BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 17/12/2007 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.828 of 1989 1.A.Panneerselvam 2.A.Ganesan 3.V.Udayasuriyan 4.C.Duraipandi 5.Pappammal ... Appellants/Defendants 4 to 7 and D3 Vs 1.Ponniah Servai (Died) 2.V.Palaniyandi Servai (Died) 3.Vairavan Servai (Died) 4.Muthuvayiru (Died) 5.Velusami (Died) 6.Velammal 7.Ramasamy 8.V.P.Chockalingam 9.V.P.Sundaram 10.V.P.Palani Mayilsamy 11.V.P.Nagarajan (R8 to R11 brought on record as the L.Rs of the deceased R1 vide order dated 05.03.2007 made in CMP(MD)No.3340 to 3342 of 2006) 12.P.Muthu Vairavan 13.P.Nagarajan 14.P.Prabakaran (R12 to R14 brought on record as the L.Rs of the deceased R2 vide order dated 05.03.2007 made in CMP(MD)No.3342 to 3345 of 2006) 15.Ganesan 16.Sekar 17.Ramanathan (R15 to R17 brought on record as the L.Rs of the deceased R3 vide order dated 05.03.2007 made in CMP(MD)No.3346 to 3348 of 2006) 18.Kaleeswaran 19.Muthusamy (R18 to 19 brought on record as the L.Rs of the deceased R4 vide order dated 05.03.2007 made in CMP(MD)No.3349 to 3351 of 2006) 20.Subramanian (R20 brought on record as the L.Rs of the deceased R5 vide order dated 05.03.2007 made in CMP(MD)No.3361 to 3363 of 2006) ... Respondents Prayer: Appeal filed under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 10.03.1989 in O.S.No.11 of 1985 on the file of the Subordinate Court, Sivagangai. !For Appellants ... Mr.R.Krishnamurthy ^For Respondents ... Mr.V.Nagendran for R.8 to R.20 Mr.Elango Ramachandran for R.6 and R.6 R.1 to R.5 - died. :JUDGMENT
This second appeal is focussed as against the judgment and decree dated
10.03.1989 in O.S.No.11 of 1985 on the file of the Subordinate Court,
Sivagangai.
2. The parties, for convenience sake, are referred according to their
litigative status before the trial Court.
3. The facts as stood exposited from the plaint could be broadly but
briefly portrayed thus:
Deceased Kailasam Servai was a pious and popular personality among the
residents of Thiruppuvanam and in recognition of his memory, a madam was built
in item No.1 of the suit property described in the schedule of the plaint and a
Trust was created dedicating item Nos.1 to 5 of the suit properties with the
following objects:
“(a) Poor feeding has to be done every year on the date of the
Thirukalyana Utsavam of the Deity of Thiruppuvanam Pushpavaneswarar
Soundaranayaki Amman;
(b) The elephant vaganam used every year on the 8th day of the said
Thiruppuvanam Pushpavaneswarar Soundaranayaki Amman Temple Utsavam – has to be
decorated with flowers.
(c) The said expenses have to be met from the income of the said items 1
to 5 and if there happens to be any surplus it has to be invested properly and
can be utilised for purchase of properties for the benefit of the Trust and the
male descendants of the said Kailasam Servai are to be the Trustees and have to
conduct the said trust.”
4. The descendants of the said Kailasam Servai are managing the Trust;
they constitute six branches and from each branch, a representative participates
in conducting the Trust. The said madam in item No.1 was enjoying the
electricity connection in the name of Vairavan Servai, the senior patneral uncle
of the fourth plaintiff. Item No.6 of the suit property was purchased from out
of the income of the trust properties, on 10.11.1984 in the name of the then
officiating trustees. Item No.7 of the suit property was purchased on
15.09.1973 in the name of the first plaintiff and Balu @ Vairavan Servai, the
father of the first defendant. A portion of item No.1 of the suit property was
acquired for widening Vaigai channel by the Government and compensation amount
was deposited in the Sub Court, Sivagangai and in the connected O.P.No.71 of
1978, the plaintiffs 1 to 3 and 5 and P.Sankaramoorthy, the father of fourth
plaintiff and Balu @ Vairavan Servai, the father of the first defendant were
parties and they got compensation amount and in turn, deposited in the fixed
deposit and the interest arising out of it was utilized for Annathanam and for
decoration of elephant Vaganam on the 8th day of Utchavam and the surplus income
was utilised for purchase of properties.
5. The plaintiffs and the said Bala @ Vairavan Servai managed the Trust.
The said Bala due to his old age became inactive and the plaintiffs alone are
managing the Trust. The said Bala @ Vairavan Servai died on 09.01.1985 at his
age of 80 years. However, the defendants 4 to 7 claiming to be the
beneficiaries under the said Vairavan Servai are disturbing the plaintiffs in
the performance of their duties as trustees relating to the said properties.
The third defendant claiming to be the tenant in the suit property is supporting
the defendants 4 to 7. Hence, the suit for obtaining the following reliefs:
(a) to declare that the undermentioned properties are trust properties
belonging to the said Kailasam Madras Trust situated in item No.1 in
Thiruppuvanam and the present plaintiffs are now the trustees and
representatives of the descendants of late Kailasam Servai;
(b) Consequently to pass a permanent injunction – against 3rd defendant
from entering into the suit item 1 or interfering with the possession of the
plaintiffs of suit item 1;
(c) to direct the contesting defendants to pay costs of this suit;”
6. Per contra, denying and refuting the allegations/averments in the
plaint, the defendants filed written statements.
7. The first defendant filed the written statement without contesting the
case of the plaintiffs. The second defendant accepted the plea of the
plaintiffs.
8. Whereas the third defendant challenging and refuting, impugning and
gainsaying, the allegations in the plaint, would put forth various pleas which
could be pithily and precisely set out thus:
There was no such Madam called Kailasam Madam. The third defendant is the
tenant under the said Vairavan Servai who also executed a will in favour of the
defendants 4 to 7. Accordingly, he prayed for the dismissal of the suit.
9. The defendants 4 to 7 adopted the written statement of the third
defendant.
10. The trial Court framed relevant issues. During trial, on the side of
the plaintiffs, P.W.1 to P.W.4 were examined and Exs.A.1 to A.19 were marked and
on the side of the defendants, D.W.1 to D.W.5 were examined and Exs.B.1 and B.2
were marked.
11. Ultimately, the trial Court decreed the suit as prayed for.
12. Being aggrieved by and dissatisfied with, the judgment and decree of
the trial Court, the defendants 4 to 7 and the third defendant figuring
themselves as appellants 1 to 5, respectively filed this appeal on the following
main grounds among others:
The trial Court wrongly relying on Ex.A.3, the order of the Sub Court, in
land acquisition proceedings, declared the title in favour of the plaintiffs as
though it is a Trust property. The will executed by the said Vairavan Servai
was not at all considered by the trial Court. The trial Court over looked the
fact that Ryotwari patta was given in favour of Vairavan Servai and that he was
in exclusive possession and enjoyment of it, by paying kist. There was
collusion between the plaintiffs and the defendants 1 to 3. (The fact remains
that the third defendant is appellant No.5 here, nevertheless the grounds of
appeal would be to the effect as though there was collusion between the
plaintiffs and the third defendant.) Accordingly, the appellants prayed for
setting aside the judgment and decree of the trial Court.
13. The points for consideration are:
(i) Whether the trial Court was justified in relying upon Ex.A.3, the
order of the sub Court in O.P.No.71 of 1978 relating to the land acquisition
proceedings and also on other documents in arriving at the conclusion that the
suit properties are Trust properties?
(ii) Whether there is any infirmity in the judgment and decree of the
trial Court?
14. The whole kit and caboodle of facts and figures as found set out in
the records would demonstrate that admittedly and unassailably, the apple of
discord between the parties is relating to the ownership of the first item of
the suit properties which is a coconut thope measuring 3 acres 27 cents out of
which as revealed by Ex.A.3, the Government acquired an extent of 66 cents
adjacent to Vaigai river. The defendants 4 to 7 are claiming to be the
beneficiaries under the will dated 16.11.1981 executed by Vairavan Servai in
their favour relating to the first item of the suit properties. However, the
plaintiffs would challenge the genuineness and validity of the will. The
plaintiffs on the one hand would contend that the first item of the suit
properties along with other items of the suit properties belonged to the said
Kailasam Trust, Whereas the defendants 4 to 7 would contend that it is their
exclusive property.
15. Incontrovertibly and indisputably, neither on the plaintiffs’ side,
nor on the side of the defendants 4 to 7 any title deed relating to the first
item of the suit property could be produced. However, the defendants 4 to 7
would develop their arguments without even having marked the relevant pattas and
contend that after abolition of Zamindari system, Ryothwari patta was issued in
the name of Vairavan Servai and thereby he became the absolute owner of it;
whereas the plaintiffs would contend that Vairavan Servai was one among the
hereditary trustees of Kailasam Madam along with the plaintiffs and he had no
exclusive right over it. Exs.A.1 and A.2 are the deeds relied on purely for the
purpose of highlighting that even as early as in the years 1954 and 1973, there
were references in those deeds about the existence of Kailasam Madam which is
meant for the purpose of carrying out charitable and religious acts as set out
supra.
16. In the wake of Exs.A.1 and A.2, by no stretch of imagination, the
contesting defendants could contend that there was no such Kailasam Madam at
all. While submitting the arguments before this Court, the learned Counsel for
the appellants/defendants 3 to 7 would contend that even though such Trust might
be there relating to other properties, yet the first item of the property cannot
be taken as part of the Trust property as it is covered by Ex.B.2, the will and
Ex.B.1, the lease deed executed by Vairavan Servai in favour of the third
defendant leasing out that area. It is quite obvious that Exs.B.2 and B.1 are
only self-serving documents which virtually emerged after the dispute had arisen
between Vairavan Servai on the one side and the plaintiffs on the other side and
Ex.A.3, the order of the Sub Court dated 23.09.1982 in O.P.No.71 of 1978, would
clearly demonstrate and indicate that Vairavan Servai contended before the Sub
Court that out of the first item of the suit properties, so to say, measuring an
extent of 3 acres and 27 cents, an extent of 66 cents acquired by the Government
under the land acquisition proceedings happened to be the Trust property of
which Vairavan Servai and his Pangalis had joint interest and that the
compensation amount should be divided among them and given individually.
Thereupon, the Sub Court held that the compensation payable under the Trust
property cannot be apportioned among the said trustees.
17. The learned Counsel for the appellants would contend that the decision
of the Sub Court in land acquisition proceedings cannot be taken as a conclusive
one as the Sub Court while deciding the issue has not decided in its capacity as
a civil Court deciding original suits.
18. Indubitably, despite the findings of the Sub Court in land acquisition
proceedings relating to the title under Section 30 of the Land Acquisition Act,
regular suits could be filed for asserting the title over the said properties
and for the consequential entitlements to compensation. But, the fact remains
that the said Vairavan Servai has not chosen to file any such suit asserting
his right over the first item of the suit properties so as to torpedo the
findings of the Sub Court in the land acquisition proceedings.
19. It is therefore crystal clear that Vairavan Servai during his life
time admitted candidly and categorically that even by his pleadings before the
Sub Court that the first item of the suit properties was a Trust property.
However, he only pleaded that the compensation amount relating to 66 cents of
land acquired could be apportioned among his Pangalis and himself, but such a
prayer for apportionment was negatived by the Sub Court. There is no embargo
contemplated under the law that such sort of supine submission made by the
deceased Vairavan Servai, should not be taken for proving the title relating to
the first item of the suit properties in the subsequently instituted suit by the
trustees for getting the status of the suit properties declared as Trust
properties.
20. Ex.B.2, the will itself is only relating to the first item of the suit
properties and not even relating to the other items. Ex.A.3, refers to it as
Trust property. Regarding other properties as correctly held by the trial
Court, there is no contra evidence that those are all not Trust properties.
Exs.A.5 to A.17 would reveal that the electricity tax was paid in the name of
Vairavan Servai and simply because, electricity connection was obtained in the
name of Vairavan Servai who himself claimed to be the trustee under Ex.A.3,
there could be no presumption that the entire first item of the suit properties
happened to be exclusive property of Vairavan Servai. Ex.A.18 would reveal that
the patta relating to the first item of the suit properties was transferred from
the name of Vairavan Servai to the names of the Trustees including Vairavan
Servai. Similarly, Ex.A.19, would also reveal the said fact. No doubt, from
those two documents, it could be understood that earlier the patta stood in the
name of Vairavan Servai. Simply because of that, there is no presumption that
he had exclusive right over the property and that too in the wake of his
categorical admission before the Sub Court to the contrary. In fact, Ex.A.3
would also reveal that the land acquisition officer referred the dispute under
Section 30 of the Land Acquisition Act by referring the land only as Trust
property. In fact, the Land Acquisition Officer had no axe to grind in the
matter, but taking into consideration the then existed position, he described
the property as Trust property.
21. The depositions and documents on the side of the plaintiffs are in
conformity with the case as put forth by the plaintiffs and their versions,
whereas the depositions and documents on the side of the defendants 3 to 7 do
not prove their title to the suit property as their exclusive property. At this
juncture, I would also recollect the following decisions relating to the fact
that patta will not construe title:
(i) Velayudham Pillai v. Sandhosa Nadar and others reported in 1973(1) MLJ
44.
(ii) Kuppuswami Nainar v. The District Revenue Officer, Thiruvannamalai
and others reported in 1995 (1) MLJ 426.
(iii) M.E.A.Mohamed Ali and others v. The District Revenue Officer
reported in 2005 (4) CTC 9. An excerpt from it, would run thus:
“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 & Ors. v. Motilal
Lakhotia & Ors., 2003 (5) SCC 1 : JT 2003 (5) SC 173; Balwant Singh v. Daulat
Singh, 1997 (7) SCC 137; and Smt.Sawarni v. Smt.Inder Kaur and others, 1996 (6)
SCC 223 : 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. Ordinarily writ
petitions should not be entertained against orders for making entries in the
revenue records, as such orders do not affect the rights of any one.
3. We make it clear that the impugned judgment of the learned single Judge
does not create any right in favour of the parties in that case. We further
make it clear that the order of the revenue authorities is not binding in the
civil suit, and the Civil Court will decide the rights of the parties
independently of the order of the revenue authority.”
As such, it is crystal clear that patta alone will not construe title.
22. Hence, in these circumstances, I could see no infirmity in the
judgment and decree of the trial Court.
23. In the result, the appeal is dismissed, confirming the judgment and
decree dated 10.03.1989 in O.S.No.11 of 1985 on the file of the Subordinate
Court, Sivagangai. No costs.
rsb
To
The Subordinate Court, Sivagangai.