Muthavalli vs Tahsildar
2021 Latest Caselaw 3804 Mad

                                                                               C.R.P.(P.D).No.901 of 2017

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 16.02.2021

                                                       CORAM:

                             THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                              C.R.P.(P.D).No.901 of 2017
                                              and C.M.P.No.4423 of 2017

                      Muthavalli,
                      Rep.by
                      M.Easak Sahib
                      Mosque Construction Committee
                      Santhavaasal.                                                ...Petitioner
                                                           Vs.
                      1.Tahsildar
                      Office of the Tahsildar
                      Polur Taluk
                      Tiruvannamalai District.
                      2.The Secretary
                      Tamilnadu Wakf Board
                      No.3, Santhome High Road
                      Chennai-600 004.                                             ...Respondents

                      Prayer: Civil Revision Petition filed under Article 227 of the Constitution of
                      India to struck off the suit in O.S.No.8 of 2017 on the file of the learned
                      District Munsif, Polur at Tiruvannamalai District as abuse of process of law.
                                          For Petitioner         : Mr.M.Raja Sekhar
                                          For Respondents        : Mr.S.Jaganathan
                                                                   Government Advocate (CS) for R1
                                                                   Mr.V.Raghavachari for R2


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                                                                               C.R.P.(P.D).No.901 of 2017



                                                       ORDER

This Civil Revision Petition is directed to strike off the plaint in

O.S.No.8 of 2017 on the file of the learned District Munsif, Polur at

Tiruvannamalai District, filed by the 1st respondent herein, for declaration

and injunction

2.The learned counsel for the petitioner would submit that the 1 st

respondent is not a competent person to file the impugned suit as provided

under Section 79 r/w Order 27 Rule 1 CPC and proviso to Order 1 Rule 9

CPC. If any relief is claimed as against the property belongs to the State,

unless and otherwise the State was made as a party, suit is not maintainable.

He further submitted that in respect of the very same suit property, the

petitioner already filed a suit for declaration and recovery of possession in

O.S.No.118 of 1976. It was decreed by Judgment and decree dated

20.01.1979 and the same was confirmed by the Judgment and decree dated

21.03.1980 in A.S.No.27 of 1979.

3.Aggrieved by the same, the counter party filed Second Appeal as

S.A.932 of 1983 and the same was also dismissed. Thereafter, the petitioner

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filed E.P in E.P.No.515 of 1982, where the 1st respondent was directed to

take possession of the suit schedule property and handover the same to the

petitioner herein. Thereafter, the 1st respondent filed a suit for declaration

for the very same property alleging that in the suit property some portion

was occupied by the petitioner and the persons who belong to the Hindu

Religious, constructed their shops and houses and engaged in the suit

property. Further, the suit property consisting of Pond and Lake, classified

as Kuttai Poramboke. When there is specific allegation against some 3rd

parties, that they encroached upon the suit property, the 1st respondent

ought to have impleaded them as parties to the suit and prayed for recovery

of possession. Without doing so, simply filed a suit for declaration only as

against the petitioner and Wakf Board. Therefore, the suit itself is not

maintainable and it is liable to be strike off.

4.Mr.S.Jaganathan, Government Advocate (CS) submitted that

there are so many issues in the suit and all the issues are triable before the

trial Court and it cannot be thrown out on its threshold and the petitioner

cannot pray for strike off the plaint. Hence, he prayed for dismissal of the

Civil Revision Petition.

http://www.judis.nic.in C.R.P.(P.D).No.901 of 2017

5.Heard Mr.M.Raja Sekhar, learned counsel for the petitioner;

Mr.S.Jaganathan, Government Advocate (CS) appearing for the 1st

respondent and Mr.V.Raghavachari, learned counsel for the 2nd respondent.

6.The petitioner filed a suit for declaration and recovery of

possession in respect of the very same suit property and the same was

decreed and confirmed upto this Court in S.A.No.932 of 1983 by Judgment

and decree dated 25.02.1997. The petitioner also filed E.P. in E.P.No.515 of

1982 in which, the 1st respondent was directed to measure the suit property

with the help of the surveyor and handover vacant possession of the suit

property to the petitioner herein by the communication dated 02.09.2016.

Again by the communication dated 14.12.2016, the Execution Court

directed the 1strespondent-Taluk Head Surveyor to identify the suit property

and remove the encroachments and handover the vacant possession to the

petitioner herein. In fact, to remove the encroachment the learned Execution

court also directed the concerned Police Officials to give adequate police

protection, while removing the encroachments. In pursuant to the said

communications, the 1st respondent herein by communication dated

23.12.2016 informed the learned Execution Court that as per its direction,

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the process is going on. Thereafter, by the communication dated

30.12.2016, again the learned Execution Court directed the 1st respondent to

remove the encroachments and handover the vacant possession and report

before the Execution Court. While being so, all of a sudden, the 1st

respondent by the communication dated 02.01.2017 informed the Execution

Court stating that the decree on which the 1st respondent was directed to

execute in O.S.No.118 of 1976 was decreed without adding the Government

as a party and as such the suit property cannot be declared in favour of the

petitioner herein. Therefore, the 1st respondent filed the present impugned

suit for declaration and injunction restraining the Execution Court not to

proceed further in the execution proceedings, till the disposal of the main

suit. On perusal of the plaint, the following averments made in paragraph

No.6. Which extracts hereunder:-

"thjp gzpe;J rkh;g;gpg;gJ ahbjdpy;. tHf;Fr;

brhj;jpy; K!;yPk; rKfj;jpduhd gpujpthjp kR{jp

Rw;Wr;RtUk; mjpy; fpzW xd;Wk;. fl;ol;k xd;Wk;.

http://www.judis.nic.in C.R.P.(P.D).No.901 of 2017

jz;zPh; bjhl;o xd;Wk; fl;oa[k;. ,e;Jf;fs; rKfj;ijr;

nrh;e;j jahsd;. ,utp. j';fuh$p. rk;gj;J. Kj;J Kjypahh;.

gr;rpag;gd;. gHdp. fhpRg;gpukzp. Kj;J kw;bwhU

gHdp Mfpnahh;fs; filfs; kw;Wk; tPLfs; fl;o

Mf;fukzk; bra;J tUfpd;whh;fs;/ nkYk; jhth brhj;jpy;

Rkhh; 20 mo cauj;jpy; M";rneah; rpiy nfhtpy;

fl;oa[k; cs;shh;fs;/ nkYk; tHf;Fr; brhj;jpy; ePh;epiy

g[wk;nghf;F Fl;ilahft[k; jw;nghJ g[yj;jpy;

,Ue;JtUfpwJ/ nkw;go egh;fs; tHf;Fr; brhj;ij

Mf;fpukpj;Js;shh;fs; vd;gjw;F 1416 Mk; grypf;F

fpuhk eph;thf mYtyh; bfhLj;j ml';fy; cz;ik efy; thjp

jhf;fy; bra;fpwhh;/ nkw;fz;l Mtzj;ij ,e;j tHf;fpd; Xh;

                      m';fkhft[k;.    mk;rkhft[k;         ghtpf;FkhW                thjp




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                                                                                  C.R.P.(P.D).No.901 of 2017


                      gpuhh;j;jpf;fpd;whh;/"

7.Even according to the 1st respondent, in the suit, there is

encroachment by 3rd parties and they also constructed shops and houses.

When it being so, the 1st respondent ought to have impleaded them as

parties and also prayed for recovery of possession.

8.Further, as per Section 79 CPC, if any relief is claimed as

against the State or for the suit property belong to the State, unless otherwise

State is made as a party to the suit, it is not maintainable.

9.In this regard, the learned counsel for the petitioner relied upon

the Judgment in the case of The District Collector, Srikakulam and others

Vs. Bagathi Krishna Rao and anohter reported in 2010 5 LW. 17. Relevant

paragraph is given below:

"5.Section 79 of the Code of Civil Procedure (hereinafter 'CPC') specifically deals with suits by and against the Government and provides that in suits by and against the Government, the authority to be impleaded as the plaintiff or defendant, would be the Union of India or Central Government or the State or State Government.

http://www.judis.nic.in C.R.P.(P.D).No.901 of 2017

Proviso to Rule 9 of Order 1 provides that non- joinder of necessary party is fatal.

6.Rule 1 of Order XXVII CPC deals with suits by or against the Government or by officers in their official capacity. It provides that in any suit by or against the Government, the plaint of the written statement shall be signed by such person as the Government may like by general or special order authorize in that behalf and shall be verified by any person whom the Government may so appoint.

............

............

12.While considering the similar case in Chief Conservator of Forests, Government of A.P. Vs. Collector & Ors; AIR 2003 SC 1805, this Court accepted the submission that writ cannot be entertained without impleading the State if relief is sought against the State. This Court had drawn the analogy from Section 79 CPC, which directs that the State shall be the authority to be named as plaintiff or defendant in a suit by or against the Government and Section 80 thereof directs notice to the Secretary of that State or the Collector of the district before the institution of the suit and Rule 1 of Order

http://www.judis.nic.in C.R.P.(P.D).No.901 of 2017

XXVII lays down as to who should sign the pleadings. No individual officer of the Government under the scheme of the constitution nor under the CPC, can file a suit nor initiate any proceeding in the name and the post he is holding, who is not a juristic person."

10.In the case on hand, the plaintiff is the Tahsildar, Polur Taluk,

Tiruvannamalai District.

11.Admittedly, there is no authorization for the Tahsildar to file the

present suit on behalf of the Government. No whisper about his

authorization by the Government to file the suit and no document is annexed

with the plaint, authorizing him to file the present suit.

12.That apart, the petitioner already obtained decree for the very

same property in O.S.No.118 of 1976 and the same was confirmed by this

Court by the Judgment and decree dated 25.02.1997 in S.A.No.932 of 1983.

13.The trial Court framed so many issues and one of the issue is

answered as follows::-

"Issue No.12-It is clearly seen that the property has not been

vested with the Santhavaasal Panchayat and it only remains as a muslim

http://www.judis.nic.in C.R.P.(P.D).No.901 of 2017

burial ground and as such the Panchayat Board is not a necessary party.

It was claimed that the State Government was a necessary party. But it

will be seen that the plaintiff has filed a suit for declaration and

possession of the suit properties. The defendants are trespassers and the

relief is only against the defendants who had trespassed into the plaintiff's

property and it is only for the removal of the defendants from the suit

property and for delivery of possession. In the circumstances, the

Government is not a necessary party in the suit. Issue is answered

accordingly.”

14.Therefore, the trial Court has held that the Government is not a

necessary party in the said suit and it is clear that the suit property belong to

the petitioner herein. Therefore, the 1st respondent, now cannot take the

stand that the Government is not a necessary party in the suit filed by the

petitioner herein, that too after 38 years. In fact, on so many occasions, the

Execution Court directed the 1st respondent to remove the encroachments in

the suit property and handover the vacant possession to the petitioner

herein. Therefore, the present suit is nothing but clear abuse of process of

law and it cannot be sustained as against the petitioner herein.

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15.In view of the above discussion, this Civil Revision Petition is

allowed. The plaint in O.S.No.8 of 2017 on the file of the learned District

Munsif, Polur at Tiruvannamalai District, is hereby struck off. No costs.

Consequently connected miscellaneous petition is closed.

16.02.2021 Index:Yes/No Speaking Order: Yes/No Jer

To

1.The District Munsif, Polur at Tiruvannamalai District.

2.The Tahsildar, Office of the Tahsildar Polur Taluk, Tiruvannamalai District.

G.K.ILANTHIRAIYAN.J,

Jer

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C.R.P.(P.D).No.901 of 2017 and C.M.P.No.4423 of 2017

16.02.2021

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