Arumugham vs Chinniah (died)

Mr. R. Karuppiah, J.—This Second Appeal is filed under Section 100 of the Civil Procedure Code, 1908 as against the judgment and decree of the Court of Subordinate Judge, Pudukkottai in A.S.No.60/1997 dated 27.02.1998 in reversing the judgment and decree of the Court of Additional District Munsif, Pudukkottai in O.S.No.1413/1989 dated 29.11.1995. 2. The appellants/plaintiffs 2 to 5 are legal heirs of deceased 1st plaintiff in the suit and the first respondent died during the pendency of this appeal and the respondents 2, 4 and 5 are the legal heirs of the first respondent. 3. For the sake of convenience, the parties arrayed in the trial court is arrayed in this appeal. The deceased first plaintiff namely Sanniasi has filed a suit for permanent injunction and briefly the case of the plaintiff is that, he was a Ceylon repatriate and the suit property has been assigned to him by the Government as early as in the year 1976, as per Dharkast No.497/85-82 under "D-Form" by the Special Tahsildhar and Land Assignment Office, Pudukkottai and after sub-division by the Tahsildhar, the suit property was handed over to him and from the date of assignment, the deceased first plaintiff was in possession and enjoyment of the land and the Government has also granted loans under the Repatriate Rehabilitation Scheme for the improvement of the suit property. It is further stated in the plaint that the said assignment made in favour of the deceased first plaintiff has not been incorporated in the village accounts and also in the revenue record and it is only irregular on the part of the third defendant and his subordinate officers and the above said fact will not affect the right and possession of the first plaintiff over the suit property. According to the plaintiffs, the defendants are residing at neighbouring village and they attempted to interfere with the plaintiff''s peaceful possession and enjoyment of the suit property and the plaintiff reported the matter to the Government Officials and the Tahsildhar, Alangudi has passed an order on 31.03.1989 that the defendants should not interfere with the first plaintiff''s possession of the suit property. Even then, the defendants attempted to interfere with the first plaintiff''s possession. Therefore, the first plaintiff filed the suit for permanent injunction. 4. In the written statement filed by the first defendant, adopted by the 2nd defendant, in which, it is stated that only the survey number and extent alone have been stated in the plaint and the area and four boundaries of the suit property have not been stated and therefore, the plaintiff is not entitled to the relief of permanent injunction. According to the defendants, the suit Survey Number is 329 and total area is 7 acre 17 cents and it is a Government poromboke and in the above said land, about 1. acres of land belong to the 2nd defendant and he is in enjoyment and possession of the suit property for about 12 years and by spending huge amount and digging borewell. It is further averred in the written statement that they have been paying B-memos for encroachments in the Government property and therefore, the plaintiffs are not entitled to the relief of permanent injunction. 5. On the side of the third defendant, a written statement has been filed, in which, it is stated that S.No.329 was classified as punja land as per the Government Village Accounts and the total area is 2.87.0 hectares and as per the proceedings in E.p.K.497/85 in the year 1976, in survey No.329/1, 1.21.5 hectares was assigned to the deceased first plaintiff, but, in the above said documents, no boundary was given and also the first plaintiff has not cultivated the land as per the assignment and also not paying the kist for the above said properties. It is further averred in the written statement that since the deceased first plaintiff has not cultivated as per the conditions imposed in the assignment order, the property was vested with the Government. According to the third defendant, in S.No.329, each defendants 1 & 2 have encroached 0.60.00 hectares and also one Mariappan has encroached 0.30.00 hectares and hence, B-memos were served to them and therefore, the deceased first plaintiff not in possession in the suit property and further the third defendant is not a necessary party in this suit and hence, prayed for dismissal of the suit. 6. From the above said pleadings, the learned Trial Court Judge has framed five issues and on the side of the plaintiffs, they have examined five witnesses as P.Ws.1 to 5 and marked 12 documents as Exs.A.1 to A.12 and on the side of the defendants, three witnesses were examined as D.Ws.1 to 3 and marked 19 documents as Exs.B.1 to 19 and two documents were marked as Ex.C.1 & C.2 and also six documents were marked through witnesses as Witness Side documents. 7. The trial court, after considering the above said oral and documentary evidence has granted the relief of permanent injunction as prayed for in the plaint and decreed the suit. Aggrieved over the above said judgment and decree of the trial court, both the defendants 1 & 2 have preferred a first appeal in A.S.No.60/1997 and the first appellate court has set aside the judgment and decree passed by the trial court and dismissed the suit. Aggrieved over the above said judgment and decree of the first appellate court, the appellants who are the legal heirs of deceased 1st plaintiff have filed this second appeal. 8. This Court admitted the second appeal by framing the following substantial question of law for consideration:

"Whether the Lower appellate court is not in error in holding that B memo had been issued to the respondent and as such no injunction could be granted against him and whether it had not failed to note that no B Memo could be issued to a land that had been assigned?" 9. The learned counsel for the appellants would contend that the suit property has been assigned to the appellant/deceased first plaintiff on 29.02.1976 as per ExA.1 and he was in continuous possession in the suit property and the Tahsildar also had issued a direction to the defendants not to interfere with the possession of the deceased first plaintiff under Ex.A.2 and further the deceased first plaintiff has availed a loan under Ex.A.8 from Thiruvaranngulam Agro Services Limited by mortgaging the suit property and therefore, the appellants/plaintiffs are entitled to the decree for permanent injunction as prayed for in the plaint. 10. The learned counsel for the appellants has further contended that the first appellate court has failed to consider the fact that B-Memo will not be issued for patta or assigned land and the evidence of D.W.3 has also proved that B-memos could not issued for assigned land and D.W.3 also admitted that the suit property is in subject matter of land assigned by the Government. But the first appellate court has failed to consider all the contentions of the appellants/plaintiffs. 11. Per contra, the learned counsel appearing for the 2nd respondent/2nd defendant would contend that out of 7 acres 17 cents in S.No.329, 1. acre is belonging to the 2nd defendant and he is in possession and enjoyment of the same and paid B-memo charges to the Government and therefore, the appellants/plaintiffs are not entitled to get relief of permanent injunction as prayed for in the plaint. 12. The learned counsel appearing for the 3rd respondent/3rd defendant/Government has admitted in written statement itself that the suit property was assigned to the deceased first plaintiff under Ex.A.1. But the third defendant has contended that the first plaintiff has not cultivated the land and not paid the kist receipt and therefore, the above said property was vested with the Government. He also contended that in the above said entire S.No.329, both the defendants have encroached 0.60.0 hectares and another one Mariappan has encroached 0.30.00 hectares and B-Memos were issued to them and therefore, the plaintiffs are not entitled to the relief of permanent injunction. 13. Admittedly, the suit property was assigned to the appellant/deceased first plaintiff by the 3rd respondent/3rd defendant/Government under Ex.A.1, assignment order. The above said fact was not disputed by anyone of the defendants. According to the above said document, the plaintiffs are having title over the suit property from the time of assignment. Learned counsel for the 3rd respondent/3rd defendant/Government has clearly admitted that the Government has not cancelled the above said assignment order till date as stated in their written statement and further no documents have been produced to prove that any cancellation order has been passed and hence, it is clear that the above said assignment order issued in the name of the deceased first plaintiff has not been cancelled till date. Therefore, the appellants/plaintiffs are entitled to the suit property, as rightly contended by the learned counsel for the appellants/plaintiffs. 14. The main contention of the respondents/defendants is that D.Ws.1 & 2 have encroached in the suit property and B-memos were issued and therefore, the appellants/plaintiffs are not entitled to the relief of permanent injunction. Admittedly, after assigning the suit property to the deceased first plaintiff, the 3rd respondent/3rd defendant/Government has no right in the suit property to interfere or issue ''B'' memos. Even though in the written statement filed by the second defendant, it is stated that as if the suit property is belonging to D.W.2, at the time of evidence, he has not claimed any title over the suit property. But, he claims right only on the basis of possession and paying B-Memos to the Government. The only documents produced by D.Ws.1 & 2 namely Exs.B.5 and B.6/B-memos revealed that they were issued prior to the suit and all other documents are only after the suit and therefore, the defendants 1 & 2 have not proved their title or possession over the suit property by reliable oral and documentary evidence as stated in their written statement. In the above said circumstances, on the side of the appellants/plaintiffs, they have relied on an unreported decision of this Court, made in W.P.No.17014 of 2007 P. Madhar Sahib v. The State of Tamil Nadu, rep. By the Secretary and Special Commissioner, Revenue (F) Department, Fort. St. George, Chennai-600 009 and Others), dated 19.07.2010. Paragraph Nos.8 and 9 of the said decision reads as follows: "8. A perusal of the records would show that the petitioner was assigned the lands on 23.1.1973 and the assignment was sought to be cancelled by an order dated 25.05.1989. It is seen that no show cause notice was issued before the passing the order and that was the reason why this Court set aside the order dated 25.05.1989 and remanded the matter for fresh disposal. 9. There were two conditions to be complied with by the petitioner. The petitioner is required to bring the land for cultivation within three years of assignment i.e. on or before 22nd January, 1976. There should not be any alienation of the property within 10 years i.e. on or before 22nd January, 1983. The records on the face of it would reveal that there was no notice/proceedings between the date of allotment on 23.01.1973 and the date of cancellation on 25.05.1989. The cancellation at the first instance was done on 25.05.1989. It is clearly beyond period of 10 years. No doubt the respondents have power to cancel the assignment, if there is any violation of assignment. The record do not reveal any issuance of show cause notice within three years for violation of the first condition or within 10 years for violation of second condition. Admittedly, the property was sold on 31.01.1997 i.e. after 26 years of assignment. Hence there is no justification for cancelling the petitioner''s assignment." 15. A reading of the above said decision reveals that after any property was assigned by the Government and the above said assignment was sought to be cancelled, there are conditions to be complied with, i.e. the petitioner should bring the land for cultivation within three years of assignment and there should not be any alienation of the property within 10 years and then the Government has power to cancel the assignment. 16. A perusal of the above decision, as rightly contended by the learned counsel for the appellants, in the above said case, admittedly the Government has passed an order of cancellation of assignment on 25.05.1989. But in the instant case, admittedly the 3rd respondent/3rd defendant/Government has not cancelled the order of assignment in favour of the plaintiff. Therefore, the Government has no title or control or issuing of ''B'' memo in favour of others over the suit property, unless, it is duly cancelled. 17. The learned counsel appearing for the appellants/plaintiffs has relied on another decision reported in 1997 (1) CTC 407 (Yadhavan and Another v. Md. Dayanudin and Others), and contended that the question of title also has to be incidentally gone into, when the suit for bare injunction was filed and therefore, in the instant case, even though the plaintiff has filed a suit for permanent injunction, the question of title may also have to be incidentally gone into. Paragraph No.3 of the above said decision reads as follows: "No doubt, this observation seems to suggest that in no case, where the defendant denies the title of the plaintiff, the plaintiff can file a suit for bare injunction against possession interference. But, with due respect, I am unable to agree with the above said view expressed so absolutely, as has been done in the above said judgment, in the light of several other decisions, holding differently. For example, in Veerappa v. Arunchalam, A.I.R. 1936 Mad. 200: 43 L.W. 334, it has been held that the fact that the question of title also may have to be incidentally gone into in deciding whether an injunction can be given or not, is not any justification for holding that the suit is for a declaration of title and for injunction, and that there can be no objection to the maintainability of a suit for only an injunction. In Ponnuswami v. V. Sinnana, A.I.R. 1956 Mad. 52:(1955) 68 L.W. 578, a bare injunction suit was allowed as maintainable. (Vide also Kondaiah v. Ramanareddy, A.I.R. 1971 A.P. 142 and Ranga Rao v. Ramachandra Rao, A.I.R. 1941 Mad. 91 : 52 L.W. 610. Further, in Purushottam Das v. Har Narain, A.I.R. 1978 Delhi 114 (F.B.), it has been held that the prayer for declaration will be a surplusage if the plaintiff can get the relief for injunction without praying for declaration, but that the declaration has to be prayed for where an obstacle has to be removed before the plaintiff can claim the relief of injunction simpliciter. In the present case, there is no such obstacle for granting the relief of injunction in the light of the above said factual findings of the court below." 18. A perusal of the above said decision of this Court also reveals that even though the plaintiff has not filed a suit for declaration, the plaintiff is entitled to file a suit for permanent injunction and question of title can be incidentally gone into and granted relief. In the instant case, all the defendants have not denied the alleged Ex.A.1/assignment order and accordingly, the plaintiffs have title over the suit property and therefore, from the above said reasons and also oral and documentary evidence, it is clear that the plaintiffs are entitled to the relief of permanent injunction as prayed for in the plaint and substantial question of law framed at the time of admission is answered accordingly in favour of the appellants/plaintiffs. Therefore, the trial court has correctly held that the plaintiffs are entitled to the above said relief, but the first appellate court has erroneously held that the plaintiffs are not entitled to the permanent injunction and dismissed the suit and hence, the decree and judgment passed by the first appellate court is set aside and the decree and judgment passed by the trial court is to be confirmed. 19. In the result, the decree and judgment passed by the Court of Subordinate Judge, Pudukkottai in A.S.No.60/1997 dated 27.02.1998 is set aside and the decree and judgment of the Court of the Additional District Munsif, Pudukkottai, made in O.S.No.1413 of 1989 dated 29.11.1995 is confirmed and the second appeal is allowed with costs. S.A. Allowed with Costs.