Madras High Court
Perumal vs The Revenue Divisional Officer on 2 March, 2022
S.A.No.55 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 02.03.2022
Coram:
THE HONOURABLE Mr.JUSTICE N.ANAND VEKATESH
Second Appeal No.55 of 2014
and
MP.Nos.1 and 2 of 2014
1.Perumal
2.Ponnayal ..Appellants/Respondents/Plaintiffs
.Vs.
The Revenue Divisional Officer
Revenue Divisional Office
Gobichettipalayam
Erode District. ..Respondent/Appellant/ Defendant
Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure against
the judgment and decree dated 19.3.2013 passed in A.S.No.47 of 2009, on the file of
the Subordinate Judge, Gobichettipalayam, Erode District reversing the decree and
judgment dated 23.4.2009 passed in O.S.No.373 of 2008 by the District Munsif Court,
Gobichettipalayam, Erode District.
For Appellants : Mr.Titus Enock
for Mr.I..C.Vasudevan
For Respondent : Mr. E.Inthumathi
Government Advocate
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S.A.No.55 of 2014
JUDGMENT
The plaintiffs are the appellants in this Second Appeal.
2.The case of the plaintiffs is that the suit property was originally assigned in
favour of one Thangammal as per proceedings dated 03.11.1949. The said Thangammal
was in possession and enjoyment of the property and she through a registered Sale Deed
dated 15.09.1982 sold the property in favour of the plaintiffs. The plaintiffs thereafter
were in possession and enjoyment of the suit property and they have put up a
construction and also obtained electricity connection. The remaining portion is used for
agricultural purposes.
3.A show cause notice came to be issued to the plaintiffs by the defendant calling
upon the plaintiffs as to why the assignment should not be cancelled due to violation of
the terms of the assignment. Pursuant to the show cause notice, the defendant through
proceedings dated 08.12.2008, cancelled the assignment patta. Aggrieved by the same,
the plaintiffs filed the suit seeking for a declaration to declare the proceedings of the
defendant dated 08.12.2008 as null and void and for a permanent injunction restraining
the defendant from interfering with the possession and enjoyment of the property.
4.The defendant filed a written statement and took a specific stand that as per the
assignment, the assignee is prohibited from alienating the property within 30 years from
the date of assignment and that apart, even if the property is alienated, it can only be
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S.A.No.55 of 2014
done with the prior permission and that too only in favour of a person belonging to the
deprived community. Since these conditions were violated, a show cause notice was
given and the assignment was cancelled through proceedings dated 08.12.2008. The
defendant has therefore submitted that the plaintiffs do not have any right or title over
the property and had sought for the dismissal of the suit.
5.The trial Court based on the oral and documentary evidence and after
considering the facts and circumstances of the case, found that the proceedings dated
08.12.2008 issued by the defendant was illegal and consequently, decreed the suit
through a judgment and decree dated 23.04.2009. Aggrieved by the same, the defendant
filed an appeal before the Sub Court, Gobichettipalayam in A.S.No.47 of 2009. This
appeal was allowed through a judgment and decree dated 19.03.2013 and the judgment
and decree of the trial Court was reversed. Aggrieved by the same, the plaintiffs have
approached this Court and filed the present Second Appeal.
6. This Court framed the following substantial question of law.
a. Whether the defendant had the power and jurisdiction to pass the
cancellation order dated 08.12.2008 and resume the lands under Revenue Standing
Order No.15 ?
7.Heard Mr.Titus Enock, learned counsel for the appellants and Mr.E.Indumathi,
learned Government Advocate for the respondent.
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S.A.No.55 of 2014
8.This Court has also carefully considered the materials placed on record and the
findings of both the Courts below.
9.There is no dispute with regard to the fact that the suit property was originally
assigned in favour of one Thangammal through proceedings dated 03.11.1949.
Unfortunately, both the Courts below did not have the advantage of going through these
proceedings since both the sides did not file the proceedings. The case of the defendant
is that the assignor provided for certain terms and conditions insofar as alienation of the
assigned lands is concerned. According to the defendant, the assigned land cannot be
alienated within a period of 30 years from the date of assignment. That apart, even if
any alienation is attempted to be made, the assignee must get the prior approval of the
Government and the alienation can be made only to a person belonging to the deprived
community. According to the defendant, since these conditions have not been satisfied
by the above said Thangammal, the alienation made in favour of the plaintiffs by virtue of
a registered Sale Deed dated 15.09.1982 was found to be illegal and not binding on the
authorities. Hence, a show cause notice was issued both to the original assignee as well
as the plaintiffs and they did not respond for the same. Considering the violation of the
terms and conditions of assignment, the assignment itself was cancelled through
proceedings of the defendant dated 08.12.2008 and the lands were directed to be
resumed and appropriate entries were directed to be made in the revenue records.
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S.A.No.55 of 2014
10.The trial Court found that the defendant did not produce the original
assignment issued on 03.11.1949 and took adverse inference against the defendant.
The trial Court also took into consideration the fact that the sale that was made in favour
of the plaintiffs was recognized and their names were also entered in the adangal and
after nearly 26 years, action was initiated for cancellation of the assignment. The trial
Court held that the proceedings initiated by the respondents was illegal and hence
interfered with the impugned proceedings dated 08.12.2008 and the show cause notice
dated 17.11.2008 and decreed the suit as prayed for.
11.The Appellate Court reversed the judgment and decree of the trial Court. While
doing so, the Appellate Court found that the property cannot be alienated to any other
person other than the person belonging to the scheduled caste community. This finding
was rendered by the Appellate Court only based on the stand taken by the defendant and
the availability of such a precondition was not ascertained since the original proceedings
dated 03.11.1949 was never produced before the Court. The Appellate Court took
adverse inference against the plaintiffs for not producing the original assignment patta.
Consequently, the Appellate Court held the sale in favour of the plaintiffs as null and void.
12.The lower Appellate Court while reversing the findings of the trial Court, did not
discuss the finding rendered by the trial Court and assign appropriate reasons as to why
it is disagreeing with the findings of the trial Court. Assigning of such reasons as
mandatory under Order XLI Rule 31 of CPC. The Hon'ble Supreme Court after taking into
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S.A.No.55 of 2014
consideration of the earlier judgments, rendered a recent judgment in K.Karuppuraj .Vs.
M.Ganesan reported in 2022 1 CTC 674 and categorically held that if the trial Court
judgment is sought to be reversed then the Appellate Court must spell out the reason
and discuss the point as to why it is disagreeing with the finding of the trial Court. This
mandate has not been fulfilled by the lower Appellant Court in this case. The judgment
of the lower Appellate Court deserves to be interfered on this ground alone.
13.In the present case, there is yet another vital fact that goes to the very root of
the matter. This is with regard to the very jurisdiction of the defendant to initiate
proceedings and resume the lands that were assigned in favour of Thangammal in the
year 1949. It is clear from the proceedings dated 08.12.2008 that the proceedings have
been initiated under Revenue Standing Order 15. For proper appreciation, the relevant
Revenue Standing Order is extracted hereunder:
Revenue Standing Order 15:-
“(xi) Resuming Authority: The authority competent to resume or
re-enter on lands for breach of any condition of assignment shall be as
follows:-
(a) The Tahsildar, if the land is non-available;
(b) The Revenue Divisional Officer if the land is valuable; and (C) The
Commissioner of Land Administration/Government, for the lands assigned
prior to 14.05.1973.
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S.A.No.55 of 2014
G.O.Ms.No.2555, Rev.dated 14.05.1973.
Govt.Lr.No.36059/F1/88-2, Rev.dated 15.07.1988 W.P.No.906/70,
dated 17.06.1988 C.L.A.'s Proc.No.E3/8199/87, dated 01.03.1989.
Govt.Lr.36741/LD3-1/97-1, Rev.dated 15.07.1977”.
14.It is clear from the above Revenue Standing Order that the lands that are
assigned prior to 14.05.1973 can be cancelled and resumed only by the Commissioner of
land administration. This position has been confirmed by an order passed by this Court in
W.P.No.29808 of 2013 dated 04.04.2018.
15.In the present case, admittedly the assignment was made in the year 1949 and
the authority, who had initiated proceedings for resumption of lands was the Revenue
Divisional Officer. The said authority, who is the defendant in this suit, lacked jurisdiction
to initiate such proceedings. On this ground alone, the proceedings of the defendant is
liable to be interfered. The substantial question of law is answered accordingly.
16.In view of the above discussion, the judgment and decree of the Appellate
Court made in A.S.No.47 of 2009 dated 19.03.2013 is hereby set aside and the judgment
and decree of the trial Court in O.S.No.373 of 2008 dated 23.04.2009 is hereby upheld.
Accordingly, the suit filed by the appellants will stand decreed. It is made clear that if the
appropriate authority, who has the power and jurisdiction finds that alienation made in
favour of the plaintiffs is in violation of assignment in condition, the appropriate authority
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S.A.No.55 of 2014
shall specifically states the violation with reference to the original assignment and provide
sufficient opportunity to the plaintiffs and thereafter take action in the manner known to
law. The judgment passed in this Second Appeal will not stand in the way of appropriate
authority to initiate such proceedings.
17.In the result, the Second Appeal is allowed. Considering the facts and
circumstances of the case, there shall be no order as to costs. Consequently, connected
miscellaneous petitions are closed.
02.03.2022
Internet: Yes
Index: Yes/No
KP
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S.A.No.55 of 2014
To
1.Subordinate Judge, Gobichettipalayam,
Erode District.
2.District Munsif, Gobichettipalayam
Erode District.
3.The Section Officer
V.R.Section, High Court, Madras.
N.ANAND VENKATESH,J.
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S.A.No.55 of 2014
KP
Second Appeal No.55 of 2014
02.03.2022
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