Madras High Court
Panneerselvam vs Ramar ... 1St on 22 March, 2019
Author: R.Pongiappan
Bench: R.Pongiappan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.03.2019
CORAM:
THE HONOURABLE Mr.JUSTICE R.PONGIAPPAN
S.A.(MD)No.163 of 2009
[Judgment Reserved on 27.02.2019]
Panneerselvam ... Appellant / Appellant /
1st Defendant
Vs.
1.Ramar ... 1st Respondent / Respondent /
Plaintiff
2.The Collector,
Government of Tamil Nadu,
Virudhunagar District ... 2nd Respondent / Respondent /
2nd Defendant
*R2 Given up as set ex-parte
PRAYER: Appeal filed under Section 100 of Civil Procedure Code, against
the Judgment and Decree, passed in A.S.No.70 of 2003, dated 07.01.2008,
on the file of the Principal District Court, Srivilliputtur, by confirming the
Judgment and Decree passed in O.S.No.74 of 1999, dated 21.01.2003, on
the file of the Additional District Munsif Court, Srivilliputtur.
For Appellant : Mr.S.Kadarkarai
For Respondent-1 : Mr.A.Sivaji
http://www.judis.nic.in
2
JUDGMENT
This Second Appeal has been filed by the appellant / 1st defendant, against the Judgment and Decree, dated 07.01.2008 in A.S.No.70/2003, on the file of the learned Principal District Judge, Srivilliputtur, confirming the Judgment and Decree passed in O.S.No.74 of 1999, dated 21.01.2003, on the file of the Additional District Munsif Court, Srivilliputtur.
2.The plaintiff / 1st respondent herein had filed a Suit in O.S.No.74 of 1999, on the file of the learned Additional District Munsif, Srivilliputtur, seeking for the relief of declaration, declaring that the plaintiff is the absolute owner of the suit schedule property and further, for the relief of permanent injunction, restraining the defendants and their men from in any way interfering with his peaceful possession and enjoyment of the suit property and to declare that the patta issued by the 2nd defendant to the suit schedule property, in favour of the 1st defendant, as illegal. Further, for the direction to the 2nd defendant, for issuing patta in favour of the plaintiff.
3. The learned Additional District Munsif, Srivilliputtur, by the Judgment, dated 21.01.2003, decreed the Suit, as prayed for. Aggrieved by the same, the appellant herein filed an appeal in A.S.No.70/2003, on the file of the learned Principal District Judge, Srivilliputtur. The learned Principal http://www.judis.nic.in 3 District Judge, Srivilliputtur, by the Judgment and Decree, dated 07.01.2008, had dismissed the said appeal, confirming the Judgment and Decree passed in O.S.No.74 of 1999, dated 21.01.2003, on the file of the Additional District Munsif Court, Srivilliputtur. Further, directed the parties, to bear their respective costs. Feeling aggrieved by the same, the appellant / 1st defendant has filed the present Second appeal.
4. For the sake of convenience, the parties are referred to as per their ranking before the trial Court.
5.The averments made in the plaint, in brief, are as follows:-
(i) The plaint schedule property is Village Natham. On the northern side of the plaint schedule property, there was a property, bearing S.No. 187/4, with an extent of 85 cents. The said property was originally belonged to one Pillaiyar Nadar, who is the grandfather to the plaintiff as well as to the 1st defendant. The father of the plaintiff and the father of the defendant are brothers. Apart from that, they have 3 more brothers and one sister. The said Pillaiyar Nadar, among their sons partitioned their property before 50 years. From that day onwards, his sons are enjoying their respective shares, consequently, among the family members S.F.No. 187/4 was divided into 3 shares, in which, the northern portion, measuring about 28.5 cents were allotted to Pandara Nadar. The middle portion was http://www.judis.nic.in 4 allotted to Madasamy Nadar and the southern portion, measuring about 28.5 cents, was allotted to Sivanandi Nadar, on the other hand, the father of the plaintiff and the 1st defendant were not allotted with any shares in S.No. 187/4.
(ii) On 08.11.1952, the said Sivanandi Nadar sold his share of 28.5 cents to the father of the plaintiff Ramasamy Nadar, which was situated on the southern side of the plaint schedule property. Thereafter, the plaintiff's father was in enjoyment and possession of the said land along with the plaint schedule property. There was no border line or demarcating line separating the plaint schedule property with the property of the plaintiff's father. Ramasamy Nadar, who is the father of the plaintiff, had 3 sons. The said Ramasamy Nadar orally partitioned his property before 15 years, in which, the plaintiff was allotted with the share of 28.5 cents in R.S.No. 187/4.
(iii) Ever since from the date of partition, the plaintiff had been in enjoyment of the plaint schedule property along with his 28.5 cents. Now, in both the properties, plantain tree is available at the age of 7 months. On 01.03.1998, after obtaining patta in his favour from the 2nd defendant, the first defendant declared that the plaint schedule property was belonged to him and the same was ready to sale. In fact, since the plaint schedule property comes under the category of Village Natham, the 2nd defendant has http://www.judis.nic.in 5 no right to issue patta to any one, without enquiry. Hence, the plaintiff filed the Suit.
6. The first defendant filed his written statement with counter claim, which briefly contains the following pleadings:-
(i) On the northern side of the plaint schedule property, the land in R.S.No.187/4 is situated. The genealogy tree, which is appended with the plaint is correct. Till date, the properties of Pillaiyar Nadar are in Joint possession of his legal heirs. To the said land, the plaintiff and his brothers made attempt to obtain separate pattas, however, the application filed by the plaintiff and his brother was dismissed by Rajapalayam Tahsildar.
Against the said order, the defendant filed an appeal before the Revenue Divisional Officer, and the appeal was allowed on 06.08.1990. Against that, the plaintiff filed an appeal before the District Revenue Officer and it was dismissed on 21.10.1991. Then only, to the properties of the Pillaiar Nadar, Joint patta was issued.
(ii) The story putforth by the plaintiff that the legal heirs of the Pillaiyar Nadar enjoyed their separate shares and some of them sold their respective shares are denied as false. The properties of Pillaiyar Nadar were not partitioned, as it is evident from the order of the District Revenue Officer, dated 21.10.1991. The averment made in the plaint that the father http://www.judis.nic.in 6 of the plaintiff and father of the 1st defendant were not allotted any share in S.No.187/4, is denied as false.
(iii) The averment that southern portion of 28.5 cents was sold to the father of the plaintiff by a sale deed is denied as false. The said sale is a created story. It will not bind the first defendant in getting his share. When the Government acquired land in S.No.187/4-b, the father of the defendant and his brothers were given with notice. It will disprove the case of the plaintiff. This defendant had a thatched shed in the plaint schedule property, for which B-Memo was given to this defendant and thereafter, as per 'B' Memo, penalty was paid by the defendant. At that time, the plaintiff did not objected the defendant's possession. So, the case of the plaintiff is hit by the Principle of Estoppel. Since the plaint schedule property is Government property, based on the possession, the defendant alone entitled to get patta.
(iv) The Advocate Commissioner visited the property during the year 1999 only. After the visit of Advocate Commissioner, the plaintiff encroached the plaint schedule property and therefore, the 1st defendant is entitled the relief of recovery of possession and damages. The thatched shed found in the plaint schedule property fell into ground 6 years back. The averments that the plaint schedule property along with 28.5 cents in S.No.187/4, had been in possession of the plaintiff is denied as false. http://www.judis.nic.in 7
(v) The plaint schedule property and some other properties were mortgaged by this defendant on 01.11.1995 to a person by name Samudram. This defendant filed a Suit against one Dhanuskodi for encroaching the plaint schedule property. So, the averment that the 2 nd defendant is not having any right in giving patta to the 1st defendant is denied as false. The plaint schedule property was encroached by the plaintiff prior to 1999. Hence, this defendant filed the Suit for declaration and recovery of possession through counter claim.
7. The averments made in the reply statement of the plaintiff are as follows:-
The written statement filed by the 1st defendant is not maintainable in law and facts. The averment that the plaintiff encroached the suit property is denied as false. Hence, the counterclaim has to be dismissed.
8. Based on the above pleadings, the learned Additional District Munsif, Srivilliputtur, had framed necessary issues and tried the Suit.
9. Before the trial Court, during the trial, the plaintiff examined himself as P.W.1, he examined 4 more witnesses as P.Ws.2 to 5 and marked 10 documents, as Exs.A1 to A10. On the side of the 1 st defendant, he examined himself as D.W.1 and marked 11 documents as Exs.B1 to B11. http://www.judis.nic.in 8 The report and plan filed by the Advocate Commissioner were marked as Exs.C1 and C2.
10. Having considered all the materials placed before him, the learned Additional District Munsif, Srivilliputtur, came to the conclusion that the plaintiff is entitled to the relief of declaration and injunction and finally allowed the suit.
11. In the appeal filed by the appellant / 1st defendant in A.S.No.70 of 2003, the learned Principal District Judge, Srivilliputtur, had observed that the suit schedule property is in possession and enjoyment of the plaintiff and thereby, dismissed the appeal, by confirming the Judgment and Decree passed by the trial Court.
12. While admitting the Second Appeal, this Court has formulated the following Substantial Questions of Law, for consideration:-
“1. Whether the Courts below are right in decreeing the suit of the plaintiff overlooking Ex.B5, the Section 5A notice issued in the Land Acquisition Proceedings recognising the appellant's possession and the plaintiff was not connected with the same in respect of the suit properties?
http://www.judis.nic.in 9
2. Whether the Courts below are right in granting a decree for permanent injunction overlooking recognition by the Government by issuing B Memo recognizing the possession of the appellant under Ex.B6?
3. Whether the Courts below are right in accepting Ex.A1 based on the presumption under Section 90 of the Evidence Act, overlooking the fact that it is a rebuttable presumption especially when it is seriously rebutted by the appellant?” Substantial Question of Law No.1:-
13. It is an admitted fact that S.No.187/4 and some other properties are originally owned by one Pillaiyar Nadar. The said Pillaiyar Nadar died 40 years before the date of filing the Suit. The deceased Pillaiyar Nadar is having 5 sons and one daughter. It is the case of the plaintiff that after the demise of Pillaiyar Nadar, the property owned by him was partitioned among his legal heirs. But, on the other hand, the case of the defendant is that partition was not effected. In the said circumstances, it is relevant to see Ex.A1, which is a sale deed, executed by one Sivanandi Nadar, who is also the son of Pillaiyar Nadar, in favour of the father of the plaintiff Ramasamy Nadar. The said document was executed and registered on 08.11.1952.
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14. Now, on going through the recitals of the said document, it is mentioned that after the demise of Pillaiyar Nadar, his properties were partitioned among his heirs by way of oral partition. Under the said circumstances only, the said Sivanandi Nadar allotted with the property in S.F.No.187/4, to the extent of 28.5 cents. Therefore, the plea of the plaintiff that partition was effected among the legal heirs of the Pillaiyar Nadar was proved through Ex.A1, sale deed.
15. It is an undisputed fact that the suit schedule property, bearing old S.No.231/8, RS.No.410/1. Further, the said property is situated, adjoined to S.No.187/4, which was purchased by the father of the plaintiff. Ever since from the date of purchase, the family of the plaintiff cultivated the suit schedule property along with S.No.187/4. According to the plaintiff, the suit schedule property is Gramanatham. Since the said property was enjoyed by the family of the plaintiff from the year 1952, the 2nd defendant is not having any right to issue patta in favour of others. Believing the contents of the report filed by the Advocate Commissioner, the trial Court and the first appellate Court decreed the suit, as prayed for.
16. In respect to the substantial question of law arised in this appeal, the learned counsel appearing for the appellant / 1st defendant would contend that the document marked on the side of the defendant as Ex.B5, http://www.judis.nic.in 11 was the Notice issued under Section 5(A) of Land Acquisition Act, by the Revenue Authorities, the same will prove the possession and enjoyment of the suit schedule property is with the appellant. But, the Courts below, without seeing the contents of the said document, has held that the said document is not connected with the suit schedule property. Further, he added that the said finding needs interference.
17. Now, on going through the documents exhibited on the side of the defendant, the Notice under Section 5(A) of Land Acquisition Act, dated 23.08.1959 was marked as Ex.B5. Further, the B-Memo issued in favour of the 1st defendant has been marked as Ex.B6. More than that, the patta issued in favour of the 1st defendant was marked as Ex.B7. Now, on going through Ex.B5, the said Notice was issued to the Pillaiyar Nadar and to his sons. In the said Notice, it was informed to the said Pillaiyar Nadar and to his sons that the Government is going to acquire 9 cents from the S.No. 187/4. Since the said Notice is pertained to S.No.187/4, we cannot come to the conclusion that the suit schedule property is in the hands of predecessor of the defendant.
18. In fact, Ex.A1, Sale Deed was executed in the year 1952, on the other hand, Ex.B5 i.e., 5A Notice was issued only in the year of 1958. Only because of the reason that 5A Notice was issued subsequent to the sale happened in the year of 1952, the name of the vendor, who is Sivanandi http://www.judis.nic.in 12 Nadar, was not included in the 5A Notification. So, the non-inclusion of Sivanandi Nadar in the 5A Notice confirms and alternatively indicates that he is not having any right in the property i.e., S.No.187/4. However, Ex.B5 pertains to S.F.No.187/4B, the Notice issued under the Land Acquisition Act, is no way affect the case of the plaintiff. In the said circumstances, we cannot come to a conclusion that the plaintiff is not connected with the said Notice. On the other hand, before granting decree in favour of the plaintiff, the Courts below overlooked B-Memo and the patta issued in favour of the 1st defendant. It is a clear case of the plaintiff that earlier, the patta of the suit property stands in the name of the 1st defendant.
19. Now, on going through Exs.B1 to B3, for S.F.No.187/4, joint patta was issued in earlier and subsequently, changed in favour of the 1 st defendant. In this regard, the revision filed by the plaintiff was dismissed. Against the said order, the plaintiff had not chosen to file any writ petition before this Court. In fact, the said order was passed on 21.10.1991. On going through the same, it would reveal that the patta stands in the name of one Panneer Selvam. Further, in the said land, there was a thatched shed in a dilapidated condition.
20. Moreover, as per Ex.B11, dated 01.11.1995, the 1st defendant, mortgaged the said property to one Samuthram and availed a loan of Rs. 5,000/-. It shows that the suit schedule property is in the possession of the http://www.judis.nic.in 13 1st defendant, from the date on which the patta was issued in his favour. Actually, the said patta was issued on 06.05.1994. There is no evidence from the plaintiff on the allegation that the 1st defendant is not in the possession of the suit schedule property. It is evident from the report filed by the Advocate Commissioner that Survey Nos.187 and 410 /1 are adjacent lands. Both the lands are situated without any demarcation.
21. In the said circumstances, in order to claim the right over the suit schedule property, the report filed by the Advocate Commissioner alone is in favour of the plaintiff. There is no evidence from the side of the plaintiff for proving that the patta to the suit property stands in the name of the 1st defendant was cancelled by the competent authority, eventhough the civil Court is having the right to decide the rights of the parties. The plaintiff herein had not challenged the patta issued in favour of the defendant.
22. Moreover, in the year of 1996, the 1st defendant filed a Suit before the learned District Munsif, Srivilliputtur in O.S.No.637 of 1996, to declare that he is the absolute owner of the suit schedule property. Further, he filed an application for the relief of injunction in I.A.No.1910 of 1996 in the above said suit and the same was ordered in favour of the 1st defendant. Thus, on culling out the entire documents, it appears that, as of now, the patta pertaining to the suit schedule property, issued in favour of the 1st defendant has not been changed.
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23. Based on the above said patta, Ex.B7, the 1st defendant availed loan. Moreover, he filed the suit in the year 1996 itself for the relief of declaration that he is the absolute owner of the said property. The order passed by the District Revenue Officer only in respect of the land belonging to the plaintiff and his family, however the same is not for the suit schedule property. In the said circumstances, the documents relied on either side will prove that the 1st defendant is having better title than the plaintiff.
24. The report submitted by the Advocate Commissioner alone is not sufficient to hold that the plaintiff is in possession of the suit schedule property. In fact, the report submitted by the Advocate Commissioner is not the document for recognizing the possession. But, the Courts below, without seeing the said factual aspects, allowed the suit in favour of the plaintiff and dismissed the counter claim filed by the 1st defendant. In this case, the documents produced on the side of the 1st defendant will prove his title and possession of the suit schedule property. Those documents are material in nature. Thus, the findings arrived at by the Courts below need interference.
25. In fine, the Second Appeal is allowed. The Judgment and Decree, passed in A.S.No.70 of 2003, dated 07.01.2008, on the file of the Principal District Court, Srivilliputtur, confirming the Judgment and Decree passed in http://www.judis.nic.in 15 O.S.No.74 of 1999, dated 21.01.2003, on the file of the Additional District Munsif Court, Srivilliputtur, are set aside and consequently, the suit is dismissed. However, there shall be no order as to costs.
22.03.2019
Index : Yes / No
Internet : Yes / No
MPK
To
1.The Principal District Munsif,
Srivilliputtur.
2.The Additional District Munsif,
Srivilliputtur.
3.The Record Clerk
Vernacular Section
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
16
R.PONGIAPPAN, J.
MPK
Pre-Delivery Judgment made in
S.A.(MD)No.163 of 2009
22.03.2019
http://www.judis.nic.in