Madras High Court
Arulmigu Thiru Kandasamy Thirukoil vs Kothandaraman on 29 January, 2007
Author: M.Chockalingam
Bench: M.Chockalingam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29-1-2007 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM S.A.Nos.543 to 545 of 1994 and CMP Nos.6950 to 6952 of 1994 S.A.No.543 of 1994: Arulmigu Thiru Kandasamy Thirukoil Tiruporur by its Executive Officer .. Appellant vs Kothandaraman .. Respondent S.A.No.544 of 1994: Sri Kandaswamy Koil by its Executive Officer .. Appellant vs 1.Ambikapathi Ammal 2.Jaikumar .. Respondents S.A.No.545 of 1994: Sri Kandaswamy Thirukoil Thiruporur by its Executive Officer .. Appellant vs 1.Padmavathy Ammal (died) 2.Kamala Ammal 3.Vijayalakshmi (RR2 and 3 are brought on record as LRs of the deceased sole respondent vide order of the Court dt.18.2.2005 in CMP 3853/2005) .. Respondents Second appeals preferred under Sec.100 of the Code of Civil Procedure against the judgment and decree of the Principal Subordinate Judge, Chingleput, in A.S.Nos.33, 34 and 35 of 1991 dated 10.11.1993 confirming the judgment and decree of the District Munsif, Chingleput, in O.S.Nos.761, 760 and 759 of 1987 dated 29.11.1990. For Appellant : Mr.R.Alagar Senior Counsel for Mr.M.Agni For Respondents : Mr.V.Nicholas COMMON JUDGMENT
These three appeals have arisen from the common judgment of the learned Principal Subordinate Judge, Chingleput, made in A.S.Nos.33, 34 and 35 of 1991, which arose on the dismissal of the three suits filed by the appellant herein in O.S.Nos.761, 760 and 759 of 1987 respectively.
2.The case of the plaintiff in O.S.No.759/87 is as follows:
The plaint Schedule mentioned properties belonged to the plaintiff temple. The plaintiff has been paying kist. The suit properties along with certain other properties were leased out, and lease amounts were received from the respective lessees. Apart from paying rent, they are also bound to do certain welfare work relating to the temple. Now, the suit property is in the possession of the defendant. The plaintiff came to know that the defendant got possession from various lessees, who do not have any right to do so. The defendant as a lessee, has not done any welfare work relating to the temple. Apart from that, she has not paid the rental as agreed by her. Under the circumstances, the defendant lost her rights as lessee. Hence, the suit has been filed for declaration, recovery of possession and mesne profits.
3.The defendant resisted the suit by stating that though four items are mentioned in the Schedule, the defendant is claiming right only in respect of items 1 and 2; that those items are not properly described in the plaint; that items 1 and 2 and other properties originally belonged to one Muthukumarasamy Gurukkal; that he married one Sornammal; that they had no issues; that after the death of Sornammal, he had the assistance of one Seshadri Gurukkal, who was then aged 11 years; that he was brought up by Muthukumarasamy Gurukkal and was given in marriage to one Padmavathi Ammal who is the defendant herein; that Muthukumarasamy Gurukkal executed a Will on 12.12.1973; that it was a registered one; that pursuant to the Will, 'B' Schedule property came to the hands of the defendant; that she was cultivating the lands; that she gave the first item measuring 1.34 acres, to one Munusamy Naidu; that now, the first item is with him; but, he was not added as party in this suit; that she and the predecessor-in-title and Munusamy Naidu were in possession and enjoyment of items 1 and 2; that since they were in enjoyment for more than 50 years, the plaintiff is estopped from making any claim over the same; that they paid kist; that she is not a lessee as alleged by the plaintiff, and hence, the suit was to be dismissed.
4.In the additional written statement filed by the defendant, it is alleged that Thirupporur Village is an estate Village; that the suit lands are ryot lands; that Muthukumarasamy Gurukkal was a ryot; that kudi patta was issued to him; that kist was received from him; that after the abolition of the estate by the Tamil Nadu Act 26/48, the plaintiff has no right over the suit properties; that a notification was also issued in 1960-61 in this regard; that thereafter, the plaintiff temple did not collect kist; that in respect of ryot lands, the plaintiff has no right whatsoever; that when the defendant paid kist, it was refused by the Village Administrative Officer; and that though patta was issued to the plaintiff, the occupancy right of the defendant is not defeated.
5.The plaintiff filed a rejoinder stating that Thirupporur Village is a Ryotwari Village for ever; that the suit lands were never taken by the Government; that the pattayam issued to the defendant, would go to show that the suit lands were given to her only for the purpose of cultivation; and that the suit lands were not covered under the Estate Abolition Act.
6.In the plaint in O.S.No.760/87, the plaintiff has alleged that the suit properties belonged to the temple; that the temple has been paying kist; that the suit properties and other properties were leased out to various persons including the defendant; that they are bound to pay rental and also to do certain welfare work relating to the temple, and hence, the suit has been filed for declaration, recovery of possession and mesne profits.
7.The suit was contested by the original defendant stating that pursuant to the partition entered into between Manicka Gramani, the father of the defendant, and his brother on 14.12.1935, items 2 to 6 in 'B' Schedule came to the hands of the defendant's father; that the first item of property is the self acquired property of Manicka Gramani; that the defendant and his father were in possession and enjoyment of items 1 to 6 as joint family property; that after the death of Manicka Gramani, the defendant as his legal heir, was in possession and enjoyment of the same; that they had title by prescription; that they claim rights by adverse possession also; that the first item of property was sold to one Ramesh by the defendant prior to the suit; that the said Ramesh was not added as party to the suit; that the second item of property was also sold to one Ganesan by the defendant prior to the suit; that he was also not added as party; that kist has been collected from the defendant, and hence, the suit was to be dismissed.
8.The defendant filed an additional written statement with the following allegations:
Thirupporur Village is an estate Village. Suit lands are ryot lands. The defendant's father Manicka Gramani, was a ryot in respect of the suit lands and other lands. He was entitled to enjoy the suit property. Kudi patta was issued to him, and kist has been collected from him. Since this estate has been abolished pursuant to Act 26/48, the plaintiff has no right over the suit property. There was a notification in 1960-61 in that regard. Thereafter, the plaintiff did not collect kist. The plaintiff would have obtained patta in the settlement proceedings by making a representation that the lands are panna lands. This type of patta will not give any right to the plaintiff. When the defendant made kist, it was refused by the Village Administrative Officer.
9.The plaintiff in O.S.No.761/87 has alleged that the suit properties belonged to the temple; that they were leased out to various persons; that the temple is getting rental from them; that the lessees are also bound to do certain welfare work for the temple, and hence, the suit has been filed for declaration, recovery of possession and mesne profits.
10.The defendant resisted the suit stating that the plaintiff is sirothiriamdhar; that the defendant, his father and grandfather were ryots; that the temple gave rokka patta to them; that the third item of property was sold to one Jegadambal; that the defendant is in possession of 1.21 acres in respect of sixth item; that his grandfather Ragavapillai, executed a mortgage deed in favour of Subramania Naicker in respect of some of the properties in items 1, 4 and 5; that Ragavapillai purchased items 4 and 6 from one Kandasami Mudaliar by way of a sale deed dated 18.7.1998; that he also purchased items 2 and 4 from Kuppusamy Mudaliar by way of sale deeds dated 31.10.1914 and 1.11.1924 respectively; that the plaintiff never claimed any right over these properties; that they were in possession and enjoyment of the properties for more than 75 years, and thus, they perfected title by adverse possession, and under the circumstances, the suit was to be dismissed.
11.In the additional written statement filed by the defendant, it is averred that Thirupporur Village is an estate Village; that suit lands are ryot lands; that the defendant, his father and grandfather were entitled to enjoy the property; that kudi patta was issued to them; that kist has also been collected; that pursuant to Act 26/48, the estate has been abolished, and thus, the plaintiff has no right over the suit property; that a notification was also issued in that regard; that thereafter, the plaintiff did not make any claim over the property; that the patta obtained by the plaintiff in the settlement proceedings, will not give them any right in respect of the suit properties; and that when the kist was paid by the defendant, the Village Administrative Officer refused to receive the same.
12.The trial Court framed necessary issues in all the three suits, and on trial, dismissed them, which necessitated the plaintiff temple to prefer three appeals referred to above, before the first appellate Court. The first appellate Court on enquiry of the appeals, dismissed them, which are the subject matter of these three second appeals.
13.At the time of admission, the following substantial questions of law were formulated for consideration:
(1) Whether the finding that Thiruporur is an estate taken over under Act 26/48, is based on no evidence?
(2) Whether patta holders under Ekabogam Mirasidar can claim title to the lands?
(3) Whether the defendants can claim title by prescription?
14.Advancing his arguments on behalf of the appellant temple, the learned Senior Counsel would submit that the plaintiff temple filed the suits seeking declaration of its title to the suit properties, recovery of possession and for mesne profits; that the defendants were the tenants under the plaintiff; that they have in the course of the written statements, taken two different stands; that to start with, they claimed that they were the owners of the properties, and the plaintiff had no title to the property, and the claim was also barred by limitation; that they took a different stand that Thirupporur was an Inam village, and it was taken over under the Tamil Nadu Act 26/48 i.e., Estates Abolition and Conversion into Royatwari Area, and they were occupancy ryots, and the plaintiff could not claim title as the land holder namely the plaintiff, did not obtain patta as private lands, and hence, the plaintiff could not claim title also; that both the Courts below have taken the view that the title of the plaintiff was not proved, and there was no proof as to the tenancy to commence with, and there are documentary evidence, where it has been shown that it was an Inam estate, and thus, the plaintiff could not lay any claim or ask for title or possession in respect of the suit properties.
15.The learned Senior Counsel would further add that Thirupporur was not an Inam estate, nor was it taken over under Act 26/48; that it is true that a piece of evidence was available for the respondents/defendants through the evidence of P.W.1; but, it was a truncated admission, and that cannot be taken as a proof to nonsuit the plaintiff since there was sufficient documentary evidence to prove otherwise; that it was neither an Inam estate nor taken under the Tamil Nadu Act 26/48; that in the instant case, it was the consistent case of the plaintiff that the temple was the owner of the properties from the beginning; that it is also averred by the respondents/defendants in their additional written statements that it was an Inam estate, and it was also taken over under Act 26/48; that if to be so, there should have been a notification under Sec.1(4) of Act 26/48, following which, a Royatwari patta should have been given under Sec.11 of the Act; but, it was not given to the respondents; that they have also not produced the same since it was not issued to them; that there was no payment of kist following the same, under Sec.16 of the Act; that what was all contended by them was that when it was tendered to the Village Administrative Officer, they refused to receive the same; that all would go to show that their contention that it was an Inam estate and was also taken over under Act 26/48 was thoroughly disproved; that on the contrary, the plaintiff produced a G.O. which was issued in the year 1951 under the Act; and that the same would clearly reveal that Thirupporur Village was not one of the villages notified.
16.Added further the learned Senior Counsel that Thirupporur Village was a Government Village from the very beginning; that Ex.A21 was the register of the Village; that it was a resettlement register relating to fasli 1319 corresponding to 1909; that it could also be seen that the Government of Tamilnadu has published a book on History on Land Revenue Settlement and Abolition of Intermediary Tenure in Tamilnadu; that Chapter VI deals with ryotwari settlement; that further, in the book, it has been mentioned that finally Diglot Register or settlement 'A' Register is prepared; that Ex.A21 was relied on by the plaintiff to show that when the ryotwari settlement was introduced in Thirupporur Village, it could not be an estate; that in the instant case, once the defendants came forward to state that it was an estate and taken over under the Act, a duty was cast upon them to prove the same; but, they failed; that in Ex.B45 sale deed, relied on by the defendants, the land was described as Sircar land; that apart from that, in an estate, the landholder is the owner and not the Government; that in the instant case, they are described as Government lands, which would also go against the defendants' case; that it could also be seen that Devasthanam is Ekabogam Mirasdar of Thirupporur Village and Inamdar of Thandalam Village; and thus, in the instant case, Ekabogam Mirasdar the temple, is actually the owner of the property; that it is true that receipts have been issued as found in the documents relied on by the other side, namely Exs.B4, B5 to B8, B12 to B22 and B27 to B37, wherein the name of the village Thirupporur is also found; that it is pertinent to point out that the receipts were issued not only for the village of Thirupporur but also for Thandalam Village; that it is not in controversy that Thandalam Village was an Inam estate and taken over under Act 26/48; that the defendants took undue advantage of the printing mistake committed in including Thirupporur Village along with Thandalam Village, which was taken over under Act 26/48; that the lower Courts have also accepted the same; that it could be clearly seen that the use of form cannot make Thirupporur Village as an estate in the absence of any one of the incidents and consequences to follow, which should have naturally followed namely taking over by the Act; that in the instant case, there was neither a notification, nor a patta was issued in favour of the defendants; that they have not paid kist also; and that there is no material to show that the village was ever taken over under Act 26/48.
17.Added further the learned Senior Counsel that in all these documents, it is pertinent to point out that the plaintiff is described as Ekabogam Mirasdar, who could lay claim of exclusive title to the property as it is well settled position of law; that in these documents, the tenants are mentioned as payakaris; and that the Arabic name payakaris are actually tenants. In order to substantiate the said contention, he relied on the following decisions reported in AIR 1929 MADRAS 529 (RAMALINGA V. RAMASAMI) and 1963 (1) MLJ 405 (VARADAPPAN V. STATE OF MADRAS). Pointing to these decisions, the learned Senior Counsel would submit that in the instant case, even the documentary evidence relied on by the opposite party, would clearly reveal that they are mirasi lands; that in the instant case, mirasdar is the temple; that under the circumstances, the plaintiff is the absolute owner of the property; that title is also vested in them; and that further in the instant case, the contention of the defendants' side as to the prescriptive title, was accepted by the Courts below, but erroneously.
18.The learned Senior Counsel would further contend that the defence case was that they are occupancy ryots, and hence, they claimed that they were in possession in their own right; that subsequently, they have given up the stand and came with a different stand stating that the lands were taken over by the Government; that further, in the instant case, once they have come forward to say that kudi patta was given to them, it is well settled position of law that it confers only tenancy right and at no stretch of imagination, they could claim any adverse possession; that needless to say that if they are to claim prescriptive title by adverse possession, their possession should have commenced in wrong and continues to be against the right; that in the instant case, it is not so; that it is only the tenancy right; that apart from that, in order to show that they acquired prescriptive title, they must show that it actually accrued prior to 1951, since from 1951 onwards, they could not claim prescriptive title against any temple as it is well settled position of law and apart from the provisions of H.R. & C.E. Act; that if to be so, even the evidence available and in particular Ex.B4, would clearly show that it was of the year 1959; that apart from that, one Muthukumarasamy Gurukkal has accepted that he was a tenant in 1953, and thus, they could not claim any prescriptive title, and under the circumstances, the lower Courts have lost sight of both the factual and legal position in that regard.
19.The learned Senior Counsel would further add that there are 17 items of properties namely 4 items in the first suit, 6 items in the second suit and 7 items in the third suit; that in respect of items 3 and 4 in the first suit, the defendants in that suit do not claim anything, and thus, the claim of the plaintiff in that regard may not be considered; that once it was a suit for declaration, and the title of the plaintiff is proved, and apart from that, they are shown to be mirasi lands, and title continues to be with the temple, and there is no evidence available to the effect that it was taken over under Act 24/48, and the defence plea that they acquired prescriptive title also falls to ground, there is no impediment that could be felt, in granting the relief, and thus, the appellant has got to be granted the reliefs by setting aside the judgments of the Courts below.
20.Countering the above contentions, the learned Counsel for the respondents would submit that the suits were rightly dismissed by the trial Court, which finding was also affirmed by the first appellate forum; that in the instant case, the plaintiff who came forward with the suits for declaration of title, miserably failed to prove its title; that except stating that it had title, no documentary evidence was filed; that apart from that, all the documents, which were filed, would clearly reveal that they were all pattas issued by the temple to the defendants pursuant to the Act 1/1908; that all these documents would clearly reveal that they were all pertaining to the properties in question; that P.W.1 examined on the side of the plaintiff, at the time of the cross-examination has clearly admitted that the defendants are in enjoyment of the suit lands for nearly about 30 to 40 years, and no income was collected from the defendants for those period and pannai lands are accounted every year, and the lands comprised in all these receipts, are ryot lands, and they are not accounted for 20 to 30 years; that from the evidence of P.W.1, it would be clear that the said village was an estate village; that the suit lands are enjoyed by the defendants and their predecessors for more than 40 years, and hence, they have acquired title to the suit lands by adverse possession; that apart from that, in the instant case, all the receipts under Exs.B5 to B8, B12 to B18, B21 and B22, would clearly reveal that they were all issued by the plaintiff under Sec.63 of the Estate Land Act (1 of 1908), and they were all pertaining to the lands in question, and receipts have been issued; that they have been in possession for the long past; that there is no evidence to show that there was any recovery of lease amount from any one of the defendants at any point of time; that apart from that, in the instant case, the contention put forth by the appellant's side that it was not notified, has got to be discountenanced since it was notified in or about 1961; that it is an estate land, which has been in possession of the defendants all along in the past as admitted by P.W.1.; that the admission by the plaintiff's witness is a concrete ground to reject the claim, and nothing more is required; that both the Courts have marshaled the evidence proper and have dismissed the suits, and under the circumstances, it does not require any interference in the hands of this Court.
21.The Court paid its anxious consideration on the submissions made.
22.All these three suit were brought by the appellant temple claiming title to the property and also for recovery of possession and for future mesne profits. The case of the plaintiff is that the defendants were tenants under the plaintiff in the past; that they have been paying the lease amounts, but have failed to do from the particular time, and under the circumstances, after the issuance of notices, a necessity arose for filing the suits. The defendants raised the main defence to start with, that the plaintiff was not the owner of the lands; and that they were the owners. They filed additional written statements taking a stand that the lands were taken over by the Government under Act 26/48; that the lands are to be only so since they were taken as estate lands; that they have been in possession and enjoyment; that once it was taken under Act 26/48, the temple ceases to be its owner, and they could not make any claim; that apart from that, admittedly, they have been in open, continuous and uninterrupted possession for 3 or 4 decades; and that they have acquired prescriptive title also. When the plaintiff came forward claiming title to the property, the defendants in their original written statements have not only denied the title of the plaintiff, but also claimed title for themselves, and subsequently, they gave up that stand in the additional written statements, and they would say that Thirupporur was an Inam village, and it was taken over under the Tamilnadu Act 26/48, i.e., Estate Abolition and Conversion into Royatwari Area. Hence, the question that would arise for consideration would be whether Thirupporur Village was an Inam village, and the lands in question could be called as one taken over under Tamil Nadu Act 26/48. In the instant case, the consistent stand of the plaintiff is that the lands are mirasi lands. Insofar as mirasi lands are concerned, it is well settled proposition of law that Mirasdar is the owner of the land in question.
23.So far as the documents relied on by the defendants namely Exs.B5 to B4, B12 to B22 and B27 to B37, the receipts, are concerned, they were issued by the plaintiff to the defendants for the payment of rent. These documents along with Exs.B1 to B4 and B23 to B26, the pattas, were marked by the defendants through P.W.1. A scrutiny of these documents would clearly reveal that the plaintiff temple is described as Ekabogam Mirasdar.
24.This Court has held in a decision relied on by the appellant and reported in AIR 1929 MADRAS 529 (RAMALINGA V. RAMASAMI) as follows:
"The special incidents of mirasi tenures are somewhat varied in different villages. Sometimes the mirasidars have got some special rights over waste lands. Some portion of the village land is joint for all the mirasidars and is known as samudayam. Sometimes they are subject to a payment of kist to Government only if they cultivate and they have got the option to cultivate or not if they like. Where the land not held by the original mirasidars is leased out by Government to new tenants or non-mirasidars, the original mirasidars and their descendants have a right to get some special fee from the new tenants called swatanthrams. The mirasidars themselves are regarded as occupancy tenants and their under-tenants known as payakaris have in general no occupancy rights. The share paid by the payakaris is called thunduvaram. The mirasi right is held in shares, pangus, sometimes specified lands being allotted to each pangu and sometimes the pangus not being defined with reference to the lands. Where one Mirasidar is the sole tenant of all the lands of the village, he is then known as egabogam mirasidar. The muchilikas executed by the tenants in favour of the mirasidars where they indicate absolute rights of the mirasidar are described as swanubhogam muchilikas."
25.In the decision relied on by the plaintiff and reported in 1963 (1) MLJ 405 (VARADAPPAN V. STATE OF MADRAS), it has been held thus:
"Nazarathpuram one of the Mirasi villages in Chingleput District was formerly known as Tondamandalam. From ancient times the agricultural economy of that part of the country was based on what was known as kaniyachi system. Kaniyachi denotes a hereditary right in the land. Its Arabic equivalent is mirasi. Kaniyachidars who are otherwise known as mirasdars claim to be the proprietors of the land. It was open to them to cultivate the land themselves or through tenants. In the later case the actual cultivators were called ulkudis or purakudis the Mohammadan name for them being Payakarries...
Generally in a mirasi village there are a number of mirasdars. But it may happen that there is only one either by a process of devolution purchase or even by a colonisation by a single individual. In that case the mirasdar is known as ekabogam mirasdar. An ekabogam mirasdar will, therefore, be a single individual or family in possession of all the lands in the village without sharing it with any other co-sharer...
Whether it is a case of ekabogam or palabogam the mirasdar or mirasdars in a mirasi village would be the persons entitled to the occupancy rights in the lands of the village the actual cultivators not having any such rights. But it must not be taken that the mirasdars are equivalent to the inamdars of the entire village...
The evidence in the instant case shows that a person was the ekabogam mirasdar of the village, which would mean that he was the person solely entitled to the kudiwaram interest in all the cultivated lands in the village at the time when the shotriem grant was made. That evidence, which is not contradicted by any other evidence should be held to have rebutted the presumption under section 8 of Act (XXX of 1956)."
26.From the above decisions, it would be quite clear that title and ownership is vested in the mirasdars, and it was open to them to cultivate the land themselves or through tenants. It is also clear that mirasdars in a mirasi village would be the persons entitled to the occupancy rights in the lands of the village, and their under-tenants known as payakaris, have in general, no occupancy rights. In the instant case, the description of the plaintiff in these documents would clearly indicate that the plaintiff was the Ekabogam Mirasdar. It is well settled proposition of law that the title holder is entitled to the property. In such circumstances, without any hesitation it could be well declared that the plaintiff is the owner of the properties.
27.Now, at this juncture, it is pertinent to point out that though the defendants originally disputed the title of the plaintiff in the original written statements, they gave up the stand in the additional written statements, but raised two additional pleas. Firstly, Thirupporur village was an Inam village, and secondly, it was taken over under the Tamil Nadu Act 26/48. Once such a contention was raised, a duty was cast upon the defendants to prove that fact. In the considered opinion of this Court, a scrutiny of the materials would clearly reveal that the defendants have miserably failed. When the lands are taken over under the Tamil Nadu Act 26/48, the first consequence to follow was the publication of a notification under Sec.1(4) of the Act. But, in the instant case, though it was contended by the defendants that a notification was made in or about 1961, nothing was brought to the notice of the Court till this date. On the contrary, a notification issued by the Government of Tamil Nadu in respect of the estates taken under the Act was placed and perused, wherein this Thirupporur Village was not shown as one of the villages taken under the Act, and thus, the plaintiff was able to disprove the said contention. Following the notification, if the lands were taken over under the Act, the next step was the issuance of patta under Sec.11 to the ryots. But, in the instant case, no material was placed before the Court by the defendants. After the issuance of patta, the next stage was the payment of kist by the patta holder. In the instant case, no material was placed; but, on the contrary, the defendants came forward with a plea stating that they made an attempt to pay kist to the Village Administrative Officer; but, he refused to receive. All the above would go to show that there was neither a notification that Thirupporur Village was taken over under Act 26/48 nor issuance of patta in favour of the defendants, nor had they occasion to pay the kist in the past.
28.What was all available for the defendants before the trial Court and accepted by both the Courts to render a judgment against the plaintiff was the documents relied on by the plaintiff, which would clearly reveal that the receipts were issued under Act 1/1908 wherein the name of Thirupporur Village was also mentioned, and also the evidence of P.W.1 stating that Thirupporur Village was an estate, and they have been in possession for more than 40 years, and no collection was made from them, and thus, it was relied on by the defendants and accepted by both the Courts below. In the considered opinion of this Court, this piece of documentary evidence either, or the oral evidence through P.W.1 cannot either go against the plaintiff's case or advance the defence. In the instant case, as narrated above, all the documents available would clearly indicate that they are all mirasi lands, and thus, as per the settled position of law, the ownership and title of the plaintiff cannot be questioned. It is true that in the printed format, the name of the village Thirupporur is also mentioned. As rightly pointed out by the learned Senior Counsel for the appellant, this printed format not only mentions the name of Thirupporur Village, but also Thandalam Village. So far as Thandalam Village is concerned, it is not in controversy that it was an Inam estate and was taken over under the Act 26/48. Hence, in the absence of any evidence to show that Thirupporur Village was taken over under the Act 26/48 and that any notification was issued following the same, or the patta has been issued in favour of the ryots calling it as their lands, and not even kist has been paid, merely because of the mis-description of the village in the printed format, the same cannot be a reason to reject the case of the plaintiff. Equally so is the evidence of P.W.1. A perusal of the evidence of P.W.1 would clearly reveal that at the time of the cross-examination, all these admissions are truncated. He would say that patta has been issued in favour of the defendants, and they have been making payment of kist; but, the factual position is not so. All would clearly reveal that a witness has been examined who has talked against all the documentary evidence. In the instant case, the oral evidence whatever may be the extent, cannot go against the documentary evidence, which would prove the plaintiff's case.
29.Apart from all the above, it is a case where at no stretch of imagination, the defendants can claim any title by prescription. The documentary evidence relied on by both sides, would go to show that the defendants were tenants. Unless and until the defendants are able to show that they were in continuous possession for a statutory period prior to 1951, they cannot claim any title by adverse possession. From 1951 onwards, they cannot claim title to the property as against the temple in view of the provisions under the H.R. & C.E. Act. Hence, there is no question of claiming any title to the property by adverse possession also. Under the circumstances, the plaintiff was able to show by documentary evidence that they were all mirasi lands. As pointed out supra, so far as the mirasi lands are concerned, the title is with the mirasdar who in the instant case is the temple as one recognized. Further, there is no evidence to show that the lands were taken over under Act 26/48, and hence, they cannot be called as Inam estate. Apart from that, there was evidence to start with, that the plaintiff was the title holder, and the defendants were tenants. By sufficient documentary evidence, the plaintiff was able to show that the suit lands were mirasi lands of which the temple was the owner, and the defendants were only tenants. That apart, the tenancy has been determined properly. In such circumstances, there cannot be any impediment for granting a declaration in favour of the plaintiff and also the relief of recovery of possession and mesne profits, since the plaintiff both on facts and in law, is entitled to get so. It is brought to the notice of the Court that so far as items 3 and 4 in the first suit are concerned, the defendants therein have no interest, and thus, they are to be excluded. Accordingly, these items are excluded. This Court is of the considered opinion that all the above questions of law have got to be answered in favour of the appellant/plaintiff. Thus, the judgments rendered by both the Courts below, have got to be made undone only by upsetting the same, and accordingly, they are set aside. In respect of items 1 and 2 alone in the first suit O.S.No.759/87, suit is decreed. The other two suits O.S.Nos.760 and 761/87, are decreed in entirety. As regards the relief of mesne profits, the plaintiff is entitled to initiate separate proceedings.
30.Accordingly, these second appeals are allowed leaving the parties to bear their costs. Three months' time is granted for handing over possession. Consequently, connected CMPs are closed.
To:
1)The Principal Subordinate Judge Chingleput
2)The District Munsif Chingleput nsv/