Madras High Court
Prabha vs Ayyavu on 9 March, 2022
S.A.(MD)No.437 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.03.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.437 of 2010
and
C.M.P.(MD)No.10065 of 2021
1.Prabha
2.P.Devaraj
3.Gnana Bakkiam
4.The District Collector,
Kanyakumari District,
At Nagercoil.
5.The Commissioner,
Killiyoor Panchayat Union,
Office of Panchayat Union,
Tholaiyavattai Post,
Killyoor,
Kanyakumari District.
6.The Superintendent of Police,
Kanyakumari District,
At Nagercoil.
7.The Inspector of Police,
Karungal Police Station,
Karungal Post,
Kanyakumari District. ... Appellants
(Respondents 2 to 5 are suo motu transposed as
appellants 4 to 7 vide order dated 04.03.2022
made in S.A.(MD)No.437 of 2010 by GRSJ)
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S.A.(MD)No.437 of 2010
Vs.
Ayyavu ... Respondent
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree dated 14.09.2007 made in A.S.No.32 of 2004
on the file of the Sub Court, Kuzhithurai, reversing the judgment and decree
dated 29.04.2004 made in O.S.No.379 of 1998 on the file of the Principal
District Munsif Court, Kuzhithurai.
For Appellants : Mr.N.Muthu Vijayan,
Special Government Pleader.
For Respondent : Mr.P.Thirumahilmaren
JUDGEMENT
The defendants in O.S.No.379 of 1998 on the file of the Principal District
Munsif Court, Kuzhithurai are the appellants in the second appeal. The
respondent herein namely, Ayyavu filed the said suit seeking the relief of
injunction and for removal of construction put up by the local panchayat. The
case of the plaintiff is that the suit properties comprising two items were
purchased by him from one Mariammal under a sale deed dated 23.08.1988
(Ex.A1). The suit items are comprised in R.S.Nos.237/4 and 237/5 in Palloor
village and totally measure 21 cents of land. After getting permission from the
local body, the plaintiff put up a residential building in R.S.No.237/4, which
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S.A.(MD)No.437 of 2010
measures 16 cents of land. Even when the sale deed dated 23.08.1988 was
executed in favour of the plaintiff, there was a well on the south-east portion of
the plaintiff's property. The local body put up a compound wall some time in
August 1988 to separate the said well from the plaintiff's house. They also
attempted to do maintenance works on the well. That was resisted by the
plaintiff, who also filed the said suit with the aforesaid reliefs.
2.The first defendant was none other the then panchayat president.
Written statement was filed controverting the plaint averments. The District
Collector and other official respondents were subsequently impleaded as
defendants 4 to 7. The panchayat union commissioner/fifth defendant also filed
written statement disputing the plaintiff's claim. Based on the divergent
pleadings, the trial Court framed the necessary issues.
3.The plaintiff examined himself as P.W.1 and Exs.A1 to A10 were
marked. On the side of the defendants, the first defendant examined herself as
D.W.1 and one Ramaswamy was examined as D.W.2 and Exs.B1 to B15 were
marked. An advocate commissioner was appointed and his report and plan
were marked as Exs.C1 and C2.
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S.A.(MD)No.437 of 2010
4.After consideration of the evidence on record, the trial Court by
judgment and decree dated 29.04.2004 dismissed the suit. Challenging the
same, the plaintiff filed A.S.No.32 of 2004 before the Sub Court, Kuzhithurai.
The first appellate Court by the impugned judgment and decree dated
14.09.2007 reversed the decision of the trial Court and allowed the appeal and
decreed the suit as prayed for. Challenging the same, this second appeal came
to be filed.
5.The second appeal was admitted on 08.06.2010 on the following
substantial questions of law:-
“a. Whether the learned Subordinate Judge is right in
reversing the well considered judgment and decree of the trial
Court on a fresh fact of acquisition in the absence of any
material or the test of evidence?
b. Whether the conclusion of the learned Subordinate
Judge placing reliance on a new plea is just and proper,
especially when no material particulars as to when, to what
extent and at whose holding the acquisition was made for
framing the road? and
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S.A.(MD)No.437 of 2010
c. Whether the vendor of the first respondent is not
entitled to execute a gift deed for remaining 1 ¼ cents of land
having admittedly sold 21 cents in favour of the first respondent
out of 22.250 cents?”
6.The learned Special Government Pleader appearing for the appellants
reiterated all the contentions set out in the memorandum of grounds and called
upon this Court to answer the substantial questions of law in favour of the
appellants and set aside the impugned judgment and decree and restore the
decision of the trial Court.
7.Per contra, the learned counsel for the respondent/plaintiff contended
that the impugned judgment and decree do not call for any interference.
8.I carefully considered the rival contentions and went through the
evidence on record. The case of the defendants is that the vendor of the
plaintiff namely, Mariammal had admittedly purchased 22 ¼ cents of land
comprised in R.S.Nos.237/4 and 237/5 in Palloor village. But she sold only
21 cents of of land to the plaintiff/Ayyavu. The disputed well does not fall
within the property sold to Ayyavu under Ex.A1. According to them, the
disputed well is a public well used by the members of the general public for a
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S.A.(MD)No.437 of 2010
very long time. It is also stated that Mariammal had executed a donation deed
dated 06.08.1988 (Ex.B8) in favour of local body and that it was also acted
upon. Evidence on record indicates that a sum of Rs.30,000/- was earmarked
for carrying out maintenance works and it was also spent and only thereafter,
the present suit came to be laid. According the learned Special Government
Pleader, the judgment and decree passed trial Court is well reasoned and
without any justification, the first appellate Court has interfered with the same.
9.The primary contention advanced by the learned counsel for the
respondent/plaintiff is that the donation deed said to have been executed by
Mariammal in favor of the local body cannot even be looked into. He placed
reliance on the relevant provisions of Transfer of Property Act, such as
Sections 122 and 123 to show that a gift even if in favor of the local body can
be effected only through a registered instrument and that an unregistered
document cannot convey any title. He also placed reliance on the decisions
reported in (2011) 8 MLJ 43 (SC) (Suraj Lamp & Industries Pvt. Ltd. Vs.
State of Haryana), (2013) 5 MLJ 785 (Viswalingam @ Mayavel Vs.
Balasubramanian) and AIR 2018 (SC) 3057 (Sita Ram Bhama Vs. Ramvatar
Bhama) in support of his contention. He drew my attention to the four
boundary descriptions set out in Ex.A1. He pointed out that the property lying
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S.A.(MD)No.437 of 2010
to the east of the road had been sold in favour of the plaintiff. The disputed
well also lies to the east of the road. Therefore, the well also should be taken to
have been sold to the plaintiff. His further contention is that admittedly
Mariammal had sold 21 cents of land in favour of the plaintiff. What was sold
to the plaintiff lies in R.S.Nos.237/4 and 237/5. R.S.No.237/4 measures 16
cents while R.S.No.237/5 measures 5 cents. The commissioner's report and
plan would clearly show that what was enjoyed by the plaintiff under Ex.A1
would come only to 20 ½ cents of land. What was sold to the plaintiff was 21
cents, when possession of ground indicated that the plaintiff was enjoying only
20 ½ cents, then obviously it should include the suit well also. Even if the suit
well is included in the land comprised in R.S.No.237/4 and R.S.No.237/5 it
would still come only to 20 ½ cents. If the disputed well is excluded, the total
extent of land comprised in the said two survey numbers as enjoyed by the
plaintiff would fall below 20 cents. He also drew my attention to the findings
of the first appellate Court that portions of the property belonging to
Mariammal appear to have been acquired for road purposes and that is why,
even though originally the extent of land was 22 ¼ cents, she was in a position
to sell only 21 cents in favour of the plaintiff. According to the learned counsel
for the respondent/plaintiff, the judgment of the first appellate Court is well
reasoned and it does not call for any interference.
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S.A.(MD)No.437 of 2010
10.There is no dispute that Mariammal traced her title to Ex.B1 dated
28.09.1997. Ex.B1 was executed by one Sanathanan Thampi in favour of
Mariammal. Though R.S.No.237 is also mentioned in the said document, what
was sold in favour of Mariamml are the following two items:-
“Item No.1: Comprised in old Survey No.3385/A1
measuring an extent of 15.350 cents.
Item No.2: Comprised in old Survey No.3381/A
measuring an extent of 6.900 cents.”
11.The total extent of land sold in favour of Mariammal has been
mentioned as 22 ¼ cents. Even though Mariammal had purchased 22 ¼ cents,
what was sold by her in favour the plaintiff/Ayyavu was only 21 cents. Of
course, Mariammal had given the re-survey numbers. But the fact remains that
she had retained 1 ¼ cents and had conveyed only 21 cents. There is of course
considerable force in the contention of the learned counsel for the plaintiff that
if Mariamml had retained any portion, one of the boundaries would have been
mentioned as the retained portion. Ex.A1 does not speak of any such retained
portion. It is equally true that western boundary of the property purchased by
Ayyavu is mentioned as road. It is also true that the disputed well is on the
eastern side of the road. Though these are formidable contentions advanced by
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S.A.(MD)No.437 of 2010
the learned counsel for the plaintiff, what tilts the matter in favour of the
defendants/appellants herein is the commissioner's report and plan marked as
Exs.C1 and C2. Paragraph Nos.8 and 9 of the commissioner's report are as
under:-
“8.Except the south west portion of the R.S.No.237/4 all
other boundaries of the suit property is well defined with
compound wall. The age of the compound wall is about 30 years.
In the south west portion of the R.S.No.237/4 (ie. North and
eastern of the disputed well) a new one year old compound wall
was constructed by bricks. It separates the disputed well from
the said property. The disputed well is also located with in the
R.S.No.237/4, basement is seen on the western and southern side
of the well. Neither demolished portions nor particulars are
present.
9.The well is more than 35 years old. Maintenance work
has been carried out an one monument stone was placed. From
that stone, we can understand that the maintenance work has
been carried out four years back (1998-1999)”
12.From the plan annexed to the commissioner's report one can notice
that there is a pukka compound wall that is 30 years old. While R.S.No.237/4
measures only 15 ½ cents and R.S.No.237/5 measures only 5 cents,
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S.A.(MD)No.437 of 2010
R.S.No.237/6 measures 2 ½ cents. The compound wall that is 30 years old,
which encompasses the property purchased by the plaintiff includes not only
R.S.Nos.237/4 and 237/5 but also a substantial portion of R.S.No.237/6. The
learned Special Government Pleader for the appellants would frankly state that
what lies within the compound wall obviously belongs to the plaintiff and that
no claim can be made thereon. If the entire extent of land falling within the
30 year old compound wall as noted by the advocate commissioner is taken
into account, even if the disputed well is excluded, still the total extent of land
enjoyed by the plaintiff would come to 21 cents. It is for this reason, the trial
Court chose to dismiss the suit. But I anchor my decision on yet another
ground. In the written statement filed by the defendants, the title of the
plaintiff has been strongly contested. It is true that the local body was claiming
right on the disputed well on the strength of an unregistered donation deed.
The learned counsel for the plaintiff is absolutely right in his contention that on
the strength of unregistered instrument, the local body cannot claim any title.
But in the decision relied on by the learned counsel for the plaintiff reported in
(2011) 8 MLJ 43 (SC) (Suraj Lamp & Industries Pvt. Ltd. Vs. State of
Haryana), there is an observation that if based on such unregistered documents
the local body had acted, the actions need not be disturbed. In this case, the
local body had acted on the donation deed executed by Mariammal. A sum of
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S.A.(MD)No.437 of 2010
Rs.30,000/- was expended for carrying out maintenance works. Be that as it
may, when the title of the plaintiff has been seriously challenged, the plaintiff
ought to have amended the suit prayer and sought the relief of declaration. The
Hon'ble Supreme Court reported in [2008 (6) CTC 237 (Anathula Sudhakar
Vs. P.Buchi Reddy (Dead) by LRs and Others] had held as follows:-
“Where a cloud is raised over plaintiff's title and he does not
have possession, a suit for declaration and possession, with or without
a consequential injunction, is the remedy.”
13.In this case, the plaintiff had sought the relief of mandatory injunction
for removal of the construction put up by the local body. The plaintiff had thus
himself conceded that he was not in possession of the disputed well.
Therefore, the plaintiff ought to have asked the relief of declaration and
recovery of possession in respect of the suit well. He had not done so. He
chose to continue the suit by maintaining the original prayer of permanent
injunction and mandatory injunction. In the light of the decision laid down by
the Hon'ble Supreme Court reported in 2008 (6) CTC 237 (Anathula
Sudhakar Vs. P.Buchi Reddy (Dead) by LRs and Others, such a suit was
clearly not maintainable. As rightly contended by the learned Special
Government Pleader, there is nothing on record to show that a portion of the
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S.A.(MD)No.437 of 2010
property purchased by Mariammal was acquired for road purposes. Therefore,
the substantial questions of law are answered in favour of the appellants. The
impugned judgment and decree passed by the first appellant Court is set aside
and the decision of the trial Court is restored and the second appeal is allowed.
No costs. Consequently, connected miscellaneous petition is closed.
09.03.2022
Index : Yes / No
Internet : Yes/ No
ias
To:
1.The Sub Court,
Kuzhithurai.
2.The Principal District Munsif Court,
Kuzhithurai.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.437 of 2010
G.R.SWAMINATHAN, J.
ias
S.A.(MD)No.437 of 2010
09.03.2022
https://www.mhc.tn.gov.in/judis
