Madras High Court
R.Revathy vs Arulmighu Pidari Uchi on 2 September, 2022
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 01.08.2022
Pronounced on : 02.09.2022
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
S.A.No.1362 of 1998
&
C.M.P.Nos.9327 & 11470 of 2022
Raja Shanmugam (Died)
1.R.Revathy
2.R.Nandhini
[Both the appellants brought on record as LRs
vide Court order dated 04.04.2022 by Hon'ble RHJ]
...Appellants
Vs.
1.Arulmighu Pidari Uchi
Amarathamman Koil,
Rep by its Trustee,
having office at
Angalaparameswari Tirukoil,
194 Adam Sahib St. Royapuram,
Madras - 600 013.
2.Annapathina Subbulu
3.Nellore Kondiah ... Respondents
The Second Appeal filed under Section 100 of CPC, against the
judgment and decree dated 29.01.1997 made in A.S.No.37 & 57 of
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1992 on the file of the Court of Subordinate Judge, Tiruvallur
preferred against O.S.No.557 of 1985 on the file of the Court of
District Munsif, Ponneri.
For Appellants : Mr.S.R.Raghunathan
Assisted by Manjunath Karthikeyan
For Respondents : Mr.N.Velmurugan [for R.1]
Mr.Sampath Kumar [for R.3]
JUDGMENT
The plaintiff in O.S.No.557/1985 on the file of the District Munsiff Court at Ponneri is the appellant herein. Pending the appeal, he died and his legal representatives had been brought on record as 1st and 2nd appellants.
2. The suit in O.S.No.557/1985 had been filed by the plaintiff against Arulmigu Pidari Uchi Amarthalamman Koil represented by its trustee and against Annapathina Subbulu and Nellore Kondaiah seeking permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment by the plaintiff of the suit property in any manner either by collecting the rent or in any other manner and for costs for the suit.
3. The suit schedule property was land measuring about 7 acres 2/32 https://www.mhc.tn.gov.in/judis known as Mattu Manthai in Sy.No.149, Sathankadu Village, Madhavaram firka, Saidapet Taluk, Thiruvottiyur District.
4. By judgment dated 16.04.1992, the District Munsiff, Ponneri, decreed the suit.
5. Challenging such judgment and decree, the 1st defendant / Arulmighu Pidari Uchi Amarthalamman Koil, filed A.S.No.57 of 1992 and the 2nd and the 3rd defendants / Annapathini Subbulu and Nellore Kondiah filed A.S.No.37 of 1992, both before the Sub Court at Subordinate Judge, Thiruvallur.
6. By common judgment dated 29.01.1997, both the Appeal Suits were allowed and the judgment and decree in O.S.No.557 of 1985 was set aside.
7. The plaintiff then filed the present Second Appeal.
8. The Second Appeal had been admitted on the following substantial questions of law;
"a)Whether the learned Subordinate Judge erred in 3/32 https://www.mhc.tn.gov.in/judis law in holding that the suit by the plaintiff is not maintainable overlooking the fact that in the partition between him and his mother the suit property was allocated to his share and that in any event the plaintiff as a co-owner is entitled to maintain the suit for injunction against trespasser?
b) Whether the 1st defendant can agitate in the civil Court that it has title to the suit property, notwithstanding the grant of patta by the settlement authorities under Minor Inams Abolition Act to the plaintiff as confirmed by the Inams Tribunal and the Special Appellate Tribunal? and
c) Whether the learned Subordinate Judge erred in relying on Ex.B.4 Will which has not been duly proved and holding the alienation in favour of the plaintiff is not valid, which is wholly outside the purview of the present suit?"
9. The appellant also filed C.M.P.Nos.9327 of 2022 and 11470 of 2022, both under Order XLI Rule 27 C.P.C., seeking to produce three additional documents and two additional documents respectively. O.S.No.557 of 1985 (District Munsiff Court, Ponneri):-
10. The plaintiff claimed that suit property had been purchased by his grand father Shanmuga Gramani by a sale deed dated 08.08.1944. Subsequently, the father of the plaintiff viz., Gopal was allotted the property and on his death, the property devolved to the 4/32 https://www.mhc.tn.gov.in/judis mother of the plaintiff and to the plaintiff. They entered into a partition and the suit property was allotted to the plaintiff. He further claimed that the settlement Tahsildar granted patta to the suit property. An appeal was filed before the Sub Court / Tribunal at Chengalpet which was dismissed. A further appeal was filed before the High Court. It also suffered an order of dismissal. The 1st defendant had filed a suit for injunction restraining the plaintiff from alienating the property and that suit was also dismissed. It was stated that the suit property was used as Cattle shandy and the 2nd and 3rd defendants were in possession of a small portion of the property. Since, the plaintiff, to assert title commenced collection of rent, and since the same was objected by the defendants, the suit had been filed seeking permanent injunction.
11. The 1st defendant filed a written statement denying the title of the plaintiff. It was stated that the suit property belongs to the temple. It was stated that the Dharmakartha who sold the lands to the grand father of the plaintiff in the year 1944 did not have authority to so sell the lands. It had been stated that the 1st defendant had been in possession. It had been further stated that ryotwari patta could not be considered to be a document of title. It 5/32 https://www.mhc.tn.gov.in/judis had also been stated that the suit filed by the 1 st defendant was not dismissed on merits, but owing to non-prosecution. The title of the plaintiff was very specifically denied and disputed. It was therefore stated that the suit for injunction is not maintainable without seeking the relief of declaration of title. It was urged that the suit should be dismissed.
12. The 2nd defendant also filed a written statement which was adopted by the 3rd defendant. The defendants claimed that they have been in possession of portions of suit property for well over 35 years. They had put up huts and are in physical possession of the property. They disputed the title of the plaintiff. They also stated that the suit for injunction is not maintainable without obtaining a declaration of title. It was also stated that quite apart from these defendants, there were a number of other persons who were in occupation of the suit property for over 5 decades and it was stated that non-joinder of such individuals is fatal to the suit. It was stated that therefore the suit should be dismissed.
13. On the basis of the above pleadings, the District Munsif, Ponneri framed the following issues for trial; 6/32 https://www.mhc.tn.gov.in/judis
(i) Whether the plaintiff is entitled for the relief of permanent injunction?
(ii) Whether the contention that the suit property belongs to the 1st defendant / temple is correct?
(iii) to what other relief is the plaintiff entitled to?
14. During the trial, the representative of the plaintiff was examined as P.W.1 and the Accountant of the plaintiff was examined as P.W.2. On the side of the defendants, the fit person of the temple was examined as D.W.1, the Poojari of the temple was examined as D.W.3. The 3rd defendant was examined as D.W.4. The 2nd defendant was examined as D.W.5 and 3 independent witnesses were examined as D.W.2, 6 & 7. The plaintiff marked Exs.A.1 to A.13.
15. Ex.A.1 was the sale deed dated 08.08.1944. Ex.A.2 was the proceedings of the Settlement Tahsildar dated 15.09.1963. Ex.A.3 was the order of the Tribunal dated 08.03.1973. Ex.A.4 was the order of the High Court dated 08.08.1978. Ex.A.6 was the copy of the decree in O.S.No.35 of 1981. Ex.A.10 was the copy of the Advocate notice dated 01.04.1985. Ex.A.13 produced by P.W.2 was the sale deed in his name dated 03.08.1981, and executed by the plaintiff. 7/32 https://www.mhc.tn.gov.in/judis
16. The defendants marked Ex.B.1 to B.23. The Inam register, the Adangal and the chitta were marked as Exs.B.1 to B.3 respectively, Ex.B.8 was the proceedings of the Assistant Commissioner H.R & C.E dated 28.01.1984. Ex.B.11 was the proceedings relating to appointment of fit person by the Assistant Commissioner, H.R & C.E dated 11.03.1983. Ex.B.14 was a letter addressed to the plaintiff by the fit person of the temple dated 24.07.1984.
17. On the basis of the pleadings and the oral and documentary evidence adduced, the District Munsiff, Ponneri, proceeded to examine the issues framed for consideration. It was found that the plaintiff had produced documents relating to title of the property vide Ex.A.1 sale deed said to have been executed in the year 1944 by the then trustee of the 1st defendant in favour of the grand daughter of the plaintiff. Subsequently, by execution of further documents, the suit property had devolved on to the plaintiff. It was also found that the revenue authorities had recognized such title and had also granted patta. It was further found that challenge to that grant of patta had suffered an order of dismissal both before the trial Court 8/32 https://www.mhc.tn.gov.in/judis and before the High Court. It was also found that the plaintiff, had every right to collect the rents from the people who lived the cattle shandy. It was also found that the earlier suit filed by the 1st defendant had been dismissed. It was finally held that in view of the above findings, the plaintiff will have to be granted necessary protection as sought in the relief to the plaint. A.S.No.37 of 1992 (Sub Court, Thiruvallur):-
18. Aggrieved by the aforesaid judgment of the trial Court, the 2nd and 3rd defendants filed A.S.No.37 of 1992 and the 1st defendant filed A.S.No.57 of 1992.
19. The learned Sub Judge proceeded to re-examine the evidence adduced. It was found that in Ex.B.2, Adangal, the name of the 1st defendant was shown with respect to Sy.No.148. Even in Ex.B.3 Chitta, it was the name of the 1st defendant which was reflected. The evidence of P.W.1 was also examined and it was pointed out that he did not produce any rental receipts though he claimed that such rental receipts were available to evidence collection of rents from the individuals to use the cattle shandy. 9/32 https://www.mhc.tn.gov.in/judis
20. It was found that O.S.No.31 of 1981 had been dismissed for non-prosecution and therefore would not effect the case of the 1 st defendant. It was also found that P.W.2 the Accountant of the plaintiff has entered witness and moreover had benefit of purchasing a portion of the suit property from the plaintiff. Ex.A.5 which the plaintiff claimed was a partition, was not accepted by the learned Sub Judge. It was found that the suit itself is not maintainable.
21. It was stated that though in the schedule to the plaint, it had not been shown, from Ex.A.1 and from the oral evidence of the defendants, it was clear that there is a temple in the middle of the property and that temple was in the control of the 1 st defendant. Further, several constructions have been put up within the suit property. These facts have not been stated by the plaintiff. The plaintiff had not produced any document to show that they are collecting rents for such constructions. It was also found that under Ex.B.11, a fit person had been appointed to manage the 1 st defendant temple. Ex.B.14 was an approval to construct a small house within suit schedule property. It was also found that under Ex.B.4 - Will, there was an entitlement to use the usufructs of all the trees and it was found that no order of the Court had been obtained prior to any 10/32 https://www.mhc.tn.gov.in/judis transaction. It was also found that the orders of the settlement Tahsildar would not be binding on the Civil Court. The Appeal Suit was allowed and the judgment and decree of the trial Court was set aside.
S.A.No.1362 of 1998 and C.M.P.Nos.9327 & 11470 of 2022
22. The plaintiff then filed the aforementioned Second Appeal and also the aforementioned two Civil Miscellaneous Petitions.
23. The Second Appeal had been admitted on the following substantial questions of law;
"a)Whether the learned Subordinate Judge erred in law in holding that the suit by the plaintiff is not maintainable overlooking the fact that in the partition between him and his mother the suit property was allocated to his share and that in any event the plaintiff as a co-owner is entitled to maintain the suit for injunction against trespasser?
b) Whether the 1st defendant can agitate in the civil Court that it has title to the suit property, notwithstanding the grant of patta by the settlement authorities under Minor Inams Abolition Act to the plaintiff as confirmed by the Inams Tribunal and the Special Appellate Tribunal? and
c) Whether the learned Subordinate Judge erred in 11/32 https://www.mhc.tn.gov.in/judis relying on Ex.B.4 Will which has not been duly proved and holding the alienation in favour of the plaintiff is not valid, which is wholly outside the purview of the present suit?"
24. It is the case of the appellant that the suit property had been purchased by his grand father by Ex.A.1 dated 08.08.1944, which was a sale deed executed by, according to the appellant, the trustee of the 1st defendant. He further stated that earlier on 28.05.1917, the said Trustee has executed a mortgage deed in favour of the Dharmakarta of temple and the said mortgage was assigned on 01.06.1928 in favour of the grand-father of the plaintiff. By the sale deed dated 08.08.1944, Ex.A.1, the right to redeem the mortgage had been conveyed.
25. C.M.P No.11470 of 2022 has been filed under Order 41 Rule 27 CPC to produce the said mortgage deed dated 28.05.1917 and the Assignment Deed dated 01.06.1928 as additional evidence. It is the further case of appellant that subsequently the property had devolved to the father of the appellant, and on his death to his mother Damayanti Ammal and to himself. On 15.09.1969, the Settlement Tahsildar had granted Ryotwari Patta to the mother and to the 12/32 https://www.mhc.tn.gov.in/judis appellants. In this connection reference had been made to Section 8(2)(i)(b) of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963, it had been stated that consequent to Patta being issued under the aforementioned provision, the mother of the appellants had also paid the amount determined by the settlement Tahsildar. In that respect receipts were sought to be produced as additional documents in CMP No.9327 of 2022.
26. Section 8(2)(i)(b) of the Tamil Nadu Inams (Abolition & Conversion into Ryotwari) Act, 1963;
"8.Grant of ryotwari pattas: (1) Subject to the provisions of sub-section (2), every person who is lawfully entitled to the kudiwaram in an inam land immediately before the appointed day whether such person is an inmadar or not shall, with effect on and from the appointed day, be entitled to ryotwari patta in respect of that land.
(2) Notwithstanding anything contained in sub-
section (1) in the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959), [and in the Tamil Nadu Transferred Territory) Incorporated and Unincorporated Devaswoms Act, 1959 (Tamil nadu Act 30 of 1959)], the following provisions shall apply in the case of lands in an iruvaram minor inam 13/32 https://www.mhc.tn.gov.in/judis granted for the support or maintenance of a religious institution or for the performance of a charity or service connected therewith or of any other religious charity -
(i)Where the land has been transferred by way of sale and the transferee or his heir, assignee, legal representative or person deriving rights through him had been in exclusive possession of such land -
(a)....
(b) for a continuous period of 12 years immediately before the 1st day of April, 1960, such person shall, with effect on and from the appointed day, be entitled to a ryotwari patta if he pays as consideration to the Government in such manner and in such number of instalments as may be prescribed an amount equal to twenty times the difference between the fair rent in respect of such land determined in accordance with the provisions contained in the Schedule and the land revenue due on such land; "
27. It is therefore contended by the appellant that in view of the flow of title as also recognized by the Revenue authorities, the plaintiff had established title and therefore there was no necessity to seek declaration of title. It was further contended that the suit instituted by the 1st defendant had suffered an order of dismissal and there was no appeal against the same. It was further contended that 14/32 https://www.mhc.tn.gov.in/judis the challenge to the grant of patta also suffered adverse orders from the trial Court till this Court.
28. It was stated that the suit property was used as a cattle shandy and rents were collected. It was stated that when there were disturbances or interferences from such collection of rents, necessity to institute the suit arose and it was therefore stated that the suit seeking permanent injunction was maintainable.
29. The respondents particularly the 1st respondent on the other hand claimed that the very fact that there was a temple situated in the middle of the suit schedule property itself shows that the appellant cannot exercise title over the suit property. It was also contended that there are several constructions put up in brick and mortar and it was therefore stated that, the other persons in occupation like the 2nd and 3rd respondents should have been impleaded in the suit. It was stated that the Revenue Authorities cannot decide title over the property. It was contended that the appellant should first seek declaration of title and thereafter, seek any consequential relief.
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30. With respect to suit filed, it had been stated that it had been dismissed since the representative of the temple in the suit died and steps could not be taken to implead the legal representatives. It was contended that the 1st respondent was in possession and further that the temple is a public temple and a fit person has also been appointed. It was therefore contended that the suit is not maintainable and that the First Appellate Court had correctly dismissed the suit.
31. The 1st substantial question of law revolves around the assertion by the appellant that since there was a partition between the appellant and his mother, the appellant as a co-owner can maintain a suit for injunction. It must be pointed out that the plaintiff had not grazed the witness box. His maternal uncle had been examined as P.W.1. From the notes paper of the suit, it is evident that issues had been framed on 19.12.1986 and trial had commenced only on 23.11.1988 by examination of P.W.1. During his examination, P.W.1 stated that the plaintiff was suffering from Jaundice from the past two days, but no explanation has been given as to why the plaintiff did not graze the witness box, when the matter was pending 16/32 https://www.mhc.tn.gov.in/judis for more than a year for trial and the plaintiff did not come forward to examine himself as a witness. The witness also did not produce any authorization letter to depose on behalf of the plaintiff. His evidence is entirely unsatisfactory. He admitted that from the year 1969, the plaintiff or the family members of the plaintiff were not collecting any rent from those who were in possession and using the suit property as a cattle shandy. Even the rental receipts for the sparse rents collected have not been produced. It is also to be noted that P.W.1, avoided answering direct questions in cross examination and stated that, the accountant would have the details. But when the accountant was examined as P.W.2 he was only interested in producing Ex.A.13 - sale deed for a portion of the property in his name conveyed by the plaintiff. He has thus benefited from the grace of the appellant / plaintiff. He is not a reliable witness. He was directly interested in his own cause alone. No document has been produced to show that the appellant or any of his family members exercised their right as owners of property.
32. In the case of Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217 at page 222; it had been held as follows;
17/32 https://www.mhc.tn.gov.in/judis "13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order 3 Rules 1 and 2 CPC confines only to in respect of “acts” done by the power-of-attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has rendered some “acts” in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him.
Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
14.........
15. Apart from what has been stated, this Court in the case of Vidhyadharv.Manikrao[(1999) 3 SCC 573] observed at SCC pp. 583-84, para 17 that:
“17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct….” [Emphasis supplied] 18/32 https://www.mhc.tn.gov.in/judis
33. It is seen that the appellant traces title from Ex.A.1 sale deed. The right of the vendor to so execute A.1 itself is disputed by the 1st respondent. A perusal of the sale deed under Ex.A.1 would show that it was executed by S.V.Kanniappa Reddiar on his behalf and on behalf of his 2 minor sons G.K.Gopalkrishnan and C.K.Kalyansundaram and it had been stated that S.V.Kanniappa Reddiar had mortgaged the property to Govindarajulu Gramani and the said Govindarajulu Gramani had assigned his rights as mortgagee to Shanmugam Pillai. It had been stated that since S.V.Kanniappa Reddiar could not pay the mortgage amount, the right to redeem the mortgage was conveyed to Shanmugam Pillai.
34. In the sale deed - Ex.A.13, at no point is it mentioned that the property is a temple property. It is also not mentioned that the executor was the Dharmakarta of the temple and had executed a sale deed with authority of the temple. In the schedule alone, it had been stated that the land bears title deed No.1354 in favour of the Utchi Amaranthal and dry Sy.No.149 and measures about 7 acres. Thus, the document had not been executed by any person authorized by the temple and there is no reference that it actually relates to suit land.19/32
https://www.mhc.tn.gov.in/judis It is a private conveyance between the two private individuals.
35. When the Settlement Tahsildar considered those particular documents and the grant of patta which the appellant claims as a further source of title, it must be stated that such patta cannot confer title over the properties. The contention of the appellant that consequent to the order passed, the amount determined had been paid, is a fact which had been created subsequent to the institution of the suit. On the date of institution of the suit, the appellant herein as plaintiff has not perfected title. The entries in the revenue records cannot confer title.
36. In must be kept in mind that the suit had been filed only for permanent injunction. The appellant cannot seek an indirect establishment of title without seeking it.
37. It must also be stated that consequently any document entered into within the family members of T.Shanmugam Pillai are only self serving document. There was division of land between two or more persons who claimed to be co-owners of the land. The statement that they are co-owners are self serving statements. 20/32 https://www.mhc.tn.gov.in/judis
38. In the written statement, the respondents had very clearly disputed and denied the title of the appellant herein. The appellant at that particular point of time traced title to the grant of patta and the affirmation of that grant by hierarchy of orders. But, it must be noted that the grant of patta was on the basis of a sale deed namely Ex.A.1 in which only fleeting mention was made in the schedule not of the temple but of the deity and there is no examination made while granting patta, Ex.A.1, that the executors had right to execute the document. It must also be noted that the vendor represented his two minor sons also as owners.
39. I hold that the said document is a sham document and I hold that it does not convey title of the suit property to the grand father of the appellant and consequently every other document which flowed after it has to be viewed with askance and rejected.
40. I would therefore answer the 1st substantial question of law that the First Appellate Court had correctly held that the suit was not maintainable without seeking the relief of declaration of title. It is for the plaintiff to seek declaration of title and thereafter seek 21/32 https://www.mhc.tn.gov.in/judis consequential reliefs. His presumption that title vested with him is wrong and based on a sham and void document.
41. The 2nd substantial question of law also surrounds the issue of grant of patta by the settlement authorities under the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963. Again it must be pointed out that during the course of the settlement, the 1st defendant did not participate and the patta was granted on the basis of Ex.A.1, which as stated above is a sham document and did not convey any title to the grand father of the appellant. The names being mutated in the revenue records would not come to the assistance of the appellant. It is also to be noted that P.W.1 had stated that the temple was under the control of the family members of the appellant and in that connection stated that he had also appointed the Poojari to the temple. The said Poojari was examined as D.W.3 and he very clearly stated that he was never appointed by the appellant or by the family member of the appellant. All these evidences would show that the appellant had not come to Court with clean hands but had come to Court with documents which they had procured from the Revenue Authorities. Those documents would not come to his assistance.
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42. A Full Bench of this Court in 1998 (I) CTC 630 : (1998) IIMLJ 722, Srinivasan and six others V. Sri Madhyarjuneswaraswami, Pattaviathalai, Tiruchirapally District and five others, where on a reference made by a learned Single Judge with respect to orders passed by the Tribunal or the revenue authorities in that particular case under Tamil Nadu Minor Inams (Abolition and conversion into Ryotwari) Act, 1963, the Full Bench held as follows:
“15. Further, the mere fact that the orders passed or decisions rendered under these Acts were given finality for the purposes of those Acts or that the issues, which they are obliged or required to be decided, when so decided are ordained to bind the parties to the proceedings or their privies and successors-in-interest applying the principles of res judicata, does not have the effect of ousting the jurisdiction of the Civil Court once and for all. It is by now well settled that even in cases where finality is accorded to any decision or order, there are certain well settled exceptions and proved and existence of such exceptional factors, the Civil Court is entitled to nullify any or all such decisions. Similarly, even in cases where the principles of res judicata are rendered applicable, the jurisdiction of the 23/32 https://www.mhc.tn.gov.in/judis competent Civil Court to go into the question and find out whether the necessary ingredients to apply the principles of res judicata exist in a given case or not cannot be denied to the Civil Courts and from the mere fact of according finality to the orders or decisions rendered under the Act or the application of the principles of res judicata, a total or complete bar or ouster of the jurisdiction of the Civil Courts for all and any purpose cannot be automatically inferred or implied. Before a plea of res judicata can be given effect to, it must be sufficiently pleaded and established that the litigating parties must be the same, that the subject matter of the suit and the other proceedings also are identical, that the questions arising in the suit and the other proceedings were directly and substantially in issue and the same was finally decided and that too by an authority or Court of competent jurisdiction.”
43. In the case of Jitendra Singh Vs. State of M.P reported in 2021 SCC Online 802, it was held as follow;
"5........ as per the settled proposition of law, mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose. As per the settled proposition of law, if there is any dispute with respect to the title and more particularly 24/32 https://www.mhc.tn.gov.in/judis when the mutation entry is sought to be made on the basis of the Will, the party who is claiming title/right on the basis of the Will has to approach the appropriate civil court/court and get his rights crystalised and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made.
6. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137, this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.
6.1 In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186, it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only “fiscal purpose”, i.e., payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the cases of Suman Verma 25/32 https://www.mhc.tn.gov.in/judis v. Union of India, (2004) 12 SCC 58; Faqruddin v.
Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70."
44. Thus the grant of patta would not advance the case of the appellant, I would therefore hold that the 1st defendant can still agitate and raise the issue of title before the Civil Court.
45. With respect to the 3rd substantial question of law, the First Appellate Court had examined the wordings and statements and Ex.B.4. The said document had not been proved in manner known to law. I further hold that irrespective of that particular fact, the appellant has to establish his title before seeking any indulgence in granting order of injunction.
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46. In the case of Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594 at page 603, it had been held as follows;
"13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the 27/32 https://www.mhc.tn.gov.in/judis defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
14. We may, however, clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to the plaintiff's title raises a cloud on the title of the plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that the defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant 28/32 https://www.mhc.tn.gov.in/judis discloses in his defence the details of the right or title claimed by him, which raise a serious dispute or cloud over the plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title."
[Emphasis supplied]
47. In view of the above reasonings, I hold that the First Appellate Judge has correctly appreciated the evidence on record and the common judgment of the learned Sub Judge in A.S.Nos.37 & 57 of 1992 does not warrant any interference.
48. The two Civil Miscellaneous Petitions filed seeking to produce documents as additional evidence would not advance the case of the appellant, since clear findings have been given that Ex.A.1 document does not convey any title to the appellant herein. Therefore, any further document cannot be of any advantage to the appellant. The documents have been produced only to build their 29/32 https://www.mhc.tn.gov.in/judis further case of title. The appellant should institute a suit for title and urge consideration of the said documents. They will have to be tested, be admissible, be proved and be relevant. That exercise can be conducted in a suit for title. The aim of the appellant is to induce grant of order relating to title without any relief sought and without the documents examined in manner known to law. In the present suit for injunction, the attempt of the appellant is to get a back door opinion on his title. That venture should be held not permissible and I would therefore dismiss the Civil Miscellaneous Petitions.
49. In the result,
(i) The Second Appeal is dismissed with costs;
(ii) The common judgment of the Subordinate Judge, Tiruvallur in A.S.Nos.37 and 57 of 1992 stands confirmed.
(iii) C.M.P.Nos.9327 & 11470 of 2022 stands dismissed.
(iv) Any other connected miscellaneous petitions stand closed.
02.09.2022 Index:Yes/No Internet:Yes/No mrm To 30/32 https://www.mhc.tn.gov.in/judis
1.The Subordinate Judge, Tiruvallur.
2.The District Munsif, Ponneri.
3.The Section Officer, VR Section, Madras High Court. 31/32 https://www.mhc.tn.gov.in/judis C.V.KARTHIKEYAN,J.
mrm S.A.No.1362 of 1998 02.09.2022 32/32 https://www.mhc.tn.gov.in/judis