IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.07.2008 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.Nos.1061 and 1062 of 2007 and M.P.No.1 of 2007 A.S.No.1061 of 2007 K.Saraswathi .. Appellant/plaintiff -vs- 1.The State of Tamil Nadu represented by the Collector of Chennai Rajaji Salai, Chennai-600 003 2. The City Municipal Corporation represented by its Commissioner Rippion Building, Chennai-600 003 3. A.P.Rangarao 4. A.Mukundiah .. Respondents/defendants A.S.No.1062 of 2007 K.Saraswathi ..Appellant/Defendant -vs- 1. A.P.Rangarao 2. A.Mukundiah ..Respondents/Plaintiffs These appeals are filed under Section 96 of C.P.C. against the Judgment and decree passed in O.S.No.2844 of 2004 and O.S.No.8866 of 2005 dated 10.7.2007 on the file of VII Additional Judge, City Civil Court, Chennai. For appellant : : Mr.T.R.Mani,Senior Counsel for Mr.T.Srinivasaraghavan, Advocate(Both appeals) For respondents: : Mr.B.T.Seshadri,Advocate for R3 and R4 (A.S.1061/2007) and R1 and R2(A.S.1062/2007) Mr.V.Ravi,Spl.Govt.Pleader for R1(A.S.No.1061/2007) Mr.G.T.Subramanian,Advocate for R2(A.S.No.1061/2007) https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT A.S.No. 1061 of 2007 has been directed against the decree and Judgment in O.S.No.2844 of 2004 and A.S.No.1062 of 2007 has been directed against the decree and Judgment in O.S.No.8866 of 2005 on the file of VII Additional Judge, City Civil Court, Chennai. Both the appeals arise out of a common Judgment of the above said suits. 2. O.S.No.2844 of 2004 was filed by the plaintiff for declaration of her title in respect of the plaint schedule property and also for permanent injunction against the defendants from in any manner interfering with the peaceful possession and enjoyment of the plaint schedule property and also for a declaration that the order of the Commissioner, City Municipal Corporation, Chennai in W.D.C.No.D4/5084/99 dated 29.12.2000 is not valid and against law. 3. The averments in the plaint in O.S.No.2844 of 2004 sans irrelevant particulars are as follows: The Predecessors-in-title of the plaintiff viz., Sethumadhavan had purchased the plaint schedule property from one A.Sadullah Basha and others by a Sale deed dated 9.11.1983. After the said purchase of the plaint schedule properties, Sethumadhavan was in actual possession and enjoyment of the property who had executed a registered Sale Deed dated 6.9.1984 under document No.3097 of 1984 by the Sub Registrar of Sembium in favour of the plaintiff conveying the right title and possession in respect of the plaint schedule property . The plaintiff after demolishing the small superstructure in the said property applied to the second defendant for planning permission and building licence for construction of a house and after obtaining the building licence for constructing the ground floor in the plaint schedule property under planning permit AEE/V-VI/P.P.A.No.V5/383/87 dated 10.9.1987 and after obtaining the house building loan from the Life Insurance Corporation of India, the plaintiff had constructed the house ie., ground floor only and thereafter the plaintiff was residing in the said ground floor, after getting electricity connection etc., The schedule house was assessed to property tax by the second defendant and the plaintiff is also paying the property tax. Thereafter, the plaintiff has applied to the second defendant for planning permission and for building licence for construction of the first floor in the house. After getting planning permission dated 28.10.1999 and also building license dated 28.10.1999 for putting up additional construction, the plaintiff completed the construction of the first floor in the month of May 2000. The plaintiff is in actual physical and khas possession of the plaint schedule property viz., inclusive of land with building consisting of ground floor and first floor. On 13.11.2000, the plaintiff had received a show cause notice from the second defendant as to why the planning permission and the building license granted to her should not be revoked. The plaintiff sent a suitable reply dated 23.11.2000 to the said show cause notice . But the second defendant had revoked the planning permission and building license granted to the plaintiff on 29.12.2000 under Section 54(2) of the Tamil Nadu Town and Country Planning Act and under Section 365(4) of the Madras City Municipal Corporation Act. The said https://hcservices.ecourts.gov.in/hcservices/ order of revocation by the second defendant is illegal and arbitrary, bereft of lawful authority. The plaintiff has filed a writ petition in W.P.No.2369 of 2001 before this Court for writ of certiorari to quash the order of the second defendant in W.D.C.No.D4/5084/99 dated 29.12.2000. In the said writ petition, D3 and D4 were also impleaded. In the writ petition, the High Court had directed the plaintiff to establish her title in a Civil Court and further directed the plaintiff as well as the D3 and D4 to work out their remedy in the Civil Court which necessitated the plaintiff to file the suit for declaration of her title in the suit property and for consequential reliefs. The vendor of the plaintiff had traced their title to the said property to one Muthu, Mr.Sadullah Basha had executed a gift deed dated 20.5.1983 under a Registered Document No.2190 of 1983 before the Sub Registrar, Sembium. Mr.Sadullah Basha and his sons joined and executed the Sale Deed in favour of Sethumadhavan. From 1983 onwards, there are documents to show that the schedule property had been dealt with by parties by executing Settlement Deed and Sale Deeds etc., The original owner Muthu was in possession of the suit property and Sadullah Basha purchased the property and Sadullah Basha had been in possession and enjoyment of the property. Thereafter, Sethumadhavan had purchased the suit property under a Sale Deed dated 9.111983 from Sadullah Basha and his sons. The plaintiff had purchased the land along with the small superstructure put by Sethumadhavan under the Sale Deed dated 6.9.1984. The Tahsildar granted patta for the schedule land in favour of the plaintiff. The first defendant viz., the Collector of Chennai had cancelled the patta issued in favour of the plaintiff on 13.8.1996. 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 the immovable property. Denduluri Durgaprasad had petitioned to the Collector for cancellation of the patta in favour of the plaintiff had not established his title before the Collector. Whether Denduluri Durgaprasad was in possession of the property in dispute was not considered by the Collector at the time of cancellation of patta which was originally granted in favour of the plaintiff. Defendants 3 and 4 have absolutely no right , title or interest in respect of the schedule land. 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. After the assignment of the patta in favour of the plaintiff, the second defendant had issued planning permission and building license for additional construction on 28.10.1999. For the adjacent lands in the same survey number, Patta was issued to Mr.D.Damodaran, Mr.D.Nithyanandam and Mrs.S.Susheela. The adjacent owners had also constructed superstructure on their respective lands around the plaintiff's building. D3 and D4 had never been in possession of the suit land. The building is in existence for over 15 years. Hence the suit. 4. First defendant remained exparte. Second defendant in his written statement would contend that the suit is not maintainable since the plaintiff has no cause of action to file the suit. The second defendant's name has been wrongly mentioned as City Municipal https://hcservices.ecourts.gov.in/hcservices/ Corporation instead of Corporation of Chennai. Initially, the plaintiff got sanctioned plan for additional construction in ground floor and first floor in respect of the suit property from Corporation of Chennai vide PPA/D4/5804/99 and BA No.4626/99 dated 28.10.1999. Only after due enquiry, the District Collector of Chennai had cancelled the patta issued in favour of the plaintiff and three others in respect of the larger extent of the properties including the suit property comprised in T.S.No.15/4, Block No.3, Sembium Village, Perambur, Chennai. Even in the proceedings, the District Collector had observed that the documents furnished by the plaintiff have no link with the original owner of the property Denduluri Vaidyanatha Krishnamurthy and the Collecltor has ordered to restore the name of Deduluri Vaidyanatha Krishnamurthy in the original records for the T.S.No.15/4, Block No.3, Sembium Village, Chennai. For the show cause notice issued by this defendant to the plaintiff has not given any specific reply for the points raised in the show cause notice. After careful examination of the records, the planning permission and the building license vide PPA/D4/5804/99 and BA No.4626/99 dated 28.10.1999 were recalled under Section 365(4) of M.C.M.C. Act by the second defendant on 29.12.2000. In lieu of the directions given by the High Court in W.P.No.2369 of 2001, the order of the Commissioner of Corporation of Chennai shall stand automatically vacated . Since the planning permission and the building permit have been revoked and also as per the direction of this Court in W.P.No.2369 of 2001 action has been taken under Section 256(3) of M.C.M.C. Act and notice dated 26.5.2004 was served to the plaintiff. Patta has been issued in favour of the original owner Denduluri Vaidyanatha Krishnamurthy in the year 1985 vide No.C3,7R 537/85-86 dated 14.5.1985 in respect of the property comprised in S.No.15, Block No.3 to the total extent of 6 ½ grounds. Against the order of cancellation of patta by the District Collector, Chennai,there was no appeal preferred by the plaintiff. Urban Land Tax being paid by the original owner Denduluri Vaidyanatha Krishnamurthy and C.R.Durgaprasad upto 1966 right from his purchase in 1948 for the entire 6 ½ grounds(15,600 sq.ft) and latter A.P.Rangarao and his elder brother A.Mukundiah paying Urban Land Tax in their name from their purchase in 1986. The plaintiff has filed a civil suit in O.S.No.4842 of 1999 before the City Court but the same was dismissed as withdrawn. The suit is barred by limitation. Hence the suit is liable to be dismissed. 5. Defendants 3 and 4 in their joint written statement would contend that the plaintiff has not filed the suit within the time stipulated by the High Court in the writ petition. Inspite of filing of the suit on or before 4.9.2003, the plaintiff had filed the suit on 12.11.2003. The plaintiff knows that this suit vacant site forms part of large 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 Defendants 3 and 4 for valid consideration. No one else has got any interest title over the suit property. So the averments in the plaint that one Sethumadhavan had purchased 2419 sq.ft in the suit survey numbebr property from one Sadullah Basha and others in 1983 and had put up a small superstructure over the property and was in actual possession and enjoyment of the property. The plaintiff is silent about how or https://hcservices.ecourts.gov.in/hcservices/ from whom the said Sadulla Basha got the same. Sadulla Basha had no manner of right whatsoever in the suit property and taking advantage of the fact that the real owners were residing in Kakinada , Andhra Pradesh, the said Sadulla Basha himself as a owner of the suit property had sold the same to one Sethumadhavan from whom the plaintiff was alleged to have purchased the same. On the basis of the fictitious sale deed and by adopting unfair means, the present plaintiff has got a patta in her name which has subsequently been cancelled by the revenue authorities. Only on the basis of the earlier patta granted in favour of the plaintiff, the plaintiff had approached the second defendant to get the building plan sanction and thereafter put up a superstructure on the suit site. The sons of late Thiru Denduluri Vaidyanatha Krishnamurthy on coming to know the fraud played up by the said Sadulla Basha, Sethumadhavan and the plaintiff, presented a petition to the first defendant 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, manoured to get a patta and so the patta granted in favour of the plaintiff was cancelled. A show cause notice was sent by the second defendant on 13.11.2002, after considering the reply sent by the plaintiff to the show cause notice, the second defendant found the explanation not satisfactory had revoked the licence given for the building plan for the plaintiff. The plaintiff filed O.S.No.4842 of 1999 in the City Civil Court against the second defendant and its Assistant Engineer, for a declaration that the notices sent by those defendants are illegal and null and void and consequential injunction restraining the defendants from demolishing the superstructure. Third defendant and his brother fourth defendant have became the owners of the entire property by virtue of sale deeds executed by the legal representatives of deceased Denduluri Vaidyanatha Krishnamurthy on 14.2.1995 registered as Document No.991/96 and 992/96 in the office of the Sub Registrar, Sembium, Perambur-11. Defendants 3 and 4 have impleaded themselves in the said suit. Thereafter the suit was not pressed by the plaintiff and the same was dismissed as not pressed. Thereafter, the plaintiff had approached this Court by way of writ petition which was also disposed of with a direction to the parties to agitate their right before a Civil Court. Neither the plaintiff nor his predecessors-in-title were in uninterrupted continuous possession of the property and the superstructure because the owners viz., the absentee landowners residing in Andhra Pradesh have been paying Urban Land Tax till date. After the cancellation by the first defendant, the Collector, all the revenue records were restored in the name of the original owner Denduluri Vaidyanatha Krishnamurthy by the Tahsildar, Purasaiwalkam-Perambur, Chennai-11 and the subsequent purchasers were trespassers and have no right whatsoevr in the suit property. It is false to state that Denduluri Vaidyanatha Krishnamurthy had not established his title before the first defendant and the cancellation of the patta by the first defendant was no superfluous grounds and on alien considerations. 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 further futile to https://hcservices.ecourts.gov.in/hcservices/ 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 of title on the basis of the sale deed in her favour. The plaintiff had miserably failed to establish how her predecessors especially Sadulla Basha 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 Sadulla Basha is a rank trespasser and he had created fictitious documents to cheat the purchasers and subsequently committed fraud on the revenue officers also and manoured to get the patta on 28.1.1988. The above said fictitious documents have no connection whatsoever with the title of the late Denduluri Vaidyanatha Krishnamurthy. Since the suit site and 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 1 and 2. The original owner late Denduluri Vaidyanatha Krishnamurthy had been paying only the Urban Land Tax and a vacant site said to be in constructive possession and he was latter become permanent resident of Kakinada, Andhra Pradesh. Defendants 3 and 4 after their purchase have been paying Urban Land Tax in their names and are not in a position to make any progress on the land purchased by them because of the trespassers. Hence the suit is liable to be dismissed. 6. On the above pleadings, the learned trial Judge had framed the following issues: a) Whether the plaintiff is entitled to declaration and consequential permanent injunction as prayed for? b)Whether the planning permission granted in favour of the plaintiff by the second defendant in its order WDC No.D4/5084/99 dated 29.12.2000 and building license dated 28.10.1999 are not valid and not unenforceable under law? c) To what relief the plaintiff is entitled? 7. O.S.NO.8866 of 2005: The plaint averment in O.S.NO.8866 of 2005 runs as follows: Defendants 3 and 4 in O.S.No.2844 of 2004 are the plaintiffs in O.S.No.8866 of 2005 and the plaintiff in O.S.No.2844 of 2004 is the defendant in O.S.NO.8866 of 2005. According to the plaintiffs in O.S.No.8866 of 2005, the plaint schedule property in O.S.No.8866 of 2005 forms part of a larger extent of vacant site measuring about 6 ½ grounds(15600 sq.ft) situate (old Survey No.2) in T.S.NO.15, Block No.3, Division No.52, in No.1, Jamunabai Street, Sembium, Perambur, Madras -600 011 owned by late Denduluri Vaidyanatha Krishnamurthy , B.A.B.L., by virtue of a sale deed dated 5.4.1948 registered as document No.659/1948 in the office of the Sub Registrar, Sembium, Madras-600 011. Eversince, his purchase, he has been in possession and enjoyment of the same till 1975 when he died leaving behind his wife, four sons and four daughters and they have been in possession of the entire area of 6 ½ grounds. They have also obtained patta for the said land even as early as in 1985. They have been paying the Urban Land Tax right from the beginning and till this date. The said family of late Denduluri Vaidyanatha Krishnamurthy, after his death, shifted https://hcservices.ecourts.gov.in/hcservices/ their native place, Kakinada Andhra Pradesh and have been visiting the area often to prevent any encroachment by third parties, since the said property is in open vacant space without any compound wall. Hence the family members of late Denduluri Vaidyanatha Krishnamurthy had appointed the first plaintiff as their agent to look after the property as he is a permanent resident of Chennai. On his inspection, it was found that the defendant has put up superstructure on the north eastern corner abutting E.B.Road and on further probe it was learnt she has obtained a bogus patta from the Revenue Department in respect of the suit property and also a building plan from the Corporation of Madras to put up superstructure. The first plaintiff asked Denduluri Durgaprasad, one of the legal heirs of late Denduluri Vaidyanatha Krishnamurthy to give a complaint to the Collector of Madras which had led to the grant of patta in favour of the defendant and three others. The enquiry discloses that the defendants have purchased the suit site from one Sethumadhavan who has nothing to do with the suit property and who is an utter stranger. He has created a fictitious sale deed and the defendant appears to have purchased the suit site from the said Sethumadhavan who is only a way farer. On the strength of the fictitious sale deed, the defendant appears to have persuaded both 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. In the enquiry, the Collector of Madras found that the patta granted in her favour was based on false and fictitious sale deed by persons who do not have any right, title or interest in the said property and the vendor was only a way farer and so the patta was cancelled by his proceedings NO.J4/69381/1993 dated 13.9.1996. The defendant did not prefer any appeal or challenged 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. The bogus patta obtained under the circumstances stated by the Collector of Madras, the defendant managed to get a building plan also from the Corporation of Chennai when the cancellation of patta was brought to the notice of the Corporation Officials they set the law in motion to get the unauthorised building demolished by issuing a show cause notice to the defendant calling for an explanation as to why the planning permission and the building permit granted for the construction of the building on the suit site should not be cancelled, on the ground the Collector of Madras had cancelled patta in favour of the defendant in respect of the suit site in question in T.S.No.15/4, Block No.3, in Sembium Village, Chennai-11. After finding the explanation given by the plaintiff on 23.11.2000, not satisfactory under the impugned order dated 29.12.2000, the planning permission and building permit already granted were cancelled by the Corporation authority. So the defendant filed O.S.No.4842 of 1999 in the City Civil Court, against the Corporation Officials to declare that the show cause notices issued by the Corporation Officials are illegal and void and consequential injunction for demolishing the superstructure put up in the suit site and latter the defendant had withdrawn the suit in O.S.No.4842 of 1999 for the reasons best known to her. Since the family of Denduluri Vaidyanatha Krishnamurthy find it very difficult to look after the entire area of 6 1/2grounds, the plaintiffs were persuaded to purchase the same. The plaintiffs have also agreed and the sale deed was executed in their favour for a https://hcservices.ecourts.gov.in/hcservices/ valid consideration on 15.2.1996 and thus they have now become absolute owners of the said 6 ½ grounds including the suit site. The first plaintiff got himself impleaded in O.S.No.4842 of 1999. Thereafter, the defendant herein who was plaintiff in O.S.NO.4842 of 1999 had withdrawn the suit as not pressed and filed W.P.No.2369 of 2001 against the Commissioner of Corporation, Chennai and the Collector of Madras without impleading the plaintiffs, to quash the order of revocation show cause notices issued by the said Officials. So the plaintiff filed a petition in W.P.M.P.No.24077 of 2001 and they were impleaded with a direction to the parties to agitate their grievance before a competent civil court. The said writ petition was disposed of by High Court. As per the direction of the High Court, the defendant herein ought to have filed the civil suit on or before 4.7.2003. Inspite of the above said specific direction given by this court, the defendant has not filed the suit in time. The defendant is a trespasser and she has no manner of right, title in the suit vacant site. Hence the suit for delivery of possession, after the removal of the superstructure put up by the defendant and also for past damages to the tune of Rs.18,000/- and also for future damages at the rate of Rs.500/- per mensum and for costs. 8. The defendant in her written statement would contend that the plaintiffs are not in possession of a vacant site measuring about 6 ½ grounds(15600 sq.ft) situaute in Old Survey No.2, T.S.No.15, Block No.3, Division No.52, in No.1, Jamunabai Street, sembium, Perambur, Madras-600 011, in pursuance of the sale deed taken by late Denduluri Vaidyanatha Krishnamurthy dated 5.4.1948. The plaintiffs have not stated who are the predecessors in title of late Thiru Denduluri Vaidyanatha Krishnamurthy. The said late Denduluri Vaidyanatha Krishnamurthy had no title to the said land referred to above much less in the suit land. The vendor of the said late Denduluri Vaidyanatha Krishnamurthy was never in possession of the suit property. The vacant land measuring 2419 sq.ft with a superstructure therein which is the suit land, and some other properties were purchased by one Sethumadhavan, son of K.Appukutty for valuable consideration from one A.Sadulla Basha and others in and by a sale deed dated 9.11.1983 and registered as document No.5014 of 1983 by the Sub Registrar, Sembium. After the said purchase, Sethumadhavan was in actual possession and enjoyment of the suit property and he sold the suit land and superstructure then existed to the defendant herein in and by a registered sale deed dated 6.9.1984 which was registered as document No.3097 of 1984 by the Sub Registrar, Sembiam. Thereafter, this defendant had demolished the small superstructure referred to