Madras High Court
Rajagopal Mudaliar [Died vs N.Kuppusamy on 12 March, 2024
Author: P.T. Asha
Bench: P.T. Asha
S.A.No.50 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.03.2024
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.50 of 2021
and
C.M.P.No.1204 of 2021
1.Rajagopal Mudaliar [Died]
2.Muthukumarasamy
3.Sivakumar
4.Shanthi
5.Minor Logeshwaran
6.Minor Aadhavan
… Appellants
[A.1 dies, A2 to A6 are brought on record as LRs of the deceased A.1
vide Court Order dated 30.10.2023 made in C.M.P.No.24604, 24605
and 24606 of 2023 in S.A.No.50 of 2021 (PTAJ)]
Vs.
1.N.Kuppusamy
2.Narayanasamy
3.N.Viswanathan ... Respondents
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https://www.mhc.tn.gov.in/judis
S.A.No.50 of 2021
Prayer:- Second Appeal is filed under Section 100 of C.P.C against
the judgement and decree dated 03.01.2020 passed in A.S.No.2 of 2015
on the file of the I Additional Sub Judge, Cuddalore, reversing the
judgement and decree dated 05.04.2013 passed in O.S.No.309 of 2009
on the file of the Principal District Munsif Court, Cuddalore.
For Appellant : M/s.R.Gururaj
For Respondent : M/s.R.Meenal [R.1]
Served - No Appearance [R.2 and R.3]
JUDGEMENT
The plaintiff in the suit O.S.No.309 of 2009 on the file of the Principal District Munsif, Cuddalore is the appellant before this Court. The facts are briefly set out herein below and the parties are referred to in the same ranking as before the Trial Court.
2. The above Second Appeal had been admitted on the following Substantial Questions of Law :-
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https://www.mhc.tn.gov.in/judis S.A.No.50 of 2021
(a) Whether Ex.B.1/Board Standing Order No.15 will apply to the suit schedule property?
(b) Whether the suit schedule property was assigned and provided as Adi Dravidar Patta to the father of the defendants 1 and 2?
(c) Whether the defennce of the defendants 2 and 3 is barred under Sections 91 and 92 of the Evidence Act?
3. To answer these questions it is necessary to briefly touch upon the facts which have given rise to the suit.
4. The plaintiff had filed a suit for declaring his title to the suit property and for permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the same.
5. The plaintiff would submit that his father had purchased the 3/14 https://www.mhc.tn.gov.in/judis S.A.No.50 of 2021 suit property from the 2nd and 3rd defendants and their father, Nagamuthu under a registered sale deed dated 07.07.1975 for a valuable consideration of Rs.3,000/-. From the date of purchase, the plaintiff’s father has been in possession and enjoyment of the suit property. The plaintiff’s father had died in the year 1978 and the defendant's father had died 15 years prior to the institution of the suit. The plaintiff on the demise of his father had inherited the suit property as his only son and was in possession of the same. The plaintiff had also got the revenue records mutated in his name and he has also been paying the kist in respect of the suit property. The plaintiff would submit that all these years there had been no disturbance to his peaceful possession and enjoyment of the suit property. However, the 1st defendant who was originally a Village Officer and who became Village Administrative Officer after the abolition of the post of Village Officers in 1980 had been illegally enjoying the poramboke lands against the service rules and he wanted the plaintiff to purchase these lands. Defendants 2 and 3 had obliged the 1st defendant and in order to compel the plaintiff to purchase the poramboke land they had decided 4/14 https://www.mhc.tn.gov.in/judis S.A.No.50 of 2021 to cause interference to the peaceful possession and enjoyment of the suit property by the plaintiff. Therefore, the plaintiff had come forward with the suit in question.
6. The 1st defendant had filed a written statement inter alia contending that the suit has been filed against him only to harass him and there is no cause of action against him since the allegation of attempts of interference is made only against the 2nd and the 3rd defendants. He would plead that he is an unnecessary party to the proceedings.
7. The defendants 2 and 3 who had sold the property along with their father to the plaintiff's father came forward with a defence that the total extent of 5 acres (from out of which the suit property measuring 2 acres had been purchased) are Panchama lands which belonged to the Government and the same was assigned to the father of defendants 2 and 3, Nagamuthu as he belonged to the Adi Dravida Community under a conditional patta dated 11.05.1964. As per the terms of the 5/14 https://www.mhc.tn.gov.in/judis S.A.No.50 of 2021 conditional patta dated 11.05.1964, the said Nagamuthu had no right to transfer/alienate or sell/mortgage the property assigned to him within 10 years and even after the lapse of 10 years the property cannot be sold to other than Scheduled Communities. On violation of any of these conditions, the assignment would become infructuous and the assignment land deemed to be remitted back to the Government.
8. The defendants would submit that the father of the plaintiff does not belong to Adi Dravida Community and therefore the defendants 2 and 3 and their father had no right to alienate the assignment property in favour of the plaintiff's father. They would submit that the plaintiff's father had taken advantage of the illiteracy of defendants 2 and 3 and their father into executing the sale deed. They would contend that they had signed the documents without knowing the nomenclature of the document. They would therefore submit that the plaintiff is not entitled to claim any right under the said sale deed. The defendants would contend that even prior to the sale in favour of the plaintiff's father, the property had been mortgaged with the Land 6/14 https://www.mhc.tn.gov.in/judis S.A.No.50 of 2021 Development Bank and therefore the sale is invalid.
9. The learned Trial Judge had framed the following issues on 16.06.2011:-
1. Whether the sale deed executed in terms of the plaintiff dated 07.07.1975 is true and valid?
2. Whether the plaintiff is in possession and enjoyment of the property as absolute owner?
3. Whether the plaintiff is entitled to the relief of declaration and injunction as prayed for?
4. To what other relief?
10. The learned Judge had also framed Additional issues on 12.02.2013:-
1. Whether the suit property are the absolute of the government?
2. Whether the State Government assigned conditional patta in favour of defendants 2 and 3 father namely Nagamuthu on 11.05.1964 is true?
3. Whether the suit is bad for non-joinder of necessary party?
11. The plaintiff had examined 3 witnesses on his side and marked Ex.A.1 to A.11. On the side of the defendants 2 witnesses were 7/14 https://www.mhc.tn.gov.in/judis S.A.No.50 of 2021 examined and Ex.B.1 to Ex.B.6 were marked.
12. The Trial Court had held that though the defendants would place their claim on the basis of Ex.B.1, B.5 and B.6, however, after the sale in favour of the plaintiff's father, the plaintiff's father had made necessary application to the Government and got the patta mutated in his favour. No objection had been raised by the Government in this regard. That apart, the learned Trial Judge held that it is for the Government to question the title and not the defendants who have already alienated their right in the same. The Trial Court also observed that since the plaintiff is in possession of the suit property his possession needs to be protected. The learned Trial Judge also held that the non-impleadment of the Government is not fatal to the case since the cause of action for instituting the suit is only the interference being caused by the defendants. Ultimately, the suit was decreed as prayed for.
13. Challenging the said judgment and decree the 2nd defendant had filed A.S.No.2 of 2015 on the file of the I Additional Sub Judge, 8/14 https://www.mhc.tn.gov.in/judis S.A.No.50 of 2021 Cuddalore. The Lower Appellate Judge on perusing Ex.B.5 and Ex.B.6 held that the lands in question are assignment lands given by the Government to Nagamuthu, the father of defendants 2 and 3, on certain conditions. The Lower Appellate Judge also held that the sale deed executed by defendants 2 and 3 and their father in favour of the plaintiff's father was a void transaction as the same violates the conditions stipulated in the assignment order. Ultimately, the Lower Appellate Court had held that the plaintiff was not entitled to the decree and allowed the appeal. Challenging the same, the plaintiff/appellant is before this Court.
14. Mr.R.Gururaj, the learned counsel appearing on behalf of the plaintiff would submit that Ex.B.1 is not an authenticated copy of the alleged assignment deed. Though the defendants would contend that the assignment is dated 11.05.1964, the Assignment deed Ex.B.1 does not contain any date and seal. He would further submit that the defendants have nowhere described the property as an assignment land.
In the mortgage deed dated 24.12.1970, the defendants have referred to 9/14 https://www.mhc.tn.gov.in/judis S.A.No.50 of 2021 their land as their ancestral property. Once again, in the sale deed executed in favour of the plaintiff's father, the property is not described as an assigned land. He would submit that this defence is only an afterthought and the plaintiff is entitled to the declaration and injunction.
15. Per contra, M/s.R.Meenal, learned counsel appearing on behalf of the defendant would submit that the disputed land was assigned by the government to the father of defendants 2 and 3, who belonged to the Adi Dravida community. The assignment was conditional, restraining the assignee from alienating the property for a period of 10 years. Even after this period, the sale could only be made to a member of the Adi Dravida community. Therefore, the sale deed executed in favour of the plaintiff's father by the defendants 1 and 2 and their father is a void transaction as the same violates the conditions stipulated in the assignment order.
16. She would also submit that the suit property had been 10/14 https://www.mhc.tn.gov.in/judis S.A.No.50 of 2021 mortgaged and during the subsistence of the mortgage, the sale deed had been entered into which is a void sale. That apart, it is her contention that defendants 2 and 3 had discharged the mortgage and the plaintiff's father had not contributed to the same. Though the property was purchased in the year 1975 by the plaintiff's father, an application for mutation was made only in the year 1995. Therefore, she would submit that the Lower Appellate Court was correct in allowing the appeal.
17. Heard the counsel on either side and perused the records.
18. To substantiate their case, the defendants have marked Ex.B.1, assignment deed. However, this deed lacks the official seal or signature and does not even bear the date. That apart, in the subsequent documents, namely, the mortgage deed dated 24.12.1970, Ex.B.2 and the sale deed dated 07.07.1975, Ex.A.1, the defendants have not referred to the assignment deed dated 11.05.1964. They have on the contrary described the property as their own property. Therefore, the 11/14 https://www.mhc.tn.gov.in/judis S.A.No.50 of 2021 contention that the property had been assigned by the Government to the father of defendants 2 and 3 does not stand proved. Therefore, once the assignment is not proved, the question of sale within a period of 10 years and that the sale could only be made to members of the Adi Dravida Community etc; pales into insignificance. Therefore, the Substantial Questions of Law (a) and (b) are answered against the defendants. The Lower Appellate Court has relied on a document (Ex.B.1) which lacks the value of the price of paper on which it is printed.
19. Prior to the sale deed, the defendants 2 and 3 and their father had executed a mortgage deed under Ex.B.2. It is seen that in this deed they had not mentioned the land as an assignment land. Ex.A.1, sale deed also does not contain such a recital. The defense of defendants 2 and 3 that the suit property is an assignment land is contrary to the documents on hand. Therefore, their defence is clearly barred under Sections 91 and 92 of the Evidence Act. The Substantial Question of Law (c) is also answered against the defendants. 12/14 https://www.mhc.tn.gov.in/judis S.A.No.50 of 2021
20. In fine, the Second Appeal is allowed, the Judgement and Decree of the lower Appellate Court is set aside and the Judgement and Decree of the Trial Court is confirmed. No costs. Consequently, the connected Miscellaneous Petition is closed.
12.03.2024 Index: Yes/No Speaking order/non-speaking order Neutral Citation: Yes/No shr To
1. The I Additional Sub Judge, Cuddalore.
2. The Principal District Munsif Court, Cuddalore.
3. The Section Officer, V.R.Section, High Court, Madras.
P.T.ASHA, J., 13/14 https://www.mhc.tn.gov.in/judis S.A.No.50 of 2021 shr S.A.No.50 of 2021 and C.M.P.No.1204 of 2021 12.03.2024 14/14 https://www.mhc.tn.gov.in/judis