Madras High Court
Mr.Sellaraj vs The Residents Of Uma Nagar on 18 August, 2011
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 18.8.2011
CORAM
The Hon'ble Mr.Justice R.S.Ramanathan
S.A.No.134 of 2011
Mr.Sellaraj ...Appellant
Vs.
1. The Residents of Uma Nagar,
and M.D.S.Nagar,
situated at Hasthampatti,
Salem City,
rep. by its Residents
Mr.M.Sundaresan
Mr.R.Ponnambalanathan
Mr.J.John Jayakar
Mr.S.P.Subramaniam.
2.The Salem City
Municipal Corporation,
rep. by its Commissioner,
having Office at Corporation
Campus, Salem ...Respondents
Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 5.11.2004, passed in A.S.No.28 of 2004, on the file of the Additional Subordinate Judge, Salem, in reversing the judgment and decree dated 26.3.2004, passed in O.S.No.891 of 2002 on the file of the Principal District Munsif, Salem.
For Appellant : Mr.V.Sekar
For Respondents 1 to 4 : Mr.M.Kamalanathan
For Respondent- 5 : Mr.A.Ashvathaman
JUDGMENT
The first defendant is the appellant herein. The first respondent/plaintiff filed the suit in a representative capacity seeking for the relief of injunction, restraining the appellant from occupying or taking over the suit property.
2. The case of the first respondent/plaintiff was that the suit property originally belonged to one Mr.S.K.Subramaniam, and he developed the entire extent by applying for layout and left the suit property and other properties as a common area for the benefit of other plot owners and also handed over the common area to the second respondent under a gift deed dated 25.7.1979. Therefore, the second respondent became the owner of the suit property and the first respondent are the residents of Uma Nagar and M.D.S.Nagar, which were formed by the owners of the plot, by purchasing the plots from Mr.S.K.Subramaniam, as per the layout and the appellant claimed right over the suit property and also attempted to trespass into the suit property for constructing a Workshop. The appellant has no right to construct the Workshop, as the suit property was earmarked for public purpose and hence, the suit was filed the relief stated above.
3. The appellant filed a written statement disputing the locus standi of the first respondent to file the suit and also denied the allegations made in the plaint and contended that the gift deed, alleged to have been executed by the original owner viz., Mr.S.K.Subramaniam, was revoked and after revocation only the said Mr.S.K.Subramaniam, sold the suit property to him. Therefore, the appellant has got every right to put up a Workshop in the suit property and he also obtained patta in his name for the suit property. The appellant also put up a thatched house and obtained door number and initially, approval was also granted by the second respondent for constructing the house by the appellant, but later, the second respondent cancelled the same. Feeling aggrieved, the appellant filed a suit in O.S.No.148 of 1998, before the Learned District Munsif, Salem, against the second respondent for the relief of injunction, restraining the second respondent from interfering with his peaceful possession and that suit was decreed and that has become final. Therefore, the first respondent/plaintiff have no right to question the right of the appellant.
4. The second respondent supported the case of the first respondent and stated that the Deputy Director of Town and Planning Department, granted approval to the layout in respect of the property owned by Mr.S.K.Subramaniam and the suit property and some other properties were earmarked for laying roads and for public purposes and they were handedover to the second respondent. Moreover, a settlement deed was also executed by the said Mr.S.K.Subramaniam, in favour of the second respondent on 25.7.1979 and on 12.8.1981, the Municipality, accepted the settlement deed by a Resolution No.2654 and the second respondent is maintaining the road and therefore, the gift deed is irrevocable and the property vested with the second respondent. Hence, the appellant cannot claim any title in respect of the suit property and therefore, no injunction can be granted against the true owner.
5. The Trial Court dismissed the suit holding that the first respondent/plaintiff did not prove title to the suit property and there was no proof for surrendering the suit property and other properties by the original owner to the second respondent and the appellant purchased the suit property under Exs.B14 and B15 and when the appellant asserted title to the suit property, the suit filed by the first respondent for the relief of injunction, without a prayer for declaration is also not maintainable.
6. The First Appellate Court reversed the findings of the Trial Court and allowed the appeal holding that the suit property was earmarked for public purpose by the original owner and that was also evidenced by Ex.A2, and the same was also accepted by the second respondent on 12.8.1981 and therefore, the property became the property of the second respondent and the appellant will not get any title under Exs.B14 and B15, as his Vendor had already conveyed that property under Ex.A2, to the second respondent. The First Appellate Court further held that once the property was earmarked for public purpose, the same cannot be conveyed by the owner to anybody. Hence, the appellant cannot be permitted to claim any right or title over the suit property. Hence, the Second Appeal.
7. Mr.V.Sekar, the learned counsel appearing for the appellant submitted that the First Appellate Court without properly appreciating the locus standi of the first respondent, erred in allowing the appeal. According to the learned counsel for the appellant, the dispute is between the appellant and the second respondent and the first respondent is an Association representing the residents of Uma Nagar and M.D.S.Nagar and they have no right over the suit property and the appellant had already filed a suit against the second respondent in O.S.No.148 of 1998, seeking injunction and that was decreed in favour of the appellant and no appeal was filed against the said decree. Therefore, the second defendant is bound by the decree passed in O.S.No.148 of 1998, and even assuming that the second respondent has got title over the suit property by virtue of Ex.A2, having regard to the decree passed in O.S.No.148 of 1998, the second respondent cannot interfere with the possession of the appellant. At any rate, the first respondent has no locus standi to question the right of the appellant in respect of the suit property .
8. Per contra, the learned counsel for the second respondent submitted that once the properties were earmarked for public purpose as per the approved layout, the original owner cannot deal with the same and in this case, the original owner had also surrendered possession of the area which was earmarked for public purpose, by executing the settlement deed-Ex.A2 in favour of the second respondent and that was also accepted in the year 1981, as evidenced by Ex.A3. Therefore, after the execution of the gift deed and surrender of property to the second respondent, the Vendor of the appellant did not have any right to convey the suit property to the appellant under Exs.B14 and B15 and hence, the sale deeds are not valid in law.
9. The learned counsel for the second respondent also relied upon the judgment reported in (2007) 4 C.T.C. 67 in the case of [T.Gnanamani Ammal Vs. The Avaniapppuram Town Panchayat] and also the judgments relied upon by the First Appellate Court viz., the judgments reported in (2004) 2 L.W. 112 in the case of [Ammani Vs. The Tiruchengode Municipality Thiruchengode Town, Namakkal District] and (2002) 3 L.W. 8180 in the case of [E.Elimalai and others Vs. Corporation of Madras and others] in support of his contention, wherein, it has been held that once the properties were earmarked for public purpose, the same cannot be sold by the owner by way of gift deed or sell the same to any parties, other than the purpose for which it was earmarked. The learned counsel for the second respondent further submitted that the second respondent being the owner of the property, there cannot be any injunction against the true owner by the appellant.
10. The learned counsel for the first respondent also submitted that for the beneficial enjoyment of the residents of Uma Nagar and M.D.S.Nagar, areas were earmarked for common purposes in the layout and therefore, they have got every right to question the use of that property by any other person and also relied upon the judgments cited by the First Appellate Court wherein it has been held that the property earmarked for common purpose, cannot be sold and the appellant will not get any title under Exs.B14 and B15, as his Vendor had already gifted those properties under Ex.A2, to the second respondent.
11. On the basis of the above submissions, the following substantial question of law arises for consideration:-
Whether the appellant can claim any right to the suit property under Exs.B14 and B15, after his Vendor surrendered possession of the suit property by executing the gift deed in favour of the second respondent under Ex.A2, and the same was earmarked for public purpose?
12. In this appeal, it is not in dispute that the property originally belonged to one Mr.S.K.Subramaniam, and he applied for layout and also earmarked certain areas for the purpose of laying roads and for public purpose and the suit property comes within the area which were reserved for the public purposes. Under Ex.A2, the areas which were earmarked for public purpose as per the approved layout was gifted by Mr.S.K.Subramaniam, in favour of the second respondent and that was also accepted by the second respondent under Ex.A3. Therefore, after executing the gift deed in favour of the second respondent, Mr.S.K.Subramaniam, viz., Vendor of the appellant did not have any right over the suit property. Nevertheless, the said Mr.S.K.Subramaniam, sold the suit property under Exs.B14 and B15, to the appellant in the year 1987 and 1988 and on that basis, the appellant claims to be in possession of the property. As the Vendor of the appellant had no title to the suit property and the title vested with the second respondent, the appellant cannot claim any title under Exs.B14 and B15.
13. However, it was contended by the learned counsel for the appellant that he filed the suit in O.S.No.148 of 1998, against the second respondent for injunction and that suit was decreed and same has become final. Therefore, the decree passed in O.S.No.148 of 1998, would also prove his possession and when the appellant is in possession of the property, the first respondent cannot maintain the suit for injunction.
14. I am unable to accept the contention of the learned counsel for the appellant. Admittedly, the suit properties are vacant site and it was meant for public purpose. As per the judgment reported in (2007) 4 C.T.C. 67 ( cited supra) and also the judgments cited by the First Appellate Court viz.,( 2004) 2 L.W. 112 ( cited supra) and (2002) 3 L.W. 8180 ( cited supra) once the property was earmarked for public purpose under approved layout and after executing the sale deed in favour of the second respondent by the original owner, the owner ceases to have any right over the property and the property cannot be dealt with by the owner or by any person, claiming under him.
15. In this case, as stated supra, the suit property was earmarked for public purpose and hence, the appellant did not get any title over the suit property. The first respondent are the residents of Uma Nagar and M.D.S.Nagar and the residents of that locality, who purchased the plots as per the approved layout, formed the above said two Nagars and the properties which were reserved for common purposes were reserved only for the benefit of the persons, who purchased the plots. Therefore, they have got every right to prevent any person from converting the common area for their individual purposes. Hence, the first respondent has got locus standi to file the suit.
16. Further, the appellant has no right over the suit property and he cannot claim any right under Exs.B14 and B15, as his Vendor did not have any right to convey the same to the appellant. When the appellant has no title and the property vests with the second respondent for the beneficial enjoyment of the first respondent, the appellant cannot be permitted to use the property for his own use. Therefore, considering all these aspects, the First Appellate Court rightly reversed the judgment of the Trial Court and allowed the appeal and decreed the suit. Hence, the substantial question of law is answered against the appellant.
17. In the result, the judgment and decree of the First Appellate Court is confirmed and the Second Appeal is dismissed. In the circumstances of the case, there shall be no order as to costs.
sd To
1.The Additional Subordinate Judge, Salem.
2. The Principal District Munsif, Salem