Madras High Court
The Department Of Animal Husbandry vs Krishnaswamy Udayar ...1St on 21 September, 2020
S.A.No.1231 of 2002
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
JUDGMENT RESERVED ON : 04.02.2022
JUDGMENT PRONOUNDED ON : 04.07.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
S.A.No.1231 of 2002
and CMP(MD).No.9601 of 2016
The Department of Animal Husbandry
Tamil Nadu through its
Assistant Director, Dindigul
....Appellant/1st Respondent
/Plaintiff
Vs
1.Krishnaswamy Udayar ...1st Respondent/Appellant
/1st Defendant
2.Shamugathammal (died)
3.Arunachala Moopanar(died)
4.Sonaimuthu (died)
5.Murugan
6.P.Venkitachalam
7.Karuppanan
8.A.Venkitachalam (died) ...Respondents 2 to 8
/Respondents 2 to 8
/Defendants 2 to 8
9.Rathinam
1/23
https://www.mhc.tn.gov.in/judis
S.A.No.1231 of 2002
10.A.Natarajan
11.A.Nelakandan
12.A.Murugesan
13.Samiammal
14.Rajagopal
15.Vijayalakshmi
16.Chellam
17.Vellaiyammal
18.Minor Satheeshkumar
19.Minor Kavitha
(Respondents 18 and 19 are minors and represented by
their mother- Respondent No.17)
20.Venkatachalam
21.Nagammal
22.Sivagnansundaram
23.Mohana
24.Dhanalakshmi
25.Sethumathavan
26.Paramasivam ..Respondents 9 to 26
/---/----
(Respondents 9 to 12 are brought on record as Lrs of
the deceased 3rd respondent vide Court order dated
21.09.2020)
2/23
https://www.mhc.tn.gov.in/judis
S.A.No.1231 of 2002
(Respondent 13 to 16 brought on record as Lrs of the
deceased 4th respondent vide Court Order dated
21.09.2020)
(Respondent 17 to 21 brought on record as Lrs of the
deceased 8th respondent vide Court Order dated
21.09.2020)
(Respondent 22 to 26 brought on record as Lrs of the
deceased 2nd respondent vide Court Order dated
03.02.2022)
PRAYER : Second Appeal is filed under Section 100 of
C.P.C, against the judgment and decree dated 31.08.2000
made in A.S.No.125 of 1999 on the file of the Principal
Subordinate Judge, Dindigul reversing the judgment and
decree dated 22.09.1998 made in O.S.No.1325 of 1996 on
the file of the Principal District Munsif, Dindigul.
For Appellant :Mr. R.Baskaran
Additional Advocate General
Assisted by Mr.A.Sivanupandian
Government Advocate
For R1 : Mr.M.R.Sreenivasan
For R2 : No appearance
R3, R4 & R8 : Died
For R5 to R7, R10
R12, R16 to R21 : No appearance
For R9 to R11 : Mrs.P.Jessi Jeeva Priya
For R13 to R15 : Mr.R.Senthil Kumar
For R22 to R26 : Mr.Mithun
3/23
https://www.mhc.tn.gov.in/judis
S.A.No.1231 of 2002
JUDGMENT
The plaintiff is the appellant.
2.The plaintiff had filed a suit for declaration of title, permanent injunction and a recovery of possession from the first defendant with regard to an old shed within the suit schedule property. The suit was decreed by the trial Court. The first defendant had filed A.S.No.125 of 1999 before the Principal Subordinate Court, Dindigul. The learned Subordinate Judge was pleased to allow the appeal and dismissed the suit. As against the same, the plaintiff has filed the above second appeal.
3.The plaintiff had contended that the suit schedule property having an extent of 36 cents in Old Survey No.181 and in New Survey No.181/1 originally belonged to Zamindar of Kannivadi by name Ramje Das Iyer. The said Zamindar had handed over the property in favour of the Government in the year 1936 for running a veterinary dispensary. According to the plaintiff, the 4/23 https://www.mhc.tn.gov.in/judis S.A.No.1231 of 2002 said handing over of the property is evident by way of Exhibit A12 proceedings dated 03.12.1943. The plaintiff had further contended that the Veterinary dispensary and the land have become the exclusive and separate property of the Government of Tamil Nadu as early as in the year 1944. The Government had acquired the adjacent land in survey No.181/3 and has put up a pucca new construction in both the lands referred to above in the year 1954.
4.The plaintiff had further contended that the Government has not paid any rent to anybody at any point of time and further there was no necessity for the same since the land was given to the Government for free of rent. The plaintiff had further contended that the land in Survey No.181/1 measuring 36 cents and the land in Survey No.181/3 measuring 27 cents having a total extent of 63 cents are located as a single block. The only entrance for the said property is located on the western side facing Palani-Madurai Trunk Road. 5/23 https://www.mhc.tn.gov.in/judis S.A.No.1231 of 2002
5.The plaintiff had further contended that the first defendant with the help of the second defendant is attempting to make a claim for a portion of plaintiff's dispensary in survey No.181/1. The defendant has attempted to prevent the plaintiff from enjoying the suit schedule property proclaiming that he has purchased the same from some of the relatives of one Appasamy Naicker who is alleged to be the Zamindar of Kannivadi in the year 1924. The said claim is a false claim and the Government being in possession beyond the statutory period as acquired title by prescription. The plaintiff had further contended that the second defendant is also making a claim through her husband relying upon certain revenue records. The first defendant has occupied a portion of Varanda of the old shed subsequent to the filing of the suit and hence, a prayer for recovery of possession has been included by way of amendment of the plaint prayer. Thus, the plaintiff prayed for declaration of title, permanent injunction and recovery of possession over a portion of the suit schedule property.
6/23 https://www.mhc.tn.gov.in/judis S.A.No.1231 of 2002
6.The first defendant had filed a written statement specifically disputing the title and possession of the plaintiff. The first defendant has further disputed that the Zamindar of Kannivadi namely one Ramje Das Iyer was not running a Veterinary Hospital in the suit property. According to the first defendant, the Veterinary Hospital is only located in Survey No.181/2A and 181/2B and not in Survey No.181/1.
7.The defendant had further contended that the Survey No.181 was always in possession of the original Zamindar of Kannivadi namely Appasamy Naicker. He had sold the said property in favour of his wife namely Ponnuthai Ammal under a registered sale deed dated 24.06.1900. The said Ponnuthai Ammal had taken possession and enjoying the property in her own right. Hence, the Ramje Das Iyer has no right, interest or authority to permit the Government to run a Veterinary Dispensary in survey No.181/1.
8.The defendant had further contended that the said Ponnuthai Ammal had executed a registered sale 7/23 https://www.mhc.tn.gov.in/judis S.A.No.1231 of 2002 deed in favour of her grandson one Kumara Narasimma Appaye Naicker on 10.12.1925. After death of the said Ponnuthai Ammal, her grandson took possession of the property and he passed away in the year 1963 leaving behind his wife one Veera Chinnammal and daughter Kathirveluthai as his legal heirs. On 05.05.1984, the said legal heirs of Kumara Narasimma Appaye Naicker have executed a registered sale deed for consideration of the suit schedule property in favour of the first defendant for a value consideration of Rs.25,000/-. Thereafter, patta was also mutated in the name of the first defendant. Even during UDR proceedings, the patta has been granted in favour of the first defendant in Patta No.1376.
9.The first defendant had further contended that the second defendant made some claim over the suit schedule property. Hence, the first defendant filed O.s.No.1285 of 1985 before the District Munsif Court, Dindigul and the same was decreed. The second defendant had filed O.S.No.1385 of 1984 for declaration that the 8/23 https://www.mhc.tn.gov.in/judis S.A.No.1231 of 2002 sale in favour of the first defendant is invalid. Both the suits are pending. The defendant had further contended that several inspections have been conducted by the revenue authorities and they have found Survey No.181/1 is in possession of the first defendant. Since the Government has granted patta in favour of the first defendant, the Government is estopped from claiming title to the suit schedule property. The defendant had further contended that the Veterinary Hospital is not located in the suit schedule property and the plaintiff has no title to the same. Hence, he prayed for dismissal of the suit.
10.The trial Court after considering the oral and documentary evidence, arrived at a finding that Exhibits B1 and B2 documents relied upon by the defendant do not disclose the suit Survey number. The defendants have not explained how the suit schedule property belonged to the Appasamy Naicker and Ponnuthai Ammal. The trial Court further found that all the documents filed on the side of the defendant are after 9/23 https://www.mhc.tn.gov.in/judis S.A.No.1231 of 2002 1984 and hence, there is suspicion about the said documents. On the other hand, the plaintiff Government has produced Exhibit A12 of the year 1943 to establish the fact that the suit schedule property was handed over by the Zamindar for free of rent for running a Veterinary Dispensary.
11.The trial Court further found that as per Exhibits C1 and C2, the Veterinary Hospital is only located in Survey No.181/1. The trial Court further found that the communication of the year 1984 will disclose that the first defendant has encroached upon the property and he is making some claim of title over the same. In the year 1936, the Zamindar of Kannivadi has entrusted the disputed property to the Government for running a Veterinary Hospital and thereafter, in the year 1944, the same has been handed over to the Government.
12.In view of the above said findings, the trial Court concluded that the plaintiff Government has acquired title by adverse possession and decreed the suit as prayed for.
10/23 https://www.mhc.tn.gov.in/judis S.A.No.1231 of 2002
13.The First Appellate Court after independent analysis of the oral and documentary evidence referred to various inter departmental communications of the plaintiff department with other departments to arrive at a finding that the suit Survey number is a private Patta land and the plaintiff has not established his title over the said property. The Appellate Court further found that being a suit for declaration of title, the entire burden is upon the plaintiff to establish the title and possession over the suit schedule property. But, in the present case, except some inter departmental letters, no document has been produced on the side of the plaintiff to establish their title over the suit schedule property.
14.The First Appellate Court further found that the defendants have traced their title right from the year 1900 under Exhibit B1. Though survey numbers have not been mentioned in Exhibits B1 and B2, the boundary recital clearly tally with the suit schedule property. Hence, the defendants have successfully traced their 11/23 https://www.mhc.tn.gov.in/judis S.A.No.1231 of 2002 chain of documents and established their title to the suit schedule property. The First Appellate Court further found that the Veterinary Hospital is located only in Survey No.181/2A and 181/2B and it is not located in suit survey number namely 181/1. Based upon the said findings, the First Appellate Court reversed the judgment and decree of the trial Court and dismissed the suit. As against the same, the plaintiff has filed the above second appeal.
15.The second appeal has been admitted on the following substantial questions of law:
“1.Whether the Lower Appellate Court is justified in casting the burden of proof in the Government even though the respondent who is tracing his title under the sale deed from the defendant/assignees of Kannivadi Zamin?
2.Whether the Lower Appellate court is right in ignoring valid documents Exs.P1 to P11 wherein the properties were surrendered free of rent and continue to be in possession of the Government?” 12/23 https://www.mhc.tn.gov.in/judis S.A.No.1231 of 2002
16.The learned Additional Advocate General appearing for the appellant had contended that the suit schedule property originally belonged to Zamindar of Kannivadi namely Ramje Das Iyer and he started a Veterinary Dispensary in the year 1936 in the said property. Thereafter, he handed over the same to the Veterinary Department by way of proceedings dated 27.01.1944 for free of rent. Thereafter, Survey No. 181/3 which is located adjacent to the suit survey number has been acquired by the Government. The Veterinary Hospital and the Dispensary are located in both the survey numbers. Both the survey numbers have got a single entrance to Palani-Madurai Trunk Road. The property is in possession of the Government right from the year 1944. The defendants 1 and 2 have colluded together and created certain documents and based upon the same, they are disturbing the possession of the plaintiff. He had further contended that the suit that were pending or decreed between the defendants 1 and 2, would not affect the right, title or possession of the plaintiff. According to the learned Additional Advocate 13/23 https://www.mhc.tn.gov.in/judis S.A.No.1231 of 2002 General, since the Government is not a party to any one of these proceedings, the decree passed in those proceedings will not be binding upon the Government. The learned Additional Advocate General further contended that the First Appellate Court had erroneously placed the burden upon the plaintiff, even though the defendant is tracing his title under the sale deed from the legal heirs of Kannivadi Zamin. He had further contended that when the property has been handed over to the Government way back in the year 1944 for free of rent by Kannivadi Zamindar, the legal heirs of the said Zamin, cannot make a claim over the said property after the death of the Zamindar. Hence, he prayed for setting aside the judgment and decree of the First Appellate court and to restore the judgment and decree of the trial Court.
17.Per contra, the learned counsel for the first defendant/respondent had contended that the suit has been filed with a prayer for declaration of title, permanent injunction and recovery of possession and 14/23 https://www.mhc.tn.gov.in/judis S.A.No.1231 of 2002 hence, the entire burden is upon the plaintiff to establish his title. Except some inter departmental communication letters, the plaintiff has not filed any document to establish his title over the suit schedule property. On the other hand, the defendants have traced their title by filing the registered documents under Exhibits B1 to B3 and revenue records under Exhibit B4 and B5. The B-series documents would clearly establish that the Zamindar of Kannivadi is one Appasamy Naicker and not Ramje Das Iyer as claimed by the plaintiff. Hence, he contended that the First Appellate court has rightly dismissed the suit filed by the plaintiff. Hence, he prayed for dismissal of the second appeal.
18.I have considered the submissions made on either side.
19.It is the specific case of the plaintiff that the suit schedule property originally belonged to one Ramje Das Iyer who was the Zamindar of Kannivadi. According to the plaintiff, the said Zamin was running 15/23 https://www.mhc.tn.gov.in/judis S.A.No.1231 of 2002 a Veterinary Dispensary in the suit schedule property from the year 1936 onwards and in the year 1944 he handed over the Dispensary along with the land and building for free of rent to the Government.
20.The plaintiff has relied upon Exhibit A12 dated 03.12.1943 to contend that the Zamindar has permitted the Government to run the Dispensary in the suit schedule property. However, the first defendant in his written statement has specifically disputed this fact. That apart, the first defendant had contended that it belongs to the Zamindar of Kannivadi by name Appasamy Naicker and Ramje Das Iyer had no right, interest or authority to grant possession of the suit property to the plaintiff. Hence, the burden is upon the plaintiff to establish that the Zamindar of Kannivadi was one Ramje Das Iyer and he had title to the same to grant such a permission to the plaintiff. Exhibit A12 letter does not refer to the name of the Zamindar of Kannivadi as Ramje Das Iyer. On the other hand, the defendants have filed Exhibit B1 dated 24.06.1900 to show that one 16/23 https://www.mhc.tn.gov.in/judis S.A.No.1231 of 2002 Appasamy Naicker had executed a sale deed in favour of Ponnuthai Ammal claiming himself to be the Zamindar of Kannivadi. When Exhibit A12 is compared to Exhibit B1, the plaintiff has miserably failed to establish that the Zamindar of Kannivadi is Ramje Das Iyer and he had any title or authority to grant such a permission to the plaintiff to run a Veterinary Dispensary. Exhibit A12 letter will not confer title upon the Government. The trial Court has proceeded to confer title upon the plaintiff on the ground that the plaintiff has been in possession and enjoyment of the same for more than 39 years and the Government has acquired title by adverse possession. The Hon'ble Supreme Court in a judgment reported in (2020) 2 SCC 569 ( Vidya Devi Vs.The State of Himachal Pradesh and others) in Paragraph No.10.6 has held as follows:
“10.6.We are surprised by the plea taken by the State before the High Court, that since it has been in continuous possession of the land for over 42 years, it would tantamount to “adverse” possession. The State being a welfare State, cannot be permitted to take the plea of adverse 17/23 https://www.mhc.tn.gov.in/judis S.A.No.1231 of 2002 possession, which allows a trespasser ie. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens, as has been done in the present case”.
When the plaintiff has failed to prove the source of title and being a Government cannot plead adverse possession as against their own citizen, the only conclusion that could be arrived at is that the plaintiff has not established his title over the suit schedule property.
21.Many documents have been filed on the side of the plaintiff to contend that they were various inter departmental communications which would establish the title of the possession of the plaintiff over the suit schedule property. A letter addressed by the Assistant Director of Veterinary Department on 21.10.1986 under Exhibit A8 clearly indicate that two persons were 18/23 https://www.mhc.tn.gov.in/judis S.A.No.1231 of 2002 claiming rent from the plaintiff and due to the said dispute rent could not be paid by the Government for the suit schedule property. A letter addressed by the Deputy Secretary of Government to the Assistant Director of Veterinary Department on 09.08.1996 marked as Exhibit A2 will clearly show that if required survey No.181/1 may be acquired invoking the Land Acquisition Act. These letters though inter departmental, will clearly reveal that as far as the suit survey number is concerned, the plaintiff department did not have any title and the Deputy Secretary to Government had advised to proceed with the acquisition proceedings. A combined reading of these documents will clearly establish the fact that the plaintiff do not have any title over the suit schedule property.
22.On the other hand, the 1st defendant has produced Exhibit B1 sale deed dated 24.06.1900 said to have been executed by the Zamin of Kannivadi namely Appasamy Naicker in favour of Ponnuthai Ammal. The said Ponnuthai Ammal had executed a sale in favour of her 19/23 https://www.mhc.tn.gov.in/judis S.A.No.1231 of 2002 grandson namely Kumara Narasimma Appaye Naicker under Exhibit B2 on 20.12.1925. Though this document do not refer to survey number, the boundary recitals will clearly establish that these documents relate to the suit schedule property. Thereafter, the legal heirs of the said Kumara Narasimma Appaye Naicker have executed a registered sale deed in favour of the first defendant on 05.05.1984 under Exhibit B3. Under Exhibit B3, it has been specifically stated that 36 cents in Survey No.181/1 (suit property is located to the west of Veterinary Hospital). Thereafter, the revenue patta has been issued in the name of the first defendant under Exhibit B4 on 02.02.1984 These documents will clearly indicate that the defendants have traced their title and also established their possession over the suit schedule property.
23.Even as per the plaint averments in Paragraph No.6 it is stated that the adjacent survey number namely 181/3 having an extent of 27 cents has been acquired for the purpose of construction of the 20/23 https://www.mhc.tn.gov.in/judis S.A.No.1231 of 2002 veterinary Hospital. The Commissioner's report and plan show certain subdivisions that have been effected in Survey No.181/1 and the Hospital is located only in Survey Nos.181/2A and 181/2B and not in suit survey number namely 181/1. There is no explanation whatsoever from the plaintiff department how the subdivisions were effected. The plaintiff department has also not explained at whose instance these subdivisions were effected. The plaintiff being a Government department is duty bound to explain these subdivisions which have taken place in suit Survey No.181/1. When there is no explanation whatsoever, the only conclusion that can be arrived at is that the Veterinary Hospital is not located in suit Survey No.181/1 and it is located in the adjacent Survey number namely 181/2A and 181/2B and 181/3.
24.The trial Court without properly appreciating Exhibit A12 letter and other inter departmental communications, has conferred title upon the plaintiff department based upon the plea of adverse possession. However, the First Appellate Court after analysing each 21/23 https://www.mhc.tn.gov.in/judis S.A.No.1231 of 2002 one of the documents on the side of the plaintiff has reversed the judgment and decree of the trial Court.
25.In view of the above said discussion, both the substantial questions of law are answered as against the appellant. The second appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
04.07.2022
Index : Yes / No
Internet : Yes / No
msa
To
1.The Principal Subordinate Judge
Dindigul
2. The Principal District Munsif
Dindigul
3.The Section Officer
V.R.Section
Madurai Bench of Madras High Court
Madurai
22/23
https://www.mhc.tn.gov.in/judis
S.A.No.1231 of 2002
R.VIJAYAKUMAR,J.
msa
Pre-delivery Judgment made in
S.A.No.1231 of 2002
and CMP(MD).No.9601 of 2016
04.07.2022
23/23
https://www.mhc.tn.gov.in/judis