GOVERNMENT OF TAMILNADU Vs. KALI GOUNDER ALIAS CHINNAKUNJI

JUDGEMENT

(1.) THIS appeal arises out of the judgment of the learned District Judge, Salem in A.S. No. 215 of 1979 in confirming the judgment of the learned District Munsif of Sankari at Salem in O.S. No. 570 of 1976. The Government of Tamil Nadu, the fifth defendant in the suit, is the appellant in the present Second Appeal.

(2.) THE plaintiff filed a suit for declaration of plaintiffs title to the suit property and for permanent injunction restraining the defendants from his peaceful possession and enjoyment of the suit property. According to the plaintiff, the suit property originally belonged to one Sowri, who sold the said property to one Chellan on 8- 4-1929 (Ex. A2), that the said Chellan mortgaged the suit property on 30-5-1930 (Ex. A3) to one Raja Gounder for Rs. 200/- and the said Raja Gounder was in possession of the property by paying kist. THE said Raja Gounder was the elder brother of the plaintiffs; father and Raja Gounder had died in 1935. THE plaintiff's father got the suit property in a family partition effected between the plaintiffs father and Raja Gounder and the mortgagor Chcllan aiso died somewhere about 35 years ago and that neither Chellan nor his legal representatives ever attempted to redeem the properly. THE mortgagee and his successors have been paying kists regularly to the Government. It is further stated by the plaintiff that in the year 1974, the Tahsildar, Omalur issued a notice asking the plaintiff to show-cause against the resumption and cancellation of the assignment of the suit lands on the ground that the land was conditionally assigned in favour of Chellan and be violated the condition. According to the plaintiff, the Government had not taken any steps between the years 1930 to 1974 and no notice was issued to the mortgagor Chellan for the violation of the conditions and therefore the officers were wrong in holding that the mortgagor Chellan was an assignee. THE Tahsildar subsequently issued orders to resume the land and the appeal filed by the plaintiff to the Revenue Divisional Officer, District Revenue Officer, Board of Revenue and finally the Government were dismissed and according to the plaintiff all the Authorities were labouring under misconception relying on incorrect and misleading reports. THE plaintiff contended that the resumption order assuming that Chellan was the person to whom the lands were assigned and he had allowed a caste Hindu to enjoy the lands was incorrect and the resumption order was therefore void abinitio . THE defendants 1 to 4 tried to trespass into the suit properties on 19-10-1976 by putting up a hut. Hence, a notice was sent under Section 80 C.P.C. to the fifth defendant.

(3.) THE point in issue in the present Second Appeal is that one suit was filed against the Government, namely, OS. No. 570 of 1976 and the same was dismissed by the trial Court. Two separate appeals were filed by the defendants in the suit. Defendants 1, 3 and 4 filed A.S. No. 211 of 1978 impleading the fifth defendant also as respondent in the appeal and the said appeal was dismissed, confirming the findings of the trial Court. A separate appeal was filed by the fifth defendant/appellant herein in A.S. No. 215 of 1979 and the question is as to whether the dismissal of A.S. No. 211 of 1978 would operate as against the case of the fifth defendant in the separate appeal filed by the fifth defendant.