Vadivelu vs Natesan on 28 September, 2012

[Cites 2, Cited by 0]

Madras High Court

Vadivelu vs Natesan on 28 September, 2012

2. The plaintiffs have filed this Second Appeal challenging the judgment and decree dated 20.2.2001 rendered in A.S.No.171 of 1999, allowing the appeal, thereby reversing the judgment and decree dated 24.9.1999 rendered in O.S.No.649 of 1996, on the file of Principal District Munsif, Tiruvannamalai, decreeing the suit.

3. The plaintiffs filed the suit for declaration and injunction. The suit was decreed. The defendants filed the appeal challenging the findings in O.S.No.649 of 1996. The appeal was allowed with cost thereby setting aside the decree and judgment passed in O.S.No.649 of 1996. As against which, second appeal has been filed.

4. The brief facts:

The suit property is the ancestral property of the plaintiffs 1 and 2. Originally, there was a hut in the suit property. About 10 days prior to the filing of the suit, the hut which was in dilapidated condition was removed and unearthing was done for the purpose of laying foundation.

4.1. The plaintiffs 1 and 2 had been in continuous possession and enjoyment of the property openly, peacefully and without any interruption from any source. Thus, the plaintiffs have got prescriptive title by adverse possession also.

4.2. Recognising the title and possession, the natham Tahsildar had issued patta dated 20.3.1996 in favour of the plaintiffs 1 and 2. The plaintiffs have paid kist. The suit property has got electricity connection and the plaintiffs are also paying electricity charges. The defendants who are adjacent owners are trying to grab the property, by attempting to trespass into the property. Hence, the suit for declaration and injunction.

5. During the pendency of the suit, the second plaintiff died and plaintiffs 3 to 5 have been added as the legal representatives of the second plaintiff (as wife, daughter and son respectively), as per order in I.A.No.675 of 1999, dated 12.7.1999.

6. The case of the defendants: (written statement filed by the first defendant, adopted by rest of the defendants) The suit claim was resisted by the defendants on the following contentions:

(a) The claim of title and long user and possession of the suit property by the plaintiffs is incorrect.

(b) The documents relating to patta, kist receipts, house tax receipts, electricity bills etc., are forged documents. The documents filed do not relate to suit property.

(c) The property in R.S.No. 6/12 consists of an extent of 2.39 cents of which, the defendants grandfather Narayanasamy Pillai was the owner. During his life time, he was in possession and enjoyment of the same. After his death, his sons Duraisamy, Rengasamy, Chinnathambi and Ponnusamy and later the defendants (as legal heir of the respective four sons) are in possession and enjoyment of the same. An extent of 22 cents has been sold. Later, there had been a partition, allotting 45 cents for Duraisamy, 23 cents for Rengasamy, 24 cents for Chinnathambi and 45 cents for Ponnusamy, after leaving 80 cents as a common property. Later, that 80 cents was orally partitioned, each being allotted an extent of 20 cents. Defendants 2, 3 and 4 are in possession and enjoyment of their respective 20 cents. Pachaiappan, who is the son of Duraisamy alone sold out 17 cents retaining only 3 cents. Thus, it is clear that the suit property covered in R.S.No. 6/12 belongs to the defendants and their vendees.

7. The trial Court framed the following four issues.

1.Whether the natham Tahsildar issue patta in respect of the suit property is true ?

2.Whether the plaintiffs are entitled to declaration ?

3.Whether the plaintiffs are entitled to permanent injunction ?

4. To what relief ?

8. The trial court has given the following findings:

(1) The suit property is the natham poramboke.

(2) The natham Tahsildar had issued patta to plaintiffs 1 and 2 in respect of the suit property.

(3) The defendants have not produced documents to show that the suit property is the ancestral property.

(4) There had been a hut in the suit property which had been in the dilapidated condition, which is evidenced by Ex.P.25, which is the communication from the electricity department, intimating the temporary disconnection because of the dilapidated condition of the house.

(5) The Commissioner's report proved the existence of damaged hut and that probablise the contention of the plaintiffs that there had been a hut in the suit property and not the contention of the defendants. On these findings, the suit has been decreed.

9. As against the decreeing of the suit, the appeal has been filed. The first appellate court has considered the issue regarding prescriptive title of the plaintiffs by adverse possession. It is pointed by the learned counsel for the appellant that there is no issue framed with regard to prescriptive title by adverse possession and that therefore, the appellate court is not justified in raising an issue regarding prescriptive title.

9.1. The first appellate court has given a finding that there is correction in the Ex.P1 patta. But the details of correction are not detailed/explained. Further, the first appellate court has relied on the admission made by P.W.1 that the extent of property allotted to each of the persons named in Ex.A18 patta has not been specifically mentioned. This admission made by the plaintiffs neither improves the case of the plaintiffs nor improves the case of the defendants. The first appellate court has quoted this admission as a reason to conclude that the property is not proved to be the ancestral property of the plaintiffs, which on the face of it is incorrect.

9.2. There is also a finding that, entries in revenue records in favour of the plaintiffs and grant of patta cannot be a valid ground to decree the suit in the absence of evidence to that title. Giving a finding that the defendants have got better title over the plaintiffs, the suit has been dismissed. This finding is challenged by the plaintiffs. The learned counsel for the appellants pointed out that even though Exs.B1 to B4 and B6 documents are relied upon by the defendants, those documents relate to R.S.No.6/12 and not to R.S.No.6/12D1/R.S.No.6/12D2. The learned counsel for the defendants was not able to point out any evidence which will prove that R.S.No.6/12D1/R.S.No.6/12D2 form part of R.S.No.6/12. The Commissioner's report also did not indicate that R.S.No. 6/12D1 and R.S.No.6/12D2 form part of R.S.No.6/12. The total extent of the property in R.S.No.6/12 is said to be 2.39 acres, whereas the extent of property in R.S.No.6/12-D1 is 0.01.2 ares and in R.S.No.6/12-D2 is 0.01.3 ares. The defendants have not proved that property in R.S.No.6/12-D1 is 0.01.2 ares and in R.S.No.6/12-D2 is 0.01.3 ares are covered in R.S.No.6/12. Hence, the finding that the defendants have better title has no basis. Moreover, the nature and character of the possession as contended by the plaintiffs stand probabilised through the Commissioner's report. Hence, the finding of the lower appellate court cannot be sustained.

10. As against the findings of the first appellate court, the second appeal has been filed raising the following substantial question of law:

"(i) When the plaintiffs had produced not only pattas but also other documents in support of their possession for a long period, still is the learned Principal District Judge right in reversing the decree of the trial court ?

(ii) When the defendants have not substantiated their contention that they have title to the suit property and when the plaintiffs have produced documents to prove their possession for over a statutory period is the learned Principal District Judge right in reversing the decree ?

(iii) Are not the plaintiffs entitled to declaration and injunction in view of the issuance of patta and proof of possession ?"

11. The learned counsel for the respondents relying upon a decision reported in 2008 (1) MLJ page 134 (SC) (Boodireddy Chandraiah Vs. Arigela Laxmi and Another) contended that there is neither question of law nor substantial question of law is involved and therefore, the second appeal is not maintainable. In the reported decision, it has been held as follows:

"4. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of hearing of the appeal has a right to argue that the case in the Court did not involve any substantial question of law. The proviso to the Section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence.

5. ------ Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the Section must be strictly fulfilled before a second appeal can be maintained and no Court has the power to add or to enlarge those grounds."

11.1.Whether substantial question of law is involved in a particular case, would depend upon the facts and circumstances of that particular case. It is settled principle that the balance between indispensible obligation to do justice at all stages and the impelling necessity to avoid prolongation in the life of any litigation, must be maintained by the court.

11.2. So far as this case is concerned, the construction of the document (patta) involving the application of the principle of law as to whether patta is a document of title, is a question of law. When there is misconstruction of document or wrong application of a principle of law in construing a document, then naturally it gives rise to a question of law. When, this question of law has a material barring on the decision of the case, i.e., when the decision of this issue would affect the rights of the parties to the suit, then the question of law would become a substantial question of law.

11. 3. Moreover, when the findings are based on no evidence, then the finding is perverse and in those cases, even on a question of fact, this court is empowered to interfere. Therefore, the contention that there is no substantial question of law involved cannot be accepted.

12. The learned counsel for the appellant supported the findings recorded by the trial court and contended that the first appellate court by misreading, mis-appreciating and misinterpreting the oral and documentary evidence has chosen to dismiss the suit and based on no evidence has chosen to give a finding that the defendants have got a better title and that therefore, the dismissal of the suit is liable to be set aside.

13. Contending that in respect of property classified as grama natham, the occupier becomes the owner and patta given by the Government is the document of title in respect of grama natham properties, the learned counsel for the appellant relied upon a decision reported in 2011 (1) MWN (Civil) 712, (1. Nachammal, 2. Kannan @ Ravi .Vs. S. Murugesan), whereunder it has been held as follows:-

"PROPERTY LAW -- "Grama Natham" - Suit property of Grama Natham - Occupier becomes owner - There are two types of Grama Nathams viz., Occupied Grama Natham and Unoccupied Grama Natham, otherwise known as Natham Poramboke - For an Occupied Grama Natham, occupier and his successor in title, become owners - For Unoccupied Grama Natham, Government issues assignments for individuals, who then become owners of house site - Government, as custodian, has right to grant such assignment - Such assignment cannot be challenged unless better title is proved - Review Application dismissed".

14. Relying upon this decision, it can safely be concluded that the Government having issued patta has recognised the title of the plaintiffs. The issue to be considered whether better title has been proved by the defendants.

(i) The first contention of the learned counsel for the defendants is that the plaintiffs though pleaded adverse possession has not specifically stated as to the person against whom they are pleading adverse possession, and that therefore, the plea of adverse possession has to be rejected. In support of this plea, the averments stated in the plaint are pointed out. It is nowhere specifically mentioned as to the persons against whom the adverse possession commenced for the plaintiffs. But, the entire reading of the plaint allegations, show by implication, that the claim of adverse possession is raised only as against the defendants. However, as the plea of adverse possession was not pressed by the learned counsel for the appellant, this contention need not be considered.

15. The plaintiffs claim title by virtue of long and continued possession apart from possession evidenced by patta. It is the contention of the plaintiffs that as per Section 114 of the Indian Evidence Act, there is presumption as to existence of certain facts which is likely to have happened having regard to the common course of natural event and other things. When it is shown that patta has been granted in the year 1990, possession do not exist from 1990, but even earlier to that because only in recognition of possession for long number of years, patta has been granted. Unless it is shown by the defendants that the possession was discontinued/possession was with somebody else, the possession is presumed to be continuously with the plaintiffs.

16. The learned counsel for the defendants drew the attention of this court with regard to description of property made in the plaint describing the suit properties as vacant sites (in both the items), i.e, item No.1 R.S.No.6/12-D1 (0.01.2 ares) and R.S.No.6/12-D2 (0.01.3 ares). The learned counsel further submitted that the finding of the first appellate court that the house tax receipt and other related documents Exs.A3 to A8 and A9 to A17 have to be rejected as not pertaining to the suit property, (having regard to the above description that the suit properties are vacant sites) has to be accepted. The description of properties as described in the schedule alone cannot give a complete understanding of the property. Truncated reading would always lead to misunderstanding. Complete reading of the plaint go to show that according to the averment, there had been a hut, till about 10 days prior to the filing of the suit and the problem arose only when the foundation was sought to be laid. Therefore, the contention that the suit property is a vacant site and that therefore, the house tax receipts do not relate to the suit property cannot be accepted and the finding of the first appellate court to the contrary is incorrect. It is relevant to point out the Commissioner has also mentioned in the report as to the existence of one demolished house. The relevant observation is as follows:-

".......... The boundary description of the above said property is, North of the Street, South of Neelappan's property, East of Manonmani Ammal's and West of the Second Plaintiff's property. That S.No.6/12D1 is a vacant site. I further submit more than 6 to 8 Velikkathan trees are there. I further submit that some Velikkathan dried sticks are there and red soil mounds are there and one stone grinder is there. I further submit that just western side of the S.No.6/12D1, I have shown it in my plan as one demolished house is there and eastern side said house wall is dilapidated condition and it is covered by dried (Panimaram Oolai). The said wall is constructed by red soil and with some Modi stones (Unsized stones) .........

I further submit after inspection of the S.No.6/12D1, I inspected the S.No.6/12D2. I have shown it in my plan as EFGH. That S.No.6/12D2 is a vacant site. I further found one funnel there and dried Groundnut plants are there and two mulakuchi are there and just eastern side one thatched house is there and hay stray is there and 2 to 4 Velikkathan trees are there. That S.No.6/12D2 is a vacant site and no up and down are there. ....."

17. Therefore, the contention that the suit property is the vacant site and therefore, the documents referred above do not relate to the suit property is incorrect and it is proved to be so through the report of the Commissioner.

18. It is the case of the defendants that the trial court did not even frame any issue regarding adverse possession and therefore, the claim of the plaintiffs for adverse possession cannot be considered. It is true that no such issue has been framed. But, there may be cases, where even though no issue had been expressly framed, still the parties might have mutually understood the case of each other and would have participated in the trial. However,the issue regarding the adverse possession was not raised by the learned counsel for the appellant and it is not considered.

19. The defendants also contended that the documents under Exs.A1 to A3 and Exs.A9 and A10 mentioned Enthal Panchayat, whereas the description of property relates to Kilmathur Madura Renugopalapuram Village. But the learned counsel for the appellants submitted that the village, Renugopalapuram is covered under Enthal Panchayat which is proved through Ex.A26 voters list.

20. The plaintiffs have established the title and possession over the suit property and the attempt of the defendants to interfere with the possession and enjoyment is obvious. The defendants have not established better title to the suit property. Hence, the plaintiffs are entitled to declaration and injunction.

21. In the result, the second appeal filed by the plaintiffs is allowed. The judgment and decree dated 20.2.2001 rendered in A.S.No.171 of 1999 on the file of Principal District Judge, Tiruvannamalai, reversing the judgment and decree dated 24.9.1999 made in O.S.No.649 of 1996 on the file of Principal District Munsif, Tiruvannamalai is set aside. The decreeing of the suit in O.S.No.649 of 1996 is confirmed. No costs.

aes To

1. The learned Principal District Judge, Tiruvannamalai.

2. The learned Principal District Munsif, Tiruvannamalai.

3. The Section Officer, VR Section, High Court, Madras

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