Madras High Court
Karupayee vs The District Collector
Author: P.T. Asha
Bench: P.T. Asha
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on:11.01.2019
Delivered on:24.01.2019
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.857 of 2018
and
C.M.P.Nos.23244 & 864 of 2018
Veeramuthu (Deceased)
1.Karupayee
2.Poomalar
3.Sundaraj ...Appellants
Vs
1.The District Collector,
Peravallur, Thiruvallur District
2.Selvamuthu ...Respondents
PRAYER: Second Appeal is filed under Section 100 of the Code
of Civil Procedure against the Judgment and Decree dated
30.03.2015 made in A.S.No.94 of 2008 on the file of the
Subordinate Judge at Peramballur, reversing the Judgment and
Decree dated 17.04.2004 made in O.S.No.673 of 1996 on the file
of the District Munsif Judge, Peramballur.
http://www.judis.nic.in
2
For Appellant : M/s. Mala
for M/s.T.Gnanabanu
For Respondent 1 : Mr.S.Jaganathan
Government Advocate
For Respondent 2 : Mr.S.Kamadevan
Caveator Counsel
JUDGMENT
The plaintiff is the appellant before this Court. The Second Appeal is filed challenging the Judgment and Decree of the Subordinate Court, Peramballur in A.S.No.94 of 2008 in and by which the learned Subordinate Judge, Peramballur had reversed the Judgment and Decree passed by the learned District Munsif, Peramballur in O.S.No.673 of 1996. The parties are shown in the same ranking as in the suit.
2.The suit property originally belonged to one Periyaan, the paternal uncle of the plaintiff, he had been granted settlement patta in respect of the same in the year 1927. The said Periyaan http://www.judis.nic.in 3 left India and went to Srilanka for eking out his living forty five years ago. When he left India he had put his mother in possession and enjoyment of the suit property.
3.Twenty years prior to the filing of the suit the mother of Periyaan died. Periyaan died 10 years prior to the filing of the suit and the plaintiff had returned to the Nilgris immediately. After returning to India he had been moving all around the Nilgris in search of work and just two years prior to the filing of the suit he had gone to the suit property where he found the defendant to be in possession of the suit property. He had requested the defendant to leave the suit property but, however, the defendant refused stating that the suit properties are Government lands for which he has been paying Penalty in the form of B Memo charges. Thereafter on making enquiry the plaintiff came to know that the suit property was reclassified in the revenue records as Government Waste land.
http://www.judis.nic.in 4
4.He had given a notice to the 1st defendant to transfer the lands back to him and to recover possession from the 2nd defendant. Since, there was no movement on the side of the 1 st defendant, the plaintiff has come forward with the above suit.
5.The 1st defendant had filed a written statement inter alia contending that it is the 2nd defendant who is in possession of the suit schedule properties and that the settlement given to the said Periyaan had been cancelled in the year 1937 itself when Periyaan was in India and they had also stated that since the Land Tax arrears were not paid the property was brought to auction and the Government had taken over the lands. The 1st defendant had also submitted that the if plaintiff were to make a fresh application then they would consider it in the manner known to law.
6.The 2nd defendant had resisted the above suit by inter alia http://www.judis.nic.in 5 contending that the property belonged to his father and after the demise of his father both he and his brother Angamuthu have been in joint possession and enjoyment of the suit properties.
7.The Trial Court after examination of the oral and documentary evidence, came to the conclusion that the plaintiff was entitled to the decree since no notice had been issued to the original owner when the lands were reclassified.
8.Challenging the said Judgment and Decree the 2nd defendant had filed an appeal. The 1st defendant had not chosen to challenge the Judgment and Decree passed in O.S.No.673 of 1996.
9.The Appellate Court on consideration of the evidence came to the conclusion that the cancellation had taken place as early as in the year 1937 when Periyaan was in India and he had not chosen to challenge the same and after several decades the http://www.judis.nic.in 6 plaintiff has now come forward to question the cancellation. The learned Subordinate Judge, Peramballur, therefore allowed the appeal by holding that the suit is powered by limitation.
10.Challenging the said Judgment and Decree the plaintiff is before this Court. The matter had not been admitted and only notice had been ordered since the Caveator was also present the appeal was heard on merits. From the averments contained in the plaint it is evident that the settlement patta had been granted to the said Periyaan in the year 1927.
11.It is further seen that the said Periyaan had committed default in the payment of the land taxes and therefore by an order in the year 1937 the property was brought to the auction by the Government and reclassified as Government waste land. It is also deduced from the evidence and pleading of the plaintiff that Periyaan had left for Srilanka in the year 1956 and he has not chosen to set aside the order. Even the plaintiff who, as per http://www.judis.nic.in 7 his own pleading had contended that he had returned to India ten years prior to the filing of the suit and he had not taken any steps to get the property classified back to him. Therefore the suit which is filed is clearly barred by limitation and the Lower Court has rightly drawn a conclusion that the suit is hopelessly barred by limitation.
12.The plaintiff who has come forward with the suit has not sought to set aside the reclassification because he is very much aware that if he seeks for setting aside the order of the year 1937 reclassifying the lands the suit will be thrown out at the threshold therefore, by astute drafting the plaintiff seeks for declaration of his title to the property which as on date is Government land.
13.I find no question of law for consideration in the above Second Appeal. Admittedly the possession is with the 2nd defendant since 1977 going by Ex.B.5. Therefore the plaintiff is http://www.judis.nic.in 8 not entitled to the relief claimed for by him in the suit.
In the result, the Second Appeal is dismissed. The Judgment and Decree in A.S.No.94 of 2008 passed by the Subordinate Judge, Peramballur, stands confirmed. There shall be no order as to costs. Consequently, connected Civil Miscellaneous Petitions are closed.
24.01.2019
kan
Index : Yes/No
Speaking order/non-speaking order
To,
1.The Subordinate Judge,
Peramballur.
2.The District Munsif Judge,
Peramballur.
http://www.judis.nic.in
9
P.T.ASHA, J.,
kan
Pre-Delivery order in
S.A.No.857 of 2018 and
C.M.P.Nos.23244 & 864 of 2018
24.01.2019
http://www.judis.nic.in