Madras High Court
Sonai vs M.Velu on 28 December, 2023
S.A.(MD).No.110 of 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.12.2023
CORAM:
THE HONOURABLE MRS.JUSTICE KALAIMATHI
S.A.(MD).No.110 of 2006
and
C.M.P.(MD).No.772 of 2006
1.Sonai
2.S.Balan
3.S.Muthan
4.S.Sathan
5.M.Posalan
6.K.Meenakshi
7.K.Kannan
8.K.Annadurai
9.P.Ganesan
10.R.Velu
11.M.Arumugam
12.P.Nagammal ... Appellants
-Vs-
1.M.Velu
2.S.Kottai
3.S.Arumugam
4.K.Rasu
5.K.Pandi
1/14
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.110 of 2006
6.M.Sonai
7.S.Kannan ... Respondents
PRAYER: The Second Appeal is filed under Section 100 of the Civil Procedure
Code, against the judgment and decree in O.S.No.60 of 2002, dated 30.06.2003,
passed by the learned District Munsif, Devakottai as confirmed by the judgment
and decree dated 30.12.2004 in A.S.No.18 of 2004 passed by the learned Sub
Judge, Devakottai.
For Appellants : M/s.Swathini
for Mr.G.Prabhu Rajadurai
For R1 : Mr.V.Karthick Raja
for H.Arumugam
JUDGMENT
Aggrieved by the judgment of first appellate Court / Sub Court,
Devakottai in A.S.No.18 of 2004, the defendants 1 to 11 and 14 have preferred
this second appeal.
2. The parties are referred to as per their litigative status and ranking
made before the trial Court.
https://www.mhc.tn.gov.in/judis
3. According to the sole plaintiff M.Velu, the suit property is situated at
Pudhuvarendhal Village, Devakotti Taluk, Sivagangai District in S.No.367/1 with
an extent of 0.04.5 ares. The plaintiff has been in possession and enjoyment of
the suit property by putting up a thatched shed before two years. 'B' Memo was
issued in the name of the plaintiff, on 02.07.2002. The plaintiff has paid the tax
for the thatched shed for the year 2002 – 2003, on 20.09.2002. It was further
claimed that the defendants have no right and enjoyment over the suit property.
Because of the difference of opinion between the plaintiff and his relatives, at the
instigation of the unwanted people, the defendants joined together and tried to
encroach upon the suit property by removing the thatched shed, on 03.10.2002.
Hence, the suit for permanent injunction not to interfere with the peaceful
possession and enjoyment of the suit property.
4. Contending contra, the defendants claimed that the extent of S.No.
367/1 is 60 cents and it belongs to the Government. The wife of the plaintiff and
the family members of the plaintiff have patta lands. The said fact was not
disclosed to the revenue officials and as if they have no lands and obtained 10
cents of land in the name of plaintiff's wife and 30 cents of land in the name of
his relatives and in toto 40 cents of land was got by assignment. In order to
https://www.mhc.tn.gov.in/judis
swallow 20 cents of land, which has been in possession and enjoyment of the
defendants, 'B' Memo and house tax receipt were prepared in the name of the
plaintiff and this case was filed.
5. The defendants further claimed that the boundary details of suit
property stated in the plaint are false. The claim of plaintiff that he has been in
possession and enjoyment of the suit property by putting up a thatched shed is
denied. S.No.367/1 of Siruvathi Panchayat was classified as Natham on
21.02.1997 and for the purpose of constructing houses to the defendants and to
grant assignment patta to the defendants, a resolution was passed. The
Panchayat President failed to enforce the said resolution and prepared a 'B'
Memo and receipt. The defendants have put up 18 sheds even before 15 years
of filing of suit.
6. Based on the rival submissions, the trial Court framed the following
issues:
(i) Whether the plaintiff has been in possession and enjoyment of the
suit property or the defendants have been in possession and enjoyment of the
suit property?
(ii) Whether the plaintiff is entitled to the relief of permanent injunction?
https://www.mhc.tn.gov.in/judis
(iii) To what other relief the plaintiff is entitled to?
7. At trial, on the plaintiff's side, two witnesses were examined. The
plaintiff has examined himself as P.W.1 and to prove the possession and
enjoyment of the suit property by the plaintiff, one Sebastian was examined as
P.W.2. Exs.A1 to A4 were marked. Ex.A1 is 'B' Memo. Ex.A2 is tax receipt, dated
20.09.2002. On the defendants side, four witnesses were examined. Exs.B1 to
B3 were marked. Resolution of Panchayat is Ex.B1.
8. The trial Court after evaluating the evidence has observed that in
order to show that the suit property has been in possession and enjoyment of the
plaintiff, Ex.A1 / 'B' Memo and Ex.A2 / tax receipt have been marked. Whereas,
on the side of the defendants, though it is claimed that the shed in the suit
property belongs to Kannan, it was not substantiated through documents. It was
further observed by the trial Court that Ex.B1 was written in three different inks
and the numbers and words 0.49.5 kalam poramboke inserted in between 4th
and 5th lines and the admissions that S.No.367/1 is inserted between 3rd and 4th
lines and there is no signature regarding the person who has written it etc., and
relying upon Exs.A1 and A2, the issues were answered in favour of the plaintiff
and the suit was decreed as prayed for.
https://www.mhc.tn.gov.in/judis
9. Aggrieved, the defendants preferred an appeal before the Sub Court,
Devakottai in A.S.No.18 of 2004. After hearing both sides and upon evaluating
the evidence available on record, the first appellate Court concluded that even
D.W.2 has stated that there is no file in the Panchayat Office for grant of patta to
the defendants in S.No.367/1 and no application is so far received by the office
for grant of patta to the suit property. In the absence of any positive evidence by
the defendants, based upon the plaintiff's documents viz., Exs.A1 and A2, it was
concluded that the plaintiff has been in possession and enjoyment of the suit
property and the judgment and decree of the trial Court was confirmed by
dismissing the appeal.
10. Against the concurrent finding of both the trial Court as well as the
first appellate Court, the defendants have preferred this second appeal.
11. The learned counsel appearing for the appellants/defendants would
strenuously argue that Ex.A1 / 'B' Memo is dated 02.07.2002 and Ex.A2 / tax
receipt is dated 20.09.2002 and a month before the suit was laid without any
cause of action. It is his further argument that admittedly the suit property is
Government land (poramboke) but the Government was not made as a party to
https://www.mhc.tn.gov.in/judis
the suit. It was further contented that the plea of non-joinder of necessary parties
was raised before the trial Court and it was not considered properly.
12. To buttress her argument, the following judgments of this Court are
referred to:
(i) Kannan vs. Govindan in S.A.No.715 of 2015, judgment dated
07.08.2019
(ii) Belukurichi Kongu Community Welfare Trust, represented by its
President Mr.Arulprakasam vs. The Special Officer, Belukurichi Panchayat,
Namakkal District, judgment dated 12.01.2022
(iii) Perianayagam vs. Maria Arokiam reported in 1996(1) CTC 415
(iv) D.Anjappa and others v. Marappa reported in 2014 (3) L.W.442
13. In S.A.No.715 of 2015, this Court held that when the suit is laid in
respect of the Government land, the Revenue authorities should be added as a
party to the suit.
14. In the case of Karuppathal vs. Arunachalam and others reported
in 2014 (2) MWN (Civil) 267, this Court had an occasion to deal with the same
issue and it was held that in the matters of Government lands in a suit for
https://www.mhc.tn.gov.in/judis
permanent injunction without impleading the Government was held to be valid.
15. Whereas, Mr.V.Karthick Raja, learned counsel appearing for the
first respondent/plaintiff would vehemently contend that the plaintiff has been in
possession and enjoyment of the suit property for a long period and the 'B'
Memo and the house tax receipt would confirm the possession of the suit
property by the plaintiff. It is his further argument that though the plea of non-
joinder of necessary parties appeared to have been raised before the trial Court,
and no issue was framed to that effect. It is his further argument that the suit is
filed only for the relief of permanent injunction and not for declaration of title, as
the possession of the suit property by the plaintiff was interfered with by the
defendants. Therefore, impleadment of Revenue officials is absolutely not
necessary.
16. To buttress his argument, the following judgments of this Court are
referred to,
(i) Sengottaiyan and two others vs. Palani Moopan @ Palanisamy
reported in 2009 (3) CTC 585
(ii) Deivanai vs. J.Masilamani Reddi and another reported in 2016 (1)
LW 411.
https://www.mhc.tn.gov.in/judis
17. The following substantial questions of law arise for consideration:
(i) Is it correct in law to grant a decree for injunction against
the defendants not to interfere with the possession of the plaintiff
when admittedly the defendants are in possession of the suit property
by constructing the sheds and residing thereon?
(ii) Whether the Courts below erred in law in not relying
upon Ex.B1, the resolution of the Panchayat to grant assignment to
the defendants and rejecting their case that they are in possession of
the Government lands without documents?
(iii) Whether the Courts below erred in law in not relying
upon Ex.B1, the resolution of the Panchayat to grant assignment to
the defendants especially when the same was produced by the officer
of the Panchayat from the official records?
(iv) Whether it is correct in law to hold that the plaintiff is in
possession of the property merely on the basis of a single 'B' Memo
and a single tax receipt issued immediately before the filing of the
suit, particularly, when the plaintiff has no structure in the suit
property?
https://www.mhc.tn.gov.in/judis
18. Order 1 Rule 9 of C.P.C., deals with Mis-joinder and non-joinder
and the said provision of law is extracted hereunder:
“No suit shall be defeated by reason of the mis-joinder or non-joinder
of parties, and the Court may in every suit deal with the matter in controversy so
far as regards the rights and interests of the parties actually before it: [Provided
that nothing in this rule shall apply to non-joinder of a necessary party].”
19. Order 1 Rule 9 is a rule of procedure, which does not affect the
substantive law.
20. In State of Himachal Pradesh vs. Milkhi Ram (dead)
represented by LRs. and others reported in 2007 (15) SCC 750, the Hon'ble
Supreme Court has observed that the trial Court, having noticed that, prima
facie, the suit property vested in the State Government and no effective decree
could be passed without impleading the State, being a proper party, ought to
have directed the plaintiffs to implead the State or the Court itself could have
directed impleadment of the State. It was further observed that even in the first
appeal, the District Judge though issued notice to the Collector to intervene in
the matter, did not think it proper to direct impleadment of the State as a party
respondent. It was the further observation of the Hon'ble Supreme Court that
having regard to the fact that the property, prima facie, vested in the State
https://www.mhc.tn.gov.in/judis
Government, opportunity should have been given to the State to contest the
claim of the plaintiffs and direction was given to implead the State as additional
defendant in the suit and remanded the suit to the trial Court.
21. To succinctly state the facts, the sole plaintiff herein filed the suit for
permanent injunction not to interfere with his peaceful possession and enjoyment
of the suit property (S.No.367/1 ; 0.04.5 ares), on the strength of Ex.A1 / 'B'
Memo and Ex.A2 / house tax receipt. The issue of non-joinder of necessary
parties was raised by the defendants side and it has been discussed by the trial
Court in the judgment, but failed to frame issue of law and concluded in favour of
the plaintiff.
22. It is relevant to note that it is the evidence of P.W.1 that he is in
possession and enjoyment of the suit property for the past 40 years and Ex.A1/
'B' Memo is dated 02.07.2002 and Ex.A2 / house tax receipt is dated
20.09.2002.
23. The trial Court has taken into consideration of all the oral evidence
let in by both sides and based on the documents viz., Exs.A1 and A2, concluded
in favour of the plaintiff and ultimately decreed the suit. The first appellate Court
https://www.mhc.tn.gov.in/judis
has also dealt with the oral evidence of plaintiff as well as the defendants to the
effect that the document of defendants suffers from mala fides and ultimately
confirmed the judgment and decree of the trial Court and dismissed the appeal.
24. Admittedly, the suit property is a Government land (poramboke).
The suit is filed for permanent injunction in respect of 0.04.5 ares equivalent to
11 cents. The learned counsel appearing for the appellants/defendants drew the
attention of this Court that by filing Exs.A1 and A2, the plaintiff tries to grab the
Government property to an extent of 11 cents. It is pertinent to note that P.W.2
has stated that the defendants have put up huts in the suit survey number viz.,
S.No.367/1. In the facts and circumstances, the State Government has to be
made as a necessary party. Therefore, this Court is of the considered view that
the remanding of the suit to the trial Court with the direction would serve the
purpose.
25. Based on the aforesaid discussion, the suit is remanded back to
the trial Court with the direction to the plaintiff to file proper application, so as to
implead the revenue authorities viz., the Collector and the Tahsildar and after
observing due formalities with limited scope and to pass a judgment preferably
within a period of six months from the date of receipt of a copy of this judgment.
https://www.mhc.tn.gov.in/judis
The Second Appeal is disposed of accordingly. There is no order as to costs.
Consequently, the connected Miscellaneous Petition is closed.
28.12.2023
NCC:Yes/No
Index:Yes/No
Internet:Yes/No
akv
To
1.The District Munsif,
Devakottai.
2.The Sub Judge,
Devakottai.
3.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
R.KALAIMATHI,J.
akv
.12.2023
https://www.mhc.tn.gov.in/judis
