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T.GNANAMANI AMMAL versus THE AVANIAPPURAM TOWN

High Court of Madras

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T.Gnanamani Ammal v. The Avaniappuram Town - SECOND APPEAL.No.1139 of 1996 [2007] RD-TN 407 (31 January 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 31/01/2007

CORAM

THE HONOURABLE MR.JUSTICE A.SELVAM

SECOND APPEAL.No.1139 of 1996

T.Gnanamani Ammal ... Appellant Vs.

The Avaniappuram Town

Panchayat represented by

its Executive Officer,

Avaniapuram,

Madurai.

... Respondent This Second Appeal has been filed under Section 100 of C.P.C., against the judgment and decree dated 22.12.1995 passed in Appeal Suit No.137 of 1992 by the II-Additional District Court, Madurai, confirming the judgment and decree dated 25.06.1992 passed in Original Suit No.289 of 1990 by the Principal Subordinate Court, Madurai.

For appellant ... Mr.S.Kadarkarai

For respondent ... Mr.P.Srinivas

:JUDGMENT



The plaintiff calls in question the legality judgment and decree dated 22.12.1995 passed in Appeal Suit No.137 of 1992 by the II- Additional District Court, Madurai wherein the judgment and decree passed in Original Suit No.289 of 1998 by the Principal Subordinate Court, Madurai are confirmed.

2. The appellant herein as plaintiff has instituted the Original Suit No.289 of 1990 on the file of the Principal Subordinate Court, Madurai, for the reliefs of declaration and injunction wherein the present respondent has been shown as sole defendant. The trial Court after contemplating both the oral and documentary evidence has dismissed the suit without costs. The judgment and decree passed by the trial Court have been challenged in Appeal Suit No.137 of 1992. The first appellate Court after reappraising the evidence adduced on either side has dismissed the appeal whereunder the judgment and decree passed by the trial Court are confirmed.

3. The material averments made in the plaint can be stated like thus;

The suit property is originally belonged to one Srimathi J.J.Chellammal and one M.R.Masilamani alias J.J.Chellammal. On 16.04.1975 a partition has been effected and in the said partition, the suit property has been allotted to J.J.Chellammal and subsequently, she converted the same into plots. The lay out plan has been approved by the defendant. The plaintiff has purchased the suit property under a registered sale deed dated 05.03.1984. The plaintiff has put up fence around the suit property. The plaintiff has given a legal notice on 22.02.1990 wherein the defendant has been directed not to interfere with the peaceful possession and enjoyment of the plaintiff. The defendant has no manner of right, title and interest over the suit property. Under the said ambience, the present suit has been instituted for the relief indicated supra.

4. The material averments made in the written statement filed by the defendant may be summarised as follows;

The alleged predecessors in title of the plaintiff viz., J.J.Chellammal and one M.R.Masilamani have submitted a requisition to the Executive Officer, Avaniapuram Municipality and the petition given by them as well as plans, have been sent to the Director, Town Planning, Madurai. The Director, Town Planning, Madurai, has approved the same. The suit property has been set apart for public purpose and accordingly, the same has been handed over to the defendant. The alleged predecessors in title of the plaintiff has no locus standi to convey the same to the plaintiff. There is no merit in the suit and the same deserves dismissal.

5. On the basis of divergent pleadings raised by either party, the trial court has framed necessary issues and after analysing both the oral and documentary evidence, has dismissed the suit. The judgment and decree passed by the trial Court have been challenged in Appeal Suit No.137 of 1992, The first appellate Court has dismissed the appeal whereunder the judgment and decree passed by the trial court are confirmed.

6. At the time of admission of the present Second Appeal the following substantial question of law has been formulated; "Are the Courts below not right in dismissing the suit even though the title of the land, set apart for public purpose had not been conveyed by any document to the respondent/panchayat?"

7. The learned counsel appearing for the appellant/plaintiff has strenuously contended that even though the suit property has been set apart for public purpose, his alleged predecessor in title of the suit property has not executed any document in favour of the defendant and the plaintiff has purchased the suit property for valid consideration. Under the said circumstances, the plaintiff is having valid title, but the Courts below have erroneously non-suited the plaintiff. Therefore, the concurrent findings given by the Courts below are liable to be interfered with.

8. The learned counsel appearing for the respondent/defendant has laconically contended that the suit property has been set apart for public purpose and in which the alleged predecessor in title of the plaintiff is not having any saleable interest and therefore the sale deed obtained by the plaintiff is nothing but void and the Courts below have rightly non-suited the plaintiff and there is no valid ground to make interference with the concurrent findings of the Courts below and altogether the present second appeal deserves dismissal.

9. In order to buttress his argument, the learned counsel appearing for the respondent/defendant has befittingly drawn the attention of the Court to the decision reported in 2004(2) Law Weekly P-112 (Ammani Vs. The Tiruchengode Municipality rep. by its Commissioner Tiruchengode Municipality, Tiruchengode Town Nammakkal District), wherein this Court has held as follows;

"Reserving any site for any street, open space, park, School etc., in a lay out or plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be the legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the owner from transferring or selling his interest in it."

10. From the close reading of the decision referred to earlier, the following aspects have become emerged; (a) If any site has been set apart for the formation of street, park and school etc., it is deemed to be for public purpose; (b) Such a reservation has ceased the title of the owner; (c) An obligation is created upon the owner of the land in nature of trust; and

(d) The owner is precluded from transferring or selling his interest in it.

11. It is an admitted fact that the plaintiff has purchased the suit property under a registered sale deed dated 05.03.1984 and the same has been marked as Ex.A5. The approved plan has been marked as Ex.A4, wherein the suit property has been set apart for public purpose. As per the dictum given in the decision referred to earlier, it is made clear that as soon as the suit property has been set apart for public purpose the right of the alleged vendor of the plaintiff has become ceased and she is not having any transferable right. Therefore, virtually Ex.A5 has become a void document and the same has not conveyed any valid title in favour of the plaintiff. In short, the plaintiff is not having title to the suit property. Since the plaintiff is not having title to the suit property, he can easily be non suited. Both the Courts below after making threadbare discussion of all the controversial points, have rightly and properly come to the conclusion that the plaintiff is no entitled to get the reliefs sought for in the plaint.

12. In view of the foregoing narration of both the factual and legal premise, this Court has not found any illegality or infirmity in the judgment and decree of the Courts below and the same need not be interfered with. Therefore, the argument advanced by the learned counsel appearing for the appellant is sans merit and whereas the argument advanced by the learned counsel appearing for the respondent is really having considerable force.

13. In fine, this second appeal fails and is dismissed with costs. The judgment and decree passed in Original Suit No.289 of 1990 by the Principal Subordinate Court, Madurai upheld in Appeal Suit No.137 of 1992 by the II-Additional District Court, Madurai are confirmed. To

1.The II-Additional District

Court, Madurai.

2.The Principal Subordinate

Court, Madurai.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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