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2012 DIGILAW 803 (MAD)

Arunachalam v. Sinnappan

2012-02-14

V.PERIYA KARUPPIAH

body2012
JUDGMENT 1. This appeal is directed against the judgment and decree passed by the first appellate court made in A.S.No.27 of 2002 dated 14.06.2002 in modifying the judgment and decree passed by the trial court in O.S.No.796 of 1998 dated 24.07.2001 in granting permanent injunction after refusing the declaratory relief against the defendants. 2. The appellants herein were the defendants and the respondent was the plaintiff before the trial court. 3. The case of the plaintiff in brief before the trial court would be thus:- The plaintiff is the absolute owner of the suit property situated at Anna Maduvu,Pachampalayam Village, Bhavani Taluk, measuring an extent of P.ac.0.03 (00200 sq.mt) in R.S.No.384/58, which is classified as 'Natham'. The suit property was purchased by the plaintiff, through a registered sale deed dated 25.11.1974, from one Veeral and others. Ever since the date of purchase, the plaintiff is in continuous and uninterrupted peaceful possession and enjoyment of the suit property along with his other properties situated on the west of the suit property. On the basis of the sale deed, name transfer of patta in favour of the plaintiff was effected through the proceedings dated 23.07.1998 by the Zonal Deputy Tahsildar No.1, Bhavani. On 15.12.1998, the defendants demanded the plaintiff to sell the suit property to them for a meagre price. But the plaintiff declined to their demand. Aggrieved by the refusal of the plaintiff, the defendants on 16.12.1998, illegally attempted to trespass into the suit property with the sole object of causing disturbance to the plaintiff's peaceful possession and enjoyment of the suit property by denying the title of the plaintiff over the suit property, for which they are not entitled. But the illegal attempt of trespass was thwarted by the plaintiff. Since the act of defendants cast a cloud over the plaintiff's title of suit property, the plaintiff has come forward with the present suit seeking the relief of declaration and consequential permanent injunction. 4. The objections raised by the first defendant in the form of written statement, which was adopted by the defendants 2 and 3, are as follows:- The facts that the plaintiff purchased the suit property under a registered sale deed and the plaintiff is the absolute owner of the property etc., are denied. The plaintiff was never in peaceful possession and enjoyment of the suit property at any point of time. The plaintiff was never in peaceful possession and enjoyment of the suit property at any point of time. The allegations contained in paragraph 5 of the plaint should be proved only by the plaintiff. The suit property and its connected properties are in peaceful possession and enjoyment of the Harijans as per the Government Land Acquisition Proceedings and as per the plaint plan in O.S.No.1 of 1999. The averments contained in the plaint in O.S.No.1 of 1999 may kindly be treated as part and parcel of this written statement. The suit is, therefore, liable to be dismissed with costs. 5. After framing necessary issues, the trial court entered trial and had recorded evidence in the suit in O.S.No.796 of 1998, since a connected suit in O.S.No.1 of 1999 filed by the defendants against the plaintiff herein for permanent injunction was also tried along with this suit. After appraisal of evidence, the trial court had dismissed the claim of declaration by the plaintiff, but granted permanent injunction against the defendants. Against the grant of permanent injunction, the defendants preferred an appeal in A.S.No.27 of 2002 before the first appellate court. However, the defendants herein, as plaintiffs in O.S.No.1 of 1999, did not prefer any appeal against the dismissal of the said suit rendered in the common judgment. After hearing arguments of both sides, the first appellate court had come to the conclusion of dismissing the appeal filed by the defendants, but had modified the decree by granting the declaratory relief also in favour of the plaintiff. 6. Aggrieved by the said judgment and decree of the first appellate court, the defendants have preferred the present appeal in this Court. 7. On admission, this Court had formulated the following questions of law for consideration in the appeal :- "i) Whether the sale in favour of the plaintiff under Ex.A1 is valid and if it is not valid, whether by reason of that the plaintiff can protect his possession ? ii) Whether the plaintiff is entitled to get the decree for permanent injunction based on Ex.A1, when there is violation of condition relating to non-alienation by the original assignee as per clause 41(iii) of the Board Standing Order ? ii) Whether the plaintiff is entitled to get the decree for permanent injunction based on Ex.A1, when there is violation of condition relating to non-alienation by the original assignee as per clause 41(iii) of the Board Standing Order ? iii) Whether the suit for declaration is bad for non-joinder of Government as necessary party, admittedly when the suit property is Natham Poramboke land and also the plaintiff is claiming right under Ex.A7 dated 23.07.1998 patta issued by the Tahsildar?" 8. Heard Ms.Tamilarasi, learned counsel appearing on behalf of M/s.N.Manokaran, learned counsel for the appellants / defendants and Mr.T.Murugamanickam, learned counsel for the respondent / plaintiff. 9. The learned counsel for the appellants / defendants would submit in her argument that the first appellate court has not considered the evidence as well as the relief sought for by the plaintiff in accordance with law, but granted a decree for permanent injunction when the declaration was not ordered by the trial court. She would further submit that the right of the plaintiff obtained through the sale deed was in accordance with the assignment given to the vendor of the plaintiff, in which the alienation was prohibited by the Board Standing Order clause – 41(iii). She would further submit that the plaintiff cannot get a relief of declaration owing to the condition of non-alienation to the original assignee, but it was lost sight of the courts below and the declaratory relief was also erroneously granted by the first appellate court. She would further submit that when clause 41(iii) of the Board Standing Order was violated by the vendor (assignee) of the plaintiff, the said sale deed Ex.A1 itself was invalid. She would further submit that the suit property was admittedly a 'Natham Poramboke' and patta was granted in Ex.A7 to the plaintiff and therefore, the Government is a necessary party to the suit. She would further submit that the evidence of PW.2, son of the vendor, was to the effect that the property was obtained by his mother through an assignment and therefore, it was a non-alienable property except to a scheduled caste individual. She would further submit that the plaintiff, who was admittedly a non-scheduled caste individual, cannot get the property through Ex.A1 and therefore, the property was not entitled to the plaintiff. She would also cite a judgment of this Court reported in 2003 (1) MLJ 565 (Muniammal..vs.. She would further submit that the plaintiff, who was admittedly a non-scheduled caste individual, cannot get the property through Ex.A1 and therefore, the property was not entitled to the plaintiff. She would also cite a judgment of this Court reported in 2003 (1) MLJ 565 (Muniammal..vs.. Muthu Gounder (died) and others) in support of his argument in respect of the illegality of such sale deed. She would further submit that the trial court had come to the conclusion that the declaratory relief cannot be granted since the property could not be conveyed by the vendor to the plaintiff and the same was erroneously reversed by the first appellate court on the reason that the assignment to Harijans including the plaintiff's vendor was not proved. She would also submit that the onus of proving was laid on the defendants regarding the property was assigned to Harijans, which cannot be accepted in law. She would further submit that the judgment and decree passed by the first appellate court is not in accordance with law and therefore, it is liable to be set aside and the suit be dismissed before the trial court and thus, the Second Appeal may be allowed. 10. The learned counsel for the respondent / plaintiff would submit in his argument that the plaintiff filed the suit before the trial court for declaration and injunction, but the relief of declaration was denied, however, the decree of permanent injunction was granted in favour of the plaintiff and when the defendants appealed against the grant of permanent injunction, it was contested by the plaintiff and he was also agitating his right to the denial of declaration in the appeal itself as per law and the first appellate court had promptly discussed the point that there was no reference as to the grant of assignment to plaintiff's vendor and therefore, it was absolutely valid within the four corners of law. He would further submit that the defendants had filed yet another suit seeking permanent injunction against the plaintiff in O.S.No.1 of 1999 as a counter suit to the suit filed by the plaintiff and the said suit was also clubbed together and a common judgment was rendered and against which, no appeal has been preferred by the defendants, which would certainly bind the defendants. He would also submit that in the said suit, the Government had filed a written statement stating that the said property in S.No.384/58, no assignment of patta was given to the plaintiff herein and it was a regular patta transferred on the basis of the sale deed obtained by the plaintiff from the said Veeral. He would further submit that the sale deed obtained from the vendor in Ex.A1 did not speak about the grant of patta through assignment by the said Veeral and there was no reason for presuming that the property was obtained by the said Veeral through an assignment from the Government. He would further submit that unless it is shown to the court that the property was assigned to Veeral, the Board Standing Order will not apply to the present case. He would further submit that the plaintiff purchased the property as described in the plaint, which was also clearly proved by the report of the Commissioner and the plaintiff was also found in possession of the said property. He would also submit that unless the property was shown to have obtained by the vendor of the plaintiff through an assignment, Ex.A1 cannot be declared as invalid document. He would further submit that the defendants, who were not having any title to the suit property nor any right over the suit property, had filed the suit against the plaintiff in O.S.No.1 of 1999, which was dismissed and no appeal was preferred and therefore, they are estopped from questioning the right of the plaintiff in the suit property in a suit filed by the plaintiff. The plaintiff had established his title over the suit property and also the possession of the suit property and therefore, the judgment and decree passed by the first appellate court are not liable to be interfered. He would further submit that the judgment of this Court, as cited by the learned counsel for the appellants/defendants, would apply to cases where the assignment was given to the poor Harijans with conditions, whereas it has not been proved that the plaintiff's vendor was given with the property by way of assignment and therefore, the principles laid down in the said judgment would not apply to the present case. He would further submit that the property belonging to the vendor of the plaintiff was also held in her possession for over several decades and thereafter only the plaintiff had purchased the property and therefore, the claim of the defendants would not sustain and the first appellate court's judgment and decree may be confirmed and thus, the Second Appeal may be dismissed. 11. I have given anxious consideration to the arguments advanced on either side. 12. The suit was filed by the respondent / plaintiff for the following reliefs:- "a) declaring that the plaintiff is the absolute owner of the suit property. b) granting plaintiff a consequential permanent injunction restraining the defendant, their men and agents from in any way interfering with the plaintiff's peaceful possession and enjoyment of the suit property either by trespassing into or otherwise. c) awarding the costs of the suit." 13. The trial court, after a full fledged trial along with O.S.No.1 of 1999, had granted a decree of permanent injunction after eschewing the relief of declaration in respect of the suit property. Simultaneously, the trial court had also dismissed the suit in O.S.No.1 of 1999 filed by the defendants as plaintiffs therein for permanent injunction, from restraining the plaintiff as defendant therein from constructing a house in the suit property. Against the dismissal of grant of permanent injunction in the said suit in O.S.No.1 of 1999, the defendants herein did not prefer any appeal. Therefore, the said findings became final. 14. However, the defendants have preferred the first appeal before the first appellate court against the judgment and decree passed in O.S.No.796 of 1998. The first appellate court found that the plaintiff was in possession and enjoyment of the suit property on the basis of the right conferred under Ex.A1 and a declaratory relief was also granted, since the assignment of the property in favour of the plaintiff's vendor was not proved. 15. When I peruse the judgment and decree passed by the first appellate court, I could see that the first appellate court had come to the conclusion that no assignment had been referred to in Ex.A1 sale deed nor any clinching evidence has been adduced for holding that the property was acquired by the plaintiff's vendor viz., Veeral through assignment. 15. When I peruse the judgment and decree passed by the first appellate court, I could see that the first appellate court had come to the conclusion that no assignment had been referred to in Ex.A1 sale deed nor any clinching evidence has been adduced for holding that the property was acquired by the plaintiff's vendor viz., Veeral through assignment. Whether the admission of PW.2, son of Veeral, that the suit property was given in patta to his mother and the said property along with other properties were acquired by the Government for that purpose, can be true. However, in the suit in O.S.No.1 of 1999, the Government was made as a party, in which the Government has filed a written statement that there was no acquisition of land for distribution to the Harijans. Further, the written statement filed by the Government in that suit would go to show that the Old S.No.384/1 (presently divided as 384/1 to 384/63 including the S.No.384/58) were divided under Natham Land Revenue Scheme. Apart from that, Ex.A1 executed by the mother of PW.2 in favour of the plaintiff did not say that the said property was acquired by her by the grant of assignment in her favour, by the Government. In the said circumstances, even otherwise the evidence as spoken by PW.2 would be considered as an admission, it is shown to have against the documentary evidence as well as the truth that those properties were not acquired by the Government for distributing them to the Harijans. It is also the stand of the Government that they were divided under the Natham Land Revenue Scheme. In the said circumstances, the said evidence of PW.2, even it is an admission, it would be an uncanny admission. If such admissions are relied upon by the courts that would be against the true nature of facts. When the suit property has not been shown to have been assigned in favour of the said Veeral, vendor of the plaintiff, it cannot be considered as a property with a restriction under the Board Standing Order's clause 41 (iii). Therefore, the judgment of this Court reported in 2003 (1) MLJ 565 (Muniammal..vs.. Muthu Gounder (died) and others) cannot be applied. In the said judgment, it has been categorically laid down as follows:- "10. Therefore, the judgment of this Court reported in 2003 (1) MLJ 565 (Muniammal..vs.. Muthu Gounder (died) and others) cannot be applied. In the said judgment, it has been categorically laid down as follows:- "10. We are now left with two aspects – Whether the sale in favour of the defendant is not valid, and if it is not valid whether by reason of that the plaintiff can protect his possession. The above will be an additional substantial question of law to be answered in the Second Appeal. The terms of the assignment are as follows:- "Revenue Board, Standing Order Clause 41 sub-clause (iii) – If the condition of non-alienation is violated or if the land ceases to be owned by the assignee or his legal heirs or (after ten years) other members of their class, owing to sale by process of law or otherwise, or if default is made in the payment of the government revenue on the dates prescribed, the grant will be liable to be resumed by the government, who will be entitled to re-enter and take possession of the land without payment of any compensation or refund of the purchase money." It is for the Government to act. If it does not it is not open to the plaintiff to act highhandedly commit trespass and apply for protection. He must establish a legal right to be in possession. Merely because there has been an alleged contravention of the terms of the assignment, it cannot mean that any third party can encroach upon or commit trespass in respect of the property, subject matter of such assignment. The standing order clearly provides that in the event of non-observance of the terms of the assignment, the grant 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 plaintiff can enter, take possession and put up construction." 16. No doubt the said principle is squarely applicable to the lands where assignment has been granted by the Government with stringent conditions. As far as this case is concerned, it is not shown to the Court that it was an assigned property as found by the trial court, which has been rightly interfered by the first appellate court. 17. No doubt the said principle is squarely applicable to the lands where assignment has been granted by the Government with stringent conditions. As far as this case is concerned, it is not shown to the Court that it was an assigned property as found by the trial court, which has been rightly interfered by the first appellate court. 17. In view of the confirmation of the facts through the finality of findings reached in O.S.No.1 of 1999 and in the circumstances of this case, I could see that the land in question, i.e., the suit property is not an assigned land as contended by the learned counsel for the appellants / defendants. Therefore, this Court is not finding any reason to interfere with the concurrent findings of the first appellate court while modifying the portion of declaratory relief in favour of the plaintiff. The modification was done by the first appellate court under the provisions of Order 41 Rule 22 of CPC after hearing the objection of the respondents regarding the findings of the trial court against him. 18. For the forgoing discussions, I am of the considered view that nothing was shown to the Court to decide the questions of law in favour of the appellants and the judgment and decree passed by the first appellate court was perverse or biased, but it was in accordance with the evidence adduced before the trial court and therefore, there would be no reason to interfere with the judgment and decree passed by the first appellate court. Consequently, the judgment and decree passed by the first appellate court is confirmed and the Second Appeal filed by the defendants is dismissed. No costs.