Madras High Court
Velayutham, Jeyaraj And Seeni Alias ... vs K. Thangavelu on 29 April, 2008
Author: G. Rajasuria
Bench: G. Rajasuria
JUDGMENT G. Rajasuria, J.
1. This second appeal is focussed as against the judgment and decree dated 28.09.1999 in A.S. No. 51 of 1999 on the file of the learned Additional District Judge cum Chief Judicial Magistrate, Pudukottai in reversing the judgment and decree dated 28.02.1998 in O.S. No. 820 of 1980 on the file of the learned Principal District Munsif, Pudukottai.
2. The parties are referred to hereunder in the same order as they were arrayed before the trial Court.
3. Niggard and bereft of details, the case of the plaintiff as stood exposited from the records could be portrayed thus:
The suit properly, which is an immovable property measuring an extent of 2 Acres and 98 cents in S. No. 291 of 2001 situated in Vellakkollai Village, Alangudi Taluk, Pudukkottai District, originally belonged to the plaintiff's forefathers. The plaintiff's father Karuppu Udayar was in possession and enjoyment of the suit property during his lifetime and following the same, the plaintiff continued to be in enjoyment for over sixty years continuously, even after passing of the Tamil Nadu Inam Estates (Abolition and Conversion into Ryotwari) Act, 1963 (In short Act No. 26 of 1963). While so, during July, 1977, the defendants without any manner of right trespassed into the suit property and started occupying it. Hence, the suit.
4. Impugning and challenging, denying and refuting the allegations/averments in the plaint, the third defendant filed the written statement before the trial Court, which was adopted by the defendant Nos. 1 and 2; the gist and kernel of them would run thus:
The defendants and their ancestors have been in possession and enjoyment over the suit property for over 40 years and in recognition of the same during the year 1972, patta was granted in favour of the third defendant's father and that they have been occupying it and accordingly they prayed for the dismissal of the suit.
5. The trial Court framed the relevant issues and during trial, P.W.1 was examined and Exs.A.1 to A.20 were marked. On the side of the defendants, the third defendant examined himself as D.W.1 along with D.Ws.2 to 4 and Exs.B.1 to B.8 were marked. Exs.X1 to X5 were also marked.
6. The trial Court ultimately dismissed the suit.
7. Being aggrieved by and dissatisfied with the Judgment and decree of the trial Court, the plaintiff preferred the first appeal, whereupon the first appellate Court reversed the Judgment and decree of the trial Court and decreed the original suit as prayed by the plaintiff.
8. Challenging the Judgment and decree of the first appellate Court, the defendants filed this second appeal on the grounds interalia thus:
The first appellate court fell into error in simply relying on the proceedings of the Assistant Settlement Officer concerned and decided the issue. The first appellate Court ignored Ex.B1 without any valid reason. The plaintiff did not take any steps under the Tamil Nadu Act No. 26 of 1963 within the time stipulated. The first appellate Court also was wrong in relying on the additional documents, viz., Exs.B21 and B22 marked before it. The Assistant Settlement Officer concerned simply granted patta in favour of the plaintiff without even giving notice to the defendants. Accordingly, the appellants prayed for restoring the Judgment and decree of the trial Court after setting aside the Judgment and decree of the first appellate Court.
9. The following substantial questions of law were framed by my learned Predecessor at the time of admitting this second appeal:
1. When there is already a regular patta to the defendant issued in the year 1972, whether the subsequent patta obtained under the Tamil Nadu Inam Estates (Abolition and Conversion etc) Act, 1963 (Act 26/1963), without cancelling the regular patta and without notice to the defendant is valid under law and binding on the defendant?
2. When admittedly the defendants are in possession and when there is no allegations of encroachment of the suit property by the defendants, is the lower appellate Court right in reversing the Judgment and decree of the trial Court and decreeing for recovery of possession?
10. At the time of arguments, I felt that it is just and necessary to reframe the substantial questions of law also as under:
1. Whether the first appellate Court took into consideration or not the burden of proof that the plaintiff should prove the case independent of the findings given in Ex.A1 by the Assistant Settlement Officer under Tamil Nadu Act No. 26 of 1963? and
2. Whether the Judgment and decree of the first appellate Court is fraught with perversity and illegality?
11. The substantial questions of law are taken together for discussion as they are interlinked with one another.
12. Heard both sides.
13. The learned Counsel for the second appellants/defendants would submit that not even the plaintiff examined himself as a witness, but his power agent was examined as P.W.1, who had no personal knowledge about the alleged possession of the suit property by the plaintiff and his forefathers; absolutely there is no iota or shred of evidence to support the case of the plaintiff and in fact the first appellate Court ignored the factum of the defendants having been in possession ever since the year 1972 as the Government itself recognised their possession, whereas the learned Counsel for the respondent/ plaintiff would argue that the Civil Court is having no jurisdiction to decide the correctness or otherwise of the order passed by the Assistant Settlement Officer concerned as found in Ex.A1; the patta granted under Tamil Nadu Act No. 26 of 1963 is conclusive and it is beyond the challenge before the Civil Court; Ex.B1, the alleged patta granted in favour of the defendants was only an assignment and not a patta under the Tamil Nadu Act No. 26 of 1963 and accordingly he prayed for the dismissal of the second appeal.
14. At this stage, my mind is redolent with the the decision of this Court in Srinivasan and 6 Ors. v. Sri Madhyarjuneswaraswami, Pattavaithalai, Thiruchirappalli District by its Executive Officer at Pattavaithalai Devasthanam and 5 Ors. reported in 1998 (II) M.L.J Page 722. An excerpt from it, would run thus:
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 oblilged 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 resjudicata does not have the effect of outing 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 the 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 applicbale, the jurisdiction of the 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 Court 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 ws finally decided and that too by an authority or court of competent jurisdiction.
16. On coming to know of the existence of an unreported decision of the Apex Court rendered by a Bench consisting of three of their Lordships, efforts were made to secure the same when the judgments in this case was under preparation and it was ascertained that in Civil Appeal No. 5141 of 1993 Sri-La-Sri Sivapradkasa Pandara Sannadme Avargal v. Smt.T.Parvathi Ammal and Ors. (1998)2 L.W. 188, their Lordships of the Apex Court by a judgment dated 20.2.1996, not only approved the earlier decision of the Apex Court reported in R. Manicka Naicker v. Elumalai Naicker and set their seal of approval to the principles laid down therein, but had categorically held in unmistakable terms that the decision in (Vatticharularu Village Panchayat v. Nori Venkatarama Deekchithulu 1991 (2) S.C.C (Supp.) 228) has no application to the provisions or in respect of claims arising under the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963. Their Lordships of the Apex Court in coming to such a conclusion, held as follows:
The only question for decision relates to the jurisdiction of the Civil Court to entertain the suit which was filed by the respondent. The trial Court decreed the suit. The First appellate Court set aside the decree taking the view that the civil Court's jurisdiction was barred. In the second appeal filed by the present respondents, the High Court has restored the judgment and decree of the trial Court taking the view that the civil Court's jurisdiction was not barred.
The plea of exclusion of the Civil Court's jurisdiction to adjudicate the title of the parties in the present case is based on the provisions of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963. This Court in a recent decision in R. Manicka Naicker v. Elumalai Naicker , has clearly held that the Civil Court's jurisdiction to adjudicate title of the parties, is not barred by virtue of the provisions of the said Act. This is a direct decision of this Court on the provisions of the Act with which we are concerned in the present case. Learned Counsel for the appellant placed reliance on the decision in Vatticharularu Village Panchayat v. Nori Venkatarama Deekchithulu 1991 (2) S.C.C (Supp.) 228. It is sufficient to observe that this decision relates to the provisions under a different Act of Andhra Pradesh. Moreover, in R.Manicka Naicker, this decision relating to the provisions in the Andhra Pradesh Act was considered and distinguished. In view of the direct decision of this Court in R.Manicka Naicker, there is no merit in this appeal. The appeal and the Contempt Petition are dismissed.
17. In view of the above unreported decision of the Supreme Court, the decision in S. Vanathan Muthuraja v. Ramalingam rendered without even referring to the earlier reported decision of the very same Court in R. Manicka Naicker v. Elumalai Naicker and the unreported decision of even a larger Bench directly arising under the Tamil Nadu Act 30 of 1963, cannot be said to lay down or declare the correct position of law or constitute a binding precedent.
18. For all the reasons stated above, we answer the question referred to the Full Bench in the negative by holding that the jurisdiction of the civil Court to entertain a suit for declaration of title and injunction is not barred by reason of the grant of patta under the provisions of Tamil Nadu Act 30 of 1963.
19. We direct the respective appeals to be posted before the learned single Judge concerned for the disposal of the appeals on merits in the light of the answer given on the reference made to the Full Bench. The cost in the appeals shall abide by the result of the appeals on merits.
15. A mere perusal of the said Judgment of this Court more specifically the extracted portion supra would leave no doubt in the mind of the Court that the Civil Court has got jurisdiction to decide the title over the suit property and the authorities' order/findings under the Tamil Nadu Act No. 26 of 1963 would not in any way bar the Civil Court to decide on merits, the rights of the rival parties over the property concerned before the Court. There is also one other Judgment of this Court, which could be quoted here under:
M.E.A. Mohamed Ali and Ors. v. The District Revenue Officer .
Hence, it is therefore clear that the contention on the side of the respondent/plaintiff that the Civil Court is having no jurisdiction does not hold water.
16. Viewing the matter from the aforesaid precedents, it could at once be held that absolutely there is no convincing evidence adduced by the plaintiff before the Civil Court so as to enable the Civil Court to come to an independent conclusion. It is a common or garden principle that onus probandi is on the plaintiff to prove his case and he cannot pick holes in the case of the defendants and try to achieve success in the litigative battle. It is also a trite proposition that in a case, the normal principle of evidence is that both the parties refrain from adducing evidence, the plaintiff should be held to have lost his case unless the nature of the case is on a different peculiar exceptional footing with which this Court is not concerned with here. In this case, only P.W.1, the power of attorney of the plaintiff was examined. As has been correctly argued by the learned Counsel for the appellants/defendants that the plaintiff shunned the witness box for the reasons best known to him and no other witnesses have been examined to prove his alleged previous possession. Simply because in Ex.A1, the order of the Assistant Settlement Officer, there is reference to the evidence of some of the witnesses, the same is not sufficient as those witnesses have not been examined before the Civil Court. The decision of Full Bench of this Court cited supra would mandate that there shall be independent evidence before the Civil Court to prove the rights of the plaintiff. Accordingly, if viewed, it is crystal clear that absolutely there is no evidence to prove that for over 60 years as claimed by the plaintiff, he and and his predecessors were in possession of the suit property. No doubt, the first appellate Court in paragraph No. 18 criticised that the defendants did not prove their alleged 40 years possession over the suit property. To the risk of repetition without being tautologous, I would like to reiterate that if at all the plaintiff discharged his burden then it would have got shifted to the defendants. But in this case the plaintiff had not proved his case that he and his predecessors in title have been in possession and enjoyment of the suit property for over 60 years. It is just and necessary to analyse the purport of the Tamil Nadu Act No. 26 of 1963 and its repercussions on the suit property.
17. Admittedly and indubitably the suit property was once an inam land. The perusal of Ex.A1 would show that the Chettiar of Thenipatti was the inamdhar and the Assistant Settlement Officer referred to the Karnam's evidence and narrated and commented upon it while holding that the Land Register emerged earlier to Survey Register and based on the Land Register only, Survey Register under the special enactment, was prepared and in that the plaintiff's father's name Karuppu Udayar is found mentioned as possessor and he had also relied upon the oral evidence adduced on the side of the plaintiff. But before the Civil Court no such evidence was adduced. The said Land Register was not produced before the Court. Even the extract of the Land Register also was not produced before the Court. Ex.A2 is only the certified copy, which emerged only after Ex.A1. Even though on the side of the plaintiff, as many as 20 documents were marked, nonetheless and all those documents emerged from the year 1977 onwards, whereas the Government itself during the year 1972 recognised the defendants' possession in the suit property and assigned patta Ex.B1 in favour of the third respondent's father. It is clear from the perusal of Ex.A1 itself that in the year 1976, the plaintiff petitioned the Tahsildar but he failed. Thereupon he preferred an appeal to the Land Tribunal, which remanded the matter to the same Tahsildar, who subsequently dealt with the matter and granted patta as per Ex.A1 under the Tamil Nadu Act 26 of 1963. It is therefore clear that the documents referred to on the side of the plaintiff, emerged subsequent to those documents, which are having no probative force of their own.
18. The learned Counsel for the respondent/plaintiff by placing reliance on Exs.A21 and A22 would develop his arguments to the effect that the defendants even though were not a party to the proceedings before the Assistant Settlement Officer, tried to get set aside that order, which was rejected. I am of the considered opinion that all those facts are not germane for deciding the issue relating to the rival contentions of the parties relating to the suit property before the Civil Court
19. The crux of the matter lies in finding out as to whether either of the parties proved that anterior to the commencement of the Tamil Nadu Act No. 26 of 1963, anyone of the parties was in possession of the suit property. There is no infinitesimal or minusale extent of evidence available to prove the said fact. In fact, in Ex.A1 itself the Assistant Settlement Officer would record that Karnam himself did not give evidence in favour of the plaintiff herein. The Karnam without mincing words before the Assistant Settlement Officer gave evidence to the effect that he had no records to prove that the suit property was under the cultivation of Karuppu Udayar, the father of the plaintiff or the plaintiff. I am at a loss to understand as to how the Assistant Settlement Officer of his own accord could assume and presume as though in respect of the land that the plaintiff and his ancestors have been cultivating the land prior to the commencement of the said Act. Be that as it may, it has to be seen as to whether any evidence has been adduced before the Civil Court to prove such alleged cultivation even anterior to the commencement of the Act No. 26 of 1963.
The perusal of the records would reveal that absolutely there is no reliable evidence as expected supra is found adduced on the side of the respondent/ plaintiff.
20. The learned Counsel appearing for the respondent/plaintiff would cite the decision of this Court in Ponnammal v. R. Natesa udayar and Ors. reported in 1978-TLNJ-41. An excerpt from it would run thus:
According to the petitioner the lands in question having been classified as assessed waste and the classification having become final under the provisions of Tamilnadu Act 26 of 1948, it is not open to the Government now to direct the grant of patta to the 1st respondent and that if the 1st respondent is aggrieved against the classification of the land as assessed waste, he should have taken steps to question the classification then and there before the land was assigned to the petitioner; (on facts); It cannot be said that the 1st respondent had slept over the matter all these days without claiming any right in respect of the land in question. The fact that he has been agitating that the survey number in question is his ancestral property and that therefore the assignment of the land in favour of the petitioner is erroneous will show that he has been claiming patta for the lands in question. Therefore I cannot say that the orders of the Government directing the grant of ryotwari patta to the 1st respondent is in anyway erroneous.
The Learned Counsel for the petitioner then contends that even assuming that it was a ryoti land, once the lands are entered as assessed waste in the government records, u/s 3 of the Tamilnadu Act 26 of 1948, it is open to the government either to grant patta to the person in possession or to assign the lands to whomsover they like and that therefore the 1st respondent cannot challenge order assigning the lands to the petitioner. It is not possible for me to accept this above submission of the Learned Counsel for the petitioner. If the Survey Number in question is part of the 1st respondent's holding and he has been cultivating the lands at the time when the estate was taken over the rights cannot be defeated or taken away under the provisions of the Act. This is clear from the decision of a Bench of this Court in 1968(1) Mad.728
21. The cited precedent supra is on a different point. The writ petitioner in that case happened to be the assignee of patta, who questioned the grant of ryotwari patta in favour of the respondent therein on the ground that the Government after assessing the land concerned as assessed waste was not justified in treating it as a ryotwari patta. Here, my above discussion supra would highlight and spotlight that the facts are entirely different. No doubt, in this case also the land was assessed as assessed waste dry and subsequently patta was given to the plaintiff. Put simply there is no proof to demonstrate or indicate that the plaintiff actually cultivated the land even anterior to the commencement of the Act No. 26 of 1963 and subsequently also and in such a case the plaintiff cannot try to achieve success in the litigative battle. The trial Court correctly appreciated the evidence and dismissed the suit; whereas the first appellate Court unmindful of the following maxim 'Non Potest Adduci Exceptio Ejusdem Rei cujus petitur Dissoluto' (A matter, the validity of which is at issue in legal proceedings, cannot be set up as a bar thereto) reversed the Judgment and decree of the trial Court and simply decreed the original suit placing reliance on the impugned documents themselves. What the first appellate Court did was that it simply relied upon Ex.A1 the very order passed by the Assistant Settlement Officer and Ex.A2, which emerged thereunder. In my considered opinion the first appellate Court should have looked for evidence alieunde, but it relied on the impugned documents themselves and placed it verdict on ice and not on solid grounds. Hence, such a Judgment and decree of the first appellate Court is in my opinion is fraught with perversity and illegality, which is liable to be set aside and the Judgment and decree of the trial Court has to be upheld and accordingly, the substantial questions of law are answered to the effect that the first appellate Court wrongly applied the burden of proof on the defendant instead of applying in the plaintiff and the first appellate Court's Court Judgment is fraught with perversity and illegal.
22. In the result, the second appeal is allowed setting aside the Judgment and decree of the first appellate Court and the Judgment and decree of the trial Court is restored. However, in the facts and circumstances of the case, there is no order as to costs.