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Judgment
V. Periya Karuppiah, J.—This appeal is directed against the judgment and decree dated 23.12.2003 passed by the first appellate Court in
A.S. No. 41 of 2003 in reversing the judgment and decree dated 31.3.2003 passed by the trial Court made in O.S. No. 375 of 1998 in dismissing
the suit. The appellant herein was the second defendant; the first respondent was the plaintiff and the respondents 2 and 3 were the defendants 1
and 3 before the trial Court. The second defendant/appellant remained ex parte before the trial Court.
The case of the plaintiff as stated in the plaint are as follows:
The plaintiff had occupied the suit property 20 years back and had been living there, after putting up a hut. He is paying kist and ''B'' memo
charges and tax for the hut. He had obtained tap connection as early as 1987. Patta had been granted in favour of the plaintiff for the suit property
and the Patta Number is 657. All of a sudden, the first defendant had sent a notice dated 29.9.1998, which was received by the plaintiff on
2.12.1998, cancelling the patta granted to him without assigning any reasons for the same. Revoking the patta amounts to and affected by
Promissory Estoppel"" and also ""Estoppel by conduct"". Such an unilateral act of cancelling the patta cannot be done by the defendants, without an
enquiry, independently. One Mahalakshmi. W/o. Mohan is doing her business in the same survey number, which is also gramanatham. No action
was taken against her and she continues to be there doing her business and this attitude of the defendants is partisan and has bad motives. The
cause of action for the suit arose. The plaintiff, therefore, filed suit for declaration that the notice dated 29.9.1998 cancelling the patta granted in
favour of the plaintiff for the suit property is void and illegal and not binding on her and for consequential injunction.
The case of the first defendant as stated in the written statement are as follows:
The suit is not maintainable. The obtaining of electricity service connection will not clothe the plaintiff with any title to the suit property. The issue of
''B'' memo receipts would only prove that penalty has been imposed for wrongful possession. In law, the serving of notice under the Tamil Nadu
Land Encroachment Act tantamount to eviction as per the decision of the Hon''ble High Court. Hence, the suit for injunction does not lie.
Therefore, the plaintiffs possession, even if true, is that of a trespasser only. Under such circumstances, the suit for injunction as against the State,
who is the real owner of the suit property, is not maintainable. The suit land is classified as ''Village Site''. In 1995, the plaintiff has obtained house
site patta from the Special Tahsildar (Natham Survey) Thiruporur, which is against rules. Hence, the patta was duly cancelled, by order dated
29.8.1998, after observing all formalities. The Civil Court has no jurisdiction to entertain the suit. The suit does not satisfy the requirements of
Section 80 CPC. The suit without statutory notice is bad in law. The suit is bad for non-joinder of necessary parties. The plaintiff without filing an
appeal against the order of cancellation of patta to the appropriate authority and without exhausting her remedies, has no locus standi to file the suit
before this Court. There is no question of estoppel by conduct or otherwise. Notice dated 1.12.1998 is valid. No permission was obtained by the
plaintiff from the State before putting up any construction. The plaintiff cannot try to take advantage of her wrongs. The plaintiff has no cause of
action to sue. Hence, the suit may be dismissed with exemplary costs u/s 35A CPC.
The trial Court after framing necessary issues entered trial. After appraising the evidence adduced on either side, the trial Court had come to the
conclusion of dismissing the suit without costs. The aggrieved plaintiff had filed an appeal before the first appellate Court in A.S. No. 41 of 2003
against the judgment and decree passed by the trial Court. The first appellate Court had heard the arguments advanced on either side and had
come to the conclusion of reversing the judgment and decree of the trial Court and thus, decreed the suit.
Aggrieved second defendant has preferred the second appeal against the judgment and decree passed by the first appellate Court.
On admission, this Court had formulated the following substantial questions of law for consideration in the second appeal:
Whether the lower appellate Court is correct in coming to the conclusion that the non-issuance of Section 80 notice will not vitiate the suit?
Whether the lower appellate Court is correct in coming to the conclusion that the issuance of B-Memo receipt and the non-production of the
same will prove the possession of the suit property by the first respondent?
Heard Mr. S. Parthasarathy, learned counsel for the appellant/second defendant and Mr. T. Murugamanickam, learned counsel for the first
respondent/plaintiff and Mr. M. Venugopal, learned Additional Government Pleader (C.S) for the respondents 2 and 3/defendants 1 and 3.
The learned counsel for the appellant would submit in his argument that the first appellate Court failed to appreciate the oral and documentary
evidence without any proper perception. He would further submit that mere issuance of ''B'' memo was considered by the first appellate Court for
the plaintiff found in possession of the suit property for a long period. He would further submit that the plaintiff did not produce any acceptable
evidence to prove her long possession over the property and yet, the first appellate Court had found that the plaintiff was in possession and
enjoyment of the suit property. He would further submit in his arguments that the suit was filed against the Government seeking relief and the non-
issuance of notice to be issued u/s 80 CPC was material and in the absence of such issuance of notice u/s 80 CPC would disentitle the plaintiff to
get reliefs. He would further submit that the first appellate Court did not consider that the plaintiff did not approach the appellate forum and exhaust
the remedy, but directly approached the Civil Court. He would also submit that the alleged ''B'' memo receipts issued to the plaintiff were not
produced before the trial Court and yet, the plaintiff was found in possession of the suit property by the first appellate Court. He would further
submit that the first appellate Court ought to have dismissed the suit and confirmed the judgment and decree passed by the trial Court, since no
notice was issued u/s 80 CPC. He would further submit that the plaintiff did not plead that the suit property was gramanatham. He would also
submit that the patta granted to the plaintiff was cancelled by the Sub-Collector and therefore, the plaintiff did not prove her lawful possession and
the possession of her predecessor in title in respect of the suit property. He would further submit that the reference as to the judgment in
Thillaivanam, A.K. and Another v. District Collector, Chengai Anna District and 3 Others 1998-3-LW603 : LNIND 1997 Mad 1559 and the
reliance placed over it are not applicable to the present facts of the case. He would also submit that the case that the notice issued u/s 231 of the
Panchayats Act was not valid, is not also sustainable. He would further submit that the suit being filed against the Government, the foremost
requirement is issuance of Section 80 CPC notice and since no such notice has been issued, it ought to have been dismissed. He would, therefore,
request the Court to interfere and set aside the judgment passed by the first appellate Court and thereby, restore the findings reached by the trial
Court.
The learned counsel for the first respondent/plaintiff would submit in his arguments that the appellant/first defendant remained absent before the
trial Court and did not file any objections to the pleadings submitted by the plaintiff He would further submit in his arguments that when the second
defendant did not file any written statement, the averments made in the plaint filed by the first respondent/plaintiff are deemed to have been
admitted. He would further submit that the suit was erroneously dismissed by the trial Court, but it was correctly interfered and set aside by the first
appellate Court. He would further submit that the second defendant, even though not represented before the trial Court entered appearance in the
first appellate Court through counsel and put forth its contentions. He would further submit that the second defendant did not opt for filing written
statement with the permission of the Court even at the appellate stage nor disputed the pleadings filed by the plaintiff in the appeal. He would
further submit that the evidence produced before the trial Court and the pleadings of both parties were alone considered in the first appeal and the
first appellate Court had come to the conclusion of decreeing the suit in favour of the plaintiff. The defendants 1 and 3, who were the main
contestants of the suit as well as in the first appeal, did not prefer any appeal, but the second defendant, who did not file any pleadings nor
adduced any evidence, had come forward with this present appeal. He would further submit that the appeal filed by the second defendant is not
sustainable. He would further submit that the first appellate Court had detailed discussed the evidence and had come to the conclusion that the
plaintiff was in possession and enjoyment of the suit property by virtue of the grant of patta, which was subsequently cancelled by the Sub-
Collector, without giving notice to the plaintiff. He would also submit that the issuance of ''B'' memo has been rightly admitted by the Government
and therefore, there is no necessity to produce those ''B'' memos to prove the admitted facts. He would also submit that the classification of land
was admittedly ''gramanatham land'' and therefore. there cannot be any ownership for the Government so as to exercise its proprietary right over
the occupants of such property. He would further submit in his arguments that there are number of judgments of this Court in S. Rengaraja Iyengar
and Another Vs. Achikannu Ammal and Another, Krishnamurthy Gounder v. Government of Tamil Nadu 2002 (3) CTC 221 : LNI 2002 Mad
450; and The Executive Officer, Kadathur Town Panchayat Vs. V. Swaminathan, The State of Tamil Nadu, The District Collector and The
Revenue Divisional Officer, for the principle that the gramanatham lands never vested with the Government nor with Town Panchayat; and the
Panchayat or Government had no jurisdiction to pass resolution cancelling the pattas or evicting the persons, who are in the occupation of
gramanatham land. He would further submit in his arguments that the land in question is being a gramanatham land, to which the Government or the
appellant/second defendant are not the owners, the plaintiff has no obligation to issue notice u/s 80 CPC. He would also submit that the suit was
revolving upon the quasi-judicial proceedings and there is no necessity to issue 80 CPC notice for questioning those proceedings incidentally
towards the relief sought for by the plaintiff. He would cite a judgment of this Court in Tholappa Iyengar v. Executive Officer, Sri Kallalagar
Devasthanam etc., and 7 Others 1993 (2) LW 537 : LNI 1993 Mad 746 in support of his argument. He would rely upon the aforesaid judgment
of this Court and further argued that the defendants 1 and 3 ought to have raised the plea, but they remained silent without filing any separate
appeal or cross appeal in this appeal and the first defendant, who is not a Government Department, cannot raise such a question in this regard. He
would also submit that the stand taken by the first appellate Court that Section 80 CPC notice is not necessary and the said finding need not be
interfered and therefore, the appeal preferred by the second defendant may be dismissed and the judgment and decree passed by the first
appellate Court may be confirmed.
The learned Additional Government Pleader (C.S) would submit in his argument that he did not prefer any appeal against the judgment and
decree passed by the first appellate Court, however he is entitled to agitate his case in this appeal. He would further submit that the arguments
advanced by the learned counsel for the appellant/second defendant is adopted by the respondents 2 and 3 defendants 1 and 3 and he has no
serious objection in allowing the appeal.
I have given anxious thoughts to the arguments advanced on either side.
The suit was originally filed by the plaintiff for permanent injunction against the defendants in any way interfering with the possession and
enjoyment of the suit property. The claim of the plaintiff was that he had occupied the suit property 20 years back and had been living there, after
putting up a hut. He is paying kist and ''B'' memo charges and tax for the hut. He had obtained tap connection as early as 1987. Patta had been
granted in favour of the plaintiff for the suit property and the Patta Number is 657. All of a sudden, the first defendant had sent a notice dated
29.9.1998, which was received by the plaintiff on 2.12.1998, cancelling the patta granted to him without assigning any reasons for the same.
Revoking the patta amounts to and affected by ""Promissory Estoppel"" and also ""Estoppel by conduct"". Such an unilateral act of cancelling the patta
cannot be done by the defendants, without an enquiry, independently. One Mahalakshmi, W/o. Mohan is doing her business in the same survey
number, which is also gramanatham. No action was taken against her and she continues to be there doing her business and this attitude of the
defendants is partisan and has bad motives. The cause of action for the suit arose. The plaintiff was in possession of the suit property and she
cannot be evicted from the suit property. Hence, he filed the suit for declaration and for consequential injunction.
However, the defendants 1 and 3 filed written statement objecting the possession and enjoyment of the plaintiff in the suit property and it was
also submitted that the patta issued to the plaintiff was cancelled on 29.9.1998. It is also categorically stated in the written statement that the
property was classified as gramanatham and the patta granted to the plaintiff in the year 1995 was cancelled in the year 1998 as aforesaid. The
evidence adduced by the defendants 2 and 3 through D.W. 1 would go to show that the suit property was comprised in S. No. 110/C1 and it was
classified as gramanatham. Even D.W. 1 had admitted in his cross examination that it was still classified as gramanatham as on the date of his cross
examination. Exhibits B-1 and B-2 would also go to show that the suit property was classified as gramanatham. Therefore, the principles laid down
by this Court in various judgments right from 1959 onwards would be binding upon the trial Court as well as the first appellate Court.
In the judgment in S. Rangaraja Iyengar v. Achi Kannu Ammal (supra), it has been categorically laid down as follows:
It is contended that in relation to buildings, specific provision is made u/s 18 of Act 26 of 1948 and that, consequently, unless a house-site can be
brought within the ambit of Section 18, such house-site should be held to be property as to which title gets transferred to the Government u/s 3(b).
Section 18 deals, in my opinion, with buildings wherever they may be situate, whether in the gramanatham or in ryoti lands or pannai lands or waste
lands. Section 18 has no particular application to buildings or house-sites in a gramanatham. A building in a gramanatham (or village habitation) is
protected from transfer of title to the Government both u/s 18(1) of Madras Act 26 of 1948 and under the Madras Land Encroachment Act (3 of
1905). The title to a house site in a gramanatham is protected from transfer to Government by the operation of Madras Act 3 of 1905.
It is not necessary that in order that the policy underlying Madras Act 26 of 1948 be completely given effect to. house-sites belonging to private
individuals (that is persons other than the land holder) in a gramanatham, should be transferred to the Government. It is not part of the policy of the
Act to transfer to the Government, land in which the proprietor had no interest at any time. Further, transfer of title of such house-sites to the
Government would be virtually without payment of compensation, because there would be no means of determining the part of the total
compensation payable for the estate as a whole, which should be regarded as compensation paid for a few cents of house-sites in a hamlet of the
village. Therefore, if there is any ambiguity in the Act, in relation to transfer of title as to a house site, such ambiguity should be resolved in favour of
the owner, because no legislation should be held to be expropriatory in character, if such an inference could possibly be avoided. I hold that
Section 3(b) of Madras Act 26 of 1948 does not have the effect of transferring to the Government title to a house site within a gramanatham
belonging to a person other than the land holder when the estate in which the house site is situate is taken over under a notification issued under the
Act.
Subsequently, in the judgment in Thillaivanan A.K. v. District Collector Chengai Anna District (supra), it has been held as follows:
Thus it is obvious, the admitted classification of the land being a gramanatham. the land was never vested with the respondents nor they could
take action under the Land Encroachment Act or any other enactment. The petitioners state they have exclusive right, title, possession, since 1954
onwards. The respondents have no right to interfere with the peaceful possession and enjoyment of the land and their action in giving a complaint
for alleged offence u/s 420 of the IPC is total misconception.
In yet another judgment Krishnamurthy Gounder v. Government of Tamil Nadu (supra), it has been held as follows:
11......When the appellant has been in exclusive possession of the property and their predecessors in title were also in enjoyment of the land
without interference by any person, the appellant has acquired a valid right to the land by their exclusive possession. The village natham is a land
which never vested with the respondents and they have no right over it. Admittedly when the land has been classified as village natham, it is
obvious that no portion of the land vests with the respondents u/s 2 of the Land Encroachment Act, 1905.
In the judgment in Executive Officer, Kadathur Town Panchayat v. V. Swaminathan (supra), the first Bench of this Court had categorically
explained about the nature of gramanatham lands and what is the proprietary right of the Government over the said land. The relevant passage
would run as follows:
Further, ''Grama Natham'' is defined in the Law Lexicon as ""ground set apart on which the house of village may be built"". Similarly, Natham
land is described in Tamil Lexicon published under the authority of University of Madras to the effect that it is a residential portion of a village; or
portion of a village inhabited by the non-Brahmins; or land reserved as house sites; etc.
In the light of the above and in view of the fact that the admitted classification of the land being a ''Grama Natham'', it is obvious that the land
was never vested with the Government or the Town Panchayat. Inasmuch as the petitioners and their ancestors were in exclusive possession of the
lands in question for the past 40 years, the impugned order of the third respondent in cancelling the pattas with a view to evict them, summarily at
the instance of the resolution passed by the Panchayat, is not sustainable. Further, such a summary eviction is not permissible in law when the
disputed question of title is involved for adjudication as laid down by the Apex Court in number of decisions.
When one of the judgments in Thillaivanam, A.K. and Another v. District Collector, Chengai Anna District and 3 Others (supra) was cited
before the trial Court, it had referred to the principles laid down in the said judgment, but it has simply stated that it does not add strength to the
case of the plaintiff. The trial Court did not say in what way the said principle laid down by this Court does not add strength to the plaintiff is not
explained in the said judgment. However, it has been referred that the plaintiff did not plead that the Government has no right to cancel the patta
and therefore, the right claimed by the plaintiff was not valid and thus, the plaintiff was not entitled to the suit property. The trial Court did not see
the evidence properly. The patta was cancelled on 29.9.1998 and then only the suit was filed on 9.12.1998. Therefore, the finding reached by the
trial Court was without application of mind and without any proper perspective of the evidence adduced by the parties. The first appellate Court
has rightly come to the conclusion that the finding of the trial Court was sheerly not in accordance with the evidence.
However, it has been argued by the learned counsel for the appellant/second defendant that the plaintiff did not comply with the provisions of
Section 80 CPC. The said question was not raised by the defendants 1 and 3/respondents 2 and 3, who are the Government Departments, by
filing any separate appeal or cross appeal in this appeal. The respondents 2 and 3 had simply supported the case of the appellant. By virtue of the
aforesaid pearls rolling judgments detailed above, it is very clear that the Government has no proprietary right over the suit property, since it being
a gramanatham land. When the Government as well as the appellant/second defendant are expected to act in accordance with law had come
forward to interfere with the plaintiffs right in the property without resorting to legal process. The ultimate process taken by the Government was to
cancel the patta. In the said circumstances, there is no necessity for issuing any notice u/s 80 CPC, which do not warrant any circumstance as
contemplated in Section 80 CPC. The first appellate Court was right in coming to the conclusion that the plaintiff established her right to the suit
property and the defendants had no right in the property, and therefore, the interference caused by the defendants was not purported to be done
by such public officer in his official capacity. Therefore, the requirement of issuance of Section 80 CPC notice is not necessary in this case. The
first appellate Court had rightly come to the conclusion that the issuance of Section 80 CPC notice was not necessary, which is quite acceptable.
Therefore, I find no reasons to interfere with the judgment and decree passed by the first appellate Court. The questions of law framed by this
Court in this appeal are also not decided in favour of the appellant, but in favour of the first respondent/plaintiff. For the foregoing discussions, I am
of the considered view that the judgment and decree passed by the first appellate Court are not liable to be disturbed and accordingly, they are
confirmed. The Second Appeal is accordingly dismissed and thereby, the judgment and decree passed by the first appellate Court are confirmed.
No order as to costs.