Madras High Court
Indhurani vs Sundararajan on 9 December, 2021
S.A(MD)No.744 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.12.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.744 of 2021
and
C.M.P(MD)No.9998 of 2021
Indhurani ... Appellant/Appellant/Defendant
Vs.
1.Sundararajan
2.Krishnan
3.Vellaiyammal
4.Ganapathy
5.Lakshmi ... Respondents/Respondents/Plaintiffs
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 19.03.2021 passed
in A.S.No.7 of 2018, on the file of the Subordinate Court, Paramakudi,
confirming the judgment and decree dated 23.11.2016 passed in
O.S.No.54 of 2012 on the file of the District Munsif Court, Paramakudi.
For Appellant : Mr.A.Arputharaj
1/17
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S.A(MD)No.744 of 2021
JUDGMENT
The concurrent Judgments and decrees passed in O.S.No.54 of
2012 by the District Munsif Court, Paramakudi and in A.S.No.25 of
2018 by the Additional District Court, Paramakudi, are being challenged
in the present Second Appeal.
2. The respondents/plaintiffs have instituted a suit in O.S.No.54
of 2012 on the file of the trial Court for the relief of declaration and
permanent injunction, wherein, the present appellant has been shown
as defendant.
3. For the sake of convenience, the parties are referred to as, as
described before the trial Court.
4. The case of the plaintiff is that with regard to Survey Nos.
64/1, 66/3 and 65/1, measuring an extent of 2 acre 39 cents of land
was acquired for the Adi-Dravidar Community People by the Tamil Nadu
Government and the Adi-Dravidar Welfare Department has allotted
house sites to the landless poor Adi-Dravidar people. Accordingly, in
Survey No.64/1, 5 cents of land in Plot No.10 was allotted to the
plaintiff in proceedings in Na.Ka.No.3371/62 on 22.04.1964. The
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S.A(MD)No.744 of 2021
plaintiff constructed a thatched house and enjoyed the same. Due to
her old age, she lived with her sons and the said thatched house
constructed by her, become dilapidated and the land is now lying
vacant. Regarding the said disputed land, the plaintiff has given power
to his sons, namely Sundarrajan and Krishnan. As the plaintiff's
husband, namely Andi, died on 27.06.2005, the defendant had created
a forged document as if the property belonged to her husband and on
10.06.2010, the plaintiff's husband has executed a sale deed in favour
of the defendant and in the said document, it is seen that the executor
is one Karuppan, who is the husband of Petchiammal and the prior
document has been shown as dated 11.07.1993 and the said person,
who purchased the property has been shown as Petchiammal, wife of
Muniyandi. Hence, the said documents are forged one by
impersonation and the defendant has no right over the property. Based
on an erroneous document, without even considering their case and
without holding an enquiry, on 05.11.2010, patta has been transferred
in the name of the defendant and in the said document, old Survey No
is 64/1 and later on Re-survey, 63/5 and 64/7 were
sub-divided and the plaintiff filed a petition to the authorities before
the Revenue Department to cancel the said patta. Hence, the plaintiff
has filed a suit seeking for the relief of declaration and permanent
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S.A(MD)No.744 of 2021
injunction. Pending the suit, the plaintiff died on 22.04.2013 and the
legal heirs of the plaintiff has been arrayed as plaintiffs 2 to 6 and
contested the suit.
5. The defendant filed a written statement denying all the
averments and submitted that the plaintiff accepted that her husband's
name is Andi and only for Andi, the Special Tahsildar has assigned the
land. On 11.07.1973, the said Andi has executed a sale deed in favour
of one Petchiammal. The said Petchiammal, who in turn had executed a
sale deed on 10.06.2010 to the defendant and the Petchiammal's
husband name is Karuppan @ Muniyandi and the defendant is in
possession and enjoyment of the said property for a long period and
patta has been issued in favour of the defendant and he has also put a
wired fencing and also using the land as a pathway and prayed that the
document which has been produced by the plaintiff, which was marked
as Ex.A.1, does not have any connectivity to the said disputed land and
further submitted that the said document is dated 22.04.1964, but the
document relied on by the plaintiff has been issued by the Tahsildar
only on 05.08.2011. In the year 1964, only 5 cents of land has been
allotted but for the past 10 years, only 2 cents of land are allotted and
assigned to the beneficiaries by the Department. Hence, the plaintiff
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S.A(MD)No.744 of 2021
has got no right over the property and the said Karuppan is also known
as Muniyandi and both name denotes one and the same person and the
plaintiff has not made out any case and prayed for dismissal of the suit.
6. Before the trial Court, on the side of the plaintiffs, P.W.1 to
P.W.3 were examined and Exs.A1 to A7 were marked. On the side of
the defendant, D.W.1 to D.W.4 were examined and Exs.B.1 to B.4 were
marked and also Ex.X.1 to Ex.X.5 were marked.
7. On the basis of the rival pleadings made on either side, the
trial Court, after framing necessary issues and after evaluating both the
oral and documentary evidence, has decreed the suit.
8. Aggrieved by the Judgment and decree passed by the trial
Court, the defendant, as appellant, had filed an Appeal Suit in A.S.No.7
of 2018. The first appellate Court, after hearing both sides and upon
reappraising the evidence available on record, has dismissed the
appeal and confirmed the Judgment and decree passed by the trial
Court.
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S.A(MD)No.744 of 2021
9. Challenging the said concurrent Judgments and decrees
passed by the Courts below, the present Second Appeal has been
preferred at the instance of the defendant, as appellant.
10. Heard the learned counsel for the appellant and also perused
the records carefully.
11. The learned counsel appearing for the appellant/defendant
would submit that the Courts below have not considered the evidence
produced through the marked documents as well as the oral evidence
let in and allowed the same on erroneous finding. When the property
originally belonged to one Andi and after his death, the said allotment
alleged to have been assigned in his wife's name has not been clearly
stated by the second plaintiff, but the plaintiffs have not pleaded the
same before the trial Court but stated that the property belongs to the
original plaintiff-Kaliammal and when she was alive, had given a power
of attorney in favour of her sons and have not examined the said
Kaliammal, as a witness, which fact has not been considered by the
Courts below and during the pendency of the suit, the said Kaliammal
died and her legal heirs have been made as a parties and as such, the
prayer was not amended seeking in favour of the present plaintiffs.
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S.A(MD)No.744 of 2021
Inspite of the evidence let in by the defendant, wherein, it has been
rebutted the claim made by the plaintiffs, the Court below has
erroneously come to the conclusion that the disputed suit property
belongs to the plaintiff on finding that the documents produced by the
defendant are only revenue documents and the said documentary
evidence has not been considered by the Courts below appropriately.
More so, the valid sale deed produced by the defendant was not at all
considered by the Courts below. The defendant's predecessor had
purchased the property by virtue of a sale deed in the year 1973.
Based on the title, the defendant purchased the suit schedule property
in her name was also accepted by the Revenue Department and patta
has been issued in her favour. That being the case, the claim that the
suit is barred by limitation and the said pleadings were not considered
in the Judgment rendered. Both the Courts below had not considered
the evidence produced by the defendant especially, the document
namely, Ex.A.1 does not pertain to the disputed property. As the
plaintiff had failed to prove the same, the Court below ought to have
rejected the same.
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S.A(MD)No.744 of 2021
12. The learned counsel appearing for the appellant / defendant
further submitted that as against the Judgment and Decree dated
31.07.2014, the defendant preferred an appeal in A.S.No.59 of 2014,
on the file of the Subordinate Court, Paramakudi and the first Appellate
Court remanded the matter back to the trial Court to find out whether
the said land was allotted to Kaliammal based on the proceedings,
dated 22.04.1964 or otherwise and to consider the original documents
by calling for the records. Whether the said allotment was made in
favour of Andi or Kaliammal was adjudged by the trial Court and to
frame issues accordingly, had remitted the same, for deciding afresh.
But the first Appellate Court has not considered all these aspects, but
has framed seven new issues and come to the conclusion that the said
land belongs to the plaintiff's husband, but whether the said land has
been allotted to the plaintiff or to her husband has not been decided
after remand, but given a finding in a reversal manner, which is beyond
the pleadings of the plaintiff. Further, the defendant submitted that
when the defendant's documents and evidence were not considered by
the Courts below on a balanced manner, prayed for allowing the
Second Appeal.
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S.A(MD)No.744 of 2021
13. The learned counsel for the appellant/defendant further
submitted that as the plaintiffs mother namely, Kaliammal was given
assignment order only on 05.08.2011, the same could not be accepted
as if the allotment has been given in the year 1964. He further
submitted that the plaintiff's husband violated the order of assignment
of the Special Tahsildar, Adi-Dravidar Welfare Department, Paramakudi,
wherein, as per Condition No.8, the grantee shall not without the
sanction in writing of the State or of the authority to whom the power
to accord sanction in this behalf may be delegated, alienate the land
for 30 years, by way of sale, gift, mortgage or lease of any kind to any
person whomsoever.
14. The learned counsel appearing for the appellant/defendant
further submitted that the plaintiff has come to this Court with unclean
hands by making contradictory statements and also further submitted
that the Revenue Department ought to have cancelled the assignment
made in favour of the said person in view of violation of conditions.
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S.A(MD)No.744 of 2021
15. While considering the relief of declaration, the Court has to
consider the issues as to when the plaintiff has got title to the suit
property to decide the issue regarding the relief of declaration and
permanent injunction against the said defendant, the first Appellate
Court is empowered to decide the issue regarding title, is found to be
correct and need not be interfered with. The order of assignment is an
assignment on condition for the landless poor Adi-Dravidar people.
16. On a perusal of the document issued by the Special Tahsildar,
it is clearly seen that the said assignee holds it from the assignor just
giving possession of the property (xg;gil Miz). In the order of
assignment, lots of conditions were imposed, wherein, the grant will be
liable to be cancelled, if the parties violate the conditions narrated
therein and the Condition Nos.8 & 12 reads as follows:-
"8.The grantee shall not, without the sanction in
writing of the State or of the authority to whom the power to
accord sanction in this behalf may be delegated, alienate the
land for 30 years, by way of sale, gift, mortgage or lease of
any kind to any person whomsoever:
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S.A(MD)No.744 of 2021
Provided that:-
(a) in the event of the grantee selling the land with
such sanction as aforesaid, the State shall be entitled to a
share of the proceeds of such sale and the amount of such
share shall bear the same proportion to the total amount
realized by such sale as the State's proportionate
contribution to the cost of acquisition of the land sold bears
the total cost thereof and if the grantee has not completed
the repayment of the installments in accordance with
conditions (3) and (4), he shall pay in addition the amount
due to the State under the said conditions; and
(b) the grantee shall not be allowed to make a gift of
the land unless he pays to the State the amount contributed
by them and the unpaid, balance, if any, of the installments
due under conditions (3) and (4).
(c) that the prohibition against alienation of the State
by way of sale mortgage etc., imposed by condition 8 of the
G.O. will not be applicable in cases where the site or the
building on the site or both are hypothecated to a Co-
operative house building Society, for the purpose of securing
a loan for the improvement of the State or for the
construction of a house or for both purposes.
...........
12. In the event of the breach by the grantee of any of
the above conditions or in the event of the grantee leaving
the house un-occupied for a period of one year the State or
any officer authorised by them in this behalf may, unless the
grantee furnished valid reasons for such breach or for leave
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S.A(MD)No.744 of 2021
the house unoccupied declare that the deposit and all or any
moneys paid by the grantee shall be forfeited to the State
and may also resume the grant and re-enter on the land or
any part thereof. On such resumption and re-entry, the land
or portion thereof shall vest absolutely in the State and the
grantee shall not be entitled to any compensation whatever."
17. On going through the evidence, it is found that the said land
was originally allotted to the plaintiffs father, namely Andi, son of
Irulan, Beneficiary No.10, by proceedings in Na.Ka.No.3371/62, dated
22.04.1964. As the plaintiff's husband died, the wife of Andi, has
approached the revenue authorities in the year 2011 and accordingly,
the Special Tahsildar has allotted the said assignment in favour of
Kaliammal, wife of late.E.Andi, Paramakudi Circle, Thiyagavanseri
Village, Ramanathapuram District in Survey Nos.65/1, 2, 63/1, 64/1
and 66/3, 4 measuring totally an extent of 2.39 acres, in which 0.05
cents of land. Even as per the assignment order, the conditions
imposed in the land cannot be sold. The document which has been
produced by the appellant/defendant by additional typedset of papers
would show that on the date of original assignment order in favour of
one Poochi, the co-allottee condition No.8 states that the assignee shall
not alienate the land for 30 years by way of sale, gift, mortgage or
lease.
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S.A(MD)No.744 of 2021
18. From the evidence let in by the parties concerned, it is seen
that the said lands have been allotted to the landless poor people and
accordingly, the said Andi, who had purchased the land, had died and
his wife has sought for assignment in her favour and on application,
the said document has been issued in the year 2011. Even assuming
that there was no such assignment granted in favour of Kaliammal, the
children of Kaliammal and others are entitled for the said property by
inheritance from her husband, but according to the defendant's claim
that the father of the plaintiffs alleged to have executed a sale deed in
favour of the defendant's previous vendor on 11.07.1973 ie., to one
Petchiammal and the said Petchiammal was not available in the Town
and hence, her husband namely, one Karuppan @ Muniyapan had
executed a sale deed in favour of the defendant on 10.06.2010 and the
plaintiff has executed the acceptance deed on 17.06.2011. The above
plea raised does not hold good, as they are contrary to each other. As
per the original assignment order issued in the year 1964, Condition
No.8 states that the grantee shall not sell it for 30 years. That being
the case, the date on which the allotment order was handed to the
plaintiffs father ie., on 18.04.1964, the sale deed dated 11.07.1973,
cannot be considered as a valid document in the eye of law, as
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S.A(MD)No.744 of 2021
assignment condition prohibits the said person from alienating the said
property. As it is only an assigned land, there cannot be any alienation
by way of proper sale and not valid the said Petchiammal selling it to
the defendant when she herself had no right over the property by
purchase and when she has got no right or title over the property for
selling it to the defendant on 17.06.2011, the claims made by the
defendant are to be rejected. As the said assigned land is adjacent to
the defendant's land, she is trying to encroach upon the land of the
plaintiffs is also to be looked into.
19. It is seen that all the parties are inter-related and the claim
made by the plaintiff has not been contradictorily proved by the
defendant. As the plaintiff has proved that the said assignment order
has been issued in favour of Kaliammal, the mother of the plaintiffs and
the revenue authorities also have not let in any contradictory evidence
against the plaintiffs. From the said order issued on 05.08.2011 in
favour of Kaliammal is only a true copy. Whether there was any other
proceedings issued by the Special Tahsildar, who had given an
assignment order in favour of the plaintiff for the said plot is not
known, as there was no other evidence to prove the assignment order
issued in favour of Kaliammal as a bogus one. The order dated
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S.A(MD)No.744 of 2021
05.08.2011 produced by the plaintiffs would show the proceedings
dated as to 22.04.1964, but in the assignment order instead of Andi,
Kaliammal name has been assigned. The evidence of the plaintiffs that
their mother had applied for assigning the said land to her as her
husband died and the order has been issued in her favour. The
defendant has not proved any contra evidence against the same.
As there was no valid sale, the title and possession is with the plaintiff.
The claim made by the learned counsel for the appellant was that the
assignment has to be cancelled for violating of conditions. If the
appellant had brought to the knowledge of the Tahsildar within
appropriate period, there could be chances of succeeding in his claim.
The plaintiffs have proved their title from their father and the father
has holding the land only as an assignee and the assigned land cannot
be sold for 30 years is the condition stated in Condition No.8. That
being the case, the sale deed executed in favour of Petchiammal by the
said Andi, son of Irulan, does not give any valid right to the said
Petchiammal and the said Petchiammal cannot sell it to the defendant
without any right having been conferred on her by the document.
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S.A(MD)No.744 of 2021
20. For the reasons aforesaid, this Court is of the considered
view that no substantial questions of law has been made out by the
appellant/defendant to interfere with the well considered judgment and
decree rendered by the Courts below and accordingly, the Second
Appeal stands dismissed. No costs. Consequently, connected
Miscellaneous Petition is closed.
09.12.2021
Index : Yes/No
Internet : Yes/No
ps
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized for
official purposes, but,
ensuring that the copy of the
order that is presented is the
correct copy, shall be the
responsibility of the
advocate / litigant concerned.
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S.A(MD)No.744 of 2021
V.BHAVANI SUBBAROYAN, J.
ps
To
1.The Additional District Court,
Paramakudi.
2.The Sub Court,
Mudukulathur.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A(MD)No.744 of 2021
09.12.2021
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