This appeal is preferred by the plaintiff in O.S.No.84 of 1997, challenging the order of remand made in A.S.No.7 of 2004 by Sub Court, Hosur.
2. The plaintiff had instituted a suit in O.S.No.84 of 1997 before District Munsif Court, Hosur, seeking declaration of title, a decree for prohibitory injunction against the defendants from trespassing into the suit property and a decree of mandatory injunction to demolish the building which the defendants were alleged to have put up by trespassing into the suit property.
3. In the written statement, the defendants inter alia contended that the suit property belonged to a temple and that it is in the common use of the villagers which they use during festivals, that the plaintiff is a wealthy landlord from the neighboring village but he managed to obtain a patta for the property on 30.04.1993. The defendants have also moved the District Collector, Dharmapuri District, for canceling the patta given to the plaintiff.
4. The trial Court had framed five issues of which first two deal with plaintiff's claim of title and possession of the suit property while the third one deals with the defence of defendants in resting the title of the suit property in a temple. The trial Court dealt elaborately on the pleading of defendants that the suit property belonged to a temple and after considering the material before it, had negated it. So far as the plaintiff's title is concerned, the trial Court has held that the suit property is a poramboke property and therefore every authority is vested in the revenue authorities to assign the same and issue patta. It also observed that since the plaintiff has been granted patta and if only the defendants were aggrieved by that, they ought to resort to such legal process that are available to them to cancel the patta but they have no right to trespass into the plaintiff's property.
5. The defendants have taken up the matter in an appeal before Sub Court, Hosur, in A.S.No.7 of 2004. The Appellate Court has noted that the building which the defendants were alleged to have constructed was since electrified and also the other facts disclosed by Ext.B-1, which is the proceedings of the Collector transmitting the objection raised against the grant of patta to the plaintiff to the Tahsildar with a direction to the latter to enquire the same and has remanded the matter for following two reasons:-
a) Since the building in the suit property is electrified, it is necessary to implead the Electricity Board; and
(b) Obtain such necessary evidence as to what had happened to Ext.B-1 objection, since as long as the objections have been filed the right said to have been conferred on plaintiff under Ext.A1, patta was not conclusive but only inchoate.
6. The learned counsel for the appellant submitted that it is the plaintiff's contention that during the pendency of the suit, the defendants/respondents have entered possession and put up a small construction in the suit property which necessitated the amendment of plaint, and plaintiff was forced to seek a mandatory injunction for removal of the said construction. It was to this building, electricity connection was given to which the plaintiff taken exception to. In a circumstance such as this, a remand of suit for the purpose of impleading Tamil Nadu Electricity Board has least consequence on the cause of action in the suit, since the electricity connection merely is not going to decide the title to the property. He further added that it was the defendants' case that the suit property belonged to a certain temple but on this issue the trial Court has found (a) that to prove their defence the defendants have not produced any reliable evidence that the property belonged to a certain temple, over which the revenue authorities did not have power to assign; (b) that since the revenue record show the property to be a patta land, the revenue authorities have every power to assign the property. In the face of this finding, the first appellate court ought not to have remanded the matter unless there are any clinching contra evidence required to be proved.
7. The learned counsel for the respondents/defendants would submit that the defendants have filed a complaint seeking for cancellation of patta and this complaint/objection has been forwarded by the Collector to the Tahsildar. This correspondence is marked as Ext.B1 and there is no knowing as to what exactly had happened to that document. Further, the government has also not been made as a party to the proceedings.
8. As to the objection raised by the learned counsel for the appellant to the order of remand, I am satisfied with his arguments that indeed there was no need to implead Tamil Nadu Electricity Board. However, this is a case where possession of the property as on the date of suit appears to be in dispute. Therefore, any records from Electricity Board may be relevant and to that extent an opportunity may have to be given. As to the second leg of appellant's argument, except the impugned patta, he has not produced any document worthy to show that the property is a poromboke property in the first place. It is hence the objection to grant of patta as is disclosed in Ext.B1 becomes contextually significant. Having stated thus, it needs to be borne in mind that the suit is of the year 1997 and it is already 20 years and neither the plaintiff has produced any document other than his patta, which the defendants impugned nor the defendants have obtained the results on the objection to grant of patta to plaintiff by the revenue authorities. Since nothing has been done so far, the order of remand appears pre-mature.
9. I therefore find the order of remand cannot be sustained and the same is set aside. Both the plaintiff as well as the defendants are directed to produce necessary documents to establish that the property was a poromboke property prior to the issuance of Ext.A1 patta, and the result of the objection that the defendants have raised for issuance of patta to the plaintiff, as the case may be. This they shall do within two months from the date of receipt of a copy of this order. The first appellate court would then weigh the merit of such evidence as was placed before it and then it may decide the matter and dispose of this appeal.
In the result, I allow this appeal but with no costs. Consequently, connected miscellaneous petition is closed.
27.01.2017 ds To:
1.The District Munsif Court, Hosur.
2.The Sub Court, Hosur.
3.The Section Officer, V.R.Section High Court, Madras.
N.SESHASAYEE, J., ds C.M.A.No.1319 of 2005 27.01.2017 http://www.judis.nic.in