Madras High Court
Iyyakannu vs Subramanian ... ... on 26 March, 2012
Author: M. Venugopal
Bench: M. Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.03.2012
CORAM
THE HONOURABLE MR. JUSTICE M. VENUGOPAL
S.A.No.1116 of 1999
1.Iyyakannu
2.Kannan ... Defendants/Appellants/Appellants
Vs.
Subramanian ... Plaintiff/Respondent/Respondent
The present Second Appeal is filed against the Judgment and Decree of the Learned Civil Judge, Senior Division, Kallakurichi in A.S.No.290 of 1996 dated 21.04.1998 in confirming the Judgment and Decree of the Court of the Learned Additional District Munsif, Kallakurichi in O.S.No.318 of 1990 dated 31.07.1995.
For Appellants : Ms.Starli for M/s.V.Raghavachari
For Respondent : Mr.V.Radhakrishnan
J U D G M E N T
The Appellants/Defendants have focused this instant Second Appeal adverting upon the Judgment and Decree dated 21.04.1998 in A.S.No.290 of 1996 passed by the Learned Civil Judge (Senior Division), Kallakurichi in affirming the Judgment and Decree dated 31.07.1995 in O.S.No.318 of 1990 passed by the Learned Additional District Munsif, Kallakurichi.
2.The First Appellate Court, while passing the Judgment in A.S.No.290 of 1996 (A.S.No.231 of 1995 on the file of the Villupuram District) on 21.04.1998, has, inter alia opined that 'the Respondent/Plaintiff has improved the suit property and has been in enjoyment of the same and also based on Ex.A.1 Assignment Order, the suit property has remained as a separate property of the Respondent/Plaintiff. Further, it has also observed that the suit property has been in enjoyment of the Respondent/Plaintiff based on Ex.A.1 Assignment Order dated 10.04.1980 and the enjoyment has also been established as per Exs.A.2 to A.8. Moreover, it also held that Ex.A.1 Assignment Order, till date, has not been cancelled and observed that the reliefs granted by the trial Court in favour of the Respondent/Plaintiff are correct and affirmed the Judgment and Decree of the trial Court and thereby, dismissed the Appeal without costs.'
3.In the main suit, before the trial Court, 1 to 3 issues have been framed for adjudication. On behalf of the Respondent/Plaintiff, witness P.W.1 has been examined and Exs.A.1 to A.10 have been marked. On the side of the Appellants/Defendants, witness D.W.1 has been examined and Exs.B.1 to B.6 have been marked.
4.The trial Court, upon a scrutiny and analysis of the oral and documentary evidence available on record, has categorically held that as per Ex.A.1 Assignment Order, the suit property is the separate property of the Respondent/Plaintiff and as per Exs.A.2 to A.8 it has been proved that the Respondent/Plaintiff has been in enjoyment of the suit property independently and granted the relief of declaration in respect of the suit property and also the relief of permanent injunction restraining the Appellants/Defendants from in any way interfering with the enjoyment of the suit property by the Respondent/Plaintiff.
5.At the time of admission of the Second Appeal, this Court has framed the following substantial question of law for consideration:
"When the very basis of the claim of the plaintiff on Ex.A.1 (an assignment order) is subject to an appeal before the Revenue Authorities, is it open to the courts below to place reliance on the same and decree the suit as prayed for?"
The Contentions, Discussions and Findings on Substantial Question of Law :
6.According to the Learned Counsel for the Appellants/Defendants, the Courts below should have seen that the suit property has been under the enjoyment of the Respondent/Plaintiff and the Appellants/Defendants and none has exclusive right over the same.
7.The Learned Counsel for the Appellants/Defendants urges before this Court that the Respondent/Plaintiff does not have any right in presenti and he has also admitted that he has settled the property on his minor grandson Elavalagan. As such, both, the trial Court as well as the First Appellate Court have erred in granting the relief of declaration and injunction.
8.The Learned Counsel for the Appellants/Defendants projects a plea that both the Courts have failed to appreciate that Exs.B.1 to B.3 clearly prove that the property jointly stood in the name of the Respondent/Plaintiff and the Appellants/Defendants, which affirms the stand of joint possession. Moreover, Adangal Extract Ex.B.6 also prove the joint possession of the parties, which has not been properly adverted to by the Courts below in right perspective.
9.Yet another submission of the Learned Counsel for the Appellants/ Defendants is that the Ex.A.1 Assignment Order dated 10.04.1980 has been set aside by the Revenue Divisional Officer and subsequently, revised by the Superior Authority and the same is also subject to revision before the District Collector, Villupuram and therefore, no reliance can be placed on Ex.A.1 Assignment Order.
10.Lastly, it is the contention of the Learned Counsel for the Appellants/ Defendants that when a case is pending before the Civil Court, it is obligatory on the part of a Court of Law to find out the title to the property and one cannot place reliance on the revenue records.
11.Conversely, it is the submission of the Learned Counsel for the Respondent/Plaintiff that after Ex.A.1 Assignment Order dated 10.04.1980, the Respondent/Plaintiff has been in possession and enjoyment of the suit property in his own right by paying land kist and also that the Appellants are the brothers of the Respondent/Plaintiff and that the Respondent/Plaintiff is an old illiterate person and that the Appellants/Defendants have no right in the suit property and on 04.04.1990, they have made an endeavour to interfere with the possession and enjoyment of the suit property by the Respondent/ Plaintiff and both the Courts below have rendered a concurrent finding of fact that the suit property based on Ex.A.1 Assignment Order has been in possession and enjoyment of the Respondent/Plaintiff, as evidenced from Exs.A.2 to A.8 and therefore, the trial Court has rightly passed a Decree of declaratory relief and consequent injunction in favour of the Respondent/Plaintiff and also that the First Appellate Court has dismissed the First Appeal filed by the Appellants/Defendants and the same need not be interfered with by this Court in the Second Appeal.
12.For a fuller and better appreciation of the merits and the subject matter of the issues in the suit, this Court pertinently refers to the oral evidence of PW1 and DW1 to promote substantial cause of Justice.
13.Based on Ex.A.1 Assignment Order dated 10.04.1980 , Ex.A.3 UDR Patta dated 10.04.1980 has been issued in favour of the Respondent/Plaintiff. As per Ex.A.7 order dated 31.03.1993 passed by the District Revenue Officer, Ex.A.6 order dated 26.07.1992 of the Virudhachalam Divisional Officer has been set aside. Further, as per Ex.A.8 Kallakurichi Tahsildar's order dated 31.10.1986, patta has been issued in favour of the Respondent/Plaintiff by cancelling the Ex.B.1 order dated 26.03.1986 passed by the Special Tahsildar. As per Ex.B.3 the joint patta has been issued in favour of the Respondent/Plaintiff and the Appellants/Defendants. As a matter of fact, the trial Court in its Judgment in the main suit has observed that based on Ex.A.6 order dated 26.07.1992 passed by the Virudhachalam Divisional Officer, Ex.A.1 Assignment Order has been cancelled and on that basis, it has been entered in Ex.B.6 Adangal copy that the Plaintiff and the Defendants are in enjoyment of the suit property and as such, it cannot be construed that the parties are in joint enjoyment of the property.
14.The Standing Orders of the Board of Revenue Volume-I, 15, under Section II with the caption that 'the ordinary rules which apply to the disposal of assessed lands not being reserved', (vii) speaks of Direct cultivation, which runs as follows.
(vii) Direct cultivation - Direct cultivation shall mean cultivation on one's own account by one's own labour, by the labour of any member of one's family or by servants on wages payable in cash or kind (but not in crop share) or by hired labour under one's own supervision or the personal supervision of any member of one's family.
(vide G.O.296.Rev., dated 10.02.54)
15.The Standing Orders of the Board of Revenue Volume-I, 15(3)(xi) deals with the power of the Resuming Authority and the same runs thus:
(xi)Resuming authority.- The authority competent to resume and re-enter on lands for breach of any condition of assignment shall be as follows:-
(a)The Tahsildar, if the land is non-valuable, and
(b)The Revenue Divisional Officer, if the land is valuable:
Provided that if in any case a larger extent of land than 2 = acres wet or irrigable dry or 5 acres dry has been assigned on the orders of the Collector, in such case, the Collector shall be the authority competent to order resumption and re-entry.
(vide G.O.3379, Rev., d. 1.11.1955) Note: Please see paragraph 3(2)(i) for the definition of the word Tahsildar, G.O.No.3316, Rev. d. 5.9.1958.
16.The Standing Orders of the Board of Revenue Volume-I, 15(3)(3) speaks of Who are eligible for assignment and the same is as follows:
(3)Who are eligible for assignment (i)Only landless and poor persons who are likely to engage themselves in direct cultivation shall be eligible for assignment of land free of land value, subject to the conditions of assignment, imposed in the 'D' Form patta. Co-operative societies consisting entirely of landless and poor persons who are likely to engage themselves in direct cultivation, shall also be eligible for cost free assignment of both valuable and non-valuable lands provided lands are available in compact blocks.
(Vide G.O.No.296, Rev., d.10.02.1954 B.P.Mis.No.1791, d. 21.12.1956)
17.The Standing Orders of the Board of Revenue Volume-I, 15(9) refers to 'Grant of Darkhast' which enjoins as follows:
9.Grant of Darkhast. - If the village officers' report shows that no objection exists to the grant of the land applied for and there is only one applicant therefor, the land sho0uld be granted to him on his complying with the conditions set forth in paragraphs 14 and 29 below. If there are several applicants, the Tahsildar should decide which of them is entitled to preference and should at once issue to him a notice in Form C-1 in Appendix V for the recovery of the value of tree on the land, demarcation charges, etc., unless it is proposed to waive their collection. If the person pays, the assignment should be made. If he does not pay, the Tahsildar may make an offer as above to the person whom he considers to have the next best claim to the land. joint assignment in the names of more than one person should not be made in any circumstances. A Tahsildar should not on his own authority refuse to assign assessed land unless it fails within any of the classes specially provided for in paragraph 22 of this Order. If he considers the assignment objectionable, he should obtain sanction of the Divisional Officer to its registry as poramboke or its entry as reserved in the accounts. Where a portion of a survey field is applied for, it may be granted on Darkhast, provided that it is in a single block and not in patches and is readily accessible from without; provided also that the rest of the filed is left in a compact and convenient block suitable for future assignment and not left in patches or narrow strips where the darkhast is for a portion of a field which does not fulfil these conditions, it is open to the Tahsildar to refuse to grant the application unless the applicant consent to pay the assessment fixed on the entire field.
(vide B.P.5632, d. 9.9.63, B.P.54, d. 6.3.05, B.P.500, d.25.2.86, G.O.2815, Rev., d.16.12.21, B.P.319, Sett., d.4.9.09, G.O.687, d.9.03.08, B.P.79, d.22.4.08, B.P.10, d.28.2.22 and B.P.24, Sett., d.21.1.15.)
18.It is not out of place for this Court to point out that Section 4 of the Tamil Nadu Patta Passbook Act provides that the entries in the Patta Passbook and the certified copies of the entries in the Patta Passbook shall be presumed to be true and correct until the contrary is proved or a new entry is lawfully substituted therefor. Section 6 says that the entries in the Patta Passbook issued by the Tahsildar as per Section 3 shall be prima facie evidence of title of the individual in whose name the Patta Passbook has been issued to the parcels of land entered in the Patta Passbook free of any encumbrance, unless or otherwise specified therein. The proviso to Section 14 speaks of the fact that if any person aggrieved as to any right of which he is in possession, by an entry made in the Patta Passbook under this Act, he may file a suit for a declaration of his rights as per Chapter VI of the Specific Relief Act, 1963. The entry in the Patta Passbook shall be amended in accordance with any such declaration. Therefore, it can be safely said that the Patta Passbook only provides a prima facie evidence, though it is a rebuttable one in the eye of law, as opined by this Court.
19.P.W.1 (the Respondent/Plaintiff) in his evidence has deposed that the suit property belongs to him and already the suit property belonged to the Government as Tharisu land and that he has improved the suit property and has cultivated the same and later the suit property has been assigned by the Government in his favour and Assignment Order is Ex.A.1 dated 10.04.1980 and that he is in enjoyment of the suit property and the kist paid by him in respect of the suit property are Exs.A.2 series (three receipts), Ex.A.3 is the Patta Book issued in respect of the suit property in his name and Ex.A.4 is the UDR patta bearing No.1448 issued in his name and further, his brothers have no right in the suit property and his father has three wives and the 1st Appellant/ 1st Defendant is the 1st wife's son, he is the 2nd wife's son and the 3rd Defendant is the son of the 3rd wife.
20.The evidence of P.W.1 is also to the effect that to cancel the Assignment Order Ex.A.1 dated 10.04.1980 granted in his favour, the Defendants have submitted a petition before the Virudhachalam District Revenue Officer and Ex.A.6 is the Order dated 26.07.1992 passed by him cancelling Ex.A.1 Assignment Order and as against the Ex.A.6 Order, he preferred an Appeal and Ex.A.7 is the District Revenue Officer's order dated 31.03.1993 cancelling Ex.A.6 Order.
21.P.W.1 in his cross examination has deposed that he has earlier filed a suit in O.S.No.178 of 1986 in respect of the suit property and has withdrawn the same and Ex.B.2 is the plaint copy in O.S.No.178 of 1986 and further, Ex.B.2 O.S.No.178 of 1986 has been filed against the Appellants/Defendants and in Ex.B.2, plaint copy in O.S.No.178 of 1986, it is mentioned that he has executed a Settlement Deed/Gift Deed in favour of minor Elavalagan and as per settlement, the suit property belongs to his grandson Elavalagan. Further, he has filed O.S.No.728 of 1989 against the minor Elavalagan praying for the relief of declaration that the Settlement Deed executed by him in respect of the suit property, instead of writing a Will, is invalid and the said suit has ended in his favour and therefore, the suit property is in his enjoyment.
22.D.W.1 (2nd Defendant) in his evidence has deposed that the 1st Defendant and the Respondent/Plaintiff are his brothers and the suit property has already remained as a fallow land and the suit property has been improved and his father has been doing the cultivation and after the death of his father, the Respondent/Plaintiff and the Defendants have cultivated the suit property and has been in enjoyment of the same.
23.Also, it is the evidence of DW1 that the Respondent/Plaintiff has projected a petition to assign the suit property in his favour and since, all of them remained joint at that time, he has presented a petition to issue the assignment in favour of the Plaintiff and based on that, the Assignment Order has been issued in favour of the Respondent/Plaintiff and after Ex.A.1 Assignment Order, the Respondent/Plaintiff and the Appellants/ Defendants are in enjoyment of the suit property.
24.It is the further evidence of D.W.1 that the Appellants/Defendants have not sub divided their share separately in the suit property and that the Respondent/Plaintiff has paid the kist in respect of the suit property and that the Appellants/Defendants have not paid the kist in respect of the suit property.
25.It is to be pointed out that Ex.A.1 Assignment Order dated 10.04.1980 has been issued in favour of the Respondent/Plaintiff. In Ex.A.1 Assignment Order, it is mentioned that the land is in the name of the Respondent/ Plaintiff's father Mottiyan. In Ex.A.6 cultivation Adangal accounts issued by the Regional Deputy Tahsildar, Kallakurichi, the name of the Appellants/ Defendants and the Respondent/Plaintiff are found. D.W.1 in his evidence has clearly admitted that Mottiyan has three wives and they lived separately. The Respondent/Plaintiff has been living separately and therefore, Ex.A.1 Assignment Order has been issued in his favour. D.W.1 in his evidence has admitted that the Appellants/Defendants 1 and 2 have been working as Coolie and eking their livelihood and also the father of the parties has been doing wood cutting job in hotels. Therefore, as per the evidence of D.W.1, it cannot be said that at any point of time either Mottiyan or the Appellants have been in enjoyment of the suit property.
26.After improving the property independently, the Respondent /Plaintiff has been in enjoyment of the suit property and based on Ex.A.1 Assignment Order dated 10.04.1980, he has been enjoying the said property separately. Suffice it for this Court to point out that the plea that the suit property has been in enjoyment of the Appellants/Defendants has not been established by them through proper oral and documentary evidence to the satisfaction of this Court and also that Exs.A.1 to A.8 documents unerringly point out that the Respondent/Plaintiff has been in enjoyment of the suit property based on the Assignment Order in his favour and as such, he is entitled to get the possessory right of enjoyment of the suit property and also consequential relief of permanent injunction and since the Ex.A.1 Assignment Order in respect of the suit property has been an additional one by means of a mortgage and even in the said order, it is clearly mentioned that if the land is required for the Government at later point of time, the same will be taken over by the Government. As such, the Respondent/Plaintiff is not entitled to claim the declaratory relief in respect of the suit property and till the cancellation of Ex.A.1 Assignment Order dated 10.04.1980, the Respondent/Plaintiff is entitled to get his possessary title right and enjoyment in the suit property and the resultant relief of consequential injunction and even though Ex.A.1 Assignment Order is subject to an Appeal before the Revenue Authorities, it can be relied upon by the trial Court as well as the First Appellate Court to arrive at a proper conclusion. Also, both the Courts can deal with the subject matter in issue independently and in the present case on hand, they have done rightly so and as such, the pure concurrent findings of fact arrived at by the Courts below cannot be interfered with by this Court sitting in Second Appeal, inasmuch as there are no perversities of approach or material irregularities or patent illegalities committed by them in arriving at the conclusions. Accordingly, the Substantial Question of Law is so answered against the Appellants/Defendants. Resultantly, the Second Appeal fails.
27.In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs.
Index : Yes 26.03.2012
Internet : Yes
va/mps
To
1.The Additional District Judge-cum-
Chief Judicial Magistrate,
Cuddalore.
2.The Subordinate Court,
Virudhachalam.
M. VENUGOPAL,J.,
va/mps
Pre-delivery Judgment in
S.A.No.1116 of 1999
26.03.2012