This second appeal has been preferred against the judgment and decree dated 26.04.2000 made in Appeal Suit No.157 of 1999 on the file of the First Additional Sub Court, Madurai, confirming the judgment and decree dated 09.09.1999 made in Original Suit No.122 of 1998 on the file of the District Munsif Court, Melur.
2.The appellant herein was the plaintiff in the suit. The appellant as plaintiff filed the suit seeking the relief of declaration of title in respect of schedule mentioned properties and consequential injunction against the respondent/defendant.
3.It is not in dispute that the respondent was the President of Melamadai Panchayat, Melur, Madurai District.
4.In the written statement, the respondent/defendant has specifically stated that the suit property is only 2 square metre of land, which is a pathway vested with Melamadai Panchayat. On the date of filing of the suit, the respondent was the President of the said Panchayat. It is seen that the suit has been filed in individual capacity as against the respondent and he is not the President of the Panchayat as on today. Hence, there is no representation for the respondent in the second appeal.
5.Based on the grounds raised by the appellant the following substantial questions of law have been formulated for consideration:- [1]Whether the Courts below are right in holding that the appellant was not entitled for declaration and injunction simply because under Ex.A-5, the patta granted to appellant was cancelled?
[2]Whether the Courts below are right in holding that the decision on Ex.A-5, when it is a well settled principle of law that patta is not a document of title and civil Courts have independently render findings based on documents?
6.The trial Court has given its finding that the appellant/plaintiff is not entitled to get the relief of declaration of title and consequential injunction on the ground that the appellant has not established his possession and enjoyment of the alleged pathway. As per the findings of the trial Court, due to non- joinder of necessary parties, the suit itself is not legally maintainable, since the President of Melamadai Panchayat was not arrayed as one of the defendants, apart from impleading the other legal heirs of Chinnasamy Thevar, father of the appellant herein.
7.So far as the possession and enjoyment is concerned, the trial Court has given its finding that the appellant herein was temporarily keeping only broken stones in the disputed property. It is not sufficient to claim possession and enjoyment of the property as it is a vacant land.
8.Mr.M.V.Venkataseshan, learned counsel appearing for the appellant submitted that the appellant is entitled to file the suit on behalf of the other legal-heirs of his father, which cannot be construed as non- joinder of necessary parties.
9.It is a settled proposition of law that one co-parcener can defend the right of the other co-parcener by way of a legal proceeding and therefore, merely because the other legal heirs of Chinnasamy Thevar were not impleaded, it cannot be construed as not sustainable in law on account of non-joinder of necessary parties.
10.In the written statement filed by the respondent/defendant itself, it has been clearly stated that the pathway is vested with the Melamadai Panchayat and therefore, the appellant/plaintiff could have filed the suit only against the appropriate authority, when there is a declaratory prayer claiming title to the property, apart from the relief of consequential injunction.
11.It is not in dispute that the respondent herein had raised his objection, as he was the President of the Melamadai Panchayat in the year 1998. Admittedly, the respondent/defendant is not the President of the village Panchayat as on today. When the land in dispute is vested with the village Panchayat, the concerned authority is only the Commissioner of the Panchayat Union. As the appellant/plaintiff has sought the relief of declaration of title in respect of the land vested with the village Panchayat, the Government should have been made as one of the parties to the suit. Therefore, the suit filed by the appellant/plaintiff is affected on the ground of non-joinder of necessary parties. Considering the same the suit was dismissed by the trial Court and the first appellate Court confirmed the finding of the trial Court and dismissed the appeal preferred by the appellant herein.
12.The learned counsel appearing for the appellant submitted that originally patta was granted in favour of the appellant and that was subsequently cancelled as per Order of the District Revenue Officer, by his order dated 10.06.1998 in Na.Ka.No.15360/98/Nee.2. It is settled proposition of law that patta is not a document of title. Merely based on the cancellation of a patta, already granted, without any supporting material the appellant/plaintiff cannot claim title to the property. Further the Courts below have not negatived the relief sought for by the appellant, mainly on the ground of cancellation of patta, Ex.A5 and therefore, the burden of proof is upon the appellant/plaintiff to establish his claim. The appellant cannot claim any right, based on Ex.A5, in the absence of positive evidence, and hence I am answering the substantial questions of law against the appellant.
13.It is clear from the impugned judgment rendered by the Court below that the appellant has not impleaded the necessary parties for seeking the relief as sought for in the plaint. Hence the suit is not maintainable on the ground of non-joinder of necessary parties and he has also not established his claim. Therefore, I find no error or infirmity in the impugned judgment rendered by the Court below to be interfered with in the second appeal. However, the appellant is at liberty to file a comprehensive suit against appropriate authorities, if need be, so as to establish his claim and get the relief sought for.
14.With the above observations, this second appeal is dismissed. No order as to costs.
er To
1.The First Additional Subordinate Judge, Madurai.
2.The District Munsif, Melur.