Madras High Court
P.Veluchamy vs / on 24 November, 2023
Author: S.Srimathy
Bench: S.Srimathy
S.A.(MD).No.16 of 2017
THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.11.2023
CORAM:
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
S.A.(MD).No.16 of 2017
and
C.M.P.(MD)No. 358 of 2017
1. P.Veluchamy
2. P.Nagaiah ... Appellants
/Vs./
1. R.Savadallai
2. Senthil Murugan
3. The Tahsildar,
Vedasanthur Taluk,
Dindigul District.
4. The State of Tamil Nadu,
Represented by its the District Collector,
O/o. the Collectorate Office,
Dindigul, Dindigul District. ...Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code against the Judgment and Decree dated 07.01.2013 made in
A.S.No.37 of 2012 on the file of the Sub Court, Vedasanthur, partly
allowed the Judgment and Decree dated 29.04.2010 made in O.S.No.157
1/8
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S.A.(MD).No.16 of 2017
of 2002 on the file of the District Munsif Court cum Judicial Magistrate,
Vedasanthur, Dindigul District.
For Appellants : Mr.S.Rajasekar
For Respondents : Mr.H.Lakshmi Shankar, for R-1 & R-2
Mr.A.Kannan,
Additional Government Pleader, for R-3 & 4
JUDGMENT
This Second appeal is filed against the Judgment and
Decree, dated 07.01.2013 passed in A.S.No.37 of 2012 on the file of the
Sub Court, Vedasanthur, wherein the appeal was partly allowed. The first
appeal was filed against the Judgment and Decree, dated 29.04.2010
passed in O.S.No.157 of 2002 on the file of the District Munsif Court
cum Judicial Magistrate, Vedasanthur, Dindigul District, wherein the suit
was dismissed.
2. The Plaintiffs are the Appellants and the Defendants are
Respondents herein. For the sake of convenience, the contesting parties
shall be referred to as Plaintiffs and Defendants as per the ranking in the
suit.
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3. The plaintiffs had filed the suit for declaration and
injunction and also to grant patta based on adverse possession against the
Government and the same was dismissed. Against the dismissal, the
plaintiffs have preferred an appeal in A.S.No.37 of 2012 and the same
was partly allowed. Aggrieved over the same, the plaintiffs are before
this Court.
4. The contention of the plaintiffs is that they are the owner
of the lands situated in S.Nos.124 admeasuring 5.54 cents & S.No.125
1.20 cents for which patta is issued in favour of the plaintiffs. The
plaintiffs’ ancestors had purchased the properties through sale deed dated
01.03.1933 and hence the properties are their ancestor properties.
Adjacent to the plaintiffs’ patta lands, the government poramboku lands
in S.No.128/B2 are available. The plaintiffs patta lands along with
government poramboku lands are continuous and the plaintiffs were
considering as single piece of land and was in possession and enjoyment
by planting trees in the government poramboku lands and fencing the
same along with their patta lands. The plaintiffs’ family are in possession
and enjoyment of the land for more than 100 years by paying ‘B’ memo.
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The defendants are having land adjacent to the plaintiffs' property which
is situated in S.Nos.128/B1 to the total extent of 0.87.50 Ares.
5. The plaintiffs has sought declaration and injunction for
the three items, namely S.No.124, S.No.125 and 128/B2. The Trial Court
had dismissed the suit in entirety. However, on appeal, the First Appellate
Court has granted declaration and injunction for S.No.124/2 and 125,
thereby partly allowed the appeal. As far as S.No.128/B2 is concerned
the First Appellate Court has dismissed the said appeal. Now the dispute
is only to the property situated in S.No.128/B2 having larger extent. The
specific contention of the plaintiffs is that they are in possession and
enjoyment of the property situated in S.No.128/B2 based on 'B' memo.
This Court is of the considered opinion that once 'B' memo is issued, the
plaintiffs cannot claim adverse possession. The 'B' memo indicates that
the plaintiffs are in permissive possession. Therefore, the claim of the
plaintiffs that they are in adverse possession is erroneous and incorrect
and their claim falls.
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6. Admittedly, the said land in S.No.128/B2 is classified as
'Parai Poramboke', which belongs to the Government and therefore, the
plaintiffs are not entitled for the relief of declaration. However, as far as
relief of injunction is concerned, the same may be considered, since the
plaintiffs are in possession of the property.
7. The defendants 1 & 2 are claiming pathway in the said
land in S.No.128/B2. Since the land belongs to the Government, pathway
cannot be declined. After creating 10 feet width pathway, the balance
land the plaintiffs are entitled. However, it is made clear the plaintiffs are
entitled to the balance land under B memo only. Therefore, the
defendants 3 & 4 are directed to grant pathway to the defendants 1 & 2
and the other 3rd parties to use the same as pathway, which is shown in
the diagram attached to this Judgment.
Land belongs to AB S.No.128/B2 Government
third parties CD Poramboku land, the plaintiff is
in in possession under B memo
1st and 2nd defendants’ land S.No.124
In S.No.128/B1 Plaintiff’s
land
S.No.125 Plaintiff’s land
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8. The pathway shall be created as stated supra. As far as the
remaining land is concerned, the plaintiffs are not entitled to the relief of
declaration, however, they are allowed to continue their possession based
on the 'B' memo with a condition that the plaintiffs shall maintain the
land for agricultural activities alone.
9. The Second Appeal is admitted on the 3rd substantial
question of law. In view of the above discussion, the 3 rd substantial
question of law is held against the plaintiffs and the declaration is
declined. However, the plaintiffs are permitted to be possession under B
memo. The plaintiffs and the defendants 1 & 2 and other 3 rd parties are
permitted to use the land in 'ABCD' as pathway.
10. With the above observations, this First Appeal judgment
is modified to the extent stated above and the second appeal is partly
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allowed. No Costs. Consequently, connected miscellaneous petition is
closed.
24.11.2023
Index : Yes / No
NCC : Yes / No
KSA
TO:
1. The Sub Court,
Vedasanthur.
2. The District Munsif Court cum Judicial Magistrate,
Vedasanthur, Dindigul District.
3. The Tahsildar,
Vedasanthur Taluk,
Dindigul District.
4. The District Collector,
O/o.the Collectorate Office,
Dindigul,
Dindigul District.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.SRIMATHY, J.
KSA
Judgment made in
Dated:
24.11.2023
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