BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28/09/2006 CORAM: THE HONOURABLE MR. JUSTICE J.A.K.SAMPATHKUMAR S.A.No.48 of 1995 Pakkiri .. Appellant Plaintiff vs. 1.Ramakkannu Thevar 2.Pappu Utamundar .. Respondents Second Appeal filed against the Judgment and Decree dated 30.6.1994 made in A.S.No.55 of 1992 on the file of the District Court, Pudukkottai confirming the Judgment and Decree dated 30.9.1989 made in O.S.196 of 1983 on the file of the District Munsif Court, Pudukkottai. !For appellant ... Mr. V.K.Vijayaragavan ^For respondents ... Mr. J.Anandkumar :JUDGMENT
This Second Appeal is filed by the plaintiff against the concurrent
finding in A.S.No.55 of 1992 dated 30.6.1994 on the file of the District Court,
Pudukkottai in and by which the learned District Judge dismissed the appeal
concurring with the partial decree made in O.S.No.196 of 1983 on the file of the
District Munsif, Pudukkottai.
2. For the sake of convenience, parties are referred as arrayed in the
suit.
The brief facts of the case are as follows:
3. The suit property originally belonged to one Panjalaiammal, wife of
Achuthan Sanaiyar by purchase under registered sale deed dated 27.2.1925. After
that she sold the same on 21.6.1933 in favour of Vattar Pariyari bout 2 acres of
land by name Melakkadu Punjai. This portion has subsequently been surveyed as a
part of 10/3, 10/4, and 11/1 at the time of Survey and Settlement, on the advent
of Madras Estates (Abolition & Conversion into Ryotwari) Act, (26/48), as the
village was previously a zamin village.
4. The said property, after the death of Vattar Pariyari, devolved upon
his only son V.Ponnan Pariyari. In fact, with regard to Survey No.10/4,
V.Ponnan’s name (the plaintiff’s father) is adopted by the Survey Department
also. Further with regard to the Northern portion viz., 10/3 has been surveyed
as Government dry and so also the Southern portion in Survey No.11/1 has been
recorded as Government dry.
5. Ponnan Pariyari, the son of Vattar Pariyari died in or about the year
the year 1974 leaving behind his four sons including the plaintiff herein. The
plaintiff and his younger brothers continue to possess and enjoy the property in
their own rights.
6. The plaintiff’s family has been in enjoyment of the suit property
having their residential house in Survey No.11/1 and cultivating the fields in
Survey No.10/3 upto the village boundary on the North and Survey No.10/4 living
South of Survey No.10/3 and North of Survey No.11/1 in which they have their
house, with punja crops depending on the seasonal rains. There is also a pucca
masonary well in Survey No.10/4 to afford facility for irrigating the dry crops
by baling. Similarly, the plaintiffs’ family had been enjoying the property in
Survey No.11/1 South of their house right upto the Vari on the South, also
cultivating the same with dry crops. Here also there is a mud-well. There are
5 mango trees, one jack tree on the West of the house. There is a tamarind tree
on the East of the house. These are all aged more than 40 years old.
7. south of the house, there are about 60 silai trees, 5 neem trees, 5
vagai trees. Several other trees are also there. These trees are also aged
more than 25 years old. The trees and the wells are the creations of the
plaintiff’s father Ponnan Pariyari.
8. The plaintiff has been paying taxes to the Government for Survey
No.10/3, 10/4, and 11/1 all along. The plaintiff is however is illiterate but
for signing his name. His younger brothers are also similarly illiterate.
Taking advantage of such a situation of the plaintiff’s family, it appears that
the defendants had manoeuvred to include their names in the Government records
as if they are otherwise connected with the suit property.
9. While the property on the West viz., 10/2 and the Western part of 10/3
previously belonged to Andiappa Konar, the first defendant seems to lay a claim
thereto and is extending his claim also the Eastern-part of 10/3 belonging to
and in the possession of the plaintiff herein.
10. Similarly, the second defendant herein, seems to lay claim with
himself of the property comprised in Survey No.11/1 South of the plaintiff’s
house and North of the Vari. Such claims of the defendants are without any
basis for title right to possession or the state on ground and the enjoyment of
the plaintiff herein. The defendants are giving out to commit forcible trespass
by common conspiracy. Hence the suit.
Written statement adopted by the first defendant reads as follows:
11. The first item of the property in Survey No.10/3 Punja Land 0.96 cents
was assigned to the first defendant by the Government in 1978 as the first
defendant was in possession and enjoyment of the same at that time. The first
defendant is in possession and enjoyment of the same with casirona trees.
12. The second item of property in Survey NO.10/4 is owned and possessed
by the second defendant which consists of fruit bearing trees. During the year
1963, the land in Survey No.11/1 A, 2.44 cents was assigned to the second
defendant. He has put up a hut thereon and enjoying the same. The plaintiff
has no right in respect of this item of property. Therefore, the suit is liable
to be dismissed.
13. The plaintiff was examined as PW.1. One Thiru A. Abdul Rahman was
examined as PW.2. Documents were marked as Exs.A1 to A14 on the side of the
plaintiff. The first defendant was examined as DW.1. One Thiru Lakshmana Konar
was examined as DW.2. Documents were marked as Exs.B1 to B12 on the side of the
defendants. Four exhibits were marked as C1 to C4 as Court exhibits.
14. The trial court after analysing the evidence in depth found that the
plaintiff is entitled to the claim in respect of plaint Survey No.10/4 with
reference to “A” schedule property and decreed the suit. With regard to the
claim of “B” schedule property, the suit was dismissed. Against which the
plaintiff filed an appeal in A.S.No.55 of 1992 and the same has been dismissed
on 30.6.1994 by the District Judge, Pudukkottai confirming the finding of the
Trial Court. The present appeal is filed by the plaintiff against such finding.
15. The second appeal was admitted on the following substantial questions
of laws:
(i) Would the non-grant of patta to the appellant under Act 26 of 1948
extinguish the title of the appellant?
(ii) Would the assignment and the followup action in the government
records could be taken cognizance of title when there was a rival claim of title
between the parties?
(iii) Whether the three boundaries tallying with the title of the
appellant enough to declare the title of the appellant to the suit property?
(iv) Is the civil Court incompetent to consider the title of parties and
ultimate declaration of land as assessed dry waste by the settlement department?
16. Heard Mr. V.K.Vijayaragavan, learned counsel for the appellant and Mr.
J.Anandkumar and Mr. Mr. S.Ravi, learned counsel for the
respondents 1 and 2 respectively.
17. Upon hearing the rival contentions, the point that arise for
determination are as follows:
(i) Whether the plaintiff herein has any locus standi to file the suit as
Karta of the family on behalf of other plaintiff?
(ii) Whether “B” schedule property is in possession and enjoyment of the
plaintiff?
(iii) As per the pleading, is it true that PW.1 is living in the suit
property?
(iv) Whether the defendants are really paying the revenue tax for “B”
schedule property?
(v) Would the non-grant of patta to the appellant under Act 26 of 1948
extinguish the title of the appellant?
(vi) Would the assignment and the followup action in the government
records could be taken cognizance of title when there was a rival claim of title
between the parties?
(vii) Whether the three boundaries tallying with the title of the
appellant enough to declare the title of the appellant to the suit property?
(viii) Is the civil Court incompetent to consider the title of parties and
ultimate declaration of land as assessed dry waste by the settlement department?
Point (i):
18. It is the specific pleading that the plaintiff is the Karta of the
family and the properties of his father are not partitioned and that properties
of his father are in common enjoyment between the plaintiff and his brothers and
as such, the suit is filed by the plaintiff in the capacity of Manager of the
Hindu Joint Family.
19. It is the specific case of the defendants that the plaintiff is not
the manager of the Hindu Joint Family and that the properties between the
plaintiff and his brothers were partitioned and that the plaintiff and his
brothers are living independently and paying taxes for the respective properties
and as such, the present suit is not maintainable in law.
20. To ascertain the status of the plaintiff, let me look into the
evidence of PW.1. His evidence reads as follows:
“vd; ghl;ldhh; ,we;Jngha;tpl;lhh;. vd; ghl;ldhUf;F vd; jfg;gdhh;
bghd;Dr;rhkp xnu gps;is. Bghd;Dr;rhkp ehd;> bghparhkp> uhkrhkp> khhpKj;J Mfpa 4
kfd;fs;. Vd; jfg;gdhh; ,we;J ngha;tpl;hh;. vd; jfg;gdhUf;F gpwF ehq;fs; 4
rnfhjuh;fSk; mDgtpj;J tUfpnwhk;. ehd; FoapUe;j tPL jw;nghJ gphpe;Jngha;tpl;lJ.
ehd; jw;nghJ jQ;ht{hpy; ,Uf;fpnwd;. 4> 5 tUlkhf ,Uf;fpnwd;. vd; jk;gp xUth;
Chpy; cs;shh;. kw;wth;fSk; btspa{hpy; ,Uf;fpwhh;fs;. Ehd; ,Uf;wpw Chpy; vq;fs;
$hjp Ml;fs; ahUk; ,y;iy. jhth brhj;Jf;F rh;nt ek;gh; bjhpahJ. xt;bthU rh;nt
vd;Df;fFk; bkhj;j tp];jPh;dk; vt;tst[ vd;W bjhpa[k;. xt;bthUtUk; jdpj;jdpna
tPLfSf;F thp fl;o mDgtk; bra;J tufpnwhk;. ehd; 4 tUlkhaf jQ;rht{hpy;
,Uf;fpnwd;. mjw;F Kd; jhth brhj;J. cs;s Chpy; jhd; bjhlh;e;J ,Ue;J tUfpnwd;.”
21. The evidence of PW.1 would show that PW.1 is not living in the suit
property as on date and his brothers are also not living in the said village as
on date. The plaintiff and his brothers were living independently in their own
house. They are paying kist independently in respect of their houses.
22. The narration of events would show that the plaintiff is not the
Manager of the Hindu Joint Family. Therefore, the plaintiff has no locus-standi
to file the suit independently on behalf of joint family. Hence, this point is
answered against the plaintiff.
Point (ii):
23. Admittedly, “B” schedule property is not in possession and enjoyment
of the plaintiff. Both the Courts below after analysing the evidence in depth
found that the plaintiff is not in possession and enjoyment of the suit property
and therefore, negatived the claim of the plaintiff in this regard. It is
worthy to note that according to PW.1, there is a thatched house in the second
item of “B” schedule property. The second defendant specifically stated that he
is in possession and enjoyment of the thatched hut referable to the second item
of “B” schedule property.
24. Though PW.1 admitted about the thatched house in the second item of
“B” schedule property, he has stated that the said thatched house is not
habitable one as it is ruined. The evidence of PW.1 with regard to this fact
reads as follows:
“ehd; FoapUe;j tPL jw;nghJ gphpe;Jngha;tpl;lJ.”
25. Moreover, the documents filed on the side of the defendants would
prove that the defendants are in possession and enjoyment of the “B” schedule
property. The title to the property viz., the “B” schedule property was
transferred in the name of the defendants. Even according to the plaintiff, the
patta for “B” schedule property is in the name of the defendants. Even
according to Adangal register, the defendants alone are cultivating and
enjoying the “B” schedule property. Adangal register filed in this case would
not show that the plaintiff is cultivating and enjoying the “B” schedule
property. In fact, the first defendant has specifically stated that the first
item of the “B” schedule property was assigned to him since he was in possession
and enjoyment of the same at the time of assignment. Both the Courts below have
taken note of these facts and rightly came to the conclusion that the defendants
alone are in possession and enjoyment of the “B” schedule property and
accordingly, rejected the claim of the plaintiff in this regard. I do not find
any illegality or impropriety in the finding of the Courts below. Accordingly,
this point is answered against the plaintiff.
Point (iii):
26. The specific averment in the pleading in this regard reads as follows:
“The plaintiff’s family has been in enjoyment of the suit property having
their residential house in Survey No.11/1 and cultivating the fields in Survey
No.10/3 upto the village boundary on the North and Survey No.10/4 living South
of Survey No.10/3 and North of Survey No.11/1 in which they have their house,
with punja crops depending on the seasonal rains. There is also a pucca
masonary well in Survey No.10/4 to afford facility for irrigating the dry crops
by baling. Similarly, the plaintiffs’ family had been enjoying the property in
Survey No.11/1 South of their house right upto the Vari on the South, also
cultivating the same with dry crops.”
27. The specific pleading is that the plaintiff is residing in the suit
property enjoying and cultivating the lands on the North and South of the house.
28. But, PW.1 admitted that neither himself nor any of his brother are
living in the suit property. Apart from that there is absolutely no evidence on
record to show that they ever lived in the suit property at any point of time.
It is the specific case of the defendants that they are living in “B” schedule
property and enjoying the same. Only in that context, the Government have
assigned the suit land to the defendants. Though the plaintiff relied on the
title deed viz., Exs.A1 and A2 with regard to the title of the suit property,
there is absolutely no record to show that the plaintiff was in possession and
enjoyment of the “B” schedule property. In this context only, the Courts below
held that the plaintiff is not entitled to the suit property and negatived his
claim. There is no illegality or impropriety in the finding of the Courts
below. So, this point is answered against the plaintiff.
Point (iv):
29. Document filed herein would prove that the defendants alone are in
possession and enjoyment of the property paying necessary taxes. Agangal
Register would also show that the defendants alone are in possession and
enjoyment of the “B” schedule property. In this context, both the Courts below
negatived the claim of the plaintiff in this regard. The finding of the Courts
below does not require any interference. The finding of the Courts below are in
order. Accordingly, this point is also answered in favour of the defendants.
Point (v) to (viii):
30. Learned counsel for the plaintiff relied on the provisions of the
Tamil Nadu Regulations, Estates and Inams Abolition and Ryotwari Settlement Acts
of Section 3 clause 15, Sections 11, 12, 13, 14 and 14(a) and contended that the
assignment of “B: schedule property in favour of the defendants is not valid in
law as the title of the “B” schedule property stood in the name of the father of
the plaintiff when the Act 26/48 came into force and as such the defendants
cannot claim title to the suit property on that basis.
31. In support of his contention, learned counsel for the appellant relied
on the following decisions reported in-
(a) Mariabackiammal (deceased) by her legal heirs and 3 others v. The
District Forest Officer, Madurai North Division, Dindigul (1990-2-L.W.478)
(b)Srinivasan and 6 others v. 1. Sri Madhyarjuneswarasami, Pattavaithalai,
Tiruchirapalli District by its Executive Officer at Pettavaithalai Devasthanam
and 5 others (1998-2-L.W.189)
32. Learned counsel for the respondent resisted the contention of the
learned counsel for the appellant stating that the proposition submitted now is
not applicable to the facts on hand in view of the fact that father of the
plaintiff was not in possession in possession of the suit property viz., “B”
schedule property when the said Act came into force.
33. It is worthy to note that the plaintiffs are not in possession of the
“B” schedule property as contended by them. Apart from that the father of the
plaintiff himself took part in the settlement proceedings and obtained patta
only in respect of “A” schedule property. The evidence of PW.1 regarding this
aspect reads as follows:
“vdf;F brl;oy;bkd;l; tprhuizapy; rh;nt vz;.10/4f;F vdf;F gl;lh bfhLf;fg;gl;L
cs;sJ. rh;nt vz;.10/3f;Fk; 11/1 f;Fk; vdf;F gl;lh bfhLf;fg;gltpy;iy. me;j
,uz;L ek;gUf;Fk; ntW ahUf;Fk; gl;lh bfhLf;fgltpy;iy. Gpuhpthjpfs; jq;fSf;F
gl;lh cs;sJ vd;W Twpdhh;fs;.”
34. The evidence of PW.1 shows that he took part in the settlement
proceedings. He obtained patta only in respect of “A” schedule property and not
with reference to the “B” schedule property. In such circumstances, the
decisions relied on by the learned counsel for the appellant is not applicable
to the facts on hand in view of the fact that he took part in the settlement
proceedings and obtained patta only in respect of the “A” schedule property. It
is not the case of the plaintiff that he filed any appeal for not issuing patta
in his name with reference to the “B” schedule property. Admittedly, patta for
“B” schedule property stands in the name of the defendants. The plaintiff
himself knew that patta of the “B” schedule property stands in the name of the
defendants. In such circumstances, it is not open to the plaintiff at this
stage to dispute the validity of the patta issued in the name of the defendants.
35. Since the plaintiff is not in possession and enjoyment of the “B”
schedule property, the proposition submitted by the learned counsel for the
appellant that the Government has no locus standi to assign “B” schedule
property in the name of the defendants as per the guidance referred under the
aforesaid sections under the Act, cannot be accepted. Only if the plaintiff is
in possession and enjoyment of the “B” schedule property, the plaintiff can
question the assignment of “B” schedule property in favour of the defendants by
the Government as per the provisions of the said Act. Even when the Act came
into force the defendants were in possession and enjoyment of the “B” schedule
property, only in that context, the “B” schedule property was assigned in the
name of the defendants respectively by the Government. So, I am of the view
that the contention of the learned counsel for the plaintiff is bereft of any
merit and the same is rejected.
36. So, I am of the view that the findings of the Courts below are in
order and it does not require any interference. The Judgment and Decree dated
30.9.1989 made in O.S.196 of 1983 on the file of the District Munsif Court,
Pudukkottai is confirmed.
37. In the result, the Second Appeal is dismissed. Parties have to bear
their costs.
asvm
To
1.The District Court,
Pudukkottai.
2. The District Munsif Court,
Pudukkottai.