1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.03.2011 CORAM: THE HONOURABLE MR.JUSTICE A.SELVAM S.A.(MD).No.54 of 2011 Davamani ...Appellant/Appellant/Plaintiff Vs. Kalaiyarasi ... Respondent/Respondent/Defendant Prayer: Appeal filed under Section 100 of the Civil Procedure Code, 1908 against the judgment and decree passed in A.S.No.45 of 2009 on the file of the Additional Sub-Court, Tenkasi dated 30.06.2010 confirming the judgment and decree in O.S.No.17 of 2006 on the file of the District Munsif Court, Shencottah dated 15.09.2009. For Appellant :Mr.S.Meenakshi Sundaram For Respondent :No appearance J U D G M E N T The concurrent judgments and decrees passed in O.S.No.17 of 2006 by the District Munsif Court, Shencottah and in A.S.No.45 of 2009 by the Additional Sub-Court, Tenkasi are being challenged in the present second appeal. 2.The appellant herein as plaintiff has instituted O.S.No.17 of 2006 on the file of the trial Court for the reliefs of declaration and perpetual injunction, wherein, the present respondent has been shown as sole defendant. 3.It is averred in the plaint that the suit property has been assigned in favour of one Subban s/o Sangili and he put up a house and enjoyed the same and after his demise, his three daughters namely Karuppaiyee alias Ponnammal, Chinna Karuppaiyee and Chitirai have succeeded the suit property. On 05.06.1971, the said three daughters have executed an indenture in favour of the mother of the plaintiff and thereafter the mother of the plaintiff has executed a deed in favour of the plaintiff on 25.06.2004 and since then the plaintiff is in possession and enjoyment of the suit property. The defendant is not having any manner of right, title and interest over the same and now, the defendant has been making arrangements to disturb the peaceful possession and enjoyment of the plaintiff by way of denying his title. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. 4.In the written statement filed on the side of the defendant, it is averred that the indenture dated 05.06.1971 is not legally valid. Since the original assignee by name Subban has not put up any house in the suit property, the assignment granted in his favour has been subsequently https://hcservices.ecourts.gov.in/hcservices/ 2 cancelled and thereafter a fresh assignment has been given in the name of the defendant and her husband on 09.08.2004. The defendant has put up a house by way of spending several lakhs of rupees and there is no merit in the suit and the same deserves to be dismissed. 5.On the basis of the rival 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.45 of 2009 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 dismissed the appeal, and thereby confirmed the judgment and decree passed by the trial Court. Against the concurrent judgments passed by the courts below, the present second appeal has been preferred at the instance of the plaintiff as appellant. 7.As agreed by the learned counsel appearing on either side, the present second appeal is being disposed of on merits at the stage of admission. 8.On the side of the appellant/plaintiff, the following substantial questions of law have been raised for consideration: “1.Whether the courts below are correct in discarding Ex.A.4 which is much anterior to the institution of the suit? 2.Whether the courts below are correct in relying on patta which is not a document of title? 3.Whether the courts below are correct in disbelieving the Ex.A.4 which originated long before the institution of the suit?” 9.The sum and substance of the case of the plaintiff is that the suit property has been assigned in the name of one Subban s/o Sangili and he put up a house and enjoyed the same and after his demise, his three daughters namely Karuppayee alias Ponnammal, Chinna Karuppaiyee and Chitirai have succeeded the suit property and they executed an indenture dated 05.06.1971 in favour of the mother of the plaintiff and subsequently the mother of the plaintiff has executed a deed in favour of the plaintiff on 25.06.2004 and since then the plaintiff has been enjoying the suit property and in which the defendant is not having any manner of right, title and interest and since the defendant has been making arrangements to disturb the peaceful possession and enjoyment of the plaintiff by way of denying his title, the present suit has been instituted for the reliefs sought for therein. 10.The crux of the case of the defendant is that even though an assignment has been given in the name of Subban, since he has not put up any house as per the conditions mentioned in the assignment order, the assignment order passed in his favour has been subsequently cancelled and thereafter the suit property has been assigned in the name of the defendant and her husband and both of them have constructed a house by spending several lakhs of rupees and they are in possession and enjoyment https://hcservices.ecourts.gov.in/hcservices/ 3 of the suit property and therefore, the present suit is liable to be dismissed. 11.As adverted to earlier, the courts below have concurrently rejected the claim of the plaintiff. Under the said circumstances, the only point that comes up for consideration in the present second appeal is as to “Whether the concurrent judgments and decrees passed by the courts below are perfectly correct or the same warrant interference?” 12.The learned counsel appearing for the appellant/plaintiff has contended that the suit property has been originally assigned in the name of Subban s/o Sangili and he enjoyed the same by way of putting up a house. After his demise, his three daughters succeeded his estate including the suit property and thereafter all of them have executed an indenture dated 05.06.1971 in favour of the mother of the plaintiff and subsequently the mother of the plaintiff has executed a deed in his favour on 25.06.2004. But the concerned Tahsildar has abruptly cancelled the assignment order issued in favour of Subban and issued a fresh assignment order in favour of the defendant and her husband and the courts below without considering the above factual aspects and also without considering that the plaintiff is in possession and enjoyment of the suit property have erroneously non-suited the plaintiff and therefore, the concurrent judgments and decrees passed by the courts below are liable to be interfered with. 13.It is an admitted fact that the suit property has been originally assigned in the name of the said Subban s/o Sangili and the assignment order has been marked as Ex.A.1. The sheet-anchor of the case of the plaintiff is that after the demise of original assignee viz., Subban, his daughters have executed an indenture in favour of the mother of the plaintiff. The said indenture has been marked as Ex.A.4. In fact, this court has perused Ex.A.4. Ex.A.4 is nothing but a statement given by the three daughters of Subban, the original assignee. Under Ex.A.4, no valid title is passed in favour of the mother of the plaintiff by name Ranjitham. After Ex.A.4, the mother of the plaintiff has executed a deed in favour of the plaintiff on 25.06.2004 which has been marked as Ex.A.2. Since Ex.A.4 has not created any right, title and interest in favour of the said Ranjitham, who is none other than the mother of the plaintiff, it is needless to say that Ex.A.2 is also nothing but a void document. 14.As pointed out earlier, the suit property has been assigned originally in favour of said Subban under Ex.A.1 and subsequently the same has been cancelled and thereafter, the suit property has been assigned in the names of the defendant and her husband. The assignment which stands in the name of the defendant and her husband has been marked as Ex.B.1 and the proceedings taken by the concerned Tahsildar have been marked as Exs.X.1 to X.8. From the conjoint reading of Ex.B.1 and also Exs.X.1 and X.8, the court can very well come to a conclusion that the plaintiff is not having title to the suit property. 15.The learned counsel appearing for the appellant/plaintiff has contended that by way of questioning the subsequent assignment, proper proceeding is pending before the concerned Tahsildar and further the https://hcservices.ecourts.gov.in/hcservices/ 4 plaintiff is in possession and enjoyment of the suit property and at the most, the possession of the plaintiff can be protected. 16.It is an everlasting principle of law that Civil court has no jurisdiction to question the validity and genuineness of assignment granted under the Government Grants Acts. Even though it has been contended that the plaintiff is in possession and enjoyment of the suit property, the documents filed on his side are not at all sufficient to come to a conclusion that he is in possession and enjoyment of the suit property and further as pointed out earlier, the original assignment order which has been marked as Ex.A.1 has been subsequently cancelled by way of taking appropriate action by the concerned Tahsildar and thereafter Ex.B.1, assignment order has been issued in the name of the defendant and her husband. Therefore, it is needless to say that the plaintiff can easily be non-suited. 17.The courts below, after considering all the contentions raised on either side, have rightly rejected the claim made on the side of the plaintiff. In view of the discussion made earlier, this Court has not found any error in the concurrent judgments and decrees passed by the courts below and the substantial questions of law raised on the side of the appellant/plaintiff are not at all relevant for the purpose of deciding the present lis and altogether, the present second appeal deserves to be dismissed. 18.In fine, this second appeal deserves to be dismissed and accordingly is dismissed without costs at the stage of admission. Consequently, connected M.P.No.1 of 2011 is also dismissed and the concurrent judgments and decrees passed in O.S.No.17 of 2006 by the District Munsif Court, Shencottah and in A.S.No.45 of 2009 by the Additional Sub-Court, Tenkasi are confirmed. However the appellant/ plaintiff is at liberty to establish his alleged right in the proceedings pending before the Revenue Officials. SD ASST REGISTRAR ( CO ) /TRUE COPY/ SUB ASST REGISTRAR vs To 1.The Additional Subordinate Judge, Tenkasi. 2.The District Munsif, Shencottah. 1CC TO MR. K.P.S. PALANIVELRAJAN, ADVOCATE, SR: 6482: 1CC TO MR. S. MEENAKSHISUNDARAM, ADVOCATE, SR: 6146: DM:2011::APRIL:21::: S.A. (MD).No.54 of 2011 11.03.2011 4P:5C:: https://hcservices.ecourts.gov.in/hcservices/