Madras High Court
Sri Ramalingasamy Educational Trust vs Thanjavur Municipality on 30 November, 2016
S.A.(MD).No.46 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
JUDGMENT RESERVED ON : 21.02.2022
JUDGMENT PRONOUNDED ON : 13.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
S.A.(MD).No.46 of 2022
and CMP(MD).No.488 of 2022
1.Sri Ramalingasamy Educational Trust
By its Trustee
Having its office at 1/3107
Daniel Thomas Nagar, Nanjikottai Road
Thanjavur Town and Munsif
Thanjavur District
2.Vasantha
3.Chitra
4.Kamakshi
5.Minor Raghavi
Represented by her mother Kamakshi
6.Sri Ramalingasamy Educational Trust
By its present Trustee
K.Jayalakshmi
Having its office at 1/3107
Daniel Thomas Nagar, Nanjikottai Road
Thanjavur Town and Munsif
Thanjavur District ...Appellants 1 to 6/Appellants 1 to 6
/Defendants 3,4, 6 to 9
1/24
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.46 of 2022
Vs
1.Thanjavur Municipality
Represented by its Commissioner
Having its office at Gandhiji Road
Thanjavur Town and Munsif
Thanjavur District ...1st Respondent/1st Respondent
/Plaintiff
2.Gnanasekaran
3.Sugumar ...Respondents 2 to 3/Respondents 2 to 3
/Defendants 2 and 5
PRAYER : Second Appeal is filed under Section 100 of C.P.C,to set aside
the judgment and decree made in A.S.No.73 of 2012 on the file of the II
Additional District and Sessions Judge, Thanjavur dated 30.11.2016
confirming the judgment and decree dated 29.02.2012 made in O.S.No.45 of
2007 on the file of the Principal Subordinate Judge, Thanjavur and allow the
second appeal.
For Appellants : Mr.Ramasundar Vijayaraj
For M/s.Veera Associates
For R1 : Mr.N.Dilip Kumar
JUDGMENT
Defendants 3,4, 6 to 9 are the appellants.
2/24 https://www.mhc.tn.gov.in/judis S.A.(MD).No.46 of 2022
2.The plaintiff filed O.S.No.45 of 2007 before the Principal Subordinate Court, Thanjavur for the relief of cancellation of the judgment and decree dated 24.06.2003 passed in O.S.No.74 of 2003 on the file of Principal Subordinate Court, Thanjavur and for recovery of possession of the suit schedule property from the defendants. The plaintiff further prayed for a permanent injunction restraining the defendants 4 to 8 and their legal heirs from alienating the suit schedule property to the second defendant or any other third party. The plaintiff had further prayed for a decree for permanent injunction restraining the defendants or any persons claiming any right derived from them from putting up any construction or building over the suit schedule property. The suit was decreed by the trial Court as prayed for. Defendants, 3,4, 6 to 9 filed A.S.No.73 of 2012 before the II Additional District and Sessions Court, Thanjavur. The learned District Judge Judge was pleased to dismiss the appeal. As against the same, the present second appeal has been filed.
3.The plaintiff /Municipality had contended that the suit schedule properties were originally owned by the third defendant Educational Trust. 3/24 https://www.mhc.tn.gov.in/judis S.A.(MD).No.46 of 2022 They formed a lay out called as Sri Ramalingasamy Educational Trust layout. The said layout plan was approved by the appropriate authority namely the Director of Town and Country Planning Department. According to the plaintiff, in the said layout, two plots were reserved for park. The suit property is one among the two. The plaintiff had further contended that the trustees/lay out promoters executed a gift deed on 23.04.1997 in favour of Thanjavur Municipality and handed over the possession of the same with regard to the said plot. The gift deed was accepted and acted upon by plaintiff Municipality. Based upon the said gift deed, the property was classified as Children Play Field and it was notified under the Tamil Nadu Parks and Plays Fields Act. The Government of Tamil Nadu issued a Government order on 15.05.1996 and the same was published in Thanjavur District Gazette in October 1996. Thus, the plaintiff is the absolute owner of the property and he is in effective possession and in enjoyment.
4.The Municipality further contended that the trustee of the third defendant had executed a registered cancellation deed on 27.06.2001 by cancelling the gift deed in favour of the plaintiff municipality. The said 4/24 https://www.mhc.tn.gov.in/judis S.A.(MD).No.46 of 2022 cancellation deed is unilateral, illegal and void. After cancellation of the said gift deed, the third defendant trust has entered into a sale agreement with the first defendant. Based upon the said sale agreement, the first defendant had filed O.S.No.74 of 2003 before the Principal Subordinate Court, Thanjavur for specific performance. The said suit was taken on file on 16.05.2003. On 17.06.2003, the third defendant trust filed a memo submitting to the decree and prayed one month time to execute the sale deed. Based upon the said memo, the judgment and decree were passed on 24.06.2003 on the date of first hearing itself. According to the plaintiff, the said decree is fraudulent and collusive in nature and it will not confer any title upon the first defendant.
5.The plaintiff had further contended that based upon the said collusive decree, the first defendant had filed E.P.No.461 of 2003 and the third defendant remained exparte and a sale deed was executed by the Court on 04.03.2004 in favour of the first defendant. Thereafter, E.A.No.170 of 2004 was filed for taking delivery of the suit property and even in the said proceedings, the third defendant trust remained exparte and an order of 5/24 https://www.mhc.tn.gov.in/judis S.A.(MD).No.46 of 2022 delivery was passed on 15.03.2005. According to the Court records, delivery was taken on 01.04.2005. Though the plaintiff is in possession and enjoyment of the property continuously all the proceedings were taken behind the back of the plaintiff Municipality.
6.The learned counsel had further contended that the plaintiff Municipality has earlier filed O.S.No.565 of 2004 for declaration and consequential relief of permanent injunction. In the said suit, a preliminary issue was raised by the defendants with regard to the pecuniary jurisdiction and valuation of the suit property. The learned District Munsif, passed an order on 05.06.2006 directing the plaintiff Municipality to pay deficit Court fee. Since the deficit Court fee could not be paid in time, the plaint was rejected for non-payment of deficit Court fee. Taking advantage of the same, the defendants have attempted to remove the fencing and the board put up by the plaintiff Municipality. It is seen from the records that the first defendant has already entered into a sale agreement with the second defendant on 07.02.2007 and he is attempting to alienate the same in favour of the second defendant. Hence, the present suit for cancellation of the 6/24 https://www.mhc.tn.gov.in/judis S.A.(MD).No.46 of 2022 judgment and decree made in O.S.No.74 of 2003 and for recovery of possession and also for permanent injunction restraining the first defendant from alienating the suit property either in favour of the second defendant or in favour of any other persons.
7.The second defendant filed a written statement contending that he has entered into a registered sale agreement on 07.02.2007 with the first defendant and he has paid a sum of Rs.15,50,000/- as advance amount. Hence, the present suit is not maintainable.
8.The third defendant filed a written statement contending that though a registered gift deed was executed in favour of the plaintiff Municipality, the same was not accepted and it was not acted upon by the Municipality. The said disputed property was never used as a park or a play ground, but it was kept vacant by the plaintiff. Hence, the third defendant had executed a cancellation deed of the said gift. The third defendant had further contended that though three years period has lapsed, the Government has not initiated any action for acquisition of the property as contemplated under Section 36 7/24 https://www.mhc.tn.gov.in/judis S.A.(MD).No.46 of 2022 of Tamil Nadu Town and Country Planning Act. Once the said acquisition has not been effected with a period of there years, the entire property gets released from the public purpose and the defendants are entitled to alienate the same. The defendant had further contended that the Association of Danial Thomas Nagar has not been impleaded in the present suit and hence, the suit is bad for non-joinder of necessary party.
9.The fourth defendant filed a written statement contending that the plaintiff has already filed an obstruction petition in E.A.No.60 of 2005 in E.P.No.170 of 2004 in O.S.No.74 of 2003. The said obstruction application was dismissed after contest on 12.01.2007. Hence, the present suit is not maintainable, in view of the bar under Order 21 Rule 101 C.P.C. Hence, the defendant prayed for dismissal of the suit.
10.The trial Court after considering the oral and documentary evidence, arrived at a finding that the gift deed executed by the third defendant Educational Trust has been accepted by the plaintiff Municipality and the same has also been acted upon. The trial Court relied upon Exhibit 8/24 https://www.mhc.tn.gov.in/judis S.A.(MD).No.46 of 2022 A1 Government order issued by the Government of Tamil Nadu and Exhibit A3, the District Gazette to arrive at a finding that Exhibit A1 gift deed has been accepted and acted upon. The trial Court further held that once a gift deed has been accepted and acted upon, no one has right to cancel the said document. Hence, the unilateral cancellation will not revert the title in favour of the third defendant Educational Trust. Since the plaintiff was the owner of the suit schedule property, the third defendant was not entitled to enter into a sale agreement with the first defendant. The sequence of dates in the suit property in O.S.No.74 of 2003 will indicate that the suit filed by the first defendant as against the third defendant for specific performance is collusive in nature and hence, the same is void and not binding upon the plaintiff. The trial Court further found that the first defendant based upon the said collusive decree has entered into a sale agreement with the second defendant under Exhibit A16. When the third defendant trust does not have any title to the suit schedule property, consequently the sale deed in favour of the first defendant or the sale agreement entered into by the first defendant in favour of the second defendant are not legally sustainable. Based upon the said findings, the trial Court decreed the suit as prayed for. 9/24 https://www.mhc.tn.gov.in/judis S.A.(MD).No.46 of 2022
11.The First Appellate Court after careful re-appreciation of the oral and documentary evidence, arrived at a finding that once a plot is registered for public purpose under the reserved lay out, the same can never be converted into a private property to be alienated by the lay out promoters. The learned District Judge relied upon the various judgments of the Hon'ble Supreme Court as well as our High Court to arrive at a finding that the cancellation of the gift deed is not valid and hence, the subsequent alienation by the third defendant in favour of the first defendant is also not valid. Based upon the said findings, the First Appellate Court concurred with the trial Court and dismissed the appeal. As against the concurrent findings, the present second appeal has been filed by the defendants 3, 4 and 6 to 9.
12.The learned counsel for the appellants had contended that though a gift deed has been executed in favour of the plaintiff Municipality under Exhibit A1 in the year 1977, the same was not accepted or acted upon by the Municipality. The plaintiff has not taken possession or made any improvement in the suit schedule property. Only on the said ground, a 10/24 https://www.mhc.tn.gov.in/judis S.A.(MD).No.46 of 2022 cancellation was executed by the third defendant trust on 27.06.2001. As contemplated under Section 36 of the Tamil Nadu Town and Country Planning Act, the Government has to acquire any place that is reserved for public purpose. Hence, the third defendant trust continues to be a owner of the suit schedule property. Hence, the cancellation deed was executed only by way of abundant caution. The learned counsel had further contended that the plaintiff has filed O.S.No.565 of 2004 for the relief of declaration of title and permanent injunction. The said suit was dismissed on the ground of non payment of deficit Court fee. Hence, the present suit is not maintainable. He had further contended that challenging the execution of specific performance decree in O.S.No.74 of 2003, the plaintiff had filed E.A.No.60 of 2005 under Order 21 Rule 97 C.P.C. The said application was dismissed on merits. Hence, the present suit is not maintainable, in view of bar under Section Order 21 Rule 101 of C.P.C. He had further contended that the maintainability of the present suit has not been properly appreciated by the Courts below. Merely because the suit schedule property has been notified as park under Government order that will not divest the third defendant of his title to the suit schedule property without an acquisition on the part of 11/24 https://www.mhc.tn.gov.in/judis S.A.(MD).No.46 of 2022 the Government. Hence, he prayed for admitting the second appeal on the ground that it involves various substantial questions of law.
13.Per contra the learned counsel appearing for the first defendant Municipality had contended that once a gift deed is executed in favour of the Municipality, thereafter the third defendant Trust has no title to the suit schedule property. He had further contended that there is no clause for revocation of the said gift deed. Even as per recital in the said gift deed, possession has been handed over to the Municipality on the date of the gift deed. Thereafter, the gift deed has been acted upon. The Government of Tamil Nadu has passed a G.O. Under Exhibit A2 which has been published in the District Gazette under Exhibit A3. Exhibits A2 and A3 will clearly demonstrate that the gift deed has been accepted and acted upon by the plaintiff Municipality.
14.The learned counsel for the respondents had further contended that O.S.No.565 of 2004 was filed for declaration of title and permanent injunction. However, due to objection raised by the defendants with regard 12/24 https://www.mhc.tn.gov.in/judis S.A.(MD).No.46 of 2022 to the valuation of the suit and quantum of Court fee, the trial Court permitted the plaintiff namely Municipality to pay additional Court fee. Due to administration delay, the additional Court fee could not be paid in time and hence, the plaint was rejected by the trial Court.
15.According to the learned counsel for the respondents, the said rejection of the plaint due to non payment of additional Court fee will not bar the present suit. The learned counsel had further contended that the plaintiff Municipality had filed an obstruction petition in the specific performance suit for declaration of their title and protective their possession. The present suit is for declaration of decree in the said suit as null and void and for recovery of possession. Hence, the order passed in E.A.No.60 of 2005 will not bar the present suit.
16.The learned counsel for the respondents had further contended that the dates and events in the suit for specific performance in O.S.No.74 of 2003 will clearly indicate that it is a collusive suit only in order to defraud the Municipality. Hence, the Courts below have arrived at a concurrent finding that Exhibit A1 has been accepted and acted upon and specific 13/24 https://www.mhc.tn.gov.in/judis S.A.(MD).No.46 of 2022 performance decree is a collusive decree. The said concurrent finding need not be disturbed since no substantial question of law has been raised in the present second appeal. Hence, he prayed for dismissal of the second appeal.
17.I have given anxious consideration to the submissions made on either side.
18.The suit schedule property admittedly belonged to the third defendant Educational Trust. The said trust has formed a layout and has approached the statutory authority for approval of the said layout. The said lay out has been approved by Tamil Nadu Town and Country Planning Authority subject to the condition that certain places are reserved for park and play ground. One of the said reserved place is the subject matter of the present suit. Admittedly, the third defendant trust has executed a gift deed under Exhibit A1 in favour of the plaintiff Municipality. The above said facts are admitted by both parties.
19.The third defendant trust has chosen to unilaterally cancel the said gift deed under Exhibit A4 on 27.06.2001. A perusal of Exhibit A4 indicates 14/24 https://www.mhc.tn.gov.in/judis S.A.(MD).No.46 of 2022 that it has been cancelled on the ground that no park or play ground has been created in the said property and the title of the revenue records continue to be in the name of Educational Trust which formed the lay out.
20.A perusal of Exhibit A1 gift deed will clearly disclose that the donor has not reserved any right in the said gift deed for revocation of the said gift. That apart on the date of execution of Exhibit A1 gift deed, possession has been handed over to the plaintiff Municipality as per recital in the said gift deed. When there is no clause for revocation of the gift deed, the third defendant trust will not be entitled to revoke the same especially by way of an unilateral document. The execution of Exhibit A1 gift deed is not a voluntary transaction. It is a condition precedent for approval of lay out by Tamil Nadu Town and Country Planning Department. Only on condition that the third defendant trust will execute a gift deed in favour of the local authority, the layout plan was approved by the statutory authority. Hence, when a gift is executed pursuant to a statutory mandate as a precondition for layout approval, the layout promoter will have no right at all to cancel the said gift deed at any point of time under any circumstances. In case such a 15/24 https://www.mhc.tn.gov.in/judis S.A.(MD).No.46 of 2022 gift deed is cancelled, that would result in nullifying the entire lay out approval granted by the authorities. The plaintiff Municipality has invoked Tamil Nadu Parks, Play-fields and Open Spaces (Preservation and Regulation) Act, 1959. Hereinafter called as Tamil Nadu Act 26 of 1959. Invoking the provisions of the said Act, the Executive Authority of Municipality has prepared a list of parks and forwarded the same for the approval of the Government as contemplated under Section 3 of the said Act. The Government has published a list calling for objection from the public. Since there was no objection, the Government has approved the list as contemplated under Section 4 of Act 26 of 1959. The said approval has been published under Exhibit A2 and republished in Exhibit A3 District Gazette. The invocation of Tamil Nadu Act 26 of 1959 and publication of the Government order under Exhibits A2 and A3 will clearly indicate that the plaintiff Municipality has not only taken possession but also acted upon the said gift deed. The parks which are notified under the above said Act, cannot be used for any other purpose except with previous sanction of the Government. The local authority/Municipality has been conferred upon, only the power to maintain the said park and removal of unauthorised 16/24 https://www.mhc.tn.gov.in/judis S.A.(MD).No.46 of 2022 persons from the said park. Hence, it is clear that the present suit schedule property has got vested with the Government under Tamil Nadu Act 26 of 1959 with a power of maintenance and removal of encroachment being vested with local authorities namely the plaintiff Municipality.
21.Hence, the contention of the learned counsel for the appellants that Exhibit A1 gift deed was not neither accepted nor acted upon is not factually correct but it is otherwise.
22.The learned counsel for the appellants had further contended that the plaintiff has already initiated a suit for declaration of title and permanent injunction with regard to the same suit schedule property in O.S.No.565 of 2004. The said suit was dismissed due to non payment of adequate Court fee. Hence, the present suit is barred under Section 11 of C.P.C. A perusal of Exhibit A15 decree indicates that the suit has not been dismissed for default, but the plaint has been rejected only for non payment of adequate Court fee as contemplated under Order 7 Rule 11 (b) of C.P.C. The suit has not been decided on merits and hence, the contention that the present suit is barred 17/24 https://www.mhc.tn.gov.in/judis S.A.(MD).No.46 of 2022 under Section 11 of C.P.C is not legally sustainable. That apart, where a plaint has been rejected on a technical ground, the plaintiff is always liberty to file a fresh suit after rectifying the said defects. Order 7 Rule 13 of C.P.C. is extracted as follows:
“Order 7 Rule 13 –Where rejection of plaint does not preclude presentation of fresh plaint-The rejection of the plaint on any of the grounds mentioned in rule 11 shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.”
23.A perusal of Order 7 Rule 13 indicates that the rejection of the plaint on any one of the grounds under Order 7 Rule 11 of C.P.C shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. Hence, where a plaint is rejected for non payment of Court fee even after being called upon by the Court, the said rejection of plaint is not a bar for filing a fresh suit on the same cause of action, in view of the provisions of Order 7 Rule 13 C.P.C. Hence, the contention of the learned counsel for the appellants that the present suit is barred is not legally sustainable.
18/24 https://www.mhc.tn.gov.in/judis S.A.(MD).No.46 of 2022
24.The learned counsel for the appellants had contended that the first defendant had filed O.S.No.74 of 2003 for the relief of specific performance as against the third defendant. The said suit was decreed on 24.06.2003 and a sale deed was also executed by the Court. Thereafter, when the delivery application was pending, the present plaintiff has filed an obstruction application in E.A.No.60 of 2005 which was dismissed on 12.01.2007. Where an obstruction application has been dismissed, the plaintiff will not be entitled to file any suit on the same cause of action, in view of the bar under Order 21 Rule 101 C.P.C.
25.I have carefully perused the order made in E.A.No.60 of 2005 filed under Order 21 Rule 97 C.P.C. Though the said application has been dismissed, liberty had been granted to the obstructor to redress his grievance in O.S.No.565 of 2004 which was pending at that point of time. Admittedly, a suit for declaration of title and permanent injunction was already filed by the Municipality and while it was pending, E.A.No.60 of 2005 has been filed in O.S.No.74 of 2003.
19/24 https://www.mhc.tn.gov.in/judis S.A.(MD).No.46 of 2022
26.Order Rule 21 Rule 104 is extracted as follows:
“ 104.Order under rule 101 or rule 103 to be subject to the result of pending suit- Every order made under rule 101 or rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under rule 101 or rule 103 is made has sought to establish a right which he claims to the present possession of the property”
27.A perusal of Order 21 Rule 104 C.P.C indicates that any order passed under Order 21 Rule 101 is always subject to the result of the suit which is already pending on the date of commencement of the proceedings under Order 21 rule 97 C.P.C. In the present case, admittedly, when E.A.No. 60 of 2005 was filed under Order 21 Rule 97 C.P.C by the present plaintiff, the suit in O.S.No.565 of 2004 was pending. Hence, the order passed in E.A.No.60 of 2005 shall not be final but only subject to the result in O.S.No.565 of 2004. The suit in O.S.No.565 of 2004 was rejected on the ground of non payment of adequate Court fee.
28.The prayer in O.S.No.565 of 2004 is for declaration of title and permanent injunction. Further in the present suit, the prayer is to declare the 20/24 https://www.mhc.tn.gov.in/judis S.A.(MD).No.46 of 2022 decree obtained by the first defendant in O.S.No.74 of 2003 as collusive, illegal and void and it will not be binding upon the plaintiff Municipality. Hence, the prayer in O.S.No.565 of 2004 and the present suit are completely different. As discussed earlier, in view of Tamil Nadu Act 26 of 1959, the suit property has vested in the hands of the State Government. The Municipality is only a caretaker to maintain the park and for removal of encroachment. Hence, the present suit is maintainable even though E.A.No.60 of 2005 wad dismissed and the plaint in O.S.No.565 of 2004 was rejected.
29.As discussed earlier, the unilateral cancellation deed executed by the third defendant under Exhibit A4 is not legally valid. However, based upon the said cancellation deed, the third defendant had entered into a sale agreement with the first defendant. The first defendant has filed O.S.No.74 of 2003 for specific performance on 14.05.2003. The said suit was taken on file on 16.05.2003. On the very next day namely 17.05.2003, the third defendant has filed a memo submitting to the decree and prayed one month time to execute the sale deed. Based upon the said memo, a decree has been passed on 24.06.2003. Thereafter, the first defendant/decree holder had 21/24 https://www.mhc.tn.gov.in/judis S.A.(MD).No.46 of 2022 filed E.P.No.460 of 2003 in which the third defendant had remained exparte and the sale deed was executed by the Court. Thereafter, the first defendant had filed E.A.No.170 of 2004 to take delivery of the property. In the said application also, the third defendant had remained exparte. The sequence of events narrated above will clearly show that the said suit for specific performance is a collusive suit. Only in order to defraud the plaintiff Municipality, the decree in O.S.No.74 of 2003 has been obtained on 24.06.2003. The order in E.A.No.60 of 2005 has been passed on 12.01.2007 and the present suit has been filed on 08.05.2007. Hence, the present suit is not barred by limitation. The plaintiff had knowledge about O.S.No.74 of 2003 only in the year 2005 and the plaintiff had filed E.A.No.60 of 2005 which was dismissed on 12.01.2007. Any suit to cancel or set aside a decree should be filed within a period of three years from the date when the document is known to the plaintiff as contemplated under Article 59 of Limitation Act. In the present case, the plaintiff became aware of the decree in O.S.No.74 of 2003 only in the year 2005 and the present suit has been filed on 08.05.2007 which is clearly within a period of three years and hence, the suit is not barred by limitation.
22/24 https://www.mhc.tn.gov.in/judis S.A.(MD).No.46 of 2022
30.In view of the above said discussion, no question of law much less a substantial question of law that arises for consideration in the present Second Appeal. The Courts below after careful consideration of the oral and documentary evidence, decreed the suit as prayed for. The judgment and decree of the Courts below are confirmed. The Second Appeal stands dismissed at the admission stage itself. No costs. Consequently, connected miscellaneous petition is closed.
13 .06.2022
Index : Yes / No
Internet : Yes / No
msa
To
1.The Principal Subordinate Judge
Thanjavur
2.The II Additional District and Sessions Judge
Thanjavur
3.The Section Officer
V.R.Section
Madurai Bench of Madras High Court
Madurai
23/24
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.46 of 2022
R.VIJAYAKUMAR,J.
msa
Pre-delivery Judgment made in
S.A.(MD).No.46 of 2022
and CMP(MD).No.488 of 2022
13.06..2022
24/24
https://www.mhc.tn.gov.in/judis