P.C.Pachaiyappan – the father of the appellant herein on 7.1.1985 against the State of Tamilnadu represented by the Chief Secretary, the District Collector, Salem and M/s.Anna Transport Corporation for declaration of title and for permanent injunction restraining the defendants therein from interfering with his possession. 3. OS.NO.1516 of 1989 was filed on 22.12.1989 by the father of the appellant originally before the Additional District Munsif Court, Salem against the Salem Municipality for declaration of title and for permanent injunction against interference with his possession. This suit was first transferred to the file of the Subordinate Court, Salem and renumbered as OS.No.348 of 1995 and again transferred to the file of the District Munsif Court, Salem and renumbered as OS.No.2066 of 1996. 4. OS.No.366 of 1994 was filed by the father of the appellant on 27.4.1994 originally before the Subordinate Court, Salem against the State Government represented by the Collector, Salem, Anna Transport Corporation and Salem Municipality (now Salem Municipal Corporation) for declaration of title, for permanent injunction against changing the character of the suit property by putting foundation and making permanent obstruction, for declaration that the classification of the suit property as a communal property is null and void and for demarcating the suit property as per the recitals of boundary contained in the sale deed dated 29.9.1952. This suit was subsequently transferred to the District Munsif Court, Salem and renumbered as OS.No.342 of 1996. 5. All the three suits were tried by the Second Additional District Munsif, Court Salem, which, by a common judgment and decrees dated 27.4.2000, decreed all these suits. Being aggrieved by the judgment and decree in OS.NO.34 of 1985, AS.No.79 of 2000 was filed by defendants 1 and 2 therein before the First Additional District Court, Salem, against which, SA.NO.1026 of 2004 has been preferred. Against the judgment and decree in OS.NO.2066 of 1996, AS.No.94 of 2000 was filed by the defendant therein before the First Additional District Court, Salem, against which, SA.NO.1027 of 2004 has been preferred. Against the judgment and decree in OS.NO.342 of 1996, AS.Nos.80 and 102 of 2000 were filed respectively by the State of Tamilnadu by the Collector and the Salem Municipal Corporation by its Commissioner before the First Additional District Court, Salem, against which, SA.NOs.1025 and 1028 of 2004 have been preferred. 6. While admitting the above second appeals, the following substantial questions of law were framed : https://hcservices.ecourts.gov.in/hcservices/ 'i. Whether the plaintiff is entitled to the suit property by right of purchase as ryoti land ? ii. Whether the suit is barred by limitation under Order II Rule 2 of the Civil Procedure Code ? And iii. Whether the Lower Appellate Court is right in disposing of the matter on pleas not raised in the pleadings or at the trial?" 7. After hearing the arguments of the learned counsel for the appellant as well as the learned Additional Advocate General on behalf of the learned Government Advocate (CS), Mr.R.Muthukumarasamy, learned Senior Counsel appearing on behalf of Mr.K.Sridhar, learned counsel for Salem Municipal Corporation and Mr.Ravi Bharathi, learned counsel for the Transport Corporation, as this Court was of the opinion that additional substantial questions of law arise for consideration in the above second appeals, the same were framed as hereunder : 'a. In the face of ExA23 = ExB2 and ExA26 = ExB71, is it in law open to the Government to contend based on ExB6 and ExB11 that the extent of achivaneri is larger than the extent mentioned in ExA23, ExB2 and ExA26 = ExB71, without pleading and proof ? And b. Would the plaintiff or his predecessor in interest be estopped from claiming title based on ExA2 and ExA1, simply because they requested for patta outside the Abolition Act where they lost ?" 8. Admittedly, Ex.B-2 pertains to an earlier Fasli. A perusal of Ex.B-2 shows that it is a copy of the SLR and in that the extent of S.F.No.163 Paimash No.779, Achuvaneri is shown to be an extent of 15.00 acres as per Revenue Account pertaining to Fasli 13 (Fasli 13 may not be correct). But the same has come into existence admittedly before the resettlement and resurvey. But the lower appellate court has not given due importance to Ex.B-2 only basing reliance on Exs.B-6 and B-11 which have come into existence after resettlement and resurvey i.e., on 25.05.1961. Based on Exs.B-6 and B-11, the lower appellate court has come to the conclusion that the extent of achuvaneri is larger than the extent mentioned in Exs.B-2 and B-71 that too in the absence of proper pleadings and proof. Since the finding will ultimately have a direct bearing on the decision to be rendered in these second appeals and prima facie, the said finding appears to be erroneous, the aforesaid additional substantial question of law 'a' has been framed. 9. Since a contention has been raised by the respondents before the lower appellate court and before this Court that since the plaintiff has sought for a ryotwari patta outside the purview of the Act 26 of 1948, he is estopped from claiming title title based on Exs.A-1 and A-2, the second additional substantial https://hcservices.ecourts.gov.in/hcservices/ question of law 'b' has been framed. Since decision on this issue will have a bearing on the ultimate result of the second appeals, the said substantial question of law has been framed. 10. Before framing the additional substantial questions of law, the respective counsel were heard and after framing the additional substantial questions of law also, an opportunity was given to the respective counsel to advance their submissions on the same. 11. For the sake of convenience, the parties are referred to as per their rank in OS.No.342 of 1996. 12. All the three suits as stated above were filed by Mr.P.C.Pachaiyappan – the father of the appellant in these second appeals to establish his title to the suit property and protect his possession by reason of the alleged periodical attempts to interfere with his possession made by one or the other of the defendants in the suits. The suit property in all the suits is an extent of 4.91 acres of dry lands in new S.F.NO.163, Pallapatti Mitta and Village comprised in zamin patta No.200 with trees and well therein to the east of achuvaneri tank bund. 13. The case of the plaintiff is that the suit property was purchased by the plaintiff under Ex1 – registered sale deed dated 29.9.1952 from one Mr.S.Vijayaranga Mudaliar – the ryot in possession of the suit lands under ExA2 series for faslis 1350, 1352 and 1356. According to the plaintiff, the land was cultivated by his vendor and ExA3 - the chitta extract and ExA4 - the settlement register extract confirmed his possession. The said Mr.S.Vijayaranga Mudaliar conveyed the same to the plaintiff for proper consideration and put him in possession. Thus, the land has been in possession and enjoyment of the plaintiff and his vendor throughout. A Notification dated 19.12.1950 was issued to take over Pallapatti Village under the Tamilnadu Act 26 of 1948 on 12.1.1951. After abolition of the estate, the possession of the plaintiff or his vendor was never attempted to be disturbed and in fact, the possession of ryot is protected under Sections 3(2)(b) and 64 the Tamilnadu Act 26 of 1948. According to the plaintiff, any claim to the contrary is illegal, unjustified and contrary to the specific provisions of the Tamilnadu Act 26 of 1948. 14. The further case of the plaintiff is that his vendor the said Mr.S.Vijayaranga Mudaliar is entitled to ryotwari patta under Section 11 of the Tamilnadu Estate (Abolition and Conversion into Ryotwari) Act, 1948 (hereinafter referred to as the Act) and it was applicable to Pallapatti zamin estate. The plaintiff improved the suit property, dug two wells for irrigation, constructed an open water tank for irrigation of the suit property and also put up huts and sheds. The plaintiff further constructed a peedam planting 'Sakthivel' for offering poojas. The plaintiff has been https://hcservices.ecourts.gov.in/hcservices/ paying land charges. 15. It is also the case of the plaintiff that since the said Mr.S.Vijayaranga Mudaliar was granted patta even in 1940 to a ryot land, the same has been classified as ryoti land and that the suit property could never form part of the communal land of achuvaneri or its tank bund. Further, the extent of achuvaneri as per the records is only 15 acres. The suit property lies on the east of the tank bund separated from the tank bed by the tank bund. The extent of the tank cannot be increased without proper notice or enquiry and at no point of time, the suit property was a tank or eri or a part of it. 16. It is the case of the plaintiff that in the year 1982, the Forest Department attempted to trespass into the suit property for the purpose of setting up a plant nursery in the suit property. The plaintiff objected and obtained stay order from the State Government against trespass. The Forest Department withdrew and refrained from doing further work. The plaintiff also made an application for grant of patta in his favour. The plaintiff is entitled to the grant of patta. Further, the plaintiff is entitled to the suit property by virtue of purchase. The plaintiff and his vendor were never evicted from the suit property at any point of time from 1940 onwards and the plaintiff prescribed his title by adverse possession also. 17. In 1984, the first defendant announced that a new bus stand would be located at achuvaneri and the same was to be constructed by the second defendant and handed over to the third defendant . It is the case of the plaintiff that the first defendant appeared to have changed the classification of the suit property and included it in the extent of achuvaneri. According to the plaintiff, originally, the eri is 15 acres in extent and this extent could never be arbitrarily extended or increased to include ryoti lands without notice or enquiry. The first defendant appeared to have claimed that the suit property is a communal land and hence, ryotwari patta could not be granted either to the vendor of the plaintiff or to the plaintiff. The classification and assertion of the first defendant that the suit property formed part of the tank is fallacious and unsustainable in law. No notice was given either to the plaintiff or to his vendor. Therefore, it is necessary that the classification of the suit property as communal land has to be declared as null and void. Further, the suit property has to be demarcated and boundaries have to be fixed according to the recitals of boundaries contained in the sale deed. The suit property cannot be annexed with achuvaneri, which is entirely different in character, away and distinct from it. It is the further case of the plaintiff that the pre-existing right of the plaintiff and his vendor cannot be ignored and that on 30.9.1992, the Director of Settlement rejected the petition for patta as belated and for the reason that the proceedings are https://hcservices.ecourts.gov.in/hcservices/ pending before the High Court. 18. The plaintiff filed OS.No.34 of 1985 on the file of the District Munsif Court, Salem for declaration and injunction. In WP.No.8750 of 1984, the High Court was pleased to pass an order on 24.2.1994 that the dispute regarding the grant of patta can be decided in the Civil Court. As the stay was granted in 1984 and made absolute in 1987, an order of status quo was granted for three months from 24.2.1994. WP.No.1162 of 1992 was disposed of by the High Court on 31.1.1992 wherein the defendants were directed not to evict the plaintiff except under due process of law. 19. The further case of the plaintiff is that in 1992, the officials of the second and third defendants attempted to trespass into the suit property in defiance of the stay orders, destroyed the sheds, fences, etc and the plaintiff lodged a complaint with the local police. The defendants, their men and servants have been threatening forcible dispossession under the untenable claim that the suit property formed part of achuvaneri. 20. It is the specific case of the plaintiff that the fencing put up by the defendants 2 and 3 is only after excluding the suit property and therefore, the possession of the suit property was not taken over by the Government. It is his further case that the defendants, taking advantage of the Chief Minister's programme for inaugurating the bus stand, destroyed the peetam and sheds and withdrew after the programme was over. Since the defendants are proclaiming that they would put up construction in the suit property, the comprehensive suit has been filed for the following reliefs: 'i.Declaring the title of the plaintiff to the suit property; ii.Grant of permanent injunction restraining the defendants, their men, servants from changing the character of the suit property by putting up foundation and making permanent construction; iii.Declaring that the classification of the suit property as communal property is null and void; and iv.Demarcating the suit property as per the recitals of boundary contained in the sale deed dated 29.9.1952.' 21. The State of Tamilnadu represented by the District Collector – the first defendant contested the suit by filing a written statement inter alia contending as follows : 'i. It is false to state that patta was granted to the said Mr.S.Vijayaranga Mudaliar in patta NO.200 and that the same was granted in 1940 itself. It is false to state that the said Mr.S.Vijayaranga Mudaliar was in https://hcservices.ecourts.gov.in/hcservices/ possession of the suit property and paying land tax to the estate land holder. Under Section 3 of the Act, the entire estate including all non-ryot and poramboke lands were vested with the Government free of all encumbrances. The suit property is also vested with the Government and at no point of time, either the said Mr.S.Vijayaranga Mudaliar or the plaintiff was in possession of the property; ii. The said Mr.S.Vijayaranga Mudalir has no right to enter into any sale agreement in respect of the suit property either with the plaintiff or with anybody. The alleged sale is in no way binding on the Government, as the Government is the lawful owner of the suit property. It is false to state that on the date of sale, the plaintiff was put in possession of the suit property. It is also false to state that the plaintiff improved the suit property by way of construction of open water tank and also put up 'Vel' for offering poojas. It is not correct to state that the plaintiff was paying land tax to the Government; iii. The further case of the first defendant is that the suit property formed part of achuvaneri and the total extent of achuvaneri is 24.62 acres. It is also false to state that the extent of achuvaneri is only 15 acres and that the suit property is a separate property from the tank bund. It is not correct to state that the extent of achuvaneri was increased without proper notice or enquiry and that right from the beginning, the total extent of achuvaneri is 24.62 acres bearing S.No.163; iv. It is also not correct to state that the plaintiff has obtained stay orders against forest officials. It is also false to state that the plaintiff and his vendor were never evicted from the suit property. On the other hand, except the Government, no individual was in possession of the suit property and till this time, the possession is with the Government. It is also correct to state that the plaintiff has got title by adverse possession as alleged by him. The claim of the plaintiff for issuance of patta was rejected in G.O.No.502 Commercial Taxes and Religious Endowments Department dated 9.5.1984; v. Against that Government Order, the plaintiff filed WP. No.8750 of 1984 before this Court and the same was dismissed. The Government handed over the entire extent of land in S.No.163 to Salem Corporation in G.O.No.255 dated 19.2.1984 and from that date, the Salem Corporation is maintaining the suit property and is in possession of the same. Further, the plaintiff filed WP.No.1162 of 1992 and the same was dismissed on 31.1.1992. Again, the plaintiff filed WP.NO.3588 of 1992 and the same was dismissed on 12.3.1992. The plaintiff https://hcservices.ecourts.gov.in/hcservices/ also filed two other writ petitions in WP.Nos.3932 and 5642 of 1992. It is seen from papers that they were dismissed as withdrawn; vi. The Civil Court has no jurisdiction to decide the validity of the title in the non-ryotwari lands. The suit property has already been classified as non- ryotwari land and on that ground alone, the suit is not maintainable. The Commissioner of Land Administration rejected the claim of the plaintiff finding that the plaintiff made misrepresentations to the Authorities and also that the suit property belongs to the Government. The classification of the suit property in S.No.163 in Pallapatti village was decided in survey and settlement as eri poramboke in the year 1962 itself; vii. It is also false to state that the Government has annexed the suit property with achvaneri and that the suit property is entirely different in nature or character as alleged in the plaint. In nature and character from 1962, the land bearing S.F.No.163 is classified as eri poramboke and the total extent of achuvana eri is 24.62 acres including the suit property of an extent of 4.91 acres. It is the further contention of the first defendant that the plaintiff is not entitled to file vexatious suit with false allegations and by suppressing real facts. There is no cause of action for filing the suit. The plaintiff is not entitled to any declaration. On the aforesaid pleadings, the first defendant sought for dismissal of the suit. 22. The second defendant – Transport Corporation filed a separate written statement inter alia contending as follows : 'The allegation that the plaintiff is the owner of the ryoti lands described in the plaint schedule is not true. It is false to state that the plaintiff was granted patta by the said Mr.S.Vijayaranga Mudaliar. The plaintiff has to establish his title to the suit property. WP.No.1162 of 1992 was dismissed as early as 31.1.1992 and the second defendant was not issued with any notice in the said proceedings. The possession of the suit property is with the Salem Municipality – the third defendant. The allegation that the second defendant attempted to trespass into the suit property is false. The second defendant is not a necessary party to the suit. The suit is misconceived and liable to be dismissed in limine. There is no cause of action to file the suit. The suit has not been valued properly for the purpose of court fees and jurisdiction. The description of the property furnished in the plaint is defective and misleading. On the above pleadings, the second defendant sought for dismissal of the suit.' https://hcservices.ecourts.gov.in/hcservices/ 23. The third defendant – Salem Municipal Corporation filed a separate written statement contending inter alia as follows : 'i. The Civil Court has no jurisdiction to entertain the suit, since the suit property is part of S.F.No.163 of Pallapatti Vilalge comprised of 24.62 acres, which was classified as chinna eri (a) achvaneri and it is a non ryotwari land. The Supreme Court held that under the Act, the Civil Court has jurisdiction only to try the suits in respect of ryotwari lands and hence, the suit has to be dismissed in limine. ii. The plaintiff made all efforts to get patta in the suit property on the basis of the sale deed, which itself is void and the vendor himself has no title and right to make conveyance. Even, the then Board of Revenue, by its order dated 20.7.1953 in BP.999/1953 rejected the claim for patta on the main ground that the character of the land is non ryotwari (communal) one. The Government also rejected all the claims made by the plaintiff. The orders in G.O.RT.No.838 dated 11.5.1971 and G.O.No.502 CT & RE Department dated 9.5.1984 have become final and in spite of the same, the plaintiff, suppressing the facts, has filed suit after suit against the third defendant and others only to cause harassment and wrongful loss. The plaintiff cannot get any title over the suit property by virtue of the sale deed in his favour, since the vendor has no right to execute any sale deed of the suit property, over which he himself has no right or possession. The said Mr.S.Vijayaranga Mudaliar himself was not in possession of the suit property at any point of time. The suit property is part of achuvaneri and comprised of 24.62 acres; iii. It is false to state that the extent of eri is increased without notice. It is meaningless to state that the vendor was never evicted by the Government, since there is no necessity for that. The Government handed over possession of the entire land in S.No.163 to the then Salem Municipality by an order dated 29.2.1984 in G.O.NO.255 and since then, the Salem Municipality was maintaining the entire property within their possession. The Government, by an order dated 29.2.1984, in G.O.No.255, passed an order after careful consideration directing the Municipal Corporation and the Transport Corporation to go ahead with the proposed work of constructing the new bus stand in S.No.163. The District Collector was ordered to hand over the entire land covered by S.No.163 for