Madras High Court
K.Anboli vs Saraswathi on 9 July, 2014
Author: T.Raja
Bench: T.Raja
In the High Court of Judicature at Madras Date: 09.07.2014 Coram: The Honourable Mr.Justice T.RAJA Second Appeal No.317 of 2013 and M.P.No.1 of 2013 1. K.Anboli 2. Kalyani ... Appellants Versus 1. Saraswathi represented by her Power Agent N.Krishnamurthy @ Kesavan 2. Yasodha represented by her Power Agent N.Krishnamurthy @ Kesavan ... Respondents Second Appeal filed under Section 100 of Civil Procedure Code against the Judgment and Decree dated 16.10.2012 made in A.S.No.302 of 2012 on the file of the learned XV Additional Judge, Chennai, confirming the judgment and decree dated 25.11.2011 made in O.S.No. 6830 of 2007 on the file of the VIII Assistant City Civil Court, Chennai. For Appellants .. Mr.K.A.Ramachandran For Respondents .. Mr.B.Thanikachalam JUDGMENT
The present Second Appeal has been directed against the impugned Judgments and Decrees passed by both the Courts below.
2. The appellants/defendants have raised the following two substantial questions of law for consideration. They are:-
1.Whether the suit filed without permission of the competent authority under Section 29 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971, is maintainable in law ?
2.Whether the Civil Court has jurisdiction to decide the title of the property allotted by the Tamil Nadu Slum Clearance Board under Section 65 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 ?
3. The learned counsel for the appellants/defendants would submit that the respondents/plaintiffs have induced the Tamil Nadu Slum Clearance Board to include their names in the provisional allotment orders subject to several conditions including the payment of initial deposit and monthly instalment till the payment of the amount mentioned in the allotment order, when the appellants/defendants have occupied the vacant site of the suit properties from the year 1988. In view of their continuous occupation, they also constructed the present superstructure and they also obtained electricity and drainage connection from the competent authority in their names. When the matter stood as above, the respondents/plaintiffs claiming themselves as owners of the property, on the basis of wrongful allotment orders obtained from the Tamil Nadu Slum Clearance Board, viz., allotment order dated 25.03.1992 in favour of Saraswathi and another allotment order dated 25.03.1992 in favour of Yasodha, attempted to dispossess the appellants/defendants. They demanded arrears of rent from the appellants/defendants, failing which they held a threat against them to dispossess them. In view of that, the father of the First Appellant and husband of the Second Appellant, viz., J.Kandasamy, approached the Civil Court by filing O.S.No.458 of 2000 on the file of the learned XIV Assistant Judge, City Civil Court, Chennai, seeking a decree for permanent injunction against the respondents/plaintiffs from interfering with the peaceful possession, claiming that the appellants/defendants are the owners of the suit property. Even though in the beginning, the XIV Assistant Judge, City Civil Court, Chennai, granted an order of injunction, subsequently, dismissed the suit on 25.09.2006, specifically holding that there was no tenancy relationship between the plaintiffs and the first defendant. Taking the strength of the dismissal of the suit filed by the defendants in O.S.No.458 of 2000, the present suit was filed, without even asking for a decree for declaration of title, but for a direction to hand over the vacant possession of the suit 'A' and 'B' schedule properties along with further direction to pay the damages for occupation and use of the suit property. That apart, one another direction was also sought for to pay future damages of Rs.250/- per month till the possession of the suit properties are surrendered. Only when the written statement was filed raising the legal objection that the suit filed by the respondents/plaintiffs was not maintainable, since no declaratory relief was sought for, the respondents/plaintiffs again moved amendment application including the major prayer of declaration of title of first plaintiff in respect of 'A' schedule property, declaration of title of second plaintiff in respect of 'B' schedule property and consequential decree for permanent injunction restraining the appellants/defendants from putting up any construction or altering the physical features. Therefore, the suit filed by the respondents/plaintiffs is not legally maintainable, he pleaded.
4. Again explaining further, the learned counsel for the appellants/defendants stated that since the land in question is falling under the Slum Area, without obtaining permission from the competent authority under Section 29 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971, no proceedings for eviction of any occupant can be taken. Since the respondents/plaintiffs have filed the present suit seeking recovery of possession along with declaration of title, without seeking any order under Section 29 of the Tamil Nadu Slum Area (Improvement and Clearance) Act, 1971, the same is not maintainable. He pleaded that when a substantial plea was raised against the maintainability of the suit, the learned Trial Court, without properly considering the vital legal aspects, wrongly decreed the suit on the ground that the respondents/plaintiffs have filed necessary documents to prove that the suit properties were allotted to them by the Tamil Nadu Slum Clearance Board.
5. Continuing his arguments, the learned counsel for the appellants/defendants further submitted that the learned Trial Court has also committed one another error holding that the appellants/defendants, who claim to be in possession of the suit property, have not even taken any objection or made any complaint against the provisional allotment order dated 25.03.1992 in favour of Saraswathi in respect of 'A' schedule property and another provisional allotment order dated 25.03.1992 in favour of Yasodha in respect of 'B' schedule property. On the other hand, the appellants/defendants had made number of complaints to recall the allotment orders. One of the objection letters dated 08.12.2005 given by the appellants/defendants to the Tamil Nadu Slum Clearance Board was also marked as Ex.B12 requesting the cancellation of allotment in favour of both the respondents/plaintiffs. In response to the complaint given by the appellants/defendants, the officials from the Tamil Nadu Slum Clearance Board also enquired into the matter. Based on the application given by the second defendant, even after measuring the property, no allotment order has been given to the second appellant/second defendant. Ex.B13, a letter issued by the Tamil Nadu Slum Clearance Board shows that necessary action would be taken on the complaint given by the second appellant/second defendant. That apart, Ex.B14-the property tax provisional notice issued to the appellants/defendants demanding property tax for superstructure in the suit property on 31.08.2007, and Ex.P15- property tax demand card in the name of the second defendant's father, Ex.B16-receipt for payment of water charges to the Metro Water and Ex.B17-voter's list in favour of the first appellant/first defendant, marked by the appellants/defendants were completely ignored by the Trial Court while granting a decree for declaration of title and recovery of possession in respect of 'A' and 'B' schedule properties, pleaded by the counsel.
6. The learned counsel for the appellants/defendants would further submit that even after the Judgment and Decree passed by the learned Trial Court, when the appeal was filed the learned first Appellate Judge also without looking into the legal issues raised therein, simply confirmed the Judgment and Decree passed by the learned Trial Court, by assigning wrong reasons that the appellants/defendants till date have not taken any steps to question the allotment order dated 25.03.1992 made in favour of Saraswathi in respect of 'A' schedule property and another allotment order dated 28.03.1992 made in favour of Yasodha in respect of 'B' schedule property, hence, the said approach and the reasoning given are completely erroneous, as such, the same are liable to be interfered with, pleaded further.
7. In support of his contentions, the learned counsel for the appellants/defendants also heavily relied on the Judgment of this Court in the case of 'Parthasarathy and another ..vs.. Kuppammal' reported in 1980 (II) MLJ 83 for a proposition that if no permission is obtained from the competent authority under Section 29 of the Tamil Nadu Slum Area (Improvement and Clearance) Act, 1971, for evicting any person settled in the Slum Area, the eviction proceedings taken against the occupant cannot be sustained in view of the prohibition contained therein. Again to support his submission, he also placed reliance on one another unreported Judgment of this Court in S.A.No.1347 of 2008 dated 02.03.2011 in the case of 'Vijayalakshmi and another ..vs.. Pushparani and four others'.
8. Per contra, the learned counsel appearing for the respondents/plaintiffs urging the Court to dismiss the Second Appeal pleaded that the present Second Appeal has been directed against the concurrent findings of the facts reached by both Courts below and for maintaining the Second Appeal, the existence of substantial questions of law have to be framed and in the present case, no such substantial questions of law are framed or formulated. Therefore, under Section 100 CPC, the present Second Appeal is not legally maintainable, since the appellants/defendants have not complied with the precondition for maintaining the Second Appeal.
9. Secondly, it was argued by the learned counsel for the respondents/plaintiffs that the first appellant/first defendant admitted being an old tenant of the respondents/plaintiffs herein, although started paying monthly rent initially for few months, but sometime, refused to pay the rent. When the respondents/plaintiffs demanded the rent/arrears, the first appellant/first defendant without paying arrears filed vexatious suit in O.S.No.458 of 2000 on the file of the learned XIV Assistant Judge, City Civil Court, Chennai, for permanent injunction restraining the respondents/plaintiffs from interfering with the possession. In the said suit, the first defendant/first appellant herein had contended that he was the owner of the suit property. But the learned trial Court after looking into the important and vital documents, namely, orders of allotment of the land in question, viz., ''A'' and ''B'' schedule properties under proceedings dated 25.03.1992 issued by the Tamil Nadu Slum Clearance Board in favour of Saraswathi and Yasodha respectively, dismissed the Civil Suit in O.S.No.458 of 2000 on 25.09.2006 by giving clear cut finding in favour of the respondents/plaintiffs holding that the plaintiffs are the owners of the suit properties. But the defendants having received an adverse decree and judgment, till date have not challenged the same. Without challenging the dismissal of his suit, which they laid for bare injunction to restrain the respondents/plaintiffs from interfering with the possession, they cannot resist the prayer for recovery and declaration of title in favour of the respondents/plaintiffs.
10. Insofar as the second argument advanced by the learned counsel for the appellants/defendants in respect of Section 29 of the Tamil Nadu Slum Area (Improvement and Clearance) Act, 1971, it has been contended by the learned counsel for the respondents/plaintiffs that the permission under Section 29 of the Act, from the Tamil Nadu Slum Clearance Board is required to be obtained before initiating any eviction proceedings against the occupant, if the land in question belongs to the Tamil Nadu Slum Clearance Board. He further contended that in the present case, way back on 25.03.1992 and 28.03.1992 by two separate allotment orders in favour of Saraswathi and Yasodha, the Tamil Nadu Slum Clearance Board have settled the land in favour of the plaintiffs/respondents herein and therefore there is no need for the respondents/plaintiffs to obtain any permission from the Tamil Nadu Slum Clearance Board to evict the appellants/defendants from the land belonging to the respondents/plaintiffs. He also submitted that when the land in question has become the private land belonging to the respondents/plaintiffs, namely, Saraswathi and Yasodha, the above Section 29 of the Tamil Nadu Slum Area (Improvement and Clearance) Act, 1971, is not applicable to the private lands, since the said Section would be applicable only to the land belonging to the Tamil Nadu Slum Clearance Board and in view of the fact that the learned trial Court had also properly considered this question and had answered against the appellants/defendants making the issue clear that the above said Section 29 will not apply to the facts of the present case, since in the explanation of the said Section the word 'occupant' is defined as ''occupier not being an owner in occupation or otherwise using his land or building''; but in the present case, the appellants/defendants claim themselves as owners of the property; therefore, the appellants/ defendants cannot come under the definition of occupants as defined under Section 29 of the aforesaid Act. On this basis, he prayed for dismissal of the Second Appeal.
11. Heard both sides.
12. The properties in question were originally allotted in favour of first and second respondents/plaintiffs respectively under allotment orders dated 25.03.1992 and 28.03.1992 by the Tamil Nadu Slum Clearance Board. The first plaintiff was allotted 'A' schedule property situated in Plot No.184, Villiwakkam Village, New Door No.14-A, Bharathi Nagar II Street, Villiwakkam, Chennai-49, under the above said proceedings dated 25.03.1992. Similarly, the second plaintiff was allotted 'B' schedule property situated in Plot No.185, Villiwakkam Village, New Door No.14, Bharathi Nagar II Street, Villiwakkam, Chennai-49, under the separate allotment order dated 28.03.1992 issued by the Tamil Nadu Slum Clearance Board. Subsequently, by virtue of the above allotment orders, the respondents/plaintiffs have become owners of the suit properties. Therefore, they started paying the property tax till date. Subsequently, the respondents/plaintiffs let out Door No.14-A in Plot No.184 to the first defendant for residential purpose for monthly rent of Rs.250/- in the year 1998. After paying initial rent for few months, the same was stopped. Therefore, the respondents/plaintiffs demanded rental arrears, which resulted the first respondent/first defendant to file a Civil Suit in O.S.No.458 of 2000 on the file of the learned XIV Assistant Judge, City Civil Court, Chennai, seeking a decree for permanent injunction restraining the plaintiffs/respondents herein from interfering with the possession. But, the said suit was dismissed by the learned XIV Assistant Judge, City Civil Court, Chennai, on 25.09.2006 holding specifically that the plaintiffs/respondents herein are the owners of the suit properties. Admittedly, till date the appellants/defendants have no thought of challenging the same. In the Civil Suit filed by the defendants, they have not taken any steps as they contended before this Court to obtain any permission whatsoever under Section 29 of the Act. Even in the said suit, the appellants/defendants have not impleaded the Tamil Nadu Slum Clearance Board. That shows that the appellants/defendants have accepted the respondents/plaintiffs as the sole owners of the suit properties. While that being the case, it is not open to the appellants/defendants to take any support from Section 29 of the aforesaid Act to contend that before filing the present suit seeking decree for declaration of title and recovery of possession, the respondents/plaintiffs should have obtained an approval from the Tamil Nadu Slum Clearance Board for evicting the appellants/defendants. In fact, the learned trial Court while dealing with this matter had answered the issues against the appellants/defendants saying that the suit properties have become the absolute properties of the respondents/plaintiffs by virtue of two separate allotment orders dated 25.03.1992 in favour of Saraswathi in respect of 'A' schedule property and another allotment order dated 28.03.1992 in favour of Yasodha with regard to 'B' schedule property. The learned trial Court after considering Exs.A1, A2 and A3 properly reached a well reasoned conclusion that it is not open to the defendants/appellants herein to take any shield of support from Section 29 of the aforesaid Act as the suit property has no longer belonged to the Tamil Nadu Slum Clearance Board. Therefore, the judgments relied on by the learned counsel for the appellants/defendants have no application to the present case. Accordingly, this Court answering the first substantial question of law against the appellants/defendants, is of the considered view that the Civil Court has got jurisdiction to try this suit and accordingly, answering the issue against the Appellants, finds no merits in this Appeal.
13. Before parting with, it is pertinent to mention herein that the defendant after filing of the suit in O.S.No.458 of 2000 and obtaining an order of ex-parte decree in that suit, based on the ex-parte decree applied to the authorities seeking water connection and electricity connection to the suit property. After getting water connection and electricity connection, started putting up a hut in the suit property. More importantly, the defendants claiming to be the owners of the property once again tried to alienate the suit property. Under this background, learned trial court going into the allotment order in respect of 'A' and 'B' schedule property, allotted to plaintiffs 1 and 2 with a condition to pay a monthly instalment for 10 years, with a further condition that the sale deed would be issued only after the entire amount has been paid, rightly came to the conclusion that the plaintiffs 1 and 2 are the allottees of 'A' and 'B' schedule properties under the Slum Clearance Board. Again, learned trial court rightly considering another issue that there is no dispute between the plaintiff and the Slum Clearance Board, the presence of Slum Clearance Board as a party in the suit was rightly found as unnecessary. On this basis, it has further held that the suit is not bad for non-joinder of the Slum Clearance Board. Therefore, no infirmity is found in the conclusions reached by both courts below.
14. In view of the above, the Second Appeal is dismissed by confirming the concurrent findings of both the Courts below. Consequently, connected Miscellaneous Petition is closed. However, there is no order as to costs.
09.07.2014 Index :Yes/No Internet :Yes/No mra To
1.The XV Additional Judge, Chennai.
2.The Judge, VIII Assistant City Civil Court, Chennai.
T.RAJA, J.
mra Second Appeal No.317 of 2013 and M.P.No.1 of 2013 09.07.2014