Madras High Court
Kulandai Therasammal vs Maria Rathinam on 31 October, 2012
Author: R.Karuppiah
Bench: R.Karuppiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 31/10/2012 CORAM THE HONOURABLE MR.JUSTICE R.KARUPPIAH S.A.No.1358 of 1998 Kulandai Therasammal ... Appellant/Plaintiff Vs. 1.Maria Rathinam 2.Francis 3.Charles ... Respondents/Defendants PRAYER Second Appeal is filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 19.08.1997 made in A.S.No.162 of 1996 on the file of the Court of District Judge of Sivagangai modifying the judgment and decree of the District Munsif Court of Sivagangai in O.S.No.268 of 1994 dated 26.07.1996. !For Appellant ... Mr.V.Sitharanjandass ^For Respondents... Mr.S.Parthasarathy for Mr.S.Srinivasaraghavan :JUDGMENT
This second appeal is directed against the decree and judgment dated 19.08.1997 made in A.S.No.162 of 1996 on the file of the District Court, Sivagangai modifying the decree and judgment of the District Munsif Court at Sivagangai in O.S.No.268 of 1994 dated 26.07.1996.
2. For the sake of convenience, the parties averred in the plaint is referred in the appeal.
3. The appellant/plaintiff has filed a suit for declaration, injunction and also claiming a sum of Rs.2,100/- as damages for cutting the balm trees. According to the appellant/plaintiff, the suit property viz., Survey No.366/9 to the extent of 1.85.0 Ars, in which 30 balm trees also belonged to the plaintiff as per sale deed dated 29.04.1955 and patta was granted in his name and the plaintiff has paid kist and enjoying the suit property. It is further stated that at the time of Updating Register scheme joint patta was given in the name of plaintiff and the first defendant. As against the proceedings, the plaintiff has filed an appeal before the Tahsildar, Sivagangai in B-9-15.199/86 and it is pending and taking advantage of the above said joint patta, the first respondent/1st defendant cut 21 balm trees worth about Rs.2,100/- and therefore, the appellant/plaintiff has filed the suit for the above said reliefs.
4. The respondents/defendants has contested the above said suit by stating that the plaintiff has purchased only 3 'thaku' i.e., approximately 3 acres but the extent of the suit property stated as 4 acres 56 cents and the first defendant is entitled to the half share in the suit property as ancestral property and at the time of survey and settlement itself, joint patta was granted in the name of the first defendant and plaintiff as Patta No.75 and in the year 1974 joint patta was granted in favour of both the plaintiff and the first defendant and after that in the year 1985 at the time of Updating Register scheme, Joint Patta No.743 was issued in the name of both the first defendant and the plaintiff. According to the defendants, the suit property is joint possession of the plaintiff and the first defendant and therefore, the first defendant and his legal heirs i.e., second and third defendants are enjoying the suit property for long period and got prescribed title over the suit property by adverse possession and therefore, the plaintiff is not entitled to the entire suit property.
5. From the above said pleadings, the learned trial Judge has framed five issues and on considering the oral and documentary evidence on either side, finally the trial judge has passed the decree and judgment, in which he declared that the plaintiff is entitled to only undivided half share in the suit property and dismissed the prayer for permanent injunction and damages. Aggrieved over the above said judgment and decree of the trial Court, the plaintiff has filed the first appeal and the learned first appellate Judge has partly allowed the appeal and held that the portion viz., 2 acres 39 cents out of 4.56 cents, which was marked as A, B, C, J, K and L, in Ex.C.2, Commissioner Plan, the plaintiff is entitled to and therefore granted declaration of title for the above said portion and dismissed all other reliefs sought for in the suit. Aggrieved over the above said finding of the Courts below, the appellant/plaintiff has preferred this second appeal. Respondents/defendants have not filed any appeal against the decree and judgment of first appellate Court.
6. This Court has admitted the second appeal and framed the following substantial questions of law for consideration:
"(i) Whether the legal presumption that possession has also been with the appellant be dislodged and discarded merely on the basis of revenue records created since 1971, when the title has been with the appellant since 1955 by virtue of a sale deed?
(ii) Whether it can be decided that there has been existing legal relationship of joint possession between the appellant and the respondents eversince the execution of the sale deed executed in 1955, while the respondents do not have any title deeds and documents to prove their alleged long and continued possession?
(iii) Can the sale deed be questioned as to whether the vendor had title to transfer the entire suit land when the sale deed is more than 30 years old disregarding the presumption available under Section 90 of the Indian Evidence Act?"
7. Learned counsel for the appellant/plaintiff mainly contended that he has produced Ex.A1 sale deed, dated 29.04.1955 to prove the tile of the plaintiff in respect of the suit property, but both the Courts below held that the plaintiff is not entitled to the entire suit property on the basis of Ex.A1 sale deed and the learned trial Judge has granted decree of declaration of only undivided half share i.e., 2 acres 28 cents in the suit property and the first appellate Court has increased few cents on the basis of Commissioner Report and plan and granted 2 acres 39 cents out of 4 acres 56 cents and therefore, prayed for setting aside the above said decree and judgments passed by both the Courts below and granted decree for entire extend of 4 acres 56 cents.
8. Per contra, the learned counsel appearing for the respondents would submit that the appellant/plaintiff is not at all produced any document, except Ex.A1 sale deed, to prove that the vendor of the plaintiff is entitled to the entire suit property viz., 4 acres 56 cents and further contended that in Ex.A1 sale deed itself it is only stated as "about 3 'thaku' i.e., approximately 3 acres of land", but the total extend of the suit property stated in the plaint as "4 acres 56 cents and therefore, the plaintiff is not entitled to the entire extend of the suit property. It is further submitted that in the plaint as if U.D.R.Patta alone granted in favour of both the plaintiff and first defendant, but joint Patta i.e., Ex.B1, has been issued in the year 1971 in favour of the first defendant and plaintiff, in respect of Survey No.75 and Ex.B2, Joint Patta Pass Book was also issued in the year 1974 in favour of the plaintiff and the first defendant in respect of survey No.366/9 and the first defendant is entitled to only half share in the suit property and the first defendant also paid kist in respect of the said property for several years and therefore, the learned trial judge has rightly declared that the plaintiff is entitled to half share and the first defendant is entitled to the half share, but the first appellate Court has wrongly granted 2 acres 39 cents out of total extend of 4 acres 56 cents and therefore, the plaintiff is not entitled to the entire suit property.
9. Admittedly, only on the basis of Ex.A1 sale deed, the suit has been filed by the appellant/plaintiff. A perusal of Ex.A1 sale deed, in which it is stated about the extend as "3 'thaku' i.e., approximately 3 acres".
10. The appellant/plaintiff has not at all produced any document to prove that his alleged vendor of Ex.A1 sale deed viz. Jebamalai Konar was entitled to entire suit property viz., 4 acres 56 cents. In the above said document, it is stated as if patta was granted in the name of the vendor viz., Jebamalai Konar. But the appellant has not produced the above said alleged patta issued in the name of the vendor viz., Jebamalai Konar. In Ex.A1 sale deed it is also stated that the patta was also in the custody of the "Proprietor". The appellant/plaintiff has not explained why the above said patta was not having the vendor of the plaintiff and having another person. From the above said averments made in the document itself reveal that the vendor of the appellant/plaintiff is not entitled to the entire extend of the suit property mentioned in the plaint and only entitled to the half share of the suit property as contended by the learned counsel for the respondents/defendants.
11. Admittedly, the appellant/plaintiff has not produced any patta for the entire suit property in the name of plaintiff or plaintiff's vendor. The other documents produced on the side of the plaintiff viz., Exs.A2, A3 and A5 are kist receipts, which were paid just before filing the suit. In the above said kist receipts also not specifically stated that the kist receipts were issued for the entire suit property. Further, the kist receipts paid only after Update Registering Scheme for patta No.743 and old Patta No.75. The plaintiff has produced Ex.A6 Updating Register patta, in which admittedly patta No.743 was issued in the name of both the plaintiff and the first defendant for the entire suit property. Therefore, as rightly contended by the learned counsel for the respondents/defendants that the plaintiff is not at all proved, by reliable oral and documentary evidence, that the entire extent of suit property is belonging to the plaintiff on the basis of Ex.A1, Sale deed.
12. Per contra as rightly contended by the learned counsel for the respondents/defendants that even before 1971 joint patta was granted in favour of both plaintiff and the first defendant and in the year 1973 patta pass book was also given in favour of first defendant and at the time of Updating Register scheme the patta has been granted in the name of both the plaintiff and the first defendant and also paid kist receipts in respect of the said property for several years from 1974 on words.
13. The learned counsel appearing for the appellant would contend that the patta is not a document of title and therefore, the respondents cannot claim any right over the property under the alleged patta issued in the survey settlement period and as well as the UDR Scheme and to substantiate the above said contentions, the learned counsel for the appellant has relied upon the following decisions:
(i) In Mohamed Ali, M.E.A. Vs. The District Revenue Officer reported in 2005 (4) CTC 9, a Division Bench of this High Court has held as follows:
"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."
(ii) In Kammavar Sangam Vs. Mani Janagarajan reported in 1999 (III) CTC 304, a learned Single Judge of this High Court has held as follows:
"When there is no evidence regarding plaintiff's predecessor had title of the property, it is for the plaintiff to prove, how he acquired the property after the death of Shanmuga Nadar, his grandfather. Reliance was only placed on Exs.A1 and A2 for the said purpose. Lower appellate Court also found that predecessor of defendant was owner of 2 acre and 50 cents in pymash No.350. I feel that reliance placed by Courts below on the patta is not correct."
(iii) In Srinivasan and 6 others Vs. Sri Madhyarjuneswaraswami, Pattavaithalai, Thiruchirapalli District reported in 1998-2-L.W.189, a Full Bench judgment of this High Court has held as follows:
"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."
(iv) In W.T.Jothimani Vs. Minor Khoday etc. reported in 1999-2- L.W.425, a Division Bench of this High Court has held as follows:
"The Revenue Officers had not cared to even refer to the said judgment before taking a final decision. On the other hand, the Revenue Authorities seem to have passed final orders with gross disrespect to the findings of the civil Court judgment."
14. Per contra, the learned counsel appearing for the respondents has relied upon the following decisions:
(i) In Karewwa and others V. Hussensab Khansab Khansaheb Wajantri and others reported in AIR 2002 Supreme Court 504, a Division Bench of the Honourable Supreme Court has held as follows:
"We do not dispute the legal position as stated by the learned counsel for the appellant, but the presumption of correctness of an entry in revenue record cannot be rebutted by a statement in the written statement. Mere statement of fact in the written statement is not a rebuttal of presumption of correctness of an entry in the revenue record. The respondent was recorded as a tenant in the revenue record in the year 1973 and under law the presumption is that the entry is correct. It was for the appellant to rebut the presumption by leading evidence. The appellant has not led any evidence to show that entry in the revenue record is incorrect. We, therefore, do not find any merit in the contention."
(ii) In Kaliyuga Kanna Vs. The Tahsildar Land Survey & others reported in 2000 TLNJ 102, a learned Single Judge of this Court has held as follows:
"Entry of one's name in the patta gives him certain rights. He is recognised as owner of the property. Certain legal rights flow from such recognition. It is a recognition by the Government or by the Revenue Authorities that he is the owner of the property. It is an evidence of title. That right cannot be taken away, nor can the name of any other person be included in the patta without notice to him. To get a patta is a common law remedy. The various Circulars by the Revenue Department prescribe only the procedure. That right is not created for the first time under the Statute. If that be so, plaintiff is well within his rights to contend that the patta which stands in his name shall not be altered or another man's name be included therein without notice to him.
(iii) In Angu Pillai Alias Kalyanti Achi Vs. R.M.M.Valliammal Achi and others reported in AIR 1972 T.L.N.J. 427, a learned Single Judge of this Court has held as follows:
"The expression "document of title" occurring in S 58 of the T.P. Act has been the subject of consideration in some decisions. The law in regard to equitable mortgage is precisely the same as in England as it is in India. (41 Revised Reports 208 VIII L. R. Ch. Appeal Cases 155) In Indian Law deposit of patta has been held to constitute a valid equitable mortgage though patta is not in itself a deed of title, but is only an evidence of title."
15. A careful reading of the decisions relied on by either side would reveal that even though patta is not a document of title it is an evidence of title and also reveals that presumption of correctness of entry in revenue records cannot be rebutted by a statement in the written statement. In the instant case as already stated, joint patta was granted during the survey settlement period and also at the time of UDR Scheme and no proper explanation was given by the appellant/plaintiff that why joint patta was granted in the name of both if really the entire property belonged to the vendor of the plaintiff. Therefore, the contention of the appellant/plaintiff is that patta is not a document of title and hence, the defendants are not entitled to the property cannot be accepted.
16. Further, the learned counsel for the appellant would contend that if any confusion regarding boundaries and extent, Court should determine the real intention of the parties at the time of execution of documents and to that effect he has relied upon a decision of this Court in Balusamy Chettiar and others Vs. Abdul Razack and others reported in 2011-4-TLNJ 196, in which it is held that "Even from a cursory look of the decision referred to supra, it is made clear that in a deed in question, both extent and boundaries are given, the Court has to determine the real intention of the parties at the time of grant."
17. Learned counsel appearing for the respondents has also relied upon a decision of this Court in Ramaiya Asari Vs. Ramakrishna Naicker alias Kllimalai Naicker reported in (2000) 3 MLJ 327, in which it is held that "In my considered view, the present case is not one such case where there is any confusion with regard to the area sold. The decisions do not apply to the facts of the present case. The intention of the parties as expressed in the sale deed is clear that what was intended to be conveyed was only 40 kuzhies. As already noticed "Kammi-Jasthi" cannot take in such a large area as 7 , kuzhies."
18. A careful reading of the above said decisions of this Court reveal that the Court will have to determine what are intentions of the parties, at the time of execution of the document and also considered the boundaries and extent stated in the above said document and then decide whether the boundaries would prevail over the area or the area would prevail over boundaries. In the instant case, the area mentioned in the above said Ex.A1 sale deed only nearly half of the suit property and therefore, the intention of the parties must be only half share in the suit property as rightly contended by the learned counsel for the respondents/defendants and also to prove the intention by way of producing the joint pattas by the learned counsel for the respondents from 1971 onwards. Therefore, the appellant/plaintiff is entitled only undivided half share in the suit property and not entitled to entire suit property and answer the first and second questions of law accordingly.
19. With regard to the third question of law is concerned, the learned counsel for the appellant would further submit that Ex.A1, sale deed in favour of plaintiff, was 30 years old document and therefore, the execution and attestation presume to be proved as true document under Section 90 of the Evidence Act.
20. The learned counsel appearing for the respondents submitted that the presumption as to due execution of sale deed more than 30 years only in respect of due execution and attestation and not as to contends in the documents.
21. With regard to presumption under Section 90 of the Evidence Act, both sides relied on several decisions. The learned counsel appearing for the appellant has relied upon the following decisions:
(i) In Panduranga Gramani Vs. Sundaram reported in (2006) 3 MLJ 225, a decision of the learned single Judge of this High Court has held as follows:
"Presumption of genuineness may be raised if the documents in question is produced from proper custody. It is, however, the discretion of the Court to accept the presumption flowing from Section 90.
(ii) In A.Anthony Pushpam Ammal Vs. Rev. Mother Superior reported in 2009 (1) CTC 426 a learned Single Judge of this High Court has held as follows:
"From the close reading of the provision of Section 90 of the said Act, it is made clear to the Court that if any document is thirty years old, the Court can very well draw a presumption as to its execution and also attestation."
(iii) In Murugayee Vs. Suguna Sambandam reported in 2011 (5) CTC 813, a learned Single Judge of this High Court has held as follows:
"Since these two conditions, namely, the age of the document and the proper custody have been proved by the plaintiff, I hold that the requirements of Section 90 of the Evidence Act have been complied with by the plaintiff and so it is absolutely necessary for this Court to raise the presumption of due execution and attestation as provided in Section 90 of the Evidence Act in favour of the plaintiff."
(iv) In Rajaganapathy Ganesan Vs. Union of India reported in 2011 (6) CTC 306, a learned Single Judge of this High Court has held as follows:
"As I have already stated, under Section 90 of the Evidence Act, there may be a presumption of due execution of sale if the sale deed is 30 years old. As per the said provision, in the instant case, there may not be any difficulty to presume that the Sale Deed was executed by the vendor in favour of Mrs.Sivagangaiammal for the consideration paid by her as mentioned in the document. This presumption, has not been rebutted in any manner by the respondents."
22. The learned counsel for the respondents has relied upon the following decisions:
(i) In Chandulal Vs. Bai Kashi reported in AIR 1939 Bombay 59, the Bombay High Court has held as follows:
"The lower Courts both relied on the presumption arising under Section 90 of the Evidence Act, but that Section does not apply. It only provides that documents more than 30 years old coming from proper custody prove themselves, but it does not involve any presumption that the contents of the documents are true."
(ii) In Bhagirathmal Kanodia Vs. Bibhuti Bhusan reported in AIR (29) 1942 Calcutta 309, the Calcutta High Court has held as follows:
"The presumption referred to in this sections is of a limited character and applies only to the signature or handwriting."
(iii) In Banamali Vs. Badmalabha reported in AIR (38) 1951 Orissa 262, the Orissa High Court has held as follows:
"The lower appellate Court appears to have proceeded on an assumption that the entries in all these documents, purporting to be thirty years old, must necessarily be correct. No such presumption need necessarily attach to old documents. All that Section 90, Evidence Act, lays down is that a Ct. may presume that such documents have been written or attested by the person who purports to have written or attested them."
(iv) In Kotiswar Mukherjee and others Vs. Paresh Nath Mukherjee and others reported in AIR 1956 Calcutta 205 the Calcutta High Court has held as follows:
"Further the Section makes it clear that the presumption which is to be raised relates only to the signature, execution or attestation of a document. It does not involve any presumption that the contents of the document are true or that it had been acted upon. Such allegation has to be proved on adducing proper and relevant evidence."
(v) In Srirangam Co-op. Building Society Vs. T.N.Muniswami Konar reported in (2010) 7 MLJ 439, a learned Single Judge of this High Court has held as follows:
"There cannot be a presumption for the "Will" simply because it is 30 years old. It is more necessary to prove the Will, when there is a suspicious circumstances of execution of such 'Will'."
(vi) In Ghurahu Vs. Sheo Ratan reported in AIR 1981 Allahabad 3, the Allahabad High Court has held as follows:
"In fact Section 90 dispenses with proof of document as required in Sections 67 and 68 and what is required to be done is deemed to have been done by operation of law. But the proof of signature or handwriting does not establish that whatever is stated in document is also correct. That has to be proved not only by production of document but by proving its contents as well."
(vii) In Ajit Kumar Maulik Vs. Mukunda Lal Maulik reported in AIR 1988 Calcutta 196, the Calcutta High Court has held as follows:
"This decision of the Privy Council in the case of Munnalal (supra), was followed by this Court in the Division Bench case of Sarat Chandra V. Panchanan Mondal, 58 Cal WN 271: AIR 1953 Cal 471. The presumption under Section 90 of the Evidence Act is one of due execution and attestation as well as of testamentary capacity of the testator executing a Will. This presumption does not extend to the truth of the contents of the Will, as stated by the Division Bench in the case of Kotiswar, AIR 1956 Cal 205 referred to by Mr.Dasgupta.
(viii) In Mohinuddin Vs. President, Minicipal Committee, Khargone reported in AIR 1993 Madhya Pradesh 5, the Madhya Pradesh High Court has held as follows:
"Assuming that the document is more than thirty years old and comes from proper custody, there would be no presumption that contents of the same are true."
23. A careful reading of the above said decisions relied on by both sides, reveal that even a document purported to be proved 3o years old is produced from proper custody, a presumption under Section 90 of the Evidence Act is only due execution and attestation. But the presumption does not extend to the truth of the contents of the document. In the instant case admittedly Ex.A1 Sale deed dated 29.04.1955 and therefore, the presumption of execution and attestation can be presumed under Section 90 of the Evidence Act. But cannot presumed the contents of the document i.e., the entire suit property was belonging to vendor of the document and the entire extent was transferred by way of sale deed in favour of appellant/plaintiff and the plaintiff is entitled to entire extend as contended by the appellant/plaintiff. As already discussed the plaintiff has not proved by reliable evidence that the entire extent of the suit property belonged to the vender of the appellant/plaintiff and therefore, the plaintiff is also not entitled to entire extent of the suit property.
24. From the above said decisions, this Court is of the view that the appellant/plaintiff cannot claim title over the entire suit property on the basis of Ex.A1, Sale Deed i.e., 29.04.1955 and further as per revenue records, the first defendant is entitled to undivided half share in the suit property from 1971 on wards by producing patta and kist receipts and the presumption available under Section 90 of Evidence Act regarding Ex.A1 only on execution and attestation and not for a contention in the above said document and therefore, the appellant/plaintiff is not entitled to the entire suit property and only undivided half share in the suit property as rightly held by the learned trail Judge and answer the third question of law accordingly.
25. The learned counsel for the respondents/defendants would contend that the first appellate Court has erroneously held that, as if the partition was already effected between the parties and the plaintiff is entitled to 2 Acres, 39 cents out of 4 Acres, 56 cents on the basis of Commissioner's Report and Plan, Exs.C1 and C2, and granted the relief of declaration of title to an extent of 2 Acres, 39 cents out of 4 Acres, 56 cents. Admittedly, both sides not contended that any partition has been effected between the parties. Further, both sides not claimed the portions to the plaintiff and defendants as allotted by the learned appellate Court Judge and therefore, the first appellate Court Judge has erroneously granted declaration of title to the plaintiff to an extent of 2 Acres, 39 cents out of 4 Acres, 56 cents as if already partition has been effected between the parties and therefore, the decree and judgment passed by the trial Court is to be confirmed and the modified decree and judgment passed by the first appellate Court is to be set aside and second appeal is to be dismissed.
26. In the result, the decree and judgment passed by the trial Court is confirmed and the modified decree and judgment passed by the first appellate Court is set aside. The second appeal is dismissed with the above said observation. However, there shall be no order as to costs.
vsm To
1.The District Judge, Sivagangai.
2.The District Munsif Court, Sivagangai.