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2010 DIGILAW 4334 (MAD)

Krishnan (Deceased) v. Alaghudurai

2010-09-28

ARUNA JAGADEESAN

body2010
Judgment : ARUNA JAGADEESAN, J. The 1st respondent herein/plaintiff (family Manager) has filed the suit in O.S. No. 454 of 1992 before the District Munsif Court Ariyalur for declaration, declaring that the plaintiff‘s family is the absolute owner of the suit property and for permanent injunction, restraining the defendants from interfering with the plaintiff‘s peaceful possession and enjoyment of the suit property and for costs. 2. Thecase of the plaintiff as set out in the plaint is as follows: a. Thesuit property and the other properties originally belonged to one Palanimuthu, the father of the plaintiff herein and one Nasappan and the said properties were orally divided by Palanimuthu and Nasappan. In the said oral partition, the suit property was allotted to the share of the father of the plaintiff. Since then, the said Palanimuthu was in exclusive possession and enjoyment of the same openly and continuously for more than the statutory period and thereby prescribed title. The patta book stands in the name of Palanimuthu. The said Palanimuthu died 10 years back. After his demise, the plaintiff is in possession and enjoyment of the suit property for himself and on behalf of his family members. The plaintiff has paid the kist for the suit property and the adangal extract of the suit property also stands in the name of the father of the plaintiff. b. The defendants have no right title or interest in the suit property. Without any right, the defendants were colluding together and attempting to interfere with the plaintiff‘s possession and enjoyment of the suit property from 22.12.1988 and the same was prevented by the plaintiff. Hence, the suit has been filed. 3. In the Written Statement filed by the 1st defendant, adopted by the other defendants, it is averred as follows: a. The suit property does not belong to the father of the plaintiff and one Nasappan. The averments with regard to the oral partition and their possession and enjoyment for more than the statutory period as alleged by the plaintiff are also false. It is also incorrect to state that after the demise of the father of the plaintiff, the plaintiff is in possession and enjoyment of the suit property for himself and on behalf of his family members. The kist receipt end the adangal extract filed by the plaintiff does not relate to the suit property. It is also incorrect to state that after the demise of the father of the plaintiff, the plaintiff is in possession and enjoyment of the suit property for himself and on behalf of his family members. The kist receipt end the adangal extract filed by the plaintiff does not relate to the suit property. The allegation with regard to the trespass by the defendants on 22.12.1988 is also false. b. The plaintiff was; never in possession and enjoyment of the suit property. The father of the plaintiff on 12.8.1959 sold his ancestral properties comprised in R.S. No. 409/1 to an extent of 3.44 acres along with the trees therein for a consideration of ` 200/- to one Marudhai Gounder, son of Perumal Gounder and also handed over possession of the same on that day itself. Since then, the said Marudhai Gounder has been in possession and enjoyment of the same till 31.7.1988. On 1.8.1988, the defendants 2 to 4, who are the sons of Marudhai Gounder, sold 3.20 acres out of 3.44 acres to the 1st defendant for consideration of ` 10,000/-and since then, the 1st defendant has been in possession and enjoyment of the same openly, continuously and uninterruptedly. The plaintiff and his father have no right, title or interest in the said properties. The plaintiff was never in possession and enjoyment of the suit property before and after filing of the suit and the defendants 2 to 4 are not necessary parties and in such circumstances, the suit is liable to be dismissed. 4. Before the Trial Court on the side of the plaintiff, Exhibits A-1 to A-17 were marked and the plaintiff examined himself as P.W.1 and one Chellamuthu as P.W.2. On behalf of the defendants, Exhibits B-1 to B-28 were marked and the defendants 1 and 4 were examined as D.W.1 and D.W.2 and one Pichaipillai as D.W.3. 5. On consideration of the oral as well as the documentary evidence, the trial Court decreed the suit and the appeal filed as against the same filed by the defendants was dismissed, confirming the judgment and decree of the trial Court as against which, this second appeal has been filed. 6. 5. On consideration of the oral as well as the documentary evidence, the trial Court decreed the suit and the appeal filed as against the same filed by the defendants was dismissed, confirming the judgment and decree of the trial Court as against which, this second appeal has been filed. 6. This second appeal has been entertained on the following substantial questions of law: (a) Whether the Courts below erred in concluding, that Exhibit B-2 is invalid when the Government is not the party to the above suit to decide the adjudication? (b) Whether the Courts below erred in deciding the suit without the presence of the proper and necessary party for effective adjudication of the suit? (c) Whether the Courts below are right in holding that the appellants/defendants, their predecessors in title have not perfected their title, by adverse possession contrary to the documents filed in support of their case? (d) Whether the Courts below have not erred in holding that the plaintiffs/respondents had title and wherein possession of the suit property after 1959 under Palanimuthu had alienated the suit property and parted with possession in favour of the appellants predecessors in title? 7. This Court heard the submissions of the learned counsel on either side and also perused the judgments of the Court below and the materials on record. 8. The suit property is a Tharisu Poramboke situate in Perambalur Taluk, Pasumbalur Village in S.F. No. 409/1 of an extent of 3.44 acres. The Government had assigned the said land in favour of one Alagan, the grand father of the plaintiff by an order of assignment Exhibit A-1 in AD. 1264 of 1337. The case of the plaintiff is that after the demise of Alagan, the legal heirs of Alagan, namely, Palanimuthu and Nasappan orally divided the suit property along with the other properties and the suit property was allotted to Palanimuthu and he was in exclusive possession and enjoyment of the suit property for wore than the statutory period openly and peacefully and prescribed title to the suit property. The patta book stands in the name of Palanimuthu and he died 10 years prior to the suit and after his demise, the plaintiff is in possession and enjoyment of the suit property for himself and on behalf of his family members. The patta book stands in the name of Palanimuthu and he died 10 years prior to the suit and after his demise, the plaintiff is in possession and enjoyment of the suit property for himself and on behalf of his family members. It is the case of the plaintiff that the defendants who had no manner of title or right in the suit property, tried to interfere with the plaintiff‘s possession. Hence, the suit has been filed. 9. The case of the defendants is that Palanimuthu sold the suit property under Exhibit B-2, a registered sale deed dated 12.8.1959 to one Marudhai Gounder and possession was also handed over to him. The said Marudhai Gounder and his brother Veera Gounder were enjoying the suit property as their joint property and they orally partitioned the properties, by which the western portion was allotted to Veera Gounder and the eastern portion to Marudhai Gounder. The portion, which fell to the share of Marudhai Gounder, was further partitioned by his sons Pichamuthu and Perumal and the share of Veera Gounder was enjoyed by his only son Periasamy. They all sold 3 acres and 24 cents in the suit property, retaining 20 cents out of 3 acres and 44 cents for the use of the pathway, in favour of the 1 defendant by virtue of the sale deed dated 1.8.1988 under Exhibit B-1 and pursuant to the sale, patta was transferred in the name of the 1st defendant and he is in possession and enjoyment of the suit property and mutation of revenue entries has taken place. 10. Though the original allottee Alagan got the suit property by way of an assignment from the Government, but the Government was not made a party in the suit, but only in the present appeal the Government was impleaded at the instance of this Court. 10. Though the original allottee Alagan got the suit property by way of an assignment from the Government, but the Government was not made a party in the suit, but only in the present appeal the Government was impleaded at the instance of this Court. The Courts below, after referring to the specific clause made in Exhibit A-17, the order of assignment, held that in view of the prohibition contained in Clause 7, the said transfer of land by way of sale in favour of the predecessors in title of the 1st defendant, namely, Marudhai Gounder and the subsequent alienation made by the heirs of Marudhai Gounder in favour of the 1st defendant are void and therefore, no title or right would be conveyed by such transfer and came to the conclusion that the plaintiff had acquired title to the suit property and decreed the suit in favour of the plaintiff. 11. Clause 7 of Exhibit A-17 assignment reads as follows: Tamil 12. On a perusal of Exhibit A-17 the order of assignment, the date of assignment could not be traced, as it does not indicate any such date. Under the said assignment, powers were conferred on the Government to resume possession without reference to any time limit, in case if the land is sold or mortgaged or gifted to any other persons other than the persons belonged to Scheduled Caste. Though the land had been sold to one Marudhai Gounder, who is a non Scheduled Caste person, but however, till date no action has been taken by the Government for resumption of land for any violation of the terms of the assignment. 13. At this juncture, it is relevant to refer to the few decisions cited by the learned counsel for the respondents, arising under the Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (hereinafter referred to as the Act) wherein the Honourable Supreme Court consistently held in the said decisions by making a specific reference to Sections 4 and 5 of the said Act that when the granted lands in favour of a person belonging to Scheduled Caste or Scheduled Tribe are transferred in breach of the condition or in contravention of the provisions of the Act, such transfer will be void and it was undoubtedly open to the grantor to resume possession under Section 5 of the Act. 14. 14. In the case of Sri Machegowda, etc. v. State of Karnataka and Others AIR 1984 SC 115 : (1984) 3 SCC 301 , the Honourable Supreme Court has observed, while considering the provisions of Sections 4 and 5 of the Act and nature of right held by a transferee, as hereunder: “ The validity of the Act has been challenged, mainly because of the provisions contained in Sections 4 and 5 of the Act which purport to declare transfers of ‘ granted land ‘ made either before or after the commencement of the Act in contravention of the terms of the grant, of such land or the law providing for such grant null and void and confer powers on the authority to take possession of such land after evicting all persons in possession thereof and to restore such lands to the original grantee or his legal heirs and where it is not reasonably practicable to so restore the land to a person belonging to the Scheduled Castes or Scheduled Tribes in accordance with the rules relating to the grant of such land. It may be noted that the validity of the Act in- so far as it imposes prohibition on transfer of granted land after the commencement of the Act has not been challenged and the principal objection to the validity of the Act is taken because of the provisions in the Act seeking to nullify the transfers of granted lands effected before the commencement of the Act. ” 15. Section 4(1) of the Act 1978 declares any transfer of granted lands either before or after coming into force of the Act to be null and void, if it is in contravention of any one of the conditions therein. Section 5 of the Act deals with resumption and restitution of the granted lands and under the said provision, power was conferred on the authority concerned to initiate a proceeding and hold that the transfer of any granted lands is null and void under sub section 1 of Section 4 and if the transfer of such granted land is found to be null and void, the authority was empowered to take possession of such land after evicting all such persons in possession thereof in such manner as may be prescribed under the Act. 16. 16. In the said Act, the clear language employed in Section 4 of the Act is to the effect that any alienation in contravention of the terms of the grant of such land shall be null and void. Thus, the violation of the terms of grant itself gives rise to the action under Section 4 read with Section 5 of the Act. When the Act was challenged in Sri Machegowda, etc. v. State of Karnataka and Others (supra), the Honourable Supreme Court observed as below: “ 17. Granted lands were intended for the benefit and enjoyment of the original grantees who happen to belong to the Scheduled Castes and Scheduled Tribes. At the time of the grant, a condition had been imposed for protecting the interests of the original grantees in the granted lands by restricting the transfer of the same. The condition regarding the prohibition on transfer of such granted lands for a specified period, was imposed by virtue of the specific term in the grant itself or by reason of any law, rule or regulation governing such grant. It was undoubtedly open to the grantor at the time of granting lands to the original grantees to stipulate such a condition the condition being a term of the grant itself, and the condition was imposed in the interests of the grantee. Except on the basis of such a condition, the grantor might not have made any such grant at all. The condition imposed against the transfer for a particular period of such granted lands which were granted essentially for the benefit of the grantees cannot be said to constitute any unreasonable restriction. The granted lands were not in the nature of properties acquired and held by the grantees in the sense of acquisition, or holding of property within the meaning of Article 19(1) (f) of the Constitution. It was a case of a grant by the owner of the land to the grantee for the possession and enjoyment of the granted lands by the grantees and the prohibition on transfer of such granted lands for the specified period was an essential term or condition on the basis of which the grant was made. It has to be pointed out that the prohibition on transfer was not for an indefinite period or perpetual. It has to be pointed out that the prohibition on transfer was not for an indefinite period or perpetual. It was only for a particular period, the object being that the grantees should enjoy the granted lands themselves at least for the period during which the prohibition was to remain operative. Experience had shown that persons belonging to Scheduled Castes and Scheduled Tribes to whom the lands were granted were, because of their poverty, lack of education and general backwardness, exploited by various persons who could and would take advantage of the sad plight of these poor persons for depriving them of their lands. The imposition of the condition of prohibition on transfer for a particular period could not, therefore, be considered to constitute any unreasonable restriction on the right of the grantees to dispose of the granted land. The imposition of such a condition on prohibition in the very nature of the grant was perfectly valid and legal. ” 17. In Guntaiah and Others v. Hambamma and Others AIR 2005 SC 4013 : (2005) 6 SCC 228 , the Honourable Supreme Court referred to Sections 4 and 5 of the Act, 1978 and held that transfers of lands in breach of the terms of the grant are null and void and would not convey any right, title or interest to the purchasers by virtue of Section 4 of Act, 1987 and consequently, held that under Section 5 , the Assistant Commissioner was empowered to pass orders for restoration of lands to the original grantee. The Honourable Supreme Court reiterated the same view in the case of Dharma Naika v. Rama Naika and Another(2008) 14 SCC 517 : (2008) 3 MLJ 279. 18. In the decisions cited supra, the Honourable Supreme Court dealt with the provisions of the Karnataka Schedule Castes and Scheduled Tribes (Prohibition of Transfer of Certain lands) Act 1978, which not only prohibited any alienation, but also declared that any alienation made in contravention of the terms is null and void. Insofar as Tamil Nadu is concerned, there is no such legislation. In the absence of any such statutory provisions, the transfer of granted lands in contravention of the terms of grant will only be voidable and the resumption of such granted lands after avoiding the voidable transfer in accordance with law will be permitted. 19. Insofar as Tamil Nadu is concerned, there is no such legislation. In the absence of any such statutory provisions, the transfer of granted lands in contravention of the terms of grant will only be voidable and the resumption of such granted lands after avoiding the voidable transfer in accordance with law will be permitted. 19. In the present case, the suit land was granted to Alagan, the grand father of the plaintiff by the Government with condition that the land should not be alienated to other persons who is not a Scheduled Caste. Alagan ‘ s legal heir Palanimuthu had sold the property to Marudhai Gounder in the year 1959. It is the case of the defendants that the transferee from the grantee ‘ s legal heirs was in possession and enjoyment of the suit property pursuant to the alienation made in their favour. The same is also evident from Exhibit B-15 patta granted in the name of Veera Gounder, Exhibits B-16 to B-27 kist receipts paid by Periasamy Gounder, the 4th defendant herein who is one of the vendors of the first defendant, Exhibit B-28 patta issued in the name of Periasamy Gounder. The first defendant had purchased the property from the legal heirs of Marudhai Gounder under Exhibit B-1 sale deed dated 1.8.1988 and Exhibit B-3 chitta, Exhibits B-4 to B-8 Adangal are found in the name of the defendant and the kist receipts Exhibits B-9 to B-14 issued in the name of the 1st defendant would show that the suit property was in possession and enjoyment of the predecessors in title of the 1st defendant and subsequently with the 1st defendant. The documents filed on the plaintiff‘s side, namely, Exhibits A-14 to A-16 adangal for the fasli years 1392, 1393, 1394, 1395 and 1396 in the name of Palanimuthu cannot be of any avail to the plaintiff, as Palanimuthu had died even in the year 1982 and no weight could be attached to those documents, more so, when Palanimuthu had sold the suit property to Marudhai Gounder in the year 1959 itself. It has been brought to the notice of this Court that pursuant to the judgment of the first appellate Court, the patta has been issued in the name of the plaintiff. But, it is subject to the result of the present second appeal and patta cannot confer title on the plaintiff. 20. It has been brought to the notice of this Court that pursuant to the judgment of the first appellate Court, the patta has been issued in the name of the plaintiff. But, it is subject to the result of the present second appeal and patta cannot confer title on the plaintiff. 20. There is no dispute over the fact that the suit property is a Government tharisu land. The plaintiff claimed to be in possession of the property as the legal heir of Palanimuthu, son of Alagan, who is the grantee of the said land. The 1st defendant (since deceased) claimed to be in possession pursuant to the sale deed Exhibit B-1 and has filed documents to establish the same. The Courts below have found that the alienation of the suit property in contravention of the terms and conditions in tha grant is void and held that the plaintiff as legal heirs of Palanimuthu is entitled to the reliefs and granted a decree in favour of the plaintiff. The Courts below have failed to see that the plaintiff has to establish his case on the strength of the pleadings and evidence and show that he is entitled to the decree. In this case, the plaintiff has suppressed many facts and there is no pleadings even with regard to the fact that the suit property was a grant made to Alagan. The plaintiff has suppressed the alienation made by Palanimuthu in favour of Marudhai Gounder and the subsequent alienation by the heirs of Marudhai Gounder to the 1st defendant (since deceased). It is seen that the plaintiff has brought about certain entries in the revenue records in the name of the dead person, namely, Palanimuthu despite the fact that he was not alive during the period when those entries have been made in adangal and chitta. 21. The fact remains that the 1st defendant is the subsequent purchaser from the transferees of Palanimuthu in whose father‘s name the grant was made. The first alienation had taken place (sic) even in the year 1959 and the same has not been challenged by the plaintiff. It is not for the plaintiff to now contend that the alienation made in the year 1959 is void in view of contravention of the conditions imposed in the grant. 22. At this juncture, it is relevant to refer to the terms of assignment. It is not for the plaintiff to now contend that the alienation made in the year 1959 is void in view of contravention of the conditions imposed in the grant. 22. At this juncture, it is relevant to refer to the terms of assignment. In Clause 7 of the assignment, it is stated that if the condition of non alienation is violated or if the land ceases to be owned by the grantee or his legal heirs or if default is made in payment of the Government revenue, then it is permissible for the Government to resume land. It is for the Government to take action for resumption of land, if there is contravention of the terms of the grant. It i.e. not open to the plaintiff to claim the suit property on the ground that there has been contravention of the terms of the assignment. As there is no statutory prohibition as found in Section 4 of the Karnataka Schedule Castes and Scheduled Tribes (Prohibition of Transfer of Certain lands) Act 1978, which declares the sale as null and void, only the Revenue Board Standing Order is applicable in the present case. In the absence of any such statutory provision, the transfer of granted lands in contravention of the terms of the grant will only be voidable and the Government is entitled to resume land in accordance with law. It is relevant to refer to the decision of the Honourable Supreme Court in Malappa (dead) by LRs. v. State of Karnataka and Another (2005) 10 SCC 158 wherein it is held as follows: 23. The Board Standing Order provides that in the event of non observance of the terms of assignment, the granted lands will be liable to be resumed by the Government, who will be entitled to re-enter and take possession of the land. It cannot, by any stretch of imagination mean that the legal heirs of the grantee who have transferred the lands in favour of the alienees, can claim title or possession of the suit property. 24. It is pertinent to point at this juncture that the 1st defendant belonged to Scheduled Caste and it is not disputed by the respondents. It cannot, by any stretch of imagination mean that the legal heirs of the grantee who have transferred the lands in favour of the alienees, can claim title or possession of the suit property. 24. It is pertinent to point at this juncture that the 1st defendant belonged to Scheduled Caste and it is not disputed by the respondents. It is relevant to note that on the date of the suit, the suit property was in possession and enjoyment of a person belonging to Scheduled Caste and therefore, there is no infringement of condition or violation of the terms of the grant on the date of the suit. 25. It is relevant to point to the decision of the Honourable Supreme Court in P. Venkateswarlu v. Motor and General and Traders AIR 1975 SC 1409 : (1975) 1 SCC 770 wherein it is observed as below: “ The Government had every right to take action to declare the sale as null and void and to resume the land, of course, after following the necessary procedure as laid down under the Act. ” “ It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceedings. Therefore, the right of a party is determined by the facts as they exist on the date of institution of the suit. ” In the present case, as on the date of the suit, the 1st defendant, who belonged to Scheduled Caste, was holding the land by a valid title and hence, it cannot be contended that there is violation of the terms of the grant on the date of the suit. 26. That apart, it has to be considered whether the discretion to grant a declaration and an injunction could be exercised in favour of the plaintiff who has suppressed material facts in the pleadings. It is well settled that a relief under the Specific Relief Act is purely discretionary and the same can be refused where the ends of justice do not require the relief to be granted. It is well settled that a relief under the Specific Relief Act is purely discretionary and the same can be refused where the ends of justice do not require the relief to be granted. On analyse of all facts and circumstances of the case, I am of the considered view that the alienation in violation of the condition under Exhibit A-17 assignment to the subsequent transferee will not give any right to the plaintiff to claim title and possession to the suit property as the Government alone is the authority to challenge the alienation. 27. For all the reasons, this second appeal has to succeed. Accordingly, the substantial questions of law are answered in favour of the appellants and against the respondents and the judgment and decree of the Courts below are liable to be set aside and the suit is liable to be dismissed. 28. In the result, this second appeal is allowed. The judgment and decree of the Courts below are set aside and the suit is dismissed. However, in the circumstances of the case, there will be no order as to costs.