THE HONOURABLE MR v. M.Lakshmi Ammal.. 1st

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 09. 04.. 2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.Nos. 1328 of 2008 and1231 of 2005and M.P.No.1 of 20081.The Executive Engineer, Site and Service Division No.3, Tamil Nadu Housing Board, Thirumangalam, Chennai35.2.The Chairman, Housing Board, Chennai-35... Appellants in S.A.No.1328 of 2008 andrespondents 2 and 3 in S.A.No.1231 of 2005/Defendants 1 & 2Mr.V.A.Joy...Appellant in S.A.No.1231 of 2005 and3rd respondent in S.A.No.1328 of 2008/4th Defendantvs.1.M.Lakshmi Ammal.. 1st respondent in both the appeals/Plaintiff2.Chennai Metropolitan Development Authority, rep.by its Member-Secretary, Chennai-8.... 4th Respondent in S.A.No.1231 of 20052nd respondent in S.A.No.1328 of 2008/3rd Defendant https://hcservices.ecourts.gov.in/hcservices/ These second appeals are filed under section 100 of CPCagainst the judgements and decrees dated 29.6.2005 passed by theAdditional Sessions Judge, (II Fast Track Court, Chennai), inA.S.No.157 of 2002 and A.S.No.85 of 2003, confirming thejudgement and decree dated 2.4.2002 passed by the VI AssistantJudge, City Civil Court, Chennai, in O.S.No.2163 of 1990.For appellant in S.A.No.1231 of 2005 Mr.S.V.Jayaraman,Sr.counsel for Mr.V.Manohar For Respondents in S.A.No.1231 of 2005 : Mr.V.Adi Narayana Rao R2 and R3Mr.J.Ravindran for R4For Appellants in S.A.No.1328 of 2008: Mr.V.Adi Narayana Rao For Respondents in S.A.No.1328 of 2008Mr.S.V.Jeyaraman, Sr.counsel for Mr.V.Manohar for R3 in SA 1328/08Mr. J. Ravindran for R2No appearance for R1 in both SA's COMMON JUDGMENTS.A.No.1328 of 2008 is filed by the defendants 1 and 2 andS.A.No1231 of 2005 is filed by the 4th defendant, animadvertingupon the judgement and decrees dated 29.6.2005 passed by theAdditional Sessions Judge, (II Fast Track Court, Chennai), inA.S.No.157 of 2002 and A.S.No.85 of 2003, confirming thejudgement and decree dated 2.4.2002 passed by the VI AssistantJudge, City Civil Court, Chennai, in O.S.No.2163 of 1990. Forconvenience sake, the parties are referred to hereunderaccording to their litigative status before the trial Court.2. Avoiding discursive discussion, I would like to pithilyand precisely, tersely and briefly set out the germane facts asunder:-(i) O.S.No.2163 of 1990 was filed by Lakshmi Ammal,thefirst respondent in both the second appeals/plaintiff, seekingthe following reliefs: https://hcservices.ecourts.gov.in/hcservices/ "a) to declare that the suit property, namely, house,ground and premises at door No.1-A, Abirami Avenue 1stStreet, Kodungaiyur, Chennai-51 in Survey No.175/3A(Part) and measuring 2340 sq.ft which is morefullydescribed in the schedule hereunder absolutely belongto the plaintiff.b) to grant permanent injunction restraining thedefendants, their men, servants and subordinates oranybody claiming under or through them from in any wayinterfering with the peaceful possession and enjoymentof the suit property, namely, house, ground andpremises at Door No.1-A, Abirami Avenue, 1st Street,Kodungaiyur, Chennai-600 051, is Survey No.175/3A partand measuring 2340 sq.ft morefully described in theschedule hereunder, either by demolition or otherwiseexcept in accordance with the due process oflaw."(extracted as found in the plaint)(ii) Whereas, the 4th defendant-V.A.Joy filed the separatesuit O.S.No.463 of 1992, seeking injunction in respect of thesame suit property referred to in O.S.No.2163 of 1990 filed byLakshmi Ammal. (iii) In as much as both the suits were interrelated andinterlinked, interconnected and entwined with each other, itnecessitated the lower Court to correctly conduct the jointtrial and pronounce the common judgement.(iv) In both the suits, the defendants concerned resistedthe suit. During the joint trial, the plaintiff inO.S.No.2163 of 1990, examined herself as P.W.1 apart fromexamining one Sukumaran and P.W.2 and Hameed Nazar as P.W.3 andmarked Exs.A1 to A13. The 4th defendant-V.A.Joy (in O.S.No.2163of 1990) examined himself as D.W.2 along with one R.Murugesan asD.W.1 and Nagarajan as D.W.3s and no document was marked. Ex.C1was marked as Court document.(v) Ultimately the trial Court decreed the suit O.S.No.2163of 1990 filed for declaration and injunction by Lakshmi Ammaland dismissed the suit O.S.No.463 of 1992 filed for injunctionby V.A.Joy-the appellant in S.A.No.1231 of 2005.(vi) Being disconcerted and aggrieved by the said commonjudgement, A.S.No.157 of 2002 was filed by V.A.Joy for nothingbut to be dismissed by the first appellate Court, as againstwhich, S.A.No.1231 of 2005 was filed by the same V.A.Joy. https://hcservices.ecourts.gov.in/hcservices/ (vii) The Executive Engineer and the Chairman of Tamil NaduHousing Board-the defendants 1 and 2 in the said suitO.S.No.2163 of 1990 preferred the first appeal A.S.No.85 of 2003for nothing but to be dismissed by the first appellate Court andas against which, S.A.No.1328 of 2008 was filed.3.The fact also remains that V.A.Joy-the plaintiff inO.S.No.463 of 1992, as against the dismissal of his suit,preferred A.S.No.418 of 2003 before the II Fact Track Court,Chennai, for nothing but to be dismissed and as against which,S.A.No.1242 of 2005 was filed and my learned predecessor, on6.2.2006 dismissed the second appeal at the admission stageitself adverting to the fact that Joy could not establish hisright. In fact, in the said order, this Court took intoconsideration the fact that the right of Joy was considered inthe common judgement of the trial Court and it was considered bythe first appellate Court and ultimately, decided the case asagainst Joy. Hence, the same logic would be applicable fordismissing the second appeal 1231 of 2005 filed by Joy, asagainst the findings in O.S.No.2163 of 1990. 4. However, the learned counsel for the Housing Board, andthe officials concerned, namely, the defendants 1 and 2 in thesuit O.S.No.2163 of 1990/appellants in S.A.No.1328 of 2008,would develop his argument that de hors the decision rendered bythis Court in S.A.No.1242 of 2005 as against Joy on 6.2.2006,the right of the Housing Board has to be decided in this secondappeal, as D1 and D2 happened to be the real owners of the suitproperty by virtue of the land acquisition proceedings taken bythe Government relating to the suit property and otherproperties and ultimately having handed over the same to D1 andD2, so to say, the Housing Board.5. The learned Senior counsel for the plaintiff-Lakshmiammal (in O.S.No.2163 of 1990) would raise an objectionto the maintainability of the second appeal filed by the HousingBoard itself on the ground that the said V.A.Joy-the 4thdefendant in O.S.No.2163 of 1990 preferred second appeal(S.A.No.1242 of 2005); this Court dismissed it and suchdismissal of it would tantamount to confirming that theplaintiff (in O.S.No.2163 of 1990) as the person who acquiredprescriptive title over the suit property and such decision inthe second appeal filed by V.A.Joy would operate as res judicataand as such, the present both the appeals are not tenable.6. Ex facie and prima facie it is obvious and axiomaticthat the principle of res judicata, as attempted to be usheredin on the side of the plaintiff-Lakshmiammal is not a sound plea https://hcservices.ecourts.gov.in/hcservices/ and it fails to find favour with this Court for the reason thatthe said S.A.No.1242 of 2005 filed by V.A.Joy was not decidedafter admitting the appeal and framing substantial question oflaw, but at the entertaining stage itself it was dismissed. 7. A bare perusal of the order passed by this Court in thesecond appeal No.1242 of 2005 would display and evince that itdoes not in any way refer to the plaintiff/Lakshmiammal'salleged prescriptive title over the suit property or about theland acquisition proceedings as pleaded by the Housing Board.What are all my learned predecessor while disposing of theS.A.No.1242 of 2005 stated was that V.A.Joy had no shard orshred, iota or miniscule extent of evidence to prove that heacquired title over the property and as such, no substantialquestion of law had arisen for entertaining the second appeal.8. The pre-existing right of the Housing Board, asdefendants in O.S.No.2163 of 1990, to file second appeal asagainst the judgement of the first appellate Court in A.S.No.85of 2003, still subsists. By no stretch of imagination, it couldbe stated that simply because Joy's second appeal, namely, 1242of 2005 was dismissed, the Housing Board's right to prefersecond appeal also got obliterate by virtue of the principle ofres judicata. Incontrovertibly and indubitably, the case ofHousing Board is different from V.A.Joy's case.9. In this factual matrix, my mind is reminiscent of thefollowing maxim:'Ubi jus ibi remedium' - which means where thereis a right there is a remedythe above said maxim would squarely be applicable in favour ofthe Housing Board, as their right to prefer second appeal cannotbe throttled by the plaintiff-Lakshmiamml by raising some plea.Simply because the said Joy failed to get his second appealadmitted, the Housing Board's right to get second appealadmitted relating to their separate case de hors V.A.Joy's casecannot be denied. As such, no more elaboration in this regardis required. 10. In S.A.No.1328 2008, after hearing for some time thearguments on both sides, this Court felt that with the consentof both sides, this matter could be disposed of finally byframing the following substantial questions of law:"(a) Whether the trial Court was justified in notframing any issue based on the plea of landacquisition proceedings as raised by defendants 1 and2? https://hcservices.ecourts.gov.in/hcservices/ and(b) Whether the finding of both the Courts below thatin view of the plaintiff having acquired prescriptivetitle, even anterior to the land acquisitionproceedings, she is entitled to injunction, iscorrect?" 11. The learned counsel for the the appellants/defendants 1and 2 in S.A.No.1328 of 2008 would develop his argument to theeffect that the suit property was acquired by the Government andit was handed over to the Housing Board and to that effect, thefacts were placed before the trial Court, but both the Courtsbelow, without properly appreciating the facts simply decreedthe suit as though Lakshmi Ammal/plaintiff in O.S.No.2163 of1990 acquired prescriptive title over the suit property.12. A bare poring over and perusal of the typed set ofpapers, including the judgements of both the Courts below, wouldindicate and evince that no issues have been framed by the trialCourt relating to land acquisition proceedings.13. It is a common or garden principle of law that theacquisition of land under the land acquisition proceedings wouldobliterate the prescriptive title, if any, of Lakshmi Ammal andfurthermore, it would cause an interdiction in the accrual ofany prescriptive title. It is also a trite proposition that onseeing the Notification for acquisition, the real owner of thesuit property, whose name has been left out in the Notification,has to file objection, if any, to the Notification. It is alsoa settled proposition of law that land acquisition proceedingscannot be challenged in a suit. The owner of the land ishaving only the right to file a suit for compensation from theperson who wrongly obtained compensation from the Governmentconcerned, if already compensation has been disbursed to a wrongperson other than the real owner. 14. The learned counsel for the appellants in S.A.No.1328of 2008/D1 and D2 would invite the attention of this Court toparagraph 18 of the judgement of the trial Court and develop hisargument to the effect that the trial Court was appraised of theland acquisition proceedings and the Court also adverted to thefact that D.W.3 deposed before the Court that as per AwardNo.2/1979 dated 15.6.1979, the property bearing SurveyNo.175/3A2 measuring 22 cents in Kodungaiyur Village, includingthe suit property, was acquired by the Government under theLand Acquisition Act. The fact remains that no specific issuewas framed by the trial Court touching upon the plea of landacquisition, as put forth by the D1 and D2 in paragraph 9 oftheir written statement. https://hcservices.ecourts.gov.in/hcservices/

15. A bare perusal of paragraph 9 of the written statementof D1 and D2 would reveal that they took a specific plea thatthe land in Survey No.175/3A2 measuring 0.22 acres inKodungaiyur Village was acquired from one Janarthanan by TNHBAcquisition Act, after paying due compensation to the ex-ownerand the relevant award number was 2/79. As such, despite theclear plea taken by the D1 and D2, the trial Court has notframed any issue and the first appellate Court also failed toconsider the said fact, but it blindly confirmed the findings ofthe lower Court. An excerpt from the trial Court judgement isextracted hereunder for ready reference: "jhth brhj;jpy; RthjPdj;jpy; ,Ue;J te;j 1960=ypUe;J 12Mz;Lfs; fHpj;J jhd; jkpH;ehL tPl;L trjp thupak; nkw;gobrhj;ij ifafg;gLj;jpas;sJ vd;gJ ed;F bjhpatUfpwJ/ thjpjhd; RthjPdj;jpy; vLj;Jf;bfhz;l njjpapypUe;J 12Mz;LfSf;F nkyhf jhth brhj;jpy; RthjPdj;jpy; ,Ue;Jte;Js;sjhy; jhth brhj;jpd; nghpy; thjpf;F vjph;epiy cilikghj;jpak; Vw;g;gl;Ls;sJ vd;gJ bjjpatUfpd;wJ/ vdntvjph;epiy cilik ghj;jpak; K:yk; jhth brhj;J thjpf;Fghj;jpag;gl;lJ vd Kot[ bra;ag;gLfpwJ/@16. A plain reading of the same would leave no doubt in themind of this Court that the lower Court, without au fait withlaw and au courant with facts simply misdirected itself and theview taken by the trial Court was tangent. The trial Court waslaboring under the misapprehension as though once the plaintiffwas alleged to be in possession for over 12 years before theland acquisition proceedings, the very acquisition proceedingwould become in effective.I am at a loss to understand as to howsuch a totally untenable view could be taken by the trial Courtand confirmed by the first appellate Court. Put simply, boththe Courts below were unable to see the wood for tree.17. To the risk of repetition, without being tautologous, Iwould like to point out that even for argument sake it is takenthat the plaintiff had acquired prescriptive title even beforethe land acquisition proceedings and the plaintiff's name wasnot found in the acquisition proceedings, nonetheless theacquisition proceedings would prevail over all owners whethertheir names are found specified in the Notification for landacquisition or not. As such, the land acquisition proceedingsare juridical acts in rem. Hence, the judgements of both theCourts below having no legs to stand. https://hcservices.ecourts.gov.in/hcservices/

18. The learned counsel for the plaintiff would submit thatthe necessary documents relating to the acquisition proceedingshave not been marked before the lower Court and he would alsostate that such land acquisition proceedings were withdrawn.But absolutely, there is no shred or shard, pint-sized orminiscule extent of evidence that such land acquisitionproceeding was withdrawn.19. Be that as it may, inasmuch as both the Courts belowfailed to see that necessary issue relating to the plea of landacquisition proceedings, as put forth, was not framed, I wouldlike to set aside the judgement and decree of the firstappellate Court.20. Accordingly, the substantial question of law No.(1)is decided to the effect that the trial Court was not justifiedin deciding the case without framing any issue relating to theplea regarding land acquisition proceedings.21. The substantial question of law No.(2) is decided tothe effect that both the Courts below are not justified ingiving a find that because the plaintiff acquired allegedprescriptive title, before the land acquisition proceedings, shewas entitled for injunction. 22. Accordingly, the judgement and decree dated dated29.6.2005 passed by the Additional Sessions Judge, (II FastTrack Court, Chennai), in A.S.No.85 of 2003, is set aside andthe matter is remitted back to the first appellate Court forentertaining evidence relating to the following additionalissues framed by this Court:"(i) Whether the land in Survey No.175/3A2measuring 0.22 acres in Kodungaiyur Village (includingthe suit property) was acquired by the Governmentunder the Land Acquisition proceedings concerned? And(ii) If so, whether the plaintiff's prayer forpermanent injunction is tenable?23. Since the matter is of the year 2003, within a periodof three months, the first appellate Court, after recordingevidence of both sides and after giving opportunity of beingheard, dispose it of finally by a reasoned judgement.Both theparties shall appear before the first appellate Court on29.4.2009. https://hcservices.ecourts.gov.in/hcservices/

24. For the reasons already adverted to above, S.A.No.1231of 2005 filed by V.A. Joy-the 4th defendant in O.S.No.2163 of1990 is dismissed.MskSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Additional Sessions Judge, (II Fast Track Court, Chennai)2. The VI Assistant Judge, City Civil Court, ChennaiCopy to:-The Section Officer VR Section, High Court, Madras 104.•1 cc to Mr. Adinarayana Rao, Advocate SR 13982 judgement inS.A.Nos.1328 of 2008 and 1231 of 2005RSM(CO)SR/17.4.2009