{"id":107273,"date":"2007-12-17T00:00:00","date_gmt":"2007-12-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/a-panneerselvam-vs-ponniah-servai-died-on-17-december-2007"},"modified":"2016-01-25T06:19:31","modified_gmt":"2016-01-25T00:49:31","slug":"a-panneerselvam-vs-ponniah-servai-died-on-17-december-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/a-panneerselvam-vs-ponniah-servai-died-on-17-december-2007","title":{"rendered":"A.Panneerselvam vs Ponniah Servai (Died) on 17 December, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
A.Panneerselvam vs Ponniah Servai (Died) on 17 December, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 17\/12\/2007\n\nCORAM\nTHE HONOURABLE MR.JUSTICE G.RAJASURIA\n\nA.S.No.828 of 1989\n\n\n\n1.A.Panneerselvam\n2.A.Ganesan\n3.V.Udayasuriyan\n4.C.Duraipandi\n5.Pappammal\t\t\t\t\t... Appellants\/Defendants 4 to 7 and D3\n\nVs\n\n1.Ponniah Servai (Died)\n2.V.Palaniyandi Servai (Died)\n3.Vairavan Servai (Died)\n4.Muthuvayiru (Died)\n5.Velusami (Died)\n6.Velammal\n7.Ramasamy\n8.V.P.Chockalingam\n9.V.P.Sundaram\n10.V.P.Palani Mayilsamy\n11.V.P.Nagarajan\n\n(R8 to R11 brought on record as the L.Rs of the deceased R1 vide order dated\n05.03.2007 made in CMP(MD)No.3340 to 3342 of 2006)\n\n12.P.Muthu Vairavan\n13.P.Nagarajan\n14.P.Prabakaran\n(R12 to R14 brought on record as the L.Rs of the deceased R2 vide order dated\n05.03.2007 made in CMP(MD)No.3342 to 3345 of 2006)\n15.Ganesan\n16.Sekar\n17.Ramanathan\n(R15 to R17 brought on record as the L.Rs of the deceased R3 vide order dated\n05.03.2007 made in CMP(MD)No.3346 to 3348 of 2006)\n\n18.Kaleeswaran\n19.Muthusamy\n\n(R18 to 19 brought on record as the L.Rs of the deceased R4 vide order dated\n05.03.2007 made in CMP(MD)No.3349 to 3351 of 2006)\n\n20.Subramanian\n\n(R20 brought on record as the L.Rs of the deceased R5 vide order dated\n05.03.2007 made in CMP(MD)No.3361 to 3363 of 2006)\n\n\t\t\t\t\t\t... Respondents\n\nPrayer: Appeal filed under Section 96 of the  Code of Civil Procedure, against\nthe judgment and decree dated 10.03.1989 in O.S.No.11 of 1985 on the file of the\nSubordinate Court, Sivagangai.\n\n!For Appellants \t\t... Mr.R.Krishnamurthy\n\n^For Respondents\t\t... Mr.V.Nagendran\n\t\t\t\t\tfor R.8 to R.20\n\t\t\t\t   Mr.Elango Ramachandran\n\t\t\t\t\tfor R.6 and R.6\n\n\t\t\t\t   R.1 to R.5 - died.\n\t\n\n\n\n:JUDGMENT\n<\/pre>\n
\tThis second appeal is focussed as against the judgment and decree dated
\n10.03.1989 in O.S.No.11 of 1985 on the file of the Subordinate Court,
\nSivagangai.\n<\/p>\n
\t2. The parties, for convenience sake, are referred according to their
\nlitigative status before the trial Court.\n<\/p>\n
\t3. The facts as stood exposited from the plaint could be broadly but
\nbriefly portrayed thus:\n<\/p>\n
\tDeceased Kailasam Servai was a pious and popular personality among the
\nresidents of Thiruppuvanam and in recognition of his memory, a madam was built
\nin item No.1 of the suit property described in the schedule of the plaint and a
\nTrust was created dedicating item Nos.1 to 5 of the suit properties with the
\nfollowing objects:\n<\/p>\n
\t“(a) Poor feeding has to be done every year on the date of the
\nThirukalyana Utsavam of the Deity of Thiruppuvanam Pushpavaneswarar
\nSoundaranayaki Amman;\n<\/p>\n
\t(b) The elephant vaganam used every year on the 8th day of the said
\nThiruppuvanam Pushpavaneswarar Soundaranayaki Amman Temple Utsavam – has to be
\ndecorated with flowers.\n<\/p>\n
\t(c) The said expenses have to be met from the income of the said items 1
\nto 5 and if there happens to be any surplus it has to be invested properly and
\ncan be utilised for purchase of properties for the benefit of the Trust and the
\nmale descendants of the said Kailasam Servai are to be the Trustees and have to
\nconduct the said trust.”\n<\/p>\n
\t4. The descendants of the said Kailasam Servai are managing the Trust;
\nthey constitute six branches and from each branch, a representative participates
\nin conducting the Trust.  The said madam in item No.1 was enjoying the
\nelectricity connection in the name of Vairavan Servai, the senior patneral uncle
\nof the fourth plaintiff.  Item No.6 of the suit property was purchased from out
\nof the income of the trust properties, on 10.11.1984 in the name of the then
\nofficiating trustees.  Item No.7 of the suit property was purchased on
\n15.09.1973 in the name of the first plaintiff and Balu @ Vairavan Servai, the
\nfather of the first defendant.  A portion of item No.1 of the suit property was
\nacquired for widening Vaigai channel by the Government and compensation amount
\nwas deposited in the Sub Court, Sivagangai and in the connected O.P.No.71 of
\n1978, the plaintiffs 1 to 3 and 5 and P.Sankaramoorthy, the father of fourth
\nplaintiff and Balu @ Vairavan Servai, the father of the first defendant were
\nparties and they got compensation amount and in turn, deposited in the fixed
\ndeposit and the interest arising out of it was utilized for Annathanam and for
\ndecoration of elephant Vaganam on the 8th day of Utchavam and the surplus income
\nwas utilised for purchase of properties.\n<\/p>\n
\t5. The plaintiffs and the said Bala @ Vairavan Servai managed the Trust.
\nThe said Bala due to his old age became inactive and the plaintiffs alone are
\nmanaging the Trust.  The said Bala @ Vairavan Servai died on 09.01.1985 at his
\nage of 80 years.  However, the defendants 4 to 7 claiming to be the
\nbeneficiaries under the said Vairavan Servai are disturbing the plaintiffs in
\nthe performance of their duties as trustees relating to the said properties.
\nThe third defendant claiming to be the tenant in the suit property is supporting
\nthe defendants 4 to 7. Hence, the suit for obtaining the following reliefs:\n<\/p>\n
\t(a) to declare that the undermentioned properties are trust properties
\nbelonging to the said Kailasam Madras Trust situated in item No.1 in
\nThiruppuvanam and the present plaintiffs are now the trustees and
\nrepresentatives of the descendants of late Kailasam Servai;\n<\/p>\n
\t(b) Consequently to pass a permanent injunction – against 3rd defendant
\nfrom entering into the suit item 1 or interfering with the possession of the
\nplaintiffs of suit item 1;\n<\/p>\n
\t(c) to direct the contesting defendants to pay costs of this suit;”\n<\/p>\n
\t6. Per contra, denying and refuting the allegations\/averments in the
\nplaint, the defendants filed written statements.\n<\/p>\n
\t7. The first defendant filed the written statement without contesting the
\ncase of the plaintiffs.  The second defendant accepted the plea of the
\nplaintiffs.\n<\/p>\n
\t8. Whereas the third defendant challenging and refuting, impugning and
\ngainsaying, the allegations in the plaint, would put forth various pleas which
\ncould be pithily and precisely set out thus:\n<\/p>\n
\tThere was no such Madam called Kailasam Madam.  The third defendant is the
\ntenant under the said Vairavan Servai who also executed a will in favour of the
\ndefendants 4 to 7.  Accordingly, he prayed for the dismissal of the suit.\n<\/p>\n
\t9. The defendants 4 to 7 adopted the written statement of the third
\ndefendant.\n<\/p>\n
\t10. The trial Court framed relevant issues.  During trial, on the side of
\nthe plaintiffs, P.W.1 to P.W.4 were examined and Exs.A.1 to A.19 were marked and
\non the side of the defendants, D.W.1 to D.W.5 were examined and Exs.B.1 and B.2
\nwere marked.\n<\/p>\n
\t11. Ultimately, the trial Court decreed the suit as prayed for.\n<\/p>\n
\t12. Being aggrieved by and dissatisfied with, the judgment and decree of
\nthe trial Court, the defendants 4 to 7 and the third defendant figuring
\nthemselves as appellants 1 to 5, respectively filed this appeal on the following
\nmain grounds among others:\n<\/p>\n
\tThe trial Court wrongly relying on Ex.A.3, the order of the Sub Court, in
\nland acquisition proceedings, declared the title in favour of the plaintiffs as
\nthough it is a Trust property.  The will executed by the said Vairavan Servai
\nwas not at all considered by the trial Court.  The trial Court over looked the
\nfact that Ryotwari patta was given in favour of Vairavan Servai and that he was
\nin exclusive possession and enjoyment of it, by paying kist.  There was
\ncollusion between the plaintiffs and the defendants 1 to 3.  (The fact remains
\nthat the third defendant is appellant No.5 here, nevertheless the grounds of
\nappeal would be to the effect as though there was collusion between the
\nplaintiffs and the third defendant.) Accordingly, the appellants prayed for
\nsetting aside the judgment and decree of the trial Court.\n<\/p>\n
\t13. The points for consideration are:\n<\/p>\n
\t(i) Whether the trial Court was justified in relying upon Ex.A.3, the
\norder of the sub Court in O.P.No.71 of 1978 relating to the land acquisition
\nproceedings and also on other documents in arriving at the conclusion that the
\nsuit properties are Trust properties?\n<\/p>\n
\t(ii) Whether there is any infirmity in the judgment and decree of the
\ntrial Court?\n<\/p>\n
\t14. The whole kit and caboodle of facts and figures as found set out in
\nthe records would demonstrate that admittedly and unassailably, the apple of
\ndiscord between the parties is relating to the ownership of the first item of
\nthe suit properties which is a coconut thope measuring 3 acres 27 cents out of
\nwhich as revealed by Ex.A.3, the Government acquired an extent of 66 cents
\nadjacent to Vaigai river.  The defendants 4 to 7 are claiming to be the
\nbeneficiaries under the will dated 16.11.1981 executed by Vairavan Servai in
\ntheir favour relating to the first item of the suit properties.  However, the
\nplaintiffs would challenge the genuineness and validity of the will.  The
\nplaintiffs on the one hand would contend that the first item of the suit
\nproperties along with other items of the suit properties belonged to the said
\nKailasam Trust, Whereas the defendants 4 to 7 would contend that it is their
\nexclusive property.\n<\/p>\n
\t15. Incontrovertibly and indisputably, neither on the plaintiffs’ side,
\nnor on the side of the defendants 4 to 7 any title deed relating to the first
\nitem of the suit property could be produced.  However, the defendants 4 to 7
\nwould develop their arguments without even having marked the relevant pattas and
\ncontend that after abolition of Zamindari system, Ryothwari patta was issued in
\nthe name of Vairavan Servai and thereby he became the absolute owner of it;
\nwhereas the plaintiffs would contend that Vairavan Servai was one among the
\nhereditary trustees of Kailasam Madam along with the plaintiffs and he had no
\nexclusive right over it.  Exs.A.1 and A.2 are the deeds relied on purely for the
\npurpose of highlighting that even as early as in the years 1954 and 1973, there
\nwere references in those deeds about the existence of Kailasam Madam which is
\nmeant for the purpose of carrying out charitable and religious acts as set out
\nsupra.\n<\/p>\n
\t16. In the wake of Exs.A.1 and A.2, by no stretch of imagination, the
\ncontesting defendants could contend that there was no such Kailasam Madam at
\nall.  While submitting the arguments before this Court, the learned Counsel for
\nthe appellants\/defendants 3 to 7 would contend that even though such Trust might
\nbe there relating to other properties, yet the first item of the property cannot
\nbe taken as part of the Trust property as it is covered by Ex.B.2, the will and
\nEx.B.1, the lease deed executed by Vairavan Servai in favour of the third
\ndefendant leasing out that area.  It is quite obvious that Exs.B.2 and B.1 are
\nonly self-serving documents which virtually emerged after the dispute had arisen
\nbetween Vairavan Servai on the one side and the plaintiffs on the other side and
\nEx.A.3, the order of the Sub Court dated 23.09.1982 in O.P.No.71 of 1978, would
\nclearly demonstrate and indicate that Vairavan Servai contended before the Sub
\nCourt that out of the first item of the suit properties, so to say, measuring an
\nextent of 3 acres and 27 cents, an extent of 66 cents acquired by the Government
\nunder the land acquisition proceedings happened to be the Trust property of
\nwhich Vairavan Servai and his Pangalis had joint interest and that the
\ncompensation amount should be divided among them and given individually.
\nThereupon, the Sub Court held that the compensation payable under the Trust
\nproperty cannot be apportioned among the said trustees.\n<\/p>\n
\t17. The learned Counsel for the appellants would contend that the decision
\nof the Sub Court in land acquisition proceedings cannot be taken as a conclusive
\none as the Sub Court while deciding the issue has not decided in its capacity as
\na civil Court deciding original suits.\n<\/p>\n
\t18. Indubitably, despite the findings of the Sub Court in land acquisition
\nproceedings relating to the title under Section 30 of the Land Acquisition Act,
\nregular suits could be filed for asserting the title over the said properties
\nand for the consequential entitlements to compensation.  But, the fact remains
\nthat the said  Vairavan Servai has not chosen to file any such suit asserting
\nhis right over the first item of the suit properties so as to torpedo the
\nfindings of the Sub Court in the land acquisition proceedings.\n<\/p>\n
\t19. It is therefore crystal clear that Vairavan Servai during his life
\ntime admitted candidly and categorically that even by his pleadings before the
\nSub Court that the first item of the suit properties was a Trust property.
\nHowever, he only pleaded that the compensation amount relating to 66 cents of
\nland acquired could be apportioned among his Pangalis and himself, but such a
\nprayer for apportionment was negatived by the Sub Court.  There is no embargo
\ncontemplated under the law that such sort of supine submission made by the
\ndeceased Vairavan Servai, should not be taken for proving the title relating to
\nthe first item of the suit properties in the subsequently instituted suit by the
\ntrustees for getting the status of the suit properties declared as Trust
\nproperties.\n<\/p>\n
\t20. Ex.B.2, the will itself is only relating to the first item of the suit
\nproperties and not even relating to the other items. Ex.A.3, refers to it as
\nTrust property.  Regarding other properties as correctly held by the trial
\nCourt, there is no contra evidence that those are all not Trust properties.
\nExs.A.5 to A.17 would reveal that the electricity tax was paid in the name of
\nVairavan Servai and simply because, electricity connection was obtained in the
\nname of Vairavan Servai who himself claimed to be the trustee under Ex.A.3,
\nthere could be no presumption that the entire first item of the suit properties
\nhappened to be exclusive property of Vairavan Servai.  Ex.A.18 would reveal that
\nthe patta relating to the first item of the suit properties was transferred from
\nthe name of Vairavan Servai to the names of the Trustees including Vairavan
\nServai.  Similarly, Ex.A.19, would also reveal the said fact.  No doubt, from
\nthose two documents, it could be understood that earlier the patta stood in the
\nname of Vairavan Servai.  Simply because of that, there is no presumption that
\nhe had exclusive right over the property and that too in the wake of his
\ncategorical admission before the Sub Court to the contrary.  In fact, Ex.A.3
\nwould also reveal that the land acquisition officer referred the dispute under
\nSection 30 of the Land Acquisition Act by referring the land only as Trust
\nproperty.  In fact, the Land Acquisition Officer had no axe to grind in the
\nmatter, but taking into consideration the then existed position, he described
\nthe property as Trust property.\n<\/p>\n
\t21. The depositions and documents on the side of the plaintiffs are in
\nconformity with the case as put forth by the plaintiffs and their versions,
\nwhereas the depositions and documents on the side of the defendants 3 to 7 do
\nnot prove their title to the suit property as their exclusive property.  At this
\njuncture, I would also recollect the following decisions relating to the fact
\nthat patta will not construe title:\n<\/p>\n
\t(i) Velayudham Pillai v. Sandhosa Nadar and others<\/a> reported in 1973(1) MLJ\n<\/p>\n
44.\n<\/p>\n
\t(ii) Kuppuswami Nainar v. The District Revenue Officer, Thiruvannamalai
\nand others<\/a> reported in 1995 (1) MLJ 426.\n<\/p>\n
\t(iii) M.E.A.Mohamed Ali and others v. The District Revenue Officer<\/a>
\nreported in 2005 (4) CTC 9.  An excerpt from it, would run thus:
\n\t“2. The dispute relates to entries in the revenue records.  It is well
\nsettled that entries in the revenue records does not create or extinguish title
\nnor has it any presumptive value vide M.T.W.Tenzing Namgyal & Ors. v. Motilal
\nLakhotia & Ors.,<\/a> 2003 (5) SCC 1 : JT 2003 (5) SC 173; Balwant Singh v. Daulat
\nSingh, 1997 (7) SCC 137; and Smt.Sawarni v. Smt.Inder Kaur and others<\/a>, 1996 (6)
\nSCC 223 : 1996 (7) JT SC 580.  Such entries are only for the purpose of payment
\nof land revenue.  Hence the parties aggrieved by such entries in the revenue
\nrecords should get their rights adjudicated in a civil suit.  Ordinarily writ
\npetitions should not be entertained against orders for making entries in the
\nrevenue records, as such orders do not affect the rights of any one.\n<\/p>\n
\t3. We make it clear that the impugned judgment of the learned single Judge
\ndoes not create any right in favour of the parties in that case.  We further
\nmake it clear that the order of the revenue authorities is not binding in the
\ncivil suit, and the Civil Court will decide the rights of the parties
\nindependently of the order of the revenue authority.”\n<\/p>\n
As such, it is crystal clear that patta alone will not construe title.\n<\/p>\n
\t22. Hence, in these circumstances, I could see no infirmity in the
\njudgment and decree of the trial Court.\n<\/p>\n
\t23. In the result, the appeal is dismissed, confirming the judgment and
\ndecree dated 10.03.1989 in O.S.No.11 of 1985 on the file of the Subordinate
\nCourt, Sivagangai.  No costs.\n<\/p>\n
rsb<\/p>\n
To<\/p>\n
The Subordinate Court, Sivagangai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court A.Panneerselvam vs Ponniah Servai (Died) on 17 December, 2007 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) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-107273","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nA.Panneerselvam vs Ponniah Servai (Died) on 17 December, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/a-panneerselvam-vs-ponniah-servai-died-on-17-december-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"A.Panneerselvam vs Ponniah Servai (Died) on 17 December, 2007 - 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