BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/10/2010 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SA(MD)No.690 of 2008 & SA(MD)No.976 of 2008 and MP(MD)No.1 of 2008 SA(MD)No.690/2008: 1.Paulsamy Nadar 2.A.Ganesan Nadar 3.Vairava Nadar 4.Karuthapandian .. Appellants/Defendants 1 to 4 Vs. 1.Udaya Kumar Lingan rep.through the Power Agent Sathiaseelan .. Respondent/plaintiff
2.The Panchayat Chairman
Rayagiri Town Panchayat
Rayagiri.
Tirunelveli District
3.The Executive Officer
Rayagiri Town Panchayat
Rayagiri, Tirunelveli District.
.. Respondents/Defendants 6 & 7
4.Rajamani .. Respondent/5th Defendant
SA(MD)No.976/2008:
1.The Panchayat Chairman
Rayagiri Town Panchayat
Rayagiri
Tirunelveli District
2.The Executive Officer
Rayagiri Town Panchayat
Rayagiri
Tirunelveli District
.. Appellants/Defendants 6 & 7
vs.
1.Udaya Kumar Lingan
rep.by his power agent
Sathiaseelan .. Respondent/plaintiff
(Amended as per order
dated 29/10/2010)
2.Paulsamy Nadar
3.A.Ganesan Nadar
4.Vairava Nadar
5.Karuthapandian
.. Respondents/Defendants 1 to 4
6.Rajamani .. Respondent/5th Defendant
Second Appeals filed under section 100 of CPC against the Judgment and
decree dated 11.02.2008 passed in Appeal Suit No.9 of 2006 by the Sub Court,
Sankarankoil reversing the Judgment and decree dated 29.09.2005 passed in
Original Suit No.37 of 2002 by the District Munsif – cum – Judicial Magistrate
Court, Sankarankoil.
!For Appellants ... M/s.S.Siva Thilakar ^For R - 1 ... Mr.V.K.Vijayaraghavan For RR - 2 & 3 ... Mr.S.Pon Senthilkumaran (SA.No.690/2008) For Appellants ... M/s.S.Pon Senthilkumaran For R - 1 ... M/s.K.Vinayagan (caveator) For RR - 2 to 6 ... No appearance (SA.No.976/2008) :COMMON JUDGMENT
The Judgment and decree passed in Appeal Suit No.9 of 2006 by the Sub
Court, Sankarankoil are being challenged in the present second appeal.
2. The first respondent herein as plaintiff has instituted Original Suit
No.37 of 2002 on the file of the District Munsif – cum – Judicial Magistrate
Court, Sankarankoil for the reliefs of declaration, permanent injunction,
mandatory injunction and also for recovery of possession of the suit second
schedule, wherein the appellants in Second Appeal No.690 of 2008 have been shown
as defendants 1 to 4 and the appellants in Second Appeal No.976 of 2008 have
been shown as defendants 6 and 7.
3. It is averred in the plaint that the suit properties are originally
belonged to one Thanapathi Ammal and she purchased the same under two
registered sale deeds dated 06.12.1978. The plaintiff has purchased the suit
first schedule under a registered sale deed dated 20.09.2001. The suit second
schedule forms part of the suit first schedule and the same has been shown as
‘ghdf’ in the plaint plan. Since the predecessor in title of the plaintiff has
served in some other place, the first defendant and defendants 6 and 7 have
trespassed into the suit second schedule and formed a pathway. No land
acquisition proceedings have been taken. During December 2001, the plaintiff has
attempted to put up compound wall and at that time the defendants 1 to 5 have
restrained the plaintiff from proceeding with the construction of compound wall.
The defendants are not having any manner of right, title and interest over the
suit second schedule. Under the said circumstances, the present suit has been
instituted for the reliefs sought for in the suit.
4. In the written statement filed by the defendants 2 and 4 it is averred
that it is false to contend that the plaintiff has purchased the suit properties
under a registered sale deed dated 20.09.2001. It is also equally false to
contend that during December 2001 the plaintiff has attempted to put up compound
wall in the suit second schedule. In Rayagiri Village one Hindu Nadar
Uravinmurai is in existence and from the said Uravinmurai, a school by name
Ci.Pa.Sivanthi Athithanar Girls High school has been running and the same is
situate in Survey No.1029 and further, Higher secondary School is also situate
near the school mentioned supra. In Survey No.1026/1 to 9 a road has been formed
to a width of 16 feet. The vendor of the plaintiff has gifted a portion in the
suit properties to a width of 16 feet from north to south for the purpose of
forming road and accordingly a road has been formed in the suit properties and
subsequently in the year 1996 the same has been handed over to the sixth
defendant. The present suit is bad for non-joinder of necessary parties and
there is no merit in the suit and the same deserves to the dismissed.
5. In the written statement filed on the side of the sixth defendant it is
averred that in the year 1996 the plaintiff has orally gifted the suit second
schedule to the sixth respondent and the same has been accepted by the sixth
respondent and also taken delivery of possession. As per the resolution dated
29.08.1997 a tender has been called for and one Ayyanr has become a successful
bidder and he has been permitted to form road. Since the plaintiff himself has
given the suit second schedule orally to the sixth defendant, the plaintiff is
not entitled to get the reliefs sought for in the plaint. There is no merit in
the suit and the same deserves to be dismissed.
6. On the basis of the divergent pleadings raised on either side, the
trial Court has framed necessary issues and after evaluating the evidence
available on record has dismissed the suit. Against the Judgment and decree
passed by the trial Court, the plaintiff as appellant has preferred Appeal Suit
No.9 of 2006 on the file of the first appellate Court.
7. The first appellate Court after hearing both sides and upon
reappraising the evidence available on record has allowed Appeal Suit No.9 of
2006 and consequently decreed the suit as prayed for. Against the Judgment and
decree passed by the first appellate Court, the defendants 1 to 4 as appellants
have preferred Second Appeal No.690 of 2008 and the defendants 6 and 7 have
preferred Second Appeal No.976 of 2008.
8. In Second Appeal No.690 of 2008, the following substantial questions of
law have been raised for consideration on the side of the appellants/defendants
1 to 4.
(i) Whether the lower appellate Court is correct in law in holding that
the 1st respondent is entitled to the 2nd schedule suit property, when the suit
is as framed against the respondents 1 to 4 in their individual capacity is
sustainable in law?
(ii) Whether the lower appellate Court is correct in law in not adverting
to vital legal aspect that the suit is not sustainable in law in view of Order 1
Rule 9 and Order 1 Rule 10 of the Civil Procedure Code, when the persons
concerned over the suit 2nd schedule pathway property is the Hindu Nadar
Uravinmurai which is running the Ci.Pa.Sivanthi Adithanar Girls Higher Secondary
school for which the pathway is being used has not been arrayed as necessary
party in the suit?
(iii) Whether the lower appellate Court is correct in law in not holding
that the suit is liable to be dismissed on the ground of non-joinder of
necessary parties as required under Order 1 Rule 9 and Order 1 Rule 10 of the
Civil Procedure Code?
(iv) Whether the lower appellate Court is correct in law does not deserve
adverse inference against the 1st respondent, since the original plaintiff did
not enter into witness box to put forth their case?
9. In Second Appeal No.976 of 2008, the following substantial questions of
law have been raised for consideration on the side of the appellants/defendants
6 and 7.
(i) Whether the lower appellate Court is correct in law in holding that
the 1st respondent is entitled to the 2nd schedule suit property, when the 1st
respondent as plaintiff has failed to issue mandatory notice to the appellant
panchayat as required by section 231 of the Tamil Nadu Panchayat Act, 1994?
(ii) Whether the lower appellate Court is correct in law in not holding
that the vendor of 1st respondent is estopped by her own conduct when she had
waived her right over the 2nd schedule property for several years and allowed
the appellate panchayat to lay the pucca metal road and having kept quite for
several years has deposed that she has not given oral gift to the Uravin Murai
School?
(iii) Whether the appellate Court is correct in law in not holding that
the suit is liable to be dismissed on the ground of non-joinder of necessary
parties as required under Order 1 Rule 9 and Order 1 Rule 10 of the Civil
Procedure Code?
(iv) Whether the lower appellate Court is correct in law in not drawing
adverse inference against the 1st respondent since the original plaintiff did
not enter into witness box to put forth his case?
10. As agreed by the learned counsels appearing for both sides, the
present second appeals are disposed of on merits at the stage of admission.
11. The crux of the case of the plaintiff is that his predecessor in title
by name Thanapathi Ammal has purchased the suit properties under two registered
sale deeds dated 06.12.1978 and thereafter she sold the same in favour of the
plaintiff under a registered sale deed dated 20.09.2001. The suit second
schedule forms part of the suit first schedule and the same has been shown as
‘ghdf’ in the plaint plan and the defendants have trespassed into the suit
second schedule and formed a road by way of denying the title of the plaintiff.
Under the said circumstances the present suit has been instituted for the
reliefs sought for in the plaint.
12. In the written statement filed on the side of the defendants 2 and 4
it is averred that the predecessor in title of the plaintiff viz., Thanapathi
Ammal has orally gifted 16 feet north south in the suit properties for the
purpose of forming road so as to reach Girls High School as well as Higher
Secondary School and subsequently a road has been formed and thereafter orally
handed over the same to the sixth defendant in the year 1996.
13. In the written statement filed on the side of the sixth defendant it
is averred that in the year 1996 the plaintiff himself has orally gifted the
suit second schedule for the purpose of laying road and subsequently a road has
been formed and therefore, the plaintiff is not entitled to get the reliefs
sought for in the plaint.
14. As stated earlier, the trial Court has dismissed the suit. But the
first appellate Court has decreed the suit.
15. The learned counsel appearing for the appellants in Second Appeal
No.690 of 2008 has strenuously contended that in the year 1996 the predecessor
in title of the plaintiff viz., Thanapathi Ammal has orally gifted an extent of
16 feet from north to south for the purpose of laying road and subsequently a
road has been formed and thereafter in the year 1996, the same has been handed
over to the sixth defendant and the plaintiff has attempted to put up
construction in the suit first schedule, wherein he has clearly admitted that
the suit second schedule has been set apart for the purpose of laying road and
further the defendants 2 and 4 are not having independent right over the suit
second schedule and since the school authorities have not been impleaded in the
present suit, the same is bad for non joinder of necessary parties and the trial
Court after considering the available evidence on record has rightly dismissed
the suit. But the first appellate Court has erroneously decreed the same and
therefore, the Judgment and decree passed by the first appellate Court are
liable to be interfered with.
16. The learned counsel appearing for the appellants in Second Appeal
No.976 of 2008 has also equally contended that in the year 1996 the plaintiff
himself has orally gifted the suit second schedule to the sixth defendant for
the purpose of forming road and subsequently a tender has been called for and
thereafter a road has been formed and therefore, the plaintiff is not having
title to the suit properties and he is not entitled to get the reliefs sought
for in the plaint and further, even without giving prior notice the present suit
has been instituted against the sixth defendant and therefore as per section 231
of the Tamil Nadu Panchayats Act, 1994 the present suit is not legally
maintainable and the first appellate Court has failed to look into the same and
therefore, the Judgment and decree passed by the first appellate Court are
liable to be set aside.
17. In order to controvert the arguments advanced by the learned counsels
appearing for the appellants, the learned counsel appearing for the first
respondent/plaintiff has also equally contended that neither the plaintiff nor
his predecessor in title has orally gifted any portion of the suit properties
and therefore, the alleged oral gift trotted out on the side of the defendants
2, 4 and 6 is not true and further as per section 123 of the Transfer of
Property Act, 1882 alleged oral gift is not legally permissible and the trial
Court without considering the correct factual as well as legal premise has
erroneously dismissed the suit. But the first appellate Court after evaluating
all the evidence available on record has rightly decreed the suit and further
the provision of section 231 of the Tamil Nadu Panchayats Act, 1994 is not at
all applicable to the present suit and altogether the present second appeals
deserve to be dismissed.
18. On the basis of the divergent submissions made by either counsels, the
Court has to analyse the following factual as well as legal aspects:
(a) whether the plaintiff or his predecessor in title has orally gifted
any portion of the suit properties for the purpose of forming road?
(b) whether the alleged oral gift is legally permissible?
(c) Whether the present suit is not legally maintainable in view of
section 231 of the Tamil Nadu Panchayats Act, 1994?
19. The present suit has been instituted for the reliefs of declaration,
permanent and mandatory injunctions and also for recovery of possession in
respect of the suit second schedule which has been described as ‘ghdf’ in the
plaint plan. The predecessor in title of the plaintiff viz., Thanapathi Ammal
has purchased both the items of suit properties under two registered sale deeds
dated 06.12.1978 and the same have been marked as Exs.A1 and A2. The plaintiff
has purchased both items of suit properties under a registered sale deed dated
20.09.2001 and the same has been marked as Ex.A3. Therefore, by virtue of Ex.A3,
the plaintiff is having absolute right, title and interest over the suit first
as well as second schedule properties.
20. In the written statement filed on the side of the defendants 2 and 4
it has been specifically averred that the predecessor in title of the plaintiff
viz., Thanapathi Ammal has orally gifted an extent of 16 feet width from north
to south for the purpose of forming road so as to reach the schools mentioned in
the written statement filed by them. But on the other hand on the side of the
sixth defendant it has been specifically averred that during the year 1996 the
plaintiff himself has orally gifted the suit second schedule for the purpose of
forming road.
21. As adverted to earlier, the plaintiff has purchased the suit
properties only under Ex.A3 on 20.09.2001. Therefore, the oral gift alleged to
have been given by the plaintiff in the year 1996 is totally false. Under the
said circumstances the oral gift trotted out in the written statement filed on
the side of the sixth defendant cannot be accepted.
22. Now the Court has to look into the oral gift alleged to have been
given by the predecessor in title of the plaintiff in favour of the school
authorities mentioned in the written statement filed on the side of the
defendants 2 and 4.
23. At this juncture, it would be more useful to look into section 123 of
the Transfer of Property Act, 1882 and the same reads as follows:
Transfer how effected.- For the purpose of making a gift of immovable
property, the transfer must be effected by a registered instrument signed by or
on behalf of the donor, and attested by at least two witnesses.”
24. Even a cursory look of the said provision would clearly show that a
gift of an immovable property should be effected only by way of registered
instrument and the same should be signed by donor or on behalf of the donor and
also attested by at least two witnesses. In view of the provision of section 123
of the Transfer of Property Act, 1882, oral gift alleged to have been given by
the predecessor in title of the plaintiff in favour of the school authorities
mentioned in the written statement filed by the defendants 2 and 4 is not
legally valid.
25. Now the Court has to look into as to whether the present suit is not
legally maintainable in view of section 231 of the Tamil Nadu Pancyayats Act,
1994 and the same reads as follows:
Notice of action against village panchayat, etc.-(1) Subject to the
provisions of section 232, no suit or other legal proceeding shall be brought
against any village panchayat or its president or executive authority or any
panchayat union council or its chairman or the commissioner or the district
panchayat or its chairman or the [secretary] or any member, officer or servant
thereof or against any person acting under the direction of such village
panchayat, president, panchayat union council or its chairman, district
panchayat or its chairman, executive authority, commissioner [secretary] member,
officer or servant, in respect of any act done or purporting to be done under
this Act or in respect of any alleged neglect or default in the execution of
this Act or any rule, by-law, regulation or order made under it until the
expiration of two months next after notice in writing, stating the cause of
action, the nature of the relief sought, the amount of compensation claimed and
the name and place of residence of the intended plaintiff has been left at the
office of the village panchayat or panchayat union council and if the proceeding
is intended to be brought against any such president, executive authority,
chairman, commissioner, chairman or district panchayat, [secretary] member,
officer, servant or person, also delivered to him or left at his place of
residence.
(2) Every such proceeding shall, unless it is a proceeding for the
recovery of immovable property or for a declaration or title thereto, be
commenced within six months after the date on which the cause of action arose or
in case of a continuing injury or damage, during such continuance or within six
months after the ceasing thereof.
(3) If any village panchayat, panchayat union council, or district
panchayat or person to whom notice is given under sub-section (1) tenders amount
to the plaintiff before the proceeding is commenced and if the plaintiff does
not in such proceeding recover more than the amount so tendered, he shall not
recover any costs incurred by him after such tender and the plaintiff shall also
pay all costs incurred by the defendant after such tender.
26. The learned counsel appearing for the appellants in Second Appeal
No.976 of 2008 has advanced his argument mainly on the basis of the provision of
the said section. In sub-section 1 of the said section, it is mentioned that if
any proceeding is taken under the Tamil Nadu Panchayats Act, 1994 against any
authority mentioned in the said Act, two months notice is required. But in sub-
section 2, an exception has been given with regard to suit instituted for
recovery of immovable property or for declaration of title.
27. The learned counsel appearing for the first respondent/plaintiff has
befittingly drawn the attention of the Court to the Full Bench decision reported
in 1970 II MLJ 572 (Panchayat Union Council, Tirupattur and another V.
C.Tirupathy), wherein the Division Bench of this Court has held that “the
material part of the section is that no suit or other legal proceeding shall be
brought against any Panchayat in respect of any act done or purporting to be
done under this Act or in respect of any alleged neglect or default in the
execution of this Act or any rule, by law, regulation or order made under it
until the expiration of two months next after notice in writing stating the
cause of action, the nature of the relief sought, the amount of compensation
claimed, ect. Sub-section (2) provides that every proceeding shall, unless it is
a proceeding for the recovery of immovable property or for a declaration of
title thereto, be commenced within six months after the date on which the cause
of action arose or in case of a continuing injury or damage, during such
continuance or within six months after the ceasing thereof. Further the Full
Bench has observed that Section 231 is not applicable to a suit instituted for
recovery of immovable property or to a suit instituted for getting declaration
of title.”
28. The present suit has been instituted for the reliefs of declaration,
permanent and mandatory injunctions and also for recovery of possession.
Therefore, it is easily discernible that the exception given under sub-section 2
of section 231 of the said Act is squarely applicable to the present suit and
the present suit is legally maintainable and the provision of the said section
is not a bar to the present suit. Therefore, the entire argument advanced on the
side of the appellants in Second Appeal No.976 of 2008 is sans merit.
29. The learned counsel appearing for the appellants in Second Appeal
No.690 of 2008 has also advanced a feeble argument to the effect that the
plaintiff himself while getting permission for putting up construction in the
suit first schedule property has candidly admitted that the suit second schedule
property has been set apart for the purpose of forming road and therefore, the
plaintiff cannot turn around to say that it is his property and the trial Court
after considering all the evidence available on record has rightly observed the
same. But the first appellate Court has failed to look into the contention of
the plaintiff and therefore, the Judgment and decree passed by the first
appellate Court are totally erroneous and the same are liable to be interfered
with.
30. The predecessor in title of the plaintiff viz., Thanapathi Ammal has
purchased the suit properties under Exs.A1 and A2. The plaintiff has purchased
the suit properties under Ex.A3. Therefore, by virtue of Ex.A3, the plaintiff is
having unfettered right, title and interest over the suit properties. Even
assuming without conceding that at the time of getting permission for putting up
construction in the suit first schedule property, the plaintiff has conceded
that the suit second schedule has been set apart for the purpose of forming
road, that does not create any embargo upon the plaintiff from claiming title to
the suit second schedule, since oral gift alleged to have been given by him or
alleged to have been given by his predecessor in title is legally not
permissible. Therefore, the residual argument made by the learned counsel
appearing for the appellant in Second Appeal No.690 of 2008 also goes out
without merit.
31. As stated in many places, the present suit has been instituted for the
reliefs of declaration, permanent and mandatory injunctions and also for
recovery of possession in respect of the suit second schedule which has been
described as ‘ghdf’ in the plaint plan. By virtue of Exs.A1 to A3, the plaintiff
is having absolute right, title and interest over the suit second schedule
property. Since the plaintiff is having absolute right, title and interest over
the suit second schedule property and since the oral gift introduced by the
defendants 2 and 4 as well as the sixth defendant is not legally permissible, it
is needless to say that the plaintiff is entitled to get the reliefs sought for
in the plaint.
32. The trial Court without considering the legal effect of Exs.A1 to A3
and also without considering that the alleged oral gift is not legally
permissible, has erroneously dismissed the suit. But the first appellate Court
after perpending the available evidence on record properly has rightly decreed
the suit. In view of the foregoing enunciation of both the factual and legal
aspects, this Court has not found any error nor infirmity in the Judgment and
decree passed by the first appellate Court and further the substantial questions
of law raised on the side of the appellants in both the second appeals are not
at all relevant for the purpose of deciding the factual as well as legal aspects
involved in the present case. Therefore, viewing from any angle, these second
appeals deserve to be dismissed.
33. In fine, these second appeals deserve dismissal and accordingly are
dismissed without cost at the stage of admission. Connected Miscellaneous
petition is also dismissed. The Judgment and decree passed in Appeal Suit No.9
of 2006 by the Sub Court, Sankarankoil are confirmed.
mj
To
1.The Sub Court, Sankarankoil
2.The District Munsif – cum –
Judicial Magistrate Court,
Sankarankoil