Madras High Court
Seenuvasa Padayachi vs Naduveerapattu Arulmighu on 28 March, 2011
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:28.03.2011
Coram:
THE HONOURABLE MR.JUSTICE G.RAJASURIA
S.A.No.238 of 2011
and
M.P.No.1 of 2011
1. Seenuvasa Padayachi
2. G.Veerappan ... Appellants
vs.
1. Naduveerapattu Arulmighu
Kailasanathar Koil
Through its Managing Trusteee
T.Rajamani
East Street, Naduveerapattu
Cuddalore Taluk
2. Chinnathambi Padayachi. ... Respondents
This second appeal is filed against the judgement and decree dated 31.08.2010 passed by the learned Additional District Judge, Fast Track Court No.2, Cuddalore in A.S.No.2 of 2006 confirming the judgment and decree dated 23.12.1982 passed by the learned District Munsif, Cuddalore in O.S.No.867 of 1980.
For Appellants : Mr.R.Sunilkumar
For Respondents : Mr.R.Gururaj
JUDGMENT
This second appeal is filed by the defendants 1 and 2, inveighing the judgement and decree dated 31.08.2010 passed by the learned Additional District Judge, Fast Track Court No.2, Cuddalore in A.S.No.2 of 2006 confirming the judgment and decree dated 23.12.1982 passed by the learned District Munsif, Cuddalore in O.S.No.867 of 1980.
2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.
3. Compendiously and concisely, the relevant facts, absolutely necessary and germane for the disposal of this second appeal would run thus:
a. The plaintiff filed the suit seeking the following reliefs:
- to pass in favour of plaintiff and as against defendants and other Padayachi community of Naduveerapattu village a decree for permanent injunction restraining the defendants and other Padayachi community of Naduveerapattu village from entering upon the suit property and interfering with plaintiff's possession and enjoyment of the properties set out in Schedule II below and shown as ABCD in the plaint plan excluding the property occupied by Dharmaraja Temple with costs.
(extracted as such) b. The defendants filed the written statement resisting the suit.
c. Whereupon issues were framed and on the side of the plaintiff, one Sundara Mudaliar was examined as PW1 and Exs.A1 to A53 were marked. On the defendants' side, D1 examined himself as D.W.1 along with DW2 to 4 and Exs.B1 to B27 were got marked and the Court documents Exs.C1 and C2 were also marked.
d. Ultimately, the trial court decreed the suit as prayed for; as against which, appeal was filed only by D1, D2 and D3. Whereupon, the appellate court allowed the appeal and set aside the judgment and decree of the trial court.
e. Being aggrieved and dissatisfied with the same, the plaintiff preferred Second Appeal in S.A.No.777 of 1985 and this court vide its judgment dated 03.04.1998, while setting aside the judgment and decree of the first appellate court, remanded the matter back to the lower appellate court for fresh disposal of the same.
f. During the pendency of the appeal before the appellate court, it appears some other persons also wanted to get themselves impleaded but, it did not get fully fructified and it appears additional documents viz.,Exs.A54 to Ex.A61 were exhibited on the side of the plaintiff Ultimately, the appellate court dismissed the appeal, confirming the judgment and decree of the trial court dated 23.12.1982.
g. Challenging and impugning the judgments and decrees of both the courts below, the defendants 1 and 2 have preferred this second appeal on various grounds and also suggesting the following substantial questions of law:
1. Whether the courts did not err in decreeing the suit filed by the plaintiff when the competent authorities under the Tamil Nadu (Estate Abolition and Conversion into Ryotwari) Act, 1948 have refused patta to the suit schedule property holding that the land is not a private property which was never in exclusive possession of the plaintiff?
2. Whether the courts below did not err in decreeing the suit in the light of the settled position in law that the decision of the Officers and Tribunals under the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 regarding the character o f the land is final and cannot be questioned in a civil court?
3. Whether the courts below did not make a mistake by exceeding the perimeter in reappraising the settled issue ignoring the reason and the limited purpose of the order of remand made by this Hon'ble Court?
(extracted as such)
4. Heard both sides.
5. I would like to fumigate my mind with the following decisions of the Hon'ble Apex Court:
(i) (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], certain excerpts from it would run thus:
"19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements.
23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread."
and the following principles are found enunciated in the decision reported in (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL
24. . . .
(iii) The general rule is that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
(ii) 2008(4) SCALE 300 KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER.
(iii) 2009-1-L.W.1 STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL
6. As such, after hearing both sides, I am of the considered view that the following substantial questions of law could be framed for consideration in this second appeal?
1. Whether both the courts below were justified in granting injunction as prayed for without taking into consideration the facilities accorded in favour of the defendants as per the judgment dated 31.07.1943 passed in O.S.No.291 of 1939?
2. Whether there is any perversity or illegality in the rendering of the judgment by both the courts below?
7. The gist and kernel of the argument of the learned counsel for the defendants/appellants would run thus:
(i) The plaintiff was not at all entitled to exclusive use of the second schedule property, as it is a public property and day in and day out general public are thronging it and in such a case, both the courts below were not justified in granting injunction treating as though the plaintiff is in exclusive possession and enjoyment of the suit property.
(ii) The judgment and decree in O.S.No.291 of 1939 clearly contemplate that the defendants are having certain rights. However, both the courts below have not recognised even those rights accorded in favour of the defendants. On the other hand, they granted a blanket injunction disregarding the right of the defendants as well as the public in general, warranting interference in second appeal.
8. In a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the appellants/defendants, the learned counsel for the respondent/plaintiff would advance his argument, the pith and marrow of them would run thus:
a) The judgments and decrees of both the courts below would clearly exemplify and expatiate that the court in the earlier litigation clearly recognised the extent to which the temple could exercise right over the property and had also given right to use the property, subject to the right of usage over the property by the defendants and that too, to a limited extent. The contention on the side of the defendants that the general public do have the right to use the property as a public property, is neither here nor there.
b) Pendente lite, so to say, in the long litigation, several changes took place, which necessitated the plaintiff to file various suit as against the trespassers as well as the Government and the HR & CE Department and whereupon, the courts in each proceedings, held in favour of the plaintiff recognising their exclusive right of possession and enjoyment and in such a case, it may not be open for the defendants to contend that the suit second schedule property is a public property and it should be made available for the public.
9. At the outset itself, I would like to point out that the judgment and decree dated 31.07.1943 passed in O.S.No.291 of 1939 is of paramount importance to decide this case for the reason that even though subsequently so many proceedings occurred between the temple and the public authorities, ultimately, the public authorities held that all rights of the temple over the property are subject to the conditions imposed virtually in the judgment and decree dated 31.07.1943 in O.S.No.291 of 1939.
10. I harp back to the prayer in the plaint. It is a simple suit for injunction and obviously there is no prayer for declaration for which, the learned counsel for the plaintiff would appropriately and appositely, correctly and legally argue that there was no necessity to pray for declaration because already in the previous litigation, the rights of the parties were determined. As such, the plaintiff and the defendants are bound by the findings and the decree in Ex.A1. The plaintiff also after relying on Ex.A1 cannot claim more right in this suit de hors Ex.A1.
11. According to the learned counsel for the plaintiff, the previous litigation emerged between the same parties and curiously throwing to winds the aforesaid judgment and decree in Ex.A1, the defendants attempted to commit acts of trespass by challenging and impugning the right of the plaintiff to enjoy the property, which necessitated the plaintiff to file the present suit over which this second appeal has emerged.
12. No doubt, after the said judgment and decree of the year 1943 as pointed out by the learned counsel for the defendants, there were certain proceedings initiated under the Tamil Nadu Act 26 of 1948 and Act 26 of 1963 and that necessitated the defendants to view that the property is a public property and the plaintiff cannot simply exercise exclusive right over it, for which, the learned counsel for the appellants/defendants would submit that the subject matter of the suit property is not at all an Inam land and those two enactments referred to supra are not applicable to the facts and circumstances of this case.
13. For the purpose of completion, I would like to refer to the following Exhibits:
Ex.B1 Xerox copy of the Order passed by the Settlement Officer, Party No.V, Madras dated 17.01.1961.
Ex.B2- Certified copy of the Panchayatars judgment dated 03.07.1836.
Ex.B3- Certified copy of the order passed by the Election Commissioner, Cuddalore in O.P.No.62 of 1957 dated 17.03.1958.
Ex.B4- Xerox copy of the order passed by the Settlement Officer, Villupuram dated 10.03.1960.
Ex.B5- Xerox copy of the order passed by the Director of Settlement, Chepauk, Madras-5 in R.P.No.69/61 dated 16.08.1961.
Ex.B6- Xerox copy of the order passed by the Commissioner of Land and Revenue, Civil Supplies and Settlement, Board of Revenue (Settlement of Estates) Chepauk, Madras-5 dated 31.01.1962.
Ex.B7 Order passed by the Commissioner for Land Revenue, Civil Supplies and Settlements, Board of Revenue [Settlement of Estates], Chepauk, Madras-5 dated 06.01.1962.
and Ex.A53 Order passed by the Director of Settlement, Madras dated 03.05.1962.
These are all proceedings emerged under those two acts. As correctly, pointed out by the learned counsel for the plaintiff, the said land was categorised in Ex.B7 and Ex.A53 and the authorities recognised the right of the plaintiff to have possession and enjoyment subject to the rights virtually conferred on the defendants. In such a case, both the courts below should have adverted to those facts and granted injunction subject to the conditions found envisaged in the previous judgment and more specifically in Ex.A1 the decree dated 31.07.1943 in O.S.No.291 of 1939.
14. The contention on the side of the defendants that it should be treated as a public property, in my opinion, would tantamount to neglecting the said judgment and decree, which was passed against the very same defendants. The scope of the present suit cannot be lost sight of as it is focussed only as against Padayachi community in view of they having disputed the rights of the plaintiff over the suit property.
15. The learned counsel for the defendants would submit that buses are plying across the said II schedule of the suit property and there is an overhead tank, which the people are using and in such a case, it would be preposterous to view the said land of the public as the exclusive land of the plaintiff.
16. I recollect and call up the maxim ubi jus ibi remedium Where there is a right, there is a remedy and simply because as the learned counsel for the defendants puts it that the land is vacant and some public, are passing through it day in and day out, the court cannot throw to winds, the said judgment and decree in Ex.A1 already passed by the learned District Munsif Cuddalore in O.S.No.291 of 1939. Both the courts below, even though adverted to the exhibits, they have not chosen to interpret those documents in the proper perspective and render their judgments ultimately granting appropriate relief to both the parties.
17. The learned counsel for the plaintiff inviting the attention of this court to the various developments, which took place during the pendency of the litigation, would develop his argument that those documentary evidence filed before the court would exemplify and demonstrate that the temple alone is having exclusive right over the suit properties. In this connection, he would also cite the decision of the Hon'ble Apex Court reported in AIR 1975 SC 1409 [ Pasupuleti Venkateswarlu vs. The Motor and General Traders].
18. No doubt, in certain circumstances, subsequent events can be taken note of, for the purpose of moulding the relief. During the long longevity of the litigation, it is, but natural to come across various changes sprouting. But all those things should be treated only as the ones emerged pendente lite and doctrine of lis pendens would be attracted. Rights existed as on the date of the suit alone should necessarily be taken into consideration for determining the reliefs to which the parties are entitled to. Accordingly, if viewed, the documents filed before the lower court, would display and demonstrate that the said judgment and decree in Ex.A1 and the revenue officials orders, viz., Exs.B1 to B7 and Ex.A53 are all germane for deciding the lis. Neither of the parties would venture to argue before me that the judgment and the decree in Ex.A1 passed by the learned District Munsif, Cuddalore in O.S.No.291 of 1939 should completely be taken as got extinguished or subsequently eroded by various other developments and even if taken as argued by them, it was not for anything but to be rejected in view of the ratiocination adhered to by this court in this judgment. The judgement and decree of a court cannot be taken as the ones fell into desuetude when in subsequent proceedings the public officials reiterated the rights found granted under the said previous judgment and decree. The revenue authorities, under those documents, viz., Exs.B1 to B7 and Ex.A53, while passing the proceedings invariably referred to the legal proceedings and also the pre-existing rights of the defendants. Neither the plaintiff nor the defendants could try to claim any more right over and above the ones granted in favour of them as per Ex.A1.
19. This Court in S.A.No.777 of 1985 did not decide the rights of parties but only remanded the matter to the lower appellate court for fresh disposal so as to consider all the relevant materials, which were not considered earlier.
20. The learned counsel for the defendants would stress upon the fact that the evidence available on record bespeak that after the earlier judgment and Ex.A1 the decree concerned, the general public use the second schedule of property as public property and not only the Padayachi community people are using it in a limited manner as contemplated under Ex.A1 generally throughout the year for all purposes as public property.
21. Even for a moment, I cannot countenance such an argument as a valid one for the reason that the Government itself never treated the second schedule of the property as the property under its possession and it was thrown open for the public de hors Ex.A1. One cannot approbate and reprobate.
22. I harp back to the maxim qui approbat non reprobat He who approbates does not reprobate, [i.e. He cannot both accept and reject the same thing].
23. The documents issued by the public officers referred to supra would unambiguously and unequivocally show that possession of the second schedule of the property shall continue to be with the plaintiff subject to the usages virtually as contemplated under Ex.A1. Both the courts below gave finding of fact against the defendants. This court, being the second appellate court cannot interfere with the finding of facts rendered by both the courts below, because those are not perverse or ex facie and prima facie illegal.
24. Hence, I am having no hesitation in holding that the aforesaid judgment and decree in Ex.A1 should be held as still in force in letter and spirit. The perusal of the documents would exemplify and expatiate, detail and delineate that the corpus possessionis over the suit property is with the plaintiff and the defendants could only have certain rights as found envisaged in Ex.A1 dated 31.07.1943. Both the courts also did not in any manner hold that after the passing of the earlier judgment and decree as in Ex.A1, the plaintiff failed to exercise its right contemplated under the said judgment and decree.
25. As such, I could see considerable force in the submission made by both sides that the said judgment and decree in Ex.A1 is still having life and it has to be enforced in letter and spirit also.
26. The learned counsel for the plaintiff would rely on the following exhibits, viz.Exs.A54 to A61, so to say, the judgments and decrees obtained as against the HR & CE Department as well as the Government. No doubt, those are all judgements in personam and the defendants were not parties to those proceedings. I need not ponder over those points, in view of my discussion supra.
27. I would like to extract here under the relevant portion of Ex.B7 the order dated 06.01.1962 passed by the Commissioner for Land Revenue, Civil Supplies and Settlements, Board of Revenue [Settlement of Estates], Chepauk, Madras-5.
"4. The lands were registered as "tope poramboke" in the survey of 1919, conducted by the landholder. From then on till the present Settlement operations (i.e. For over 40 years), the registry of the lands has continued to be "tope poramboke". Though the temple now claims full ownership of the lands and ryotwari patta, it did not make any claim for ryoti patta from the landholder during the 40 years subsequent to the survey of 1919. The temple did not pay any rent at any time to the landholder in respect of these lands, nor were the lands included in the holding by the landholder. In fact, the temple appears to have denied in some of the litigations, that the landholder had any rights in respect of the lands. It is also clear that there are rights enjoyed by others in respect of some at least of these lands. The fact that for nearly 1 = centuries, the temple has been raising trees on the land and enjoying their usufruct, does not necessarily entitle it to ryotwari patta under section 11 of the Estates Abolition Act in view of the special facts that are on record, including the various litigations, and the rights enjoyed by other parties. The claim conceded by the various courts seem to be only the right of the temple to enjoy the usufructs of the trees. In the judgment and decree in O.S.No.291/39 of the District Munsif, Cuddalore there is mention of the 'ownership' of the temple, but it is significant firstly that the landholder was not a party to that suit, and secondly that it was definitely stated that the lands were all along subjected to various forms of enjoyment by the entire public or (in some cases) the Padayachi community. The term 'ownership' cannot connote within the scope of the Estates Land Act, in the absence of a prior finding as to whether the land is 'ryoti' land or not. This is a case where the best course will be to allow the old registry as 'tope poramboke' to continue subject to the preservation in tack of the various rights enjoyed so far by the various parties."
(emphasis supplied) and also the subsequent order as in Ex.A53 passed by the Director of Settlements, Madras-5 dated 03.05.1962 following the aforesaid order of the Commissioner for Land Revenue, Civil Supplies and Settlements is extracted here under:
"Order: In pursuance of the orders passed in the Board's reference cited, the Director of Settlements, Madras issues the following direction under Section 19(A) of the Abolition Act, 1948. Shri. Kailasanathar Temple at Naduveerapattu is allowed to continue to be in possession of the lands mentioned in the schedule to this order and enjoy the usufructs of the trees on these lands subject to the payment of the appropriate taram assessment (which will be determined by the Special Assistant Settlement Officer, Chingleput) commencing from fasli year in which the estate was taken over; and subject to the further condition that the rights enjoyed by the entire public or sections thereof and established by custom or in legal proceedings will be continued to be enjoyed by them without any curtailment. The temple is also allowed to have the right to look after the existing trees and to plant new trees without interference to the exercise of the rights allowed to the public."
(emphasis supplied)
28. The learned counsel for the plaintiff would cite the decision of the Hon'ble Apex Court reported in 1998(2) SCC 642 [ Sayyed Ali and others vs. A.P.Wakf Board, Hyderabad and others] and develop his argument that orders passed by the revenue authorities ignoring the court order regarding title, would have no effect. No quarrel could be had over such a proposition. Here, the revenue authorities have not in any manner belittled or slighted, the earlier judgment and decree, in fact they recognised it and those authorities/proceedings/ orders were not set aside by any other proceedings also. The present suit over which the second appeal has arisen is not one for declaration of plaintiff's absolute ownership over the entire suit property but it is only for injunction.
29. Hence, I am of the considered view that it is just and necessary to extract here under the decreetal portion of the decree passed in O.S.No.291 of 1939:
"1. that it is hereby declared that the plaintiff is the owner of the plot marked EFGH in Exhibit III (Plan) attached hereto, with the two arasa trees standing on it, and also of the entire portion marked A,B,C,D with the exception of the Dharmaraja Koil, the Mariamman Koil and the flower garden, all of which are marked II in Exhibits III, together with the trees standing thereon;
2. that the defendants 2 to 4, 7 to 9 and 11 to 18 and other padayachis represented by them are hereby restrained from entering upon the aforesaid properties, except for the purposes specified here under, and also from cutting or removing the Arasa trees of the branches of trees, the exceptions aforesaid being
a) members of all communities are entitled to weave in Plot 1,
b) the Padayachis are entitled to perform the Utsavam of the Dharmaraja Koil in that portion of Plot II, which is to the south of an east to west line drawn from the northern limit on the Mariammankoil and the southern limit of the flower garden to the north of the Mariamman Koil, and to do so they are entitled to put up an Aravanmedai and exercise other forms of enjoyment.
c) the Padayachis are entitled to bathe in the tank in plot IV before the fire-walking Utsavam adn stay there till the Utsavam commences; they have got no other right there in or to the fallen twigs or branches of the Arasa trees;
3. that the defendants 2 to 4, 7 to 9 and 11 to 18 do pay for the plaintiff a sum of Rs.143-14-0 or its costs of this suit and defendants 2 to 4, 7, 9 and 11 do bear their own costs Rs.30/- and 2nd defendant do bear his own costs Rs.25/-."
However, I would like to point out that in the clause 2(c ) of the decree extracted supra, reference is to the effect that only Padayachi people are entitled to bath in the tank before fire walking Utsavam, however, I am of the considered view that after commencement of the Indian Constitution, restricting only a particular community to take bath before fire walking cannot be countenanced as the one in commemorate and consonance with the principles enshrined in the Indian Constitution. Hence, the term "Padayachi" there in clause 2(c ) shall be replaced by the term "public".
30. Accordingly, I am of the considered view that even though both the courts below dealt with the matter, ultimately, they wrongly granted a blanket injunction in favour of the plaintiff, ignoring the rights, which are found conferred under Ex.A1.
31. Hence, the substantial question of law Nos.1 and 2 are decided to the effect that the plaintiff is entitled to permanent injunction, subject to to the terms and conditions as contained in Ex.A1, which shall be read into the present decree and be treated as part and parcel of the decree dated 31.07.1943 passed in O.S.No.291 of 1939.
32. With the above direction, this second appeal is disposed of. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.
vj2 To
1. The Additional District Judge, Fast Track Court No.2, Cuddalore
2. The District Munsif, Cuddalore