Madras High Court
Chinna Nachiappan vs Pl.Lakshmanan on 19 December, 2006
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 19/12/2006 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.343 of 1996 1. Chinna Nachiappan 2. Andiappan ... Appellants / Defendants Vs PL.Lakshmanan ... Respondent / Plaintiff Prayer Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 28.09.1995 in A.S.No.56 of 1994 on the file of the Subordinate Judge, Devakottai, reversing the judgment and decree dated 11.07.1994 in O.S.No.461 of 1990 on the file of the District Munsif, Devakottai. !For Appellants ... Mr.A.L.Gandhimathi ^For Respondent ... No appearance :JUDGMENT
This appeal is directed as against the judgment and decree dated 28.09.1995 in A.S.No.56 of 1994 on the file of the Subordinate Judge, Devakottai, reversing the judgment and decree dated 11.07.1994 in O.S.No.461 of 1990 on the file of the District Munsif, Devakottai.
2.The parties are referred to hereunder as they were arrayed before the trial Court.
3. Shorn and niggard of details, a re'sume' of facts absolutely necessary for the disposal of this second appeal could be portrayed thus:
The plaintiff filed the suit as against the defendants for permanent injunction so as to restrain the defendants from trespassing into the suit property based on the averments inter alia to the effect that on 17.09.1990, the first defendant without any right attempted to trespass into the suit properties; the second defendant subsequently got himself impleaded in the suit even though he had no right over the suit properties; the suit property which forms part of S.No.56 measuring 12 hectares 95 ares belonged to the plaintiff and his Pangalis originally.
4. One Natchiappan had only one son namely, Chinnakaruppan, who had five sons namely, Natchiappan, Veerappan, Palaniappan (plaintiff's father), Chockalingam and Subbiah. Natchiappan, S/o.Chinnakaruppan had no son, so he treated the plaintiff as his 'Abimana Puthiran' and through a family arrangement, he adopted the plaintiff as his son and as such, the plaintiff had been in possession of the properties of Nachiappan The second son Veerappan had two sons, namely Ramasamy and Nachiappan. The third son Palaniappan is the plaintiff's father. The fourth son Chockalingam had two sons, Nachiappan and Subbiah. The fifth son Subbiah had a son Chinnakaruppan who also died leaving two sons Mahadevan and Nachiappan.
5. During Survey and Settlement, a joint patta No.22 was issued in the name of Nachan, Saminathan, Nachiappan (plaintiff's great grandfather) and one Peri.Nachiappan and all those persons died long ago well before the village Managiri Sokkanendal, was taken over by the Government under the Estates Abolition Act. Other than the plaintiff's grandfather, others had no right in the property. Except the plaintiff and his ancestors, other had no right in S.No.56. There was a registered partition deed dated 22.02.1985 relating to those properties and in that partition, the suit property was allotted to the plaintiff. Based on that partition, the Deputy Tahsildar, Karaikudi passed orders on 27.10.1986 sub-dividing S.No.56 into five portions. The suit property belonged to the plaintiff, was assigned S.No.56/2 measuring Hec.5 18.0 ares. Subsequently, the first defendant and others applied to UDR Tahsildar as though they have right over S.No.56 by making misrepresentations about some civil suits pending.
6. However, the Tahsildar rejected their contentions by his order dated 01.08.1987. There was an appeal to the Revenue Divisional Officer. The Revenue Divisional Officer by his order dated 22.11.1987 set aside the order dated 27.10.1986. Thereupon, the plaintiff and his Pangalis filed an appeal to District Revenue Officer who confirmed the order of the Revenue Divisional Officer as per his order dated 16.11.1988. W.P.No.5084 of 1989 was filed before the High Court and the High Court by its order confirmed the order of the District Revenue Officer. However, liberty was given to file a fresh application for sub division by competent authority. The Tahsildar based on the fresh appliation filed by the plaintiff and his Pangalis, passed orders on 31.05.1990, directing to register the S.No.56 jointly in the name of So.Nachiappan, So.Subbiah, PL.Lakshmanan(plaintiff), Chi.Mahadevan, Ohi.Nachiappan and VR.Nachiappan. Despite the joint patta issued as aforesaid, the plaintiff and his pangalis were enjoying the properties as per their partition deed. The plaintiff acquired prescriptive title over the suit property and the first defendant and his ancestor had no right at all. Hence, the suit.
7. Per contra, the first defendant filed the written statement challenging the claim of the plaintiff in the wake of the illegal order passed by the revenue authority. The first defendant also would contend that the plaintiff had no right to seek for injunction.
8. The trial Court framed the relevant issues.
9. During trial, on the side of the plaintiff, P.W.1 was examined and Exs.A.1 to A.17 were marked and the defendants 1 and 2 examined themselves as D.W.1 and D.W.2 and no documentary evidence was let in.
10. The trial Court ultimately dismissed the suit.
11. Being aggrieved by the judgment and decree of the trial Court, the plaintiff preferred the appeal before the first appellate Court which reversed the judgment and decree of the trial Court and decreed the original suit.
12. As against which the defendants preferred this second appeal on the following grounds among others:
(i) The original suit was bad, in the absence of a prayer for declaration of title and the suit for bare injunction would not lie in view of the title dispute highlighted in the plaint itself. The first appellate Court failed to appreciate the evidence on record.
(ii) Ex.A.17 which is the order passed by the Tahsildar is having the effect of nullifying the settlement patta Ex.A.11, granted in favour of the ancestors of the plaintiff and the defendants jointly, was not tenable and the first appellate Court failed to take note of it. The plaintiff was entitled to only 1/4 share in the suit property and in such a case, bare injunction suit was not tenable.
13. This second appeal was admitted to decide the following substantial questions of law:
"Whether the lower appellate Court was correct in reversing the judgment and decree of the trial Court on the basis of Ex.A.17, which is an order passed by the Tahsildar, nullifying the effect of the settlement patta granted in favour of the ancestors of the plaintiff and the defendants jointly under which the plaintiff is entitled to only 1/4 th of the suit property, and on it's score the suit filed for bare injunction without declaration of title in respect of the entire property comprised in Ex.A.11, would lie?"
The Point:
14. Not to put too fine a point on it, right at the outset, I may proceed to refer to the averments in the plaint at paragraph Nos.4, 5, 6, 7 and 8 which unambiguously and unequivocally referred to a serious title disputes between the plaintiff and the defendants. Paragraph No.8 is extracted hereunder for ready reference:
"Though joint patta had been issued the plaintiff and his pangalis have been and are in possession as per the partition among themselves. Thus the suit property continues to be in the possession and enjoyment of the plaintiff."
15. The above extract from the plaint itself, is sufficient to non-suit the plaintiff in view of having not prayed for declaration of title. It is trait proposition of law that if the plaint itself contains the averments relating to title disputes between the plaintiff and the defendants, the former cannot simply pray for protecting his alleged possession by filing a suit for injunction. He should necessarily pray for declaration of his title. In this connection, Order 2 Rule 2 of Code of Civil Procedure, could fruitfully be referred to and it is extracted hereunder for ready reference:
"2. Suit to include the whole claim.- Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court."
16. Hence, in this view of the matter, the substantial question of law could rightly be decided to the effect that the original suit is bad for absence of a prayer for declaration of title. However, by way of comprehensively deciding the substantial questions of law with reference to the document on record, I may proceed to refer to Ex.A.11 and A.17. Ex.A.17 is the certified copy of the order dated 31.05.1990 passed by the Tahsildar of Karaikudi, relating to the suit property and the last portion of the order is extracted hereunder for ready reference:
"Vw;fdnt kDjhuh;fs; bgahpy; o.gp.o.84/86-87> 85/86-87> Mfpaitfspd; go cl;gphpt[ khw;wk; bra;jij vjph; kDjhuh;fs; Ml;nrgpj;jjpd; nghpy; nfhl;lhl;rpah; kw;Wk; khtl;l tUtha; mjpfhhp mth;fs; cj;jut[fspy; kDjhuh;fSf;F chpik ,y;iy vd vJt[k; bjhptpf;fg;gltpy;iy. Jiz tl;lhl;;rpah; ifbahg;gkpl;L gl;lh khw;wk; bra;ag;gl;lJ jtW vd kl;Lk; bjhptpf;fg;gl;Ls;sJ.
,ij Ml;nrgpj;J kDjhuh;fs; cah; ePjpkd;wj;jpy; bjhLf;fg;gl;l tHf;fpy; cl;gphpt[g; gl;lh khw;wk;> bghUg;g[s;s mjpfhhpf;F kDr; bra;J bgw;Wf; bfhs;s W.P.No.5084/89 d; go cj;jut[ gpwg;gpf;fg;gl;Ls;sJ. mjd; mog;gilapy; mYtyfj;jpy; tprhuizfs; nkw;bfhs;sg;gl;lJ."
17. It is therefore clear that with reference to the suit property, the Tahsildar concerned passed orders and that too after the order passed in the writ proceedings in W.P.No.5084 of 1989.
18. Ex.A.11 is the extract of the settlement register relating to S.No.56 and the entries found in Ex.A.11 were the outcome of the settlement survey made. According to the defendants, joint patta was given in the name of various persons including the defendants; for the purpose of defeating the interest of the defendants, the plaintiff relied on false document of partition deed dated 22.02.1985, which was relied on by the Tahsildar in his order as contained in Ex.A.17. The trial Court also referred to Ex.A.16, the order passed by this Court in W.P.No.5084 of 1989 dated 11.04.1989 and the said order is extracted hereunder for ready reference:
"The petitioners filed an application for sub-division and that was ordered. Against that order certain aggrieved persons preferred an appeal before the Revenue Divisional Officer and by orders dated 22.11.1987, the Revenue Divisional Officer held that the Headquarters Deputy Tahsildar has no jurisdiction to pass orders regarding sub-division. This order of the Revenue Divisional Officer has been confirmed by the District Revenue Officer. Hence, there is no error of jurisdiction in the orders passed by the Revenue Divisional Officer and the District Revenue Officer. Hence, this writ petition is dismissed.
However, liberty is given to the petitioners to file a fresh application for sub-division before the competent authority and on such application being filed, the competent authority would pass orders within a period of six weeks from the date of receipt of such application."
19. It is clear from the said order that the High Court itself held that Headquarters Deputy Tahsildar passed previous orders impugned in that writ petition and that such official had no jurisdiction to pass orders. Even after the order in the writ proceedings, further liberty was given to the persons concerned to file a fresh application before the competent authority. The following persons namely, So.Nachiappan, So.Subbiah, C.Mahadevan, C.Nachiappan and Veera.Nachiappan, including the plaintiff, PL.Lakshmanan filed fresh application.
20. The Tahsildar of Karaikudi, interpreted the High Court's order to the effect that only the Deputy Tahsildar had no right to effect changes in the settlement patta, so holding the Tahsildar passed orders in favour of those petitioners including the plaintiff, Wherein the defendants' names are not found. The basic contention of the appellant is that the civil Court alone has got jurisdiction to declare the title and such sort of patta would not affect the rights of the parties. There is force in the contention of the learned Counsel for the appellant and in the absence of any prayer for declaration of title, both the Courts below were wrong in deciding as against the defendants.
21. In the result, the second appeal is allowed and the judgment and decree of the first appellate Court in A.S.No.56 of 1994 on the file of the Subordinate Judge, Devakottai, are set aside and the judgment and decree of the trial Court in O.S.No.461 of 1990 on the file of the District Munsif, Devakottai, are confirmed. However, in the facts and circumstances of the case, there is no order as to costs.
rsb To
1. The Subordinate Judge, Devakottai.
2. The District Munsif, Devakottai.