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2020 DIGILAW 945 (MAD)

N. Meera Mohaideen v. Government of Tamil Nadu

2020-06-30

J.NISHA BANU

body2020
JUDGMENT : J. Nisha Banu, J. 1. This appeal has been filed by the plaintiff/appellant against the judgment and decree passed by the Court below, dismissing the suit for declaration, permanent and mandatory injunctions. 2. For better appreciation and understanding, the parties are referred to as per their in rank in the suit. 3. The case of the plaintiff is that the suit property is a house site comprised in Survey No. 502/10 and he has purchased the same from one Palaniyappa Asari through his Power Agent under registered sale deed 21.08.1995 (Ex. A1). A vast extent of land i.e., 110 Kurukkams of land, including the suit land, was originally purchased by Thiyagarajan Chettiar, Meiyappa Chettiar and Alagappa Chettiar under a registered sale deed dated 10.08.1908 (Ex. A6) from Kottaiyur Nadars and they formed a Village called Jeyangondapuram in the said land by making house sites, streets, Oorani, temple, agraharam, etc. From the said three Chettiars, one Somasundaram Chettiar had purchased 3/16 share in 110 Kurukkams of land under a registered sale deed dated 16.11.1910 (Ex. A5) and kept as house sites, in which the suit property is a part of house site. Thereafter, one Alamelu Aachi purchased the suit property from the son of Somasundaram Chettiar by name Annamalai Chettiar under registered sale deed dated 06.07.1962 (Ex. A4). At the time of purchase by Alamelu Aachi, there was a building in dilapidated condition and hence, the suit property was registered as vacant site. Subsequently, one Chidambaram purchased the suit property from the said Alamelu Aachi under a registered sale deed dated 10.02.1969 (Ex. A3). Thereafter, the immediate predecessor in title of the plaintiff by name Palaniyappa Asari purchased the property through his Power Agent by a registered sale deed dated 18.11.1986 (Ex. A2). The suit schedule property is a natham house site. At the time of purchase of the plaintiff, there was a dilapidated building and a small thatched roof in the suit property. The plaintiff rented out the said thatched roof to one Ramasamy. In the year 1998, the plaintiff constructed a building as N.M.R. Complex consisting of 10 shops in the suit property and let out the shops for rent. The plaintiff had been paying land tax before the construction and building tax after the construction to the Karaikudi Municipality. The plaintiff has mortgaged the property in favour of Syndicate Bank and borrowed a sum of Rs. The plaintiff had been paying land tax before the construction and building tax after the construction to the Karaikudi Municipality. The plaintiff has mortgaged the property in favour of Syndicate Bank and borrowed a sum of Rs. 4.5 lakhs in the year 2005. Thus, he has been in possession and enjoyment of the suit property without any interruption. 4. It is the further case of the plaintiff that during the period of settlement, the suit property was wrongly classified as "Oorani". Hence, the petitioner had filed a petition before the Assistant Settlement Officer to correct the error. The Assistant Settlement Officer had inspected the suit property and he granted patta on 05.02.1996 holding that the suit property has been wrongly classified. In the year 2003, the then Sub Collector, Devakottai and Tahsildar, Karaikudi had directed the plaintiff to vacate the suit property stating that it is an Oorani Poramboke and threatened to demolish the building. Hence, the plaintiff had filed a writ petition in W.P. No. 17576 of 2003 before this Court. By order dated 04.11.2003, this Court directed the defendants not to evict the plaintiff except under due process of law. The Revenue Divisional Officer, Sivagangai, issued a notice dated 24.03.2006 to the plaintiff, for which the plaintiff has submitted his explanations dated 19.05.2006 and 29.06.2006. Then, the plaintiff did not receive any order or any notice from the said authority. While so, on 12.10.2008, the 2nd defendant called the plaintiff over phone and directed to bring all the documents relating to patta issued by the Assistant Settlement Officer to the Taluk Office, Karaikudi. Accordingly, the petitioner went to the Office. At that time, the 2nd and 3rd defendants told him that the patta granted to him is not valid and directed the plaintiff to vacate the place on or before 11.11.2008. The 2nd defendant threatened the plaintiff that they would put him in jail, if he is not agreed to vacate the building. On threatening and coercion of the 2nd and 3rd defendants, the plaintiff had put his signature in a statement (Ex. A40 = Ex. B5). Subsequently, the plaintiff contacted his advocate and sent a telegram to the 2nd and 3rd defendants requesting to return the original patta and that he withdrew the statement given to them i.e., Ex. A40. On threatening and coercion of the 2nd and 3rd defendants, the plaintiff had put his signature in a statement (Ex. A40 = Ex. B5). Subsequently, the plaintiff contacted his advocate and sent a telegram to the 2nd and 3rd defendants requesting to return the original patta and that he withdrew the statement given to them i.e., Ex. A40. On 18.10.2008, the 2nd defendant came to the place at about 8.00 p.m. and called the tenants and directed them to vacate the building. On 19.10.2008 at about 7.00 a.m. the 2nd and 3rd defendants along with Police officials came to the place and unlawfully demolished the building by violating the order of this Court in W.P. No. 17576 of 2003. The defendants 2 and 3 misused their power in order to take revenge against the plaintiff. As the suit property is a Natham house site and not used as Oorani and it has been in possession of individuals from the year 1908 onwards, the plaintiff has filed the suit for declaration and injunctions. As the defendants illegally demolished the buildings constructed by the plaintiff, the plaintiff has also prayed for a mandatory injunction directing the defendants to jointly or severally pay damages for demolition of the building. 5. The case of the defendants is that the suit property has been taken over by the Government under the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act (26 of 1948) (hereinafter referred to as "the Act") and classified as an Sekkalai Oorani Poramboke. As per the Government records, the total extent of Sekkalai Oorani Poramboke is 4 acres and 36.9 cents. As per the Act, before classifying the suit property as Oorani Poramboke, objections were invited from the objectors and no objections were received. Aggrieved by such classification, the predecessors in title of the plaintiff could have filed appeal before the Tribunal within two months. But, no such appeal was filed. After a lapse of 33 years, the plaintiff had filed a petition before the Assistant Settlement Officer, Madurai and the Assistant Settlement Officer, at the verge of his retirement, had illegally issued patta for 3590 sq. ft. by proceedings dated 05.02.1996. The Assistant Settlement Officer has no power to classify the Oorani Poramboke as house sites and to issue patta. Hence, the patta issued in respect of the suit property is not a valid patta. ft. by proceedings dated 05.02.1996. The Assistant Settlement Officer has no power to classify the Oorani Poramboke as house sites and to issue patta. Hence, the patta issued in respect of the suit property is not a valid patta. Since the suit property is an Oorani Poramboke, the defendants took action to evict them from the schedule property. The defendants sent notice under Section 7 of the Tamil Nadu Land Encroachment Act to evict the plaintiff on 25.09.1998. As per the order of this Court dated 04.11.2003 in W.P. No. 17576 of 2003, a notice has been sent to the plaintiff on 24.03.2006, for which the plaintiff submitted his explanations on 19.05.2006 and 29.06.2006. Notice under Section 6 of the Act was sent on 13.10.2008. Since the plaintiff was not available at his residence, notice was affixed. After informing the tenants, the building was demolished on 19.10.2008. The plaintiff has also surrendered original patta on 12.10.2008 to the Government stating that patta has been wrongly obtained and based on the same, patta has been cancelled. Subsequently, necessary entries were made in the revenue records. The said order was sent to the plaintiff's Aranthangi Address. The defendants had taken action as per law. The defendants have authority to initiate proceedings for eviction under the provision of Land Encroachment Act. Hence, the plaintiff is not entitled to the relief sought for in the suit. 6. Before the Court below, on the side of the plaintiff, five witnesses were examined as PW1 to PW5 and Exs. A1 to A75 were marked and on the side of the defendants, two witnesses were examined as DW1 and DW2 and Exs. B1 to B5 were marked. On the side of the Court, the Advocate Commissioner's report and plans were marked as Exs. C1 to C5. 7. The Court below, after considering the oral and documentary evidence, has held that the plaintiff has failed to prove that the property is a house site and he is the owner of the property and that the unauthorised construction put up by the plaintiff in the suit property was demolished in accordance with law. Questioning the same, the plaintiff has filed this appeal. 8. The learned senior counsel appearing for the plaintiff/appellant submitted that the suit property is a house site and previously there were houses and Mills on it. Exs. Questioning the same, the plaintiff has filed this appeal. 8. The learned senior counsel appearing for the plaintiff/appellant submitted that the suit property is a house site and previously there were houses and Mills on it. Exs. A1 to A22 have clearly proved that the suit property is a house site from the year 1908 onwards and even before the settlement, the suit property has been used only as house site. By stating that Exs. A1 to A22 are only Xerox copies, the Court below has purposefully refused to look into the same. But, in fact, they are certified copies of the documents. He would further submit that the suit property could not be a part of Oorani as the said Oorani is admittedly bounded on its four sides and that the suit property is situate far away from the said Oorani and in between them there are pathways, temples, Bali beedams, etc. But, the defendants claimed that the suit property is an Oorani Poramboke based on Ex. B3-Settlement register. The settlement entries will not confer or destroy title to an immovable property. 9. The learned senior counsel appearing for the plaintiff/appellant would further submit that admittedly, the patta for the suit property stands in the name of the plaintiff till 12.10.2008 and hence, notice issued under Section 7 of the Tamil Nadu Land Encroachment Act, 1905 is not valid as they could be issued only for Government land and further, notices have not been served properly. This Court, by order dated 19.12.2014, in W.P.(MD). No. 7906 of 2009, has set aside the order cancelling grant of patta (Ex. A33). Without considering the said order, the Court below has held that the demolition of the suit building by using the order in Ex. A33 is valid. Hence, the demolition is illegal. Thus, he prayed to set aside the judgment and decree passed by the trial Court and to allow this appeal. 10. The learned Additional Government Pleader appearing for the official respondents submitted that the suit property is a part of Sekkalai Oorani Poramboke as per the Settlement 'A' register and if the suit property was a house site, the predecessors in title of the plaintiff could have obtained patta even during the Settlement itself. But, the predecessors in title of the plaintiff did not take steps to either obtain patta or challenge the settlement order. But, the predecessors in title of the plaintiff did not take steps to either obtain patta or challenge the settlement order. He would further submit that the then Assistant Settlement Officer has illegally granted patta in respect of the suit property as well as some other properties and therefore, they were cancelled and an action was initiated against that Assistant Settlement Officer. While so, the plaintiff has constructed building in the suit property without any permission. As the building has been constructed in Oorani Poramboke without any valid permission for construction, it was demolished after giving proper notice to the plaintiff and the plaintiff has also given a letter (Ex. B5) agreeing to vacate the building for demolition. The Court below, after considering all the oral and documentary documents, has rightly dismissed the suit and the same need not be interfered with. Thus, he prayed to dismiss this appeal suit. 11. Heard the learned counsel appearing for both sides and perused the records carefully. 12. From the above submissions of the learned counsel for both sides, the issues that has to be decided in this appeal are: (a) Whether the Court below is right in holding that the suit property is not a House site? (b) Whether the Court below is right in holding that the plaintiff is not entitled to the decree of declaration and permanent injunction? (c) Whether the Court below is right in holding that the plaintiff is not entitled to the decree of mandatory injunction also as prayed for? 13. According to the plaintiff, the suit property has been in possession and enjoyment of his predecessors in title and thereafter, the plaintiff as house site from the year 1908 as per Exs. A1 to A22. According to the defendants, during the settlement proceedings under the Act, which was completed on 28.01.1962, the suit property was classified as Sekkalai North Oorani Poramboke and no objection was raised by the predecessors in title of the plaintiff and therefore, the suit property is not a house site. 14. Admittedly, the plaintiff did not claim any adverse possession in respect of the suit property. He claimed title only based on Ex. A1-sale deed dated 21.08.1995. In Ex. -A1-Sale Deed, the suit property is mentioned only as vacant land. 14. Admittedly, the plaintiff did not claim any adverse possession in respect of the suit property. He claimed title only based on Ex. A1-sale deed dated 21.08.1995. In Ex. -A1-Sale Deed, the suit property is mentioned only as vacant land. Though the plaintiff has stated that there was a Mill running by the predecessors in title of the suit property and that at the time of his purchase, a dilapidated building was in existence in the suit property, it has not been proved so by the plaintiff by producing any documentary evidence. The plaintiff has not produced any revenue documents like patta, chitta, adangal, etc. in the name of his predecessors in title in respect of the suit property. The execution of sale deeds in respect of a particular property is not sufficient to hold that the said property is a house site and that the document holder is having better title. 15. The plaintiff (PW1) himself has admitted in his cross examination that at the time of purchase of the suit property, his predecessors in title had not given any revenue documents like, patta, chitta, adangal, etc. and that he did not ask for any revenue documents from his predecessor in title and he did not verify the same before purchasing the suit property. However, he has stated that he owned a house at Aranthangi and he has patta for the same. The above statement of the plaintiff would go to show that the plaintiff has purchased the suit property, knowing fully well that the suit property is not a house site and that it is belonged to the Government, because, in general, no one would purchase house site without verifying the revenue records. 16. In order to show that the suit property was classified as Sekkalai North Oorani Poramboke, the defendants have produced Ex. B3-Settlement Register in respect of the suit property. It shows that the suit property was classified as Sekkalai North Oorani Poramboke, for which the predecessors in title have not raised any objection and therefore, the settlement proceedings have become final. According to the defendants, the total extent of Sekkalai North Oorani Poramboke is 4 acres 36.9 cents and the above classification was made under Sections 15 and 64(c) of the Act. It is stated by the defendants that the settlement proceedings have been completed on 28.01.1962. According to the defendants, the total extent of Sekkalai North Oorani Poramboke is 4 acres 36.9 cents and the above classification was made under Sections 15 and 64(c) of the Act. It is stated by the defendants that the settlement proceedings have been completed on 28.01.1962. One of the predecessors in title of the plaintiff by name Alamelu Aachi stated to have purchased the property from Annamalai Chettiar through registered sale deed dated 06.07.1962. Neither Annamalai Chettiar nor Alamelu Aachi objected the settlement proceedings or took steps to mark their purchase in the revenue records. The defendants have also produced Exs. B1 and B2-Certified copy of the Town Survey Registers in respect of S. Nos. 502/1A/1B and 502/10 respectively and Ex. B4-F.M.B. After 33 years of settlement, the plaintiff stated that the suit property was wrongly classified as Oorani. Considering the above, the Court below has come to the conclusion that the suit property is not house site but Sekkalai North Oorani Poramboke. This Court does not find any reason to interfere with the same. 17. It is a settled law that when there is a dispute either as to the character of an estate or as to the title of a person, a Civil Court is competent to independently decide the question of title. In Ex. A1, the suit property is stated to be comprised in T.S. No. 502. T.S. No. 502 is comprised of a large extent of land. In the four boundaries also, it is stated that the suit property is located on the South and East of T.S. No. 502 part. Further, as stated earlier, no revenue document was produced in the name of the predecessors in title of the plaintiff in respect of the suit property. There is no document produced to show that the predecessors in title of the plaintiff had put up any construction in the suit property. The plaintiff has stated in his plaint that after purchase in the year 1995, he had put up a thatched shed in the suit property and rented out the same and subsequently, in the year 1998, he had put up a concrete construction as NMR Complex consisting of ten shops. However, the plaintiff (PW1) has admitted in his cross examination that he had not obtained necessary approval, like plan approval, etc. for construction of the said complex. However, the plaintiff (PW1) has admitted in his cross examination that he had not obtained necessary approval, like plan approval, etc. for construction of the said complex. Hence, it is clear that it was an unauthorised construction. The payment of tax would not confer title. As the suit property has been kept only as a vacant site and after purchase, the plaintiff had put up construction, the defendants came to know about the encroachment after such construction. 18. In the meantime, it is stated that the plaintiff has approached the Assistant Settlement Officer, Madurai and gave a petition to the effect that during settlement, the suit property was wrongly classified as Oorani Poramboke and the Assistant Settlement Officer, after enquiry, had issued patta to an extent of 3590 sq. ft. in favour of the plaintiff on 05.02.1996 (Ex. A33), though as per Ex. A1, the plaintiff has purchased only 2275 sq. ft. A perusal of Ex. A33 would show that the Assistant Settlement Officer has issued patta to an extent of 3590 sq. ft. stating that the suit property has been wrongly classified as Oorani and that the predecessors in title and thereafter, the plaintiff have been in possession and enjoyment of the land to an extent of 3590 sq. ft. and he classified the land as Ryathwari land and then, subdivided the suit property as T.S. No. 502/5. It is not known as to how he issued patta to the plaintiff for the possession and enjoyment of his predecessors in title excess to the extent of sale deed. Subsequently, mutation has been made in the revenue records. It came to the knowledge of the defendants that the plaintiff has got patta from the Assistant Settlement Officer, Madurai, when he was at the verge of his retirement and a large scale irregularities have been committed by the officials by issuing pattas to the Government land. Hence, the defendants took steps to cancel all the illegal pattas. On 23.08.1998, the District Revenue Officer, Sivagangai, has preferred a revision against the proceedings of the Assistant Settlement Officer, dated 05.02.1996-Ex. A33. 19. In the year 2003, the plaintiff had filed a writ petition in W.P. No. 17576 of 2003 stating that the officials of the respondent visited the land on 06.01.1996 and made a survey and that they may evict him without due process of law. A33. 19. In the year 2003, the plaintiff had filed a writ petition in W.P. No. 17576 of 2003 stating that the officials of the respondent visited the land on 06.01.1996 and made a survey and that they may evict him without due process of law. This Court, by order dated 04.11.2003, directed the officials therein not to evict the plaintiff from the premises in question and also not to demolish the building constructed subject to the satisfaction of the authority that the land is in occupation of the plaintiff and that if the plaintiff is in actual possession of poramboke land and grant of patta was not in order, the respondents therein at liberty to take action after due notice. 20. It is seen that the District Revenue Officer, Sivagangai had issued notices to the persons against whom pattas have been illegally issued by the then Assistant Settlement Officer in respect of the Government land. On 24.03.2006 the District Revenue Officer, Sivagangai had issued a notice to the plaintiff, for which he has given his replies on 19.05.2006 and 29.06.2006. The similarly placed persons have approached this Court in the writ petitions and this Court, by order dated 24.09.2008, dismissed all the writ petitions filed by them. Thereafter, on 25.09.2008, a notice (Ex. A59) has been issued by the Revenue Inspector under Section 7 of the Land Encroachment Act. According to the defendants, on 29.09.2008, the Sub Collector, Devakottai had issued a notice directing the plaintiff to appear before him on 10.10.2008, but the plaintiff did not appear before him. On 12.10.2008 the Sub Collector, Devakottai/2nd defendant herein had asked the plaintiff over phone to appear before him and accordingly, the plaintiff appeared before him and he had handed over the original patta to the 2nd defendant and also given a statement (Ex. 40) agreeing to cancel the patta and to give vacant possession of the land. In the said statement, two persons also made an endorsement as witnesses. PW1 during cross examination has admitted that the signature found in the said statement is his signature and that his own brother by name Bakrutheen and his relative by name Kulam Mukamathu had put their signatures as witnesses to the said statement. In the said statement, two persons also made an endorsement as witnesses. PW1 during cross examination has admitted that the signature found in the said statement is his signature and that his own brother by name Bakrutheen and his relative by name Kulam Mukamathu had put their signatures as witnesses to the said statement. Though the plaintiff has stated that his signature had been obtained by the defendants 2 and 3 on compulsion and coercion, he has not proved the same through any evidence. Moreover, there was no personal gain suggested in respect of the defendants 2 and 3 in getting signature of the plaintiff on compulsion and coercion. 21. On 13.10.2008, the 2nd defendant/Sub Collector, Devakottai passed an order (Ex. A57) cancelling the patta, based on the statement given by the plaintiff. On the very same day, i.e., on 13.10.2008, the Tahsildar, Karaikudi, had issued notice under Section 6 of the Land Encroachment Act (Ex. 60), directing the plaintiff to give vacant possession forthwith or otherwise, the building will be demolished on 19.10.2008 and fee will be collected for demolition. On 14.10.2008, the plaintiff had issued a telegram to the 2nd and 3rd defendants stating that he withdrew the statement given by him. Admittedly, the construction made in the suit property is an unauthorised construction. On 13.10.2008, the patta was also cancelled. Therefore, on 19.10.2008, the defendants demolished the building. Aggrieved by the same, the plaintiff had filed contempt petition in Cont. P. No. 1067 of 2008 along with Sub Application Nos. 350 and 351 of 2008, seeking a direction to the defendants to restore the possession of the premises and to pay compensation of Rs. 30 lakhs for demolition. This Court, by order dated 02.11.2010, has dismissed the contempt petition as well as the sub applications holding that "in view of the above disputed question of fact, I am not inclined to hold that the respondents have willfully disobeyed the orders of this Court in W.P. No. 17576 of 2003". 22. Though the plaintiff has contended that at the time of issuance of Section 7 notice, the patta in respect of the suit property was not cancelled and therefore, the said notice is not valid and that notice has not been served properly, this Court is not inclined to accept such technical plea, in view of the fact that (a) the plaintiff has given a statement (Ex. A40) accepting to cancel the patta and to give vacant possession and the same was attested by none other than his own brother and relative; and (b) there is no personal gain suggested in respect of the defendants 2 and 3 in getting signature of the plaintiff on compulsion and coercion. 23. A perusal of record shows that the plaintiff has, thereafter, filed W.P. (MD). Nos. 7906 and 7907 of 2009 questioning the show cause notices issued by the 2nd defendant dated 27.05.2009 and 04.08.2008 and the order dated 13.10.2008 (Ex. A57) cancelling patta. It is brought to the notice of this Court that on 23.08.1998 the District Revenue Officer, Sivagangai, has preferred a revision against the proceedings of the Assistant Settlement Officer, dated 05.02.1996 (Ex. A33), based on which patta has been issued to the plaintiff. This Court, by order dated 19.12.2014, has set aside the order dated 13.10.2008 (Ex. A57) and also the impugned show cause notices holding that they have been issued without any jurisdiction and directed the Settlement Officer, Thanjavur to dispose of the revision preferred by the District Revenue Officer dated 23.08.1998 on merits and in the manner known to law, after giving due notice and opportunity of personal hearing to the parties. The fate of the revision dated 23.08.1998 is not brought to the notice of the Court by either side. Though it is stated by the plaintiff that as the order cancelling the patta has been set aside by this Court, he is entitled for compensation, this Court is not inclined to accept the same, in view of the fact that (a) it was an unauthorised construction; (b) steps has already been taken to cancel the order granting patta to the plaintiff on 23.08.1998; and (c) the plaintiff himself has given a statement agreeing to cancel the patta and to demolish the construction. 24. In view of the above, all the issues are answered against the plaintiff. The Court below has rightly held that the plaintiff has failed to prove that the suit property is a house site and that he is not entitled to the relief sought for in the plaint. This Court does not find any reason to interfere with the said findings of the Court below. 25. In the result, this Appeal Suit is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.