P.Radhakrishnan vs The District Revenue Officer
2021 Latest Caselaw 12774 Mad

                                                             W.P. No. 27864 of 2012 and W.P. No. 2491 of 2013


                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS


                                                   DATED: 30.06.2021

                                                         CORAM

                             THE HONOURABLE MR.JUSTICE R. SURESH KUMAR

                                   W.P. No. 27864 of 2012 and W.P. No. 2491 of 2013 and
                                   W.M.P. No. 1 of 2012 and W.M.P. Nos.1, 1 and 2 of 2013

                     1. P.Radhakrishnan
                     2. R.Jeyanthi
                     3. P.Gunasekaran                                       ... Petitioners in
                                                                       W.P. No.27864 of 2012

                     P. Radhakrishnan                                       ... Petitioner in
                                                                       W.P. No.2491 of 2013
                                                            -vs-
                     1. The District Revenue Officer,
                        Cuddalore,
                        Cuddalore District.

                     2. The Revenue Divisional Officer,
                        Virudhachalam,
                        Cuddalore District.

                     3. The Executive Officer,
                        Arulmigu Vaidyanatha Swamy Thirukovil,
                        Thittakudi, Cuddalore District.

                     4. The Joint Commissioner,
                        Hindu Religious and Charitable Endowment Board,
                        Villupuram, Villupuram District.           ... Respondents in

W.P. No.27864 of 2012

https://www.mhc.tn.gov.in/judis/ W.P. No. 27864 of 2012 and W.P. No. 2491 of 2013

1. The District Revenue Officer, Cuddalore, Cuddalore District.

2. The Revenue Divisional Officer, Virudhachalam, Cuddalore District.

                     3. The Thasildar,
                        Thittakudi,
                        Cuddalore District.                               ... Respondents in
                                                                         W.P. No.2491 of 2013

PRAYER in W.P. No.27864 of 2012 : Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of Writ of Certiorarified Mandamus calling for the records of the first respondent vide Proceedings Na.Ka.V3/25088/2012 dated 24.09.2012, confirming the order of the second respondent vide Na.Ka.A4/2478/2012 dated 23.08.2012 and quash the same and directing the respondents to issue the patta to the petitioners vide Patta No.853 in Survey No.120/1.

PRAYER in W.P. No.2491 of 2013 : Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of Writ of Mandamus directing the third respondent to consider the representation of the petitioner dated 30.11.2012, in view of the order vide M.P. No. 1 of 2012 in W.P. No. 27864 of 2012 pending Writ Petition.

https://www.mhc.tn.gov.in/judis/ W.P. No. 27864 of 2012 and W.P. No. 2491 of 2013

For Petitioners in both W.Ps : Mr.R.Kannan

For Respondents in both W.Ps : Mr.Richardson Wilson Counsel for Govt for R1,R2&R4 Ms.Vaishali for Mr.K.V.Dhanapalan for R3

COMMON ORDER

Since the issue raised in both these Writ Petitions are one and the

same, with the consent of the learned counsel appearing for both sides,

both the Writ Petitions have been heard together and are disposed of by

this common order.

2. The short facts which are required to be noticed for the disposal

of these Writ Petitions are as follows:

(i) The subject land in old S.No.64/1A2B1 in new S.No.120/1 at

Thittakudi Village and Taluk, Cuddalore District claimed to be the

property of one Kunjupillai and he is said to have inherited the same

through a partition in the year 1955. However, at that time, i.e., in the

year 1960, it seems that, the Thittakudi Panchayat Union had issued a

https://www.mhc.tn.gov.in/judis/ W.P. No. 27864 of 2012 and W.P. No. 2491 of 2013

notice to the said Kunjupillai to vacate the land, as it treated him and

others as encroachers.

(ii) This action on the part of the Panchayat triggered the

Kunjupillai to file a suit in O.S. No. 199 of 1960 before the District

Munsif Court, Virudhachalam for a declaration and permanent

injunction. However, the said Suit was dismissed. As against which, the

said Kunjupillai filed an Appeal Suit in A.S. No. 264 of 1961 before the

Sub-Court, Cuddalore, where, a judgment and decree was passed on

14.11.1962 in favour of the said Kunjupillai, reversing the said judgment

and decree of the trial Court, by allowing the appeal.

(iii) As against the said order passed by the First Appellate Court,

the Thittakudi Panchayat Union filed a Second Appeal before this Court

in S.A. No. 1022 of 1963. This Court after considering the case projected

by the parties, by order dated 13.06.1967 has dismissed the said Second

Appeal by confirming the order passed by the First Appellate Court.

(iv) Thereafter, it is the case of the petitioners that, the Thittakudi

Panchayat Union passed a resolution in Resolution No.83 dated

https://www.mhc.tn.gov.in/judis/ W.P. No. 27864 of 2012 and W.P. No. 2491 of 2013

08.03.1968 and decided not to take any further action against the said

Kunjupillai.

(v) Thereafter, the said land was purchased by these petitioners by

different Sale Deeds in the year 1986 and that is how, the petitioners

claim to be the owners of the property or traced their title in respect of

the subject property.

(vi) Subsequently, it seems that, on 15.09.1997, patta had been

issued for the subject land in favour of the petitioners as the entire land

was classified during the UDR survey in A-Registrar as Gramanatham

and this might have been based on the earlier classification which could

be traced from 1923, stating that, the entire land be treated as

Gramanatham.

(vii) Subsequently, it seems that, after getting the plan permission

from the authorities concerned, some construction has been made by the

petitioners and accordingly, they claimed to be in possession and

enjoyment of the property.

https://www.mhc.tn.gov.in/judis/ W.P. No. 27864 of 2012 and W.P. No. 2491 of 2013

(viii) When that being so, the Arulmigu Vaidyanatha Swamy

Temple at Thittakudi, the 3rd respondent herein, claimed title over the

property in question and filed a Suit before the District Munsif-cum-

Judicial Magistrate Court, Thittakudi in O.S. No. 52 of 2001 seeking for

a declaration and injunction. However, the said Suit was dismissed for

default in the year 2009, as against which, no further action was taken by

the Temple Authorities.

(ix) In the year 2001, against the Temple Authorities, the

petitioners filed a Writ Petition before this Court in W.P. No. 4020 of

2001 seeking a Mandamus against the Temple Authorities not to

interfere with the land and building of the petitioners in the subject land.

(x) This Court, by order dated 09.08.2001 has passed the following

order:

"Considering these factual position, prima facie, I am satisfied that the petitioner had been granted patta on the basis of his possession and title unless the respondent established his overriding right over the petitioner, he would not be justified in interfering with the possession. Hence if the respondent claims any other right over this land, it is for him to establish before the revenue or the civil

https://www.mhc.tn.gov.in/judis/ W.P. No. 27864 of 2012 and W.P. No. 2491 of 2013

Court. Without doing so, he is not entitled to disturb the possession of the petitioner. Hence the writ petition is allowed."

(xi) Thereafter, it seems that, the Revenue Officials treating the

occupation of the petitioners as an encroachment, had taken some steps

to evict the petitioners from the subject land. Therefore, at that time, the

petitioners were once again triggered to approach this Court by filing

W.P. No. 24422 of 2003 against the District Collector and other Revenue

Officials and in that Writ Petition, this Court by order dated 21.03.2011,

has passed the following order:

".....the petitioners are in possession and they are also holding patta, this court is of the view that they cannot be evicted except by due process of law, and such an order can be passed only after hearing the petitioners and satisfying as to the nature of possession of the petitioners. Under such facts and circumstances of the case the respondents are directed not to disperse the petitioners except by following due process of law. If the respondents wants to evict the petitioners on the ground that the property is a Government property, they have to issue notice to the petitioners call for objections, particularly with reference to their contention regarding the title, and thereafter proceed in accordance with law."

https://www.mhc.tn.gov.in/judis/ W.P. No. 27864 of 2012 and W.P. No. 2491 of 2013

(xii) Only at this juncture, the petitioners made various

representations requesting Revenue Authorities to take steps as directed

by this Court in the order referred to above dated 21.03.2011. However,

in the meanwhile on 20.01.2009, the fourth respondent issued a notice

under Section 78(2) of the Tamil Nadu Hindu Religious and Charitable

Endowments Act, 1959 and initiated action against the petitioners to

cancel the patta. Pursuant to the order of this Court dated 21.03.2011, the

second respondent issued summons to the petitioners to appear for an

enquiry on 13.07.2012. Accordingly, on 24.07.2012, the petitioners

appeared before the second respondent and thereafter, the second

respondent passed an order on 23.08.2012 against the interest of the

petitioners, as against which, the petitioners preferred an appeal before

the first respondent on 29.08.2012, which was also decided and disposed

of by the first respondent, by order dated 24.09.2012.

3. The sum and substance of the said orders passed by the first and

second respondents stated supra, which are impugned herein, inter alia,

https://www.mhc.tn.gov.in/judis/ W.P. No. 27864 of 2012 and W.P. No. 2491 of 2013

make it that, the petitioners' possession and enjoyment of the property,

i.e., subject matter, seems to be an encroachment as it is claimed by the

Temple Authorities that, the land belongs to the Temple. However, the

first respondent in his order dated 24.09.2012 among many other things

has observed the following:

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                                   ePjpkd;wj;jpy;     rhjfkhd        jPh;g;g[fSk;
                                   tH';fg;gl;Ls;sjhYk;.               jw;nghJ
                                   tpUj;jhryk;          Kjd;ik               rhh;g[

ePjpkd;wj;jpy; mry; tHf;F X/v!;/155-2012 epYitapy; cs;sjhy; mjd;kPJ muR jug;gpy; vjph;thJiu jhf;fy; bra;J tprhuiz Kot[ bgw;W jPh;g;g[ mspf;Fk;

                                   nghJ mjd; mog;gilapy; ,Wjp Kot[
                                   vLf;f             mwpt[iu             tH';fp
                                   Mizaplg;gLfpwJ/@

4. Felt aggrieved over the said order passed by the Revenue

Authorities, i.e., first and second respondents, the present Writ Petitions

have been filed. In both the Writ Petitions, similar orders or the same

orders have been under challenge. Therefore, the facts mentioned in the

first Writ Petition, i.e., W.P. No. 27864 of 2012 as narrated above are

taken into account.

https://www.mhc.tn.gov.in/judis/ W.P. No. 27864 of 2012 and W.P. No. 2491 of 2013

5. Reiterating the aforesaid factors, Mr.R.Kannan, learned counsel

appearing for the petitioners has submitted that, atleast from 1925, the

petitioners are able to trace their title through their predecessors in title

of the petitioners, as there has been number of proceedings, wherein,

atleast one round of Civil litigation starting from the District Munsif

Court ended at this Court, where favourable findings have been given

both by the First Appellate Court as well as by this Court, thereby, the

learned counsel appearing for the petitioners claimed title of the property

which is perfected by virtue of the continuous possession and enjoyment

of the property for more than thirty years, even at the time of the

dismissal of the Second Appeal in the year 1967.

6. He would also submit that, after the civil battle was over

between the petitioners' predecessors in title and the Thittakudi

Panchayat Union, the Panchayat Union decided, by resolution, not to

further precipitate the matter and thereby, the claim made by the

Panchayat had been given up.

https://www.mhc.tn.gov.in/judis/ W.P. No. 27864 of 2012 and W.P. No. 2491 of 2013

7. He would also submit that, however, insofar as the Temple

Authorities as well as the Government, i.e., Revenue Department are

concerned, both have made the present on slot stating that, the subject

land belongs to the Temple and therefore, the Revenue Authorities also

by following various Judgments issued by this Court as well as the

Revenue Standing Orders and the provisions of the Tamil Nadu Patta

Passbook Act, 1983 have come to the conclusion prima facie that, at this

stage, the possession and enjoyment of the petitioners in the subject

property cannot be construed as an encroachment and accordingly, action

can be taken after the decision made by the Civil Court.

8. The learned counsel would further submit that, in the impugned

order, i.e., final order passed in the Appeal filed before the first

respondent, in the penultimate paragraph, i.e., at Point No.7, the first

respondent has clearly stated that, for more than 50 years, the petitioners

or their predecessors have been in possession and enjoyment of the

property and number of orders have been passed by the Court of Law in

https://www.mhc.tn.gov.in/judis/ W.P. No. 27864 of 2012 and W.P. No. 2491 of 2013

favour of the petitioners or their predecessors and the petitioners also had

filed a Suit in O.S. No. 155 of 2012 before the Sub-Court,

Virudhachalam, which is pending consideration before the said Court.

Therefore, taking into consideration of the totality of the situation, the

first respondent has observed that, as per the decision to be taken by the

Civil Court in the pending Suit triggered by the petitioners, the final

decision can be taken.

9. The learned counsel appearing for the petitioners would further

submit that, unmindful of the said findings and observations made in the

impugned order, both the Revenue Authorities, i.e., Lower Level

Officials as well as the Temple Authorities are treating these petitioners

as encroaches and want to evict the petitioners without following due

process of law and without even waiting for the decision to be taken by

the Civil Court in the Suit filed by the petitioners and therefore, it has

become necessitated to challenge the impugned order. Hence, the learned

counsel appearing for the petitioners seeks indulgence of this Court

against the impugned order.

https://www.mhc.tn.gov.in/judis/ W.P. No. 27864 of 2012 and W.P. No. 2491 of 2013

10. Per contra, Mr.Richardson Wilson, learned counsel for the

Government appearing for the official respondents would submit that, no

doubt, there has been a Civil litigation which has started in 1960 and

ended in the year 1967 and ultimately, the Second Appeal filed by the

Thittakudi Town Panchayat, by its Executive Officer was rejected by this

Court in S.A. No. 1022 of 1963, thereby, it may be claimed by the

petitioners that, the issue has concluded. However, the findings and

observations given by this Court in the said order insofar as referred to in

the Second Appeal is that, the suit property forms part of Thirukkulam

poramboke.

11. By relying upon these findings given by this Court, the learned

counsel for the Government would submit that, there might have been a

conclusion reached between the petitioners and the Thittakudi Panchayat

Union or Town Panchayat concerned, but it has not been concluded

between the petitioners and the Government as well as the petitioners and

the Temple Authorities. This has also been specified by the learned Judge

who disposed the Second Appeal in the year 1967. In order to appreciate

https://www.mhc.tn.gov.in/judis/ W.P. No. 27864 of 2012 and W.P. No. 2491 of 2013

the same, the learned counsel for the Government heavily relies upon the

following findings given by this Court in the Second Appeal referred to

above:

"But on appeal, this finding was reversed and the suit was decreed. The appellate Court pointed out that the Panchayat did not put forward a case in its written statement that the suit property formed parr of any public road, but that it only stated that the suit property was part of the tank poramboke. Hence the contention that the suit property was part of a road and therefore vested in the Panchayat was rightly rejected. It is mentioned in the written statement that the suit property forms part of Thirukkulam poramboke. The appellate Court also accepted the contention of the respondents that they and their predecessors in title had perfected title to the suit property by continuous user for over 30 years.

The appellate Court has rejected the contention that Government is a necessary party, as without force. When the Government has not been impleaded as a party, any judgment rendered by this Court will not be binding on them.

I see no reason to differ from the findings arrived at by the appellate Court. The second appeal is accordingly dismissed, but there will be no order as to costs. No leave."

12. Therefore, the learned counsel for the Government would

submit that, if at all, now the petitioners have approached the Civil Court,

https://www.mhc.tn.gov.in/judis/ W.P. No. 27864 of 2012 and W.P. No. 2491 of 2013

where, they filed a Civil Suit seeking for a declaratory decree declaring

the title over the property in question to and in favour of the petitioners

that itself shows that, the title has not been so far declared in favour of

the petitioners in respect of the subject land.

13. He would further submit that, in the observations made in Point

No.7 in the impugned order it has been stated by the first respondent that,

once the Civil Court has come to a conclusion by giving a judgment and

decree in the Suit in O.S. No. 155 of 2012 filed by the petitioners before

the Sub-Court, Virudhachalam, depending upon the decision to be made

by the Civil Court, a final decision can be taken by the Revenue

Authorities.

14. Therefore, the issue has not been concluded and it has been

kept pending. Therefore, the petitioners cannot take any advantage of the

said findings at Point No.7 of the impugned order and in this regard, it is

for the petitioners to establish their rights before the Civil Court and get a

declaration with regard to the title of the property. Unless and until, such

https://www.mhc.tn.gov.in/judis/ W.P. No. 27864 of 2012 and W.P. No. 2491 of 2013

a declaration by way of declaratory decree to be made by the Civil Court

is obtained in the Suit already been filed by the petitioners, the

petitioners cannot have shelter by citing the earlier proceedings

concluded with the Second Appeal proceedings in the year 1967 as well

as any other proceedings including the resolution passed by the

Panchayat Union of Thittakudi. Therefore, the learned counsel for the

Government would submit that, the said findings given by the first and

second respondents in the impugned order are sustainable and justifiable.

Hence, both the orders do not require any interference from this Court, he

contended.

15. I have considered the said submissions made by the learned

counsel appearing for the parties and have perused the materials placed

before this Court.

16. There is no much dispute with regard to the factors that has

been narrated in the aforesaid paragraphs. All these factors have been

taken out or culled out from various proceedings that are filed before this

Court for perusal.

https://www.mhc.tn.gov.in/judis/ W.P. No. 27864 of 2012 and W.P. No. 2491 of 2013

17. As of now, it is an admitted fact that, the petitioners or their

predecessors have been in continuous possession and enjoyment of the

property in question for several decades. If the possessory rights are

traced from 1925 or 1932, it closely comes near about 8 to 9 decades.

18. Be that as it may, one round of litigation up to Second Appeal

was over in the year 1967. As has been rightly pointed out by the learned

counsel for the Government, this Court has observed in the said order

dated 20.07.1967 that, the stand of the Panchayat Union before this Court

was that, the suit property forms part of Thirukkulam poramboke.

19. If it is a Thirukkulam poramboke, from 1925 whether the

Thirukkulam poramboke had been given for any possessory rights to any

of the predecessors of the petitioners and in that case, all these decades,

whether the land in question, even though initially claimed to be the

Thirukkulam poramboke, has been continuously in that status or the said

status has been changed by the Revenue Authorities at any point of time

can be gone into only by the Civil Court after appreciating the evidences

in this regard.

https://www.mhc.tn.gov.in/judis/ W.P. No. 27864 of 2012 and W.P. No. 2491 of 2013

20. However, the fact remains that, the petitioners are in

possession and enjoyment of the property for several decades and

wherein, after the resolution passed by the Panchayat Union concerned,

subsequently, the petitioners seem to have obtained planning permission

from the concerned authorities and constructed the building. Therefore,

at this juncture, without getting a finality in Civil Suit in O.S. No. 155 of

2012, no coercive or persuasive action can be taken either by the

Revenue Authorities, i.e., Government or by the Temple Authorities. The

reason being that, in the Suit in O.S. No. 155 of 2012 filed by the

petitioners, both the Government represented by the District Collector

concerned as well as the Temple Authorities have been arrayed as

parties. Therefore, in the Suit, both the Government as well as the

Temple Authorities can let in their evidences in support of their cases

with regard to the property in question and ultimately, it is for the Civil

Court, i.e., Court, where, the said Suit is pending, to take a decision and

to give a judgment and decree.

https://www.mhc.tn.gov.in/judis/ W.P. No. 27864 of 2012 and W.P. No. 2491 of 2013

21. Once the judgment and decree is passed in the suit filed by the

petitioners, as rightly observed by the first respondent in paragraph No.7

of the impugned order, the final decision can be taken as to the nature of

the land and further action can be taken against the petitioners if any

need arise in future.

22. However, at this juncture, till a final decision comes from the

Civil Court as referred to above, no further coercive or persuasive action

can be taken either by the Revenue Authorities or by the Temple

Authorities and therefore, this Court feels that, a direction can be given at

this stage to the respondents not to take any coercive action or persuasive

action or follow up action pursuant to the impugned proceedings issued

by the first and second respondents till a final decision is taken in the

Suit in O.S. No. 155 of 2012 filed by the petitioners pending before the

Sub-Court, Virudhachalam.

23.Accordingly, there shall be a direction to the respondents not to

take any coercive or persuasive or follow up action pursuant to the

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impugned orders of respondents 1 and 2 till a judgment and decree is

passed by the Civil Court in O.S.No.155 of 2012 on the file of the Sub

Court, Virudhachalam.

24. It is made clear that, once the Sub-Court takes a view and

passes judgment and decree, it is natural that, both the parties would

abide by the said decision to be made by the Civil Court. Accordingly,

the remedies available for both parties can be worked out in the manner

known to law.

25. With these observations and directions, these Writ Petitions are

disposed of. However, there shall be no order as to costs. Consequently,

connected Miscellaneous Petitions are closed.

30.06.2021

Index: Yes/No

Speaking Order: Yes/No

vji Note: Issue order copy by 12.07.2021.

https://www.mhc.tn.gov.in/judis/ W.P. No. 27864 of 2012 and W.P. No. 2491 of 2013

To

1. The District Revenue Officer, Cuddalore, Cuddalore District.

2. The Revenue Divisional Officer, Virudhachalam, Cuddalore District.

3. The Executive Officer, Arulmigu Vaidyanatha Swamy Thirukovil, Thittakudi, Cuddalore District.

4. The Joint Commissioner, Hindu Religious and Charitable Endowment Board, Villupuram, Villupuram District.

5. The Thasildar, Thittakudi, Cuddalore District.

https://www.mhc.tn.gov.in/judis/ W.P. No. 27864 of 2012 and W.P. No. 2491 of 2013

R. SURESH KUMAR, J.

vji

W.P. No. 27864 of 2012 and W.P. No. 2491 of 2013 and W.M.P. No. 1 of 2012 and W.M.P. Nos.1, 1 and 2 of 2013

30.06.2021

https://www.mhc.tn.gov.in/judis/