ORDER
1. Since caveat was entered, I heard the counsel for respondent also at the time of admission itself.
2. Parties herein will be referred according to their rank in the suit.
3. Plaintiff filed O.S.No. 366 of 1993 on the file of District Munsif Court, Sathur to declare his title to the property and for consequential injunction to restrain the defendant, his men and agent from interfering with his possession and enjoyment of plaint schedule property and to pay cost of the suit. It is stated in the plaint that property originally belonged to one
Shanmuga Nadar, who is the grandfather of plaintiff. After his demise, suit property devolved on plaintiff in oral partition and eversince oral partition, he is is exclusive possession of the same for the past 40 years. Patta for the property stands in the name of plaintiff with effect from 7.11.1959. Plaintiff is also paying kist to the property from 20.5.1959. Patta pass book is also given in the name of plaintiff by Tahsildar, Sathur.
4. Reason for filing the suit is stated to be that on 4.10.1993, defendant along with his men, came to the suit property and tried interfere with the peaceful possession of plaintiff. Though plaintiff restrained defendant plaintiff apprehends interference of defendant in enjoyment of suit property. The cause of action for the suit arose on 7.11.1959 on which date patta for suit property was given to plaintiff, 10.12.1979 when patta pass book was issued to plaintiff and on 4.10.1993 when defendant attempted to interfere in the possession of plaintiff. Suit was therefore filed by plaintiff to declare his title to the suit property and for consequential injunction.
5. In the description of property, it is stated that property included Block No. 20, T.S.No. 68, vacant site in Ward-D, Sivakasi town, Sattur Taluk having an area of 1265 sq.metres. In brackets it is stated Viswanatham village old patta No. 52, Survey No. 310/1-0.55 cents.
6. It is stated by appellant, which is not controverted by respondent that 1265 sq. metres will be nearly 35 cents and not 55 cents.
7. In the written statement filed by the defendant, they denied the title of plaintiff. According to defendant, suit property is a portion of larger area having more than 2.73 acres in pymash No. 350, originally belonged to Ramasamy Naicker, son of Rengappa Naicker. It is their case that Ramasamy Naicker was in exclusive possession and enjoyment of property. Ramasamy Naicker leased out an extent of 9 cents on the south west to the local fund for quarrying purpose. Whileso, appellant purchased the property through its secretaries as per sale deed dated 1.8.1921 for valuable consideration of Rs. 2,500. It is said that eversince the date of purchase, defendant is in possession of the property. The allegation that attempt to trespass is denied. Defendant prayed for dismissal of the suit.
8. On the above pleadings, trial court took oral and documentary evidence. Exs.A1 to A5 were marked on the side of plaintiff and plaintiff got himself examined as PW1. On the side of defendant, Exs. B1 and B2 were marked and the present Secretary got himself examined as DW1.
9. Trial Court after evaluating entire evidence came to the conclusion that plaintiff is in exclusive possession of the property and on the basis of patta granted by the authorities title was also declared. The suit was decreed as prayed for.
10. The matter was taken on appeal in A.S.No.176 of 1996 on the file of Additional Subordinate Judge’s Court, Srivilliputhur. Lower appellate court also dismissed the appeal confirming the decree and judgment of the trial court.
11. Lower appellate court found that the entire extent of property in 2 acre and 73 cents as contended by appellant. It is also inam property and lower court also found that as per Ex.B1, defendant’s predecessor purchased the property. After abolition of inam, pymash No. 350 was divided into two as 350/a and 350/1. Lower appellate court further found that as per Ex.B2, 9 cents of land in Survey No. 350/a has been given to local fund office for the purpose of quarrying. Thereafter, lower appellate court dealt with the plaintiff’s document wherein it is found that as per Ex.A1, patta has been given and patta Number is 52. pymash number is also mentioned as 350/1 and the same has been renumbered as survey No. 310/1. Patta has been given for 55 cents. Lower appellate court further found that plaintiff has been given patta for the property and since the same has not been objected by Ramasamy Naicker or any other person claiming under him, patta will have to be given much importance in declaring title of the plaintiff. It further held that there is no evidence in the case to show the plaintiff has been enjoying the property from the year 1959 and consequently, plaintiff must be in possession of the property. The appeal was dismissed confirming the decree and judgment of the trial court.
12. The concurrent judgment of the courts below is assailed in this second appeal.
13. The following substantial questions of law have been raised in the memorandum of appeal;
(a) Whether the courts below erred in law and misdirected themselves in granting the declaration relief merely on the basis of patta in the absence of any other oral or documentary evidence of title or in the absence of alleged acquiring of suit property in the alleged oral partition?
(b) Whether the courts below erred in law and misdirected themselves in granting the relief with respect to the entirety of the suit property in the absence of any evidence or explanation for entitlement of more extent of lands by the plaintiff/respondent when admittedly lesser extent is granted under Ex.A1 settlement proceedings?
14. Learned senior counsel for respondent also argued the matter on the basis of above substantial questions of law.
15. Both these questions could be considered together. Plaintiff alleges that property originally belonged to his grandfather and on his death, on the basis of oral partition, be became the absolute owner. Absolutely no evidence have been let in show that the property originally belonged to his grandfather and how he acquired the same. There is also no evidence regarding oral partition. Reliance was placed on Ex.A1 patta granted, wherein it is said, “Vazhimurai”. It means devolution of interest. In Ex.A1, pymash number as well as survey number is mentioned. Pymash number is stated to be 350/1 and survey number 310/1. According to revenue account, the extent of property is 23 cents whereas as per settlement, it is stated as 55 cents. Patta has been given to plaintiff and the patta number is 52.
16. In this connection Ex.B1 assumes much importance. Long before Ex.A1, entire property of 2.73 acres under pymash No.350 was purchased by appellant’s predecessor from one Ramasamy Naicker. It also refers to 9 cents of land in the same survey number, which has been given to the local fund office. Statement in Ex.B1 is supported by Ex.B2 from which it could be seen that is inam land and all sides of 9 cents of land is covered by pymash No. 350. After inam was abolished, it has been re-surveyed and it is admitted by both sides that survey number is 310/1. That could be seen from Ex.A2 also which is an extract of town survey register. In Ex.A2, area of property is mentioned as 1265 sq. metres as mentioned in schedule of properties in the plaint. When antecedent title shows that entire property in pymash No. 350 belong to appellant out of which 9 cents have been given to the local fund office, it is for the plaintiff to prove that he obtained right over the property by some mode known to law. Except for producing patta or mutation entries, no evidence have been let in. As stated earlier, Ex.A1 patta only shows that patta has been changed in the name of plaintiff since property devolved on him. It therefore follows that plaintiff cannot be ancestral title holder. When there is no evidence regarding plaintiff’s predecessor had title of the property, it is for the plaintiff to prove, how he acquired the property after the death of Shanmuga Nadar, his grandfather. Reliance was only placed on ExsA1 and A2 for the said purpose. Lower appellate court also found that predecessor of defendant was owner of 2 acre and 50 cents in pymash No. 350. I feel that reliance placed by courts below on the patta is not correct.
17. In Sawarni v. Inder Kaur, of the Judgment their Lordship held thus,
… Mutation of a property in the revenue record does not create or extinguish 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…” (Italics Supplied)
18. In Baleshwar Tewari v. Sheo Jatan Tiwary, , also, in para 15 of the Judgment, a similar view has been taken.
19. In Balwant Singh v. Daulat Singh, , their Lordships said that mutation entries will not convey or extinguish the right over the property.
20. In view of these legal position, it goes without saying that no reliance could be placed on Exs.A1 and A2. It is not the case of plaintiff that he obtained title of the property on the basis of order of the Government as an assignee of the property. His claim is based only on devolution of right i.e., derivative title. In such a case he is bond to prove the ancestral title and how the property devolved on him.
21. Learned Senior Counsel for respondent also agreed that reliance could not have been placed on mutation proceedings for appreciating the evidence in the case. So long as Ex.B1 is not challenged, it follows that defendant got better title than plaintiff.
22. Learned counsel for respondent submitted that even no title is proved, he is entitled to continue in possession of property and the finding of the courts below to that extent is to be confirmed. The argument is based on the decision reported in M.K. Setty v. M.V.L. Rao, . Relying on the decision learned senior counsel argued that in the case before Honourable Supreme Court also the question was similar that the title was found against. But, defendant was permitted to agitate the question as to whether he is entitled to injunction on the basis of his possession. In para 5 of the Judgment, their Lordships held thus,
2… The plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property. Once it is accepted, the trial court and the first appellate court have done, that the plaintiff was in possession of the property even since 1947 then his possession has to be protected as against interference by someone who is not proved to have a better title than himself, to the suit property. On the findings arrived at by the fact finding courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily. Therefore, in our opinion, the High Court was not right in interfering with the judgment of the trail Court as affirmed by the first appellate court regarding relief No.2″ (Italics supplied)
23. But I do not think that the above decision will help the respondent in any way. In that very decision. Their Lordships have held that injunction cannot be granted against a person who has got a better title to the suit property. In this case, I have held that as per Ex.B-1, the appellant has got better title than the plaintiff. In a recent decision of the Honourable Supreme Court reported in Prataprai N. Kothari v. John Braganza, , similar question came for consideration. In paragraph 11 of the judgment, Their Lordships have said thus:
“….It is quite obvious that the learned single Judge had not taken note of the principle of possessory title or the principle of law that a person who has been in long continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner. It is also well-settled that even the owner of the property can get back his possession only by resorting to due process of law.” (Italics supplied)
24. Once it is found that the plaintiff has no title, the question of granting the relief of the basis of possessory title may not arise since the appellant herein is having better title. As against the true owner or as against the person having better title, a person claiming possessory title cannot get injunction.
25. In the result, the concurrent judgments of the Courts below are set aside. The suit filed by respondent-plaintiff is dismissed. The Second appeal is allowed, however, without any order as to costs. C.M.P. No. 7854 of 1999 is closed.