BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/04/2009 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN S.A.(MD)No.260 of 2009 Kasilingam ... Appellant/Plaintiff Vs. 1.Government of Tamil Nadu represented by District Collector, District Collector Office, Pudukkottai District. 2.Revenue Divisional Officer, Revenue Divisional Office, Pudukkottai. 3.Revenue Tahsildar, Thasildar Office, Alangudi Taluk, Pudukkottai District. 4.Durai Swamy, Panchayat President, Alankadu Village & Post, Alangudi Taluk, Pudukkottai District. 5.Balan ... Respondents/Defendants Prayer This Appeal has been filed under Section 100 of the Civil Procedure Code, against the judgment and decree dated 12.02.2008 made in A.S.No.60 of 2007 on the file of Sub Judge, Pudukkottai, confirming the judgment and decree passed in O.S.No.133 of 2000 on the file of the Additional District Munsif Court, Pudukkottai dated 12.11.2003. !For Appellant ... Mr.K.Balasundaram ^ :JUDGMENT
The plaintiff, who lost in both Courts below is the appellant herein.
2.The plaintiff filed a suit for the relief of mandatory injunction
directing the respondents 1 to 3 to assign the suit lands to him.
3.The case of the plaintiff was that the suit property is a Government
Poromboke land and he is in enjoyment of the same and he is a poor
agriculturalist. The respondents 1 to 3 after conducting enquiry came forward to
assign the land to him and the 5th defendant, who is otherwise rich filed the
suit in O.S.No.374 of 1981 on the file of the District Munsif Court,
Pudukkottai, for injunction restraining the respondents from assigning the land
to the plaintiff herein, and that suit was dismissed and also confirmed by the
first appellate Court and the District Collector, Pudukkottai, has recommended
the land to be assigned to him on merits and eligibility and as the respondents
1 to 3 have not taken any steps, the present suit was filed by him.
4.The respondents 1 to 3 filed a written statement denying the allegations
of the plaintiff and contended that the lands cannot be assigned to the
plaintiff as he owns 0.55.05 Acres of ‘punja’ land and in Patta No.77 of an
extent of 0.09.0 Acres of Nanja lands in Alankadu village and the plaintiff was
never in possession of the suit property.
5.The 4th defendant filed a separate statement stating that he has
requested the defendants 1 to 3 for assignment of the suit property to the
Panchayat for forming an orchard and the defendants 1 to 3 have also agreed and
there was no proposal by the defendants 1 to 3 to assign the land in favour of
the plaintiff and if the lands were assigned to the 4th defendant, the village
would be benefited and therefore, the plaintiff is not entitled to the relief.
6.The 5th defendant is the son of Natesa Irungular, who filed O.S.No.374
of 1981. According to the 5th defendant, he and his father are in enjoyment of
the suit property and they have also prescribed title by adverse possession.
7.Before the lower Court, the plaintiff examined himself as P.W.1 and
examined 3 other witnesses and marked 13 documents and on the side of the
defendants, 3 witnesses were examined and the 5th defendant was examined as
D.W.3 and 19 documents were marked and through witness documents Exs.C1 to Ex.C4
were marked.
8.On the basis of the above pleadings and evidence the trial Court framed
four issues and also framed two additional issues and after carefully going
through the oral and documentary evidence held that the 5th defendant is in
possession of the property in pursuance to the permission granted by the
Government and hence, his claim of adverse possession was already rejected by
the High Court and held that he has not prescribed title by adverse possession.
9.The trial Court after analyzing the evidence has rightly held that the
defendants/respondents 1 to 3 alone are competent to decide whether the
plaintiff is a poor agriculturalist or not and whether the plaintiff is entitled
for assignment or not and that cannot be decided by the Civil Court and that has
to be decided by the authorities as per Rule and dismissed the suit.
10.Aggrieved by the same, the plaintiff filed appeal Suit No.60 of 2007
and the learned first appellant Court after framing proper points for
consideration, considered and discussed the oral and documentary evidence,
confirmed the judgment of the trial Court and dismissed the appeal. Aggrieved
by the same, this second appeal is filed by the plaintiff as appellant.
11.In the grounds of appeal, the appellant raised the following
substantial questions of law for consideration:
a.Whether an averments given in a written statement of an earlier suit is
an “admission” within the meaning of Section 19 of the Indian Evidence Act,1872?
b.Whether, the plaintiff is bound to prove his case irrespective of the
admission of DW1 in view of Section 58 of the Indian Evidence Act, 1872?
c.Whether, a defendant is entitled to vary his earlier version within the
meaning of Section 115 of Indian Evidence Act?
d.Whether, a person, who owns an extent of 0.64.0 Hectares of dry land
will come within the ambit of landless person within the meaning, Revenue
Standing Order 15(2)(ii)?
e.Whether, the judgment of the 1st Appellate Court in sustainable without
formulation of point for determination as contemplated under 41 Rule 33 of
C.P.C.?
12.In my opinion, the 1st four questions of law stated to be the
substantial questions of law by the appellant are not questions of law, much
less substantial questions of law.
13.In my opinion, the answer to those 4 questions of law stated by the
appellant were not at all relevant for deciding the issues involved in this case
and therefore, those are not substantial questions of law within the ambit of
Section 100 of C.P.C. The last substantial question of law, whether the
judgment of the first appellate Court is sustainable without formation of points
for determination as contemplated under Order 41 Rule 33 of C.P.C can be
considered as substantial question of law.
14.The learned counsel appearing for the appellant contended that the
first appellate Court without framing proper points for consideration or issues
confirmed the trial Court judgment and therefore, the judgment of the first
appellant Court is against the mandatory provision of Order 41 Rule 31 of C.P.C
and hence, the matter is to be remitted back to the lower Court for considering
the first appeal by properly framing points for consideration.
15. In this appeal, the first appellate Court has in-fact framed two
points for consideration for deciding the issues involved in that appeal. But
those two points are not specific but general in nature. Further, it is held by
our Honourable Supreme Court in the judgment reported in 2008(2) SCC 728 in the
case of Nopany Investments (P) Ltd., vs. Santokh Singh (HUF) that when the
findings arrived at by the first appellate Court affirming the judgment of the
trial Court were neither cryptic nor based on non-consideration of arguments
advanced by parties before it and dealt with various issues involved in this
case and re-appreciated the evidence that judgment was not liable to be set
aside for non compliance of Order 41 Rule 31 of C.P.C. In this appeal, the first
appellate Court discussed the oral and documentary evidence in para 9 to 14 and
analyzed the evidence thoroughly and found that from the documents marked in the
Court, it was proved that the plaintiff was not a land-less poor person and it
was only stated in Ex.A1 that the assignment of the land in his favour can be
done only on the basis of eligibility and on merits and that will not give arise
to any cause of action for assignment as of right and only the Government can
decide whether the land can be assigned to a person or not on the basis of the
relevant rules and the Civil Court has no jurisdiction to issue any mandatory
injunction directing the Government to act accordingly and I concur with the
findings of the Courts below.
16.I have gone through the judgments of the trial Court and the first
appellant Court and I am of view that the plaintiff/appellant has no right to
claim assignment of the suit land in his favour and it is for the respondents 1
to 3 to decide that issue and therefore, both the Courts below have rightly
dismissed the suit and the appeal. Therefore, I do not find any reason to
interfere with the findings of the Courts below.
17.In the result, the appeal is dismissed and finding of the Courts below
are confirmed. There is no order as to costs.
er
To,
1.The Subordinate Judge,
Pudukkottai.
2.The Additional District Munsif,
Pudukkottai.
3.The District Collector,
District Collector Office,
Pudukkottai District.
4.Revenue Divisional Officer,
Revenue Divisional Office,
Pudukkottai.
5.Revenue Tahsildar,
Thasildar Office,
Alangudi Taluk,
Pudukkottai District.