IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24/03/2004
CORAM
THE HON'BLE MR.JUSTICE M. CHOCKALINGAM
SECOND APPEAL NO.441 OF 1993
1. C. Arumugam
2. C. Subramaniam
3. C. Selvaraj
4. Muthathal .. Appellants
-Vs-
1. T.Arumugam
2. R. Sornavalli
3. R. Vellaichamy
4. R. Ramesh
5. R. Venkatesh .. Respondents
This second appeal is preferred under Section 100 of CPC against the
judgment and decree dated 31.1.1992 made in AS No.30 of 1989 on the file of
the learned Subordinate Judge, Sivaganga reversing the judgment and decree
dated 21.12.1988 made in OS No.248 of 1988 on the file of the learned District
Munsif, Sivaganga.
!For Appellants : Mr.K.Lavan
for Mr.E.M.Sudarsana Natchiappan
^For Respondents : Mr.S.Natarajan
:JUDGMENT
This second appeal is directed against the judgment of the learned
Subordinate Judge, Sivaganga made in AS No.30 of 1989 wherein the judgment of
the trial court in a suit for declaration and permanent injunction was
reversed by granting a decree in favour of the plaintiffs.
2. The short facts for the disposal of this second appeal are as
follows:
The first plaintiff’s father Doraisamy Ambalam and the husband of the
second plaintiff late Ramanathan Ambalam were brothers and the plaintiffs 3 to
5 are the children of the second plaintiff and late Ramanathan Ambalam. The
suit property originally belonged to the ancestors of these plaintiffs. The
great grand father of the first plaintiff and his brother executed a
hypothecation deed on 22.10.1910 hypothecating the suit property to one
Subramanian Chettiar. The said Subramanian Chettiar filed a suit in OS No.752
of 1917 before the District Munsif, Sivaganga for recovery of mortgage debt
and obtained decree. From the date of the delivery, the said Subramanian
Chettiar had been in possession of the property till his life time and on his
death, his son sold the land to Doraichamy Ambalam by a registered sale deed
dated 26.12.1952. Hence the property belonged to the family of the plaintiff.
The defendants claimed the property on the basis of certain Revenue Court
proceedings before Settlement Department. Patta was issued in favour of the
plaintiffs and the land has also been subdivided amongst the plaintiffs’
family and till date they continued to be in possession of the property by
paying kist. Now, recently, the Special Tahsildar for land records under the
updating of land records has passed orders cancelling patta issued in favour
of the plaintiffs and issued patta in favour of the defendants. The
continuous payment of kists from 1958 till date with records of title proving
the origin of their title and possession of the plaintiffs to the property.
The defendants are trying to interfere with the possession of the property,
and hence, there arose a necessity for filing of the suit.
3. The suit was resisted by the defendants stating that except the
defendants 2 to 5, the first defendant is having other daughters; that they
were not added as parties to the suit; that the plaint averments are false;
that the suit property was not in possession of the predecessor-in-title of
the plaintiffs; that the property was not mortgaged to Subramaniam Chettiar;
that the property was allotted to the first defendant, subsequent to the
partition between the first defendant and his pankalis; that the first
defendant has been paying tax; that it is false to state that the first
defendant attempted to trespass in to the suit property, and hence, the suit
was to be dismissed.
4. The trial court framed necessary issues, tried the suit and
dismissed the same. Aggrieved, the plaintiffs took it on appeal, where the
judgment of the trial court was reversed and a decree was granted in their
favour. Thus, the defendants have brought forth this second appeal.
5. At the time of admission, the following substantial questions of
law were formulated by this Court for consideration:
1) Whether the patta issued under the Estate Abolition Act 26 of 194 8
is binding on the rival claimants after fulfilling all the appeal provisions?
2) Whether the records maintained by the Revenue authorities perfected
after giving all chances of hearing according to the Revenue Board Standing
Order is final upon the rival claimants?
3) Whether the up-dating land records scheme patta confirmed after
satisfying all the requirements of appeal provisions in binding on the rival
claimant?
6. Heard the learned counsel for the appellants and also the learned
counsel for the respondents on those contentions.
7. This Court has paid its full attention on the rival submissions
and made a thorough scrutiny of the materials available.
8. As could be seen above, the plaintiffs sought declaration in
respect of the suit mentioned landed property measuring to an extent of 8
acres and 12 cents in S.No.276/2 basing on their title under Ex.A.1 to A.3.
From those documents, it could be seen that the mortgage deed was executed in
favour of one Subramaniam Chettiar by the plaintiffs’ ancestors under Ex.A.1
dated 22.10.1910. Since the same was not discharged, a suit was filed in OS
No.752 of 1917 and following the decree, the property was brought in execution
in EA No.439 of 1921. Ex.A.2 would evidence the delivery of the property to
Subramaniam Chettiar. During the life time of Subramaniam Chettiar and after
his life time, the property was under the enjoyment of one Kumarappan
Chettiar, who was the son of Subramaniam Chettiar. The said Kumarappan
Chettiar has executed a sale deed in the year 1952 under Ex.A.3 in favour of
the father of the first plaintiff, and thus, the father of the first plaintiff
got title to the property and it devolved upon the plaintiffs. 9. From
Exs.A.4, A.5 and A.6, it could also be seen that originally pattas were also
granted in favour of the plaintiffs’ family. In order to prove their
possession, the plaintiffs had relied on Ex.A.7 to Ex.A.50, the kist receipts,
which would cover the period from 1959 to 1986 and also the adungal extracts
from 9.6.1987 to 30.11.1988. It is pertinent to point out that the suit was
brought by the plaintiffs in the year 1988, and thus, the above documents
would speak of the title as to how the plaintiffs derived the title of the
property and the property continued to be in their possession till the time of
filing of the suit.
10. What was all contended by the defendants before the courts below
and equally here also was that the property belonged to the family of the
first defendant ancestrally; that there was a family partition among the
members of the family; that a suit was filed in OS No.99 of 1952 and a
rajinama decree was entered into between the parties, wherein this property
was allotted to the first defendant and the same was shown as 10th item; that
pursuant to the said Rajinama decree, the first defendant got the possession
of the property and has been in continuous enjoyment of the same; that while
the defendants came to know about the grant of patta, they made an application
before the Tahsildar; that the patta granted in favour of the plaintiffs were
cancelled and pattas were issued in favour of the defendants; that though the
same was agitated by the plaintiffs before the appellate forum and also in the
High Court in WP No.264/1962, their claims were rejected, and thus, the grant
of patta in favour of the defendants and the cancellation of patta in favour
of the plaintiffs have become final.
11. Though the writ proceedings came to an end in the year 1964, the
plaintiff have brought forth the suit in the year 1988, i.e. after a delay of
22 years. It is not in controversy that pattas were originally granted in
favour of the plaintiffs’ predecessor-in-title under Exs.A.4, A.5 and A.6.
While the rival claim was made by the defendants, patta was granted in their
favour. It is true that a writ petition filed by the plaintiff in WP
No.264/62 was dismissed, but with an observation that the plaintiffs could
approach the civil Court and establish their title. It is also true that
there was a delay of 22 years in filing the present suit. But, the plaintiffs
come forward to state that the property continuous to be in their possession
all along as it would be quite evident from the available materials and since
there was an attempted encroachment in the peaceful possession and enjoyment
of the property, there arose a necessity in filing the suit.
12. Needless to say that there were settlement proceedings, wherein
pattas were issued in favour of the defendants. Even it was also observed in
WP No.264/62 that the plaintiffs could establish their right by approaching
the Court of Civil law. Now, the instant suit was brought forth seeking
declaration of their title and for permanent injunction also. At this
juncture, it has to be pointed out that the plaintiffs have placed sufficient
documentary evidence to show that they have been in continuous possession of
the property till the time of filing of the instant suit. Under the stated
circumstances, the suit was filed after 22 years from the time of the
dismissal of the writ petition cannot be a reason to deny the relief asked
for. If it was found by sufficient evidence that they are entitled to, it has
to be pointed out that the defendants have not stopped with the denial of
title of the plaintiffs, but also claimed title to the property. No
documentary evidence has been brought forth to speak the origin of the title
except the mere assertion that the property belonged to them ancestrally and
subsequently, by way of a rajinama decree in OS No.99 of 1 952, it was divided
among the members of the family and that it came to the hands of the first
defendant. But, no documentary evidence was available. Even the Rajinama
decree would not be binding on the plaintiffs, since they were not parties of
the said proceedings. On the contrary, the plaintiffs have proved title of
the property and continuous possession by sufficient documentary evidence, as
discussed above.
13. Hence, the first appellate court, on discussion and consideration
of the evidence, in extenso, has granted the relief in favour of the
plaintiffs as asked for and rightly too. This Court is unable to notice any
reason to interfere in the judgment of the first appellate Court. This second
appeal fails and the same is dismissed, leaving the parties to bear their
costs.
Index : Yes
Internet : Yes
vvk
To
1. The Subordinate Judge, Sivaganga
2. The District Munsif, Sivaganga
3. The Record Keeper, VR Section,
High Court, Madras