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2018 DIGILAW 238 (MAD)

Samundeeswari v. S. M. Kaleeswaran

2018-01-22

S.VAIDYANATHAN

body2018
JUDGMENT : As the disputed question of facts in the Second Appeal and the Writ Petition is one and the same, both the cases are taken up for disposal by a common judgment. For the sake of convenience, the parties are referred to as they are ranked in Second Appeal. 2. The petitioner in the Writ Petition is the appellant in the Second Appeal. The appellant/ Samundeeswari has come up with the present Second Appeal against the judgment and decree dated 11.10.2013 passed in A.S.No.58 of 2012 on the file of the Subordinate Judge, Tambaram, in reversing the fair and decretal order, dated 14.08.2012 in I.A. No. 604 of 2012 in O.S.No.223 of 2011 on the file of the District Munsif, Tambaram. The appellant/Samundeeswari has filed the present Writ Petition seeking a direction to the respondents/Slum Clearance Board to remove the unauthorized and illegal occupation of the respondent/Kaleeswaran from Plot No. 273, Rajiv Gandhi Street, Bharath Nagar, Selaiyur, Tambaram, and for a consequential direction to the respondents/Slum Clearance Board to execute the Sale Deed in respect of Plot No. 273 and hand over vacant possession of the same to her, that has been legally allotted to her. 3. It is the case of the appellant/Samundeeswari that originally, the property in respect of Plot No. 273 was allotted to her by the Tamil Nadu Slum Clearance Board vide proceedings No. Se.Mu.No.Rc.1851/93/A-5, dated October 1993 and she paid the entire sale price in instalments. It is her further case that the 1st and 2nd respondents/Tamil Nadu Slum Clearance Board failed to execute the Sale Deed in her favour. Later, when she visited the Plot, she came to know that the respondent/Kaleeswaran had been occupying the Plot by illegally putting up a superstructure. Despite approaching the 1st and 2nd respondents/Slum Clearance Board to take action against the unauthorized occupant viz. the respondent/Kaleeswaran, no action was taken against him. 4. While so, it is the case of the respondent/Kaleeswaran that originally, the property situated in Plot No.273 was allotted to the appellant/Samundeeswari and subsequently, she sold away the said property to him in the year 2000 for a valid sale consideration of Rs.50,000/- and put him in possession of the property. the respondent/Kaleeswaran, no action was taken against him. 4. While so, it is the case of the respondent/Kaleeswaran that originally, the property situated in Plot No.273 was allotted to the appellant/Samundeeswari and subsequently, she sold away the said property to him in the year 2000 for a valid sale consideration of Rs.50,000/- and put him in possession of the property. According to the respondent/ Kaleeswaran, the appellant/Samundeeswari promised that while issuance of Sale Deed by the 1st respondent/Slum Clearance Board, she will accompany him to the 1st respondent office and issue the Sale Deed in his favour. It is his further case that subsequent to the purchase of the said property, he put up a superstructure and started residing there along with his family members without any interference and hindrance and he was also provided with domestic electricity service connection by the Tamil Nadu Electricity Board in respect of the said property. 5. It is further stated by the respondent/Kaleeswaran that he approached this Court in W.P.No.27801 of 2011 seeking a direction to the respondents 1 and 2 therein to consider his representation dated 16.04.2011 and thereby issue a Sale Deed in respect of the property in question, in his favour. However, this Court granted liberty to the respondent/Kaleeswaran to withdraw the said Writ Petition and pursue the Civil Suit filed by him in O.S.No.223 of 2011 against the appellant/Samundeeswari before the District Munsif Court, Tambaram. 6. It is seen that the Civil Suit filed by the respondent/Kaleeswaran in O.S.No.223 of 2011 seeking permanent injunction against the appellant/Samundeeswari, was rejected under Order 7 Rule XI C.P.C., aggrieved by which, the respondent/Kaleeswaran preferred an Appeal before the Sub Court, Tambaram in A.S.No.58 of 2012, which came to be allowed. Challenging the judgment and decree of the First Appellate Court, the appellant/Samundeeswari is before this Court with the present Second Appeal. 7. Learned counsel for the appellant/Samundeeswari contended that it is totally incorrect to state that the respondent/Kaleeswaran was put in possession of Plot No. 273 by the appellant/Samundeeswari. According to him, the suit itself is not maintainable in view of Sections 29(1)(a) and (b) and Sections 65 and 67 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 and the Civil Court has no jurisdiction to determine any issue pertaining to the Slum Clearance Board. 8. According to him, the suit itself is not maintainable in view of Sections 29(1)(a) and (b) and Sections 65 and 67 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 and the Civil Court has no jurisdiction to determine any issue pertaining to the Slum Clearance Board. 8. It is further contended by the learned counsel for the appellant/Samundeeswari that the First Appellate Court has reversed the order passed by the Trial Court and gone beyond the scope of the pleadings, as if there is a Sale Agreement and that the Civil Suit is not maintainable. To substantiate his stand, learned counsel referred to the Allotment Order and Payment Receipts issued by the Tamil Nadu Slum Clearance Board in favour of the appellant/Samundeeswari. Learned counsel further stated that a Writ Petition was filed by the respondent/Kaleeswaran in W.P.No.23985 of 2011 and this Court, by an order dated 11.10.2011, dismissed the said Writ Petition directing the respondent/Kaleeswaran to approach the Civil Court. According to the learned counsel, merely because, there is a direction by the Court, it does not mean that the suit can be entertained when the Civil Court has no jurisdiction. The respondent/Kaleeswaran should have brought to the attention of this Court that he has no other remedy and he should have taken the plea that the Civil Court jurisdiction is ousted. 9. Per contra, learned counsel appearing for the contesting respondent/Kaleeswaran submitted that the appellant/Samundeeswari is the original allottee of Plot No. 273, which was converted into a residential house by the respondent/Kaleeswaran and that the allotment order was issued in the year 1993. He further submitted that the appellant/ Samundeeswari paid amounts in instalments to the Slum Clearance Board upto the year 2000, and pursuant to the verbal agreement between the respondent/Kaleeswaran and the appellant/Samundeeswari, remaining instalments were paid by the respondent/ Kaleeswaran and since then, he is in possession of the property in question. 10. On the other hand, learned counsel appearing for the respondent/Tamil Nadu Slum Clearance Board, by filing counter, submitted that Plot No.273 was allotted in favour of the appellant/Samundeeswari by the Slum Clearance Board and she has paid the instalment amounts due to the Board. 10. On the other hand, learned counsel appearing for the respondent/Tamil Nadu Slum Clearance Board, by filing counter, submitted that Plot No.273 was allotted in favour of the appellant/Samundeeswari by the Slum Clearance Board and she has paid the instalment amounts due to the Board. Later, she approached the Board to issue Sale Deed in her favour in respect of the above said Plot and when field inspection was conducted by the officials on 09.03.2011, it was found that she was not residing in the said Plot, on the contrary, the respondent/Kaleeswaran was residing in the said Plot and the same was informed to the Board vide letter dated 09.03.2011. He further submitted that when a request was made by the officials to produce the document to that effect, the respondent/ Kaleeswaran could not produce any document and that the last payment made by the respondent/Kaleeswaran to the Slum Clearance Board was on 22.03.2010. 11. Learned counsel appearing for the respondent/Tamil Nadu Slum Clearance Board further stated that the appellant/Samundeeswari was categorically informed at the time of allotment itself that she has to strictly follow the allotment conditions and if she violates any one of the conditions, her allotment would be cancelled by the Board. It is his contention that the appellant/Samundeeswari has violated one of the conditions of the Board by not residing in the said Plot, instead, she has allowed the respondent/ Kaleeswaran to occupy the said property and now she claims that the latter had encroached the said plot. Hence, according to the learned counsel, the appellant/ Samundeeswari is not entitled to seek execution of Sale Deed in her favour and on the other hand, the respondent/Kaleeswaran is also not entitled to seek any relief from the Board, since he has unauthorizedly encroached the Slum Board property. 12. With regard to the contention of the learned counsel for the appellant/Samundeeswari that the appellant has not violated any conditions prescribed by the Slum Clearance Board, learned counsel appearing for the respondent/Tamil Nadu Slum Clearance Board drew the attention of this Court to some of the conditions stipulated in the Board, which are extracted below: xxxxxxx 13. 12. With regard to the contention of the learned counsel for the appellant/Samundeeswari that the appellant has not violated any conditions prescribed by the Slum Clearance Board, learned counsel appearing for the respondent/Tamil Nadu Slum Clearance Board drew the attention of this Court to some of the conditions stipulated in the Board, which are extracted below: xxxxxxx 13. Learned counsel appearing for the respondent/Tamil Nadu Slum Clearance Board went on to contend that till the Sale Agreement entered into between the Slum Clearance Board and the appellant/Samundeeswari is executed, the appellant has no right to sell the property in question, despite, she having paid the instalment amounts due to the Board. In case, the Slum Clearance Board fails to execute the Sale Agreement, it is for the appellant to approach this Court for execution of Sale Deed, as there is a bar under Section 65 of the Act that no suit can lie against the Slum Clearance Board. According to the learned counsel, the respondent/Kaleeswaran is a third party and there is no transaction between him and the Slum Clearance Board. 14. In reply, learned counsel appearing for the respondent/Kaleeswaran contended that the suit is between two private parties and that the Slum Clearance Board has not been made a party and thus, the suit is maintainable. 15. Heard the learned counsel on either side and perused the material documents available on record. 16. Admittedly, the property in question belongs to the Tamil Nadu Slum Clearance Board. The case of the appellant/Samundeeswari is that when she has paid the entire amount due to the Slum Clearance Board within three years from the date of allotment, there is no reason as to why and how the respondent/Kaleeswaran has paid a sum of Rs.2,000/- on 22.03.2010, which is said to be the balance amount payable to the Slum Clearance Board. According to the appellant/Samundeeswari, the respondent/ Kaleeswaran is an encroacher and he has no locus standi to pay any amount much-less the amount paid on 22.03.2010. 17. For the sake of convenience, Sections 29(1)(a) and (b), 65 and 67 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 (in short 'the Act') are extracted below: "29. According to the appellant/Samundeeswari, the respondent/ Kaleeswaran is an encroacher and he has no locus standi to pay any amount much-less the amount paid on 22.03.2010. 17. For the sake of convenience, Sections 29(1)(a) and (b), 65 and 67 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 (in short 'the Act') are extracted below: "29. Proceedings for eviction of [occupants] not to be taken without permission of the prescribed authority: (1) Notwithstanding anything contained in any other law for the being in force, no person shall except with the previous permission in writing of prescribed authority- (a) institute, after the commencement of this Act any suit or proceedings for obtaining any decree or order for the eviction [an occupant] from any building or land in such area: or (b) where any decree or order is obtained in any suit or proceeding instituted before such commencement for the eviction of [an occupant] from any building or land in such area, execute such decree or order. 65. Bar of jurisdiction of civil courts: Save as otherwise expressly provided in this Act, no civil court shall have jurisdiction in respect of any matter which the Government are, or the prescribed authority is, empowered by or under this Act, to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. 67. Protection of action taken in good faith: (1) No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith, done or intended to be done in pursuance of this Act or of any rule or order made thereunder. (2) No suit or other legal proceeding shall lie against the Government or the prescribed authority or any authority or officer subordinate to the Government or the prescribed authority for any damage caused or likely to be caused by anything which is, in good faith, done or intended to be done in pursuance of this Act or may rule or order made thereunder." 18. Also, Order 7 Rule XIV of the Code of Civil Procedure is extracted below: "14. Also, Order 7 Rule XIV of the Code of Civil Procedure is extracted below: "14. Production of document on which plaintiff sues or relies: (1) Where a plaintiff sues upon a document or relies upon a document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. (2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is. (3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit." 19. The contention of the respondent/Kaleeswaran that the suit in question is between two private parties cannot be accepted, as the suit in the case on hand, is between two parties, pertaining to the land belonging to the Slum Clearance Board allotted to the appellant/ Samundeeswari. The pleading that Slum Clearance Board is not a party to the suit may not be a ground for rejection of his claim, and it is on technical grounds. Since the land belongs to the Slum Clearance Board and that the same has been allotted to the appellant/ Samundeeswari, this Court is of the view that in terms of Section 65 of the Act, the Trial Court was right in allowing the application in I.A. No. 604 of 2012 that was filed invoking Order 7 Rule XI C.P.C. 20. Merely because the appellant/Samundeeswari is an allottee, it does not mean that she can sell the property, more particularly, when she has no title to the same. Also, Ex.A2-Receipt issued in favour of the respondent/Kaleeswaran adds no strength to his case, as the name of anyone who pays money would be reflected in the Receipt and the amount is paid only for the land in question. Also, Ex.A2-Receipt issued in favour of the respondent/Kaleeswaran adds no strength to his case, as the name of anyone who pays money would be reflected in the Receipt and the amount is paid only for the land in question. Unless and until there is proper title, payment of any amount by the respondent/Kaleeswaran cannot be considered that there was an Agreement of sale in respect of the property in question. Similarly, the respondent/ Kaleeswaran cannot demand allotment of property in his favour and seek execution of Sale Deed either by the writ petitioner/Samundeeswari or by the Slum Clearance Board. 21. The First Appellate Court completely brushed aside Section 65, without looking into the fact that the issue in question is with regard to the land belonging to the Slum Clearance Board and in terms of Section 65, the suit is barred. It is seen that the Slum Clearance Board has contemplated separate procedures for allotment and cancellation of house sites and the Civil Code jurisdiction is ousted. Hence, in the view of this Court, the First Appellate Court erred in reversing the decision of the Trial Court in rejecting the plaint, by invoking Order 7 Rule XI C.P.C. 22. Though, it has been contended that the respondent/Kaleeswaran had not sought for any declaration in the suit, but had only sought for an injunction restraining the interference of peaceful possession of the property in question, admittedly, he is not an allottee of the respondent/Slum Clearance Board. Only the appellant/Samundeeswari is an allottee and she claims to have paid the entire amount due to the respondent/Slum Clearance Board. 23. The contention of the respondent/Kaleeswaran that the relief sought in the suit is only against the appellant/Samundeeswari, cannot be accepted, as till the respondent/ Kaleeswaran becomes the owner of the property, he has no right to have any transaction with regard to the property belonging to the Slum Clearance Board. Hence, I find much force in the contention of the learned counsel for the appellant/Samundeeswari. 24. Admittedly, the respondent/Kaleeswaran has no locus to claim the property, and trying to enrich over the property, the appellant/Samundeeswari cannot take everyone for a ride, much-less the Court. There is no reason as to why having paid the entire amount, the appellant/Samundeeswari has slept over the matter for years. 24. Admittedly, the respondent/Kaleeswaran has no locus to claim the property, and trying to enrich over the property, the appellant/Samundeeswari cannot take everyone for a ride, much-less the Court. There is no reason as to why having paid the entire amount, the appellant/Samundeeswari has slept over the matter for years. Though it appears from the pleadings that there is a collusion between the appellant/Samundeeswari and the respondent/Kaleeswaran, as no ample evidence is produced, this Court is of the view that the respondent/Kaleeswaran will not be entitled to any relief, as there is no allotment order issued to the writ petitioner. 25. Taking note of the fact that the appellant/Samundeeswari has paid the entire amount due to the Slum Clearance Board, it is open to the Slum Clearance Board to execute the Sale Deed in her favour, if she satisfies all the requisite conditions. If so, the Slum Clearance Board shall execute the Sale Deed in favour of the appellant/Samundeeswari within a period of 45 days from the date of satisfying the requisite conditions, if there are no factual and legal impediments. 26. It is made clear that in case of execution of the Sale Deed in favour of the appellant/ Samundeeswari, it is open to the Slum Clearance Board to follow the guidelines stipulated by this Court in W.P. No. 29811 of 2014 vide order dated 15.11.2017, in order to ensure that the tenements allotted by the Slum Clearance Board, reaches only the needy and not the greedy. 27. It is further clear that if the appellant/Samundeeswari had received any amount from the respondent/Kaleeswaran in respect of the property in question, the appellant/ Samundeeswari shall return the same to the respondent/Kaleeswaran, within a period of 15 days from the date of receipt of a copy of this order. Since the respondent/ Kaleeswaran is an unauthorized occupant, he shall vacate the premises on his own, on or before 15.06.2018, failing which, the respondent/Slum Clearance Board shall evict him with the help of Police, before the end of June 2018. 28. There is no question of law, much less substantial question of law that arises for consideration in this Appeal. 29. In fine, the Second Appeal is allowed setting aside the judgment and decree of the First Appellate Court and the Writ Petition is also allowed. No costs. 28. There is no question of law, much less substantial question of law that arises for consideration in this Appeal. 29. In fine, the Second Appeal is allowed setting aside the judgment and decree of the First Appellate Court and the Writ Petition is also allowed. No costs. Consequently, connected M.P. No. 1 of 2014 in S.A.No.74 of 2014 and M.P.No.1 of 2012 in W.P. No. 13994 of 2012 are closed. 30. List this matter for 'Reporting compliance' on 06.07.2018.