JUDGMENT: Defendant in O.S.No.235 of 1995 on the file of District Munsif Court, Sivakasi is the appellant. 2. Suit filed by plaintiff was to declare that the property absolutely belongs to him and consequently pass an order of permanent prohibitory injunction restraining defendant and her men and servant from interfering in the lawful possession and enjoyment of suit property and for costs and such other incidental reliefs. 3. Scheduled property is 52 cents of land in S.No.403/2, 3.5 cents of land in S.No.408/3 and 33 1/2 cents of land in S.No.416/2 in Maraneri Village, Sattur Taluk. 4. According to plaintiff, scheduled property are agricultural lands and originally it belonged to his father late Ramasamy. Ramasamy was in possession of the property till his life time and on his death in 1974, properties were partitioned amongst his sons Krishnasamy, Veeraiah, Challiah, Rajaiah and the plaintiff. In the oral partition, scheduled property was allotted to plaintiff and plaintiff is in possession and enjoyment of the same for the last 25 years, by obtaining patta and paying tax to Government. Plaintiff got appointment as Lorry Driver at Madras and shifted his family to Madras in the year 1988. At that time, defendant who is the daughter of his own brother requested him to allow her to reside in the house of plaintiff and to cultivate the scheduled property. Out of faith and love towards his brother’s daughter, plaintiff allowed defendant to reside in his house and cultivate the property. In the end of 1992, plaintiff resigned his job at Madras and returned to his village. After his return, plaintiff demanded defendant to handover back the possession of suit property and to vacate the house withdrawing permission granted by him. Since defendant refused to hand over possession, plaintiff preferred complaint before Police and on 16.12.1993, after enquiry by police, plaintiff got back possession of property and he is in possession and enjoyment of scheduled property from 17.12.1993 by doing agricultural operations. While so, on complaint to the Revenue Authorities, the authorities passed orders directing plaintiff and defendant to seek their remedies through Civil Court. Plaintiff is now cultivating cholam in the suit property and on 28.9.1994, defendant and her associates came to the suit property and attempted to obstruct plaintiff from cultivating the same. Plaintiff therefore filed the suit for declaration and for other reliefs. 5. Plaintiff is now cultivating cholam in the suit property and on 28.9.1994, defendant and her associates came to the suit property and attempted to obstruct plaintiff from cultivating the same. Plaintiff therefore filed the suit for declaration and for other reliefs. 5. In the written statement filed by defendant, she denied that Ramasamy was owner of the property. According to her, his wife Lingammal was the owner and she is none other than the grandmother of defendant and mother of plaintiff. According to her, the allegation that there was oral partition of the properties of Ramasamy and suit property was allotted to plaintiff was denied. She also denied that plaintiff is in possession and enjoyment of property and paying tax to Government. She also denied the permissive occupation and also denied that she handed over possession pursuant to police complaint given by plaintiff. Lingammal, grandmother of plaintiff had taken loan from Government. It was decided that property may be enjoyed by defendant once she discharged the loan to the Government. Accordingly defendant is clearing the debts and she came in possession of the property and is in enjoyment of the same. The allegation that plaintiff is cultivating the property with Cholam are all denied. Defendant claims absolute possession of the property. In 1994, plaintiff attempted to interfere with the possession of defendant and the neighbours interfered and plaintiff and his men went away. Thereafter, defendant applied for patta to the land. On enquiry, it was found that even though patta stands in the name of plaintiff, she was not in possession and defendant is in possession and even Villagers want patta to be transferred in the name of defendant. Original pattadar was only Lingammal. Since there was default in payment of loan, distraint proceedings were taken and defendant and her husband had to pay few instalments, and patta continued in the name of Lingammal till 1987. It was thereafter, plaintiff manipulated to get patta in his same. Lingammal had other children and grand children. They are also necessary parties to the suit. She prayed for dismissal of the suit. 6. On the above allegations trial court took oral and documentary evidence. Plaintiff got examined himself as P.W.1 and through him Exs.A-1 to A4 were marked. On the side of defendant she got examined herself as D.W.1 and her husband as D.W.2. They are also necessary parties to the suit. She prayed for dismissal of the suit. 6. On the above allegations trial court took oral and documentary evidence. Plaintiff got examined himself as P.W.1 and through him Exs.A-1 to A4 were marked. On the side of defendant she got examined herself as D.W.1 and her husband as D.W.2. Documentary evidence on the side of defendant consist of Exs.B-1 to B9. 7. After evaluating entire evidence, trial court held that plaintiff has miserably failed to prove his right over the property. It is further found by trial court that property originally belonged to grandmother Lingammal and oral partition alleged by plaintiff is not proved. It also found that defendant is in possession of property and various tax receipts stood only in the name of defendant. It also relied on the proceedings of Tahsildar where it is found that defendant is in possession of property. Suit was dismissed. 8. Against the said judgment, plaintiff preferred A.S.No.48 of 1999 on the file of Sub Court, Sivakasi. Lower appellate court set aside the judgment of trial court and allowed the appeal. 9. It is against the said Judgment, defendant has preferred this second appeal on the following substantial questions of law: (1) Is the lower court right in decreeing the plaintiff’s suit for declaration of title to the suit property on the ground that the defendant has not proved her title to the property? (2) Having held that the suit property had been purchased by the defendant’s grand mother, Lingammal, is the lower court right in decreeing the plaintiff’s suit merely on the basis of a disputed patta issued in December, 1993 in the plaintiff’s name, without adverting to the fact that the plaintiff is claiming title on the basis that the property belonged to his father and he got the same in a partition? (3) Having rightly held that patta and kist receipts alone cannot be documents of title and there must be legal title is the lower court right in decreeing the plaintiff’s suit merely on the basis of the disputed patta? 10. Before further proceeding with the legal position, the main reason for allowing appeal by the lower appellate court is stated in the last portion of para.14 of the judgment, which reads thus. 11. Learned counsel for appellant argued that plaintiff has not produced any documents to show his title. 10. Before further proceeding with the legal position, the main reason for allowing appeal by the lower appellate court is stated in the last portion of para.14 of the judgment, which reads thus. 11. Learned counsel for appellant argued that plaintiff has not produced any documents to show his title. According to counsel for appellant, merely because defendant failed to prove her title, lower court has found that plaintiff has got title to the property. This according to counsel for appellant, is against settled legal position and lower appellate court has not considered the law declared by this court or by the Honourable Supreme Court and that will be a ground for interference under Sec.100 of Code of Civil Procedure. 12. After hearing counsel on both sides. I find that the said contention is only to be accepted. 13. Trial court held that as per Exs.B-8 and B9, a major portion of plaint property was purchased by Lingammal. S.No.408/3 having an area of 2 acre and 56 cents of land stands in the name of Lingammal as per patta No.61. She purchased the property as per Ex.B-8. As per as Ex.B-9 an area of one acre and 29 cents included in S.No.403/2 was purchased in the name of Lingammal and her husband Ramasamy. So, it is clear from the above documents that the case of plaintiff that plaint property belongs to Ramasamy alone and on the basis of oral partition, he obtained right over the same cannot be true. Nowhere in the plaint it is said that Lingammal’s property was also partitioned on her death. Regarding oral partition of Ramasamy’s assets also there is no evidence at all except the evidence of P.W.1. 14. Plaintiff relies only on a patta issued in his favour and the patta number is 59B. When plaintiff himself admits that he is not original acquirer and that he has only inherited the property of his father, patta cannot be said as document of title. It is seen from various documents produced by defendant that she was paying tax under Exs.B-4 and B5 series, and the same is continuous. Even though plaintiff claims that immediately after the death of his father in 1974 an oral partition was effected and plaint property was allotted to him, not a scrap of paper is produced before this Court to show that be was paying tax before 1988. 15. Even though plaintiff claims that immediately after the death of his father in 1974 an oral partition was effected and plaint property was allotted to him, not a scrap of paper is produced before this Court to show that be was paying tax before 1988. 15. It has also come out in evidence that only document, which is relevant, produced by plaintiff is Exs.A-2 and A3. Ex.A-2 is of the year 1993 (dated 6.12.1993). Long before that date appellant has complained to Tahsildar that patta in the name of plaintiff should not have been granted and the complaint is dated 7.4.1992. That complaint was reminded represented on 7.12.1993, 25.5.1995, 14.11.1995 and on 2.12.1997. Such representations were made is found by lower appellate court in para. 10 of its Judgment. It is after complaint by appellant, Exs.A-2 and A3 are filed in this case. When appellant represented her complaint on 7.4.1992 and 7.12.1993, he issued proceedings under Ex.A-4 with a copy to the defendant which is marked as Ex.B-6, that parties will have to refer the matter before Civil Court. So, it is clear that the Revenue Authorities do not themselves recognise plaintiff as owner and patta granted in his name is subject to the result of the civil litigation. Ex.A-1 is only the Police complaint given by plaintiff. These are the only documents filed by plaintiff to show that he is absolute owner of the property. 16. As against these documents, we find that appellant has been paying tax at least from the year 1988 continuously till the date of suit. She has also proved that major portion of property originally belonged to her grandmother and grandmother also availed a loan from the Government. Since loan was not discharged distraint proceedings were taken against the property and it is the definite case of appellant that she paid certain instalments. The fact that there was attachment is clear form Ex.B-2. It is admitted by plaintiff himself that Lingammal had acquired only one property and plaint schedule property is also included therein. Lower appellate court held that in Ex.B-2, property attached has not been specified and therefore it cannot be said that the property was under attachment. I do not find any basis for coming to such conclusion when it is admitted that Lingammal had any other property. It is true that Ex.B-2 is after suit. Lower appellate court held that in Ex.B-2, property attached has not been specified and therefore it cannot be said that the property was under attachment. I do not find any basis for coming to such conclusion when it is admitted that Lingammal had any other property. It is true that Ex.B-2 is after suit. But it cannot be said that it is at the instance of appellant such a notice is issued and Government cannot create documents to support the case of defendant that Lingammal had taken loan from the Government. 17. Plaintiff admitted that defendant is in possession of the property. According to him, he has put defendant in possession of the property on the basis of permission. The same is specifically denied by defendant. We have no evidence to prove the permissive possession alleged by plaintiff. Without discussing plaintiff’s evidence, lower appellate court discussed the evidence of defendant and came to the conclusion that defendant has not proved title and consequently plaintiff has proved possession. 18. Trial Court discussed the entire evidence of plaintiff and came to the conclusion that he has no title. As argued by learned counsel for appellant, lower appellate court has not discussed how plaintiff acquired title and what is the evidence regarding his claim for possession. Only because plaintiff’s name is included in the patta, lower court has given a decree in favour of plaintiff. 19. In M.M.B.Catholicos v. M.P.Athanasius, A.I.R. 1954 S.C. 526, in para. 35 of the Judgment, their Lordships held thus, “... the suit being one in ejectment it is more important for the plaintiffs to establish their own title by getting issues 19 and 20 decided in their favour than to destroy the defendants’ title by getting issues 14 and 15 decided against the defendants’ title, for a mere destruction of defendant’s title in the absence of establishments of their own title carries the plaintiffs nowhere.......” 20. In Nagar Palika v. Jagat Singh, (1995)3 S.C.C. 426, it is held thus, “...It has already been pointed out that the court of appeal without considering the question whether the plaintiff-respondent had proved his title to the property in dispute proceeded to examine whether the said respondent was in possession thereof. In Nagar Palika v. Jagat Singh, (1995)3 S.C.C. 426, it is held thus, “...It has already been pointed out that the court of appeal without considering the question whether the plaintiff-respondent had proved his title to the property in dispute proceeded to examine whether the said respondent was in possession thereof. In a suit for ejectment based on title it was incumbent on the part of the court of appeal first to record a finding on the claim of title to the suit land made on behalf of the respondent. The court of appeal never inquired or investigated that question which was at issue saying that the title of the plaintiff-respondent was admitted by the appellant. This was a serious error of record. The title and possession of the respondent had always been disputed by the appellant from the stage of the written statement. In this background, suit of the respondent could not have been decreed merely on the basis of entries in the revenue records during the pendency of the earlier suit filed in the year 1971....” 21. In Swarni v. Inder Kaur, (1996)6 S.C.C. 223 , in para. 7 of the Judgment, their Lordships held that 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. 22. Learned counsel for appellant also relied on the decision reported in Shakir Hussain v. Administrator, Nagar Palika, (1998)9 S.C.C. 613 to contend that plaintiff has to win or fall on his own evidence when the suit is one for declaration of title and for consequential orders. In that case, an argument was taken before the Honourable Supreme Court that defendant has not produced documents in their possession and hence an adverse inference against defendant had to be drawn. Their Lordships said that even if adverse inference can be had against defendant for having not produced the documents, that by itself will not show that plaintiff got title to the property. In that case, in para. Their Lordships said that even if adverse inference can be had against defendant for having not produced the documents, that by itself will not show that plaintiff got title to the property. In that case, in para. 2 of the Judgment, it is held thus, “Mr.Bagga, the learned senior counsel appearing for the appellant, has submitted that the names of the owners of boundary lands mentioned in the deed of gift and such names in the sale deed differed because of a long lapse of time. The present neighbours were examined by the plaintiff for the purpose of establishing that the plaintiff had owned and possessed the suit property. He has also submitted that the municipality was in possession of the records showing municipal rates and taxes paid by different owners. In the aforesaid circumstances, it was the duty of the municipality to produce such records and the municipality not having done so, an adverse inference should have been drawn against the municipality. In support of such contention, Mr.Bagga has referred to the decision of this Court in Gopal Krishanaji Ketkar v. Mohd. Haji Latif, A.I.R. 1968 S.C. 1413. It has been held in the said decision that even if the burden of proof does not lie on a party, the court may draw an adverse inference if such party withholds important documents in his possession which can throw light on the facts in issue. It has also been indicated in the said decision that it is not a sound practice for those desiring to rely upon a certain state of affairs to withhold from the court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In our view, the said decision does not help the plaintiff-appellant in the facts and circumstances of the case. Even if adverse inference is drawn against the municipality not producing the documents in its possession, the plaintiff cannot succeed unless the plaintiff establishes the plaintiff’s title to the suit property and also possession in respect of the same. In the instant case, it has been held by the lower appellate court that neither the possession of the suit property either by the predecessor-in-interest of the plaintiff or the plaintiff nor the title to the same had been established by leading any cogent evidence. In the instant case, it has been held by the lower appellate court that neither the possession of the suit property either by the predecessor-in-interest of the plaintiff or the plaintiff nor the title to the same had been established by leading any cogent evidence. The boundaries mentioned in the document of sale and in the document of gift are different. It has not been established by any reliable evidence that the very same property was conveyed to the predecessor-in-interest of the plaintiff and the plaintiff got the same by virtue of the sale deed. The existence of a latrine was also not mentioned in the sale deed. In the aforesaid circumstances, the finding of the lower appellate court cannot be held to be perverse for which interference by the High Court in a second appeal was warranted....” (Italics supplied) 23. Same view was taken in the decision reported in Ramdas v. Salim Ahmed and another, (1998)9 S.C.C. 719 . 24. I find lower appellate court has not considered the material question that is in issue whether the plaintiff has title to property or not. It decided in favour of respondent only because plaintiff has patta in his favour and appellant has miserably failed to prove her title to property. For various reasons stated earlier, patta in favour of plaintiff cannot be considered as document of title. Other documents came into existence only after the dispute arose. Plaintiff has miserably failed to prove his exclusive possession and title to the property. The decision of lower appellate court is therefore liable to be interfered with under Sec.100, C.P.C. It has ignored to consider the Law declared by the Honourable Supreme Court and that will be a ground for interference under Sec.100 of Code of Civil Procedure. 25. In the result, all the substantial questions of law are found in favour of appellant and the second appeal is allowed. O.S.No.255 of 1995 filed by respondent stands dismissed. Decree and Judgment of the lower appellate court in A.S.No.48 of 199 are set aside and that of trial court in O.S.No.255 of 1995 is restored. Taking into consideration the relationship of parties, I direct them to suffer their respective costs. C.M.P.No.22116 of 1999 is closed.