Madras High Court
Ramasamy (Died) vs The Government Of Tamil Nadu on 14 October, 2022
S.A.No.560 of 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 14.10.2022
CORAM : JUSTICE N.SESHASAYEE
S.A.No.560 of 2003
1.Ramasamy (Died)
2.Alagusundari (Died) ... Appellants 1 & 2/
Appellants 1 & 3/Plaintiffs 1 & 3
3.K.R.Subaiah
4.R.M.Vairathal
5.R.M.Balraj (Died)
6.R.M.Meenal
7.R.M.Arjunan
8.R.M.Balagan ... Appellants 3 to 8
[Appellants 3 to 8 - brought on record as LR's of the
deceased 1st appellant vide order dated 19.01.2015 made
in M.P(MD).No.3 of 2015 in S.A.No.560 of 2003]
9.Amsavalli
10.Anandhavalli
11.Palanimuthu ... Appellants 9 to 11
[Appellants 9 to 11 – brought on record as LRs of the
deceased 2nd appellant vide order dated 14.10.2022 made
in C.M.P.(MD) No.6601 of 2022 in S.A.No.560 of 2003]
Vs
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1.The Government of Tamil Nadu,
Through District Collector,
Sivagangai District.
2.Dhanabalan
3.Servai ... Respondents 1 to 3/
Respondents 1 to 3/Defendants 1 to 3
4.K.R.Subbiah ... 4th Respondent/2nd Appellant/
2nd Plaintiff
5.Arumugam
6.Sonaimuthu ... Respondents 5 & 6
[R5 and R6 - brought on record as LR's of the deceased 5th
appellant vide order dated 01.04.2022 made in
C.M.P(MD).Nos.210 to 212 of 2022 in S.A.No.560 of 2003]
Prayer : Appeal filed under Section 100 Civil Procedure Code to set aside
the judgment and decree dated 22.11.2001 made in A.S.No.145 of 1999 on
the file of the Subordinate Court, Sivagangai, reversing the judgment and
decree dated 23.08.1999 made in O.S.No.259 of 1995 on the file of the
District Munsif Court, Tirupathur and partly allowing the suit in respect of
Item Nos.1 and 3 of the suit properties in O.S.No.259 of 1995.
For Appellants : Mr.A.L.Vijey Devraj
for Appellants 3 & 6 to 8
For Respondents : Mrs.K.Christy Theboral
Additional Govt. Pleader (CS) for R1
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: Mr.V.S.Rishkesh for R2
: No appearance for R3, R5 & R6
: R4 – Given up
JUDGMENT
1.1. Plaintiffs 1 and 3 in O.S.No.259 of 1995 on the file of the District
Munsif Court, Tiruppathur, are the appellants herein.
1.2. There are three items of properties and each of the plaintiffs claim title
to each one of these properties. They have laid the suit for declaration of
their title and also for prohibitory injunction. The suit came to be dismissed
entirely by the trial Court and aggrieved by the same, the plaintiffs have
moved the first appellate Court in A.S.No.145 of 1999. Before the first
appellate Court, they were partially successful. In that, a decree for 2 nd Item
of property which concerns the second plaintiff was granted and the suit was
dismissed as regards Item Nos.1 and 3, which respectively pertain to the
first and third plaintiffs. Hence, this second appeal at the instance of
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S.A.No.560 of 2003
plaintiffs 1 and 3. For narrative convenience, parties would be referred to by
their rank before the trial Court.
2.1. The brief facts are that:
➢ The 1st Item of property is stated to be in Survey No.216/3D and is
stated to have an extent of about 2 acres.
➢ The 3rd Item of property is in Survey No.216/1 which is said to
measure about 1.24 acres.
2.2. The case of the plaintiffs is that:
➢ The 1st Item of property originally was assigned to certain Narayanan,
on whose demise, the property devolved on his son Arumugam and
that on 18.02.1992, under Ext.A3, this property was purchased by the
first plaintiff. Ever since, he is in possession and enjoyment of the
property.
➢ The third plaintiff is the daughter-in-law of the first plaintiff. This
property along with the 2nd item of property was in continuous and
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S.A.No.560 of 2003
uninterrupted possession of the first plaintiff's family from time
immemorial, that during settlement, their names were omitted to be
recorded as registered owners of the property, that due to their
illiteracy, they did not know about the same at the relevant time, that
some time prior to 1986, they realised it and approached the
Authorities who had issued patta for Items Nos.II and III to plaintiffs
2 and 3 (of Item Nos.2 and 3, the suit is already decreed as regards
Item No.2). While so, the authorities of the first defendant-State
alleged to have acted on the instigation of defendants 2 and 3 and are
stated to have force-entered the property and caused damage to the
fencing. They have also cut and removed 19 neem trees.
It is in these circumstances, after issuing the suit notice they have laid the
suit.
3.1. In the written statement filed by the first defendant, it is alleged that in
Survey Nos.216/1 (Item-III), 216/2 and 216/3D (Item-I), S.No.216/3D had
been classified as dry land and that the whole of Survey No.216/1 was
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S.A.No.560 of 2003
jointly assigned to one Vadugayya Servai, Narayanan, Sethu Ramayya and
Muthaiah, that on the demise of Narayanan, the property was inherited by
his son Arumugam and the sale deed obtained by the first plaintiff under
Ext.A3 is invalid, inasmuch as he has some portion of the properties in
Survey No.216/1 as registered owner. This apart, the property in Survey
No.216/3D was not cultivated and to that extent, the plaintiffs have
breached the terms of assignment and hence, the assignment originally made
was cancelled.
3.2. Defendants 2 and 3 would contend that the suit properties are grazing
lands for the cattle in the village and that plaintiffs 1 to 3 have put up a
fencing obstructing the rights of the villagers.
4.1. The dispute went to trial and before the trial Court, the second plaintiff
examined himself as P.W.1 and he also examined two other witnesses as
P.W.2 and P.W.3. The plaintiffs have produced Ext.A1 to Ext.A21. For the
defendants, the Village Administrative Officer concerned was examined as
D.W.1 and the second defendant examined himself as D.W.2. The first
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defendant had produced Ext.B.1 to Ext.B.7. This apart, the trial Court had
appointed a Commissioner, whose reports were taken on record as Ext.C.1
to Ext.C.5 of them Exts.C.3 to C.5 are photographs.
4.2. On appreciating the evidence before it, the trial Court thought it fit to
dismiss the entire suit. The trial Court had relied on Ext.B.1 and Ext.B.2
which respectively relate to the cancellation of patta granted to the third
plaintiff (as concerning the 3rd Item of property) and the first plaintiff
(relating to Item-I property). In particular, the trial Court found that the
patta issued as concerning 1st Item is stated to have been cancelled even
prior to Ext.A.3. It has also relied on Ext.B.6, proceedings of the District
Collector, Sivagangai dated 31.08.1993 in which it is recorded that the
assignment pertaining to S.No.216 had already been cancelled by the Sub
Collector even prior to the date of the said proceedings, and that this
property in S.No.216 had already been notified in the register intended for
notifying the lands which cannot be assigned.
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5. The matter was taken to the first appellate Court and as already indicated,
the first appellate Court though granted a decree vis-a-vis Item-II property, it
dismissed the suit as concerning Items-I and III. Hence, the second appeal
at the instance of plaintiffs 1 and 3.
6. The appeal was admitted for considering the following substantial
question of law:
“Whether the lower appellate Court is right in denying the
relief of declaration in respect of item 3 of the suit properties
in favour of third plaintiff/second appellant on the ground
that there was no pleading by the 3rd plaintiff/second
appellant to the effect that item 3 of the suit properties were
brought for cultivation as laid down under Ex.A.2 forgetting
the fact that 3rd plaintiff pleaded in para 5 of the plaint that
plaintiffs were cultivating the suit properties continuously?”
7. Heard the learned counsel for the appellants.
8. Vide Ext.B.1, proceedings of the Sub-Collector dated 07.10.1992, the
assignment made to the third plaintiff as concerning the property in S.No.
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216/1 was cancelled on the ground that she is found to possess 1.27.5
hectares in another village and that since she possesses land of her own, she
is not entitled for assignment of land. To prove that she possessed such
land, Ext.B.7-sale deed executed by the third plaintiff in favour of a stranger
as concerning the property that has owned in her own right was also
produced. It is not the case of the plaintiffs that the terms of assignment do
not provide that one who possesses lands would not be entitled for
assignment. Nor it is challenged that the third plaintiff never possessed any
properties of her own. After all, Ext.B.7 would be believed even if she were
to dispute it. Therefore, this Court does not find any merit to interfere with
the finding of the first appellate Court vis-a-vis Item-III.
9. Turning to S.No.216/3D, Ext.B.2 states that the patta to this property has
been cancelled and it also refers to certain application filed by the second
defendant herein before the District Collector for allotting this land as
grazing land. It says that since the property was not under cultivation for
three years by the original assignee, viz., Vadugayya Servai, and three
others, which includes the first plaintiff's vendor's father Narayanan, the
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said assignment was cancelled. Ext.B.2 is dated 08.10.1992 whereas, the
plaintiffs had filed Ext.A.17-Adangal for fasli 1401 (corresponding to
1991-1992) which shows it is under cultivation. This Adangal says that the
crops are dry (possibly due to drought). This implies that an attempt indeed
was made to cultivate the land, but possibly due to drought in the region the
harvest was not made, which is no fault of the assignee. Secondly, Ext.B.2
says that the cancellation was made only on the receipt of a report from a
lower rank official and given the fact disclosed by Ext.A.17-Adangal, it
becomes necessary to hear her before the patta is cancelled. And going by
the written statement, it is not the case of the State that the first plaintiff
possessed any lands of his own. In these circumstances, this Court
considers it necessary that some more investigation on facts is necessary to
ascertain if the cancellation of patta as regards Item-I can be justified by the
defendants.
10. In fine, this Second Appeal is partially allowed, and the matter is
remanded back to the Sub Court, Sivagangai, only for enabling the first
defendant to justify cancellation of patta vide Ext.B.2 or any other
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document prior to that in the face of Ext.A.17. Both sides are required to
appear before the Sub Judge, Sivagangai, on 04.11.2022. No costs.
14.10.2022
Internet:Yes
Index:Yes/No
Note: Issue order copy on 19.10.2022.
abr
To
1.The District Munsif, Tiruppathur.
2.The Sub Judge, Sivagangai.
3.The District Collector,
Sivagangai District.
4.The Section Officer, VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.No.560 of 2003
N.SESHASAYEE, J.
abr
S.A.No.560 of 2003
14.10.2022
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