Madras High Court
Mohammed Nazar vs Kalyanam on 18 February, 2021
C.M.A.No.2689 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.02.2021
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
C.M.A.No.2689 of 2013
and
M.P.No.1 of 2013
1.Mohammed Nazar
2.Mohammed Akbar
3.Mohammed Ansari
4.Syed Labai
5.Mohammed Sadique
6.Syed Hameed Natchiya .. Appellants
Vs.
1.Kalyanam
2.Selvaraj
3.Marimuthu
4.Ravichandran
5.Vasantha
6.Raja .. Respondents
PRAYER : Civil Miscellaneous Appeal is filed under Order 43 rule 1(r) of
Civil Procedure Code, against the judgment and decree in A.S.29 of 2012 on
the file of the Principal Subordinate Court, Mayiladuthurai, dated 03.04.2013,
in reversing the judgment and decree in I.A.No.43 of 2003 in O.S.No.8 of
1986, on the file of the District Munsif Court, Sirkali, dated 23.02.2011.
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C.M.A.No.2689 of 2013
For Appellants : Mr.Mitranestora
For Mr.V.Raghavachari
For Respondents : No appearance
JUDGMENT
The appellants herein are the plaintiffs in O.S.No.8 of 1986, on
the file of the District Munsif Court, Sirkali, claiming the relief of partition
against the respondents.
2. The defendants 2 to 4 contested the case, the 1st defendant was
reported death and the other defendants 6 to 8 remained ex-parte.
3. On hearing both sides, the suit was decreed in favour of the
plaintiffs by allotting 3/4th share and other consequential reliefs. Thereafter,
I.A.No.43 of 2003 was filed before the District Munsif Court, Sirkali by the
plaintiffs 2 to 4 under Order 20 Rule 18 of CPC to pass final decree. In that
final hearing application, the Commissioner was appointed and based on the
Commissioner's report, the Trial Court concluded that some of the properties
were occupied by the defendants including pond and the plaintiffs were given
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C.M.A.No.2689 of 2013
3/4th share in the properties. Aggrieved by the order, the defendants 3,4,5 & 7
preferred the Appeal before the Principal Subordinate Judge, Sub-Court,
Mayiladuthurai in A.S.No.29 of 2012, contending that while allotting the
property of the shares of the appellants, the pond was also allotted to the side
of the defendants but to clean the pond, the defendants have to spend
morethan Rs.1,50,000/- but the trial Court has not awarded any such amount
in their favour. Further contended that an extent of the said pond was not
clearly stated in the Commissioner's report. Therefore, they are not accepting
the allotment of the property as per the final decree and prayed to set aside
the final decree.
4. At the time of argument, the 1st Appellate Judge observed that the pond
situated in the suit property as per the 'A' Register extract marked along with
the Commissioner report 1 to 9 reveal that it is a 'Sarkar Puramboke”. So the
parties are not having any right to enjoy the Government's property.
Accordingly, the suit was remanded to the trial Court to measure the current
extent of suit property with the help of the Commissioner and Surveyor.
Aggrieved by the order, the defendants / respondents preferred this appeal.
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C.M.A.No.2689 of 2013
5. The question of law that arise for consideration is as to
(i) whether the First Appellate Court has
erroneously remanding the matter to the Trial Court for
appointment of Commissioner and to identify the
property belongs to the Government ?
6. Order 20 Rule 18 CPC deals as follows:
“ORDER XX :
18. Decree in suit for partition of property of
separate possession of a share therein.- Where the Court
passes a decree for the partition of property or for the separate
possession of a share therein, then,-
(1) if and in so far as the decree relates to an estate
assessed to the payment of revenue to the Government, the
decree shall declare the rights of the several parties interested
in the property, but shall direct such partition or separation to
be made by the Collector, or any gazetted subordinate of the
Collector deputed by him in this behalf, in accordance with
such declaration and with the provisions of Section 54;
(2) if and in so far as such decree relates to any other
immovable property or to movable property, the Court may, if
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C.M.A.No.2689 of 2013
the partition or separation cannot be conveniently made
without further inquiry pass a preliminary decree declaring the
right of the several parties interested in the property and
giving such further directions as may be required.”
7. On perusal of the records it reveals that there is a pond (Kuttai)
in S.R.No.745 of 2003 and the same is situated in Sarkar puramboke as per
the AR extract on the side of the Commissioner as Ex.C.2 and Ex.C.3. Ex.C.2
is the plan of the the Surveyor relating to the suit survey No.745/3. In that
plan Ex.C.2, the pond is mentioned, and the same is situated in S.No.745/3
'Sarkar Puramboke' as rightly observed by the First Appellate Judge, that the
water bodies which are situated in Government puramboke belong to the
Government.
8. As such individual person has no right to encroach and claim
right over the water bodies. Therefore, by including the Government
puramboke land, the plaintiffs approached the Court for suit for partition. The
Revenue records clearly proved that it is the Sarkar puramboke and the water
bodies are belong to the Government as per the Revenue Records. There is no
necessity to identify the water bodies with the help of the Commissioner
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C.M.A.No.2689 of 2013
because already the Commissioner visited the property and measured the
same along with the Surveyor. The Revenue extract which clearly proves that
a pond / water bodies situated in the Sarkar puramboke in S.F.No.745/3.
Therefore, the suit itself as not maintainable in law for the reason that by
including the Government Porambokku land, the plaintiffs approached the
Court for partition. Therefore, the suit itself is liable to be dismissed for the
reason that he claimed partition including Government puramboke land.
9. Accordingly, such Civil Miscellaneous Appeal is not
maintainable in law, by excluding the said pond in S.F.No.745/3 the
appellants are entitled to claim for partition by filing separate suit.
10. Accordingly, the Civil Miscellaneous Appeal is ordered.
No Costs. Consequently, connected Miscellaneous Petition is closed.
18.02.2021
rri
Index : Yes/No
Speaking Order: Yes/No
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C.M.A.No.2689 of 2013
T.V.THAMILSELVI,J.
rri
C.M.A.No.2689 of 2013
and
M.P.No.1 of 2013
18.02.2021
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