Madras High Court

Mohamed Rafiq vs The Panchayat Board on 17 April, 2023

                                                                  S.A.No.578 of 2007 & M.P. No.1 of 2007



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 17.04.2023

                                                         CORAM

                                  THE HONOURABLE MRS. JUSTICE R.HEMALATHA
                                                    S.A.No.578 of 2007
                                                           and
                                                    M.P. No.1 of 2007


                     Mohamed Rafiq                                         ...Appellant
                                                           Vs.

                     The Panchayat Board
                     Thirukkalacheri
                     rep. by its President
                     Thirukkalacheri
                     Tranqubar Taluk
                     Nagapattinam District.                               ... Respondent

                     Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
                     decree and judgment dated 25.10.2006 passed in A.S. No.78 of 2006, on
                     the file of the Principal Subordinate Judge, Mayiladuthurai, reversing the
                     decree and judgment dated 28.02.2006 passed in O.S. No.141 of 2004,
                     on the file of the District Munsif Court, Sirkali.
                                   For Appellant       : Mr. A. Muthukumar
                                   For Respondent      : Dr. S. Surya
                                                         Additional Government Pleader.

                     Page 1 of 15

https://www.mhc.tn.gov.in/judis
                                                                    S.A.No.578 of 2007 & M.P. No.1 of 2007



                                                      JUDGMENT

The appellant is the plaintiff in O.S. No.141 of 2004 on the file

of the District Munsif Court, Sirkali (initially filed before the Principal

Subordinate Court, Mayiladuthurai, and numbered as O.S.No.61/2003

and subsequently transferred to the file of District Munsif Court, Sirkali).

He filed the suit for a permanent injunction restraining the defendant,

namely, the The Panchayat Board, Thirukkalacheri, represented by its

President, from interfering with his possession over the suit property

morefully described in the plaint as a land in R.S. No.133, Thoppu

Poromboke of Thirukkalacherry Village, Tranquebar Taluk,

Mayiladuthurai district, measuring 72 cents within the boundaries stated

therein.

2. For the sake of convenience, the parties are referred to as per

their ranking in the trial court and at appropriate places, their rank in the

present second appeal would also be indicated.

https://www.mhc.tn.gov.in/judis S.A.No.578 of 2007 & M.P. No.1 of 2007

3.The brief facts of the case of the plaintiff in nutshell are as

follows:

1) The suit property was originally in the possession of Thandavaraya

Pathar and Arunachala Mudaliar and they were granted 2C patta

for enjoying the trees in the property.

2) Subsequently, they conveyed their right over the same in favour of

one Fathamuthu Ammal, wife of Mohamed Abubakker Ravuthar

under two registered sale deeds dated 13.12.1943 (Ex.A1 and

Ex.A2).

3) Fathamuthu Ammal was in enjoyment of the suit property with the

trees and after her death, her daughter Mariyamul Azia was in

possession of the suit property.

4) Mariyamul Azia also died and her son Mohamed Rafiq (the

plaintiff) is in possession of the suit property.

5) During December 2002, the Panchayat Board, Thirukkalacheri

(the defendant) measured the suit property with the help of the

taluk surveyor on the ground that the house put up by the plaintiff

is on a tank belonging to the Panchayat board. However, it was

https://www.mhc.tn.gov.in/judis S.A.No.578 of 2007 & M.P. No.1 of 2007

found that the house was not on the tank.

6) There are 7 mango trees and bamboo clusters in the suit property.

7) The plaintiff's grandmother was issued B memo notice by the

Government and in such circumstances the defendant Panchayat

Board does not have any right over the suit property.

8) Since the defendant is preventing the plaintiff from enjoying the

income from the trees in the suit property and also from

constructing a house, he is constrained to file a suit for permanent

injunction.

4.The suit was resisted by the defendant on the following

grounds :

i. The suit property is a Government land and it was handed over to

the Panchayat Board, Thirukkalacheri, during the year 1954.

ii. The defendant has been enjoying the income from the trees and the

suit filed by the plaintiff is liable to be dismissed.

iii. The defendant is also taking steps to construct an overhead tank in

the suit property.

https://www.mhc.tn.gov.in/judis S.A.No.578 of 2007 & M.P. No.1 of 2007

5. On the basis of the above pleadings, the trial Court framed

the following issues :

i. "Whether the plaintiff is in possession of the suit property?

ii. Whether the plaintiff is entitled for a permanent injunction as

prayed for by him?

iii. To what relief the plaintiff is entitled?"

6. In the trial Court, the plaintiff examined himself and two

other witnesses and marked Ex.A1 to Ex.A11. On the side of the

defendant, one witness was examined and Ex.B1 and Ex.B2 were

marked. Ex.X1 and Ex.X2 were also marked through Mr. S.Sambandam

(P.W.3), Village Administrative Officer, Thirukkalacheri Village.

7. After full contest, the learned trial court Judge decreed the

suit filed by the plaintiff vide her decree and judgment dated 28.02.2006,

aggrieved over which, the defendant filed an appeal in A.S. No.78 of

2006 before the Principal Subordinate Court, Mayiladuthurai. The

learned Principal Subordinate Judge, Mayiladuthurai, after analysing the

https://www.mhc.tn.gov.in/judis S.A.No.578 of 2007 & M.P. No.1 of 2007

oral and documentary evidence adduced on both sides held that the

plaintiff has been in possession only in respect of 26 cents in Survey

No.133 of Thirukkalacheri Village, and therefore, remitted the matter

back to the trial court for appointing an Advocate Commissioner to note

down the exact area in which the plaintiff is in possession, vide his

decree and judgment dated 25.10.2006.

8. Now the present second appeal is filed by the plaintiff and

the same is admitted on the following substantial questions of law.

1) "Whether the first appellate Court was justified in placing

reliance on Ex.A3 alone in giving a finding that the plaintiff is

entitled to the relief only to an extent of 26 cents and not to the

entire extent of 72 cents?

2) Whether the first appellate court was not legally justified in

remanding the matter to the trial court ignoring the evidence

available on record for carving out the said 26 cents of land and

pass judgment accordingly?"

https://www.mhc.tn.gov.in/judis S.A.No.578 of 2007 & M.P. No.1 of 2007

9. Heard Mr. A. Muthukumar learned counsel for the appellant

and Dr. S. Surya, Additional Government Pleader for the respondent.

10. Mr. A. Muthukumar, learned counsel for the appellant

contended that the B memo notice issued in favour of Fathamuthu

Ammal during the year 1968 clearly shows that the area under the

occupation of Fathamuthu Ammal is 190 x 135 sq. ft and that the trial

court had taken this into consideration and had granted a decree in favour

of the plaintiff in respect of the entire suit property and on the other

hand, the first appellate court had held that the plaintiff is in possession

of only 26 cents of land. He therefore prayed for allowing the present

appeal.

11. Per contra Dr. S. Surya, learned Additional Government

Pleader for the respondent contended that as per Ex.B1 and Ex.B2, the

suit property was handed over to the Panchayat Board, Thirukkalacheri

Village, even during the year 1958 and that on the date of filing of the

suit, the plaintiff was not in possession of the suit property. According to

https://www.mhc.tn.gov.in/judis S.A.No.578 of 2007 & M.P. No.1 of 2007

her the panchayat board is taking steps to construct an overhead tank in

the suit property.

12. At the outset, it may be observed that the plaintiff even in

his plaint had admitted that the suit property absolutely belonged to the

Government. According to him, B memo notices were issued to his

mother Mariyamul Azia and his grand mother Fathamuthu Ammal and

that after the death of his mother he has been in possession and

enjoyment of the suit property. His another contention is that the suit

property was originally in possession of Thandavaraya Pathar and

Arunachala Mudaliar, who transferred their right in respect of the suit

property in favour of Fathamuthu Ammal during the year 1943 through

two registered sale deeds dated 13.12.1943 (Ex.A1 and Ex.A2).

13. In order to establish his possession over the suit property,

the plaintiff relied on his evidence as well as the evidence of P.W.2 and

P.W.3. He also marked Ex.A1 to Ex.A11. Out of these documents the

kist receipts Ex.A5, Ex.A6, Ex.A10 and Ex.A11 are all photostat copies.

https://www.mhc.tn.gov.in/judis S.A.No.578 of 2007 & M.P. No.1 of 2007

These documents are not useful to the case of the plaintiff since in kist

receipts survey number and extent of land would not be indicated. In

such circumstances, it is not known as to how Mr.S.Sambandam (P.W.3),

the Village Administrative Officer of Thirukkalacheri Village, has

deposed that these kists receipts pertain to the suit property without

bringing the relevant Registers. P.W.3 had brought only 'A' Register and

a copy of relevant entry of the said register was marked as Ex.X1. In

Ex.X1, Survey No.133 is shown as Government Thoppu. Ex.X2 is said to

be a copy of village Adangal extract, in which it is shown that a building

was constructed in Survey No.133 of Thirukkalacheri Village by the

plaintiff. The fasli year is not indicated in Ex.X2. Therefore, Ex.X2 is

also not useful to the case of the plaintiff to show that he is in possession

of the suit property prior to and on the date of filing of the suit.

14. Similarly notices were issued under Tamil Nadu Act 5 of

1905 to Mariyamul Azia and Fathumuthu Ammal and the same were

marked as Ex.A7 and Ex.A3 respectively. In Ex.A3 the linear

measurement is shown as 190 x 135. Actually this is over written.

https://www.mhc.tn.gov.in/judis S.A.No.578 of 2007 & M.P. No.1 of 2007

However, the total extent is written as 26 cents below 190 x 135.

Ex.A7 is another notice issued under Tamil Nadu Act 5 of 1905 to

Mariyamul Azia, wife of Abdul Ajiz. The year of issuance of the said

notice has not been indicated in Ex.A7. Therefore Ex.A7 is least useful

to the case of the plaintiff. Ex.A4 is an Adangal Extract issued by the

Tahsildar, Tharangampadi. In the said notice, it is stated that Mariyamul

Azia is in possession of 29 cents in Survey No.133. This was issued in

the year 2003. The fasli year is mentioned as 1410, which corresponds to

July 2000 - June 2001. The plaintiff did not file either the death extract

of his mother Mariyamul Azia or the legal heirship certificate. The trial

court, based on these documents, had held that the plaintiff is in

possession of the entire suit property. It is also pertinent to point out that

the Village Administrative Officer, Thirukkalacheri Village, had taken

sides with the plaintiff and had gone to the extent of deposing that xerox

copies of the kist receipts pertain to the suit property even without

verifying the concerned Registers. The Village Administrative Officer,

at the time of giving evidence in the trial court was aged 55 years and by

now he would have attained superannuation.

https://www.mhc.tn.gov.in/judis S.A.No.578 of 2007 & M.P. No.1 of 2007

15. The first appellate court mainly based on Ex.A3, Ex.A4 and

Ex.A7 notices issued in favour of Mariyamul Azia and Fathamuthu

Ammal, had concluded that the plaintiff is possession of 26 cents in the

suit property and had directed the trial court to appoint an Advocate

Commissioner to note the exact area which is in possession of the

plaintiff.

16. The transfer of right in favour of Fathamuthu Ammal

during the year 1943 in respect of Survey No. 133 of Thirukkalacheri

Village (Ex.A1 and Ex.A2) shows that Fathamuthu Ammal was given

only the right to enjoy 9 Iluppai trees ( Mahua) and one vila tree (wood-

apple) standing in the suit property. Thus Fathamuthu Ammal has not

been given enjoyment of the vacant site in Survey No.133. P.W.1 during

the course of cross examination admitted that there are no mahua trees in

the suit property and that they had withered out. Moreover, the plaintiff

has not also adduced any documentary evidence to show that he, his

mother and his grandmother were continuously enjoying the suit property

by adducing any acceptable oral and documentary evidence. Both the

https://www.mhc.tn.gov.in/judis S.A.No.578 of 2007 & M.P. No.1 of 2007

courts below had mainly relied on the evidence of P.W.3, the Village

Administrative Officer, who had also deposed that the suit property was

handed over by the Government to the Panchayat Board,

Thirukkalacheri Village during the year 1963 and that he is also one of

the signatories in the proceedings (Ex.B1). Ex.B2 is the register showing

maintenance of various Government lands in Thirukkalacheri Village.

In Ex.B2, Survey No.133 is indicated and relying on this particular

document, Dr. Suriya, learned Additional Government Pleader contended

that the defendant has taken over possession of the suit property and that

the plaintiff cannot seek permanent injunction against the defendant.

17. As observed earlier, the plaintiff has not filed any

document to show that he is in possession of the suit property prior to or

on the date of filing of the suit. Ex.A4 is for the year July 2000-June

2001 in which existence of mango trees are indicated. It is not the case

of the plaintiff that he grew up mango trees in the suit property and what

was conveyed to Fathamuthu Ammal was to enjoy the usufructs of vila

trees (wood-apple) and Iluppai (mahua) trees. The plaintiff has not

https://www.mhc.tn.gov.in/judis S.A.No.578 of 2007 & M.P. No.1 of 2007

shown the Government as a party to the suit especially when he had

admitted that the suit property is a Government land. The suit filed by

the plaintiff appeared to be misconceived and a collusive one. The

defendant on their part had examined the office assistant working in the

Panchayat board to prove the documents Ex.B1 and Ex.B2 and this is

viewed with disfavour and deprecated .

18. In view of these reasons stated by me, the appeal is liable

to be dismissed. Thus, the substantial questions of law are answered

accordingly.



                                  19. In the result,

                                  i. the   second      appeal   is   dismissed.     No      costs.

Consequently, connected civil miscellaneous petition

is closed.

ii. the decree and judgment dated 25.10.2006 passed in

A.S. No.78 of 2006, on the file of the Principal

Subordinate Judge, Mayiladuthurai, and the decree

https://www.mhc.tn.gov.in/judis S.A.No.578 of 2007 & M.P. No.1 of 2007

and judgment dated 28.02.2006 passed in O.S. No.141

of 2004, on the file of the District Munsif Court,

Sirkali, are set aside.

iii. The suit in O.S. No.141 of 2004 on the file of the District Munsif Court, Sirkali, is dismissed with costs.

17.04.2023

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