Madras High Court
Ramasamy vs Baluchamy ... 1St on 31 July, 2012
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 31/07/2012 CORAM THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI S.A.(MD)No.1233 of 2008 Ramasamy S/o.Sethuraman, A dumb and deaf, rep. by his mother and Guardian Panju, Karukudi Village, Ramanthapuram Taluk & District. ... Plaintiff/1st respondent/Appellant Vs 1.Baluchamy ... 1st respondent/appellant/3rd defendant 2.The State of Tamil Nadu rep. by the District Collector of Ramathapuram. 3.The Tahsildar, Taluk Office, Vandikara Steet, Ramathapuram. ... Respondents 2 & 3/Respondents 2 & 3/ Defendants 1 & 2 PRAYER Second appeal is filed under Section 100 of C.P.C, against the judgment and decree, dated 10.01.2008 made in A.S.No.57 of 2007 on the file of the Subordinate Judge, Ramanathapuram, reversing the Judgment and decree, dated 30.03.2007, made in O.S.No.122 of 2002 on the file of the learned District Munsif, Ramanathapuram. !For appellant ... Mr.V.Sitharanjandas ^For 1st respondent ... Mr.S.Visvalingam For respondents 2 & 3 ... Mr.T.R.Janarthanam, Spl.G.P. :JUDGMENT
The unsuccessful plaintiff is the appellant herein. The appeal is filed against the judgment and decree made in A.S.No.57 of 2007 on the file of the Sub Court, Ramanathapuram, reversing the judgment and decree made in O.S.No.122 of 2002 on the file of the District Munsif Court, Ramanthapuram.
2. The plaintiff / appellant instituted the suit for declaration of his title and for consequential injunction restraining the defendants from any manner interfering with the plaintiff's peaceful possession and enjoyment of the suit property described in the plaint plan as "CGHIJEDC" measuring north south 5 feet, east west 38 feet forming part of larger extent of 1069 square feet equivalent to 02.45 cents in old Natham Survey No.72/4 and new Natham Survey No.376/54, Sarukudi Village, Ramanthapuram Taluk. The suit property referred to as "CGHIJEDC" in Ex.A1 plaint plan is, according to the plaintiff, forming part of the property purchased by the plaintiff under Ex.A2 from PW2 Ramasamy and the same is situated in the front portion of the plaintiff's house and is being used as access to reach north south road on the eastern side and to reach the Kanmoi bund on the western side and the same is sought to be interfered with by the third defendant, who is owning his property on the western and northern side of the plaintiff's house.
3.The claim of the plaintiff is seriously opposed by the defendants 1 & 2, Revenue Officials and by the third defendant individual by denying the classification of the property. According to the defendants 1 to 3, the same is subdivided as S.No.376/54 and is classified as pathway and the suit property has been used as pathway not only by the plaintiff and the third defendant, but also by the residents of the eastern and western side to reach north south road on the eastern side and also kanmoi on the western side and the plaintiff has no independent right over the same.
4.On the basis of the above pleadings, the trial Court framed the following issues for its determination in the suit :
1.thjp gpuhjpy; nfhhpa[s;sJ nghy; tpsk;g[if ghpfhuk; bgwj; jFjp cilatuh>
2.thjp gpuhjpy; nfhhpa[s;sJ nghy; epue;ju cWj;Jf; fl;lis ghpfhuk; bgwj; jFjpa[ilatuh> 3.2 kw;Wk; 3k; gpujpthjp TwtJnghy; jhthr; brhj;J muRf;Fg; ghj;jpakhd g[wk;nghf;F ghij vd;gJ rhpah>
4.gpuhjpy; TwtJnghy; ,t;tHf;F js;Sgo bra;a ntz;Lkh>
5.vg;ghpfhuk; thjpf;F?
5.The parties have also in support of their respective claim examined the guardian of the plaintiff and their vendor and Village Administrative Officer of the concerned village and the third defendant as PW1 & PW2 and DW1 & DW2 and produced Exs.A1 to A3 and Exs.B1 to B7 documents on both sides. The report and plan of the Advocate Commissioner, who visited the property during trial, are received as Exs.C1 & C2. The trial Court, on the basis of the available evidence, arrived at a conclusion that the suit property in Survey No.376/54 and the plaintiff's property in S.No.376/53 lying in one single block and the same belonged to the plaintiff's predecessor in title and thereafter the plaintiff and the same has been in exclusive possession and enjoyment of the plaintiff and the classification of the land in S.No.376/54 as pathway is made by the revenue authority without giving any notice to the plaintiff's predecessors in title and to the plaintiff and without holding any enquiry and the defendants are to be restrained from interfering with the plaintiff's peaceful possession and enjoyment of the same and decreed the suit as prayed for.
6.Aggrieved against the same, the third defendant preferred A.S.No.57/2007 not only against the plaintiff but also the defendants 1 & 2. The lower appellate Court found that the property in dispute remains pathway - natham and the plaintiff's vendor and the plaintiff encroached upon the same and annexed it with their house site and the same does not form part of S.No.376/53, but subdivided as S.No.376/54, as such the plaintiff, who is the encroacher, cannot claim any title over the same and the defendants 1 & 2/Revenue Officials hence shall be at liberty to initiate steps to recover possession from the plaintiff, after holding due enquiry and modified the judgment and decree of the trial Court to that extent. Hence, the present second appeal by the plaintiff before this Court.
7. The Second appeal is admitted on the following substantial questions of law:
"(a)Is not the Lower Appellate Court exceeded its jurisdiction by granting a decree of ejectment against the plaintiff in a suit for declaration and permanent injunction filed by him?
(b)Whether the appeal filed by a party is maintainable especially when he has no independent claim but claims right through some other party who has accepted the decree of the trial Court by not filing any appeal?
(c)Whether the Courts below can ignore the well known principle that in Gramanatham the title vests with the person who is in occupation as laid down in various decisions by the Hon'ble High Court?"
8.Heard the rival submissions made on both sides.
9.Before going into the finding rendered by the lower Court on merits, the first objection to be considered herein is the maintainability of the first appeal by the third defendant in the absence of any independent appeal filed by the defendants 1 & 2/Revenue Officials. As already referred to, the suit property is comprised in Old Natham Survey No.72/4 and New Natham Survey No.376/54 and is classified as Grama Natham. It is well settled legal principle that Grama Natham does not vest with the Government, but vests with the individual in the occupation of the same. The defendants 1 & 2, who are the Revenue Officials and who seriously contested the plaintiff's claim on the ground that the suit property is not Grama Natham but is classified as Sarkar Pathway Promboke, did not prefer any appeal questioning the correctness of the trial Court finding regarding the classification of the land as Grama Natham. The finding of the trial Court regarding the person, who is in possession and enjoyment of the same and the manner of the enjoyment of the same, is questioned by the third defendant by way of regular appeal. The lower appellate Court, having accepted the third defendant's contention in this regard, set aside the declaratory relief granted in favour of the plaintiff with further liberty given to the defendants 1 & 2, who did not prefer any appeal against judgment and decree of the trial court, to initiate proceedings to recover possession of the suit property from the plaintiff. It is contended before this Court by the learned counsel for the plaintiff/appellant that the very appeal filed by the third defendant, in the absence of any independent appeal by the defendants 1 & 2, Revenue Officials, is not maintainable and any judgment and decree granted in the same is without jurisdiction and the finding rendered by the lower appellate court in the appeal which is not maintainable is null and void and non est in the eye of law.
10. This Court does not find any merit in such argument advanced on the side of the appellant. It may be true that the defendants 1 & 2 in the suit who seriously contested the plaintiff's claim did not prefer any independent appeal against the judgment and decree of the trial Court. But, the appeal filed by the third defendant is also contested by the defendants 2 & 3 as the respondents 2 & 3 therein. Even otherwise, the finding rendered in favour the appellant/3rd defendant and Government/defendants 2 & 3 can be held to be rendered in exercise of power vested upon the appellate Court under Order 41 Rule 33 C.P.C. The power of the appellate Court is categorically laid down by Hon'ble Supreme Court in the judgment reported in AIR 1965 SCC 1874 (Nirmala Bala Vs. Balai Chand Ghose) as follows;
"It is true that Order 41 Rule 33, is expressed in terms which are wide, but it has to be applied with discretion and to cases where interference in favour of the appellant necessitates, interference also with a decree which has by acceptance or acquiescence become final, so as to enable the Court to adjust the rights of the parties. If the appellate Court reaches a conclusion which is inconsistent with that of the Court appealed from and in adjusting the right claimed by the appellant it is found necessary to grant relief to a person who has not appealed, the power under Order 41 Rule 33 may properly be invoked"
11. As both the defendants 1 & 2 and the third defendant oppose the claim of the plaintiff on the same ground that suit property in pathai poromboke and meant for communal purpose for the benefit of the public, the appeal filed by the third defendant, who claims one such right to use the same as pathway to reach east west common pathway on the eastern side and kanmai on the western side is legally maintainable as such the judgment reported in 2002 (5) CTC 197 Rajamani Nadar 7 others Vs.Subbulakshmi and 4 others and others is not applicable to the facts of the present case and the objection regarding the maintainability of the appeal filed by the third defendant and the validity of the finding rendered by the lower appellate Court in such appeal cannot be questioned on this ground.
12. On facts, the plaintiff claims title and consequential right of free enjoyment of the same on the basis of Ex.A2 sale deed dated 26.4.2002 executed by PW2 Ramapandian in favour of the plaintiff Ramasamy. Before going into the right of the plaintiff the classification of the land is to be necessarily considered. While the trial Court accepted the classification of the land as grama natham and decided the claim of the plaintiff on that basis, the lower appellate Court on the basis of the entry in A register accepted the same to be road promboke. It is not in dispute that originally the disputed portion along with the remaining extent which was admittedly belonging to the plaintiff's father and third defendant comprised in Natham S.No.72/4. The same is renumbered as 376/53 and Survey No. 376/53 is further subdivided and the suit disputed portion 'CGHIJEDC' is subdivided as 376/53 and 376/54.
13. This Sub Division of Survey No. 376/53 as 376/53 and 376/54 and this classification of 376/54 as Pathai Poramboke is also entered in Ex.B1 field map and Exs.B2 to B.4 Natham Nila Vari Thittam Adangal Register Extracts. The entry made in Ex.B2 to B4 reveals that it is made as per the order dated 28.07.2003. It is sought to be argued by the learned counsel for the appellant that the Sub Division and re-classification of the suit property as mentioned in Ex.B1 to B4 made during the pendency of the suit is not binding on the plaintiff. This Court is not inclined to accept such contention for the simple reason that the Sub Division of the suit property as Survey No. 376/54 and re-classification of the same as Pathai Poramboke by the defendants/revenue officials is mentioned even in the plaint filed during December 2002. As a matter of fact, the suit property is in the suit schedule referred to as bearing Survey No. 376/54 the same will lead to an inference that the classification of the land as Pathai Poramboke and Sub Division of the suit property as Survey No.376/54 is not effected before the institution of the suit.
14.The suit property is admittedly in the occupation of the plaintiff. The plaintiff has put up a wall around the suit portion and put up shed much before filing of the suit and has been using the suit property as vacant portion along with plaintiff's father's house on the northern side in the Survey No. 376/52 and the property on southern side Suvey No. 376/53. It is admitted in paragraph No.2 at page No.3 of the written statement filed by the defendants/revenue officials that the plaintiff has encroached upon the suit extent and has been in occupation of the same by putting up compound wall three years before. The third defendant has also in his written statement admitted that the disputed suit extent is on the date of suit in the occupation of the plaintiff, who put up construction in the same and such construction according to the third defendant is causing interference to others in using the same as common pathway. Thus, the admitted case is that the disputed portion is in occupation of the plaintiff and he has been using the same by putting up construction in the same.
15. The plaintiff has purchased the property under Ex.A2 Sale Deed dated 24.06.2002 executed by P.W.2 Ramapandi in favour of the plaintiff eight months prior to the institution of the suit. The subject matter of Ex.A2 sale deed and Ex.A3 patta is vacant site of an extent 1069 sq. feet equivalent to 2.45 cents in Natham Survey No.72/4 and 00.098.0 sq metre in New Natham Survey No.376/53 respectively. The reverse page of Ex.A.2 reveals that the entire portion of South of Survey No. 376/51 is in 376/53. The sketch available in EX.A3 and the measurement given in EX.A.2 and the description of the property in Ex.A.1 rough plan would reveal that the suit property CGHIJEDC vacant site the south of Survey No. 376/51 was originally comprised in 376/53 which is Natham Survey and the same is later on to be classified as Pathai Poramboke and subdivided as 376/54.
15a.The mother of the plaintiff and his vendor were examined as P.W.1 and P.W.2. P.W.2-Vendor has in his evidence deposed about the nature of the property, origin of title, manner of enjoyment of the same etc. It is categorically deposed by him that the property was in their possession and enjoyment as backyard and by putting up construction. It is strongly denied by him that the same is at any point of time, enjoyed as common pathway by other villagers including that of the third defendant. Ex.A.2 is the provisional patta issued in the name of P.W.2 for the cite measuring 00.0.98.0 in old Natham Suvey No. 72/4 part corresponding new Natham Survey No. 376/53.
16. It is admitted by P.W.1 who is then Village Administrative Officer of Kamanur Village that Survey No. 376/54 was forming part of Natham Suvey No. 72/4 and the same is not classified as Pathai Poramboke before Natham Survey. No document was produced on the cite of the defendants 1 and 2 regarding classification of the land before the same is re-classified as Pathai Poramboke. The failure on the part of the defendants 1 and 2 to produce any revenue record regarding classification of the land before Natham Survey if viewed in the light of the admission of D.W.1 then Village Administrative Officer that it found part of Natham Survey No.72/4 and in the light of Ex.A2 it is likely to lead to an inference that the same is originally part of Grama Natham and the same is subsequently classified as Pathai Poramboke. It is also to be noted herein that exact point of time at which the land is classified as Pathai Poramboke is not explained by the defendants. It is also not explained that such re- classification is after giving notice to the original land holder i.e. P.W.2 Ramapandi who is the plaintiff's vendor and after due enquiry in this regard.
17. The legal position is well settled that Grama Natham does not vest with the Government but vests with the individual who is in occupation of the land. As already referred to the plaintiff is admittedly in occupation of the land in dispute. In sub division 376/54 has been in enjoyment along with the house property belonging to the father who encroached on the same by putting up compound wall inside the same. Except the evidence of defendants 1 and 2, no other evidence is available to show that the disputed extent was much before Ex.A.2 Sale Deed being used as common pathway by the villagers to reach North South common road on the eastern side and Kanmai on the western side. When it was forming part of Karanur Village and when it does not vest with the Government, re-classification of the same as pathway and sub-division of the same the Government is without any authority. D.W.1 has also categorically admitted that the plaintiff has not been, in the revenue records, treated as encroacher in the land in question and no proceedings under the Land Encroachment Act is initiated against the plaintiff.
18. The legal principles that the land being classified as grama natham never vest with the Government, nor they could interfere with the peaceful possession and enjoyment of the land nor they could take action against any encroachment are laid down in the following judgments cited herein (i)1998 3 LW 603 A.K.Thillaivanan and A.K.Dayalan V. District Collector, Chengai, Anna District;
(ii)2004 2 MLJ 708 Executive officer, Kadathur Town Panchayat V. V.Swaminathan;
(iii) 2010 3 MLJ 372 A.Srinivasan V. Tahsildar, Egmore and (iv)2012 1 MLJ 369 Division Bench Dharmapura Adhinam Mutt V. Raghavan and another.
19.As such, mere classification of the land as pathai poramboke in nathan nilavari thittam adangal extract will not in the present case confer any title upon the Government, the land being grama natham in the occupation of the plaintiff on the failure of the Government to produce any oral and documentary evidence, the finding of the lower appellate court that the suit property is pathai poramboke vesting with the Government and the Government is entitled to initiate action under land Encroachment Act is legally and factually unsustainable.
20The substantial questions of law are hence answered in favour of the plaintiff and the judgment and decree of the lower Appellate Court deserves interference and the judgment and decree of the trial court deserves to be restored.
21. In the result, the Second Appeal stands allowed by setting aside the judgment and decree of the lower Appellate Court and by restoring the judgment and decree of the trial court.
ses To,
1.The court of the Subordinate Judge, Ramanathapuram.
2.The court of the District Munsif, Ramanathapuram.