Madras High Court
Nachimuthu Nagar Kudiyiruppor ... vs Pradhan Babu on 24 January, 2022
S.A.No.794 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :: 24-01-2022
CORAM
THE HONOURABLE MRS.JUSTICE S. KANNAMMAL
S.A.No.794 of 2019
1.Nachimuthu Nagar Kudiyiruppor Nala Sangam,
Koorainadu, Mayiladuthurai,
rep.by its President Karthikeyan.
2.Nachimuthu Nagar Kudiyiruppor Nala Sangam,
Koorainadu, Mayiladuthurai,
rep.by its Secretary Rabi Ahamed. ... Appellants
-vs-
1.Pradhan Babu
2.Surendirababu
3.Subramanian
4.Pazhanivel
5.Renganayaki
6.Chandira
7.Selvaganapathy
8.Savithri
9.Hemamalini
10.Muthukumar ... Respondents
Second Appeal under Section 100 of the Code of Civil Procedure
against the judgment and decree, dated 25.04.2019, passed in A.S.No.71 of
2017 on the file of Principal Sub-Court, Mayiladuthurai, reversing the
1/15
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S.A.No.794 of 2019
judgment and decree, dated 13.09.2017, passed in O.S.No.265 of 2013 on
the file of Principal District Munsif Court, Mayiladuthurai.
For appellants : Mr.N.A.Nissar Ahamed
For respondents : Mr.C.Munusamy
JUDGMENT
The above Second Appeal is filed, challenging the judgment and
decree, dated 25.04.1029, passed in A.S.No.71 of 2017 on the file of the
Principal Sub-Court, Mayiladuthurai, reversing the judgment and decree,
dated 13.09.2017, passed in O.S.No.265 of 2013 on the file of Principal
District Munsif Court, Mayiladuthurai. The suit has been filed by the
plaintiffs for bare injunction, restraining the defendants from encroaching
and making any construction in the suit common property, and for costs.
2. Appellants are plaintiffs and respondents are defendants in the suit
before the trial Court. The case of the plaintiffs was that the plaintiff-Society
was registered with the District Registrar, Mayiladuthurai and as per the
Society's Rules, the President and the Secretary of the Society could file a
suit. The suit was one for permanent injunction against the first defendant
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S.A.No.794 of 2019
that he should not encroach and construct any building in the suit property
or interfere with the suit public property. Based on the averments in the
written statement, defendants 2 to 10 were impleaded. According to the
plaintiffs, the plaintiff society was registered with District Registrar,
Mayiladuthurai, and the President and the Secretary have a right to file the
suit. Admittedly, one Nachimuthu Mudaliar formed a layout in
T.S.No.1001, 1002, 1003/1 S2 and 1004. The lay out was approved by the
Deputy Director of Town Planning, Trichy and also Mayiladuthurai
Municipality. The suit property of 11,200 Sq.ft. was demarcated for 'public
purpose'. According to the plaintiffs, the first defendant, who has not
purchased any property or who is not a member of the plaintiff society,
started claiming right over the property, which was allotted for 'public
purpose' for the benefit of the residents of Nachimuthu Nagar.
3. The case of first defendant was that the suit was vexatious,
fabulous and untenable in law and on facts. The plaintiffs have no manner of
any right or interest or possession over the suit property at any point of time
and have no locus standi to institute the suit. This defendant has no right
over the suit property and he has been impleaded unnecessarily and an ex-
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S.A.No.794 of 2019
parte order was obtained against him. It is true that one Nachimuthu
Mudaliar formed a layout in T.S.Nos.1001, 1002, 1003/1 and 2 and 1004. It
is also true that the layout was approved by the Deputy Director of Town
Planning, Trichy, and also Mayiladuthurai Municipality. The suit property,
measuring 11,200 Sq ft., was demarcated for “public purpose”. The
allegation is that it was demarcated for the benefit of the residents of
Nachimuthu Nagar is false. The title of the property earmarked for “public
purpose” continues with the owner. The word “public purpose” means that
the property can be utilized for dispensary, bus stand, post office, police
station, school, Kalyana mandabam, cinema theatre etc. or for any other
similar nature. Any department or private entrepreneurs can purchase the
property earmarked for “public purpose” from the owner and put the
property to such use. If six years had elapsed and no one came forward to
purchase the property for such purpose, then, automatically, demarcation for
“public purpose” lapses and the owner is free to put it to any other use. The
owner should obtain necessary permission from the concerned authorities.
The layout was approved originally in 1978 and later revised and approved
in 1981. No one came forward to purchase the suit property for any of the
aforesaid purposes. In the meantime, Nachimuthu Mudaliar died “intestate”
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S.A.No.794 of 2019
on 29.04.2004. The title of the suit property devolved upon the heirs and
they are in possession and enjoyment of the property. They have dealt with
the property as their own and have been regularly paying the tax therefor to
the municipality. All the heirs of Nachimuthu Mudaliar conveyed 11,200 Sq
ft. for valid consideration in favour of one Mrs.Chandra,
Mr.Selvaganapathy, Mrs.Savithri, Mrs.Hema Malini and Mr.Muthukumar
on 20.04.2009 under a registered sale deed. The father Mr.Palanivelu and
mother Mrs.Ranganayagi of this defendant obtained 6,145 Sq. ft. out of
11,200 Sq. ft. on the southern side by means of a duly registered exchange
deed from the aforesaid persons on 27.03.2013. The brother of this
defendant Mr.Surendar Babu and father in law of this defendant
Mr.Subramaniam purchased the remaining 5,055 Sq.ft on the northern side
under a registered sale deed on 27.03.2013. They are the owners of the
property and they are in possession of the same. They also paid the vacant
land tax due to Municipality. The suit is bad for non-joinder of the above
necessary parties to the suit. On 13.10.2013, the father of this defendant
removed the old bamboo fence and put up a boobed wire fence with stone
posts. At the instigation and wrong information of the plaintiffs, police and
Municipality officials rushed to the spot. Upon perusing the documents, they
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S.A.No.794 of 2019
went away, by saying that it was a mistake. The father of this defendant
completed the work of fencing and the suit property has all along been in
possession and enjoyment of the relatives of this defendant and their
predecessors are in title. The plaintiff has produced the 1978 layout plan and
not the revised layout plan of 1981. The encumbrance certificate is obtained
by impersonation and fraud, suppressing the many entries in the
encumbrance certificate. The plaintiffs have no manner of any right
whatsoever over the suit property at any point of time and were never in
possession and enjoyment of the same. The plaintiffs have not come forward
with clean hands and are not entitled to the relief of injunction, as prayed
for.
4. The case of tenth defendant in his written statement is that the
layout was approved originally in 1978 and later revised and approved in
1981. The plaintiffs society was registered with fabricated documents only
for the purpose of the suit for unlawful gain. There is no such society.
Plaintiffs have no right to file the suit. Defendants 6 to 10 purchased the suit
property from the legal heirs of Late Nachimuthu Mudaliar on 20.04.2009
through a registered sale deed. Defendants 6 to 10 gave 6145 sq.feet to D4
and D5 on 23.3.2013 by way of registered exchange deed. An extent of
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S.A.No.794 of 2019
5055 sq.feet was sold to D2 and D3 on 27.3.2013 through a registered sale
deed. D2 to D5 are the absolute owner of the suit property. Ex.B.35 is the
approval lay out pertaining to Nachimuthu Nagar. In that, a place was
allotted for 'public purpose'. According to the defendants, when a property
allotted for 'public purpose' was not utilized for the purpose it was allotted
within 3 years, the person, who formed the 'Nagar', got every right to sell
away the property. But, the owner should obtain necessary permission from
the concerned authority. Therefore, the suit was liable to be dismissed.
5. The trial Court discussed the above points in detail and held that
the defendants have not produced any document of necessary permission by
the owner from the Joint Director. The trial Court also held that suit filed by
the plaintiffs viz., President and Secretary is maintainable. The trial Court
has further held that there is no need for the plaintiffs to seek for declaration,
as alleged by the defendants. The trial Court has also, at para 17 of the
judgment, observed that the said Nachimuthu Mudaliar formed the
Natchimuthu Nagar during 1978 and got the revised approval in the year
1981. He died in the year 2004 and if he had any intention to change the
characteristic of the suit property, which was allotted for 'public purpose',
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S.A.No.794 of 2019
he would have taken steps therefor. But, he did not do so. The trial Court,
while discussing about the sale deed Ex.B13, dated 20.04.2009, executed by
the legal heirs of Natchimuthu Mudaliar, observed that the defendants have
not proved the partition deed, dated 31.7.1980, mentioned in Ex.B13,
though they have chosen to file Ex.B1 to B35 in order to prove to whom the
suit property was allotted. According to the trial Judge, since the layout was
revised and approved in 1981, it was not possible to allot the suit property in
the partition in the year 1980. No explanation was also given by the
defendants therefor. The trial Court disbelieved Ex.B13, sale deed, and held
that the subsequent documents, based on Ex.B13, cannot be considered as
legal documents. As against the allowing of the suit, an appeal was filed by
the defendants before the lower appellate Court and the same was allowed,
holding that the character of suit property had changed, as no building was
constructed thereon, and that the suit was bad for non-joinder of
Mayiladuthurai Municipality. The lower appellate Court also held that the
suit is bad in the absence of prayer for declaration when appellant claimed
only their right to preserve suit property as a public place for user of general
public. Hence, this Second Appeal.
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S.A.No.794 of 2019
6. This Second Appeal was admitted on the following substantial
questions of law :
(1) Whether the judgment of the lower appellate Court
is liable to be set aside in its holding that the character of suit
property was changed as no building was constructed thereon
by relying on wrong provision of law namely Sect.2 (33) of
Tamil Nadu Town and Country Planning Act, which defines
''public building'' but not ''public place'' or ''public
purpose'' ?
(2) Whether the judgment of the lower appellate Court
is unsustainable in law in its stating that the suit is bad for
non-joinder of Mayiladuthurai Municipality, when no such
plea was raised in the written statement ?
(3) Whether the property allotted for public purpose
under approved plan can be used as a private property so as
to affect the rights of the general public without obtaining
necessary amendment or order for conversion in the
approved plan from competent authorities ?
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S.A.No.794 of 2019
(4) Whether the finding of lower appellate Court that
the suit is bad in the absence of prayer for declaration when
appellant claimed only their right to preserve suit property as
a public place for user of general public and whether
declaration prayer is necessary when appellants do not claim
any title over the suit property ?
7. I have heard the learned counsel for the parties and also gone
through the records.
8. The suit was one for permanent injunction against the defendants
not to encroach and construct any building in the suit property or interfere
with the suit public property. Admittedly, one Nachimuthu Mudaliar formed
the layout in question and it was approved by the Deputy Director of Town
Planning, Trichy, and also Mayiladuthurai Municipality. It is also not in
dispute that the the suit property of 11,200 sq. ft. was demarcated for
'public purpose'. According to the respondents/defendants, if six years had
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S.A.No.794 of 2019
elapsed and the property is not utilised for the purpose for which it was
allotted, the owner is free to put it to any other use. The layout was
originally approved in 1978 and later revised and approved in 1981. Since
Nachimuthu Mudaliar, the original owner, died intestate on 29.04.2004, all
his heirs conveyed the suit property for valid consideration in favour of third
parties, namely, the father and the mother and the brother and the father-in-
law of the first respondent/defendant, under registered deeds.
9. The specific case of the respondents/defendants is that when a
property allotted for 'public purpose' is not utilised for the purpose it was
allotted within three years, the person, who formed the layout, got every
right to sell away the property. In this connection, it is to be stated that the
defendants, in the written statement, themselves admitted that the owner
should obtain necessary permission from the authorities concerned for
conversion/retake of the property. The trial Court discussed the above point
in detail and held that the defendants have not produced any document of
necessary permission by the owner from the Joint Director. The trial Court
also held that suit filed by the plaintiffs viz., President and Secretary is
maintainable.
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S.A.No.794 of 2019
10. In the considered opinion of this Court, when the
respondents/defendants have not obtained necessary permission, as admitted
by them in the written statement, from the authorities concerned for
conversion/retake/sale of the suit property, all other contentions as to non-
seeking of declaration of title in prayer and non-joinder of necessary parties
in the suit do not fall for consideration, as they are unnecessary. In fact,
Nachimuthu Mudaliar, owner of the property, formed Natchimuthu Nagar
during the year 1978 and got the revised approval in the year 1981. He died
in the year 2004. If he had any intention to change the character of the suit
property, which was allotted for 'public purpose', he would have taken steps
therefor during his lifetime. But, he did not do so. The trial Court, while
discussing the sale deed Ex.B13, dated 20.04.2009, executed by the legal
heirs of Natchimuthu Mudaliar, has rightly observed that the
respondents/defendants have not proved the partition deed, dated 31.7.1980,
mentioned in Ex.B13, though they have chosen to file Exs.B1 to B35 in
order to prove to whom the suit property was allotted. Since the layout was
revised and approved in the year 1981, it was not feasible to allot the suit
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S.A.No.794 of 2019
property in the partition in the year 1980, which was much earlier to the
approval, for which, no explanation was also given by the respondents. The
trial Court disbelieved Ex.B13, sale deed, holding that the subsequent
documents, based on Ex.B13, cannot be considered as legal documents,
which, in the view of this Court, cannot be faulted with. However, the lower
appellate Court erred in reversing the well reasoned judgment of the trial
Court, holding that the character of suit property has changed, as no
building has been constructed thereon, and that the suit was bad for non-
joinder of necessary parties and in the absence of prayer for declaration.
11. Second Appeal is, accordingly, allowed, setting aside the
judgment and decree, dated 25.04.2019, passed in A.S.No.71 of 2017 on
the file of Principal Sub-Court, Mayiladuthurai, and confirming the
judgment and decree, dated 13.09.2017, passed in O.S.No.265 of 2013 on
the file of Principal District Munsif Court, Mayiladuthurai. No costs.
Consequently, the connected C.M.P.No.15988 of 2019 is closed.
24-01-2022
Index : Yes
Internet : Yes
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S.A.No.794 of 2019
Speaking Order
dixit
To
1.Principal Sub-Court, Mayiladuthurai.
2.Principal District Munsif Court, Mayiladuthurai.
3.V.R.Section, High Court, Madras.
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S.A.No.794 of 2019
S. KANNAMMAL, J,
dixit
S.A.No.794 of 2019
24-01-2022
https://www.mhc.tn.gov.in/judis
