IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.09.2008
CORAM
THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA
AND
THE HONOURABLE MR.JUSTICE V.DHANAPALAN
W.A.No.1842 of 2001
1. Varadarajan (died)
2. Sengodan
3. Lakshmi
4. V.Ravi
5. P.Rani
(Appellants 3 to 5 substituted
as LRs of the deceased first
appellant vide order of Court
dt.18.6.08 made in WAMP 70/08) .. Appellants
-Vs-
1. S.Ramasamy Gounder
2. S.Kailasa Gounder
3. S.Krishnamoorthy
4. The Record Officer (Tahsildar)
Attur
5. The Revenue Divisional Officer
Salem
6. Additional Collector
Salem .. Respondents
Appeal filed under Clause 15 of the Letters Patent, against the order dated 21.1.1997 made in W.P.No.5588 of 1987.
For Appellants :: Mr.P.Jagadeesan
For Respondents :: Mr.C.Kanagaraj for R1& R2
Mr.T.Dhanasekaran for R3
Mr.D.Sreenivasan
Special Govt.Pleader for
R4 to R6
JUDGMENT
(Judgment of the Court was delivered
by S.J.MUKHOPADHAYA, J.)
The appellants preferred the writ petition against the order dated 6th April, 1987 in Pa.Mu.119753/85 P.1 passed by the Additional Collector, Salem, whereby and whereunder the order dated 10th October, 1984 in C.T.P.No.3/82 passed by the Revenue Divisional Officer, Salem was confirmed. By the said order, the Revenue Divisional Officer, Salem set aside the order dated 26th May, 1978 passed by the Tahsildar, Attur in respect of the tenancy rights for the property in question and in regard to the entitlement and enjoyment of the disputed property, both the parties were advised to get it clarified from the civil Court of law. The said order having been confirmed by the Additional Collector, Salem, the writ petition was preferred.
2. It appears that with regard to the entitlement and enjoyment of the disputed property, O.S.No.309 of 1976 was filed by the contesting respondents on the file of Sub Court, Salem against the appellants claiming mesne profits at the rate of Rs.6,000/- per annum and the said suit was pending. At that stage, the writ petition was preferred by the appellants. They have also filed a suit in O.S.No.35 of 1985 on the file of Sub Court, Salem for an injunction against the respondents from interfering with their possession.
3. At the time of hearing of the writ petition, it appears from the impugned order, the learned counsel for the appellants did not argue the matter on merit, but only sought for remand of the case to the Additional Collector, Salem to consider whether the claim was barred by limitation or not under Section 10 of the Tamil Nadu Agricultural Land (Record of Tenancy Rights) Act, which was vehemently opposed by the respondents.
4. It further appears that though no argument was advanced by the learned counsel for the appellants (writ petitioners) on the merit of the case, but the learned Judge, by the impugned order dated 21st January, 1997, perused the material available on record and on the basis of the allegation made in paragraph-2 of the affidavit and without discussing any evidence, made certain observation which goes against the appellants (writ petitioners).
5. During the pendency of the writ petition, it appears that the suits having been decided, appeal suits were preferred and final orders having been passed therein, the aggrieved parties have preferred Second Appeal Nos.1579 & 1580 of 1991 which are pending consideration.
6. We have heard the learned counsel for the parties and noticed their contentions. Admittedly, the learned counsel for the appellants had not advanced the case on merit before the learned single Judge. In this background, we are of the opinion that when the case was not argued on merit and the suits between the parties were pending and that the authorities also observed that for entitlement and enjoyment of the disputed property the parties should move before a civil Court of competent jurisdiction, it was not desirable for the learned single Judge to give any finding with regard to the claim and counter claim of the parties. In such circumstances, we set aside the order dated 21st January, 1997 passed by the learned single Judge and also dismiss the writ petition as was preferred by the appellants. The parties are given liberty to contest the second appeals on merit.
The writ appeal stands disposed of with the aforesaid observation, but there shall be no order as to costs.
Index : yes (S.J.M.,J.) (V.D.P.,J.) Internet: yes 29.09.2008 ss To 1. The Record Officer (Tahsildar) Attur 2. The Revenue Divisional Officer Salem 3. The Additional Collector Salem S.J.MUKHOPADHAYA, J. AND V.DHANAPALAN, J. W.A.No.1842 of 2001 29.09.2008