Madras High Court
Bishop Of Thanjavur Diocese vs Savari Nayagam on 5 June, 2014
Author: T.Mathivanan
Bench: T.Mathivanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05.06.2014 CORAM THE HONOURABLE MR.JUSTICE T.MATHIVANAN SECOND APPEAL No.1612 of 2004 and C.M.P.(MD) No.12738 of 2004 1.Bishop of Thanjavur Diocese Secretary, Diocese of Tajore Society Thanjavur 2.The Correspondent St.Arokia Annai Hr.Sec.School Punavasal ... Defendants / Appellants / Appellants -vs- 1.Savari Nayagam 2.Royappan ... Plaintiffs / Respondents / Respondents PRAYER Second Appeal is filed under Section 100 of the Code of Civil Procedure, against the Judgment and Decree, dated 13.11.2003, and made in A.S.No.26 of 2003, on the file of the learned Additional District Judge (F.T.C.-II), Pattukottai, confirming the Judgment and Decree, dated 10.04.2003, and made in O.S.No.54 of 1998, on the file of the learned District Munsif, Pattukottai. !For Appellants : Mr.G.R.Swaminathan for Mr.Fr.A.Xavier Arulraj ^For Respondents : Mr.S.S.Sundar for Mr.V.Ramamurthy :JUDGMENT
The Decree and Judgment, dated 13.11.2003, and made in A.S.No.26 of 2003, on the file of the learned Additional District Judge (F.T.C.-II), Pattukottai, confirming the Judgment and Decree, dated 10.04.2003, and made in O.S.No.54 of 1998, on the file of the learned District Munsif, Pattukottai, have been challenged in this memorandum of second appeal.
2. For easy reference, the legal character of the parties to the suit need not be changed and they may be referred to as they are in the suit, wherever the context so require.
3. The competency and the locus standi as well of the plaintiffs to institute the suit in their individual capacity instead of representative capacity, as contemplated under Order I Rule 8 of the Code of Civil Procedure, has been mainly questioned in this second appeal. It is to be underlined that despite this question had been raised before both the Courts below, none of the Courts below had discussed this issue and it is therefore to be highlighted in this Judgment.
4. This second appeal has been admitted on the following substantial questions of law:
i. Whether the suit is maintainable in respect of the suit property when it's survey number does not exist in the revenue records? ii. Whether the respondents can claim the pathway when the first respondent's father had already relinquished all his rights over the entire extent of the land? and iii. Whether the suit property can be described as communal pathway when it is not used by any other member of the community?
5. The conspectus of the facts:
5.1. The plaintiffs had filed the suit in O.S.No.54 of 1998 as against the defendants seeking the relief of mandatory injunction to restore the suit pathway and for costs.
5.2. The suit property, as it is seen from the schedule of the plaint, is comprised in Old Survey No.501, and new Survey No.501/2, measuring 15 Cents, situated at Punavasal West Village, Pattukkottai Taluk, Thanjavur District, within the following four boundaries:
i. South to the defendants' plantain, coconuts and Government School, ii. North to the land belongs to Adaikalasamy Udayar and others, iii. East to the land belongs to Arokiasamy Udayar, and iv. West to Pattukkottai-Peravoorani Road.
5.3. When the suit village was taken over by the Government of Tamil Nadu, as per Act 26 of 1948, the land comprised in Survey No.501 was classified as Government Puramboke, for the purpose of fetching potable water as well as for transport facility and the village people had been using the southern portion of Survey No.501 as a pathway. Further, in order to go towards west from the eastern main road, the village people had been using the above stretch of the land as a communal pathway.
5.4. It is learnt that during the year 1971, the land comprised in Survey Nos.499 and 500 were assigned to the defendants by the Government as per B.S.O.24. Thereafter, by way of UDR Scheme, Survey No.501 was sub-divided into two divisions as Survey Nos.501/1 and 501/2. Accordingly, the subdivided Survey No.501/1 was assigned in the name of the first defendant and the Survey No.501/2 was classified as pathway. This pathway had been used by Punavasal Village people in order to go towards the lands situated on the western side from the eastern main road and subsequently the same was blocked by the defendants, on and from 01.03.1998, with the connivance of the Government officials, for which they do not have any right. Under this circumstance, the plaintiffs had filed the suit seeking the relief of mandatory injunction to restore the pathway.
5.5. The second defendant had contended in his written statement that the plaintiffs do not have any right either to institute the suit or to claim the relief of mandatory injunction as they are not having any semblance of right over the suit property. When the suit village was taken over by the Government, as per the Act 26 of 1948, the land comprised in Survey No.501 was not subjected to sub-division. But, the suit property comprised in Survey No.501 was not at any time used as pathway muchless communal pathway by the village people for transportation as well as for fetching potable water and no pathway was in existence on the southern portion of Survey No.501.
5.6. When the first defendant had presented an application before the Assistant Settlement Officer, Thanjavur, to assign 4 Acres 90 Cents in Survey No.501; 4 Acres 55 Cents in Survey No.499 and 4 Acres 2 Cents in Survey No.501/1, for the purpose of construction of high school buildings, the Assistant Settlement Officer, vide his Proceedings in A.S.R.43/19A/Pattu/66, dated 31.10.1968, had assigned 4 Acres 2 Cents in Survey No.500/1, as per Section 19 of the Act 26 of 1948. From that date onwards, the entire extent of land comprised in Survey No.500/1 has been in possession and enjoyment of the defendants.
5.7. On the request made by the defendants, Government of Tamil Nadu, vide it's Order in G.O.Ms.No.1011, dated 21.04.1971, in B.S.O.No.24, had ordered that the land measuring 4 Acres 90 Cents, in Survey No.501 and 4 Acres 55 Cents in Survey No.499 might be assigned to the defendants for the purpose of construction of school buildings and also for the formation of playground and accordingly the Revenue Board, as per the Government Order in G.O.Ms.No.1183, dated 21.04.1971, had assigned the entire extent of land in Survey Nos.501 and 499, as per B.S.O.24 and accordingly the defendants have been in possession and enjoyment of the entire extent of land comprised in Survey Nos.501 and 499. At present, the land comprised in Survey No.501 has been developed so as to enable the defendants to put up school buildings. Besides this, for the purpose of deriving income to meet out the educational expenses, the defendants had planted coconut trees in the said land.
5.8. On the western side of the land, comprised in Survey No.501, the first plaintiff was having their family coconut grove. He had planned to form a pathway from his main road lying on the western side of the coconut grove so as to have access to their coconut grove. On account of this fact, the first plaintiff with the connivance the Land Surveyors, without the knowledge of the defendants, had arranged to sub-divide the land comprised in Survey No.501 into 501/1 and 501/2 and thereafter the land comprised in Survey No.501/2 was classified as a pathway and this was entered into the revenue records with the help of the Surveyors. Subsequently, the defendants were put to understand that the land comprised in Survey No.501 was subsequently sub-divided as 501/1 and 501/2 and only on the strenuous efforts taken by the defendants the Survey No.501 was treated as a single Survey Number as per the Proceedings of the Pattukottai Tahsildar in e.f.vz;.16057/95/M8, dated 27.12.1995. As per this Proceedings, the sub-divisions vide 501/1 and 501/2 were amalgamated into one Survey Number vide 501 and accordingly still the same survey number viz. 501 has been in existence. Hence, at the time of filing of the present suit, the property did not comprise in Survey No.501/2.
5.9. The suit property has not been properly described in the plaint schedule.
On the eastern and northern side of the plaintiffs' family coconut grove, which is lying on the western side of the land comprised in Survey No.501, the defendants have put up barbed fence and on the other portions also the defendants put up barbed fence. Since the defendants have put up barbed fence around the groves belonging to them, which are lying on the western side of the plaintiffs' family coconut grove, it is absolutely wrong to say that there is a pathway branching from the eastern side main road towards west.
5.10. The plaintiffs are residing in their own places and they are getting potable water within their respective places and therefore there is no necessity to use the suit property as a communal pathway for the purpose of fetching potable water.
5.11. With the permission of the first defendant, the second defendant had given a portion of land, measuring one cent, on the south east corner of the land comprised in Survey No.501, in favour of Punavasal Panchayath Board for the purpose of erecting bore-well for taking water for the benefit of Punavasal Village People. Even prior to filing of the suit, the bore-well was sunk on the above said place. This fact has not been purposely stated in the plaint. The Punavasal Village Panchayath Board has also erected an electric motor so as to pump water from the said bore-well. For the reasons afore-stated, the defendants have urged the Trial Court to dismiss the suit.
5.12. Based on the material proposition of facts from the pleadings of the parties to the suit, the Trial Court has formulated the following five issues:
i. Whether the suit property was ever used as communal pathway by the villagers?
ii. Whether the sub-division created in the suit survey No. as 501/2 during U.D.R.Scheme reflects the true position or not?
iii. Whether the plaintiffs are entitled to a decree as prayed for? iv. Whether the suit as filed by the plaintiffs in their individual capacity is maintainable? and v. To what reliefs?
5.13. In order to substantiate their respective cases, the parties to the suit were directed to face the trial. The first plaintiff has therefore examined himself as P.W.1, besides him four other witnesses were examined as P.Ws.2 to 5 and during the course of their examination Exs.A1 to A9 were marked. On the other hand, one Antonyraj, Pastor, was examined as D.W.1 and four more witnesses were examined as D.Ws.2 to 5 and during the course of their examination Exs.B1 to B16 were marked.
5.14. On evaluating the evidences both oral and documentary and on considering the other materials, the learned Trial Judge had proceeded to decree the suit, on 10.04.2003, as prayed for by the plaintiffs granting the relief of mandatory injunction.
5.15. Having been aggrieved by the impugned Judgment and Decree, dated 10.04.2003, the defendants had preferred an appeal in A.S.No.26 of 2003, on the file of the learned Additional District Judge, Fast Track Court No.II, Pattukottai.
5.16. The learned First Appellate Judge, after hearing both sides, had dismissed the appeal, on 13.11.2003, confirming the Judgment and Decree, dated 10.04.2003, passed by the Trial Judge.
6. Challenging the correctness of the Judgment and Decree, dated 13.11.2003, passed by the learned First Appellate Judge, the defendants have preferred the present second appeal before this Court.
7. Heard Mr.G.R.Swaminathan, learned counsel appearing for Mr.Fr.A.Xavier Arulraj, learned counsel, on record for the appellants/appellants/defendants and Mr.S.S.Sundar, learned counsel appearing for Mr.V.Ramamurthy, learned counsel, who is on record for the respondents/respondents/plaintiffs.
8. Substantial Question of Law No.I:
Mr.G.R.Swaminathan, learned counsel, while advancing his arguments, has drawn the attention of this Court to Exs.B1 and B2. Ex.B1 is the Abstract, relating to G.O.Ms.No.1011, Revenue Department, dated 21.05.1969. On a cursory perusal of this document, it is revealed that while rejecting the revision petition preferred by the Bishop of Thanjavur and President of the Diocese of Thanjavur Society, Thanjavur, the Joint Secretary to Government has stated that "However, in view of the fact that the lands are required for a worthy cause (i.e.) for the construction of a High School and orphanage, the Government direct that the lands in S.Nos.499 (4.55 acres) and 501 (4.90 acres) in Punavasal Village, Pattukottai Taluk, be placed at the disposal of the Bishop of Thanjavur and President of the Diocese of the Thanjavur Society, Thanjavur, for the above purpose under B.S.O.24, after observing the usual formalities. The Board of Revenue was also requested to take action accordingly.
9. From the above said Government Order in G.O.Ms.No.1011, Revenue Department, dated 21.05.1969, this Court is able to understand that the land comprised in Survey No.501, measuring 4.90 Acres, in Punavasal Village, Pattukottai Taluk, along with other lands in Survey No.499, measuring 4.55 Acres, was placed at the disposal of the defendants for the construction of high school and orphanage under B.S.O.24.
10. Ex.B2 is the copy of G.O.Ms.No.1173, dated 21.04.1971. This Order appears to have been passed by the Governor. Since this document is being a copy of Government Order, it has been signed by the Deputy Secretary to Government. The said Order reads as under:
"In the circumstances reported, the Government accept the recommendation of the Board of Revenue and direct that the lands in S.Nos.499, measuring 4.55 Acres and S.No.501, measuring 4.90 Acres, in Punavasal Village, Pattukottai Taluk, Thanjavur District, be placed at the disposal of the Bishop of Thanjavur and President of Diocese of Thanjavur for the construction of High School or Orphanage, free of land value and assessment subject to the conditions under B.S.No.24.
2.The Government also direct that the construction of buildings to High School and Orphanage shall be completed within one year from the date of grant.
3.The records of enquiry are returned herewith to the Board of Revenue. The Board is requested to acknowledge their receipt."
11. As afore-stated, it is evident from Ex.B2 that the first defendant was directed to put up the construction within a year from the date of grant.
12. Mr.G.R.Swaminathan, learned counsel, has adverted to that without the knowledge of the defendants, the land comprised in Survey No.501 was sub-divided under UDR Scheme as 501/1 and 501/2. He has also maintained that as it is seen from Ex.B4, dated 27.12.1995, the sub-divisions viz., 501/1 and 501/2 were canceled. Ex.B4 contains Field Map in respect of Survey No.501, which measures 1.98.5 Hectares. The above order appears to have been passed by the Tahsildar, Pattukottai, under his Proceedings No.e.f.16057/95/M8, dated 27.12.1995 as well as under the Proceedings of Revenue Divisional Officer, Pattukottai, vide g.K.2002/95 M.3, dated 18.12.1995. The copy of the order seems to have been certified by the Head Quarters Deputy Tahsildar, on 24.04.1998.
13. Mr.G.R.Swaminathan has also canvassed that no pathway was in existence as claimed by the plaintiffs in the suit property. With reference to the prayer of the plaint, he has raised a crucial question as to "Whether the prayer of simple mandatory injunction can be maintained without specific claim of declaration?"
No doubt, both the Courts below have given concurrent findings saying that the plaintiffs are entitled to get the relief as prayed for in the suit. It is pertinent to note here that the suit was filed on 13.03.1998.
14. Ex.A7 is dated back to 15.11.2000. It appears to be the resolution passed in the meeting convened by the President of Punavasal Panchayat Board. The Resolution is available at Page No.205 of the Resolution Book.
15. Similarly, Ex.A8 is the Petition presented by the first defendant to the Revenue Divisional Officer requesting to enter the settlement made by the Government in it's G.O.Ms.No.1173, dated 21.04.1971 in R.S.R. as well as U.D.R Register.
16. Ex.A9 is the letter, dated 20.02.2003, addressed to the District Munsif, Pattukottai, by the Revenue Divisional Officer, Thanjavur, enclosing the copies of certain documents, which were required to be filed before the Court.
17. As argued by Mr.G.R.Swaminathan, these documents ranging from Exs.A7 to A9 have taken their genesis after filing of the suit. As it has been observed in the fore-going paragraphs, the suit was filed as early as on 13.03.1998. However, this fact has unfortunately not been looked into by the Courts below.
18. Ex.A1 is the certified copy of the registered sale deed, dated 12.12.1961, executed by Sengol Udaiyar, son of Soosai Udaiyar and three others in favour of the Trustees of Punavasal Village Sowriar Church. Ex.A2 is the certified copy of the registered partition deed, dated 26.09.1962. Both the documents viz., Exs.A1 and A2 are not relevant to the present suit.
19. Ex.B16 is the release deed, dated 11.12.1966, which appears to have been executed by one Arockiasamy Udaiyar, who is none other than the father of the first plaintiff, along with nine others in favour of the Bishop and the President of the Thanjavur Diocese (first defendant) and thereby they had relinquished their possessory rights over the properties specified therein, which includes the property comprised in Survey No.501, measuring 4.90 Acres, without receiving any consideration.
20. Ex.B16 release deed also speaks that the properties specified therein are classified as 'Government Puramboke' and it also stipulates that the prime obligation for the execution of the release deed is to construct the High School building, Orphanage and also to form a playground for the school children.
21. It is also significant to note here that when the document was executed in the year 1966, i.e. on 11.12.1966, the land measuring 4.90 Cents was comprised in Survey No.501 and it was not sub-divided.
22. It is also pertinent to note here that Item No.3 of the said release deed is the property measuring 4 Acres 90 Cents, comprised in Survey No.501. In the release deed, it is stated that the executants are the residents of Punavasal Village and that the lands specified therein were classified as Government Puramboke and by way of this release deed they have relinquished their possessory rights without receiving any consideration.
23. The First Appellate Court has also found in it's Judgment that the alleged pathway is ending with the first plaintiff's land lying on the western side. P.W.1 has also admitted in his cross-examination that his coconut grove is lying on the western side of the alleged pathway. He has also made it clear that the alleged pathway runs upto his coconut grove, but, the bore-well, which is sunk at the origin of the pathway, has not been shown in the plaint. Apart from this, he has also admitted that the disputed land has been assigned to the first plaintiff by the Government.
24. Ex.A4 is the Proceedings of the Tahsildar, Pattukottai, dated 27.12.1995. From this document, it is revealed that the sub-division in respect of Survey No.501, i.e., 501/1 and 501/2, was amended as per the Government Order vide G.O.Ms.No.1173, dated 21.04.1971 as well as the Proceedings of the District Revenue Officer in e.f.24462/71, dated 29.04.1971 and accordingly the sub- division was cancelled and the original Survey No.501 was restored.
25. When P.W.1 was standing in the witness box to depose evidence, in his cross- examination, a question was put to him, on behalf of the defendants, saying that as to whether he knew the fact of presentation of an application before the Revenue Divisional Officer, wherein it was stated that without the knowledge of the first defendant the sub-division in respect of Survey No.501 was effected and that the Revenue Divisional Officer was requested to cancel the sub-division and restore the original survey number as 501? For which he has deposed that he did not know about the proceedings of the Revenue Divisional Officer. Another question was also put to him saying that as to whether he knew the fact that the Government had declared the pathway, for which he has answered in the negative form. In his cross-examination, he has admitted that in the plaint, he had described the alleged pathway as a common pathway. He has also admitted that he had filed the suit in his individual capacity.
26. Mr.G.R.Swaminathan, learned counsel, has also argued that at the beginning of the alleged pathway a bore-well was sunk in the land measuring 1 Cent by the Punavasal Village Panchayat Board. Therefore, when the bore-well is sunk and it is being used by the public, the question of availability of pathway and transportation would not arise.
27. P.W.2 is the Village Administrative Officer of Panikondan Village. It is pertinent to note here that the property in dispute is situated in Punavasal Village and not in Panikondan Village, where he was working as the Village Administrative Officer. This fact has been admitted by him, in his cross- examination, saying that he was not working as the Village Administrative Officer in Punavasal Village. He would further depose that on the southern side of the disputed pathway, a grove belongs to P.W.1's father is lying and at the end of the pathway an open space is available without fencing. His evidence runs contrary to the evidence given by P.W.1. P.W.1 says that at the western side of the pathway his coconut grove is located and no open space is there as deposed by P.W.2. Besides this, he has also deposed that the Village people had been using the alleged pathway for ingress and egress, but there is no such pathway.
28. P.W.3 is the former President of Punavasal Village Panchayat Board and he was functioning as the President from 1987 to 1992. In his chief-examination, he has deposed that the suit property was in use as pathway for about 40 years and it was used for taking cattle as well as wastage. As per P.Ws.2 and 3, the length of the alleged pathway is 500 sq.ft. According to P.W.3, the alleged pathway is a common pathway. If it is so, a question is arisen as to how the plaintiffs can claim individual right over the said pathway.
29. Ex.A6 is the resolution passed by Punavasal Village Panchayat Board, with regard to the erection of a bore-well to fetch drinking water, in the land comprised in Survey No.501, measuring 4 Acres 90 Cents. The minute book, in this connection, has been marked as Ex.A7.
30. The evidences deposed by P.Ws.4 and 5 are not lending a helping hand to the plaintiffs' case, instead it supports the case of the defendants.
31. The Advocate Commissioner has not been examined in this case, however, his report and the rough sketch have been marked as Exs.C1 and C2 respectively. It is also revealed that the report along with plan were produced before the Court on 07.04.1998. The Advocate Commissioner, in Paragraph No.2 of his report, has stated that the alleged pathway is comprised in Survey No.501/2, measuring 15 Cents. He was appointed as the Commissioner on 13.03.1998 and he had also visited the suit property on the same day at 05.00 p.m. It is also pertinent to note here that the suit was filed during the month of March, 1998.
32. In this connection, this Court would like to place it on record that as it is seen from Ex.A4, the Proceedings of the Tahsildar, Pattukottai, dated 27.12.1995, which was made as per the Government Order vide G.O.Ms.No.1173, dated 21.04.1971 as well as with the Proceedings of the District Revenue Officer, in e.f.24462/71, dated 29.04.1971, the sub-division in respect of Survey No.501 i.e., 501/1 and 501/2 were canceled and the original Survey No.501 was restored. Ex.A4, as afore-stated, is dated back to 27.12.1995. At the time of filing of the suit and at the time of filing of the Advocate Commissioner's report, as rightly pointed out by Mr.G.R.Swaminathan, learned counsel, no sub- division in respect of Survey No.501 was in existence. Therefore, the Advocate Commissioner's report in respect of Survey No.501/2 is absolutely wrong and it appears that he had miserably failed to verify the relevant revenue records so as to find out the exact survey number.
33. As per the Plan, Pattukottai-Peravoorani Road runs north-south direction on the eastern side of the alleged pathway. As it is shown in the Plan, at the beginning of the alleged pathway, which branches from the eastern side, a bore- well has been shown. This has been spoken to by D.W.1 and other witnesses and equally by P.W.4 as well. Further, as it has been discussed in the fore-going paragraphs, as per the resolution, under Ex.A6, this bore-well was erected and it has been ratified by D.W.1 and that the land measuring 1 Cent was given by the first defendant in favour of the Punavasal Village Panchayath Board, for the purpose of erection of bore-well for the use of public. When the bore-well is sunk at the beginning of the alleged pathway i.e., in the middle, this could not have been used as a pathway. Moreover, as it is admitted by P.W.1 and other witnesses, the alleged pathway is ending with P.W.1's coconut grove and it did not go beyond that, because as it is seen, no residential houses are available thereafter. Besides this, the alleged pathway has not been properly described in the plaint schedule and more over the length and breadth of the alleged pathway has also not been properly described.
34. This Court has made a meticulous analysis on the evidences both oral and documentary and also perused the Judgments of both the Courts below and after giving it's careful consideration this Court is of considered view that both the Courts below are absolutely wrong as they have not approached the core issue of the suit with proper perspective. Furthermore, this Court having been traversed through the testimonies of the witnesses with the support of the documents produced on behalf of both sides, wants to register it's view that no such pathway, muchless a communal pathway, is in existence as claimed by the plaintiffs and therefore the substantial questions of law Nos.1 and 2 are answered against the plaintiffs.
35. Substantial Question of Law No.3:
It has become necessary for this Court to make reference to Rule 8 to Order I of the Code of Civil Procedure. Sub-rule 1 to Rule 8 of Order I C.P.C., reads as under:
R.8. One person may sue or defend on behalf of all in same interest.- (1) Where there are numerous persons having the same interest in one suit,-
(a) one or more of such persons may, with the permission of the Court sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested;
(b)the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested.
36. No doubt, one person may sue or defend on behalf of all persons, who are having same interest, provided permission in this regard is granted by the Court. But, in this case, the plaintiffs have claimed that the alleged pathway is a communal pathway. If it is a communal pathway, as alleged by the plaintiffs, an individual alone cannot use this pathway for his own purpose. But, in this case, the first plaintiff has filed the suit along with the second plaintiff for his personal benefit and not for the benefit of public. Moreover, the second plaintiff appears to be a mere name lender. He has not sought any relief from the defendants. In this circumstance, Mr.G.R.Swaminathan, learned counsel appearing for the defendants, has adverted to that the suit itself is not maintainable without seeking the relief of declaration of title.
37. On the other hand, Mr.S.S.Sundar, learned counsel appearing for the plaintiffs, has submitted that as observed by the learned Single Judge of this Court in Syed Dhasthakeer vs. Navab John, reported in 2012 (6) CTC 892, a suit can be maintained without seeking the relief of declaration of title. This Court has carefully gone through the above cited decision and found that this decision is not made applicable to the instant case on hand.
38. In the above cited case, the first defendant had filed the second appeal against the concurrent findings rendered in a suit for bare injunction. The learned single Judge of this Court has held that the plaintiff has failed to prove his possession on the date of the suit and that he had also admitted the possession of a third party in the suit property. It has been further held that the decree passed against the second defendant is nullity, since no steps were taken to implead the legal representatives, even before the Trial Court and further held that the suit for bare injunction is maintainable, notwithstanding the failure to seek declaration of title. This ratio cannot be applied in this case. In the present suit, the plaintiffs have sought the relief of mandatory injunction to restore the pathway, which was according to them, blocked by the defendants. The cause of action for the suit itself is not able to be established by the plaintiffs. When such being the case, the ratio decidendi applied in the above cited decision cannot be equated with the facts and circumstances of the present case on hand.
39. Mr.S.S.Sundar, learned counsel, has also argued that as they being the members of the community, the plaintiffs can also maintain the suit for mandatory injunction. In order to support his contention, he has placed reliance upon the decision in Kalyan Singh v. Chhoti, reported in AIR 1990 SC
396. In Paragraph No.14, a Three Judges Bench of the Honourable Supreme Court has observed that:
"14........It must be stated that any member of a community may successfully bring a suit to assert his right in the community property or for protecting such property by seeking removal of encroachments therefrom. Such a suit need comply with the requirements of Order 1, Rule 8.........."
40. In the given case on hand, no reference is available anywhere in the documents, which were marked herein, to show that the alleged pathway is a communal pathway. Apart from this, the plaintiffs have not substantiated their claim with regard to the existence of the said pathway. Therefore, the question of asserting the right of the plaintiffs in the alleged pathway does not arise.
41. In order to fortify his contention, he has also made reference to another decision in The Victoria Edward Hall v. M.Samraj, reported in 2001 (3) CTC 129. In this case, a suit was filed seeking the relief of declaration that voters list of 2000-01 is incorrect and invalid and the election held based on such voter's list is null and void. The said suit was relating to the right of nearly 800 persons, whose membership was disputed. If such declaration is granted, the persons, who are not parties to the suit would be prejudiced and therefore it is held by the learned single Judge of this Court that the Court should follow the procedure set out in Order I Rule 8. Even if the defendants do not take such objections as interested of persons, who are not present before the Court, is likely to be affected.
42. In the above cited decision, the learned single Judge of this Court has also made reference to the decision in Assistant Commissioner, H.R. & C.E., Salem, v. N.K.S.F.Mudaliar, reported in AIR 1987 Mad 187. In this decision, M.SRINIVASAN, J., (as he then was) has held that a person cannot advance the claims of a group of persons or community without adopting the procedure under Order 1, Rule 8, C.P.C., if the relief is prayed for only on the basis of the rights of the community as such. The learned Judge has also held that a distinction has to be maintained between cases where individual putforward a right which he has acquired as a member of a community and cases where a right of the community is putforward in the suit.
43. It is also held that if it is the former, the individual is not debarred from maintaining the suit in his own right in respect of a wrong done to him even though the act complained of may also be injurious to some other persons having the same right and if it is the latter, the procedure under Order 1, Rule 8, C.P.C., has to be followed and without doing so, no relief could be granted to the individual concerned.
44. Strictly speaking, this decision is also not made applicable to the instant case on hand. The plaintiffs have not filed the suit to assert their rights in the community. Therefore, the question of community will not come in the way of the suit, because as admitted by the first plaintiff in his evidence, he has filed the suit in his individual capacity. Since he has described the alleged pathway as the communal pathway, unless it is established that the rights of the community has been affected at large by the block made by the defendants, the suit cannot be maintained. It is more relevant to state here that at the tail end of the alleged pathway, P.W.1's coconut grove is lying and sufficient evidences are available that the alleged stretch of land has not been used as a pathway and therefore the question of using of the stretch of land as pathway by the community does not at all arise. Hence, the above cited decision is not made applicable to the instant case on hand.
45. Mr.S.S.Sundar, learned counsel, while advancing his arguments, has also made reliance upon the decision in B.Nemi Chand Jain v. G.Ravindran, reported in 2010 (2) CTC 751. This decision is also not made applicable to the present case on hand.
46. Further, Mr.S.S.Sundar, learned counsel, has made reference to the Government Order vide G.O.Ms.No.445, Revenue Department, dated 14.07.2006, wherein in Paragraph No.6, it has been stated that the Government, as per G.O.Ms.No.1173, Revenue Department, dated 21.04.1971, had assigned the land measuring 9.45 Acres, comprised in Survey No.499 and another land measuring 4.90 Acres, comprised in Survey No.501 to the first defendant, at free of costs, with a condition that school building, hostel and orphanage shall have to be constructed within a year from the date of assignment. It is also stated that the construction was made only in the land measuring 4.55 Acres, comprised in Survey No.499 and the land comprised in Survey No.501, excepting an area measuring 0.15 Cents allotted for the pathway was left blank without making any construction, instead it has been converted as coconut grove and since the condition stipulated in the above said Government Order was violated, the explanation, dated 17.01.2005, offered by the first defendant was rejected and the remaining extent of 4.75 Acres was decided to be taken back.
47. On perusal of this Government Order, it is seen that the said G.O., is dated back to 14.07.2006, but the present suit seems to have been filed on 13.03.1998. In this regard a question is therefore arisen as to whether the alleged pathway was in existence at the time of filing of the suit. But, in the absence of adequate materials to substantiate this question, it cannot be heard to say that the suit claim has been established by the plaintiffs and apart from this, the G.O.Ms.No.445, Revenue Department, dated 14.07.2006 came into force after filing of the present and therefore it cannot be taken into consideration.
48. The object of enactment of the provisions of Order I Rule 8 of the Code of Civil Procedure is to facilitate the decision of question in which a large body of persons are interested without recourse to the ordinary procedure, where each individual has to maintain an action by a separate suit. The principle of a representative suit is to prevent a defendant from being vexed and molested by other similar suits by other persons of a particular body. Furthermore, Order I Rule 8 C.P.C., is in the public interest so as to avoid multiplicity of litigation. The condition necessary for it's application is that the persons on whose behalf the suit is brought must have the same interest, that is either the interest must be common or they must have a common grievance.
49. But, in the present suit, it is not established by the plaintiffs that the interest of larger body of persons are affected by the conduct of the defendants. Since the suit claim itself has not been substantiated by the plaintiffs, the Judgment and Decree of both the Courts below are deserve to be set aside.
50. In the result, this second appeal is allowed and the Judgment and Decree, dated 13.11.2003, and made in A.S.No.26 of 2003, on the file of the learned Additional District Judge (F.T.C.-II), Pattukottai, confirming the Judgment and Decree, dated 10.04.2003, and made in O.S.No.54 of 1998, on the file of the learned District Munsif, Pattukottai, are dismissed. The suit in O.S.No.54 of 1998, on the file of the learned District Munsif, Pattukottai, is dismissed with costs throughout. Consequently, connected civil miscellaneous petition is closed.
To
1.The II Additional District Judge, II Additional District Court, (Fast Track Court-II), Pattukkottai.
2.The District Munsif, District Munsif Court, Pattukkottai.