CORAMTHE HONOURABLE MR v. Kalyanasundaram

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 10-09-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENS.A.No.1329 of 1995Barbers residing at Pattamangalam Pulian Street,Mayiladuthurai Town,Reptd by their Representatives1.Gopalakrishnan2.Pavadaisamy.. Appellants/PlaintiffVersusKalyanasundaram.. Respondent/DefendantPrayer: Appeal against the judgment and decree, dated 02.03.1995,made in A.S.No.205 of 1993, on the file of the District Court,Nagapattinam, reversing the judgment and decree, dated 30.7.1993,made in O.S.No.108 of 1989, on the file of the Sub Court,Mayilduthurai.For Appellants : Mr.S.SountharFor Respondent : Mr.A.DhiraviyanathanJUDGMENTThis second appeal has been filed against the judgment anddecree, dated 2.3.1995, made in A.S.No.205 of 1993, on the file ofthe District Court, Nagapattinam, reversing the judgment and decree,dated 30.7.1993, made in O.S.No.108 of 1989, on the file of the SubCourt, Mayiladuthurai.2. The plaintiffs in the suit are the appellants in the presentsecond appeal. The plaintiffs had filed the suit for declaration andfor injunction. In the plaint filed in the suit, in O.S.No.108 of1989, it has been stated that the suit property is a pond called`Ambattan Kuttai", with an extent of 31,087 Sq.Ft., surrounded by alive fence on all four sides, in T.S.No.399 in Pulian Street,Pattamangalam, Mayiladuthurai. It has been further stated that theplaintiffs and the others, belonging to the Barber community, living https://hcservices.ecourts.gov.in/hcservices/ in Pulian Street, have been using the pond to carry on theiroccupation for over five generations. Every year the plaintiffs andthe others belonging to their community were taking away the fishcaught by them from the pond. The pond which had been given to theancestors of the plaintiffs, as a consideration for carrying on theiroccupation, has continued to be in their enjoyment till the filing ofthe suit. Therefore, the pond has been named as "Ambattan Kuttai".However, there are no documents relating to the plaintiffs' rights,in respect of the said pond. It is only a practice that has beenfollowed for hundreds of years, in Tanjore District. 3. It has been further stated that the plaintiffs and theirancestors have been using the pond and its adjacent lands, by growingvarious trees and by using their produce. The plaintiffs are carryingon their occupation of hair cutting for the people of the village.The pond is maintained for not only the benefit of the plaintiffs,but also for the common benefit of the villagers. While so, thefather of the plaintiffs, namely, Jaganatha Pandithar, had submitteda petition to the District Collector, on 19.9.1961, to grant patta,in respect of the pond, to the members of the plaintiffs' community. 4. It has been further stated that the defendant, who is workingin an insurance company, had encroached upon the suit property, alongwith his men and had attempted to build a house. Therefore, theplaintiffs had lodged a complaint with the revenue authorities, aswell as with the police. In such circumstances, the plaintiffs hadfiled the suit praying for the reliefs of declaration and permanentinjunction. 5. In the written statement filed on behalf of the defendant ithas been stated that the suit property is a poramboke pond and it isnot called as "Ambattan Kuttai", as claimed by the plaintiffs. It isfalse to claim that the plaintiffs and the members of their communityalone are having the right of catching fish from the pond. Further,the claim of the plaintiffs that certain rights had been given to theplaintiffs and their ancestors, as a consideration for carrying ontheir operation of barbers in the village concerned, had been denied.The District Collector had, in fact, refused to grant patta, asclaimed by Jaganatha Pandithar, the father of the plaintiffs. Thedefendant had further claimed that he is an ex-service man belongingto Adi Dravidar community. The defendant had stated that the pond hasnot been used as a pond and since there is no way for the water toreach the pond only certain wild varieties of plants have grown inthe area. Further, since the area has been converted into housingplots, the defendant had submitted a petition to the DistrictCollector for granting of patta to the defendant in the suitproperty. It has also been stated that the plaintiffs had removed thehouse built by the defendant in the suit land. The plaintiffs do nothave any legal right to file the suit, as it is a Government https://hcservices.ecourts.gov.in/hcservices/ poramboke and the suit is liable to be dismissed for making falseclaims and for not impleading the Government, as a party to the suit. 6. In view of the averments made on behalf of the plaintiffs, aswell as the defendants, the trial Court had framed the followingissues for consideration:"1) Whether the plaintiffs have fishing rights and theright to use the suit pond for carrying on their occupationand whether they are entitled to get permanent injunctionbased on the same?2) Whether the suit has been improperly filed as it hasbeen done in a representative capacity?3) What other reliefs the plaintiffs are entitled to?"7. The trial Court had decreed the suit by its judgment anddecree, dated 30.7.1993, holding that the plaintiffs are entitled tothe reliefs as prayed for therein. The claims made by the defendanthad not been believed by the trial Court. The trial Court had come tothe conclusion that the documents filed, in support of the claimsmade by the defendant, have been created for the purpose of the suit.From the statements made by the defendant, in his complaint, dated5.8.1989, marked as Ex.B-3, to the police authority concerned, atNagapattinam, the trial Court had found that the defendant had statedthat he had put up a hut in a portion of the suit property, since hehas no other place to live. However, from the document marked asEx.B-2, dated 17.10.1989, it is found that the petition submitted bythe defendant, dated 11.10.1989, requesting for assignment of aportion of the suit property, in favour of the defendant, had beenrejected by the District Collector, Thanjavur, stating that there isa prohibition by the State Government to make assignments in areasrelating to water bodies. Therefore, the claim of the defendant thathe had put up a hut even before his request had been rejected, on17.10.1989, cannot be accepted. The trial Court had also held thatExhibits B-7 to B-9, which are photographs showing certainconstructions, cannot support the claim of the defendant that he hadput up a hut and that he has been living in the suit property, priorto the year, 1989. Further, since the plaintiffs have been inenjoyment of the suit property from the year, 1961, as seen fromEx.A-1, the defendant could not have been living in the suit propertyby putting up a hut in the year, 1985. From Ex.A-5, the trial Courthad found that the plaintiffs have been in enjoyment of the suitproperty from the year, 1950. 8. In the written statement filed by the defendant he had claimedthat both the plaintiffs, as well as the defendant are encroachers inthe suit property. Since the suit property belongs to the Governmentthe plaintiffs cannot claim a better right in it. However, there isno evidence adduced on behalf of the defendant, in support of such aclaim. Further, the trial Court had also found that, in Exhibits A-1 https://hcservices.ecourts.gov.in/hcservices/ and A-5, marked in support of the claims made by the plaintiffs, thesuit property has been described as "Ambattan Kuttai". There is nodenial of the description of the suit property as "Ambattan Kuttai"by the defendant, either during his chief examination or during hiscross examination. Further, during the cross examination thedefendant had stated that he has no patta in respect of the suitproperty and that the Government had not granted any permission toput up a hut to live in a portion of the suit property. Further, hehad accepted that he had not paid any tax in that regard. Even thoughthe defendant had claimed that he had built a house in a portion ofthe suit property, in the year 1985, on the oral assurance given bythe Tahsildar concerned, he had not chosen to examine the Tahsildaras his witness, nor had he made such a claim in his written statementfiled in the suit. Further, he had admitted, during the crossexamination, that he had no evidence to show that he has been livingin the suit property for nearly five years, as claimed by him. 9. From the evidence of the plaintiffs' witnesses the trial Courthad come to the conclusion that there was a pond, in T.S.No.399,described as "Ambattan Kuttai" and that it belonged to the villagecommunity. Therefore, the claim of the defendant that it is a `GramaPoramboke' cannot be true. From the description of the property inthe sale deed, dated 14.5.1950, marked as Ex.A-5, relating toT.S.No.400, it could be seen that the suit property, in T.S.No.399,was known "as Pariyari Kuttai". Further, the trial Court had alsofound from the evidence of one Komalavalli, wife of Vadivel Pillai,examined as P.W.4, that the water from the pond, in T.S.No.399, hadbeen used for cultivation of vegetables, in T.S.No.400, which liesadjacent to the pond known as "Periyari Kuttai". It was also foundthat Jaganatha Pandithar, the father of the plaintiffs, had made arequest to the District Collector, Thanjavur, requesting for thegranting of a patta in his favour, in respect of T.S.No.399. The saidpetition, dated 19.9.1961, is marked as Ex.A-1. Ex.A-4, dated31.7.1989, is a petition submitted by the people living in PulianStreet, to Revenue Divisional Officer, stating that the suit propertyis in the enjoyment of the plaintiffs and that the defendant and hismen are attempting to encroach into the said property. The TrialCourt had further found from the adangal copy of the Town Land SurveyRegister, marked as Ex.B-4, that T.S.No.399, has been described as a"Kuttai" and that it belongs to the Government. 10. Further, it has also been seen that the request of thedefendant in his petition, dated 11.10.1989, for assignment of aportion of the "Kuttai", in T.S.No.399, to an extent of 0.71 cents,had been rejected by the District Collector, Thanjavur, by hisproceedings, dated 17.10.1989, marked as Ex.B-2. Thereafter, thedefendant had filed an appeal to the Special Commissioner andCommissioner for Land Administration, who had also rejected therequest of the defendant, by his order, dated 8.5.1990, marked as https://hcservices.ecourts.gov.in/hcservices/ Ex.B-5. In such circumstances, the trial Court had come to theconclusion that the plaintiffs had sufficiently substantiated theirclaims by way of evidence and that the claims made by the defendantwere not sustainable. Therefore, the trial Court had granted thereliefs, as prayed for by the plaintiffs, by its judgment and decree,dated 30.7.1993, made in O.S.No.108 of 1989.11. Aggrieved by the judgment and decree of the trial Court,dated 30.7.1993, made in O.S.No.108 of 1989, the defendant had filedan appeal, in A.S.No.205 of 1993, on the file of the District Court,Nagapattinam. The first Appellate Court had framed the followingpoints for consideration:"1) Whether the plaintiffs and those belonging to theircommunity have the right to use the pond and to catch fishfrom the pond, as claimed by them and if so, are theyentitled to the relief of declaration, as prayed for bythem?2) Whether the plaintiffs are entitled to the relief ofpermanent injunction against the defendants3) Whether the necessary parties have been impleaded inthe suit?"12. In the first appeal filed before the first Appellate Court ithad been noted that in the Government documents the suit property isshown as "Kuttai Poramboke". While so, it is for the plaintiffs toprove that they have the right for fishing and for using the pondsince they are belonging to the barber's community. The FirstAppellate Court had held that even though the suit, in O.S.No.108 of1989, had been filed, under Order 1 Rule 8 of the Civil ProcedureCode, in a representative capacity, only two brothers are shown asplaintiffs. There is nothing to show that the others belonging to thebarber's community have authorised the plaintiffs to file the suit ina representative capacity. It has also been noted that the plaintiffshave not shown that there are others who are belonging to the saidcommunity living in the suit property. 13. The first Appellate Court had also noted that Ex.A-1, dated19.9.1961, is only a xerox copy of a petition given by JaganathaPandithar, the father of the plaintiffs, requesting for patta to begiven in his name. The said request had been rejected stating thatthe suit property, in respect of which the patta has been requested,is classified as a poramboke land. The first Appellate Court had alsocome to the conclusion that after the coming into force of the InamAbolition Law there cannot be an inam, as claimed by the plaintiffs.The claim of the plaintiffs that the suit property, in T.S.No.399,has been shown as "Pariyari Kuttai" in the description of theboundaries relating to T.S.No.400, which was the subject matter ofthe sale deed, dated 14.5.1950, marked as Ex.A-5, cannot beconsidered as sufficient evidence to come to the conclusion that https://hcservices.ecourts.gov.in/hcservices/ T.S.No.399 is a pond known as "Ambattan Kuttai", meant for the use ofthe barber's community of the village, as claimed by the plaintiffs. 14. Even otherwise from the revenue records it is seen that thesuit property is shown as government poramboke. The first AppellateCourt had also found that all the plaintiffs' witnesses have beenstating that the defendant has no right to encroach into the suitproperty and to build a house therein. However, they have not statedin clear terms that the plaintiffs are the only persons who could usethe property as a matter of right. Even though it may be clear fromthe documents marked by the defendant, in support of his claims thatthere has been an attempt by the defendant to encroach upon the suitproperty, it cannot have any evidenciary value in favour of theplaintiffs to support their claims that they have the fishing rightsin the suit property and that their rights have been recognised sincethey belong to the barber's community. Further, when the plaintiffsare making specific claims, with regard to their rights in the suitproperty, which is shown as a Government Poramboke in the revenuerecords, the Government ought to have been added as a party to thesuit, as it is a necessary party. Further, the first Appellate Courthad also noted that the trial Court had come to the conclusion thatthe plaintiffs have certain rights in the suit property only basedon the reason that the suit property had been known as "AmbattanKuttai". It is clear that the suit had been filed by the plaintiffsonly in their personal interest and that the suit has not been filedin a representative capacity, on behalf of the community of barbers.If the claims made by the plaintiffs were true the Government wouldhave issued `B' memos against them, since the suit property is agovernment poramboke. Therefore, the first Appellate court had cometo the conclusion that the plaintiffs have not shown, by sufficientevidence, that they are in enjoyment of the suit property. Further,the first Appellate Court had come to the conclusion that the suitcannot be maintained without adding the necessary parties, since theState Government, which is a necessary party to the suit, had notbeen impleaded. In such circumstances, the first appellate Court hadreversed the judgment and decree of the trial Court, made inO.S.No.108 of 1989, dated 30.7.1993.15. Aggrieved by the judgment and decree of the first appellateCourt, dated 2.3.1995, made in A.S.No.205 of 1993, the plaintiffs inthe suit had filed the present second appeal raising the followingsubstantial questions of law:"1.Whether the lower Appellate Court is correct indismissing the suit on the ground of non-joiner ofGovernment?2. Whether title of the Government in the suitproperty would be upheld merely on the basis of the entriesin the survey records? https://hcservices.ecourts.gov.in/hcservices/

3. Whether the lower appellate Court has ignored theprovisions of Section 84 of the Panchayat Act in dismissingthe suit?" 16. The learned counsel for the appellants had submitted that thejudgment and decree of the first Appellate Court is against law, andthe weight of evidence and the probabilities of the case. The lowerAppellate Court, having found that the defendant had no right overthe suit property, ought to have confirmed the judgment and decree ofthe trial Court. When the plaintiffs were only claiming for therecognition of their customary rights, the lower Appellate Courtought not to have reversed the findings of the trial Court, withoutproperly appreciating the evidence available on record. Theobservation of the lower Appellate Court, with regard to the InamAbolition Act, is unwarranted and erroneous. The lower AppellateCourt had failed to appreciate the documentary evidence, in Ex.A-5,dated 14.5.1950, wherein the suit property had been mentioned as"Pariyari Kuttai". The lower Appellate Court had erred in dismissingthe suit for the non-joinder of necessary parties, namely, theGovernment, even though the claim of the plaintiffs weresubstantially against the defendant. The learned counsel had alsosubmitted that the lower Appellate Court had failed to appreciate theevidence of the plaintiffs' witnesses, who were independent witnessesand it is only the trial Court which could note the demeanour of thewitnesses. There is no discussion by the first Appellate Court, withregard to the evidence of P.W.1 to P.W.5, examined on behalf of theplaintiffs. The first Appellate court had reversed the judgment anddecree of the trial Court without properly considering the evidenceand without independently analysing such evidence. 17. The learned counsel for the appellants had relied on thejudgment, reported in Kuppuswamy Odayar V. Narthangudi Panchayat(1971(1) MLJ 190), wherein, it has been held that the mere fact thata particular piece of land has been described as poramboke, in theresettlement register, will not by itself establish the title of theGovernment in the land in question. 18. The learned counsel for the appellants had also relied on thedecision, reported in Karuppa Devar Vs. Kaluva Thevar (2002(1) CTC338), to show that the first Appellate Court had come to a wrongconclusion that the Government was a necessary party to the suit andthat the suit was not maintainable for non-joinder of the Government. 19. The learned counsel appearing on behalf of the respondent hadsubmitted that the first Appellate Court had rightly come to theconclusion that the reliefs sought for by the plaintiffs in the suit,in O.S.No.108 of 1989, cannot be granted. The first Appellate Courtwas correct in coming to the conclusion that the suit was notmaintainable for non joinder of necessary party, namely, the State https://hcservices.ecourts.gov.in/hcservices/ Government. Further, the plaintiffs had not shown as to how they hadfiled the suit in a representative capacity. Further, the learnedcounsel for the respondent had stated that the decisions cited by thelearned counsel for the appellants are not applicable to the factsand circumstances of the present case, as the plaintiffs are seekinga declaratory relief of customary rights, in respect of the suitproperty, which is a poramboke land, without impleadng the necessaryparty, which is the state Government.20. In view of the submissions made by the learned counselsappearing for the appellants, as well as the respondent, and on aperusal of the records available, this Court is of the consideredview that the first Appellate Court had come to the right conclusionin reversing the judgment and decree of the trial Court, dated30.7.1993, made in O.S.No.108 of 1989. When the plaintiffs had filedthe suit for a declaratory relief to recognise their customary rightsin the suit property, it is for them to prove, by sufficientevidence, that they have been enjoying such rights for a considerablelength of time. Further, the plaintiffs had failed to show that theyhad filed the suit in a representative capacity, under Order 1 Rule 8of the Civil Procedure Code, for themselves and on behalf of theother members of their community. When it is clear from theGovernment records that the suit property is a Government Porambokethe plaintiffs ought to have impleaded the Government, as a party tothe suit. Non impleading of a necessary party is fatal to themaintainability of the suit. Further, it is found that JaganathaPandithar the father of the plaintiff had requested for a patta beinggranted to him in respect of the suit property. However, the requesthad been rejected on the ground that the suit property is aGovernment Poramboke. While so, it is not open to the plaintiffs toclaim customary rights of fishing and of using the pond, which issaid to be known as "Ambattan Kuttai", in the suit property, withoutimpleading the Government as a party. When the plaintiffs have statedthat the suit property is for the common use of the members of thebarber's community, as well as the other villagers, there cannot be adeclaratory relief granted in favour of the plaintiffs, as prayed forby them in the suit. In such circumstances, this Court does not findsufficient cause or reason for interfering with the judgment anddecree of the first Appellate Court, dated 2.3.1995, made inA.S.No.205 of 1993. Hence, the second appeal stands dismissed. Nocosts. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar.csh https://hcservices.ecourts.gov.in/hcservices/ To1) The District Court, Nagapattinam2) The Sub Court, Mayilduthurai.3) The Section Officer, VR Section, High Court, Madras.+ 1 cc to Mr.A.Dhiraviyanathan, Advocate, SR.No.49106.+ 1 cc to Mr.S.Sounthar, Advocate, SR.No.48489.S.A.No.1329 of 1995AKR (CO)A.S. 12.10.2009