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2024 DIGILAW 2682 (MAD)

Mariyappan v. District Collector

2024-11-27

D.BHARATHA CHAKRAVARTHY

body2024
ORDER : PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus, forbearing the respondents 5 and 6 herein from giving any police protection to the 7th respondent without any specific order obtained from the court by the 7th respondent from his illegal act of evicting the petitioners herein from their respective portions of property of an extent of 41.50 ares, 45.50 ares, 48.50 ares, 12.00 ares, 26.00 ares, 27.00 ares, 14.70 ares, 1.60 ares, 1.40 ares, 1.40 ares, 1.40 ares, 1.40 ares, 11.50 ares, 2.50 ares, 4.50 ares, 17.00 ares, 6.00 ares, 7.00 ares, 9.00 ares, 10.00 and 35.50 ares in all total extent of 324 ares (8.28 acres) respectively out of total extent of 14.92 acres (6.04.0 hectares) comprised in Survey Number.236/1, situated at Pillaiyarendal, Chinnavengavayal Village, Karaikudi Taluk, Sivagangai District, without following due process of law and in contrary to the observation made in W.A.(MD).No.739 of 2017 dated 04.07.2017 on the file of this Court and by considering the petitioners' representation dated 30.09.2023. A. The Petition: This Writ Petition is filed for a Writ of Mandamus, forbearing respondents 5 and 6 from giving any police protection to the 7th respondent without any specific orders obtained from the Court by the 7th respondent for its illegal act of evicting the petitioners from their respective portions of the property, totally ad-measuring to 8 acres and 28 cents (324 ares) out of the total extent of 14.92 acres (6.04.0 hectares) comprised in Survey No.236/1, Pillaiyarendal, Chinnavengavayal Village, Karaikudi Taluk, Sivagangai District, without following the due process of law and in contrary to the observations made in W.A.(MD).No.739 of 2017 dated 04.07.2017 and by considering the representation of the petitioners dated 30.09.2023. B. The Case of the Petitioners: 2. There are a total of 24 Writ Petitioners in this case. Their case is based on the premise that the land in Survey No.236/1, Chinnavengavayal Village, Karaikudi Taluk, is a government poramboke land. More than 100 years ago, the ancestors of the petitioners re-claimed the land, tilled the soil, cultivated it and also built houses where all the petitioners and their families have been residing for generations. While so, the patta issued in favour of the petitioners was required to be changed in the name of the 7th respondent. 2.1 The petitioners challenged the same, by way of W.P.(MD). While so, the patta issued in favour of the petitioners was required to be changed in the name of the 7th respondent. 2.1 The petitioners challenged the same, by way of W.P.(MD). No. 1315 of 2015 and aggrieved by the order passed in the Writ Petition, the petitioners have filed a Writ Appeal in W.A.(MD). No.739 of 2017 and in the said Judgment dated 04.07.2017, it was specifically recorded that the apprehension of the petitioners herein that taking advantage of the order passed by the learned Single Judge, there is a likelihood of disturbance of possession of the petitioners was considered and the submissions made on behalf of the 7th respondent – temple that the Writ Petition was only with reference to the transfer of patta and the issue pertaining to the possession would be dealt with by approaching the jurisdictional Civil Court, at the appropriate time in so far as the extent of lands, which is said to be in possession of the petitioners. Even after the same, the police authorities viz., 5th and 6th respondents, called one of the petitioners for allegedly cutting the tree which they had grown in the land in his possession and attempted to interfere in the matter. The petitioners came to know that the 7th respondent – temple is trying to usurp their possession by approaching the 5th and 6th respondent – police authorities, in violation of the aforesaid undertaking given before the Division Bench of this Court. 2.2 On behalf of the petitioners, it is admitted that the patta was originally granted in their favour by the Assistant Settlement Officer (ASO). An appeal was filed in R.A.No.6 of 1999 on the file of the Sub Court, Sivagangai, which was allowed by an order dated 07.01.2013 and the patta granted in favour of the petitioners herein by the ASO was set aside. The petitioners have filed further appeal before the Appellate Tribunal in S.T.A. (MD). No.1 of 2013 before this Court. By an order dated 22.09.2014, the said appeal was dismissed by this Court. 2.3 Thereafter, the matter was taken up further to the Hon’ble Supreme Court of India in S.L.P.(Civil). No.6432 of 2018 and by an order dated 11.05.2018, the Special Leave Petition came to be dismissed. No.1 of 2013 before this Court. By an order dated 22.09.2014, the said appeal was dismissed by this Court. 2.3 Thereafter, the matter was taken up further to the Hon’ble Supreme Court of India in S.L.P.(Civil). No.6432 of 2018 and by an order dated 11.05.2018, the Special Leave Petition came to be dismissed. It is also admitted on behalf of the petitioners that originally, the 7th respondent – temple also filed a suit in O.S.No.151 of 1957 on the file of the District Munsif Court, Devakottai, seeking a declaration and recovery of possession, which was decreed in their favour and the subsequent appeals filed upto this Court were also dismissed and the said decree was confirmed. 2.4 Again, yet another suit was also filed by the 7th respondent in O.S.No.360 of 1967 for a permanent injunction, which was also decreed in their favour. Be that as it may, even assuming that those proceedings were ended in favour of the 7th respondent, still they cannot violate the undertaking given before this Court in the above said Writ Appeal, that they will not disturb the possession except by approaching the jurisdictional Civil Court. The 7th respondent has not approached the Civil Court, by way of execution proceedings to date. They cannot disturb the settled possession of the petitioners otherwise than by due process of law and the 5th and 6th respondents – police parties cannot interfere in the civil dispute unless the protection is specifically ordered in the execution proceedings. However, the 7th respondent has chosen a shortcut method of going to the 5th and 6th respondent -police and trying to indirectly usurp the possession from the petitioners and hence, the Writ Petition, in the nature of Writ of Prohibition, forbearing the respondents 5 and 6 from aiding the 7th respondent in proceeding with such illegal attempt. C. The Case of the Respondents: 3. The Writ Petition is resisted by the respondents. The learned Government Advocate (Criminal Side) appearing on behalf of respondents 5 and 6 would submit that the police authorities will not interfere in the civil dispute, but have to go only as per the Civil Court decree. The police protection was sought in terms of the decree of the Civil Court. In any event, they will give protection as per the directions of this Court. 3.1 The Writ Petition is primarily resisted by the 7th respondent. The police protection was sought in terms of the decree of the Civil Court. In any event, they will give protection as per the directions of this Court. 3.1 The Writ Petition is primarily resisted by the 7th respondent. The 7th respondent is the trustee of Sri Kailasa Vinayagar Koil, Pillaiyarendhal, Chinnavengavayal Village. According to the 7th respondent, originally, the litigation started in the year 1957. The temple represented by its trustee filed O.S.No.151 of 1957 against the forefathers of the petitioners herein for a declaration that the subject matter properties are the absolute properties of the temple and for recovery of possession of the same. The properties are inam properties in which both warams were granted in favour of the deity by an ancient rule of the year 1864. Ever since, the temple has been in possession and enjoyment of both warams. 3.2 The encroachers contended that the suit properties are inam estate, under the Madras Estate Lands Act and that the Civil Court has no jurisdiction to entertain the suit. While so, by virtue of Act 30 of 1956, the suit was transferred to the Tribunal. The Tribunal passed an order on 17.01.1950 in R.A.No.193 of 1950, declaring that the Pillaiyarendhal is only a hamlet of Chinnavengavayal, which is an inam Village and that it was not an estate. As against that, an appeal was filed and the appeal was ended in dismissal that the same is not an estate and therefore, the suit was again re- transferred to the file of the Civil Court and continued as O.S.No.151 of 1957. By a Judgment and decree dated 28.07.1959, the suit was decreed. Against which, the forefathers of the petitioners herein filed A.S.No.50 of 1959, which was also dismissed on 24.11.1960. 3.3 Aggrieved by the dismissal of the first appellate Court, a Second Appeal in S.A.No.1653 of 1961 was filed and by a Judgment dated 18.08.1965, the said Second Appeal was dismissed. Against the Judgment and decree in the Second Appeal, at the relevant point of time, since the Letters Patent Appeal was maintainable, L.P.A.No.9 of 1965 was filed. However, the said appeal also dismissed by a Judgment dated 10.08.1971. 3.4 During the pendency of the proceedings, it is the case of the 7th respondent – temple that already execution petition in E.P.No.615 of 1961 was filed and possession was also taken. However, the said appeal also dismissed by a Judgment dated 10.08.1971. 3.4 During the pendency of the proceedings, it is the case of the 7th respondent – temple that already execution petition in E.P.No.615 of 1961 was filed and possession was also taken. The temple also filed an application before the Settlement Tahsildar, for a grant of patta to the temple under Act 26 of 1963. Even after taking possession, since the predecessors of the petitioners again tried to enter into the property, a suit in O.S.No.360 of 1967 was also filed for permanent injunction and the said suit was also decreed on 12.09.1973. On 15.10.1973, the ASO also granted patta in favour of the 7th respondent – temple in respect of 14.93 acres in Survey No.236/1. 3.5 In the year 1980, again one Ramaiya Pillai tried to put up construction and again a suit in O.S.No.106 of 1980 for declaration and recovery of possession was filed, which was decreed. Against the same, the said individual filed A.S.No.47 of 1981, which was allowed. However, the Second Appeal filed by the temple in S.A.No.756 of 1984 was allowed by this Court on 12.06.1998, holding that the earlier litigations and the findings would bind all the parties. While so, as against the grant of patta, the petitioners herein had also filed R.A.No.47 of 1980, though beyond the period of limitation prescribed under the Act. In the said appeal, the matter was remanded back to the ASO for fresh enquiry by an order dated 07.08.1989. After fresh enquiry, by an order dated 20.02.1982, patta was granted in favour of the temple. Again, an appeal was filed in R.A.No.15 of 1992, and again, the matter was remanded back to the ASO by a Judgment dated 27.11.1995. This time, without sending notices to the trustee of the temple, by an order dated 19.07.1999, patta was granted in favour of the petitioners/their forefathers. 3.6 Aggrieved by the same, the 7th respondent filed an appeal in R.A.No.6 of 1999 which was allowed by an order dated 07.01.2013, after referring to the earlier civil litigations between the parties. As against the said order, an appeal was filed by the petitioners herein in S.T.A.No.1 of 2013 and the same came to be dismissed by an order dated 22.09.2017. As against the said order, an appeal was filed by the petitioners herein in S.T.A.No.1 of 2013 and the same came to be dismissed by an order dated 22.09.2017. As against the same, the petitioners also approached the Hon’ble Supreme Court of India in S.L.P.(Civil)No.6432 of 2018 and the same was also dismissed on 11.05.2018. 3.7 It is under these circumstances, that the temple filed W.P.(MD). No.1315 of 2015 to direct the revenue authorities to mutate the revenue records and grant patta in favour of the temple which was allowed by the learned Single Judge. Aggrieved by the same, the petitioners filed W.A. (MD). No.739 of 2017, which was also disposed of holding that the directions of the learned Single Judge would be subject to the final orders to be passed in the S.T.A.(MD). No.1 of 2013. Finally, by a Judgment dated 22.09.2017, the S.T.A.(MD). No.1 of 2013 was also dismissed. After the Judgment was passed on 22.09.2017, the 7th respondent – temple, to avoid any further encroachment by the petitioners had taken steps to put up fencing around the 14.93 acres except the houses of the petitioners herein and during the same, the petitioners and their family members started obstructing to put up the fence and attempted to cause harm to the workers of the temple and therefore, a police complaint is given seeking protection. Therefore, they pray the petition be dismissed. D. The Arguments: 4. Heard, Mr. K.Baalasundharam, the learned Senior Counsel appearing on behalf of the petitioners and Ms Aasha, the learned Government Advocate (Criminal Side) appearing on behalf of respondents 1 to 6 and Mr. A.R.L.Sundaresan, the learned Senior Counsel appearing on behalf of the 7th respondent – temple. 4.1 Mr K.Baalasundharam, learned Senior Counsel appearing on behalf of the Writ Petitioners, would submit that the entire issue lies on a narrow campus. He would submit that it is true that the 7th respondent – temple had obtained a decree of the Civil Court in their favour, and the patta proceedings before the revenue court also ended up in favour of the 7th respondent --temple. Even then, the temple would be entitled only to the properties mentioned in the decree. The temple, therefore, ought to have filed an execution petition for recovery of possession. No possession has been lawfully taken from the petitioners till date. Even then, the temple would be entitled only to the properties mentioned in the decree. The temple, therefore, ought to have filed an execution petition for recovery of possession. No possession has been lawfully taken from the petitioners till date. Therefore, even if they are armed with a decree of recovery of possession, the remedy available to the temple is only to file an execution petition. By relying upon the photographs produced on behalf of the petitioners, the learned Senior Counsel would submit that it can be seen that the houses are age-old houses and when the petitioners are living there for generations and are in settled possession, can be dispossessed only as per due process of law. The process of law in the instant case is only filing of an execution petition and not deploying the police and forcibly throwing the petitioners out of their possession. 4.2 As a matter of fact, already, the undertaking given on behalf of the 7th respondent – temple that they will approach only the jurisdictional Civil Court has been recorded by the Division Bench of this Court vide the Judgment in W.A.(MD). No.739 of 2017 dated 04.07.2017. Even though the 7th respondent is a temple, still when the petitioners are in settled possession, living there for more than 100 years, the 7th respondent – temple cannot be permitted to simply approach the police and usurp the settled possession. Therefore, the prayer in the Writ Petition as such has to be allowed by this Court. 4.3 The learned Government Advocate (Criminal Side) would submit that the police will not go into the civil issues and if the protection is sought, only as per the directions of the Court, they will grant police protection. Further, she would submit that the respondents 1 to 6 will abide by the further directions of this Court. 4.4 Mr. A.R.L.Sundaresan, learned Senior Counsel appearing on behalf of the 7th respondent would submit that firstly, the prayer in the Writ Petition as such is a negative prayer, not to give police protection is not maintainable. There is absolutely no dispute whatsoever with reference to the identity of the property. Originally, the same extent of 14.93 acres was in Survey No.236 and when further sub-divisions happened, the same was re-numbered as Survey No.236/1, while cancelling the patta which was granted in favour of the petitioners. There is absolutely no dispute whatsoever with reference to the identity of the property. Originally, the same extent of 14.93 acres was in Survey No.236 and when further sub-divisions happened, the same was re-numbered as Survey No.236/1, while cancelling the patta which was granted in favour of the petitioners. He would submit that the earlier Civil Court proceedings would confirm that the petitioners are not in possession of the entire extent of property. The undertaking which was given in the W.A. (MD).No.739 of 2021, no longer be relevant, in view of the Judgment of the Division Bench of this Court in S.T.A. No.1 of 2013 dated 22.09.2017. He would submit that in any event, the present effort of the temple is to fence the land which is in its own possession and aid of the police is not sought for to dispossess the petitioners from their houses. When earlier, there is an order of recovery of possession and subsequently there is an order of permanent injunction, the claim of the petitioners to be in possession can never be upheld. In the patta proceedings, the fact that the temple is in possession has been specifically recognized and the same is confirmed. Therefore, the contention of the petitioners has to be rejected. E. The Discussion & Findings: 5. I have considered the rival submissions made on either side and perused the material records of the case. At the outset, I am not agreeable with the contention made on behalf of the respondents that the Writ Petition with a negative prayer should be held to be not maintainable for the following reasons, (i) This litigation started in the 1950s with a question, of whether the subject matter land was an estate or an inam granted to the temple; (ii) Litigations both under the Special Tribunals constituted under the respective Acts and before the Civil Courts, all have ended in favour of the 7th respondent – temple. That position is admitted even by the learned Senior Counsel appearing on behalf of the petitioners. If that be so, apart from deciding the lis between the parties, if the property belongs to the deity, this Court being a parens patriae for the temple property and the matter has to be decided only on merits and not on technical pleas. That position is admitted even by the learned Senior Counsel appearing on behalf of the petitioners. If that be so, apart from deciding the lis between the parties, if the property belongs to the deity, this Court being a parens patriae for the temple property and the matter has to be decided only on merits and not on technical pleas. (iii) When both parties have argued in detail whether or not, the 7th respondent – temple should take possession in respect of the lands including the houses in which the petitioners reside, by way of approaching the police for protection to fence these lands which are said to be vacant lands with trees and other vegetation or whether the temple has to file an execution petition before the Civil Court and take possession, the question has to be decided by this Court. 5.1 The petitioners claimed to be in possession of the entire extent of 14.92 acres. However, the learned Subordinate Judge, Sivagangai, by a Judgment dated 07.01.2013 in R.A.No.6 of 1999 rendered the following findings in paragraph Nos.14 onwards, which is extracted hereunder:- “14. Having regard to the discussion above it has to be held that the appellant in the present case has proved its title to the suit property and the first respondent and on his death the other respondent have to bow to the appellant’s superior title. And finally all the substantial question of law are answered in favor of the appellant Sri Kailasa Vinayagar Temple. The same was reported in 1998 (3) Law Weekly 696 as “Evidence Act Ss.13, 41 to 44- Judgement not inter parties, when binding as regards claim to title of the property- Suprior title of plaintiff , prevailing of when defendant has not established his possession for over statutory period entitling him to claim by adverse possession – As plaintiff took possession through court in the earlier execution proceedings, it should stand unless it was pleaded and proved that it was done by practice of fraud. The above referred all the civil cases ended in favor of appellant and the title of the appellant are repeatedly confirmed by Honorable High court, Madras, Hence except the appellant nobody have any valid title and lawful possession. The learned enquiry officer failed to consider all the legal aspects and simply ignore the documents submitted by the appellant and passed ex-parte order. The learned enquiry officer failed to consider all the legal aspects and simply ignore the documents submitted by the appellant and passed ex-parte order. The statement of VAO Kandanoor clearly says” This present respondent did not having any legal possession over the suit property. Having regards to the above discussion that the appellant in the present case has proved his title and entitled for patta as a title holder. The struggle was going on between the same parties and their predecessor from 1949. If this case is remanded , it will taken another huge number of years and decades for final disposal. Hence the exparte order passed by Assistant Settlement Officer Madurai is liable to be set aside.” 5.2 In the appeal preferred by the petitioners herein/their predecessors in S.T.A.(MD). No.1 of 2013, which was decided after the decision made in the above Writ Appeal, i.e., on 22.09.2017, the entire proceedings were again re-appraised in detail and the following findings are rendered with reference to possession:- “9. ......... ............. Thus, it is seen that a factual finding has been rendered in favour of the plaintiff and against the defendants after rejecting the contention of the defendants that the plaintiff or its predecessor never cultivated the suit land. The statement made on behalf of the counsel for the plaintiff that plaintiff is entitled for both warams was also taken note of.” 5.3 As a matter of fact, it was the specific contention of the petitioners herein that the delivery made in the execution petition was merely a paper one. The said question was considered in detail by the Division Bench of this Court and it is relevant to extract paragraph No.11:- “11. In the aforesaid civil proceedings the entire properties belonging to the plaintiff was included. An execution petition was filed and possession was taken. Thereafter, another suit was filed in O.S. No. 360 of 1967 inter alia alleging that during the pendency of the proceedings some constructions have been put up. There was also an attempt to trespass the plaintiff property and preventing them from enjoying the suit land. It is contended on behalf of the defendants that the lands have vested with the Government under Act XXVI of 1963. There was also an attempt to trespass the plaintiff property and preventing them from enjoying the suit land. It is contended on behalf of the defendants that the lands have vested with the Government under Act XXVI of 1963. The delivery made in the execution petition was only a paper one.” 5.4 Thereafter, the findings in the earlier Civil proceedings are all extracted and after detailed discussion from paragraphs Nos.11 to 19, the following findings were rendered in paragraph No.20 in the said Judgment, and the same is extracted hereunder:- “20. After the conclusion of the earlier proceedings, namely, civil proceedings which started in the year 1957, the position of the appellants stand on different footings. In the Execution proceedings delivery was ordered. Thereafter, once again a decree was granted. Thus, the appellants are mere encroachers having no semblance of right. To put it differently, they can never claim themselves as ryots. Once the appellants did not have any right, they cannot question the patta granted in favour of the 1st respondent on 15.10.1973. All the issues and the findings rendered by the civil courts would substantiate the same. On the contrary, the first respondent has satisfied the authorities about the personal cultivation. It is not open to the appellants to contend that the entire land will come under the purview of the Estate as defined under Madras Act XVIII of 1936. As discussed earlier, even according to the appellants they were notified only under the Act XXVI of 1963. Even otherwise, the finding rendered and as discussed by us would clearly show that the point raised for the first time before us can never be countenanced on merits also. The decision relied upon by the learned counsel for the appellants reported in 1991-1-L-W. 16 (cited supra) does not have any application to the case on hand. Even otherwise, the finding rendered and as discussed by us would clearly show that the point raised for the first time before us can never be countenanced on merits also. The decision relied upon by the learned counsel for the appellants reported in 1991-1-L-W. 16 (cited supra) does not have any application to the case on hand. When the appellants are not even ryots and the first respondent has satisfied the authorities for issuance of a patta under Section 9 of Act XXX of 1963, then interference is not required by this Court.” 5.5 Therefore, the contention of the learned Senior Counsel appearing on behalf of the petitioners that the temple has to approach only the Civil Court, for delivery of possession cannot be countenanced in this case, as already there is a decree for recovery of possession and that the temple has also taken possession by way of due process of law. Even thereafter, the petitioners are only claiming that they are in possession of the suit land, which is contemptuous and cannot even be considered by this Court in the teeth of the decree of the Civil Court and the delivery order and the findings of the Division Bench of this Court in S.T.A.No.1 of 2013. 5.6 Under the said circumstances, I am of the view that police protection can be granted, as per the decree and directions of the Civil Court to enforce the findings of the Civil Court and also the Appellate Tribunal of competent jurisdiction being this Court. Therefore, there is no question of once again filing an execution petition and taking possession. When the property which is sought to be fenced is in the nature of vacant/cultivable lands, when it has been held that the petitioners are not the ryots and they are not in possession of the same, and even their original encroachment came to an end by a decree of the Civil Court ordering recovery of possession, followed by the delivery of possession being taken in execution proceedings and thereafter a decree of permanent injunction operating against the petitioners, it would be highly unjustifiable to accept the arguments of the learned Senior Counsel appearing on behalf of the petitioners that the temple should once again be directed to approach the Civil Court. Any further claim of possession by the petitioners of these lands which are in the nature of vacant/cultivable lands with or without trees and vegetation would be an abuse of process of law. 5.7 Therefore, I am of the view that the 7th respondent – temple is entitled to protection to put up the fence in respect of these lands. Apart from answering the question, this Court being the parens patriae of the deity is duty bound to protect the temple lands especially when the deity is kept in bay by the petitioners and their ancestors by continuous and protracted litigations, the details of litigation from the year 1957, which are extracted supra. F. The Result: 6. Accordingly, I am inclined to direct respondents 5 and 6 to forthwith give police protection to the 7th respondent - temple, to fence the lands leaving out only the houses of the petitioners along with the necessary pathway for the ingress and egress from the main entrance. Upon identification of lands by the 7th respondent, the 5th and 6th respondents shall render all protection for fencing the said lands in Survey No.236/1, Pillaiyarendal, Chinnavengavayal Village, Karaikudi Taluk, Sivagangai District, within a period of two weeks from the date of receipt of a copy of this order. The 3rd respondent – Tahsildar shall also depute the Firka Surveyor to be present in the spot to confirm the identity of the lands to enable respondents 5 and 6 to grant police protection. The entire exercise shall be completed within two weeks from the date of receipt of a copy of this order. 6.1 The 7th respondent – temple is further directed to properly maintain the property of the temple in the best interest of the idol without any room for further encroachment. 6.2 This Writ Petition is disposed of accordingly. No costs. Consequently, the connected miscellaneous petitions are closed.