Madras High Court
K.N.Sheik Mohammed (Died) vs The State Of Tamil Nadu on 18 August, 2023
SA(MD)No.56 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 18.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
S.A.(MD)No.56 of 2017
1.K.N.Sheik Mohammed (Died)
A.Muhaideen Abdul Khadar
(1st appellant substituted vide Court order,
dated 07.03.2023, in CMP(MD)No.624/2023)
2.Alagumani ... Appellants/Appellants/
Plaintiffs
Vs.
1.The State of Tamil Nadu,
Rep. by the District Collector,
Office of the District Collector,
Pudukottai.
2.The District Revenue Officer,
District Revenue Officer,
Office of the District Collector,
Pudukottai.
3.The Revenue Divisional Officer,
Revenue Divisional Officers' Office,
Public Office Building,
Pudukottai.
1/16
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SA(MD)No.56 of 2017
4.The Tahsildar,
Tahsildar Office,
Thirumayam,
Thirumayam Taluk,
Pudukottai District.
5.R.M.Karuppaiah ... Respondents / Appellants /Defendants
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree, dated 18.12.2019, made in
A.S.No.25 of 2016, on the file of the Additional Sub Court, Tenkasi,
reversing the judgment and decree, dated 02.12.2015, made in O.S.No.194
of 2013, on the file of the Additional District Munsif, Tenkasi by allowing
this Second Appeal.
For Appellants : Ms.AL.Gandhimathi, Senior Counsel
for Mr. C.Mahadevan
For Respondents : Mr.Senthil Ayyanar
Government Advocate for R1 to R4
Mr.Raghuvaragopalan
for Mr.S.Alagusundar for R5
JUDGMENT
The appellants herein are the plaintiffs, and the respondents
herein are the defendants before the trial Court.
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SA(MD)No.56 of 2017
2. For the sake of convenience, the parties are referred to as per
their rank before the trial Court.
3. The suit in O.S.No.121 of 2008 has been filed in a
representative capacity by the residents of N.Pudur Village against the
defendants for the relief of declaration, to declare the judgment and decree,
passed in O.S.No.25 of 2006 as null and void.
4. Shun of unnecessary details, the necessary pleadings for the
disposal of the second appeal are that :
The suit property in S.F.No.966/5 in Vembakudi Village is an
"unclaimed land" (mdhjPdk;). According to the plaintiff, the suit property
as well the property on the southern side of the suit property, viz. S.F.No.
966/23, 30 to 35 were commonly used by the residents of N.Pudur Village,
as a grazing land from time immemorial. It is also the submission of the
plaintiff that even the suit filed by the fifth defendant herein in O.S.No.11
of 2004 was dismissed. After that, without impleading the the residents of
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SA(MD)No.56 of 2017
the N.Pudur Village and the plaintiff herein, the fifth defendant filed a suit
in O.S.No.25 of 2006 with false statement and prayed to issue a mandatory
injunction to assign patta in respect of the suit property in his name. The
plaintiff came to know about such decree only during 10.08.2008.
According to the plaintiffs, the fifth defendant is an influential person and
having men and material at his command. It is their submission that, the
fifth defendant, by playing fraud and collusion with the other defendants,
have obtained a decree in O.S.No.25 of 2006, so as to transfer the
assignment of the suit property in his name. It is the specific submission of
the plaintiffs / appellants that since the fifth defendant has obtained decree
by playing fraud and collusion, the same is non-est before the law. Hence,
prayed for declaration to declare the decree and judgment passed in
O.S.No.25 of 2006 as null and void.
5. Resisting the above pleadings, the fourth defendant, states that
the alleged fraud and collusion are false and baseless. According to the
fourth defendant, the decree and judgment in O.S.No.25 of 2006 has been
passed on merits. Hence, they pray to dismiss the suit.
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SA(MD)No.56 of 2017
6. Similarly, the fifth defendant has stated that, originally the
property in S.F.No.727/2B was purchased by one Egammai Aachi, after the
advent of upon Inam Abolition Act, to an extent of 4 Acres 95 Cents. This
defendant further submit that, his daughter in law, one Manonmani,
purchased the above land from Egammai Aachi, by virtue of registered sale
deed, dated 13.03.1994. The land in S.F.No.992, 994/1, has been in the
possession and enjoyment of this defendant for a long time. The old Survey
No.727/2B was subdivided as S.F.No.966/5, in which an extent of 0.87
Cents was classified as Sarkar Poromboke Anatheenam qua unclaimed
land. Since the said S.F.No.966/5 and 966/23 was in actual physical
possession and enjoyment of this defendant, he planted various plants and
trees. While that being so, he made a representation to the defendants 1 to
4, so as to value the property and to execute the sale deed, according to the
existing Government Order. Since no order was forthcoming, he was
constrained to file a suit in O.S.No.25 of 2006. As such, he would submit
that there was no fraud or collusion in getting the decree and that he was
constrained to file suit in O.S.No.25 of 2006, only to enforce his right
flown from the Government Orders.
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SA(MD)No.56 of 2017
7. Before the trial Court, the plaintiff has examined 1 witness and
has marked 10 documents as Ex.P1 to Ex.P10. On behalf of the defendants,
no witness was examined and 13 documents were marked as Ex.R1 to
Ex.R13.
8. After considering the pleadings, evidence and material on
record, the trial Court has ultimately dismissed the suit, disbelieving the
version of P.W.1 as he was not subjected himself for cross-examination,
and also found that there are no materials to prove the plaintiffs allegations.
9. Aggrieved with the order, the plaintiff has filed an Appeal in
A.S.No.36 of 2010. Even the first appellate Court has confirmed the
judgment and decree of the trial Court. The First Appellate Court also
found that the plaintiff did not even mark the decree which they sought to
be set aside.
10. Aggrieved with the concurrent finding of the trial and the first
Appellate Court, the appellant has come forward with the instant Second
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SA(MD)No.56 of 2017
Appeal.
11. The learned Senior Counsel, who appeared on behalf of the
appellant, in her usual dexterity would submit that the very suit property is
an unclaimed land (mdhjPdk;). Therefore, the Government has no right to
assign patta to any individual, and that the defendants is a very influential
person, and that by taking advantage of his close association with the
Government official, he filed a collusive suit, in O.S.No.25 of 2006 without
even impleading the plaintiffs, who are the necessary and proper parties.
She would further submit that the decree in O.S.No.25 of 2006 is non-est
and liable to be set aside. Hence, prayed to allow the Second Appeal.
12. Per contra, the learned Government Advocate, who appeared
on behalf of the official respondents 1 to 4, would strongly object the
defence of fraud and collusion. He would also contend that there are no
materials placed by the appellant herein to prove the alleged fraud and
collusion against the defendants 1 to 4. Hence, prayed to dismiss the
second appeal.
13. In respect of the private respondent, viz., the fifth respondent,
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SA(MD)No.56 of 2017
the learned counsel would submit that, though the plaintiff has sought for
the declaration to set aside the decree in O.S.No.25 of 2006, there are no
pleadings as to the material particulars of fraud and collusion. He would
also submit that the documents, which the petitioner / plaintiff filed are
only in respect of S.F.No.966/23 and not in respect of the suit property, viz.,
S.F.No.966/5. It is the specific submission of the learned counsel for the
fifth respondent that, when the plaintiff came forward to project the case of
fraud or collusion, he ought to have specifically plead the material
particulars as per order 6 Rule 4 C.P.C., as to how the collusion took place
or fraud has been committed, contrary to the statutory mandate they
pleaded vaguely. Therefore, prayed to dismiss this Second Appeal by
confirming the concurrent finding.
14. The learned counsel for the first respondent has relied upon
the judgment of the Hon'ble Supreme Court reported in 1977-1-SCC-179
(Varanaseya Sanskrit Vishwavidyalaya V. Rajkishore Tripathi). Wherein,
the Hon'ble Supreme Court held that to prove fraud, collusion and
misrepresentation, the general allegations are insufficient and a specific
allegation against each particular person are essential to maintain a suit.
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SA(MD)No.56 of 2017
Here, in our case, though the plaintiffs have pleaded fraud and collusion,
such fraud and collusion has been stated generally in a sentence. There is
no specific allegation against each of the official respondent as mandated in
Varanaseya Sanskrit Vishwavidyalaya case (cited supra).
15. I have given my anxious consideration to the either side
submissions.
16. This second appeal is pending in the stage of admission.
17. The main contention of the learned Senior Counsel is that, the
very suit property is classified as unclaimed land (mdhjPdk;). Therefore,
according to the plaintiff such land cannot be sold or assigned to any
persons. The learned Senior Counsel would further submit that the
classification of the suit property as unclaimed land is not in dispute.
However, the learned Senior Counsel appearing on behalf of the appellants
would submit that, if once the land is classified as unclaimed land, the
Government has no power to assign patta in respect of such land.
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18. However, the learned counsel for the fifth respondent would
invite the attention of this Court in respect of the document submitted by
the plaintiffs. Wherein, even the plaintiffs have sought for patta in respect
of the Anaathinam land. It is the submission of the learned respondent
counsel that, after the advent of Inam Abolition Act, all the lands were
resumed to the Government. Therefore, he would submit that the
Government is competent to deal with such property. In this regard, the
learned counsel for the fifth respondent would invite the attention of this
Court in respect of the judgment of the earlier suit in O.S.No.25 of 2006,
which has been marked herein as Ex.P-B9, wherein, in paragraph - 2 of the
judgment, it has been referred that by virtue of Standing Order 75, dated
05.02.2000 and G.O.No.168, Revenue Department, dated 27.03.2000, the
Government is entitled to sell the property based upon the guideline value.
But to contradict the above finding and to substantiate their contention that,
the land which classified as unclaimed land, could not be dealt by the
Government, no scarp of paper submitted by the appellants.
19. The learned counsel for the fifth respondent would also rely
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SA(MD)No.56 of 2017
upon the Full Bench judgment of this Court reported in 1998-1-CTC-630
(Srinivasan V. Sri Madhyarjuneswaraswami, Pattaviathalai). Wherein
this Court has held after advent of Inam Abolition and Estate Abolition Act,
all the lands previously part of the estate will vest with the Government.
20. As rightly contended by the learned counsel for the fifth
respondent, the main ground urged by the plaintiff is that there was a fraud
and collusion between the fifth defendants and other defendants and that
the fifth defendant being an influential person and being the Government
Contractor, he had colluded with the Government official and got patta in
his name. It was also the submission of the appellant that this plaintiffs,
who are the real contesting party, has not at all been impleaded in the suit in
O.S.No.25 of 2006. But, more strangely, P.W.1, who is the representative of
the plaintiffs, has not subjected himself for cross-examination.
21. At this juncture, it is relevant to refer the judgment of the
Hon'ble Supreme Court reported in 1999-3-SCC-573 (Vidhyadhar V.
Manikrao). The relevant portion of the judgment is as follows-
“17. Where a party to the suit does not appear into
the witness box and states his own case on oath and does not
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SA(MD)No.56 of 2017
offer himself to be cross examined by the other side, a
presumption would arise that the case set up by him is not
correct as has been held in a series of decisions passed by
various High Courts and the Privy Council beginning from the
decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr.
. This was followed by the Lahore High Court in Kirpa Singh
v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the
Bombay High Court in Martand Pandharinath Chaudhari v.
Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The
Madhya Pradesh High Court in Gulla Kharagjit Carpenter v.
Narsingh Nandkishore Rawat also followed the Privy Council
decision in Sardar Gurbakhsh Singh's case (supra). The
Allahabad High Court in Arjun Singh v. Virender Nath and
Anr. held that if a party abstains from entering the witness
box, it would give rise to an inference adverse against him.
Similarly, a Division Bench of the Punjab & Haryana High
Court in Bhagwan Dass v. Bhishan Chand and Ors. , drew a
presumption under Section 114 of the Evidence Act against a
party who did not enter into the witness box.”
22. As per the above judgment, if the witness abstains from
entering witness box, it would give rise to an adverse inference against
him. Therefore, as rightly observed by the Court below, it is highly unsafe
to rely upon the evidence of P.W.1.
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23. Therefore, as rightly observed by the learned trial Judge as
well as the learned first Appellant Judge, his oral evidence loses it's
sanctity. It is also the submission of the learned respondent counsel that
though the plaintiffs say that the suit property is a grazing land, admittedly
they did not submit any records to prove such a classification.
24. Therefore, this Court is of the firm view that as found by the
Court below the so-called fraud and collusion has not at all been
established.
25. At this juncture, the learned Senior Counsel, who appeared on
behalf of the appellant, would submit that mere absence of P.W.1 for cross
examination will not disentitle the plaintiff to get a relief and would
contend that based upon the document submitted by the petitioner, the
fraud could be proved. This Court has carefully perused the documents
Ex.A1 to Ex.A10, but, all the documents are in respect of S.F.No.966/23.
Wherein, the Villagers are seeking patta in their names, and this Court
could not find any letters or correspondence which they made with the
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Government alleging the fraud or collusion against the fifth defendant,
more particularly, in respect of the suit property. Therefore, even on the
basis of the documents, which the plaintiff has filed, this Court could not
find any semblance of proof towards collusion.
26. It is also the submission of the learned Senior Counsel that as
per Ex.A7, the Tahsildar, who sent a report to the Collector, have referred
about the enmity between the petitioners and the fifth defendant., vide his
report, dated 21.01.2006. According to the learned Senior Counsel, if that
being the case, when the fifth defendant filed a suit, he should have
impleaded the residents of N.Pudur village. But, this Court could not accept
this argument. Because, as discussed herein above, the land vest with the
Government. Hence, the necessary and proper parties are only the official
respondents and that they were rightly arrayed as party. As a matter of fact,
here, that entire case of the plaintiff revolves around fraud and collusion.
But, as found herein above, the same was not proved in a manner known to
law. If that being so, the other defence such as non impleadment of the
Villagers in the suit in O.S.No.25 of 2006 will losses it's significance, and
can't be a ground to set aside the decree. Therefore, this Court is of the firm
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SA(MD)No.56 of 2017
view that no substantial question of law arises in this Second Appeal.
Hence, the Second Appeal is liable to be dismissed.
27. In the result, this Second Appeal stands dismissed. There
shall be no order as to costs.
18.08.2023
NCC : Yes/No
Index :Yes/No
Ls
To
1.The Additional Sub Court,
Tenkasi.
2. The Additional District Munsif,
Tenkasi.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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SA(MD)No.56 of 2017
C.KUMARAPPAN.,J.
Ls
Judgment made in
S.A.(MD)No.56 of 2017
18.08.2023
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