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2002 DIGILAW 1212 (MAD)

Philips and Others v. K. R. Muthuvelu Nainar (Died) and Others

2002-10-07

M.KARPAGAVINAYAGAM

body2002
Judgment :- The defendants 2 to 4 are the appellants herein. 2. K.R. Muthuvelu Nainar,the first respondent herein filed a suit for declaration to declare that the suit land is ryotwari land belonging to him and for recovery of possession in respect of 14.98 acres of land in Survey No.14/1 of Athiyur village. The trial Court dismissed the suit. However, the appeal filed by the plaintiff, the first respondent herein, was allowed and and the suit was decreed by the lower appellate Court. Hence, this second appeal by the defendants 2 to 4. 3. The case of the plaintiff in short is summarised as follows:- "(a) The suit property comprised in Survey No.14/1 measuring an extent of 14.98 acres was ryotwari land belonging to the plaintiff. The plaintiff was granted with patta No.192 in respect of the the suit land. The said land was enjoyed by the plaintiff and his predecessors as ryotwari land and they had been in continuous possession and enjoyment of the same up to 1955. (b) In 1943, the said land was wrongly included in Patta No.156 pertaining to the lands belonging to Adhi Ratneswara Devasthanam. On pointing out the wrong entry by the plaintiff, the said Devasthanam expressed no objection to assign patta for the suit land in favour of the plaintiff. Accordingly, the plaintiff applied for assigning patta in the year 1944 and paid kist for the years commencing from 1942. The kist receipts are Exs.A1 to A13. © On 1.9.1949, the suit village was notified under the provisions of Madras Estates Inam Abolition Act (Tamil Nadu Act 26 of 1948). Accordingly, the Settlement Authorities refused to grant patta to the plaintiff on the score that the suit land is a submersive area, by the order dated 11.12.1953. The plaintiff did not choose to challenge this order. In fear of penalty, charges under the guise of B Memos, the plaintiff abandoned the cultivation of the suit lands in the year 1954. In the year 1965, the defendants 2 to 4 encroached upon the suit lands and continued to be in illegal possession. (d) Thereafter, a Notification was issued in G.O.Ms.No.1300 dated 30.4.1971 by the Government of Tamil Nadu, the first defendant directing the Revenue Authorities to grant patta in respect of the submersive lands. On the basis of the said G.O., the plaintiff applied for patta before the District Revenue Officer. (d) Thereafter, a Notification was issued in G.O.Ms.No.1300 dated 30.4.1971 by the Government of Tamil Nadu, the first defendant directing the Revenue Authorities to grant patta in respect of the submersive lands. On the basis of the said G.O., the plaintiff applied for patta before the District Revenue Officer. Similarly, the defendants 2 to 4 also sought for patta for the suit lands. The District Revenue Officer after considering the pleas of both the parties granted patta in favour of the plaintiff and rejected the claim of the defendants 2 to 4 by the order dated 21.4.1975. (e) As against the said order, the defendants 2 to 4 filed a revision before the Board of Revenue. By the order dated 10.5.1976, the Board of Revenue rejected the claim for patta by both parties holding that the plaintiff was not in continuous possession and occupation of the suit land on the date of claiming patta and that the defendants 2 to 4 are encroachers. (f) The plaintiff challenged the said order of the Board of Revenue in the writ petition before the High Court. The said writ petition was dismissed by the order dated 27.8.1979 confirming the finding of the Board of Revenue. Thereafter, the plaintiff filed the above suit for the reliefs of declaration that the suit land is a ryotwari land and recovery of possession from the defendants." 4. In this case, the first defendant is the Government. The first defendant filed a written statement justifying the finding given by the Board of Revenue which was confirmed by the High Court in the writ petition. According to the first defendant, the suit land was classified as "assessed dry waste" and originally classified as "tank bed poramboke" and as such, the same did not belong to the plaintiff. Furthermore, the earlier proceedings culminated into writ petition becomes final and the same cannot be questioned and re-opened in the civil Court, especially when the same is barred by limitation. 5. The case of the defendants 2 to 4, the appellants herein is as follows: "The suit land was originally classified as "poramboke land" even prior to 7.9.1949. The same had been vested with the State Government. The defendants 2 to 4 took possession and have been in continuous possession and enjoyment since 1965. They have been paying B memo charges in proof of their possession. The same had been vested with the State Government. The defendants 2 to 4 took possession and have been in continuous possession and enjoyment since 1965. They have been paying B memo charges in proof of their possession. As they are in continuous possession from 1965, they prescribed title by adverse possession. Earlier round of litigation ended in writ petition in the High Court would operate as res judicata. Therefore, the suit is liable to be dismissed." 6. In the light of the above pleadings, necessary issues were framed. During the course of trial. the plaintiff Muthuvelu Nainar was examined as P.W.1 and Exs.A1 to A20 were marked. On the side of the defendants 2 to 4, the third defendant was examined as D.W.1 and Exs.B1 to B32 were marked through him. However, the first defendant State Government has not adduced any evidence, oral or documentary, in support of their case. 7. The trial Court on appreciation of the evidence available on record, dismissed the suit holding that the plaintiff has not established his claim as a holder of ryotwari land and the defendants 2 to 4 have established their prescribed title by adverse possession. Aggrieved by the same, the plaintiff, the first respondent filed an appeal before the lower appellate Court. After hearing the counsel for the parties, the lower appellate Court decreed the suit holding that the suit land is ryotwari land and as such, it belongs to the plaintiff and consequently, he would be entitled for recovery of possession of the suit property from the defendants. Hence, the second appeal by the defendants 2 to 4, the appellants herein. 8. At the time of admission, this Court would formulate the following substantial questions of law by the order dated 11.1.1985: 1) Whether the lower appellate Court has committed an illegality in holding that the appellants have not perfected title by adverse possession? 2) Whether the lower appellate Court was right in reversing the judgment of the trial Court without even considering the orders of the Board of Revenue and the High Court? 9. In elaboration of the above substantial questions of law, Mr.Nadana Sabapathy, the learned counsel for the appellants/defendants 2 to 4 would make the following two submissions: "(1) The plaintiff filed an application for the grant of patta before the District Revenue Officer. 9. In elaboration of the above substantial questions of law, Mr.Nadana Sabapathy, the learned counsel for the appellants/defendants 2 to 4 would make the following two submissions: "(1) The plaintiff filed an application for the grant of patta before the District Revenue Officer. Though the same was ordered in favour of the plaintiff, the Board of Revenue set aside the same and rejected the claim of the plaintiff. The said finding was confirmed in the writ petition in W.P.No.1865 of 1977 filed by the plaintiff before the High Court, holding that he is not entitled to the patta. Instead of challenging the said order through writ appeal in the appropriate forum, the plaintiff filed the suit for the same relief questioning the order of the High Court which is not maintainable. Admittedly, the plaintiff is not in possession after 1953, since he had abandoned possession in 1953. Before the Board of Revenue, the plaintiff contended that there was an oral lease by the plaintiff in favour of the appellants. On the other hand, the plaintiff took out a stand in this suit that the suit property was never leased out in favour of the plaintiff. Furthermore, no materials have been placed by the plaintiff to prove that the suit property is a ryotwari land and as such, he is entitled to the declaration of title. This aspect has been overlooked by the lower appellate Court. (2) The finding of the trial Court is that the plaintiff was not in possession even 12 years prior to the filing of the suit and therefore, defendants 2 to 4 have prescribed their title by adverse possession because of their continuous, uninterrupted possession and enjoyment from 1965 till the date of suit which was in 1981. But, the lower appellate Court reversed the finding of the trial Court merely on the basis of the fact that appellants have not established that they are in adverse possession to the knowledge of the real owner, namely the plaintiff for more than the statutory period. This finding is wrong because the adverse possession to the knowledge of the true owner would not apply to the case of adverse possession among strangers, as the said principle would only apply to adverse possession among co-owners. In this case, the plaintiff is not a co-owner and as such, knowledge to the true owner need not be established. This finding is wrong because the adverse possession to the knowledge of the true owner would not apply to the case of adverse possession among strangers, as the said principle would only apply to adverse possession among co-owners. In this case, the plaintiff is not a co-owner and as such, knowledge to the true owner need not be established. Hence, the judgment of the lower appellate Court is liable to be set aside and the judgment of the trial Court has to be restored." 10. With reference to the second submission, the learned counsel for the appellants would cite two authorities, namely MINOR IBRAHIMSA ROWTHER BY GUARDIAN AND OTHERS v. SHEIK MEERASA ROWTHER AND OTHERS (1972 T.L.N.J.243) and V. MUTHIAH PILLAI v. VEDAMBAL (A.I.R.1986 MADRAS 106), wherein a Division Bench of this Court would hold that the knowledge of the true owner with reference to the adverse possession need not be established in the case where the parties are strangers. 11. In reply to the above submissions, Mr.V.Ayyadurai, the learned counsel appearing for the plaintiff would urge the following contentions in justification of the finding given by the lower appellate Court in favour of the plaintiff: "Though the plaintiff abandoned possession of the suit property in the year 1954 in view of the order of settlement authorities rejecting patta to the plaintiff, and in fear of penalty in the guise of B memos in the light of introduction of the Act 26 of 1948 by which the Kulam Korvai lands like the plaintiff's land are vested with the Government, such vesting was set aside by the Board of Revenue in B.P.No.212/71 dated 13.5.1971, whereunder the plaintiff was given right to claim title over the suit property. Under those circumstances, he filed the application for patta and the same was granted by the District Revenue Officer. However, the Board of Revenue had not adverted to the same and refused patta and in the same way, the High Court also in W.P.No.1865 of 1977 did not go into the merits with reference to the statutory order in B.P.No.212/71 dated 13.5.1971 (Ex.A21). Hence, the lower appellate Court is well within the jurisdiction in holding that the plaintiff is entitled for patta as per B.P.No.212/71 dated 13.5.1971(Ex.A21). Hence, the lower appellate Court is well within the jurisdiction in holding that the plaintiff is entitled for patta as per B.P.No.212/71 dated 13.5.1971(Ex.A21). Immediately after the introduction of change of law which came into force with effect from 1971, the plaintiff applied for patta in the year 1973 and pursued the matter up to the High Court till 27.8.1979 where the claim of the plaintiff was rejected. Thereafter, the present suit was laid on 22.7.1981 within the period of 12 years. Therefore, the suit was filed well within the period of limitation. In any event, the plaint was presented in the year 1981 within 10 years from the date of issuance of the Board proceedings dated 13.5.1971. As such, the suit is within time. This aspect has been gone into by the lower appellate Court in detail and correct finding has been given with reference to the declaration of title". 12. Mr.Sivashanmugam, the learned Special Government Pleader appearing for the first defendant, the Government on the basis of the written statement filed before the trial Court would submit that the suit property belongs to the Government and the same was originally classified as Tank-bed Poramboke and subsequently, it was classified as assets dry waste and as such, the same did not belong to the plaintiff. He would further contend that the earlier Board proceedings giving finding against the plaintiff confirmed by the High Court in the writ petition becomes final and the same cannot be questioned in a civil suit. Furthermore, Ex.A21, the order of the Commissioner of Settlement Estate dated 13.5.1971 would apply to the persons who had applied as per Act 26 of 1948. But in this case, the plaintiff did not apply for the patta under the provisions of the Act, but applied outside the provisions of the Act as per G.O.Ms.No.1300 and therefore, the contents of Ex.A21 is not applicable to the facts and circumstances of the case. Though the Government has not filed an appeal, this point could be urged under Order 41 Rule 33 C.P.C. 13. I have carefully considered the submissions made by the counsel for the parties and also gone through the entire records. 14. Though the Government has not filed an appeal, this point could be urged under Order 41 Rule 33 C.P.C. 13. I have carefully considered the submissions made by the counsel for the parties and also gone through the entire records. 14. While elaborating the first substantial question of law, Mr.Nadana Sabapathy, the learned counsel appearing for the appellants/defendants 2 to 4 would submit that the defendants 2 to 4 have prescribed their title by adverse possession and finding by the appellate Court that the adverse possession to the knowledge of the true owner was not established was wrong, as the knowledge of the true owner is unnecessary when the parties are strangers. 15. On going through the judgments cited by the parties, it is clear that the argument advanced by the counsel for the appellants that the defendants 2 to 4 can claim adverse possession as against the plaintiff cannot be accepted since they never recognised the plaintiff as true owner nor had they adversely enjoyed the suit land asserting the title of the plaintiff as true owner. 16. It is settled law that however a longer time of possession it may be, mere such possession will not amount to adverse possession unless such possession is hostile to the knowledge of true owner. Therefore, the lower appellate Court, in my view, is correct in rejecting the claim of adverse possession levelled by the appellants/defendants 2 to 4 against the plaintiffs. 17. Then, we will come to the second substantial question of law. 18. This question would relate to the claim of the plaintiff that the suit land which is a ryotwari land belongs to the plaintiff and on that basis, he claims for recovery of the suit land from the defendants. It is the case of the plaintiff that the suit land is a ryotwari land belonging to him and consequently, the plaintiff was granted a patta No.192 and the same was wrongly included in patta No.156 pertaining to the Adhi Rathneswarar Devasthanam and on the basis of no objection by Temple Devasthanam, the patta was reassigned to the plaintiff as patta No.192. In 1949, the suit land was notified under the Madras Estates Inam Abolition Act. The settlement authorities under the said Act, namely Act 26 of 1948 refused to grant patta to the plaintiff on the score that the suit lands were liable for submersion. In 1949, the suit land was notified under the Madras Estates Inam Abolition Act. The settlement authorities under the said Act, namely Act 26 of 1948 refused to grant patta to the plaintiff on the score that the suit lands were liable for submersion. Thereupon, the plaintiff abandoned the cultivation in 1954. By virtue of G.O.Ms.No.1300 dated 30.4.1971 and the Board Proceedings dated 13.5.1971, the order passed by the settlement authorities rejecting patta on the ground that the lands were submersive lands was set aside and settlement authorities were directed to issue patta under the Abolition Act and as such, he is entitled to the patta. His specific stand is that he applied patta earlier only on the basis of G.O.Ms.No.1300, which was ultimately rejected by the authorities up to the High Court in the writ petition. Therefore, he has filed the suit on the basis of the Board's Proceedings B.P.212 dated 13.5.1971 which was not the subject matter of the proceedings either before the Revenue Board or before the High Court. On the basis of this stand, he requests for declaration that the land is ryotwari land belonging to him and for recovery of possession of the suit land which is admittedly in the possession of the defendants 2 to 4. 19. On perusal of the entire records including the written submissions made by the counsel for the parties, I am of the considered opinion that the reliefs of declaration and possession in respect of the suit land cannot be granted in favour of the plaintiff. The reasons for the above opinion are as follows: (1) The question relating to the suit property as to whether it is a ryotwari land belonging to the plaintiff has been considered by the High Court in W.P.No.1865 of 1977 and it was decided that it is only an assessed waste belonging to the Government. When such a finding has been given by the High Court, the plaintiff should have produced the relevant documents to prove that the land in question was the ryotwari land which was in possession up to 1954. The trial Court would give the details regarding the failure of the plaintiff to establish that the suit land was occupied by the plaintiff as ryotwari land and the documents marked by him would relate to the suit land. The trial Court would give the details regarding the failure of the plaintiff to establish that the suit land was occupied by the plaintiff as ryotwari land and the documents marked by him would relate to the suit land. As a matter of fact, as pointed out by the trial Court, through the documents filed by him, the identity of the land in question was not established. He did not produce original patta. He was not able to give the details of the boundaries. No other person was examined by him to show that the suit land was enjoyed by him as a ryotwari land. Even the documents filed by him would not give the particulars relating to the suit land. (2) The lower appellate Court would grant the relief of declaration mainly on the basis of Ex.A21 which has been marked before the appellate Court B.P.212/71 dated 13.5.1971, wherein it is stated that all the orders passed by the settlement authorities rejecting patta for submersive lands are set aside and the settlement authorities were directed to issue patta under Section 11(a) of the Abolition Act. The patta admittedly was applied only on the basis of G.S.Ms.No.1300 dated 30.4.1971. Though D.R.O. granted patta under this G.O., the patta was refused by the Board of Revenue on the appeal filed by the defendant holding that he was not in possession on the date of the G.O.Ms.No.1300 dated 30.4.1971. This was confirmed by the High Court in writ petition. Furthermore, Ex.A21 would show that the rejection of the patta on the ground that the lands are liable for submersion is not correct and therefore, fresh application can be considered for issuance of patta. This may not be sufficient to hold that the suit property was ryotwari patta land and the same was occupied and enjoyed by the plaintiff earlier. According to the first defendant, the Government, the suit land wase assessed as dry waste and the same was classified as tank bed poramboke and as such, the same did not belong to the plaintiff. In the light of this stand taken by the Government, it is for the plaintiff to prove that the property in question was in the possession of the plaintiff and the said land was ryotwari land and he was the holder of the same. In the light of this stand taken by the Government, it is for the plaintiff to prove that the property in question was in the possession of the plaintiff and the said land was ryotwari land and he was the holder of the same. As indicated above, the documents filed by the plaintiff would not clinchingly show that those would relate to the suit property. (3) The plaintiff has not come with clean hands and consistent stand before the civil Court. When the suit was filed, the plaintiff did not choose to implead the defendants 2 to 4. The relief sought for is only against the Government stating that he is entitled to declaration as the suit land is a ryotwari land belonging to the plaintiff and for recovery of possession from the Government. But, it is noticed that only during the course of trial on the application filed by the defendants 2 to 4, they were impleaded as defendants. It is the case of the plaintiff during the course of his deposition that the defendants 2 to 4 have been in possession of the suit property from 1954. This is not mentioned in the plaint. Even though the plaintiff is having the knowledge that the suit property is in the possession of the defendants 2 to 4 and even though they were party to the proceedings before the Board of Revenue and the Writ Court, he did not choose to ask for the relief of recovery of possession of the property from the defendants 2 to 4. This would indicate that the plaintiff has suppressed the important fact regarding the possession of the suit land by defendants 2 to 4. Furthermore, the stand taken by the plaintiff before the revenue authorities that though the plaintiff abandoned the suit land in 1954, he took possession of the suit land in 1971 and the defendants were allowed to be in possession by way of oral lease. Now, the stand of the plaintiff in the deposition is that the defendants encroached the suit property in 1965 and they are in possession. 20. Admittedly, the plaintiff had applied only under G.O.Ms.No.1300 outside the provisions of the Estate Abolition Act and not under the provisions of the Estate Abolition Act 26 of 1948. Now, the stand of the plaintiff in the deposition is that the defendants encroached the suit property in 1965 and they are in possession. 20. Admittedly, the plaintiff had applied only under G.O.Ms.No.1300 outside the provisions of the Estate Abolition Act and not under the provisions of the Estate Abolition Act 26 of 1948. Now, the plaintiff had marked Ex.A21, the order of the Commissioner of Settlement Estate dated 13.5.1971 before the appellate Court and on that basis, he makes a claim of declaration. 21. As pointed out by the learned Government Pleader that from the perusal of the said order Ex.A21, it is clear that the Commissioner set aside the earlier order of the authorities, who had applied as per Section 11(a) of the Act 26 of 1948. As indicated above, the plaintiff did not apply for the patta under the provisions of the Act, who applied outside the provisions of the Act as per G.O.Ms.No.1300. 22. The learned Government Pleader would point out a portion of paragraph 5 of B.P.Perm.212/71 dated 13.5.1971, which is as follows: "The Board therefore under the powers conferred on it under Section 7(c) & (d) of Abolition Act sets aside all orders passed by the settlement authorities so far as these 'Kulam Korvai' lands are concerned and directs the issue of patta under Section 11(a) of the Abolition Act, wherever satisfactory evidence is placed before the Assistant Settlement Officers. The settlement authorities should treat this as a general order authorising the Assistant Officers to consider the question of grant of patta notwithstanding any earlier orders passed rejecting the request for such grant of patta." 23. The wordings in the above order would indicate that patta can be issued under the Act whenever satisfactory evidence is placed before the Assistant Settlement Officers. Admittedly, the plaintiff has not approached the Assistant Settlement Officers and placed satisfactory evidence. For that matter, it shall be stated that even before the trial Court, the satisfactory evidence had not been placed to show that the suit land was ryotwari land and was in possession and enjoyment of the plaintiff and his predecessors. 24. Under those circumstances, the second substantial question of law has to be answered in favour of the appellants/defendants 2 to 4. Consequently, the decree passed by the lower appellate Court has to be set aside and accordingly set aside. 25. 24. Under those circumstances, the second substantial question of law has to be answered in favour of the appellants/defendants 2 to 4. Consequently, the decree passed by the lower appellate Court has to be set aside and accordingly set aside. 25. This Court is to give a finding on one other aspect. Even though the plaintiff was not able to prove his title by showing the suit land was his ryotwari land, as correctly found by the appellate Court, the finding given by the trial Court stating that the defendants 2 to 4 have prescribed their title through adverse possession against the plaintiff cannot be correct, in view of the fact that the suit land was occupied by the defendants only as encroachers, especially when they themselves admit that they have been paying B Memo charges. As such, it is still vest with the Government. Therefore, the finding by the trial Court with reference to adverse possession in favour of the defendants 2 to 4 also is liable to be set aside accordingly set aside. 26. In the result, the second appeal is allowed. No costs.