Madras High Court
Annamalai vs Kalimuthu on 16 April, 2024
Author: R.Vijayakumar
Bench: R.Vijayakumar
C.R.P(MD)No.1418 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.04.2024
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.R.P(MD)No.1418 of 2019
and
C.M.P(MD)No.7546 of 2019
Annamalai ... Petitioner /Petitioner/
5th Defendant
Vs.
1.Kalimuthu
2.Kavitha
3.Kaliammal ... Respondents/Respondents 1-3/
Plaintiffs
4.Vellaisamy
5.The Tahsildar,
Taluk Offic,
Karaikudi,
Karaikudi Taluk,
Sivagangai District.
6.The Joint Commissioner,
Hindu Religious and Charitable Endowment Department,
Sivagangai,
Sivagangai District.
7.The State of Tamil Nadu,
Through its District Collector,
Collector Office,
Sivagangai District. ...Respondents/Respondents 4-7/
Defendants 1-4
https://www.mhc.tn.gov.in/judis
1/8
C.R.P(MD)No.1418 of 2019
PRAYER: Civil Revision Petition is filed under Article 227 of
Constitution of India, to call for the records of the learned Principal
District Munsif-cum-Judicial Magistrate, Karaikudi made in I.A.No.229
of 2018 in OS No.22 of 2017 and set aside the Fair and Decreetal Order,
dated 17.07.2019.
For Petitioner : Mr.R.Balakrishnan
For R1 - R3 : Mr.C.Godwin
For R4 : No Appearance
For R5 & R7 : Mr.C.Satheesh
Government Advocate
For R6 : Mr.P.Subbaraj
Special Government Pleader
ORDER
The 5th defendant in O.S.No.22 of 2017 is the revision petitioner
herein.
2. The said suit was filed by the respondents 1 to 3 herein as
plaintiffs for the relief of declaration of title and permanent injunction.
Pending suit, the 5th defendant had filed I.A.No.229 of 2018 under Order
7 Rule 11 of Code of Civil Procedure to reject the plaint. The said
application has been dismissed by the trial Court on 17.07.2019.
Challenging the said order, the present revision petition has been filed.
3. A perusal of the plaint indicates that the suit has been filed for
declaration of title over ‘A’ schedule property and permanent injunction
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in favour of the 1st plaintiff. It is further prayed for declaration of title of
‘B’ schedule property and for permanent injunction in favour of the 2nd
defendant. It has been further prayed for declaration of title with regard
to ‘C’ schedule property and permanent injunction in favour of the 3rd
defendant. It could be seen from the plaint that Tahsildar has been
impleaded as the 2nd defendant, Joint Commissioner (HR & CE)
Department, Sivagangai has been impleaded as the 3rd defendant and the
Government of Tamil Nadu, represented by the District Collector,
Sivagangai has been impleaded as the 4th defendant.
4. The 5th defendant had filed I.A.No.229 of 2018 under Order 7
Rule 11 of Code of Civil Procedure on the ground that the revenue
authorities have already initiated proceedings under the Land
Encroachment Act and notice under Section 7 of the said Act has been
issued. Therefore, the present suit is barred under Section 14 of the said
Act. On the sole ground that the said application was filed.
5. The plaintiffs have filed a counter contending that the property
has been classified as Natham property and patta has been issued by
Tahsildar in Patta No.293 in the name of their father to new R.S.No.
271/3 in old Survey No.271/2 to an extent of 0.0242 Hectares on
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05.10.1989. They have further contended that since the property is a
Natham property and patta has already been granted and the defendants
are disputing the title of the plaintiffs, they are constrained to file the
present suit. They have further contended that the proceedings initiated
under the Land Encroachment Act is not a bar for filing a suit for
declaration of title.
6. The trial Court after considering the submissions made on either
side, has arrived at a finding that the plaint has to be read as a whole and
if the plaint discloses a cause of action, the plaint cannot be rejected. The
trial Court has also relied upon the judgment of this Court to the effect
that Grama Natham does not belong to the Government. The trial Court
had further found that in view of the judgment of this Court, the notice
issued under the Land Encroachment Act will not affect the title or the
maintainability of the said suit. Based upon the said findings, the
application under Order 7 Rule 11 of Code of Civil Procedure has been
dismissed. Challenging the same, the present revision petition has been
filed.
7. According to the learned counsel appearing for the revision
petitioner, already proceedings have been initiated under Section 78 of
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the Hindu Religious and Charitable Endowment Act as against the
present plaintiffs. Therefore, the present suit is barred. He had further
contended that when the proceedings have already been initiated also
under the Land Encroachment Act, Section 14 of the said Act would be a
bar.
8. Per contra, the learned counsel appearing for the respondent
contended that Section 14 would be a bar only if the noticee challenges
any one of the actions initiated by the revenue officials. That would not
be a bar for filing a suit for declaration of title. Hence, he prayed for
dismissal of the revision petition.
9. I have carefully considered the submissions made on either side.
10. The sole ground on which an application under Order 7 Rule
11 of Code of Civil Procedure Code has been filed is that the suit is
barred under Section 14 of the Land Encroachment Act. A perusal of the
said Section clearly reveals that the bar applies only to the challenge
made to an order or proceedings taken by any officer or authority or the
State Government under the said Act. Therefore, it is clear that whenever
a suit is filed for declaration of title, bar under Section 14 of the Act is
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not attracted. That apart, in the present suit, the Joint Commissioner of
Hindu Religious and Charitable Endowment Department is also a party.
Therefore, if already proceedings have been initiated under Section 78 of
the Hindu Religious and Charitable Endowment Act, it is for them to
proceed in accordance with law. Therefore, at the time of considering an
application under Order 7 Rule 11 of Code of Civil Procedure, the
averments in the plaint and the documents annexed to the plaint alone
can be considered. The trial Court has rightly considered the averments
and found that there is a cause of action and the suit is not barred by any
law. There is no illegality or infirmity in the order passed by the trial
Court. The said order does not warrant any interference at the hands of
this Court. It is for the revision petitioner to work out his remedy in a
manner known to law.
11. With the above said observations, this Civil Revision Petition
stands dismissed. No costs. Consequently, connected Civil
Miscellaneous Petition is closed.
16.04.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes
gbg
https://www.mhc.tn.gov.in/judis
To
1.The Principal District Munsif
cum Judicial Magistrate,
Karaikudi.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
R.VIJAYAKUMAR ,J.
gbg
Order made in
16.04.2024
https://www.mhc.tn.gov.in/judis
