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2007 DIGILAW 1366 (MAD)

Marimuthu & Others v. Malaiarasan

2007-04-17

R.BANUMATHI

body2007
Judgment :- Aggrieved by the Judgment and Decree dated 30.08.1994 made in A.S.No.233 of 1993 on the file of Subordinate Court, Srivilliputhur, reversing the Judgment and decree dated 011. 1992 made in O.S.No.195 of 1989 on the file of District Munsif Court, Aruppukottai, dismissing the Suit for Permanent Injunction, unsuccessful Plaintiffs have preferred this Second Appeal. 2. The Suit Property relates to a vacant land measuring about 21 cents in S.No.345/8 in Ramasamypuram Village, Arupukkottai Town, Kamarajar District, which is said to be belonging to Pallar Community people, who are living at Amman Kovil Street, Ramasamypuram, Arupukkottai Town. 3. Case of the Plaintiffs is that there is one Oorani in North Eastern side of the Suit Property, which belongs to the Plaintiffs Community and that the property has been used by Plaintiffs Community for performing last rites of dead people by taking water from the Well situated in the Suit Property. The Suit Property was also mortgaged by Pallar Community People to one Nagappa Nadar under Ex.A.1 – Mortgage Deed (dated 211. 1922). Apprehending attempt of trespass by the Defendant, Plaintiffs have filed the Suit in a representative capacity for Declaration and Permanent Injunction. .4. Denying Plaint averments, the Defendant has filed Written Statement contending that after the death of Ambalam Ayiram, Title of the Suit Property was not conferred upon any village headman. According to the Defendant, the Suit Property was originally Nanja wasteland and Defendants Father – Karuppan encroached thereon and was in enjoyment by paying B-Memo on 11.03.1966. Application was also given seeking assignment of the land and assignment was also given. In the letter, D.R.O cancelled the assignment on the ground that the procedure adopted for assignment is not correct. According to Defendant, subsequently the suit land was assigned to him in 1989. It is alleged that the Plaintiffs have filed the Suit due to enmity between the Plaintiffs and the Defendant. 5. On the above pleadings, five issues were framed. Plaintiffs were examined as P.Ws. 1 to 3 and Exs.A.1 to A.13 were marked on the side of the Plaintiffs. On the side of the Defendant, Exs.B.1 to B.25 were marked and the Defendant was examined as D.W.1. In consideration of the evidence, the Trial Court held that the Well in the Suit Property has been used for performing last rites of the dead person of Plaintiffs Community. 6. On the side of the Defendant, Exs.B.1 to B.25 were marked and the Defendant was examined as D.W.1. In consideration of the evidence, the Trial Court held that the Well in the Suit Property has been used for performing last rites of the dead person of Plaintiffs Community. 6. Observing that the property is the Government Poromboke land to which both Plaintiffs and Defendant cannot claim right and Title, the Trial Court held that the Suit having been filed in a representative capacity on behalf of Pallar Community, granted Permanent Injunction as prayed for. 7. Aggrieved by the Judgment, the Defendant has preferred Appeal. The lower Appellate Court reversed the Judgment of the Trial Court finding that the Plaintiffs have not proved possession of the Suit Property. Referring to the various documents filed by the Defendant, lower Appellate Court held that patta was granted to the Defendant and grant of patta in favour of the Defendant would disprove the Plaintiffs claim of possession in the Suit Property. Holding that the property being the Government Poromboke and that Plaintiffs cannot claim right of possession in the Suit Property, the lower Appellate Court reversed the Judgment of the Trial Court and dismissed the Plaintiffs suit. .8. Aggrieved by the reversal of the Judgment, the unsuccessful Plaintiffs have preferred this Second Appeal. The Second Appeal is admitted on the following Substantial Question of law:- ."Whether the lower Appellate Court has misread the evidence and omitted to consider properly the evidence on record in reversing the Judgment and decree of the trial Court?" .9. Assailing the reasonings of the lower Appellate Court, learned counsel for the Appellants has contended that the lower Appellate Court misdirected itself on the question relating to the possession of the Suit Property on the date of the Suit and misconstrued oral and documentary evidence. It was further contended that the lower Appellate Court erred in rejecting the evidentiary value of Ex.A.1. Ex.A.1 is the Mortgage Deed and Ex.A.2 is the Registered Power of Attorney, in which Defendant himself was a party. It was further submitted that the Defendant had failed to establish that Exs.B.3 to B.21 are in respect of the Suit Properties and upon mis-appreciation of evidence, lower Appellate Court failed to advert to the finding recorded by the Trial Court. 10. It was further submitted that the Defendant had failed to establish that Exs.B.3 to B.21 are in respect of the Suit Properties and upon mis-appreciation of evidence, lower Appellate Court failed to advert to the finding recorded by the Trial Court. 10. Laying emphasis upon various documents, learned counsel for Respondent / Defendant has contended that having regard to the number of documents and that Defendant is in possession of the Suit Property, lower Appellate Court rightly declined to grant Permanent Injunction on the ground that the Plaintiffs are out of possession on the filing of the Suit and there is no reason calling for interference in the Judgment of the lower Appellate Court. 11. In the courts below, Defendant raised objection as to representative capacity of the Plaintiffs. Both the courts below recorded concurrent findings that Plaintiffs have rightly filed suit in their representative capacity of Amman Kovil Street, Aruppukkottai and Ramasamypuram Village. P.W.2 has deposed that Plaintiffs Uravinmurai is an unregistered one and that he is the President and First Plaintiff is the Secretary. P.W.3 is the Ambalakarar of Ramasamypuram Uravinmurai and the Fourth Plaintiff is the Secretary. One Ambalam Ayiram was the Ambalakarar of the Amman Kovil Street Uravinmurai and he died about 4 or 5 years and after him, there was no separate Ambalakarar post for Amman Kovil Street. Ex.A.2 is the Power of Attorney executed in favour of P.W.2 and in that document, P.W.2/Second Plaintiff is mentioned as the representative of Amman Kovil Street Pallar Pothu Uravinmurai that represents Ramasamypuram Uravinmurai also. On the basis of Ex.A.2, both the courts below concluded that the Suit was rightly filed in the representative capacity for the people who are residing at Amman Kovil Street, Arupukkottai and Ramasamypuram Village. 12. Suit Property is the Government Poromboke land. In their evidence, P.Ws.1 and 3 have stated that the Well in the Suit Property is used for performing the last rites of the Plaintiffs community and also used during festivals by putting up tent and for taking "Neermalai" for the dead people. Ex.A.1 is the Mortgage Deed dated 111. 1992 in favour of one Nagappa Nadar by the then Uravinmurai people viz., Karuppa Kudumban and others. There is no dispute that the property mortgaged under Ex.A.1 is the Suit Property. Ex.A.1 is the Mortgage Deed dated 111. 1992 in favour of one Nagappa Nadar by the then Uravinmurai people viz., Karuppa Kudumban and others. There is no dispute that the property mortgaged under Ex.A.1 is the Suit Property. In Ex.A.1 – Mortgage Deed, Schedule of Property is shown as follows:- "The Property common to our community in Ramasamipuram, Aruppukkottai, West of your property, North of Pathway, East by Cotton Road, South by Pottakulam Oorani created by our community, measuring East West - 25 thatcul kambu North South - 56 thatcul kambu The vacant land and the well situated therein." When the Plaintiffs predecessors exercised their right in the Suit Property, the lower Appellate Court erred in brushing aside Ex.A.1 on the ground that there is no evidence to show that the said Mortgage Deed had been redeemed. 13. Ex.A.2 (dated 21.01.1987) is the Power of Attorney by six Pallar Uravinmurai giving power to the Second Plaintiff to manage and deal with the suit property. Under Ex.A.2, P.W.2 was given power to deal with the property and manage the same. The Defendant - Malaiarasan, Son of Malaiarasan is one of the party to Ex.A.2, who had executed Power of Attorney in favour of Second Plaintiff/P.W.2. Having been party in Ex.A.2, Defendant is estopped from denying the recitals or that the Property is used for the common purposes of the Villagers. .14. Oral evidence adduced by the Plaintiffs is to the effect that the property is also in the management of P.W.2 and have dug the Well along with other villagers and have been maintaining the Property. Oral evidence adduced is also to the effect that the Plaintiffs have been performing rites of the dead people by drawing water from the Well. In appreciation of oral and documentary evidence, the Trial Court has rightly concluded that the Community Uravinmurai People are in management and enjoyment of the Suit Property. In my considered view, without assigning valid reasons and giving undue weight to Exs.B.3 to 22, documents filed by the Plaintiff, lower Appellate Court erred in interfering with the well considered Judgment of the Trial Court. 15. The Suit Property in S.No.345/8 was classified as assessed "Waste Land" and the same was assigned to Defendants Father by Tahsildar, Arupukkottai. In my considered view, without assigning valid reasons and giving undue weight to Exs.B.3 to 22, documents filed by the Plaintiff, lower Appellate Court erred in interfering with the well considered Judgment of the Trial Court. 15. The Suit Property in S.No.345/8 was classified as assessed "Waste Land" and the same was assigned to Defendants Father by Tahsildar, Arupukkottai. The assignment was subject to the condition that it was liable for cancellation if it is found that it is grossly inequitable or that there was any irregularities in the procedure. Observing that there was infringement of Rules framed under B.S.O.15, after issuing Show Cause Notice, assignment in favour of Defendants Father was cancelled by R.D.O., Sivakasi. The appeal preferred by the Defendants Father was also dismissed by the District Collector under Ex.B.2 proceedings (dated 010. 1977). Stating that he is in possession of the Suit Property and that he is paying B-Memo charges, the Defendant has produced Exs.B.3 to B.22 for various Faslies from 1380 to 1397. By perusal of the records, it is seen that the Defendant was also in enjoyment of the some other Poromboke land. In Exs.B.3 to B.22, there is nothing to show that those B-Memo charges relate to the Suit Property. In any event, the assignment in favour of the Defendants Father/Defendant having been cancelled by the District Collector under under Ex.B.2, and other proceedings (Ex.B.24), B-Memo Charges would not confer any right upon the Defendant. 16. By perusal of Ex.B.23, it is seen that the Suit Survey Number was again assigned to the Defendant in 1989. On objection being raised by the Plaintiffs, the same was cancelled. The Order of cancellation was again challenged by the Defendant before D.R.O., Virudhunagar and that Appeal was also dismissed on the ground that the Suit Property is within the Municipal Limits of Aruppukkottai and that they are valuable lands and the same cannot be assigned. (Vide Ex.B.24). .17. Referring to various documents filed by the Defendant, lower Appellate Court concluded that the property being Government Land within the Municipal limits, both Plaintiffs and the Defendant cannot claim right over the same and on those findings dismissed the Suit. The oral and documentary evidence produced by the Plaintiffs clearly establish that the Suit Property has been used by the Plaintiffs Uravinmurai for common purposes. The oral and documentary evidence produced by the Plaintiffs clearly establish that the Suit Property has been used by the Plaintiffs Uravinmurai for common purposes. If the Suit filed by the Plaintiffs is dismissed, it would only be advantageous to the Defendant, who may again approach the Revenue Authorities seeking for assignment. The Plaintiffs have sought for Declaration. Since the Suit Property being the Government land, the Trial Court rightly held that the Plaintiffs are not entitled to the Declaration, but granted Injunction. Ignoring weight of evidence and circumstances, the Lower Appellate Court erred in interfering with the findings and the Judgment of the Trial Court. The Judgment of the lower Appellate Court is to be set aside and the Judgment of the Trial Court is to be restored. 18. For the foregoing reasons, the Judgment and decree dated 30.08.1994 made in A.S.No.233 of 1993 on the file of Subordinate Court, Srivilliputhur is set aside and this Second Appeal is allowed. The Judgment and decree dated 011. 1992 made in O.S.No.195 of 1989 on the file of District Munsif Court, Aruppukottai is restored. No costs. However, it is made clear that the findings and the Judgment of this Court shall not be taken as a factor in either seeking for assignment or for making claim against Government. It is also made clear that this Court has not expressed any opinion on the legality of Plaintiffs right.