Madras High Court
Mahesh Durai vs The District Collector on 5 February, 2016
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 05.02.2016 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN S.A.(MD)No.495 of 2015 Mahesh Durai ... Appellant Vs. 1.The District Collector, Sivagangai District. 2.D.S.K.Madhuranthaki Nachiyar, 3.Banumathi Nachiyar 4.N.Reghuraj 5.Rajalakshmi 6.Lakshmipriya 7.M/s.L.G.Balakrishnan and Brothers Represented by its Managing Director Office at 16/14A, Krishnarajapuram Road, Ganapathy Post, Coimbatore. ... Respondents PRAYER: The above Second Appeal is filed under Section 100 C.P.C. against the Judgment and Decree dated 27.07.2015 passed in A.S.No.9 of 2012, by the District Judge, Sivagangai, reversing the Judgment and Decree dated 23.12.2011 passed in O.S.No.90 of 2010, on the file of Sub Court, Sivagangai. !For Appellant : Mr.G.Prabhu Rajadurai ^For Respondents : Mr.R.Velmurugan (for R1) Government Advocate No Appearance (for R3, R4, R6, R7) :J U D G M E N T
The short facts of the case are as follows:-
The plaintiff has filed a suit in O.S.No.90 of 2010, against the defendants 1 to 7 in the Court of Subordinate Judge, Sivagangai, declaring the plaintiff as the absolute owner of the suit properties being the properties in S.No.91/8 to an extent of 40 cents, in S.No.91/7 to an extent of 20 cents and in S.No.91/1 to an extent of 20 cents and in S.No.91/9 to an extent of 20 cents totally one acre and described more particularly in the schedule to this plaint and consequently restraining the defendant their men or anyone claiming under or through him by a permanent injunction from interfering with the plaintiff's peaceful possession and enjoyment of the suit properties described more particularly in the schedule to the plaint, declaring that the order of the first defendant dated 03.09.2008 canceling the pattas in respect of the suit properties as null and void with costs of this suit. The plaintiff has submitted that his grandfather D.Shanmuga Raja was the Zamindar of Sivagangai owning large extent of properties in and around Sivagangai. The said D.Shanmuga Raja was survived by his two sons D.S.Karthikeya Raja and D.S.Ramachandra Raja and daughter D.S.Rajalakshmi Nachiyar. The plaintiff is the son of the said Rajalakshmi Nachiyar. The family tree annexed to this plaint be read as part and parcel of this plaint. The plaintiff submits that among his other properties, the said D.Shanmuga Raja owned an extent of 100 acres in Paimash No.109 in Paiyur Pillaivayal Village, Sivagangai Taluk and District. During survey and settlement period, the said Paimash number was sub-divided into various survey numbers and the said land owner, D.Shanmuga Raja was given ryotwari patta No.371 in respect of the land bearing S.No.91 to an extent of 44.57 acres. Subsequently during survey and settlement in the year 1958, the name of D.Shanmuga Raja was entered in the settlement land register (SLR) of the year 1958 and consequently entries were also made in the settlement register in the year 1963, confirming the title of D.Shanmuga Raja over the said property bearing S.No.91 to an extent of 44.57 acres. The said D.Shanmuga Raja continued to be the owner of the said property till death in the year 1963 and thereafter the said property came to be inherited by his legal heirs as shown in the family tree. However, the name of D.Shanmuga Raja is shown as the owner of the said property in the settlement register till today. The records of the office of Director of Survey and Settlement, Chennai also disclose the name of D.Shanmuga Raja as the owner of the said property bearing S.No.91. The village pre UDR, "A" register of the Revenue Department till recently bore the name of D.Shanmuga Raja as the owner of the said property. In the aforesaid premise, the plaintiff's grandfather, said D.Shanmuga Raja was the owner of S.No.91. The plaintiffs submit that all along the said property was kept vacant and without any cultivation. The legal heirs lived at different places and did not think of dealing with the said property. However, in the year 2003 the plaintiff noticed that the Government of Tamilnadu constructing buildings in a portion of the said property and on further verification came to know that in the revenue records the said land has come to be referred as belonging to the Government and that under updating Registering Scheme (UDR) the said S.No.91 was subdivided into S.No.91/1 to 91/10 of various extents. The plaintiff submits that having understood that there might be mistaken entries during UDR, the plaintiff approached the defendant and other authorities. On the consideration of such an application, the Special Commissioner and the Director of Survey and Settlement, chennai found out the mistakes and directed the District Revenue Officer, Sivagangai to take necessary action to correct the mistake through his communication dated 20.08.2003. On the reference made by the Special Commissioner, the Tahsildar, Sivagangai by his letter dated 10.11.2003 informed the RDO, Sivagangai that as per the concerned village 'A' Register the said lands were mentioned as belonging to the said Shanmuga Raja under patta No.371 immediately prior to UDR scheme of the year 1986. The RDO in his turn submitted a report to the DRO, Sivagangai through his letter dated 18.11.2003. The DRO, on the strength of the said letters of the Tahsildar and the RDO, and on his personal verification of the concerned files submitted a detailed report to the Special Commissioner vide his letter dated 23.02.2004. The Special Commissioner through his communication dated 14.05.2004 directed the DRO to decide the said issue himself. The DRO finally satisfied with the claim of the petitioner ordered to grant the patta in respect of the lands in S.No.91/7, 7 and 8 and 9, as the rest of lands were already occupied and possessed by the Government of Tamilnadu. The RDO, Sivagangai by his order dated 19.02.2005 directed patta to be issued in the name of the legal heirs of Shanmuga Raja. Accordingly patta No.3101 was issued in respect of the properties in S.Nos.91/1, 7, 8 and 9 to a total extent of 7.40.5 hectares in the name of plaintiffs and five others being the legal heirs of Shanmuga Raja.
2.The plaintiff has further submitted that in January 2006 the plaintiff and his co-owners orally partitioned the said properties in respect of which the patta was issued and the plaintiff was allotted the properties in S.No.91/8 to an extent of 60 cents, in S.No.91/1 to an extent of 20 cent and in S.No.91/9 to an extent of 20 cents. The said properties allotted to the plaintiff are more particularly described as item No.1 to 4 in the schedule to this plaint. Though the plaintiff has not obtained separate patta in respect of the suit properties, he is in exclusive possession and enjoyment of the suit properties as it absolute owner. The plaintiff submits that the plaintiff and other legal heirs thereafter made a representation to the Special Commissioner to provide alternative lands in respect of the lands, occupied by the Government. The Special Commissioner by order dated 24.05.2007 directed the plaintiff to approach the District Revenue Officer, Sivagangai. The first defendant conducted an enquiry and heard the plaintiff on several days. However, the defendant by his order dated 03.09.2008 held that as per village chitta of the year 1958 the said land bearing S.No.91 is shown in the name of M/s.Combined Industries Private Limited, Coimbatore through its Managing Director L.R.Govindasamy Naidu along with their other properties bearing S.No.203, 02/1, 207 and 206/3. The defendant No.1 further states that in the village adangal of the year 1971 to 1977 the name of the seventh defendant is shown in respect of the said S.No.91 and that in the year 1978 by G.O.Ms.No.2076 (Revenue Department) dated 01.09.1978 the said land was declared as surplus land of the said company under the provisions of Land Reforms Act (TN Act 17/70). As such, the first defendant denied the title of the plaintiff's predecessor over the said property bearing S.No.91 and has claimed it in favour of the Government.
3.The plaintiff has further submitted that the order of the defendant dated 03.09.2008 is without jurisdiction and null and void. Firstly, the enquiry was held by the defendant only to consider the petitioner's application for alternative lands in respect of the lands in S.No.91/2 to 6 and 10. Hence the defendant had a limited jurisdiction to decide the feasibility of granting alternative lands in lieu of the lands occupied by the Government. There was no notice calling upon the plaintiff to submit his explanation on the proposed action of the defendant to cancel the patta in S.No.91/1, 7, 8 and 9. Neither the plaintiff had any opportunity to submit his explanation orally as well. Though there were 6 legal heirs, granted with patta only the plaintiff and one Maduranthaki Nachiyar were before the defendant. The major portion of the said lands were already sold to several 3rd parties and many of them had none of them were issued with any notice in respect of any change in the grant of patta. The District Collector ought to have taken the step only in accordance with the provisions of the patta pass book Act and not otherwise. Hence, the order of the Collector may be declared as null and void as the same was passed in total violation of the principles of natural justice. The petitioner submits that neither Shanmuga Raja nor his legal heirs including the plaintiff are aware of any such proceedings under the Land Reforms Act in the name of one M/s.Combined Industries Private Limited, Coimbatore. The plaintiff and his co-owners on receiving the patta, developed the property in respect of which they have been given the patta and developed the same. Hence, the defendant is estopped from contending otherwise and to claim any right contrary to the records of the Government. The first defendant claimed such right only in his order and not earlier. The plaintiff submits that the village chitta is being maintained by the village Karnam and without proper authentication. There is also possibility of wrong entry or a deliberate insertion in the village chitta and hence this document would not assume any importance over the entries in the settlement register and the village "A" register. Once the settlement patta is issued and the corresponding entries are made in 'A' register as in this present case, the same could be challenged only before the competent Tribunal, constituted under the Inam Abolition Act. In this case after the settlement in the year 1958, the entries were made in the 'A' register in the year 1963 and the same has become final, without being challenged by anyone including the Government, neither the Collector nor other revenue authorities have jurisdiction to claim any other contrary right, ignoring the settlement proceedings. The defendant in pursuant to the said order has directed his officials to make corrections in the village records in respect of the said properties including the suit properties. In the said circumstances the plaintiff apprehends that the first defendant would attempt to interfere with the plaintiff's possession of the suit properties and unless the trial Court declares his title to the suit properties and consequently restrains the defendant from interfering with his possession and enjoyment over the suit property, the plaintiff's right will be defeated. In the said premise the plaintiff has come forward with this suit, seeking the relieves of declaration and injunction. The plaintiff has already challenged the order of the defendant before the Special Commissioner, Chennai by way of revision but as the title of the plaintiff is denied, it is necessary to get his title against the Government declared by a Civil Court having jurisdiction.
4.The plaintiff has further submitted that the defendants No.2 to 6 are the other legal heirs of D.Shanmuga Raja. They are impleaded in the suit as necessary parties. The first defendant has alleged that in the written statement that D.Shanmuga Raja sold the suit property to one M/s.Tiruppur Combined Industries by a registered sale deed No.1307/1957 dated 13.07.1957 and that the Government acquired the suit property from the said M/s.Tiruppur Combined Industries under Land Reforms Act. The said sale deed No.1307/1957 does not convey any portion of the suit property and is not in respect of lands bearing paimash No.109 or Ryotwari patta No.371 corresponding to S.No.91. The properties sold under sale deed No.1307/1957 are the personal properties of D.Shanmuga Raja. However, when the summons was issued to M/s.Tiruppur combined Industries Limited, it was informed that the same was merged with the seventh defendant and the seventh defendant had taken over all the assets and liabilities of M/s.Tiruppur Combined Industries Limited. Hence, the seventh defendant being alleged predecessor in title of the first defendant is added as a necessary party in this suit. The plaintiff has further submitted that in view of the urgency the plaintiff has not issued any notice to the defendant as required under law. The plaintiff takes out a separate application to dispense with the serving of notice on the defendant. The plaintiff has further submitted that the plaintiff is entitled to an undivided share in the property bearing S.No.91/2,3,4,5,6 and 10 which are in the possession of the State of Tamil Nadu. The plaintiff reserves his right to file a separate suit for the recovery of the same joining with other legal heirs of Shanmuga Raja. The plaintiff therefore seeks the leave of this Court to file a separate suit for the recovery of the properties in S.No.91/2,3,4,5,6 and 10, Paiyur pillaivayal Village, Sivagangai Taluk and District. Hence, the suit.
5.The first defendant has filed a counter statement stating that the plaintiff's claim for the relief of declaration of his alleged title to the suit property and for the consequential relief of permanent injunction is false, frivolous and vexatious and the plaintiff is entitled to no relief whatsoever at all. This suit is an abuse of the process of Court and the plaintiff is liable to be penalized therefore. Save those allegations in the plaint which are admitted hereunder, all the other allegations there in are denied as false and the plaintiff is put to strict proof of them. That the village Piyur Pillaivayal of Sivagangai Taluk was taken over by the Government on 07.09.1949 under the Madras Estates (Abolition and conversion into Ryotwari) Act 1948 (Act XXVI of 1948) by G.O.Ms.No.2169 Revenue dated 12.08.1949. The ryotwari settlement was introduced in the village in fasli 1367. During the period of settlement i.e., 1949 to 1959, the grandfather of the plaintiff Thiru.Shanmuga Raja sold the suit property along with some other properties totally measuring an extent of 256 Kurukkam to M/s.Combined Industries Limited for its Managing Director L.R.Govindasamy Naidu by the sale deed bearing Registration No.1307/1957 for the consideration of Rs.3500. Then the suit property in S.No.91 measuring an extent of 44 acre 50 cents in the name of Shanmuga Raja in patta No.371 was transferred in the name of L.R.Govindasamy Naidu, Managing Director for M/s.Thiruppur Combined Industries Limited. That the entire extent of 44 acre 50 cents in S.No.91 along with some other lands were notified and taken over from M/s.Combined Industries Limited a surplus land under the Tamilnadu Land Reforms (Fixation of ceiling on land) Act 1961 (Tamilnadu Act 58 of 1961) as amended by Tamilnadu Act 17/70 by the G.O.Ms.No.2076 dated 01.09.1978. Aggrieved by the above order M/s.Combined Industries Limited filed an appeal before this Court in W.P.No.7890 of 1989 and the writ petition was transferred to the Tamilnadu Land Reforms Special Appellate Tribunal, Madras and it was numbered as TRP.512/1991. It was dismissed for default. Thus after a lapse of 25 years, the request for patta as an UDR mistake and consequential order of the authorities are illegal and for extraneous reasons. Both criminal and departmental enquiry have been initiated against the persons behind the issue of fraudulent patta in this issue. An FIR had also been filed in Crime No.47 of 2008 and investigation is on by the District Crime Branch, Sivagangai. That the plaintiff had not produced any other documents to prove that the suit property belonged to them i.e the sale deed or partition deed. After the demise of the said D.Shanmuga Raja and after a lapse of 25 years in collusion with some unloyal government officials, patta had been obtained fraudulently. That there had been misrepresentation before this Court and also obtained directions for the issuance of patta to them without actually placing the real facts of the case in writ petition. For which the plaintiff and their cosharers are liable to be answered. That the plaintiff cannot agitate before this Court against the proceedings under Land Reforms Act, which was declared as surplus land of M/s.Combined Industries Limited. At the time of taken over the land in S.No.91 was the property of M/s.Combined Industries Limited. Neither the plaintiff nor his cosharers are the owners of the property. Hence the plaintiff's claim is not maintainable. That the plaintiff had already filed an appeal petition to the Principal Secretary and Commissioner of Land Administration and the same is pending. The petition filed by the plaintiff to stay the operation of the orders of the District Collector passed in Roc.B1/27528/2003 dated 03.09.2008 had been rightly rejected by the Principal Secretary and Commissioner of Land Administration on 29.09.2008 in Roc.K1/27524/2008, dated 24.09.2008. That the plaintiff with an ulterior motive of selling his share drawn from a bogus order had approached this Court. That the statement from legal heir of a zamindar that they do not know the activities and notification of Land Reforms Act is not at all acceptable. Even before the notification in 1957 itself the patta for the land in S.No.91 had been transferred in the name of L.R.Govindasamy Naidu Managing Director of M/s.Combined Industries Limited in patta No.371. Hence, the plaintiff is not all party to the land reform notification. That the patta had been obtained by concealing the sale document by D.Shanmuga Raja by playing fraud on Government, the plaintiff is not entitled to claim estoppel as rightly pointed out in 1994 (1) S.C. in the case of S.P.Chengalvaraya Naidu Vs. Jeganath and others. That the suit property in S.No.91 of Paiyur Pillaivayal group is the property of Tamilnadu State Government. Hence, the suit is to be dismissed with costs.
6.The second defendant has filed a counter and the same was adopted by the defendants 3 to 6. The second defendant has submitted that she admits all the averments in the plaint. The second defendant has further submitted that the suit may be decreed as prayed for.
7.The trial Court framed 6 issues for consideration in the case namely:
1)Whether the plaintiff's predecessor D.Shanmuga Raja actually sold the suit properties in favour of M/s.Combined Industries Limited as alleged? 2)Whether the plaintiff is the owner of the suit properties as pleaded? 3)Whether the plaintiff is in possession and the enjoyment of the suit properties?
4)Whether the plaintiff is entitled to declaration of title over the suit properties? 5)Whether the plaintiff is entitled to permanent injunction? and
6)To what relief, the plaintiff is entitled?
8.On the side of the plaintiff, one witness was examined as PW1 and Exhibits A1 to A21 were marked namely Ex.A1-The copy of the register of Piyur Pillaivayal Village's house rent; Ex.A2-The copy of SLR for Piyur Pillaivayal group; Ex.A3-Copy of letter sent from Special Commissioner, Chennai and Director of Survey and Settlement to District Revenue Officer, Sivagangai; Ex.A4-The true copy of letter dated 10.11.2003 sent by Tahsildar, Sivagangai to RDO, Sivagangai; Ex.A5-The true copy of letter dated 18.11.2003 sent by Tahsildar, Sivagangai to DRO, Sivagangai; Ex.A6-The copy of letter dated 21.01.2004 sent by District Collector, Sivagangai to Special Commissioner, Chennai and Revenue Administrative Commissioner; Ex.A7-The copy of letter dated 18.02.2004 sent by District Collector, Sivagangai to Special Commissioner, Chennai and Revenue Administrative Commissioner; Ex.A8-The copy of letter dated 23.02.2004 sent by DRO, Sivagangai to Special Commissioner, Chennai and Land Administrative Commissioner; Ex.A9-The copy of the letter dated 14.05.2004 sent by the Special Commissioner and Commissioner of Land Administration, Chennai to the DRO, Sivagangai; Ex.A10-The G.O.(Ms.)No.363 Revenue dated 02.08.2004; Ex.A11-The copy of the letter dated 25.10.2004 sent by the RDO, Sivagangai to the DRO, Sivagangai; Ex.A12-The copy of the letter dated 07.12.2004 sent by the RDO, Sivagangai to the DRO, Sivagangai; Ex.A13- The copy of the letter dated 25.01.2005 sent by the DRO, Sivagangai to the RDO, Sivagangai; Ex.A14-The patta bearing patta No.3101 dated 14.12.2005; Ex.A15-The copy of the proceedings dated 03.09.2008 of the District Collector, Sivagangai; Ex.A16-The certified copy of sale deed dated 31.03.1957 in favour of M/s.Combined Industries Limited, Thiruppur; Ex.A17- The Encumbrance certificate for the suit property dated 20.11.2008; Ex.A18- The Encumbrance certificate for the suit property dated 20.11.2008; Ex.A19- The certified copy of the sale deed dated 22.03.1922; Ex.A20-The certified copy of the sale deed dated 26.03.1922 executed by Muthuramalingam servai; Ex.A21-The certified copy of lease deed. On the side of the defendants, one witness was examined as DW1 and 17 documents were marked as Exhibits B1 to B17 namely Ex.B1-The proceedings of the Principal Secretary and Commissioner of Land Administration, Chennai dated 24.09.2008; Ex.B2-The copy of Tamilnadu Government Gazette dated 13.12.1978; Ex.B3-The copy of the order passed in TRP.No.512/1991 in The Tamilnadu Land Reforms Special Appellate Tribunal, Madras dated 06.02.1995; Ex.B4-The copy of chitta; Ex.B5-The copy of adangal extract; Ex.B6-The copy of adangal extract; Ex.B7-The copy of G.O.Ms.No.64 Revenue Department dated 12.01.1990; Ex.B8-The copy of sale deed in favour of M/s.Combined Industries Limited, Thiruppur dated 31.03.1957; Ex.B9-The Encumbrance certificate for the suit property; Ex.B10-The copy of the proceedings of the District Collector, Sivagangai dated 03.09.2008; Ex.B11- The copy of 'A' Register and FMB for the S.No.91; Ex.B12-The four boundaries sketch for S.No.91; Ex.B13-The four boundaries for S.No.91; Ex.B14-The FMB plans; Ex.B15-The copy of the 'A' register; Ex.B16-The adangal extract; Ex.B17-The copy of proceedings of the Assistant Settlement Officer, Madurai dated 13.06.1964.
9.PW1 had adduced evidence that the property which bears S.No.91 (Old paimash No.109) to an extent of 100 acres was never sold to the Government or others at any point of time and no transfer of possession was given. He adduced evidence that only the properties bought by Shanmuga Raja in his name was only sold through sale deed and that the suit estate land was never sold. He adduced evidence that the document executed in the year 1957, i.e. Ex.A16/Ex.B8 is not in any way connected to the suit zamin property. He adduced evidence that in the year 1949, the property which bears S.No.91 (Old Paimash No.109) was taken over by the Government as estate land after passing the estate abolition act and that the settlement took place only after the year 1957 and Ryotwari patta was finally issued in the name of Shanmuga Raja only in the year 1963. He adduced evidence that there is no possibility for Shanmuga Raja to sell the suit property during the intervening period to anyone and hence the firm of 'combined industries' does not have any right over the said land.
10.DW1, had adduced evidence that the suit property and other property comprised in New S.No.91 and old paimash No.109 was sold by the said late Shanmuga Raja in favour of the Thiruppur combined Industries Managing Director, RL.Govindasamy Naidu through Ex.A16 = Ex.B8 dated 31.03.1957. The Ryotwari patta for the suit property had been given to Shanmuga Raja only after the Tamilnadu Estate (Abolition and Conversion into Ryotwari) Act, 1948 and that during each settlement proceedings, the names of the persons to whom patta had been issued would be disclosed in the SLR document. He had also admitted that in the Ex.B8 marked, no mention had been made about either S.No.91 or Paimash No.109 and that in Ex.B8, the no mention had been made to show that the land extent was 100 acres or 44.5 acres. He admitted that after the Tamilnadu Estate (Abolition and Conversion into Ryotwari) Act, 1948, came into force and during the year 1958. Shanmuga Raja had been issued Ryotwari patta for Pimash No.109 pertaining to settlement S.No.91 measuring an extent of 44.5 acres and subsequently the land had been registered in the name of Shanmuga Raja in the Village 10(1) adangal accounts and that even in the Village 'A' Register, it has been shown that Ryotwari patta had been issued only in the name of Shanmuga Raja. He also admitted that in Ex.B8, the property has not been described as Zamine property and that it has been mentioned that only the properties purchased by Shanmuga Raja had been sold. He further adduced evidence that no mention or order has been made in Ex.B8 to show that the rights had been transferred to Govindasamy Naidu as per chitta (Ex.B4), 1382 fasli year (1973). He further stated that if rights have to be transferred from one person to another person and if such transfer is to be effected in patta or chitta, only the Tahsildar should order for the same and that in the said case, the Tahsildar had not made any order to effect transfer of lands in patta No.371 (Ex.B4) from the name of Shanmuga Raja to that of Govindasamy Naidu.
11.The trial Court, after recording the oral and documentary evidence decreed the suit as prayed for. Aggrieved by the order passed by the trial Court, the defendant No.1 has filed an appeal in A.S.No.09 of 2012 before the Court of District Judge, Sivagangai. The learned Appellate Court Judge, after hearing the oral evidence and perusing the documentary exhibits allowed the appeal and set aside the decree and judgment passed by the Subordinate Judge, Sivagangai. Aggrieved by the dismissal of the suit, the first respondent / plaintiff has preferred the present appeal before this Court.
12.However, the learned counsel for the appellant has raised grounds in the second appeal as well as raised substantial questions of law.
Grounds:
1. The Judgment and Decree of the Lower Appellate Court is contrary to law, weight of Evidence and gives rise to various substantial questions of law.
2. The Lower Appellate Court erred is law in its finding that the plaintiff failed to establish the suit properties allotted to his share overlooking the written statement filed by the Defendant Nos.2 to 6, the other legal heirs of the Shanmuga Raja admitting the statements made in the plaint and praying for a decree in favour of the plaintiff.
3. The Lower Appellate Court completely overlooked the main issue involved in the appeal that is the title regarding the property in Survey No.91 between the plaintiff and the first respondent.
4. The Lower Appellate Court erred in overlooking the legal principle that a suit for declaration could be maintained by anyone of the co-owner. Hence, even in the absence of any partition, the plaintiff can maintain the suit on the title of its predecessors over the property in Survey No.91 and that the co-
owners are impleaded as Defendants 2 to 6.
5. The Lower Appellate Court erred in law in not holding the title of the suit property in favour of the plaintiff even after finding that the patta in respect of S.No.91 was transferred in the year 1988 after the introduction of UDR scheme in the year 1984.
6. The Lower Appellate Court erred in law in overlooking the legal principle that a transfer of Patta during UDR without a transfer in title will not clothe the transferee with any title.
7. The Lower Appellate Court erred in law in its filing that the Government have constructed building in certain portion of Survey No.91 as such construction is not a bar to any person to a decree of declaration of his title.
8. The Lower Appellate Court erred is law in stating that the plaintiff has to prove his own case completely overlooking the indisputable fact and the admission of the defendant that the plaintiff grandfather Shanmuga Raja was given Ryotwari patta in respect of the land bearing Survey No.91 and such admission would discharge the burden from the shoulder of the plaintiff.
9. The Lower Appellate Court erred in law in overlooking the fact that the first defendant having stated that the Government acquired the titles from the seventh defendant, who in turn purchased the property from the plaintiff's grandfather is having the burden to prove that such sale took place.
10. The Lower Appellate Court failed to consider that the first defendant having accepted the pre existing title of the plaintiff's predeceased, is having the burden to show how such title was passed on to the defendant.
11. The Lower Appellate Court completely misdirected itself in law in finding the proof regarding the partition as the dispute is between the first defendant and the plaintiff in respect of the property that was partitioned between the plaintiff and his co-
owners.
12. The Lower Appellate Court failed to consider that the partitions is not an issue between the plaintiff and defendants 2 to 6 and that the defendants 2 to 6 having filed an written statement admitting the averments in plaint, there is no burden on the plaintiff to prove the partition.
13. The Lower Appellate Court failed to consider that the plaintiff's right under partition was not an issue before the Court and even the first defendant did not raise any ground not objected to the same in his oral and written submissions.
14. The Lower Appellate Court committed an error in law by completely silent about the issue as to how the title over S.No.91 was transferred from Plaintiff's grandfather Shanmuga Raja to the seventh respondent's the predecease in title to the first respondent.
15. The Lower Appellate Court completely overlooked the fact that the property in Survey No.91 could not be any portion of the properties shown is the sale deed of the year 1957 under which according to the first respondent that the plaintiff's grandfather conveyed the property to the seventh respondent.
16. The Lower Appellate Court misdirected itself in law in reading the area of suit property as 100 acres instead of 1 acre by holding that the plaintiff cannot seek relief for 100 acres where his grandfather was given patta only for 44 acres.
Substantial Questions of Law:
1. Whether the Lower Appellate Court correct in law in holding that the plaintiff has not proved the partition under which the plaintiff got title overlooking the written statement of the defendants 2 to 6 admitting the statement made in the plaint and prays for a decree in favour of the plaintiff?
2. Whether the Lower Appellate Court is correct in law in dismissing the suit by holding that the plaintiff has not established the partition when the same is not an issue and that not raised as a grounds by the first defendant either in the pleading or in his written submission?
3. Whether the Lower Appellate Court misdirected itself in law in completely overlooking the fact that the first respondent failed to establish the transfer of title over the suit property from plaintiff's predecessors in title to the first respondent's predecessors in title?
13.The learned counsel appearing for the appellant has submitted that the Ex.B8 though refers to several properties does not include the suit property either as Survey No.91 or the pre-settlement Paimash No.109 submits that Exhibit B8 is a registered sale deed under which Shanmuga Raja on 31.03.1957 sold 51 items of properties to the said M/s.Combined Industries.
However none of the items refers to either Paimash No.109 or Survey No.91. Neither there is any reference about the measurements of 100 acres or 44.57 acres. All those 51 items of properties are shown to be purchased by the said Shanmuga Raja in 1922 from other individuals through registered sale deeds. The appellant produced Exs.A19 and A20, two registered sale deed under which Shanmuga Raja purchased two of items of his properties sold under Ex.B8. Hence, all the 51 items of properties sold under Exhibit B8 were the private properties of the Shanmuga Raja and such private properties were not part of Zamin properties and could not have been taken over under the Act 26/1948. On the other hand the Paimash No.109 being a Zamin property was taken over under Act 26/48 and during the proceedings out of the 100 acres, 44.57 was found to be in the personal cultivation of the Shanmuga Raja and accordingly he was given Ryotwari patta. Hence, it is obvious that S.No.91 could not have been included under Ex.B. The learned counsel has cited a judgment and relied on the observation regarding the private properties of the Zamindar made in decision of Andhra Pradesh High Court in the case of Rani Sundrammani Vs. Government of AP and reported in 2006 (5) ALD 184. In the said Judgment, in para-24 it is stated that "Learned Senior Counsel would submit that a Zamindar could possess land within the grant (Sanad) called private land [Section 3(10) of the Estates Land Act]. He could possess and own land outside the grant i.e., land not covered by the permanent settlement. According to the learned Senior Counsel, on abolition of the estate, only the land covered by the grant vested in the Government and in respect of such lands, the Zamindar could claim ryotwari patta under Sections 12, 13 and 14 as the case may be if it was private land, (as distinguished from ryoti land), and compensation for the rest for the property that stood vested in the Government". Though the said Writ Petition was ultimately dismissed directing the petitioner to approach the Civil Court for necessary relief, it is observed by the High Court in para-55 that "Thus, under Section 12 of the Estates Abolition Act, the land holder is entitled for a ryotwari patta only in respect of lands which fall within the "Estate" as defined under Section 3(2) of the Estates Land Act. Lands within the Estate are again classified as private and ryoti lands. Private lands are those which the landholder himself, or through persons engaged by him, cultivates and ryoti lands are agricultural lands cultivated by a ryot on payment of rent to the landholder" and in para-56 that "The contention of the learned Special Government Pleader that, even for her personal properties which fall outside the "Estate" and which are not covered by or fall within the notification issued under Section 3 of the Estates Abolition Act, a ryotwari patta should have been obtained must therefore be rejected."
14.The learned counsel appearing for the appellant has further submitted that through other statements made by DW2 in his cross examination, corroborated by the recitals in Ex.B8 would clearly show that neither paimash No.109 nor Survey No.91 could have been any of the 51 items of properties sold under Ex.B8. To counter the arguments of the first respondent on the boundaries, the learned counsel has submitted that north of the Kamatchi Oorani not only Survey No.91 but another land larger than Survey No.91 is also situated and is given Survey No.204 and it is no surprise M/s.Combined Industries, the seventh defendant in their declaration Ex.B17 has claimed ownership to that land as well. In the same plan marked as Ex.B12 and B14 there were several other properties in Survey Nos.98, 94, 79 which are lying on the sough of Thondi Road and other properties in Survey No.93 and too lying further south. One of the items viz. Item No.8 in Ex.B8 is shown to be lying to the south of Thondi Road. However, none of the properties mentioned in Ex.B17 which the said M/s.Combined Industries Private Limited, claims ownership forms part of the said lands lying on the part of south Thondi road. Hence, it cannot be said that S.No.91 is part of Ex.B8. It is also submitted by the learned counsel for the appellant that the Ex.B8 is only an afterthought as it was introduced for the first time when the above suit was filed. Prior to that several enquiries were conducted on the application for patta and in none of the enquiries this document was referred anywhere and it is not even in the first respondent's file. It is strange that Ex.B8 does not make any reference in any of the proceedings concerning the property in Survey No.91 in the various files concerning S.No.91. Even in the order of the first defendant dated 03.09.2008, Ex.A15 there is no mention about Ex.B8. Even in the Revenue Records Ex.B4 10(1) Adangal extract for Fasli 1382 and Ex.B6 Chitta for Fasli 1386 and 1393. It is admitted by DW1 that in Ex.B4, there is no mention about how the said combined industries became the owner of Survey No.91. It is also admitted that from the entry in Ex.B4 it cannot be stated how Combined Industries acquired the properties. It is also admitted that in the Chitta there would be reference about the order of the Tahsildar affecting mutation. Unusually in this document there is no such reference. Similarly, in Ex.B6 also there is no reference about the proceedings under which the land was mutated in the name of Govindasamy Naidu though there are references about other mutations. The appellant relied on the Judgment of High Court in the cases reported in 2003 (2) LW 152 and 1999 (3) CTC 152 that the basis on which the patta was issued and whether there was any enquiry to be shown before accepting the patta as a document of title and that the materials have to be shown on how the Tahsildar came to such a conclusion to effect mutation to accept his order for the grant of patta. Hence unless it is shown that on what basis the name of Combined Industries was entered in the Adangal and Chitta and the materials which the Tahsildar relied to effect mutation, it may not be accepted. Besides to prove that the property was purchased by Combined Industries in the year 1957 and that patta was granted to Shanmuga Raja in 1963, the first defendant is not able to show any document or revenue entry prior to the year 1972. Besides when it cannot be shown that Survey No.91 was sold under Ex.B8 and that Shanmuga Raja was granted patta only in the year 1963, no mutation can be effected in request of Survey No.91 without hearing the Shanmuga Raja or his legal heirs. On the reliance of the order passed by the Assistant Settlement Officer marked as Ex.B17, it is submitted that no right in respect of Survey No.91 was determined or patta granted under this document and hence this document is irrelevant for the purpose of this case. Secondly M/s.Combined Industries went on its own before the Assistant Settlement Officer without impleading the legal heirs of Shanmuga Raja and it was their claim that they purchased Survey No.91 as well and hence the proceedings are not binding on the appellant. It was also submitted on the side of the Appellant that in the year 1957, the land in Paimash No.109, being a Zamin Estate was vested with the Government by virtue of the notification issued under Act 26 of 1948. Hence, Shanmuga Raja did not have any title or interest to be conveyed in the said land. The M/s.Combined Industries being a Private Limited company, would not have purchased the property which was already vested with the Government. This is yet another circumstance to come to the conclusion that M/s.Combined Industries would not have purchased Paimash No.109 in the year 1957. Besides had it purchased the land in the year 1957, they would have participated in the settlement proceedings and obtained the Ryotwari patta on the conclusion of the proceedings. On the other hand it was admittedly given in the name of Shanmuga Raja. Even after that they did not approach Shanmuga Raja till his death in the year 1963 to change the patta in their name. In fact Shanmuga Raja's title to Survey No.91 originates only in 1959, when the settlement proceedings were concluded and Ryotwari patta was granted to him. Till such time it remained vested with Government by virtue of Section 3 of the Act 26/48. Even prior to that, the interest of Shanmuga Raja over the said property was that of a Land holder under the Madras Estates Land Act 1908 and not as an absolute owner. On the conclusion of the settlement, the Patta No.371 in respect of the Survey No.91 was issued to Shanmuga Raja not as a Zamindar or owner of the estate but as a Landholder having possession and engaging in cultivation through his own servants or hired labours. Hence by virtue of S.114 of the Evidence Act, it has to be presumed that the concerned authorities on conducting an enquiry with regard to the possession and personal cultivation of Shanmuga Raja over an extent of 44.57 acres of land in Paimash No.109 comprised in Sivagangai Zamin granted patta to Shanmuga Raja. Hence, the title of Shanmuga Raja, it can be said, emanates from the date on which patta No.371 was granted, though it was on the basis of his preexisting right of in personal cultivation.
15.The learned Government Advocate appearing for the first respondent has submitted that the Shanmuga Raja sold the schedule property to L.R.Govindasamy Naidu, Managing Director of M/s.Combined Industries Coimbatore vide Document No.1307 of 1957 dated which is shown as Ex.B8. In the said document the total area 51 items of lands sold was 256 kurukams equivalent to 143.36 acres and is corresponding to the present survey number. It is further submitted that in the boundaries to the items in Schedule 1, 3, 40, 45 there is reference about Pillaikanmaikulam, Allur path, Kamakshi Oorani and such boundaries are adjacent to the suit property as shown in Sketch marked as Exs.B12 to B15 and relied on the judgment in the case of The Church of South India Trust Association Vs. Raja Ambrose and another in S.A.No.1629 of 1973 dated 13.10.1977 to the effect that 'where the measurements are given or the extent mentioned in the deed is either vague or is only a rough and ready approximation, one has to look to other indications in the deed in order to fix the identity if the property which is the subject matter of the grant'. It is further submitted that Ex.B17 was the order passed by the Assistant Settlement Officer before whom M/s.Combined Industries Limited, filed an appeal praying for change of patta in their name from the name of Shanmuga Raja for Survey no.91 claiming that they purchased the property under Sale deed dated 20.07.1957. It is submitted that there was no Survey Number mentioned in the document Ex.B as the same was executed prior to the conclusion of the settlement proceedings and that survey numbers were given only in Settlement proceedings. The learned counsel has further submitted that as per Encumbrance Certificate marked as Ex.B9, this survey No.91 was old by Shanmuga Raja to Govindasamy Naidu and the Field measurement book where the Survey No.91 is shown on the northern side of Kamatchi Oorani. He has further submitted that under the proceedings under the Tamilnadu Land Reforms Act, the said M/s.Combined Industries has surrendered this land bearing S.No.91 as their surplus land to the Government and it was declared as a surplus land under G.O.Ms.No.2076 dated 01.09.1978 and that without examining the above facts the patta was wrongly given to the Appellant and Respondents 2 to 6 and that on coming to know about the mistake the first respondent correctly cancelled the same. He has further submitted that the suit property comprised in Survey No.91 was sold by the Appellant's predecessor Shanmuga Raja to the seventh respondent in the year 1957 and that the seventh respondent subsequently surrendered the land in Survey No.91 to the Government as a surplus agricultural land under the proceedings in Land Reforms Act.
16.From the above discussion, this Court is of the view:
(i) From the above admissions and from the submissions of the learned counsel for the appellant it is established that the first respondent has not taken any steps or effort to show that the suit property comprised in its larger extent in Survey No.91 was one of the properties sold by Shanmuga Raja to Govindasamy Naidu of M/s.Combined Industries under Sale Deed marked as Ex.B8. In fact the first respondent had not even taken care to analyse the recitals of the said document but mechanically had come to the conclusion on a mere assumption that suit property was also sold under the Document. Even if it is so, the Survey No.91 could not have been mentioned in the document executed in 1957, it could have been mentioned by its pre-settlement Paimash No.109. When the Government records like Settlement Land Register, the extract of which is marked as Ex.A1 refers Paimash No.109 was of the area of 100 acres, there is no property in the 51 items sold under Ex.B8 referring to any such area and understandably all those properties were private purchased by Shanmuga Raja on various points of time through other registered documents but Paimash No.109 was a zamin estate granted to him and these facts were not considered by the first respondent. Mere reference of one boundary in few of the items matching with only one boundary in Survey No.91 is not any help as the title cannot be decided by one landmark, particularly when the same was pointed out by the appellant that same was a boundary with other lands, even larger in extent to the suit property. Hence, in my considered opinion the first respondent has failed to show how the suit property was owned by Govindasamy Naidu of M/s.Combined Industries and the learned trial Judge is correct in his finding on this issue that the appellant has proved his title over the suit property having been inherited from Shanmuga Raja.
(ii)On the other hand, the learned Appellate Judge unfortunately has not considered any of the above submissions and the findings of the learned trial Judge but proceeded on the irrelevant consideration that the plaintiff has not proved the partition among the legal heirs of Shanmuga Raja. When it is admitted by the first respondent in clear terms and supported by the Settlement records that the land in Survey No.91 was given to ShanmugaRaja as a Ryotwari patta under the proceedings initiated under the provisions of Act 26/48, it is to be assumed my presumption that he was in personal cultivation of the land and became owner with the grant of patta. On proof of such title and possession of the land in Survey No.91 over the predecessor of the plaintiff, it has become the duty of the first respondent to establish how and when the title was transferred to the first respondent or its predecessor the seventh respondent. The only submission by the first respondent that it was by Sale Deed executed by the Shanmuga Raja in the year 1957 but failed to show that the property in Survey No.91 or Paimash No.109 was one of the properties conveyed under the said Sale Deed Exhibit B8. The Appellate Judge has not taken note of this material issue in this dispute. In fact, the learned District Judge proceeded on a wrong assumption that the plaintiff is claiming title for 100 acres of land, may be the area of the original Paimash No.109 existed prior to settlement and doubted how the plaintiff could seek declaration for 100 acres when the Shanmuga Raja was given patta for only 44.57 acres in Survey No.91. Such finding is perverse and without any consideration of the documents produced or the evidence adduced.
(iii)Further, the learned Appellate Judge overlooked that respondents 2 to 6, the other legal heirs of the Shanmuga Raja have no quarrel with the Appellant and have filed a written statement through second respondent that they admit all the averments in the plaint and pray the suit to be decreed as prayed. The plaint clearly avers that there was an oral partition among the legal heirs of the Shanmuga Raja after the grant of patta and when such averments been admitted, it is not for the Court to seek the Appellant to prove the same in any other manner particularly when the same is not a material issue as the suit is basically between the first respondent and the appellant and the respondents 2 to 6 on the other side being the legal heirs of Shanmugaraja. The proof of partition is not even raised as an issue before the trial Court and the learned District Judge is not correct in proeeding with such issue, when it is not even a contentious issue. Besides it is also not noted that the legal heirs of Shanmuga Raja were added as Respondents 2 to 6 and hence the suit cannot be thrown out in favour of the first respondent on the ground that there was no partition among the appellant and respondents 2 to 6. It is seen from the written submission filed before the trial Court which the learned counsel for the appellant filed in this appeal as well that the learned trial Judge raised the doubt whether the appellant being a co-owner can maintain the suit but only afterwards the appellant, it is submitted added the other co-owners as parties but it was still submitted that even assuming for the sake of argument that the suit property is not allotted to the plaintiff in the family arrangement, still the plaintiff as a co-owner can maintain this suit for declaration and injunction. The said submission is acceptable in the light of the Judgment of in the case of Ramachandran Vs. Valliammal reported in 1992 (2) LW 470 wherein it is observed in para-18 that 'Even assuming that she (the plaintiff) was not the exclusive heir, she would only be a co-owner along with her brother or brothers vis a vis the defendants, who are only in the position of trespassers. The suit by one co-owner can certainly be maintained for ejecting them and recovering possession. The suit for recovery of possession was only for the benefit of all the co-owners in the event of there being other co-owners' The issue involved in this case is the title of the plaintiff, inherited through his predecessor Shanmuga Raja as against the claim of the first respondent that Shanmuga Raja had conveyed the same in the year 1957 to the M/s.Combined Industries and was surrendered to Government as a surplus land and that plaintiff succeeds on the same.
(iv)On the cancellation of patta by first respondent, it is only a natural consequence that the patta is to be issued once the title of the suit property is found in favour of the appellant. The proceedings of the first defendant in canceling the patta issued to the appellant and the respondents 2 to 6 is otherwise void for the reason that no notice was given to either the appellant or the respondents 2 to 6 as to why the patta granted by Revenue Divisional Officer in 2005 was not to be cancelled. A perusal of the said order in Ex.A15 wherein the contents of the plaintiff's application is extracted clearly shows that no question was raised by the first respondent as to why the patta should not be cancelled. Hence, the enquiry conducted by the first respondent by no such of imagination could be construed to mean as an enquiry for the cancellation of patta and the order passed by the first respondent is correctly set aside by the learned trial Judge and the Judgment relied by the Appellant in Malarkodi and 6 others Vs. The Secretary to the Government of Tamil Nadu reported in 2008 (4) LW 29 supports the submission that the cancellation of patta without notice is void and non-est in law. In any case as the appellant is held to be the owner of the suit property and the patta in his name is to be restored with immediate effect.
17.For the reasons and observations above said, the questions of law arose in the above second appeal are answered in favour of the appellant and the Judgment and Decree passed by the learned trial Judge is restored by setting aside the Judgment and Decree passed by the learned First Appellate Judge. The suit filed by the appellant is thereby decreed, declaring that the appellant is the absolute owner of the suit properties described in the Schedule to the Plaint and consequently restraining the first respondent from interfering with the appellants peaceful possession and enjoyment over the suit properties. Accordingly the order passed by the first respondent dated 03.09.2008 canceling the patta is also declared to be null and void and the first respondent is directed to restore the patta as originally granted within four weeks on receipt of this judgment copy.
18.In the result, the above second appeal is allowed. As such, the judgment and decree passed by the Sub-Court, Sivagangai in O.S.No.90 of 2010 dated 23.12.2011, is confirmed. There is no order as to costs.
To
1.The District Court, Sivagangai.
2.The Subordinate Court, Sivagangai. .