Madras High Court
Mayan vs Amirtham on 5 March, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 05/03/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1724 of 2003 1.Mayan 2.Balamani 3.Thamilmaran 4.Thamilarasan ..Appellant/Respondents/Defendants Vs 1.Amirtham 3.Rashya 3.Kamatchi ..Respondents/Legal heirs of the Plaintiff Sadayan Prayer Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 30.01.2003 passed in A.S.No.11 of 2002 on the file of the learned Subordinate Judge, Pattukottai in reversing the judgment and decree dated 27.08.2001 in O.S.No.251 of 1998 on the file of the learned District Munsif, Pattukottai. !For Appellants ... Mr.V.K.Vijayaragavan ^For Respondents ... Mr.T.R.Rajaraman :JUDGMENT
This second appeal is focussed as against the judgment and decree dated 30.01.2003 passed in A.S.No.11 of 2002 on the file of the learned Subordinate Judge, Pattukottai in reversing the judgment and decree dated 27.08.2001 in O.S.No.251 of 1998 on the file of the learned District Munsif, Pattukottai.
2. The parties are referred to hereunder in the same order as they were arrayed before the trial Court.
3. Narratively but precisely, the case of the plaintiff as stood exposited from the records could be portrayed thus:
The first and second items of the suit properties each were came to be occupied respectively by Arumugam and Sivakolundu, both sons of one Karuppan. They reclaimed the land and got assignments in their favour, who in turn sold those items in favour of the plaintiff vide two sale deeds dated 27.04.1978. The revenue records also stand in the name of the plaintiff relating to the suit properties. However, the defendants without any manner of right were disturbing the possession of the plaintiff, which necessitated him to file the suit for declaration of title over the suit properties and for injunction.
4. Per contra, impugning and challenging, denying and refuting the allegations/averments in the plaint, the first defendant filed the written statement before the trial Court, which was adopted by the defendant Nos.2 to 4; the gist and kernel of it would run thus:
The first defendant's wife Theivanai purchased an extent of one acre in the suit properties measuring an extent of one acre 71 cents from one Pachamuthu Udayar, S/o.Nallappa Udayar vide sale deed dated 11.06.1962 following an agreement to sell dated 06.04.1952. The vendor had put the first defendant's wife Theivanai in possession of one acre of land even under the said agreement to sell w.e.f. 06.04.1958. In fact, earlier the said Pachamuthu Udayar and his father Nallappa udayar obtained by way of exchange the suit properties from one Thiyagaraja Thevar and eight others vide exchange deed dated 09.02.1948.
5. The said Theivanai was suffering from serious health set back, which incapacitated her from cultivating the land personally and hence the plaintiff and his brothers, the said Arumugam and Sivakolundu were requested to assist by providing finance the said Theivanai in cultivation; to an extent of one acre of land those three brothers were cultivating and giving paddy as a kind of lease to Theivanai. Taking undue advantage of such a situation, the plaintiff and his two brothers colluded with each other and brought about Exs.A1 and A2. Apparently, they had no title over the suit properties. The revenue authorities directed the parties to seek remedy in the civil Court. The plaintiff cannot plead prescriptive title over the suit property as his vendors are none, but his own brothers, as they all happened to be the sons of Karuppan.
6. Reply statement also was filed by the plaintiff, controverting the averments/allegations in the written statement and according to the plaintiffs they acquired prescriptive title over the one acre of the suit property also.
7. The trial Court framed the relevant issues and during trial, the plaintiff examined himself as P.W.1 along with P.Ws.2 and 3 and Exs.A.1 to A.44 were marked. On the side of the defendants, the first defendant examined himself as D.W.1 and Exs.B.1 to B.11 were marked.
8. The trial Court ultimately dismissed the suit.
9. Being aggrieved by and dissatisfied with the Judgment and decree of the trial Court, the plaintiff preferred the first appeal, whereupon the first appellate Court reversed the Judgment and decree of the trial Court and decreed the original suit.
10. Challenging the Judgment and decree of the first appellate Court, the defendants filed this second appeal on the grounds interalia thus:
The first appellate Court failed to consider the case of the defendants in proper perspective. The suit property is a ryoti land and hence it could not have vested with the Government as per the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Act XXVI of 1948). The suit properties were not Government lands and as such the Government had no right to assign it allegedly in favour of the vendors of the plaintiff. Exs.A1 and A2 would not extinguish the right of the defendants over the suit property as it is a ryotwari land. Survey No.300 was measuring 4.71 acres of land referred to in Ex.B2 and under Ex.B1, the first defendant's wife Theivanai purchased an extent of one acre. These facts were not considered by the first appellate Court in proper perspective.
11. The plea of prescription as pleaded by the plaintiff is a misconceived one. The first appellate Court erroneously set aside the well reasoned Judgment of the trial Court. Accordingly, they prayed for setting aside the Judgment and decree of the first appellate Court and for restoring the Judgment and decree of the trial Court in dismissing the original suit.
12. The following substantial questions of law were framed by my learned Predecessor at the time of admitting this second appeal:
"1. On the facts and circumstances, when title of suit properties with the Government was not established for upholding the validity of the assignments made in favour of plaintiffs vendor, was it correct for the lower appellate court to grant declaration of plaintiffs title to the suit properties on the basis of Exs.A1 and A2?
2. Whether the decree and judgment of the lower appellate court are liable to be set aside for non consideration of documents, viz., Exs.B.1 to B.8 and B.10 filed by the appellants? and
3. Whether the title of defendants/ appellants to suit properties would be lost because of the notification of suit village made by the Government under the provisions of Act 26 of 1948?"
13. At the time of arguments, the learned counsel for the appellants/defendants filed a memo for framing the additional substantial question of law as under:
"When the plaintiff did not prove that the suit lands were available at the disposal of the Government was the decree and judgment granted to the plaintiff as prayed for by the lower appellate Court tenable in law?"
14. Heard both sides and I am of the considered opinion that such an additional substantial question of law need not be framed as already three substantial questions of law framed cover the crux of the matter involved in the proposed additional substantial question of law.
15. The substantial questions of law already framed are taken together for discussion as they are interlinked with one another.
16. Heard both sides.
17. The learned counsel for the appellants/ defendants by placing reliance on the grounds of appeal and the relevant Sections of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 (for short Act No.XXVI of 1948) would develop his arguments to the effect that the first appellate Court misdirected itself as though the Government had the right to assign patta in favour of the plaintiff's vendors, even though the said Act did not have the effect of vesting ryoti lands in favour of the Government. As such, the king pin of the arguments of the learned counsel for the appellants/defendants is that when the Government had no disposable or allotable right relating to ryoti land and that the plaintiff's contention as though his vendors acquired right over it under the patta was not sound.
18. He would also draw the attention of this Court to Section 3(b) of the Act No.XXVI of 1948 and advanced his arguments that those provisions do not contemplate ryoti lands.
19. Both sides interpreted Section 3(b) of the said Act differently. Hence, it is just and necessary to extract here under Section 3(b) of the said Act as under:
"3.Consequences of notification of estate.- With effect on and from the notified date and save as otherwise expressly provided in this Act-
(a) ...
(b) the entire estate (including all communal lands; porambokes; other non-ryoti lands; waste lands; pasture lands; lanka lands; forests; mines and minerals; quarries; rives and streamts; (tanks and ooranies (including private tanks and ooranies) and irrigation works); fisheries and ferries), shall stand transferred to the Government and vest in them, free of al encumbrances and the (Tamil Nadu) Revenue Recovery Act, 1864 (Tamil Nadu Act II of 1864), the (Tamil Nadu) Irrigation Cess Act, 1865 (Tamil Nadu Act VII of 1865), and all other enactments applicable to ryotwari areas shall apply to the estate";
20. I would also refer to Section 3(d) of the said Act and it is extracted here under for ready reference:
"(d) the Government may, after removing any obstruction that may be offered, forthwith take possession of the estate, and all accounts, registers, pattas, muchilikas, maps, plans and other documents relating to the estate which the Government may require for the administration thereof;
Provided that the Government shall not dispossess any person of any land in the estate in respect of which they consider that he is prima facie entitled to a ryotwari patta-
(i) if such person is a ryot, pending the decision of the Settlement Officer as to whether he is actually entitled to such patta;
(ii) if such person is a landholder, pending the decision of the Settlement Officer and the Tribunal on appeal, if any, to it as to whether he is actually entitled to such patta";
21. The perusal of those aforesaid provisions extracted and more so the entire Act would leave no doubt in the mind of the Court that the said Act No.XXVI of 1948 had the effect vesting in Government, all the entire estate including ryoti lands in the Government and Section 3(b) indicates inclusive definition, which clearly indicates that the entire estate and more specifically the lands specified in that sub Section got vested in the Government.
22. Indubitably and indisputably the entire village wherein the suit property is situated, formed the erstwhile estate and it got vested with the Government. At this juncture, one important fact has to be clarified. The learned counsel for the respondents took pains to canvass his plea that under the Act No.XXVI of 1948, ryotwari land did not get vested with the Government, only for the purpose of stressing the fact that the ryotwari land in stricto sensu cannot be treated as a land, which could be assigned by the Government in favour of third parties other than the ryoti in possession.
23. It is one thing to argue that ryoti land did not get vested with the Government under the said Act and it is yet another aspect to argue that ryoti land cannot be assigned by the Government by dispossessing a ryot in possession arbitrarily.
24. My above interpretation of Section 3(b) of the said Act would highlight that the entire estate including the ryoti land got vested with the Government, but I do not hold that the ryot in possession as on the date of commencement of the said Act, could be dispossessed by the Government. This is the subtle distinction which should be borne in mind in interpreting Section 3 of the said Act and it is quite obvious. The object of the Tamil Nadu Act No.XXVI of 1948 if considered, it would at once SImply support the view taken by me. I would like to highlight that Act No.XXVI of 1948 makes it clear by holding that as per the said Act, all lands including ryotwai lands got vested with the Government, does not mean that such vesting so far ryotwari lands are concerned was absolute, but it was subject to ryotis right to continue in possession and pay revenue to the Government. Once this fact is understood in the proper perspective there is no question of any doubt arising relating to the interpretation of Section 3 is concerned. The term vesting need not be unduly given over importance and thereby pave the way for different types of interpretation. No more elaborations in this regard is required.
25. It is the contention of the appellants/ defendants that the first defendant's wife's vendor Pachamuthu Udayar as on the date of commencement of the said Act by virtue of Ex.B2 was enjoying it as a ryot and that it should be treated as ryoti land. The learned counsel for the appellants/defendants also would canvass the point that once it is a ryoti land, it should always be treated as ryoti land and that there is no question of Government assigning that land in favour of the plaintiff's vendors.
26. Whereas the learned counsel for the respondents would contend that since the plaintiff's vendors were in possession and enjoyment of the suit property of their own accord by reclaiming it and cultivating the same, the Government in recognition of it issued patta and on the strength of it, they executed Exs.A1 and A2, the sale deeds dated 27.04.1978 in favour of the plaintiff and there is no statutory embargo or any other legal hurdle for such sort of transfer of the suit properties by the vendors of the plaintiff in favour of the plaintiff. In this factual matrix, it has to be seen as to what are the powers of the civil Court vis-a-vis the powers of the authorities under the Act No.XXVI of 1948 and the revenue authorities. At once my mind is redolent with the decision of this Court in Srinivasan and 6 others v. Sri Madhyarjuneswaraswami, Pattavaithalai, Thiruchirappalli District by its Executive Officer at Pattavaithalai Devasthanam and 5 others reported in 1998 (II) M.L.J Page 722. An excerpt from it, would run thus:
"15. Further, the mere fact that the orders passed or decisions rendered under these Acts were given finality for the purposes of those Acts or that the issues, which they are oblilged or required to be decided, when so decided are ordained to bind the parties to the proceedings or their privies and successors- in-interest applying the principles of resjudicata does not have the effect of outing the jurisdiction of the Civil Court once and for all. It is by now well settled that even in cases where finality is accorded to any decision or order, there are certain well settled exceptions and proved the existence of such exceptional factors, the Civil Court is entitled to nullify any or all such decisions. Similarly, even in cases where the principles of res judicata are rendered applicbale, the jurisdiction of the competent Civil Court to go into the question and find out whether the necessary ingredients to apply the principles of res judicata exist in a given case or not cannot be denied to the Civil Court and from the mere fact of according finality to the orders or decisions rendered under the Act or the application of the principles of res judicata a total or complete bar or ouster of the jurisdiction of the Civil Courts for all and any purpose cannot be automatically inferred or implied. Before a plea of res judicata can be given effect to, it must be sufficiently pleaded and established that the litigating parties must be the same, that the subject matter of the suit and the other proceedings also are identical, that the questions arising in the suit and the other proceedings were directly and substantially in issue and the same ws finally decided and that too by an authority or court of competent jurisdiction.
16. On coming to know of the existence of an unreported decision of the Apex Court rendered by a Bench consisting of three of their Lordships, efforts were made to secure the same when the judgments in this case was under preparation and it was ascertained that in Civil Appeal No.5141 of 1993 Sri-La-Sri Sivapradkasa Pandara Sannadme Avargal v. Smt.T.Parvathi Ammal and others, (1998)2 L.W. 188, their Lordships of the Apex Court by a judgment dated 20.2.1996, not only approved the earlier decision of the Apex Court reported in R.Manicka Naicker v. Elumalai Naicker, (1995) 4 S.C.C. 156 and set their seal of approval to the principles laid down therein, but had categorically held in unmistakable terms that the decision in (Vatticharularu Village Panchayat v.
Nori Venkatarama Deekchithulu, 1991 (2) S.C.C (Supp.) 228) has no application to the provisions or in respect of claims arising under the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963. Their Lordships of the Apex Court in coming to such a conclusion, held as follows:
"The only question for decision relates to the jurisdiction of the Civil Court to entertain the suit which was filed by the respondent. The trial Court decreed the suit. The First appellate Court set aside the decree taking the view that the civil Court's jurisdiction was barred. In the second appeal filed by the present respondents, the High Court has restored the judgment and decree of the trial Court taking the view that the civil Court's jurisdiction was not barred.
The plea of exclusion of the Civil Court's jurisdiction to adjudicate the title of the parties in the present case is based on the provisions of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963. This Court in a recent decision in R.Manicka Naicker v. Elumalai Naicker, (1995) 4 S.C.C. 156:(1995) 1 L.W 731, has clearly held that the Civil Court's jurisdiction to adjudicate title of the parties, is not barred by virtue of the provisions of the said Act. This is a direct decision of this Court on the provisions of the Act with which we are concerned in the present case. Learned Counsel for the appellant placed reliance on the decision in Vatticharularu Village Panchayat v. Nori Venkatarama Deekchithulu, 1991 (2) S.C.C (Supp.) 228. It is sufficient to observe that this decision relates to the provisions under a different Act of Andhra Pradesh. Moreover, in R.Manicka Naicker, this decision relating to the provisions in the Andhra Pradesh Act was considered and distinguished. In view of the direct decision of this Court in R.Manicka Naicker, there is no merit in this appeal. The appeal and the Contempt Petition are dismissed."
17. In view of the above unreported decision of the Supreme Court, the decision in S.Vanathan Muthuraja v. Ramalingam, (1997) 6 S.C.C. 143 : (1997) 3 L.W. 231 rendered without even referring to the earlier reported decision of the very same Court in R.Manicka Naicker v. Elumalai Naicker, (1995) 4 S.C.C. 156:(1995) 1 L.W 731 and the unreported decision of even a larger Bench directly arising under the Tamil Nadu Act 30 of 1963, cannot be said to lay down or declare the correct position of law or constitute a binding precedent.
18. For all the reasons stated above, we answer the question referred to the Full Bench in the negative by holding that the jurisdiction of the civil Court to entertain a suit for declaration of title and injunction is not barred by reason of the grant of patta under the provisions of Tamil Nadu Act 30 of 1963.
19. We direct the respective appeals to be posted before the learned single Judge concerned for the disposal of the appeals on merits in the light of the answer given on the reference made to the Full Bench. The cost in the appeals shall abide by the result of the appeals on merits."
27. In this connection, the decision of this Court in M.E.A.Mohamed Ali and others v. The District Revenue Officer reported in 2005 (4) CTC 9 could fruitfully be referred to. An excerpt from it, would run thus:
"2. The dispute relates to entries in the revenue records. It is well settled that entries in the revenue records does not create or extinguish title nor has it any presumptive value vide M.T.W.Tenzing Namgyal & Ors. v. Motilal Lakhotia & Ors., 2003 (5) SCC 1 : JT 2003 (5) SC 173; Balwant Singh v. Daulat Singh, 1997 (7) SCC 137; and Smt.Sawarni v. Smt.Inder Kaur and others, 1996 (6) SCC 223 : 1996 (7) JT SC 580. Such entries are only for the purpose of payment of land revenue. Hence the parties aggrieved by such entries in the revenue records should get their rights adjudicated in a civil suit. Ordinarily writ petitions should not be entertained against orders for making entries in the revenue records, as such orders do not affect the rights of any one.
3. We make it clear that the impugned judgment of the learned single Judge does not create any right in favour of the parties in that case. We further make it clear that the order of the revenue authorities is not binding in the civil suit, and the Civil Court will decide the rights of the parties independently of the order of the revenue authority."
28. Keeping in mind the ratio decidendi as found highlighted in those precedents and also in the light of G.O.Ms.No.1300 dated 30.04.1971, I could proceed to analyse the grounds of appeal. The cumulative effect of the reading of the cited decisions and G.O.Ms.No.1300 dated 30.04.1971 would mandate that the approach should be as under. Dehors the decisions and conclusions arrived at by the authorities under the Act No.XXVI of 1948 and the revenue authorities in general, the civil Court shall decide as to whether the plaintiff or the defendant has been in continuous possession and enjoyment of the suit property. It is not as though the plea of prescription/adverse possession cannot be pleaded by either side and it is open for the parties to plead and prove it.
29. The onus probandi obviously is on the plaintiff to prove his case and it has to be seen as to whether he discharged his burden. It is the contention of the plaintiff that the plaintiff's vendors even anterior to the execution of the sale deeds Exs.A1 and A2, had been in possession and enjoyment of the suit properties and in recognition of it they got patta from the Government and enjoyed it and consequently alienated the suit properties in favour of the plaintiff.
30. At this juncture, it is worthwhile to refer to the admission made by the defendants themselves in the written statement in paragraph No.7 to the effect that the first defendant's wife Theivanai as narrated supra, could not cultivate the land purchased by her under Ex.B1 due to her ill health and requested the plaintiff and his vendors, who are none, but the plaintiff's brothers to cultivate the land on her behalf and that they also contributed money for cultivation and paid lease to her. D.W.1, the husband of Theivanai also in his deposition admitted the said fact. As such, this is a clear admission that the plaintiff and his purchaser in title have been in physical possession and cultivating the suit properties as pleaded by them. No doubt neither in the written statement nor in the deposition of D.W.1, there is any admission that the plaintiff and his purchaser in title were occupying the suit properties in their own capacity as owners of the land. I recollect the maxim "nec vi, nec clam, nec precario" (not by violence, stealth or permission) and the plaintiff has to prove the prescriptive title over the suit property.
31. The learned counsel for the appellants/ defendants would cite the decision of the Hon'ble Apex Court in P.T.Munichikkanna Reddy v. Revamma reported in (2007) 6 Supreme Court Cases 59. Certain excerpts from it, would run thus:
"34. The law in this behalf has undergone a change. In terms of Articles 142 ans 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly been stated by this Court in S.M. Karim v. Bibi Sakina in the following terms: (AIR p. 1256, para 5) "Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found." (See also M. Durai v. Muthu (2007) 3 SCC 114 : (2007) 2 Scale 309.)
35. The aforementioned principle has been reiterated by this Court in Saroop Singh v. Banto stating: (SCC p. 340, paras 29-30) "29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak (2004) 3 SCC 376.)
30. 'Animus possidendi' is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita (2004) 1 SCC 271, SCC para 21.)"
36. In Mohammadbhai Kasambhai Sheikh v. Abdulla Kasambhai Sheikh this Court held: (SCC p. 386, para 4) "But as has been held in Mahomedally Tyebally v. Safiabai the heirs of Mohammedans (which the parties before us are) succeed to the estate in specific shares as tenants-in-common and a suit by an heir for his/her share was governed, as regards immovable property, by Article 144 of the Limitation Act, 1908. Article 144 of the Limitation Act, 1908 has been materially re-enacted as Article 65 of the Limitation Act, 1963 and provides that the suit for possession of immovable property or any interest therein based on title must be filed within a period of 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. Therefore, unless the defendant raises the defence of adverse possession to a claim for a share by an heir to ancestral property, he cannot also raise an issue relating to the limitation of the plaintiff's claim."
37. The question has been considered at some length recently in T. Anjanappa v. Somalingappa wherein it was opined: (SCC p. 577, para 21) "21. The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise. Above being the position the High Court's judgment is clearly unsustainable."
(See also Des Raj v. Bhagat Ram (2007) 9 SCC 641 : (2007) 3 Scale 371 ; Govinammal v. R.Perumal Chettiar (2006) 11 SCC 600 : JT (2006) 10 SC 121.)
40. There is another aspect of the matter, which cannot be lost sight of. The right of property is now considered to be not only a constitutional or statutory right but also a human right.
41. Declaration of the Rights of Man and of the Citizen, 1789 enunciates right to property under Article 17:
"since the right to property is inviolable and sacred, no one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it and just and prior indemnity has been paid".
42. Moreover, the Universal Declaration of Human Rights, 1948 under Sections 17(i) and 17(ii) also recognises right to property:
"17. (i) Everyone has the right to own property alone as well as in association with others.
(ii) No one shall be arbitrarily deprived of his property."
As such it has to be seen whether the plaintiff has proved that he has been in possession of the suit property openly, uninterruptedly/continuously as owner over a period of twelve years, which is the statutory period for acquiring prescription.
32. Ex.A19 order dated 26.07.1973 passed by the Board of Revenue (Settlement of Estates), Chepauk, Madras-5 could fruitfully be referred to. Paragraph No.3 of the said order is extracted here under for ready reference:
"The petitioner has contended that the lands are kudikani lands which were purchased first by the landholders, that they were then purchased from the landholders by his wife under sale deed No.1565 of 1962, that the objector, Thiruvalargal Arumugam and Sivakolundu have trespassed into the lands in 1962, that his wife applied for patta under G.O.Ms.2502 Revenue dated 8.7.1958 in 1963, that the lands were assigned in the names of the objectors when the appli... pending decision and that the said assignment order was cancelled in the District Revenue Officer's D.Dis.20677/64 dated 30.6.1965 on a petition filed by his wife. He has also contended that his claim under G.O.Ms.1300 Revenue dated 30.4.1971 was rejected by the Revenue Divisional Officer without verifying the documents, that the copy of the Revenue Divisional Officer's order was not communicated to him and that the lands have again assigned in the names of the objectors on 10.1.1973 when his petition is pending before the Board. He has further contended that the objectors have no title to or enjoyment of the lands, that the lands owned by the objectors were sold in 1963 and 1964 in order to get assignment of the petition lands as landless poor and that a similar claim of Thiru Natarajan relating to S.No.300 which was purchased from the same landholder in 1962 has been allowed by the Revenue Divisional Officer in his Rc.3039/72-C.2 under G.O.Ms.1300 Revenue dated 30-4-71".
(emphasis supplied)
33. The aforesaid extract would clearly demonstrate that the defendants admitted that the plaintiff's vendors Arumugam and Sivakolundu had trespassed into the suit properties as early as in the year 1962 itself. I am fully aware of the fact that the decision rendered by the Commissioner for Land Revenue and Settlement of Estates, in view of my discussion supra cannot be taken as a conclusive one. However, Ex.A19 is relied on for the limited purpose of the factual narration as found set out therein. It is not the case of the defendants therein the Commissioner for Land Revenue and Settlement of Estates made a false statement under paragraph No.3. It is therefore clear that as per the defendants' case, the plaintiff's vendors trespassed into the land even in the year 1962. However, in the written statement by way of camouflaging and concealing the real facts, the defendants would simply give a colour to it as though the plaintiff and his vendors were in possession of the suit land as almost like tenants under the first defendant's wife Theivanai.
34. It is a trite proposition of law that preponderance of probabilities would govern the adjudication in civil cases. As such in this factual matrix, the preponderance of probabilities would clearly indicate that the plaintiff's vendors had been in possession and enjoyment of the suit properties ever since 1962 in their own capacity as absolute owners of the suit properties and they exercised their right over it. The defendants had not chosen to evict the plaintiff or plaintiff's vendors by filing any suit. Till date absolutely no steps have been taken by the defendants to evict the plaintiff. It is the plaintiff, who filed the suit in O.S.No.251 of 1998 for declaration of his title and for injunction. While holding so, I am fully aware of the fact that whether this Court could simply hold that the plaintiff had acquired prescriptive title over it.
35. It is the case of the plaintiff that his vendors for a pretty long time had been in possession and enjoyment of the suit property after reclaiming it. Ex.B1 relied on by the defendants as the one emerged in favour of the first defendant's wife was only on 11.06.1962, whereas Ex.B2 dated 09.02.1948, which the defendants relied on as the antecedent title deed to Ex.B1, emerged almost 14 years ago. As such, there was a gap of almost 14 years between the two deeds and absolutely there is nothing to show as to whether the first defendant's wife's vendors were in possession and enjoyment of the suit property during that period. There is also no iota or shred of evidence that Ex.B2, the exchange deed was acted upon. On the other hand, the plaintiff could show that he and his vendors have been in possession and enjoyment of the suit property for a pretty long time and in such a case the preponderance of probabilities of the suit property having been acquired by prescriptive title is in favour of the plaintiff's vendors and the plaintiff.
36. One important fact should be noted here. Had really the first defendant's wife's vendors were the ryots in respect of the suit properties as ryoti land then they should have got patta in their favour. I am fully aware of the fact that non obtention of patta would not be fatal to their case provided they could prove their continuous possession. Absolutely there is no iota or shred of evidence to show that ever since 09.02.1948, the plaintiff vendors have been in possession of the suit properties till the emergence of the sale deed, Ex.B1 dated 11.06.1962. In fact, the other Exs.B3 to B11 are in no way helpful to the defendants to clarify this issue. But on the other hand, it is the case of the defendants themselves that even in the year 1962, the plaintiff trespassed in the suit properties. There is also nothing to indicate that Ex.B1 emerged under genuine circumstances.
37. The perusal of the Act No.XXVI of 1984 as well as G.O.Ms.No.1300 dated 30.04.1972 referred to supra would show that the Government, after coming into force the Act No.XXVI of 1984 had taken steps to survey the entire village concerned. Had the said Theivanai's vendors had been in possession and enjoyment as ryots, then their names would have found a place in such survey. But the evidence would speak to the contrary. Ex.A13 is the Village Register of Rights (jq;rht{h; $py;yh gl;Lf;Bfhl;il jhYfh be.287 brA;fkA;fyk; fpuhk chpik j!;jhBt$p ;hp$p!;lh;) and it would refer to the names of one g.rp.ey;yg;g[ilahd;; and M.ey;yg;g[ilahd; as the persons having interest in Survey No.300, measuring a total extent of 4 acres 71 cents and that in no way enlighten the Court to resolve the issue. Ex.B2, the exchange deed would refer to the names of one ey;yg;g[ilahd;; and gr;rKj;Jt[ilahd; and Ex.A13 does not demonstrate to which year it relates. As such the above analysis would clearly highlight that the plaintiff and his vendors have proved their possession and enjoyment over the suit property even anterior to 1962 as owners, whereas the defendants have not proved either the first defendant's wife Theivanai or her predecessors, have been in possession ever since 1948 and in such a case, the plaintiff's case is more probable and the first appellate Court's ultimate finding need not be interfered with.
38. Without adverting to all these relevant points highlighted supra, the trial Court simply at paragraph No.42 of its Judgment, relied on Ex.B1 and the antecedent deed Ex.B2 and held in favour of the defendants. The trial Court without concentrating on the fact as to whether Theivanai's vendor have been in possession and enjoyment over the suit properties ever since 1948 simply took it for gospel truth that the plaintiff's vendors and the plaintiff have been in possession and enjoyment of the suit properties. Reliance was placed by the trial Court on Exs.A7 and A8, and such approach is perverse as those Exs.A7 and A8 emerged on 04.10.1972 and 10.10.1971 between third parties and simply some references are found in those documents about the first defendant's name as the adjacent owner, no presumption would enure to his benefit and that too when the first defendant himself admitted that even since 1962, they were not in possession of the suit properties. As such I could see no infirmity in the ultimate conclusion arrived at by the first appellate Court.
39. The learned counsel for the appellants/ defendants cited the decision of this Court in Mariabackiammal (deceased) by her legal heirs and 3 others v. The District Forest Office, Madurai North Division, Dindigul reported in 1990-2- L.W.-478. An excerpt from it would run thus:
"I have already referred to the fact that the land in question is found to be surrounded on all its sides by patta lands belonging to others, evidently occupied, except the survey number which is indicated as 'hill'. This fact has not at all been noticed by the two officers below, viz., the Forest Settlement Officer and the District Judge, and it knocks the bottom out of the stand made so eloquently in the counter-statements by the District Forest Officer and the Forest Range Officer, Theni, about the need to preserve the forest area in the State. But, I cannot rest my decision on that reason alone. I hold that in this dispute, the Government asserts that the disputed land is a 'land at their disposal' and the claimant denies that assertion. The onus is naturally only on the State and the evidence let in on its behalf in this proceeding is next to nothing. Even the Forest Settlement Officer has remarked that the department did not produce in evidence an order attributed to a settlement officer. I have noticed earlier that in the enquiry held after the remand by the District Judge of Madurai, the department took time on more than one occasion to produce an order passed under S.63 of Act 26 of 1948, but has omitted to do so. One has to take it that where a document which was admitted to exist and which was offered to be produced, in evidence was, in fact, not so produced, it should only be due to the fact that, if produced, it will work or rather operate to the prejudice of the party concerned, and every adverse inference has to be drawn against the party in this case, viz., the Forest Department and the State of Tamil Nadu".
40. The cited decision of this Court is not applicable to the facts and circumstances of this case as it is quite obvious. There is no quarrel over the proposition that over the ryoti land, the Government cannot have right to issue patta in favour of a third party other than the ryot concerned. The first defendant's wife Theivanai's vendor have not been proved to have been in possession and enjoyment of the suit properties as ryot as on the date of commencement of Act No.XXVI of 1948 w.e.f. 02.04.1949.
41. Accordingly, the substantial question of law No.1 is decided to the effect that even ryoti land in the estate concerned got vested with the Government subject to the rights of ryots to continue in possession provided they could establish that they are ryots in possession of the lands within the estate concerned. In the facts and circumstances of the case, the plaintiff proved that as per Ex.A1 and A2, he acquired title from his vendors, because the plaintiff's vendors have been in possession and enjoyment of the suit property continuously, openly and uninterruptedly as owner over the statutory period.
42. The substantial question of law No.2 is decided to the effect that the Judgment and decree of the first appellate Court cannot be set aside on the alleged ground that it had not taken into consideration Exs.B1, B8 and B10 as it considered those documents also.
43. The substantial question of law No.3 is decided to the effect that the first defendant's wife's right and her vendors' right over the land as a ryots have not been proved and in such a case it is held that they could not be treated as ryots in possession of the ryoti lands within the meaning of the Act No.XXVI of 1948.
44. In the result, there is no merit in the second appeal and the same is dismissed, confirming the judgment and decree of the first appellate Court. However, in the facts and circumstances of the case, there is no order as to costs.
smn To
1. The Subordinate Judge, Pattukottai.
2. The District Munsif, Pattukottai.