Madras High Court
Mr.P.Kumar vs The State Of Tamilnadu Rep.By on 8 December, 2010
Author: K.Mohan Ram
Bench: K.Mohan Ram
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.12.2010 CORAM THE HONOURABLE MR. JUSTICE K.MOHAN RAM SECOND APPEAL NOS.1025 TO 1028 OF 2004 AND ALL CONNECTED PENDING CMPs AND CONTEMPT PETITION NO.925 OF 2005 Mr.P.Kumar ...Appellant in all the SAs Vs 1.The State of Tamilnadu rep.by the District Collector, Salem. 2.The Anna Transport Corporation Ltd., rep.by its Managing Director Salem. 3.The Salem Municipality, rep.by its Commissioner, Salem. ...Respondents in SA.No.1025/2004 1.The State of Tamilnadu rep.by the Chief Secretary, Fort.St.George Chennai-9. 2.The District Collector, Salem. 3.M/s.Anna Transport Corporation Ltd., rep.by its Managing Director Salem. ...Respondents in SA.No.1026/2004 The Salem Municipal Corporation (erstwhile Salem Municipality) rep.by its Commissioner, Salem. ...Respondent in SA.No.1027/2004 1.The Salem Municipal Corporation (erstwhile Salem Municipality) rep.by its Commissioner, Salem. 2.The State of Tamilnadu rep.by the District Collector, Salem. 3.M/s.Anna Transport Corporation Ltd., rep.by its Managing Director Salem. ...Respondents in SA.No.1028/2004 APPEALS under Section 100 of the Civil Procedure Code against the judgments and decrees dated 30.1.2004 made in AS.Nos.80, 79, 94 and 102 of 2000 on the file of the First Additional District Court, Salem, respectively against the judgments and decrees dated 27.4.2000 made in OS.Nos.342 of 1996 (two appeals), 34 of 1985 and 2066 of 1996 on the file of the Second Additional District Munsif Court, Salem and PETITION under Order XXXIX Rule 2A of the Civil Procedure Code to issue notice to the third respondent and punish him for violation of the order of interim injunction dated 28.4.2004 in CMP.No.7572 of 2004 in SA.No.1025 of 2004. For Appellant : Mr.T.Mani, SC for Mr.T.M.Hariharan For State : Mr.P.Wilson, AAG assisted by, Mr.V.Srikanth, GA For Transport Corporation : Mr.K.Ravi Bharathi For Salem Municipal Corporation: Mr.K.Muthukumarasamy, SC Mr.K.Sridhar - - - C O M M O N J U D G M E N T
The above second appeals have been filed against the judgments and decrees passed in AS.Nos.79, 94, 80 and 102 of 2000 on the file of the First Additional District Court, Salem, respectively dated 30.1.2004 arising out of the common judgment and decrees dated 27.4.2000 made in OS. Nos.34 of 1985, 2066 of 1996 and 342 of 1996 (against which, two appeals viz AS.Nos.80 and 102 of 2000 have been preferred), on the file of the Second Additional District Munsif Court, Salem.
2. OS.No.34 of 1985 on the file of the District Munsif Court, Salem was filed by Mr.P.C.Pachaiyappan the father of the appellant herein on 7.1.1985 against the State of Tamilnadu represented by the Chief Secretary, the District Collector, Salem and M/s.Anna Transport Corporation for declaration of title and for permanent injunction restraining the defendants therein from interfering with his possession.
3. OS.NO.1516 of 1989 was filed on 22.12.1989 by the father of the appellant originally before the Additional District Munsif Court, Salem against the Salem Municipality for declaration of title and for permanent injunction against interference with his possession. This suit was first transferred to the file of the Subordinate Court, Salem and renumbered as OS.No.348 of 1995 and again transferred to the file of the District Munsif Court, Salem and renumbered as OS.No.2066 of 1996.
4. OS.No.366 of 1994 was filed by the father of the appellant on 27.4.1994 originally before the Subordinate Court, Salem against the State Government represented by the Collector, Salem, Anna Transport Corporation and Salem Municipality (now Salem Municipal Corporation) for declaration of title, for permanent injunction against changing the character of the suit property by putting foundation and making permanent obstruction, for declaration that the classification of the suit property as a communal property is null and void and for demarcating the suit property as per the recitals of boundary contained in the sale deed dated 29.9.1952. This suit was subsequently transferred to the District Munsif Court, Salem and renumbered as OS.No.342 of 1996.
5. All the three suits were tried by the Second Additional District Munsif, Court Salem, which, by a common judgment and decrees dated 27.4.2000, decreed all these suits. Being aggrieved by the judgment and decree in OS.NO.34 of 1985, AS.No.79 of 2000 was filed by defendants 1 and 2 therein before the First Additional District Court, Salem, against which, SA.NO.1026 of 2004 has been preferred. Against the judgment and decree in OS.NO.2066 of 1996, AS.No.94 of 2000 was filed by the defendant therein before the First Additional District Court, Salem, against which, SA.NO.1027 of 2004 has been preferred. Against the judgment and decree in OS.NO.342 of 1996, AS.Nos.80 and 102 of 2000 were filed respectively by the State of Tamilnadu by the Collector and the Salem Municipal Corporation by its Commissioner before the First Additional District Court, Salem, against which, SA.NOs.1025 and 1028 of 2004 have been preferred.
6. While admitting the above second appeals, the following substantial questions of law were framed :
'i. Whether the plaintiff is entitled to the suit property by right of purchase as ryoti land ?
ii. Whether the suit is barred by limitation under Order II Rule 2 of the Civil Procedure Code ? And iii. Whether the Lower Appellate Court is right in disposing of the matter on pleas not raised in the pleadings or at the trial?"
7. After hearing the arguments of the learned counsel for the appellant as well as the learned Additional Advocate General on behalf of the learned Government Advocate (CS), Mr.R.Muthukumarasamy, learned Senior Counsel appearing on behalf of Mr.K.Sridhar, learned counsel for Salem Municipal Corporation and Mr.Ravi Bharathi, learned counsel for the Transport Corporation, as this Court was of the opinion that additional substantial questions of law arise for consideration in the above second appeals, the same were framed as hereunder :
'a. In the face of ExA23 = ExB2 and ExA26 = ExB71, is it in law open to the Government to contend based on ExB6 and ExB11 that the extent of achivaneri is larger than the extent mentioned in ExA23, ExB2 and ExA26 = ExB71, without pleading and proof ? And b. Would the plaintiff or his predecessor in interest be estopped from claiming title based on ExA2 and ExA1, simply because they requested for patta outside the Abolition Act where they lost ?"
8. Admittedly, Ex.B-2 pertains to an earlier Fasli. A perusal of Ex.B-2 shows that it is a copy of the SLR and in that the extent of S.F.No.163 Paimash No.779, Achuvaneri is shown to be an extent of 15.00 acres as per Revenue Account pertaining to Fasli 13 (Fasli 13 may not be correct). But the same has come into existence admittedly before the resettlement and resurvey. But the lower appellate court has not given due importance to Ex.B-2 only basing reliance on Exs.B-6 and B-11 which have come into existence after resettlement and resurvey i.e., on 25.05.1961. Based on Exs.B-6 and B-11, the lower appellate court has come to the conclusion that the extent of achuvaneri is larger than the extent mentioned in Exs.B-2 and B-71 that too in the absence of proper pleadings and proof. Since the finding will ultimately have a direct bearing on the decision to be rendered in these second appeals and prima facie, the said finding appears to be erroneous, the aforesaid additional substantial question of law 'a' has been framed.
9. Since a contention has been raised by the respondents before the lower appellate court and before this Court that since the plaintiff has sought for a ryotwari patta outside the purview of the Act 26 of 1948, he is estopped from claiming title title based on Exs.A-1 and A-2, the second additional substantial question of law 'b' has been framed. Since decision on this issue will have a bearing on the ultimate result of the second appeals, the said substantial question of law has been framed.
10. Before framing the additional substantial questions of law, the respective counsel were heard and after framing the additional substantial questions of law also, an opportunity was given to the respective counsel to advance their submissions on the same.
11. For the sake of convenience, the parties are referred to as per their rank in OS.No.342 of 1996.
12. All the three suits as stated above were filed by Mr.P.C.Pachaiyappan the father of the appellant in these second appeals to establish his title to the suit property and protect his possession by reason of the alleged periodical attempts to interfere with his possession made by one or the other of the defendants in the suits. The suit property in all the suits is an extent of 4.91 acres of dry lands in new S.F.NO.163, Pallapatti Mitta and Village comprised in zamin patta No.200 with trees and well therein to the east of achuvaneri tank bund.
13. The case of the plaintiff is that the suit property was purchased by the plaintiff under Ex1 registered sale deed dated 29.9.1952 from one Mr.S.Vijayaranga Mudaliar the ryot in possession of the suit lands under ExA2 series for faslis 1350, 1352 and 1356. According to the plaintiff, the land was cultivated by his vendor and ExA3 - the chitta extract and ExA4 - the settlement register extract confirmed his possession. The said Mr.S.Vijayaranga Mudaliar conveyed the same to the plaintiff for proper consideration and put him in possession. Thus, the land has been in possession and enjoyment of the plaintiff and his vendor throughout. A Notification dated 19.12.1950 was issued to take over Pallapatti Village under the Tamilnadu Act 26 of 1948 on 12.1.1951. After abolition of the estate, the possession of the plaintiff or his vendor was never attempted to be disturbed and in fact, the possession of ryot is protected under Sections 3(2)(b) and 64 the Tamilnadu Act 26 of 1948. According to the plaintiff, any claim to the contrary is illegal, unjustified and contrary to the specific provisions of the Tamilnadu Act 26 of 1948.
14. The further case of the plaintiff is that his vendor the said Mr.S.Vijayaranga Mudaliar is entitled to ryotwari patta under Section 11 of the Tamilnadu Estate (Abolition and Conversion into Ryotwari) Act, 1948 (hereinafter referred to as the Act) and it was applicable to Pallapatti zamin estate. The plaintiff improved the suit property, dug two wells for irrigation, constructed an open water tank for irrigation of the suit property and also put up huts and sheds. The plaintiff further constructed a peedam planting 'Sakthivel' for offering poojas. The plaintiff has been paying land charges.
15. It is also the case of the plaintiff that since the said Mr.S.Vijayaranga Mudaliar was granted patta even in 1940 to a ryot land, the same has been classified as ryoti land and that the suit property could never form part of the communal land of achuvaneri or its tank bund. Further, the extent of achuvaneri as per the records is only 15 acres. The suit property lies on the east of the tank bund separated from the tank bed by the tank bund. The extent of the tank cannot be increased without proper notice or enquiry and at no point of time, the suit property was a tank or eri or a part of it.
16. It is the case of the plaintiff that in the year 1982, the Forest Department attempted to trespass into the suit property for the purpose of setting up a plant nursery in the suit property. The plaintiff objected and obtained stay order from the State Government against trespass. The Forest Department withdrew and refrained from doing further work. The plaintiff also made an application for grant of patta in his favour. The plaintiff is entitled to the grant of patta. Further, the plaintiff is entitled to the suit property by virtue of purchase. The plaintiff and his vendor were never evicted from the suit property at any point of time from 1940 onwards and the plaintiff prescribed his title by adverse possession also.
17. In 1984, the first defendant announced that a new bus stand would be located at achuvaneri and the same was to be constructed by the second defendant and handed over to the third defendant . It is the case of the plaintiff that the first defendant appeared to have changed the classification of the suit property and included it in the extent of achuvaneri. According to the plaintiff, originally, the eri is 15 acres in extent and this extent could never be arbitrarily extended or increased to include ryoti lands without notice or enquiry. The first defendant appeared to have claimed that the suit property is a communal land and hence, ryotwari patta could not be granted either to the vendor of the plaintiff or to the plaintiff. The classification and assertion of the first defendant that the suit property formed part of the tank is fallacious and unsustainable in law. No notice was given either to the plaintiff or to his vendor. Therefore, it is necessary that the classification of the suit property as communal land has to be declared as null and void. Further, the suit property has to be demarcated and boundaries have to be fixed according to the recitals of boundaries contained in the sale deed. The suit property cannot be annexed with achuvaneri, which is entirely different in character, away and distinct from it. It is the further case of the plaintiff that the pre-existing right of the plaintiff and his vendor cannot be ignored and that on 30.9.1992, the Director of Settlement rejected the petition for patta as belated and for the reason that the proceedings are pending before the High Court.
18. The plaintiff filed OS.No.34 of 1985 on the file of the District Munsif Court, Salem for declaration and injunction. In WP.No.8750 of 1984, the High Court was pleased to pass an order on 24.2.1994 that the dispute regarding the grant of patta can be decided in the Civil Court. As the stay was granted in 1984 and made absolute in 1987, an order of status quo was granted for three months from 24.2.1994. WP.No.1162 of 1992 was disposed of by the High Court on 31.1.1992 wherein the defendants were directed not to evict the plaintiff except under due process of law.
19. The further case of the plaintiff is that in 1992, the officials of the second and third defendants attempted to trespass into the suit property in defiance of the stay orders, destroyed the sheds, fences, etc and the plaintiff lodged a complaint with the local police. The defendants, their men and servants have been threatening forcible dispossession under the untenable claim that the suit property formed part of achuvaneri.
20. It is the specific case of the plaintiff that the fencing put up by the defendants 2 and 3 is only after excluding the suit property and therefore, the possession of the suit property was not taken over by the Government. It is his further case that the defendants, taking advantage of the Chief Minister's programme for inaugurating the bus stand, destroyed the peetam and sheds and withdrew after the programme was over. Since the defendants are proclaiming that they would put up construction in the suit property, the comprehensive suit has been filed for the following reliefs:
'i.Declaring the title of the plaintiff to the suit property;
ii.Grant of permanent injunction restraining the defendants, their men, servants from changing the character of the suit property by putting up foundation and making permanent construction;
iii.Declaring that the classification of the suit property as communal property is null and void; and iv.Demarcating the suit property as per the recitals of boundary contained in the sale deed dated 29.9.1952.'
21. The State of Tamilnadu represented by the District Collector the first defendant contested the suit by filing a written statement inter alia contending as follows :
'i. It is false to state that patta was granted to the said Mr.S.Vijayaranga Mudaliar in patta NO.200 and that the same was granted in 1940 itself. It is false to state that the said Mr.S.Vijayaranga Mudaliar was in possession of the suit property and paying land tax to the estate land holder. Under Section 3 of the Act, the entire estate including all non-ryot and poramboke lands were vested with the Government free of all encumbrances. The suit property is also vested with the Government and at no point of time, either the said Mr.S.Vijayaranga Mudaliar or the plaintiff was in possession of the property;
ii. The said Mr.S.Vijayaranga Mudalir has no right to enter into any sale agreement in respect of the suit property either with the plaintiff or with anybody. The alleged sale is in no way binding on the Government, as the Government is the lawful owner of the suit property. It is false to state that on the date of sale, the plaintiff was put in possession of the suit property. It is also false to state that the plaintiff improved the suit property by way of construction of open water tank and also put up 'Vel' for offering poojas. It is not correct to state that the plaintiff was paying land tax to the Government;
iii. The further case of the first defendant is that the suit property formed part of achuvaneri and the total extent of achuvaneri is 24.62 acres. It is also false to state that the extent of achuvaneri is only 15 acres and that the suit property is a separate property from the tank bund. It is not correct to state that the extent of achuvaneri was increased without proper notice or enquiry and that right from the beginning, the total extent of achuvaneri is 24.62 acres bearing S.No.163;
iv. It is also not correct to state that the plaintiff has obtained stay orders against forest officials. It is also false to state that the plaintiff and his vendor were never evicted from the suit property. On the other hand, except the Government, no individual was in possession of the suit property and till this time, the possession is with the Government. It is also correct to state that the plaintiff has got title by adverse possession as alleged by him. The claim of the plaintiff for issuance of patta was rejected in G.O.No.502 Commercial Taxes and Religious Endowments Department dated 9.5.1984;
v. Against that Government Order, the plaintiff filed WP. No.8750 of 1984 before this Court and the same was dismissed. The Government handed over the entire extent of land in S.No.163 to Salem Corporation in G.O.No.255 dated 19.2.1984 and from that date, the Salem Corporation is maintaining the suit property and is in possession of the same. Further, the plaintiff filed WP.No.1162 of 1992 and the same was dismissed on 31.1.1992. Again, the plaintiff filed WP.NO.3588 of 1992 and the same was dismissed on 12.3.1992. The plaintiff also filed two other writ petitions in WP.Nos.3932 and 5642 of 1992. It is seen from papers that they were dismissed as withdrawn;
vi. The Civil Court has no jurisdiction to decide the validity of the title in the non-ryotwari lands. The suit property has already been classified as non-ryotwari land and on that ground alone, the suit is not maintainable. The Commissioner of Land Administration rejected the claim of the plaintiff finding that the plaintiff made misrepresentations to the Authorities and also that the suit property belongs to the Government. The classification of the suit property in S.No.163 in Pallapatti village was decided in survey and settlement as eri poramboke in the year 1962 itself;
vii. It is also false to state that the Government has annexed the suit property with achvaneri and that the suit property is entirely different in nature or character as alleged in the plaint. In nature and character from 1962, the land bearing S.F.No.163 is classified as eri poramboke and the total extent of achuvana eri is 24.62 acres including the suit property of an extent of 4.91 acres. It is the further contention of the first defendant that the plaintiff is not entitled to file vexatious suit with false allegations and by suppressing real facts. There is no cause of action for filing the suit. The plaintiff is not entitled to any declaration. On the aforesaid pleadings, the first defendant sought for dismissal of the suit.
22. The second defendant Transport Corporation filed a separate written statement inter alia contending as follows :
'The allegation that the plaintiff is the owner of the ryoti lands described in the plaint schedule is not true. It is false to state that the plaintiff was granted patta by the said Mr.S.Vijayaranga Mudaliar. The plaintiff has to establish his title to the suit property. WP.No.1162 of 1992 was dismissed as early as 31.1.1992 and the second defendant was not issued with any notice in the said proceedings. The possession of the suit property is with the Salem Municipality the third defendant. The allegation that the second defendant attempted to trespass into the suit property is false. The second defendant is not a necessary party to the suit. The suit is misconceived and liable to be dismissed in limine. There is no cause of action to file the suit. The suit has not been valued properly for the purpose of court fees and jurisdiction. The description of the property furnished in the plaint is defective and misleading. On the above pleadings, the second defendant sought for dismissal of the suit.'
23. The third defendant Salem Municipal Corporation filed a separate written statement contending inter alia as follows :
'i. The Civil Court has no jurisdiction to entertain the suit, since the suit property is part of S.F.No.163 of Pallapatti Vilalge comprised of 24.62 acres, which was classified as chinna eri (a) achvaneri and it is a non ryotwari land. The Supreme Court held that under the Act, the Civil Court has jurisdiction only to try the suits in respect of ryotwari lands and hence, the suit has to be dismissed in limine.
ii. The plaintiff made all efforts to get patta in the suit property on the basis of the sale deed, which itself is void and the vendor himself has no title and right to make conveyance. Even, the then Board of Revenue, by its order dated 20.7.1953 in BP.999/1953 rejected the claim for patta on the main ground that the character of the land is non ryotwari (communal) one. The Government also rejected all the claims made by the plaintiff. The orders in G.O.RT.No.838 dated 11.5.1971 and G.O.No.502 CT & RE Department dated 9.5.1984 have become final and in spite of the same, the plaintiff, suppressing the facts, has filed suit after suit against the third defendant and others only to cause harassment and wrongful loss. The plaintiff cannot get any title over the suit property by virtue of the sale deed in his favour, since the vendor has no right to execute any sale deed of the suit property, over which he himself has no right or possession. The said Mr.S.Vijayaranga Mudaliar himself was not in possession of the suit property at any point of time. The suit property is part of achuvaneri and comprised of 24.62 acres;
iii. It is false to state that the extent of eri is increased without notice. It is meaningless to state that the vendor was never evicted by the Government, since there is no necessity for that. The Government handed over possession of the entire land in S.No.163 to the then Salem Municipality by an order dated 29.2.1984 in G.O.NO.255 and since then, the Salem Municipality was maintaining the entire property within their possession. The Government, by an order dated 29.2.1984, in G.O.No.255, passed an order after careful consideration directing the Municipal Corporation and the Transport Corporation to go ahead with the proposed work of constructing the new bus stand in S.No.163. The District Collector was ordered to hand over the entire land covered by S.No.163 for the Transport Corporation, which having proceeded with the work as indicated by the Government and later handed over the entire land covered by S.NO.163 to the Municipal Corporation to construct a new bus stand;
iv. The plaintiff, having come to know of these things, filed WP.No.8750 of 1984 seeking to quash G.O.No.502 dated 9.5.1984. Since, this Court felt that it would be inappropriate for this Court to adjudicate upon the nature of the land and to know the nature of the land, directed the plaintiff to go to the Civil Court for redress. This Court ordered status quo for a period of three months from 24.2.1994. The plaintiff is not entitled to any demarcation of the suit property. The plaintiff is not entitled to get injunction. The plaintiff never put up any fence as alleged. The plaintiff has no cause of action for filing the suit. On the above pleadings, the third defendant sought for dismissal of the suit.'
24. Since the third suit, namely OS.No.345 of 1996 is the comprehensive suit, the pleadings in that suit have been set out above. It is pertinent to note that the pleadings in the other two suits are also, in substance, the same.
25. The Trial Court framed the following issues :
In OS.No.34 of 1985 :
"i. Whether the suit is not valued properly for the purpose of payment of court fees and jurisdiction?
ii. Whether the Hon'ble Court has no pecuniary jurisdiction to try the suit?
iii. Whether the suit is barred under Tamilnadu Act 26 of 1948 ?
iv. Whether the suit is barred by limitation under Section 13 of the Tamilnadu Survey and Boundaries Act ?
v. Whether the suit lands fall within the scope of Section 11 of the Tamilnadu Act 26 of 1948 entitling the plaintiff patta under the Tamilnadu Act 26 of 1948 ?
vi. Whether the plaintiff perfected his title by adverse possession ?
vii. Whether the plaintiff is in continuous possession of the suit lands for the past 50 years ?
viii. Whether the plaintiff is in actual possession of the suit lands ?
ix. Whether the plaintiff is entitled to the relief of declaration and permanent injunction as prayed for in the suit ? and x. To what relief the plaintiff is entitled?"
OS.No.2066 of 1996 :
"i. Whether the plaintiff is entitled to the relief of declaration and injunction ? And ii. To what relief the plaintiff is entitled ?"
OS.No.345 of 1996 :
"i. Whether the jurisdiction of this Court is barred by statute?
ii. Whether the plaintiff or Mr.S.Vijayaranga Mudaliar or any one was in possession of the suit property at the time of abolition of estate under Estate Abolition Act ?
iii. Whether the plaintiff is entitled to the suit relief of declaration and consequential injunction ?
iv. If not to what other relief, the plaintiff is entitled ?
v. Whether the description of property is true ?"
26. In view of the joint memo filed, evidence was recorded in OS. NO.342 of 1996, which was treated to be the evidence in the other two suits viz OS.Nos.34 of 1985 and 2066 of 1996. On behalf of the plaintiff, the plaintiff examined himself as PW1, one Mr.Krishna Gounder as PW2 and one Mr.Kumar the son of the plaintiff as PW3. EXA1 to ExA33 were marked on the side of the plaintiff. On the side of the defendants, the first defendant examined three witnesses on their behalf, which were adopted by the other defendants. As such, one Mr.Ponnusamy, Tahsildar was examined as DW1, one Mr.Jayavel, Village Administrative Officer as DW2 and one Mr.Sundaram, Taluk Supply Officer as DW3. ExB1 to ExB71 were marked on the side of the defendants. The Commissioner's report and plans, based on his visits on 24.3.1999, 2.4.1999, 10.4.1999, 27.4.1999 and 2.5.1999, were marked as ExC1 to ExC3 respectively.
27. On a consideration of the oral and documentary evidence, the Trial Court decreed the suits. Being aggrieved by that, as aforesaid, four appeals were filed before the First Additional District Court, Salem, which reversed the common judgment and decrees of the Trial Court and allowed the appeals. Against the common judgment and decrees of the Lower Appellate Court, the above second appeals have been filed.
28. On the aforesaid substantial questions of law, the respective counsel were heard.
29. Mr.T.Mani, learned Senior Counsel for the appellant submitted that the property was purchased by the plaintiff under ExA1 registered sale deed dated 29.9.1952 from the Mr.Vijayaranga Mudaliar the ryot in possession of the said land under ExA2 series under zamin patta NO.200 issued by the Zamindarini for faslis 1350, 1352 and 1356. According to the learned Senior Counsel, the land was cultivated by the vendor of the plaintiff and ExA3 chitta extract and ExA4 settlement register extract also confirmed his possession. The vendor conveyed the same to the plaintiff for proper consideration and put him in possession and the land has been in possession through out and enjoyment of the plaintiff and his vendor.
30. Mr.T.R.Mani, learned Senior Counsel for the appellant submitted that under Notification dated 19.12.1950, Pallapatti village was taken over under the Tamilnadu Act 26 of 1948 on 12.1.1951. ExB9 Tahsildar's report to the Collector stated that the estates in the taluk were taken possession on that date. After abolition of the estate, the possession of the plaintiff or his vendor was never attempted to be disturbed and in fact, the possession of the ryots is protected under Sections 3(2)(b) and 64 of the Act. Any claim to the contrary is illegal and unjustified and contrary to the specific provisions of the Act. His vendor's claim for patta was said to have been rejected on 20.7.1953. However, no document was produced regarding the refusal. The zamin records have not been produced either at the time of trial or when the additional documents were filed by the State in the Lower Appellate Court.
31. Mr.T.R.Mani, learned Senior Counsel for the appellant further submitted that without any notice of hearing, the suit lands would appear to have been erroneously classified as eri poramboke as part of achuvaneri in the resettlement after abolition of the estate. On the contrary, the Commissioner's report and plans would show that achuvaneri is to the west of the suit land and the bund of the eri separated the suit land. From the documents marked in this case, it is seen that achuvaneri was to the extent of 15 acres only and in the resettlement introduced in 1959, it has been measured as of an extent of 24.62 acres inclusive of the suit land and chinna eri nearby compendiuosly in new S.NO.163. It is this erroneous measurement which has created all the trouble.
32. Mr.T.R.Mani, learned Senior Counsel for the appellant further submitted that the first suit was filed on 7.1.1985 against the State, the District Collector and Anna Transport Corporation seeking declaration of title and injunction to protect the possession of the plaintiff because of the threat to possession made by the defendants 1 and 2 in July, 1984. According to the learned Senior Counsel, this suit was filed after notice under ExA7 dated 16.8.1984 and in spite of due service under ExA8 acknowledgement, there was no reply thereto. The second suit was filed on 22.12.1989 against the Salem Municipal Corporation for declaration of title and for injunction because of the threat to possession made by the defendant therein on 18.12.1989 on foot of ExB1 G.O.Mis.No.1340 Transport dated 27.10.1989, by which, the construction and maintenance of the Municipal Bus Stand in the defunct 'achuvaneri' was restored to the defendant Corporation in an extent of 19.62 acres earmarked for the construction of the bus stand. The third suit came to be filed on 27.4.1994 pursuant to the direction of this Court under ExA9 dated 24.2.1994 in WP.No.8750 of 1984 whereby the plaintiff was directed to approach the competent Civil Court, which has jurisdiction to adjudicate on the real nature of the land within three months, during which period, the plaintiff's possession was protected and in this comprehensive suit, the State Transport Corporation and the Municipal Corporation are party defendants.
33. Mr.T.R.Mani, learned Senior Counsel for the appellant further submitted that by consent, all the three suits were tried together. The Trial Court framed necessary and proper issues in each of the three suits. After an elaborate trial and after proper consideration of the evidence on record, the Trial Court upheld the plaintiff's title and possession of the suit property on the foot of ExA2 zamin patta series, ExA3 chitta extract, ExA4 settlement register extract and ExA1 sale deed in his favour, holding that the plaintiff's patta land has been wrongly included in the excess extent measured as achuvaneri in S.No.163. Accordingly, all the three suits were decreed.
34. Mr.T.R.Mani, learned Senior Counsel for the appellant further submitted that the Lower Appellate Court, without proper consideration of the nature and scope of the three suits and the questions arising for consideration in the appeals before it, framed several points for consideration including multifariousness, abuse of Court process, fraud on Court, maintainability of the suits and bar of limitation in the absence of any such plea raised in defence in the pleadings nor at the trial and not covered by the issues framed in the suits. Learned Senior Counsel further submitted that the Lower Appellate Court admitted all the documents produced by the State as additional evidence in the appeals without proof and opportunity to cross examination and assumed the veracity of the disputed documents, though the records called for, by notice to produce, were burked by the defendants. Learned Senior Counsel further submitted that the Lower Appellate Court further assumed the correctness of the classification of the suit land as eri poramboke in favour of the appellants before it, which is a vital question to be decided in the appeals and in that view, negatived the plaintiff's claim for title to the suit lands and dismissed all the suits on merits and on the basis of non maintainability, abuse, fraud and bar of limitation as well not raised before and considered by the Trial Court.
35. Mr.T.R.Mani, learned Senior Counsel for the appellant submitted that it is well settled and is, by no means, disputed that zamin patta granted by the landholder prior to the Abolition Act is not merely an evidence of title, but is the document of title itself and is conclusive proof of possession of the ryot of his holding. In fact, the Lower Appellate Court itself referred to the rulings of the Privy Council and this Court in this behalf. Learned Senior Counsel submitted that zamin patta No.200 issued by the Zamindarini to the plaintiff's vendor the said Mr.S.Vijayaranga Mudaliar for faslis 1350, 1352 and 1356 marked as ExA2 series conclusively established the plaintiff's title to and possession of the suit land. The zamin patta specifically referred to the prior possession and enjoyment of the land in question by the said Mr.S.Vijayaranga Mudaliar as ryot and specified the kist and cess payable therefor. The land in question was referred to as chinna eri karai oram tharisu punjai and karai mettu tharisu punjai. Learned Senior Counsel submitted that it is clear that the suit land was ryoti land and was not eri poramboke or any part thereof. ExA3 chitta extract for fasli 1359 (1948-1949) showed that the said Mr.S.Vijayaranga Mudaliar was in possession of the land and the property was described in similar terms as chinna eri karai oram tharisu punjai and karai mettu tharisu punjai. Under ExA4 settlement register extract for fasli 1359, the said Mr.S.Vijayaranga Mudaliar was shown as the pattadar of the land, which was described as punjai. All the zamin records conclusively established that the suit land was ryoti land and was in possession and enjoyment of the plaintiff's vendor before the estate was notified and taken over. The plaintiff purchased the property from the said Mr.S.Vijayaranga Mudaliar under ExA1 sale deed dated 29.9.1952 executed pursuant to the sale agreement dated 15.3.1950 and the sale deed referred to zamin patta No.200. Therefore, the plaintiff's title is well established and cannot be doubted or disputed.
36. Mr.T.R.Mani, learned Senior Counsel for the appellant submitted that ExA23 land register extract dated 21.12.1967 and ExB2 survey land register dated 2.11.1968 clearly showed that achuvaneri was of an extent of 15 acres only and no explanation was forthcoming as to how S.NO.163 was measured as of an extent of 24.62 acres. Learned Senior Counsel further submitted that in fact, ExA26 = ExB71 the report of the Tahsildar to the Collector dated 14.12.1995 made after examination of the records specifically showed that S.No.163, which corresponded to old paimash NO.779 had an extent of 15 acres of achuvaneri and the present extent shown as 24.62 acres included the patta land. The extra land of 9.62 acres included the land covered by zamin patta NO.200 (suit land) and chinna eri of an extent of 4 acres. ExA23 was not disputed and ExB2 and ExB71 were marked on the side of the defendants themselves and those clinching documents were not considered by the Lower Appellate Court.
37. Mr.T.R.Mani, learned Senior Counsel for the appellant further submitted that however, ExB81 G.O.Ms.No.2387 Revenue dated 7.5.1973 rejecting the plaintiff's claim for patta was relied upon as conclusive, overlooking that the rejection of the plaintiff's claim to patta by the Government was called in question in these suits and the Civil Court had to decide the matter. In fact, the Lower Appellate Court had correctly stated the legal position in the earlier portion, but failed to keep the legal principles in mind in deciding the title of the plaintiff. Learned Senior Counsel further submitted that a perusal of the judgment of the Lower Appellate Court would show that it assumed the material issues for decision regarding the title to and possession of the suit land and the character of the land prior to the notified date in favour of the defendants and had brushed aside ExA2 series zamin patta, ExA3 chitta extract and ExA4 settlement register extract, which conclusively established the plaintiff's title to and possession of the suit land on a totally erroneous assumption, approach and reasoning.
38. Mr.T.R.Mani, learned Senior Counsel for the appellant submitted that the land register extract dated 21.12.1967 and the survey land register dated 2.11.1968 marked as ExA23 and ExB2 showed that achuvaneri is of an extent of 15 acres only and it did not explain as to how it had measured as of an extent of 24.62 acres in the resettlement after the abolition of the estate. As a matter of fact, the correct position was well explained in ExB71 = ExA26 dated 14.2.1995 the Tahsildar's report to the Collector, made after an analysis of the records, marked as ExA26 and ExB71 on both sides. It showed that the excess area of 9.62 acres included the land covered by zamin patta NO.200 and four acres of chinna eri. Those aspects, which clinched the issue, had not been adverted to and considered by the Lower Appellate Court. The rejection of patta to the plaintiff is erroneous and untenable and the error has to be rectified by the Civil Court in these proceedings.
39. Mr.T.R.Mani, learned Senior Counsel for the appellant further submitted that strangely, the Lower Appellate Court declined to act upon ExA2 to ExA4 zamin records doubting their genuineness without any basis therefor. In fact, at the time of trial, no such objection was taken. ExA2 series, ExA3 and ExA4 were marked without any objection by PW1. There was no cross examination whatsoever regarding their genuineness. Zamin patta No.200 was referred to in the sale deed ExA1 in favour of the plaintiff and the observation to the contrary by the Lower Appellate Court was incorrect. In fact, the pattas were produced before the Estate Manager on 24.6.1974 and marked as ExA3 without objection before him as seen from the endorsement in the document itself. The claim to patta was negatived solely on the ground that the land was part of eri poramboke and not on the ground that the zamin pattas are not genuine.
40. Learned Senior Counsel for the appellant submitted that it would be seen that in ExB63 G.O.No.502 CT & RE dated 9.5.1984, the plaintiff's application for grant of ryotwari patta was rejected on the sole ground that the land formed part of a tank and hence, not ryoti. The grant of patta NO.200 was referred to and its genuineness was not questioned in that Government Order. Further, under ExA33 the order dated 13.10.1992 passed by the Commissioner of Land Administration had also accepted the assignment of the land by the Zamindarini, but held the assignment invalid as the land was non-ryoti as per the resettlement. After the abolition of the estate, the old zamin records were in the custody and control of the State and in spite of notices to produce, the relevant records have been suppressed by the Government with ulterior motive and the explanation given that the records are not available were obviously an attempt to evade liability and necessary adverse inference was to be drawn against the defendants. The same reasoning would apply to ExA3 chitta extract and ExA4 settlement register extract for fasli 1359 as well. The attempt of the Lower Appellate Court to reject the zamin patta and records as though they were not genuine is erroneous, as the defendants had no such case at the time of trial or in the prior proceedings.
41. Mr.T.R.Mani, learned Senior Counsel for the appellant submitted that ExA2 series comprised three genuine pattas issued in faslis 1350, 1352 and 1356 and the fourth in that series is a hand written copy of the patta issued for fasli 1356. The copy naturally would not contain the signatures of the landholder or the karnam. It is unfortunate that the Lower Appellate Court, without even looking into this basic fact, had discredited ExA2 series pattas on the ground that the signatures therein varied from the other signatures of the Zamindarini.
42. Mr.T.R.Mani, learned Senior Counsel for the appellant further submitted that though several written statements were filed in the three suits, the plea of questioning the genuineness of the pattas granted to the said Mr.S.Vijayaranga Mudalir was raised only in the additional written statement filed by the second defendant on 16.10.1995 in OS.NO.34 of 1985. However, in the subsequent written statement filed by the State on 1.12.1995 in the third suit, this plea was not taken, but was advisedly given up and naturally, it was not pursued at the time of trial. In fact, ExB63, ExA33 and ExB71 = ExA26 are destructive of such a case.
43. Learned Senior Counsel further submitted that in the light of ExA2 series, ExA3, ExA4 and ExA1, the plaintiff's possession of the suit land derived from the vendor cannot be doubted or disputed. However, the Lower Appellate Court relied upon ExB12 to ExB41 adangal extracts for 1968 to 1999 to hold that kist had not been paid for the land in question. The Lower Appellate Court failed to note that the said adangal extracts themselves would show that S.No.163 was registered as eri poramboke and therefore, kist could not be levied or collected for the said survey number. Further, ExB29 to Ex41 were after the suit.
44. Mr.T.R.Mani, learned Senior Counsel further submitted that the plaintiff's claim to patta was negatived by ExB81 G.O.dated 7.5.1973 and ExB63 G.O. Dated 9.5.1984 and his application for patta outside the Abolition Act was rejected by ExA33 the order of the Commissioner of Land Administration dated 13.10.1992 only on the foot of erroneous measurement and classification and on no other ground. In ExA33 order, the prior binding order in ExB84 dated 7.9.1988 made by a Division Bench of this court was not adverted to. The plaintiff was taking persistent steps to establish his title to and possession of the suit property on the ground that registering of the land eri poramboke is erroneous and unsustainable in law and this was also criticised by the Lower Appellate Court.
45. Learned Senior Counsel for the appellant further submitted that the first suit was filed on 7.1.1985 itself and the second suit followed on 12.12.1989 when interference was attempted by the Municipal Corporation. ExB84 the order in the writ appeal dated 7.9.1988 permitted the plaintiff to work out his remedy available under the law and the second suit was filed thereafter. WP.NO.8750 of 1984 was disposed of by this Court by ExA9 order dated 24.2.1994, by which, the plaintiff was directed to approach the Civil Court within three months, granting an interim direction to maintain the status quo till then to protect his long possession as stated above and the third suit came to be filed accordingly. ExA9 order points out that the plaintiff had the benefit of interim orders of injunction since 1984 and the maintenance of the status quo was ordered for three months, within which, he was permitted to file the suit. These directions of this Court are binding on the parties thereto and the Lower Appellate Court as well and the criticism by it regarding the multifarious proceedings is unavailable and unwarranted. Therefore, the plaintiff's possession of the suit property cannot also be disputed.
46. Mr.T.R.Mani, learned Senior Counsel for the appellant submitted that under ExB1 G.O.Ms.No.2387 Revenue dated 27.10.1989, the Government authorised construction of the municipal bus stand in an extent of 19.62 acres and not in the entire extent of 24.62 acres in S.No.163. The Commissioner's report and plans - ExC1 to ExC3 established that the plaintiff was in possession of the suit property and the fact that the bore well was sunk by the plaintiff in the suit land in 1982, which was evidenced by ExA24 receipt dated 20.6.1982.
47. Mr.T.R.Mani, learned Senior Counsel for the appellant submitted that the Lower Appellate Court held, in the absence of any pleas or issues raised in that behalf before the Trial court, that the suits are barred by time and under Order II Rule 3 and Order IX Rule 9 of the Civil Procedure Code, which provisions have no application to the facts of this case and rejecting the suits on the basis thereof and that too without any plea raised in that behalf is unsustainable and without any factual or legal basis and had to be rejected outright. No doubt, it is open to the Court to consider the bar of limitation though not raised by the opposite party, but the solicitous approach made by the Appellate Court in this behalf is totally devoid of merits. The first suit was filed soon after ExB63 order and the second and third suits were filed soon after subsequent Government Orders dealing with the survey number by reason of which, the plaintiff's possession was attempted to be interfered with and that too, pursuant to the orders of this Court, to which, the defendants are parties and the Lower Appellate Court is bound by those orders. Further, ExA23 the land register extract and ExB2 the survey land register and ExA26 = ExB71 the report of the Tahsildar established that the plaintiff was in possession as owner of the suit land and the excess measurement of achuvana eri is neither proper nor legal. Therefore, there is no factual or legal basis for sustaining the bar of limitation against the plaintiff.
48. Learned Senior Counsel for the appellant further submitted that in fact, the first suit was filed as early as January 1985 and the other two suits were filed as directed by this Court after hearing the defendants. The plaintiff's application for grant of patta was rejected by ExB63 order dated 9.5.1984 on the ground that the land formed part of tank and not on the ground that he was not the owner in possession. The first suit came to be filed soon in 1985. The other two suits were filed pursuant to the directions of this Court in ExB84 dated 7.9.1988 and ExA9 dated 20.2.1994 in December 1989 and April 1994 for protection against interference by rason of ExB1 Government Order and ExA33 the order of the Land Commissioner. Therefore, Section 56 of the Act, repealed with effect from 27.12.1958, cannot govern the case on hand and in fact, the very provision can have no application to the present case. Therefore, there is no factual or legal basis for rejecting the suits as barred by time.
49. Learned Senior Counsel for the appellant finally submitted that all the three suits were rightly decreed as prayed for by the Trial Court. Though an interim order of stay pending the appeals was obtained by the Municipal Corporation, the plaintiff's possession was not interfered with pending the appeals. The appellant filed WP.NO.37382 of 2002 against the Municipal Corporation for Mandamus not to interfere with his possession and maintenance of status quo was ordered on 9.10.2002. In WA.No.13755 of 2002 filed by the State and the aforesaid writ petition filed by the appellant, a Division Bench of this Court, by an order dated 8.4.2003, directed the learned District Judge to dispose of the pending appeals and further directed status quo to remain pending the appeals. Pending the second appeals, this Court granted interim injunction in CMP.NO.7572 of 2004 in SA.No.1025 of 2004 and the same is in force. Therefore, the plaintiff has been in continuous and uninterrupted possession of his suit land throughout as the owner by right of purchase ever since his date of purchase in 1952 and his vendor was in possession for long earlier. The plaintiff/appellant is entitled to the reliefs sought for in the respective suits. Learned Senior Counsel ultimately submitted that the second appeals deserve to be allowed by restoring the decrees of the Trial Court upholding the title to and possession of the plaintiff/appellant to the suit property and granting the consequential and ancillary reliefs sought for and by holding that the suits as framed are maintainable and are in time.
50. Mr.T.R.Mani, learned Senior Counsel appearing for the appellant, while referring to the recitals contained in ExA1 sale deed submitted that the property in question is not measured as a part of eri, but it has been measured as lying on the east of eri and the patta number is mentioned in the sale deed, which was omitted to be taken note of by the Lower Appellate Court and erroneously observed that the patta number has not been mentioned. This error on the part of the Lower Appellate Court led the Court to disbelieve the genuineness of ExA2 series. Learned Senior Counsel, placing reliance on the expressions, namely 'tharisu and punja' used in ExA2 to ExA4, submitted that the property in question is a cultivable land, but remained uncultivated. Learned Senior Counsel therefore submitted that the contention of the learned counsel for the respondents that the suit property is a waste land not fit for cultivation is untenable. Learned Senior Counsel relied upon ExA3 chitta extract for fasli 1359 to show that the said Mr.S.Vijayaranga Mudaliar was in possession of theland in 1948-1949 at the time when the Abolition Act was passed.
51. Learned Senior Counsel for the appellant further submitted that the Lower Appellate Court failed to properly consider ExA4 settlement register extract for fasli 1359 wherein the said Mr.S.Vijayaranga Mudaliar was shown as pattadar and the land has been described as punja land. Learned Senior Counsel, by referring to ExA24 receipt, submitted that the well, tank, motor pipe, electric poles, sakthivel peetam and the borewell sunk in the year 1982 are available in the property in question and during the pendency of the suits, the Commissioner was appointed by the Trial Court and the Commissioner's report ExC1 and plans ExC2 and ExC3 indicated that the well, tank, electric poles, etc were available on ground.
52. Learned Senior Counsel for the appellant Mr.T.R.Mani, by referring to ExB9 report of the Tahsildar dated 13.1.1951, submitted that the Tahsildar had taken possession of the entire estate except Alagapuram estate and further submitted that the possession taken over by the Tahsildar was only technical possession and physical possession was not taken and the possession of the appellant's father or his vendor was not disturbed and therefore, submitted that the contention of the learned counsel for the respondents that an extent of 4.91 acres of the plaintiff was taken possession is not correct.
53. Mr.T.R.Mani, learned Senior Counsel submitted that in the written statement filed by the defendants, the rejection of patta sought for by the said Mr.S.Vijayaranga Mudaliar has not been referred to and to prove that the request for patta was rejected, the rejection order was not produced either before the Trial Court or before the Lower Appellate Court, even though the respondents filed an application under Order XLI Rule 27 of the Civil Procedure Code to produce additional documents. Learned Senior Counsel further submitted that had the rejection order been produced, then the real reason for rejection would have come to light and only to suppress the same, the order has not been produced before the Court. Learned Senior Counsel further submitted that the reason for rejection of request for grant of patta by the said Mr.S.Vijayaranga Mudaliar is not known. Learned Senior Counsel further submitted that since the suit property is a ryoti land under Sections 3(2)(b) and 63 of the Act, possession of the ryot cannot be disturbed.
54. Mr.T.R.Mani, learned Senior Counsel, by referring to ExA23 land register extract and ExB2 survey land register, submitted that these documents show that achuvaneri is of an extent of 15 acres only. Learned Senior Counsel further submitted that the contention of the learned Additional Advocate General that ExA23 is a fabricated document is untenable, since ExA23 formed part of ExB2, which is a document produced by the defendants themselves. Learned Senior Counsel, by referring to ExB2, submitted that ExA23 formed part of ExB2 as per the revenue records for the fasli 13 and the extent of achuvaneri is shown as 15 acres and after re-survey and re-settlement, the extent is shown as 24.62 acres. Learned Senior Counsel submitted that it has not been explained by the defendants as to how the original extent of 15 acres of achuvaneri got enlarged to an extent of 24.62 acres.
55. Mr.T.R.Mani, learned Senior Counsel submitted that the application for patta was rejected on the ground that the land formed part of achuvaneri and hence, the same is a non-ryoti land. Learned Senior Counsel submitted that the observation made by the Lower Appellate Court regarding ExA23 is erroneous. The finding of the Lower Appellate Court in respect of ExA23 is perverse, as it had failed to consider the aforesaid aspect, namely that ExA23 formed part of ExB2 a document produced by the defendants themselves. Learned Senior Counsel submitted that ExA2 series, ExA3 and ExA4 were marked through the plaintiff without any objection by the defendants and there was no cross examination of PW1 regarding the genuineness of these documents.
56. Mr.T.R.Mani, learned Senior Counsel further submitted that there is absolutely no plea raised in the written statement filed by the defendants regarding these documents and no issue as to the genuineness of ExA2 series was framed by the Trial Court. Learned Senior Counsel further submitted that ExA2 series had been produced before the Estate Manager, Salem on 24.6.1974, but the first suit was filed only in 1984. But, in spite of the said fact, ExA2 series had been rejected by the Lower Appellate Court as not genuine without considering the aforesaid fact. Learned Senior Counsel further pointed out that the Government Authorities, before whom, ExA2 series had been produced, did not dispute the genuineness of ExA2 series. Learned Senior Counsel submitted that the rejection of the request for patta by the plaintiff before the Authorities was not on the ground that ExA2 series pattas are not genuine, but on the ground that the character of the land is communal and not ryoti.
57. In this context, Mr.T.R.Mani, learned Senior Counsel referred to ExB33, which supports the aforesaid contention. According to the learned Senior Counsel, in ExA33, it has been mentioned that the claim for patta by the vendor of the plaintiff has already been considered on merits under Section 11 of the Act and rejected by the erstwhile Board of Revenue (SE) in its No.BP.999/1953 dated 20.7.1953 on the ground that the original character of the land is only non-ryoti (communal) and that the assignment by the Zamindarini is legally invalid. Thus, it is clear that even in ExA33, the genuineness of the patta issued under ExA2 series issued by the Zamindarini to the said Mr.S.Vijayaranga Mudaliar was not doubted. Therefore, according to the learned Senior Counsel, the finding of the Lower Appellate Court on ExA2 series is perverse and unsustainable.
58. Learned Senior Counsel further submitted that the plaintiff issued notice to the defendants to produce the original documents of Zamindarini, but the same were not produced on the ground that the same are not available. In this context, learned Senior Counsel referred to ExA26 = ExB71 the communication addressed by the Tahsildar, Salem to the District Collector, Salem wherein the Tahsildar had stated that the old zamin records are not available in his office and old zamin records are available only with the Estate Manager, Salem and the Assistant Settlement Officer, Dharapuram. Therefore, according to the learned Senior Counsel, the contention of the defendants that the zamin records are not available cannot be countenanced. When the relevant documents admitted to have been in existence are not placed before the Court by the parties concerned, an adverse inference can be drawn against that party.
59. In support of the said contention, learned Senior Counsel placed reliance on the decision of the Apex Court in the case of Raghavamma Vs. Chenchamma (reported in AIR 1964 SC 136) wherein it has been held as follows :
"Now coming to the documentary evidence, as we have already indicated, all the relevant documents admitted to have been in existence have not been placed before the Court and an adverse inference has, therefore, to be drawn against the appellant."
60. Mr.T.R.Mani, learned Senior Counsel also relied upon the decision in the case of Gopal Krishnan Vs. Mohd.Haji Latif (reported in AIR 1968 SC 1413) wherein it has been laid down that a party in possession of best evidence, which would throw light on the issue in controversy withholds it, then the Court ought to draw an adverse inference against him notwithstanding that the onus of proof does not lie on him. It has been further held that the party cannot rely on abstract doctrine of onus of proof or on the fact that he was not called upon to produce it. Learned Senior Counsel reiterated the contention that in spite of the notice issued by the plaintiff to the defendants to produce the zamin records, they failed to produce the same. Therefore, an adverse inference under Section 114(g) of the Evidence Act ought to have been drawn. While the Trial Court had correctly drawn an adverse inference, the Lower Appellate Court committed an error in not drawing such inference. The reasons assigned by the Lower Appellate Court in that regard are unsustainable.
61. Mr.Mani, learned Senior Counsel for the appellant, placing reliance on the decision of the Privy Council in the case of Srinath Ray Vs. Udai Nath (reported in AIR 1923 PC 217) submitted that when it is contended that the entry in the records of right is wrong, it lies on the party so contending to prove that it is wrong and not on the opposite party to prove that it is right. In that decision, the Privy Counsel observed as follows:
"The learned Judges of the Appellate Court remarked, not without reason, that the Trial Judge in his treatment of the case had placed on the defendant the burden of showing that the entry in the record of rights was correct, whereas it lay on the plaintiffs to show that it was erroneous."
62. Relying on the aforesaid decision, Mr.T.R.Mani, learned Senior Counsel for the appellant submitted that when the defendants questioned the genuineness of ExA2 series pattas, the burden lies on the defendants to prove that ExA2 series pattas are not genuine by producing the original zamin records. Learned Senior Counsel relied upon the same decision to support his contention that the pattas are granted by the Zamindarini as title deeds to the tenant. Learned Senior Counsel further submitted that the said decision has been followed in the case of Donganna Vs. Jammanna (reported in AIR 1931 Madras 613). Learned Senior Counsel further submitted that the pattas issued by the Zamindarini in respect of ryoti land are title deeds by themselves. But, a ryotwari patta is not by itself is a deed of title, but is an evidence of title. In the decision reported in AIR 1931 Madras 613 (cited supra), it has been observed as follows :
"In case of pattas in respect of land in a zamindari, if the land be at the disposal of the landlord at the time of granting the patta, prima facie such patta would not be a mere bill of rent but something more. If it is not so, it would not create any rights in the pattadar in derogation of the rights of a person who would be entitled to the land subject to the proper and regular payment of rent : AIR 1923 PC 217)."
Mr.T.R.Mani, learned Senior Counsel submitted that in the light of the aforesaid decision, the contention of the learned Additional Advocate General that ExA2 series cannot construed to be title deeds is unsustainable.
63. Mr.T.R.Mani, learned Senior Counsel for the appellant submitted that in ExA2 series, the suit property has been described as 'chinna eri karaioram tharisu and karaimedu tharisu'. But, these expressions have not been properly considered by the Lower Appellate Court. The contention of the defendants that the aforesaid expressions would show that the said property is within the water spread area of the tank cannot be countenanced. Learned Senior Counsel further submitted that the Lower Appellate Court committed a serious error in incorrectly holding that the suit property is part of eri. Learned Senior Counsel further submitted that since ExA2 series were marked without objection through PW1 and the same have also been mentioned in ExA1 sale deed, it cannot now be contended that ExA2 series are not genuine, that too without any proper pleadings.
64. Mr.T.R.Mani, learned Senior Counsel for the appellant submitted that ExA3 chitta extract for fasli 1359 has been marked as ExA8 before the Estate Manager and the same affirms the genuineness of ExA2 series. In ExA3 also, the suit property has been described as 'chinna eri karaioram tharisu and karaimedu tharisu'. ExA4 settlement register extract for fasli 1359 (1948-1949) mentions patta No.200 and the pattadar's name has been given as Salem Mr.S.Vijayaranga Mudaliar and the extent of the land is shown as 4.91 acres and the kist is mentioned as 11-3-0. According to the learned Senior Counsel, the aforesaid documents clearly show that the suit property was in possession and enjoyment of the said Mr.Vijayaranga Mudaliar till his sale in favour of the plaintiff under ExA1.
65. Mr.T.R.Mani, learned Senior Counsel, by referring to Section 3(d) of the Act 26 of 1948, submitted that the proviso to Section 3(d) of the Act reads as follows :
'The Government may, after removing any obstruction that may be offered forthwith take possession of the estate, and all accounts, registers, pattas, muchilikas, maps, plans and other documents relating to the estate which the Government may require for the administration thereof :
Provided that the Government shall not dispossess any person of any land in the estate in respect of which they consider that he is prima facie entitled to a ryotwari patta-
(i) if such person is a ryot, pending the decision of the Settlement Officer as to whether he is actually entitled to such patta;
(ii) if such person is a landholder, pending the decision of the Settlement Officer and the Tribunal on appeal, if any, to it as to whether he is actually entitled to such patta.' Learned Senior Counsel further submitted that as per Section 64 of the Act, the rights of the owner or occupier are not to be affected by temporary discontinuance of possession or occupation, as the plaintiff is a transferee from the said Mr.S.Vijayaranga Mudaliar and has got all the rights against the Government. Therefore, according to learned Senior counsel, the claim of the defendants that they had taken possession of the suit property cannot be sustained. Learned Senior Counsel further submitted that in view of the aforesaid provision, the finding of the Lower Appellate Court that on coming into force of the Act, the plaintiff is dispossessed is erroneous and totally perverse.
66. Mr.Mani, learned Senior Counsel referred to ExB63 G.O.No.502 dated 9.5.1984 wherein the tank has been mentioned as 'chinna eri' called as 'achuvaneri'. But, according to the learned Senior Counsel, 'chinna eri' and 'achuvaneri' are different. In paragraph 4, it has been further observed that during the settlement, the tank has been classified as eri poramboke though patta NO.200 has been issued to the plaintiff. In that Government Order, it has been observed that since it was an eri, the same has been classified as eri poramboke during the settlement. Learned Senior Counsel further submitted that the issue of patta by the Zamindarini had been admitted in ExB63 and therefore, the defendants cannot now seek to contend that ExA2 series pattas are bogus or not genuine.
67. Mr.Mani, learned Senior Counsel submitted that the classification of the suit property as eri poramboke has been done without notice or enquiry to the said Mr.Vijayaranga Mudaliar or to the plaintiff. He further submitted that no notice was issued to the plaintiff under the provisions of the Tamilnadu Survey and Boundaries Act (Act 18 of 1923). Learned Senior Counsel further submitted that the observation in ExB63 that on a spot inspection of the suit property, it was found that no huts were put up by the plaintiff and the said observation is contrary to the findings of the Commissioner's report and plans marked as ExC1 to ExC3. In ExC1 to ExC3, the physical features mentioned in the plaint have been noted.
68. Mr.Mani, learned Senior Counsel submitted that ExA7 dated 16.8.1984- the legal notice was issued prior to the first suit, but no reply was received from the defendants. In ExA7 the legal notice, patta number has been mentioned.
69. Mr.Mani, learned Senior Counsel, by referring to ExB71 = ExA26 submitted that the Tahsildar, in his communication, has pointed out that patta No.200 has been issued in the name of the said Mr.S.Vijayaranga Mudaliar in respect of an extent of 4.91 acres situated in S.NO.163 (part). The Tahsildar had further stated that at the time of survey and settlement enquiry, the vendor the said Mr.S.Vijayaranga Mudaliar failed to produce the relevant records before the Authorities to substantiate his claim for patta. Hence, the Settlement Authorities have not granted any patta to his land. In the very same document, the Tahsildar observed that S.No.163, which corresponded to old paimash No.779, has an extent of 15 acres and was described as achuvaneri. The present extent shown for the same survey number is 24.62 acres. Hence, it may be seen that there is a difference of 9.62 acres. The land covered by patta No.200 measuring an extent of 4.91 acres has also been included in this poramboke land. The remaining four acres represented chinna eri.
70. Mr.T.Mani, learned Senior Counsel submitted that in the first suit, the third defendant filed a written statement on 13.8.1985 and the second defendant had filed their written statement on 19.9.1985 whereas the additional written statement was filed by the second defendant after ten years, namely 16.10.1995. In the additional written statement, the genuineness of ExA2 series is disputed for the first time.
71. Mr.T.Mani, learned Senior Counsel submitted that in the second suit in the written statement filed by the Salem Municipal Corporation, the genuineness of ExA2 series has not been disputed. In the third suit, the District Collector filed the written statement on 1.12.1995 and the genuineness of ExA2 series has not been questioned. The second defendant Transport Corporation filed the written statement on 16.7.1996 and in that written statement also, the genuineness of ExA2 series has not been disputed. Similarly, the third defendant Municipal Corporation filed its written statement on 23.7.1996, but the genuineness of ExA2 series has not been disputed.
72. Mr.T.Mani, learned Senior Counsel submitted that in view of the same, no issue was framed by the Trial Court regarding genuineness of ExA2 series. Therefore, it should be taken that the said contention was given up by the defendants. That being so, according to the learned Senior Counsel, the Lower Appellate Court erred in going into the genuineness of ExA2 series.
73. In the light of the contentions raised by the learned counsel for the respondents, particularly the learned Additional Advocate General that the Civil Court's jurisdiction to decide the question of title and issue of patta is ousted under the Act 26 of 1948. Mr.T.Mani, learned Senior Counsel submitted that such a contention cannot be sustained in the light of the decision of the Division Bench of this Court in the case of State of Madras Vs. Ramalingaswamigal Madam (reported in 1969 (II) MLJ 281) wherein it had been held as follows :
"The plaintiffs claimed title to the suit property by virtue of their possession, which is protected under Section 3(d) of the Act. There is no machinery in the Act to determine whether a land in an estate is a ryoti land or communal land. Even in respect of an enquiry for grant of a ryotwari patta under Section 11 read with Section 3(2) of the Act, the decision as to question of title by the statutory authorities is only an incidental matter which would not preclude a Civil Court independently enquiring into it in a properly constituted suit. Hence, Section 64-C of the Act cannot be held to be a bar to the present suits. The suits are not for grant of ryotwari pattas which alone could be determined by the Authorities appointed under the Act."
The said decision has been affirmed by the Apex Court in the decision in the case of State of T.N. Vs. Ramalinga (reported in AIR 1986 SC 794). In the decision reported in 1969 (II) MLJ 281 (cited supra), it has been further held as follows :
"It is clear from the provisions of the Act that what really vests in the Government in respect of a ryoti or private land is merely title and there is no vesting of possession, which is protected under the proviso to Section 3(d) of the Act. So long as the possession of the land continues to vest in the ryot, he would be entitled to protect his rights in respect of the same by resorting to Civil Court."
In the light of the aforesaid decision, according to the learned Senior Counsel, the contention of the respondents that on coming into force of the Act 26 of 1948, the title as well as possession of the estate vested with the Government cannot be countenanced. In respect of the same proposition, several other decisions have been referred to by Mr.T.Mani, learned Senior Counsel. But, the same are not necessary and hence, they have not been referred to here.
74. Countering the contention of the respondents that since the Authorities under the Act have classified the land as communal land, the same cannot be questioned before the Civil Court, Mr.T.R.Mani, learned Senior Counsel for the appellant submitted, by placing reliance on the decision in the case of Govt.of Tamilnadu and Others Vs. Peria Pallivasal, Abhiramam and another (2000 (I) LW 154), submitted that mere classification of particular land in the revenue records is not, by itself, conclusive.
75. Mr.T.R.Mani, learned Senior Counsel submitted that all orders passed by the Authorities, which are after filing of the first suit, cannot be relied upon by the defendants. In support of the said contention, learned Senior Counsel placed reliance on the decision in the case of State of Bihar Vs. Radha Krishna Singh (reported in AIR 1983 SC 684) wherein it had been held as follows :
"It is equally well settled that declarations or statements made post litem motam would not be admissible because in cases made ante litem motam, the element of bias and concoction is eliminated. Before, however, the statements of the nature being ante litem motam they must be not only before the actual existence of any controversy but they should be made even before the commencement of legal proceedings."
76. Mr.T.Mani, learned Senior Counsel submitted that since ExB29 to ExB42 have come into existence after filing of the suit, the same cannot be looked into. But, the same have been relied upon by the Lower Appellate Court erroneously. Learned Senior Counsel further submitted that ExB12 to ExB28 are after settlement and re-classification of the suit property as eri poramboke and therefore, when it is shown as eri poramboke, there will not be any entry in the adangals. Learned Senior Counsel submitted that the adangal extracts for the earlier faslis between 1951 and 1967 have been purposely suppressed. Had the same been produced, they would have shown that the said Mr.S.Vijayaranga Mudaliar was in possession and was cultivating the lands.
77. Mr.T.Mani, learned Senior Counsel submitted that as per Section 9(2) of the Tamilnadu Survey and Boundaries Act (Act 18 of 1923), notice to the registered holders at that time should be issued before undertaking the survey. But, no notice was issued either to the said Mr.S.Vijayaranga Mudaliar or to the plaintiff. Learned Senior Counsel further submitted that from ExB76 series, the Lower Appellate Court had come to the conclusion that the notice has been served on the plaintiff under Section 9(2) of the Tamilnadu Survey and Boundaries Act. But, in ExB76 series, there is no proof that the plaintiff was served with the notice. But, even the notice to the Zamindar has been received only by the Estate Manager.
78. As far as the contention of the respondents that the second and third suits are not maintainable in view of the provisions contained under Order II Rule 2 of the Civil Procedure Code is concerned, Mr.Mani, learned Senior Counsel submitted that as no such plea was raised by the written statement filed by the defendants in any of the suits, no issue was framed by the Trial Court. But, the Lower Appellate Court suo motu framed a point for consideration on this aspect, which, according to the learned Senior, is not sustainable.
79. In this context, Mr.T.R.Mani, learned Senior Counsel relied upon the decision of the Apex Court in the case of Rikabas A.Oswal Vs. Deepak Jewellers and Others (reported in 1999 (6) SCC 40). In this decision, it has been held that a plea of bar under Order II Rule 2 of the Civil Procedure Code must be specifically raised and proved and before the second suit of the plaintiff is held to be barred by the present rule, it must be shown that the second suit is based on the same cause of action, on which, the earlier suit was based and in that suit, the plaintiff had not claimed certain reliefs available to him without the leave of the Court. The plea of bar of subsequent suit should be expressly raised by the defendants in the written statement and brought on record the relevant materials. If no such plea is raised by him, it is not open to the Court to take suo motu cognizance on the basis of assertion of fact on record. In the decision rendered in 1999 (6) SCC 40 (cited supra), the plea that the subsequent suit was barred by Order II Rule 2 of the Civil Procedure Code was not raised either in the written statement or in the memorandum of appeal by the tenant or in the review petition. Certain assertions, however, were made to the effect that the earlier suit was also instituted on the ground of default. The Supreme Court held that such plea was not expressly raised and could not have been allowed by the Court below. The Apex Court further held that the plea that the suit is barred is a mixed question of fact and law and such a plea has to be raised before the Trial Court and cannot be permitted to be raised in appeal. Therefore, Mr.T.R.Mani, learned Senior Counsel submitted that the Lower Appellate Court erred in framing such point for determination and the finding recorded by the Lower Appellate Court on this issue is liable to be set aside.
80. Mr.T.R.Mani, learned Senior Counsel submitted that the evidence of DW2 and DW3 cannot given much importance, since they had no personal knowledge about taking over of possession and they have not even deposed regarding taking over of physical possession. Learned Senior Counsel further submitted that DW1 to DW3 have been examined only by the first defendant. But, the Municipal Corporation, though claimed to have been put in possession, has not chosen to examine any witness on its behalf to prove the exact extent of the land taken possession by it or the date of taking possession. Learned Senior Counsel further submitted that ExB1 makes it clear that only an extent of 19 acres has been given possession, which itself would show that the remaining extent out of 24.62 acres has not been handed over to any of the defendants and that the plaintiff was never dispossessed.
81. As far as the contention of the respondents that the suit property has not been identified is concerned, Mr.T.R.Mani, learned Senior Counsel submitted that the evidence of PW1 is supported by the evidence of DW3 himself and further corroborated by the Commissioner's report and plans. Learned Senior Counsel submitted that no objection whatsoever has been filed by the defendants to the Commissioner's report whereas the plaintiff filed his objections.
82. As far as the contentions of the respondents that since, in the various proceedings the claim of the plaintiff and his vendor for issuance of patta has been rejected, the suits are not maintainable is concerned, Mr.Mani, learned Senior Counsel submitted that even if patta is given or refused to be given and later the Civil Court decides the title, the decision of the Civil Court is binding on the Revenue Authorities.
83. As far as contention of the learned counsel for the respondents that the boundary recitals in ExB58 sale deed itself would disprove the claim of the plaintiff that the suit property lies on the east of eri abutting the tank bund is concerned, Mr.T.R.Mani, learned Senior Counsel submitted that ExB58 is not a document inter partes and the same has been marked through the revenue officials and the parties to the document have not been examined and the document has not been proved. He further submitted that mere marking is not sufficient. In support of the said contention, learned Senior Counsel placed reliance on the decision in the case of Sait Tarajee Khimchand Vs Yelamarti Satyam (reported in (1972) 4 SCC 562) wherein it had been held as follows :
"The plaintiffs wanted to rely on Exs. A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of documents. It is common place to say that the negative cannot be proved. The proof of the plaintiffs books of account became important because the plaintiffs accounts were impeached and falsified by the defendants case of larger payments than those admitted by the plaintiffs. The irresistible inference arises that the plaintiffs books would not have supported the plaintiffs.
The third document on which the plaintiff relied is Ex. A-8 being a letter, dated June 17, 1954, addressed by the lawyer of the firm Seth Harakchand Surajmal to the defendants lawyer. In that letter there is a statement as follows:
'As regards Rs 735-0-0 being the amount of rent payable for the period July 9, 1952 to April 9, 1954, your client has subsequently asked my client to credit the same towards the interest on about Rs 25,145-11-0 being the amount of principal and interest remaining due after deducting the payment of Rs.8100-0-0 for which on endorsement has been made, in respect of the simple mortgage deed for Rs.17,500/- executed by your client in favour of my clients Tarajee Khimchand firm on January 1, 1948.' It was said on behalf of the plaintiffs that this letter indicated that the amount due to the plaintiffs from the defendants was Rs.25,145/- and secondly that the defendants had paid Rs.8,100/- towards the mortgage bond of Rs.17,500/-. This letter is again not inter-partes because the firm of Seth Harakchand Surajmal is a different firm from that of the plaintiffs. Secondly this letter Ex. A-8 was also not shown to the defendants in cross-examination and therefore cannot be used against the defendants. Thirdly, any statement by a different firm has to be proved as a fact. Documents do not prove themselves. The contents of the document have to be proved. The controversy in the present case is whether the plaintiff firm has given the defendants credit for Rs.19,000/-. The answer to that question would decide the truth or falsity of the statement provided also the statements were shown to the defendants."
Learned Senior Counsel submitted that it has not even been suggested to PW1 that ExA3 and ExA4 are forged.
84. Learned Additional Advocate General for the first respondent submitted that Ex.A-1-sale deed, dated 29.09.1952, is sham and nominal and prepared to lay claim over the Government property; plaintiff has not proved Ex.A-1 in the manner known to law when it is seriously disputed by the defendants; the vendor of Ex.A-1- Vijayaranga Mudaliar's title itself is under cloud; property purported to be conveyed under Ex.A-1 is vague and not identifiable; every property will have paimash number / survey number and property is identified only with this basic requirement; the so called property allegedly transacted through Ex.A-1 does not state the boundaries; the plaintiff has not been able to identify the boundaries by specifying the holdings of neighbouring plot owners; on the contrary, the plaintiff seeks the aid of the court in the third suit in O.S.No.342 of 1996 to identify the suit property and grant declaration of title to the plaint schedule property; such a prayer is not maintainable and cannot be countenanced in law.
85. Learned AAG further submitted that no sale consideration has passed through Ex.A-1 except for Rs.500/- which is stated to have been paid under the agreement; this agreement is also not proved; the balance sale consideration of Rs.2,000/- is not proved to be paid to Vijayaranga Mudaliar and no proof of discharge of pro-note is filed; Ex.A-1 is created for the purpose of grabbing the Government property; it is not known when P.W.1 claims Rs.500/- as it is a big amount on those days; a sale deed will be executed on the basis of a pronote for Rs.2,000/-; it could be seen that the purported transaction under the alleged sale deed, Ex.A-1, is sham and nominal, also Vijayaranga Mudaliar (plaintiff's vendor) himself had no right to execute Ex.A-1; further Ex.A-1 sale deed does not trace the history of the property conveyed, nor does it state that Vijayaranga Mudaliar is a ryot and Gnanambal is Zamindarini; only in schedule to the sale deed of Ex.A-1 patta No.200 is found mentioned without any other particulars like boundaries, measurements, survey nos / paimash nos. etc.,
86. Learned AAG further submitted that P.W.1 himself has admitted in evidence that Ex.A-2 (alleged patta) was not handed over to him by Vijayaranga Mudaliar at the time of sale; Ex.A-1 does disclose handing over of possession of the suit property to plaintiff; Recitals of Ex.A-1 would show that the vendor of the plaintiff Vijayaranga Mudaliar himself was not in physical possession of the property conveyed, and he neither visited nor cultivated the said property; Ex.A-1 has been executed at Chennai and presented for registration at Chennai and not at Salem; had it been presented at Salem, the Salem Sub-Registrar would not have entertained Ex.A-1 as there is no survey or paimash number shown in the sale deed and land conveyed is a eri land and no guideline value for the suit property is fixed by Sub Registrar, as the same are communal lands belonging to Government; hence, Vijayaranga Mudaliar had no title over properties allegedly conveyed under Ex.A-1, nor was he in possession of the suit property; he had not given survey number as 163 for the property so conveyed under Ex.A-1, nor came forward to give evidence to identify the suit property in S.No.163 when it is a fact that he was alive; hence, the plaintiff has miserably failed to identify the property that is conveyed to him under Ex.A-1; therefore, the subsequent claim to survey number 163 by P.C.Pachiyappan is only speculative and to somehow grab the Government property now dedicated to general public.
87. Learned AAG further submitted that S.No.163 was claimed for the first time only when patta was applied in name of Vijayaranga Mudaliar under 1948 Act and such a claim for patta was rejected on 20.07.1953 (Ex.A-33) and in November 1968; it is pertinent to note that the claim for S.No.163 was made after Ex.A-1 sale deed dated 29.09.1952 came into existence; the reason for objection is that the land is a non ryoti land and zamindarini had no right to assign the communal land; under Section 20 of the 1908 Act, only the Collector has the power to deal with communal lands; the subsequent request for patta made by the plaintiff in his name under 1948 Act was again rejected on 11.05.1971, review thereon was also dismissed on 07.05.1973; P.C.Pachiyaan again made a petition, dated 21.06.1982, for grant of patta accepting Government as the owner of property and sought for assignment patta from Revenue Department which was rejected by Government on 09.05.1984 (Ex.B-63), which was challenged by the plaintiff in Writ Petition No.8750 of 1984 (Ex.A-9); therefore having challenged non granting of assignment patta under Ex.A-9, the plaintiff is estopped in law, from retreating back on the claim and re-agitating issues for claiming ryotwari patta; even when the order, dated 24.02.1994 was passed in W.P.No.8750 of 1984, the plaintiff has not appraised this Court about the aforesaid real facts including the vacating of interim order made in W.A.No.1918 of 1987 dated 07.09.1988 and filing of first suit in O.S.No.35 of 1984; the plaintiff is guilty of suppression of material facts which this Court can take note off and deal with the conduct of the plaintiff accordingly.
88. Learned AAG submitted that Ex.A-2 (alleged zamin patta) is not proved to be pattas granted by Gnanambal to Vijayaranga Mudaliar as per Section 54 of 1908 Act in a manner known to law; no supporting document viz., payment of rent receipt (issued under Section 62 of the Act) pursuant to Ex.A-2 were filed to substantiate the authenticity of Ex.A-2; on the other hand Exs.A-11 and A-12 is filed which was proved to contain number '2 A' which is given for a Government land over which there can be no dispute, and the said position is conceded by the appellant before this Court, that it is not relating to suit property; it is an admitted case by the plaintiff himself that Ex.A-2 was never given to plaintiff by Vijayaranga Mudaliar and that it was given by Vijayaranga Mudaliar to one Kulandai Pillai, who in turn gave it to plaintiff; Zamindarini Gnanambal was not examined to prove Ex.A-2; village Karnam who is normally acquainted with ryoti patta was also not examined to prove the probative value of Ex.A-2 to make it admissible in evidence; Vijayaranga Mudaliar and Kulandai pillai were not examined; hence, no probative / evidentiary value to Ex.A-2 series could be attached to arrive at any legal conclusion; Ex.A-2 is not proved in a manner known to law, more so when A-2 series is seriously disputed by defendants as forged and fabricated one; as such Exs.A-1 and A-2 are not admissible in evidence and plaintiff has miserably failed to prove his entitlement over the property conveyed under Exs.A-1 and A-2 and to suit property; no evidence was let in by the plaintiff to establish that Ex.A-2 series were issued in accordance with provisions contained Section 50 of The Estate Land Act, 1908 (Act 1 of 1908); Ex.A-2 does not contain the details as required under Section 51 of the aforesaid Act; no evidence is available as to whether Ex.A-2 (alleged Zamin patta), claimed to have been issued by the Zamindarini was issued in accordance with Section 54 of The Estate Land Act, 1908 (Act 1 of 1908); Ex.A-2 (alleged Zamin Patta) is not registered and signed by Karnam, as contemplated under Section 58 of The Estate Land Act, 1908 (Act 1 of 1908) and therefore it is not a document issued in confirmity with 1908 Act, and hence no evidentiary value could be placed on it and the same cannot be relied upon; no evidence is available on record to ascertain as to whether Thiru.Vijayaranga Mudaliar complied with Section 50(2) of The Estate Land Act, 1908 (Act 1 of 1908) and sought for a Zamin patta; Ex.A-2 (alleged Zamin patta) does not contain all the details required under Section 51 of the Estate Land Act, 1908 (Act 1 of 1908) nor does it state that the period of the said patta as mandated under Section 52 of The Estate Land Act, 1908 (Act 1 of 1908).
89. Learned AAG further submitted that no documents maintained by Government under Section 164 (2) of the 1908 Act were filed to prove the title of plaintiff's vendor; no documents of record of rights under Section 167 of the aforesaid Act was filed; no documents as required under Section 203 of the aforesaid Act is filed before Court to prove entries in record of rights which would be the relevant document for Vijayaranga Mudaliar's claim to be a riot and that suit property is a ryoti land; no documents were filed to show that Vijayaranga Mudaliar paid any rent as fixed under Section 3 (2) of the Tamil Nadu Estates Land (Reduction of Rent) Act (XXX of 1947); the suit is filed disputing the character of the suit land as communal land and that it is part of estate and that it is a ryoti land; hence suit before Civil Court is barred under The Tamil Nadu Estates (Supplementary) Act 1956 which received the assent of the President of India and came into force on 03.08.1957; the Tribunal constituted under Section 3 (1) of the said Act alone has jursidiction to decide the issue on hand and jurisdiction of Civil Court is barred under Section 10 of the aforesaid Act; this position of law is settled in the decision reported in 1960 (1) MLJ 232 (B.Hariharamuthu Pillai v. Rani Subbulakshmi Nachiar, Hereditary Trustee of Kattalais of Sri Thirukoshtiappar, etc., Temples and Ors.) by the Division Bench of the Madras High Court; hence suit is not maintainable before the Civil Court and parties cannot confer jurisdiction on Civil Court as Section 9 of the CPC bars entertainment of matters which are expressly barred under any Act.
90. Learned AAG further submitted that the suit in O.S.No.35 of 1985 is hit by principles of res judicata as the plaintiff and his vendor Thiru.Vijayaranga Mudaliar having failed to obtain the Patta under The Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 and having lost in the proceedings before the competent authority way back in the year 1953 are not entitled to maintain a suit for declaration. He further submitted that when the plaintiff having acknowledged the status of the suit property as communal land, by asking for the issuance of revenue patta, is estopped to challenge the title of the Government and seek a declaration of ownership in his favour; the suit for declaration of title and injunction is not maintainable without seeking for recovery of possession and suit is barred under the Specific Relief Act, 1963.
91. Learned AAG further submitted that Exs.A-3 and A-4 were filed by the plaintiff claiming it to be copy of chitta and settlement register extract; Exs.A-3 and A-4 are certified copies of alleged chitta and settlement register extract said to have been issued by the Estate Manager; nothing is said about these documents by P.W.1 in his chief excepting for marking these documents; however in the cross examination P.W.1 has admitted that Exs.A-3 and A-4 does not contain suit survey number; further, in Ex.A-3 there is no description against each of the entries; there is no reference as to how Estate Manager can issue certified copies of chitta and settlement register for Fasili 1359 (year 1949) which is dated 27.12.1967 when it is the admitted fact that the pattadar was not registered with Karnam nor records of ryots were registered as contemplated under 1908 Act; more so, when Ex.A-33 it is clearly mentioned as early as on 20.07.1953 that the lands in Survey No.163 is a communal land and that Zamindari has no right to alienate alleged communal land; D.W.3 has spoken about Exs.A-3 and A-4 in his chief examination conducted on 17.04.2000 and has said that Exs.A-3 and A-4 does not contain Government Seal and that none of requirement of a chitta is found in Ex.A-3 and that there is no Head Clerk post in the office of Estate Manager and the persons who were employed in the office of the Estate Manager is filed as Ex.B-57 which disclose that the person who has signed as Head Clerk was infact working as an Assistant; D.W.3 has also spoken about discrepancies and irregularities in Exs.A-3 and A-4 and has categorically stated that these documents are not the correct certified copies of the original; hence Exs.A-3 and A-4 are not true documents. He further submitted that Ex.A-6 has come into play after filing suit viz., 23.06.1987 and will have no bearing on the suit; it is quite interesting to see that when the plaintiff claims that he was carrying agricultural activities (para VII of the plaint in O.S.No.34 of 1985, para 4 of the plaint in O.S.No.348 of 1995 renumbered as O.S.No.2066 of 1996, para 4 of the plaint in O.S.No.342 of 1996) it is not known as to how suddenly Ex.A-6 is filed to show that he is running a factory under the name and style of Sri Venkateswara Granite Cutting and Polishing doing Granite Cutting and Polishing Business in S.No.163 when there is no such whisper even in the year 1989 when the second suit was filed against Salem Municipal Corporation alone nor in the third suit when the same was filed on 27.04.1994; thus it is evident that plaintiff created documents for the purpose of the suit including the given up documents Exs.A-11 and A-12.
92. Learned AAG further submitted that Ex.A-23 is yet another false document which will show that the actual extract of document marked as Ex.B-2 contains the entire particulars about achuvaneri including its measurement as 24.62 acres after resettlement and very same Estate Manager who has issued Exs.A-3 and A-4 which are proved to be a false document has also issued Ex.A-23; much is said about Ex.A-26 = Ex.B-71 which is an internal communication to the Collector; it is not known as to how the said document came into possession of plaintiff; even otherwise the said document being internal communication cannot have any evidentiary value nor it can be relied upon by the court; unelss a document is validly communicated it has no value and cannot be relied upon; a reading of Ex.A-26 discloses that Tahsildar has narrated about case of the plaintiff in the patta enquiry and has submitted to Collector the copies of document produced by the plaintiff and has sought for suitable action; thus Ex.A-26 will not advance the case of the plaintiff when such document is only an internal communication and cannot be relied in the court (2003 (5) SCC 388 (U.P.LAND DEV. CORPN. v. AMAR SINGH) and AIR 1963 SC 395 (Bachhittar Singh v. State of Punjab and another).
93. Learned AAG further submitted that this Court has framed two additional substantial questions of law on 23.07.2010; with regard to the same, he submitted that in so far as the first additional substantial question of law is concerned, that it is the consistent stand of the Government that the extent of achuvaneri is 24.62 acres; in the written statement filed by the first defendant in O.S.No.266 of 1994 it has been specifically pleaded in para 5 about the extent of achuvaneri i.e., 24.62 acres and the denial about 15 acres; there is a specific denial about the alleged re-classification; several documents were filed on behalf of the defendants to prove that achuvaneri measures 24.62 acres and the earlier measurement as 15 acres were corrected in resurvey which is evident in Ex.B-11; this is due to wrong measurement; the paimash number is 779 and correlated survey number is 163; plaintiff has neither proved Survey number nor paimash number for the property conveyed under Ex.A-1; the property is not even identified by the plaintiff and would rely upon Ex.A-5 which shows Achuvaneri as 24.62 acres; further plaintiff himself has filed Ex.A-5 said to have been issued to him by Vijayaranga Mudaliar at the time of execution of Ex.A-1 which shows the extent of achuvaneri as 24.62 acres; therefore when plaintiff himself admits that Ex.A-5 is given to him by his vendor at the time of sale, then it goes without saying that even as on date of execution of Ex.A-1 (29.09.1952) achuvaneri measures 24.62 acres and not 15 acres; further Ex.A-23 is a document which does not contain the entire entries as could be seen in Ex.B-2; further as stated above Ex.A-26=Ex.B-71 is an internal communication written by Tahsildar to Collector and only contains the plaintiff's contention raised for issuance of patta; admitted facts need not be proved and plaintiff is estopped under Section 115 of the Evidence Act; on the contrary, there is no rebuttal evidence that 24.62 acres is wrong with authenticated documents on the side of the plaintiff (2002 (10) SCC 315); Ex.A-23 is incorrect document and hence fraud and forgery rob a document for all its legal effect and cannot found a claim to possessory title (1976 (3) SCC 642); there is always a presumption about official documents as per Section 114 (e) of the Evidence Act unless the presumption is dislodged by congent evidence; in so far as alleged claim of achuvaneri as 15 acres is neither proved nor 24.62 acres is disproved; hence first additional substantial question of law does not arise due to the aforesaid reasons; even otherwise, it is a question of fact and not a substantial question of law.
94. Learned AAG, as far as the second additional question of law is concerned, submitted that as far as Exs.A-1 and A-2 concerned they have been proved beyond doubt that they are created for grabbing the Government lands and no title passes on to the plaintiff through them; the identity of property is under serious dispute and only in plaint S.No.163 is introduced and during evidence by way of Ex.A-5; there is absolutely no reference to Ex.A-5 in Ex.A-1; even under Ex.A-1 Vijayaranga Mudaliar has stated in the sale deed that the entire village has been taken over by the Government and hence there is no reference to possession being handed over to P.C.Pachiappan; both vendor and his plaintiff having lost in the proceedings claiming patta under the Abolition Act, the plaintiff claimed patta outside the Act; hence under Section 115 of the Evidence Act the plaintiff is estopped from denying that S.No.163 achuvaneri admeasuring 24.62 acres in which plaintiff identifies 4.62 acres is not a Government property (communal land); hence the second additional substantial question of law does not arise due to the aforesaid reasons; res judicata operates even in the administrative orders; hence order dated 20.07.1953 having become final and conclusive operates as res judicata to seek for subsequent patta on the same ground as it is barred (MANU/TN/0417/2004).
95. Learned AAG further submitted that the appellant takes a stand that to clarify about wrongful classification of the suit property as achuvaneri, the third suit is filed and that the same is not barred under Order 2 Rule 2 of the CPC; one need not file a separate suit to clarify the earlier suit; when plaintiff in the year 1984 had all the reliefs available when he had initiated the first suit including the order, dated 20.07.1953 (Ex.A-33) which has become final, conclusive and binding on the successor plaintiff, since he has not chosen to do so, it would amount to waiving the rights and third suit is hit by Order 2 Rule 2 CPC; further there is no explanation whatsoever about limitation at all; as early as on 20.07.1953 the patta claim of Vijayaranga Mudaliar is rejected on ground of communal land is sought by way of patta and that the alleged assignment of land by Zamindar is legally invalid (Ex.A-33); the plaintiff for the second time again claimed patta which is barred under principles of res judicata the same was again rejected on 08.11.1968 by Assistant Settlement Officer, Order (Ex.B-2); in the third round of application for patta Government rejected the appeal by G.O. Rt. 838 dated 11.05.1971 and review on 07.05.1973; hence plaintiff started seeking for patta outside the Act which is evident under Exs.B-4, A-26, B-71 and B-76 and hence it is apparent that as early as on 20.07.1953 itself the plaintiff's vendor's application made after execution of Ex.A-1 has been rejected by the Government on the ground that the property is a communal property and hence the suit is hopelessly barred by limitation.
96. Learned AAG further submitted that the appellant claims in the appeal repeatedly that the defendants had burked the documents; it is settled law that the plaintiff has to prove his case and burden of proof lies on him; the plaintiff cannot go for fishing or a roving enquiry; since all documents are public documents the plaintiff could have applied certified copies and filed before the court rather taking a stand that defendants have not produced the documents; such stand cannot be countenanced in law and made in desperation particularly when it is the case of the defendant that the plaintiff's case is a false case and no negative evidence could be proved or records could be produced in support of the same.
97. Learned AAG further submitted that the plaintiff is not able to identify the suit properties as that of the properties covered by Ex.A-2 even when he took the Advocate Commissioner to achuvaneri to identify the suit property; it is pertinent to note that neither plaintiff nor Advocate Commissioner were able to identify the suit property in achuvaneri which is evident in Commissioner's Report; it is interesting to note that the plaintiff showed 6.32 acres as his property in achuvaneri (Exs.C-1 to C-3); to identify the suit property, the plaintiff has filed Ex.A-5 which contains the entire achuvaneri / chinaneri and in which the plaintiff has coloured a triangular portion at the foot of achuvaneri / chinnaeri to identify it as the property conveyed under Ex.A-1; Ex.A-5 is not a part of Ex.A-1; normally plans / sketch of property conveyed will be annexed along with sale deed when sale is made; however it is surprising to note that Ex.A-5 was not annexed to Ex.A-1 and there is no signature of Vijayaranga Mudaliar; in the cross-examination P.W.1 has stated Ex.A-5 was given separately by Vijayaranga Mudaliar; this document would clearly establish that the entire extent of achuvaneri is 24.62 acres as shown in Ex.A-5 (right hand side top) even when Ex.A-1 was executed; hence, the plaintiff has demolished his own case that even when Ex.A-1 was executed achuvaneri was admeasuring 24.62 acres and therefore even according to plaintiff Vijayaranga Mudaliar had no right to pass on to plaintiff any property which is identified in Ex.A-5 as the said property is recorded as achuvaneri / chinnaeri belonging to the Government.
98. Learned AAG further submitted that it is the case of the Government that achuvaneri / chinnaeri comprised in S.No.163 admeasuring 24.62 acres of land are communal lands; achuvaneri / chinnaeri later were subdivided and recorded as Salem Municipal Property and that a bus stand is constructed on these lands, which property is claimed by the plaintiff as property conveyed in Ex.A-1 and that the said property were never in possession of plaintiff or with his vendor at any point of time and hence the suit claim is frivolous and vexatious; the plaintiff has miserably failed to prove that Mrs.Gnanambal was the Zamindarini of Pallapatti Village and that she had at her disposal the properties covered under Ex.A-2 series and that she is competent to issue such patta to Vijayaranga Mudaliar as contemplated under Section 52 of The Estate Land Act, 1908 (Act 1 of 1908); Vijayaranga Mudaliar sold the said property which the plaintiff identifies as part of achuvaneri; the plaintiff is guilty of suppression of material facts relating to Board of Revenue Orders passed from the year 1953, settlement officer's order etc., relating to rejection of patta applied under the 1948 Act in the plaint; the plaintiff is not entitled to claim title under the Sale Deed (Ex.A-1) and simultaneously claim title by way of adverse possession; such plea is self contradictory; though the appellant would now give up the said claim of adverse possession, it would only prove that the claims of the plaintiff are false even in respect of title; all the suits are barred by limitation as the plaintiff's right to sue has accrued when orders were passed by Board of Revenue Order, dated 20.07.1953; settlement authority order dated 25.11.1968, Revision Petition dated 11.05.1971, Review Petition rejected by G.O.Ms.No.2387/73, dated 07.05.1973 (Ex.B-81).
99. Learned AAG further submitted that the plaintiff is guilty of abuse of process of court for indulging in vexatious proceedings and re-litigation; the cogent evidence of D.W.1 to D.W.3 and the documents filed by the defendants in support of their claim to substantiate that the survey No.163 (which the plaintiff claims as that part of it is his property) comprises of a large extent of 24.62 acres which is called as achuvaneri / chinnaeri and the same was classified as communal lands in the Revenue Records; the exhibits filed by the defendants are official records and the evidence and documents adduced by the defendants would go to show that achuvaneri / chinnaeri though originally was wrongly shown as 15.00 acres but the re-survey has confirmed that the said extent is 24.62 acres and therefore even applying plaintiff's false contention that achuvaneri is only 15 acres, there is no explanation as to what happened to (15 + 4.91 24.62 acres) 4.71 acres; therefore, this would only prove the hollowness in such claim; above all Ex.A-5 the sketch of entire achuvaneri which shows its entire extent as 24.62 acres is a clinching document which nails the false plea of the plaintiff.
100. Learned AAG further submitted that the entire achuvaneri i.e., 24.62 acres have been sanctioned by the Government for construction of Salem Bus Stand considering the large number of representations from the general public of Salem and popular representatives from the area and need for constructing a large bus stand; therefore the entire achuvaneri in S.No.163 admeasuring of 24.62 acres has been permitted by the Government to construct a bus stand by Anna Road Transport Corporation on behalf of the Salem Municipality (Ex.B-82); therefore, the entire achuvaneri now reclassified as Salem Bus Stand is put into use for public purpose and hence public interest would suffer if the judgment is set aside as no such large property is available for usage of bus stand; the plaintiff himself has admitted that he is not in possession of the property (Ex.B-4); taking over of possession of the ryoti lands in Salem Taluk is support by Exs.B-7, B-8 and B-9; to show that the total extent of achuvaneri is 24.62 acres, records from the year 1951 is marked as Exs.B-11, B-12, B-49, B-50 and B-51; originally, there were encroachments over the suit property and encroachers were removed which is evident in Ex.B-43; even Ex.B-43 does not show plaintiff's name; it has been established that Ex.A-11 and A-12 does not relate to Ex.A-1 as appreciated and accepted by the parties before this Court; to prove that any of the boundaries of achuvaneri does not show land claimed by plaintiff even in the year 1947, Ex.B-58 is marked which is sale in Survey No.112; in Ex.B-58, the exact measurement and boundaries are given which is absent in a document executed in the year 1952 (Ex.A-1).
101. Learned AAG further submitted that Ex.B-58 is a clinching document to show that the said property in Ex.B-58 is located at the foot of achuvaneri and abutting Omalur Road, which is adjacent to the so called suit property as claimed and identified by the plaintiff as his property in Ex.A-5; however Ex.B-58, one of the boundary, is shown as achuvaneri and not plaintiff's property; the measurement in Ex.B-58 can be easily identified in Exs.B-60 and B-61 and hence Ex.B-58 will demolish the claim of the plaintiff that his property is within achuvaneri and abutting Omalur Road; the written statement filed by Salem Municipal Corporation in the suit will have no bearing in deciding the title, as Salem Municipality can only claim right through the Government, and when the Government has disputed the title of the plaintiff, there cannot be any concession by the Salem Municipal Corporation; moreover, the plaintiff has to prove his case by positive and acceptable evidence; the judgment of the appellate court is a well considered one and needs no interference.
102. Mr.R.Muthukumarasamy, learned Senior Counsel for the third respondent / Municipal Corporation submitted that the plaintiff relies upon Ex.A-2 patta series said to have been granted by the Zamindarini Gnanambal to prove his possession; he also relies upon Exs.A-3 and A-4 which are the chitta extract and settlement register extract for the fasli 1359; the trial court on an erroneous appreciation of facts and law held that the said documents were genuine documents evidencing the possession of the plaintiff to the suit property and decreed the suits on the basis of the said documents; the trial court failed to consider that the defendants had challenged the validity and genuineness of the said documents in their written statement and had let in proper evidence to prove the said documents were not genuine; the lower appellate court on a detailed consideration of the documents found that the said Ex.A-2 series contained three pattas relating to the Fasli years 1350, 1352 and 1356; the patta for the Fasli year 1352 was not signed by the Karnam; in the patta for the Fasli year 1356 the signature of the Karnam could not be ascertained as it is a printed patta; the plaintiff had claimed and deposed that the signature was that of Karnam Govindaraj and that Karnam Kulandaivelu had signed in two pattas as he was the Karnam of Pallapatti Village at that time; the lower appellate court on a consideration of the evidence of P.W.2 and D.W.2 and on going through the contents of Ex.B-74 has clearly found that one Sachidanandam Pillai was the Karnam of Kandanpatti Village upto 1938 and Kulandaipillai was the Karnam of kandanpatti Village after 1938 and that is evidenced from their signatures contained in Ex.B-74; further the signature contained in Ex.A-2 patta series is only the signature of Karnam Kulandaipillai when compared with the signatures found in Ex.B-74; further the said Kulandaipillai was not the Karnam of Pallapatti Village and he has also not stated that he is holding additional charge of Pallapatti Village; the notice dated 16.08.1984 issued by the plaintiff under Section 80 CPC and the plaint in O.S.No.34 of 1985 and the sale deed dated 29.09.1952 do not say anything about these pattas; the signature of Zamindarini Gnanambal differs in each of the four pattas; the vendor Vijayaranga Mudaliar did not deliver these pattas when the sale deed was executed; Ex.B-71 is the report dated 14.02.1995 by Tahsildar, Salem, to Collector, Salem; it says patta was not granted to Vijayaranga Mudaliar since he has not produced any document; had these Ex.A-2 pattas been in existence they would have produced the same before the enquiry Tahsildar; Ex.A-33 refers to an application for grant of patta under the provisions of Section 11 of the Tamil Nadu Act, 26 of 1948; the provision read:
"Provided that no person who has been admitted into possession of any land as landholder on or after the first day of July 1945 shall, except when the Government after examination of all the circumstances otherwise direct, be entitled to a ryotwari patta in respect of such land".
therefore A-2 series pattas which relate to the period 1940 1944 would not have been in existence when the sale deed was executed or when Vijayaranga Mudaliar applied for patta; as such the documents Ex.A-2-Patta Series were not genuine documents and on that basis rejected the evidence of the plaintiff regarding Ex.A-2-patta series.
103. Mr.R.Muthukumarasamy, learned Senior Counsel for the third respondent / Municipal Corporation further submitted that the trial court relied upon Ex.A-11-receipts and Ex.A-12-Kist receipts to hold that the plaintiff had been paying the Kist for the suit property thereby evidencing his possession and enjoyment of the suit property; the lower appellate court on an examination of Ex.B-46 and Ex.B-42 the adangal registers for the fasli year 1367 found that the plaintiff and his wife Kanagammal had encroached certain portions of Kundichetti Erikkarai in S.Nos.119 and 120 which have been exhibited as Ex.B-62; Ex.A-11 series were actually receipts issued for the Thandam Theervai for the occupation of Kundichetti Eri by the plaintiff and his wife; further Ex.A-12 series is for the faslis 1381 and 1392; the plaintiff had deposed that Ex.A-12-series were given for the kist paid by him through his pannaial Raman; Ex.A-12 series were receipts issued in the name of one Raman and another Parman; on an analysis of Exs.B-15 and B-26 adangal extracts it is found that one Raman and one Parman were in occupation of encroached land China Erikkarai and Thandam Theervai had been collected from them under Ex.A-12-series; the plaintiff who was not at all concerned with the suit land and in whose name the said Kist receipts do not stand had falsely deposed particulars regarding the said receipts; hence on a careful consideration of the above documents the lower appellate court came to the proper conclusion that Exs.A-11 and A-2 do not relate to the suit property and the plaintiff had filed the same and gave wrong evidence only to mislead the court and had committed a fraud on the court in that aspect;
104. Mr.R.Muthukumarasamy, learned Senior Counsel for the third respondent / Municipal Corporation further submitted that the plaintiff has stated that main point for consideration is what was the character of land during the relevant time; it is submitted that material and relevant point is who was in possession when the Act was notified on 19.12.1950 and who was in possession when the sale deed dated 29.09.1952 was executed; Ex.B-9 shows that even before the sale deed Government had taken possession and Ex.A-1-sale deed itself there is a clear recital conceding the fact that Government has taken over the village; the purchaser must have known the meaning of this line in the sale deed since it was introduced later on, but before the registration; Exs.B-12 to B-41 which are adangals do not show that the plaintiff has cultivated the suit lands; it is therefore clear that the plaintiff or his son Kumar had never been in possession of the property under consideration; the plaintiff's father has suppressed material facts about his title and possession in all the writs and in the suits.
105. Mr.R.Muthukumarasamy, learned Senior Counsel for the third respondent / Municipal Corporation further submitted that the plaintiff was never in possession of the suit property; Ex.B-9 report submitted by the Tahsildar to the Collector, Salem, on 15.01.1951 shows that the plaintiff or his vendor were never in possession; the plaintiff has suppressed the applications filed by him for grant of patta in 1971 and that it was rejected; the review application filed by him as also rejected in 1973; the plaintiff relies upon Exs.A-1, A-2, A-11 and A-12 to put forth his case that he was in possession of the suit property for more than 50 years; the lower appellate court on a detailed examination of the abovesaid documents came to a considered conclusion that the said documents were not genuine and do not relate to the suit property and rejected the case of the plaintiff; the plaintiff would put forth yet another case that the actual extent of Chinnaeri was only 15 acres as per Exs.A-23 and B-2 and that during settlement survey the extent of Chinnaeri / achuvaneri was wrongly entered as 24 acres 62 cents by wrongly including the plaintif's lands in Survey No.163; in this aspect the respondents had filed Ex.B-6 which is a descriptive memo of Survey No.163 Pallapatti Village, wherein Survey No.163 has been clearly mentioned as Chinnaeri Government Poramboke land having an extent of 24 acres 62 cents; Ex.B-11, A register extract also mentions Survey No.163 as Chinneri Government Poramboke measuring an extent of 24 acres 62 cents; Ex.B-52 chitta prepared during the Survey and Settlement proceedings in the year 1959 and Ex.B-53 classification register of the year 1959, the fair land register Ex.B-72, clearly state that Survey No.163 with paimash No.779 has been classified as achuvaneri poramboke having an extent of 24 acres 62 cents; hence the contention of the plaintiff that his lands have been wrongly classified as eri poramboke in the survey and settlement proceedings is false; the total extent of achuvaneri is only 24 acres 62 cents and not 15 acres as claimed by the plaintiff;
106. Mr.R.Muthukumarasamy, learned Senior Counsel for the third respondent / Municipal Corporation further submitted that the plaintiff has claimed that the suit lands were ryotwari lands and that Ex.A-2 series patta had been issued to his vendor Vijayaranga Mudaliar by the Zamindarini Gnanambal; the said Vijayaranga Mudaliar was the son-in-law of Gnanambal; in the said pattas it has been mentioned as Chinnaeri Karaioram Tharisu and Chinna Eri Karaimedu Tharisu; the word Tharisu means waste land; so it is evident that the land mentioned in the patta are not ryotwari land as claimed by the plaintiff; the reference in the pattas infer that the lands were waste lands on the bunds of chinnaeri; the plaintiff has not produced any document like adangal to establish that he was in possession of the suit land; the plaintiff further relies upon the commissioner's report Exs.C-1, C-2 and C-3 to show that the physical features spoken to by him are found in the suit property and that he was in possession and enjoyment of the suit property; in this aspect, D.W.2 who was the VAO has clearly deposed that various persons had encroached into achuvaneri and put up sheds and hutments and subsequently as per the Government Order those encroachments were removed and suit land was entrusted to Anna Transport Corporation; the people living in the hutments could have formed the peedam temple and the existence of the temple would not establish the possession of the plaintiff; Exs.B-80, B-12 and B-46 adangal extracts reveal that several persons had encroached the suit property and all those encroachments were removed in the year 1984; the claim of the plaintiff that he had put up several huts and that his tenants were occupying the same is not borne out by any records; the plaintiff has not filed any documents to prove the same; further, the particulars of tenants do not find a place in the adangal extracts; in the absence of any documents produced by the plaintiff to prove his possession and enjoyment of the suit property, the physical features stated in the Commissioner's Report could not be taken as conclusive evidence to prove that the suit lands were possession of the plaintiff; Ex.B-20 adangal extract also reveals that a Well came into existence in the year 1976 at the instance of the Panchayat; Ex.B-28 adangal extract indicates that all the encroachments in the suit property were removed and achuvaneri was handed over to Anna Transport Corporation on 16.06.1984 vide Exs.B-60 and B-65; the plaintiff who was never in possession of the suit lands obtained an order of stay by suppressing the real facts and ultimately the writ petitions filed by him were dismissed; the plaintiff would rely upon the order passed in W.P.No.8750 of 1984 to state that his possession had been recognised by the Court and an order of stay had been granted; however, the said order was set aside by a Division Bench in its order in W.A.No.3755 of 2002, dated 08.04.2003 holding that a writ petition of that nature would not have been entertained at all and the contention of the plaintiff that the High Court has given a finding in his favour as to factum of possession is erroneous; the suit filed by the plaintiff is also barred by limitation; the suit lands were taken over by Government on 12.01.1951; the plaintiff's vendor Vijayaranga Mudaliar's application for grant of patta under Section 11 of the Act had been rejected by the Board of Revenue by its Order dated 20.07.1953-Ex.A-33; the claim of the plaintiff for grant of patta was rejected by the settlement authority by order dated 25.11.1968 and his Revision Petition was also dismissed by G.O.No.838, Revenue Department, dated 11.05.1971; the Revision Petition filed by the plaintiff was rejected by G.O.No.2387/73, dated 07.05.1973-Ex.B-81; the plaintiff should have challenged the said orders within three years of his knowledge; however, the suit has been filed in the year 1985 and as such is clearly barred by limitation.
107. Mr.R.Muthukumarasamy, learned Senior Counsel for the third respondent / Municipal Corporation further submitted that the plaintiff has filed three suits seeking for identical reliefs of declaration of title and for consequential injunction; in the first suit O.S.No.34 of 1985 the plaintiff has sought for a declaration of his title to the suit property and for permanent injunction; however even on that date he was aware that the suit lands have been classified as communal land by the respondents as evident from the various documents particularly Exs.B-73 and B-81; but he has not prayed for a declaration that the classification of the suit land as communal property is null and void; only in the year 1994 the plaintiff filed O.S.No.366 of 1994 seeking for the said relief; the said relief ought to have claimed in the first suit itself under Order II Rule 3 CPC where the plaintiff is entitled to many reliefs on the same cause of action and if he omits to claim one of the reliefs in that suit without the permission of the court he shall not afterwards sue for that relief so omitted; the plaintiff having failed to claim the reliefs in the earlier suit O.S.No.34 of 1985, the relief sought for in O.S.No.342 of 1996 for declaration that the classification of the suit lands as communal property is null and void is barred under Order II Rule 3 CPC; the plaintiff has been abusing the process of court by resorting to various litigations and re-litigation as stated above and on this ground also the suits are liable to be dismissed and the ground of re-litigation amount to abuse of process of law; the plaintiff is not the owner of the suit property and has never been in possession of the same; no documents have been produced by him to establish his possession; as stated above by virtue of G.O.Ms.No.3212, Revenue Department, dated 19.12.1950, the entire extent of 24 acres 62 cents in Pallapatti Village was notified under the Tamil Nadu Act 26 of 1948; the land was taken over by the Government on 12.01.1951 and on and from the date of notification the title of land vests with the Government by operation of law; unless patta is granted to the land holders as per the provisions of Section 11 of the Act they will not get any right of title for the same; as stated above the claim of Vijayaranga Mudaliar and the plaintiff for grant of patta had been rejected and their revisions had also been dismissed which has become final; later the lands were classified as achuvaneri poramboke and subdivided by G.O.Ms.No.299 Revenue Department dated 17.03.1977 and the same has been recorded as Salem Municipal Property; the plaintiff or his son were never in possession of the suit property; the details of the case as set out in the judgment shows that the plaintiff is guilty of abuse of process; it will show that plaintiff has been playing hide and seek game using the High Court and Civil Court as the Forums depending upon the situations and circumstances to play his game; the finding of the trial court regarding the possession is not based upon any fact or evidence but on the presumption that Government would not have taken possession as the application for grant of patta was pending; the property is public property; the third respondent / Corporation is using the land for its vehicles and the land is allotted for the Town Bus Stand; already the litigation is nearly twenty years old; the plaintiff has no prima facie case as can be seen from the facts and evidence in the cases; he is building up cases on the basis of false allegations; being guilty of abuse of process his claim for injunction deserves no consideration; the respondents are in possession of the property mentioned in the writ petition, namely, 4.91 acres of land in S.No.163 of Pallapatti Village, Salem Taluk, right from 1984 onwards having been allotted the same along with other extents totally admeasuring 24.62 acres of vacant land by the Government of Tamil Nadu under G.O.Ms.No.255, Transport Department, dated 23.02.1984 for construction of a new bus stand; the land was handed over to the Anna Transport Corporation for the purpose of constructing and maintaining the Bus Stand under the control of the Salem Municipality; the Salem Corporation Bus Stand has been completed and is now functioning from 1987-88; the remaining vacant land has been reclaimed by the Corporation from 1984 by filing up with the rubbish and debris and has been cleaned up earmarked for parking of omni buses; currently the garbage lorries, tipper and other vehicles of the Salem Corporation are parked in the land; the Salem Corporation is in actual physical possession of the land mentioned in the writ petition from 23.02.1984 on wards till date and the public are using the same; this Court has also repeatedly dismissed one writ petition after another filed by the plaintiff's father in respect of the same subject and the same prayer; no substantial question of law has been raised by the appellant in the above second appeals and there are no merits in the same.
108. I have considered the aforesaid submissions made by the learned counsel on either side and perused the materials available on record.
109. The entire case of the plaintiff revolves around Exs.A-1, A-2series pattas, A-3 and A-4. While the plaintiff's case is that under Ex.A-1-registered sale deed, dated 29.09.1952, he purchased the suit property from Vijayaranga Mudaliar, the riot in possession of the said land and Vijayaranga Mudaliar had been issued with Ex.A-2-series pattas by the Zamindrini of Pallapatti and the Patta number is 200 and in respect of Patta No.200, Vijayaranga Mudaliar had paid Kists as per Exs.A-3 and A-4 the defendants questioned the genuineness of these documents. The trial court has accepted their genuineness for reasons recorded by it, whereas, the lower appellate court has held that these documents are not genuine. Hence it is necessary to consider as to whether the reasons assigned by the trial court are correct or the reasons assigned by the lower appellate court are correct.
110. As far as Ex.A-1 is concerned, it has to be pointed out that it is a registered sale deed, which came to be executed pursuant to an agreement of sale, dated 15.03.1950 for the consideration cited therein. As per the recitals in Ex.A-1 a sum of Rs.500/- has been paid in cash by the purchaser plaintiff to the vendor Vijayaranga Mudaliar and so far as the remaining sale consideration of Rs.2,000/- is concerned, the purchaser / plaintiff has executed a promissory note. In Ex.A-1 it has been specifically stated that the vendor has handed over the possession to the purchaser. In Ex.A-1, in the schedule, it has been stated that the land is covered by Patta No.200 of Pallapatti Village and the extent is mentioned as 4.91 acres and the four boundaries have also been given. It has also been stated that the village has been taken over by the Government.
111. In the written statement filed by the defendants in the three suits, a plea has been raised that Ex.A-1-sale deed is a created document, it is false and it is sham and nominal, but nowhere in the written statements it has been pleaded that Ex.A-1 is a forged document. Therefore, it is clear that the execution of Ex.A-1- sale deed by Vijayaranga Mudaliar in favour of the plaintiff is not in dispute and hence the contention of the respondents that since neither the vendor nor the attestors of Ex.A-1 have been examined Ex.A-1 cannot be said to have been proved cannot be accepted.
112. In the written statement filed by the Salem Municipal Corporation in O.S.No.348 of 1995, in paragraph 3, it is pleaded as follows:-
"..... It is false to allege that the plaintiff has purchased the suit property from one Vijayaranga Mudaliar under sale deed dated 29.9.1952. This alleged sale deed does not confer any title to the plaintiff over the property. It is false to allege that the plaintiff is in possession and enjoyment of the property".
In paragraph 5 of the same written statement it is pleaded as follows:-
"..... Originally, the land was a Zamin land under the control of Zamindar Gnanambal. The said Zamindar Gnanambal has permitted one Vijayaranga Mudaliar to enjoy the property on payment of charges to her. The Vijayaranga Mudaliar had no title to the said suit property. The Estate Abolition Act came into force and all the lands has been taken by the Government prior to the alleged sale deed dated 29.9.1952 obtained by the plaintiff. On the date of alleged sale deed it was the property of the Government."
The aforesaid pleadings clearly show that it was not the case of the defendants that Ex.A-1 sale deed was a forged one. From the averments, namely, 'the said Zamindar Gnanambal has permitted one Vijayaranga Mudaliar to enjoy the property on payment of charges to her', makes it abundantly clear that the defendants have admitted the possession of Vijayaranga Mudaliar of the suit property. Therefore, the defendants are estopped from raising a plea in the trial that Vijayaranga Mudaliar was not in possession of the suit property, as on the date of coming in force of the Act 28 of 1948.
113. Learned Additional Advocate General contended that no sale consideration has passed under Ex.A-1. Such a contention in the light of the specific recitals contained in Ex.A-1 cannot be sustained. The further contention of the learned AAG is that in the year 1952 when Ex.A-1 sale deed was executed, a sum of Rs.2,500/- was a big amount and that being so, it is inconceivable that Vijayaranga Mudaliar would have executed the sale deed by simply receiving cash consideration of Rs.500/- alone and by accepting the promissory note for the balance of sale consideration, namely, Rs.2,000/-. The said contention is opposed to the specific recitals contained in Ex.A-1. In Ex.A-1 it has been specifically stated that the vendor was unable to cultivate the same personally and it was not convenient for him to manage the property and that was the main reason recited for selling the property. Admittedly, Ex.A-1 sale deed has been executed and registered at Chennai where Vijayaranga Mudaliar was staying at that point of time. The fact that Vijayaranga Mudaliar was staying at that point of time at Chennai corroborates the version in the sale deed that he was unable to cultivate the lands personally and therefore there is nothing surprising or suspicious in the vendor selling the suit property under Ex.A-1. Moreover, it is pertinent to point out that it is not open to the respondents to contend that no sale consideration is passed under Ex.A-1 or Ex.A-1 is sham and nominal and created with an ulterior motive. It is pertinent to point out that on 29.09.1952 when the sale deed Ex.A-1 was executed there was no litigation between Vijayaranga Mudaliar and the defendants or between the plaintiff and the defendants and therefore it cannot be heard to be contended by the defendants that Ex.A-1 had been created. There is absolutely no basis for raising such a plea. P.W.1 in his cross-examination has stated that he paid the amount covered by the promissory note recited in Ex.A-1 within three years from the date of Ex.A-1. It is seriously contested by the defendants before the Courts below and before this Court that neither Vijayaranga Mudaliar nor the plaintiff were in possession of the suit properties at any point of time. It is the further case of the defendants that the possession was not handed over by Vijayaranga Mudaliar to the plaintiff as recited in Ex.A-1. But during the course of cross-examination of P.W.1 / the plaintiff it has been suggested by the defendants that only subsequently i.e., after the date of execution of Ex.A-1 sale deed physical possession of the land sold under Ex.A-1 was handed over to the plaintiff. This suggestion has been denied by P.W.1. This suggestion, in the considered view of this Court, demolishes the entire case of the defendants that neither Vijayaranga Mudaliar nor the plaintiff were in possession of the suit property at any point of time. The aforesaid suggestion implies that Vijayaranga Mudaliar was in possession of the property and subsequent to the execution of Ex.A-1 sale deed, if not on the date of execution of Ex.A-1, but subsequently possession was handed over by him to the plaintiff. This vital aspect has not been considered or taken into account by the lower appellate court. Had the lower appellate court considered this vital piece of evidence, it is doubtful that the lower appellate court would have recorded a finding that Vijayaranga Mudaliar was not in possession of the suit property and he had not handed over possession of the suit property to the plaintiff. Therefore, in the considered view of this Court, the finding of the lower appellate court, as far as Ex.A-1 is concerned, is vitiated, perverse and cannot be sustained.
114. The contention of the learned AAG that on coming into force of the Act 26 of 1948, the title and possession of the entire Estate had vested with the Government and Ex.B-9 Tahsildar's Report sent to the Collector shows that the possession of the lands have been taken by him cannot be countenanced for the following reasons:-
As has been held by a Division Bench of this Court in 1969 MLJ 281 (referred to supra), which has been subsequently affirmed by the Apex Court in AIR 1986 Supreme court 794 (referred to supra), it is clear from the provisions of the Act that what really vests in the Government in respect of a ryoti or private land is merely the title and there is no vesting of possession, which is protected under the proviso to Section 3 (d) of the Act. The Division Bench has further held that so long as the possession of the land continues to vest in the ryot, he would be entitled to protect his rights in respect of the same by resorting to civil courts. In Ex.B-9 what is stated is that the estate has been taken possession of by the Tahsildar, it only reveals the taking over of symbolic possession of the estate, but not taking physical possession of the ryoti lands of the riots. Ex.B-9 does not show that the Tahsildar has taken possession of the suit property from Vijayaranga Mudaliar. In the considered view of this Court, the reasons assigned by the lower appellate court for disbelieving Ex.A-1 and not relying upon the same cannot be sustained. Similarly, the finding of the lower appellate court that Vijayaranga Mudaliar was not in possession of the suit property cannot also be sustained. There is absolutely no reason whatsoever to hold that Ex.A-1 sale deed is a created document and it is not genuine and therefore the finding to the contrary recorded by the lower appellate court cannot be sustained.
115. As far as Ex.A-2 series pattas are concerned, as rightly contended by Mr.T.R.Mani, learned Senior Counsel for the appellant, except in the additional written statement filed in O.S.No.34 of 1985, which was filed after ten years after filing of the suit in none of the written statements filed in the three suits, the genuineness of Ex.A-2-series pattas have been questioned. As rightly pointed out by the lower appellate court since the additional written statement has been accepted by the Court below the plea relating to Ex.A-2 raised in the additional written statement should not have been rejected at the threshold by the trial court, but it should have been considered as to whether such a plea has been established by the defendants. During the entire cross-examination of P.W.1 the only suggestion that has been put to P.W.1 regarding Ex.A-2-series is that they have been created, which has been denied by P.W.1. It has not even been suggested that Gnanambal, the Zamindarini of Pallapatti Village, has not signed in Ex.A-2 series pattas.
116. Ex.A-2 series pattas and Exs.A-3 and A-4 have been field along with the plaint in O.S.No.348 of 1995 but yet in the written statement filed by the defendants, the genuineness of those documents have not been questioned. Similarly, in the third suit, namely, O.S.No.342 of 1996 also, the aforesaid documents have been filed along with the plaint, but in the separate written statement filed by the defendants the genuineness of those documents have not been challenged. When that being so, it has to be seen whether it is open to the defendants to challenge the genuineness of those documents in the course of trial. It is also pertinent to point out, as rightly contended by Mr.T.R.Mani, learned Senior Counsel for the appellant, that Ex.A-2 series pattas, Exs.A-3 and A-4 were marked without any objection through P.W.1. Even before any dispute arose between the parties, the Zamin Patta No.200 has been referred to in Ex.A-1 sale deed, but contrary to that, the lower appellate court has erroneously observed that Patta No.200 has not been referred to in the sale deed. Had the lower appellate court properly considered the recitals in Ex.A-1 such an erroneous observation would not have been made. This shows that the lower appellate court has over looked a vital recital in Ex.A-1-sale deed which has lead the lower appellate court to erroneously hold that Ex.A-2-series patta are not genuine. The fact that Zamin Patta No.200 has been referred to in Ex.A-1 itself will show that said Patta had been granted by Zamindarini to Vijayaranga Mudaliar. Further, as rightly contended by Mr.T.R.Mani, learned Senior Counsel for the appellant, that Ex.A-2 series pattas have been produced before the Estate Manager as early as on 24.06.1974 and marked as Ex.A-3 without objection before him as seen from the endorsement in the document itself. Admittedly, the defendants in their written statement filed in the three suits have not questioned the genuineness of ExA1, ExA2 series pattas, ExA3 and ExA4. But, the said failure on the part of the defendants is sought to be justified by the Lower Appellate Court by making a special pleadings. The Lower Appellate Court, in the absence of any pleading on the side of the defendants, has observed that there is no proof to show that the copies of the said documents were served on the defendants and therefore, there is no occasion for the defendants to question the genuineness of these documents. As already pointed out, when these documents have been filed along with the plaint before filing the written statement it is the duty of the defendants to inspect the documents and raise proper pleadings in the written statement. In the absence of necessary pleadings questioning the genuineness of these documents, the lower appellate court ought not to have allowed the defendants to adduce evidence both oral and documentary, the Lower Appellate Court has committed a serious error of law in making the special pleadings in favour of the defendants.
117. It was sought to be contended by the learned AAG that even if Ex.A-2 series pattas are considered to be genuine, they cannot be considered to be title deeds. In support of the said contention, the learned AAG relied upon the following decisions:-
(i) 1999 (III) CTC 304 (Kammavar Sangam v. Mani Janagarajan). In the said decision, it has been held that reliance on patta cannot be made to prove title as patta which mutates entries cannot convey or extinguish right over property. Basing reliance on this decision, leaned AAG submitted that reliance cannot be made on Ex.A-2-seies patta to prove title. But, as rightly contended by Mr.T.R.Mani, learned Senior Counsel for the appellant, patta referred to in this decision is a ryotwari patta and not a ryoti patta and therefore the said decision is not applicable to the facts of these cases; and similarly, the decisions reported in,
(ii) 2007 (13) Supreme Court Cases 182 (Balasubramanian and Ors. v. Ramaiah Thondaman);
(iii) 1998 (I) CTC 79 (Subramaian and two Ors. v. Karuppayee Ammal and 15 ors.);
(iii) 1999 (III) CTC 650 (Guruvammal and another v. Subbiah Naicker and Ors.) also relate to a ryotwari patta and not a ryoti patta and therefore the said decisions ae not applicable to the facts of these cases.
(iv) (1972) 1 Supreme Court Cases 521 (CHIGURUPATI VENKATA SUBBAYYA v. PALADUGA ANJAYYA). The said decision relates to the procedure to be followed by Collector before diverting the use of the communal lands. In these cases, the suit land has not been converted into a communal land, but due to the wrong measurements noted during the resurvey, the suit properties have been included in the extent of achuvaneri and therefore the said decision is not applicable to the facts of these cases.
(v) 86 Law Weekly 524 (Velayudham Pillai v. Sndhosa Nadar). In the said decision, it has not been laid down that patta is not a document of title as is sought to be contended by the learned AAG, hence this decision is not applicable.
(vi) 1999 (3) Supreme Court Cases 722 (KONDIBA DAGADU KADAM v. SAVITRIBAI SOPAN GUJAR) and
(vii) (2008) 2 Supreme Court Cases 741 (DHARMARAJAN v. VALLIAMMAL)
(viii) AIR 1968 SC 1413 (referred to supra) - (Regarding the scope of interference by this Court in a second appeal). But the said decisions, as referred to above, supports the case of the plaintiff rather than the defendants.
(ix) (1960) 1 MLJ 232 (B.Hariharamuthu Pillai v. Rani Subbulakshmi Nachiar and Others). Basing reliance on this, learned AAG submitted that the Civil Court has no jurisdiction to try the suits and the plaintiff should have approached the Tribunal constituted under the Madras Act 30 of 1956. In the said decision, it is observed s follows:-
"5... (3) .... Section 10 specifically enacts that except as otherwise expressly provided for in the Act, no civil or revenue Court and no Tribunal constituted under any other law, shall have jurisdiction to decide whether any non-ryotwari area is or is not an estate or part of an estate or is or is not an inam estate...."
Thus it is clear that, that was the case were question was whether the area is or is not an estate or part of an estate as defined in Section 3 (2) of the Estate Land Act. But here, the suit property admittedly forms part of an estate, as defined in Section 3 (2) of the Estate Land Act. Therefore, the said decision is not applicable to the facts of these cases.
(x) 1998 (III) MLJ 577 (Manakkan v. Veera Perumal). Basing reliance on this decision, learned AAG contended that the plaintiff should stand or fail on the strength of his own case and not relying on the alleged weakness of the defendant's case. In this case, the plaintiff is not relying on the weakness of the defendants' case, but the plaintiff has established his case based on the pleadings put forth by him and therefore the said decision is not applicable to the facts of these cases.
(xi) Learned AAG submitted that the word "Tharisu" found in Exs.A-1, A-2-series pattas, A-3 and A-4 will denote only the 'waste land' and not 'cultivable land'. But this court is unable to accept the said contention of the learned AAG. The word 'Tharisu' means 'fallow'. By no stretch of imagination, it can be said that it means 'waste land'.
(x) On the assumption that the plaintiff is not in possession of the suit property, a contention has been raised by learned AAG and Mr.R.Muthukumarasamy, learned senior counsel, that the suit without seeking recovery of possession is not maintainable. In support of the said contentions, the learned AAG relied on a decision of the Apex Court reported in 2008 (4) Supreme Court Cases 594 (ANATHULA SUDHAKAR v. P.BUCHI REDDY). But the said decision is not applicable tot he facts of these cases, since possession of the suit property has been found in favour of the plaintiff.
118. Learned AAG submitted that regarding the identification of the suit property apart from producing documents, which set out boundaries in vague manner, no acceptable evidence has been adduced by the plaintiff to identify and locate the suit property. He further submitted that even the reports of the Advocate Commissioner relied on by the plaintiff are not of any use in locating the property. He further submitted that the plaintiff has failed to identify the suit property and hence he is not entitled to a decree. In support of the said contention, he based reliance on AIR 2003 Madras 374 (John Sylem v. Chanthanamuthu Pillai and Ors.). But in the cases hand, the Commissioner has identified the property and though the Commissioner has found the extent of the suit property little more than 4.91 acres that will not affect the credibility of the Advocate Commissioner's report. Apart from the evidence of P.W.1, the evidence of P.W.2 is there, which clearly establishes the identity of the suit property. These aspects have been elaborately considered by the trial court, but those reasons have not been properly considered by the lower appellate court and the lower appellate court has not recorded acceptable reasons for reversing the finding of the trial court.
119. Mr.T.R.Mani, learned Senior Counsel for the appellant, basing reliance on a decision reported in AIR 1923 PC 217 = 82 IC 879 (referred to supra) contended that patta is granted by Zamindar as a title deed to the tenant. The said decision has been followed by this Court in the decision reported in AIR 1931 Madras 613 (referred to supra).
120. Learned AAG sought to contend that Ex.A-2 series pattas have not been issued in accordance with the provisions contained under Section 50 of the Estate Land Act, 1908 and it does not contain the details as required under Section 51 of the Act. He further contended that Ex.A-2 series pattas have not been issued by Zamindarini in accordance with Section 54 of the Estate Land Act, 1908 and the same have not been registered and signed by Karnam, as contemplated under Section 58 of The Estate Land Act, 1908 (Act 1 of 1908) and therefore contended that those documents have not been issued in in confirmity with the Act 1 of 1908 and therefore no evidentiary value could be placed on it. He also contended that no evidence is available on record to show that Thiru.Vijayaranga Mudaliar complied with Section 50(2) of The Estate Land Act, 1908 (Act 1 of 1908). He further contended that the lower appellate court has pointed out that the signature of Gnanambal, the Zamindarini of Pallapatti Village, contained in Ex.A-2 series pattas, varies with one another and therefore the lower appellate court has rightly disbelieved Ex.A-2 series. Countering the said submissions, Mr.T.R.Mani, learned Senior Counsel for the appellant, submitted that the Government authorities before whom Ex.A-2 series pattas had been produced did not dispute the genuineness of Ex.A-2-series, but the request for patta by the plaintiff before the authorities was rejected not on the ground that Ex.A-2 series pattas are not genuinene but on the ground that the character of the land is communal and not ryoti. He, by relying to Ex.A-33 submitted that in Ex.A-33 it has been mentioned that the claim of patta by the vendor of the plaintiff has already been considered on merits under Section 11 of the Act and rejected by the erstwhile Board of Revenue in its proceedings No.BP.999/1953, dated 20.07.1953 on the ground that the original character of the land is non-ryoti land (communal) and the assignment by Zamin is legally invalid. As far as the contention of the respondents that ExA2 series pattas have not been signed by the karnams concerned, learned Senior Counsel Mr.T.R.Mani placed reliance on Sections 50, 51 and 58 of the Estates Land Act and submitted that obtaining pattas is compulsory, but execution of muchalika is optional. He also relied upon two references in the Text Book on Madras Estates Land Act by Mr.P.Duraiswamy Iyenger at page 174, which read as follows :
'58. The Karnam of the village in which the holding is situated shall regularly sign and register puttahs and muchalkas in respect of the holding.
Meaning of the words : Karnam is the Village Accountant (See regulation XXIX of 1802). Holding, see Section 3(3).
Object of the Section: This section recognises the necessity for a proper registration of puttahs and muchalkas in the Zamindar's office or on behalf of the Zamindar in the Karnam's office. Though the duty of signing and registering puttahs and muchalkas has been imposed on the Karnam, no provision has been made for compelling such registration.
Puttahs are valid, even if not signed : The absence of the Karnam's signature in puttahs and muchalkas does not invalidate them; and a suit for rent may be maintained, founded on a muchalka not signed or registered by the Karnam.'
121. In the decision reported in the case of Venkatasubba Rao Vs. Sesha Reddy (reported in 4 Madras H.C.R.243), which is referred to by Mr.P.Duraiswamy Iyengar in the aforesaid passage, it has been laid down as follows :
'In this case, we understand the fact to be that the moochilka sued on was given in exchange for a puttah as required by Sections 3 and 4 of the Madras Act VIII of 1865. If that be so, we are of the opinion that the suit is maintainable under Section 7 of the Act. We think that Section 6 was intended to impose upon kurunams the duty of signing and registering, but no more. Had it been intended to be a condition of the right to sue, it would have been expressly so provided in Section 7, and a provision made for compelling registration.'
122. Placing reliance on the said decision, Mr.T.R.Mani, learned Senior Counsel submitted that the absence of Karnam's signature in the pattas does not invalidate them and even if the Karnam has not signed in the muchalikas, it does not invalidate the same and the suit for rent may be entertained even if muchalika is not registered nor signed by the Karnams. Learned Senior Counsel Mr.T.R.Mani further submitted that the same view has been expressed by Mr.Vedandhachari in the book on the Madras Estates Land Act. Learned Senior Counsel referred page 328 of that book wherein the following passage is found :
''58. The karnam of the village in which the holding is situated shall regularly sign and register pattas and muchilikas in respect of the holding.
Scope of the Section : This Section provides that pattas and muchlikas are to be signed and registered by the Karnam. There was a similar provision under Section 6 of the Rent Recovery Act, 8 of 1865, which provided 'patas and muchilikas shall be regularly signed and registered by the Karnam of the village in which the lands engaged for are situated.' It is not a condition precedent to the validity of a patta or muchilika that the same should be signed and registered by the Karnam. The omission of the Karnam to sign pattas and muchilikas does not invalidate pattas and muchilikas. This question arose in a case under Section 6 of the Rent Recovery Act (a). In this case, the muchilika sued on was given in exchange for a patta as required by Sections 3 and 4 of Madras Act VIII of 1865. The pattas and muchilikas were not signed by the Karnam. The objection was taken to the validity of the patta and muchilika. It was held that Section 6 was intended to impose upon Karnams the duty of signing and registering, but no more. Had it been intended to be a condition of the right to sue, it would have been expressly so provided.
123. The contention of the learned Senior Counsel Mr.T.R.Mani that the relevant section is only Section 51 of the Act and not Section 58 and that the Trial Court has correctly relied upon Section 51 whereas the Lower Appellate Court has committed an error in relying upon Section 58 of the Act and therefore, the findings of the Lower Appellate Court with regard to A2 series pattas cannot be sustained. The said contention of the learned Senior Counsel merits acceptance.
124. In the light of the aforesaid submissions made by the learned Senior Counsel for the appellant, Mr.T.R.Mani and in the light of the decision reported in 4 MHCR 243 (cited supra), the aforesaid contention of the learned Additional Advocate General and Mr.R.Muthukumarasamy, learned Senior Counsel cannot be sustained. Even assuming that ExA2 series pattas do not bear the signature of the Karnams concerned, the same will not invalidate the pattas. According to Mr.T.R.Mani, learned Senior Counsel for the appellant, it is clear that even in ExA33, the genuineness of the patta issued under ExA2 series by the Zamindarini to the said Mr.S.Vijayaranga Mudaliar was not doubted, therefore, submitted that the finding of the lower appellate court on ExA2 series is perverse and unsustainable. He further, by basing reliance on AIR 1923 PC 217 (referred to supra) submitted that where it is contended that an entry in the Records of Right is wrong, it lies on the party so contending to prove that it is wrong and not on the opposite party to prove that it is right. He further submitted that when the defendants questioned the genuineness of Ex.A-2 it is for them to prove that Ex.A-2 is not genuine by producing the zamin records. Similarly, Mr.T.R.Mani, learned Senior Counsel for the appellant, submitted that when the genuineness of Exs.A-3 and A-4 are challenged the same principle will apply and the defendants ought to have produced the original records available with them and disproved the same. This legal principle has not been kept in mind by the lower appellate court and has wrongly thrown the burden on the plaintiff as far as the proving of Ex.A-2 series pattas, Exs.A-3 and A-4 are concerned. Therefore, he submitted that the lower appellate court has committed an error of law in rejecting Ex.A-2-pattas' series, Exs.A-3 and A-4. Mr.T.R.Mani, learned Senior Counsel for the appellant, submitted that after the abolition of the estate the old zamin records are in the custody and control of State and inspite of notice to produce the relevant records, the same have been suppressed by the Government with ulterior motive and the explanation given is that the records are not available, which is obviously an attempt to evade liability and therefore necessary adverse inference has to be drawn against the defendants. Mr.T.R.Mani, learned Senior Counsel for the appellant, submitted that the same reasoning would apply to Ex.A-3 chitta and Ex.A-4-settlement register extract for Fasli 1359 as well. Mr.T.R.Mani, learned Senior Counsel for the appellant, rightly submitted that the attempt of the lower appellate court to reject the zamin pattas and records as though they were not genuine is erroneous, as the defendants had no such case at the time of trial or in the prior proceedings.
125. Mr.T.R.Mani, learned Senior Counsel for the appellant, further rightly submitted that Ex.A-2 series contains three genuine pattas issued in faslis 1350, 1352 and 1356 and the fourth in that series is a hand written copy of the patta issued for fasli 1356; the copy naturally would not contain the signatures of the landholder or the karnam, but the lower appellate court without even looking into this had discredited ExA2 series pattas on the ground that the signatures therein varied from the other signatures of the Zamindarini.
126. The three pattas contain the signature of Zamindarini Gnanambal. The original patta for Fasli 1356 as well as a hand written copy of the same have been filed. The hand written copy seems to have been filed due to an inadvertant mistake. In the hand written copy the name of the Zamindarini Gnanambal has been written, but the same appears to have been treated or taken as her signature by the lower appellate court and the same has been compared with the signatures of Gnanambal found in the pattas for Faslis 1350, 1352 and 1356 and this mistake on the part of the lower appellate court has mislead that Court to come to an erroneous conclusion that the signatures of Gnanambal found in Ex.A-2-series pattas varies with one another. A perusal of the same, by this Court does not reveal any variation in the signature of Gnanambal. Therefore, the finding to the contrary recorded by the lower appellate court is perverse and patently erroneous.
127. The reasons assigned by the defendants for non production of the original records as demanded by the notice issued by the plaintiff is that those documents are not available. Such a contention cannot be sustained in the light of what is stated by the Tahsildar, Salem, in Ex.B-71. In that, he has stated as follows:-
"... In this connection, I submit that the old records are not available in this office. The old zamin records are available with the Estate Manager, Salem, and the Assistant Settlement Officer, Dharapuram."
Therefore, in the light of the above, the contention of the Mr.T.R.Mani, learned Senior Counsel for the appellant that the defendants have burked the original zamin records has to be accepted. When the Tahsilar in his report to the Collector has stated that the old zamin records are available with the Estate Manager, Salem, and the Assistant Settlement Officer, Dharapuram, the defendants on receiving a notice to produce those documents from the plaintiff ought to have produced those documents to substantiate their contention that Ex.A-2 series pattas and Exs.A-3 and A-4 are not genuine. When the defendants have admittedly not produced those documents an adverse inference under Section 114 (g) of the Evidence Act ought to have been raised by the lower appellate court. But it has failed to do so, inspite of the fact that the trial court has rightly raised such an inference. In the decision reported in AIR 1964 SC 136 (referred to supra) a Full Bench of the Apex Court, in paragraph 20, has laid down as follows:-
"(20) Now coming to the documentary evidence, as we have already indicated, all the relevant documents admitted to have been in existence have not been placed before the Court and an adverse inference, has therefore, to be drawn against the appellant."
The said legal principle has failed to be kept in mind by the lower appellate court which has resulted in miscarriage of justice as the lower appellate court has wrongly thrown the burden on the plaintiff. Therefore, a substantial question of law arises for consideration in the appeals.
128. Learned AAG as well as Mr.R.Muthu Kumarasamy, learned senior counsel for the third respondent, submitted that the plaintiff has not produced the relevant adangal extracts to show that both Vijayaranga Mudaliar as well as the plaintiff were in possession of the suit property and were cultivating the same and it is not open to the plaintiff to contend that the defendants being the Government authorities and who are in possession of the originals of the adangals ought to have produced the same, the learned senior counsels submitted that the burden is on the plaintiff to prove his case. To rebut the aforesaid contention, Mr.T.R.Mani, learned Senior Counsel for the appellant, referred to a full bench decision of the Apex Court reported in AIR 1968 SC 1413 (referred to supra). In the said decision, the Apex Court, in paragraphs 5 and 6, has been laid down as follows:-
"5. ... We are unable to accept this argument as correct. Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, 44 Ind App 98 at p. 103 = (AIR 1917 PC 6 at p.8 ) Lord Shaw Observed as follows:-
A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in their Lordships' opinion an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition. This passage was cited with approval by this Court in a recent decision Biltu Ram v. Jainandan Prasad, Civil Appeal No.941 of 1965. D/- 15-4-1968 (SC). In that case, reliance was placed on behalf of the defendants upon the following passage from the decision of the Judicial Committee in Mt. Bilas Kunwar v. Desraj Ranjit Singh, 42 Ind App 202 at p. 206 = (AIR 1915 PC 96 at p.98) :
But it is open to a litigant to refrain from producing any documents that he considers irrelevant; if the other litigant is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he fails to to do neither he nor the Court at this suggestion is entitled to draw any inference as to the contents of any such documents.
6. But Shah, J., speaking for the Court, stated :
The observations of the Judicial Committee do not support the proposition that unless a party is called upon, expressly to make an affidavit of documents and inspection and production of documents is demanded, the Court cannot raise an adverse inference against a party withholding evidence in his possession. Such a rule is inconsistent with illustration (g) of S. 114 of the Evidence Act, and also an impressive body of authority."
129. Thus the settled position of law is that even the burden of proof does not lie on a party, the Court may draw an adverse inference, if he withholds important documents in his possession which can throw light on the facts at issues. It has to be pointed out that it is not the case of the defendants that the originals of the zamin records as well as the adangal extracts for the period from 1950 are not available with them. Therefore, when the defendants, who are the Government authorities have withheld important documents in their possession. which can throw light on the facts at issue, an adverse inference ought to have been drawn under Section 114 (g) of the Evidence Act, as is laid down in AIR 1968 Supreme Court 1413 (referred to supra). The contrary view taken by the lower appellate court and the reasonings assigned by it for not drawing the adverse inference against the defendants cannot be sustained.
130. For the aforesaid reasons, this Court is of the considered view that the findings recorded by the trial court on Ex.A-2-series pattas and Exs.A-3 and A-4 are supported by acceptable reasons, whereas, the reversal of that findings by the lower appellate court cannot be sustained, as the reasons assinged by the lower appellate court are not sound and not in accordance with the said principles of law, as is pointed out above. Therefore, the judgment of the lower appellate court warrants interference by this Court.
131. As rightly contended by Mr.T.R.Mani, learned Senior Counsel for the appellant, in the light of Ex.A-2-series pattas, Exs.A-3, A-4 and A-1, the plaintiff's possession of the suit land derived from the vendor cannot be doubted or disputed. However, the lower appellate court relied upon Exs.B-12 to B-41-adangal extracts for the period 1968 to 1999 to hold that Kist have not been paid for the land in question. In this context, it is pertinent to point out that the said adangal extracts themselves would show that Survey No.163 was registered as eri poramboke and therefore Kists could not be levied or collected for the said survey number. Further, Exs.B-29 to B-41 were after the suit and therefore those documents would not be admissible. In support of the said contention, Mr.T.R.Mani, learned Senior Counsel for the appellant, relied upon a decision of the Apex Court reported in AIR 1983 SUPREME COURT 684 (referred to supra), wherein it is laid down as follows:-
It is equally well settled that declarations or statements made post litem motam would not be admissible because in cases made ante litem motam, the element of bias and concoction is eliminated. Before, however, the statements of the nature being ante litem motam they must be not only before the actual existence of any controversy but they should be made even before the commencement of legal proceedings.
132. In the light of the law laid down by the Apex Court reported in AIR 1983 SUPREME COURT 684 (referred to supra) the documents which have come into existence after the existence of controversy ought not to have been admitted in evidence. In these cases, even according to the defendants, Vijayaranga Mudaliar, is said to have applied for issue of ryotwari patta under Section 11 of the Act 26 of 1948 and the same was rejected by the erstwhile Board of Revenue, by its order dated 20.7.1953 in BP.999/1953. Subsequently, the plaintiff, as a purchaser from Vijayaranga Mudaliar, had applied for ryotwari patta and thus it is clear that the controversy as to whether Vijayaranga Mudaliar or the plaintiff are entitled to ryotwari patta on the basis of Ex.A-2 series pattas, Exs.A-3, A-4 and Ex.A-1-sale deed had come into existence even before 1953 and therefore all the documents, proceedings which have come into existence after 1953, which are sought to be relied upon by the defendants, ought not to have been admitted in evidence, as per the above said decision. Therefore, the lower appellate court erred in placing reliance upon Exs.B-12 to B-41 adangal extracts and other exhibits which have come into existence after 1953.
133. As rightly contended by Mr.T.R.Mani, learned Senior Counsel for the appellant, the adangal extracts for the earlier faslis between 1951 and 1967 have been purposely suppressed; had the same been produced they would have shown that Vijayaranga Mudaliar was in possession and was cultivating the lands. In ExA2 series, the suit property has been described as 'chinna eri karaioram tharisu and karaimedu tharisu'. But, these expressions have not been properly construed by the Lower Appellate Court. The contention of the defendants that the aforesaid expressions would show that the said property is within the water spread area of the tank cannot be countenanced. As rightly contended by the learned senior counsel, the Lower Appellate Court has committed a serious error in incorrectly holding that the suit property is part of eri. Further, since ExA2 series were marked without objection through PW1 and the same have also been mentioned in ExA1 sale deed and in the suit notice-Ex.A-7, it cannot now be contended that ExA2 series are not genuine, that too without any proper pleadings. It was strenuously contended by the learned Additional Advocate General as well as Mr.R.Muthukumarasamy, learned Senior Counsel that by producing ExA5, the plaintiff himself has admitted that the extent of achuvaneri is 24.62 acres and the suit property forms part of achuvaneri.
134. Countering the said submission, Mr.T.R.Mani, learned Senior Counsel submitted that PW1 has stated that ExA5 was given to him by the said Mr.S.Vijayaranga Mudaliar at the time when the sale deed was executed in his favour in 1952. But, actually, that document itself will show that it could not have been given to him on that date, because the survey number is mentioned as 163, which came into existence only in 1963, but the document was executed in 1952 and therefore, though PW1 has stated that the document was given by the said Mr.S.Vijayaranga Mudaliar in 1952, it could not have been given by him and the said statement is a wrong statement. When the established facts show that this statement of PW1 is wrong, it cannot be contended by the defendants that the plaintiff has admitted by producing ExA5 that the extent of achuvaneri is only 24.62 acres.
135. In this context, it is pertinent to point out that ExA5 is a field map of the Revenue Department pertaining to S.No.163 and to describe the suit property and to point out its location, the map has been used by the plaintiff and the suit property has been separately shown by marking it in a shaded colour and by showing the extent of the suit property as 4.91 acres. Simply because the field map has been used by the plaintiff to describe the suit property, it does not mean that the plaintiff has admitted that the suit property forms part of achuvaneri or that the extent of achuvaneri is 24.62 acres. Therefore, this Court is unable to accept the contentions of the learned Additional Advocate General and Mr.R.Muthukumarasamy, learned Senior Counsel.
136. Ex.A-3 chitta extract for fasli 1359 has been marked as Ex.A-8 before the Estate Manager and the same affirms the genuineness of ExA2 series. In ExA3 also, the suit property has been described as 'chinna eri karaioram tharisu and karaimedu tharisu'. ExA4 settlement register extract for fasli 1359 (1948-1949) mentions patta No.200 and the pattadar's name has been given as Salem Mr.S.Vijayaranga Mudaliar and the extent of the land is shown as 4.91 acres and the kist is mentioned as 11-3-0. The said documents show that the suit property was in possession and enjoyment of the said Mr.Vijayaranga Mudaliar till his sale in favour of the plaintiff under ExA1. On the other hand, the defendants challenged the genuineness of Exs.A-3 and A-4. But, as pointed out above, the burden is on them to show that Exs.A-3 and A-4 are not genuine and that could have been done by producing the originals of the said documents, which were admittedly available with the defendants, as pointed out above. The non production of the originals of Exs.A-3 and A-4 will definitely lead to raising of an adverse inference under Section 114 (g) of the Evidence Act, but instead the lower appellate court has, for reasons recorded in its judgment, had disbelieved Exs.A-3 and A-4 without drawing an adverse inference under Section 114 (g) of the Evidence Act against the defendnats as pointed out above and therefore this Court is of the considered view that the lower appellate court has committed a serious error of law.
137. Mr.T.R.Mani, learned Senior Counsel, by referring to Section 3(d) of the Act 26 of 1948, submitted that the proviso to Section 3(d) of the Act reads as follows :
'The Government may, after removing any obstruction that may be offered forthwith take possession of the estate, and all accounts, registers, pattas, muchilikas, maps, plans and other documents relating to the estate which the Government may require for the administration thereof :
Provided that the Government shall not dispossess any person of any land in the estate in respect of which they consider that he is prima facie entitled to a ryotwari patta-
(i) if such person is a ryot, pending the decision of the Settlement Officer as to whether he is actually entitled to such patta;
(ii) if such person is a landholder, pending the decision of the Settlement Officer and the Tribunal on appeal, if any, to it as to whether he is actually entitled to such patta.' Learned Senior Counsel further submitted that as per Section 64 of the Act, the rights of the owner or occupier are not to be affected by temporary discontinuance of possession or occupation, as the plaintiff is a transferee from the said Mr.S.Vijayaranga Mudaliar and has got all the rights against the Government. Therefore, according to learned Senior counsel, the claim of the defendants that they had taken possession of the suit property cannot be sustained. Learned Senior Counsel further submitted that in view of the aforesaid provision, the finding of the Lower Appellate Court that on coming into force of the Act, the plaintiff is dispossessed is erroneous and totally perverse. The aforesaid contention of the learned senior counsel merits acceptance.
138. As rightly contended by Mr.T.R.Mani, learned Senior Counsel for the appellant, in Ex.B-63 G.O.No.502 CT & RE dated 09.05.1984, a tank has been mentioned as 'Chinna eri' called as 'achuvaneri'. But, according to the learned senior counsel, 'chinna eri' and 'achuvaneri' are different. In paragraph 4, it has been further observed that during the settlement, the tank has been classified as eri poramboke though patta No.200 has been issued to the plaintiff. In that Government Order, it has been observed that since it was an eri, the same has been classified as eri poramboke during the settlement. Learned Senior Counsel further submitted that the issue of patta by the Zamindarini had been admitted in ExB63 and therefore, the defendants cannot now seek to contend that ExA2 series pattas are bogus or not genuine. The aforesaid contention of the learned senior counsel merits acceptance.
139. As rightly contended by Mr.T.R.Mani, learned Senior Counsel for the appellant, as per Section 9(2) of the Tamilnadu Survey and Boundaries Act (Act 18 of 1923), notice to the registered holders at that time should be issued before undertaking the survey. But, no notice was issued either to the said Mr.S.Vijayaranga Mudaliar or to the plaintiff. From Ex.B-76 series, there is no proof that the plaintiff was served with the notice. But even the notice to the Zamindar has been received only by the Estate Manager. By placing reliance on Chain Survey and Land Records Manual Part II (page 14 paragraphs 5 and 19), learned Senior Counsel for the appellant submitted that the limit of error is only 5%; for every 100 meters, the permitted error is 2 meter ie. 2%. But, in this case, admittedly, the extent of achuvaneri is originally 15 acres. But after resurvey and settlement, the extent of achuvaneri is shown as 24.62 acres and therefore submitted that this is impermissible as per the Chain Survey and Land Records Manual, since the error is nearly about 75%. Learned Senior Counsel submitted that when it is established that no notice was served on the ryot while undertaking the resurvey and when the error itself is about 75%, it is for the defendants to explain as to how 15 acres became 24.62 acres. But, the defendants miserably failed to either plead or prove by acceptable evidence as to how the original extent of 15 acres of achuvaneri became 24.62 acres. Mr.T.R.Mani, learned Counsel submitted that the three witnesses examined on the side of the defendants have no personal knowledge about the facts of the case, since they have been examined several years after the re-survey and settlement. Learned Senior Counsel referred to the evidence of DW1 and pointed out that DW1, in his cross examination, has admitted that after re-survey, the eri has become 24.62 acres and he has admitted that he does not know anything about the property in question. He has admitted in his cross examination that paimash number need not necessarily be given in the pattas and the name of the land may also be given. DW1 has also admitted that the Zamin records are Government records. Therefore, learned Senior Counsel submitted that ExA2 series pattas issued by the Zamindarini are Government records. DW1 has also admitted that he does not know whether the notice was given to ryot or not before re-survey. Learned Senior Counsel pointed out that DW2 has admitted that the survey was completed in 1963, but he was examined only in 1983 and he has no personal knowledge about the survey at all. In the light of the aforesaid facts, the contention of the learned counsel for the appellant that the classification of the suit property as eri poramboke is erroneous merits acceptance. In this context, it is pertinent to point out that when admittedly ExB2 shows that the extent of achuvaneri was 15 acres as per the revenue records before resurvey, the burden lies heavily on the defendants to show as to how the extent of achuvaneri became 24.62 acres. But, the defendants have not discharged that burden.
140. It is pertinent to point out that in Ex.A-33 it is stated that since the land for which patta has been sought for by Vijayaranga Mudaliar had been classified as communal land, his request had been rejected in 1953. As is seen from Ex.B-2, before the resurvey and settlement, as per the Revenue Records, the extent of achuvaneri was only 15.00 acres and not 24.62 acres, only after the resurvey and settlement, the total extent of achuvaneri has been shown as 24.62 acres. Therefore, the said observation contained in Ex.A-33 that the land was communal land would not be correct. It is also pertinent to point out that in paragraph 8 of the written statement filed by the first defendant in O.S.No.342 of 1996 it is stated as follows:-
In nature and character from 1962, the land bearing S.F.No.163 is classified as eri poramboke and the total extent of achuvana eri is 24.62 acres including the suit property of an extent of 4.91 acres. Thus, even according to the first defendant, only from 1962, the nature and character of the land bearing Survey No.163 is classified as eri poramboke and the total extent of 24.62 acres includes the suit property. Therefore what is contained in Ex.A-33 would not be true. Nothing prevented the defendants from producing the order of the Board of Revenue, dated 20.7.1953 in BP.999/1953 rejecting the request of the Vijayaranga Mudaliar for ryotwari patta and in the absence of that the ground for rejection cannot be presumed.
141. The contention of the learned AAG that Ex.A-23 is a truncated document and has been created for the purpose of the case and therefore no reliance can be placed on it cannot be sustained, since, admittedly, Ex.A-23 is a part of Ex.B-2 and Ex.B-2 has been produced by the defendants. Even if Ex.A-23 is discarded as contended by the learned AAG, Ex.B-2 can be relied upon, as has been rightly done by the trial court. A perusal of Ex.B-2 shows that the original extent of achuvaneri was only 15.00 acres and the extent has been shown as 24.62 acres, only after the resurvey and settlement. The contention of the plaintiff is that in the resurvey and settlement, the plaintiff land measuring 4.91 acres have been wrongly included in the extent of achuvaneri without any notice to him. As pointed out above, no notice whatsoever has been served on the plaintiff during the resurvey and therefore the inclusion of the suit property of the plaintiff in the extent of achuvaneri can be questioned by the plaintiff.
142. As far as the possession of the suit property is concerned, as has been pointed out above, the contention of the learned AAG that on the coming into force of the Act 26 of 1948 the title as well as the possession of the Estate vest with the Government cannot be countenanced in the light of the decision reported in 1969 (II) MLJ 281 (referred to supra).
143. In this context, it is pertinent to point out that there is absolutely no evidence on the side of the defendants as to when Vijayaranga Mudaliar or the plaintiff were dispossessed. No witness has been examined on the side of the defendants regarding taking over of possession from Vijayaranga Mudaliar or the plaintiff. When it is the case of the defendants that they have taken over possession and the plaintiff has been dispossessed, the burden is on them to show as to when possession was taken. As per the GOs passed by the Government, achuvaneri measuring an extent of 24.62 acres has been handed over to Salem Municipal Corporation and later to Anna Transport Corporation. The relevant GOs does not show the date on which the physical possession of the entire extent of 24.62 acres was handed over either to Salem Municipal Corporation or to the Anna Transport Corporation. Admittedly, various proceedings before the Revenue Authorities and civil litigations were pending between the parties. Interim orders have been passed by the Revenue Authorities as well as by the High Court in various proceedings as is enumerated in the submissions made by Mr.T.R.Mani, learned Senior Counsel as well as Mr.P.Wilson, learned AAG and Mr.R.Muthukumarasamy, learned senior counsel.
144. As rightly pointed out by the trial court, interim injunction has been granted in O.S.No.34 of 1985 and subsequently the same had been made absolute. During the pendency of the first appeals before the lower appellate court, though stay had been granted, it is not the case of the defendants that pending the first appeal, the plaintiff was dispossessed. Admittedly, during the pendency of the second appeals, injunction has been granted in favour of the appellant and therefore there is no force in the contention of the learned AAG that the plaintiff was never in possession of the suit property.
145. In this context, it is relevant to point out that a perusal of Ex.B-1 shows that only an extent of 19.62 acres was handed over to Anna Transport Corporation out of the extent of 24.62 acres. When, according to the defendants, the entire extent of 24.62 acres had been given to Salem Municipal Corporation and thereafter to Anna Transport Corporation it is not explained as to why only 19.62 acres alone has been given to Anna Transport Corporation. It could be very well inferred from Ex.B-1 that since the first defendant was not in possession of the entire extent of 24.62 acres, but only in possession of 19.62 acres, the same had been handed over to Anna Transport Corporation, the remaining five acres would represent, in the considered view of this court, the suit property, which measures 4.91 acres. Therefore, Ex.B-1 is a vital document, which will go to show that the plaintiff was in possession of 4.91 acres. This document Ex.B-1 has not been properly considered by the lower appellate court which has resulted in recording incorrect finding regarding possession. The lower appellate court has placed reliance on Ex.B-4 dated 23.01.1995. Ex.B-4 is the copy of the statement said to have been given by the plaintiff before the Tahsildar, Salem. In Ex.B-4, it is stated as follows:-
VERNACULAR (TAMIL) PORTION DELETED But it has not been explained as to why the original of Ex.B-4 has not been produced. Further, it is pertinent to point out that Ex.B-4 has not been shown to P.W.1 / the plaintiff and he had not been cross-examined on the contents of Ex.B-4 and therefore there was no opportunity for P.W.1 / the plaintiff to explain the circumstances under which the statement was given by him or whether he really gave such a statement, etc., and therefore the lower appellate court erred in basing reliance on Ex.B-4 to come to the conclusion that the plaintiff had lost possession of the suit properties.
146. As has been rightly pointed out by Mr.T.R.Mani, learned Senior Counsel for the appellant, Exs.C-1 to C-3 report and plan of the Advocate Commissioner, who was appointed at the instance of the defendants, points out the existence of various physical features as mentioned in the plaints. The existence of Well, borewell, concrete tank, hut etc., supports the case of the plaintiff.
147. The case of the defendants, as contended by the learned AAG, is that number of persons had encroached into achuvaneri and put up huts and Panchayat had dug up the Well. There is absolutely no evidence on record to show that the Well or Borewell was dug by the Panchayat. Though in Ex.B-28, the removal of encroachers from Chinnaeri is mentioned and in Ex.B-28 it is mentioned as if the entire extent of 24.62 acres was handed over to Anna Transport Corporation, the same could not be correct, in the light of Ex.B-1. The contents of Ex.B-28, which is contrary to Ex.B-1, makes this court to doubt about the genuineness of Ex.B-28.
148. Further, the defendants relied upon Ex.B-43 to show that number of encroachers were evicted from the suit property, but a perusal of the document shows that the encroachers were removed from achuvaneri. Achuvaneri, even according to the defendants, was originally of an extent of 15.00 acres and subsequently after resurvey and settlement its extent is 24.62 acres. From this document, this Court cannot infer from which part of achuvaneri, the encroachers were removed. It is not mentioned in the document that the encroachers were removed from the suit property and therefore the contention of the learned AAG that several persons had encroached into the suit property and such encroachers were evicted from the suit property and possession was taken, cannot be countenanced. Similarly the reliance placed by the lower appellate court on Ex.B-65 is also erroneous. The contents of Ex.B-65 are contrary to Ex.B-1. Ex.B-65 is dated 28.02.1992. In Ex.B-1 it is stated that as on the date, the entire extent of 24.62 acres in Survey No.163 of Pallapatti Village is under the control of Salem Municipality, which is contrary to Ex.B-1. Since in Ex.B-1, only 19.62 acres was ear-marked for construction of a bus-stand at achuvaneri and for construction of bus-depot, the contents of Ex.B-65 are contrary to Ex.B-1.
149. In this context, it is pertinent to point out that the trial court has considered the relevant evidence on record and has rightly held that the plaintiff continues to be in possession of the suit property and he was never dispossessed. Further, it has to be pointed out that admittedly the suit property remained uncultivated for some number of years, after the issue of various Government Orders by the Government and garbage was being dumped and the land was found to be uncultivated by the Advocate Commissioner and therefore it is clear that the land is vacant. In such circumstances, when title has been found in favour of the plaintiff / appellant possession will follow title. This legal principle has not been applied by the lower appellate court and therefore the finding of the lower appellate court that the plaintiff / appellant was not in possession of the suit property is erroneous and the same has to be set-aside and accordingly, set-aside.
150. As far as the question of limitation is concerned, the contention of the learned AAG as well as Mr.R.Muthukumarasamy, learned senior counsel, submitted that limitation should be calculated from the date of passing of various Government Orders rejecting the request for ryotwari patta by Vijayaranga Mudaliar and the plaintiff. But this Court is unable to accept the said contention of the learned senior counsels. In the suits, the rejection of ryotwari patta is not in question, but the suits have been field to establish the title of the plaintiff. Once title is found in favour of the plaintiff, then, automatically ryotwari patta has to be granted to him. As has been laid down in (2000 (I) LW 154) (referred to supra) mere classification of particular land in the revenue records is not, by itself, conclusive. Therefore, the contention of Mr.R.Muthukumarasamy, learned senior counsel, that since the suit property has been classified as eri poramboke long back, the suit filed in the year 1985 for declaration of title is barred by limitation, cannot be countenanced.
151. Now that possession has been found in favour of the plaintiff and there is absolutely no evidence to show that he was dispossessed and the suit has been filed since there was an imminent threat to the possession of the plaintiff, as the defendants attempted to take possession, the suits came to be filed. Therefore, the suit is well within time. It cannot be said that it is barred by limitation. If there is material to show that the plaintiff was dispossessed and he was out of possession for twelve years and the suit has been filed after twelve years, then it can be said that the suit has been filed beyond the period of limitation prescribed, but that is not the case of the defendants here and therefore the finding of the lower appellate court that the suit is barred by limitation cannot be sustained. Since, as pointed out above, no notice whatsoever has been served on the plaintiff when the resurvey was undertaken under the Tamil Nadu Surveys and Boundaries Act, the question of limitation under Section 14 will not arise and therefore the finding to the contrary recorded by the lower appellate court is unsustainable.
152. As far as the pleas based on Order II Rule 2 CPC and Order IX Rule 9 CPC are concerned, the same were not admittedly raised in the pleadings and therefore no issue was framed by the trial court on that, but, yet, the lower appellate court has chosen to frame points for consideration on these issues. In the decision reported in 1999 (6) SCC 40 (referred to supra) it has been held that a plea of bar under Order II Rule 2 of the Civil Procedure Code must be specifically raised and proved and before the second suit of the plaintiff is held to be barred by the present rule, it must be shown that the second suit is based on the same cause of action, on which, the earlier suit was based and in that suit, the plaintiff had not claimed certain reliefs available to him without the leave of the Court. The plea of bar of subsequent suit should be expressly raised by the defendants in the written statement and brought on record the relevant materials. If no such plea is raised by him, it is not open to the Court to take suo motu cognizance on the basis of assertion of fact on record. In the decision rendered in 1999 (6) SCC 40 (cited supra), the plea that the subsequent suit was barred by Order II Rule 2 of the Civil Procedure Code was not raised either in the written statement or in the memorandum of appeal by the tenant or in the review petition. Certain assertions, however, were made to the effect that the earlier suit was also instituted on the ground of default. The Supreme Court held that such plea was not expressly raised and could not have been allowed by the Court below. The Apex Court further held that the plea that the suit is barred is a mixed question of fact and law and such a plea has to be raised before the Trial Court and cannot be permitted to be raised in appeal. Therefore, Mr.T.R.Mani, learned Senior Counsel submitted that the Lower Appellate Court erred in framing such point for determination and the finding recorded by the Lower Appellate Court on this issue is liable to be set aside. The said contention of Mr.T.R.Mani, learned Senior Counsel for the appellant, merits acceptance and the finding of the lower appellate court in this regard has to be set-aside and accordingly set-aside.
153. As far as the finding of the lower appellate court that the suit is barred under Order IX Rule 9 CPC as the first suit O.S.No.34 of 1985 had been dismissed for default and when the second suit was filed, the first suit had not been restored to file is concerned, it has to be pointed out that admittedly the plaintiff had filed an application to restore the suit O.S.No.34 of 1985 and ultimately, the said application was allowed and the suit was restored to file. Once the suit is restored, it will relate back to the date of filing of the suit and therefore the finding of the lower appellate court that the bar under Order IX Rule 9 CPC will apply cannot be sustained and therefore the said finding is set-aside.
154. As far as the contention of the respondents that the suit property has not been identified is concerned, Mr.T.R.Mani, learned Senior Counsel submitted that the evidence of PW1 is supported by the evidence of DW3 himself and further corroborated by the Commissioner's report and plans. Learned Senior Counsel submitted that no objection whatsoever has been filed by the defendants to the Commissioner's report whereas the plaintiff filed his objections. As far as contention of the learned counsel for the respondents that the boundary recitals in Ex.B-58 sale deed itself would disprove the claim of the plaintiff that the suit property lies on the east of eri abutting the tank bund is concerned, Mr.T.R.Mani, learned Senior Counsel submitted that ExB58 is not a document inter partes and the same has been marked through the revenue officials and the parties to the document have not been examined and the document has not been proved. He further submitted that mere marking is not sufficient. In support of the said contention, learned Senior Counsel placed reliance on the decision in the case of Sait Tarajee Khimchand Vs Yelamarti Satyam (reported in (1972) 4 SCC 562). The aforesaid submissions of Mr.T.R.Mani, learned Senior Counsel for the appellant, merits acceptance. Therefore, the lower appellate court has erred in placing reliance on Ex.B-58-sale deed for coming to the conclusion that the boundaries recited in Ex.A-1-sale deed have not been established and Ex.B-58 will fasify the case of the plaintiff.
155. As far as the finding recorded by the lower appellate court that the plaintiff is not entitled to get the reliefs on the ground that he played fraud on the court by indulging in vexatious proceedings and re-litigation is concerned, it has to be pointed out that there is absolutely no pleading in the written statements of the defendants regarding re-litigation, multifariousness and fraud. Further, it has to be pointed out that the plaintiff had been approaching various Revenue Authorities for the issue of Ryotwari Patta both under the Act as well as outside the Act. When the request for issue of Ryotwari Patta had been rejected, the plaintiff had to challenge those orders before the High Court and that was the reason why he had filed various writ petitions as enumerated both by Mr.T.R.Mani, learned Senior Counsel for the appellant, and Mr.P.Wilson, learned Additional Advocate General. Therefore, the filing of various writ petitions by the plaintiff before the High Court will not amount to re-litigation or multifariousness. It has also to be pointed out that the writ petitions have been mentioned in the plaints and therefore it cannot be said that the plaintiff had committed fraud on the court. In the absence of pleadings there was no issue to be the tried and therefore the trial court had not framed any such issue, the lower appellate court has erroneously framed such a point for determination and has recorded an erroneous finding, which in the considered view of this Court, cannot be sustained.
156. As far as the issue on adverse possession is concerned, Mr.T.R.Mani, learned Senior Counsel for the appellant, had not pressed the same. Therefore, the contentions put forth by the learned AAG are not referred to.
157. As rightly contended by Mr.T.R.Mani, learned Senior Counsel for the appellant, the lower appellate court has attached much relevance on the evidence of D.Ws.1 to 3 who are admittedly had no personal knowledge about the facts of these cases. It is admitted by D.Ws.1 to 3 that they had no personal knowledge about the survey and settlement proceedings or about the taking over of physical possession of the lands in the estate and therefore their evidence does not deserve much importance.
158. In the decision reported in 2008 (8) SCC 92 (SBI v. S.N.GOYAL), which is relied upon by Mr.T.R.Mani, learned Senior Counsel for the appellant, the Apex Court has laid down as to what is the substantial question of law, in paragraph 13 of the decision, which reads as follows:-
"13. Second appeals would lie in cases which involve substantial questions of law. The word "substantial" prefixed to "question of law" does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. "Substantial question of law" means not only substantial question of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of Section 100 CPC, any question of law which affects the final decision in a case is a substantial question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by this Court (or by the High Court concerned so far as the State is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law by this Court (or by the High Court concerned), but the lower court had ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by this Court (or the High Court concerned) would have led to a different decision, the appeal would involve a substantial question of law as between the parties. Even where there is an enunciation of law by this Court (or the High Court concerned) and the same has been followed by the lower court, if the appellant is able to persuade the High Court that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two view points, it can be said that a substantial question of law arises for consideration. There cannot, therefore, be a straightjacket definition as to when a substantial question of law arises in a case. Be that as it may."
If in the light of the aforesaid law laid down by the Apex Court in these cases, as discussed above, there is a clear enunciation of law by the Supreme Court as well as by this Court, namely, AIR 1923 PC 217 (referred to supra), AIR 1931 Madras 613 (referred to supra), AIR 1964 SC 136 (referred to supra) and AIR 1968 SC 1413 (referred to supra). The lower appellate court had misinterpreted or misapplied the same and the correct application of the law as declared or enunciated by the Supreme Court as well as this Court would have led to a different decision and therefore these appeals would involve the substantial question of law as between the parties. In the said decision, it has been laid down that the substantial question of law means not only 'substantial question of law of general importance' but also 'substantial question of law arising in a case as between the parties'. By misapplying the decisions, which have no relevance to the facts of these cases and by misinterpreting the decisions which have got a direct bearing on the facts of these cases, the lower appellate court has recorded incorrect findings and therefore this Court is entitled to interfere with the erroneous and perverse findings of the lower appellate court.
159. As has been discussed in this judgment, the lower appellate court has admitted inadmissible evidence and the same was relied upon and if such evidence has been omitted it would have led to a different conclusion. The lower appellate court has relied upon Ex.B-58 without proper proof and in the absence of the parties to Ex.B-58 being examined as witness and basing reliance on Ex.B-58, the lower appellate court has held that the boundary description of the suit property is falsified by the boundaries recitals contained in Ex.B-58 and therefore this Court is entitled to invoke Section 100 of the Code of Civil Procedure and interfere with the judgment of the lower appellate court.
160. As far as the additional substantial question of law (a) is concerned, it has to be answered in favour of the appellant for the following reasons :
Admittedly, Ex.B-2 pertains to an earlier Fasli. A perusal of Ex.B-2 shows that it is a copy of the SLR and in that the extent of S.F.No.163 Paimash No.779, Achuvaneri is shown to be an extent of 15.00 acres as per Revenue Account pertaining to Fasli 13 (Fasli 13 may not be correct). But the same has come into existence admittedly before the resettlement and resurvey. But the lower appellate court has not given due importance to Ex.B-2 only basing reliance on Exs.B-6 and B-11 which have come into existence after resettlement and resurvey i.e., on 25.05.1961. Based on Exs.B-6 and B-11, the lower appellate court has come to the conclusion that the extent of achuvaneri is larger than the extent mentioned in Exs.B-2 and B-71 that too in the absence of proper pleadings and proof.
161. It is sought to be contended by the learned Additional Advocate General as well as by Mr.R.Muthukumarasamy, learned Senior Counsel that since the plaintiff had requested for patta outside the Abolition Act before the Revenue Authorities and lost before them, the plaintiff is estopped from claiming title based on Exs.A-1 and A-2. As discussed above on coming into force of Act 26 of 1948 it is clear from the provisions of the Act 26 of 1948 that what really vests in the Government in respect of a ryoti or private land is merely title and there is no vesting of possession, which is protected under the proviso to Section 3(d) of the Act. Vesting of title is also subject to the pre-existing right of the ryots or land holders and therefore by simply asking for a patta outside the scope of the Act and such a request of the plaintiff had been rejected, it cannot be said that the plaintiff is estopped from claiming title based on Exs.A2 and A1.
162. For the foregoing reasons all the substantial questions of law are found in favour of the plaintiff / appellant and against the defendants / respondents and accordingly the above Second Appeals are allowed. However, there will be no order as to costs.
163. As far as the Contempt Petition is concerned, Mr.T.R.Mani, learned Senior Counsel for the appellant, had not advanced any submissions and has not seriously pressed the same. Now that, this Court has found possession in favour of the plaintiff and the trial court has also found that the defendants had not violated the order of interim injunction. Therefore, this Court is of the view that no case for contempt is made out. Hence, the above Contempt Petition stands closed.
Rs / srk To
1. The Chief Secretary, State of Tamilnadu rep.by Fort.St.George, Chennai-9.
2.The District Collector, Salem.
3. The Managing Director, M/s.Anna Transport Corporation Salem