WP.No.14035 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.09.2022
CORAM
THE HONOURABLE MR. JUSTICE S.S.SUNDAR
WP.No.14035 of 2012
and M.P.No.2 of 2012
T.S.Thiyagaraja gurukkal (deceased)
2. T.Vasu @ Srinivasan
3. T.Darani Gurukkal
4. S.Rajeswari
5. K.Nalani
6. N.Malliga ...petitioners
[Petitioners 2 to 6 substituted as LRs of the deceased sole
petitioner vide order of this Court dated 26.07.2022
in WMP.No.17347 of 2022 in WP.No.14035 of 2012]
Vs.
1. The Director of Town Panchayat,
Kuralagam,
Chennai 600 003.
2. The Assistant Director of Town Panchayat,
Kancheepuram 631 501.
3. The Executive Officer,
Thirukazhukundram Town Panchayat,
Thirukazhukundram,
Kancheepuram District 603 109.
4. Thirukazhukundram Adhi Saiva Sivachariyargal Sangam
Rep. by its Secretary,
Old No.118, New No.60,
Big Street, Thirukazhukundram,
Kancheepuram District. ...respondents
https://www.mhc.tn.gov.in/judis
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WP.No.14035 of 2012
Prayer:- This Writ Petition is filed under Article 226 of the Constitution
of India, seeking for a Writ of Certiorari to call for the records of the
third respondent issued in Na.Ka.No.172/2012, dated 16.04.2022, quash
the same as illegal, arbitrary and biased.
For Petitioners : Mr.R.Bharath Kumar
For Respondents
for RR1 & 2 : Mr.P.Balathandayutham, Spl.G.P.
for R3 : Mr.T.N.C.Kaushik
for R4 : Mr.T.Paranthaman
ORDER
This Writ Petition is filed for issuance of a Writ of Certiorari to quash the order of the third respondent dated 16.04.2012.
2. It is the case of the petitioners that the land and building bearing Door No.68/12 in Big Street, Tirukazhukundram Taluk in Kancheepuram District comprised in Old Survey No.29A, Sub-Divided No.29/1B1A and the New Survey No.521/26 and 521/23 Tirukazhukundram Village, originally belonged to the grand father of the deceased first petitioner by name Panchatcharam Gurukkal. After the death of the said Panchatcharam Gurukkal, his brother Mr.Sabapathy Gurukkal was looking after the property. Subsequently, the deceased first https://www.mhc.tn.gov.in/judis 2/8 WP.No.14035 of 2012 petitioner succeeded to the said property as a legal heir. Following his demise the petitioners 2 to 6 will succeed as legal heirs.
3. The fourth respondent is an Association and a suit was filed by them in OS.No.14 of 2006 before the District Munsif Court, which was dismissed. The relief prayed for in the said suit is for permanent injunction restraining the petitioners and others from interfering with their possession and enjoyment of the subject property herein. The fourth respondent filed an appeal in AS.No.28 of 2011 before the Sub Court, Chengalpet. The said appeal was allowed and the suit was decreed holding that the fourth respondent had established their title to the suit property by a document, which was marked as Ex.A1. However, on further appeal by the petitioners and others before this Court in S.A.No.535 of 2015, this Court allowed the second appeal holding that the fourth respondent/plaintiff miserably failed to prove his title or possession in respect of the disputed suit property.
4. The fourth respondent submitted a petition for planning approval for renovation of the building and also for construction of a new building and the same was granted by an order dated 16.04.2012, https://www.mhc.tn.gov.in/judis 3/8 WP.No.14035 of 2012 which order is impugned in this Writ Petition. Though the fourth respondent obtained planning permission, this Court on the basis of the judgment in S.A.No.535 of 2015, has no other option but to conclude that the fourth respondent is not in possession of the property and he has no title to the property.
5. The learned counsel appearing for the fourth respondent submitted that the suit filed by the fourth respondent was dismissed only on the ground that the suit for bare injunction is not maintainable without the prayer for declaration of title. The fourth respondent further submitted that this Court has reversed the judgment of the lower appellate Court as the lower appellate Court has decided the question of title in a suit for bare injunction. It is contended that the question of title was not considered by this Court and therefore, this Court cannot presume that the Writ Petitioners are in possession and enjoyment of the subject property.
6. The lis between the petitioners and the fourth respondent in respect of the property is admitted. From a reading of the judgment in S.A.No.535 of 2015, it can be seen that the fourth respondent claimed https://www.mhc.tn.gov.in/judis 4/8 WP.No.14035 of 2012 title to the property on the basis of the document/Ex.A1, dated 29.04.1899. This Court observed that the fourth respondent has neither proved that Ex.A1 refers to the suit property, nor proved proper title of the predecessors-in-interest to execute Ex.A1. The question of possession was also decided by stating that the fourth respondent/plaintiff has not produced any independent document to prove their possession. The alternative plea of adverse possession has been discussed and it is held that the fourth respondent has not prescribed title by adverse possession. This Court also observed that since the plaintiff has not filed the suit for declaration of title, the suit filed for permanent injunction is not maintainable.
7. The judgment of this Court in S.A.No.535 of 2015 shows that this Court has categorically held that the fourth respondent/plaintiff has no title or possession over the property. In the said circumstances, the Writ Petitioners challenging the planning permission obtained by the fourth respondent has merits. Hence, the fourth respondent cannot be permitted to put up construction on the basis of the impugned proceedings.
https://www.mhc.tn.gov.in/judis 5/8 WP.No.14035 of 2012
8. An argument was advanced by the learned counsel for the fourth respondent that as the planning permission was obtained for a period of three years only, the prayer in this Writ Petition has become infructuous, because the time in which the fourth respondent is supposed to put up construction, was not extended. This argument is not appealing to this Court having regard to the fact that the fourth respondent failed to establish his title or lawful possession against the petitioners in a suit filed for bare injunction. The cause of action for filing the suit was that the Writ Petitioners have no title to the property to interfere with the fourth respondent's right to put up construction. The said suit was dismissed and this Court has ultimately affirmed the judgment of the Trial Court dismissing the suit specifically holding that the fourth respondent has neither title nor proved the possession.
9. In the above circumstances, the planning permission granted in favour of the fourth respondent cannot be sustained. The impugned order is quashed. However, depending upon the outcome of the appeal before the Hon'ble Supreme Court in the Special Leave Petition stated to have been filed by the fourth respondent against the judgment of this https://www.mhc.tn.gov.in/judis 6/8 WP.No.14035 of 2012 Court in S.A.No.535 of 2015, it is open for the fourth respondent to renew their application in the manner known to law.
10. Accordingly, the Writ Petition stands disposed of. No costs. Consequently, connected miscellaneous petition is closed.
12.09.2022
Index : Yes/No
pvs
To
1. The Director of Town Panchayat,
Kuralagam,
Chennai 600 003.
2. The Assistant Director of Town Panchayat, Kancheepuram 631 501.
3. The Executive Officer, Thirukazhukundram Town Panchayat, Thirukazhukundram, Kancheepuram District 603 109.
https://www.mhc.tn.gov.in/judis 7/8 WP.No.14035 of 2012 S.S.SUNDAR.J., pvs WP.No.14035 of 2012 12.09.2022 https://www.mhc.tn.gov.in/judis 8/8