Madras High Court
Andichamy Naicker vs Nallamuthu on 9 December, 2011
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09/12/2011 CORAM THE HONOURABLE Mr.JUSTICE M.VENUGOPAL Second Appeal (MD) No.887 of 2006 Andichamy Naicker ... Appellant Vs Nallamuthu ... Respondent Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree dated 21/7/2005 made in A.S.No.52 of 2001 on the file of the Sub-Juge, Periyakulam, reversing the Judgment and Decree dated 27/3/2001 made in O.S.No.47 of 1999 on the file of the District Munsif, Andipatti. !For Appellant ... Mr.P.C.Saravanan ^For Respondent ... Mr.B.Bommayan - - - - - - - :JUDGMENT
The Appellant/Plaintiff has filed the present Second Appeal as against the Judgment and Decree dated 21/7/2005 in A.S.No.52 of 2001 passed by the Learned Sub-Judge, Periyakulam in reversing the Judgment and Decree dated 27/3/2001 in O.S.No.47 of 1999 passed by the Learned District Munsif, Andipatti.
2. The First Appellate Court viz., the Sub-Judge, Periyakulam, in the Judgment in A.S.No.52 of 2001 (filed by the Respondent/Defendant) has inter alia observed that the Appellant/Plaintiff is not entitled to get the relief of permanent injunction because of the reason that the Appellant/Plaintiff has not established that he is in possession of the suit property and since the Appellant/Plaintiff has not proved his enjoyment in respect of the suit property, set aside the Judgment and Decree passed by the trial Court in O.S.No.47 of 1999 dated 27/3/2001 and allowed the Appeal with costs.
3. Earlier, before the trial Court, in the main suit, 1 to 8 issues have been framed for determination. On behalf of the Appellant/Plaintiff, witness P.W.1 has been examined and Exs.A.1 to A.9 have been marked. On the side of the Respondent/Defendant, witnesses D.Ws.1 to 3 have been examined and Exs.B.1 to B.5 have been marked.
4. The trial Court, after contest, on an appreciation of oral and documentary evidence available on record has come to a resultant conclusion that the Appellant/Plaintiff has put a cattle shed in the suit property and he is in enjoyment of the same. Further, the trial Court opined that the cause of action alleged by the Appellant/Plaintiff is true and consequently, granted the relief of permanent injunction in favour of the Appellant/Plaintiff.
5. In as much the First Appellate Court in A.S.No.52 of 2001, on 21/7/2005, has allowed the Appeal filed by the Respondent/Defendant and set aside the Judgment and Decree of the trial Court in O.S.No.47 of 1999 dated 27/3/2011, the aggrieved plaintiff as an Appellant, has projected the Second Appeal before this Court.
6. At the time of admission of the Second Appeal, this Court has formulated the following substantial questions of law:-
"1. Whether the Lower Appellate is right in rejecting Ex.A.1 to Ex.A.4 and Ex.A.6 to Ex.A.9 which show that the Appellant is in occupation of the Schedule Natham Land of which the occupier is entitled to preserve his possession as against any individual?
2. Whether the Lower Appellate Court is right in rejecting Ex.A.5 which already exhibits that the previous occupiers of the Appellant/Plaintiff had right and enjoyment of the subject land by mortgaging the same under Ex.A.5?"
7. THE CONTENTIONS, DISCUSSIONS AND FINDINGS ON SUBSTANTIAL QUESTIONS OF LAW:- The Learned counsel for the Appellant/Plaintiff submits that the First Appellate Court has committed an error in setting aside the well considered Judgment and Decree of the trial Court.
8. It is the submission of the Learned counsel for the Appellant/Plaintiff that the First Appellate Court has failed to appreciate that the suit has been filed by the Appellant/Plaintiff for permanent injunction restraining the Respondent/Defendant from disturbing the possession and in deed, it should have found that the Respondent/Defendant is not justified in disturbing the possession of the schedule property by the Appellant/Plaintiff.
9. Proceeding further, the Learned counsel for the Appellant/Plaintiff urges before this Court that the Appellant/Plaintiff produced Exs.A.1 to A.4 which exhibit the payment of property tax in respect of the schedule property, issued by Tirumalapuram Village Panchayat and failure to consider these documents as resulted in an erroneous Judgment being passed against the Appellant/Plaintiff.
10. The stand taken by the Appellant/Plaintiff is that Ex.A.5 Mortgage Deed dated 23/5/1990 contained the same schedule of property mentioned in the plaint and just because, it was executed by Pandian only and not executed by both the vendors of plaintiff, viz., Pandian and his brother Jeyaraj. Also, this will not help the Appellant/Plaintiff to prove his possession.
11. The plea of the Appellant/Plaintiff is that his vendors as per unregisterd sale deed dated 10/7/1991 have conveyed the plaint schedule property and as such, the Appellant/Plaintiff is in possession and enjoyment of the same property by putting up cattle shed and paying tax.
12. The Learned counsel for the Appellant/Plaintiff submits that the First Appellate Court has not correctly appreciated Ex.A.7 and nine photographs which point out the existence of cattle shed in the schedule property.
13. The Learned counsel for the Appellant/Plaintiff projects a plea that the Respondent/Defendant in his individual capacity has been disturbing the Appellant/Plaintiff's possession and enjoyment of the schedule property due to animosity.
14. In response, it is the contention of the Learned counsel for the Respondent/Defendant that the First Appellate Court has come to a right conclusion that the Appellant/Plaintiff is not entitled to get the relief of permanent injunction and further, the Appellant/Plaintiff has not established that he is in possession and enjoyment of the suit property and resultantly, allowed the appeal with costs and the said Judgment does not suffer from any material irregularity or patent illegality.
15. The evidence of P.W.1 (Appellant/Plaintiff) is that the suit property is Natham poramboke and that it is a village land and the suit land is in S.No.1358/1 and also that for the village lands at Bandhuwarpatti Village, no one has been given the patta and that the people are enjoying the lands ancestrally.
16. It is the further evidence of P.W.1 that the suit land originally belongs to Chellamuthu Naicker who has been in enjoyment of the same. Subsequently, the suit land has been in enjoyment of Pandi and Jayaraj, who are the sons of Chellamuthu and the said sons of Chellamuthu have enjoyed the suit land by dumping waste materials and putting the fence. Further more, the said Pandi and Jayaraj have mortgaged the suit property to one Chellapandi by means of a mortgage deed which is Ex.A.5 and further, that he has purchased the suit property from Pandi and Jayaraj at a cost of Rs.5,000/- and for which no document has been registered.
17. The evidence of P.W.1 is also to the effect that after purchasing the suit property, he is in enjoyment of the same by putting the cattle shed and that Thirumalapuram Panchayat has collected tax from him which are Exs.A.1 to A.4 series (tax receipts) and that Ex.A.7 is the three photos (with three negatives) to show that he has put up a cattle shed in the suit land.
18. The plea of the Appellant/Plaintiff is that the Respondent/Defendant has objected to his act of putting the cattle shed in the suit property and that the Respondent/Defendant has objected in his capacity as President of the Panchayat and therefore, he has filed the suit for injunction.
19. Added further, it is the evidence of P.W.1 (plaintiff) that since he worked on the opposite side in the Panchayat election against the Respondent/Defendant, the Respondent/Defendant has developed enmity with him and because of that has interfered with his peaceful possession and enjoyment of the suit property.
20. D.W.1 (Respondent/Defendant) in his evidence has deposed that the suit property in S.No.1368/1 belongs to Government Natham Poramboke and later, the suit survey number has been changed to S.No.1666 to 1670 with sub-divisions and for the old S.No.1368/1, the new survey number is 1670 which is a Natham place and that as per G.O.No.972 dated 4/4/1961 of Rural Development and Local Administration Department, the Tharisu and Natham Poraamboke, as per 972 receipt, the Panchayat has been given the direct power and later, Panchayat Act, 1958 has been amended and as per Panchayat Act, 1994, Panchayat has been given the power and as per the said Act, the Revenue Department has been vested with the power through Panchayat Resolution. In respect of Natham Poramboke lands and only after passing of the Resolution by the Panchayat, the grant of patta to the payment of tax in respect of Tharisu lands have been given to the Revenue Department etc.
21. D.W.1 in his further evidence has deposed that the extent of suit property in S.No.1368/1 is east-west 110 feet, south-north is 770 sq.feet and the cattle shed mentioned by the Appellant/Plaintiff is situated north of Theni
- Andipatti main road and the place mentioned by the Appellant/Plaintiff is S.No.1666/32 and in his Panchayat Office, for maintaining the Government properties, a register is maintained.
22. D.W.1 in his evidence has gone to the extent of saying that the suit property in S.No.1670/1 remains as a Natham vacant land which is included in old S.No.1368/1 and in this land also, the Appellant/Plaintiff has no right of enjoyment.
23. D.W.2 in his evidence has deposed that the suit property is a Natham poramboke which belongs to the Government and that the cattle shed mentioned by the Appellant/Plaintiff is in northern side of Theni - Andipatti road and that the Appellant/Plaintiff has no right in the suit property.
24. D.W.3 in his evidence has deposed that the Appellant/Plaintiff is not possessing the cattles and that the Appellant/Plaintiff is grazing 10 cows belonging to his father-in-law and also he is grazing different 50 cattles and that the Appellant/Plaintiff has no cattle of his own and in the suit property, the Appellant/Plaintiff has not put up the cattle shed.
25. It is the categorical evidence of D.W.3 in his cross-examination that in Natham Poramboke land, waste matters and fencing are put up and dumped by the persons ancestrally and in the Natham Poramboke lands, some are possessing them and some are having the patta lands.
26. A perusal of the plaint filed by the Appellant/Plaintiff indicates that the Appellant/Plaintiff has averred that the suit property at Shanmuga Sundaram Village, Banduwarpatti, Natham in S.No.1368/11, the Natham poramboke land is a village land and originally, the said land belongs to Chellamuthu Naicker ancestrally, who has enjoyed the same and after his death, his sons, Pandi and Jayaraj have put the fence and dumped the waste materials and has been in enjoyment of the same. Thereafter, the suit property has been purchased by the Appellant/Plaintiff on 10/7/1991 for a sale consideration of Rs.5,000/- from Pandi and Jayaraj.
27. From the date of purchase, ever since 10/7/1991, the Appellant/Plaintiff has put up the cattle shed in the suit property and has been in enjoyment of the same. For the cattle shed put up by the Appellant/Plaintiff in the suit property, he has paid the tax to Thirumalapuram Panchayat for which he has obtained a receipt.
28. The Respondent/Defendant, by using his position as President of Panchayat, with a view to cause damage to the Appellant/Plaintiff, by demolishing the cattle shed is endeavoring to remove the cattle shed from the suit property. If the cattle shed is removed from the suit property, it will cause hardship and loss to the Appellant/Plaintiff. Hence, the Appellant/Plaintiff has filed the suit against the Respondent/Defendant, seeking the relief of permanent injunction restraining the Respondent/Defendant or his men, etc., from in any way interfering with his peaceful possession and enjoyment of the suit property.
29. In the written statement filed by the Respondent/Defendant, it is averred that as per Government documents, the suit property is remained as Natham poramboke and later, it has been handed over to Tirumalapuram Panchayat and the same is under the control of the said Panchayat. Therefore, it is false to state that the suit property has been sold by Pandian and Jayaraj for a sum of Rs.5,000/- on 10/7/1991. Since the suit land is under the control of Thirumalapuram Panchayat and more so, it is a Natham poramboke land, the said Pandian and Jayaraj have no manner of right to effect the same. Therefore, the purchase made by the Appellant/Plaintiff is invalid in law. In the suit property, there is no cattle shed. There is no necessity to demolish the cattle shed, which is not really in existence. The suit has not been filed properly. There is no cause of action for the suit. Since the land belongs to Thirumalapuram Panchayat and the character of the land, being Natham poramboke, the Panchayat administration has got every right to remove the encroachment put up by any one. The suit property is a vacant land and the same is utilised for the benefit of the village people. In the suit property, with a permission of Panchayat, the marriage belonging to Naicker community people and public meetings are held. The suit is mis-joinder of necessary party viz., the Panchayat Commissioner and the Panchayat Officials. On this ground alone, the suit is liable to be dismissed. If the Appellant/Panchayat is permitted to encroach upon the suit property, then it will cause big loss and hardship to the common public. In the suit property, there is a temple, cart track, well, a over head water tank and a public tap.
30. Ex.A.1 is the tax receipt No.389 for Door No/S.No.2/01 which shows that for the year 1992 - 93, the house tax of Rs.4.20 has been collected. Ex.A.1 is in the name of the Appellant/Plaintiff. Ex.A.2 is the house tax receipts under the tax receipt No.381 for Door No.2/2001 for the year 1993 - 94 for a sum of Rs.4,40 ps., as a matter of fact, Ex.A.2 tax receipt indicates that it is a cattle shed. However, Ex.A.1 indicates that it is a vacant land. Ex.A.3 house tax receipt for the year 1997 - 98 stands in the name of the Appellant/Plaintiff and tax receipt No.is 623 for a sum of Rs.11. Ex.A.4 is the house tax receipts in the name of the Appellant/Plaintiff in respect of Door No.2/187 for the year 1998 - 99 amounting to Rs.11/-. In Exs.A.3 and A.4, there is no mention either as vacant land or as cattle shed.
31. Ex.A.5 is the certified copy of mortgage deed dated 23/3/1990 for Rs.1,000/- executed by one S.Pandian in favour of Chellapandi. In respect of the suit land measuring approximately 110 x 70 = 7700 sq.feet. The Mortgage deed is for Rs.1,000/- and the reason for raising the mortgage is to meet out the family expenses of S.Pandian. The rate of interest is Rs.1/- for Rs.100/- p.m.
32. Ex.A.7 is the three photos with negatives in respect of the suit property, wherein the Appellant/Plaintiff has kept the cattles by putting the fence.
33. Ex.B.1 is the Appellant/Plaintiff's lawyer's notice issued to the Commissioner of Andipatti Panchayat and its President the Respondent/Defendant. In the said notice, it is mentioned that the suit property is situated in S.No.1368/1 at Shanmugasundaram, Bandhuvarpatti which is a Natham poramboke one. In the said notice, it is mentioned that at the instance of the Commissioner of Andipatti Panchayat, the Respondent/Defendant, with the help of his men is making an endeavour to put up a wall in the cattle shed belonging to the Appellant/Plaintiff and further, in the cattle shed belonging to that of the Appellant/Plaintiff, the Commissioner of Andipatti Panchayat and the Respondent/Defendant have no manner of right to put up a wall.
34. Ex.B.2 is the xerox copy of Thirumalapuram Panchayat Register in respect of immovable and other properties from 1969 - 70 till 1995 - 96. As seen from Ex.B.2 xerox copy of the Panchayat register, the suit property viz., S.No.1368/1 measuring 4-24 is at Pandupatti is mentioned as Natham poramboke land.
35. Ex.B.3 is the Natham land tax scheme clear chitta copy, wherein it is mentioned that S.No.1666/32 and S.No.1668/11 has been mentioned as Natham land. 1543, 1549 are in the name of the Appellant/Plaintiff. The tax mentioned is Rs.6 and 2/- respectively in respect of Village, Shanmuga Sundaram Village, No.4 Andipatti Circle, Madurai District. From Ex.B.4 Natham land tax scheme, clear chitta copy of S.No.1666/32 (sub-division) old S.No.1368/1 part is shown as Natham land. Likewise, S.No.1668/11 old S.No.1368/1 part and S.No.1670/1 old S.No.1368/1 part are shown as Natham land in village No.4 and again the extent is mentioned as 0.05.79, 0.01.64, 1.63/11 and the tax of Rs.8/- has been mentioned. In the remarks column, it is mentioned as vacant land.
36. Ex.B.5 is Dinamalar Tamil Daily Advertisement Notice which refers to the Panchayat President assigned the power of removing encroachment as per Government Order. In the instant case on hand, the suit property measuring an extent of 7,700 sq.feet is a Natham poramboke land. It is a settled law that Natham poramboke land vests with the Government. The Appellant/Plaintiff has purchased the suit land on 10/7/1991 from Pandian and Jeyaraj, sons of late Chellamuthu Naicker, for a sale consideration of Rs.5,000/-. The said sale is not a valid one in the eye of law because, Pandian and Jayaraj have no manner of right to sell the suit land which is admittedly a Natham poramboke one. Therefore, by virtue of the said sale deed dated 10/7/1991, the Appellant/Plaintiff cannot derive a valid title in the eye of law. Even though the said sale dated 10/7/1991 in favour of the Appellant/Plaintiff is not a valid one in the eye of law yet the Appellant/Plaintiff who is in possession and enjoyment of the suit land is entitled to project his possession and enjoyment, when some one interferes or attempts to interfere with his peaceful possession and enjoyment of the suit property.
37. The categorical case of the Appellant/Plaintiff is that he worked in the opposite camp during the Panchayat election, against the Respondent/Defendant and as such the Respondent/Defendant has developed enmity on account of it and made an attempt to interfere with his peaceful possession and enjoyment of the suit property by bringing men along with him on 30/5/1999 and the same has been timely prevented by the Appellant/Plaintiff's men. In the plaint, the Appellant/Plaintiff has averred that he is poor and keeping the cattles and also running the family. It is not in dispute that the suit has been filed against the Respondent/Defendant only in his individual capacity and not as a President of the Panchayat. Therefore, there is no need to issue Section 80 of C.P.C., notice well in advance before filing of the suit by the Appellant/Plaintiff. To put it differently, suit filed against the Respondent/Defendant by the Appellant/Plaintiff is only in the individual capacity of the Respondent/Defendant and has nothing to do with the position of Presidential of Panchayat held by the Respondent/Defendant. Therefore, there is no need to implead any official of the Panchayat or to show the Respondent/Defendant as President of the Panchayat in the plaint. Since the individual act of the Respondent/Defendant is complained of to the question of Section 80 of C.P.C., notice does not arise. Also, only in his individual capacity, the Respondent/Defendant has been shown as the party to the suit. As such, it cannot be said by any means that the suit is bad for mis-joinder and non-joinder of necessary parties, in the considered opinion of this Court. Based on Ex.A.1 and A.4 tax receipts, patta of the Appellant/Plaintiff in respect of the suit property and in as much as the Appellant/Plaintiff is in enjoyment and possession of the suit property, by putting up the cattle shed as seen from Ex.A.7 (photos with negatives) and also that D.W.1 in his evidence has admitted that predecessors have received the tax for the cattle shed, it is candidly clear that the Appellant/Plaintiff is in enjoyment of the possession of the suit property.
38. It cannot be gain said that even though the Panchayat has been given the power to remove encroachment put up by any one in the Natham poramboke land and further, G.O.Ms.No.972 dated 4/4/2001 Rural Development and Local Administration Department, the Panchayat has been given the power in respect of Tharisu tax patta lands and Natham patta lands. Later, as per the amended Act, the Natham land has come under the direct control of the Panchayat. In this connection, this Court pertinently points out that there are many persons like the Appellant/Plaintiff in the Village, who are in enjoyment of the Natham poramboke land and further, the legal position is that even a trespasser is entitled to be evicted only under due process of law. In the instant case on hand, the Appellant/Plaintiff even though in occupation of the Natham poramboke land and is in enjoyment of the same by putting up the cattle shed ever since his purchase on 10/7/1991 and although the same is invalid in law, yet, he is entitled to remain in possession of the suit property till he is evicted by the Panchayat or by the appropriate authority under due process of law. In the interregnum, if any one interferes with the Appellant/Plaintiff's possession and enjoyment of the suit property including the Respondent/Defendant in his individual capacity, then such act is to be restrained by means of a permanent injunction, as the case may be.
39. Continuing further, the Appellant/Plaintiff has come out with plea that the Respondent/Defendant is trying to put up a wall in the suit property. As stated already, the Appellant/Plaintiff is in possession and enjoyment of the suit property and Exs.A.1 to A.4 and Ex.A.7 clearly would go to establish the case put forward by the Appellant/Plaintiff. As such this Court comes to an inevitable conclusion that the Appellant/Plaintiff is entitled to the relief of permanent injunction as prayed for by him in the plaint.
40. Indeed, the First Appellate Court is not right in ignoring/rejecting Exs.A.1 to A.4 and Exs.A.6 to A.9, which clearly point out that the Appellant/Plaintiff is in occupation of the suit schedule Natham land. As a matter of fact, an occupier is entitled to protect and preserve his possession against any individual although he may be a trespasser. It is fundamental that if a person asserts that he can be dispossessed only through a Court of Law, then, he must show that he has a right under Law to remain in possession till his rights are determined by a Court of Law. Further, this Court holds that even though Ex.A.5 is a mortgage deed, yet the same cannot be rejected by the First Appellate Court and the said deed points out that the predecessors of the Appellant/Plaintiff has mortgaged the subject matter of the land as per the mortgage deed Ex.A.5 (notwithstanding the fact that the said mortgage is valid in law) and accordingly, the substantial questions of law 1 and 2 are so answered by this Court to and in favour of the Appellant/Plaintiff.
41. In the result, the Second Appeal is allowed, leaving the parties to bear their own costs. The Judgment and Decree passed by the First Appellate Court viz., the Sub-Judge, Periyakulam in A.S.No.52 of 2001 dated 21/7/2005 are set aside by this Court for the reasons assigned in this appeal. The relief of permanent injunction as prayed for by the Appellant/Plaintiff is granted by this Court.
mvs.
To
1. The Sub-Juge, Periyakulam
2. The District Munsif, Andipatti.