Madras High Court
R.C.Church vs Seeranga Gounder on 8 March, 2024
Second Appeal Nos.838 & 839 of 2016 &
C.M.P.No.17807 of 2016 & W.P.No.28472 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.03.2024
Coram
THE HON'BLE MR JUSTICE V. LAKSHMINARAYANAN
Second Appeal Nos.838 & 839 of 2016 &
C.M.P.No.17807 of 2016 &
W.P.No.28472 of 2010
In S.A.No.838 of 2016
R.C.Church ... Appellant
-Versus-
Seeranga Gounder
2.Nallammal
3.Pannerselvam
4.Parthiban
5.Anbalagan
6.Thangaraju ... Respondents
(R2 to R6 brought on record as legal
heirs of the deceased R1 vide order of
this Court dated 08.04.2022 made in
CMP.No.4177 of 2022 in S.A.No.838
of 2016)
Appeal filed under Section 100 of C.P.C. against the judgement and
decree dated 02.09.2016 passed in A.S.No.3 of 2016 on the file of the Principal
District Judge, Namakkal by confirming the decree and the judgment dated
01.12.2015 passed in O.S.No.87 of 2012 on the file of the Subordinate Judge,
Namakkal.
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For Appellant : Mr.S.Subbiah, Senior Counsel,
for Ms.Elizabeth
For Respondents : Mr.M.Sriram,
for Mr.A.Saravanan
In S.A.No.839 of 2016
R.C.Church ... Appellant
-Versus-
Palaniammal ... Respondent
Appeal filed under Section 100 of C.P.C. against the judgement and
decree dated 02.09.2016 passed in A.S.No.4 of 2016 on the file of the Principal
District Judge, Namakkal by confirming the decree and the judgment dated
01.12.2015 passed in O.S.No.48 of 2014 on the file of the Subordinate Judge,
Namakkal.
For Appellant : Mr.S.Subbiah,Senior Counsel,
for Ms.Elizabeth
For Respondent : Mr.M.Sriram,
for Mr.A.Saravanan
In W.P.No.28472 of 2010
Salem Diocese Society,
(Registration No.53/87),
Rep. by its Vicar General,
I.Mariya Susai,
S/o.Innasimuthu,
No.2, Court Road,
Maravanery,
Salem – 636 007 ... Petitioner
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-Versus-
1.The District Collector,
Namakkal District,
Namakkal
2.The Revenue Divisional Officer,
Namakkal
3.The Superintendent of Police,
Namakkal District,
Namakkal – 637 001
4.S.Anbalagan
5.K.Seeranga Gounder
6.The President,
Vallipuram Panchayat,
Vallipuram – 637 003.
Namakkal District. ... Respondents
Writ Petition filed under Article 226 of Constitution of India for issuance
of Writ of Certiorarified Mandamus calling for the records relating to the
proceedings in Rc.No.4016 of 2010 dated 21.09.2010 on the file of the second
respondent herein and to quash the same and direct the respondents 2 to 5
herein to restore the possession of land to an extent of 0.572.0 hectares situated
in Survey Nos.322/5 and 322/6A in Vallipuram Village, Namakkal Taluk and
District to the petitioner after removing all the fences and poles planted by them
within a timeframe.
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For Petitioner : Mr.S.Subbiah, Senior Counsel,
for Ms.Elizebeth
For Respondent : Mr.G.Ameedius,
1 to 3 Government Advocate
For Respondents : Mr.A.Saravanan
4&5
COMMON JUDGEMENT
S.A.No.838 of 2016 is presented against the judgment and decree of the
court of Principal District Judge at Namakkal in A.S.No.3 of 2016 in
confirming the judgment and decree of the Court of Subordinate Judge,
Namakkal in O.S.No.87 of 2012 dated 01.12.2015.
2. S.A.No.839 of 2016 is presented against the judgment and decree of
the court of Principal District Judge at Namakkal in A.S.No.4 of 2016 in
confirming the judgment and decree of the Court of Subordinate Judge,
Namakkal in O.S.No.249 of 2012 which was renumbered as O.S.No.48 of 2014
dated 01.12.2015.
3. In both the appeals, the appellant before me is the defendant in the
respective suits.
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4. For the sake of convenience, the parties shall be referred to as per their
ranks in the suit.
5. The case of the plaintiff/Seeranga Gounder is that the property bearing
S.No.322/6A to an extent of 0.572 hectares originally belonged to one
Nallyammal. She had alienated the property by the way of a registered sale
deed on 25.11.1940 in favour of one Komara Gounder. The plaintiff/Seeranga
Gounder is the son of Komara Gounder. The plaintiff for the purpose of his
vocation, went abroad and therefore, he was not available in the country.
Taking advantage of his absence, the revenue department had mutated the patta,
stating it as “Madha Koil” Poramboke.
6. The plaintiff/Seeranga Gounder would further plead that between
Komara Gounder and other co-sharers namely Sellappa Gounder and
Mariyayeeammal, a suit for partition was filed in O.S.No.8 of 1941 on the file
of the learned District Munsif at Namakkal. The said suit did not go for trial,
but ended in a compromise.
7. As per the compromise decree, the property situated in the north of the
road was allotted to the defendant and the property to the south of the road was
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allotted to Komara Gounder. Subsequently, in order to have an equitable
arrangement between themselves, the defendants in that suit exchanged their
property with the property allotted to Komara Gounder. By virtue of this
exchange, the property situated in the north of the road fell to the share of
Komara Gounder. In other words, the first item of the suit schedule property in
O.S.No.8 of 1941 fell to Sellappa Gounder and the second item fell to Komara
Gounder.
8. The plaintiff/Seeranga Gounder pleaded that Komara Gounder was in
possession and enjoyment of the property. It is an admitted case that the
property belonged to Vallipuram Mittadhar and due to the enactment of the
Land Reforms Laws 1948, in particular, The Estates Abolition Act, 1948, the
mitta was abolished. On the survey being done during that time, the property,
bearing S.No.322/6A, was given S.No.322.
9. In 1993, finding that the property had been reclassified as Poramboke,
the plaintiff gave a representation to the Revenue Tahsildar for sub division of
the property and for grant of patta. The property was subdivided and patta to an
extent of 0.572 hectares was assessed. Since it was treated as Madha Koil
Poramboke and the plaintiff/Seeranga Gounder attempted to fence the property,
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the defendant herein interfered with the possession of the plaintiff. Therefore,
the plaintiff/Seeranga Gounder filed a suit for permanent injunction in
O.S.No.600 of 1996 on the file of the Additional District Munsif at Namakkal.
10. The learned Additional District Munsif, Namakkal, partly decreed the
suit holding that as per the sale deed dated 25.11.1940, the father of the
plaintiff/Seeranga Gounder had purchased a half share of the property
measuring a total extent of 90 ft. x 75 ft. and therefore, he was entitled to that
part of the property measuring an extent of 45 ft. x 37 ½ ft. under the sale deed.
11. Aggrieved by the same, the plaintiff/Seeranga Gounder and the
defendant filed appeals before the learned Principal District Judge, Namakkal in
A.S.No.183 of 2002 & A.S.No.184 of 2002 respectively. The appeal filed by
Seeranga Gounder was allowed and the suit was decreed as prayed for.
Consequently, the appeal filed by the defendant was dismissed.
12. Challenging the same, the defendant preferred two second appeals to
this Court in S.A.Nos.952 & 953 of 2011. In and by way of a common
judgment dated 27.09.2011, both the second appeals were allowed. The ground,
on which the second appeals were allowed was that since the title of the
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plaintiff/Seeranga Gounder had been denied, he ought to have filed a suit for
declaration of title and a suit for bare injunction is not maintainable. However,
the second appellate court granted liberty to the plaintiff/Seeranga Gounder to
file a suit for declaration of title and this is how, the second round of litigation
commenced with the presentation of the plaint in O.S.No.87 of 2012 on the file
of the learned Subordinate Judge, Namakkal.
13. The defendant entered appearance in the suit and filed the written
statement inter alia alleging that
(i) the oral exchange was not permissible under the provisions of the
Transfer of Property Act and therefore, the plea of the plaintiff should not be
countenanced.
(ii) By virtue of Section 64 of the Minor Inams Abolition Act 26 of 1963,
the suit is barred.
(iii) The property is admittedly a mitta property and since the same has
been abolished, the Revenue Divisional Officer cum Sub Collector has no
jurisdiction to pass an order for transfer of patta.
(iv) The suit in O.S.No.600 of 1996 on the file of the Additional District
Munsif Court at Namakkal, having been dismissed by this Court under the
S.A.Nos.952 & 953 of 2011, the present suit is barred by the principles of res
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judicata.
(v) Vallipuram Panchayat had laid down a road over the suit schedule
property and since the Vallipuram Panchayat has not been impleaded as a party,
the present suit is not maintainable.
(vi) The suit is barred by Limitation Act. It ought to have been presented
within a period of three years and the suit having been presented after the
second appeal was allowed on 27.09.2011, the suit is barred.
14. Above all, the main contention which was urged in the written
statement was that the High Court having held that Seeranga Gounder is not in
possession of the property, the appropriate relief that the plaintiff ought to have
sought for a declaration of title and recovery of possession, and not a
declaration of title and a permanent injunction.
15. On the basis of these pleadings, on 08.10.2014, the trial judge framed
the following issues:
“1) Whether the suit is barred by res judicata?
2) Whether the plaintiff is entitled for declaration?
3) To what other relief?”
16. On 10.07.2014, on the basis of the additional written statement filed
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by the defendant, the trial court framed the additional issues:
1) Whether the plaintiff has title to the suit
property?
2) Whether plaintiff is in possession of the
property?
3) Whether the oral exchange pleaded by the
plaintiff is true?
4) Whether the alleged oral exchange is valid?
5) Whether the clarification of the suit land as
natham poramboke is valid and in accordance in the law?
6) Whether the patta granted in 1996 in favour of
plaintiff is valid?
7) Whether the suit is bad for non-joinder of the
plaintiff?
8) Whether the sub-collector has the authority to
change or alter the clarification of the suit land for
Madha koil poramboke to natham poramboke?
9) Whether the sub-collector has the authority to
grant patta in a land classified by settlement authorities
as Madhakoil poramboke?
10) Whether the suit is barred by res judicata in
view of the findings in O.S.No.600/1996 and
S.A.No.952/2011 and 953/2011?
11) Whether the suit is bad for non-joinder of the
villagers of Vallipuram?
12) Whether the suit is bad for non-joinder of
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Vallipuram Panchayat?
13) Whether it is true that the plaintiff was not in
possession on 19.09.1996 or any subsequent date?
14) Whether the suit is barred by limitation?
15) Whether the defendant has perfected title by
adverse possession?
16) Whether the suit has not been valid properly for
jurisdiction?
17) To what other relief or reliefs the plaintiff is
entitled?
17. Subsequently, the trial court recast the issues in O.S.No.87 of 2012
just before the pronouncement of judgement as follows:
1) Whether the suit is barred by limitation?
2) Whether the suit is bad for non-joinder of
necessary parties?
3) Whether the suit is affected by res judicata?
4) Whether the defendant is affected by estoppel?
5) Whether the patta granted in the year 1996 in
favour of the plaintiff is valid?
6) Whether the oral exchange pleaded by the plaintiff
is true?
7) Whether the plaintiff is entitled for declaration as
prayed for?
8) Whether the plaintiff is entitled for permanent
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injunction as prayed for?
9) To what other relief?
18. The other suit had been presented by Palaniammal/the wife of
Seeranga Gounder in O.S.No.249 of 2012 on the file of the Principal District
Munsif Court, Namakkal. This suit was subsequently transferred to the file of
the learned Subordinate Judge, Namakkal and was renumbered as O.S.No.48 of
2014. This suit was also for declaration of title and for injunction.
19. The case of the plaintiff/Palaniammal is that the property belonged to
one Hanima Bi, who had secured patta from the Government. She had put up a
thatched shed and was living therein. Palaniammal had purchased the property
from Hanima Bi on 06.12.1996. Owing to the obstruction caused by the
defendant vis-a-vis her peaceful possession of the property, she presented the
suit in O.S.No.218 of 2001 and the same was decreed as prayed for. Aggrieved
over the same, an appeal was filed by the defendant in A.S.No.75 of 2009
which came to be allowed. The said appeal was allowed on the ground that no
relief of declaration of title was sought for. Hence, she filed the present suit
O.S.No.249 of 2012. The same was subsequently renumbered as O.S.No.48 of
2014.
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20. On entering appearance, the defendant filed his written statement. In
the written statement, the possession of Hanima Bi was admitted, but it was
pleaded that Hanima Bi was in possession of the property under a licence from
the defendant and therefore, she could not have conveyed a proper title to the
plaintiff/Palaniammal. In other words, the plaintiff/Palaniammal has not proved
the pre-existing title of Hanima Bi and therefore, she is not entitled to claim the
relief.
21. An additional written statement was filed in the said proceedings,
wherein the same plea that was taken in the suit filed by the husband in
O.S.No.87 of 2012 was raised in the suit filed by the wife as well.
22. On these pleadings, on 06.11.2012, the learned trial judge framed the
following issues:
“1/thjpapd; tHf;F epiyf;fj;jf;fjh>
2/ jhthr; brhj;J thjpf;Fg; ghj;jpag;gl;ljh>
3/ jhthr; brhj;J thjpapd; mDgtj;jpypUef;fpwjh>
4/ thjpf;F fpilf;ff;Toa ghpfhuk; vd;d>
5/ ,ju ghpfhuk; vd;d>
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23. On the basis of the draft issues submitted by the defendant, on
10.07.2014, the trial court framed the following issues:
“1) Whether the plaintiff is having title to the suit
property?
2) Whether the plaintiff's vendor had title to the suit
property?
3) Whether the plaintiff is in possession of the suit
property?
4) Whether the land classified as temple poramboke
can be granted as patta to the plaintiff?
5) Whether the plaintiff was at any time in
possession of the suit property?
6) Whether the suit is bad for non-joinder of
Vallipuram Panchayat?
7) Whether the suit is bad for non-joinder of the
villagers of Vallipuram?
8) Whether the suit is barred by limitation?
9) Whether this suit is saved by judgment in
A.S.No.75/2001?
10) Whether the grant of patta in respect of plaintiff
belonging to the temple is valid?
11) To what other relief or reliefs the plaintiff is
entitled?
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24. Subsequently, the learned trial judge recast the issues in O.S.No.48 of
2014 subsequently, just before the pronouncement of judgement as follows:
“1) Whether the plaintiff in O.S.No.48 of 2014 is
entitled for the relief of declaration as prayed for?
2) Whether the plaintiff is entitled for the relief of
permanent injunction as prayed for?
3) To what other relief the plaintiff is entitled to?”
25. By consent of the parties, the trial judge recorded the evidence in both
the suits in common and O.S.No.87 of 2012 was treated as the lead case.
26. On the side of the plaintiffs in both suits, two witnesses were
examined and Ex.A1 to Ex.A12 were marked. On the side of the defendant, the
pastor of the church examined himself as DW1 and only one document was
marked as Ex.B1 namely the judgment of the second appellate court in
S.A.No.952 of 2011 and S.A.No.953 of 2011
27. On consideration of the pleadings and the oral and documentary
evidence, the trial judge came to the conclusion that the respective plaintiffs
have proved their title to the property and therefore, decreed the suits as prayed
for. Aggrieved by the same, the defendant preferred two regular appeals before
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the learned Principal District Judge at Namakkal in A.S.No.3 of 2016 and
A.S.No.4 of 2016
28. The learned Principal District Judge, in and by way of a common
Judgment dated 02.09.2016 confirmed the judgment of the trial court. Against
which, the present second appeals.
29. These appeals were admitted by this Court on 07.10.2016 on the
following substantial questions of law:
“1. When the earlier suit for permanent injunction
alone, filed by the plaintiff was dismissed by the appellate
court as one not maintainable on account of the plaintiff not
in possession of the suit property, is not the later suit again
for declaration and permanent injunction barred by res
judicata?
2. When if it is to be held that the plaintiff was not in
possession of the suit property by reason of the earlier
judgment operating as Res judicata, whether the subsequent
suit for declaration of title and permanent injunction is
maintainable under Section 34 of the Specific Relief Act?
3. Whether the fresh suit filed after 12 years from the
date of cause of action arising is not barred by limitation
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under Articles 59 and 65 of the Limitation Act?”
30. I heard Mr.S.Subbiah, learned Senior Counsel for the appellant and
Mr.M.Sriram for the respondents.
31. Mr.S.Subbiah would contend that the issues were recast just before
the pronouncement of judgment, which is the procedure not contemplated under
Order XIV of the Civil Procedure Code. He would plead that the trial judge had
returned a finding on adverse possession, when the same had not even been
pleaded by the defendant. He would state that the finding under Ex.B1, namely
the judgment of the High Court, is that the plaintiff/Seeranga Gounder was not
in possession of the property and therefore, that issue could not have been tried
by the courts below afresh.
32. Mr.S.Subbiah would invite my attention to the written statement and
plead that the Government should have been made as a party to the proceedings
as the property is a mitta land, which had been abolished, and therefore, there is
a bar under Section 64-C of the Minor Inams Abolition Act. He would further
argue that no schedule to property had been given in the document and since the
plaintiff/Seeranga Gounder had not proved his title to the property, the courts
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below erred in decreeing the suit and dismissing the appeal filed by the Church.
Therefore, he would plead that the second appeal in S.A.No.838 of 2016 should
be allowed and the suit in O.S.No.87 of 2012 should be dismissed.
33. Insofar as S.A.No.839 of 2016 is concerned, the point urged by
Mr.S.Subbiah is that the prior title of Hanima Bi has not been proved and
therefore, the plaintiff/Palaniammal has not proved her possession and title over
the property.
Applicability of Order XIV Rule 5 of the Code of Civil Procedure
34. Insofar as the first plea of Mr.S.Subbiah is concerned, under Order
XIV Rule 5, the issues framed have to be re-cast only after issuing a notice to
the parties. It is pertinent here to see, whether the issues were actually recast.
He relied upon the judgment of this Court in Himayam Engineers and
Builders v. S. Ravichandran, (2014) 4 LW 474. He invited the attention of this
Court to paragraph 5.5 of the said judgment, which reads as follows:
“ 5.5. In the case on hand, admittedly, the parties have
not been heard before the framing of the additional issue.
The additional issue framed goes to the root of the matter. It
has got the effect of making the appellant disentitled to get a
relief on merits. Such an issue cannot be framed and decided
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by the Court without hearing the parties. Therefore, we are
of the view that the procedure adopted by the learned single
Judge cannot be sustained in the eye of law. Our view is also
fortified by a decision of the Karnataka High Court in
Perikal Malappa v. T. Venkatesh Gupta, (AIR 2007 (NOC)
12 (KAR)) wherein the facts involved are identical.”
Relying upon the said judgment Mr.S.Subbiah would submit that since the
issues were recast without issuing notice to the parties, the same is bad and the
order has to be set aside.
35. Mr.Sriram would draw my attention to the draft issues that were filed
by the defendant in the suit and submitted that the said draft issues were framed
as additional issues by the trial court in both the suits. At the time of
pronouncing the judgment, in order to have a clear and categorical manner of
answering the judgment, the learned trial judge had not framed fresh issues, but
had merely rearranged the issues that had been suggested by the learned counsel
for the defendant.
36. Order XIV Rule 5 of the Code of Civil Procedure permits the court to
recast the issues at any time before pronouncement of the judgment. In this
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particular case, the learned trial judge has not recast the issues, but as pointed
out by Mr.M.Sriram, has merely rearranged the issues. For rearrangement of
issues, which is entirely within the jurisdiction of the learned trial judge, while
dictating the judgment, no notice is necessary to the parties. The judgment cited
by Mr.S.Subbiah does not apply to the facts of this case as that was a case
where an additional issue was framed and it was not a case of rearrangement of
the issues already framed. It will be too much on the part of a litigant to expect
that even for rearrangement, he must be put on notice by the Court.
The plea of Adverse Possession
37. On the second aspect that the parties have not pleaded adverse
possession, as rightly pointed out by Mr.Sriram, two paragraphs in the written
statement filed by the defendant loom large. They are paragraphs 34 and 38 of
the additional written statement filed by the defendant in O.S.No.87 of 2012.
For the sake of ready reference, I am extracting it for consideration:
34/ fhyhtjp rl;lk; 1963 y; cs;s gphpt[ (Article) 65 d; go
jhd; jhf;fy; bra;jpUf;f Koa[k;. Mdhy; thjpahdth; brhj;ij
ifg;gw;wt[k; mDgtj;ij jpUk;gg; bgwt[k; jhd; jhf;fy; bra;a Koa[k;.
mt;thW jhf;fy; bra;tjw;F cs;s mtfhrk; 12 Mz;Lfs;/ me;j 12
Mz;Lk; gpujpthjpapd; mDgtk; thjpf;F vjph;epiy clik vd;w
Kiwapy; ghh;j;jhy;. Fiwe;j gl;rk; 19/09/1996 md;nw Muk;gkhfptpl;lJ/
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mt;thW cs;s epiyikapy; ,e;j jhththdJ 17 Mz;Lfs; fHpj;J
jhf;fy; bra;Js;sJ rl;lg;go epiyepw;fj;jf;fJk;. jilg;gl;lJk; MFk;/
/////////////////////////////////
/////////////////////////////////
38. ,e;j thjpf;F mtUila Tw;wpd; gona 1971 y; mth; btspehL
brd;W jpUk;gp te;jgpd; ,e;j jhth brhj;J mtUila brhj;J vd;W
bjhpa te;Js;sjhf Twg;gLk; epiyikapy;. me;j rkaj;jpnyna ,e;j
gpujpthjpahdth; jhth brhj;jpy; mDgtj;jpy; ,Ue;J te;J me;j
mDgtKk; thjpf;F bjhpe;Js;s fhuzj;jpdhy; Fiwe;j gl;rk; 1971
ypUe;nj ,e;j gpujpthjpahdth; thjpf;F bjhpe;nj jhth brhj;ij
ve;jtpjkhd xU ,il";rYk; ,y;yhky; mDgtpj;J tUfpd;w
fhuzj;jpdhYk;. ,e;j gpujpthjpahdtUf;F jhth brhj;jpy; vjph;epiy
clik (adverse possession) rpj;jpj;J tpLfpdw; J/”
38. This makes it clear that the defendant had specifically pleaded
adverse possession and because of such a plea, the trial court went into the issue
and rejected the same. Therefore, the argument that the defendant had not taken
a plea of adverse possession is without any substance.
39. Adverse possession is a plea, which is easily taken, but extremely
difficult to prove. In this case, not once, but twice, the defendant had pleaded
that the suit had to fail on the grounds of it being barred under Article 65 of the
Limitation Act.
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40. Third column of Article 65 makes it clear that a suit should be filed
within a period of 12 years from the period, the possession becomes adverse.
There are a line of judgments which state that if the defendant takes such a plea,
the burden is on him to prove the date from which he had dispossessed the
plaintiff. He further has to prove, he had been in open, continuous and hostile
possession of the property. The plea of adverse possession also requires that
some evidence be let in by the defendant. It also presupposes that the defendant
admits the title of the plaintiff. In expansion of the plea of adverse possession,
the defendant has also pleaded that it has prescribed title by virtue of Section 27
of the Limitation Act. Therefore, heavy burden lies on the defendant to
substantiate its contentions that it has been in possession and enjoyment of the
property in open, continuous and hostile manner to the knowledge of the owner.
41. When I scan through the evidence and document filed by the
defendant, I find that the defendant has not even let in any evidence to show
that it has been in possession and enjoyment of the property. In fact, the only
document that has been filed by the defendant is the previous judgment of the
High Court in S.A.No.952 of 2011 and S.A.No.953 of 2011. The previous
judgment of the High Court between the very same parties does not find the
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defendant to be in possession of the property. All that was done in the earlier
second appeal was that the learned Single Judge held that the suit for bare
injunction without seeking the relief of declaration is not maintainable and
therefore, dismissed the suit.
42. The plea of adverse possession not having been proved insofar as
O.S.No.87 of 2012 is concerned, it shows that the defendant had admitted to the
title of the plaintiff/Seeranga Gounder.
43. Mr.S.Subbiah would contend that the judgment of the High Court has
found that the plaintiff/Seeranga Gounder is not in possession of the property.
In order to substantiate that he would reply upon paragraph 12 of the judgment
under Ex.B1.
44. A perusal of Ex.B1 shows that the court had rejected the argument of
the learned counsel for the respondent therein that, by virtue of the order passed
by the Tahsildar, Seeranga Gounder was in possession of the property. It was in
the light of this rejection, the court went on to hold that the party cannot rely
upon the said document for the purpose of his possession. In that regard, the
following words in the said judgment can be considered “the admission of the
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respondent/plaintiff in the cross examination would prove that he was not in
possession of the property and when he attempted to take possession, he was
prevented.”
45. Placing strong reliance upon the aforesaid statement in the said
judgment, Mr.S.Subbiah would argue that this finding is sufficient to hold that
the court had already concluded that the plaintiff/Seeranga Gounder is not in
possession.
46. A judgment cannot be read as a statute and the words of the judgment
cannot be split and read from the remaining portion. Next line of the very same
judgment reads as follows:
“Therefore, merely because patta had been issued
in favour of the respondent/plaintiff, it cannot be
contended that the respondent/plaintiff is deemed to be
possession. ... I hold that in this case, having regard to the
admission of the respondent/plaintiff, the grant of patta
will not prove the possession of the respondent/plaintiff.”
47. The latter portion of the judgment makes it very clear that in a suit for
injunction, it had been brought out in the cross examination that the plaintiff
had attempted to take possession of the property. Unfortunately, for the
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defendant in this case, the said evidence that had been stated by the plaintiff
was not brought before the court either during the chief examination of the
defendant or any attempt was made during the cross examination of the plaintiff
to confront him with the previous statement.
48. It is settled that the admitted facts need not be proved, but at the same
time, the statement that has been made, even if I were to treat it as an
admission, can always be explained. Mere fact that a statement had been
recorded in the previous proceeding does not mean that I cannot look into the
said evidence in this particular case. It was the duty of the defendant to exhibit
the evidence/statement, which had been in his favour in the previous suit.
Having failed to do the same, he cannot claim certain words in the judgment to
show that Seeranga Gounder is not in possession of the property.
49. I should recollect, that the previous suit for bare injunction was based
on possession alone. The finding rendered by the court in that proceedings
cannot be a one based on title. However, I am dealing with a case, where the
suit is based on title and the settled position of law insofar as the vacant land is
concerned, possession always follows title.
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50. The title of the plaintiff/Seeranga Gounder having been admitted by
the defendant by virtue of the fact that he took a plea of adverse possession, the
onus falls on the defendant to prove that he had been in possession, after having
dispossessed the plaintiff/Seeranga Gounder over the statutory period. As
pointed above, no such evidence has been forthcoming from the defendant. On
the contrary, as recorded by the learned District Judge, the defendant has stated
as follows in his written statement:
“$kPd; xHpg;g[ rl;lj;jpw;F Kd;ghf ,e;j ,lj;jpy; rh;nt vz;/ 218
MFk;/ mjd; tp!;jPuzk; bjhpahJ/ rh;ntf;F gpd;g[ mjd; rh;nt vz;/
322/ ,jd; gug;gst[ bjhpahJ/ rh;nt vz;/ 366. rh;nt vz;zpd;
tp!;jPuzk; bjhpahJ/ Mdhy; khjh nfhapYf;F gl;lh bfhLf;fg;gltpy;iy/
khjh nfhtpYf;F ghj;jpag;gl;l ,lk; vd;giu fhl;l Mjhuk; vJt[k;
jw;nghJ ,y;iy/ khjh nfhtpYf;F gl;lh bfhLf;f eltof;if
vLf;ftpy;iy/ njthyaj;Jf;F ghj;jpag;gl;l epyk; vt;tst[ vd;Wk;. mjpy;
vt;tst[ ifafg;gLj;jg;gl;Ls;sJ vd;Wk; vd;dhy; Fwpg;gpl;L
TwKoahJ.”
This would show that the defendant was unable to prove that he was in
possession of the property or displace the presumption that possession follows
title and thereby, the argument that the plaintiff/Seeranga Gounder was
dispossessed of the property has to fail.
51. In any event, a finding in a suit for injunction would not be a res
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judicata on the suit for declaration of title and for injunction. This takes me to
the next question of law that has been framed to be answered by this Court on
the lines that a finding by the second appellate court on the judgment and
decree arising out of O.S.No.600 of 1996 would operate as res judicata in this
proceedings.
The plea of Res Judicata
52. In order to establish the plea of res judicata as held by the Supreme
Court in Syed Mohd. Salie Labbai v. Mohd. Hanifa, (1976) 4 SCC 780, it is
the duty of the party raising the plea of res judicata to file the pleadings in the
subsequent suit. Mere filing of the second appellate judgment and subsequently
marking it as an evidence on the side of the defendant does not mean, I have to
presume the plea of res judicata stands established. Res judicata means the
issues in the subsequent case, must have been heard and finally decided in the
previous case by the court of competent jurisdiction.
53. All I am able to discern from the second appellate court judgment is
that the plea of the plaintiff/ Seeranga Gounder is that he is in possession of the
property as per the proceedings of the revenue department and therefore, the
suit should have been decreed. The court took note of the fact that dehors the
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proceedings before the revenue department, the plaintiff, during the time of
evidence, had stated that he attempted to take possession of the property and
therefore, the suit for injunction is not maintainable. The issue of title was never
gone into by the second appellate judge.
54. On account of the fact that the pleadings, issues and judgments of the
previous proceedings had not been filed in the present proceeding, I am not in a
position to see whether the court had in fact framed the issue of title and had
rejected the same.
55. In a suit for injunction, the court is concerned only with the
possession. I hasten to add that it can incidentally go into the question of title.
Even if such a finding is incidentally gone into, it might operate as res judicata
in certain cases, but in this particular case, as none of the conditions required
for res judicata had been complied with, I am not in a position to agree with the
submission of Mr.S.Subbiah.
Possession follows title
56. The next plea is a continuation of the previous two issues, i.e.,
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possession and res judicata.
57. It is agreed by both sides that the property is a vacant land. In case of
vacant land, the settled position of law is that possession always follows title to
the property. In order to substantiate that the plaintiff/Seeranga Gounder has
title to the property, he has filed original sale deed of his father Komara
Gounder dated 25.11.1940. Apart from this, the defendant has specifically
admitted to the title of the plaintiff/Seeranga Gounder by raising the plea of
adverse possession. Owing to the same, I am satisfied that the plaintiff's
predecessor in title is the owner of the suit schedule mentioned property.
58. Once the plaintiff/ Seeranga Gounder has proved his title, he is
deemed to be in possession of the property till some evidence is shown that he
had been dispossessed of the same. Such evidence is woefully lacking in this
case. In fact, the evidence of DW1 would go on to show that he had accepted
that the patta had been granted in favour of the plaintiff/Seeranga Gounder and
yet, he had not even lift a little finger to set aside the same.
Validity of patta proceedings
59. Mr.S.Subbiah would contend that since this Court in the second
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appeal had held that the patta proceedings would not be binding on the
defendant, he need not take steps to set aside the same. The learned judge had
merely observed, while discussing the manner in which patta was granted, as
follows:
“According to me when the order passed by the Sub
Collector under Ex.A2 appears to be an exparte order, it is
not binding on the appellant and therefore, that would not
prove the possession of the respondent/plaintiff”.
This shows that Ex.A2 marked therein had been projected for the purpose of
possession alone and it was in that light, the learned judge came to the
conclusion that it is not binding on the defendant.
60. It has been settled by a series of judgments of Supreme Court starting
from Krishna Devi Malchand Kamathia & Others vs. Bombay Environmental
Action Group & Others, (2011) 3 SCC 363 that even a voidable order or void
order has to be treated as valid by the court, till it is set aside by a competent
proceeding. It is on record that right from 1996 till today, the order that had
been passed by the Sub Collector, had not been challenged.
61. The reasons for not challenging the proceeding is not far to see. The
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revenue department did not decide inter se claims between the
plaintiff/Seeranga Gounder and the defendant. It is a case where the plaintiff/
Seeranga Gounder approached the revenue department to rectify the error that
had been caused by the defendant stating that his patta land had wrongly been
classified as poramboke land during the natham survey proceedings.
62. Records are regularly updated by the revenue department in order to
identify the person from whom they have to demand kist or other revenue
charges payable for the property. The name of the person in occupation is
recorded and it is he who pays the Government, its dues. It has been seen during
such a survey that a person whose name is totally unconnected to the property is
recorded as a person not liable to pay tax to the Government. These errors can
always be corrected by an application made to the appropriate authority. It is
this correctional method that was adopted by the plaintiff/Seeranga Gounder in
the present case.
63. The fact that the property in the present case has been classified as
poramboke land does not mean it belongs to the Government. This is a
misconception, which is running in the mind of a few. Poromboke means “g[wk;”
“nghf;F”, that which is outside the scope of revenue assessment or to say in
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colloquial language, “Waste Land”. It is classified as a “waste land” because
the land is absolutely useless, insofar as the Government is concerned, the
property does not generate any revenue.
64. During the time of updating the records by the defendant through a
natham survey, the plaintiff had not claimed entry of his name in the register of
the revenue record, therefore, it was treated as a poramboke land. Coming to
know of this mistake, he had given a petition to the Sub Collector to correct the
error. The Sub Collector did not correct the error immediately. He chose to
receive a report from the concerned registration department, as to whether the
land had actually been purchased by Komara Gounder, the plaintiff's father on
25.11.1940. On such verification, finding that the sale deed was true and
genuine, the Sub Collector ordered for correction of the revenue record of the
Government. In other words, by virtue of the correction, the plaintiff/Seeranga
Gounder became liable to pay tax for the land registered under his name.
Therefore, the argument that EX.A3 need not be set aside as this Court treating
it as an exparte proceeding, is contrary to the law.
65. In fact in the previous proceedings, the argument before the Court
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was that by virtue of the revenue records, the plaintiff's father/Komara Gounder
is in possession of the property. It was that argument, which had been rejected.
The court did not hold that the proceeding of the Sub Collector is so contrary to
law that it has to be set aside. The option was always open to the defendant to
challenge the proceedings, but unfortunately the defendant did not do so.
66. To conclude this issue, as the title deed of the father of the
plaintiff/Seeranga Gounder has been filed before the court, I necessarily have to
come to the conclusion that the plaintiff's father had purchased the property in
the year 1940 and had exchanged the same with his co-owner under Ex.A2, the
decree of the court in O.S.No.8 of 1941.
Non-Registration of oral exchange
67. The next plea of Mr.S.Subbiah is that the oral exchange between the
plaintiff's father and the other co-owners, not having been registered, cannot be
relied upon. In order to substantiate this argument, he relied upon the judgment
of Supreme Court in the case of Shyam Narayan Prasad vs. Krishna Prasad &
Others, (2018) 7 SCC 646 wherein it was held that by virtue of Section 17 of
the Registration Act, if there were to be any exchange in terms of Section 118
of the Transfer of Property Act, then it necessarily has to be registered. This is
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because there is a creation of a right in one and an extinguishment of a right in
the other by virtue of the exchange.
68. A reading of Transfer of Property Act and Registration Act together
would state that unless and until the value of the property is above Rs.100/-, it
does not require registration. If we look into the value of the property that had
been given under Ex.A2, it is clear that it was only Rs.55/- on the date of
presentation of the suit in O.S.No.8 of 1941. Therefore, it certainly falls below
the threshold limit of Rs.100/- that has been fixed by the Transfer of Property
Act and Registration Act. In fact, the judgment of the Supreme Court itself
makes it clear in paragraph 17 that registration would be necessary only if the
value of the property exceeds Rs.100/-. That not being the situation in the
present case, the argument that the plaintiff's father could not hold title to the
property by virtue of oral exchange has been raised only for its rejection.
Proper and necessary parties
69. The next argument of Mr.S.Subbiah is that the Panchayat and the
Government of Tamil Nadu should have been made as proper and necessary
parties to the suit and having failed to implead the proper and necessary parties,
the suit should have been dismissed.
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70. The plea of proper and necessary parties having been raised in the
written statement, have been effectively answered by the courts below. Looking
at it from the first principles, the plaintiff/Seeranga Gounder is the dominus
litis. He need not invite litigation against the entire world in order to obtain to a
satisfactory decree. He apprehends trouble from certain quarters and presents
the suit only against those quarters. The plaintiff did not apprehend any issues
from the Government or from the Panchayat and therefore, he did not implead
them as parties to the proceedings.
71. In a suit for title, as in the present case, the plaintiff/Seeranga
Gounder feared the defendant, who was making untenable claims on the basis
of certain corrections in the revenue records, and had presented the suit against
the church. He feared that the church would dispossess him from his property
and in fact, his plea was that while trying to fence his property, elements who
supported the claim of the church had prevented him from doing so. He feared
interference from the church and therefore, filed a suit only against the church.
72. I feel that he need not implead the Government because the
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Government itself realised the error that had been committed at its end in
converting a patta land into a poramboke land and had corrected its records
under Ex.A3. This shows that there is no dispute between the Government and
the plaintiff. The panchayat too did not interfere with the possession of the
plaintiff/Seeranga Gounder. It had not laid a road over the plaintiff's property
upon knowing that the property belonged to the plaintiff/Seeranga Gounder. It
is an admitted fact that a road had been laid over a portion of the property of the
plaintiff/Seeranga Gounder, when the records classified the said proeprty as a
poromboke land. There is no evidence on record to show that after the
correction had been made in the revenue records by the Sub Collector under
Ex.A3, the panchayat staked a claim over the property.
73. A necessary party is one without whom the court cannot give an
effective decree. In this particular case, the person, who threatened the
plaintiff/Seeranga Gounder with dispossession, is the church and hence, the
suit had been presented against it and its manager. The Government had
accepted the title of the plaintiff/Seeranga Gounder and had corrected the
revenue records and the Panchayat did not interfere with the plaintiff's property
after 1996. Hence, the presence of the Government and Panchayat in this
proceeding is totally irrelevant.
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Title to the suit property
74. I have to reiterate that this is a suit for declaration of title. It is not a
judgment in rem but is only a judgment in personam. The court only decides
who has better title to the property. If the plaintiff shows better title than the
defendant, then automatically he will be entitled to a decree. But the said decree
cannot be taken to affect another person, for the better title proved in this case
will not stand judicial scrutiny in the subsequent one against a stranger, who has
perfect title to the property.
75. On one hand, I have the defendant pleading adverse possession and
thereby admitting the title of the plaintiff/Seeranga Gounder and on the other, I
have Ex.A1, the sale deed in favour of Komara Gounder. This shows that the
plaintiff/Seeranga Gounder has better title to the property than the defendant,
who merely relies upon the revenue records created during natham survey
proceedings to establish that it is a Madha Koil Poromboke.
76. Between a title deed and a revenue record, I necessarily have to
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choose the title deed over a revenue record. Revenue records are not documents
of title, but merely record the name of the assessee in order to come to the
conclusion as to who should pay taxes to the Government. A poromboke land
as already pointed out is a waste land or a non-revenue generation land. There
was no name provided in the register of the Department from the date of the
Natham survey till the correction was made by the Sub Collector. The
defendant has not taken any steps to show that it had attempted to get patta for
the property during the settlement proceedings.
77. Under the provisions of the Minor Inams Abolition Act, the
settlement proceedings had been initiated and ryotwari patta had been granted
in favour of the persons in possession of the property. Had the church been in
possession of the property during the time of introduction of the Minor Inams
Abolition Act, it would have certainly gotten a ryotwari patta for the same. This
shows that from 05.10.1943, when the final decree proceedings were passed in
O.S.No.8 of 1941 in I.A.No.692 of 1943 till the presentation of the plaint, it was
the plaintiff/Seeranga Gounder and before him, his father Komara Gounder,
who had title to the property and therefore, he is deemed to be in possession of
the vacant land. In pursuance of the same, I am unable to hold in favour of the
defendant, since there is no document that had been filed by the defendant
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including a settlement patta or even a revenue patta to prove that it had taken
possession of the property.
78. Mr.S.Subbiah would then refer to the judgments in Union of India
and others vs. Vasavi Cooperative Housing Society Limited and others,
(2014) 4 CTC 471 and M.Narayanasamy Munthadi & Others vs. N.Kuppan
and others, (2022) 4 MLJ 1 for the proposition that the plaintiff has to stand or
fall on his case and cannot rely upon the weakness of the defendant. As
discussed above, from Ex.A1 and A2, I am able to come to the conclusion that
the plaintiff's father/Komara Gounder had purchased the property and had
obtained exclusive possession of the property as against his co owners by
presentation of the suit and obtaining a final decree in O.S.No.8 of 1941. In
addition, I also rely upon the fact that the defendant has pleaded adverse
possession and, thereby, has accepted the title of the plaintiff/Seeranga
Gounder. Therefore, I am of the view that the plaintiff/Seeranga Gounder is
entitled to succeed on the strength of his case and not on the weakness of the
defendant.
Operation of the Law of Limitation
79. Mr.S.Subbiah would argue that the suit for the declaration of title that
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had been filed in the year 2012 is barred by limitation, since the cause of action
for the suit arose in the year 1996. He would submit that the liberty granted by
the Court cannot give a cause of action for the presentation of the suit.
Mr.S.Subbiah would rely upon the judgment in Shiv Kumar Sharma vs.
Santosh Kumari, (2007) 8 SCC 600 to substantiate his submission.There is no
quarrel with respect to the legal proposition that a suitor cannot rely upon a
judgment of the court for the purpose of cause of action.
80. While scanning the plaint in O.S.No.87 of 2012, I am able to see that
the plaintiff/Seeranga Gounder had not relied upon the liberty granted by the
court alone for the purpose of filing the suit for declaration and injunction. He
had originally approached the court stating that he is in possession of the
property and the court held that since the defendant had raised a dispute on
title, the plaintiff/Seeranga Gounder had to file a suit for declaration of title and
for injunction. Title was never the subject matter of the previous suit. It was a
suit based on possession. However, this is a suit based on pre-existing title.
Therefore, the authority relied upon does not help the appeallant.
81. Insofar as the period of limitation that had been framed as seen from
the additional written statement as well as from the grounds of appeal and the
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substantial questions of law is concerned, the suit is barred by virtue of Article
65 of the Limitation Act. In order to apply Article 65 of the Limitation Act, the
defendant will have to prove that he is in possession of the property and that
too, the possession must be adverse to the right of the plaintiff.
82. As discussed earlier, the defendant has failed to prove adverse
possession and therefore, Article 65 would not apply.
83. Though Mr.S.Subbiah has taken the plea of Article 65 of the
Limitation Act before the courts below and before me, he would state that the
suit is also barred under Article 58 of the Limitation Act.
84. I am afraid that it is not open to a party to cherry pick the Article
under which he wants to choose to contest the case of the plaintiff/Seeranga
Gounder. Having taken a clear and categorical stand that the suit is barred under
Article 65, which presupposes his possession, today it is not open to the
defendant to raise a new plea that though he is not in adverse possession of the
property, still he can have the suit dismissed under Article 58.
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85. A new plea in second appeal, that too, without foundational base is
unacceptable. However, since the plea has been made, I decided to go through
the same. Article 58 applies for suits seeking “any other declaration” that has
been sought for by a party. This grants a period of limitation of three years from
the date on which the cause of action first arises. It comes under Part IV of the
Limitation Act. Insofar as immovable properties are concerned, the specific
provision that deals with such suits is Part V - the suit relating to immovable
property.
86. When there is a specific provision under the Limitation Act to obtain
a declaration with respect to immovable property, I cannot apply general
provisions under Part IV. Even otherwise, having chosen to raise the plea of
adverse possession, the defendant had admitted to the title of the
plaintiff/Seeranga Gounder and therefore, the question of cause of action arising
as against the defendant would only be governed by under Article 65, and not
under Article 58. Even otherwise, if there is no specific provision, the provision
that will apply is Article 113. Under Article 113, the provision states that every
time the plaintiff's right in interfered with, the right to sue accrues under 113.
87. Comparing Article 113 with Article 58, the term “first accrues” is not
found under Article 113. It is only found under Article 58, which deals with
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“other declarations”. Article 58 applies for suits touching upon the movable
property or those not covered under other provisions. It is a general catch-all
provision for declaration and not specific to immovable properties. Therefore,
the suit is not barred by limitation.
Bar of the suit under the Minor Inams Abolition Act
88. Mr.S.Subbiah would then contend that the suit is barred by virtue of
Section 64 of the Minor Inams Abolition Act. He would rely upon the classic
judgment of the Supreme Court in State of Tamil Nadu Vs. Ramalinga
Swamigal Madam, (1985) 4 SCC 10.
89. Section 64C of the Minor Inam Abolition Act reads as follows:
"64-C. Finality of orders passed under this Act.-
(1) Any order passed by the Government or other authority under
this Act in respect of matters to be determined for the purpose of this Act
shall, subject only to any appeal or revision provided by or under this
Act, be final.
(2) No such order shall be liable to be questioned in any Court of
law."
90. A careful reading of the judgment in (1985) 4 SCC 10 would lead me
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to the conclusion that the suit is not barred and therefore, the argument relying
on Section 64C deserves to be rejected.
91. This very issue was considered by the Supreme Court in the said
judgment and the court had held that the Minor Inams Abolition Act does not
bar the jurisdiction of the civil court to decide the disputes on title. The
Supreme Court held that even if a patta is granted or refused under the said Act,
it is always open to a litigant to approach the civil court for the purpose of
obtaining the relief of declaration of title.
92. In the case at hand, the plaintiff/Seeranga Gounder had sought not
patta under the Minor Inams Abolition Act and the same had not been refused.
It is the specific case of the plaintiff that Komara Gounder had been in
possession of the property right from the time of purchase in the year of 1940
and after obtaining a final decree in the suit in O.S.No.8 of 1941 on the file of
the District Munsif at Namakkal till his death. Subsequently, after the death of
his father, the plaintiff had been in possession of the property by the virtue of
succession.
93. The purpose of the Minor Inams Abolition Act was to remove the
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intermediary between the Government and the ryot. The idea being that the
Zamindari system, being contrary to the tenants of the constitution especially
Articles 39-B and 39-C, must be abolished. Having abolished the Zamindhari
system, the Government decided to find out from whom it had to recover the
taxes for tilling the land. The purpose of enactment was only to that end.
94. The Supreme Court in paragraph 12 of the said judgment had clearly
and categorically laid down the purpose for which the enactment had been
made. The object of granting ryotwari patta was to identify and register the
person in the revenue records, from whom the revenue has to be recovered and
also to enable the patta holder to cultivate the land. The relevant portion are
extracted hereunder:
“12. …..The enactment and its several provisions are thus
intended to serve the revenue purposes of the Government, by way of
securing to the Government its sovereign right to collect all the revenues
from all the lands and to facilitate the recovery thereof by the Government
and in that process, if necessary, to deal with claims of occupants of
lands, nature of the lands, etc. only incidentally in a summary manner and
that too for identifying and registering persons in the revenue records
from whom such recovery of revenue is to be made. The object of
granting a ryotwari patta is also to enable holder thereof to cultivate the
land specified therein directly under the Government on payment to it of
such assessment or cess that may be lawfully imposed on the land.
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Section 16 is very clear in this behalf which imposes the liability to pay
such ryotwari or other assessment imposed upon the land to the
Government by the patta-holder. The expression “for the purposes of this
Act” has been designedly used in the section which cannot be ignored but
must be given cogent meaning and on a plain reading of the section
which uses such expression it is clear that any order passed by the
Settlement Officer either granting or refusing to grant a ryotwari patta to a
ryot under Section 11 of the Act must be regarded as having been passed
to achieve the purposes of the Act, namely, revenue purposes, that is to
say for fastening the liability on him to pay the assessment or other dues
and to facilitate the recovery of such revenue from him by the
Government; and therefore any decision impliedly rendered on the aspect
of nature or character of the land on that occasion will have to be
regarded as incidental to and merely for the purpose of passing the order
of granting or refusing to grant the patta and for no other purpose.”
Therefore, the suit for declaration of title being independent of the provision
under Section 64-C, the present case is not barred by the operation of Minor
Inams Abolition Act.
The plea of consequential relief and recovery of possession
95. Mr.S.Subbiah would then cite (i) Union of India v. Ibrahim Uddin,
(2012) 8 SCC 148, (ii) Saravanan Pillai v. A.S. Mariappan, (2002) 1 MLJ 419
and (iii) Venkataraja v. Vidyane Doureradjaperumal, (2013) 3 CTC 4402 to
show that the suit for declaration without consequential relief and recovery of
possession is bad in law.
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96. Suit for recovery of possession would be necessary only if the
plaintiff is not in possession of the property. In order to show that the
plaintiff/Seeranga Gounder is not in possession of the property, Mr.S.Subbiah
would refer to the finding of this court in paragraph 12 of S.A.Nos.952 & 953
of 2011. As already discussed, in the said judgment, the court had only held the
suit for injunction is not maintainable. The court had never recorded a clear and
categorical finding that the plaintiff is not in possession of the property. As
already discussed, the court held that patta will not prove the possession of the
plaintiff and has not entered a finding that the plaintiff himself is not in
possession of the property. In any event, a finding given in a suit, after it had
been held as not maintainable cannot be held to be binding, see, (1973) 89 LW
355 (DB).
97. Mr.S.Subbiah would then rely upon Sennimalai Gounder (Died) and
Others vs. Additional District Magistrate & District Revenue Officer and
Others, 2019 4 CTC 341 to argue that the Sub Collector does not have the
power of cancellation of ryotwari patta granted under the Minor Inams
Abolition Act. I am flummoxed as to how the judgment is applicable to the
facts of the case.
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98. In Sennimalai Gounder's case (2019) 4 CTC 341 referred supra, the
Sub Collector had cancelled the patta granted under the Minor Inams Abolition
Act. The patta granted under the Minor Inams Abolition Act is one granted by
the Settlement Tahsildar and to set aside the same, the aggrieved person has to
go only before the Inams Abolition Tribunal, (ie) the Jurisdictional Sub Court.
Instead of doing so, the Sub Collector himself cancelled the patta. Therefore,
this Court had held that the patta granted under the Minor Inams Abolition Act
cannot be cancelled by the Sub Collector. In this case, there was a wrong
classification during the natham survey. Natham survey is not done either under
the provisions of Minor Inams Abolition Act, be it Act 30 of 1963 or Act 26 of
1963, but by the virtue of Government Order issued from time to time to update
the records. These updations are not done under the statutory provisions as
stated above.
99. The classifications were done by the Village Administrative Officer
or by officer above his rank, till the rank of Tahsildar. Under the standing
orders of the Board of Revenue as well as the general instructions given by the
Government for correction of records, the Sub Collector possesses the
jurisdiction to correct the revenue records that are being maintained by the
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authorities who report to him. It is in exercise of that power, the Sub Collector
had corrected the revenue records. To reiterate the updation, the reclassification
of the land from Natham to poramboke was not done under the aforesaid
statutory enactments but by the order of revenue authorities and therefore, the
said judgment is not applicable to the present case.
100. Mr.S.Subbiah would then cite Vellaiamma and another vs.
Subbulakshmi and Others, (2024) 1 MLJ 686 to argue that the suit for
declaration is barred by time. The period of limitation for a suit for declaration
is three years.
101. I carefully went through the judgement and found that it was a case
where declaration was sought for in consequence to a declaration that a
settlement deed is null and void. The Division Bench held that since the first
relief is barred by time, then the consequential relief also barred by time. In the
facts of this case, since Article 65 does not bar the suit, this judgement is
inapplicable.
102. In Vellaiamma's case apart from the major grounds on which the
court proceeded, the previous suit that had been presented, had been withdrawn
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without liberty and therefore, the court held the subsequent suit on the same
cause of action as not maintainable. Hence, the case referred supra is absolutely
inapplicable to the facts of the present case.
103. Mr.S.Subbiah would rely upon the judgment in The District
Collector Collectorate, Kancheepuram & Others vs. S.Guhan, (2022) 3 LW
94 to argue that since the revenue records show the property as Madha Koil
Poromboke, the church has to be treated in possession of the property.
104. I have gone through the judgment. In paragraph 24 of the said
judgment, the learned Judges after referring to the 'A' register came to the
conclusion that the name of the temple had been included in the 'A' register as
early as 1951. It was in the light of the 'A' register of the 1951, the court came
to the conclusion that the temple and the lake attached to the temple therein
belonged to the temple.
105. It is not the case of the plaintiff/Seeranga Gounder and certainly not
the case of the defendant that 'A' register carries the name of the defendant. On
the contrary as seen from Ex.A3, it was the revenue authority, which had made
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a mistake while updating the revenue records and has wrongly classified a patta
land as a Poromboke one. 'A' register, on the basis of which the judgment was
rendered in The District Collector & Others vs. S.Guhan, (2022) 3 LW 948
is absent in the present case.
106. Similarly in Arulmigu Subramaniaswamy koil, Kurumbur-
represented by its Hereditary Trustees 1.Dharmambal and 2. Thamaraiselvan
vs. V.Karuppiah & others, (2021) 1 LW 595, the learned Single Judge came to
the conclusion that in the A-register, the name of the temple was found therein.
As stated above, A-register was not produced in this case to show that the name
of the church was included as the owner of the land. Hence this judgment too is
inapplicable to the facts of the case.
107. In the light of the above discussion, I am of the clear view that the
plaintiff/Seeranga Gounder has proved his right, title and interest over the suit
schedule mentioned property.
Discussion on S.A.No.839 of 2016
108. Insofar as S.A.No.839 of 2016 is concerned, I have to refer Ex.A3,
which is a crucial document in this case. Ex.A3 reads as follows:
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Second Appeal Nos.838 & 839 of 2016 &
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“nkw;go kDjhuh; M$h;gLj;jpa Mtz vz;/3934 ehs; 25/11/1940.
cz;ikahdJ jhdh vd;gijf; fz;lwpa ehkf;fy; $hapz;l; 2 rhu;gjpthsUld;
bjhlh;g[ bfhs;sg;gl;lJ/ ,tu; jdJ 26/3/96 njjpapl;l fojj;jpy; nkw;fz;l
Mtz';fis xg;gpl;L ghu;j;J rupahdJ vd;W Twpa[s;shu;/
kDjhuu; kw;Wk; ts;spg[uk; fpuhkeph;thfmYtyh; Mfpnahu;fis ,J
rk;ge;jkhf tprhuiz bra;ag;gl;lJ/ kDjhuu; jdJ thf;F K:yj;jpy; gpu!;jhg epyk;
ehkf;fy; $hapz;l; 2 lhf;Fbkz;l; vz;/3934 ehs; 25/11/1940 K:yk; jdf;F
gpJuhu;$pjkhf ghj;jpag;gl;L mDgtj;jpy; cs;sjhft[k;. gpu!;jhgepyj;jpy; tlg[wk;
ehkf;fy; gukj;jp nuhod; bjd;g[wk; xU K!;yPk; FLk;gj;ij thliff;F mkh;j;jp
thlif bgw;W te;jjhft[k;. 1993y; ej;jk; ru;nt bra;jnghJ. c&ypkhgP vd;gtu;
ngUf;F 0/0053/5 bcwf;;lu; epyj;ij jtwhd jfty; bfhLj;J gl;lh bgw;Wf;
bfhz;ljhft[k;. kPjp epyj;ij gf;fj;jpy; cs;s khjhnfhtpy; g[wk;nghf;F vd;W fpuhkf;
fzf;Ffspy; jhf;fy; bra;Js;sjhft[k;. ,jd; tptuk; kDjhuUf;F bjupe;J
g";rhaj;J bra;J. nkw;go c&ypkhgP tifawhtplkpUe;J 648 rJumo kidtpyj;ij
jdJ kidtp gHdpak;khs; ngUf;F fpuak; bgw;Wtpl;ljhft[k;. kPjk; cs;s
6750?648?6102 rJumo epyj;ij jd;ngUf;F gl;lh tH';Fk;goa[k; Twpa[s;shu;/ fpuhk
epu;thf mYtyupd; thf;FK:yk;. kDjhuupd; thf;FK:yj;ij Cu;$pjk; bra;nj
Twg;gl;Ls;sJ/
fpuhkepu;thf mYtyupd; thf;FK:yk; kDjhuupd; thf;FK:yk;
Kjypaitfspd;ngupy; gpu!;jhg epyj;ij 1/4/96y; jzpf;if bra;ag;gl;lJ/ kDjhuUf;F
nkw;fz;l lhf;Fbkz;l; go fPH;f;fz;l kidepyk; g{h;tPfkhf ghj;jpag;gl;lJ/
gukj;jp nuhl;ow;F ? bjw;F/
thHte;jp nuhl;ow;Fk; ? nkw;F/
Mjpjpuhtplu;fs; fhydpf;Fk; ? tlf;F/
khjhnfhtpy; fhypepyj;Jf;Fk; ? fpHf;F/
nkw;fz;l rf;Fge;jpapy; fpHnky; 60 Khk; my;yJ 90 mo. bjd;tly; 50
KHk; my;yJ 75 mo Mf TLjy; 6750 rJumo kid epyk; ,e;j kid epyk;
g{uht[k; fPH;f;fz;lthW 1993y; ele;j ru;ntapy; ej;jk; epytupj; jpl;l Jha ml';fypy;
jhf;fy; bra;ag;gl;Ls;sJ/
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r/vz;/ kw;Wk; cl;gphpt[ jd;ik gug;g[ gl;lh vz;Qqk; Fwpg;g[ bgaUk;
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?
322-5 kid 0/0053/5 21 c&ypkhgP
326-6 g[wk;nghf;F 0/1620/0 ? khjhnfhtpy;
kDjhuu; rk;kjj;jpd; ngupy; FoapUe;j K!;yPk; FLk;gj;jhu; jtwhf
gpnunugid bra;J gl;lh bgw;w ghfj;ij g";rhaj;J bra;J kDjhuu; jdJ kidtp
ngupy; 648 rJumo epyk; ehkf;fy; vz; 2 ,izrhu;gjpthsu; mYtyf lhf;Fbkz;l;
vz;/279. ehs; 6/2/96 K:yk; fpuak; bgw;Ws;shu;/ kPjKs;s 6740?649?6102 rJumo
kid epykhFk;/
kDjhuUf;F gpu!;jhg Mtz';fs; ngupYk;. RthjPdj;jpd; ngupYk; nkw;fz;l
6102 rJumo kidepyk; ghj;jpag;gl;lJ vd;gJ Cu;$pjkhfpwJ/ vdnt. nkw;go
fpuhkk;. ru;nt vz;/322-6 g[wk;nghf;F tp!;jP/0/1620/0 bcwf;lh; epyj;jpypUe;J 6102
rJumo kidepyj;ij kDjhuu; jpU/rPu';f ft[z;lu;. j-bg/bfhkuft[z;lu; ngupy;
ej;jk; epytupj;jpl;l Jha ml';fy; gjpntl;oy; jhf;fy; bra;a[k;go ehkf;fy;
tl;lhl;rpaUf;F ,jd; K:yk; cj;jutplg;gLfpwJ/”
109. A perusal of Ex.A3 shows that during the time of updating the
revenue records, the party to be found in possession of the property was one
Hanima Bi. She had also been granted patta by the Government. The defendant
has also admitted to the fact that Hanima Bi was in possession of the property.
However, it took a plea that Hanima Bi was a licencee under the defendant. The
said licence had not been proved.
110. On the contrary, Ex.A3 shows that patta had been granted in
recognition of possession of the property. It was this possessory title that has
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been transferred by Hanima Bi and others in favour of the
plaintiff/Palaniammal. Therefore, as antecedent title deeds have not been filed, I
am not inclined to reject the suit as a whole, but I am inclined to modify the
decree of the courts below by holding that Palaniammal is entitled for a decree
of possessory title by virtue of Ex.A9. The said Palaniammal has proved that
she is in possession of the property by virute of Ex.A10. A cumulative reading
of Ex.A9 and Ex.A10 makes one arrive to the conclusion that Palaniammal is in
possession of the property. Therefore, while rejecting the larger prayer of
declaration of title sought for by the plaintiff, I am inclined to grant a
declaration of possessory title of the suit schedule mentioned property.
Discussion in CMP.No.17807 of 2016
111. C.M.P.No.17807 of 2016 has been filed under Order 41 Rule 27 of
CPC to receive the records that have been produced by the defendant in
W.P.No.24872 of 2010.
112. In order to satisfy the requirements of Order 41 Rule 27, the primary
test is that the party producing this document should not have had the
opportunity to produce the same before the trial court and due to the failure of
the opportunity, the said document must not be filed. The second test is that
these documents are necessary for the purpose of adjudicating the appeal.
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113. The records that have been produced before the court in the petition
under Order 41 Rule 27 CPC were very much available with the
petitioner/defendant at the time of trial in O.S.No.87 of 2012 and also at the
time of filing the appeal in A.S.No.3 of 2016. At both these points of time, the
said documents were not filed. These documents are now being sought to be
introduced for the first time in the second appeal.
114. This court thus has the power to admit the additional documents by
virtue of powers conferred on it under Order 41 Rule 27 read with Sections
103, 107 & 108 of CPC. However, a look at these documents would go to show
that these are the proceedings which have been initiated by the revenue
department on the application that had been filed by the son of the plaintiff.
These documents require oral evidence that ought to have been put to the
witness PW1 at the time of examination.
115. I have already discussed the case of the defendant who had pleaded
the aspect of adverse possession and thereby had accepted the plaintiff as the
owner of the property in possession of the same. None of these records that
have been produced before me point out to the said fact of adverse possession.
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All of them commenced in the year 2010. Furthermore, the documents require
oral evidence and cross examination to substantiate the same.
116. Mr.S.Subbiah would refer to the recent judgment of Sanjay Kumar
Singh v. State of Jharkhand, (2022) 7 SCC 247 to argue that the filing of
additional evidence is maintainable in second appeal. I am entirely with
Mr.S.Subbiah on the power of the court. However, whether I want to exercise
this power in the particular facts of the case, is my discretion. As held by the
Supreme Court in paragraph 8, it is for the appellate court to decide, whether it
can pronounce the judgment without taking into consideration the additional
evidence sought to be adduced.
117. As seen above, I find that the evidence already adduced are
sufficient to point out to the title of the plaintiff/Seeranga gounder especially in
the light of the plea of adverse possession taken by the petitioner in the
additional written statement. That is why, I proceed further and pronounce the
judgment. Consequently, I do not find any necessity to go through the
additional evidence.
118. Another aspect which looms large in my mind is that, if I were to
receive the additional evidence, I have to necessarily remand the suit either to
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the first appellate court or to the trial court. Doing so would only increase the
agony of the parties, who have been facing the litigation from the year 1996. I
am not inclined to add fuel to the agony. Hence CMP.No.17807 of 2016 stands
dismissed.
Decision in W.P.No.28472 of 2010
119. Insofar as writ petition No.28472 of 2010 is concerned, as I have
already held that Seeranga Gounder is the owner of the property in S.A.No.838
of 2016, no further orders are necessary in the writ petition. In fact the order
passed by the civil court will bind the writ court. I have held that Seeranga
Gounder is in possession and enjoyment of the property. Consequently, the writ
petition filed prior to the commencement of this litigation is unnecessary to be
adjudicated. Consequently writ petition stands closed. No costs.
Decision in both Second Appeals
120. In fine, S.A.No.838 of 2016 stands dismissed and the judgment and
decree of the court of Principal District Judge at Namakkal in A.S.No.3 of 2016
dated 02.09.2016 in confirming the judgment and decree of the court of
Subordinate Judge in O.S.No.87 of 2012 dated 01.12.2015 stands confirmed.
S.A.No.839 of 2016 stands partly allowed. The judgment and decree of the
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court of learned Principal District Judge in A.S.No.4 of 2016 in confirming the
judgment and decree of the Subordinate judge at Namakkal in O.S.No.48 of
2014 dated 01.02.2015 is modified. Decree for declaration of title is rejected.
The decree of possessory title is granted in favour of Palaniammal. Costs
throughout.
08.03.2024
nl
Index : yes / no
Neutral Citation : yes / no
Speaking / Non Speaking Order
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To
1.The Principal District Judge, Namakkal
2.The Subordinate Judge, Namakkal
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V.LAKSHMINARAYANAN, J.
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