Madras High Court
Rethinakumar vs Anbanathapuram Vagayara Dharma Pagam on 26 April, 2012
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 26-04-2012
CORAM
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
S.A.No.261 of 2011
and
M.P.(MD)No.1 of 2011
Rethinakumar : Appellant/3rd Defendant
vs.
1.Anbanathapuram Vagayara Dharma Pagam,
rep.by its Chairman, E.S.Gnanapathy
: Plaintiff/Respondent
2.Balakrishnan
3.Govindarajan :R2 and R3/D1 and 2
Prayer: This second appeal is filed under section 100 of the Civil Procedure Code, against the judgment and decree passed in A.S.No.48 of 2007 on the file of the District Judge, Nagapattinam, dated 25.01.2011 confirming the decree and judgment passed in O.S.No.87 of 2005 on the file of the Principal Subordinate Judge, Mayiladuthurai, dated 22.10.2007
For Appellant : Mr.T.R.Rajagopalan
Senior counsel
for Mr.R.Sivakumar
For 1st Respondent : Mr.R.Krishnamurthy
Senior Counsel
for Mr.S.Sounther
JUDGMENT
The 3rd defendant is the appellant. The 1st respondent filed a suit for injunction and for recovery of possession of the suit property.
2.The case of the first respondent is that the suit properties belonged to the first respondent trust and the 1st item was leased out to second respondent and the 2nd item was leased out to the third respondent, who are the defendants 1 and 2 in the suit and the appellant, after entering into the agreement with 2nd and 3rd respondent is enjoying the 1st and 2nd items of the suit properties. It is further stated that after the second respondent gave the 1st item of the suit property to the third respondent and when the third respondent attempted to put up construction in the items 1 and 2, the first respondent filed a suit in O.S.No.939 of 1993 for injunction restraining the respondents 2 and 3 herein from altering the superstructure and that suit was decreed. Similarly, the first respondent also filed a suit in O.S.No.664 of 1998 against the third respondent for recovery of possession of the 2nd item of the property and that was also decreed and there are buildings bearing Door Nos.1, 1A and 2 in those two items and on the northern side of the 1st and 2nd items, there is a old Mandapam belonging to the first respondent wherein during festival times, the deity 'Parimala Ranganathar' will be taken to that Mandapam for pooja and that Mandapam is known as 'Kurangu Chavadi Mandapam' and the appellant with the help of the respondents 2 and 3 herein attempted to demolish the said Mandapam and the respondents 2 and 3 and the appellant have no right to demolish the said Mandapam and therefore, a suit was filed for injunction restraining the appellant and the respondents 2 and 3 from demolishing the said Mandapam and not to put up any new construction and to demolish the new construction constructed by the appellant in that place and to hand over vacant possession of the properties to the first respondent.
3.The appellant alone contested the suit stating that he was not aware of the earlier suits filed by the first respondent against the respondents 2 and 3 and he was not a party to those suits and the decrees obtained in those suits are not binding on him and the suit properties are classified as 'natham' and his grand-father Rathinasabapathi Pillai was in possession of the same and the suit property was endowed for 'Thanneer Panthal Dharmam' and the superstructure in the suit property was constructed by his grand-father and the buildings became dilapidated and therefore, the appellant demolished the old building and constructed a new building and the plaintiff/first respondent has no right over the suit properties and they are not entitled to any relief as prayed for.
4.The trial court framed seven issues and held that the 1st item of the suit property was given on lease to the second respondent/first defendant and items 2 and 3 were given to the third respondent/second defendant on lease by the plaintiff/first respondent and the appellant is enjoying the suit property, after entering into an agreement with the respondents 2 and 3 in the year 2000-2001 and the appellant constructed a new building in the suit properties and the suit properties belonged to the first respondent and the appellant has no right to demolish the 'Kurangu Chavadi Mandapam' and to construct a new building in that place and decreed the suit as prayed for.
5.The first appellate court also held that the suit properties belonged to the first respondent and the appellant has no right over the same and the appellant has not established his independent right over the suit properties and dismissed the appeal and confirmed the judgment of the trial court. Hence, the second appeal.
6.The appellant raised the following substantial questions of law in the grounds of appeal and the substantial questions of law are framed as follows:-
1.In the absence of evidence of title, the suit for mere recovery of possession and mandatory injunction is maintainable?
2.Whether the relief of recovery of possession not based on the title can be granted without declaration of title?
3.When a particular land is classified as 'natham' in the revenue records, a person claiming right over the same and seeking recovery of possession thereof in the absence of evidence of title is entitled for the same?
4.Whether the earlier suit between the same parties which has been decreed and the decree got lapsed due to non-execution within the prescribed period, would operate as res-judicata for the subsequent suit?
7.According to me, the above substantial questions of law are re-framed as follows:-
1.Whether the first respondent is entitled to the relief of recovery of possession and injunction without praying for declaration of title and without proving the title?
2.Whether the first respondent is entitled to claim right over the suit properties when the suit property is classified as 'natham' in the revenue records?
3.Whether the first respondent is entitled to claim any relief in respect of 3rd item of the suit property when no pleading has been made with respect to 3rd item of the suit property?
8.Mr.T.R.Rajagopalan, the learned Senior counsel appearing for the appellant submitted that it is admitted by the first respondent that the items 1 and 2 are natham properties in the earlier proceedings and the natham properties belonged to the Government and nobody can claim right over the properties and therefore, the first respondent cannot claim any title or right over the suit properties and hence, the suit for bare injunction and recovery of possession will not lie. In support of his contention, the learned Senior counsel appearing for the appellant relied the following judgments:-
01.1998-2-L.W.603 in the case of Thillaivanan A.K. & another vs. District Collector, Chengai Annan District & 3 others.
02.2004(3)CTC 270 in the case of The executive Officer, Kadathur Town Panchayat, Harur Taluk, Dharmapuri District vs. V.Swaminathan and others.
03.(2006)3 M.L.J.216 in the case of Muthammal (died) and others vs. State of Tamil Nadu and another.
04.(2007)2 MLJ 1113 in the case of Ellammal and others vs. State of Tamil Nadu, rep. by its Collector of North Arcot District, Vellore and another.
05.2009-1-L.W.917 in the case of the State of Tamil Nadu & another vs. R.P.Patchirajan & another.
06.(2007)6 MLJ 1597 in the case of R.Muniasamy and another vs. District Collector, Virudhunagar District and others.
9.The learned Senior counsel appearing for the appellant further submitted that a reading of the plaint would make it clear that no averment regarding the title in respect of 3rd item of the property has been mentioned in the plaint and the allegations are made only in respect of items 1 and 2 and when the plaintiff/first respondent did not claim any right over the 3rd item of the property and no pleading has been made in respect of 3rd item of the property, the courts below ought not to have granted the relief of recovery of possession in respect of 3rd item of the property also.
10.The learned Senior counsel appearing for the appellant further submitted that without establishing the title of the first respondent/plaintiff to the suit property, the plaintiff/first respondent is not entitled to the relief as prayed for. The learned counsel further submitted that in the revenue records, the grand-father of the appellant was mentioned as the owner of the suit property and without appreciating theses aspects, the courts below erroneously decreed the suit as prayed for.
11.Per contra, Mr.R.Krishnamurthy, the learned Senior counsel appearing for the first respondent submitted that when the property has been classified as 'natham', it does not mean that the Government is the owner of the properties and even according to the judgments relied upon by the learned Senior counsel appearing for the appellant, natham is a house site and whoever occupies that property becomes the owner of the property and the Government has no right over the same and in this case, the first respondent had filed two suits against the respondents 2 and 3 for injunction and recovery of possession and in those two suits, namely O.S.No.664 of 1998 and O.S.No.939 of 1993, it was held that the first respondent/plaintiff was the owner of the suit properties and O.S.No.939 of 1993 was filed in respect of 1st item and O.S.No.664 of 1998 was filed in respect of 2nd item and the 3rd item of property is only a part of the 2nd item and it is made clear from the amended plaint that the 2nd item consists of two properties namely, T.S.No.720A having an extent of 410 sq.ft and 720B having an extent of 1459 sq.ft. and the 3rd item is only in respect of T.S.No.720B measuring an extent of 1450 sq.ft. and therefore, it cannot be contended that there is no pleading in respect of 3rd item and necessary pleadings have been made with respect to the 1st and 2nd items, which comprises three items of the property also and the schedule of property in those two suits and the other exhibits would prove that Kurangu Chavadi Mandapam, which is the subject matter of the suit is situate in the 2nd item of the suit property, which is also the 3rd item of the suit property and the appellant, after entering into an agreement with the respondents 2 and 3 started demolishing the old building bearing door Nos.1 and 1A and also bearing door No.2 and put up a new superstructure and also attempted to demolish the Kurangu Chavadi Mandapam used to receive the deity on festival and hence, the suit was filed and both the trial as well as the first appellate court, after independently analyzing the oral and documentary evidence, concurrently held that the first respondent/plaintiff proved his right over the suit property and in the suits O.S.No.664 of 1998 and O.S.No.939 of 1993, the title of the first respondent was declared and the appellant was also the member of the Board of Trustees of the first respondent and he also issued proceedings along with other trust members in respect of the suit properties and therefore, the appellant is estopped from claiming any independent right over the suit properties. The learned senior counsel for the first respondent further submitted that the appellant, having claimed independent right over the suit properties, failed to prove his right and the settlement deed executed by one Pattammal in the year 2002 will not confer any right over the suit property in favour of the appellant and therefore, the concurrent finding of facts by the courts below need not be interfered with.
12.Heard both sides.
13.Having regard to the arguments of the learned counsel appearing for the appellant that there was no pleading in respect of 3rd item of the property and no relief can be granted in respect of 3rd item of property, as there was no pleading, we will have to see the plaint.
14.In the plaint in para 5, it has been stated that the 1st item of the suit property was given on lease to the 2nd respondent herein and the 2nd item of suit property was given on lease to the 3rd respondent. O.S.No.939 of 1993 was filed against them for injunction when they attempted to effect change in the building and the appellant herein after entering into the agreement with the defendants 1 and 2, namely the respondents 2 and 3 is enjoying the suit properties items 1 and 2 and he also demolished the building bearing door Nos.1, 1A and 2 situate in items 1 and 2 and there is a Mandapam on the northern side of the items 1 and 2 of the suit property and that Mandapam is known as 'Kurangu Chavadi Mandapam' and in that Mandapam only, the deity Parimala Ranganathar will be received during festival occasions and in O.S.No.664 of 1998, it has been made clear that Kurangu Chavdi Mandapam is the 2nd item of the suit properties.
15.Ex.A1 is the decree passed in O.S.No.664 of 1998. Ex.A2 is the copy of the plaint filed in O.S.No.939 of 1993. In O.S.No.664 of 1998, the defendant is the 3rd respondent/2nd defendant herein and that suit was in respect of the properties situate in T.S.No.720A having an extent of 410 sq.ft and T.S.No.720B having an extent of 1450 sq.ft. Therefore, the properties described in Ex.A1 are the 2nd item of the suit properties. In Ex.A2 the copy of the plaint in O.S.No.939 of 1993, the defendants are the respondents 2 and 3 herein and that suit was filed in respect of T.S.No.720 bearing door Nos.1 and 1A.
16.A reading of the boundary recitals in respect of the properties described in O.S.No.939 of 1993 and in O.S.No.664 of 1998 would make it clear that door bearing Nos.1 and 1A is on the western side and door No.2, namely the subject matter of the suit in O.S.No.664 of 1998 is the 2nd item of the property which is situate east of the 1st item of the property and in the 2nd item of the property, there is Mandapam known as 'Kurangu Chavadi Mandapam'. This is made clear in the report of the Advocate Commissioner filed in O.S.No.664 of 1998.
17.Further, it is also admitted and not in dispute that Kurangu Chavadi Mandapam is situate in the 2nd item of the property. Further, a reading of the 3rd item of the property as described in the plaint, would also make it clear that a portion of the 2nd item of the property has been mentioned as 3rd item of the property in the plaint. As stated supra, in the 2nd item of the property, there are two items, namely T.S.No.720A and 720B and 720B has been separately mentioned as 3rd item of the property. This is also made clear if one look at the boundaries given in O.S.No.664 of 1998 and in O.S.No.939 of 1993. Therefore, taking into consideration of all these aspects, there is no confusion regarding the identification of the property and the suit properties are items 1 and 2 and a portion of 2nd item has been shown as 3rd item and therefore, the contention of the learned Senior counsel appearing for the appellant that there was no pleading in respect of 3rd item and therefore, the respondents cannot claim any right over the 3rd item cannot be accepted. This was also properly appreciated by the courts below and the courts below have rightly rejected the plea of the appellant. Hence, I hold that the 3rd item of the property is forming part of 2nd item of the property and necessary pleadings have been made in respect of 2nd item of the properties and therefore, the substantial question of law No.3 is answered in favour of the first respondent and against the appellant.
18.It was contended by the learned senior counsel that in Ex.A1 while describing the boundaries it has been stated clearly that the suit property in O.S.No.664 of 1998 is situate on the eastern side of the building bearing door Nos.1 and 1A belonging to the Government. He, therefore, submitted that it was admitted by the first respondent that the building bearing door Nos.1 and 1A belonged to the Government and therefore, the first respondent cannot claim any right over the 1st item of properties. He further contended that under Ex.B1 one Pattammal, w/o.D.Natesan Pillai executed a settlement deed in favour of the appellant in respect of T.S.No.720 having an extent of 2280 sq.ft., which comprises of the entire three items of the suit properties and therefore, the first respondent cannot claim any right and the house tax in respect of those properties was paid by the appellant and it was assessed in the name of Pattammal as evidenced by Exs.B3 to B8 and the water charges were levied in respect of the suit properties in the name of the appellant and his settlor Pattammal as evidenced by Ex.B9 and the property tax was also levied in favour of the appellant as evidenced by Ex.B10 and in Ex.B11 and T.S.No.720 is described as the property belonging the the Rathinasabapathi Pillai and it is used as water shed and Rathinasababathi Pillai was described as the trustee and those aspects were not properly appreciated by the courts below and even according to the first respondent, the suit property are natham properties and therefore, the first respondent cannot claim any title or right over the properties.
19.Ex.A11 is the proceeding of the first respondent Trust and the appellant was one of the members and in the meeting held on 29.10.1982, the Board of Trustees, including the appellant resolved to let out the building situated in Thirumanjana Street, to the second respondent herein on a monthly rent of Rs.50/-. The building referred to in Ex.A11 is the building bearing door Nos.1 and 1A, namely the 1st item of the suit property. Similarly, Ex.A12 is another proceeding of the Board of Trustees, in which the appellant has participated as a member and in that meeting, it was resolved to let out the trust buildings, which is situate opposite to Ramar Temple facing A.V.C. New Kalyanamandapam to the third respondent herein. Ex.A13 is another Board Proceeding, dated 31.08.1997 wherein one Natesa Pillai, the husband of the settlor from whom the appellant claims title under Ex.B1 participated as 'President' and in that meeting, the trust properties were let out to the third respondent herein. Further, Ex.A17 is a letter sent by Natarajan, President of the first respondent trust to the Manager of the first respondent Association, directing the Manager to take action against P.N.Rathinakumar, who is attempting to demolish the building bearing door No.1A belonging to the trust. Exs.A18 to A20 are the house tax receipts in respect of door bearing Nos.1 and 1A and the properties are assessed in respect of the first respondent trust. Therefore, considering all these aspects, the lower appellate court rightly held that the suit properties belonged to the first respondent trust and the respondents 2 and 3 have taken the suit properties only on lease from the first respondent trust and gave those properties to the appellant and the appellant cannot claim any right over the properties and there is a Mandapam in the 2nd item of the suit property known as 'Kurangu Chavadi Mandapam' and Ex.A5 would prove that the deity Parimalar Ranganathar used to come to that Mandapam on festival days and the appellant also admitted in his evidence that there was a Mandapam in the 2nd item of the suit properties and he started construction of a new building in that place. Further, Ex.A11 is in respect of T.S.No.720 having an extent of 10027 sq.ft. and Rathinasabapathi Pillai is mentioned as 'Trustee' and that properties are used for water shed and Rathinasabapathi Pillai was one of the trustees of the first respondent trust and the father of the appellant was also one of the trustees and the appellant was also one of the trustees as discussed above and therefore, the appellant cannot claim any right or title over the properties and the settlement deed Ex.B1 was executed during the pendency of the suit and the appellant's father Natesa Pillai was also one of the trustees and therefore, the appellant cannot claim any right over the properties. Further, the first appellate court discussed the evidence independently and came to the conclusion that the first respondent proved title to the suit properties and the trial court also rightly discussed the evidence and decreed the suit. Therefore, I do not find any infirmity in the concurrent findings of the courts below regarding the title of the first respondent to the suit property.
20.The main contention of the learned senior counsel appearing for the appellant is that the property is a gramanatham and therefore, the first respondent cannot claim any right over the property.
21.In the judgment reported in 1998-3-L.W.603 in the case of Thillaivanam, A.K. & another Vs. District Collector, Chennai Anna District & 3 others, the learned Judge discussed about 'grama natham' as follows:-
23.Being a grama natham, it is obvious that the land in question had never vested with the Government. Section 2 of the Land Encroachment Act. 1905 excludes gramanatham owned as house site. As such the provisions of the Land Encroachment Act, 1905 cannot be invoked by the respondents in respect of the land in question.
24.It has been held as early as in (1949) 1 MLJ 290 = 62 L.W. 204 (Palani Ammal v. L. Sethurama Aiyangar) that grama natham is not a communal property in the sense in which thrashing floor or burning grounds or other property is communal that is property reserved for the use of the community. Satyanarayan Rao. J. held thus: Grama Natham a land in the occupation of the individual in possession of the gramanatham cannot be interfered and it could very well resist ejectment and also institute a suit in ejectment against the trespasser.
25.In S. Rengaraja Iyengar and another Achikannu Ammal and another (1959 2 MLJ 513 = 72 L.W. 767) it has been held thus: It is contended that in relation to buildings, specific provision is made under Section 18 of Act XXVI of 1948 and that, consequently, unless a house site can be brought within the ambit of Section 18, such house-site should be held to be property as to which title gels transferred to the Government under Section 3(b). Section 18 deals, in my opinion, with buildings wherever they may be situate, whether in the gramanatham or in ryoti lands or pannai lands or waste lands. Section 18 has no particular ap plication to buildings or house sites in a gramanatham. A building in a gramanatham (or Village habitation) is protected from transfer of title to the Government both under Section 18(1) of Madras Act XXVI of 1948 and under the Madras Land Encroachment Act (III of 1905). The title to a house site in a gramanatham is protected from transfer to Government by the operation of Madras Act III of 1905.
It is not necessary that in order that the policy underlying Madras Act XXVI of 1948 be completely given effect to, house-sites belonging to private individuals (that is persons other than the land holder) in a gramanatham, should be transferred to the Government. It is not part of the policy of the Act to transfer to the Government, land in which the proprietor had no interest at any time. Further, transfer of title of such house-sites to the Government would be virtually without payment of compensation because there would be no means of determining the part of the total compensation payable for the estate as a whole, which should be regarded as compensation paid for a few cents of house-sites in a hamlet of the village. Therefore, if there is any ambiguity in the Act, in relation to transfer of title as to a house site, such ambiguity should be resolved in favour of the owner, because no legislation should be held to be expropriatory in character if such an inference could possibly be avoided. I hold that Section 3(b) of Madras Act XXVI of 1948 does not have the effect of transferring to the Government title to a house-site within a gramanatham belonging to a person other than the land holder when the estate in which the house, site is situate is taken over under a notification issued under the Act.
26.Gramanatham has been defined in the Law Lexican as follows: Ground set apart on which the house of a village may be built Sec 16 M.L.T. 48 The above said judgment has been followed in the other judgments relied upon by the learned Senior counsel appearing for the appellant and therefore, when a property has been described as gramanatham, the land never vested with the Government and it belongs to the persons, who occupy and construct the building and any one who constructed the building in that property is entitled to claim right over the same and in this case, admittedly the first respondent trust has constructed a Mandapam and the door bearing Nos.1, 1A and 2 are assessed in the name of the first respondent and therefore, the first respondent is having title to the suit properties and hence, the first respondent is entitled to maintain the suit.
22.Further, it is not necessary that in a suit for injunction or for recovery of possession, the plaintiff shall also pray for declaration and it is enough if the plaintiff is able to prove his title to the suit properties, then the plaintiff is entitled to the relief for permanent injunction and for recovery of possession and in this case, the plaintiff/first respondent proved its title and right over the suit properties and therefore, even in the absence of any declaration of title, the plaintiff/first respondent is entitled to the relief of injunction and recovery of possession. Therefore, the substantial questions law Nos.1 and 2 are answered in favour of the first respondent and against the appellant.
23.In the result, the second appeal is dismissed. The judgments and decrees of the courts below are confirmed. No costs.
26.04.2012 Index;Yes.
Internet:Yes.
er R.S.RAMANATHAN.J er judgment made in S.A.No.261 of 2011 26.04.2012