Madras High Court
Ramamoorthi vs Ganesan on 31 August, 2021
S.A.No.699 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
S.A.No.699 of 2012
and M.P.No.1 of 2012
Ramamoorthi ... Appellant
Vs.
1. Ganesan
2. Mohan ... Respondents
PRAYER: The Second Appeal filed under Section 100 of the Civil Procedure
Code against the judgment and decree of the Sub Court, Thiruvarur, dated
20.12.2011 made in A.S.No.36 of 2011 reversig the judgment and decree of the
District Munsif-cum-Judicial Magistrate, Nannilam, in O.S.No.41 of 2008,
dated 26.11.2010.
For Appellant : Mr.S.Sounthar
For Respondent : Mr.Antony Elangovan Raj
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https://www.mhc.tn.gov.in/judis
S.A.No.699 of 2012
JUDGMENT
Aggrieved over the reversal of the judgment and decree by the Lower
Appellate Court, the second defendant has preferred the present Second Appeal.
2. The 1st respondent/plaintiff filed a suit for permanent injunction
restraining the defendants from interfering with his possession. It is pleaded that
the property mentioned in the schedule belonged to Thanneer Panthal Trust and
a patta was also issued by the Government. The plaintiff's father was originally
maintaining the Trust as its Trustee. After extinguishment of the Trust, his
father was cutting and selling Karuvela trees once in three years and enjoying
an income from that. After the demise of the father, the plaintiff was
maintaining the property and enjoying the income by cutting and selling the
Karuvela trees once in three years. The plaintiff was enjoying the property as he
owned the same with the knowledge of the defendants and others. He is paying
the Kist to the property.
3. While the matter stood thus, the Government for the purpose of
laying a Channel, acquired the land and paid compensation in favour of the
plaintiff's father. In L.A.O.P.No.51 of 1980, the Sub Court, Myladuthurai,
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S.A.No.699 of 2012
decided that the plaintiff's father is entitled to receive the compensation. The
defendants, on 25.04.2008, demanded 1/3rd of the suit property as it belongs to
the Trust. Since the plaintiff refused to do so, the defendants declared that they
will level the land by using JCB machine. Taking this as cause of action, the
plaintiff filed a suit for injunction.
4. The defendants have denied the plaint averments and stated that
even assuming the property belongs to the public trust, framing of suit is wrong
and therefore, the suit is not maintainable. Secondly, the plaintiff is not the only
legal heir of his father namely, Chinnathambi, whereas, four other legal heirs
are available. Without impleading them as parties, the suit is bad for non
joinder of parties. The patta through which, the plaintiff is claiming his title is a
forged one and description of the property is not correctly made. Insofar as
S.No.85/3A is concerned, it is the plaint ground that in North-West portion, 50
Kuzhi land was in possession of the second defendant for over a long period.
Within that North-West land, a temple is also existing. The plaintiff has
suppressed all the factual details and without knowing the exact suit property,
he filed a suit for injunction. Without filing any proof to show that the property
belongs to the Trust and any title deeds, the suit is not maintainable. The land is
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S.A.No.699 of 2012
a poramboke land and is not connected with the defendants' property and they
seek for dismissal of the suit.
5. The trial Court, after framing appropriate issues, dismissed the suit
against the 1st respondent/plaintiff. On appeal, the Lower Appellate Court
allowed the same and decreed the suit in favour of the plaintiff against which,
the present Second Appeal has been admitted on the following substantial
questions of law:-
“a. Whether the judgment of Lower Appellate
Court is liable to be set aside in its holding 1 st respondent
proved his right over suit property by producing exhibit
A1 and X1 when those documents were not relating to
suit properties.
b. Whether the suit filed by 1st respondent in his
individual capacity is maintainable when even according
to his plaint averment suit property belonged to Thaneer
Pandal Trust.
c. Whether the judgment of Lower Appellate
Court is vitiated in its failure to consider material
admissions of P.W.1 to P.W.3.”
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S.A.No.699 of 2012
6. Heard the learned counsel appearing on either side and perused the
materials placed before this Court.
7. From the perusal of the materials placed before this Court, it is
noted that Ex.A4 is a patta issued by the Government in the name of Thanneer
Panthal Trust. The property mentioned in the schedule of the plaint is
mentioned as Ex.A4 and Ex.A3 is a Kist receipt. It is also proved vide Ex.A1
and Ex.A2 that the lands were acquired by the Government in R.S.No.85-1B
Government Dry - 0.04 Cents, R.S.No.85-3B Government - 0.04 Cents,
R.S.No.85-5B Government Wet - 0.33 Cents, total extent is 0.41 Cents and for
those lands, the father of the plaintiff was declared to be entitled for receiving
the compensation. But, it is relevant to note that the Suit Register Extract,
Ex.A2 clearly shows that the lands acquired belong to Government. Secondly,
the respondent was shown as Thanneer Panthal represented by its Trustee,
Chinnathambi. Therefore, as contended by the learned counsel for the
respondent, it can be presumed that the property belongs to Thanneer Panthal.
In that event, the suit should have been framed in the name of the Trust
represented by its Trustee whereas, the suit was filed by an individual. The
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S.A.No.699 of 2012
pleading made in paragraph No.1 of the plaint states that the Trust got
extinguished due to the growth of Karuvela trees in the property. Thereafter, the
plaintiff's father and himself were enjoying the income derived from the
property as their own for over 35 years. They were also paying Kists, which was
marked as Ex.A3 series. This clearly shows that the Trust's property was
converted as individual property. By no such imagination, there can be any
extinguishment of Trust. The property of public Trust cannot be usurped for
any personal purposes particularly by the Trustees.
8. Further perusal of the evidence shows that the plaintiff has
examined P.W.3, the vendor, who sold the property to his father. Surprisingly,
the sale was not registered. Therefore, the case of the plaintiff that his father
purchased the property from one Vairam, P.W.3 and dedicated it to the Trust
and was running the Trust is not proved. The title to the property either to the
trust or to the plaintiff's father has not been proved by proper evidence. A
perusal of Ex.X1 marked through P.W.1 reveals that the property measuring an
extent of 1.94 Acres is situate in R.S.Nos.75/4 - 0.42, 75/6 - 0.05, 84/6 - 0.93,
84/2 - 0.40 and 85/1 – 0.14. The suit property pertains to S.Nos.85/1A, 85/3A,
85/4A and 85/5A. It is to be noted that in R.S.No.85/1 what was acquired by
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S.A.No.699 of 2012
the plaintiff's father through unregistered document was 0.14 Cents. But, the
plaint schedule does not show after acquisition of the land what are the actual
extents that lie within S.No.85/1A. The plaint schedule is very vague. Out of
0.43.0 Ares situated within all these Survey Numbers, deducting 0.41 Cents
acquired by the Government which was mentioned in Patta No.201 and the
trees and bushes existing therein, it does not clearly show what was the actual
extent, which was under possession of the plaintiff. There is no description of
property in R.S.No.85/1A as claimed to have been purchased by the plantiff's
father through the unregistered sale.
9. The trial Court has rightly found that the description of the
property does not clearly identify the property and thereby defective and the
discrepancy disentitles the plaintiff for that relief is correct. On the other hand,
the finding of the Lower Appellate Court observing S.Nos.85/1B, 85/3B, 85/5B
belong to the Government and that there is no clarity as to why the property
belongs to the Government or private land and arriving at a conclusion that the
patta proves the possession of the plaintiff is not well founded. When the title
and framing of the suit is specifically disputed, onus is cast upon the plaintiff to
prove that he has derived valid title through documentary evidence. But, the
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S.A.No.699 of 2012
Lower Appellate Court relied on the evidence of P.W.3 and Ex.A1 and Ex.A4 to
arrive at a conclusion that the plaintiff was in possession of the property. But,
any conveyance of immovable property over and above Rs.100/- shall be
compulsorily registered. Only because somebody comes and says that I sold the
land to someone without any deed of conveyance, it cannot be believed as a
valid conveyance.
10. Therefore, this Court presumes that for the purpose of showing
title to Thanneer Panthal Trust, the plaintiff has brought in the evidence of
P.W.3 as he had sold the land to his father. Apart from this P.W.3., there is no
other evidence to prove the sale and title of the plaitiff's father.
11. Further, admittedly, late Chinnathambi has other legal heirs.
There is no pleading that the plaintiff is the only legal heir and he is entitled to
exclusive title to the property of his father. In that event, not impleading the
necessary parties is bad in law. The Lower Appellate Court has not adverted to
any other issue decided by the trial Court.
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S.A.No.699 of 2012
12. Therefore, it is clear that the plaintiff has not proved his title
through Ex.X1. If at all, the plaintiff's father derived title, it should have been
made through a registered deed of conveyance. Therefore, Ex.X1 does not prove
valid title in favour of the plaintiff's father. In the absence of any valid title,
Ex.A4 will not prove the possession of the suit property in favour of the
plaintiff. Secondly, when the property stands in the name of Trust, the suit shall
be filed in the name of the Trust represented by its Trustee. The suit cannot be
filed by any individual on false or with pleading contrary to the facts.
Therefore, framing of suit by any individual with regard to the property of Trust
is not maintainable. Accordingly, the Questions of Law are answered in favour
of the appellant.
In the result, the Second Appeal stands allowed. There shall be no
order as to costs. Consequently, connected Miscellaneous Petition is closed.
31.08.2021
asi
Index : Yes/No
Internet : Yes/No
https://www.mhc.tn.gov.in/judis
S.A.No.699 of 2012
M. GOVINDARAJ, J.
asi
To
1. The Subordinate Court,
Thiruvarur.
2. The District Munsif-cum-Judicial Magistrate,
Nannilam.
S.A.No.699 of 2012
and M.P.No.1 of 2012
31.08.2021
https://www.mhc.tn.gov.in/judis
