Madras High Court
Smt. Annammal vs Mr.Ammavasai on 25 October, 2010
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.10.2010 CORAM THE HONOURABLE MS. JUSTICE R.MALA Second Appeal No.1505 of 2003 Smt. Annammal .. Appellant ..vs.. 1.Mr.Ammavasai 2.Mannadhan .. Respondents Second Appeal is filed under Section 100 of Code of Civil Procedure Code, against the judgment and decree dated 06.03.2003 made in A.S.No.41 of 2002 on the file of the Additional District Judge, Fast Track Court No.IV, Poonamallee, reversing the Judgment and Decree dated 14.02.2001 made in O.S.No.1842 of 1993 on the file of the District Munsif Court, Poonamallee. For Appellant : Mr.C.Selvaraju, Senior Counsel for Mr.M.V.Muralidaran For Respondents : Mr.M.Chidambaram for RR1 and 2 JUDGMENT
This appeal is filed against the Judgment and decree dated 06.03.2003 made in A.S.No.41 of 2002 on the file of the Additional District Judge, Fast Track Court No.IV, Poonamallee, reversing the Judgment and Decree dated 14.02.2001 made in O.S.No.1842 of 1993 on the file of the District Munsif Court, Poonamallee.
2. The averments made in the plaint are as follows:-
The plaintiffs are sisters. The plaintiffs purchased the property on 29.02.1984 from one Egavalli under the registered sale deed. From the date of purchase, they are in peaceful possession and enjoyment of the same by putting up house. Electricity service connection given to the house and the service connection number is 166:50:182 on 18.08.1989, property was assessed to tax, family card also issued. The defendants are northern boundary neighbours. The defendants have no right, title or interest in the suit property. They want to grab the property, they attempted to trespass into the suit property, which was prevented. Since they attempted interference in their possession, the plaintiffs were constrained to file the suit for injunction.
3. Written statement filed by the defendants is as follows:-
The sale deed executed in favour of the plaintiffs by one Egavalli is no way connected with the properties possessed and enjoyed by the defendant. The said Egavalli is not a bonafide vendor to execute sale deed in favour of the plaintiffs. She never be in possession and enjoyment of the same. The plaintiffs were not in possession and enjoyment of the suit property. The documents filed by them i.e. Electricity consumption card, family card, house tax are not related to the suit property. No cause of action for filing the suit. Plaintiffs are attempting to usurp the properties in their possession through unlawful means and ways and on the basis of a fraudulent sale deed executed by one Egavalli with hand-in gloves with the plaintiffs. The defendants are living within the boundaries of the house site plot No.12 assigned by the Revenue authorities in favour of the defendants. Hence prayed for dismissal of the suit.
4. The Trial Court after considering the averments both in the plaint and written statement, have framed necessary issues and considering the oral and documentary evidence and decreed the suit. Against the decree and Judgment of trial Court, the defendant as the appellant preferred an appeal, which was allowed and setting aside the decree and judgment passed by the trial Court. Against the decree and Judgment passed by the first appellate Court, the present second appeal has been preferred by the 2nd plaintiff as the appellant.
5. At the time of admission, the following substantial question of law was framed for consideration:
"Whether the finding of the lower appellate Court that the plaintiffs are not entitled to have the injunction against the defendants in substantial in law?"
6.The learned counsel appearing for the appellant/2nd plaintiff would submit that she filed a suit for bare injunction on the basis of the sale deed, Ex.A1, under which, she purchased 1044 sq.ft. of vacant site along with her sister. She constructed a house and applied electricity connection, which was evidenced by Exs.A2 and A3. The special notices and house tax receipts were filed, which was evidenced by Exs.A4 to A8 and Exs.A12 to A14. The family card was also issued, which was marked as Ex.A9. One Egavalli is the predecessor in title and she was in possession and enjoyment of the suit property. One Subramani, was examined as P.W.2, who is the husband of Egavalli. He was also produced Ex.A17-medical certificate, which shows that Egavalli was suffering from paralytic attack and she is unable to speak. The trial Court has considered all these aspects in proper and perspective and came to the correct conclusion that the appellant/2nd plaintiff herein is entitled a decree for bare injunction. But the first appellate Court only on the basis of Ex.B1-patta issued in the name of the second defendant, set aside the decree and Judgment passed by the trial Court. Patta is not a document of title and patta will not create or extinguish title and hence, she prayed for setting aside the decree and Judgment passed by the first appellate Court.
7.Per contra, the learned counsel for the respondents/defendants would submit that the property has been given patta by the Government in R.Dis.74907/74 dated 21.06.1974, which was marked as Ex.B1. From that date onwards, the respondents are in possession and enjoyment of the property and to prove the same, the house tax receipts and property tax receipts were marked as Exs.B3 to B6. They also obtaining Encumbrance Certificate dated 16.12.1993, which was marked as Ex.B7, but which shows that the sale deed dated 29.02.1984 i.e. Ex.A1 in favour of the appellant and his sister. Hence, the trial Court has considered all the aspects in proper and perspective and came to the correct conclusion that the patta can be treated as document of title. In support of his contention, he also relied upon a decision reported in 2000 T.L.N.J. 102 in ( Kaliyuga Kannan v. The Tahsildar, Land Survey and Settlement and others). Thus, he prayed for dismissal of this appeal.
8.Considered the rival submissions made on either side.
9.Admittedly, the suit is for bare injunction. The appellant herein has purchased the suit property under Ex.A1 on 29.02.1984 from one Egavalli, who is the predecessor in title. The P.W.2-Subramanian is the husband of Egavalli, was deposed in his evidence stating that his wife has purchased the suit property from one Thulukkanam, by oral sale. But the P.W.2 produced Ex.A17-medical certificate, to prove the same, the doctor was not examined before the trial Court. There is no reason for disbelieving the evidence of P.W.2 that Ex.A1 came into an existence on 29.02.1984. The patta produced by the D.W.1 was marked as Ex.B1 dated 21.06.1974, in which, the Survey Number is 114/1B and the extent is two cents.
10.At this juncture, it is appropriate to consider whether the appellant herein is to prove the legal possession to the suit property. That patta has been issued in the name of one Mannadan, who is the second defendant herein. But, he has not appeared before the Court. The first defendant was examined before the Court and Exs.B1 to B7 were marked. After considering all these documents, the trial Court came to the conclusion that the property was in possession and enjoyment of the appellant and granted a decree. The suit property is situated in Bharathiar Street. The list of electricity bills, which was marked as Ex.A2 issued in the year 1992, but the suit was filed on 26.10.1993. Similarly, in Exs.A3 and A4, the special notices were issued to P.W.1 for assessing tax to the property in the Bharathiar Street. Ex.A5 is the door No.37, Bharathiar Street. Exs.A6 to A8 and Exs.A12 to A14 are house tax receipts for the year 1986-1987, 1987-1988, 1988-1989, 1989-1990, 1990-1991, 1991-1992, 1992-1993, 1993-1994, 1994-1995, 1995-1996. Exs.A13 to Exs.A15 came into an existence only after filing of the suit. But the plaintiff purchased the property in the year 1984 and then, she constructed a house and the same was assessed to tax. Under such circumstances, the appellate Court has not assigned any reason for disbelieving the Exs.A2 to A8. As P.W.1 is an illiterate old lady and considering her evidence, even though she has withstood in her cross-examination, I do not find any reason for discarding her evidence. Both documentary and oral evidence of P.W.1 clearly shows that she was in possession and enjoyment of the suit property on the basis of Ex.A1 from 1984 onwards.
11.At this juncture, it is appropriate to consider the oral and documentary evidence filed by the respondents/defendants. Ex.B1 is only the patta given by the Government. In that it was stated that they were allotted the plot No.12 in T.S.No.114/1B with two cents of extent. Even though it was stated that the patta was issued on 21.06.1974, they filed a house tax receipts i.e. Ex.B3 came into an existence only after filing of the suit, i.e. 30.12.1994. So, no reliance can be placed on those documents i.e. Exs.B5 and B6 dated 30.06.1999, which shows that the possession of the property has been created after the filing of the suit. So, no reliance can be placed on Exs.B3 to B6. In Ex.B7, the Encumbrance Certificate marked by the defendants, which shows that the sale deed is in favour of the appellant. But admittedly, the defendants have not filed any document to show that the defendants were and are in possession of the suit property, even though the second respondent, who was assigned patta as the plot no.12 under Ex.B1. But he paid house tax only in the year 1994. No document was produced to show that the defendants were in possession of the suit property till the filing of the suit. So, the first appellate Court has committed an error and came to the conclusion that the respondents/defendants are in possession and enjoyment of the same.
12.It is appropriate to consider the decisions relied upon by both sides. The learned counsel for the appellant would rely upon the following decisions to the effect that the patta is not the title of the document:
(1) 1962 (1) MLJ 197 in (Valliammai Achi v. Velu Servai and others), it was held as follows:
".. .. Patta is not a document of title. Mere absence of a patta in one's name cannot derogate from the title of that person."
(2) 1999 (3) CTC 650 in (Guruvammal and another v. Subbiah Naicker and others), it was held as follows:
"21. .. .. Revenue records does not create or extinguish the title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question."
(3) 1999 (3) CTC 304 in (Kammavar Sangam through its Secretary R.Krishnasamy v. Mani Janagarajan), it was held as follows:
".. .. Reliance on patta cannot be made to prove title as patta which mutates entries cannot convey or extinguish right over property. "
(4) 2003 (2) LW 152 in Varadarasu @ Devarasu v. Malone Veerasamy @ Thanapal and 2 others), it was held as follows:
"22. .. .. Reliance on patta cannot be made to prove title as patta which mutates entries can not convey or extinguish right over property."
27. .. .. The issue of documents by the Revenue Department is shrouded in suspicion. There is absolutely noting to show as to what kind of enquiry was conducted and as to whether the defendant had any notice of the proceeding, in that admittedly, he was in possession on the date of the suit. The documents produced on the side of the plaintiffs in the instant case being only self serving documents, the lower Appellate Court was in error in placing any reliance on them as supporting the case of the plaintiffs."
(5) 2005 (2) LW 196 in (M.E.A. Mohamed Ali and 6 others v. The District Revenue Officer, Ramnad Collectorate, Ramanathapuram and 2 others) it was held as follows:
"2.The dispute relates to entries in the revenue records. It is well settled that entries in the revenue records does not create or extinguish title nor has it any presumptive value vide M.T.W.Tenzing Namgyal and others v. Motilal Lakhotia & Others, JT 2003 (5) SC 173, Balwant Singh v. Daulat Singh, 1997(7) SCC 137 and Smt.Sawarni v. Smt.Inder Kaur and others, 1996 (7) JT SC 580. Such entries are only for the purpose of payment of land revenue. Hence the parties aggrieved by such entries in the revenue records should get their rights adjudicated in a civil suit."
13.The above citations clearly show that patta is not document of title. Patta will not confer or extinguish title to the property. The learned counsel for the appellant relied upon the decision reported in 2005 (2) LW 196, in which the issues of patta in favour of the party by a revenue authority is not binding in the civil Court and the Civil Court will decide the rights of the parties independently. It is not a suit for declaration of title. It is only a bar injunction. So the plaintiffs ought to have proved their legal and lawful possession of the suit property.
14.The learned counsel for the respondents/defendants relied upon a decision reported in 2000 T.L.N.J. 102 in ( Kaliyuga Kannan v. The Tahsildar, Land Survey and Settlement and others), it was held as follows:
"Entry of one's name in the patta gives him certain rights. He is recognised as owner of the property. Certain legal rights flow from such recognition. It is a recognition by the Government or by the Revenue Authorities that he is the owner of the property. It is an evidence of title. That right cannot be taken away, nor can the name of any other person be included in the patta without notice to him."
15.But the above citation is not applicable to the facts of the present case. Because, the plaintiff herein has purchased the property and to prove the same, she has examined P.W.2, who is the husband of the vendor Egavalli from whom the title has been derived. Further it is pertinent to know that the suit is for bare injunction and the title has to be decided incidentally. The appellant/2nd plaintiff ought to have proved her legal possession on the basis of Ex.A1. After purchasing under Ex.A1, she has constructed a house and the said property has been assessed to tax and also paying the property tax. She also obtained a Electricity connection and paying consumption charges. Family card was also issued in the name of the appellant. In view of the above, it is clearly proved that the appellant is in legal possession of the property.
16.Therefore, the first appellate Court has committed an error on the basis of Ex.B1 that the respondents/defendants are in possession. Hence, the Judgment and decree of the first appellate Court has suffered illegality and hence, it is liable to be set aside.
17. In fine, The Second appeal is allowed.
The Judgment and decree passed by the first appellate Court in A.S.No.41 of 2002 dated 06.03.2003, on the file of the Additional District Judge, Fast Track Court No.IV, Poonamallee, is hereby set aside.
The Judgment and decree passed by the trial Court in O.S.No.1842 of 1993 dated 14.02.2001, on the file of the District Munsif Court, Poonamallee, is hereby restored. No costs.
kj To
1.The Additional District Judge Fast Track Court No.IV, Poonamallee.
2.The District Munsif Court Poonamallee.
3.The Record Keeper VR Section, High Court, Madras