IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21-04-2010 CORAM: THE HONOURABLE MR.JUSTICE S. PALANIVELU A.S.Nos.935 and 936 of 2008 and M.P.Nos.1 of 2008 Mrs. K. Saraswathy ... Appellant [in both A.Ss.] vs. 1.The State of Tamil Nadu rep. by the Collector of Chennai, Chennai 600003. 2. The City Municipal Corporation represented by its Commissioner Rippon Building, Chennai 600003. 3. A.P. Rangarao 4. A. Mukundiah ... Respondents [in A.S.No.935/08] 1. A.P. Rangarao 2. A. Mukundiah ... Respondents [in A.S.No.936/08] Appeal Suit No.935 of 2008 is filed under Section 96 Order XLI Rule 1 of the Code of Civil Procedure against the judgtment decree dated 2.9.2008 made in O.S.No.2844 of 2004 on the file of the VII Additional Judge,City Civil Court, Chennai. Appeal Suit No.936 of 2008 is filed under Section 96 Order XLI Rule 1 of the Code of Civil Procedure against the judgtment decree dated 2.9.2008 made in O.S.No.8866 of 2005 on the file of the VII Additional Judge,City Civil Court, Chennai. For Appellant : Mr.T. Srinivasaraghavan [in both A.Ss.] For Respondents : Mr.V. Ravi Special Govt. Pleader [for R-1 in A.S.No.935/2008] Mr.V.Bharathidasan [for R-2 in A.S.No.936/2008] Mr.B.T. Seshadri [for R3 & R4 in A.S.No.935/2008 and R1 & R2 in A.S.No.936/2008] C O M M O N J U D G M E N T Because of the interconnectivity of the matter, the common judgment is rendered. 1. The plaint in O.S.No.2844 of 2004, filed by the appellant herein, contains the following averments:- 1.(a) Land measuring 2419 Sq.ft. with superstructure therein in T.S.No.15(part) Block No.3, in Sembium Village, Purasavalkam-Perambur Taluk, Chennai with other properties were purchased by M. Sethumadhavan from one M. Sadullah Bhasha and others by a registered sale deed. Thereafter the said Sethumadhavan sold the suit land with small superstructure, to the plaintiff. The plaintiff demolished the superstructure and applied to the Corporation/2nd defendant, for planning permission and building license for construction of house. The 2nd defendant also granted planning permission and building license to build ground floor of the proposed building. The plaintiff obtained house building loan from Life Insurance Corporation of India, constructed the house with the ground floor and residing in that house. She got electricity connection and is paying property tax as assessed by the second defendant. Thereafter, she applied for planning permission and building license for construction of the first floor in the house and the second defendant granted the same for additional construction. On the strength of planning permission, she completed the construction of the first floor in the month of May 2000 and is in possession of the land and building by paying property tax and electricity consumption for the said building. 1.(b) To her shock and surprise, the plaintiff received a show cause notice on 13.11.2000 from the 2nd defendant as to why the planning permission and building license granted to her should not be revoked. She sent reply to that notice on 23.11.2000. But the 2nd respondent by order dated 29.12.2000, revoked the planning permission and building lincense under Sec.54(2) of the Tamil Nadu Town and Country Planning Act and under Sec.365(4) of the Madras City Municipal Corporation Act, which is illegal arbitrary, without lawful authority and colorable exercise of powers. 1.(c) The plaintiff filed W.P.No.2369 of 2001 before the High Court, Madras, against the above order. The said writ was admitted. Subsequently, the defendants 3 and 4 (respondents 3 & 4 in A.S.No.935/2008) filed petition for impleadment to the said writ petition and the same was allowed. The writ petition was finally disposed of with a direction to the plaintiff to establish her title in Civil Court and also directed her and the defendants 3 and 4 to work out their remedy in the Civil Court. Hence, the plaintiff filed this suit seeking for declaration of her title to the suit property and for consequential reliefs. 1.(d) Originally one Muthu was in possession of the suit property. Subsequently, Sadulla Basha purchased the property and he had been in possession and enjoyment of the property. After the sale deed by Sadulla Bhasha and his sons to Sethumadhavan, Sethumadhavan was in possession of the property. There was a small superstructure with a tiled roof. The plaintiff purchased the land with the superstructure from Sethumadhavan on 6.9.1984 under a registered sale deed, demolished the superstructure and constructed a pucca building after obtaining necessary planning permission and building licence from Corporation authorities. It is therefore clear that the plaintiff and the vendors had been throughout been in open, uninterrrupted and continuous possession and enjoyment of the schedule land and superstructre. 1.(e) It is further averred in the plaint that the first defendant i.e., the Collecter of Chennai by order dated 13.8.1996 cancelled the patta granted by the Tahsildar. The cancellation of patta did not take into account the spate of registered documents and the cancellation was the result of a casual approach and without going into the substance of the matter. Patta is not a document of title but it is only a bill of rent. It is now settled law that the revenue authorities cannot decide the question of title in respect of immovable properties and it is the prerogative of the Civil Court to adjudicate upon the title in respect of immovable properties. Therefore the cancellaion of patta cannot be put against the plaintiff, as the cancellation did not take into account several clinching documents of title and continuous possession by the concerned parties. The person, i.e., Thiru Denduluri Durgaprasad who petitioned to the collector had not established his title before him. Further, the Collector also did not take into account whether Mr. Denduluri Durgaprasad was in possession of the property in dispute. The cancellation of patta by the Collector was on superfluous grounds and on alien consideration. 1.(f) In the writ petition, the defendants 3 and 4 intervened and claimed title to the schedule land, who have absolutely no manner of right, title and interest in the schedule land. It is not established that the defendants 3 & 4 have any substring right, title or interest. Even the person who claimed to be the original owner had not been in possession of the land in question for over the statutory period and the title of the said person got extinguished by lapse of time. The defendants No.3 and 4 had never been in possession of the suit land. The plaintiff constructed the house in the year 1987 and it is in existence for over 15 years. Therefore, it is clear that the defendants No.3 and 4 could not have been and are not in possession of the suit land. Hence the suit may be decreed as prayed for. 2. In the written statement filed in O.S.No.2844 of 2004 by the second defendant/Corporation Commissioner, it is alleged as under: 2.(a) The suit is not maintainable either in law or on facts. The plaintiff has filed the suit with false and frivolous averments. Initially the plaintiff got sanctioned plan for additional construction in ground floor in respect of the suit property from Corporation of Chennai vide proceedings dated 28.10.99. Since, there was a dispute in respect of the suit property, the Collector of Chennai vide Proceeding No.J4/69381/93 dated 13.08.1996, after careful examination and verification of the other connected documents produced by the plaintiff and on enquiry, cancelled the patta issued in favour of the plaintiff and three others. In the above proceedings, the Collector has observed that the documents furnished by the plaintiff have no link with the original owner of the property Denduluri Vaidyanatha Krishnamurthy and ordered to restore the name of Denduluri Vaidyanatha Krishnamurthy in the original records for T.S.No.15/4, Block No.3, Sembium Village, Chennai. 2.(b) Since the plaintiff had obtained sanctioned plan by suppression of material facts, this defendant issued show-cause notice to the plaintiff. But the plaintiff has not given any specific reply for the points mentioned in the show cause notice. Based on the show cause notice and after careful examination of records, the planning permission and building permit were revoked by this defendant vide proceeding No.D4/5084/99 dated 29.12.2000. As per the direction of High Court in W.P.No.2369 of 2001, the plaintiff has to approach the City Civil Court within a period of two months from the date of the order. It is also specifically stated in the order that in the event of failure on the part of the plaintiff to approach the Civil Court and to get an order of interim stay as directed, the direction granted to the Commissioner, Corporation of Chennai, shall stand automatically vacated. Since the planning permission and building permit have been revoked and also as per the direction of W.P.No.2369 of 2001, action has been taken under 256(3) of the Madras City Municipal Corporation Act and notice was served on the plaintiff. 2.(c) The patta has been issued in favour of original owner Sri Denduluri Vaidyanatha Krishnamurthy, in the year 1985 in respect of property comprised in S.No.15, Block No.3 to the total exetnt of 6 = grounds. The patta issued to the plaintiff has been cancelled by the Chennai Collector by his proceedings on 13.8.1996. Against the order of cancellaion of patta, there was no appeal or challge by the plaintiff before any court or any appropriate forum. Therefore, the order of the Collector cancelling the patta became absolute and permanent. Urban Land Tax is being paid by the original owner and C.R.Durga Prasad upto 1996 right from the purchase in 1948 for the entire 6 = grounds and later Mr.A.P.Ranga Rao and his elder brother A.Mukundiah paid Urban Land Tax in their name from their purchase in 1986. Since the patta was cancelled by the Collector, the planning permission is bound to be cancelled and treated the building in the suit property as unauthorised and subject to demolition. The plaintiff had already filed a suit in O.S.No.4842 of 1999 in the City Civil Court and the same was dismissed as withdrawn. This defendant has taken necessary action by due process of law only and all the notices and the orders issued by the defendant are valid. The suit is barred by limitation. Hence the suit is liable to be dismissed. 3. The following are the averments contained in the written statement filed by the 3rd and 4th defendants in O.S.No.2844 of 2004 :- 3.(a) The suit is false, frivolous and unsustainable in law and on facts. The plaintiff is put to strict proof of all the allegations contained in the plaint except those that are admitted herein. The suit was not filed within the time stipulated by the High Court, Chennai. High Court has directed the plaintiff in the writ petition that she should file a suit within 4.9.2003 and seek necessary relief. But the plaint shows the suit was filed only on 12.11.2003. Hence the suit ought not have been entertained by the Court and the same should be rejected with costs. The plaintiff is now perfectly aware that this suit vacant site forms part of larger extent of area owned by late Denduluri Vaidyanatha Krishnamurthy and after his death, his legal representatives were in possession of the entire area till it was purchased by these defendants. Nobody else has got any interest, right or title to the suit property. It is not correct to state that the vacant site measuring 2419 sq.ft. with a superstructure was purchased by one Sethumadhavan from one Sadulla Bhasha and others in 1983 and the said Sethumadhavan was in actual possession and enjoyment of the property. The plaint is silent about how or from whom Sadullah Bhasha got the same. It is evident that the said Sadullah Bhasha had no manner or right whatsoever in the suit property who sold the same by taking advantage of the fact that the real owners of the property were residing in Kakinada, Andhra Pradesh. He posed himself as owner of the suit property and sold the same to one Sethumadhavan from whom the plaintiff is alleged to have purchased. On the basis of the fictitious sale deed, the present plaintiff got a patta in her name and subsequently got a building plan sanctioned by the 2nd defendant and put up a structure on the suit site. 3.(b) The sons of the said late Denduluri Vydyanatha Krishnamurthy on coming to know the fraud played upon by the said Sadullah Basha, Sethumadhavan and the plaintiff, presented a petition to the first defendant [Collector of Chennai] who enquired into the same and found that they had trespassed into the suit land and created fictitious sale deeds and on the strength of those deeds, maneuvered to get patta and so the patta granted in favour of the plaintiff was cancelled. The same was brought to the notice of 2nd respondent, who on verification found that the above said persons have committed fraud and maneuvered to get a building plan sanctioned and so revoked the sanctioned plan and directed the plaintiff to demolish the unauthorised construction put up on the suit site. 3.(c) Show cause notice was sent by 2nd defendant to the plaintiff on 13.11.2002 and the plaintiff submitted her explanation to the show cause notice. The 2nd respondent found that the explanation given by her was not satisfactory and so the building plan and license was revoked. Hence, it is not correct to state that the order of the revocation is illegal, arbitrary, bereft of lawful authority and amounts to colourable exercise of powers. 3.(d) The plaintiff filed O.S.No.4842 of 1999 in the City Civil Court against the 2nd defendant and its Asst. Engineer, for a declaration that the notices sent by these defendants are illegal, null and void and consequential injunction restraining these defendants from demolishing superstructure. As these defendants have become the owners of the entire property by virtue of sale deeds executed by the legal representatives of deceased Denduluri Vaidyanatha Krishnamurthy on 14.2.1996, they filed a petition to get themselves impleaded as defendants 3 and 4 in the above suit. Immdiately the said suit was not pressed and the same was dismissed as not pressed. Then the plaintiff filed W.P.No.2369 of 2001 to quash the order of the second defendant dated 29.12.2000. However, the petition was dismissed with a direction to the plaintiff to establish her title and work out her remedy in a Civil Court by filing a suit on or before 04.09.2003. As aforestated the above suit was not filed within the stipulated period and so the suit is not maintainable. 3.(e) The allegation that the plaintiff and the vendors had been in open, uninterrupted and continuous possession of the suit land with superstructure is false, because the owners though absentee-landlords, residing in Andhra Pradesh, have been paying Urban Land Tax till date. After cancellation of pattas by the first defendant, all the revenue records were restored in the name of the original owner by the Tahsildar, Purasawalkam-Perambur, Chennai-11 and the subsequent purchasers were trespassers and have no right whatsoever in the suit property. It is not correct to state that the defendants 3 and 4 have absolutely no manner of right, title or interest. It is equally false to allege that even the person who claimed to the original owner had not been in possession of the land in question for over the statutory period and the title of the said person got extinguished by lapse of time. Not only the original owners have been paying the Urban Land Tax but also got the patta in their names. It is therefore futile to contend that the original owners had not been in possession for over the statutory period. It is not open to the plaintiff to raise the question of adverse possession when she seeks declaration on the basis of the sale deed in her favour. 3.(f) The plaintiff has miserably failed to establish how her predecessors especially Sadullah Bhasha got title to such a vast property or even to the suit property and from whom he had purchased or how his vendor acquired the suit property. The said Sadullah Bhasha is a rank trespasser and he had created fictitious documents to cheat the purchasers and subsequently committed a fraud on the Revenue officers and maneuvered to get patta on 28.1.1988. The plaintiff and her vendors have played fraud on the strength of fictitious sale deeds and managed to get patta not only in the name of the plaintiff but also the neighbours. When the L.Rs of the Denduluri Vaidyanatha Krishnamurthy came to know about the patta granted in the name of the plaintiff and other three individuals he filed a petition before the 1st defendant, who on enquiry, close scrutiny and examination of the documents produced by both the parties, was satisfied with the title of the late Deduluri Vaidyanatha Krishnamurthy and that the fictititous sale deeds have no connection whatsoever with the title of the late Deduluri Vydyanatha Krishnamurthy. 3.(g) The suit land and the adjacent areas were all vacant sites and the plaintiff and her predecessors have trespassed into a portion and created fictitious sale deeds and cheated the defendants 3 & 4. Being the vacant site, the late Denduluri Vaidyanatha Krishnamurthy had been paying only the ULT and a vacant site is said to be in constructive possession and he later became permanent resident of Kakinada, A.P. His ownership is fortified by registered sale deed and therefore it is not correct to state that the claim of the defendants 3 and 4 who purchased the same from the rightful owner is not maintainable. The plaintiff who traces her title to the suit property has not stated how Sadulla Bhasha acquired title to the suit property. Therefore the suit may be dismissed with costs. 4. Besides those are pleaded in the written statement in O.S.No.2844 of 2004, other averments found in O.S.No.8866 of 2005, filed by the plaintiffs/respondents 3 & 4 in A.S.No.935 of 2008 are as follows:- 4.(a) Ever since the said Denduluri Vaidyanatha Krishnamurthy had been in possession and enjoyment of the property till 1975 when he died leaving behind his wife, four sons and two daughters and they have been in possession of the entire area of 6 = grounds. They have also obtained patta for the said land even as early as in 1985 and paying the Urban Land Tax till date. The said family first resident of Madras, later shifted to their native place Kakinada, Andhra Pradesh and have been visiting the land often to prevent any encroachment by third parties, since the same is open vacant site without any compound wall. 4.(b) In due course, they found difficult to manage the said property and so they appointed the first plaintiff as their legal agent to look after the property. On his inspection, it was found that the defendant has put up a superstructure on the North eastern corner abutting E.B.Road and on further probe it was learnt that she has obtained a bogus patta from the revenue department in respect of the suit land and also a building plan from the Corporation and put up a superstructure. The first plaintiff therefore asked Deduluri Durgaprasad to give complaint to the Collector of Madras to enquire into the circumstances which had led to the grant of patta in favour of the defendant and three others. The enquiry disclosed that one Sethu Madhavan created a fictitious sale deed and the defendant appears to have purchased the land from him, who is only a way-farer. On the strength of fictitious sale deed, the defendant appears to have persuaded the revenue officials to grant patta in her favour and Corporation officials to sanction a plan to put up a building on the suit site and got the same. Hence the Collector of Madras cancelled the patta issued to the defendant on 13.09.1996. She did not prefer any appeal or challenge the orders of the Collector in any Court of law, or before any appropriate forum at any time and the order of the Collector became final and conclusive. 4.(c) Since the family of Denduluri Vaidyanatha Krishnamurthy, has been finding very difficult to look after the entire area of 6 = grounds, the plaintiffs were persuaded to purchase the lands and got executed the sale deed in their favour for valid consideration on 15.2.1996 and thus they have become the absolute owners of the property. 4.(d) In spite of the direction given by the High Court by way of clarification to file the suit within two months from the date of 04.07.2003 to establish her title in a Civil Court, the defendant did not care to carryout the direction, but filed the suit belatedly eight months later against the Collector of Channai, Corporation of Madras and these plaintiffs, for a declaration of her title to the superstructure. The circumstances stated above clearly disclose that she is perfectly aware that she had no valid title to the suit vacant site and she wants to prolong the matter as long period as possible. Hence, the suit may be decreed as prayed for. 5. In the written statement of defendant/appellant, the following are the contents in addition those whice are mentioned in the plaint in O.S.NO.2844 of 2004:- 5.(a) The claim of the plaintiff is not sustainable on questions of fact as well as under law. The plaintiffs are not entitled to any relief. This defendant does not admit the plaintiffs' claim that the suit land was owned by late Denduluri Vaidyanatha Krishnamurthy by virtue of a sale deed dated 5.4.1948. The plaint is deliberately silent as to who the vendor was and what was pre existing title that the vendor had. The said Denduluri Vaidyanatha Krishnamurthy did not derive any right, title or interest in the land referred to above, much less in the suit land. In any event he was never in possession of the land nor did he exercised any act of ownership on the said land. The defendant had at all material times been and is in actual physical possession and enjoyment of the suit property. 5.(b) The plaintiffs with the evil intention of harassing this defendant filed W.P.No.3589 of 2006 in the High Court seeking a Writ of Mandamus to direct the City Municipal Corporation of Chennai and Junior Engineer/Assistant Engineer of Corporation of Chennai to demolish the suit house. The defendant resisted the unlawful claim made in the writ petition. The High Court disposed the same on 21.3.2006 with a direction for the joint trial of the above suit and O.S.No.2844 of 2004 filed by this defendant and to dispose of within a period of one year. 5.(c) The suit land is part of a larger extent of land. For the adjacent lands in the same survey number, pattas were issued to the respective land owners and they had also constructed superstructure on their respective lands. It is therefore clear that in the surrounding lands also different persons own land and constructed superstructures. Therefore the plaintiffs' claim over the suit property is not maintainable. The defendant had constructed a pucca building on the suit land on the basis of the planning permission dated 10.9.1987. The suit building is in existence for over 17 years. It is therefore clear that the plaintiffs and their predecessors had not been and are not in possession of the suit land. Though the plaintiffs claim that a sale deed was executed on 15.02.1996 in their favour, no such sale deed had been produced into Court. Even if such a document exists, it is not true and valid. No title was conveyed to the plaintiffs. Hence the suit may be dismissed with costs. 6. The allegations contained in the above written statement were denied in detail by way of reply statement by the plaintiffs. 7. After consideration of the pleadings, exhibits and oral evidence on record, the learned VII Additional Judge, City Civil Court, Chennai, dismissed the suit in O.S.No.2844 of 2004 filed by the plaintiff with costs and decreed the suit in O.S.No.8866 of 2005, directing delivery