Madras High Court
M.Subramaniam vs The Executive Officer on 9 March, 2007
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
In the High Court of Judicature at Madras
Dated:09.03.2007
Coram
The Honourable Mr.Justice A.C.ARUMUGAPERUMAL ADITYAN
Second Appeal No.670 OF 1997
1. M.Subramaniam
2. P.Kaliappan
3. V.Maruthachalam
4. M.Ramadass
5. R.Venkatachalam ..Appellants
Vs.
1. The Executive Officer,
Chinnavedampatti Town
Panchayat, chinnavedampatti
Coimbatore North Taluk,
Coimbatore
2. The District Collector,
Coimbatore District
Coimbatore ..Respondents
This second appeal is filed against the judgment and decree dated 20.12.1996 made in A.S.No.182 of 1994 on the file of the Court of First Additional District Judge-cum-Chief Judicial Magistrate, Coimbatore confirming the decree and Judgment in O.S.No.2236 of 1990 dated 13.01.1994 on the file of the Court of I Additional District Munsif, Coimbatore.
For Appellants : Mr.Palani Selvaraj
For Respondents : Mr.S.Mohammed Yousuf-R1
Mrs. R.Shanthi Rakkappan
Government Advocate(CS)-R2
JUDGMENT
This appeal has been preferred against the Judgment and decree in A.S.No.182 of 1994 on the file of the Court of I Additional District Judge, Coimbatore. The unsuccessful plaintiffs before the Courts below are the appellants herein.
2. The short facts in the plaint for the purpose of deciding this appeal sans irrelevant particulars are as follows:
The plaintiffs are the permanent residents of Chinnavedampatti. They belonged to Adi Dravida Community and the plaintiffs are the leaders and well-wishers of the said Adi Dravida Community. The suit has been filed in the representative capacity of the said community. The plaintiffs are having the temple called "Ramar Koil" which belonged to Adi Dravida Community exclusively. The said temple is being maintained and worshipped by Adi Dravida Community from time immemorial. Even as early as 6.7.1961 itself, the electricity connection in S.C.No.III of Chinnavedampatti was given to the suit temple. The plaintiffs are in possession and enjoyment of the suit property and they are managing the Ramar Temple situate in the suit property. Adjacent to this temple, there is vacant site about 12 cents. The said 12 cents is in possession and enjoyment of the plaintiffs. All the relationship rituals were being performed in the temple. The plaintiffs are using the said vacant site of 12 cents in performing the temple functions. The plaintiffs have also constructed two rooms in a portion at the corner of the said vacant site. Those two rooms are assigned by the first defendant as door Nos.72-C and D. The plaintiffs have proposed to construct a Kalyana Mandapam in the remaining vacant space, for better and convenient use of the people of the said community. The plaintiffs have also put up iron barbed fencing around the vacant site including the said two rooms. To show the physical features of the property, the plaintiffs have produced a rough sketch wherein door Nos.72-C and D on the vacant site have been marked as "STUV". Now the Government have taken steps to classify the suit vacant site as a Poramboke land. The first defendant without knowing the history of the suit property and the nearby Ramar temple is attempting to initiate proceedings to classify the land as "Poramboke". The defendants 1 and 2 have no right or interest over the plaint schedule property. On 11.8.1982, the third party people began to disturb the plaintiffs' possession and attempted to trespass into the suit property. The first plaintiff took criminal actions against such illegal acts of the said third party. A police complaint was also lodged by the first plaintiff on 11.8.1982. Hence the suit for injunction.
3. The second defenant has adopted the written statement filed by the first defendant which runs as follows:
The suit is not maintainable for want of notice under Section 80 CPC. The averments in the plaint that the plaintiffs are permanent residents of Chinnavedampatti Village and that a temple called Ramar Koil belonged to Adi Dravida Community and that the plaintififs are maintaining the temple and that the adjacent vacant space of 12 cents also belonged to the Adi Dravida Community and that they are using the same during the festival time and that the suit property has been fenced with iron barbed wire are all false to the knowledge of this defendant. The plaintiffs have no right or title in respect of 12 cents of vacant land lying adjacent to the said Ramar Koil. The plaintiffs have made an attempt to trespass into the said vacant land of 12 cents, and the said attempt of the plaintiffs was thwarted by the timely intervention of the Government. After having failed in all their attempts, the plaintiffs with an ulterior motive have chosen to file false suit with frivolous allegations. Chinnavedampatti Town Panchayat office has been constructed in G.S.No.365 in Athipalayam Road, wherein 50 cents of vacant space in and around the said building is in existence. The said vacant site belongs to the Government. The plaintiffs and their men are making hectic attempt to encroach 50 cents of land. Already appropriate action has been taken by the Government to prevent the plaintiffs and others to encroach the properties. Only to circumvent the law and with an aim to encroach upon this property, the plaintiffs have chosen to file this kind of frivolous suit,that too, against the real owners of the property. The plaintiffs are not using the vacant site for the purpose of temple festival from time immemorial as alleged in the plaint. The plaintiffs have no cause of action to file this suit. Hence the suit is liable to be dismissed in limine with costs.
4. On the above pleadings, the learned trial Judge has framed two issues for trial. Before the trial Court, on behalf of the plaintiffs, plaintiffs 1 and 2 were examined themselves as P.Ws 1 and 2 respectively and have marked Exs A1 to A12. No oral and documentary evidence let in on behalf of the defendants.
5. After going through, the oral and documentary evidence let in before the Trial Court, the learned trial Judge has come to a conclusion that the plaintiffs are not entitled to any relief asked much less an order of permanent injunction as prayed for in the suit against the Government and consequently, dismissed the suit. Aggrieved by the findings of the learned trial Judge, the plaintiffs have preferred an appeal in A.S.No. 182 of 1994 before the I Additional District Judge-cum- Chief Judicial Magistrate, Coimbatore. The first appellate Judge after scanning the evidence meticulously and after considering the rival submissions of the parties concerned, has ultimately took a concurrent view with the findings of the learned trial Judge had dismissed the appeal thereby confirming the decree and Judgment of the learned trial Judge. Hence the plaintiffs are before this Court by way of Second appeal.
6. The substantial questions of law involved in this appeal are " Whether the Courts are right in law in dismissing the suit by disagreeing the appellants main plea on the law of adverse possession by adducing as many as 12 Exhibits to show that they are and thepeople of Adi Dravida Community in Chinnavedampatti Village suit property for over several years?
2. Whether the Courts below are right in law in holding that the appellants have filed the suit on their individual capacity only when they obtained a specific order through court in I.A.No.1425 of 1990 to file the suit for an on behalf of the Adi Dravida community people in chinnavedampatti Village?"
7. Heard Mr.Palani Selvaraj, learned counsel appearing for the appellants and Mr. S.Mohammed Yousuf, learned counsel appearing for the first respondent and Mrs. R.Shanthi Rakkappan, Learned Government Advocate(CS) for the second respondent and considered their respective submissions.
8.The Points:
The learned counsel for the appellants would contend that both the trial Court as well as the first appellate Court have erroneously held that the suit is not maintainable for want of notice under Section 80 of CPC whereas along with the plaint, he has filed I.A.No.1425 of 1990 and after getting permission from the Court, the plaint was numbered. Under Section 80(2) of CPC only to get an order for an urgent or immediate relief against the Government or against any public officer, a suit can be instituted with the leave of the Court without serving any notice as required under Section 80(1) of CPC. But no interim relief can be granted without notice to the Government or public officer as the case may be . So taking shelter under Section 80 (2) of CPC, the learned counsel appearing for the appellants would contend that already Court has permitted him to file the suit without notice under Section 80 CPC. I am afraid that such an interpretation cannot be given to Section 80 of CPC. Under Section 80 of CPC, two months notice is necessary, for filing a suit against the Government or public officer. If the plaintiffs seek any urgent order from the Court then he can file the suit with an application for permission to file the same and even in that event, he will not be entitled to get any interim order without notice. Under such circumstances, I do not find any illegality or infirmity in the findings of the Courts below that the suit is bad for notice under Section 80 of C PC.
9. The next point for consideration in this appeal is that whether the plaintiffs have prescribed adverse possession to the suit property. Before the trial Court, the plaintiffs have produced electricity consumption receipts for the alleged two rooms bearing door Nos.72 C and D . Ex A1 is dated 18.7.1980. Ex A2 is dated 18.8.1976. These two receipts are the earliest receipts . But the suit was filed in the year 1990. To prescribe title by way of adverse possession against the Government, the plaintiffs must show that they are in continuous and uninterrupted possession of the suit property for more than thirity years. Both the Courts below have concurrently held that not even survey number to the plaint schedule property was given by the plaintiffs. If the plaintiffs claim that they have prescribed adverse possession then indirectly they admit that they are not the owners of the suit property and the defendants are the owners of the suit property. Under such circumstances, the plaintiffs must show some revenue records to substantiate their claim that they are in lawful possession and enjoyment of the suit property which is admittedly belonged to the Government.
10. The learned counsel appearing for the appellants at the fag end of his argument has produced G.O.NO.854 dated 30.12.2006 to show that if a person is in occupation in the Poramboke land for continuous period of 20 years, the Government can consider the possession and grant patta for the purpose of constructing a house. Basing on the above said G.O.(Ms)NO.854 Revenue(Nee.Mu) dated 30.12.2006, the learned counsel appearing for the appellants would contend that the plaintiffs are eligible to get patta for the plaint schedule property. If it is so, nothing prevented the plaintiffs to approach the Government for issuance of the patta in their favour. Whether the plaintiffs are entitled to get patta for the suit property, or not is the prerogative right of the Government in which at this stage , this Court cannot interfere with. The remedy open to the plaintiffs is to approach the Government on the basis of G.O.Ms.No.854 Revenue(Nee.Mu) Department dated 30.12.2006 and the Government is the authority to decide the matter. Under such circumstances, I do not find any reason to interfere with the well considered Judgment in A.S.No.182 of 1994 on the file of the first Additional District Judge-cum-Chief Judicial Magistrate, Coimbatore, which is neither illegal nor infirm to warrant any interference from this Court. Points are answered accordingly.
11. In fine, the appeal is dismisised confirming the decree and judgment in A.S.No.182 of 1994 on the file of the Court of I Additional District Judge-cum- Chief Judicial Magistrate, Coimbatore. In the circumstances of the case, there is no order as to costs.
To
1. The I Additional District Judge-cum-Chief Judicial Magistrate, Coimbatore
2. The District Munsif, Coimbatore Second Appeal No.670/1997