Madras High Court
Chokkalingam vs Chokkalingapoobathi on 22 November, 2023
Author: G.Chandrasekharan
Bench: G.Chandrasekharan
S.A.(MD) No.57 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 13.12.2023
PRONOUNCED ON : 22.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A.(MD) No.57 of 2021
and
C.M.P.(MD) No.610 of 2021
Chokkalingam ..Appellant
Vs.
1.Chokkalingapoobathi
2.Subramanian ...Respondents
PRAYER: Second Appeal filed under Section 100 of C.P.C., to set aside the
judgment and decree dated 17.02.2020 passed in A.S.No.4 of 2017 on the file of
the Sub Court, Ambasamudram confirming the judgment and decree dated
26.10.2016 passed in O.S.No.103 of 2012 on the file of the Principal District
Munsif Court, Ambasamudram by allowing this second appeal.
For Appellant : Mr.V.Meenakshi Sundaram
for Mr.D.Nallathambi
For Respondents : Mr.R.J.Karthick
JUDGMENT
https://www.mhc.tn.gov.in/judis
Challenging the concurrent findings in A.S.No.5 of 2017 on the file of
the Sub Court, Ambasamudram and O.S.No.103 of 2012 on the file of the
Principal District Munsif Court, Ambasamudram, this second appeal has been
filed.
2. The appellant / plaintiff filed a suit in O.S.No.103 of 2012 seeking
the relief of permanent injunction against the respondents that they should not
interfere with possession and enjoyment of the suit property. The case of the
appellant / plaintiff, in brief, is that the suit property belonged to Papanaasa
Swamy Kovil Pitcha Kattalai of Thiruvavadudhurai Aadheenam. This property is
situated in Mannarkovil Village. The original survey number of the suit property
is 542/2 and the total extent is 4 acres 81 cents. It was given on lease to one
Sandhanam on 19.09.1972. The said Sandhanam was cultivating the land by
raising crops. After 1973, S.No.542/2 was subdivided as 542/2A measuring 2
acres 40 cents and 542/2B measuring 2 acres 41 cents.
3. The further case of the appellant / plaintiff is that, during land
reform, S.No.542/2A was wrongly classified as surplus land along with the land of
one Sivanupandian. Thereafter, S.No.542/2A was assigned to Chockalingam
Pillai, since he was an Ex-serviceman. Challenging the classification,
Sivanupandian filed a writ petition before this Court and that was dismissed in the
year 1993. After dismissal of the writ petition, Chockalingam Pillai tried to
https://www.mhc.tn.gov.in/judis
encroach the property in S.No.542/2A. One AVRMV Vahaiyara also tried to
encroach the other portion. Sandhanam filed a suit against the AVRMV
Vahaiyara, Chockalingam Pillai and Thiruvavadudurai Aadheenam in O.S.No.424
of 1994. In the meanwhile, the said Sandhanam filed revision appeal before the
Land Reforms Tribunal against declaring the suit property as surplus land. That
revision was allowed with a direction to authorised officer to conduct denovo
enquiry. Thereafter, enquiry was conducted and it was decided that the
declaration of part of the suit property as surplus land was not correct.
Sandhanam was declared as lessee in the suit property. The suit in O.S.No.424 of
1994 was ended in dismissal.
4. Sandhanam had transferred the lease hold right to Subraminian on
29.04.1995. That was accepted by Thiruvavadudhurai Aadheenam. From the year
1995, Subramanian was in possession and enjoyment of the suit property as
lessee. Due to his old age, Subramanian's son, plaintiff is in possession and
enjoyment of the suit property as lessee. Chockalingam pillai and his family
members have no right in S.No.542/2A. However, the grandson of Chockalingam
Pillai / first defendant / first respondent had executed a power of attorney deed in
favour of the second respondent in respect of the suit property. The second
defendant / second respondent is trying to disrupt the possession of the suit
property by using bulldozer to level the ground. In such circumstances, the suit
https://www.mhc.tn.gov.in/judis
was filed.
5. The defendants / respondents filed written statement denying the
plaint averments. The averments that the suit property belonged to Papanaasa
Swamy Kovil Pitcha Kattalai of Thiruvavadudhurai Aadheenam is denied as false.
S.No.542/2A originally belonged to Sivanupandian. This was assigned to
Chockalingam Pillai, for the reason that he was an Ex-serviceman. The averments
with regard to the proceedings before the Land Reforms Tribunal are not true. It
is true that Sandhanam filed a suit in O.S.No.424 of 1994 and it was held that
Sandhanam was not a lessee. Thiruvavadudhurai Aadheenam has no right in the
suit property especially in S.No.542/2A. Sandhanam is a worker of
Sivanupandian. At the instigation of Sivanupandian's wife, Sandhanam filed false
cases. Sandhanam has admitted that S.No.542/2A is in possession of
Chockalingam Pillai. The defendants have no claim in respect of S.No.542/2B.
The first defendant is not a necessary party to the suit. S.No.542/2A was assigned
by the Government in favour of Chockalingam Pillai. Even in the earlier suit,
Chockalingam Pillai, disputed the claim of Thiruvavadudhurai Aadheenam in the
suit property. The suit property is in possession and enjoyment of Chockalingam
Pillai's wife and children.
6. Before the trial Court, PW 1 to PW3 were examined and Exs.A1 to
https://www.mhc.tn.gov.in/judis
A10 were marked. DW1 was examined and Exs.B1 to B12 were marked. That
apart, Exs.X1 to X10 were marked.
7. The short issue involved in this case is, whether the appellant /
plaintiff is entitled for the relief of permanent injunction as prayed for. The
learned trial Court Judge negatived the plaintiff / appellant's prayer and dismissed
the suit. In appeal filed by the appellant / plaintiff in A.S.No.4 of 2017, the
learned appellate Judge concurred with the judgment of the trial Court and the
appeal was dismissed. Thus, this second appeal is filed.
8. The learned counsel appearing for the appellant submitted that
sufficient evidence has been produced to show that the suit property belonged to
Papanaasa Swamy Kovil Pitcha Kattalai of Thiruvavadudhurai Aadheenam.
Sandhanam was a lessee in respect of the suit property under Thiruvavadudhurai
Aadheenam. Exs.X1 to X10 documents proved this. S.No.542/2 to a total extent
of 4 acres 81 cents was subdivided into S.No.542/2A measuring 2.40 acres and
S.No.542/2B measuring 2.41 acres. S.No.542/2A was wrongly classified as
surplus land during land reformation along with the lands of one Sivanupandian.
9. It is the further submission of the learned counsel appearing for the
appellant that Sandhanam initiated proceedings before the Tamil Nadu Land
https://www.mhc.tn.gov.in/judis
Reforms Special Appellate Tribunal in Special Revision Petition No.66 of 1995
against Chockalingam Pillai, Thiruvavadudhurai Aadheenam represented by its
Adheena Kartar, Sri-la-Sri Sivaprakasa Pandara Sannithigal, K.Sivanupandian,
Assistant Commissioner (Land Reforms), Tirunelveli, and the Secretary to
Government, Revenue Department. After enquiry, portion of Section 18(1)
notification issued under Tamil Nadu Land Reforms (Fixation and Ceiling on
Land) Act, 1961 dealing with half share in S.No.542/2 was set aside. The
Authorized Officer was directed to conduct denovo enquiry after giving notice to
Thiruvavadudhurai Aadheenam, Chockalingam Pillai, the assignee,
Sivanupandian and other persons interested in the land. This order is marked as
Ex.A6. In pursuance of the same, enquiry was conducted and order was passed by
the authorized officer and Assistant Commissioner (Land Reforms), Tirunelveli in
A4.MRI.20/S/AMB/58-61 dated 28.02.1997. As per this order, it was held that
S.No.542/2 of Mannarkovil Village, Ambasamudram Taluk measuring 4.81 acres
belonged to Pitcha Kattalai endowment of Papanaasa Swamy Kovil and there is
no share to Sivanupandian in this land. Therefore, order for the deletion of S.No.
542/2A measuring 2.40 acres available in the surplus lands of land owner
K.Sivanupandian was passed.
10. It is the further submission of the learned counsel appearing for the
appellant / plaintiff that S.No.542/2A was assigned to Chockalingam Pillai only
https://www.mhc.tn.gov.in/judis
on the basis that it was a surplus land. When that notification declaring S.No.
542/2A measuring 2.40 acres as surplus land along with the lands of
Sivanupandian was set aside and held that entire extent of 4.81 acres in S.No.
542/2 belong to Pitcha Kattalai endowment of Papanaasa Swamy Kovil,
Chockalingam Pillai cannot claim any right on the basis of Ex.A7 assignment.
Ex.A7 assignment has no validity. On the basis of the assignment order,
Chockalingam Pillai or his legal heirs cannot claim any legal right in the suit
property. When Pitcha Kattalai endowment of Papanaasa Swamy Kovil has title
to the suit property, when it had inducted Sandhanam as tenant and when
Sandhanam transferred the tenancy to Subramanian and the plaintiff, who is
Subramanian's son is enjoying the suit property, the respondents / defendants
cannot claim any right in the suit property.
11. The learned counsel appearing for the appellant / plaintiff further
submitted that the trial Court without properly appreciating the evidence,
dismissed the suit. One of the reasons given by the trial Court is that the plaintiff
has not produced document executed by Sandhanam to the entire extent of 4.81
acres, but has produced Ex.A5 only to the part of the suit property. However, in
the appeal, the appellant has filed an application for reception of additional
document along with the lease document which relates to other portion of the suit
https://www.mhc.tn.gov.in/judis
property. The appellate Court has also not properly appreciated the evidence and
not given any opportunity to produce the additional document in evidence.
Without considering the petition to receive additional document, dismissed the
appeal first and then dismissed the petition for reception of additional document.
This procedure is not correct. This procedure prejudiced the appellant from
proving his case. In such circumstances, the learned counsel appearing for the
appellant prayed for setting aside the judgments of the Courts below and for
decreeing the suit.
12. The learned counsel appearing for the appellant relied on the
following judgments in support of his submissions:-
(a) Anathula Sudhakar vs. P.Buchi Reddy (dead) By LRs and Others
[2008 (4) SCC 594], in which the Hon’ble Supreme Court has laid down the
proposition that where a cloud is raised over the plaintiff's title and he does not
have possession, a suit for declaration and possession, with or without a
consequential injunction, is the remedy.
(b) Arulmigu Velukkai Sri Azhagiya Singaperumal Devasthanam,
Rep. by its Trustees vs. G.K.Kannan (Deceased) and Others [2020 (2) L.W. 317],
where the this Court held that a mere denial by the defendant would not constitute
a cloud on plaintiffs title, there must be evidence for the Court to conclude prima
facie that the plaintiffs assertion of title to a legal character, or to a right over a
https://www.mhc.tn.gov.in/judis
property has come under the cloud.
(c) N.Ravi & Others vs. S.K.Thirunavukkarasu (died) & Others [2015
(2) MWN (Civil) 283], where this Court held that when an application for
reception of additional evidence under O.41 R.27 of CPC in the Appellate Court is
moved, Court after giving notice should hear the Application along with the
Appeal on its merits so as to find out whether the documents and/or the evidence
sought to be adduced have any relevance/bearing on the issues involved. Further,
in case, the Court decides to allow the Application, a separate Order should be
passed and proceed as under O.41 R.28 of CPC whereas if it decides not to allow,
it can incorporate the Order with reasons in the Judgment itself and proceed with
the pronouncement of the Judgment.
13. In response, the learned counsel appearing for the respondents
submitted that the suit was filed for 4.81 acres. Ex.A5 relates only to 2.40 acres.
In the earlier suit filed by Sandhanam in O.S.No.424 of 1994, it was held that
Sandhanam was not in possession and enjoyment of the suit property. Sandhanam
has not filed any appeal against the dismissal of the suit. To circumvent the
dismissal of the suit, Sandhanam created documents in favour of Subramanian and
this suit is filed by the appellant. S.No.542/2A is in possession and enjoyment of
Chockalingam Pillai's wife and children and they prayed for dismissal of the
second appeal.
https://www.mhc.tn.gov.in/judis
14. I have considered the rival submissions on either side and perused
the materials placed before this Court.
15. The suit properties are S.No.542/2A and 542/2B measuring 4.81
acres. It is claimed by the plaintiff that this property belonged to Papanaasa
Swamy Kovil Pitcha Kattalai of Thiruvavadudhurai Aadheenam. One Sandhanam
is tenant under the Thiruvavadudhurai Aadheenam. He had transferred the lease
hold right in favour of subramanian, father of the appellant / plaintiff and now, the
appellant / plaintiff is in possession and enjoyment of the suit property. It is not in
dispute that an extent of 2.40 acres in S.No.542/2A was declared as surplus and it
was assigned to Chockalingam Pillai. The defendants have produced Exs.B1 to
B12 documents in respect of assignment in favour of Chockalingam Pillai and that
Chockalingam Pillai''s wife and children are in possession and enjoyment of the
suit properties.
16. Ex.A1 is the lease agreement in respect of the entire extent of 4.81
acres in S.No.542/2 between the Papanaasa Swamy Kovil Pitcha Kattalai of
Thiruvavadudhurai Aadheenam and Sandhanam. Ex.A2 is the copy of the
judgment in O.S.No.424 of 1994 and Ex.A3 is the decree. Ex.A6 is an important
document in this case. This is an order passed in Special Revision Petition No.66
https://www.mhc.tn.gov.in/judis
of 1995 by the Tamil Nadu Land Reforms Special Appellate Tribunal. This
revision petition was filed by Sandhanam against Chockalingam and four others
mentioned above. Sandhanam filed this revision petition alleging that S.No.542/2
belongs to Papanaasa Swamy Kovil Pitcha Kattalai of Thiruvavadudhurai
Aadheenam and he is a tenant. However, in the notification issued under Section
18(1) of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961, a
part of this land ie., 2.40 acres was shown as the land of Sivanupandian and
shown as surplus land along with other surplus lands of Sivanupandian. Infact,
Sandhanam is lessee of entire extent of 4.81 acres in S.No.542/2.
17. The learned Tribunal finding that sufficient attention was not given
to this claim, set aside the portion of the notification issued under Section 18(1) of
the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961, dealing
with the half share in S.No.542/2. The remaining portion of notification was
upheld. There was a direction issued to authorized officer to conduct a denova
enquiry, after affording an opportunity to all the parties.
18. Accordingly, an enquiry was conducted and the authorized officer
and the Assistant Commissioner (Land Reforms) Tirunelveli, passed an order in
reference A4.MRI.20/S/AMB/58-61 dated 28.02.1997. In the said enquiry, all the
parties including Chockalingam Pillai, the assignee, had participated. He
https://www.mhc.tn.gov.in/judis
contended that the land does not belong to Papanaasa Swamy Kovil Pitcha
Kattalai of Thiruvavadudhurai Aadheenam and that as an assignee, he is entitled
for the land assigned to him in S.No.542/2. On the basis of the evidence
produced, ie., Exs.B1 to B4, the authorized officer held that the entire land in
S.No.542/2 of Mannarkovil Village belongs to Pitcha Kattalai Endowment of
Papanaasa Swamy Kovil and Sivanupandian had no share in this land. In fine, the
authorized officer ordered deletion of S.No.542/2A ie., 2.40 acres available in the
surplus land of land owner, Sivanupandian.
19. It is the submission of the learned counsel appearing for the
appellant that Chockalingam Pillai was assigned the land in S.No.542/2 only on
the basis of declaration of Sivanupandian's land as surplus land including half
portion in S.No.542/2. When that notification is set aside, Ex.A7 assignment
given in favour of Chockalingam has no legal validity and on that basis, he cannot
claim any title to the suit property.
20. Exs.A8, A9, A10 and A11 are produced to show that the plaintiff is
in possession and enjoyment of the suit property. Ex.A11 is the letter from the
Papanaasa Swamy Kovil Pitcha Kattalai of Thiruvavadudhurai Aadheenam to
show that the plaintiff is in possession and enjoyment of the suit property.
21. The defendants produced Ex.B5 to show that an extent of 2.40 acres
https://www.mhc.tn.gov.in/judis
in S.No.542/2A was assigned to Chockalingam. Ex.B1 is a patta in respect of
S.No.542/2A in favour of Chockalingam. Ex.B2 is the proceedings of the
Assistant Commissioner (Land Reforms) in MR4.153/B/Ambai to hand over the
assignment of lands to various persons including Chockalingam. Ex.B4 are the
receipts for the payments made by Chockalingam. Ex.B6 is the Form-E sent to
Chockalingam. Ex.B7 is the notice issued under Section 8(2) of the Tamil Nadu
Land Reforms (Disposal of Surplus Land) Rules, 1965. Ex.B8 are the kist
receipts paid by Chockalingam. Ex.B9 is the patta in the name of
Arumugathammal, w/o. Chokkalingam for S.No.542/2A. Ex.B10 is the patta in
the name of Arumugathammal and her children in respect of S.No.542/2A.
Ex.B11 are kist receipts in the name of Arumugathammal vahayara.
22. Exs.X1, X2, X3 are the copies of the receipts to show the receipt of
lease amount by Papanaasa Swamy Kovil Pitcha Kattalai of Thiruvavadudhurai
Aadheenam. Ex.X4 and Ex.X5 are the letters from Papanaasa Swamy Kovil
Pitcha Kattalai of Thiruvavadudhurai Aadheenam, Superintendent and Inspector
of Pitcha Kattalai. Ex.A6 is the copy of the surrender deed executed by
Sandhanam to Pitcha Kattalai. Ex.A7 is the patta in the name of Papanaasa
Swamy Kovil Pitcha Kattalai of Thiruvavadudhurai Aadheenam in respect of the
entire extent of the suit property in S.No.542/2. Ex.X8 is the copy of the
settlement register to show that the suit property is the property of Papanaasa
https://www.mhc.tn.gov.in/judis
Swamy Kovil Pitcha Kattalai of Thiruvavadudhurai Aadheenam. Exs.X9 and X10
are the copy of the register maintained by Papanaasa Swamy Kovil Pitcha Kattalai
of Thiruvavadudhurai Aadheenam. Exs.X1 to X10 have been produced to show
that the property in S.No.542/2 to an extent of 4.81 acres belongs to Papanaasa
Swamy Kovil Pitcha Kattalai of Thiruvavadudhurai Aadheenam, it was leased to
Sandhanam and then the plaintiff's father, Subramanian and now, the plaintiff is in
possession and enjoyment of the suit property.
23. It is a case, where S.No.542/2A measuring 2.40 acres was declared
as surplus on the assumption that it belongs to Sivanupandian. After its
declaration as surplus land and after following necessary procedure, the land
measuring to an extent of 2.40 acres in S.No.542/2A was assigned to
Chockalingam, for the reason that he was an Ex-serviceman. As already
discussed, documents have been produced by both claiming that they are in
possession and enjoyment of the suit property. Only one can be in possession and
not both.
24. Sandhanam has filed the suit in O.S.No.424 of 1994 against one
Velayutham, Chockalingam Pillai and Papanaasa Swamy Kovil Pitcha Kattalai of
Thiruvavadudhurai Aadheenam seeking for the relief of permanent injunction not
to disturb his possession in respect of the entire extent of 4.81 acres in S.No.
https://www.mhc.tn.gov.in/judis
542/2. After contest, the suit was dismissed on 23.06.1997. The reason for
dismissal of the suit is that there was no proof to show that the second defendant
( Chockalingam) interfered with this possession. It was also held that Sandhanam
had admitted that S.No.542/2A was assigned to Chockalingam Pillai and he was
issued patta, he paid the necessary fee and he was handed over possession. From
this judgment, what we can gather is that as per Ex.B5 assignment order, the
property assigned to Chockalingam Pillai ie., 2.40 acres in S.No.542/2A was
handed over to him.
25. However, this case is filed not for possession, but for the relief of
injunction claiming that the plaintiff is in possession and enjoyment of the entire
extent of the suit properties. Obviously, it is not correct for the reason that
Chockalingam Pillai was handed over possession of 2.40 acres in S.No.542/2A.
Apart from the issue of possession, it appears that the plaintiff has not produced
lease agreement in favour of Sandhanam in respect of the entire extent of 4.81
acres before the trial Court, but has produced only Ex.A5 in respect of 2.40 acres
in S.No.542/2A. In the appeal, he produced the lease deed in favour of
Sandhanam to an extent of 2.41 acres in S.No.542/2B. As rightly pointed out by
the learned counsel appearing for the appellant, the learned Appellate Judge after
dismissing the main appeal dismissed the petition for reception of additional
documents. This procedure is not correct while disposing the petition to receive
https://www.mhc.tn.gov.in/judis
additional documents along with the appeal, findings on the petition to receive
additional documents should have been recorded first before recording the
findings in appeal.
26. Another interesting aspect of this appeal is that Ex.B5 assignment
was issued in favour of Chockalingam Pillai after following necessary procedure.
Once the notification issued, declaring the land assigned to him was surplus land,
is not correct and that part of the notification was set aside, it is expected that the
government should have passed appropriate order cancelling the assignment given
in favour of Chockalingam. Had that been done, very necessity of filing of this
suit would not have arisen. Chockalingam has also paid necessary fee for the
assignment. Patta has been issued in his name, subsequently to his wife and his
children. Similarly, Papanaasa Swamy Kovil Pitcha Kattalai of Thiruvavadudhurai
Aadheenam produced patta for the entire extent of the suit property in S.No.542/2.
Now, it is subdivided into S.Nos.542/2A and 542/2B. Patta in respect of S.no.
542/2A stands in the name of Chockalingam's wife and children.
27. Unless the assignment in favour of Chockalingam is cancelled / set
aside, legal heirs of Chockalingam cannot be prevented from stating that they
have title to the suit property. The only way to resolve the dispute is to remand
https://www.mhc.tn.gov.in/judis
the matter to the first appellate Court for impleading the concerned Government
department as a party defendant, amending the prayer for the relief of declaration
of title and recovery of possession, etc., and for disposal of the case in the manner
known to law.
28. In fine, this Second Appeal is allowed. The judgments of the
Courts below are set aside for the purpose of remanding the suit to the file of the
Sub Court, Ambasamudram for impleading the concerned Government department
as party defendant, for amending the plaint for inclusion of the relief of
declaration of title, recovery of possession etc., and for disposal of the case in the
manner known to law. The parties are directed to bear their own costs
respectively. Consequently, connected miscellaneous petition is closed.
Speaking : Yes / No 22.11.2023
NCC : Yes / No
Internet : Yes / No
Index: Yes / No
sm
https://www.mhc.tn.gov.in/judis
G.CHANDRASEKHARAN, J.
sm
To
1.The Sub Court, Ambasamudram.
2.The Principal District Munsif Court, Ambasamudram.
3.The Section Officer (2 Copies),
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
Pre-delivery judgment made in
Dated:
22.11.2023
https://www.mhc.tn.gov.in/judis
