Madras High Court
Dr.M.P.S.Krishnan (Died) vs The State Of Tamil Nadu on 16 July, 2018
Author: M.Sundar
Bench: M.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.07.2018
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
S.A.(MD)No.325 of 2007
Dr.M.P.S.Krishnan (Died)
2.Manjulakrishnan
3.K.Bharathi
4.Aarthi K.Rao ... Appellants
Vs.
1.The State of Tamil Nadu,
through the Madurai District Collector,
Collectorate Campus,
Madurai.
2.The Thasildar,
Melur Taluk, Melur,
Madurai District. ... Respondents
[Appellants 2 to 4 are brought on record as Legal Heirs of deceased sole
appellant, vide order dated 22.06.2018, made in C.M.P.(MD)Nos.4379 to 4381 of
2018 in S.A.(MD)No.325 of 2007]
PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure Code,
against the Judgment and Decree dated 24.11.2006 made in A.S.No.51 of 2006,
on the file of the Principal District Judge, Madurai, reversing in part of
the Judgment and Decree dated 29.07.2004, made in O.S.No.278 of 2000, on the
file of the I Additional Sub Court, Madurai.
!For Appellants : Mr.V.Sitharanjandas
^For Respondents : Mr.C.Ramar,
Additional Government Pleader
:JUDGMENT
Six cents of land in Kasba Melur Village in Melur Taluk in Madurai District in Survey No.243/2B, is the subject matter of the instant Second Appeal and the same shall hereinafter be referred to as 'Suit Property' for the sake of convenience and brevity. To be noted, it is not in dispute that there is a superstructure standing on the suit property and that the same bears Door No.47A.
2. This Court deems it appropriate to extract the description of suit property as contained in the plaint and the same reads as follows:
'DESCRIPTION OF PROPERTY Madurai District, Melur Sub District, Melur Taluk, Kasba Melur Village within the limits of Melur Municipality site in Natham Survey No.243/2B measuring 0.06 cents with tiled building bearing Door No.47.A previous Ward No.8, present Ward No.12, electrification under service connection number C.997 with compound wall on the southern and eastern side under the metrict system the extent is 0.02.35.0 hectares (Town Survey No.3C Block 16).
Boundaries:
North by : Plaintiff's clinic and vacant site East by : Govt. Poromboke land South by : Pathway West by : Plaintiff's building bearing Door No.47/W8.'
3. On 27.03.2000, one Dr.M.B.S.Krishnan, Son of (Late) M.B.Srinivasa Rao, filed a suit in O.S.No.278 of 2000 on the file of 'First Additional Subordinate Judge's Court, Madurai', which shall hereinafter be referred to as 'trial Court' for convenience and clarity.
4. The aforesaid suit was laid with prayers for declaration and consequential injunction qua suit property. Usual residuary prayer and prayer for costs are also part of the prayers. For the sake of clarity and specificity, it may be necessary to mention that the prayer is for a declaration that the suit property belongs to the plaintiff, i.e., Dr.M.B.S.Krishnan, absolutely and exclusively and for a consequential permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the same. The defendants are two in number. First defendant is State of Tamil Nadu, represented by the Madurai District Collector and second defendant is the jurisdictional Thasildar, i.e., Thasildar, Melur Taluk, Melur.
5. Defendants entered appearance. Second defendant, i.e., jurisdictional Thasildar filed a written statement in May, 2000. This written statement was duly adopted by first defendant, i.e., State of Tamil Nadu, represented by Madurai District Collector.
6. It is not in dispute before this Court that revenue classification of suit property is 'Natham Kudiyiruppu'.
7. It is the case of the plaintiff that his father and thereafter, the plaintiff are in continuous possession and enjoyment of the suit property right from 1968. It is also his specific case that the plaintiff's father, (late) M.B.Srinivasa Rao, was originally in possession of the suit property for about 27 years, i.e., right from 1968 and thereafter, his father sold the possessory rights in the suit property to the plaintiff, vide a registered sale deed, dated 08.03.1995, which was marked as Ex.A3. It is also the further case of the plaintiff that his possession and enjoyment has been recognized in another civil Court proceedings, being O.S.No.64 of 1997, against third parties, which was decreed on 19.11.1998, vide Ex.A.13. Plaint is predicated on the ground that from 23.03.2000, the defendants and their men have been disputing the rights of the plaintiff qua suit property and have been attempting to trespass into the same. In other words, this is the cause of action for the suit. It is also averred in the plaint that a separate application is being taken out under Sub-Section (2) of Section 80 of 'Code of Civil Procedure, 1908,' (hereinafter referred to as 'CPC' for brevity) for dispensing with the issuance of statutory notice under Section 80 CPC, as the defendants are State, i.e., Government.
8. It is not in dispute that such an application was, in fact, taken out and Section 80 notice was, in fact, dispensed with.
9. Reverting to the written statement filed by second defendant, i.e., jurisdictional Thasildar and adopted by first defendant, it has been categorically averred therein that defendants are not disputing the rights of the plaintiff in the suit property. In fact, it has been averred in the written statement that the defendants are not interfering with the possession of the plaintiff qua suit property and therefore, there is no cause of action. This is articulated in paragraph No.11 of the written statement, which reads as follows:
'11.jhth brhj;jpy; thjpf;Fs;s chpikia ,e;jg; gpujpthjpfs; Ml;nrgid bra;ahj epiyikapYk;> thjpf;F jhth brhj;jpy; cs;s mDgtj;jpy; ,e;jg; gpujpthjpfs; vt;tpj ,ila{Wk; bra;ahj epiyikapYk; jhth gpuhJ jhf;fy; bra;jpUg;gJ rl;lg;go bry;yj;jf;fjpy;iy.'
10. With regard to the earlier civil suit, being O.S.No.64 of 1997 and the decree therein vide Ex.A13, it was contended that the same will not bind the defendants as they were not parties to the said suit.
11. In the aforesaid rival pleadings, the trial Court framed two issues. The two issues framed by the trial Court in the aforesaid rival pleadings are articulated in paragraph No.4 of the judgment of the trial Court and the same reads thus:
'4.,e;j tHf;fpy; jhf;fyhd tHf;Fiu> vjph;tHf;Fiu Mfpatw;wpd; mog;gilapy; fPH;f;fz;l vGtpdhf;fs; tidag;gl;ld:
1.thjp nfhhpa[s;s tpsk;g[ifg; ghpfhuk; mjd; bjhlh; ghpfhukhf epue;ju cWj;Jf; fl;lisg; ghpfhuk; fpilf;fj;jf;fjh?
2.ntW vd;d ghpfhuk;?'
12. Parties went to trial on the aforesaid issues. Plaintiff examined himself as PW1 and on the side of the defendants, one Soundara Pandian, whom this Court is informed is an Assistant in the jurisdictional Thasildar's office, was examined as DW1. As many as 38 documents were marked on the side of plaintiff, i.e., Ex.A1 to Ex.A38. On the side of the defendants, two documents, Ex.B1 and Ex.B2, were marked. To be noted, Ex.B1 is Re-survey and Re-settlement register extract and Ex.B2 is Adangal. Ex.B1 is dated 18.12.1998 and Ex.B2 is dated 30.12.1998.
13. After full contest, the trial Court decreed the suit as prayed for, vide judgment and decree dated 29.07.2004. A perusal of the reasons, for trial Court so decreeing the suit as prayed for, would reveal that the stated position of defendants in their written statement, about which this Court has discussed supra and the documents filed on behalf of the plaintiff, particularly, Exs.A12, A15 and A38, amongst other documents, have all weighed in with the trial Court for decreeing the suit as prayed for.
14. The defendants in the suit, who shall hereinafter collectively be referred to as 'State' for the sake of convenience and clarity, preferred a regular First Appeal under Section 96 CPC. This regular First Appeal is A.S.No.51 of 2006 and the same is on the file of 'District Judge's Court, Madurai', which shall hereinafter be referred to as 'First Appellate Court', for the sake of convenience and clarity.
15. In the said appeal, i.e., in the First Appellate Court, obviously, the sole plaintiff in the trial Court was arrayed as the lone respondent. The lone respondent in the First Appellate Court entered appearance and contested the First Appeal. After full contest and hearing, the First Appellate Court, vide judgment and decree dated 24.11.2006, partly allowed the appeal. The appeal being allowed partly in effect, means that the First Appellate Court has confirmed the injunction decree qua possession granted by the trial Court, but, has set aside the declaratory prayer granted by the trial Court, which is evident from a perusal of the judgment and decree of the First Appellate Court. To be noted, the three points for determination / consideration framed by the First Appellate Court, in accordance with its mandate under Order XLI Rule 31 CPC are articulated in paragraph No.4 of the judgment of First Appellate Court and the same reads as follows:
'4.,k;nky;KiwaPl;oy; jPh;t[ fhzg;glntz;oa gpur;ridfs;:
1.tHf;Fr; brhj;jpy; thjpf;F mDgtghj;jpak; Vw;gl;Ls;sjhff; TwtJ rhpah?
2.thjpf;F tHf;Fiuapy; nfhhpa[s;sJ nghy; tpsk;g[if kw;Wk; epue;ju cWj;Jf;fl;lis ghpfhuq;fs; fpilf;fj;jf;fJ vd tprhuiz ePjpkd;wk; Twpa[s;sJ rhpahdjh?
3.,k;nky;KiwaPL mDkjpf;fj;jf;fjh?'
16. A perusal of the judgment and decree of the First Appellate Court reveals that the First Appellate Court has relied on Ex.B1 to come to the conclusion that the suit property is Natham Kudiyiruppu and that is has been allotted to a Village Sangam. This is articulated by the First Appellate Court in paragraph No.9 of its judgment. That portion of paragraph No.9 of the judgment reads as follows:
'9. ...nky;KiwaPl;lhsh;fshd gpujpthjpfs; jug;gpy; jhf;fy; bra;ag;gl;Ls;s gp.rh.M.1 nkYhh; jhYfh hPrh;nt hPbrl;oy;bkd;l; gjpntl;od; efy; jhf;fy; bra;ag;gl;Ls;sjpy; mjpy; tHf;Fr; brhj;J ej;jk; g[wk;nghf;F vd;Wk;> mJ 24.09.79y; fpuhk rq;fj;jpw;F xJf;fPL bra;ag;gl;Ls;sJ vd;gJk; bjhpfpwJ...'
17. Be that as it may, the First Appellate Court has not disturbed the injunction decree qua possession with regard to the suit property granted by the trial Court. The stated position of the State with regard to possession of plaintiff has already been set out supra and as mentioned supra, it is articulated in paragraph No.11 of the written statement, which has been extracted and reproduced elsewhere supra in this judgment.
18. As against the aforesaid judgment and decree of the First Appellate Court, the instant Second Appeal has been preferred by the plaintiff in the trial Court, who shall, from this point of this judgment, be referred to as 'Appellant'. The two defendants are arrayed as respondents in the second appeal and they will continue to be referred to as 'State', for the sake of convenience and clarity.
19. This Second Appeal was filed on 04.04.2007 and notice regarding admission was issued on 11.04.2007.
20. In other words, this Second Appeal was not admitted.
21. Post notice in the Second Appeal, pending Second Appeal, the sole appellant died and his legal heirs have been brought on record as appellants 2, 3 and 4, respectively, who shall hereinafter be referred to as 'appellants' collectively.
22. Today, the Second Appeal is before this Court for final disposal. Mr.V.Sitharanjandas, learned Counsel is before this Court on behalf of appellants. Mr.C.Ramar, learned Additional Government Pleader is before this Court on behalf of State.
23. In the hearing today, learned Counsel for appellants took this Court through the stated position of State articulated in the written statement filed in trial Court. In the light of the stated position in the written statement, appellants are entitled to a decree as prayed for, was his specific say.
24. It is also his further say that First Appellate Court ought not to have allowed the appeal, though in part and disturbed the declaratory decree granted by trial Court, as the stated position of State remains unaltered.
25. It is also the further submission made by Mr.V.Sitharanjandas, learned Counsel for appellants that appellants have produced documents in abundance to establish their possession, more so, uninterrupted possession. Reference was taken to Ex.A12, dated 11.02.1997, wherein, the jurisdictional Thasildar has entered the possessory right of appellants' predecessor in the register concerned; Ex.A15, Village Administrative Officer's certificate dated 27.03.1997; and the Gazette publication of the same, being Ex.A38, dated 08.02.2000, where the same has been Gazetted. It was also pointed out that a civil Court decree, though in another suit, can always be pressed into service for asserting the title against another party also, subject, of course, to certain limitations.
26. Learned Additional Government Pleader appearing for State defended the judgment and decree of the First Appellate Court and submitted that the First Appellate Court was perfectly right in allowing the appeal in part. To be noted, with regard to the appeal being allowed only in part, State has not preferred any Second Appeal in this Court. In other words, injunction decree qua possession of suit property granted by trial Court and First Appellate Court has been given legal quietus by State. Under such circumstances, this Court carefully considered the pleadings, exhibits and judgments of the Courts below.
27. The appellants, as protagonists of this Second Appeal, have propounded and proposed six questions, which, according to the appellants, are substantial questions of law and which, according to the appellants, arise for consideration in the instant second appeal, from and out of the aforesaid factual matrix. The six questions propounded and proposed as substantial questions of law by the appellants / protagonists read as follows:
'SUBSTANTIAL QUESTION OF LAW
1.Whether the parties can lead evidence against their own pleadings?
2.Whether the parties are entitled to ignore their own pleadings and admissions made in the pleadings?
3.Whether the Courts can deliver judgment ignoring the admissions made in the pleadings?
4.Whether the Section 124 of the Limitation Act prohibits the parties from approaching the Court for the relief of adverse possession unless they are in possession of the property continuously for more than 30 years?
5.Whether the judgment and decree granted in a particular suit can be ignored simply by stating that the other party is not a party to the proceedings and such a judgment has no legal force and binding nature?
6.Is not the judgment of the civil Court has evidentiary value?'
28. In the light of the narrative supra and in the light of stated position of State that they are not disputing the possession of appellants and that they had not made any attempt to disturb the possession, which has been set out in paragraph No.11 of the written statement and which has been extracted supra, this Court is of the view that the aforesaid questions propounded and proposed as substantial questions of law do not arise for consideration in the instant second appeal.
29. However, it is not in dispute before this Court that revenue classification of suit property is Natham Kudiyiruppu. If it is not in dispute that revenue classification of suit property is Natham Kudiyiruppu, there can be no impediment in the appellants applying for a suitable patta in this regard. If the appellants apply for a suitable patta in this regard, said application of appellants shall be dealt with on its own merits, untrammeled and uninfluenced by this judgment and decree of this Court. However, it is made clear that the documents and pleadings in the Courts below, in the instant case, can be pressed into service by both appellants as well as State in deciding the application for patta, if the appellants chose to make such an application and if so advised.
30. With the aforesaid observations, this second appeal is disposed of, holding that no substantial question of law arises for consideration. Considering the nature of the matter and the factual matrix, the parties are left to bear their respective costs.
To
1.The Principal District Judge, Madurai.
2.The I Additional Subordinate Judge, Madurai.
3.The Section Officer, E.R.Section/V.R.Section, Madurai Bench of Madras High Court, Madurai..