Madras High Court
A.Ayyanarappan vs Erode Municipal Corporation By Its on 12 September, 2024
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
AS. No.903 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.09. 2024
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
AS. No.903 of 2020
& CMP No. 19001 of 2022
A.Ayyanarappan ...Appellant
Vs.
1.Erode Municipal Corporation by its
Commissioner, Erode,
2.The Director,
Town and Country Planning, Chennai - 2.
3.The Deputy Director,
Town and Country Planning, Salem.
4.The State of Tamil Nadu rep. by its
District Collector, Erode District, Erode.
...Respondents.
PRAYER : This first appeal is filed under section 96 of the Civil
Procedure Code, against the judgment and decree dated 02.03.2020 made in
OS No. 125 of 2014 on the file of the I Additional District Court, Erode and
prayed to set aside the same.
For Appellant : Mr.Hema Sampath, Senior counsel,
1
https://www.mhc.tn.gov.in/judis
AS. No.903 of 2020
for Mr.C.Prakasam
For Respondents : Mr. P. Wilson, Senior counsel,
for Mr.M.Rajamathivanan
Mr.T.Sampath Kumar
JUDGMENT
This first appeal has been filed against the judgment and decree dated
02.03.2020 made in OS No. 125 of 2014 on the file of the I Additional
District Court, Erode and prayed to set aside the same.
2. The appellant herein is the plaintiff, who filed the suit OS No. 125
of 2014 on the file of the I Additional District Court, Erode for the following
relief in respect of the suit with an extent of 3877 square feet with four
boundaries against the respondents herein/defendants.
a. declare that the plaintiff is the absolute owner of the suit property;
b. restraining the defendants, their men and agents from in any
manner interfering with the peaceful possession and enjoyment over the suit
property by means of permanent injunction;
c. direct the 1st defendant to restore the suit property into original
position within a day fixed by this Honourable court failing which any
officer of this Honourable court may be appointed and restore the same to its
https://www.mhc.tn.gov.in/judis
original position at the cost of the 1st defendant by means of mandatory
injunction ;
d. direct the 1st defendant to delivery and vacant possession of the suit
property to the plaintiff;
e. declare that the lay out plan approved by the defendants 2 and 3 in
favour of Subbaraya Pillai in LPR(CN) 221/79 is null and void and not
binding upon the plaintiff;
f. restraining the 1st defendant and their men and agents from in any
manner either putting up or further construction of sewage tank in the suit
property by means of permanent injunction;
g. directing the defendants to pay a sum of Rs.10,00,000/- with
subsequent interest and costs towards damages caused by the 1st defendant
in the suit property;
h. direct the defendants to pay the costs of the suit and
i. grant such other further reliefs as this Honourable court may deem
fit and proper under the circumstances of the cases and thus render justice.
https://www.mhc.tn.gov.in/judis
3. The brief facts of the plaintiff case is follows:
According to the plaintiff, the suit property was originally belongs to
one C.Subbaraya Pillai and his sons, who plotted out the same and he had
sold three plots to C.N. Raja under registered sale deed dated 02.05.1979
and the said Subbaraya Pillai had executed the sale deed for himself and on
behalf of his two sons under registered power of attorney deed dated
02.05.1979. Ever since, the said Raja was under the possession and
enjoyement of the property, at that time there was no approved plan and
never handed over road and reserve sites to the the Panchayat for the public
purpose by his vendor Subbaraya Pillai. Likewise, the said Subbaraya Pillai
had sold another sites to the A.Indirakumar through registered sale deed
dated 10.09.1979. After that the mother of the plaintiff namely
A.Chinnammal had purchased the vacant site from C.N.Raja and
Indirakumar with an extent of 4000 & 3695 square feet, respectively through
sale dee dated 02.05.1979 totally 7695 square feet. After that she enjoyed the
said suit property as absolute owner, during her life time with sound state of
mind she executed a Will in favour of the plaintiff and his brother on
27.03.1995 and thereafter she was died on 31.08.2002 leaving behind the
plaintiff and his brother as legal heirs. As per the Will, the plaintiff enjoying
https://www.mhc.tn.gov.in/judis
the suit property more particularly property purchased by his mother from
Raja before approval of plan which is the subject matter of the suit. The
plaintiff claiming that in respect of the suit property there was no approved
plan while erstwhile vendor of the plaintiff's mother purchasing the property
in the month of May 1979. Since the plan was approved only in the month of
July 1979 therefore Town planning authority as well as Panchyat has no
right to cause interference against the plaintiff but they attempted to
construct Sewage Tank in the suit property for which they are not entitled.
Hence, the plaintiff the suit for the above said relief.
4. The brief facts of the respondent case is follows:
As per the written statement filed by the third defendant adopted by
the defendants 2 and 4, the suit property is reserved sites for the public
purpose as per layout order No. LPR (CN) 221/79. As per the layout
approval, neither the plaintiff nor his predecessor in title having any right in
the suit property. Near about after 33 years the plaintiff filed the suit to
declare the approval plan as null and void as such is not maintainable. At
earliest the plaintiff should have filed the suit within three years thereby suit
is not maintainable in law. Further, the defendants denied the allegations
https://www.mhc.tn.gov.in/judis
that the property is under the possession of plaintiff's and the same also not
handed over to the panchayat after approval of plan. The defendants
contended that at earliest occasion, OS No. 532 of 2005 was filed by the
plaintiff and the same was withdrawn by him, wherein, the defendants
claimed recovery of possession. Therefore, they are not entitled to file the
present suit which is barred under Order 2 Rule 2 CPC.
5. On the side of the plaintiff, five witnesses were examined as P.W.1
to P.W.5 and marked 31 documents as Ex.A1 to EX.A31. On the side of the
defendants one witness was examined as D.W.1 and marked four documents
as Ex.B1 to Ex.B4 and the Commissioner report and commissioner plan
were marked as Ex.C1 & Ex.C2.
6. On considering the evidence on record, the Trial Court framed five
issues which are related to the claim of the plaintiff. The Trial Judge after
analysing the evidence on record, finally held that the original owner of the
land is Subbaraya Pillai ceased to be legal owner of the suit land once it has
been shown as it was allotted for public purpose as per the approved plan in
which the plaintiff has no right. After giving the property to public purpose,
https://www.mhc.tn.gov.in/judis
the purchase made by the plaintiff's mother from her Vendor Raja and
Indirakumar is not valid one. So also, purchase made by the plaintiff's
mother/Chinnammal from her vendors as such is also not valid one.
Accordingly, the suit was dismissed by the Trial Court. Challenging the
same, the plaintiff filed this appeal.
7. The learned senior counsel appeared for the appellants/plaintiff
submitted that the suit is restricted to item No.2 of the suit property which
was sold to one Raja through Ex.A4/sale deed dated 02.05.1979 by the
original owner Subbaraya Pillai before applying for layout sanction hence
suit property is not part of the property of the approved sanctioning layout
plan nor it is forming part of the property purchased by the Indirakumar
which is subsequent to the layout sanction. Therefore, the plaintiff is entitled
for the relief of as he prayed for in the suit, since the suit property was
purchased by her vendor Raja before sanctioning the layout. But the Trial
Court without appreciating the above legal aspects erroneously appreciated
the evidence as well as the documents submitted on the side of the
defendants/respondents herein dismissed the suit. Hence, she prayed to set
aside the findings of the Trial Court.
https://www.mhc.tn.gov.in/judis
8. By way of reply, the learned senior counsel appeared for the
respondents/defendants submitted that even at the time of the purchase
made by the plaintiff's mother's erstwhile vendor/Raja, the original owner
Subbaraya Pillai plotted out the lands and sold one portion of the property to
Raja in the month of May and the plan was approved in the month of June
1979. Thereafter, sold another portion of the plot in the month of December
to Indirakumar, thereafter from that Raja and Indira Kumar the plaintiff's
mother purchased the suit properties which is more than 7000 square feet.
But as per the approved plan, the said property was reserved for public
purpose. Even at the time of the purchase made by the plaintiff's mother in
the month of December 1979 the plan was approved. Therefore, the site
reserved for the public purposes, in which, neither the plaintiff nor his
vendor having any right or title. Therefore, the Trial Court rightly dismissed
the suit as such needs no interference. Hence, he prayed to dismiss this
appeal.
9. The points to be decided is whether the plaintiff is entitled for the
relief of declaration with other consequential relief as prayed in the suit in
respect of the suit property which was sold before the approval of the layout
https://www.mhc.tn.gov.in/judis
or defendants entitled to put up Sewage tank in the suit property which is
reserved for public purpose as per the plan approved in July 1979 ?
10. According to the plaintiff, originally one Subbaraya Pillai for
himself and on behalf of his sons had executed power of attorney and sale
deed in favour of one C.N.Raja on 02.05.1979 for an extent of nearly 4000
square feet which is forming part of the suit property while at that time
there was no approved plan. In fact, application for approval was said to be
made in the month of July 1979. Therefore, the property handed over under
Ex.A4 is stands in the name of the erstwhile vendor Raja which was not
reserved for public purpose at the time of the said purchase. Therefore, the
sale deed stand in the name of the Raja is valid one. So also, purchase made
by the plaintiff's mother from the said Raja also valid one to that effect the
plaintiff is entitled to the relief as he prayed for in the suit. So plaintiff not,
disputing the purchase made by the plaintiff's mother from another owner
Indirakumar, who purchased the property from Subbaraya Pillai after
approval of the layout and the sale deed stands in the name of the plaintiff's
mother dated 10.09.1979 is marked as Ex.A5 which covers both the house
site purchased by Raja and Indirakumar which comes around more than
https://www.mhc.tn.gov.in/judis
7000 square feet. Therefore, plaintiff claiming more precisely absolute right
over the property which covers under the Ex.A4 said to be purchased by
raja before approval of the layout.
11. By way of reply, the learned counsel for the defendants submitted
that though the plan was approved on 23.07.1979 while said Raja purchased
the property (Ex.A4) from Subbaraya Pillai which is two months prior to the
approval, even at that time, the property was divided into house sites,
therefore in the said sale deed property was described with four boundaries
mentioning the house sites as boundaries as per the layout plan. Therefore,
even at the time of the selling the property Subbaraya Pillai formed layout
and the same was submitted subsequently it was approved. Even assuming
that at the time of purchase made by the Raja there is no approved plan
subsequently when the plaintiff's mother purchased the property in the
month of November 1979 at that time plan was approved and property
covered under the said sale deed is reserved for public purpose, as per the
said approved plan. Therefore, the mother of the plaintiff is a bonafide
purchaser, she ought to have verify the documents while purchase, but she
failed. Therefore, the sale deed/Ex.A5 stands in her name is not a valid
https://www.mhc.tn.gov.in/judis
document nor it bind the defendants. Countering the same, the the learned
senior counsel for the appellant submitted that suit property was not handed
over to the panchayat by gift deed by the original vendor since they have not
taken possession within three years so the defendants have no right to cause
interference as it was not handed over under the approved plan at the time of
purchase made by the erstwhile vendor Raja.
12. Heard the rival submissions and perused the records. In the
Ex.A4/sale deed boundaries are described as on the East house site No.8, on
the West house site No.10, also mentioned house site No.9 with 25 feet road
on East West. Therefore, at the time of selling the property by the original
owner Subbaraya Pillai to the purchaser Raja in the month of May 1979 he
formed a layout by a leaving road. Subsequently, such layout was approved
in the month of July 1979. Thereafter, the mother of the plaintiff purchased
the property in the month of December 1979 through sale deed/Ex.A5 from
the said Raja as well as from Indirakumar. Admittedly, Indirakumar
purchased the property after approval of the layout but while purchase made
by the plaintiff's mother the plan was approved, wherein the entire extent
which is near about 7200 square feet was shown as reserve site for public
https://www.mhc.tn.gov.in/judis
purpose. In the sale deed/Ex.A5(which stands in the name of the
Indirakumar), the layout approval plan 670 47 (CN ) 221/79 , sanctioned
house sites was mentioned. Subsequently, the plaintiff's mother/Chinnamal
purchased the property on 14.12.1979 which was marked as Ex.A6, as per
the boundary description in the said document there is no mentioning about
the layout approval number. On the other hand, they simply mentioned as
7695 square feet land with common road. Therefore, at the time of purchase
made by the plaintiff's mother/Chinnamal, not mentioning about the
approved plan which was mentioned that one of the vendor Indirakumar sale
deed. If really the mother of the plaintiff is a bonafide purchaser, she should
have verified the documents before she made purchase. As rightly pointed
out by the defendant's counsel, in the Indirakumar vendor's sale deed there is
mentioning about the layout, but they omitted to mention in the layout plan
in the sale deed stands in the name of the plaintiff's mother though they
mentioning about the common road as per layout plan. It is an admitted fact
that at the time of purchase made by the plaintiff's mother there was
approved layout wherein 7695 square feet purchased by the plaintiff's
mother is reserved site for public purpose. Since the mentioning of the road
as per the layout in the boundaries description of the sale deed, the mother of
https://www.mhc.tn.gov.in/judis
the plaintiff might have known about the formation of the layout while
purchasing the property. Therefore, neither the plaintiff nor his mother
entitled to plea ignorance. On the other hand, they purposefully omitted to
mention about the approved layout in the sale deed though it is found in her
vendor's sale deed.
13. As per the argument advanced on the side of the plaintiff/appellant
herein now the plaintiff restricted his claim in respect of item No2 of the suit
property which said to be forming part of the sale deed of the plaintiff's
mother's vendor prior to the approval of the plan in respect of the suit
property they are entitled for declaration as they are absolute owner as it
was not forming part of the approved plan. Even on bare perusal of the sale
deed stands in the name of the C.N.Raja in the boundary description original
vendor Subbaraya Pillai mentioned house site number as boundaries.
Therefore, even at the time of the purchase made by the Raja layout was
formed so that only house sites number was shown as boundary as well as
25 feet road which is a common road as per the site plan. Even the recitals
of the sale deeds reveals that original owner expressed that he is forming a
layout one such portion was sold to the said Raja. At the time of purchase
https://www.mhc.tn.gov.in/judis
made by the Raja the property covered in Ex.A4 sale deed was allotted to
the public purpose by the original vendor. Thereafter, the said Subbaraya
Pillai submitted application for approval of layout in the month of July and
the same was approved in the month of July itself which is 1 1/2 month after
the purchase made by the C.N. Raja. But the counsel for the plaintiff
submitted that original vendor Subbaraya Pillai not submitting any
encumbrance certificate while submitting application for getting approval.
As discussed above, in the boundary description house sites was mentioned
which itself shows that while purchase made by the Raja the entire extent of
the property was divided into house plots. However, purchase made by the
plaintiff's mother /Ex.A6 in the month of July 1979 the plan layout was
approved for entire extent of 7200 reserved for the public purposes.
Therefore, the plaintiff has no right to claim the suit property which allowed
for the public purpose as per the plan. Though the plaintiff contended that
they put up compound wall and used as godown whatever purpose they used
it would not confer any title. Neither original owner nor plaintiff's mother
not gifted the property. Hence the respondents issued notice as per the layout
procedure adopted by the authorities concerned. Therefore, at the time of
the purchase made by the plaintiff's mother the plan was approved the suit
https://www.mhc.tn.gov.in/judis
property was reserved sites for the public purpose as they are entitled, hence
the defendants taking efforts to put up Sewage tank for public purpose the
plaintiff/appellant shall not to cause any disturbance to the defendants
authorities accordingly both issues are answered. Accordingly appeal is
dismissed. No Costs. Consequentially, connected miscellaneous petition(s),
if any, is/are closed.
12.09.2024
pbl
To
1. The I Additional District Court, Erode.
2.The Section Officer,
V.R Section.
https://www.mhc.tn.gov.in/judis
T.V.THAMILSELVI,J.
Pbl
12.09.2024
https://www.mhc.tn.gov.in/judis
