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2024 DIGILAW 225 (MAD)

Natarajan v. State of Tamil Nadu

2024-01-23

G.ARUL MURUGAN

body2024
JUDGMENT : G. ARUL MURUGAN, J. Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, 1908 against the judgment and decree dated 28.04.2005 made in A.S. No. 6 of 2005 on the file of the Sub Court, Bhavani confirming the judgment and decree dated 29.08.2003 made in O.S. No. 890 of 1992 on the file of the I Additional District Munsif Court, Bhavani. 1. The instant second appeal is filed by the plaintiff challenging the Judgment and decree dated 28.04.2005 in A.S. No. 6 of 2005 on the file of the Sub Court, Bhavani, confirming the judgment and decree dated 29.08.2003 made in O.S. No. 890 of 1992 on the file of the I Additional District Munsif Court, Bhavani. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. The brief facts in the plaint are as follows: As per the plaint, there is a total extent of 5.01 acres of land in S.F. No. 544 of Ennamangalam Village, Bhavani Taluk. As per the exchange deed executed on 21.09.1936, an extent of 2.50.5 acres, i.e. half of the property mentioned in the suit A schedule property belongs to one Kumarappa Gounder, and the other extent of 2.50.5 acres in the B schedule property came to the hands of Nachiyappa Gounder, who is the paternal grand father of the plaintiff. The A schedule property, which belongs to Kumarappa Gounder has now come into the hands of the 3rd defendant. As per the plaint, it is admitted that there is a ridge (‘polie’) between the A schedule property and the B schedule property, which has been in existence even prior to the date of the exchange deed and further there are coconut trees located east of the ridge in the B schedule property and between the ridge and the coconut trees in the B schedule property, there is a vaikal that runs from north to south. 4. According to the plaint, when a resurvey was conducted, defendants 1 & 2 have without verifying the records wrongly sub divided the 3rd defendant’s properties as R.S. No. 281/3 showing an extent of 1.18.0 hectares that is 2.84 acres, whereas the 3rd defendant is actually entitled only for 2.50.5 acres. 4. According to the plaint, when a resurvey was conducted, defendants 1 & 2 have without verifying the records wrongly sub divided the 3rd defendant’s properties as R.S. No. 281/3 showing an extent of 1.18.0 hectares that is 2.84 acres, whereas the 3rd defendant is actually entitled only for 2.50.5 acres. The plaintiffs have filed the suit claiming that proper notices were not issued at the time of resurvey and pray for a declaration and permanent injunction in respect of B schedule property and also seek to declare the resurvey conducted for S.F. No. 544 to an extent of 5.01 acres in Ennamangalam Village as invalid and not binding on the plaintiff and also claim half share right in the well in ‘A’ schedule property. 5. Brief facts in the written statement are as follows: The suit was resisted by the official defendants 1 and 2 by filing a written statement stating that proper notices were given to the plaintiff’s father under the Tamil Nadu Survey and Boundaries Act, 1923 and that S.F. No. 544 has been sub divided and re-numbered as R.S. No. 281/3. Further, after completion of the survey under Section 9(2) of the Act, notices were served on 14.04.1977 and a notification was also published under Section 13 of the Act on 27.08.1977. Therefore as three years have lapsed, from the date of the notification, the suit filed challenging the survey completed in the year 1977 is not maintainable and barred by limitation. 6. The 3rd and 4th private defendants have resisted the suit by filing the written statement and it is admitted that there is dividing ridge in between the A and B schedule properties which was in existence even before the exchange deed dated 21.09.1936. According to these defendants, the plaintiff neither has any right nor he was in possession of any of the land on the west of the dividing ridge and that he is always in possession and enjoyment of the lands located on the east of the dividing ridge. It is further submitted that apart from these lands, the parties are in possession of further extent of poramboke lands annexing to that portions. It is further submitted that apart from these lands, the parties are in possession of further extent of poramboke lands annexing to that portions. Further, it is stated that the plaintiff and his predecessors were never in possession of any area west of the said dividing ridge and therefore even if there is any mistake in resurvey of land on the east of the dividing ridge between R.S. No. 281/3 and 281/4, the plaintiff is not entitled to question the same. Further it is reiterated that the resurvey was conducted after giving notice to the concerned parties and the resurvey proceedings was served on the plaintiff’s father Chellappa gounder and once proceedings were completed and notification under Section 13 of the Surveys and Boundaries Act was published on 27.08.1977, the present suit is barred by limitation. 7. Evidences and Documents: On the side of the plaintiff, he examined himself as PW-1 and other witness PW-2 and marked Exs.A.1 to A.10. On the side of the defendants, 3rd defendant examined himself as DW-1 and also examined DW-2 and DW-3. Three documents in Exs.B.1 to B.3 have been marked. 8. The Trial Court after considering the evidence and documents on record, dismissed the suit. The Trial court found that the plaintiff claimed to resurvey the entire extent of lands in S.F. No. 544 but he has not sought for any relief to measure his portion of the lands. Further, the Trial court found that since defendants 3 and 4 have not disturbed the possession of the property in the lands beyond the ridge, there was cause of action for the relief of permanent injunction. The Trial court also found that since the plaintiff failed to establish that there is an extent of 2.50.5 acres of land available in the B schedule property in the field by taking steps to measure the property and that the well is there in existence in A schedule property over which he is still exercising his right, the declaration in respect of B schedule property and right to use the well in the A schedule property cannot be granted. Aggrieved by the same, the plaintiff filed an appeal in A.S. No. 6 of 2005 on the file of Sub-ordinate Judge, Bhavani. Aggrieved by the same, the plaintiff filed an appeal in A.S. No. 6 of 2005 on the file of Sub-ordinate Judge, Bhavani. The Appellate Court, after appreciating the evidence available on record, found that the plaintiff’s father received the notice in the resurvey proceedings and that the present suit is filed seeking for a resurvey without seeking to set aside the resurvey proceedings, is not maintainable. The plaintiff filed the suit by only mentioning the old survey field instead of mentioning the present resurvey number which indicates a mala-fide intention and that the plaintiff did not take any steps to measure and demarcate the disputed property. Under such circumstances, the appeal was dismissed. Aggrieved by the same, the plaintiff is on appeal before this Court. Even during the first appeal, the 4th defendant died. The 4th defendant had executed the will in favour of the 3rd defendant and there are no further legal heirs of the 4th defendant. 9. This Court by order dated 18.11.2005 was pleased to formulate the following substantial questions of law: “When the plaintiff’s title and possession of a property is admitted by the contesting defendant, whether the Courts below were justified in not granting the relief of declaration of title and permanent injunction?” 10. Submission of the counsel on either side: The learned Senior Counsel appearing for the appellant submits that there is an extent of 5.01 acres available in S.F. No. 544 of Ennamangalam Village which was the subject matter of the exchange deed in Ex.A.1 dated 21.09.1936. As per the deed, A schedule property belongs to one Kumarappa gounder and B schedule property came into the hands of the Nachiappa gounder. The property belongs to Kumarappa gounder in the A schedule property has now come into the hands of the 3rd defendant and B schedule property of Nachiyappa gounder now vests with the plaintiff. 11. The learned Senior Counsel submitted that as such both parties cannot own lands more than the extent of 2.50.5 acres as total lands have been divided equally. 12. 11. The learned Senior Counsel submitted that as such both parties cannot own lands more than the extent of 2.50.5 acres as total lands have been divided equally. 12. The learned Senior Counsel further submitted that during the resurvey proceedings, the statutory authority without verifying the records sub divided the 3rd defendant’s property as RS.281/3 and instead of restricting it to 2.50 acres, they included 2.92 acres in R.S. No. 281/3 and that 41 cents of land belonging to the plaintiff has been wrongly included in the holding of the 3rd defendant. 13. The learned Senior counsel further submitted that even though the settlement officer has been made a party to the suit as the 2nd defendant, the appellate court has erroneously given the findings that the director of the settlement has not been made as a party and submitted that the courts below have erroneously come to the conclusion and dismissed the suit. Further the relief of at least in respect of the B schedule property, could have been granted, when admittedly, the plaintiff is the owner of the same and sought for allowing the second appeal. 14. Per contra, the Government Pleader appearing for the respondents 1 and 2 submitted that the resurvey proceedings were undertaken after issuing proper notice and the notice was served on the plaintiff’s father and even though, he has disputed the same and he has not taken any steps to dispute the signature of his father. Further, the notification under Section 13 was issued in the year 1977 and that, if any person is aggrieved by the determination, shall institute the suit within three years from the date of the notification under Section 14 of the Tamil Nadu Survey and Boundaries Act, 1923. Further, the Special Government Pleader, submits that the plaintiff has not submitted any documents to prove his possession of the lands that is available beyond the ridge. 15. Mr. D. Selvaraju, learned counsel appearing for the 3rd respondent submitted that it is the admitted case of the plaintiff that the ridge in Ex.B.3 is present even prior to the exchange deed in Ex.A.1 executed in the year 1936. 15. Mr. D. Selvaraju, learned counsel appearing for the 3rd respondent submitted that it is the admitted case of the plaintiff that the ridge in Ex.B.3 is present even prior to the exchange deed in Ex.A.1 executed in the year 1936. The learned counsel further submitted that even according to the admission of PW-1, the lands available on the west of the ridge belong to the defendant and he does not have any right over the lands available on the west of the ridge. Further, it is the admitted case that the well, over which he claims right in A schedule property is not in existence and that there is no possibility of taking water. Further, according to the learned counsel, any easementary right will get extinguished when it becomes incapable of being exercised at any point of time and that from the admitted case of PW-1, the easementary right got extinguished, in view of Section 42 of the Easement Act, 1982. 16. Taking note of the above aspects, the Trial Court has given the findings that since the well in A schedule property is not there and the plaintiff does not own any lands beyond the ridge on the western side, the suit was rightly dismissed, and the same was confirmed by the Appellate Court. Further, the learned counsel submitted that even though the Courts have entertained the suit, still when the survey proceedings have been completed and notification was issued under Section 13 on 27.08.1977, the present suit is barred by limitation, as per Section 14 of the Tamil Nadu Survey and Boundaries Act, 1923, as the suit has not been instituted within three years from the date of notification. 17. The learned counsel submitted that since the Courts below have dismissed the suit on proper appreciation of evidence and documents, no interference is required from this Court and sought for dismissal of the above second appeal. 18. Heard the learned counsel on either side and gave my anxious considerations. Analysis: 19. It is the admitted case of the plaintiff that in respect of the lands situated in S.F. No. 544, Ennamangalam Village, Bhavani Taluk, by exchange deed in Ex.A.1 dated 21.09.1936, the A schedule suit property belongs to Kumarappa gounder and B schedule suit property belongs to Nachiyappa gounder. Analysis: 19. It is the admitted case of the plaintiff that in respect of the lands situated in S.F. No. 544, Ennamangalam Village, Bhavani Taluk, by exchange deed in Ex.A.1 dated 21.09.1936, the A schedule suit property belongs to Kumarappa gounder and B schedule suit property belongs to Nachiyappa gounder. It is the admitted case that there is a ridge in between the lands of A schedule property and B schedule property which is in existence even prior to the exchange deed in Ex.A.1. It is also admitted by the plaintiff in his evidence that the lands available on the east of the ridge belong to him and the lands available on the west of the ridge belongs to the 3rd defendant. Further, he categorically admitted that he does not own any lands on the other side of the ridge. It is further admitted by him that the right which he claimed in respect of the well in the A schedule property is not in existence as the same got damaged and there is no possibility of taking any water. 20. The plaintiff only claims that he was not aware of any of the resurvey proceedings and without notice the 1st and 2nd defendants have conducted the resurvey proceedings and wrongly sub-divided the 3rd defendant’s property as R.S. No. 281/3, showing an extent of 1.18.0 hectares, which is 2.92 acres. The 3rd defendant can be the owner only in respect of 2.50.5 acres of land and therefore, the suit has been filed to declare that the resurvey done in respect of 5.01 acres of land in S.F. No. 544 is void and not binding on the plaintiff. 21. The plaintiff has sought for declaration and also a permanent injunction in respect of B schedule property, restraining the 3rd defendant from interfering and enjoyment, mentioning the extent as 2.50.5 acres of land on the east of A schedule property. While so, the plaintiff has not taken any steps to prove that an extent of 2.50.5 acres of land is available in the field for which he claim the ownership and possession, when he specifically admits that he does not own any lands beyond the ridge on the eastern side. While so, the plaintiff has not taken any steps to prove that an extent of 2.50.5 acres of land is available in the field for which he claim the ownership and possession, when he specifically admits that he does not own any lands beyond the ridge on the eastern side. The plaintiff has also failed to prove as to in what manner the possession is interfered by the 3rd defendant in respect of the lands on the western side which he claims ownership. The plaintiff has not filed any documents to establish his ownership and possession of the lands measuring 2.50.5 acres of land in B schedule property as claimed by him. As rightly observed by the Courts below, the plaintiff has not taken any steps to measure the property identify the boundaries and find out the actual extent of land available in his possession in B schedule property and earmark the portion of the lands which he claims to be wrongly included in the resurvey in the name of the 3rd defendant and he has not claimed for any relief to recover possession of the lands which he claims to be available in the A schedule property. In such event, the Trial Court and the Lower appellate Court have rightly come to the conclusion that the plaintiff is not entitled to the grant of relief of declaration and injunction in B schedule property and the finding of the fact is based on the material available on record and not perverse. 22. Further, in respect to the claim of the easementary right to use the well situated in A schedule property is concerned, the plaintiff has failed to establish that the easementary right is in existence and the plaintiff in his evidence has admitted that the well mentioned in A schedule property is not available in the field as on date which has been extinct and there is no possibility of taking water. In view of the admitted position, the useless easement gets extinguished as per Section 42 of the Indian Easement Act 1982, which is extracted hereunder: “42. Extinction of useless easement: An easement is extinguished when it becomes incapable of being at any time and under any circumstances beneficial to the dominant owner.” 23. In view of the admitted position, the useless easement gets extinguished as per Section 42 of the Indian Easement Act 1982, which is extracted hereunder: “42. Extinction of useless easement: An easement is extinguished when it becomes incapable of being at any time and under any circumstances beneficial to the dominant owner.” 23. As the right of the usage of the well by the plaintiff in the 3rd defendant’ land has become incapable of being used even as per the admission of PW-1 and further the well is not in existence, the right has got extinguished. In such circumstances, the finding of the courts below that when the well is not in existence and not in usage, it will be adverse to the interest of 3rd defendant if any such declaration is granted in respect of the well over which the right has got extinguished is based on evidence and not perverse. 24. As far as the resurvey proceeding is concerned, it has been established from the evidence of PW-2, that the resurvey notice has been served on the father of the plaintiff and after the resurvey proceedings were completed, further notices were served on 14.04.1977 and thereafter, the notification under Section 13 of the Tamil Nadu Survey and Boundaries Act, 1923 was also published on 27.08.1977. Once the notification under Section 13 was issued, any party being aggrieved by the determination of any boundary can institute the suit within 3 years from the date of notification to set aside or modify the said determination. Section 14 of the Tamil Nadu Survey and Boundaries Act, 1923, is extracted hereunder: “14. Institution of a suit in Civil Court within three years to establish rights claimed in respect of the boundary of the property surveyed: Any person deeming himself aggrieved by the determination of any boundary under Section 9, 10, 11, 12-A or 12-B may, subject to the provisions of Parts II and III of the Indian Limitation Act, 1963 (Central Act 36 of 1963) institute a suit within three years from the date of the notification under Section 13 to set aside or modify the said determination and the survey shall, if necessary, be altered in accordance with the final decree in the suit and the alteration if any, shall be noted in the record.” 25. Further, PW-2 in his cross examination has admitted the documents in Ex.B.1, the notice that has been issued and the completion of the survey proceedings in Ex.B.2 and in fact the public were also informed by Tom Tom and also signatures have been received from the public and in that notice, the plaintiff himself has signed which clearly establishes that the plaintiff was having the knowledge of the resurvey proceeding as early as in the year 1977 itself. Even though, the plaintiff has contended that the signature of his father found in the notice is disputed, he has not taken any steps to prove the same and it is born out from the records that proper notices have been served and the plaintiff was well aware of the resurvey proceedings. 26. Therefore, the finding of fact by the courts below that the plaintiff had the knowledge of the resurvey proceedings and has filed the suit by mentioning the S.F. No. 544 instead of resurvey number only to get over the limitation is based on evidences and materials. Further, the plaintiff has not mentioned the actual extent which he is in possession in the B schedule property and the plaintiff has also not taken any steps to earmark the extent which according to him has been wrongly included in the name of the 3rd defendant in the resurvey proceedings and further the plaintiff failed to claim any relief in respect of that portion of the property to be declared in his favour and for consequential recovery of possession. Therefore, the Trial court and the lower appellate court have dismissed the suit based on the evidences and materials available on record and the finding of the fact arrived at courts below is not perverse. 27. Therefore, the substantial question of law is answered in favour of the respondents. Accordingly, the second appeal stands dismissed. However, there is no order as to costs.