In the High Court of Judicature at Madras Dated: 21.4.2008 Coram: The Honourable Mr.Justice M.JAICHANDREN S.A.Nos.1266 and 1267 of 2007 Rita .. Appellant in both the second appeals vs. C.Suseela .. 1st respondent in both the second appeals
The Tamil Nadu Slum Clearance Board
rep. by its Chairman
Kamaraj Salai
Chennai-600 005 .. 2nd respondent in S.A.No.1266 of 2007
The Estate Officer III
Tamil Nadu Slum Clearance Board
Chennai-39 .. 3rd respondent in S.A.No.1266 of 2007
The Tamil Nadu Slum Clearance Board
rep. by its President
Kamaraj Salai
Chennai-600 005 .. 2nd respondent in S.A.No.1267 of 2007
S.A.No.1266 of 2007:
The Second Appeal has been filed against the judgment and decree, dated 27.7.2007, made in A.S.No.427 of 2004, on the file of the Additional District and Sessions Judge, Chennai, Fast Track Court No.III, Chennai, reversing the judgment and decree, dated 22.7.2004, made in O.S.No.5848 of 1998, on the file of the VIth Assistant City Civil Court, Chennai.
S.A.No.1267 of 2007:
The Second Appeal has been filed against the judgment and decree, dated 27.7.2007, made in A.S.No.428 of 2004, on the file of the Additional District and Sessions Judge, Chennai, Fast Track Court No.III, Chennai, reversing the judgment and decree, dated 22.7.2004, made in O.S.No.15436 of 1996, on the file of the VIth Assistant City Civil Court, Chennai.
For Appellant : Mr.V.G.Suresh Kumar
(in both the second appeals)
For Respondents : Mr.M.Kalyanasundaram
Senior Advocate for
Mr.P.P.Shanmugasundaram
for the respondent 1 in both the second appeals
Mr.R.Chellamuthu
for the respondents 2 and 3 in
S.A.No.1266 of 2007
and respondent 2 in S.A.No.1267 of 2007
C O M M O N J U D G E M E N T
Heard the learned counsels appearing for the parties concerned.
2. Since the facts and circumstances arising in both the second appeals are the same and as the issues arising for determination are connected, a common judgment is passed.
3. The second appeal in S.A.No.1266 of 2007, has been filed against the judgment and decree, dated 27.7.2007, made in A.S.No.427 of 2004, on the file of the Additional District and Sessions Judge, Chennai, Fast Track Court No.III, Chennai, reversing the judgment and decree, dated 22.7.2004, made in O.S.No.5848 of 1998, on the file of the VIth Assistant City Civil Court, Chennai.
4. The second appeal in S.A.No.1267 of 2007, has been filed against the judgment and decree, dated 27.7.2007, made in A.S.No.428 of 2004, on the file of the Additional District and Sessions Judge, Chennai, Fast Track Court No.III, Chennai, reversing the judgment and decree, dated 22.7.2004, made in O.S.No.15436 of 1996, on the file of the VIth Assistant City Civil Court,Chennai.
O.S.No.5848 of 1998
5. The original suit in O.S.No.5848 of 1998, had been filed by the plaintiff, namely, C.Suseela, praying for a judgment and decree against the defendants therein to direct
the defendants to deliver vacant possession of the schedule mentioned plot to the plaintiff with all fixtures and for a direction to the defendants 3 and 4 to pay future damages at Rs.200/- per month from the date of the plaint till the date of delivery of possession of the schedule mentioned plot. The plaintiff in the said suit had also prayed for a mandatory injunction to direct the defendants 1 and 2 to execute the final sale deed in favour of the plaintiff in respect of the schedule mentioned plot. It was also prayed that the defendants 3 and 4 ought to be restrained from putting up any construction in the schedule mentioned plot and from getting electricity and water connection by way of a permanent injunction.
6. The first defendant is the Tamil Nadu Slum Clearance Board represented by its Chairman, the second defendant is the Estate Officer of the said Board and the third defendant in the suit is Anthony Ammal, wife of Chinnappan and the mother of the plaintiff. The fourth defendant, mamely, Rita, is the sister of the plaintiff.
7. The case of the plaintiff is that her father Chinnappan was allotted a plot of land at No.96, New Door No.343, Old Door No.297, C.Kalyanapuram, Vyasarpadi, Madras. The plot was allotted to Chinnappan by the second defendant in the year 1959-60. After the allotment, the plaintiff’s father was in absolute possession and enjoyment of the same. Chinnappan had died, on 11.6.1971. He had executed a ‘Koorucheetu’ in the year, 1970, bequeathing the plot allotted by the defendants 1 and 2, in favour of the plaintiff. He had also bequeathed another property at No.121, Kannigapuram 4th street, Vyasarpadi, Madras, in favour of his daughter Rita, the fourth defendant in the suit. After the demise of the plaintiff’s father Chinnappan, she has been in possession and enjoyment of the plot. Since the plaintiff and her husband had been paying the installments due to the defendants 1 and 2, she had submitted an application to the second defendant for transferring the allotment in her favour.
8. After the necessary verification, the second defendant had directed the plaintiff to pay the remaining installments. Pursuant to the said direction, the plaintiff had paid the entire amount due, on 31.3.1984. Thereafter, the defendants 1 and 2 had entered into a lease cum sale agreement with the plaintiff. As per the said agreement, the plaintiff had to pay the entire sale price, within a period of 10 years upto the year 1994. Accordingly, the plaintiff had paid the sale price. On 31.3.1994, the first defendant had issued a No Objection Certificate for the construction of a building in the plot and had also permitted the plaintiff to obtain electricity connection and also water and drainage connection.
9. In spite of the plaintiff paying the entire sale consideration, the defendants 1 and 2 had not executed the sale deed in favour of the plaintiff. Therefore, the plaintiff had filed a writ petition in W.P.No.15848 of 1994, before the High Court, Madras, praying for a writ of mandamus to direct the first and second defendants to execute the sale deed. While so, the third and fourth defendants had trespassed into the suit property and they were preventing the plaintiff from occupying and enjoying the property. In such circumstances, the plaintiff had filed the present suit praying for the relief as stated therein.
10. A written statement has been filed by the first defendant in which it is stated that the first defendant had allotted the plot No.297-C, Kalyanapuram, Vyasarpadi, Madras, to the plaintiff by the proceedings No.403/83/B/III, dated 16.3.1984. The plaintiff was allotted the plot on the basis of an eligibility list prepared by the Special Tahsildar. Since the plaintiff had remitted the entire sale consideration for the plot, a No Objection Certificate had been issued. However, the third and fourth defendants had been staying in the plot and they had produced a No Objection Certificate before the Tamil Nadu Electricity Board authorities to get electricity connection, without the knowledge of the first defendant. Therefore, the first defendant had informed the Tamil Nadu Electricity Board officials not to provide electricity connection to the plot, as there was a civil dispute pending with regard to the said plot.
11. In the written statement filed by the third and fourth defendants, it has been stated that they had filed O.S.No.15436 of 1996, before the VIth Assistant City Civil Court, Chennai, praying for a declaration that the allotment by the first defendant in favour of the plaintiff is void and invalid in the eye of law. Further, the plaintiff in the said suit had also prayed for a decree of partition of the suit property allotting the 2/3rd share in their favour.
12. It has been submitted that the entire sum due towards the installments for the purchase of the suit property had been paid only by the third defendant. The defendants had also denied the allotment of the property bearing Door No.121, Kannigapuram, Chennai, in favour of the deceased Chinnappan by way of a ‘Koorucheetu’. It has also been stated that the plaintiff and her husband had not resided in the suit property as claimed by the plaintiff.
O.S.No.15436 of 1996:
13. Antony Ammal wife of Chinnappan and her daughter Rita had filed O.S.No.15436 of 1996, against C.Suseela as the first defendant and the Tamil Nadu Slum Clearance Board, represented by its President, as the second defendant. The plaintiffs had sought for the relief of declaration to declare the order of transfer of allotment of the suit property by the second defendant in favour of the first defendant in ref.Na.Ka.No.B-2/4380/76, dated 16.7.1977 and the subsequent execution of the lease cum sale agreement by the second defendant in favour of the first defendant, on 16.3.1984, is void invalid and not binding on the plaintiffs. A further direction had also been prayed for partitioning of the suit property between the plaintiffs and the first defendant by metes and bounds and for allotting the plaintiffs 2/3rd share in the suit property.
14. The plaintiffs had stated that the suit property was originally allotted by the second defendant in favour of late Chinnappan, the husband of the first plaintiff and father of the second plaintiff in the year 1959-60. The plaintiffs had been residing in the suit property from the date of its allotment along with Chinnappan till his death in the year 1971. Even thereafter, the plaintiffs and the children of the second plaintiff had been living in the suit property. The monthly installments due to be paid to the second defendant had been paid by Chinnappan till his death. Thereafter, the plaintiffs have been paying the amounts by way of installments to the husband of the first defendant. However, taking advantage of the faith reposed on him by the first plaintiff, the first defendant had made arrangements to transfer the allotment of the suit property in favour of his wife C.Suseela. Thus, without knowledge of the plaintiffs, the suit property had been allotted in the name of the first defendant in the year, 1977 and subsequent lease cum sale agreement had been secured from the second defendant, on 16.3.1984. Since the first defendant had filed a writ petition before the High Court, Madras, in W.P.No.14848 of 1994, to direct the second defendant to execute the sale deed in respect of the suit property in favour of the first defendant, the plaintiffs had filed an application to implead themselves in the said writ petition by filing a writ miscellaneous petition in W.M.P.No.4918 of 1996.
15. It has also been stated that the plaintiffs are in possession of the suit property as the legal representatives of the original allottee, late Chinnappan, and they are entitled to 2/3rd share in the suit property, while the first defendant is entitled to 1/3rd share in the said property. During the pendency of the suit before the trial Court, the first plaintiff had died and the second plaintiff has been recorded as one of the legal heirs of the first plaintiff, along with the other legal heir, namely, C.Suseela, who is the first defendant in the suit.
16. In the written statement filed by the first defendant, it has been stated that she was married to one C.Chidambaram. After her marriage, she was living with her father Chinnappan, along with her husband, in the schedule mentioned plot. At that time, the first defendant’s husband was working in the Park Town Co-operative Stores, Madras. Since the first defendant’s father was unable to pay the installments to the second defendant, the first defendant had taken the entire financial burden and she had paid the entire amounts due to be paid by way of instalments, in respect of the suit property, to the second defendant. The second plaintiff had been living in Calcutta along with her husband after her marriage in the year 1956 and the first defendant and her husband were maintaining the entire family of Chinnappan and the first plaintiff. Chinnappan had executed a ‘Koorucheetu’ by which the suit schedule mentioned plot had been given to the first defendant and the other property at 121, Dass Nagar Pallam, Madras, belonging to Chinnappan had been given to the second plaintiff. By virtue of the ‘Koorucheetu’, the scheduled mentioned plot is the absolute property of the first defendant and she had paid the entire instalments due to the second defendant. Thereafter, the second defendant had entered into the sale cum lease agreement with the first defendant and a No Objection Certificate had also been issued for the construction of a building in the schedule mentioned plot.
17. It has also been stated that the first plaintiff had never requested the first defendant to pay the installments on her behalf and to transfer the allotment in her favour. The plaintiffs’ and the first defendant’s family had lived jointly in the scheduled mentioned plot. Later, the first defendant and her husband had been forced to live in the rented premises. The plaintiffs have filed the suit without having any legal right and without producing any relevant document relating to the scheduled mentioned plot. The suit is also barred by limitation.
18. In the written statement filed by the second defendant, it has been stated that the suit is barred by limitation as the plaintiffs are seeking the relief to cancel the valid allotment made in the year, 1984. Further, the suit is not maintainable under Section 65 of The Tamil Nadu Slum Area (Improvement and Clearance) Act, 1972, as a civil suit cannot be maintained in such matters. The suit land had originally belonged to the Tamil Nadu Housing Board and subsequently, it was transferred to the Tamil Nadu Slum Clearance Board under the Madras Urban Development Scheme. The Special Tahsildar, after a detailed enquiry, had prepared an eligibility list and based on which it was found that C.Suseela is one of the eligible persons for the allotment in plot No.96. Accordingly, the second defendant Board, in its proceedings, dated 16.3.1984, made in No.403/93, had issued an allotment order in favour of C.Suseela. The allegation that C.Suseela had got the transfer by fraudulent means is denied.
19. Based on the averments made in the plaint as well as the contentions raised in the written statement, the trial Court had framed the following issues for consideration in O.S.No.15436 of 1996:
“1. Whether the plaintiff is entitled to the declaration as prayed for?
2. Whether the plaintiff is not entitled to 2/3rd share?
3. Whether the plaintiff is not entitled to any share in the suit property?
4. Whether the suit is barred by limitation?
5. Whether the suit is not maintainable in view of Section 65 of the Tamil Nadu Slum Area (Improvement & Clearance) Act?
6. Whether the allotment in favour of the first defendant Suseela is in accordance with rules?
7. To what relief?”
20. The trial Court had framed the additional issue in O.S.No.15436 of 1996, which is as follows:
“1. Whether the plaintiff is entitled to = share only?”
21. Considering the evidence on record and the facts and circumstances of the case, the trial Court had recast the issues in O.S.No.15436 of 1996, as follows:
“1. Whether the plaintiff is entitled to the declaration as prayed for?
2. Whether the plaintiff is entitled to = share in the suit property?
3. Whether the suit is barred by limitation?
4. Whether the suit is maintainable in view of Section 65 of the Tamil Nadu Slum Area (Improvement & Clearance) Act?
5. To what relief?”
22. Based on the averments made in the plaint as well as the contentions raised in the written statement, the trial Court had framed the following issues for consideration in O.S.No.5848 of 1998:
“1. Is it true that the plaintiff is the allottee of suit property?
2. Whether the defendants 3 and 4 are not having any interest in the suit property?
3. Whether the suit is for possession without the relief of declaration of title is maintainable in law?
4. Whether the plaintiff is entitled for possession?
5. Whether the plaintiff is entitled for the damages?
6. If so to what extent?
7. For what relief?”
23. Considering the evidence on record and the facts and circumstances of the case, the trial Court had recast the issues in O.S.No.5848 of 1998, as follows:
“1. Whether the suit for possession without the relief of declaration of title is maintainable in law?
2. Whether the plaintiff is entitled to the relief of possession?
3. Whether the plaintiff is entitled to damages for use and occupation as prayed for?
4. To what relief?”
24. The trial Court, after considering the evidence on record, had decreed the suit filed by Anthony Ammal. With regard to issues 1 and 2 in O.S.No.5848 of 1998, filed by C.Suseela for recovery of possession, the trial Court had held that in the absence of declaration of her right over the suit property, the relief of mere recovery of possession cannot be granted. It was also held that after the death of Chinnappan the suit property devolves on the plaintiff as well as on the defendants 3 and 4 in O.S.No.5848 of 1998.
25. With regard to issue No.3, it was held that the defendants 3 and 4 cannot be directed to pay damages for the use and occupation of the suit property, as the plaintiff is not entitled to the entire property in question and the defendants 3 and 4 cannot be said to be in unauthorised occupation of the suit property.
26. With regard to issue No.2 in O.S.No.15436 of 1996, filed by Anthony Ammal and Rita, the trial Court had held that the first defendant had obtained the allotment in her favour by fraudulent means and holding that the plaintiffs and the first defendant are the legal heirs of late Chinnappan. The trial Court had further held that the second plaintiff was entitled to half share of the suit property as the first plaintiff had died during the proceedings before the trial Court.
27. With regard to issue No.3 in O.S.No.15436 of 1996, it was held that the first defendant was not in possession of the suit property. Since the suit is for partition, the question of limitation did not arise.
28. With regard to the fourth issue in O.S.No.15436 of 1996, the trial Court had held that there was a clear bar of the jurisdiction of the civil Court, under Section 65 of The Tamil Nadu Slum Area (Improvement & Clearance) Act, 1971, in respect of matters in which the Government are the prescribed authorities empowered to determine. However, such a bar of jurisdiction of civil court has not been raised by the Government authorities and it has been raised only by the first defendant. In the present case, the order of transfer of allotment by the second defendant in favour of the first defendant has been challenged. The first defendant had got an order in her favour by filing a false affidavit and making a false representation. Therefore, the bar of jurisdiction will not be applicable to the facts and circumstances of the present case. Thus, the suit is maintainable with regard to issue No.5 in O.S.No.15436 of 1996 and issue No.4 to 7 in O.S.No.5848 of 1998. It was held that the second plaintiff in O.S.No.15436 of 1996, is entitled to the declaration as prayed for as well as the division by metes and bounds of the plaint schedule property and allotment of half share in the suit property and the plaintiff in O.S.No.5848 of 1998, is not entitled to delivery of vacant possession, as prayed for and for damages as claimed by the plaintiff. The relief of mandatory injunction to direct the defendants 1 and 2 to execute the final sale deed and the relief of permanent injunction cannot be granted. Thus, the trial Court had allowed the suit in O.S.No.15436 of 1996 and dismissed the suit in O.S.No.5848 of 1998, by a common judgment and decree, dated 22.7.2004.
29. Aggrieved by the said common judgment and decree of the trial Court, dated 22.7.2004, made in O.S.No.15436 of 1996 and O.S.No.5848 of 1998, on the file of the VIth Assistant City Civil Court, Chennai, C.Suseela, the plaintiff in O.S.No.5848 of 1998, and first defendant in O.S.No.15436 of 1996, had filed appeals in A.S.Nos.427 and 428 of 2004, on the file of the Additional District and Sessions Judge, Chennai, Fast Track Court No.III, Chennai, raising various grounds as stated therein.
30. The appellant in A.S.No.428 of 2004, had stated, inter alia, that the trial Court had failed to note that Rita the fourth defendant in the suit in O.S.No.5848 of 1998 and the first respondent in the appeal in A.S.No.428 of 2004 and her mother had not claimed any right over the allotment before the Tamil Nadu Slum Clearance Board and therefore, they are estopped from claiming any share in the suit property. The fourth defendant had filed a civil suit in O.S.No.15436 of 1996, without approaching the Tamil Nadu Slum Clearance Board, as contemplated by the provisions of The Tamil Nadu Slum Area (Improvement and Clearance) Act, 1971. In such circumstances, the civil suit filed by the fourth defendant is not maintainable in law.
31. It was also contended that the trial Court had failed to note that the plaintiff in the suit in O.S.No.15436 of 1996, had only sought for the recovery of possession. However, the trial Court had erroneously granted a decree for partition. The trial Court had also failed to note that the fourth defendant had not raised any objection with regard to the ‘Koorucheetu’ executed by her father late Chinnappan. Further, the trial Court had erred in appreciating the evidence of D.W.2, the official of the Tamil Nadu Slum Clearance Board, who had no knowledge of the proceedings which had taken place in the year 1977.
32. It had also been stated that the trial Court had failed to appreciate the submissions made on behalf of the Tamil Nadu Slum Clearance Board which would clearly show that the plaintiff C.Suseela is the absolute owner of the suit property and that no other person is entitled to have any right in the said suit property.
33. The first appellate Court by a common judgment and decree, dated 27.7.2007, allowed the suit in O.S.No.5848 of 1998 in A.S.No.427 of 2004, holding that the defendants had to deliver vacant possession of schedule mentioned plot to the plaintiff with all fixtures and that the defendant is to pay to the plaintiff a sum of Rs.200/- towards future damages from the date of plaint, i.e., 24.12.1996, till the date of delivery of possession of the property. Further, the defendant had been restrained by way of a permanent injunction from putting up any construction in the schedule mentioned plot and from getting electricity water supply and drainage connection from the concerned Board.
34. The first appellate Court had framed the following points for consideration:
“1.Whether the suit filed by the wife of deceased Chinnappan and one another daughter of the said Chinnappan for the relief of declaration, that the order of transfer and allotment of the suit property by the Slum Clearance Board, in O.S.No.15436 of 1996 in favour of Suseela/1st defendant (now appellant) dated 16.7.1977 bearing reference No.Na.Ka.No.B-2/4380/76 followed by execution of lease cum sale agreement by the 2nd defendant in favour of the Suseela on 16.3.1984 is void, invalid and not binding on the plaintiffs?
2. Whether the 2nd plaintiff in O.S.No.15436 of 1996 is entitled for half share in the suit property after the death on 1st plaintiff Anthony Ammal?
3. Whether the suit filed by the plaintiffs in O.S.No.15436 of 1996 is barred under Section 65 of the Tamil Nadu Slum Clearance Board Act?
4. Whether the plaintiff/Suseela in O.S.No.5848 of 1998 is entitled to recover the vacant possession of suit property with damages at the rate of Rs.200/- p.m., from the date of plaint till the date of delivery?
5. Whether the plaintiff/Suseela is entitled for the permanent injunction restraining the 4th respondent for putting up any new construction in the schedule mentioned properties any electricity connection and also water connection from the respective department in the name of 4th respondent?”
35. Based on the rival contentions raised on behalf of the parties concerned and on the evidence available, the first appellate Court had held that in between the date of allotment of the suit property in favour of late Chinnappan in the year 1959-60 and 11.6.1971, when he had died, there is no documentary evidence to prove that the original allottee late Chinnappan had paid the rental amount or the sale price for the suit property. The first appellate Court had also found that there is proof under Exhibit B.2 series commencing from 1972 to 1994 to show that the sale price amount or the lease amount had been paid by C.Suseela and her husband. There is no evidence available to prove that Anthony Ammal and her daughter Rita had paid any amount to the Tamil Nadu Slum Clearance Board. Rita who had been examined as P.W.1 had stated in her oral evidence that her husband had died during the year 1970 and thereafter, she has been living with her mother in the suit property. However, she had approached the Court only in the year, 1996. Further, she had not approached the Tamil Nadu Slum Clearance Board authorities to know the person in whose name the allotment has been made subsequent to the death of her father late Chinnappan.
36. While analysing the Sections 65 and 69 of the Tamil Nadu Slum Area (Improvement and Clearance) Act, 1971, the first appellate Court had held that the Act provides the remedy and without exhausting the same, it would be improper to approach the Civil Court for the declaratory relief.
37. From a combined reading of Sections 59, 65 and 69 of The Tamil Nadu Slum Area (Improvement and Clearance) Act, 1971, it is clear that a civil suit is barred relating to the allotment or cancellation of the suit property. The first appellate Court had also found that C.Suseela had paid the entire sale price to the Tamil Nadu Slum Clearance Board. Even though she had misrepresented before the authorities stating that she was the only legal heir of the deceased Chinnappan, from the statements filed on behalf of the Slum Clearance Board, it could be seen that the allotment was made in favour of C.Suseela only on the basis of an eligibility list prepared by the competent Tahsildar and not on the basis of the legal heirship of the allottee Chinnappan. Likewise, the evidence of Muruganantham, an employee of the Slum Clearance Board, examined as D.W.2, goes against his own pleadings. Since the provisions of law prohibits such oral evidence being given contrary to the pleadings, the submissions made by D.W.2 cannot be accepted. The first appellate Court had also held that C.Suseela, who is the plaintiff in O.S.No.5848 of 1998, is entitled to recover the possession of the suit property with all its fittings and that she is also entitled to claim damages at the rate of Rs.200/- per month, from the date of the plaint till the date of delivery of the suit property. In such circumstances, the second plaintiff in O.S.No.15436 of 1996, namely, Rita cannot claim partition of the suit property and she is not entitled to construct any new building in the suit property. Thus, the first appellate Court had allowed both the appeals dismissing the suit O.S.No.15436 of 1996, and decreeing the suit O.S.No.5848 of 1998, granting the reliefs of recovery of possession and damages as well as the relief of permanent injunction.
38. Aggrieved by the common judgment and decree, dated 27.7.2007, made in A.S.Nos.427 and 428 of 2004, on the file of the Additional District and Sessions Judge, Chennai Fast Track Court No.III, Chennai, the present second appeals, in S.A.Nos.1266 and 1267 of 2007, have been filed before this Court.
39. The substantial questions of law raised in these second appeals are as follows:
“a) Whether the suit for possession filed by the first respondent in O.S.No.5848 of 1998 for possession without the prayer for declaration of a title is legally maintainable?
b) Whether the suit O.S.No.5848 of 1998 filed by the first respondent is not barred in view of the provisions as contained in Sections 65 and 69 of the Tamil Nadu Slum Clearance Board Act?
c) Whether the Courts below had not erred in not appreciating the oral evidence of D.W.2 and the documentary evidence adduced, more particularly, Exhibit X.2?
d) Whether the Court below was right in dismissing the suit O.S.No.15436 of 1996, filed by the appellant and her mother for partition?”
40. The following common grounds have been raised in these second appeals.
“(i) The judgment and decree of the lower appellate Court are against law, the facts and circumstances of the case and the evidence adduced. The lower appellate Court erred in reversing the well considered findings of the trial Court and dismissing the suit filed by the appellant. The lower appellate Court further erred in decreeing the suit filed by the respondent herein in O.S.No.5848 of 1998. The appellant submits that the suit O.S.No.15436 of 1996, was filed by the appellant for a declaration that the order of transfer of allotment dated 16.4.1984 made in favour of the first respondent by the second respondent is void, invalid and not binding on the appellant and consequently for partition. The appellant and her deceased mother have claimed 2/3rd share in the property. The suit in O.S.No.5848 of 1998, was filed by the first respondent herein for possession. Both the suits were tried together and the appellant was examined as P.W.1. The first respondent was examined as D.W.1 and the official of the second respondent as D.W.2. Exhibits A.1 and A.2 were marked on the side of the appellant and B.1 to B.24 on the side of the first respondent. Exhibits X.1 to X.4 were the documents, which were summoned and were marked as Court exhibits.
The appellant submits that the property was allotted by the second respondent originally in favour of M.Chinnappan the husband of the deceased first plaintiff in O.S.No.15436 of 1996 and father of appellant and the first respondent herein, in the year 1960. The said Chinnappan was paying the amounts due towards the monthly instalments in respect of the suit property till his demise in the year 1971. Subsequently, the amounts due were paid by the appellant and her mother, who were under occupation of the suit property, through the husband of the first respondent, who was the male member in the family, though the first respondent and her husband were living separately and the appellant and her mother were living in the suit property.
The appellant and her mother were under the impression that the allotment has been transferred in favour of the mother of the appellant inasmuch as the affairs relating to the transfer were looked after by the husband of the first respondent, who is a stamp vendor. Only when the officials of the second respondent asked the appellant and her mother, who were in possession of the suit property ever since the death of Chinnappan, to vacate the property did the appellant and her mother come to know that the first respondent and her husband had made an application and transfer the allotment in favour of the first respondent. Consequently, the appellant and her mother filed O.S.No.15436 of 1996, and as a counter blast to the said suit, the first respondent, who had been away from the property and is well of and is not living with her husband, filed the suit for possession. After trial, the suit filed by the appellant and her mother for declaration and partition was decreed and the suit filed by the first respondent dismissed. Two appeals were filed by the first respondent against the said judgment and decree and under the common judgment impugned in the present appeal, the lower appellate Court allowed both the appeals and dismissed the suit filed by the appellant herein and decreed the suit filed by the first respondent herein. The appellant has, therefore, filed the present second appeal and another second appeal against the common judgment made in both the appeals.
ii) The court below erred in not considering the conduct of the first respondent as evidenced in Exhibit X.2. On the death of Chinnappan, the first respondent and her husband taking advantage of the illiteracy of the appellant and her mother and under the pretext of transferring the allotment, made a request to the second respondent for transferring of the allotment in favour of the first respondent. In the affidavit filed before the second respondent, the first respondent is categorically stated that she was the only surviving legal heir of Chinnappan and there are no other legal heirs. She would consequently apply for transfer in her favour. The same is nothing but a false declaration and wantonly and deliberately the first respondent had suppressed the very existence of her mother and her sister, the appellant. Only by suppressing the said fact had the first respondent managed to have the allotment transferred in her favour and being elder, the appellant and her mother had implicitly believed the first respondent and her husband and were therefore under the impression that the allotment had been transferred in favour of the mother of the parties. This very act of the first respondent would disentitle her any benefit in relation to the suit property and it is unfortunate that the lower appellate Court completely ignored this vital fact of evidence, which has been elaborately considered by the trial Court.
iii) The lower appellate Court failed to see that on the death of Chinnappan the original allottee, all his legal heirs are entitled to a share in the property and consequently, the mother of the parties, the appellant and the first respondent were entitled to a share in the property.
iv) The lower appellate Court failed to see that even from the year 1971 till 1996, the appellant and her mother had been residing in the suit property along with the children of the appellant and the first respondent was away from the suit property and residing with her husband. She had, therefore, no claim over the suit property and in law cannot maintain any action much less a suit for possession on the premise that she is the absolute owner of the property, more so when she had obtained transfer of allotment in her favour by fraudulent means.
v) The lower appellate Court had failed to see that the monthly rents made in B.2 series by the first respondent and her husband were made only in a representative capacity and would not by itself confer any right on the first respondent.
vi) The court below failed to see that the provisions of Section 65 and 59 of the Tamil Nadu Slum Clearance Board Act would not be in toto applicable to the suit filed by the appellant, which in effect the suit for partition and therefore, the bar under the said Sections would be inapplicable to the suit filed by the appellant and her mother. Even assuming without admitting that the bar would apply, the same would be equally applicable to the suit filed by the first respondent herein, which is for possession and the lower appellate Court, while holding that the suit filed by the appellant was not maintainable, had conveniently omitted to discuss the maintainability of the suit filed by the first respondent, which is on the face of it barred by the provisions of the Act.
vii) The Court below had failed to see that the Kuru Cheetu propounded by the first respondent had not at all been produced before the Court and it is for her to prove and substantiate the said document, which has not been done and in the absence of which the rights of the appellant and her mother to the property cannot be denied.
Viii) The Court below failed to see that the suit for possession filed by the first respondent without praying for relief of declaration of her title to the property was not legally maintainable.
ix) The Court below erred in not considering the evidence of D.W.2 in proper perspective, which would expose the fraudulent act of the first respondent, but had simply brush aside the said evidence on the ground that it was allegedly contradict the pleadings of the second respondent.”
41. It was contended on behalf of the appellant that the property was originally allotted in favour of the father of the appellant late Chinnappan, in the year 1960 and he was paying the amount due in respect of the allotment till his death in the year 1971. The first respondent, as seen from the evidence of P.W.1, was married in the year 1964 and that she is comfortably settled along with her husband.
42. It was also contended that from the evidence of P.W.1, it could be seen that since the husband of the first respondent was the eldest male member of the family, the appellant and her mother, having confidence in the first respondent and her husband, had been contributing Rs.100/- every month for the payment of the amounts due to the second respondent. They had also requested the husband of the first respondent to take necessary steps for the transfer of allotment in the name of the appellant Rita and her mother Anthony Ammal.
43. It was also contended that the first respondent, examined as D.W.1, had also admitted during her cross examination that she had moved out of the suit property. It had also been admitted that she had not made any application for the transfer of allotment in her favour. From the oral evidence of Muruganantham, an employee of the Slum Clearance Board, examined as D.W.2, it is seen that the first respondent had given a false declaration and thus, she had secured the transfer of allotment in her favour. He had also stated that if the Tamil Nadu Slum Clearance Board was made aware of the fact that the appellant and her mother were alive, the allotment would not have been made in the name of the first respondent. It was only because the first respondent had stated that she was the only legal heir, such an allotment had been made.
44. It had also been contended that the conclusions arrived at by the first appellate Court, with regard to the oral evidence of D.W.2, is incorrect. The evidence of D.W.2, as elicited in the cross examination by the appellant, is well supported by the pleadings of the appellant in O.S.No.15436 of 1996. Therefore, the first appellate Court could not have come to the conclusion, that such evidence has not been supported by the pleadings.
45. It was also contended that Exhibit X.1 series, the affidavit of declaration given by the first respondent, would clearly show that she had fraudulently misrepresented with regard to the existence of the appellant and her mother. Eventhough the affidavit was in english the first respondent had signed the affidavit in Tamil, after it had been read over and explained to her in the language she was familiar with. The trial Court had arrived at the correct conclusion by decreeing the suit filed by the appellant and her mother. By dismissing the suit filed by the first respondent, the first appellate Court had reversed the same without considering the relevant aspects of the case. The lower appellate Court had wrongly concluded that the evidence of D.W.2 was contrary to the pleadings and that the suit filed by the appellant and her mother is not maintainable in view of Sections 65 and 69 of The Tamil Nadu Slum Area (Improvement and Clearance) Act, 1971.
46. It had also been contended by the learned counsel appearing for the appellant that the judgment and decree of the lower appellate Court cannot be sustained as the pleadings filed by the appellant was not only for a decree of declaration, with regard to the allotment, but also for partition and the appellant had claimed only half share in the property after the death of her mother Anthony Ammal. A suit for partition cannot be hit by Sections 65 and 69 of The Tamil Nadu Slum Area (Improvement and Clearance) Act, 1971. Even though Section 69 of The Tamil Nadu Slum Area (Improvement and Clearance) Act, 1971, has an overriding effect over all other laws for the time being in force, it cannot be said that personal laws applicable to the parties concerned will not apply to the facts and circumstances of the present case. Section 69 of The Tamil Nadu Slum Area (Improvement and Clearance) Act, 1971, will apply only in the event of there being a provision in the Act contrary to the common law relating to succession. Since there is no provision in the Act prescribing the mode of transfer of allotment on the death of the original allottee, the personal law of the parties involved in the case cannot be ignored.
47. It has also been contended that the suit filed by the first respondent for possession is not maintainable in view of provisions contained in Sections 29 and 65 of The Tamil Nadu Slum Area (Improvement and Clearance) Act, 1971. Even otherwise, the first respondent had not obtained the prior permission of the Tamil Nadu Slum Clearance Board before instituting the suit. Thus, the suit filed by the first respondent in O.S.No.5848 of 1998, cannot be sustained in law.
48. The first respondent has contended that a suit filed based on title cannot be accepted as the sale deed had not been executed in her favour by the second respondent. Even otherwise, it cannot be maintained as the provision of Section 5 of the Specific Relief Act will not apply in view Section 69 of The Tamil Nadu Slum Area (Improvement and Clearance) Act, 1971.
49. The learned counsel appearing for the first respondent had submitted that the first appellate Court was right in coming to the conclusion that there was no evidence to show that late Chinnappan had paid any amount for the suit property. Since the first respondent was a Slum dweller, as contemplated by The Tamil Nadu Slum Area (Improvement and Clearance) Act, 1971, she is entitled to the allotment of the suit property. It is only the first respondent and her husband who had paid the amounts due for the allotment of the suit property, under Exhibit B.2 series, from the year 1972 to 1994. The provisions of the Act and the rules framed thereunder enables the Tamil Nadu Slum Clearance Board to allot the plot to eligible slum dwellers by way of sale or on the basis of the lease cum sale. Thus, C.Suseela the first respondent in the appeals, by virtue of her occupation of the suit property from the year 1972, after the death of her father late Chinnappan, had become eligible for the allotment.
50. The learned counsel appearing for the first respondent had further submitted that Section 69 of The Tamil Nadu Slum Area (Improvement and Clearance) Act, 1971 provides for the application of the provisions of the Act to the exclusion of other laws. In such circumstances, the allotment cannot be made in favour of the appellant as per the personal law, after the death of late Chinnappan. The first appellate Court was right in coming to the conclusion that as against the orders of the allotment of the suit property in favour of the first respondent, only an appeal remedy lies as per the Rule 9 of of The Tamil Nadu Slum Clearance Board (Control and Management of properties) Rules, 1971, read with Section 65 of the Act. The jurisdiction of the civil Court in respect of such remedy, as provided under The Tamil Nadu Slum Area (Improvement and Clearance) Act, 1971 is ousted. Section 59 of the Act provides for appeal against any order made under the Act.
51. The learned counsel appearing for the first respondent had also contended that excepting Exhibits A.1 and A.2, the legal heir certificate and the voter list, no other documents had been filed. The suit in O.S.No.15436 of 1996, has been filed, belatedly, after 25 years from the death of late Chinnappan. Even if the appellant could be held as a co-sharer her claim had got extinguished by the principle of ouster as the first respondent has been in enjoyment of the suit property after getting allotment from the Tamil Nadu Slum Clearance Board under Exhibits X.2, B.3, dated 16.3.1984 and Exhibit B.19, dated 31.3.1994. Further, the suit in O.S.No.15436 of 1996, praying for the relief of declaration to declare the allotment of the suit property by the Tamil Nadu Slum Clearance Board is barred by limitation as it would fall under Article 58 of the Limitation Act, as the order of the Tamil Nadu Slum Clearance Board is dated 16.7.1977. The period of limitation being three years, the suit could not have been filed thereafter. In such circumstances, the appeal ought to be dismissed.
52. The learned counsel appearing for the Tamil Nadu Slum Clearance Board had submitted that the allotment on the death of the original allotment would be made in favour of legal heir of such allottee. In the present case, since the original allottee, late Chinnappan, had died in the year 1971, it was ordered to be allotted in favour of C.Suseela since she had submitted, by way of affidavit, that she was the only legal heir. According to the practice followed by the Tamil Nadu Slum Clearance Board an enquiry would be conducted and the allotment would be made on the legal heirs of the deceased original allottee. The Tamil Nadu Slum Clearance Board would not have made the allotment in favour of C.Suseela, if it had known that there were other legal heirs, namely, Anthony Ammal and Rita, wife and daughter of late Chinnappan. The allotment obtained by C.Suseela by misrepresentation is liable to be cancelled. The allotment sought to be made in favour of C.Suseela is inappropriate and invalid.
53. Based on the submissions made by the the learned counsels appearing for the parties concerned and on a perusal of the records available and on analysing the evidence on record, it is clear that the allotment made by the Tamil Nadu Slum Clearance Board in favour of the first respondent is substantially based on the representation made by the first respondent that she is the only legal heir of the original allottee late Chinnappan.
54. It is also clear from the statement by D.W.2, an employee of the Slum Clearance Board, that the allotment would not have been made in favour of C.Suseela if it was known that there were other legal heirs of late Chinnappan. Further, it is seen that the trial Court had held that the suit property is to be partitioned between the appellant and the first respondent, in equal shares, as they were the only existing legal heirs of the original allottee late Chinnappan. There is nothing shown on behalf of the first respondent to substantiate the claim that personal laws have been excluded with regard to the allotment made by the Tamil Nadu Slum Clearance Board, as provided under the Slum Clearance Act.
55. Further, the first appellate Court had come to a wrong conclusion by holding that the appellant has no right in the property since it is the first respondent who has been paying the necessary amounts for the allotment of the suit property in her favour. If it could be found that the allotment in favour of the first respondent by the Tamil Nadu Slum Clearance Board, had been based on the misrepresentation of the first respondent that she was the only legal heir of the original allottee late Chinnappan, such a defect cannot be condoned by the mere reason that the amounts had been paid by the first respondent and her husband.
56. Accepting the contentions raised on behalf of the appellant, the questions of law raised in the present second appeals are answered in favour of the appellant and it is held that the appellant is entitled to half share in the suit property as held by the trial Court. Accordingly, the judgment and decree, dated 27.7.2007, made in A.S.Nos.427 and 428 of 2004, on the file of the Additional District and Sessions Judge, Chennai, Fast Track Court No.III, Chennai, is set aside and the judgment and decree, dated 22.7.2004, made in O.S.No.5848 of 1998 and O.S.No.15436 of 1996, on the file of the VIth Assistant City Civil Court, Chennai, is restored. The second appeals stand allowed, accordingly. No costs. Connected M.P.No.1 of 2007 is closed.
21.4.2008 INDEX : YES/NO INTERNET : YES/NO To: 1. The Additional District and Sessions Judge, Chennai Fast Track Court No.III, Chennai 2. The VI Assistant City Civil Court, Chennai M.JAICHANDREN J., lan S.A.Nos.1266 and 1267 of 2007 21.4.2008