Madras High Court
The Executive Engineer vs K.S.D.Rajendran on 28 January, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28/01/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.855 of 1997 and Cross Objection No.35 of 1999 A.S.No.855 of 1997 1.The Executive Engineer, Public Works Department Buildings, Special Division, Paramakudi. 2.The Executive Engineer, Public Works Department, Paramakudi. 3.The Superintending Engineer, Public Works Department, Virudhunagar. 4.The District Collector, Ramanathapuram. ... Appellants/Defendants Vs K.S.D.Rajendran ... Respondent/Plaintiff Prayer Appeal filed under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 21.12.1993 in O.S.No.27 of 1992 on the file of the Subordinate Judge, Ramanathapuram. !For Appellants ... Mr.Rajarajan Govt. Advocate ^For Respondent ... Mr.P.S.Ramesh for M/s.P.Subramanian Cross Objection No.35 of 1999 #K.S.D.Rajendran ... Cross Objector Vs. $1.The Executive Engineer, Public Works Department Buildings, Special Division, Paramakudi. 2.The Executive Engineer, Public Works Department, Paramakudi. 3.The Superintending Engineer, Public Works Department, Virudhunagar. 4.The District Collector, Ramanathapuram. ... Respondents Prayer Cross Objection filed under Order 41 Rule 22 of the Code of Civil Procedure, against the judgment and decree dated 21.12.1993 in O.S.No.27 of 1992 on the file of the Subordinate Judge, Ramanathapuram. !For Cross Objector ... Mr.P.S.Ramesh for M/s.P.Subramanian ^For Respondent ... Mr.Rajarajan Govt. Advocate :JUDGMENT
This appeal is focussed as against the judgment and decree dated 21.12.1993 in O.S.No.27 of 1992 on the file of the Subordinate Judge, Ramanathapuram.
2. The parties, for convenience sake, are referred to hereunder according to their litigative status before the trial Court.
3. The quintessence of the case of the plaintiff as stood exposited from the records could be portrayed thus:
The suit property described in the schedule of the plaint situated in Kattuparamakudy, formerly an under tenure estate of Kattuparamakudy. Originally, Velusamy Thevar was the owner who by virtue of his will dated 08.09.1924 bequeathed the village of Kattuparamakudi and other properties in favour of the plaintiff's mother R.Muthathal Nachiar, who in turn by virtue of will dated 25.06.1959 bequeathed her property in favour of the plaintiff. The suit property is a vacant land and the plaintiff has been enjoying it by himself and through his predecessor for over the statutory period and thereby acquired title by prescription and adverse possession as against the defendants and others. The plaintiff has been enjoying the lands by leasing it out to others and also by using it for storing materials and parking transport vehicles. Recently the said suit property was came to be registered in the Government records as Government vacant land. Thereupon the second defendant herein, the Executive Engineer, P.W.2 had put up a building in a portion of the suit property for hospital purpose. The defendants being the Government officials are trying to dispossess the plaintiff from the suit property. Hence, the suit.
4. Challenging and impugning, denying and refuting the allegations/averments, the second defendant filed the written statement; the gist and kernel of which would run thus:
The suit property came to be vested with the Government as per the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948, with effect from 03.01.1951. Survery and settlement was effected in Fasli 1368. The classification of land in G.R.No.113/316, 133/980 and 113/981 is as mentioned below:
T.S.No. G.R.No. Extent 151 113/316 Poramboke 0.04 Govt. vacant site 113/980
-do-
0.38 Govt.Hospital 113/981
-do-
0.08 Govt. vacant site The Government Hospital building was constructed in the suit property and as such the allegations to the contrary in the plaint, are all false. Had the plaintiff been aggrieved by classification made by the Government and the entries made in the Revenue records, he could have preferred appeal to the appellate authority within the prescribed time limit as per law. The plaintiff was not made any claim for Ryotwari patta. The plaintiff is having no right over the suit property and he had no pre-existing title over it. The suit property absolutely belongs to the Government of Tamil Nadu, which has got the right to put that land into any use. Accordingly, he prayed for the dismissal of the suit.
5. The trial Court framed the relevant issues.
6. During trial, P.W.1 to P.W.4 were examined and Exs.A.1 to A.17 were marked on the side of the plaintiff and D.W.1 to D.W.4 were examined and Exs.B.1 to B.5 were marked on the side of the defendants.
7. Ultimately, the trial Court decreed partly the suit only to an extent of 36 cents out of the total extent of 46 cents of the suit property, so to say excluding from the suit property, 10 cents of land which is covered by the Government Hospital building.
8. Challenging the judgment and decree of the trial Court, this appeal has been filed on the following grounds inter alia thus:
The judgment and decree of the trial Court is against the law and weight of evidence. The suit property was never under the enjoyment of the plaintiff. The plaintiff did not produce any document to prove his alleged possession or that of the alleged possession of his predecessors, prior to 03.01.1951. The land was taken over by the Government as per G.O.Ms.No.3151 (Revenue Department) dated 09.12.1950. Within three months, the plaintiff did not approach the Settlement Officer under Section 10(1) of the Estate Abolition and Conversion into Ryotwari Act, 1948. Section 3 of the Act, is having the effect of vesting the suit property in favour of the Government and accordingly, it got vested. The defendants, therefore prayed for setting aside the judgment and decree of the trial Court and for dismissing the original suit.
9. The plaintiff filed Cross Objection claiming that 10 cents of land also which is covered by the Government Hospital building, on the ground that the Government had not exercised its right over it on the commencement of the said Special Enactment; only belatedly the said 10 cents of land was came to be occupied by the Government by putting up a building thereon. Accordingly, he prayed for decreeing the suit in toto including the said 10 cents of land covered by the Government Hospital building.
10. The points for consideration are:
(i) Whether the plaintiff acquired title to the suit property inspite of the provisions of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 and G.O.Ms.No.3151 (Revenue Department) dated 09.12.1950, by enjoying the suit property continuously for a period of more than the statutory period (12 years) in their own right and that too, in continuation of the plaintiff's prior possession as owner?
(ii) Whether there is any infirmity in the judgment and decree of the trial Court?
11. Heard both sides.
12. The learned Government Pleader placing reliance on the grounds of appeal, would contend that the provisions of the said Act 26 of 1948, had the effect of vesting the suit property in favour of the Government absolutely; if at all, the plaintiff had any grievance, he ought to have petitioned the appellate authority including the hierarchy of authorities as contemplated under the said Special enactment and that the plaintiff failed to pursue his application as contemplated under Ex.A.10.
13. Per contra, by way of torpedoing the arguments advanced on the side of the defendants, the learned Counsel for the plaintiff would argue that the special enactment did not in any way prevent the plaintiff from approaching the civil Court to assert his title over the suit land.
14. At this juncture, I would like to refer to the decision of this Court in Srinivasan and 6 others v. Sri Madhyarjuneswaraswami, Pattavaithalai, Thiruchirappalli District by its Executive Officer at Pattavaithalai Devasthanam and 5 others reported in 1998 (II) M.L.J Page 722. An excerpt from it, would run thus:
"15. Further, the mere fact that the orders passed or decisions rendered under these Acts were given finality for the purposes of those Acts or that the issues, which they are oblilged or required to be decided, when so decided are ordained to bind the parties to the proceedings or their privies and successors- in-interest applying the principles of resjudicata does not have the effect of outing the jurisdiction of the Civil Court once and for all. It is by now well settled that even in cases where finality is accorded to any decision or order, there are certain well settled exceptions and proved the existence of such exceptional factors, the Civil Court is entitled to nullify any or all such decisions. Similarly, even in cases where the principles of res judicata are rendered applicbale, the jurisdiction of the competent Civil Court to go into the question and find out whether the necessary ingredients to apply the principles of res judicata exist in a given case or not cannot be denied to the Civil Court and from the mere fact of according finality to the orders or decisions rendered under the Act or the application of the principles of res judicata a total or complete bar or ouster of the jurisdiction of the Civil Courts for all and any purpose cannot be automatically inferred or implied. Before a plea of res judicata can be given effect to, it must be sufficiently pleaded and established that the litigating parties must be the same, that the subject matter of the suit and the other proceedings also are identical, that the questions arising in the suit and the other proceedings were directly and substantially in issue and the same ws finally decided and that too by an authority or court of competent jurisdiction.
16. On coming to know of the existence of an unreported decision of the Apex Court rendered by a Bench consisting of three of their Lordships, efforts were made to secure the same when the judgments in this case was under preparation and it was ascertained that in Civil Appeal No.5141 of 1993 Sri-La-Sri Sivapradkasa Pandara Sannadme Avargal v. Smt.T.Parvathi Ammal and others, (1998)2 L.W. 188, their Lordships of the Apex Court by a judgment dated 20.2.1996, not only approved the earlier decision of the Apex Court reported in R.Manicka Naicker v. Elumalai Naicker, (1995) 4 S.C.C. 156 and set their seal of approval to the principles laid down therein, but had categorically held in unmistakable terms that the decision in (Vatticharularu Village Panchayat v. Nori Venkatarama Deekchithulu, 1991 (2) S.C.C (Supp.) 228) has no application to the provisions or in respect of claims arising under the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963. Their Lordships of the Apex Court in coming to such a conclusion, held as follows:
"The only question for decision relates to the jurisdiction of the Civil Court to entertain the suit which was filed by the respondent. The trial Court decreed the suit. The First appellate Court set aside the decree taking the view that the civil Court's jurisdiction was barred. In the second appeal filed by the present respondents, the High Court has restored the judgment and decree of the trial Court taking the view that the civil Court's jurisdiction was not barred.
The plea of exclusion of the Civil Court's jurisdiction to adjudicate the title of the parties in the present case is based on the provisions of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963. This Court in a recent decision in R.Manicka Naicker v. Elumalai Naicker, (1995) 4 S.C.C. 156:(1995) 1 L.W 731, has clearly held that the Civil Court's jurisdiction to adjudicate title of the parties, is not barred by virtue of the provisions of the said Act. This is a direct decision of this Court on the provisions of the Act with which we are concerned in the present case. Learned Counsel for the appellant placed reliance on the decision in Vatticharularu Village Panchayat v. Nori Venkatarama Deekchithulu, 1991 (2) S.C.C (Supp.) 228. It is sufficient to observe that this decision relates to the provisions under a different Act of Andhra Pradesh. Moreover, in R.Manicka Naicker, this decision relating to the provisions in the Andhra Pradesh Act was considered and distinguished. In view of the direct decision of this Court in R.Manicka Naicker, there is no merit in this appeal. The appeal and the Contempt Petition are dismissed."
17. In view of the above unreported decision of the Supreme Court, the decision in S.Vanathan Muthuraja v. Ramalingam, (1997) 6 S.C.C. 143 : (1997) 3 L.W. 231 rendered without even referring to the earlier reported decision of the very same Court in R.Manicka Naicker v. Elumalai Naicker, (1995) 4 S.C.C. 156:(1995) 1 L.W 731 and the unreported decision of even a larger Bench directly arising under the Tamil Nadu Act 30 of 1963, cannot be said to lay down or declare the correct position of law or constitute a binding precedent.
18. For all the reasons stated above, we answer the question referred to the Full Bench in the negative by holding that the jurisdiction of the civil Court to entertain a suit for declaration of title and injunction is not barred by reason of the grant of patta under the provisions of Tamil Nadu Act 30 of 1963.
19. We direct the respective appeals to be posted before the learned single Judge concerned for the disposal of the appeals on merits in the light of the answer given on the reference made to the Full Bench. The cost in the appeals shall abide by the result of the appeals on merits."
15. The perusal of the entire judgment including the aforesaid excerpt, would unambiguously highlight and spotlight the fact that the plaintiff has got the right to approach the civil Court to assert his title over the suit property.
16. At this juncture, I would like to refer to the G.O.Ms.No.1300 Revenue Department, dated 30.04.1971. It is therefore clear that the plaintiff has got the right to file the suit irrespective of the fact whether he pursued further his application, Ex.A.10 before the appropriate authority or not?.
17. It has to be seen whether the plaintiff before the commencement of the said Special enactment, was in possession and enjoyment in his own capacity and whether he continued to possess even after the commencement of the special enactment in his own right without any interference from the Government.
18. D.W.3, Town Surveyor, examined on the side of the defendants without mincing words, would candidly and categorically depose to the effect that only by the year 1978, the suit property was came to be recorded in the relevant register as Government vacant land. It is obvious that earlier to 1978 the Government had not exercised any right over it.
19. The trial Court even commented upon the fact that in order to buttress and fortify the deposition of D.W.3, the original records were not produced.
20. Be that as it may, even assuming that in the Government records, the suit property was came to be recorded as Government vacant land, yet there are various other points which are against the Government.
21. After passing of G.O.Ms.No.3151 (Revenue Department) dated 09.12.1950, no steps had been taken by the Government till 1978 so as to take possession of the suit property and deal with it.
22. It is common knowledge that in respect of the lands over which the Government had exercised in reality the right of ownership, it had taken possession and allotted those lands to the landless poor people etc., or put those lands into its own use i.e, for Government Departmental purposes. But, in this case, no steps had been taken. The Government also admittedly had not put that land for Government use till 1978 or even subsequently. In the year 1978, as deposed to by D.W.3, in the Government records, it was come to be recorded as Government lands.
23. P.W.1, the engineer concerned stated that in the year 1992, the Government Hospital building was started to be constructed and thereupon only, the plaintiff filed this suit.
24. It is therefore clear that till the year 1992, the plaintiff was allowed to enjoy the property as he was enjoying it even anterior to 1951 on the strength of his antecedent title deeds namely Ex.A.1, dated 08.09.1924 and Ex.A.4 dated 25.06.1959.
25. D.W.4, the Deputy Tahsildhar would depose with reference to Exs.B.4 and B.5 which are the extract of A register and extract of Adangal relating to the suit property and those documents emerged only shortly before the filing of the suit.
26. As such, on the Government side, there is nothing to show that in pursuance of the said G.O.Ms.No.3151 (Revenue Department) dated 09.12.1950, the Government took possession of the land and exercised its control except to the extent of 10 cents of land, wherein the Government started putting construction during the year 1992.
27. The plaintiff positively established his possession over the suit property even anterior to the said special enactment and subsequently also over the statutory period.
28. Ex.A.1, is the copy of the will dated 08.09.1924, executed by Veluchamy Thevar in favour of the plaintiff's mother and subsequently, Ex.A.4 dated 25.06.1959, the will executed by Muthathal Natchiar emerged; under that her son, the plaintiff herein and her husband were given with rights. In both the wills, the entire village was contemplated as their absolute property.
29. In fact, Ex.A.4, dated 25.06.1959, so to say, which emerges long after 1951, demonstrates that the plaintiff's mother exercised her right over the suit property and bequeathed it in favour of her son, the plaintiff. In those wills, the properties were described as their absolute properties.
30. G.O.Ms.No.1300 Revenue Department, dated 30.04.1971 as already referred to supra, would enure to the benefit of the plaintiff in view of his continuous possession and enjoyment as owner, despite the commencement of the said Special Act. He enjoyed the land from the year 1951 till the year 1978 so to say, for about 27 years in continuity of his earlier possession by himself and through his predecessor in title without any interference by the Government and in such a case, he is entitled for declaration as prayed for.
31. The plaintiff relied on Ex.A.2, the certified copy of the judgment dated 24.08.1982, passed by the Sub Judge, Ramanathapuram at Madurai; in the said judgment, the plaintiff herein claimed right over certain properties in the same village as against the Municipality. The said trial Court referred to Exs.A.1 and A.4 the wills and held that by applying the principle of 'possession follows title', decreed the suit.
32. The appeal filed by the defendant therein, before the District Judge, Ramanathapuram at Madurai, was dismissed. The plaintiff relied on Ex.A.7, the certified copy of the judgment dated 22.06.1987, in O.S.NO.40 of 1986, on the file of the Sub Judge, Ramanathapuram, which would evidence that the plaintiff herein filed the suit as against eight defendants who attempted to trespass into those properties and the suit was decreed declaring the plaintiff as the owner of the suit property herein and thereby, restraining the defendants from interfering with it. As such, it is clear that even in the year 1986, the plaintiff exercised his right over the suit property. The trial Court also referred to Exs.A.11, A.12, A.13 and A.14, the lease deeds, to show that the plaintiff exercised his right over the suit property. As such, the trial Court after discussing all the factual aspects involved in this case, legally by applying the appropriate provision of law, arrived at the conclusion which requires no interference. Accordingly, there is no merit in this appeal and the same is liable to be dismissed.
33. In the result, the appeal is dismissed, confirming the judgment and decree dated 21.12.1993 in O.S.No.27 of 1992 on the file of the Subordinate Judge, Ramanathapuram. However, in the facts and circumstances of the case, there shall be no order as to costs.
34. For the very same reason, the cross objection has also to be dismissed as during the year 1992, the Government occupied 10 cents of land for constructing Hospital which is obviously for the public purpose and the plaintiff had not kept that. 10 cents of land enclosed along with the rest of his 36 cents of land and in such a case, it cannot be stated that the Government is having no right to raise construction in that 10 cents of land. From the evidence of D.W.2, it is clear that there was one hospital adjacent to the newly constructed hospital and the said 10 cents of land was being used by the Hospital authorities and in such a case, the plaintiff cannot be held to have been under the occupation of it and he cannot be permitted to lay claim over that cents of land. Accordingly, Cross Objection No.35 of 1999 is dismissed.
rsb To The Subordinate Judge, Ramanathapuram at Madurai.