Madras High Court
A.Sulthan Khan vs The State Of Tamil Nadu on 19 August, 2014
Author: V.M.Velumani
Bench: V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 19.08.2014 CORAM THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.R.P.(MD)No.1032 of 2014 & M.P.(MD) Nos.2 and 3 of 2014 A.Sulthan Khan .. Petitioner Vs. 1.The State of Tamil Nadu, Rep. by the District Collector, Trichirappalli. 2.Tamil Nadu Slum Clearance Board, Rep. by its Executive Engineer, Tiruchirappalli. 3.Tiruchirappalli City Corporation, Rep. by its Commissioner, Tiruchirappalli. 4.Thanthai Periyar Kudyirupor Nala Sangam, Rep. by its Vice President, Mr.Ponnusamy, Jailpettai, Tiruchirappalli. .. Respondents Civil Revision Petition filed under Article 227 of the Constitution of India, to call for the records in the lower Court and set aside the order, dated 19.03.2014 made in I.A.No.65 of 2013 in O.S.No.79 of 2013, on the file of Principal District Munsif Court, Tiruchirappalli, and allow the civil revision petition. !For Petitioner :Mr.S.N.Amarnath ^For Respondent No.1 :Mr.R.Anandraj Government Advocate For Respondent No.2 :Mr.K.Chellapandian Additional Advocate General assisted by Mr.P.Mahendran For Respondent No.3 :Mr.N.S.Karthikeyan Addl. Government Pleader For Respondent No.4 :Mr.P.Narayanan :ORDER
This Civil Revision Petition has been filed to call for the records in the lower Court and set aside the order, dated 19.03.2014, made in I.A.No.65 of 2013 in O.S.No.79 of 2013, on the file of Principal District Munsif Court, Tiruchirappalli.
2.The petitioner is the plaintiff, whereas the respondents are the defendants in the suit in O.S.No.79 of 2013, on the file of Principal District Munsif Court, Tiruchirappalli.
3.The petitioner has filed the suit against the respondents for the relief of declaration that the respondents have no right over the suit properties and for a consequential relief of permanent injunction till the disposal of the writ petition in W.P.No.10761 of 2012, pending before the Principal Bench of this Court. Along with the suit, the petitioner has also filed an application in I.A.No.65 of 2013, for temporary injunction restraining the respondents from in any way interfering with the petitioner's peaceful possession and enjoyment of the suit property either by constructing 320 tenements over the property or otherwise till the disposal of the writ petition in W.P.No.10761 of 2012. The said I.A. was dismissed by the learned Principal District Munsif, Trichy, on 19.03.2014. Against the said order of dismissal, the petitioner has filed the present civil revision petition.
4.The contentions of the learned counsel for the petitioner:-
(i) The ancestor of the petitioner Khan Mian was the Commander of Rani Mangammal, who was ruling in Madurai and Trichy Region.
Khan Mian's father Sri Raja Misiri Khan was also a Zamindar and he provided 700 Horses through Khan Mian to the Queen Rani Mangammal for valid consideration, which was reduced in writing in a copper plate. The copper plate contains two parts. One for personal consideration to Khan Mian and other part relates to certain properties given for maintenance of Dharga and Mosque. From the said date, the properties was and is in possession and enjoyment of the family members of Khan Mian. At present, the petitioner is in possession and enjoyment of the properties. The family members of the petitioner have appointed the petitioner as their Power of Attorney Agent. The petitioner referred to various legal proceedings that took place over the period of time, viz., O.P.No.48/1962, on the file of District Court, Trichy, and O.S.No.39 of 1963, wherein the title of descendants of Khan Mian was recognised and copper plate was translated and verified by the Advocate Commissioner.
(ii) The petitioner has stated that the copper plate was executed in the Saka year 1595, corresponding to English year 1673. The Inam Commissioner has issued title deed in T.D.No.1167 of 1865 and the same was confirmed by the District Collector, on 11.12.1865. The Municipality plan of Tiruchirappalli was published in the year 1906, confirms his claim as per document marked as Ex.P9 in earlier proceedings. The Predecessor of the petitioner sold certain portion of the properties to one Rengasamy Konar to establish his right as Successor of Khan Mian, the Commander of Rani Mengammal and the legal heir, which was registered as Document No.1433 of 1963 on the file of the Registrar, Trichirappalli, on 11.03.1963.
(iii) The first respondent on the recommendation of the Tahsildar, allotted a part of the land to the second respondent for constructing tenements for poor and downtrodden people. The area allotted to the second respondent is called Municipality Vandipettai. The second respondent made a publication that they are proposing to construct the building in the lands allotted to them. On verification, the petitioner found out that the particular land in T.S.No.9 belongs to him. Therefore, he issued notice to the second respondent. The second respondent sent a reply stating that the first respondent allotted the land in T.S.No.11 to an extent of 1.1572.0 Hectares. The petitioner has stated that the Patta in T.D.No.1167 issued to the ancestors of the petitioner contains the names of the successor, but does not contain the list of the property and survey numbers. The petitioner came to know that T.D.No.2 of 1806 contains the entire description of the property and the extent of the land granted by Rani Mangammal to the ancestors of the petitioner. Therefore, the petitioner has filed W.P.No.10761 of 2012 on the file of Principal Bench of this Court, seeking for a direction to the Chief Secretary and the Commissioner of Land Records and Archives, to furnish the documents pertaining to Patta Nos.TD 2 of 1806 and TD 1167 of 1865 and for injunction restraining the District Collector and the Tahsildar, Trichy, not to issue any Patta or Transfer of Patta pertaining to the property covered by TD.No.1167 of 1865. The said writ petition is still pending. As the respondents have been in a high- handed manner encroached the suit property, the petitioner has filed the above suit and also I.A.No.65 of 2013, for interim injunction.
6.The contention of the learned Additional Advocate General for the second respondent:
The second respondent is denied all the allegations made by the petitioner. All the allegations made in the affidavit are pending writ proceedings. The property in question is known as 'Municipality Vandipettai' and more than 290 families working as coolies in the nearby markets are residing in the suit property for more than 50 years. They are living in a hazardous condition without any basic amenities. Many fire accidents took place in that area. From the year 1989, the Trichirappali Corporation took action to evict those families. They filed W.P.No.21271 of 1994 and O.S.No.1844 of 1989, and permanent injunction was granted by this Court. As per the policy of the Government, it was proposed to construct tenements for those families. The land measuring an extent of 2.5668 Hectares in T.S.No.9, Ward No.N, Block No.12, is a Government poramboke land owned by the Government as per the Revenue Records vested with the Trichy Corporation. The second respondent approached the authorities for allotment of land to them, so as to construct the tenements to the poor people. The Trichy Corporation passed resolution to allot the land to the second respondent. After allotment, the land was transferred to the second respondent and the second respondent started construction with a view to provide houses to the poor people. In and around the land in question, there are Dispensary, School and Cart Stand are situate. The petitioner was not in possession of the suit property atleast for more than 50 years. The petitioner has not proved his title and possession and has not made out any prima facie case, for injunction pending suit. On the other hand, the balance of convenience is in favour of the respondents.
7.The contention of the learned Standing Counsel for the third respondent is that the petitioner did not implead the proper and necessary parties and hence, the suit is liable to be dismissed. The learned Standing Counsel for the third respondent contended that the historical factors mentioned in the affidavit are wrong, as Rani Mangammal ruled during 1689 to 1704 and Robert Clive left in India in 1768 and died on 22.11.1774 at London. He further stated that after coming into force of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963, the petitioner without Ryotwari patta cannot claim any interest or title over the suit property.
8.The fourth respondent got impleaded as fourth defendant in the suit as well as the fourth respondent in the application in I.A.No.65 of 2013. According to the fourth respondent, it's members are in possession and enjoyment of the suit property for more than 100 years.
9.The suit property is a Government poramboke land. The claim of the petitioner that he is a Muthavalli, having right to maintain to Khan Mian Dharga, has no relevance to the issue in question.
10.The parties filed documents in support of their respective claims.
11.The learned Principal District Munsif, Trichy, considered the pleadings and the documents relied on by the parties and by order dated 19.03.2014, dismissed I.A.No.65 of 2013, by a speaking order, giving reasons for such dismissal. As against the said order, the petitioner has filed the present revision petition.
12.Heard Mr.S.N.Amarnath, learned counsel appearing for the revision petitioner, Mr.R.Anandraj, learned Government Advocate appearing for the first respondent, Mr.K.Chellapandian, learned Additional Advocate General assisted by Mr.P.Mahendran, learned Standing Counsel appearing for the second respondent, Mr.N.S.Karthikeyan, learned Additional Government Pleader appearing for the third respondent and Mr.P.Narayanan, learned counsel appearing for the fourth respondent.
13.The learned Additional Advocate General appearing for the second respondent argued that the civil revision petition is not maintainable against the order of dismissal in I.A.No.65 of 2013 for granting injunction, only appeal remedy is provided under Order 43 Rule 1(r) of C.P.C. In support of his submissions, he placed reliance on the following Judgments:
(i) Banu Mithra and Another Vs. M.Balu and Another [2009 (4) MLJ 164]
(ii) J.Lili Jabakani and Others Vs. T.A.Chandrasekhar [2006 (5) CTC 848]
(iii) Ouseph Mathai and Others Vs. M.Abdul Khadir [2002 (1) SCC 319]
(iv) Malati Santra and Others Vs. Nanda Dulal Banik and Others [AIR 1994 CALCUTTA 229]
14.Per contra, the learned counsel for the revision petitioner relied on the following Judgments to substantiate his claim that the present civil revision petition is maintainable.
(i) Thankayyan Vs. Edwin Shaji [2008 (2) CTC 391]
(ii) K.I.M.Sajjdeen Vs. A.1254, Theni Co-operative Sale Society Limited [2009 (2) LW 270]
(iii) Dindigul Pettai Sathangudi Shatriya Nadar Uravinmurai, etc. Vs. Selvaraj Sundar and Another [2009 (3) LW 229]
(iv) P.Kumar Vs. Sanjay Agarwal and Others [2011 (1) MWN (Civil) 447]
(v) The Moderator, Church of South India Synod and another Vs. J.Jaba Singh and Others [2012 (4) LW 453]
(vi)M.G.Sethurajan Vs. C.Paramasivam [2009 (2) LW 304].
15.Now, I am not inclined to decide the question of maintainability, as this Court has already held that the civil revision petition is maintainable at the admission stage itself. This decision was rendered, when the Registry raised the question of maintainability, as the appeal remedy is available to the petitioner. The learned counsel for the petitioner represented that the civil revision petition is maintainable, in view of the judgments relied on by him. At that time, the learned counsel for the petitioner contended that the learned Principal District Munsif did not give any reason for dismissing the application for injunction. This Court considered the judgments relied on by the learned counsel for the petitioner and the submissions made by the learned counsel for the petitioner that the learned Principal District Munsif, did not give any reason for dismissing the application for injunction, held that the civil revision petition is maintainable. Further, at the time of hearing, both the parties made their submissions on merits. Therefore, I am inclined to decide the civil revision petition on merits only not on maintainability.
16.Learned counsel for the petitioner reiterated the averments made in the affidavit filed in I.A.No.65 of 2013 and M.P.(MD)No.2 of 2014. In addition to the submissions, the learned counsel for the petitioner argued that the learned Additional Advocate General could not substantiate his case with regard to construction of tenements in T.S.No.9, as there was no such construction in T.S.No.9. The second respondent through the fourth respondent managed to bring a Mob of about 1000 people from the slum area alleging that the tenements were constructed and allotted to them. Further, when the petitioner and his counsel were waiting on 19.03.2014 for hearing the orders to be pronounced by the learned Principal District Munsif, a group of persons entered into the Court Hall. After 40 minutes when they came out, the petitioner found out that the entire Judgment was not delivered, but a non-speaking order of four line was found in the diary. He further argued that due to lethargic attitude of the Presiding Officer, who kept the Interlocutory Application pending for more than 13 months, the respondent has put up the construction more than 80% of the building. For the above reasons, the petitioner prayed for injunction restraining the respondents from interfering with his peaceful possession and enjoyment of the property.
17.Per contra, the learned Additional Advocate General appearing for the second respondent argued that the petitioner failed to prove his title and possession and as per the Revenue Records, the said property along with larger extent was classified as Government poramboke and belonged to the Trichy Municipal Corporation. The land in T.S.No.9, measures a total extent of 2.5668.0 Hectares. It is known as Municipality Vandipettai. The same was encroached by various people and they were in occupation for more than 50 years. There were number of fire accidents took place. Attempt to evict the encroachers failed, as they obtained permanent injunction from this Court as well as the District Court. In order to provide pucca building with all amenities to the poor people, the Government decided to construct tenements and allot them to the poor people, who were in occupation and also to other people. At the request of the second respondent, the larger extent of T.S.No.9 was sub-divided and an extent of 1.1572.0 Hectares was re-numbered as T.S.No.11. The same was allotted to the second respondent and after allotment, the possession was handed over to the second respondent. The Government also sanctioned Rs.300/- crores, for construction of tenements to be allotted to the poor people, in G.O.(Ms) No.147, Housing and Urban Development (SC1(2)) Department, dated 01.11.2011. The petitioner himself has admitted that more than 80% of the construction work was completed. Now, almost 90% of the work has been completed and due to interim injunction granted by this Court in the civil revision petition, the work has been stopped. The learned Additional Advocate General appearing for the second respondent argued that the petitioner has not made out any prima facie case and balance of convenience is in favour of the respondents and the poor people are suffering, as the tenements could not be handed over to them. The learned Additional Advocate General also contended that the learned Principal District Munsif has dealt with each and every aspect of the case and has passed an elaborate order, dismissing the application in I.A.No.65 of 2013, for injunction, by giving valid and cogent reasons.
18.From the Ration Cards marked in the Interlocutory Application, it is clear that the members of the fourth respondent were in possession and enjoyment of the suit property for more than 50 years before the said property was handed over to the second respondent. The petitioner failed to prove his possession and especially at the time of filing of the suit. At the out set, it is seen that the learned Principal District Munsif has passed an elaborate speaking order giving reasons for rejecting the contentions of the petitioner. The contentions of the petitioner that the learned Principal District Munsif has passed a non-speaking four line order is contrary to the facts of the case. The learned Additional Advocate General has filed a copy of the fair order of the learned Principal District Munsif.
19.Secondly, the petitioner has not substantiate his claim that he is the owner of the property by acceptable documents. He failed to prove that he is in possession and enjoyment of the property. On the other hand, he himself admitted that in the Patta in T.D.No.1167, only the names of the parties were mentioned, the description of properties were not given. According to him, T.D.No.2 of 1806 contains the entire description of the properties. That is why he has filed W.P.No.10761 of 2012, seeking for a direction to furnish the documents. He also states that the officials are not furnishing the Xerox copies of the entire title deeds and that he is driven from pillar to post.
20.Therefore, the petitioner has not proved his title and he is yet to get the documents of title from the authorities. On the other hand, the respondents have produced the Survey Plan, which shows that the property in T.S.No.9 is Municipality Vandipettai and that the larger extent was sub- divided and an extent of 1.1572.0 Hectares was allotted and re-numbered as T.S.No.11. It was allotted and handed over to the second respondent. The fourth respondent has produced the documents to show that it's members were in possession and enjoyment of the property in question for number of years. The Government also sanctioned amounts for construction of 322 tenements to be allotted to the poor people.
21.From the available materials on record, it is clear that the petitioner is not in possession and enjoyment of the suit property and he has not proved his title. The respondents by documents have proved that the property belongs to the Government, as the same is Government poramboke land. The respondents have also produced documents for sub-division of the property and transferring the property to the second respondent. The petitioner himself has admitted that the second respondent is in possession of the suit property and has put up tenements, which has completed upto 80%. As the petitioner has not proved his possession on the date of filing of the suit, he is not entitled to an order of injunction as prayed for. He has failed to prove the prima facie case for grant of injunction. On the other hand, the respondents have proved by documents that the balance of convenience is in their favour. If the remaining portion of construction is completed and the tenements are handed over to the members of the fourth respondent and others, number of poor people will be benefited by having a comfortable houses to live in.
22.From the judgments relied on by the learned counsel for the petitioner and the learned Additional Advocate General appearing for the second respondent, it is seen that the law is well settled with regard to exercise of power of High Court under Article 227 of the Constitution of India. The said power has to be exercised sparingly and cautiously. A party cannot claim the said right as a matter of fact. But if this Court finds that the lower Court has committed an error of jurisdiction or failed to give reasons to support it's orders or suffering from illegality or perversity or if it is shown that grave injustice has been done to a party, this Court must necessarily interfere with the order of the lower Court without driving the concerned party to avail statutory appel1ate remedy. In the present case, none of these reasons exists so as to interference with the impugned order of the learned Principal District Munsif under Article 227 of the Constitution of India. The petitioner has filed the present civil revision petition on the misconception that the learned Principal District Munsif did not give any reasons in support of the impugned order. A perusal of the fair order of the learned Principal District Munsif reveals that the learned Judge has given reasons for dismissing I.A.No.65 of 2013. I hold that the petitioner has not made out any case for this Court to exercise it's power under Article 227 of the Constitution of India.
23.For the above reasons, I hold that the petitioner is not entitled to injunction pending suit and that there is no reasons or circumstances warranting interference with the order of learned Principal District Munsif, Trichy, dated 19.03.2014, made in I.A.No.65 of 2013 in O.S.No.79 of 2013.
24.In the result, the civil revision petition is dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.
To
1.The Principal District Munsif Court, Tiruchirappalli.
2.The District Collector, State of Tamil Nadu, Trichirappalli.
3.The Executive Engineer, Tamil Nadu Slum Clearance Board, Tiruchirappalli.
4.The Commissioner, Tiruchirappalli City Corporation, Tiruchirappalli.