Madras High Court
The State Of Tamil Nadu vs R.P.Patchirajan on 25 March, 2008
Author: S. Palanivelu
Bench: S. Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 25/03/2008 CORAM THE HONOURABLE MR.JUSTICE S. PALANIVELU S.A.(MD)No.821 of 1996 1.The State of Tamil Nadu rep.by the District Collector Kamarajar District, Virudhunagar. 2.The Tahsildar, Rajapalayam Taluk, Rajapalayam. .... Appellants Vs. 1.R.P.Patchirajan 2.R.P.Ramasamy .... Respondents Prayer Second Appeal filed under Section 100 of C.P.C., against the judgment and decree dated 29.06.1994 in A.S.No.59 of 1991 on the file of the Subordinate Judge, Srivilliputhur reversing the judgment and decree dated 07.09.1989 in O.S.No.442 of 1987 on the file of Principal District Munsif, Srivilliputhur. !For appellants ... Mr.K.M.Vijayakumar Additional Govt.Pleader ^For respondents ... Mr.Mahendran for Mr.A.Thirumurthy :JUDGMENT
Aggrieved by the concurrent judgments passed by the Courts below, the appellants have preferred the present Second Appeal.
2.The allegations in the plaint, in short, are as follows:-
The suit properties are vacant sites situated in the revenue village of Keelarajakularaman Village, Rajapalayam Taluk. The first item of the plaint schedule originally belonged to one D.Rama Iyengar, who in turn sold the same to the plaintiffs father R.P.Ponnuchamy Iyengar on 06.03.1942. The second item property originally belonged to one Muthammal wife of Muthu Iyengar, who sold it to the said R.P.Ponnuchamy Iyengar on 08.08.1941. He had been in possession and enjoyment till his death. After his demise, the plaintiffs as his legal heir are exercising the right of ownership over the properties. The properties are still remaining as vacant sites. The plaintiffs and the predecessors-in-title have been in possession and enjoyment of the suit properties openly and adversely against the third parties including the Government for more than the statutory period. They have prescribed title by adverse possession also. The second defendant has been giving out that the plaint schedule properties will be assigned by way of issuing house site pattas to houseless persons as if the suit properties are belonging to the Government. They have no right to do so. Hence, the suit has been laid for declaration and permanent injunction against the defendants.
3.The averments contained in the written statement filed by the first defendant in brief are as follows:-
One Mayandi and 17 others residing in Keelarajakularaman Village applied for assigning of house sites on 14.08.1987 in Survey No.1647/1 in Keelarajakularaman Revenue Village under the Prime Minister's 20 Point Programme. The said survey No. is classified as "Natham" in the village accounts. It is a vacant site and it is not in possession of any individual in the village. It is unbelievable to state that four decades ago, the father of the plaintiffs purchased the properties. Neither the plaintiffs nor their father had ever exercised any right over the properties. It is a poramboke land and the title of land vests only with the Government. The predecessors of plaintiffs purchased Natham poramboke land without ascertaining whether the vendor had any valid legal and transferable right over the property. The judgment in O.S.No.56 of 1962 dated 20.04.1963 on the file of District Munsif Court, Srivilliputtr, does not bind on these defendants, since they are nor parties to it. This is a suit for partition between the family members of the plaintiffs. The suit sites have been utilised by the village people for conducting drama and folk dance which indicates that the suit properties are not used by the plaintiffs as their own property, as such the suit should be dismissed.
4.The District Munsif Court, after trial, decreed the suit, as prayed for.
5.The matter was carried in appeal by the present appellants before the Sub-Court, Srivilliputhur. The said Court also turned down the claim of the appellants confirming the judgment of the trial Court. Hence this second appeal.
6.While admitting the Second Appeal, the following substantial questions of law were framed:-
"1.Whether the principle that the possession follows title would be applicable to cases of Nathan properties also where in law no body is the owner of the Natham land.
2.Whether the use of land for communal purposes where a common latrine for the villagers has also been constructed would debar the respondents herein from invoking the principle that possession follows title in respect of vacant lands.
3.Whether the survey register where in it has been recorded that the suit land is a poromboke land is conclusive and binding upon the parties."
7.The suit properties are two items of vacant sites situated in Keelarajakularaman Village in Rajapalayam Taluk. The first item is admeasuring east west 19 yards and north south 15 yards, while the second item is east west 18 yards and north south 15 yards. The suit properties were purchased by their father one R.P.Ponnuchamy Iyengar by means of original deeds of Exs.A.7 and A.8. The said R.P.Ponnuchamy Iyengar purchased these properties from one Muthammal and Ponnusamy Iyengar on 08.08.1941 and 06.03.1942 respectively.
8.The paternity of the plaintiffs is not debatable. It is further contended that even though the properties had been remaining as vacant sites, the plaintiffs and their predecessors-in-title have been in possession and enjoyment and the appellants could not lay claim over the properties by stating that they are poramboke lands classified as Village Natham. Infact the appellants have produced documents to show that the entire Keelarajakularaman Village is comprised in survey no.1647/1 and classified as Natham. The village accounts show, inspite of the fact that the properties have been classified as village Natham, still the names of private parties are available in the resettlement register, as evident from the copies of resettlement registers marked as A.4 and A.5.
9.In the said records in addition to the entries under column "remarks" as village site and cart track, under column "Name of the pattadarars or the Inamdarars are the manager of the institution to which the lands belongs" name of one N.B.Srinivasa Iyengar is found for these entries which would amply amplify the circumstance that even though certain pieces of lands were treated as "Village Natham and Cart track", private individuals were holding patta to those properties.
10.The trial Court as well as the lower appellate Court have appreciated the oral evidence on record and arrived at a conclusion that the properties belonged to the plaintiffs family. For this purpose, they have gone through the exhibits produced by the respondents. The lower appellate Court after perusing Exs.A.9 and A.10, has concluded that on the west of suit first item, one Chellammal owned the property, which was sold by her to Ramasamy Raja. However, the decision reached by the lower appellate Court to find out the ownership of a particular piece of land taking into consideration the boundary recitals found in the documents of third parties, is erroneous.
11.It is well settled that the boundary recitals contained in the documents not inter-parties to the suit have to be proved by examining the executants of the documents in which those boundaries are available. If the executants are not available, then it is a proper course open to parties concerned to prove them by examining the parties connected to the documents. Such proof is not available in this case with reference to Exs.A.9 and 10 before the Courts below. Hence, the observations with regard to the ownership of the first item on the strength of the boundary recitals found in Exs.A.9 and 10 are not sustainable. However, as for the ownership, the documents Exs.A.7 and 8 are available to show that the properties came to the possession of R.P.Ponnuchamy Iyengar.
12.The identity of the properties is not in dispute. The appellants are making claim upon the properties which have been covered by Exs.A.7 and 8. There is no clinching evidence on record to show that they are being utilised by villagers as communal property.
13.D.W.1 is the Village Administrative Officer of Keelarajakularaman Village. He has deposed that on the north of the suit property, a rice mill is available belonging to a private individual, which has been constructed in the same survey No. which is shown as poramboke; that had the property over which the rice mill was put up, being a poramboke or village Natham belonging to the Government, "B Memo" should have been issued. No "B memo" was issued to the owner of the rice mill. This piece of oral evidence would lend support to the contention of the respondents. It appears that in the lands alleged as poramboke, by the Government, there were certain constructions have been remaining, as such without any objection from the side of the Government. So also the suit property. Till the institution of the suit, the appellants have not issued any communications or notice to the respondents making claim over the property. In other words, the appellants have not moved their little finger to object the possession of the respondents in the suit properties.
14.It is contended that since the property has been remaining as vacant sites, they have not been assessed to property tax by the Village Panchayat. The contention is quite acceptable. The respondents are able to trace their title from 1941 and 1942, on the strength of Exs.A.7 and A.8. Hence, it is to be observed that they and their predecessors in title have been in continuous possession and enjoyment of the property adverse to the interests of the respondents. In this connection it is to be held that the possession follows title derived by them by Exs.A.7 and A.8 sale deeds since the suit properties happened to be vacant sites.
15.The learned counsel for the respondents in this context would garner support from a decision reported in 1998(3) Law Weekly 603, in A.K.Thillaivanam and another Vs. The District Collector, Chengai Anna District at Kancheepuram and others, this Court on this subject has held as follows:-
"23.Being a grama natham, it is obvious that the land in question had never vested with the Government. Section 2 of the Land Encroachment Act, 1905 excludes gramanatham owned as house site. As such the provisions of Land Encroachment Act,1905 cannot be invoked by the respondents in respect of the land in question.
24.It has been held as early as in (1949) 1 MLJ 290 = 62 L.W.204 (Palani Ammal Vs. L.Sethurama Aiyangar) that grama natham is not a communal property in the sense in which thrashing floor or burning grounds or other property is communal that is property reserved for the use of the community. Satyanarayan Rao.J. held thus:-
'Grama Natham a land in the occupation of the individual in possession of the gramanathamam cannot be interfered and it could very well resist ejectment and also institute a suit in ejectment against the trespasser.'
25.In S.Rengaraja Iyengar and another Vs.Achikannu Ammal and another (1959 2 MLJ 513 = 72 L.W.767), it has been held thus:-
'It is contended that in relation to buildings, specific provision is made under Section 18 of Act XXVI of 1948 and that, consequently, unless a house site can be brought within the ambit of Section 18, such house-site should be held to be property as to which title gets transferred to the Government under Section 3(b). Section 18 deals, in my opinion, with buildings wherever they may be situate, whether in the gramanatham or in ryoti lands or pannai lands or waste lands. Section 18 has no particular application to buildings or house sites in a gramanatham. A building in a gramanatham (or Village habitation) is protected from transfer of title to the Government both under Section 18(1) of Madras Act XXVI of 1948 and under the Madras Land Encroachment Act (III of 1905). The title to a house site in a gramanatham is protected from transfer to Government by the operation of Madras Act III of 1905."
16.These identical principles have been referred in another decision came to be passed by this Court reported in 2002 (3) CTC page 221, in Krishnamurthy Gounder Vs. Government of Tamil Nadu rep.by the District Collector, Cuddalore South Arcot District and two others.
17.As adverted to supra, there is no independent witness on record to establish the fact that the suit properties have been continuously utilised by the villagers for conducting folk dance and drama. Even if such activities are being held therein, it would not in any way affect the plaintiffs' right and ownership. In other words, usage of the suit properties by the villagers then and there for communal purpose would in no way alter the rights of the plaintiffs from claiming the properties as their own. The lack of action on the part of the Government for the past over 40 years is also an adding factor to show that the property has not been treated as a public one though they have been described as such in the revenue records. In the absence of exercise of any right over the suit properties by the Government, the contention that they have been remaining as poramboke lands or Gramma Natham has to be discountenanced. Circumstance of its description in the records as Gramma Natham, will not partake the character of poramboke land as pleaded by the Government.
18.A profitable reference was made to P.Ramanatha Aiyar's Law Lexicon, Second Edition reprint 2004, page 799, wherein the term Grama Natham has been explained as follows:-
"Grama Natham: Ground set apart, on which the house of a village may be built."
19.In view of the illuminating and weighty judicial opinions of this Court, it ought to be held that merely because certain properties are described under classification "Village Natham" in the revenue records, in the presence of unimpeachable documents produced and proved by the parties claiming ownership, it cannot be stated that those properties belong to the Government. The concurrent findings of the Courts below have to be affirmed by this Court. Hence, there is no ground to upset the upshots of the Courts below. The substantial questions are answered as indicated above.
In the result, the second appeal is dismissed. No costs.
ssm To
1.The Subordinate Judge, Srivilliputhur
2.The Principal District Munsif, Srivilliputhur.