Madras High Court
Killiyoor Town Panchayat vs Thangavadivu on 1 July, 2019
Author: S.S.Sundar
Bench: S.S.Sundar
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.07.2019
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
S.A. (MD) No. 90 of 2016
Killiyoor Town Panchayat
Represented by Executive Officer,
Tholaiayavattam Post,
Kanyakumari District. .. Appellant/Appellant/4th Defendant
Vs.
1. Thangavadivu
2. Sudha
.. Respondents-1 & 2/Respondents-1 &2/Plaintiffs-2 & 3
3. The District Collector,
Agasteeswaram Taluk,
Nagercoil Village,
Kanyakumari District.
4. Lalitha Bai
5. The Commissioner,
Killiyoor Panchayat Union,
Killiyoor, Tholaiayavattam Post,
Kanyakumari District.
..Respondents 3 to 5/Respondents 3 to 5/
Defendants-1 to 3
PRAYER : This Second Appeal is filed under Section 100 of
Civil Procedure Code against the Judgment and Decree, dated
25.04.2012 in A.S. No. 19 of 2011, on the file of the
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Subordinate Court, Kuzhithurai by confirming the Judgment
and Decree, dated 30.10.2010 in O.S. No.204 of 2004, on the
file of the I Additional District Munsif, Kuzhithurai.
For Appellant : Mr. M. Murugan,
Government Advocate
For Respondents 1&2 : Mr.N.S. Karthikeyan
and Mr.M.Gnanagurunathan
For Respondents-3 & 4 : No Appearance
For Respondent-5 : Mr.P.Velmurugan
***
JUDGMENT
This Second Appeal is filed by the fourth defendant in the suit in O.S. No.204 of 2004, on the file of the I Additional District Munsif Court, Kuzhithurai.
2. The brief facts that are necessary for the disposal of this Second Appeal are as follows:
2.1.Husband of first respondent and father of second respondent, as plaintiff, filed the suit in O.S. No.204 of 2004 for declaration of his title and possession in respect of plaint 'B' schedule property barring southern approximate 3 cents and for consequential injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit 'B' schedule property.
http://www.judis.nic.in 3 The suit 'B' schedule property is described as a property measuring an extent of 6.5 ares equivalent to 16 cents in old Survey Nos.405/B and 406 corresponding to Re-Survey No. 198/3. The suit is also for recovery of possession in respect of suit 'C' schedule. The case of the plaintiff is that the property comprised in old Survey No.405/B of Killiyoor Village having an extent of 1 acre 93 cents and an extent of 38 cents in Survey No.406 in the same village, originally belonged to one Kunchu Pillai Nadar, son of Nadan Kutti Nadar. It is also the case of the plaintiff that the properties comprised in these two survey numbers lies as a single block with well defined boundaries on all four sides. It is stated by the plaintiff that the son of Kunchu Pillai Nadar, namely, Nadankutti Nadar and the plaintiff orally partitioned the suit property on 21.07.1980 and that as per the said oral partition, the plaintiff got eastern one half of the plaint 'A' schedule property and the remaining portion was allotted to the other son of Kunchu Pillai Nadrar namely Nadankutti Nadar. It is admitted that on the death of Nadankutti Nadar, his ½ share in the plaint 'A' schedule property devolved on second defendant being his daughter. Since the plaintiff claimed that he has constructed a http://www.judis.nic.in 4 residential building in the eastern portion of the plaint 'A' schedule property and residing therein, the plaintiff claimed that 'B' schedule property absolutely belonged to the plaintiff and it forms part and parcel of plaint 'A' schedule. It is the specific case of the plaintiff that though patta for the suit property was granted to the plaintiff's father, it was wrongly classified as a poramboke by the revenue officials without issuing any notice to the plaintiff at the time of resurvey and settlement. Stating that wrong classification of the plaint schedule property as poramboke would not confer any right in favour of any of the defendants and that such wrong classification is a nullity, the plaintiff claimed exclusive title in respect of the plaint 'B' schedule property. After issuing notice to the defendants as required under Section 80 C.P.C., on 23.08.2001, the plaintiff filed the suit for declaration of his title and possession and consequential injunction. The suit was contested by the appellant, namely, the Executive Officer of Killiyoor Town Panchayat. Stating that the entire extent of re-survey No.198/3 and that the plaintiff and his brother, as former lessee of Government in the year 1999 had admitted the title of Government over plaint 'B' schedule property. It http://www.judis.nic.in 5 was further contended by the fourth respondent in the written statement that the plaintiff was never in exclusive possession over suit property at any point of time and that he was just a lessee under the revenue department in respect of an extent of 2.5 ares from the year 1999. It was also the case of the defendant that the suit property being a Government poramboke land, by proceedings dated 06.08.2001 the revenue department had surrendered the suit property to the third defendant, namely, Killiyoor Panchayat Union for the purpose of construction of library.
2.2.It is also submitted that following the order of Revenue Department, the third defendant had in turn issued an order in favour of the President of Elaignar Narpani Mandram, Thalakkan Villai, to construct a library building in the suit property.
2.3.From the pleadings, it is evident that the case of the appellant was that the plaint 'B' schedule property was taken from the Government by the plaintiff as a lessee from the year 1978 and that the plaintiff is estopped from claiming title to http://www.judis.nic.in 6 the property as against the defendants. The appellant also contended that the suit without impleading the Elaignar Narpani Mandram is bad for non-joinder of necessary parties and that the suit is liable to be dismissed.
2.4.After framing necessary issues, the trial Court found that the suit 'B' schedule property is not a Government poramboke land and that it belonged to plaintiff's predecessors-in-interest. The technical objections raised by the appellants that the suit is bad for non-joinder of necessary parties and that it is barred by limitation Act were also rejected by the trial Court. Considering the fact that the plaintiff has established his title, the declaratory relief was granted by the trial Court. As a result, the suit was decreed as prayed for. Aggrieved by the judgment and decree of the trial Court, the fourth defendant/appellant herein preferred an appeal in A.S.No.19 of 2011 on the file of the Sub Court, Kulithurai. The appellate Court after considering the pleadings and evidence and after framing the points for determination confirmed the judgment and decree of the trial Court. The appellant who is the fourth defendant in the suit http://www.judis.nic.in 7 has preferred the above second appeal by raising the following substantial questions of law:
(a) Whether the Courts below are correct in deciding the fact that the old Survey No.405/B and 406/A are re-
surveyed as R.S.No.198/1, R.S.No.198/2 and 198/3 and whether it is considered that the old Survey No.405A was alone resurveyed as R.S.No.198/3?
(b) Whether the Courts below properly considered about the description of B schedule property in the plaint, though it was specifically pleaded by the appellant as if the B schedule property in the plaint is absolutely wrong?
(c) Whether the Courts below satisfied with the documents marked by the respondents 1 and 2 herein in respect of their possession and title over the schedule properties for more than 75 years and also about the cogent evidence before the trial Court?
(d) Whether the Courts below followed the settled principle law that it is for the plaintiff in the suit to prove the title over the schedule property with supportive valid documents?
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(e) Whether the Courts below properly considered the material facts that the Commissioner inspected wrong property and submitted the plan and report in respect of Old Survey No.405B and 406 and he has inspected the property without assistance of the Taluk Surveyor?
(f) Whether the trial Court is correct to render judgment in favour of the respondents 1 and 2 herein without made the necessary party namely the “Ilaignar Narpani Mandram”?
3.The definite case of the plaintiff is on the basis of the partition deed dated 28.07.1101 ME and subsequent documents like revenue records, house tax receipts and the proceedings of Killiyoor Panchayat Union. The Courts below have specifically found that the suit property is in the enjoyment of the plaintiff. The title of the plaintiff was also found in favour of the plaintiff relying upon the document of title produced before the Court. The fourth defendant who has claimed that the suit property is a Government poramboke failed to produce any document. One Jeevanathan who is the President of the fourth defendant examined himself as D.W.1 http://www.judis.nic.in 9 and no other document was produced by the defendant to establish their case. It is in these circumstances, the Courts below have accepted the case of the plaintiff regarding his title and possession. Hence, the Courts below have also declared the plaintiff's title and enjoyment. The Courts below have also given specific findings with regard to the nature of suit property as a patta land. The case of the appellant/fourth defendant that the suit 'B' schedule property is a Government poramboke is not established by the appellant. The learned Counsel appearing for the appellant vehemently submitted that the Courts below failed to understand that there is a dispute with regard to the correlation and that the whole judgment is, therefore, vitiated as the Courts below have decided the title merely on the basis of presumption and conjectures. The learned Counsel further relied upon a xerox copy of the correlation register which is not filed before the Trial Court or the Appellate Court. The learned Counsel appearing for the appellant tried to persuade this Court to accept his contention that Survey No.405/A has been correlated to resurvey No.198/3 and that the plaintiff has not established his right in respect of Survey No.405/A. The http://www.judis.nic.in 10 learned Counsel appearing for the appellant therefore submitted that the suit claim in respect of Survey No.198/B ought to have been rejected by the Courts below.
4.It was submitted by the learned Counsel appearing for the appellant that the suit 'B' schedule property has been wrongly described in the schedule of plaint and that the Courts below without considering the discrepancies in the description of suit property and its character as per revenue records have passed a decree declaring the title of the plaintiff. The learned Counsel also submitted that the plaintiff who is bound to prove his case of title cannot fall back upon the weakness in the case of the defendants. The learned Counsel submitted that the Commissioner's report relied upon by the Courts below is not proper and that the plaintiff has not proved the existence of the property as per the Commissioner's report.
5.The learned Counsel appearing for the respondents, however, strenuously argued that there is no question of law in this second appeal and that the Courts below have http://www.judis.nic.in 11 concurrently held in favour of the plaintiff declaring his title and possession of the suit property. The learned Counsel for the respondents submitted that the additional documents cannot be permitted to be adduced for the simple reason that the fourth defendant has not pleaded a case on the basis of the additional document and that this Court cannot permit the additional document being marked at the appellate stage unless the person who is adducing the additional documents satisfy the requirements of Order 41, Rule 27 of C.P.C. The respondent's Counsel further submitted that the suit property is in the enjoyment of the plaintiff by putting up construction and that the documents filed by the plaintiff would show that the plaintiff is paying property tax for the building.
6.This Court heard the submissions of Counsels at length.
7.The question of title has to be decided on the basis of documents adduced on either side. When the plaintiff has produced the partition deed and the revenue documents which are very old, no piece of evidence is let in by the defendants http://www.judis.nic.in 12 on their side. Though the defendants stated that the property has been classified as a Government poramboke land, no settlement register or revenue record is produced by the defendants. It is pertinent to mention that the State represented by the District Collector is the first defendant in the suit. The Killiyoor Panchayat Union is the third defendant in the suit and it is from the first defendant, the fourth defendant, namely, the appellant stated to have derived title in respect of the suit property. It has been settled in several judgments of this Court that the rights of citizens cannot be affected by mere entries in revenue records. Merely because a property is classified as a Government poramboke, it cannot be stated that such a revenue document is a document of title. A learned Single Judge of this Court in the case of Kuppuswamy Odayar v. Narthangudi Panchayat reported in 1971 (1) MLJ 190 has observed that entry in revenue records as poramboke will not by itself establish title of the Government to the land in question. Assuming that the land has been classified later as a poramboke land as per the revenue records, that by itself cannot be taken as conferring any right in favour of the Government. Before the Courts http://www.judis.nic.in 13 below, the appellant has not produced any document to support their case. As against the document of title and enjoyment, as pleaded and spoken by plaintiff, the defendants have not controverted the specific case of the plaintiff relying upon the documents of title. Both the Courts have concurrently held that the plaintiff has established his title and enjoyment over the suit 'B' schedule property. It is pertinent to mention that the plaintiff's title to the suit 'A' schedule property, particularly, with reference to the old Survey No.405/B and 406 is not in dispute. The dispute appears to be in respect of the resurvey No.198/3, which according to the appellant, do not fall in Survey No.405/3 or
406. Though the contention of the learned Counsel appearing for the appellant is based on the correlation register, there is no explanation as to why and how this document could escape from the revenue or the local body. The appellant has pleaded a case which is self contradicting. The appellant who dispute the enjoyment of the plaintiff specifically pleaded that the plaintiff was enjoying the property as a lessee of Government and not as a owner of the property. If this is true, this Court is unable to see why the appellant did not file any document. http://www.judis.nic.in 14 The appellant has filed the suit against the State, Revenue Department and local body after issuing notice to them complying with Section 80 of C.P.C. The person competent to speak about the revenue records, classification and correlation etc., is the revenue department. Despite the fact that the plaintiff has impleaded the District Collector representing the State, the District Collector did not contest the suit in order to mark any document to prove that the property is in the holding of the State or the Revenue Department. The plaintiff's possession is admitted even by the third defendant panchayat union. The plaintiff's title having been upheld by the Courts below on the strength of the oral and documentary evidence, the learned Counsel appearing for the respondents would rely upon a xerox copy of the correlation register which is not even produced before this Court as an additional document. This Court cannot accept the document which was not filed before the lower Court. Unless the provisions of Order 41, Rule 27 of C.P.C. is satisfied the appellant cannot rely upon any new document in this second appeal. In this case, absolutely, there is no explanation for the appellant to file this document at the appellate stage. http://www.judis.nic.in 15 Even the suggestion of the learned counsel appearing for the appellant is that the property which is now in enjoyment of the plaintiff is more in extent than the suit property which is only 16 cents in Old Survey No.405/A corresponding to resurvey No.198/3. When parties go to Court with the clear understanding of the rival claim, specific issues are addressed. In this case, based on the specific plea raised by the plaintiff and defendant issues are framed. Despite an issue regarding plaintiff's title and enjoyment is framed, the appellant has not produced any relevant materials before the trial Court to suggest that the plaintiff's claim of title is not sustainable with reference to the suit properties. From the available documentsary evidence and the evidence of P.W.1, 2 and 3, the Courts below have accepted the case of the plaintiff's title and enjoyment over the suit 'B' schedule. This Court is unable to find any error of appreciation or perversity. The Courts have applied the settled principles correctly while appreciating the evidence. The issues have been properly focussed and addressed on the basis of the pleadings and this Court has no reason to interfere with the concurrent findings of the Courts below. Time and again, this Court and the Hon'ble Supreme http://www.judis.nic.in 16 Court has reiterated the scope and power of this Court under Section 100 C.P.C. Merely because a different view is possible, the Court is not supposed to interfere with the findings of the Courts below while hearing the second appeal. This Court is also unable to find any questions of law much less a substantial question of law. The question of law raised by the appellant are based on certain facts which will not hold water in the light of the findings of the Courts below on factual issues. The findings of the Courts below are on the basis of valid documents and supported by reasons.
8.As a result, this Second Appeal is dismissed. No costs.
01.07.2019
Internet : Yes/No
Index : Yes/No
KSA/SRM
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To
1.The First Additional District Munsif,
Kuzhithurai.
2.The Subordinate Court,
Kuzhithurai.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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S.S.SUNDAR, J.
KSA/SRM
S.A.(MD)No. 90 of 2016
01.07.2019
http://www.judis.nic.in