BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19/11/2007
CORAM:
THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR
S.A.(MD)NO.1276 of 2006
and
M.P(MD)Nos.1 of 2007
and 3 of 2006
1. C.Ganesan - died,
2. Guruvammal,
3. Pitchai Manickam,
4. G.Sankar Kumar,
5. G.Sasi Kumar,
6. G.Udhaya Kumar
Appellants 2 to 6 are impleaded as legal heirs
of the sole appellant as per order in M.P(MD)
No.2 of 2006 dated 5.12.2006.
... Appellants/Plaintiffs
vs.
Government of Tamil Nadu,
represented by the District Collector
of Ramanathapuram,
Master Plan Complex,
Collectorate,
Ramanathapuram. ... Respondent/Defendant
PRAYER
Second Appeal filed under Section 100 of the civil Procedure Code to set
aside the judgement and decree made in A.S.No.96 of 1998 dated 1.12.1999, on the
file of the Principal District Judge, Ramanathapuram in modifying the judgement
and decree made in O.S.No.265 of 1989, dated 29.07.1993 on the file of the
District Munsif, Ramanathapuram.
!For Appellants ... Ms.N.Damodaran
^For Respondent ... Mr.So.Paramasivam
Government Advocate.
:JUDGEMENT
Heard the submissions made by Mr.N.Damodaran, learned counsel for the
appellants and Mr.So.Paramasivam, learned Government Advocate, appearing for
the respondent.
2. The plaintiff in the original suit is the appellant in the Second
Appeal. The original suit was filed for declaration that the suit property
belonged to the appellant/plaintiff. A consequential permanent injunction had
also been prayed for. The said claim of the appellant/plaintiff was on the basis
of Ex.A1 and Ex.A2-Sale deeds. The suit was resisted by the State, who is the
respondent herein and the defendant in the original suit, contending that the
entire village in which the suit property situates was Inam Estate and by
virtue of the Inam Estate Abolition Act 26 of 1948, r/w G.O.Ms.No.2093, Revenue,
dated 11.8.1949, the suit property came to be vested with the Government; that
the appellant/plaintiff had not been granted any jamin Patta before the
introduction of Act 26 of 1948,that Subsequent to the date on which the said Act
came into force, the appellant/plaintiff had acknowledged the title of the
Government(respondent/defendant) by accepting the B-Memo and paying penal tax
and that the suit for declaration and injunction against the real owner namely,
the Government could not be maintained.
3. After framing necessary issues, the trial court conducted the trial
and at the conclusion of trial, came to the conclusion that the
appellant/plaintiff was entitled to the reliefs of declaration and injunction as
prayed for.
4. On appeal, the lower appellate court reversed the decree by setting
aside the decree of declaration passed by the trial court and modifying the
decree of blanket perpertual injunction not to disturb the appellants/plaintiffs
possesion and enjoyment into a qualified perpetual injunction that the
appellants/plaintiffs possession should not be disturbed otherwise than
according to due process of law. Aggreived by the said judgement and decree
passed by the lower appellate court, the appellants/plaintiffs have brought
forth this Second Appeal.
5. The claim of title to the suit property made by the
appellants/plaintiffs was negatived by the lower appellate court on the ground
that the suit properties stood vested with the respondent(Government) by virtue
of the provisions of Act 26 of 1948 and that the paramount title of the
Government(respondent) was recognised and acknowledged by the
appellants/plaintiffs by accepting the B-Memo and paying penal tax. However, as
admittedly, the appellants/plaintiffs was in possession and enjoyment of the
suit properties which was also recognised by the respondent(Government) by
issuing B-memo, the lower appellate court has chosen to grant an injunction, a
qualified one, that his possession should not be disturbed otherwise than by
following due process of law.
6. After going through the records, in the light of the submissions made
by both sides, this court finds no infirmity or defect in the said finding of
the learned lower appellate Judge, warranting interference in the Second Appeal.
However it has been brought to the notice of this court that subsequent to the
lower appellate court’s judgement, the respondent(Government) has chosen to
assign the suit property to the appellants/plaintiffs and issue patta in his
favour. Since the appellants/plaintiffs have got valid title derived from the
opposite party, namely the respondent(Government), during the pendency of this
Second Appeal,nothing remains to be adjudicated in the Second Appeal. The
assignment patta has also been produced for the perusal of the Court. The
learned Government Advocate also confirmed the same. In the light of the
subsequent development namely the issuance of Assignment Patta, in respect of
the suit property, this court comes to the conclusion that the Second Appeal can
be disposed of with following observations:
“While holding that the lower appellate court has not committed any error
in refusing the relief of declaration and granting a qualified permanent
injunction, taking note of the subsequent development namely, the conferment of
title on the plaintiff by issuance of Assignment Patta after the judgement of
the lower appellate court was pronounced, which can be termed and regarded as a
settlement and adjustment of the suit claim under Order 23 Rule 1 of Civil
Procedure Code. no further adjudication in the Second Appeal is warranted.”
7. Accordingly, the Second Appeal is disposed of. Consequently, the
connected Miscellaneous Petitions are closed. However there shall be no order as
to costs.
vsn
To
1. The Principal District Judge,
Ramanathapuram.
2. The District Munsif,
Ramanathapuram.