suit for partition - deceased ancestors of parties for allotment of suit property - slum clearance board not confirmed title or ownership - Even possessory right or lease hold right over immovable property can be subject matter of partition.
Citation
CDJ 2011 MHC 1761
Head note
Civil Procedure Code - Order 41 Rule 27 - Tamil Nadu Slum Areas (Improvement and Clearance) Act 1971 - Sections 2 (e)(v), 5, 11, 22 (1), (1)(a), (2), (3) & (4), 29(2) (3) & (4) - The eviction proceedings taken against the occupant - the petitioner cannot be sustained in view of the prohibition contained therein.
If half share is allotted to each of the parties - parties who are not allotted shares could be got vacated with the help of such a decree. (para - 22)
Cases Referred:
1. AIR 1980 MAD 246 [Parthasarathy & another v Kuppammal]
2. Varadappa Reddiar v Tamil Nadu Slum Clearance Board (1977) 2 Mad LJ (SN) 17
(2011) 1 MLJ 1152 (SC)
Comparative Citations:
2011 (2) MWN(Civil) 71, 2011 (6) MLJ 642
If half share is allotted to each of the parties - parties who are not allotted shares could be got vacated with the help of such a decree. (para - 22)
Cases Referred:
1. AIR 1980 MAD 246 [Parthasarathy & another v Kuppammal]
2. Varadappa Reddiar v Tamil Nadu Slum Clearance Board (1977) 2 Mad LJ (SN) 17
(2011) 1 MLJ 1152 (SC)
Comparative Citations:
2011 (2) MWN(Civil) 71, 2011 (6) MLJ 642
Vijaya Lakshmi and others vs pushparani and others
Judgement
(Prayer: This Second Appeal is focussed as against the judgment and decree dated 17.04.2008 passed in A.S.No.488 of 2007 on the file of the VI Additional District Judge, Chennai confirming the judgment and decree passed in O.S.No.2978 of 1999 dated 18.07.2003 on the file of the learned XI Asst. Judge, City Civil Court, Chennai.)
1. This Second appeal is focussed by the original defendants 1 and 2 animadverting upon the judgment and decree dated 17.04.2008 passed in A.S.No.488 of 2007 by the VI Additional District Judge, Chennai, confirming the judgment and decree of the XI Asst. Judge, City Civil Court, Chennai in O.S.No.2978 of 1999. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
2. Narratively but precisely, broadly but briefly, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:
(a) The plaintiff filed the suit seeking the following reliefs:
"(i) To pass a preliminary decree for partition and separate possession of the suit property by metes and bounds and for allotting ½ share over the suit property by appointment of a Commissioner;
(ii) To grant permanent injunction restraining the defendants, their men, agents, servants, etc. from disturbing with lawful possession and enjoyment relating to the 'C' schedule property; and
(iii) For costs."
(b) D1 and D2 filed their written statement and the other defendants filed their separate written statement separately.
(c) Whereupon issues were framed by the trial Court.
(d) The plaintiff-Pushparani examined herself as P.W.1 and Exs.A1 to A5 were marked. The defendants Vijayalakshmi and Doss examined themselves as D.W.1 and D.W.2 along with D.W.3-Mangala Lakshmi.
3. Ultimately the trial Court decreed the suit to the effect that 'A' scheduled property should be divided into two halves and the plaintiff is entitled to one half share and the defendants 3 to 6 are entitled to one other half share and that during final decree proceedings, steps should be taken to divide it by metes and bounds.
4. Being aggrieved by and dissatisfied with the judgment and the preliminary decree of the lower Court, D1 and D2 preferred appeal for nothing but to be dismissed by the appellate Court, confirming the judgment and preliminary decree of the trial Court.
5. Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been focussed by the defendants 1 and 2 on various grounds inter alia to the effect that both the Courts failed to take into account the fact that it was D1 and D2 who raised afresh a structure in the 'C' scheduled portion of the plan, because the structure raised by Muniyagadu, the father of the plaintiff got washed away in flood. Both the Courts did not take into account the rights of D1 and D2 and the right acquired by them over it, whereas, the plaintiff even though happened to be the mother of D1 had no right over the 'C' scheduled property.
6. As such, suggesting the following substantial questions of law, this Second Appeal was filed:
"(a) Whether the Courts below exceeded their jurisdiction by granting relief in a suit for partition relating to property belonging to the state namely the Tamil Nadu Slum Clearance Board?
(b) Whether the Courts below erred by entertaining the suit for partition of suit property which was a mere Spes Succession is i.e., a hope or expectation of succeeding, as next of kin. It is not a title to the suit property as per law?
(c) Whether the Courts below failed to note that the admission of allotment of suit property to the ancestor of the parties by the Tamil Nadu Slum clearance Board would not confer title and vest them with ownership of the suit property?
(d) Whether the Courts below failed to give a specific finding in respect of the nature of the suit property vested with the plaintiff through her father late Munigadu?
(e) Whether the Lower Appellate Court erred in rejecting the application filed under Order 41 Rule 27 of CPC?."
(extracted as such)
7. Based on that, my learned Predecessor framed the following substantial questions of law:
(a) Whether the Courts below exceeded their jurisdiction by granting relief in a suit for partition relating to property belonging to the state namely the Tamil Nadu Slum Clearance Board?
(b) Whether the Courts below erred by entertaining the suit for partition of suit property which was a mere Spes Succession is i.e., a hope or expectation of succeeding, as next of kin. It is not a title to the suit property as per law?
(c) Whether the Courts below failed to note that the admission of allotment of suit property to the ancestor of the parties by the Tamil Nadu Slum clearance Board would not confer title and vest them with ownership of the suit property?
(d) Whether the Courts below failed to give a specific finding in respect of the nature of the suit property vested with the plaintiff through her father late Munigadu?
(e) Whether the Lower Appellate Court erred in rejecting the application filed under Order 41 Rule 27 of CPC?."
(extracted as such)
8. Heard both sides.
9. All the aforesaid substantial questions of law are taken together for discussion as they inter linked and inter woven with one another.
10. The gist and kernel, the pith and marrow of the arguments as put forth and set forth by the learned counsel for the defendants 1 and 2 would run thus:
(a) Both the Courts below failed to take into consideration the possessory right of defendants 1 and 2. The documents filed before the appellate Court by invoking Order 41 Rule 27 of CPC were rejected unjustifiably.
(b) The property itself was not allotted in favour of any one so far, by the Slum Clearance Board. As such there is no ownership right vested in the plaintiff.
(c) There is no question of entertaining the suit for partition.
(d) The actual owner of the suit property is the Slum Clearance Board and without the Slum Clearance Board, conferring right on anyone of the parties, the Court was not justified in passing a preliminary decree.
Accordingly, the learned counsel for the defendants 1 and 2 would pray for setting aside the judgments and decrees of both the Courts below.
11. Challenging and impugning, refuting and gainsaying the arguments as put forth and set forth on the side of the defendants 1 and 2, the learned counsel for the plaintiff would argue thus:
(a) Even though the Slum Clearance Board has not expressly issued any allotment order in favour of any one of the parties, yet it recognised that the deceased Muniyagadu the father of the plaintiff was the person entitled for allotment of the entire 'A' scheduled property under the Slum Clearance Board and the findings of both the Courts below are such that it was Muniyagadu who occupied the entire 'A' scheduled property and put up structure and enjoyed it with his family members.
(b) Admittedly and indisputably, Muniyagadu died leaving behind his Wife Kamalammal and his two daughters namely Pushparani and Lakshmiammal. While so, Pushparani was occupying a part of the 'A' scheduled property, i.e., the 'C' scheduled property and put up separate structure and staying there. While so, Pushparani's daughter namely D1 was allowed to stay with her. However, D1's husband is D2 and they joining hands with D3 are trying to illegally evict the plaintiff from it. As such D1 and D2 are not having any ownership right or possessory right over any part of the 'A' scheduled property or 'C' scheduled property. The permission granted in favour of D1 and D2 also was revoked and in such a case they are having no right at all to stay in the 'C' scheduled property and both the Courts below correctly decided the lis warranting no interference in the Second Appeal.
12. The learned counsel for D3 to D6 would submit that the written statement filed by those defendants were not at all considered, as according to them, there was oral partition, in which in the 'B' scheduled property which forms part of the 'A' scheduled property was allotted for the occupation of Lakshmiammal, wife of D3-Devaraj and mother of defendants 4 to 6. Hence, he prays for a direction to the effect that 'B' scheduled property shall remain with the defendants 3 to 6.
13. The learned counsel for the plaintiff has argued that since it is an admitted fact that the Slum Clearance Board allotted 'A' scheduled property in favour of Muniyagadu, the question of going into the truth or falsity of such allotment would not arise. In my considered opinion, such an argument cannot be countenanced. The reality as found exemplified and demonstrated before the trial Court as well as the appellate Court is that, so far the Slum Clearance Board has not allotted the 'A' scheduled property in favour of anyone. However, the findings of both the Courts below would reveal that Muniyagadu applied for allotment and the matter is pending with the Slum Clearance Board. If at all there is any actual allotment order, then the plaintiff must be able to produce the same. In the matters of this nature, on mere non denial or evasive denial or even admission, the Court cannot decide on title. Both the Courts below gave concurrent finding to the effect that D1 being the daughter of the plaintiff, cannot independently claim any right over the 'A' scheduled property.
14. Incontrovertibly and unarguably, the first defendant is claiming right only as the maternal grand daughter of Muniyagadu. I am at a loss to understand as to how bypassing the plaintiff-Pushparani, D1 could claim directly right under Muniyagadu. As such adverting to the aforesaid proposition, both the Courts below appropriately and legally, appositely and correctly discarded the claim of D1 as though she derived right from Muniyagadu, her maternal grand father, even while her mother Pushparani is very much alive.
15. The trial Court as well as the appellate Court also gave a finding of fact that the defendants 1 and 2 did not prove that they had put up any structure in the 'C' scheduled property and that the structure put up by Muniyagadu got washed away in flood. As such, the Courts gave a correct finding that on the death of Muniyagadu, his wife Kamalammal and his two daughters, namely Pushparani and Lakshmiammal were the legal heirs and on the death of Kamalammal, her two daughters Pushparani and Lakshmiammal became the legal heirs of both Muniyagadu and Kamalammal, entitled to half share each. On the death of Lakshmiammal, her legal heirs D3 her husband and D4 to D6 became entitled to her half share.
16. The core question arises as to whether even before the Slum Clearance Board conferring title or ownership in the form of allotment in favour of anyone of these persons, those said legal heirs are entitled to seek for partition.
17. At this juncture, I recollect and call up the trite proposition that even possessory right or leasehold right or any such right over immovable property could be the subject matter of partition and there could be no second though over it. Hence, I would like to clarify and disambiguate the ambiguity in the judgments and decrees of both the Courts below, wherein, the finding was given as though ownership right itself got vested with Muniyagadu and it got devolved ultimately upon his two daughters, namely Pushparani and Lakshmiammal. But it should only be taken in this manner, i.e., Muniyagadu during his life time acquired possessory right over the 'A' scheduled property and that possessory right ultimately got devolved upon his two daughters, namely Pushparani and Lakshmiammal and they became entitled to half share each in that possessory right over the entire 'A' scheduled property and consequent upon the death of Lakshmiammal, her L.Rs. D3 to D6 became entitled to her half share. Accordingly, the judgments and decrees of both the Courts below should be construed and understood and implemented and in the final decree also the same scenario should prevail.
18. Relating to the rights of D1 and D2 are concerned, both the Courts below discussed threadbare that during the lifetime of Pushparani, D1 the daughter of Pushparani and D2 the husband of D1 cannot have any independent right and such a finding warrants no interference in the Second Appeal.
19. There is also one important as well as crucial factor involved in this case. Section 29 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 should be taken note of and it is extracted hereunder:
"29. Proceedings for eviction of [occupants] not to be taken without permission of the prescribed authority:- (1) Notwithstanding anything contained in any other law for the being in force, no person shall except with the previous permission in writing of prescribed authority-
(a) institute, after the commencement of this Act any suit or proceedings for obtaining any decree or order for the eviction [an occupant] from any building or land in such area: or
(b) where any decree or order is obtained in any suit or proceedings instituted before such commencement for the eviction of [an occupant] from any building or land in such area, execute such decree or order.
(2) Every person desiring to obtain the permission referred to in sub-section (1) shall make an application in writing to the prescribed authority in such form and containing such particulars as may be prescribed.
(3) On receipt of such application, the prescribed authority after giving an opportunity to the parties of being heard and after making such summary enquiry into the circumstances of the case as it things fit shall, by order in writing, either grant or refuse to grant such permission.
(4) In granting or refusing to grant permission under sub-section (3), the prescribed authority shall take into account the following factors, namely:-
(a) whether alternative accommodation within the means of the [occupant] would be available to him if he were evicted:
(b) whether the eviction is in the interest of improvement and clearance of the slum area;
(c) such other factors, if any, as may be prescribed.
(5) Where the prescribed authority refuses to grant the permission, it shall record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant."
20. In this connection the following decisions also are to be cited:
(1) The decision of this Court reported in AIR 1980 MADRAS 246 [Parthasarathy and another v. Kuppammal], certain excerpts from it would run thus:
"5. The learned counsel appearing for the respondent, however, relies on the decision of Mohan, J. in Varadappa Reddiar v. Tamil Nadu Slum Clearance Board, (1977) 2 Mad LJ (SN) 17, and contends that even if the reasoning of the executing court is wrong, its conclusion can be sustained on the basis of the said decision. In that case, Mohan J. has taken the view on similar facts that no written permission is necessary from the Slum Clearance Board and that execution can be levied in respect of decree obtained earlier even without the permission contemplated under S.29 of the Act. The reasoning given by the learned Judge for taking such a view is as follows:--
"A careful reading of the various provisions of the Act would reveal that a person like the petitioner cannot claim the right in his favour since all the provisions merely empower the Slum Clearance Board to clear the slums for the improvement of the slums. The object of the Act is the proper improvement of the slums as they are likely to become a source of danger to public health and sanitation in the said area. This is clear from the preamble. Having regard to the above object, certain powers had to be vested in the Tamil Nadu Slum Clearance Board. That is why in Sec.5 there is a restriction on building in slum areas. That reads--
(1) The prescribed authority may, by notification, direct that no person shall erect any building in a slum area except with the previous permission in writing of the prescribed authority. ....They are merely enabling provisions or powers conferred upon the Board for the improvement and clearance of the slum. Under these circumstances, it is not open to the petitioner to set at naught the valid decree of the civil court which was confirmed by this court by seeking an illusory protection under this Act."
The extract from the judgment of the learned Judge given above indicates that the learned Judge felt that the object of the Act was only to clear or improve the slum areas and not to confer any special right on the tenants or occupants in a slum area, that Ss.5, 11 and 29 of the Act did not confer any benefit or a cause of action in favour of an occupant they being merely enabling provisions empowering the Slum Clearance Board to clear the slum and improve the same and that, therefore, it is not open to the judgment debtors, who had suffered a decree for eviction, to set as naught those valid decrees by taking advantage of S.29 of the Act. After a careful consideration of the various provisions with reference to the scheme and object of the Act, we are not inclined to agree with the view expressed by the learned Judge. We do not see how it can be said that S.29 will not come into play in cases where decrees for possession had been obtained from civil courts and those decrees are put in execution. Section 29 occurs in Ch.VII of the Act under the heading protection of occupants in slum areas from eviction. The marginal note of S.29 is "proceedings for eviction of occupants not to be taken without permission of the prescribed authority." That section says that notwithstanding anything contained in any other law for the time being in force, no person shall, except with the previous permission in writing of the prescribed authority, where any decree or order is obtained in any suit or other proceedings instituted before such commencement for the eviction of the occupant from any building or land in a slum area, execute such a decree or order. It also prohibits an owner of a land from instituting a suit for eviction of an occupant from any building or land from the slum area after the commencement of the Act. Sub-Section (2) of S.29 provides for an application for obtaining the permission from the prescribed authority. Sub-Section (3) deals with the manner of conducting of the enquiry by the prescribed authority on an application for permission to institute the suit or to execute the decree obtained earlier. Sub-Sec.(4), which throws considerable light on the aspect we are considering, is as follows:-
"(4) In granting or refusing to grant permission under sub-sec.(3) the prescribed authority shall take into account the following factors, namely – (a) whether alternative accommodation within the means of the occupant would be available to him if he were evicted; (b) whether the eviction is in the interest of improvement and clearance of the slum area; (c ) such other factors, if any, as may be prescribed".
6. A conjoint reading of all the subsections of S.29 of the Act would clearly indicate that the Legislature intends to impose a restriction on the owner of the land either executing the decree obtained earlier or instituting a suit for eviction against an occupant of slum area by imposing a pre-condition that the owner of the slum area should get the permission of the requisite authority either for filing the suit for eviction or for executing the decree that had already been obtained. Section 29, in express terms, prohibits the owner of the slum area from instituting a suit for eviction or executing a decree obtained earlier against an occupant without such permission. One of the facts to be taken into account by the prescribed authority for granting the sanction under sub-sec.(4) is whether alternative accommodation within the means of the occupant would be available to him if he were evicted. This means to suggest that the Legislature wanted to safe guard the interests of the occupant by securing him an alternative accommodation within his means, if a suit for eviction or the execution of the decree for eviction is to be permitted. We are not in a position to say that S.29 does not confer any benefit on the occupier or that the conferment of such a benefit is outside the scope and object of the Act or that the benefit conferred on the occupants under S.29 is, in any way, illusory. The object of the Act cannot be gathered merely from the long title or the preamble of the Act. The object and purpose of the Act has to be gathered from the provisions of the Act as a whole and S.29 being one of the provisions of the Act, the object of which is to give protection to the occupants in slum areas from eviction cannot be overlooked or ignored in finding out the object of the Act. We are not inclined to agree with Mohan, J., that the object of the Act was only to clear the slum areas and develop the slum areas, and that the protection of occupants from eviction will not come within the scheme of the Act.
7. In this case, it is not in dispute that no permission has been obtained from the competent authority under S.29 of the Act by the respondent, the owner of the slum area. The eviction proceedings taken by him against the occupant, the petitioner herein, cannot, therefore, be sustained in view of the prohibition contained therein. The learned counsel appearing for the respondent would submit that he filed an application for permission as soon as he came to know of the existence of such a restriction as is contained in S.29 but the permission sought for was refused without any reason by the competent authority. Even assuming that the respondent applied for permission and the permission was wrongly refused, as is alleged by the learned counsel the matter could have been taken in appeal under S.30 which says that any person aggrieved by an order of the prescribed authority refusing to grant the permission under sub-sec.(4) of S.5 or under sub sec.(3) of S.29, may within any such time as may be prescribed, prefer an appeal to the Government and the decision of the Government on such an appeal shall be final. Admittedly, the respondent has not filed an appeal before the Government, under S.30. We are not here concerned with the validity of the order of the competent authority refusing permission sought for by the respondent under Section 29. So long as there is no permission obtained in writing by the respondent, execution proceedings cannot be maintained in view of the prohibition contained in S.29."
(2) The decision of the Hon'ble Apex Court reported in (2011) 1 MLJ 1152 (SC); certain excerpts from it would run thus:
"16. Once it is held that a trespasser is included in the definition of 'Occupier' in Section 2 (e)(v) of the 1971 Act, what necessarily follows is that before initiation of any suit or proceeding for eviction of such trespasser, the previous written permission of the Competent Authority is required as mandated by Section 22 (1). Section 22 (1) starts with non obstante clause and it is clear from the provision contained in Clause (a) thereof that no person shall institute any suit or proceeding for obtaining any decree or order for eviction of the occupier from any building or land in a slum area or for recovery of any arrears of rent or compensation from any such occupier or for both without the previous written permission of the Competent Authority. The use of words 'no' and 'shall' in sub – section (1) of Section 22 makes it abundantly clear that prior written permission of the Competent Authority for an action under Clause (a) thereof is a must. The role of the Competent Authority under the 1971 Act is extremely important as the legislature has conferred power on him to carry out execution of works in improvement of the slum. Sub – section (2) of Section 22 requires the person desiring to obtain the permission to make an application in writing to the competent Authority. As per sub – section (3) on receipt of such application, the Competent Authority by an order in writing may either grant or refuse to grant such permission after giving an opportunity to the parties of being heard and after making such summary enquiries into the circumstances of the case as it thinks fit. Sub- section (4) of Section 22 requires the Competent Authority to take into account the factors set out therein for granting or refusing the permission. These provisions contained in Section 22 are salutary in light of the scheme of 1971 Act and have to be followed. It has to be held, therefore, that for eviction of a trespasser who is 'occupier' within the meaning of Section 2(e)(v) of 1971 Act from the land or building or any part thereof in a declared slum area, the written permission of the Competent Authority under Section 22 (1) (a) is mandatorily required."
21. The learned counsel for the plaintiff would submit that here no prayer has been made by Pushparani, the plaintiff as against D1 and D2 for vacating the premises and for handing over delivery of possession.
22. I would like to point out that such an argument cannot be countenanced for the reason that once a final decree is passed after dividing the property by metes and bounds, then the parties are entitled to file directly E.P and take possession. So, if half share by metes and bounds is allotted to each of the parties, then the parties who are not allotted shares could be got vacated with the help of such a decree. Hence, a word of caution has to be left here, for the reason that unless the plaintiff approaches the authority concerned under Section 29 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 and gets permission, the question of evicting D1 and D2 would not arise and that is found exemplified and demonstrated in the aforesaid decisions. Apart from this, there is no other defect in the judgments and decrees of both the Courts below.
23. Accordingly, the judgments and decrees of the Courts below shall stand modified slightly to the effect that only possessory right should be got divided into two shares and accordingly the parties are at liberty to see for final decree and final decree could be passed and before executing the final decree, it is for the plaintiff or the defendants 3 to 6 as per the case may be to approach the authority under section 29 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 and get suitable orders.
Accordingly, this Second Appeal is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
1. This Second appeal is focussed by the original defendants 1 and 2 animadverting upon the judgment and decree dated 17.04.2008 passed in A.S.No.488 of 2007 by the VI Additional District Judge, Chennai, confirming the judgment and decree of the XI Asst. Judge, City Civil Court, Chennai in O.S.No.2978 of 1999. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
2. Narratively but precisely, broadly but briefly, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:
(a) The plaintiff filed the suit seeking the following reliefs:
"(i) To pass a preliminary decree for partition and separate possession of the suit property by metes and bounds and for allotting ½ share over the suit property by appointment of a Commissioner;
(ii) To grant permanent injunction restraining the defendants, their men, agents, servants, etc. from disturbing with lawful possession and enjoyment relating to the 'C' schedule property; and
(iii) For costs."
(b) D1 and D2 filed their written statement and the other defendants filed their separate written statement separately.
(c) Whereupon issues were framed by the trial Court.
(d) The plaintiff-Pushparani examined herself as P.W.1 and Exs.A1 to A5 were marked. The defendants Vijayalakshmi and Doss examined themselves as D.W.1 and D.W.2 along with D.W.3-Mangala Lakshmi.
3. Ultimately the trial Court decreed the suit to the effect that 'A' scheduled property should be divided into two halves and the plaintiff is entitled to one half share and the defendants 3 to 6 are entitled to one other half share and that during final decree proceedings, steps should be taken to divide it by metes and bounds.
4. Being aggrieved by and dissatisfied with the judgment and the preliminary decree of the lower Court, D1 and D2 preferred appeal for nothing but to be dismissed by the appellate Court, confirming the judgment and preliminary decree of the trial Court.
5. Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been focussed by the defendants 1 and 2 on various grounds inter alia to the effect that both the Courts failed to take into account the fact that it was D1 and D2 who raised afresh a structure in the 'C' scheduled portion of the plan, because the structure raised by Muniyagadu, the father of the plaintiff got washed away in flood. Both the Courts did not take into account the rights of D1 and D2 and the right acquired by them over it, whereas, the plaintiff even though happened to be the mother of D1 had no right over the 'C' scheduled property.
6. As such, suggesting the following substantial questions of law, this Second Appeal was filed:
"(a) Whether the Courts below exceeded their jurisdiction by granting relief in a suit for partition relating to property belonging to the state namely the Tamil Nadu Slum Clearance Board?
(b) Whether the Courts below erred by entertaining the suit for partition of suit property which was a mere Spes Succession is i.e., a hope or expectation of succeeding, as next of kin. It is not a title to the suit property as per law?
(c) Whether the Courts below failed to note that the admission of allotment of suit property to the ancestor of the parties by the Tamil Nadu Slum clearance Board would not confer title and vest them with ownership of the suit property?
(d) Whether the Courts below failed to give a specific finding in respect of the nature of the suit property vested with the plaintiff through her father late Munigadu?
(e) Whether the Lower Appellate Court erred in rejecting the application filed under Order 41 Rule 27 of CPC?."
(extracted as such)
7. Based on that, my learned Predecessor framed the following substantial questions of law:
(a) Whether the Courts below exceeded their jurisdiction by granting relief in a suit for partition relating to property belonging to the state namely the Tamil Nadu Slum Clearance Board?
(b) Whether the Courts below erred by entertaining the suit for partition of suit property which was a mere Spes Succession is i.e., a hope or expectation of succeeding, as next of kin. It is not a title to the suit property as per law?
(c) Whether the Courts below failed to note that the admission of allotment of suit property to the ancestor of the parties by the Tamil Nadu Slum clearance Board would not confer title and vest them with ownership of the suit property?
(d) Whether the Courts below failed to give a specific finding in respect of the nature of the suit property vested with the plaintiff through her father late Munigadu?
(e) Whether the Lower Appellate Court erred in rejecting the application filed under Order 41 Rule 27 of CPC?."
(extracted as such)
8. Heard both sides.
9. All the aforesaid substantial questions of law are taken together for discussion as they inter linked and inter woven with one another.
10. The gist and kernel, the pith and marrow of the arguments as put forth and set forth by the learned counsel for the defendants 1 and 2 would run thus:
(a) Both the Courts below failed to take into consideration the possessory right of defendants 1 and 2. The documents filed before the appellate Court by invoking Order 41 Rule 27 of CPC were rejected unjustifiably.
(b) The property itself was not allotted in favour of any one so far, by the Slum Clearance Board. As such there is no ownership right vested in the plaintiff.
(c) There is no question of entertaining the suit for partition.
(d) The actual owner of the suit property is the Slum Clearance Board and without the Slum Clearance Board, conferring right on anyone of the parties, the Court was not justified in passing a preliminary decree.
Accordingly, the learned counsel for the defendants 1 and 2 would pray for setting aside the judgments and decrees of both the Courts below.
11. Challenging and impugning, refuting and gainsaying the arguments as put forth and set forth on the side of the defendants 1 and 2, the learned counsel for the plaintiff would argue thus:
(a) Even though the Slum Clearance Board has not expressly issued any allotment order in favour of any one of the parties, yet it recognised that the deceased Muniyagadu the father of the plaintiff was the person entitled for allotment of the entire 'A' scheduled property under the Slum Clearance Board and the findings of both the Courts below are such that it was Muniyagadu who occupied the entire 'A' scheduled property and put up structure and enjoyed it with his family members.
(b) Admittedly and indisputably, Muniyagadu died leaving behind his Wife Kamalammal and his two daughters namely Pushparani and Lakshmiammal. While so, Pushparani was occupying a part of the 'A' scheduled property, i.e., the 'C' scheduled property and put up separate structure and staying there. While so, Pushparani's daughter namely D1 was allowed to stay with her. However, D1's husband is D2 and they joining hands with D3 are trying to illegally evict the plaintiff from it. As such D1 and D2 are not having any ownership right or possessory right over any part of the 'A' scheduled property or 'C' scheduled property. The permission granted in favour of D1 and D2 also was revoked and in such a case they are having no right at all to stay in the 'C' scheduled property and both the Courts below correctly decided the lis warranting no interference in the Second Appeal.
12. The learned counsel for D3 to D6 would submit that the written statement filed by those defendants were not at all considered, as according to them, there was oral partition, in which in the 'B' scheduled property which forms part of the 'A' scheduled property was allotted for the occupation of Lakshmiammal, wife of D3-Devaraj and mother of defendants 4 to 6. Hence, he prays for a direction to the effect that 'B' scheduled property shall remain with the defendants 3 to 6.
13. The learned counsel for the plaintiff has argued that since it is an admitted fact that the Slum Clearance Board allotted 'A' scheduled property in favour of Muniyagadu, the question of going into the truth or falsity of such allotment would not arise. In my considered opinion, such an argument cannot be countenanced. The reality as found exemplified and demonstrated before the trial Court as well as the appellate Court is that, so far the Slum Clearance Board has not allotted the 'A' scheduled property in favour of anyone. However, the findings of both the Courts below would reveal that Muniyagadu applied for allotment and the matter is pending with the Slum Clearance Board. If at all there is any actual allotment order, then the plaintiff must be able to produce the same. In the matters of this nature, on mere non denial or evasive denial or even admission, the Court cannot decide on title. Both the Courts below gave concurrent finding to the effect that D1 being the daughter of the plaintiff, cannot independently claim any right over the 'A' scheduled property.
14. Incontrovertibly and unarguably, the first defendant is claiming right only as the maternal grand daughter of Muniyagadu. I am at a loss to understand as to how bypassing the plaintiff-Pushparani, D1 could claim directly right under Muniyagadu. As such adverting to the aforesaid proposition, both the Courts below appropriately and legally, appositely and correctly discarded the claim of D1 as though she derived right from Muniyagadu, her maternal grand father, even while her mother Pushparani is very much alive.
15. The trial Court as well as the appellate Court also gave a finding of fact that the defendants 1 and 2 did not prove that they had put up any structure in the 'C' scheduled property and that the structure put up by Muniyagadu got washed away in flood. As such, the Courts gave a correct finding that on the death of Muniyagadu, his wife Kamalammal and his two daughters, namely Pushparani and Lakshmiammal were the legal heirs and on the death of Kamalammal, her two daughters Pushparani and Lakshmiammal became the legal heirs of both Muniyagadu and Kamalammal, entitled to half share each. On the death of Lakshmiammal, her legal heirs D3 her husband and D4 to D6 became entitled to her half share.
16. The core question arises as to whether even before the Slum Clearance Board conferring title or ownership in the form of allotment in favour of anyone of these persons, those said legal heirs are entitled to seek for partition.
17. At this juncture, I recollect and call up the trite proposition that even possessory right or leasehold right or any such right over immovable property could be the subject matter of partition and there could be no second though over it. Hence, I would like to clarify and disambiguate the ambiguity in the judgments and decrees of both the Courts below, wherein, the finding was given as though ownership right itself got vested with Muniyagadu and it got devolved ultimately upon his two daughters, namely Pushparani and Lakshmiammal. But it should only be taken in this manner, i.e., Muniyagadu during his life time acquired possessory right over the 'A' scheduled property and that possessory right ultimately got devolved upon his two daughters, namely Pushparani and Lakshmiammal and they became entitled to half share each in that possessory right over the entire 'A' scheduled property and consequent upon the death of Lakshmiammal, her L.Rs. D3 to D6 became entitled to her half share. Accordingly, the judgments and decrees of both the Courts below should be construed and understood and implemented and in the final decree also the same scenario should prevail.
18. Relating to the rights of D1 and D2 are concerned, both the Courts below discussed threadbare that during the lifetime of Pushparani, D1 the daughter of Pushparani and D2 the husband of D1 cannot have any independent right and such a finding warrants no interference in the Second Appeal.
19. There is also one important as well as crucial factor involved in this case. Section 29 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 should be taken note of and it is extracted hereunder:
"29. Proceedings for eviction of [occupants] not to be taken without permission of the prescribed authority:- (1) Notwithstanding anything contained in any other law for the being in force, no person shall except with the previous permission in writing of prescribed authority-
(a) institute, after the commencement of this Act any suit or proceedings for obtaining any decree or order for the eviction [an occupant] from any building or land in such area: or
(b) where any decree or order is obtained in any suit or proceedings instituted before such commencement for the eviction of [an occupant] from any building or land in such area, execute such decree or order.
(2) Every person desiring to obtain the permission referred to in sub-section (1) shall make an application in writing to the prescribed authority in such form and containing such particulars as may be prescribed.
(3) On receipt of such application, the prescribed authority after giving an opportunity to the parties of being heard and after making such summary enquiry into the circumstances of the case as it things fit shall, by order in writing, either grant or refuse to grant such permission.
(4) In granting or refusing to grant permission under sub-section (3), the prescribed authority shall take into account the following factors, namely:-
(a) whether alternative accommodation within the means of the [occupant] would be available to him if he were evicted:
(b) whether the eviction is in the interest of improvement and clearance of the slum area;
(c) such other factors, if any, as may be prescribed.
(5) Where the prescribed authority refuses to grant the permission, it shall record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant."
20. In this connection the following decisions also are to be cited:
(1) The decision of this Court reported in AIR 1980 MADRAS 246 [Parthasarathy and another v. Kuppammal], certain excerpts from it would run thus:
"5. The learned counsel appearing for the respondent, however, relies on the decision of Mohan, J. in Varadappa Reddiar v. Tamil Nadu Slum Clearance Board, (1977) 2 Mad LJ (SN) 17, and contends that even if the reasoning of the executing court is wrong, its conclusion can be sustained on the basis of the said decision. In that case, Mohan J. has taken the view on similar facts that no written permission is necessary from the Slum Clearance Board and that execution can be levied in respect of decree obtained earlier even without the permission contemplated under S.29 of the Act. The reasoning given by the learned Judge for taking such a view is as follows:--
"A careful reading of the various provisions of the Act would reveal that a person like the petitioner cannot claim the right in his favour since all the provisions merely empower the Slum Clearance Board to clear the slums for the improvement of the slums. The object of the Act is the proper improvement of the slums as they are likely to become a source of danger to public health and sanitation in the said area. This is clear from the preamble. Having regard to the above object, certain powers had to be vested in the Tamil Nadu Slum Clearance Board. That is why in Sec.5 there is a restriction on building in slum areas. That reads--
(1) The prescribed authority may, by notification, direct that no person shall erect any building in a slum area except with the previous permission in writing of the prescribed authority. ....They are merely enabling provisions or powers conferred upon the Board for the improvement and clearance of the slum. Under these circumstances, it is not open to the petitioner to set at naught the valid decree of the civil court which was confirmed by this court by seeking an illusory protection under this Act."
The extract from the judgment of the learned Judge given above indicates that the learned Judge felt that the object of the Act was only to clear or improve the slum areas and not to confer any special right on the tenants or occupants in a slum area, that Ss.5, 11 and 29 of the Act did not confer any benefit or a cause of action in favour of an occupant they being merely enabling provisions empowering the Slum Clearance Board to clear the slum and improve the same and that, therefore, it is not open to the judgment debtors, who had suffered a decree for eviction, to set as naught those valid decrees by taking advantage of S.29 of the Act. After a careful consideration of the various provisions with reference to the scheme and object of the Act, we are not inclined to agree with the view expressed by the learned Judge. We do not see how it can be said that S.29 will not come into play in cases where decrees for possession had been obtained from civil courts and those decrees are put in execution. Section 29 occurs in Ch.VII of the Act under the heading protection of occupants in slum areas from eviction. The marginal note of S.29 is "proceedings for eviction of occupants not to be taken without permission of the prescribed authority." That section says that notwithstanding anything contained in any other law for the time being in force, no person shall, except with the previous permission in writing of the prescribed authority, where any decree or order is obtained in any suit or other proceedings instituted before such commencement for the eviction of the occupant from any building or land in a slum area, execute such a decree or order. It also prohibits an owner of a land from instituting a suit for eviction of an occupant from any building or land from the slum area after the commencement of the Act. Sub-Section (2) of S.29 provides for an application for obtaining the permission from the prescribed authority. Sub-Section (3) deals with the manner of conducting of the enquiry by the prescribed authority on an application for permission to institute the suit or to execute the decree obtained earlier. Sub-Sec.(4), which throws considerable light on the aspect we are considering, is as follows:-
"(4) In granting or refusing to grant permission under sub-sec.(3) the prescribed authority shall take into account the following factors, namely – (a) whether alternative accommodation within the means of the occupant would be available to him if he were evicted; (b) whether the eviction is in the interest of improvement and clearance of the slum area; (c ) such other factors, if any, as may be prescribed".
6. A conjoint reading of all the subsections of S.29 of the Act would clearly indicate that the Legislature intends to impose a restriction on the owner of the land either executing the decree obtained earlier or instituting a suit for eviction against an occupant of slum area by imposing a pre-condition that the owner of the slum area should get the permission of the requisite authority either for filing the suit for eviction or for executing the decree that had already been obtained. Section 29, in express terms, prohibits the owner of the slum area from instituting a suit for eviction or executing a decree obtained earlier against an occupant without such permission. One of the facts to be taken into account by the prescribed authority for granting the sanction under sub-sec.(4) is whether alternative accommodation within the means of the occupant would be available to him if he were evicted. This means to suggest that the Legislature wanted to safe guard the interests of the occupant by securing him an alternative accommodation within his means, if a suit for eviction or the execution of the decree for eviction is to be permitted. We are not in a position to say that S.29 does not confer any benefit on the occupier or that the conferment of such a benefit is outside the scope and object of the Act or that the benefit conferred on the occupants under S.29 is, in any way, illusory. The object of the Act cannot be gathered merely from the long title or the preamble of the Act. The object and purpose of the Act has to be gathered from the provisions of the Act as a whole and S.29 being one of the provisions of the Act, the object of which is to give protection to the occupants in slum areas from eviction cannot be overlooked or ignored in finding out the object of the Act. We are not inclined to agree with Mohan, J., that the object of the Act was only to clear the slum areas and develop the slum areas, and that the protection of occupants from eviction will not come within the scheme of the Act.
7. In this case, it is not in dispute that no permission has been obtained from the competent authority under S.29 of the Act by the respondent, the owner of the slum area. The eviction proceedings taken by him against the occupant, the petitioner herein, cannot, therefore, be sustained in view of the prohibition contained therein. The learned counsel appearing for the respondent would submit that he filed an application for permission as soon as he came to know of the existence of such a restriction as is contained in S.29 but the permission sought for was refused without any reason by the competent authority. Even assuming that the respondent applied for permission and the permission was wrongly refused, as is alleged by the learned counsel the matter could have been taken in appeal under S.30 which says that any person aggrieved by an order of the prescribed authority refusing to grant the permission under sub-sec.(4) of S.5 or under sub sec.(3) of S.29, may within any such time as may be prescribed, prefer an appeal to the Government and the decision of the Government on such an appeal shall be final. Admittedly, the respondent has not filed an appeal before the Government, under S.30. We are not here concerned with the validity of the order of the competent authority refusing permission sought for by the respondent under Section 29. So long as there is no permission obtained in writing by the respondent, execution proceedings cannot be maintained in view of the prohibition contained in S.29."
(2) The decision of the Hon'ble Apex Court reported in (2011) 1 MLJ 1152 (SC); certain excerpts from it would run thus:
"16. Once it is held that a trespasser is included in the definition of 'Occupier' in Section 2 (e)(v) of the 1971 Act, what necessarily follows is that before initiation of any suit or proceeding for eviction of such trespasser, the previous written permission of the Competent Authority is required as mandated by Section 22 (1). Section 22 (1) starts with non obstante clause and it is clear from the provision contained in Clause (a) thereof that no person shall institute any suit or proceeding for obtaining any decree or order for eviction of the occupier from any building or land in a slum area or for recovery of any arrears of rent or compensation from any such occupier or for both without the previous written permission of the Competent Authority. The use of words 'no' and 'shall' in sub – section (1) of Section 22 makes it abundantly clear that prior written permission of the Competent Authority for an action under Clause (a) thereof is a must. The role of the Competent Authority under the 1971 Act is extremely important as the legislature has conferred power on him to carry out execution of works in improvement of the slum. Sub – section (2) of Section 22 requires the person desiring to obtain the permission to make an application in writing to the competent Authority. As per sub – section (3) on receipt of such application, the Competent Authority by an order in writing may either grant or refuse to grant such permission after giving an opportunity to the parties of being heard and after making such summary enquiries into the circumstances of the case as it thinks fit. Sub- section (4) of Section 22 requires the Competent Authority to take into account the factors set out therein for granting or refusing the permission. These provisions contained in Section 22 are salutary in light of the scheme of 1971 Act and have to be followed. It has to be held, therefore, that for eviction of a trespasser who is 'occupier' within the meaning of Section 2(e)(v) of 1971 Act from the land or building or any part thereof in a declared slum area, the written permission of the Competent Authority under Section 22 (1) (a) is mandatorily required."
21. The learned counsel for the plaintiff would submit that here no prayer has been made by Pushparani, the plaintiff as against D1 and D2 for vacating the premises and for handing over delivery of possession.
22. I would like to point out that such an argument cannot be countenanced for the reason that once a final decree is passed after dividing the property by metes and bounds, then the parties are entitled to file directly E.P and take possession. So, if half share by metes and bounds is allotted to each of the parties, then the parties who are not allotted shares could be got vacated with the help of such a decree. Hence, a word of caution has to be left here, for the reason that unless the plaintiff approaches the authority concerned under Section 29 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 and gets permission, the question of evicting D1 and D2 would not arise and that is found exemplified and demonstrated in the aforesaid decisions. Apart from this, there is no other defect in the judgments and decrees of both the Courts below.
23. Accordingly, the judgments and decrees of the Courts below shall stand modified slightly to the effect that only possessory right should be got divided into two shares and accordingly the parties are at liberty to see for final decree and final decree could be passed and before executing the final decree, it is for the plaintiff or the defendants 3 to 6 as per the case may be to approach the authority under section 29 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 and get suitable orders.
Accordingly, this Second Appeal is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
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#slumarea
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