Madras High Court
A.Subramanian vs The Executive Engineer (O & M)
Author: M.Dhandapani
Bench: M.Dhandapani
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W.P. No.31762/12-29519/13-CRP 1968/2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
06.09.2022 16.09.2022
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P. NO.31762 OF 2012
W.P. NO. 29519 OF 2013
C.R.P. NO. 1968 OF 2014
AND
M.P. NO. 1 OF 2014
W.P. NO. 31762 OF 2012
A.Subramanian .. Petitioner
- Vs -
1. The Executive Engineer (O & M)
Tamil Nadu Electricity Board
Perambur, 75, Paper Mills Road
Perambur, Chennai 600 011.
2. The Assistant Engineer (O & M)
Tamil Nadu Electricity Board
Lakshmipuram, TANGEDCO/CEDC/NORTH
Chennai 600 099.
3. Tmt. M.K.Vedhambal .. Respondents
W.P. NO. 29519 OF 2013
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W.P. No.31762/12-29519/13-CRP 1968/2014
A.Subramanian .. Petitioner
- Vs -
1. The Director of Survey & Settlement
Ezhilagam, Chennai 600 005.
2. Tmt. M.K.Vedhambal .. Respondents
C.R.P. NO. 1968 OF 2014
M.K.Vedhambal .. Petitioner
- Vs -
1. A.Subramanian
Askar Hussain (Decd.)
2. P.P.R.Hariharan
3. The Bharath Rajiv Gandhi Nagar
Kudisaivazh Pothunala Sangam
Rep. by its President
P.Shanmugam No.20, Navalar Nagar
Thirumangalam, Villivakkam
Chennai – 49.
4. Easwari
5. Kala
6. M.Lakshmipathy
7. Komala
8. Sirdar Begum Alia
9. Nasreen Zehra
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W.P. No.31762/12-29519/13-CRP 1968/2014
10. Thasaseen Zehra
11. A.Afrose
12. Shaheen Zehra
13. Feroze Ali
14. Farhana Fathima .. Respondents
W.P. No.31762 of 2012 filed under Article 226 of the Constitution of India
praying this Court to issue a writ of certiorari calling for the records made in the
impugned proceedings of the 2nd respondent in Letter
No.AE/O&M/Lakshmipuram/Division No.413 dated 23.11.2012 in respect of the
Domestic Service Connection in S.C. No.026-23-1169 and quash the same.
W.P. No.29519 of 2013 filed under Article 226 of the Constitution of India
praying this Court to issue a writ of mandamus directing the 1 st respondent to
dispose of the representation dated 8.10.2013 for cancellation of ryotwari patta
submitted by the petitioner in accordance with law.
C.R.P. No.1968 of 2014 filed under Article 227 of the Constitution of India
against the fair and decreetal order dated 23.10.2013 passed in I.A. No.5537 of
2013 in O.S. No.6497 of 2002 by the XV Assistant Judge, City Civil Court, Chennai.
For Petitioners : Mr. S.P.Sudalaiyandi in WP 31762 & 29519/12
Mr. V.Lakshmi Narayanan for
Mr. E.Prabhu in CRP 1968/14
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W.P. No.31762/12-29519/13-CRP 1968/2014
For Respondents : Mr. R.Vigneswaran, GA for R-1
in WP 29519/13
Mr. V.Lakshmi Narayanan for
Mr. E.Prabhu for R-2 in WP 29519/13
& for R-3 in WP 31762/12
Mr. L.Jai Venkatesh for RR-1 & 2
In WP 31762/12
Mr. S.P.Sudalaiyandi for R-1 in CRP 1968/14
RR-2 to 14 – Set Exparte
COMMON ORDER
While the civil revision petition has been filed against the order passed by the lower court rejecting the plaint of the petitioner, W.P. No.31762/12 has questioned the impugned order passed by the official respondents in and by which the electricity service connection was directed to be disconnected and W.P. No.29519/12 has been filed seeking a direction to the official respondent to pass orders on the representation of the petitioner in and by which the patta granted was sought to be cancelled.
2. As the writ petitions and the civil revision petition relate to the same piece of land, which is the subject of dispute, they are taken up together at the instance of the learned counsel for the parties and are being disposed of by this 4 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014 common order. For the sake of convenience, the writ petitioner and the revision petitioner will be referred to as petitioner and revision petitioner. Case of the petitioner in W.P. No.31762/2012
3. It is the case of the petitioner that his mother had acquired the property in the year 1979 and had been in continuous possession and enjoyment by putting up construction and after the demise of his mother, the petitioner had been continuing in the said premises. Even during the lifetime of his mother, she had obtained water and electricity connection. Whileso, the revision petitioner claimed title over the said property through a sale deed in Doc. No.4132/1988 and filed O.S. No.6497/02 before the XV Assistant Judge, City Civil Court, Chennai, against the petitioner and his vendor and some other persons praying the relief of declaration declaring her sale deed as valid and also for recovery of possession. It is the further case of the petitioner that in view of his continuous enjoyment of the property since 1979, he has prescribed title by adverse possession and that the suit is pending before the court.
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4. It is the further averment of the petitioner that as against the occupation of the land by the petitioner, the revision petitioner filed a criminal complaint, leading to the registration of a FIR, which was questioned by the petitioner by filing Crl. O.P. No.3338/2012 and this Court had quashed the FIR holding that a civil dispute is being given a criminal colour. It is the further averment of the petitioner that the revision petitioner further made a complaint to the 1st respondent seeking disconnection of electricity connection and in that regard, a show cause notice was issued for which the petitioner submitted his explanation. However, to the shock and surprise of the petitioner, the present impugned order has been passed by the 2nd respondent informing about the electricity connection that would be disconnected within the time prescribed in the said order assailing which the present petition has been filed. Case of the petitioner in W.P. No.29519/2013
5. It is the case of the petitioner that his mother was in possession of the property of an extent of 1 ground and 200 sq.ft., in S. No.14 Part, Kolathur Village, Villivakkam, Chennai and Door No.5/6, Bharath Raji Gandhi Nagar, 1st 6 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014 Street, Vivekananda Main Road, Kolathur, Chennai 600 099 and upon the demise of his mother, he continues to be in possession and enjoyment of the property.
6. It is the further averment of the petitioner that one Husani Begum, Malika Begum, Tahira Begum, Mir Kasin Hussain and Mir Askar Hussain have created forged documents with respect to the title and possession of the property and, accordingly applied for ryotwari patta before the Assistant Settlement Officer, Chengalpet and ryotwari patta was also granted u/s 11 (a) of the Tamil Nadu Estates (Abolition & Conversion into Ryotwari) Act, 1948, by proceedings dated 15.4.1976 without conducting proper enquiry and verification of the documents.
7. It is the further case of the petitioner that he obtained information under the Right to Information Act, which reveals that the lands belong to government under the category of Eri Ulvai, but without appreciating the relevant official revenue records, the Assistant Settlement Officer has erroneously granted ryotwari patta to the vendor of the revision petitioner based on forged documents. It is the further averment of the petitioner that Section 11 7 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014
(a) of the Act prescribes that Government alone is the authority to grant ryotwari patta in respect of any possession having come in on or after 1.7.1945. When the vendor of the revision petitioner claims that title came to them through their predecessors-in-title, which is after 1.7.1945, necessarily Government alone can grant ryotwari patta and, therefore, the ryotwari patta granted by the Assistant Settlement Officer in the year 1976 is wholly without jurisdiction.
8. Since the ryotwari patta was obtained by playing misrepresentation and fraud and to cancel the said patta, the 1st respondent is clothed with power to exercise suo motu powers, it is averred by the petitioner that he submitted a representation before the 1st respondent on 8.10.2013, but no order has been passed on the same by the 1st respondent. Therefore, the present petition has been filed by the petitioner for the aforesaid relief. Case of the petitioner in CRP No.1968/14
9. It is the case of the revision petitioner that with regard to the encroachment caused by the petitioner along with the other defendants over the property, which she had purchased vide sale agreement dated 31.10.1989, the 8 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014 revision petitioner had instituted a suit in O.S. No.6497/02 on the file of the XV Assistant Judge, City Civil Court, Chennai claiming declaration of title in respect of the suit property, delivery of possession and past and future mesne profits. In the said suit, the petitioner had filed I.A. No.5537/2013 for rejecting the plaint as being barred by limitation. The court below had allowed the aforesaid interlocutory application on the ground of limitation against which the present civil revision petition is preferred.
10. Learned counsel appearing for the petitioner submitted that the revision petitioner had knowledge about the alleged encroachment of the petitioner way back in the year 1989 itself, as his knowledge resulted in the filing of the criminal complaint and, therefore, the limitation starts from the date of knowledge. The period of limitation to file any suit being 3 years, the revision petitioner having not filed any suit within the prescribed period, the suit is barred on the ground of limitation and, therefore, the court below was right in rejecting the plaint by allowing the interlocutory application. 9 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014
11. It is the further submission of the learned counsel that the petitioner is in possession of the property for more than twelve years and, therefore, he has perfected title by adverse possession. It is the further submission of the learned counsel that the petitioner’s mother had acquired the property through a private allotment by Bharat Seva Sangh. It is the further submission of the learned counsel that the suit was initially laid in the year 2002 only claiming the declaratory relief of title, but only in the year 2012, amendment has been made to the prayer seeking recovery of possession, which clearly shows that the petitioner has been in possession of the property till 2012. It is the further submission of the learned counsel that no cause of action has been stated against the petitioner in the plaint, which was carefully considered by the court below while rejecting the plaint.
12. It is the further submission of the learned counsel that once the plaint is rejected by the trial court, the remedy open to the revision petitioner is only to file an appeal before the first appellate court and a revision petition before this Court is not maintainable.
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13. It is the further submission of the learned counsel that the ryotwari patta granted by the Assistant Settlement Officer is beyond his jurisdiction as any application for grant of patta from the person claiming pre-existing right from his predecessors-in-title, who has been admitted into possession on or after 1.7.1945 as the Government alone is the authority to consider grant of patta. In the case on hand, the revision petitioner’s vendor having come into possession of the property only during 1974, the ryotwari patta issued by the Assistant Settlement Officer is without jurisdiction and deserves to be interfered with.
14. In support of the aforesaid contentions, learned counsel appearing for the petitioner placed reliance on the following decisions :-
i) Paruchuru Thirumala Satyanarayanacharyulu and another Vs. Vannava Ramalaingam and Ors. (1951 (2) MLJ 74 (Full Bench of Madras High Court))
ii) Shamsher Singh Vs. Rajinder Prashad and Ors. (AIR 1973 SC 2384)
iii) R.Shanmughavelu Pillai Vs. Karuppannan Ambalam (AIR 1976 MADRAS 289)
iv) Nesammal Vs. Edward (1998 (III) CTC 165)
v) Geetha Vs. Stanleybuck (2002 (2) MLJ 823)
vi) G.Murugan Vs. Manickam (AIR 2003 MADRAS 129) 11 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014
vii) S.Manoharan Vs. T.Mayakkannan (2008 (4) MLJ 405 )
viii) T.H.Anees Ahamed Vs. Union Bank of India, rep. by its Manager, Krishnagiri, Krishnagiri District (2012 (5) MLJ 60)
ix) Govindarajan Padayatchi Vs. Premananda Vijayakumar @ Prem Anand (2013 (6) CTC 467)
x) Ajay Bansal Vs. Anup Mehta (2007 (3) CTC 604 (SC))
xi) Ootacamund Club Vs. H.S.Mehta (2010 (1) MLJ 229)
xii) Khatri Hotels Private Ltd. Vs. U.O.I (2011 (8) MLJ 369 (SC))
xiii) R.Ravindra Reddy and Ors. Vs. H.Ramaiah Reddy and Ors. (AIR 2010 SC 991)
xiv) Rajapalayam Municipality Vs. Jayabhaskaran (2013 (1) MLJ 758)
xv) Dhanalakshmi Vs. Chandran (2012 (1) MLJ 392) xvi) Thulasi Ammal & Ors. Vs. A.Sivakumar & Ors. (2012 (2) LW 441) xvii) Hardesh Ores (P) Ltd. Vs. Hede and Company (2007 (5) SCC 614) xviii) Church of Christ Charitable Trust & Educational Charitable Society Vs. Ponniamman Educational Trust (2012 (8) SCC 706) xix) A.Subramanian Vs. M.K.Vedhammal and Ors.
(S.L.P.(C).No.17951 of 2014, dated 16.07.2014) xx) Sayyed Ayaz Ali Vs. Prakash G.Goyal (2021 (7) SCC 456) 12 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014 xxi) Rishabh Chand Jain Vs. Ginesh Chandra Jain (2016 (4) CTC 103 (SC)) xxii) Meera Sinha Vs. Girja Sinha (AIR 2009 Patna 19) xxiii) T. Sethupathi Nadar and Ors. Vs. Alamelu (MANU/TN/3509/2020 = 2020 (3) LW 74) xxiv) Bank of India, rep. by the Manager at Express Towers, Coimbatore Vs. S.Bupathi (2021 (4) MLJ 210 = 2021 Supreme (Madras) 500) xxv) Dahiben Vs. Arvindhbai Kalyanji Bhanusali (Gajra) (D) thr. L.Rs. (2020 (5) CTC 471 (SC)) xxvi) Shrawan Kumar Jaipuriyar Vs. Krishna Nandan Singh and Ors. (MANU/SC/1531/2019 = 2020 (1) CTC 220 (SC) xxvii) K.Akbar Ali Vs. K.Umar Khan and Ors. (2021 (3) CTC 717 (SC)) xxviii) V.Gowrishankar Vs. S.Balakumar (2021 (2)CTC 829 (Mad)) xxix) S.V.Ramaswamy and Ors. Vs. Padma Vaidyanathan and Ors. (MANU/TN/7983/2021 = 2021 (7) MLJ 434) xxx) Radhakrishna Reddy (died) Vs. G.Ayyavoo (2013 (6) CTC 314) xxxi) A.Subramanian Vs. The Inspector of Police, V.4 Rajamangalam Police Station, Chennai-99 and another (Crl.O.P.No.3338 of 2012, dated 02.08.2012) 13 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014 xxxii) V.Gurusamy Vs. The Tamil Nadu Electricity Board rep.
by its Chairman and another (W.P.No.17682 of 2020, dated 09.12.2020) xxxiii) A.Purusothaman Vs. The Junior Engineer, TANGEDCO and another (2017 (1) Writ L.R. 702) xxxiv) K.G.Ravindran Vs. Assistant Engineer, Tamil Nadu Electricity Board (2006 (3) MLJ 59) xxxv) BHEL Vs. TNEB (2007 (2) MLJ 111) xxxvi) G.Murugan Vs. Chairman, Tamil Nadu Electricity Board (2014 (3) MLJ 851) xxxvii) Abhimanyu Mazumdar Vs. Superintending Engineer (AIR 2011 Calcutta 64 (Full Bench)) xxxviii) Kiliammal and Ors. Vs. The State of Tamil Nadu and Ors. (W.P.No.14418 of 2003, etc. dated 29.04.2022)
15. Per contra, learned counsel appearing for the revision petitioner submitted that the petitioner is a rank encroacher, along with the other defendants in the suit and they have no title over the suit property. It is the further submission of the learned counsel that the main plank of argument relating to limitation in filing the suit, does not merit acceptance in view of the pronouncement of the Hon’ble Supreme Court in Sopanrao & Anr. – Vs – Syed Mehmood & Ors. (2019 (7) SCC 76), wherein the Hon’ble Supreme Court has 14 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014 clearly held that in a suit for possession in which declaration is also one of the prayer, necessarily the period of limitation is 12 years and it would be governed by Article 65 and not Article 58 of the Limitation Act. It is therefore the submission of the learned counsel that the suit being laid for declaration of title and recovery of possession, necessarily the period of limitation is 12 years and the suit having been laid well within the prescribed period of limitation, the suit would be very well maintainable.
16. It is the further submission of the learned counsel that the vendor of the revision petitioner had inherited the property from his predecessors-in-title and they have been in continuous enjoyment along with their predecessors-in- title even prior to the date on which the property devolved on them exclusively due to the demise of the predecessors-in-title and, therefore, the jurisdiction of the Assistant Settlement Officer to grant ryotwari patta would not stand ousted u/s 11 (a). The vendor of the revision petitioner having been in continuous enjoyment of the land even prior to 1945, would very well be entitled to seek for patta from the Assistant Settlement Officer u/s 11.
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17. It is the further submission of the learned counsel that the ownership and title of the vendor of the revision petitioner stands proved by the documents available on record and from whom the revision petitioner had purchased the property in the year 1988 and had instituted the suit in the year 2002 having come to know about the illegal trespass by the petitioner and other persons and in that regard the petitioner had been taking steps all along to remove the petitioner from the illegal encroachment. In fact, the revision petitioner had been diligently taking steps to retrieve the lands from the illegal occupation of the petitioner, who had put up construction at or about the year 1998-1999 and, therefore, the claim of the petitioner that his mother had put up construction and had been in occupation, which had been passed on to the petitioner, is nothing but a figment of imagination on the part of the petitioner to strengthen his case of possession.
18. It is the further submission of the learned counsel that the encroachment by the vendor of the petitioner, who had sought for assignment patta was not favourably considered by the authority against which the W.P. No.4112/1989 was filed by the vendor of the petitioner, which was dismissed by 16 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014 this Court by holding that the vendor of the revision petitioners are prima facie the title holders and, therefore, the remedy for the vendor of the petitioner is to institute appropriate civil proceedings. In the aforesaid backdrop, the revision petitioner had filed the suit by presenting the plaint as early as in the year 2000, but it was numbered only in the year 2002. It is the further submission of the learned counsel that the suit is well laid within the period of limitation.
19. It is the further submission of the learned counsel that the petitioner claims to be representing defendants 4 to 7 in the suit along with himself as per the written statement, as power agent, but curiously, in the additional written statement, the petitioner has pleaded that he is the owner of the property. It is the further submission of the learned counsel that barring the petitioner, the other respondents in the revision petition have remained ex parte.
20. It is the further submission of the learned counsel that the claim of the petitioner as to title by adverse possession is wholly ill-conceived, as title by adverse possession could be claimed only insofar as the lands belonging to the Government and it cannot be claimed in respect of lands belonging to individuals, 17 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014 such as the revision petitioner. Further, even if title by adverse possession is claimed, the onus will lie on the petitioner to prove the same through oral and documentary evidence, which has to be done only during the trial and suit and not otherwise. Therefore, it is submitted that the suit filed by the revision petitioner is well within time and is not barred by limitation and that against the said rejection of plaint, revision petition is very much maintainable and, accordingly, prays for allowing the civil revision petition.
21. This Court gave its anxious consideration to the submissions advanced by the learned counsel appearing on either side and perused the materials available on record.
22. The issues that arise for consideration in the present petitions are :-
i) Whether a revision petition is maintainable against an order passed rejecting a plaint, when remedy of appeal is available.18
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ii) Whether the period of limitation for filing the suit for declaratory relief as well as possession is to be reckoned under Article 65 or Article 58 of the Limitation Act.
23. The first and foremost contention of the petitioner relates to the maintainability of the revision petition. It is the contention of the petitioner that against the order of the trial court rejecting the plaint, remedy of appeal is available before the first appellate court and, therefore, a revision before this court is not maintainable.
24. There is no question that as against a decree, including rejection of plaint, remedy of appeal is available before the first appellate court. However, when the revision petition was filed, it was listed on the issue of maintainability before this Court, wherein, this Court, upon careful perusal of the materials, has rendered a finding as under :-
“A perusal of the order prima facie would show the order has been tainted with illegality.
Therefore, CRP under Article 227 of Constitution of India is maintainable.” 19 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014
25. Against the aforesaid order of this Court, the petitioner had preferred SLP (C) No.17951/2014, wherein, the petitioner has sought liberty to raise the issue of maintainability before this Court. The order of the Hon’ble Supreme Court, which is crucial in the appreciation of the case, is quoted hereunder :-
“We are informed that the plaintiff has filed first appeal challenging the said order which is pending before the City Civil Court. Case of the petitioner is that suppressing these facts the plaintiff filed CRP No.1968 of 2014. Office raised objection as regards maintainability of the said petition. Our attention is drawn to the order passed by the learned Single Judge of the Madras High Court stating that a perusal of the impugned order of the trial court shows that the order is tainted with illegality and, therefore, civil revision petition is maintainable under Article 227 of the Constitution of India. We express no opinion on this view of the learned Single Judge.
Learned counsel for the petitioner submitted that the petitioner has filed M.P. No.1 of 2014 in CRP (NPD) No.1968 of 2014 raising objection to the maintainability of the said civil revision petition. Learned counsel further submitted that main CRP (NPD) No.1968 of 2014 is posted for hearing but M.P. No.1 of 2014 whereby he raised objection to the maintainability of the civil revision petition is not being considered.
20 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014 In the circumstances, we request the High Court to also take up M.P. No.1 of 2014 for hearing.
We make it clear that we have not expressed any opinion on the merits of the petitioner’s case and the High Court shall consider the M.P. No.1 of 2014 independently after giving hearing to both sides.”
26. In effect, the petitioner has not canvassed any plea before the Hon’ble Apex Court with regard to the maintainability of the revision petition, but the Hon’ble Apex Court has recorded the finding rendered by the learned single Judge as to the prima facie nature of the case available for invocation of the powers of this Court under Article 227 of the Constitution of India to maintain a revision before this Court. In fact, the petitioner had only appealed that his miscellaneous petition to dismiss the revision petition on the ground of maintainability has to be considered along with the revision petition. Therefore, without expressing any opinion, the Hon’ble Supreme Court has left it to the wisdom of this Court to decide the issue.
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27. Order VII Rule 11 of the Code of Civil Procedure relates to Rejection of Plaint and the circumstances in which the plaint can be rejected, and the same is quoted hereunder :-
“11. Rejection of Plaint.- The plaint shall be rejected in the following cases :-
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is under-valued and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so;
(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law;
(e) Where it is not filed in duplicate;
(f) Where the plaintiff fails to comply with the provisions of rule 9:
* * * * * * *” 22 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014
28. Against a decree of the court below, an appeal remedy is available before the first appellate court. As could be deciphered from the order passed by the Hon’ble Supreme Court, the main grievance of the petitioner is that there is suppression relating to the filing of the first appeal in this revision petition. In this backdrop, the order in I.A. No.5537/2013 assumes significance, as only based on the said order, learned single Judge had come to the conclusion that prima facie the said order is tainted with illegality. Therefore, to appreciate the same, the relevant portion of the order is quoted hereunder :-
“6) The contents stated in the petition and the counter are carefully perused. Both side arguments are carefully considered. The submission from the petitioner counsel that the suit is barred by limitation. There is no cause of action is arose against the 8th defendant. As per the sale agreement dated 31.10.1988. The property was purchased in the year 1988. The petitioner/8th defendant was in possession since 1979. Hence, the petitioner/8th defendant claimed adverse possession in the suit schedule property. The plaintiff is admitted suit for declaration. The 1 st respondent/plaintiff mentioned cause of action against the defendants 1 to 7 and no cause of action disclose this petitioner/8th defendant in the plaint. The plaintiff filed the suit foe declaration of title deed dated 13.10.89 is valid and the plaintiff had also sought for relief of recovery of possession on the 23 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014 basis of sale deed. It is submitted that the plaintiff had admitted that the defendants are in possession of the property since 1989. Whereas the plaintiff is filing the suit in the year 2001 and it was numbered as O.S. No.6497/2002. The suit is instituted after a lapse of 13 years by the plaintiff which is cleared shows that the suit is barred by limitation. The plaintiff made a police complaint against the 8th defendant on 7.12.2011. It is stated that the 8th defendant is in possession of the suit property since 1989. The Hon’ble High Court order dated 2.8.12 in Crlminal No.3338/2012 had also observed that the petitioner/8th defendant is in possession of the property since 1989 is accepted by this Court. Concluding all these aspects this court comes to a conclusion that the submission from the petitioner side is strengthening the petitioner side case. Hence, in the interest of justice this petition is allowed without costs.”
29. The revisional power of the High Court is provided under Article 227 of the Constitution and as held in a catena of judgments, the power has to be exercised within the bounds and only in cases of errors, perversity and illegality, the revisional power can be invoked and not otherwise. Further, the Code of Civil Procedure also speaks of filing of revision before the High Court, as contained in Section 115, where the High Court could exercise its supervisory jurisdiction where it finds that jurisdiction has been exercised, where no such 24 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014 jurisdiction is vested in the said court, or that the court below has failed to exercise the jurisdiction so vested or that it has acted illegally or with material irregularity in exercise of its jurisdiction.
30. There is no quarrel with the proposition of law, for which a voluminous compilation of decisions has been placed before this Court by the learned counsel for the petitioner that when the remedy of appeal is available u/s 96 of the Code of Civil Procedure, a revision is not maintainable. But, an illegal and perverse order is definitely interferable in exercise of power under article 227 of the Constitution r/w Section 115 of the Code of Civil Procedure. Further, the facts in the present case cannot be equated to the cases, which had resulted in the decisions being rendered in the aforesaid matters and, therefore, the said decisions cannot be the basis for this Court to decide the maintainability of the present case.
31. A careful perusal of the order passed by the trial court reveals that the court below has recorded that the plaintiff/revision petitioner has accepted that the petitioner has been in possession of the property since 1974 and further 25 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014 claim that the lands have been allotted to him by the 3 rd respondent Trust, which particulars are available in the written statement. While the Court below has rendered a finding that the suit has been filed for declaration of title and also for recovery of possession and has gone on to hold that the suit has been laid after a period of 13 years from the date of knowledge, viz., 1989 and, therefore, is barred by limitation, as the suit has to be filed within a period of three years from the date of knowledge. However, the particular provisions of the Limitation Act, viz., Articles 58 and 65 have not been discussed by the Court below to show how the limitation is arrived at three years.
32. In this regard, useful reference can be had to the decision of the Hon’ble Apex Court in Sopanrao’s case (supra), wherein the Hon’ble Apex Court has clearly held that where the claim is for a declaratory relief as also for possession, necessarily Article 65 of the Limitation Act would apply and not Article 58 of the Limitation Act. In the aforesaid context, the Hon’ble Apex Court held as under :-
“9. It was next contended by the learned counsel that the suit was not filed within limitation. This objection is totally untenable. Admittedly, the possession of the land was handed over to the 26 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014 Trust only in the year 1978. The suit was filed in the year 1987. The appellants contend that the limitation for the suit is three years as the suit is one for declaration. We are of the view that this contention has to be rejected. We have culled out the main prayers made in the suit hereinabove which clearly indicate that it is a suit not only for declaration but the plaintiffs also prayed for possession of the suit land. The limitation for filing a suit for possession on the basis of title is 12 years and, therefore, the suit is within limitation. Merely because one of the reliefs sought is of declaration that will not mean that the outer limitation of 12 years is lost. Reliance placed by the learned counsel for the appellants on the judgment of this Court in L.C.Hanumanthappa v. H.B.Shivakumar is wholly misplaced. That judgment has no applicability since that case was admittedly only a suit for declaration and not a suit for both declaration and possession. In a suit filed for possession based on title the plaintiff is bound to prove his title and pray for a declaration that he is the owner of the suit land because his suit on the basis of title cannot succeed unless he is held to have some title over the land. However, the main relief is of possession and, therefore, the suit will be governed by Article 65 of the Limitation Act, 1963. This Article deals with a suit for possession of immovable property or any interest therein based on title and the limitation is 12 years from the date when possession of the land becomes adverse to the plaintiff. In the instant case, even if the case of the defendants is taken at the highest, the possession of the defendants became 27 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014 adverse to the plaintiffs only on 19.08.1978 when possession was handed over to the defendants. Therefore, there is no merit in this contention of the appellants.”
33. From the aforesaid proposition of law propounded by the Hon’’ble Apex Court, it is abundantly clear that the revision petitioner has claimed declaratory relief as well as possession and, therefore, Article 65 would squarely stand attracted, wherein the limitation prescribed is 12 years. However, without discussing as to how the limitation of three years alone would stand attracted, the court below has allowed the interlocutory application and rejected the plaint.
The aforesaid decree passed by the trial court shows that the trial court, though has acted within its jurisdiction, but has perpetrated an illegality, as a perverse order has been passed, in that the relevant materials have not been properly considered while rendering a finding as to the period of limitation within which the suit has to be laid. The findings recorded are perverse and illegal and in the aforesaid backdrop, Section 115 of the Code of Civil Procedure would stand squarely attracted enabling this Court to exercise its supervisory control jurisdiction under Article 227 of the Constitution. 28 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014
34. Though remedy of appeal is provided under the Code of Civil Procedure, which this Court is not averse to, however, it is to be borne in mind that a perverse order would give way for this Court to entertain the same under its revisional jurisdiction. It is pointed out that an appeal is pending and, therefore, this revision petition could be dismissed and the revision petitioner may be granted liberty to canvass all the points in the aforesaid appeal.
35. Though the aforesaid contention, at first blush, looks attractive, however, certain factual aspects of the case, as projected by the materials available on record, makes this Court to fall the other way round.
36. The petitioner claims in the affidavit that his mother had obtained the subject property in the year 1974, but no material is placed to substantiate the same. In the written statement filed in the suit, there is no whisper about his mother acquiring the property. Further, the petitioner claims that he is an employee, more particularly an Engineer in the Corporation of Chennai; that the land in his occupation is a Government poramboke land, classified as ‘Eri Ulvai’; that being the case, this Court is at a loss to understand as to how the petitioner, 29 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014 an employee of the Government, could be in possession of a Government poramboke land. There seems too much contradiction between the case projected by the petitioner in his written statement from the one pleaded before this Court.
37. Further, the petitioner has pleaded no cause of action against him in the plaint and, therefore, had submitted the plaint has to be rejected. However, a perusal of the amended plaint reveals the cause that arises to proceed against the petitioner. Further, the written statement of the petitioner also reveals that the petitioner is acting on behalf of defendants 4 to 7 in the suit. That being the admitted case of the petitioner, it is incumbent upon the court below to appreciate the above in consonance with the relief sought for along with the materials that have been placed along with the suit. But the trial court, merely going on the fact that revision petitioner had knowledge about the possession and enjoyment of the petitioner even in the year 1989, the suit having been laid only in the year 2001, which is beyond the period of three years, held that the suit is barred by limitation, though the suit has been laid seeking declaration of title along with recovery of possession. In such a scenario, the limitation would 30 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014 be 12 years from the date of knowledge and if the same is taken into account, the revision petitioner has very well laid the petition within the period of limitation of 12 years and, therefore, on that ground, the plaint could not be rejected.
38. Further it should not be lost sight of that against the impugned order, appeal as well as the revision has been filed in the year 2014 and had been kept pending and a period of eight years have passed since the filing. The revision petition has been held to be maintainable against which Special Leave Petition was filed before the Hon’ble Apex Court, but without canvassing the plea of maintainability, the petitioner has sought liberty to canvass the same before this Court. At this point of time, on a finding that the order passed by the court below is perverse, on the technical plea of maintainability, if the revision petitioner is relegated to canvass the aforesaid contention in the appeal to get the same order, it would be substantial injustice committed to the revision petitioner under the garb of a technicality, which would defeat the ultimate object of justice.
31 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014
39. Further, the Hon’ble Supreme Court has not put any shackles on this Court to consider the issue of maintainability, but had, without expressing any opinion on the order passed by this Court, permitted the petitioner to canvass the issue of maintainability raised in the miscellaneous petition to be considered along with the revision petition.
40. Though it is to be pointed out that an appeal u/s 96 of the Code of Civil Procedure is filed, which is pending in the SR stage and is yet to be taken up and also considering the fact that the lands to which the revision petitioner claims title is being in illegal possession of the petitioner and the revision petitioner is yet to enjoy the fruits of the title to the lands, relegating the revision petitioner to pursue the appeal remedy at this distant point of time would only cause grave prejudice to the revision petitioner as even otherwise, on the question of limitation on which the plaint has been rejected, the aforesaid decision of the Hon’ble Supreme Court would pave the way for the revision petitioner to get the appeal allowed and in such circumstance, it would not be in the interest of justice to relegate the parties to the rigour of appeal, this Court in exercise of its revisionary power, to set right the wrong, is inclined to allow the revision 32 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014 petition, which, however, shall not be cited as a precedent for filing revision when remedy of appeal is available.
41. In the aforesaid circumstances, the writ petitions have been filed for quashing the impugned order in and by which electricity connection is sought to be disconnected to the petitioner’s premises and also the direction to the Director of Survey and Settlement to cancel the ryotwari patta granted to the vendor of the revision petitioner cannot be gone into when the suit is pending consideration before the court below. In such circumstances, the only relief that could be granted to the petitioner is liberty to seek for appropriate relief subject to the outcome of the suit.
42. Accordingly, for the reasons aforesaid, the civil revision petition is allowed and the order passed in I.A. No.5537/2012 in O.S. No.6497/02 is set aside and the plaint is restored back to file. The court below is directed to take up the suit and dispose of the same as expeditiously as possible, preferably within a period of six months from the date of receipt of a copy of this order. Consequent to the aforesaid order, the relief sought for in the writ petitions cannot be 33 https://www.mhc.tn.gov.in/judis ____________________ W.P. No.31762/12-29519/13-CRP 1968/2014 granted and, accordingly, the writ petitions are dismissed. However, liberty is granted to the petitioner to work out his remedy in the manner known to law subject to the outcome of the suit. Consequently, connected miscellaneous petition is dismissed. There shall be no order as to costs.
16.09.2022
Index : Yes / No
Internet : Yes / No
GLN
34
https://www.mhc.tn.gov.in/judis
____________________
W.P. No.31762/12-29519/13-CRP 1968/2014
To
1. The Executive Engineer (O & M)
Tamil Nadu Electricity Board
Perambur, 75, Paper Mills Road
Perambur, Chennai 600 011.
2. The Assistant Engineer (O & M)
Tamil Nadu Electricity Board
Lakshmipuram, TANGEDCO/CEDC/NORTH
Chennai 600 099.
3. The Director of Survey & Settlement
Ezhilagam, Chennai 600 005.
35
https://www.mhc.tn.gov.in/judis
____________________
W.P. No.31762/12-29519/13-CRP 1968/2014
M.DHANDAPANI, J.
GLN
PRE-DELIVERY ORDER IN
W.P. NO. 31762 OF 2012
W.P. NO. 29519 OF 2013
C.R.P. NO. 1968 OF 2014
Pronounced on
16.09.2022
36
https://www.mhc.tn.gov.in/judis