{"id":64190,"date":"2006-09-28T00:00:00","date_gmt":"2006-09-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pakkiri-vs-ramakkannu-thevar-on-28-september-2006"},"modified":"2016-01-01T15:12:25","modified_gmt":"2016-01-01T09:42:25","slug":"pakkiri-vs-ramakkannu-thevar-on-28-september-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pakkiri-vs-ramakkannu-thevar-on-28-september-2006","title":{"rendered":"Pakkiri vs Ramakkannu Thevar on 28 September, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
Pakkiri vs Ramakkannu Thevar on 28 September, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDATED : 28\/09\/2006\n\n\nCORAM:\nTHE HONOURABLE MR. JUSTICE J.A.K.SAMPATHKUMAR\n\n\nS.A.No.48 of 1995\n\n\nPakkiri       \t\t..  \tAppellant\n\t\t\t\tPlaintiff\n\nvs.\n\n\n1.Ramakkannu Thevar\n2.Pappu Utamundar\t..  \tRespondents\n\n\n\tSecond Appeal filed against the Judgment and Decree dated 30.6.1994 made\nin A.S.No.55 of 1992 on the file of the   District Court, Pudukkottai confirming\nthe Judgment and Decree dated 30.9.1989 made in O.S.196 of 1983 on the file of\nthe District Munsif Court, Pudukkottai.\n\n\n!For appellant  \t...\tMr. V.K.Vijayaragavan\n\n\n^For respondents\t...\tMr. J.Anandkumar\n\n\n:JUDGMENT\n<\/pre>\n
\tThis Second Appeal is filed by the plaintiff against the concurrent
\nfinding in A.S.No.55 of 1992 dated 30.6.1994 on the file of the District Court,
\nPudukkottai in and by which the learned District Judge dismissed the appeal
\nconcurring with the partial decree made in O.S.No.196 of 1983 on the file of the
\nDistrict Munsif, Pudukkottai.\n<\/p>\n
\t2. For the sake of convenience, parties are referred as arrayed in the
\nsuit.\n<\/p>\n
The brief facts of the case are as follows:\n<\/p>\n
\t3. The suit property originally belonged to one Panjalaiammal, wife of
\nAchuthan Sanaiyar by purchase under registered sale deed dated 27.2.1925.  After
\nthat she sold the same on 21.6.1933 in favour of Vattar Pariyari bout 2 acres of
\nland by name Melakkadu Punjai.  This portion has subsequently been surveyed as a
\npart of 10\/3, 10\/4, and 11\/1 at the time of Survey and Settlement, on the advent
\nof Madras Estates (Abolition & Conversion into Ryotwari) Act, (26\/48), as the
\nvillage was previously a zamin village.\n<\/p>\n
\t4. The said property, after the death of Vattar Pariyari, devolved upon
\nhis only son V.Ponnan Pariyari.  In fact, with regard to Survey No.10\/4,
\nV.Ponnan’s name (the plaintiff’s father) is adopted by the Survey Department
\nalso.  Further with regard to the Northern portion viz., 10\/3 has been surveyed
\nas Government dry and so also the Southern portion in Survey No.11\/1 has been
\nrecorded as Government dry.\n<\/p>\n
\t5. Ponnan Pariyari, the son of Vattar Pariyari died in or about the year
\nthe year 1974 leaving behind his four sons including the plaintiff herein. The
\nplaintiff and his younger brothers continue to possess and enjoy the property in
\ntheir own rights.\n<\/p>\n
\t6. The plaintiff’s family has been in enjoyment of the suit property
\nhaving their residential house in Survey No.11\/1 and cultivating the fields in
\nSurvey No.10\/3 upto the village boundary on the North and Survey No.10\/4 living
\nSouth of Survey No.10\/3 and North of Survey No.11\/1 in which they have their
\nhouse, with punja crops depending on the seasonal rains.  There is also a pucca
\nmasonary well in Survey No.10\/4 to afford facility for irrigating the dry crops
\nby baling.  Similarly, the plaintiffs’ family had been enjoying the property in
\nSurvey No.11\/1 South of their house right upto the Vari on the South, also
\ncultivating the same with dry crops.  Here also there is a mud-well.  There are
\n5 mango trees, one jack tree on the West of the house.  There is a tamarind tree
\non the East of the house.  These are all aged more than 40 years old.\n<\/p>\n
\t7. south of the house, there are about 60 silai trees, 5 neem trees, 5
\nvagai trees.  Several other trees are also there.  These trees are also aged
\nmore than 25 years old.  The trees and the wells are the creations of the
\nplaintiff’s father Ponnan Pariyari.\n<\/p>\n
\t8. The plaintiff has been paying taxes to the Government for Survey
\nNo.10\/3, 10\/4, and 11\/1 all along.  The plaintiff is however is illiterate but
\nfor signing his name.  His younger brothers are also similarly illiterate.
\nTaking advantage of such a situation of the plaintiff’s family, it appears that
\nthe defendants had manoeuvred to include their names in the Government records
\nas if they are otherwise connected with the suit property.\n<\/p>\n
\t9. While the property on the West viz., 10\/2 and the Western part of 10\/3
\npreviously belonged to Andiappa Konar, the first defendant seems to lay a claim
\nthereto and is extending his claim also the Eastern-part of 10\/3 belonging to
\nand in the possession of the plaintiff herein.\n<\/p>\n
\t10. Similarly, the second defendant herein, seems to lay claim with
\nhimself of the property comprised in Survey No.11\/1 South of the plaintiff’s
\nhouse and North of the Vari.  Such claims of the defendants are without any
\nbasis for title right to possession or the state on ground and the enjoyment of
\nthe plaintiff herein.  The defendants are giving out to commit forcible trespass
\nby common conspiracy.  Hence the suit.\n<\/p>\n
Written statement adopted by the first defendant reads as follows:\n<\/p>\n
\t11. The first item of the property in Survey No.10\/3 Punja Land 0.96 cents
\nwas assigned to the first defendant by the Government in 1978 as the first
\ndefendant was in possession and enjoyment of the same at that time.  The first
\ndefendant is in possession and enjoyment of the same with casirona trees.\n<\/p>\n
\t12. The second item of property in Survey NO.10\/4 is owned and possessed
\nby the second defendant which consists of fruit bearing trees.  During the year
\n1963, the land in Survey No.11\/1 A, 2.44 cents was assigned to the second
\ndefendant.  He has put up a hut thereon and enjoying the same.  The plaintiff
\nhas no right in respect of this item of property.  Therefore, the suit is liable
\nto be dismissed.\n<\/p>\n
\t13. The plaintiff was examined as PW.1.  One Thiru A. Abdul Rahman was
\nexamined as PW.2.  Documents were marked as Exs.A1 to  A14 on the side of the
\nplaintiff.  The first defendant was examined as DW.1.  One Thiru Lakshmana Konar
\nwas examined as DW.2.  Documents were marked as Exs.B1 to B12 on the side of the
\ndefendants.  Four exhibits were marked as C1 to C4 as Court exhibits.\n<\/p>\n
\t14. The trial court after analysing the evidence in depth found that the
\nplaintiff is entitled to the claim in respect of plaint Survey No.10\/4 with
\nreference to  “A” schedule property and decreed the suit.  With regard to the
\nclaim of “B” schedule property, the suit was dismissed.  Against which the
\nplaintiff filed an appeal in A.S.No.55 of 1992 and the same has been dismissed
\non 30.6.1994 by the District Judge, Pudukkottai confirming the finding of the
\nTrial Court.  The present appeal is filed by the plaintiff against such finding.\n<\/p>\n
\t15.  The second appeal was admitted on the following substantial questions
\nof laws:\n<\/p>\n
\t(i) Would the non-grant of patta to the appellant under Act 26 of 1948
\nextinguish the title of the appellant?\n<\/p>\n
\t(ii) Would the assignment and the followup action in the government
\nrecords could be taken cognizance of title when there was a rival claim of title
\nbetween the parties?\n<\/p>\n
\t(iii) Whether the three boundaries tallying with the title of the
\nappellant enough to declare the title of the appellant to the suit property?\n<\/p>\n
\t(iv) Is the civil Court incompetent to consider the title of parties and
\nultimate declaration of land as assessed dry waste by the settlement department?\n<\/p>\n
\t16. Heard Mr. V.K.Vijayaragavan, learned counsel for the appellant and Mr.
\nJ.Anandkumar and Mr.                     Mr. S.Ravi, learned counsel for the
\nrespondents 1 and 2 respectively.\n<\/p>\n
\t17. Upon hearing the rival contentions, the point that arise for
\ndetermination are as follows:\n<\/p>\n
\t(i) Whether the plaintiff herein has any locus standi to file the suit as
\nKarta of the family on behalf of other plaintiff?\n<\/p>\n
\t(ii) Whether “B” schedule property is in possession and enjoyment of the
\nplaintiff?\n<\/p>\n
\t(iii) As per the pleading, is it true that PW.1 is living in the suit
\nproperty?\n<\/p>\n
\t(iv) Whether the defendants are really paying the revenue tax for “B”
\nschedule property?\n<\/p>\n
\t(v) Would the non-grant of patta to the appellant under Act 26 of 1948
\nextinguish the title of the appellant?\n<\/p>\n
\t(vi) Would the assignment and the followup action in the government
\nrecords could be taken cognizance of title when there was a rival claim of title
\nbetween the parties?\n<\/p>\n
\t(vii) Whether the three boundaries tallying with the title of the
\nappellant enough to declare the title of the appellant to the suit property?\n<\/p>\n
\t(viii) Is the civil Court incompetent to consider the title of parties and
\nultimate declaration of land as assessed dry waste by the settlement department?\n<\/p>\n
Point (i):\n<\/p>\n
\t18. It is the specific pleading that the plaintiff is the Karta of the
\nfamily and the properties of his father are not partitioned and that properties
\nof his father are in common enjoyment between the plaintiff and his brothers and
\nas such, the suit is filed by the plaintiff in the capacity of Manager of the
\nHindu Joint Family.\n<\/p>\n
\t19. It is the specific case of the defendants that  the plaintiff is not
\nthe manager of the Hindu Joint Family and that the properties between the
\nplaintiff and his brothers were partitioned and that the plaintiff and his
\nbrothers are living independently and paying taxes for the respective properties
\nand as such, the present suit is not maintainable in law.\n<\/p>\n
\t20. To ascertain the status of the plaintiff, let me look into the
\nevidence of PW.1.  His evidence reads as follows:\n<\/p>\n
\t“vd; ghl;ldhh; ,we;Jngha;tpl;lhh;.  vd; ghl;ldhUf;F vd; jfg;gdhh;
\nbghd;Dr;rhkp xnu gps;is.  Bghd;Dr;rhkp ehd;> bghparhkp> uhkrhkp> khhpKj;J Mfpa 4
\nkfd;fs;.  Vd; jfg;gdhh; ,we;J ngha;tpl;hh;. vd; jfg;gdhUf;F gpwF ehq;fs; 4
\nrnfhjuh;fSk; mDgtpj;J tUfpnwhk;.  ehd; FoapUe;j tPL jw;nghJ gphpe;Jngha;tpl;lJ.
\nehd; jw;nghJ jQ;ht{hpy; ,Uf;fpnwd;.  4> 5 tUlkhf ,Uf;fpnwd;. vd; jk;gp xUth;
\nChpy; cs;shh;.  kw;wth;fSk; btspa{hpy; ,Uf;fpwhh;fs;. Ehd; ,Uf;wpw Chpy; vq;fs;
\n$hjp Ml;fs; ahUk; ,y;iy.  jhth brhj;Jf;F rh;nt ek;gh; bjhpahJ.  xt;bthU rh;nt
\nvd;Df;fFk; bkhj;j tp];jPh;dk; vt;tst[ vd;W bjhpa[k;.  xt;bthUtUk; jdpj;jdpna
\ntPLfSf;F thp fl;o mDgtk; bra;J tufpnwhk;.  ehd; 4 tUlkhaf jQ;rht{hpy;
\n,Uf;fpnwd;.  mjw;F Kd; jhth brhj;J. cs;s Chpy; jhd; bjhlh;e;J ,Ue;J tUfpnwd;.”\n<\/p>\n
\t21. The evidence of PW.1 would show that PW.1 is not living in the suit
\nproperty as on date and his brothers are also not living in the said village as
\non date.  The plaintiff and his brothers were living independently in their own
\nhouse.  They are paying kist independently in respect of their houses.\n<\/p>\n
\t22. The narration of events would show that the plaintiff is not the
\nManager of the Hindu Joint Family.  Therefore, the plaintiff has no locus-standi
\nto file the suit independently on behalf of joint family.  Hence, this point is
\nanswered against the plaintiff.\n<\/p>\n
Point (ii):\n<\/p>\n
\t23.  Admittedly, “B” schedule property is not in possession and enjoyment
\nof the plaintiff.  Both the Courts below after analysing the evidence in depth
\nfound that the plaintiff is not in possession and enjoyment of the suit property
\nand therefore, negatived the claim of the plaintiff in this regard.  It is
\nworthy to note that according to PW.1, there is a thatched house in the second
\nitem of “B” schedule property.  The second defendant specifically stated that he
\nis in possession and enjoyment of the thatched hut referable to the second item
\nof “B” schedule property.\n<\/p>\n
\t24. Though PW.1 admitted about the thatched house in the second item of
\n“B” schedule property, he has stated that the said thatched house is not
\nhabitable one as it is ruined.  The evidence of PW.1 with regard to this fact
\nreads as follows:\n<\/p>\n
\t“ehd; FoapUe;j tPL jw;nghJ gphpe;Jngha;tpl;lJ.”\n<\/p>\n
\t25. Moreover, the documents filed on the side of the defendants would
\nprove that the defendants are in possession and enjoyment of the “B” schedule
\nproperty.  The title to the property viz., the “B” schedule property was
\ntransferred in the name of the defendants.  Even according to the plaintiff, the
\npatta for “B” schedule property is in the name of the defendants.  Even
\naccording to Adangal register,  the defendants alone are cultivating and
\nenjoying the “B” schedule property.  Adangal register filed in this case would
\nnot show that the plaintiff is cultivating and enjoying the “B” schedule
\nproperty.   In fact, the first defendant has specifically stated that the first
\nitem of the “B” schedule property was assigned to him since he was in possession
\nand enjoyment of the same at the time of assignment.  Both the Courts below have
\ntaken note of these facts and rightly came to the conclusion that the defendants
\nalone are in possession and enjoyment of the “B” schedule property and
\naccordingly, rejected the claim of the plaintiff in this regard.  I do not find
\nany illegality or impropriety in the finding of the Courts below.  Accordingly,
\nthis point is answered against the plaintiff.\n<\/p>\n
Point (iii):\n<\/p>\n
\t26. The specific averment in the pleading in this regard reads as follows:\n<\/p>\n
\t“The plaintiff’s family has been in enjoyment of the suit property having
\ntheir residential house in Survey No.11\/1 and cultivating the fields in Survey
\nNo.10\/3 upto the village boundary on the North and Survey No.10\/4 living South
\nof Survey No.10\/3 and North of Survey No.11\/1 in which they have their house,
\nwith punja crops depending on the seasonal rains.  There is also a pucca
\nmasonary well in Survey No.10\/4 to afford facility for irrigating the dry crops
\nby baling.  Similarly, the plaintiffs’ family had been enjoying the property in
\nSurvey No.11\/1 South of their house right upto the Vari on the South, also
\ncultivating the same with dry crops.”\n<\/p>\n
\t27. The specific pleading is that the plaintiff is residing in the suit
\nproperty enjoying and cultivating the lands on the North and South of the house.\n<\/p>\n
\t28. But, PW.1 admitted that neither himself nor any of his brother are
\nliving in the suit property.  Apart from that there is absolutely no evidence on
\nrecord to show that  they ever lived in the suit property at any point of time.
\nIt is the specific case of the defendants that they are living in “B” schedule
\nproperty and enjoying the same.  Only in that context, the Government have
\nassigned the suit land to the defendants.    Though the plaintiff relied on the
\ntitle deed viz., Exs.A1  and A2 with regard to the title of the suit property,
\nthere is absolutely no record to show that the plaintiff was in possession and
\nenjoyment of the “B” schedule property.  In this context only, the Courts below
\nheld that the plaintiff is not entitled to the suit property and negatived his
\nclaim.  There is no illegality or impropriety in the finding of the Courts
\nbelow.  So, this point is answered against the plaintiff.\n<\/p>\n
Point (iv):\n<\/p>\n
\t29.  Document filed herein would prove that the defendants alone are in
\npossession and enjoyment of the property paying necessary taxes.  Agangal
\nRegister would also show that the defendants alone are in possession and
\nenjoyment of the “B” schedule property.  In this context, both the Courts below
\nnegatived the claim of the plaintiff in this regard.  The finding of the Courts
\nbelow does not require any interference.  The finding of the Courts below are in
\norder.  Accordingly, this point is also answered in favour of the defendants.
\nPoint (v) to (viii):\n<\/p>\n
\t30. Learned counsel for the plaintiff relied on the provisions of the
\nTamil Nadu Regulations, Estates and Inams Abolition and Ryotwari Settlement Acts
\nof Section 3 clause 15, Sections 11, 12, 13, 14 and 14(a) and contended that the
\nassignment of “B: schedule property in favour of the defendants is not valid in
\nlaw as the title of the “B” schedule property stood in the name of the father of
\nthe plaintiff when the Act 26\/48 came into force and as such the defendants
\ncannot claim title to the suit property on that basis.\n<\/p>\n
\t31. In support of his contention, learned counsel for the appellant relied
\non the following decisions reported in-\n<\/p>\n
\t(a) Mariabackiammal (deceased) by her legal heirs and 3 others v. The
\nDistrict Forest Officer, Madurai North Division, Dindigul (1990-2-L.W.478)<\/p>\n
\t(b)Srinivasan and 6 others v. 1. Sri Madhyarjuneswarasami, Pattavaithalai,
\nTiruchirapalli District by its Executive Officer at Pettavaithalai Devasthanam
\nand 5 others (1998-2-L.W.189)<\/p>\n
\t32. Learned counsel for the respondent resisted the contention of the
\nlearned counsel for the appellant stating that the proposition submitted now is
\nnot applicable to the facts on hand in view of the fact that father of the
\nplaintiff was not in possession in possession of the suit property viz., “B”
\nschedule property when the said Act came into force.\n<\/p>\n
\t33.  It is worthy to note that the plaintiffs are not in possession of the
\n“B” schedule property as contended by them.  Apart from that the father of the
\nplaintiff himself took part in the settlement proceedings and obtained patta
\nonly in respect of “A” schedule property.  The evidence of PW.1 regarding this
\naspect reads as follows:\n<\/p>\n
“vdf;F brl;oy;bkd;l; tprhuizapy; rh;nt vz;.10\/4f;F vdf;F gl;lh bfhLf;fg;gl;L
\ncs;sJ.  rh;nt vz;.10\/3f;Fk; 11\/1 f;Fk; vdf;F gl;lh bfhLf;fg;gltpy;iy.  me;j
\n,uz;L ek;gUf;Fk; ntW ahUf;Fk; gl;lh bfhLf;fgltpy;iy.  Gpuhpthjpfs; jq;fSf;F
\ngl;lh cs;sJ vd;W Twpdhh;fs;.”\n<\/p>\n
\t34. The evidence of PW.1 shows that he took part in the settlement
\nproceedings.  He obtained patta only in respect of “A” schedule property and not
\nwith reference to the “B” schedule property.  In such circumstances, the
\ndecisions relied on by the learned counsel for the appellant is not applicable
\nto the facts on hand in view of the fact that he took part in the settlement
\nproceedings and obtained patta only in respect of the “A” schedule property.  It
\nis not the case of the plaintiff that he filed any appeal for not issuing patta
\nin his name with reference to the “B” schedule property.  Admittedly, patta for
\n“B” schedule property stands in the name of the defendants.  The plaintiff
\nhimself knew that patta of the “B” schedule property stands in the name of the
\ndefendants.  In such circumstances, it is not open to the plaintiff at this
\nstage to dispute the validity of the patta issued in the name of the defendants.\n<\/p>\n
\t35.  Since the plaintiff is not in possession and enjoyment of the “B”
\nschedule property, the proposition submitted by the learned counsel for the
\nappellant that the Government has no locus standi to assign “B” schedule
\nproperty in the name of the defendants as per the guidance referred under the
\naforesaid sections under the Act, cannot be accepted.  Only if the plaintiff is
\nin possession and enjoyment of the “B” schedule property, the plaintiff can
\nquestion the assignment of “B” schedule property in favour of the defendants by
\nthe Government as per the provisions of the said Act.  Even when the Act came
\ninto force the defendants were in possession and enjoyment of the “B” schedule
\nproperty, only in that context, the “B” schedule property was assigned in the
\nname of the defendants respectively by the Government.  So, I am of the view
\nthat the contention of the learned counsel for the plaintiff is bereft of any
\nmerit and the same is rejected.\n<\/p>\n
\t36. So, I am of the view that the findings of the Courts below are in
\norder and it does not require any interference.  The Judgment and Decree dated
\n30.9.1989 made in O.S.196 of 1983 on the file of the District Munsif Court,
\nPudukkottai is confirmed.\n<\/p>\n
\t37. In the result, the Second Appeal is dismissed.  Parties have to bear
\ntheir costs.\n<\/p>\n
asvm<\/p>\n
To\n<\/p>\n
1.The   District Court,
\n Pudukkottai.\n<\/p>\n
2. The District Munsif Court,
\n  Pudukkottai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Pakkiri vs Ramakkannu Thevar on 28 September, 2006 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28\/09\/2006 CORAM: THE HONOURABLE MR. JUSTICE J.A.K.SAMPATHKUMAR S.A.No.48 of 1995 Pakkiri .. Appellant Plaintiff vs. 1.Ramakkannu Thevar 2.Pappu Utamundar .. Respondents Second Appeal filed against the Judgment and Decree dated 30.6.1994 made in A.S.No.55 […]<\/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-64190","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nPakkiri vs Ramakkannu Thevar on 28 September, 2006 - 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\/pakkiri-vs-ramakkannu-thevar-on-28-september-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Pakkiri vs Ramakkannu Thevar on 28 September, 2006 - 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