{"id":127115,"date":"2011-08-05T00:00:00","date_gmt":"2011-08-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-krishnapillai-died-vs-state-of-tamil-nadu-on-5-august-2011"},"modified":"2018-07-27T00:41:41","modified_gmt":"2018-07-26T19:11:41","slug":"s-krishnapillai-died-vs-state-of-tamil-nadu-on-5-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-krishnapillai-died-vs-state-of-tamil-nadu-on-5-august-2011","title":{"rendered":"S.Krishnapillai [Died vs State Of Tamil Nadu on 5 August, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
S.Krishnapillai [Died vs State Of Tamil Nadu on 5 August, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 05\/08\/2011\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.M.SUNDRESH\n\nSECOND APPEAL No.189 of 1996\n\n1.S.Krishnapillai [died]\n2.K.Vasanthakumar\n3.S.Kumarapillai [died]\n4.N.Parameswari\n5.P.Jayasree\n6.S.Jayakumari\n7.P.Jayanthi\n8.K.Sudha\n9.K.Seela\n10.V.Amudha\n11.V.Sreeja\n12.R.Umaparvathy\n13.U.Chempaka Devi\n14.U.Giruja\t\t \t\t\t... Appellants\nAppellants 8 to 11 brought on record as Lrs of first appellant and appellants 12\nto 14 brought on record as Lrs of deceased third appellant vide order of the\nCourt dated 20.01.2009 made in M.P.(MD).No.1 to 5 of 2008.\t\t\t\n\nVs.\n\n1.State of Tamil Nadu,\n   Represented by the District Collector,\n   Nagercoil, Kanyakumari District.\n\n2.The District Forest Officer,\n   Nagercoil, Kanyakumari District.\t    \t... Respondents\n\nPRAYER\n\nSecond Appeal is filed under Section 100 of the Code of Civl Procedure\nagainst the Judgment and Decree dated 13.10.1995 made in A.S.No.19 of 1993, on\nthe file of the District Court, Kanyakumari at Nagercoil, confirming the\nJudgment and Decree dated 12.02.1993 made in O.S.No.98 of 1989 on the file of\nthe Sub Court, Padmanabhapuram.\n\n!For Appellants\t\t... Mr.T.R.Rajagopalan\n\t\t\t    Senior Counsel\n\t\t\t    For Mrs.J.Anandhavalli\n^For Respondents\t... Mr.K.Chellapandian\n\t\t\t    Additional Advocate General\n\t\t\t\t\n\n:JUDGMENT\n<\/pre>\n
*************
\n\tThis Second Appeal has been preferred by the unsuccessful plaintiffs, who
\nhave lost before the Courts below.\n<\/p>\n
\t2. Claiming title to an extent of 18 Acres in Survey No.583\/1 as
\nabsolutely belonging to the appellants\/plaintiffs, a suit in O.S.No.98 of 1989,
\non the file of the Sub Court, Padmanabhapuram, was filed by them seeking a
\nrelief of declaration and permanent injunction restraining the
\nrespondents\/defendants from interfering with their rights regarding the
\npossession or the disposal and transport of timber cut and removed from the suit
\nschedule property.\n<\/p>\n
\t3. The case of the appellants, as seen from the averments made in the
\nplaint, is that an extent of 18 Acres of land forms part of 95 Acres of lands
\nwas purchased by the appellants\/plaintiffs in Survey No.583\/1, which consists of
\nan extent of 483.50 Acres. Alleging that the respondents\/defendants are claiming
\nthe said extent of land as Government Forest Department land and trying to
\ninterfere with the rights of the appellants\/plaintiffs to cut the trees and
\ndisturbing their possession, they have filed the said suit. The
\nappellants\/plaintiffs have filed the said suit based upon a title under Ex-A-2,
\ndated 26.08.1977. They have also claimed adverse possession as against the
\nrespondents\/defendants. Originally, a claim was made only for eight acres and in
\npursuant to the report of the learned Advocate Commissioner, the plaint has been
\namended seeking the relief of 18 acres.\n<\/p>\n
\t4. A detailed Written Statement has been filed by the
\nrespondents\/defendants followed by an additional Written Statement, in which, it
\nhas been stated that the appellants\/plaintiffs have illegally entered into and
\noccupied the Government Forest land, which has come to the knowledge of the
\nrespondents\/defendants in pursuant to the complaints made by the general public.
\nThey have already cut the trees worth about Rs.34.5 Lakhs. The Revenue Records
\nclearly indicate the fact that the suit properties are the Government Forest
\nLands. Therefore, the respondents\/defendants have prayed that the suit will have
\nto be dismissed.\n<\/p>\n
\t5. The Trial Court has appointed an Advocate Commissioner, who has found
\nthat an extent of 18 acres of lands are in possession of the
\nappellants\/plaintiffs. The learned Advocate Commissioner has also found that
\nsome of the trees belonging to the Government were found in the suit property.
\nThe report has been made based upon the plan prepared and produced by the
\ncounsel for the appellants\/plaintiffs.\n<\/p>\n
\t6. The Courts below have dismissed the suit filed by the
\nappellants\/plaintiffs on the ground that being the plaintiffs, it is for the
\nappellants to prove and establish the title. The appellants\/plaintiffs have
\nnowhere established the fact that the disputed 18 acres of lands form part of 95
\nacres of lands purchased by them under Ex-A-2. There is no explanation as to why
\nthe appellants\/plaintiffs have not marked the plan, which forms part and parcel
\nof the sale deed in their favour under Ex-A-2. The said plan has been marked at
\nthe instance of the respondents\/defendants as Ex-B11 and the vendor of the
\nappellants\/plaintiffs was also examined to say that the specific extent of land
\nsold in favour of the appellants\/plaintiffs has been measured. There is also
\nabsolutely no explanation as to why the vendor of the appellants\/plaintiffs has
\nnot been examined on their behalf.\n<\/p>\n
\t7. The Courts below have rejected the report of the learned Advocate
\nCommissioner by holding that the said report has been given based upon mere
\nsurmises and without any factual basis. The learned Advocate Commissioner has
\nnot measured the entire extent of lands belonging to the appellants\/plaintiffs,
\nand therefore, the findings of the Advocate Commissioner to the effect that the
\nsuit property belongs to the appellants\/plaintiffs has got no factual basis.
\nFurther, the learned Advocate Commissioner has not taken into consideration
\neither Ex-A-11 or the Revenue Records. However, he has chosen to rely upon the
\nplan prepared and produced by the learned counsel for the appellants\/plaintiffs.
\nConsidering the fact that it is the specific case of the respondents\/defendants
\nthat survey stones have been removed and re-planted by the
\nappellants\/plaintiffs, coupled with the documentary evidence under Exs-B5 and B-
\n7, being Revenue Records, the Courts below have rejected the report filed by the
\nlearned Advocate Commissioner. Another finding has been given by the Courts
\nbelow that the re-survey sketch pertaining to Survey No.583\/1 has not been given
\nto the learned Advocate Commissioner, and therefore, it is not known as to how
\nthe said finding has been given. The report of the learned Advocate
\nCommissioner, being a piece of evidence to be appreciated by the Courts of law
\nis not binding on the Courts below, and therefore, considering the discussion
\nmade above, the Courts below have rejected the same.\n<\/p>\n
\t8. On the contrary, the Courts below have made reliance upon Exs-B-5 to B-
\n7 in coming to the conclusion that the suit property belongs to the
\nrespondents\/defendants. A factual finding has been given by the Courts below by
\ntaking into consideration of Exs-B-9 and B-10 read with the evidence of PW-5,
\nwho has stated that the stones have been originally planted as per the Revenue
\nRecords. By taking into consideration of Ex-C-4, the Courts below have come to
\nthe conclusion that the appellants\/plaintiffs encroached upon the suit property
\nfrom 1985 onwards, and therefore, there is no question of adverse possession as
\nclaimed by them. Accordingly, the suit filed by the appellants\/plaintiffs was
\ndismissed.\n<\/p>\n
\t9. The learned Senior Counsel appearing for the appellants\/plaintiffs
\nsubmitted that Ex-B7 has been made behind the back of the appellants\/plaintiffs
\nand it has been filed before the Court, after the evidence on the side of the
\nappellants\/plaintiffs was over. There is no finding about the Survey Number, in
\nwhich the suit property is situated. Exs-A24 and 25 have not been taken into
\nconsideration by the Lower Appellate Court. The report of the learned Advocate
\nCommissioner, being a piece of evidence, ought to have been taken into
\nconsideration and if that has been done, the Courts below ought to have decreed
\nthe suit as prayed for. Hence, the learned Senior Counsel submitted that the
\nSecond Appeal is liable to be allowed by reversing the Judgment and Decree
\nrendered by the Court below.\n<\/p>\n
\t10. Per contra, the learned Additional Advocate General for the
\nrespondents\/defendants submitted that the appellants\/plaintiffs have not
\napproached this Court with clean hands and there is no explanation for removing
\nEx-B-11 and filing another sketch. The learned Advocate Commissioner has relied
\nupon the irrelevant materials. The report of the learned Advocate Commissioner
\nis nothing, but a piece of evidence. DW-6, vendor of the  appellants\/plaintiffs
\nhas clearly spoken to about the specific extent of the lands sold to the
\nappellants\/plaintiffs and the appellants\/plaintiffs were not sure about the
\nspecific extent of suit property in their possession and they have amended the
\nplaint only based upon the report of the Advocate Commissioner. In a suit for
\ndeclaration, the appellants\/plaintiffs will have to establish the title and they
\ncannot place reliance upon a report of the Advocate Commissioner, which cannot
\nbe used to collect the evidence in favour of a party. Hence, the learned
\nAdditional Advocate General submitted that the Second Appeal will have to be
\ndismissed.\n<\/p>\n
\t11. I have considered the above rival submissions made by the respective
\nlearned Senior Counsel and perused the records carefully.\n<\/p>\n
\t12. As seen from the records, originally, the appellants\/plaintiffs filed
\na suit seeking title only to an extent of 8 acres in Survey No.583\/1, which
\ncovers an extent of 483.50 acres of lands, of which under Ex-A-2, the
\nappellants\/plaintiffs have purchased 95 acres. In a suit for declaration, it is
\nfor the appellants being the plaintiffs to establish the title. They were not
\nquite sure of the specific extent of the possession and they have amended the
\nplaint based on the report filed by the learned Advocate Commissioner. There is
\nabsolutely no explanation as to why they have removed Ex-B11, which forms part
\nand parcel of the registered sale deed executed in their favour by DW-6, their
\nvendor.\n<\/p>\n
\t13. Now coming to the report of the Advocate Commissioner, it is settled
\nlaw that a report of the Advocate Commissioner is only a piece of evidence
\nenabling the Court to decide the dispute between the parties and elaborate
\ndiscussions have been made by the Courts below giving cogent and sufficient
\nreasons for rejecting the report of the Advocate Commissioner. There is
\nabsolutely no reason as to why the learned Advocate Commissioner has not taken
\ninto consideration the Re-survey Records pertaining to Survey No.583\/1 and no
\nattempt has been made to measure the entire extent of land situated in Survey
\nNo.583\/1 purchased under EX-A2. In fact, the appellants ought to have taken such
\nmeasurement to substantiate their case. Curiously, the learned Advocate
\nCommissioner has relied upon the plan prepared and produced by the counsel for
\nthe appellants\/plaintiffs. The appellants\/plaintiffs have not examined their
\nvendor, who was, in fact, examined on the side of the respondents\/defendants as
\nDW-6. As found by the Courts below, there is absolutely no basis for the
\nAdvocate Commissioner to hold that the suit property comes under Survey
\nNo.583\/1. The learned Advocate Commissioner has taken into consideration of the
\nirrelevant materials which are extraneous to the suit. Further, the learned
\nAdvocate Commissioner himself has found that some of the trees belonging to the
\nForest Department were found in the suit property.\n<\/p>\n
\t14. A Division Bench of this Court, after following various Judgments of
\nthe Hon’ble Supreme Court as well as this Court, in Charles Hereward Simpson v.
\nThe Government of Tamil Nadu<\/a> reported in 1989 (1) MLJ 512, has observed as
\nfollows:-\n<\/p>\n
\t“Order 26 Rule 10 (2) CPC says that the report of the commissioner shall
\nbe evidence in the suit and shall form part of the record. It is not to be
\nstated as a proposition of law that the report of the Commissioner is an
\nunimpeachable substantive evidence in the case.\n<\/p>\n
\t15. The Courts below, taking into consideration the entire documents filed
\nby the appellants\/plaintiffs as well as the respondents\/defendants, have
\ndismissed the suit filed by the appellants\/plaintiffs rejecting the report of
\nthe learned Advocate Commissioner. Much reliance has been made on Ex-B5 and B7.
\nEx-B5 is the sketch, pertaining to new land measurement, whereas Ex-B6 is
\npertaining to the corresponding old Survey Numbers and Ex-B7 is the super-impose
\nsketch. Taking into consideration of the above said documents, coupled with Ex-
\nB-11, the Courts below have correctly held that the suit property belongs to the
\nrespondents\/defendants and the appellants\/plaintiffs have not established their
\ncase that the suit property belongs to them.\n<\/p>\n
\t16. Insofar as the plea of adverse possession is concerned, it is trite
\nlaw that the appellants, being the plaintiffs, cannot be permitted to take such
\na plea after having claimed title. The Courts below, on a careful consideration
\nof the entire documents, have held that the appellants\/plaintiffs have
\nencroached upon the Government Forest land right from the year 1985. Moreover,
\nclear, strong and cogent evidence is required to establish the adverse
\npossession against the Government. In this context, I may usefully refer to a
\nJudgment of the Hon’ble Supreme Court in R.Bajumaiah v. State of Karnataka
\nreported in 2010 (5) SCC 203, wherein the Hon’ble Supreme Court has observed as
\nfollows:-\n<\/p>\n
\t19. Suits for declaration of title against the Government, though similar
\nto suits for declaration of title against private individuals differ
\nsignificantly in some aspects. The first difference is in regard to the
\npresumption available in favour of the Government. All lands which are not the
\nproperty of any person or which are not vested in a local authority, belong to
\nthe Government. All unoccupied lands are the property of the Government, unless
\nany person can establish his right or title to any such land. This presumption
\navailable to the Government, is not available to any person or individual. The
\nsecond difference is in regard to the period for which title and\/or possession
\nhas to be established by a person suing for declaration of title. Establishing
\ntitle\/possession for a period exceeding twelve years may be adequate to
\nestablish title in a declaratory suit against any individual. On the other hand,
\ntitle\/possession for a period exceeding thirty years will have to be established
\nto succeed in a declaratory suit for title against the Government. This follows
\nfrom Article 112 of the Limitation Act, 1963, which prescribes a longer period
\nof thirty years as limitation in regard to suits by the Government as against
\nthe period of 12 years for suits by private individuals. The reason is obvious.
\nGovernment properties are spread over the entire State and it is not always
\npossible for the Government to protect or safeguard its properties from
\nencroachments. Many a time, its own officers who are expected to protect its
\nproperties and maintain proper records, either due to negligence or collusion,
\ncreate entries in records to help private parties, to lay claim of ownership or
\npossession against the Government. Any loss of government property is ultimately
\nthe loss to the community. Courts owe a duty to be vigilant to ensure that
\npublic property is not converted into private property by unscrupulous elements.\n<\/p>\n
\t20. Many civil courts deal with suits for declaration of title and
\ninjunction against the Government, in a casual manner, ignoring or overlooking
\nthe special features relating to government properties. Instances of such suits
\nagainst the Government being routinely decreed, either ex parte or for want of
\nproper contest, merely acting upon the oral assertions of plaintiffs or stray
\nrevenue entries are common. Whether the Government contests the suit or not,
\nbefore a suit for declaration of title against a Government is decreed, the
\nplaintiff should establish, either his title by producing the title deeds which
\nsatisfactorily trace title for a minimum period of thirty years prior to the
\ndate of the suit (except where title is claimed with reference to a grant or
\ntransfer by the Government or a statutory development authority), or by
\nestablishing adverse possession for a period of more than thirty years. In such
\nsuits, courts cannot, ignoring the presumptions available in favour of the
\nGovernment, grant declaratory or injunctive decrees against the Government by
\nrelying upon one of the principles underlying pleadings that plaint averments
\nwhich are not denied or traversed are deemed to have been accepted or admitted.\n<\/p>\n
\t21. A court should necessarily seek an answer to the following question,
\nbefore it grants a decree declaring title against the Government: whether the
\nplaintiff has produced title deeds tracing the title for a period of more than
\nthirty years; or whether the plaintiff has established his adverse possession to
\nthe knowledge of the Government for a period of more than thirty years, so as to
\nconvert his possession into title. Incidental to that question, the court should
\nalso find out whether the plaintiff is recorded to be the owner or holder or
\noccupant of the property in the revenue records or municipal records, for more
\nthan thirty years, and what is the nature of possession claimed by the
\nplaintiff, if he is in possession-authorised or unauthorised; permissive; casual
\nand occasional; furtive and clandestine; open, continuous and hostile; deemed or
\nimplied (following a title).\n<\/p>\n
\t22. Mere temporary use or occupation without the animus to claim ownership
\nor mere use at sufferance will not be sufficient to create any right adverse to
\nthe Government. In order to oust or defeat the title of the Government, a
\nclaimant has to establish a clear title which is superior to or better than the
\ntitle of the Government or establish perfection of title by adverse possession
\nfor a period of more than thirty years with the knowledge of the Government. To
\nclaim adverse possession, the possession of the claimant must be actual, open
\nand visible, hostile to the owner (and therefore necessarily with the knowledge
\nof the owner) and continued during the entire period necessary to create a bar
\nunder the law of limitation. In short, it should be adequate in continuity,
\npublicity and in extent. Mere vague or doubtful assertions that the claimant has
\nbeen in adverse possession will not be sufficient. Unexplained stray or sporadic
\nentries for a year or for a few years will not be sufficient and should be
\nignored.\n<\/p>\n
\t23. As noticed above, many a time it is possible for a private citizen to
\nget his name entered as the occupant of government land, with the help of
\ncollusive government servants. Only entries based on appropriate documents like
\ngrants, title deeds, etc. or based upon actual verification of physical
\npossession by an authority authorised to recognise such possession and make
\nappropriate entries can be used against the Government. By its very nature, a
\nclaim based on adverse possession requires clear and categorical pleadings and
\nevidence, much more so, if it is against the Government.\n<\/p>\n
\t17. Further, as I discussed above, the report of the Advocate Commissioner
\nbeing a piece of evidence is for the appreciation, which has been done correctly
\nby the Courts below by giving cogent reasons, and therefore, this Court is of
\nthe considered view that there is no question of law, much less a substantial
\nquestion of law, involved in this Second Appeal.\n<\/p>\n
\t18. In the result, the Judgment and Decree dated 13.10.1995 made in
\nA.S.No.19 of 1993, on the file of the District Court, Kanyakumari at Nagercoil,
\nconfirming the Judgment and Decree dated 12.02.1993 made in O.S.No.98 of 1989,
\non the file of the Sub Court, Padmanabhapuram, are confirmed and the Second
\nAppeal is dismissed. No costs.\n<\/p>\n
NB<\/p>\n
To<\/p>\n
1.The District Court, Kanyakumari at Nagercoil,\n<\/p>\n
2.The Sub Court, Padmanabhapuram.\n<\/p>\n
3.The District Collector,
\n   Nagercoil, Kanyakumari District.\n<\/p>\n
4.The District Forest Officer,
\n   Nagercoil, Kanyakumari District.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court S.Krishnapillai [Died vs State Of Tamil Nadu on 5 August, 2011 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05\/08\/2011 CORAM THE HONOURABLE MR.JUSTICE M.M.SUNDRESH SECOND APPEAL No.189 of 1996 1.S.Krishnapillai [died] 2.K.Vasanthakumar 3.S.Kumarapillai [died] 4.N.Parameswari 5.P.Jayasree 6.S.Jayakumari 7.P.Jayanthi 8.K.Sudha 9.K.Seela 10.V.Amudha 11.V.Sreeja 12.R.Umaparvathy 13.U.Chempaka Devi 14.U.Giruja … Appellants Appellants 8 […]<\/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-127115","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nS.Krishnapillai [Died vs State Of Tamil Nadu on 5 August, 2011 - 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\/s-krishnapillai-died-vs-state-of-tamil-nadu-on-5-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"S.Krishnapillai [Died vs State Of Tamil Nadu on 5 August, 2011 - 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