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2008 DIGILAW 1400 (MAD)

M. Saraswathy v. Poosari K. Palanisamy

2008-04-25

S.PALANIVELU

body2008
JUDGMENT 1. Aggrieved by the concurrent judgments passed by the Courts below in dismissing the suit, the plaintiff has preferred this Second Appeal. 2. There is no appearance on behalf of the respondent. 3. The averments in the plaint, in O.S.No.734 of 1995, are as follows: The suit property is a Government poramboke land in survey No.1252/10. The plaintiff encroached it some two years back and put up a thatched shed measuring north south 8 feet and east west 6 feet. The Government, on 31.10.1994, after enquiry has assigned the land in favour of plaintiff by issuing a patta. The defendant is an arch rival of the plaintiff’s husband. On 20.09.1995, the defendant and his son Veerappan trespassed into her property in the absence of her husband. He gave out that the property is a Government poramboke which does not belong to the plaintiff alone. Hence, the suit has been laid for declaration and permanent injunction. 4. The averments in the written statement of defendant are succinctly as follows: The suit property is a portion in Survey No.1252/17 and not in Survey No.1252/10. The defendant and his forefathers have been in possession and enjoyment of the property who have owned two hundred years teethering cattle, storing hayrick and for other domestic purposes. It is false to state that the plaintiff encroached the suit property, put up a thatched house and then, he obtained patta from the Government. Without 1 of 2 1-14-2013 4:49 PM enquiry the plaintiff influenced the Village Administrative Officer, and got patta in his name. The property has been allotted to the share of this defendant in family partition. Already, a patta was issued in the name of Maruthaiappan, the husband of the plaintiff in Survey No.1253, Palakanuthu Village in house site No.21 and patta No.20 stands in his name. Patta No.36 in Palakanuthu Adidravida Ramasamy Gounder Pudur Colony also stands in the name of Maruthaiappan. Hence, getting patta in the name of his wife, namely, the plaintiff was by deceitful means. Hence, the suit may be dismissed. 4. The plaintiff filed a reply statement denying the averments in the written statement. The defendant has applied for cancellation of patta issued in the name of the plaintiff during the pendency of this suit. Hence, it amounts to contempt of Court. Hence, the suit may be dismissed. 4. The plaintiff filed a reply statement denying the averments in the written statement. The defendant has applied for cancellation of patta issued in the name of the plaintiff during the pendency of this suit. Hence, it amounts to contempt of Court. The defendant filed in suit No.261 of 1996, on the file of the same Court arraying the plaintiff Saraswathi, her husband Maruthai, Palakanatthu Village Administrative Officer by name Palanisamy, the Tashildar Dindigul Taluk, Dindigul as defendants. Since both the suits were pertaining to the same property, the learned Additional District Munsif, Dindigul, tried both the suits jointly and rendered a common judgment on 01.06.1999 dismissing both the suits. 5. The present appellant, the plaintiff herein in O.S.No.734 of 1995 preferred an appeal before the Principal Sub-Court, Dindigul in A.S.No.13 of 2000. The said appeal also met the same fate, that is to say, suffered dismissal. The defendant, even though his suit was dismissed by the trial Court, had not preferred any appeal before the appellate Court. Presently, the plaintiff in O.S.No.734 of 1995 has preferred this second appeal before this Court. At the time of admission, the following substantial questions of law were framed:- “ 1. Whether the Courts below are right in dismissing the suit on the basis of subsequent events, when cause of action is determined on the date of filing of the suit? 2. Whether the lower appellate Court should not have decreed appellant’s suit as the respondent had not preferred appeal as against the dismissal of his suit in O.S.No.261 of 1996 and especially, when the findings thereon would operate the Res Judicata?” 6. The suit property is comprised in Survey No.1252/10 with an extent of 0.0092 ares admeasuring north south 30 feet and east west 27 feet in Palakanuthu Village of Dindigul Taluk. It was assigned in favour of the appellant by means of Ex.A.1 on 31.10.1994 by the Revenue Divisional Officer, Dindigul with certain conditions, inter alia, 14 conditions, two primordial conditions numbered as 1 and 2 are relevant to the case. 7. The first condition is that the assignee shall construct only one house on the assigned land and secondly, the said construction shall be completed within 6/12 months. The Revenue Divisional Officer, Dindigul, by means of his proceedings, dated 08.07.1997, by virtue of Ex.P.3, wherein he has mentioned two reasons for cancelling the patta. 7. The first condition is that the assignee shall construct only one house on the assigned land and secondly, the said construction shall be completed within 6/12 months. The Revenue Divisional Officer, Dindigul, by means of his proceedings, dated 08.07.1997, by virtue of Ex.P.3, wherein he has mentioned two reasons for cancelling the patta. One is the Government assignment shall be granted to the persons, who are owning no property whatsoever. But, the appellant’s husband had already got a house site patta and considering the fact that patta was obtained in the name of the plaintiff, which was violative of procedure had to be cancelled. Secondly, as per condition No.2 in the patta, the plaintiff had not constructed any house in the patta land within six months. The reasons had constituted grounds for cancellation of patta. 8. The main point to be answered in this case is whether the Revenue Divisional Officer, Dindigul was competent to cancel the patta. When the suit was pending before the Civil Court with reference to the Ex.A.1 patta, it is wrong on the part of the Revenue Divisional Officer to touch the subject, especially while the matter is seized of by a Civil Suit. However, it is also to be seen by this Court that whether the appellant was eligible to get patta as per the regulations observed by the Government. 9. At the first place, already Maruthaiyappan was holding a land which was obtained from the Government through patta and he had constructed a house there also. It is mentioned in Ex.B.3 that the issuance of patta was irregular in view of patta held by Maruthaiyappan already. Consequently, as per the condition No.2 in Ex.A.1, the appellant has not put up any house within six months. There are the violations of the condition. 10. If the condition is violated, the issuing authority has got every right to cancel the patta, Even though Ex.A.1 was cancelled on the strength of Ex.B.3, during the pendency of the suit, since settled conditions have been violated by the appellant, there is no impediment for the cancellation of patta by the Revenue Divisional Officer and this can be approved by this Court. 11. As far as the second substantial question of law is concerned, it is with reference to the question of res judicata. 11. As far as the second substantial question of law is concerned, it is with reference to the question of res judicata. Since the respondent herein had not preferred any appeal from the judgment of dismissal in suit in O.S.No.261 of 1996, his contentions are barred by the principles of res judicata. The said contention put forth by the appellant herein has no basis at all. Even if he has failed to prefer the appeal, the respondent has got every right to agitate the appeal preferred by this appellant before the lower appellate Court. Hence, both the questions of law have to be answered against the appellant. 12. Interference with the concurrent findings of the Courts below is not at all warranted. They have to bear the seal of approval by this Court. In view of the foregoing discussion, I do not find any reasons to allow the appeal, which has to suffer only dismissal. Accordingly, the second appeal is dismissed. No costs.