Madras High Court
Kr.Jayavarthini vs V.Murugesan .. 1St on 30 August, 2019
Author: R.Pongiappan
Bench: R.Pongiappan
S.A.No.1145 of 2000
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Judgment Reserved on : 17.08.2019
Judgment Pronounced on : 30.08.2019
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
S.A.No.1145 of 2000
KR.Jayavarthini .. Appellant/Appellant/ 1st Defendant
Vs.
1.V.Murugesan .. 1st Respondent/1st Respondent /
Plaintiff
2. State of Tamil Nadu,
represented by the District Collector,
Sivagangai District. .. 2nd Respondent / 2nd Respondent/
2nd Defendant
PRAYER: Appeal filed under Section 100 of Civil Procedure Code,
against the Judgment and Decree, dated 31.01.2000, passed in A.S.No.28
of 1999, on the file of the Sub Court, Devakottai, confirming the
Judgment and Decree, dated 05.01.1999, passed in O.S.No.61 of 1998, on
the file of the District Munsif Court, Devakottai.
1/25
http://www.judis.nic.in
S.A.No.1145 of 2000
For Appellant : Mr.J.John
For Respondents : Mr.Venkataraman
Senior Counsel
for Mr.C.Jeganathan, M/s.Veera Associates
for R1
R2-Dismissed vide Court order, dated 05.04.2011.
JUDGMENT
Aggrieved over the concurrent findings made in O.S.No.61 of 1998, on the file of the learned District Munsif, Devakottai and in A.S.No.28 of 1999, on the file of the learned Subordinate Judge, Devakottai, the appellant herein, who is the first defendant / appellant in the above referred matters, preferred this second appeal.
2. Before the trial Court, the first respondent herein filed a suit as against the appellant as well as the second respondent and seeking the relief of declaration declaring that the suit property is the absolute property of the plaintiff. Consequentially, he prayed the relief of injunction restraining the first defendant and his men from in any way interfering with his peaceful possession and enjoyment in the suit property and for costs.
2/25 http://www.judis.nic.in S.A.No.1145 of 2000
3. By Judgment and Decree, dated 05.01.1999, the learned District Munsif, Devakottai, had allowed the suit and granted decree in favour of the plaintiff. Aggrieved over the said findings, the appellant herein preferred an appeal in A.S.No.28 of 1999 on the file of the learned Subordinate Judge, Devakottai.
4. By Judgment and Decree, dated 31.01.2000, the learned Subordinate Judge, Devakottai, confirmed the findings arrived at by the learned District Munsif, Devakottai and dismissed the appeal. Feeling aggrieved over the same, the first defendant is before this Court with the present second appeal.
5. For the sake of convenience the parties are referred to as, as described before the Court below.
6. The averments made in the plaint in brief, are as follows:
The plaintiff's father PR.VR.Veerappa Chettiar enjoying the suit property along with the natham portion situated in the southern side of the suit property. In the suit property he had cultivated punja crops and grown vegetables. Due to the paucity of rain, he did not continue the agricultural operations. Hence, he had fenced the suit property along 3/25 http://www.judis.nic.in S.A.No.1145 of 2000 with the natham portion with stone pillars on the east, west and north and on the south, there is a compound wall and reared, Veli Karuvai and Vela trees. Initially, one Kunnakkudiyan was entrusted with the management of the said property. When the plaintiff was 6 years old, his father Veerappa Chettiar died in the year 1960, due to which the plaintiff was brought up by his mother Sinthamani Achi at Palani, where he had his schooling and higher education. His mother was died in the year 1986. The said Kunnakudiyan, who was in management had also passed away leaving his son Nelliyan continued the management of the suit property. There was a tiled waram in the said property put up by the plaintiff's father and the same had fallen and the remnants which are still visible. The plaintiff has put up a thatched shed and there is a gate on the east of the said property is under the lock and key of the plaintiff. Except the plaintiff, nobody else has any right and title over the suit property. The plaintiff's father and latter the plaintiff have been in possession and enjoyment of the suit property for decades and decades openly without any interruption. The plaintiff had acquired title by prescription also. In the patta instead of mentioning as punja land, it was wrongly shown as Manai and as Sarkar Tharisu. The plaintiff's father continued to be the owner thereof and to be in possession thereof, notwithstanding the said wrong classification. The plaintiff came to know that some fraudulent entries had made in the revenue records in favour of the first defendant, 4/25 http://www.judis.nic.in S.A.No.1145 of 2000 who has no iota of title or possession over the said property. The plaintiff has reasons to believe that the first defendant, who is the affluent and having political background should have influenced the officials for creating the wrong entries. Hence the suit.
7. The averments made in the written statement filed by the first defendant are as follows:
It is not correct to say that the plaintiff's father or the plaintiff are in possession and enjoyment of the suit property. The compound wall found in the southern side of the suit property was not constructed either by the plaintiff or by his father. At any point of time, the said Kunnakudiyan was not administered the suit schedule property. In fact, the suit schedule property is the absolute property of the Government. On 31.05.1994, vide assignment order No.580/1403 the Special Tahsildar Karaikudi assigned the suit property in favour of the first defendant.
From the date of assignment, the first defendant alone is in the possession and enjoyment of the suit property by paying the dues to the Government. The details of assignment was entered in the revenue records. Before the assignment, since the suit property is the Government poramboke various persons enjoying the same property. After the assignment, they are all evicted from the suit property. On 31.05.1997, 5/25 http://www.judis.nic.in S.A.No.1145 of 2000 when the Power-Agent of the first defendant went to remove the Veli Karuvai and Vela trees found in the suit property, the plaintiff objected the same. Hence, on 02.06.1997, the Power-Agent of the first defendant lodged a complaint before the Kunnakudi Police Station and the same was registered in Srl.No.51/97 and the police warned the plaintiff. Thereafter, the plaintiff forcibly entered into the suit property and put up a small thatched shed. Only to show that the suit property is in his possession, the suit has been filed. Further, in respect to the patta issued in favour of the first defendant, no appeal was filed on behalf of the plaintiff. Hence, the suit filed by the plaintiff is liable to be dismissed.
8. The averments made in the written statement filed by the second defendant are as follows:
The plaintiff is having the duty to prove the allegation levelled against the second defendant. It is not correct to say that the revenue officials falsely entered the name of the first defendant in the revenue records. In fact, he has not sent any notice to the second defendant under Section 8(2) of CPC.
9. Based on the above pleadings, the learned District Munsif, Devakottai framed necessary issues and tried the suit . 6/25 http://www.judis.nic.in S.A.No.1145 of 2000
10. Before the trial Court, on the side of the plaintiff, 4 witnesses are examined as PW.1 to PW.4 and 15 documents are marked as Ex.A1 to Ex.A15. On the side of the defendants, four witnesses are examined as DW.1 to DW.4 and 10 documents are marked as Ex.B1 to Ex.B10. Apart from those exhibits, the report and plan filed by the Advocate Commissioner is marked as Ex.C1 and Ex.C2.
11. Having considered all the materials placed before him, the learned District Munsif, Devakottai, allowed the suit and granted a decree in favour of the plaintiff as prayed for.
12. In the first appeal, the said findings of the learned District Munsif, Devakottai, was confirmed by the learned Subordinate Judge, Devakottai. Against the said findings, the first defendant is before this Court with this second appeal.
13. While at the time of admitting this second appeal, this Court has formulated the following Substantial Questions of Law:
“1. Whether the Courts below are right in granting the relief to the first respondent on the basis of Ex.A1- R.S.R. extract only, when the suit property has been 7/25 http://www.judis.nic.in S.A.No.1145 of 2000 classified as Poramboke land and assigned in favour of the appellant by the Special Tahsildar proceedings, dated 31.05.1994?
2. Whether the suit filed by the first respondent is maintainable in law, when the original classification made by the Government relating to the suit property during settlement proceedings has not been challenged in a manner known to law and when the appellant has also not made any claim for patta before the settlement authorities?
3. Whether the Courts below are right in holding that the assignment of the suit property made in favour of the appellant is not correct, when the first respondent/plaintiff has not challenged the assignment order made under Ex.B1 in a manner known to law?
4. Whether the Courts below are right in relying upon the letters Exs.A4 and A5 documents, which are wholly inadmissible in evidence, to grant the relief in favour of the first respondent?
8/25
http://www.judis.nic.in S.A.No.1145 of 2000
5. Whether the judgments and decrees of the Courts below are sustainable in law when the first respondent has failed to show his possession or title of the suit property prior to the change of classification or the assignment order made under Ex.B1 in favour of the appellant?
6. Whether the Courts below are right in not considering the validity of Exs.B1 and B2 issued in favour of the appellant in accordance with law when the presumption as to the official acts is correct in terms of Section 114 of the Evidence Act and when the first respondent has neither pleaded nor let in any rebuttal evidence to dislodge the said presumption?”
14. Substantial Question of Law No.1:
The specific case of the plaintiff is that in earlier one V.R.Veerappa Chettiar, who is the father of the plaintiff is the absolute owner to the suit property. The said V.R.Veerappa Chettiar enjoying the suit property along with the property classified as natham poramboke 9/25 http://www.judis.nic.in S.A.No.1145 of 2000 situated on the southern side of the suit property. Due to drought, the father of the plaintiff gave up the agricultural activities in the suit property. However, he put up a stone pillar on the east, west and north side of the suit property and on the south of the suit property, he constructed the compound wall. Further, he planted country trees and given the same to one Kunnakudiyan for administration. Since the plaintiff is aged about 6 years at the time of the death of his father, he went away along with his mother to Palani and thereafter the suit property was administered by the son of the said Kunnakudiyan. Recently before filing the suit, the plaintiff came to know that the first defendant was assigned with the suit property in the year 1994. It is against the Board Standing Orders as of now, the suit property is still in the possession of the plaintiff.
15. On the other hand, it is the case of the defendant that in the year of 1994, the Government Revenue Authorities issued assignment proceedings in favour of the first defendant and handed over the possession of the suit property to the first defendant. Further before giving the assignment in favour of the first defendant, the suit land was classified as natham poramboke, thereby the plaintiff is not at all claim the title of the suit property.
10/25 http://www.judis.nic.in S.A.No.1145 of 2000
16. In order to prove his case, on the side of the plaintiff, when at the time of examining the plaintiff as PW.1, he has produced a copy of the R.S.R extract stands in the name of his father as Ex.A1. Apart from the said document, he has produced the copy of the photographs pertains to the suit property as Ex.A2 to Ex.A12. The trial Court as well as the first Appellate Court have held as Ex.A1 is the document to show that the father of the plaintiff is the absolute owner to the suit property. By holding as above, both the Courts granted decree of injunction in favour of the plaintiff.
17. In this regard, the learned counsel appearing for the appellant would contend that except Ex.A1-RSR extract to prove his possession, the plaintiff has not produced any relevant documents before the trial Court. So, without seeing any document to prove the possession, granting decree of injunction in favour of the plaintiff is nothing but a grave error committed by the Courts below.
18. Now on considering the said submission with the factual aspects found in the suit, it is true except Ex.A1, no other documents were produced on the side of the plaintiff to prove his possession. In this occasion, in this case, it is relevant to see the evidence given by DW.2. In 11/25 http://www.judis.nic.in S.A.No.1145 of 2000 fact DW.2 is the Village Administrative Officer working under the control of the second defendant. He has stated in his cross examination as the assignment order was issued in favour of the first defendant only on 15.05.1997. He has further stated as Ex.A1 relates to the suit property, only after the settlement, the said property was converted as Sarkar Punjai. He has further added that before the conversion, patta has been issued in the name of one Veerappa Chettiar, son of Periyakaruppan. He has specifically stated during the period of settlement only the said Veerappa Chettiar is the patta holder.
19. So, the evidence given by DW.2 in respect to Ex.A1 clearly establishes the fact that only at the time of settlement, in 1954, the suit property was converted as natham poramboke and otherwise before the settlement, the said property was in the classification of Manai and also was in the name of the plaintiff's father. Now on go through the entire evidence let in on the side of the defendants will prove that before the conversion, no notice was issued either to the plaintiff or to his father in respect to the classification. The Courts below only by relying the evidence of DW.2 hold that the property is the absolute property of the plaintiff's father. So, relying the Ex.A1 for proving the title coupled with the evidence given by DW.2 is more than necessary to establish the fact that the plaintiff's father is the absolute owner of the suit property. Thus, 12/25 http://www.judis.nic.in S.A.No.1145 of 2000 Substantial Question of Law No.1 is answered as above.
20. Substantial Question of Law No.2:
It is true after the settlement proceedings, particularly, after altering the classification by the Government, the same has not been challenged by the plaintiff. In this regard, the learned counsel appearing for the appellant would contend that without challenging the order passed by the Government in respect to the classification of the suit property, filing a suit for the relief of declaration and injunction cannot be maintainable. It is true the plaintiff has not initiated any proceedings before the revenue authorities in respect to the changing of classification. However, it is the contention raised by the learned counsel appearing for the respondents that the title to the suit property has to be decided only by the Civil Court and on that score alone, the plaintiff filed a suit before the learned District Munsif for the relief as already stated. At this juncture, the learned counsel appearing for the appellant would rely on the Judgment of this Court reported in 2018(2) LW 471 and the Judgement of this Court reported in 2017 (2) LW 128. In both the Judgments relied on by the learned counsel appearing for the appellant, it was decided that the revenue records like patta and kist receipts will not convey or convert any title in favour of a person, who hold them without 13/25 http://www.judis.nic.in S.A.No.1145 of 2000 title. In fact, the said preposition is already settled by our Hon'ble Apex Court also. Now, the question to be decided in the appeal is, whether title has to be decided by the revenue authorities or not?. According to the argument advanced by the learned counsel for the appellant, since the order passed by the Government authorities was not challenged by the plaintiff and challenging the same before the Civil Court is not maintainable.
21. In this regard, it is necessary to see the Judgment rendered by the Hon'ble Division Bench of this Court reported in 2011(5) CTC 94, in the case of Vishwas Foorwear Company Ltd., and others vs. The District Collector, Kancheepuram, in which this Court has held in paragraph No.17 as follows:
“17. The question as to whether the Revenue Authorities be it the Tahsildar exercising power under Section 3 or under Section 5 or under Section 10 or the Revenue Divisional Officer exercising power under Section 12, can consider only a prima facie case as to the entitlement of a person or persons for issuance of Patta. In the event such officers encounter a dispute which could be resolved only by a competent Civil 14/25 http://www.judis.nic.in S.A.No.1145 of 2000 court, they would not have jurisdiction to enter into such Civil dispute for adjudication. To this extent, the judgments in Kuppuswami Nainar's case followed in Chockkapan's case may be relied upon. The learned Judge in the order under Appeal has also relied upon those judgments and we are in agreement with the same.”
22. Further in the Judgment of this Court in the case of C.Sabesan Chettiar (deceased) and others vs. The District Revenue Officer, Coimbatore District, Coimbatore and others., reported in 2011(5) CTC 241, wherein in paragraph No.13, the Hon'ble Division Bench of this Court has held as follows:
“13. ............... in Civil Law, when there is a dispute between the rival parties touching upon the title to the property, the competent forum would be only the Civil Court. In the instant case, the First respondent/District Revenue Officer had not followed such a procedure. However, he had chosen to decide the title in respect of the said property mainly relying upon the reports submitted by the Second respondent/Revenue Divisional Officer and the Third respondent/Tahsildar.” 15/25 http://www.judis.nic.in S.A.No.1145 of 2000
23. Now applying the said principles with the present second appeal, as per the evidence of DW.2, who is the responsible officer in the Revenue Department, before the classification, the title of the suit property has been vested with the plaintiff's father Veerappa Chettiar. He has specifically admitted that previous to the classification, the suit property was classified as Manai, that means, the person whose name was found in the SLR Register is the absolute owner to the suit property. Only because of the said reason that the entries were changed by the Revenue Authorities without issuing any notice to the plaintiff, only in the said circumstances, he has filed the suit. So, it cannot be said that the classification order passed by the Revenue Authorities should be challenged only before the Revenue Authorities. Since the Revenue Authorities has not produced any relevant document to show that notice was issued to the plaintiff's father before classification, it cannot be hold that the classification was completed by the Revenue Authorities only in accordance with law. So, filing the suit by the plaintiff before the Civil forum is maintainable. Thus, Substantial Question of Law No.2 is answered as above.
16/25 http://www.judis.nic.in S.A.No.1145 of 2000
24. Substantial Question of Law No.3:
Before the trial Court, the assignment order issued in favour of the appellant/first defendant was marked as Ex.B1. Admittedly, the same has not been challenged by the plaintiff before the competent forum. The learned counsel appearing for the appellant would contend that without challenging the assignment order passed by the Revenue Authorities, granting the decree of declaration and injunction in favour of the plaintiff is absolutely not within the legal frame work. So, granting decree in favour of the plaintiff is liable to be dismissed.
25. Now considering the arguments advanced by the learned counsel for the appellant, it is true, as already referred, the assignment order issued in favour of the first defendant was not challenged by the plaintiff. In otherwise, it is also admitted by the Government Authorities that the said assignment order was issued in favour of the first defendant only in the year of 1994. In this occasion, it is relevant to see that the plaintiff has filed a suit claiming that the suit property is the absolute property of his father. So, for availing the said relief, he has to prove the title and possession of the suit property stands in his name. In the said circumstances, challenging the assignment order is not necessary for the plaintiff for proving his claim. So, only for the reason that the assignment 17/25 http://www.judis.nic.in S.A.No.1145 of 2000 order stands in the name of the first defendant, the same has not been challenged by the plaintiff. Hence, it cannot be said that the suit is not maintainable. The Courts below have correctly conclude the same in a right manner and decided in favour of the plaintiff. Therefore, Substantial Question of Law No.3 is answered as above.
26. Substantial Question of Law No.4:
Before the trial Court, the letter sent by one Nadimuthu, who is the Village Administrative Officer was exhibited as Ex.A14 and Ex.A15 through PW.1. In this regard, the contention raised by the defendant's side counsel is that since the said letters were not marked through the author of the said letters, it cannot be treated as a relevant document for deciding the appeal. Without considering the same with perspective manner, by accepting the contents of the said letters, both the Courts below concurred the issue in favour of the plaintiff. Accordingly, the Courts below have made a grave error.
27. Upon considering the arguments advanced by the learned counsel for the appellant, it is true that the said letters, written by one Nadimuthu to the plaintiff is not marked through the author of the said documents. However, since the same was addressed to the plaintiff and 18/25 http://www.judis.nic.in S.A.No.1145 of 2000 marked through the addressee, the same cannot be faulted the case of the plaintiff. But, in this case, an interesting point is that the author of the said letters was examined before the trial Court as DW.4, on the side of the appellant/first defendant. During the time of recording the evidence from the said Nadimuthu, he has stated in his chief examination as the said letters were not written by him. However, in his cross examination, he has admitted that the said letters were written by him and sent to the plaintiff. He has specifically stated that the said letters are in respect to the suit property.
28. Now on go through the contents of the said letters, it reveal the fact that he has stated initially as the suit properties was classified as Manai, he has further stated that only after the classification, the said property was converted as natham poramboke and not before the settlement period. He has specifically stated before the trial Court as only by mistake in Ex.A1, it was mentioned as Tharisu instead of Punjai. Further, in support of the plaintiff's case, he has stated at the relevant point of time, a stone pillar was erected in the suit property only for the reason that the suit property fenced with stone pillar. It was presumed that the suit property was enjoyed by the plaintiff's father. So, the said evidence of DW.4 is also in favour of the evidence given by DW.2, who is the Village Administrative Officer. Thereby on culling out the entire 19/25 http://www.judis.nic.in S.A.No.1145 of 2000 evidence given by DW.2 and DW.4 will elicit the fact that only after 1954, classification of the suit property was changed in favour of the Government and then only the assignment order was issued.
29. Since DW.4, who is the author of Ex.A14 and Ex.A15 admitted the contents of the said letters is true one, so it is necessary to hold that during the relevant time, when the letters (Ex.A14 and Ex.A15) were written by the VAO(DW.4), the suit property was in the possession of the plaintiff's father. So, relying upon the said letters, the decision rendered by the Courts below are absolutely correct and no interference is necessary in respect to the findings arrived at by the Courts below.
30. Substantial Question of Law No.5:
It is true for proving the possession, the plaintiff has not produced any document except Ex.A1. In this occasion, it is necessary to see the case of the plaintiff as the plaintiff's father Veerappa Chettiar was died, when at the time the plaintiff was aged about 6 years. After the demise of his father, the plaintiff went to Palani and educated by his mother at Palani. The evidence given by PW.2 is enough to accept the contention of the plaintiff that after leaving the village by plaintiff, PW.2 has only administered the suit property.
20/25 http://www.judis.nic.in S.A.No.1145 of 2000
31. At the time of giving evidence, DW.4 has stated that the suit property is the vacant land. More than that in the report filed by the Advocate Commissioner, he has specifically stated that in the suit property, only the thatched shed found in a dilapidated condition, so, it can be presumed that the suit property is a vacant land. Since the suit property is being the vacant land, it is not necessary for the plaintiff to prove his possession based on the principle 'title follows possession'. Hence, Substantial Question of Law No.5 is answered as above.
32. Substantial Question of Law No.6:
Before the trial Court on the side of the first defendant, the assignment order issued in his favour was marked as Ex.B1. Further, the copy of adangal in respect to Survey No.223/6 stands in the name of the first defendant, dated 19.05.1997 was marked as Ex.B2. In this regard, the learned counsel for the appellant/first defendant would contend that under Section 114 of the Indian Evidence Act, 1872, it should be presumed that Ex.B1 and Ex.B2 are the relevant documents to show the fact that the title and possession of the suit property is with the first defendant. Now, considering the said submission with the evidence let in by either side, DW.2, who is the Village Administrative Officer has clearly 21/25 http://www.judis.nic.in S.A.No.1145 of 2000 stated that as per the condition laid in the assignment order, the assigned property should be cultivated minimum for a period of three years. He has specifically stated that the plaintiff was residing in Chennai and doing business. So, the said evidence alone is sufficient to held that the suit property was not managed and administered by the first defendant. The said circumstances is enough to believe as after availing the assignment order, he has not complied the conditions imposed upon him. The said act of the first defendant clearly shows that the first defendant has not acted in accordance with the conditions stipulated in the assignment order. However, as already stated, since the suit is filed by the plaintiff, the burden of proof is heavily upon him to prove his case.
33. Therefore, consideration of the validity of Ex.B1 and Ex.B2 is not at all necessary for deciding the present second appeal. Thus, Substantial Question of Law No.6 is answered as above.
34. For the foregoing reasons, I am of the opinion that the findings arrived at by the Courts below is absolutely within the purview of law and there is no illegality or irregularity in the Judgments rendered by the Courts below. Hence, there is no need to interfere with the findings arrived at by the Courts below.
22/25 http://www.judis.nic.in S.A.No.1145 of 2000
35. In fine, this Second Appeal stands dismissed. The Judgment and Decree, dated 31.01.2000, passed in A.S.No.28 of 1999, on the file of the Sub Court, Devakottai, confirming the Judgment and Decree, dated 05.01.1999, passed in O.S.No.61 of 1998, on the file of the District Munsif Court, Devakottai is hereby confirmed. No costs.
30.08.2019 Index : Yes/No Internet: Yes/No PJL To
1. The Subordinate Judge, Devakottai.
2. The District Munsif, Devakottai.
3. The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
23/25 http://www.judis.nic.in S.A.No.1145 of 2000 24/25 http://www.judis.nic.in S.A.No.1145 of 2000 R.PONGIAPPAN, J.
PJL Pre-delivery Judgment made in S.A.No.1145 of 2000 30.08.2019 25/25 http://www.judis.nic.in