IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:2-09-2010 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.478 of 2010 A.Gnanambal .. Appellant/Respondent/Plaintiff Versus C.Periyasamy .. Respondent/Appellant/Defendant PRAYER: Appeal against the judgment and decree, dated 15.3.2005, made in A.S.No.63 of 2003, on the file of the Subordinate Court, Kallakurichi, reversing the judgment and decree, dated 21.3.2003, made in O.S.No.271 of 1996, on the file of the III Additional District Munsif Court, Kallakurichi. For Appellant : Mr.S.Ramesh For Respondent: Mr.P.Valliappan JUDGMENT This second appeal has been filed against the judgment and decree, dated 15.3.2005, made in A.S.No.63 of 2003, on the file of the Subordinate Court, Kallakurichi, reversing the judgment and decree, dated 21.3.2003, made in O.S.No.271 of 1996, on the file of the III Additional District Munsif Court, Kallakurichi. 2. The plaintiff in the suit, in O.S.No.271 of 1996, is the appellant in the present second appeal. The defendant in the said suit is the respondent herein. 3. The suit, in O.S.No.170 of 1990, had been filed for a decree declaring the title of the plaintiff in respect of the suit property and for a permanent injunction restraining the defendant and their men and agents from encroaching upon the suit property and in the alternative for recovery of possession and for mesne profits, and for costs. https://hcservices.ecourts.gov.in/hcservices/ 4. The plaintiff had stated that the suit property and certain other properties had, originally, vested with the Government. The properties had been divided into house sites and the Government had issued patta to various persons. While allotting the plots, Plot No.38 had been allotted to Thandaan of Nainarpalayam. Since, the beneficiaries did not know about the plots which had been allotted to them they had occupied various plots, as per their convenience. They had also constructed the houses in their respective plots and they have been residing therein. 5. After an enquiry had been conducted by the concerned Government authorities an order, dated 23.8.1990, had been passed issuing patta in respect of the plots, which were being enjoyed by the beneficiares concerned. Since, Thandaan was in possession and enjoyment of Plot No.15 for more than 12 years, patta had been issued to him in respect of the said plot. While so, he had sold the vacant site allotted to him, to the plaintiff, on 7.10.1987, for a consideration of Rs.10,000/-. The possession of the property had been handed over to the plaintiff, on the same date. Thereafter, patta had been issued to Thandaan, on 23.8.1990, for Plot No.15. The plaintiff had started construction works in the plot. The defendant has no right or title in respect of the suit property. However, since the defendants were attempting to trespass upon the suit property, the plaintiff had filed the suit, in O.S.No.271 of 1996, on the file of the III Additional District Munsif Court, Kallakurichi. 6. In the written statements filed by the defendants, it had been stated that the plaintiff is not having any right or title in respect of the suit property. It is for the plaintiff to prove her title and possession, with regard to the suit property. The suit property was never in the enjoyment of Thandaan, nor had he constructed a house therein. Thandaan was not in possession and enjoyment of the suit property, as claimed in the plaint. It is true that Thandaan had been allotted Plot No.38, by the Government. However, he had no right to sell it, as per the conditions of assignment. Further, the sale of Plot No.15, alleged to have been made in favour of the plaintiff, cannot be valid in the eye of law as, Thandaan had no interest or title in respect of the said plot. Further, the sale of the allotted plots cannot be made, contrary to the conditions of assignment. 7. It had also been stated that, for the past 14 years, the first defendant’s father Chinnapaiyan was in possession and enjoyment of Plot No.15. It is Chinnapaiyan, who had put up a thatched shed in the suit property. However, since, the plaintiff is a wealthy lady, she had obtained an order from the Special Tahsildar (Adi Dravidar Welfare), Kallakurichi, one week prior to the filing of the suit, on https://hcservices.ecourts.gov.in/hcservices/ 23.8.1990, even though the Special Tahsildar (Adi Dravidar Welfare), Kallakurichi, had no power to issue an order transferring the patta. Further, the plaintiff is said to have purchased Plot No.15, from Thandaan, in the year, 1987, even though the patta transfer order is said to have been issued in the name of Thandaan, in the year, 1990. 8. It had also been stated, in the additional written statement filed by the second defendant, that he had preferred an appeal before the District Revenue officer (Adi Dravidar Welfare), Cuddalore, which had been forwarded to the Special Tahsildar (Adi Dravidar Welfare), for further action. On the basis of the order passed by the District Revenue Officer(Adi Dravidar Welfare), the Special Tahsildar (Adi Dravidar Welfare), had conducted an enquiry, after giving notice to Thandaan, and had passed an order, on 24.7.1992. As per the said order, the second defendant was said to be in possession and enjoyment of the property in question, for the past 17 years. Hence, a patta transfer order had been passed. The order, dated 23.8.1990, passed by the Special Tahsildar (Adi Dravidar Welfare), Kallakurichi, had been cancelled. Further, the plaintiff is not in possession and enjoyment of the suit property, as claimed by him in the suit, in O.S.No.170 of 1990. Hence, the suit is liable to be dismissed, as it is devoid of merits. 9. In view of the averments made on behalf of the plaintiff, as well as the defendants, the trial Court had framed the following points for consideration: 1. Whether the plaintiff is entitled to the relief of declaration of title, in respect of the suit property? 2. Whether the plaintiff is entitled to the relief of permanent injunction, in respect of the suit property? 3. Is the plaintiff entitled to the alternative relief of recovery of possession of the suit property? 4. What other reliefs the plaintiff is entitled to? 10. The plaintiff had been examined as P.W.1 and three documents had been marked on behalf of the plaintiff, as Exs.A-1 to A-3. D.W.1 to D.W.4 had been examined on behalf of the defendants and Exs.B-1 to B- 8 had been marked on behalf of the defendants. 11. In view of the averments made on behalf of the plaintiff, as well as the defendants and in view of the evidence adduced, the trial Court had found that the plaintiff had purchased the suit property from Thandaan, by way of a sale deed, dated 7.10.1987, marked as Ex.A-3. Thereafter, by the proceedings issued by the Special https://hcservices.ecourts.gov.in/hcservices/ Tahsildar (Adi Dravidar Welfare), Kallakurichi, dated 23.8.1990, marked as Ex.A-1, a changed patta had been issued in favour of Thandaan. The trial Court had also found that the plaintiff had filed the house tax receipts marked as Ex.A-2 to show that he has been in possession from the year, 1976. 12. It had also been found that the Special Tahsildar (Adi Dravidar Welfare), Kallakurichi, had issued proceedings, dated 24.7.1992, marked as Ex.B-7, by changing the allotment of Plot No.2 to Plot No.15. From Ex.A-1 it had been noted that the initial allotment of Plot No.38, in favour of Thandaan, had been changed to Plot No.15. The trial Court had found that the document, marked as Ex.B-7, in favour of the defendants, had been obtained after the filing of the suit, in O.S.No.170 of 1990, on the file of the District Munsif Court, Kallakurichi, which had been transferred to the file of the Subordinate Court, Villupuram, and taken on file as O.S.No.116 of 1995. Thereafter, the case was transferred to the District Munsif Court, Kallakurichi and taken on file as O.S.No.271 of 1996. 13. It had also been found that the appeal said to have been filed by Chinnapaiyan, the second defendant, had not been mentioned in the proceedings of the Special Tahsildar (Adi Dravidar Welfare), Kallakurichi, marked as Ex.B-7. Even though the application said to have been filed by Chinnapaiyan had been marked as Ex.B-4, no endorsement or receipt had been filed to show that it had been submitted. Further, nothing has been shown on behalf of the defendants, as to how the Special Tahsildar (Adi Dravidar Welfare), Kallakurichi, was empowered to issue Ex.B-7 proceedings, if he was not authorized to issue the Ex.A-1 order, dated 23.8.1990. 14. Further, the trial Court had found that from Ex.B-7 proceedings the name of the person, the patta, in respect of on whom Plot No.2 had been issued, could not be found. Therefore, the claim of the plaintiff that Plot No.2 was being enjoyed by the defendants was correct. It had also been found that no documents had been filed to show the basis on which the Special Tahsildar (Adi Dravidar Welfare), Kallakurichi, had changed the patta, existing in the name of Thandaan, in favour of Chinnapaiyan. Therefore, it was clear that Ex.B-7 proceedings had been issued ex parte, without giving prior notice to the parties concerned. 15. Further, it had been found that, in Ex.B-7 proceedings, it had been stated that the allotment made, as per the said proceedings, could be cancelled, without prior notice to the parties concerned. Thus, it was clear that it was an ex parte proceedings. The trial Court had also found that it was an admitted fact that Ex.B-7 https://hcservices.ecourts.gov.in/hcservices/ proceedings had not been issued, based on the appeal preferred on behalf of the defendants. The trial Court had also come to the conclusion that the plaintiff had purchased the suit property after Thandaan had been in possession of the said property, for over 12 years. 16. It had also been found that except Ex.B-1 all the other documents filed on behalf of the defendants, namely, Exs.B-2 to B-8 had come into existence after the filing of the suit. It had also been found that no documents had been filed to show that D.W.2 and D.W.3, who were found to be relatives of the defendants, were living close to the suit property. Further, from Ex.A-2 house tax receipts, it had been found that Thandaan and the plaintiff had been in possession of the suit property, as claimed by the plaintiff. In such circumstances, the trial Court had decreed the suit, in favour of the plaintiff, in its judgment and decree, dated 21.3.2003, made in O.S.No.271 of 1996. 17. Aggrieved by the judgment and decree of the trial Court, dated 21.3.2003, made in O.S.No.271 of 1996, the defendant in the suit had filed an appeal, in A.S.No.63 of 2003. 18. The First Appellate Court had framed the following points for determination: “1. Whether the plaintiff is entitled to the relief of declaration and permanent injunction? 2. To what other reliefs, if any?” 19. The First Appellate Court had noted that the plaintiff in the suit, in O.S.No.271 of 1996, who was the respondent in the first appeal, had filed the suit praying for the relief of declaration and permanent injunction, with regard to 0.03 cents, situated in Nainarpalayam Village, Natham R.S.323/1A. The suit had been filed, with regard to the plot, which had been allotted by the Government to a person belonging to the Adi Dravidar Community. The Government had acquired an extent of about 5 acres of land and had allotted the plots therein to a number of Adi Dravidar families, in Nainarpalayam Village. Thandaan, said to be the vendor of the respondent, had been allotted Plot No.38. However, he was in possession and enjoyment of Plot No.15, by putting up a thatched house therein. The respondent had purchased the plot from Thandaan, under Ex.A-3, sale deed, dated 7.10.1987. The appellants father, Chinnapaiyan, had been allotted Plot No.15 and he had been in possession and enjoyment of the same. Under Ex.A-1, the Special Tahsildar (Adi Dravidar Welfare), Kallakurichi, had passed an order, dated 23.8.1990, allotting Plot https://hcservices.ecourts.gov.in/hcservices/ No.15 to Thandaan. Aggrieved by the said order, Chinnapaiyan, who was the second defendant in the suit, had preferred a revision, before the District Revenue Officer (Adi Dravidar Welfare), Cuddalore. As per the order of the District Revenue Officer (Adi Dravidar Welfare), Cuddalore, the Special Tahsildar (Adi Dravidar Welfare), Kallakurichi, had issued a notice, marked as Ex.B-5, to Gnanambal, who was the plaintiff in the suit, in O.S.No.271 of 1996, Thandaan and the second defendant, namely Chinnapaiyan, on 15.5.1992. 20. The trial Court had also noted that the Special Tahsildar (Adi Dravidar Welfare), Kallakurichi, had also issued a memo, under Ex.B- 6, on 16.7.1992, to Thandaan and Chinnapaiyan, to appear before him for the enquiry to be held, on 18.7.1992. Under Ex.B-7, the Special Tahsildar (Adi Dravidar Welfare), Kallakurichi, had passed orders, on 24.7.1992, allotting Plot No.15 to Chinnapaiyan, the second defendant in the suit. In the said order, it had been observed that Thandaan had sold the property to the respondent, under Ex.A-3, on 7.10.1987, contrary to the relevant rules in existence. It had also been noted that Thandaan had sold the suit property to the respondent, two years and ten months before the date of assignment. Thus, it was clear that Thandaan had sold the property to the respondent, when he was not the owner of the property in question. As such the order, dated 23.8.1990, marked as Ex.A-1, is invalid. 21. The First Appellate Court had also found that the respondent was working as a Headmistress in a school and she was drawing her salary from the Government. Therefore, she cannot be treated as a landless poor. It had also been found that the Special Tahsildar (Adi Dravidar Welfare), Kallakurichi, had not recognized the sale of the property in question, in favour of the respondent, in his order, marked as Ex.B-7. It had also been noted that the respondent had filed Ex.A-2 house tax receipts. However, as it had been found that she was owning several houses in the village and since, the house tax receipts do not contain the door numbers, it cannot be said that the house tax receipts would relate to the suit property. Since, the respondent had not proved her title and possession, in respect of the suit property, in accordance with law, she was not entitled to the reliefs claimed by her in the plaint filed in O.S.No.271 of 1996. In such view of the matter the first Appellate Court had set aside the judgment and decree of the trial Court, dated 21.3.2003, made in O.S.No.271 of 1996. Accordingly, the first Appeal had been allowed, with costs. 22. Aggrieved by the judgment and decree of the First Appellate Court, dated 15.3.2005, made in A.S.No.63 of 2003, the plaintiff in the suit, in O.S.No.271 of 1996, who was the respondent in the first appeal, had filed the present second appeal before this Court, raising the following questions, as substantial questions of law. https://hcservices.ecourts.gov.in/hcservices/ “a) Whether the respondent established his right and lawful possession in respect of the suit property, when it is an admitted case of the plaintiff himself was in lawful possession and enjoyment of the suit property under Ex.A1to Ex.A3. b) Whether the Lower Appellate Court is justified in coming to the conclusion on the basis of evidence produced by the respondent before the trial Court which was obtained only after the suit has been filed. c) Whether the Lower Appellate Court in dismissing the suit on the basis of Ex.B7 which was passed on revision preferred by the defendant, when it is an admitted case that the defendant never preferred revision against Ex.A3.” 23. The learned counsel appearing on behalf of the appellant had submitted that the judgment and decree of the First Appellate Court is contrary to law, weight of evidence and the probabilities of the case. The lower Appellate Court had failed to see that the documents marked in favour of the respondent, as Exs.B-2 to B-8, had been obtained after the filing of the suit, in O.S.No.271 of 1996. The lower Appellate Court had failed to see that the suit property had never been in the possession and enjoyment of the respondent. No evidence had been produced by the respondent to support such a claim. The lower Appellate Court ought to have noted that there was no reference in Ex.B-7, with regard to the transfer of patta, in respect of Plot No.2. Further, Ex.B-7 had been obtained, only after the filing of the suit. 24. Further, the lower Appellate Court ought to have seen that the appellant had purchased the suit property, under Ex.A-3, which is a registered sale deed and that she had also paid the necessary house tax for the suit property, under Ex.A-2. Further, there was no reference to the proceedings of the District Revenue Officer in the Ex.B-7 order. The learned counsel appearing on behalf of the appellant had also submitted that, except the document, marked as Ex.B-1, all the other documents filed on behalf of the respondent had been obtained subsequent to the filing of the suit. Hence, the judgment and decree of the lower Appellate Court, made in A.S.No.63 of 2003, is liable to be set aside, confirming the judgment and decree of the trial Court, made in O.S.No.271 of 1996. 25. Per contra, the learned counsel appearing on behalf of the respondent had submitted that the parties to the suit should succeed or fail based on their pleadings and the evidence adduced, substantiating their claims. He had also submitted that the prayer in the plaint filed in the suit in O.S.No.271 of 1996, is hypothetical in nature. The plaintiff in the suit, who is the appellant in the https://hcservices.ecourts.gov.in/hcservices/ present second appeal, had not been clear as to whether she was in possession of the suit property, at the time of the filing of the suit, in O.S.No.271 of 1996. If the appellant was relying on Ex.A-3, sale deed, dated 7.10.1987, to claim title in respect of the suit property, there was no need for her to rely on Ex.A-1 proceedings, dated 23.8.1990. When the assignment of the suit property is said to have been made on 23.8.1990, by way of Ex.A-1, Ex.A-3 sale deed alleged to have been executed by Thandaan, in favour of the appellant, in the year, 1987, cannot be said to be valid. It had also been stated that the house tax receipts, marked as Ex.A-2, filed on behalf of the appellant to show her possession, in respect of the suit property, did not relate to the said property. 26. The trial Court had decreed the suit only by picking holes in the case of the respondent, rather than on the basis of evidence adduced on behalf of the appellant. In fact, it is for the appellant to have proved that she had title to the suit property and that she was in possession of the same. Even though she had failed to do so, the trial Court had decreed the suit, as prayed for by the appellant, without properly appreciating the evidence available on record. From the conditions of assignment, it is clear that the original allottee, Thandaan, could not have alienated the suit property in favour of the appellant, without the written permission of the authorities concerned. Any alienation made contrary to the terms and conditions of the assignment would be, automatically, invalid. In such circumstances the First Appellate Court was right in setting aside the judgment and decree of the trial Court, dated 21.3.2003, made in O.S.No.271 of 1996. Hence, the present second appeal is devoid of merits and it is liable to be dismissed. 27. In view of the contentions raised on behalf of the appellant, as well as the respondent and in view of the records available, this Court is of the considered view that the appellants had not shown sufficient cause or reason to set aside the judgment and decree of the First Appellate Court, dated 15.3.2005, made in A.S.No.63 of 2003. From the records available, it is seen that the assignment of the suit property in favour of Thandaan, the vendor of the appellant, had been made only by an order, dated 23.8.1990, marked as Ex.A-1. While so, Thandaan is said to have executed a sale deed, dated 7.10.1987, marked as Ex.A-3, relating to the suit property, in favour of the appellant. Further, as pointed out by the learned counsel appearing on behalf of the respondent, the alienation of the suit property by Thandaan, in favour of the appellant, seems to be contrary to the conditions of assignment. When the land had been acquired by the Government for the purpose of assigning plots, as house sites, for the landless poor Adi Dravidars of the area concerned, the sale of such plots to third parties, contrary to the conditions of assignment, would be invalid in the eye of law. It had https://hcservices.ecourts.gov.in/hcservices/ also been noted that the Plot number in question had not been specified in the sale deed, dated 7.10.1987, marked as Ex.A-3. Since, Ex.A-2 house tax receipts did not contain the door numbers for which they had been issued, they cannot be taken as sufficient proof of possession of the appellant, in respect of the suit property. 28. It is also seen that Thandaan, the vendor of the suit property, had not been made a party to the suit. Further, the Special Tahsildar (Adi Dravidar Welfare), Kallakurichi, the authority, who had issued the order, dated 23.8.1990, marked as Ex.A-1 and the proceedings, dated 24.7.1992, marked as Ex.B-7, cancelling the earlier order, had not been made a party to the suit filed by the appellant. It is also noted that Thandaan, in whose favour the assignment of the suit property is said to have been made, by the order, dated 23.8.1990, and who is said to be the vendor of the appellant, had not been summoned, as a witness, during the trial of the suit. In such circumstances, the contentions raised on behalf of the appellant cannot be countenanced. As such the second appeal is devoid of merits. Hence, it is dismissed. No costs. csh Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1) The Subordinate Court, Kallakurichi, 2) The III Additional District Munsif Court, Kallakurichi. + 1 cc to M/s.S.Ramesh, Advocate SR No.66241 + 1 cc to M/s.P.Vallippan , Advocate SR No.64835 S.A.No.478 of 2010 KJ(CO) SR/7.10.201 https://hcservices.ecourts.gov.in/hcservices/