Sri Kanchi Kamakoti Madam,by its Sri Karyam and Agent v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 05.04.2007CORAM:THE HON'BLE MR. JUSTICE P.JYOTHIMANISecond Appeal No.828 of 1995Sri Kanchi Kamakoti Madam,by its Sri Karyam and Agent... Appellant/PlaintiffVs.1.The State of Tamil Nadu,rep.by the Collector,Nagai Quid-E-Millath,District, Nagapattinam,Tanjore District.2.The Block Development Officer,Nannilam, Nannilam Taluk,Tajore District.3.The President,Kollumangudi Panchayat Union,Kollumangudi Village,Nannilam Taluk, Tanjore District.... Respondents/DefendantsPRAYER: Second Appeal against the Judgment and decree of the DsitrictCourt, Nagapattinam dated 1.2.95 in Appeal Suit No. 109 of 1993preferred against the decree of the Court of the Subordinate Judge,Mayiladuthurai dated 30.9.1992 in O.s.No. 106 of 1990. For Appellants: Mr.Subramanian for Mr.V.Krishnan For Respondents : Mr.R.Revathi, G.A. (CS) for R1 & R3 Mr.NSubbarayalu for R2 J U D G M E N TThe plaintiff in the suit is the appellant. The suit filed by theplaintiff for recovery of Rs.15,550/- with interest on the basis thatthe suit properties situated in Nannilam Taluk, Pillur Village inSurvey No.175/2 to the extent of 2 cents of Nanja lands and inKollumangudi Village in Survey No.276/1 to the extent of 19 cents inNanja Survey No.276/4 to the extent of 22 cents to the total extent of https://hcservices.ecourts.gov.in/hcservices/ 43 cents which belong to the plaintiff Mutt and according to theplaintiff the third respondent has encroached the same in the year 1980for putting up the road without following the land acquisitionproceedings and in view of the same after giving notice under Section 80of the Code of Civil Procedure, the suit for recovery claimingcompensation is filed. The claim is stated to have been made at therate of Rs.350 per cent for 43 cents and at the rate of Rs.50 per centtowards damages. 2. The defendants have filed the written statement. One of themain grounds taken by the defendants is that the third defendant was notproperly explained,that there is no Kollumangudi Village Panchayat. Thesaid Kollumangudi Village belongs to Pillur Panchayat and the PillurPanchayat has not been made as a party. The defendants have also deniedthe allegation of encroachment stating that a part of the suit propertybelong to HR & CE Department and the road in existence from timeimmemorial. It is the further case of the defendants that the pricecannot be more than Rs.60 per cent. The Trial Court has decreed thesuit in favour of the plaintiff for an amount of Rs.6,550/- along with6% interest. It was as against the said judgement and decree of theTrial Court the defendants have filed the appeal and the First AppellateCourt while allowing the appeal has set aside the judgement and decreeof the Trial Court. It is as against the said judgement of the FirstAppellate Court the present Second Appeal is filed by the plaintiff. 3. While admitting the Second Appeal this Court has framed thefollowing substantial question of law:"Whether the Lower Appellate Court is right in negativingthe plaintiff's claim in the absence of the execution of thesale deed in respect of the property involved?"4. A reference to the judgement of the Trial Court shows that infact the learned Trial Judge on appreciation of the documents filed onbehalf of the plaintiff marked as Exs.A.1 to A.6 which are adangal andchitta apart from the sketch in respect of the properties claimed by theplaintiffs which are public in nature, has definitely come to theconclusion that the plaintiff Mutt is the owner of 43 cents of land inPillur Village comprised in Survey No.275/2 and Kollumangudi Villagecomprised in Survey Nos.276/1 and 276/4 and also based on the evidenceof P.W.1. The learned Trial Judge has also referred to Ex.A.14 in whichthe defendants themselves have admitted that 2 cents of land in thePillur Village belonged to the Mutt has been taken for the purpose oflaying road to reach the burial ground. A proposal has been sent forpayment of compensation along with chitta, adangal and sketch and inview of the said factual position the Trial Court has come to aconclusion that the plaintiff Mutt was entitled as the owner of 43 centsas stated in the plaint. https://hcservices.ecourts.gov.in/hcservices/

5. On the other hand, the learned First Appellate Judge has not tochosen consider any one of the said documents and has rejected the claimof the plaintiff in respect of 43 cents saying that the plaintiff hasnot chosen to examine any of the occupants who are the tenant under theplaintiffs and without making the occupants as a parties in the suit. 6. It is also strange to note that the learned First AppellateJudge has held that for the purpose of claiming compensation theplaintiff must prove that the defendants have attempted to execute saledeed in favour of third parties which are not understandable. Theoperative portion of the learned First Appellate Judge order is asfollows: "8. ,e;j tHf;fpid ve;j mog;gilapy; thjp fPHik ePjpkd;wj;jpy;jhf;fy; bra;jhh; vd;gjw;F jf;f fhuz';fs; ,y;iy/ (SpecifiedRelief Act) Fwpj;j tif epthuzk; nfhUfpd;w rl;lj;jpy; ve;j gphptpd;gonkw;go gpujpthjpfsplk; tpiy epthuzk; nfhUfpwhh; vd;gija[k;bjhptpf;ftpy;iy/ mt;thW tpiy epthuzk; nfhug;gl;lhy; nkw;go epyj;jpidgpujpthjpfs; vth; xUtUf;fhtJ thjp jug;gpy; tpw;gid Mtzk; vGjpf;bfhLf;f Kd; te;jpUf;f ntz;Lk;/ mt;thW tpw;gid Mtzk;vGjpf;bfhLf;fhknyna tpiy eph;zak; bra;J ,Hg;gPL bjhifia kl;oy;thjp itj;jpUf;fpd;w nfhhpf;ifa[k; Vw;g[ilajy;y."7. Even if the said word is taken to mean that the plaintiff willbe entitled for compensation only if he is willing to execute sale deedin favour of the defendants, since the learned Appellate Judge hasultimately come to a conclusion that the plaintiff who has chosen tostate in the appellate stage that they are ready to execute sale deedhave not chosen to state the same in the pleadings, I do not think thatthe reasoning of the learned First Appellate Judge is proper. What isclaimed by the plaintiff is that the property belonging to the plaintiffMutt has been encroached upon by the defendant especially the thirddefendant and without following the legal process regarding landacquisition and without paying compensation and it is only in respect ofthat conduct stating that it unauthorized and against law, the suit forcompensation was filed. In such circumstances, it is not understandableas to how the plaintiff should make a pleading that he is willing toexecute a sale deed in favour of the third defendant. This is more so,when admittedly, the defendants are in possession of the property whichare being used as public road and when once the Trial Court onappreciation of documents Exs.A1 to A6 has correctly come to aconclusion that the plaintiff Mutt is the owner of 43 cents of land,there is no question of plaintiff making any offer in the pleading toexecute a sale deed in favour of the third defendant which is possibleonly after the compensation is either fixed or paid. https://hcservices.ecourts.gov.in/hcservices/

8. As far as the non-joinder of parties, the same was not an issueat all. In respect of the period of limitation, since the suit is filedon behalf of Mutt which is covered under H.R.& C.E. Act and therefore,under Section 109 of the H.R.& C.E. Act, there is no limitation.Moreover, the suit filed by the plaintiff is not for a specificperformance and it is a money suit for damages. As correctly pointedout by the learned counsel for the appellant Mr.Subramanian, after theamendment under Act 28 of 2003, Section 109 of the H.R.& C.E. Actexempts application of limitation Act in respect of possession ofimmovable property belonging to any religious institution or forpossession of any interest in such property, in contrast to theprovision of 109 before the amendment wherein a bar was been imposed ona person in claiming adverse possession on question of limitation, ifproperty did not vest in him prior to 30.09.1951. As far as the pointrelating to the improper mentioning of the third defendant, inasmuch asit is admitted that both the Villages Kollumangudi and Pillur wereoriginally the same Village panchayat and it was divided only after 1992and even otherwise they were under the control of the second defendantand in view of the said facts, I do not think that the defense raised bythe defendants in that regard is sustainable. 9. In view of the above said fact and looking into any angle thereis a patent error committed by the learned First Appellate Judge andtherefore, the said judgement and decree suffers from illegality and thesubstantial question of law as framed is answered in favour of theappellant, with the result the judgement and decree of the FirstAppellate Court in A.S.No.109 of 1993 on the file of the District CourtNagapattinam is set aside and the judgement and decree of the TrialCourt dated 30.09.1992 passed in O.S.No.106 of 1990 on the file of theSub Court Myladurai is confirmed and the Second Appeal stands allowedwithout costs. nbjSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1. The District Judge, Nagapattinam,2. The Subordinate Judge, Mayiladuthurai.3. The Record Keeper, V.R. Section,High Court, Chennai. https://hcservices.ecourts.gov.in/hcservices/ + One cc to the Spl Govt Pleader sR 21883+ One cc to Ms. R. Revathy, Govt Advocate sR 21817NG (co)sg 16/5/07 Order inS.A.No.828 of 199505.04.2007