Madras High Court
Govindasamy vs Regupathy (Died) on 2 July, 2025
Author: T.V. Thamilselvi
Bench: T.V. Thamilselvi
S.A.No.1570 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.07.2025
CORAM:
THE HONOURABLE MRS. JUSTICE T.V. THAMILSELVI
S.A.No.1570 of 2011
and
M.P.No.1 of 2011
1 Govindasamy
2 Chinnadurai (died) ...Appellants/Respondents/Plaintiffs
3 Arulselvan
4 Sathyaselvam ... Appellants 2 to 4
(Appellants 3 and 4 brought on record as legal heirs of the deceased 2nd
appellant vide order of this Court dated 29.03.20222 made in C.M.P.Nos.2251,
2255 and 2257 of 2022)
Vs.
1 Regupathy (died) .. Respondent/Appellant/Defendant
2 Tamilarasi
3 Prabhakaran
4 Prakash ...Respondents 2 to 4
(Respondents 2 to 4 brought on record as legal heirs of the deceased 1 st
respondent vide order of this Court dated 12.04.20222 made in
C.M.P.Nos.2242, 2245 and 2249 of 2022)
1/12
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S.A.No.1570 of 2011
Prayer: Second Appeal is filed under Section 100 of the Civil Procedure Code
against the Judgment and Decree dated 29.09.2010 passed by the learned
Subordinate Judge, Ariyalur in A.S.No.86 of 1996 reversing the Judgment and
Decree dated 31.01.1996 passed by the learned District Munsif, Ariyalur in
O.S.No.324 of 1991.
For Appellants : Mr.R.Thiagarajan
For Respondents : Mr.S.Ilamuhil for
Mr.J.Deliban
for R2 to R4
JUDGMENT
The above Second Appeal arises against the Judgment and Decree dated
29.09.2010 passed by the learned Subordinate Judge, Ariyalur in A.S.No.86 of
1996 reversing the Judgment and Decree dated 31.01.1996 passed by the
learned District Munsif, Ariyalur in O.S.No.324 of 1991.
2.The parties are described in the same array as in the Original Suit.
3.The appellants herein are the plaintiffs in the suit O.S.No.324 of 1991
on the file of the learned District Munsif, Ariyalur filed for declaration and for
injunction against the defendant in respect of the suit property as described in
the Plaint schedule to an extent of 0.05 cents with four boundaries at
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Sannasinallur Village in Natham S.F.No.251/1-2B, North of Ragupathy
(defendnat) : East of Muthuvel Padayachi West of Street, and South of Road –
within this 0.05 cents out of Ac.5.34 cents.
4.According to the plaintiffs, they claimed absolute right and title over
the suit property wherein the defendant attempted to encroach a portion by
digging a manure pit. Hence, this suit.
5.The defendants disputed the plaintiffs' right over the suit property
claiming that the Southern portion of the property was enjoyed by him. He also
enjoyed the Southern portion of the suit property along with their house and
thereby, the plaintiffs are disputing the exclusive title over the suit property.
6.The parties had gone to trial on the issues that were framed by the Trial
Court. On the side of the plaintiffs, the 1st plaintiff had examined himself as
P.W.1 and one Chella Perumal as P.W.2. Ex.A1 to Ex.A4 were marked. On the
side of the defendant, the defendant had examined himself as D.W.1 and three
witnesses as D.W.2 to D.W.4. Ex.B1 and Ex.B2 were marked.
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7.The Trial Court on considering Ex.A.1 - Assignment Order stands in
the name of the plaintiffs' father Perumal Konar and other documents relied by
the plaintiffs, held that the plaintiffs' right and title have not been proved.
Besides the defendant has not proved his possession and enjoyment of the suit
property nor established the plea of adverse possession. Accordingly, the suit
was decreed in favour of the plaintiffs.
8.Aggrieved over the Judgment and Decree of the Trial Court, the
defendant preferred an appeal in A.S.No.86 of 1996 on the file of the learned
Subordinate Judge, Ariyalur. The First Appellate Court independently analysed
the evidence and documents and framed separate point for consideration and
finally held that the suit property was not assigned to the plaintiffs' father
through Ex.A.1. On the other hand, the evidence adduced by both the parties
proves that it is the ancestral property. The father of the plaintiffs and the
defendant are brothers and the property was deemed as the ancestral properties
and the same was allotted to the share of the defendant's father Manicka Konar.
After his demise, the defendant is entitled to the same and accordingly, the
findings of the Trial Court was set aside. The suit was dismissed holding that
the plaintiff is not entitled for the relief of declaration.
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9.Challenging the reversal findings of the First Appellate Court, the
plaintiffs preferred this Second Appeal.
10.The learned counsel appearing for the appellants argued on the ground
that the First Appellate Court had committed a grave error in decreeing the suit
on the basis of the vague pleadings and lack of evidence. Further, the First
Appellate Court erred in questioning the assignment of the land by the
Government in favour of the appellants' father and holding that the appellants
had not produced any document to prove that the land belonged to the
Government. He would contend that the First Appellate Judge accepted the
version of the respondents without any basis or evidence that the suit property is
ancestral property and failed to see that when the assignment is genuine, the
Civil Court cannot go into the sufficiency or regularity of the procedure adopted
by the Government as long as it is within the scope of their powers conferred on
them by the Rules. He would further argue that the First Appellate Court has
erroneously given a finding that the assigned land does not belong to the
Government and the assignment is not proper. The learned Judge ought not to
have held that based on the assignment alone, which is given to the appellants'
father by the Government, the suit property belongs to the appellants/plaintiffs.
Further, the learned Subordinate Judge failed to note that once it is proved by
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the appellants that the suit property is assignment given by the Government,
then it becomes the self-acquired property of the appellants' father and then it
devolved on the appellants/plaintiffs.
11.This Court admits this Second Appeal on the following Substantial
Questions of Law:
“(1)Whether the First Appellate Court can question the
assignment of the Government in favour of the appellants'
father when its authenticity is not in doubt and whether the
learned Judge is right putting the burden of proof on the
plaintiffs to prove that the land belonged to the Government?
(2)Whether it is within the competence of the Civil Court
to question or refuse to recognize the validity of the assignment
of land given by the Government in favour of the appellants'
father?”
12.The learned counsel for the appellants would submit that originally the
suit property was assigned in favour of the plaintiffs' father Perumal Konar and
the said Assignment Order was marked as Ex.A.1. The said Perumal Konar
died leaving behind his three sons, namely, the plaintiffs and one Ramanujam.
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From that, 1/3 share of the said Ramanujam was purchased by the plaintiff
through Ex.A.2 – Sale Deed, thereby, the plaintiffs are entitled for the entire suit
property and their right, title and possession of the property was proved by the
Trial Court. But, the First Appellate Court erroneously held that the plaintiffs
have not proved their case ignoring the Assignment Order and also disputing the
validity of Ex.A.1 which cannot be raised by the Civil Court.
13.By way of reply, the learned counsel for the respondent would argue
that the evidence of PW1 shows that they were enjoying the property as
ancestral properties along with the defendant's father. He would submit that the
properties are ancestral in nature and both the plaintiffs' father and the
defendant's father are brothers and they partitioned the properties among
themselves. Accordingly, the suit property was allotted to the share of the
defendant's father along with ancestral house. Ever since he enjoyed the suit
property along with the house and the same was admitted by the plaintiffs
during the trial. Therefore, the First Appellate Court has rightly held that it is
the ancestral property and not the property belongs to the Government.
Therefore, he prayed to dismiss the appeal as no merits.
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14.Heard the learned counsel appearing on either side and perused the
material available on record.
15.On a perusal of the records, it reveals that the plaintiffs have come
forward with the suit for declaration and for injunction against the defendant in
respect of the suit property and the initial burden on the plaintiffs is proved and
that they are having valid right over the suit property. According to the
plaintiffs, the suit property was assigned in favour of his father Perumal Konar.
To prove the same, the said Assignment Order is marked as Ex.A.1 which
stands in the name of Perumal Konar.
16.It is an undisputed fact that the plaintiffs' father and the defendant's
father are brother and there is no proof that the properties are ancestral
properties of their family. In respect of enjoyment of the house property,
partition is not under dispute. The suit property was a vacant site which is
enjoyed along with the house. The plaintiffs' father used as a manure pit. The
defendant contended that the suit property was allotted to his father in the
partition, but he has not produced any document to show that the suit property
was the ancestral property. On the other hand, the plaintiffs proved their right
and title based on Ex.A.1 - Assignment Order in respect of the suit property.
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Furthermore, the plaintiffs have better title than the defendant and the same was
rightly appreciated by the Trial Court. But, the First Appellate Court disputing
the validity of the Assignment Order by relying Patta stands in the name of the
defendant marked as Ex.B.3 which was obtained after filing of the suit. The
Trial Court has rightly rejected the patta marked as Ex.B.3 holding that patta is
not the title of the document. Furthermore, if at all any irregularity in the
Assignment Order the Authorities have the power to deal with the same and not
by the Civil Court. To that effect, the Trial Court has relied on the following
authorities:
(1)R.Sivaji Rao Saheb Soorvai v. Akilandathammal and
other [1961 1 M.L.J. P35]
“It is well settled law that procedural irregularities, if any,
occurring in the course of proceedings for grant of Government
lands cannot vitiate the grant and it is beyond the competence of
Civil Courts to set aside the grant or refuse to recognize its
validity. So long as the authorities act within the scope of their
powers conferred on them by the rules, it is not open to the Civil
Courts to discuss the sufficiency or otherwise of the ground or
the irregularity of the procedure adopted by them.”
(2)The Hindu Code 6th Edition 1992 Vol.I Page NO.283 - 284
“Government grant – property acquired from a grant from
Government is unquestionably Self-acquired, unless it was
merely restoration of a -confiscated grant intended to be for the
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benefit of the family or is a grant made in consideration of the
services rendered by the family or at its expense – But a party
cannot sue Government for the modification of its grant.”
N.B.Raghavachariar, Hindu Law Sixth Edition at Page 280
“Government Grant – where the Government grants an
estate in the exercise of its Sovereign power, the estate becomes
the self-acquired property of the grantee, whether it is a new
grant or the restoration of an estate previously confiscated by the
Government.”
17.Therefore, the findings of the First Appellate Court in respect of the
Assignment Order stands in the name of the appellants' father are illegal and it
is liable to be set aside. Furthermore, the Civil Court has no power to dispute
the validity of the assignment of the lands given by the Government. To that
effect, the ratio laid down to the above referred authorities is squarely applicable
to the present case. Therefore, the observation made by the First Appellate
Judge with regard to the authenticity of the Assignment Order as such is set
aside. Accordingly, the Substantial Questions of Law 1 and 2 are answered.
This Second Appeal is allowed. The findings of the First Appellate Court
is set aside. The suit is decreed as prayed for. There shall be no order as to
costs. Consequently, connected Miscellaneous Petition is closed.
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02.07.2025
Speaking / Non Speaking order
Neutral Citation : Yes/No
Index :Yes/No
mps
To
1.The Subordinate Judge,
Ariyalur.
2.The District Munsif,
Ariyalur.
3.The Section Officer,
VR Section,
Madras High Court.
T.V.THAMAILSELVI, J.
mps
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and
02.07.2025
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