Arulmigu Viswewaraswami And … vs R.V.E. Venkatachala Gounder And … on 12 April, 1996

Madras High Court
Arulmigu Viswewaraswami And … vs R.V.E. Venkatachala Gounder And … on 12 April, 1996
Equivalent citations: 1996 (2) CTC 199, (1996) IIMLJ 553
Author: P Sathasivam
Bench: P Sathasivam


ORDER

P. Sathasivam, J.

1. The 1st defendant in O.S.No.404 of 1978 on the file of Sub-Court, Coimbatore is the appellant in the above second appeal. The 1st respondent herein, the plaintiff filed the above suit for declaration of his title to the suit property and for delivery of possession and mesne profits both past and future.

2. The case of the plaintiff as per the plaint averments are as follows:- The plaintiff is the owner of the suit property and the second defendant has been a tenant in possession of the property for the past thirty years. The rent of Rs. 300 which was originally paid was enhanced to Rs. 400 from 1965. According to the plaintiff, the 1st defendant lays claim to the suit property taking advantage of the litigations pending between the plaintiff and the 1st defendant in respect of trusteeship. The 2nd defendant has paid rent for the period upto 19.4.1969 and the rent from 20.4,1969 is due. The plaintiff claims arrears of rent for three years. The 2nd defendant denied the plaintiff’s title to the suit property and hence both the defendants were impleaded.

3. The 1st defendant filed a written statement wherein it is contended that the plaintiff has been a trustee of the temple and before him his father was the trustee of the temple. The suit property belongs to the temple. In 1968 new set of trustees were appointed and an Executive Officer took charge of the temple. The plaintiff instead of handing over the documents has kept them for himself and has been laying claim to the suit property. Proceedings were initiated against him by the H.R. & C.E. Department. The assessment stood in the name of the plaintiff as the Dharmakartha and not in his individual capacity. From the year 1969, 1979 the 2nd defendant began to pay the rent to the 1st defendant and the rate of the rent from Rs. 42-50 per month was enhanced to Rs. 129 per month. The 2nd defendant has executed a lease deed in favour of the 1st defendant on 19.7.1975. Therefore, the plaintiff is not entitled to the suit property and is estopped from denying the title of the 1st defendant to the suit property.

4. The 2nd defendant in his written statement contended that he became a tenant of the suit property under the Temple i.e. the 1st defendant. There seems to be misunderstandings between the past trustees and the Executive Officer. The plaintiff issued a notice to the 2nd defendant demanding rent in 1972 but he kept quiet for a long time. Therefore, he is estopped from claiming any right to the suit property. The claim of the plaintiff for arrears of rent is not tenable and the suit for declaration and for arrears of rent is not maintainable.

5. The plaintiff in support of his case examined himself as P.W.I and marked Ex A.1 to A.34. The 1st defendant temple in support of its defence, examined one Officer by name S.Rajapandian as D.W.I and the 2nd defendant was examined as D.W.2 Ex.B. 1 to B.46 were marked in support of the defence of the temple, the 1st defendant.

6. On the basis of the above pleadings, the trial court framed necessary issues viz.,

(1) Whether the plaintiff has title to the suit property?

(2) Whether the plaintiff is entitled to rent as claimed? and

(3) Whether the plaintiff is entitled to possession.

7. Relying on the documents filed by the plaintiff viz., Municipal Tax receipts, account ledgers as well as Ex.A30 and A.34 the trial court agreed with the case of the plaintiff and decreed the suit as prayed for with costs.

8. Aggrieved by the judgment and decree of the trial Court, the 1st defendant temple preferred an appeal in A.S. No. 138 of 1981 on the file of District Court, 3Coimbatorc. After determining necessary points for consideration, the lower Appellate Court has also very much relied on the documents referred to and accepted by the trial Court, consequently confirmed the decree of the trial Court and dismissed the appeal with costs.

9. Against the concurrent findings of the courts below the unsuccessful 1st defendant temple filed the present appeal before this Court. While entertaining the second appeal, this Court has framed the following substantial questions of law for consideration:

(1) Whether a person who has been in possession of the temple as an hereditary trustee can claim title to one of the items of the property belonging to the temple as his own?

(2) Whether the certificate issued by the Assistant Commissioner, Hindu Religious and Charitable Endowments is conclusive as the question of title to the immovable properties belonging to the temple?

(3) Whether the right of a temple can be negatived on the mere strength of the assessment register standing in the name of the plaintiff/re- spondent or any other person?

10. Mr.S.Gopalaratnam, learned Senior Counsel for the appellant-temple raised the following contentions:

(1) The courts below committed an error in entertaining the documents marked on the side of the plaintiff without specific pleadings either in the suit notice nor in the plaint?

(2) The plaintiff having filed the suit for declaration, it is for him to allege and prove his case by positive evidence. In this case according to the learned senior counsel, the plaintiff has failed to prove his case and the decree of the courts below is opposed to all canons of justice.

(3) The courts below very much relied upon the municipal tax receipts in order to prove the title of the plaintiff in respect of the suit property which according to the learned Senior counsel, an entry of property in municipal register in the name of a person is not any evidence of title of that person to the property.

(4) The Courts below went wrong in accepting the ledgers produced by the plaintiff without corresponding day books in order to substantiate his case.

(5) The reliance by the Courts below with respect to Ex.A.30 and A.34 is improper inasmuch as both the documents are inadmissible in evidence, being the photo copies.

In support of the above points, the learned Senior Counsel also very much relied on the following decisions:-

(1) 55 MLJ Short Notes page 23 (Division Bench)

(2) Brahma Nand v. Mathra Puri, ;

(3) Chandi Ram Deka v. Jamini Kanta Deka, A.I.R. 1952 Assam 92 :ILR 1951 Assam 329;

(4) Mahabir Prasad v. Satyanrain, ;

(5) Deluxe Road Lines v. S.K. Palani Chetty, 1992(1) L.W. 262;

(6) Roman Catholic Mission v. State of Madras, .

11. On the other hand, Mr.Ananthakrishna Nair learned counsel appearing for the respondents raised the following submissions.

(1) The plaintiff has proved his case by producing municipal extracts, ledger maintained by the plaintiff in respect of the suit property and other documents viz., Ex.A.30 to A.34;

(2) In the absence of title deed, it is open to the Courts to rely upon municipal tax extracts and other account books (ledgers) for a limited purpose of proving the title of the plaintiff;

(3) Even though Ex.A.30 and A.34 are photo copies, the same has been marked without any objection before the trial Court, hence the admissibility of those documents cannot be raised at the appellate stage.

He also relied upon the following two decisions in support of his submissions:

(1) Subba Rao v. Venkata Rama Rao, and

(2) Vishwa Vijay v. Fakhrul Hassan,

12. I have carefully considered the rival submissions made in the above case. The 1st respondent herein who is the plaintiff has instituted the suit for declaration of his title to the suit property, for recovery of possession and for arrears of rent. The 1st defendant/3appellant is the temple and the 2nd defendant is a tenant and in possession of the suit property. The suit property bears Door No. 40, T.S.No.201 in Ward No. 5, Block No. 4. The above factual details arc not disputed. The dispute is only with regard to the title to the suit property. The plaintiff who was once trustee of the temple claims the suit property as his absolute property. On the other hand, the 1st defendant/temple claims to the suit property as its own. Admittedly the plaintiff who has filed the suit for declaration of his title has not filed the title deeds relating to the suit property. In the absence of title deeds the plaintiff very much relied upon the municipal registers extracts and other documents in support of his case.

13. It is the case of the plaintiff that the assessment to the suit property in the Municipal register stands in the name of the plaintiff. According to the plaintiff, originally the assessment in respect of the suit property stood in the municipal register in the name of three persons viz., K.N. Palaniswamy Goundcr, R.V.Easwaramurthi Gounder and Narayanaswami Gounder. Easwaramurthy Gounder (deceased) is the father of the plaintiff. From 1946-47 till 1959 the property stood registered in the name of those three persons. However, after the death of Easwaramurthi Gounder, the father of the plaintiff, the name of the plaintiff came to be registered along with other two persons and subsequently, the names of K.N. Palaniswami Gounder and A.Narayanaswamy Goundcr were deleted from the register and the plaintiff’s name alone has stood registered in respect of the suit property. Ex.A.2 is the extract from the property tax demand register of Tiruppur Municipality from 1946 to 1973-74. Ex.A.3, dated 16-9-1971 is the receipt for payment of property tax in respect of the suit property standing in the name of the plaintiff. The abovesaid documents have been very much relied on by the plaintiff in order to prove his title. The perusal of the judgment of the courts below show that both the courts have accepted the case of the plaintiff. In this respect, the learned Senior Counsel viz., Mr.S.Gopalaratnam, appearing for the appellant brought to my notice a decision of Division Bench of our High Court reported in 55 MLJ (Short Notes) Page 23 and contended that
” an entry of property in a Municipal register in the name of a person is not any evidence of title of that person to the property”

The learned Senior Counsel has also contended that those entry in the Municipal register in respect of payment of tax has very little value as evidence of title and the conclusion of the courts below relying upon those documents are untenable. Since the above referred Division Bench Judgment has been reported in the form of only Short Notes, I called for the full judgment rendered in A.S.No.263 of 1924 dated 12.9.1928 Devadoss and Walsh, JJ from the Registry. It is useful to extract the relevant portion from the Division Bench Judgment referred above,
“The municipal registry in respect of the house was in Mr.Ranga Rao’s name from 1900. It does not appear how the house came to be registered in his name. There is no evidence that the house was in Tungamma’s name and that it was afterwards transferred to the name of Mr.Ranga Rao. The mere fact that the municipal registry was in the name of Mr.Ranga Rao is no ground for the presumption that Mr.Ranga Rao was the owner of the house, for a municipal registry is no evidence of title. Under the District Municipalities Act taxes could be collected from the occupier or owner of a house. The registers of houses are maintained for the purpose of collecting municipal assessment and not as evidence of title. In Muhammed Sulaiman v. Sakina Bitra, I.L.R. 44 All 674 it was held that a person in whose name the municipal entry stands as regards a house could not be considered as the ostensible owner within the meaning of Section 41 of the Transfer of Property Act. The learned Judges observe at page 676 “The entry of the name of Badrullah in the house-tax register was only made for the purpose of assessment and collection of house- tax and was not intended for registering title” In Meuvanji Muncherji Cama v. Secretary of State for India, I.L.R. 39 Bom. 664 at page 681 Viscount Haldane in delivering the judgment of the Privy Council observed with reference to the Bombay City Land Revenue Act of 1876. “The Act does not purport to establish a system of registration of title, which is to supersede all other means of conveying or registering the title to land or to relieve purchasers or mortgagees from the ordinary obligation to sec that they get what they have contracted to get. Nodoubt, the register is of considerable use even for conveyancing purposes. But neither the language of the statute nor the character of the officials, who have the duty of keeping it, is such as to indicate an invitation to the public to rely on statements in the records as to title which may have to be made incidentally, but which arc not expressed and do not purport to be decisive of the rights of the Government or of those of the individual as to matters which go beyond liability to contribute to land revenue.” A revenue pattah is not necessarily evidence of title. It is only evidence of the agreement between the Government and the person in whose name the land is registered for purposes of revenue. It is a well-known fact that there are hundreds of cases where the person in whose name the pattah stands is not the owner of the land. In the case of municipal registers even the presumption which could be made in the case of revenue pattahs cannot be made. For, the municipal register is maintained only for the purpose of assessment and the notice of assessment is issued “to owner or occupier.” A person in the occupation of a house can be made to pay the municipal assessment. That being so, the fact that the house was registered in the name of Mr.Ranga Rao would not make him the ostensible owner of the property. Further, there is no evidence that the registry in the name of Mr.Ranga Rao was made with the consent of the plaintiff express or implied.”

In view of the law laid down by the Division Bench even as early as in the year 1928, much reliance of municipal extracts and tax receipt in order to prove title of the plaintiff cannot be accepted. Hence the first submission of the learned Senior Counsel is well-founded.

14. The courts below very much relied upon the ledgers Ex.A.9 to A.28 in order to prove that the plaintiff has been collecting rent from the 2nd defendant from the inception of the tenancy. The objection of the learned Senior Counsel is that in the absence of day book, the entries in the ledgers cannot be accepted. No doubt it is true that payment of rent by the 2nd defendant has been entered in the said documents along with other family and sundry expenses. It is not a document maintained for the temple accounts. The above referred ledgers were brought by the plaintiff himself without further corroborative evidence of day books. The perusal of the above ledgers show that some discrepancies and the accountant or the author of the entries made in the ledger has not been examined in order to corroborate the oral evidence of P.W.I. With regard to those documents, the learned Senior Counsel relied upon Chandi Ram Deka v. Jamini Kanta Deka, AIR.. 1952 Assam 92 : I.L.R. 1951 Assam page 329. In the said decision it is held that
“That account book, in order to be relevant must be kept regularly in the course of the business. They must be in conformity with some known system of accounting”

A perusal of the above said ledgers show that they were not in conformity with some known system of accounting as pointed out in the said judgment. Another judgment of this Court viz., Deluxe Road Lines v. S.K.Palani Chetty, 1992 (1) L W 262 has been cited by the learned Senior Counsel. In the said judgment, Srinivasan, J, has held as follows:-

“It is a well settled proposition of law that mere production of accounts will not be sufficient to charge any person with any liability. The requirements of Section 34 of the Evidence Act will not be satisfied by the production of accounts simpliciter”

Here also except the production of the account books the person who wrote the accounts has not been examined. Where the books produced are merely the ledger not supported by any day book or containing no entries of transactions as they took place, the books do not fulfil the requirements of Section 34 of the Evidence Act. The account books themselves are not sufficient to show that the person mentioned therein is the owner of the property and the party has to show by some independent evidence that the entries in his books represented real and honest transactions and that the moneys paid or the transaction took place in accordance with those entries. In order that a document could be relied upon as a book of accounts, it must have the characteristic of being fool-proof and the ledger by itself could not be a book of account of the character contemplated by Section 34 of the Evidence Act. Nodoubt, Mr. Ananthakrishna Nair learned counsel appearing for the respondents pointed out that the 2nd defendant was examined as D.W.2. deposed that he had paid rents to the plaintiff till 1969. However, in view of the principles narrated above, I am unable to give much weight to those entries in Ex.A.9 to A.28.

15. The courts below after referring to Ex.A.30 dated 14.10.1969 and Ex.A.34 dated 6.7.1970 came to the conclusion that the suit property belongs to the plaintiff. Ex.A.30 dated 14.10.1969 is the photo copy of the order of the Assistant Commissioner, H.R. & C.E. (Administrative) Department, Coimbatore and Ex.A.34 dated 6.7.1970 is the photo copy of the rental agreement entered between the plaintiff and the 2nd defendant. Admittedly, both the said documents are only photo copies. The learned Senior Counsel contended that inasmuch as both the above two documents being photo copies arc not admissible in evidence until the non-production of the primary evidence is satisfactorily accounted for. There is no explanation offered by the plaintiff as P.W. 1 with regard to the non-availability of the original documents relating to Ex.A..30 and A.34. At this stage, the learned Senior Counsel has also relied on a decision reported in Roman Catholic Mission v. State of Madras, . The facts and the law lay down by the Apex Court in this regard is as follows:-

“As there is no document recording the grant of inam and its conditions, one has to turn to a number of documents from which the High Court and the court below have drawn opposite conclusions regarding what was included in the inams. There is of course, no dispute that the inam must have comprised the melwaram at least. That must have been done in any event. Thus the sole question is whether it comprised the kudiwaram also. In reaching the conclusion that both warams were included, the District Judge took into consideration certified copies of certain leases from the record of an old case O.S.No.124 of 1944 of the Court of Subordinate Judge, Madurai. These documents arc Exs. B.4, 5,6 and A.68, 69 and 77. Ex.B.4 is a karalnama (agreement) executed for the fasli years 1348 and 1349 by which the lessees undertook to hand l/3rd share of the produce as melwaram and to retain 2/3rd share as kudiwaram from the lands leased out of keelapappapathu. Ex.B.5 is another lease for cultivating the whole of keelapappapathu nanja(wet) lands. Ex.B.6 is a muchilika in respect of nanja lands in keelapappapathu by which lessee undertook to pay half produce as melwaram and to retain the other half as kudiwaram. These documents undoubtedly would have thrown light upon the matter but they were not admissible because they were only copies. The originals were not produced at any time nor was any foundation laid for the establishment of the right to give secondary evidence. The High Court rejected them and it was painly right in so deciding.”

Nodoubt, Mr.Ananthakrishna Nair, learned counsel for the respondents contended that even though the said documents are photo copies, it proves, the case of the plaintiff. I have carefully perused Ex.A.30 and A.34. Both are photocopies. Admittedly, the originals were not produced before the Court in order to mark the said documents. As a matter of fact, Ex.A.34 is not at all readable and it is surprised how the courts below have relied upon both the documents which are inadmissible.

16. Regarding the said documents viz., Ex.A.30 and A.34 the learned Senior Counsel has also raised one more objection viz., those documents were not referred to in the first document viz., Ex.A.4 dated 6.1.1972 i.e. legal notice issued by the plaintiffs counsel to the 2nd defendant as well as another document Ex.A.6 dated 13.9.1973 i.e. legal notice issued by the plaintiffs counsel to the 1st defendant. In the said documents nothing has been mentioned relating to the contents of Ex. A.30 and A.34. Likewise, there is not even an averment in the plaint. It is settled law that without a specific plea, no amount of evidence can be let in. Admittedly the contents of the above documents have not been mentioned either in the suit notice or in the plaint. Another important fact is that even Ex.A.34 was not marked through P.W.I when he was deposing before the Court. Only through D.W.2 is the 2nd defendant, the said document has been marked and that too at the time of cross examination. In those circumstances, in the absence of anything in the suit notice and in the plaint, any amount of evidence either through P.W.I or through D.W.2. cannot be entertained. Hence the objection raised by the learned Senior Counsel in this regard is also acceptable.

17. Mr.Ananthakrishnan Nair relied upon Subba Rao v. Venkata Rama Rao, with regard to Ex.A.30 and A.34 cannot be accepted. In the said Andhra Pradesh judgment it is held as follows:-

“When a party has waived proof of circumstances justifying the giving of secondary evidence, and the secondary evidence is allowed he cannot raise the objection to its admissibility in appeal.”

As stated by me, both the contents of the said documents were not referred to by the plaintiff in the suit notice or in the plaint, hence the decision referred to by the learned counsel for the respondent is not applicable to the facts of the present case. By relying upon Vishwa Vijay v. Fakhrul Hassan, , Mr.Ananthakrishna Nair, learned counsel for the appellant submitted that the entries in the revenue record ought to be generally accepted on their face value and the court should not embark upon an appellate enquiry into their correctness. In this case, no revenue record has been relied upon by either of tiie parties. Inasmuch as the main documents relied on by the plaintiff are inadmissible in evidence, the contents of the same cannot be relied upon. Hence the judgment referred by the learned counsel for the respondent is not quite relevant for the present case.

18. On the basis of the above discussion, the reliance placed on the documents produced on the side of the plaintiff cannot be given effect to. If those documents are eschewed, absolutely there is no acceptable evidence on the side of the plaintiff except the ipse dixit of the oral evidence of P.W.l. It is needless to mention that in order to get a decree for declaration the plaintiff has to succeed or fail on the title that he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant has no title to the suit property. In other words, the party who lays claim must establish it affirmatively by proper legal evidence.

19. In the light of the above discussion, the findings of the courts below cannot be sustained and I am satisfied that the plaintiff has miserably failed to prove his title. As pointed out by the Apex Court in its decision reported in Brahma Nand v. MathraPuri, , the plaintiff has to succeed or fail on the title that he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant has no title to the property. Applying the above proposition of law, as pointed out by the Apex Court, I am of the firm view that the plaintiff has not established his case, consequently the judgment and decree of the courts below are erroneous and liable to be set aside.

20. For all the reasons, the judgment and decree of the courts below arc set aside. The suit filed by the plaintiff in O.S.No. 404 of 1978 on the file of Subordinate Judge, Coimbatore is hereby dismissed with costs. The Second Appeal is allowed with costs.

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