Madras High Court
D.Jegadevan vs K.Jeeva on 9 January, 2024
Author: P.T. Asha
Bench: P.T. Asha
S.A.No.670 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.01.2024
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.670 of 2023
and
C.M.P.No.21373 of 2023
M.Dhanapal Naicker (Died)
1. D.Jegadevan
2. D.Ponnurangam
3. D.Subramani
4. D.Mohan ... Appellants
Vs.
1. K.Jeeva
2. State,
Represented by
The Tahsildar,
Taluk Office,
Chengalpattu,
Kancheepuram District. ... Respondents
PRAYER: Second Appeal filed under Section 100 of C.P.C. to set aside
the judgment and decree dated 24.04.2023 in A.S.No.8 of 2018 passed by
the learned Additional Sub Judge, Chengalpattu @ Kancheepuram District,
confirming the judgment and decree of O.S.No.225 of 2012 dated
24.11.2017 passed by the learned District Munsif, Chengalpattu.
1/16
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S.A.No.670 of 2023
For appellants : Mr.V.Chinnasamy
For respondents :
For R1 : Mr.G.Balasubramanian
For R2 : M/s.Dr.S.Suriya
Additional Government Pleader
JUDGMENT
The first defendant has filed the above appeal challenging the
judgment and decree passed in O.S.No.225 of 2012 by the learned
District Munsif, Chengalpattu, which was confirmed by the learned
Additional Sub Judge in A.S.No.8 of 2018.
2. The facts which have given rise to the filing of the above
second appeal are set out hereinbelow and the parties are referred to in
the same litigative status as before the Trial Court.
FACTS OF THE CASE:
2.1. The plaintiff had filed the aforesaid suit for declaration of
his title to the suit schedule property and for injunction restraining the
defendants from interfering with his peaceful possession and
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enjoyment of the suit schedule property and from alienating the same
and also for mandatory injunction directing the second defendant i.e.,
The Tahsildar, Chengalpattu, to delete the name of the first defendant
from the Patta No. 858.
2.2. It is the case of the plaintiff that he had purchased the suit
property from one Adhiseshan under a registered sale deed dated
23.06.2004 and thereby, he became the absolute owner of an extent of
0.17 cents in S.No.391/1F situated at Kalvoy Village. From the date of
purchase, the plaintiff was in possession and enjoyment of the said
property and he has also obtained mutation of the revenue records and
even patta has been granted under Patta No. 858.
2.3. Further, one Duraisamy Naidu and Sardhammal were
owning several other properties in the suit village viz., Kalvoy and
thereafter were exercising all acts of ownership in respect of those
properties. They had been allotted Patta No.98. Thus, the property
comprised under this Patta No.98, on the death of the said Duraisamy
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Naidu, was divided orally between the son Ramakrishnan and wife
Saradhammal and they were in possession of their respective portion.
The lands in old Survey No. 391/1 was sub-divided into 1A-1N and an
extent of 0.7 ares in S.No.391/1F and an extent of 0.12 ares in
S.No.391/1N and other items fell to the share of his son Ramakrishnan
who was in possession and enjoyment of the same. He had been
allotted Patta No.371 in respect of these properties.
2.4. The said Ramakrishnan and his three sons had divided the
properties and the 'B' schedule property fell to the share of the
plaintiff's vendor. The suit property was one of the properties described
in the 'B' schedule property. The plaintiff's vendor was, therefore, in
possession and enjoyment of the same. The suit property consists of 11
items. The plaintiff had purchased the property after confirming the
title of his vendor.
2.5. The first defendant who had no right to the suit property, in
the 3rd week of March 2012, allegedly claimed that he was a joint
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pattadar and attempted to interfere with the plaintiff's possession and
enjoyment of the suit property. The plaintiff would submit that the
second defendant had included the name of the first defendant in Patta
No.858 which was issued to the plaintiff in the year 2005. The plaintiff,
therefore, made a necessary application to the second defendant on
09.05.2012 and 25.06.2012, seeking deletion of the first defendant's
name from Patta No.858. The second defendant gave evasive reply in
this regard. The inclusion of the first defendant's name in the plaintiff's
patta by the second defendant has been done without following due
process of law and therefore, it is void and not binding on the plaintiff.
Therefore, the plaintiff has come forward with the suit in question.
2.6. The first defendant had filed a written statement contending
that the plaintiff is not in physical possession and enjoyment of the
property. The first defendant would contend that he had purchased the
suit property and an extent of 62 cents in S.No.391/1 and lands in
S.No.391/2 at Kalvoy Village from one Thulukkana Naicker under a
registered sale deed dated 05.11.1969. The first defendant had
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purchased 1 acre 25 cents and from the date of purchase, he has been in
possession and enjoyment of the same. The first defendant would admit
the fact that the total extent of land in S.No.391/1 measured 3 acres 5
cents. The Encumbrance Certificate would reveal that the first
defendant is the absolute owner of the suit property and other
properties comprised in S.No.391/2.
2.7. While so, under UDR Scheme, the patta has been wrongly
issued by the revenue authority, the second defendant herein, to an
extent of 62 cents in favour of one Ramakrishna Naidu. The said
Ramakrishna Naidu and his sons viz., Adhisesan Naidu, Ranganathan
Naidu and Manoharan Naidu have partitioned the suit property and
other properties under a registered partition deed in the year 1996.
2.8. The first defendant would submit that his son Mohan has
lodged a criminal complaint on 02.10.2008 against Ramakrishna Naidu
and his sons stating that they had trespassed into the suit property and
cut the casuarina trees grown in the suit property. The first defendant
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was not aware of the purchase of the property by the plaintiff. The first
defendant and the said Ramakrishna Naidu and his sons were called for
an enquiry and the second defendant had not further proceeded with the
complaint.
2.9. It is the case of the first defendant that the suit property was
allotted to Adhiseshan, son of Ramakrishna Naidu and he had
conveyed the suit property to the plaintiff under a registered sale deed
bearing Doc.No.2104 of 2004. Thereafter, the first defendant is in
uninterrupted peaceful possession and enjoyment till date and his son
has sent representation on 26.07.2006 to the second defendant for
transfer of patta in their name with reference to the suit property and
other extent of land. The second defendant issued notice to the first
defendant and one Devaraj calling upon both of them to attend the
inspection of the land. Since the proceedings in second appeal in
S.A.No.440 of 2008 is pending before this Court, the second defendant
had informed the first defendant that the patta would be transferred
after judgment and decree is delivered in the second appeal. The second
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defendant had also issued notice to the first defendant and Village
Administrative Officer of Kalvoy Village to attend the enquiry on
petition for transfer of patta. It is also the case of the first defendant
that the joint patta was issued by the second defendant without issuing
proper notice and conducting proper enquiry.
2.10. The first defendant would also submit that a memorandum
was submitted to the second defendant on 24.03.2012 to cancel the
joint patta and in this regard, the papers had been forwarded to the
Village Administrative Officer, Kalvoy Village and the first defendant
had also attended the enquiry. The first defendant would submit that
the subsequent sale deed executed by the said Adhikesavan in favour of
the plaintiff under the registered sale deed is not binding on the first
defendant since the said Adhikesavan had no locus standi to execute a
deed in favour of the plaintiff. The plaintiff had also not described how
his vendor obtained the right to the property. He, therefore, sought for
the dismissal of the suit.
2.11. The second defendant had filed a written statement and
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admitted that he had issued a joint patta in the name of the plaintiff and
the first defendant pursuant to the representation by the first defendant
on 27.01.1994. In response to the application filed by the first
defendant to issue patta in his favour in respect of
S.No.378/1C1,398/11, 378/1, 391/1, 382/2, 392/2, 372/1, 377/1 and
382/2B of Kalvoy Village, the second defendant had called upon the
parties to attend the enquiry and in the said enquiry, they had come to
know about the pendency of the application before this Court.
Therefore, the second defendant had sought for the dismissal of the
suit.
TRIAL COURT:
3. The Trial Court had framed the issues and the plaintiff had
examined himself as P.W.1 and marked Exs.A1 to A10. On the side of
the defendants, the first defendant has examined himself as D.W.1 and
marked Exs.B1to B11.
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4. On hearing both the sides and on perusing the records, the
Trial Court had decreed the suit.
LOWER APPELLATE COURT:
5. Challenging the same, the first defendant had filed an
appeal in A.S.No.8 of 2018 before the learned Additional Subordinate
Judge, Chengalpattu at Kancheepuram District.
6. The Lower Appellate Court had framed the following
points for consideration:
“1.Whether the suit property purchased by the
plaintiff is the same as purchased by the 1st defendant?
2.Whether the plaintiff is entitled to the relief of
declaration of title and consequential injunction as
prayed?
3.Whether the plaintiff is entitled to the relief of
mandatory injunction as prayed?
4.Whether the petition under Order 41 Rule 27
C.P.C. filed by the appellant to receive the additional
document can be allowed or not?
5.Whether this appeal suit can be allowed or not?”
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7. The Lower Appellate Court had perused the evidence and
come to the conclusion that on a perusal of Ex.A5 – partition deed
dated 22.02.1996 which was a deed under which the said Ramakrishna
Naidu and his sons had partitioned the suit property along with other
properties, the suit property was also allotted to the share of the
plaintiff's vendor Adhiseshan. It is from the said Adhiseshan, the
plaintiff has purchased the suit property under Ex.A10 dated
23.06.2004. The plaintiff had filed Exs.A1 to A4 and Ex.A6 to A9
which were the revenue records.
8. The first defendant had denied the plaintiff's case and had
stated that the suit property belonged to Munusamy Naicker and the
said Munusamy Naicker, under Ex.B1 – sale deed dated 13.08.1923,
had purchased the suit property from Munusamy Naidu and others.
From the son of Munusamy Naicker viz., Thulukana Naicker, the first
defendant had purchased the suit property under Ex.B2 – sale deed
dated 05.11.1969. The first defendant would admit that the said
Munusamy Naicker had another son viz., Thiruvengada Naicker apart
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from Thulukana Naicker. The sons had a dispute in respect of the
property and filed a suit before this Court and to meet out the litigation
expenses, Thulukana Naicker had sold away the property to the first
defendant.
9. It is also the case of the first defendant that Thiruvengada
Naicker and his wife, Kannammal has filed a suit in O.S.No.103 of
1972 as against his brother Thulukana Naicker and against the first
defendant for declaration of title and permanent injunction in respect of
the property comprised in S.No.391/1 measuring an extent of 0.62
cents. This suit was dismissed after contest and the appeal filed in
A.S.No.4 of 1988 also ended in a dismissal which is evident from
Exs.B3 and B6.
10. The Lower Appellate Court came to the conclusion that the
property of the defendant and the plaintiff were entirely different. The
Lower Appellate Court had also observed that the first defendant had
not discharged the onus cast on him to prove his possession and the
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plaintiff had proved his title and possession through Ex.A1 to A10 and
proceeded to dismiss the appeal.
11. The Lower Appellate Court had also observed that the
inclusion of the name of the first defendant in Patta No.858 has been
done without proper notice to the plaintiff and therefore, the same
cannot be looked into.
12. Challenging the same, the first defendant is before this
Court.
13. Heard the learned counsel on either side and perused the
materials available on record.
DISCUSSION:
14. The only argument that has been adduced by the learned
counsel for the appellant/first defendant was that the Courts below
ought not to have allowed the plaintiff's case since the jurisdiction to
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decide on the grant of patta solely rests on the Thasildar and the final
authority of powers vests with the District Revenue Officer,
Commissioner of Land Registration. The learned counsel would submit
that the suit was barred under the proviso to Section 14 of the Tamil
Nadu Patta Pass Book Act, 1982.
15. The suit has been filed to declare the plaintiff's title to the
property and to restrain the defendant from interfering with his peaceful
possession and enjoyment of the suit property and from alienating the
same. The mandatory injunction is sought to delete the name of the first
defendant from the patta as a consequence of such declaration.
16. The Courts below held that the property of the defendant
and the property of the plaintiff are different and distinct and that the
plaintiff, by filing Exs.A1 to A10, has proved his title and possession
of the suit schedule property. The proviso to Section 14 of the Tamil
Nadu Patta Pass Book Act, 1982, allows the person, who is aggrieved
by the entry made in the patta pass book described in respect of the
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property in which he is in possession and enjoyment, to institute a suit
for declaring his rights. Therefore, the suit filed is very much in order
and the argument of the appellant/first defendant has to be necessarily
turned down.
17. Both the Courts below have extensively considered the
evidence on record and decreed the suit. The first defendant has not
been able to prove as to how concurrent judgment is erroneous and has
also not made out any substantial question of law.
Accordingly, this second appeal stands dismissed. Consequently,
the connected C.M.P. stands closed. No costs.
09.01.2024
Index : Yes/No
Speaking order/non-speaking order
ssa
To
1. The Additional Sub Judge, Chengalpattu.
2.The District Munsif, Chengalpattu.
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3.The Section Officer, V.R.Section, High Court, Madras.
P.T.ASHA, J.,
ssa
and
09.01.2024
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