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2005 DIGILAW 621 (MAD)

Shanmughavelu & Another v. Sreenivasan

2005-04-09

A.R.RAMALINGAM

body2005
Judgment :- Aggrieved against the judgment and decree rendered by the Additional Sub Judge, Cuddalore in A.S.No.246 of 1992 in and by which the Additional Sub Judge has set aside the judgment and decree passed by the Additional District Munsif, Cuddalore in O.S.No.982 of 1989 and decreed the said suit in favour of the plaintiff, the defendants in the said suit viz., Shanmughavelu and his wife Ezhaikodi have filed this second appeal. 2. The question of law raised in the second appeal on behalf of the appellants/defendants is to the effect that whether the Additional Sub Judge is correct in holding that the plaintiff was in possession and enjoyment of the suit properties on the strength of the additional evidence viz., documents produced and marked as Exs.A6 to A8 (B memos for faslis 1390 and 1391 and letter of reply by the Tahsildar in the year 1993) in I.A.No.247 of 1993 in A.S.No.246 of 1992 when actually, the plaintiff was not in possession and enjoyment on the date of filing of the suit. 3. The plaint allegations in brief are as follows. The suit property viz., one acre covered by S.No.72/3 and 73/3 with specific boundaries described in the plaint schedule at Sandrorpalayam village belongs to the Government as "malai poramboke". The same is in enjoyment of the plaintiff for the past so many years and he is enjoying the same by cultivating manavari dry crops like groundnut, millets and bajra. His enjoyment has been recognised by the Government and B memos also were issued. However, for the past three years before filing the suit, B memos were not issued in the name of the plaintiff. So, the plaintiff also issued notice to Tahsildar and Village Administrative Officer, Cuddalore for issue of B memo recognising his enjoyment. But, the Village Administrative Officer obtained all the original records showing the payment of penal charges from the plaintiff by saying that he would forward the papers with his recommendation to the Government for assignment in favour of the plaintiff. While so, the defendants, who are owning the land on the western side of the suit property, are trying to get B memos issued in their names with the help of the Village Administrative Officer and thereby attempting to disturb the plaintiff's possession from 22.12.1989. While so, the defendants, who are owning the land on the western side of the suit property, are trying to get B memos issued in their names with the help of the Village Administrative Officer and thereby attempting to disturb the plaintiff's possession from 22.12.1989. Therefore, the defendants have no right to interfere with the possession and enjoyment of the plaintiff upon the suit property other than the true owner viz., the Government. That is why the plaintiff happened to file the suit for permanent injunction against the defendants. 4. The brief allegations in the written statement filed by the first defendant supported by the second defendant can be stated as follows. The survey numbers mentioned in the plaint schedule 72/3 and 73/3 are not correct and pertaining to the suit property within the specific boundaries mentioned in the plaint schedule. In fact, the property covered by S.No.73/2 to the extent of 19 acres is in possession and enjoyment of the second defendant. The said property as well as another 2 ares covered by S.No.73/3 were originally enjoyed by one Sabapathy, elder brother of the plaintiff for more than 25 years and B memos were issued in the name of Sabapathy. The said Sabapathy surrendered possession of the said 19 acres + 2 acres covered by S.Nos.73/2 and 73/3 in favour of the second defendant Ezhaikodi for a consideration of Rs.1500/= on 4.8.1989. Ever since of such surrender, the second defendant alone is in possession and enjoyment of the said properties and she had also reclaimed it by spending more than Rs.3000/=. So, the plaintiff's claim as if he encroached upon the suit properties many years back and he was cultivating the same with manavari crops and he obtained B memos in his name is not correct. In fact, B memos alleged by the plaintiff do not refer to the suit property and it is also false to say that the original B memos and receipts for payment of penalty, etc., were handed over to the Village Administrative Officer. Again it is false to say that the defendants have attempted to disturb the possession and enjoyment of the plaintiff on 22.12.1989. Therefore, the suit is liable to be dismissed. 5. Again it is false to say that the defendants have attempted to disturb the possession and enjoyment of the plaintiff on 22.12.1989. Therefore, the suit is liable to be dismissed. 5. The Trial Court viz., the first Additional District Munsif, Cuddalore, after trial and consideration of oral evidence of the plaintiff as PW1 and his witness Kasinathan as PW2 and the oral evidence of the first defendant Shanmughavelu as DW1 and his witness Chinnathambi as DW2 and five documents marked as Exs.A1 to A5 and three documents marked as B1 to B3, has found and come to the conclusion that the plaintiff has no possession and enjoyment upon the suit property on the date of the suit and consequently, he is not entitled to get the relief of permanent injunction against the defendants and thereby dismissed the suit. 6. Aggrieved against such dismissal of the suit, the plaintiff preferred A.S.No.246 of 1992 before the Additional Sub Judge, Cuddalore and the Additional Sub Judge also after considering the judgment of the Trial Court as well as the additional evidence marked as Exs.A6 to A8 in I.A.No.247 of 1993, has found and come to the conclusion that the plaintiff has possession and enjoyment of the suit property on the date of the suit and consequently allowed the appeal and decreed the suit. 7. The oral and documentary evidence available in this case in the light of the judgments of both the courts below and the arguments of the counsels appearing for either side are considered by me in depth. From such consideration, I am able to understand and point out the following material points for the purpose of appreciation and conclusion. The Additional Sub Judge has presumed that the plaintiff should be in possession and enjoyment of the suit property on the strength of Exs.A6 to A8 marked as additional evidence at the time of the first appeal and in the absence of material evidence for the defendants to show their possession upon the suit property and based upon that presumption the Additional Sub Judge has chosen to hold that the plaintiff is entitled to get the relief of permanent injunction. Exs.A6 and A7 are said to be certified copy of B memos for the faslis 1390 and 1391 relating to the years 1980 and 1981 respectively and Ex.A8 is the letter of Tahsildar of the year 1993 long after the filing of the first appeal in A.S.No.246 of 1992. In this context, it is to be pointed out that unless there is original record viz., B memo or register concerned available in the Talk Office, there is no question of issue of certified copy of B memo for faslis 1390 and 1391. There is no reason as to why the plaintiff has not chosen to examine any official of the Revenue Department like the Revenue Inspector, Village Administrative Officer, Deputy Tahsildar and so on to prove that the additional evidence marked as Exs.A6 and A7 are relating to B memos issued in the name of the plaintiff in the year 1980 and 1981 itself. It is more so when it is disputed by the defendants that those B memos could not be genuine and relating to the suit property. Moreover, the foremost thing is that a person like the plaintiff who seeks the relief of permanent injunction in a suit should establish and prove that he was in possession and enjoyment of the suit property on the date of the suit that too when the suit property is a poramboke land belonging to the government. In case of any stray encroachment in a year or in a season or intermittent encroachment in a year or in a season, it cannot be construed as if the particular encroacher only was in possession and enjoyment of the suit property on the date of filing of the suit. It is more so when in a poramboke land anybody can make encroachment at any time and such encroachment should be recognised by the Government through issue of B memos and collection of penalty, etc. 8. It is more so when in a poramboke land anybody can make encroachment at any time and such encroachment should be recognised by the Government through issue of B memos and collection of penalty, etc. 8. Curiously, the plaintiff examined as PW1 has specifically pleaded in the plaint itself filed on 23.12.1989 to the effect that for the past two to three years, B memos had not been issued in his name and he has issued notice to Tahsildar and Village Administrative Officer to recognise his possession and for issue of B memos and the Village Administrative Officer obtained all the original receipts evidencing payment of penal charges along with an application for assignment of the property from the Government. Therefore, it goes without saying that even before filing of the suit B memos were not issued in the name of the plaintiff and he has not chosen to get back the original receipt evidencing payment of penal charges, etc., from the Village Administrative Officer nor he had made any complaint to the higher revenue officials about the conduct of the Village Administrative Officer in not having returned the original receipts to the plaintiff, etc. 9. On the other hand, the plaintiff as PW1 has gone to the extent of saying that B memos were not issued for the past two to three years and he gave petition marked as Ex.A1 to Tahsildar wherein it has been categorically stated that enjoyment of the suit property is with him for the past so many years and payment of penalty also has been made for those years and for the past two years, he has not paid penalty because the Village Administrative Officer refused to receive the penalty charges and the Tahsildar has to recognize his enjoyment and B memos should be issued and penalty should be collected and the Village Administrative Officer is attempting to issue B memo in favour of the first defendant and so on. In the same way, in another notice issued by the plaintiff to the Tahsildar marked as Ex.A2, it has been categorically stated that the suit property is with him for the past so many years and the Village Administrative Officer is not collecting penal charges for issue of B memos and he is prepared to pay penal charges whatever demanded and thereby the action may be taken for issue of B memos and collection of penalty charges. These Exs.A1 and A2 coupled with the pleading in the plaint and the plaintiff's evidence in the above observed manner clearly go to show that on the date of filing of the suit, the plaintiff could not be in possession and enjoyment of the suit property and he could not be an encroacher on the date of filing of the suit and that is why no B memo was issued nor penal charge is collected. 10. It is significantly to be pointed out that the first defendant under the original of Ex.A3 sale deed appears to have purchased 76 cents in S.No.72/2 which is lying on the west of the suit property from one Achiammal on 21.10.1986. It is also the conscious admission of the plaintiff in the chief examination that the said 76 cents was previously owned by him and it was mortgaged to Achiammal in the year 1975 and since he was not able to redeem it, the said Achiammal had sold away the said 76 cents in the year 1986 in favour of the first defendant under the original of Ex.A3 and that B memos issued to him are in the custody of the Village Administrative Officer and that he did not demand for return of B memos from the Village Administrative Officer. It is true that he sent petition to the Tahsildar for getting assignment of the suit property and yet, the Sub Collector has sent reply on 23.12.1991 that is long after the disposal of the suit before the Additional District Munsif stating that neither the plaintiff nor the first defendant has encroached upon the suit property having enjoyment of the same as borne out from the enquiry and only after disposal of the civil suit, the question of granting assignment, etc., would be taken into consideration. So, in this context, it is to be pointed out that even in the document marked as Ex.A5, it has been indicated that neither the plaintiff nor the first defendant is in possession and enjoyment of the suit property. 11. Further, it is the categorical version of the plaintiff in the chief examination that he is not aware of the fact whether the second defendant purchased the suit property for Rs.1800/- from his elder brother Sabapathy on 4.8.1989. However, it seems that the first defendant has tried to mark an unregistered sale deed in this respect before the Additional District Munsif, but, for want of registration, the Additional District Munsif has refused to receive and mark the same as Exhibit on the side of the first defendant and it is also to be pointed out that inasmuch as the suit property itself belongs to the Government as poramboke land, there is no question of authorised or legal alienation by one party to another party based upon mere possession and it can be only through some unregistered document. At the same time, in the cross examination, the plaintiff as PW1 has gone to the extent of saying that he is not aware of the actual extent within the said boundaries in the plaint schedule and he was able to contact Thalayari and obtain Xerox copy of the B memos and return the same to the Thalayari in the year 1972. Further, significantly, he has gone to the extent of admitting that after 1972, or earlier, B memo was not issued to him at any time and he is not aware of the penal charges for B memo. Further, he has gone to the extent of saying that usually a patta holder would be enjoying the adjacent lying poramboke land and even as per Ex.A5 letter issued by the Revenue Department, it is indicated that patta cannot be issued inasmuch as the plaintiff is not in possession of the suit property. Further, he has gone to the extent of saying that he handed over Rs.500/= to the Village Administrative Officer for the purpose of getting assignment of the suit property in his favour and he paid penalty charges lastly in the year 1967 only. Further, he has gone to the extent of saying that he handed over Rs.500/= to the Village Administrative Officer for the purpose of getting assignment of the suit property in his favour and he paid penalty charges lastly in the year 1967 only. Therefore, the cumulative effect of all these admissions of PW1 in chief examination and cross examination goes to indicate that the plaintiff could not be in possession and enjoyment of the suit property on the date of filing the suit and in all probabilities, the defendants after having purchased 76 cents lying on the west of the suit property in the year 1986 and particularly when the suit property itself has been purchased through unregistered sale deed from Sabapathy elder brother of the plaintiff could be in possession and enjoyment of the suit property and that is why on the basis of such enjoyment, the defendants approached the revenue officials to get assignment of the same. Aggrieved against such attempt of the defendants in the year 1989, the plaintiff appears to have taken steps to send petition to the Tahsildar for the purpose of getting issue of B memos and collection of penalty charges and issue of assignment, etc. That sort of hastiness on the part of the plaintiff without reliable, supporting and acceptable documents like B memos, it cannot be considered as if the plaintiff could be in possession and enjoyment of the suit property on the date of filing of the suit. 12. No doubt, the plaintiff has chosen to produce Ex.A4 viz., Cultivation Adangal Extract for faslis 1392 to 1398 with an idea of saying that the plaintiff was cultivating or enjoying the suit property. On perusal of Ex.A4, I am able to see that the name of the plaintiff has been shown in fasli 1392 as if he was cultivator with protest relating to S.No.73/3 for two years and there is no entry of the plaintiff's name in other faslis viz., faslis 1393 to 1398 as if he is the cultivator upon the suit property covered by S.No.73/3 or 72/3 and many columns are blank. So, Ex.A4 appears to have been obtained by the plaintiff in the year 1991 long after dismissal of the suit filed by him before the Additional District Munsif, Cuddalore. So, Ex.A4 appears to have been obtained by the plaintiff in the year 1991 long after dismissal of the suit filed by him before the Additional District Munsif, Cuddalore. Here also it is to be pointed out that persons like Village Administrative Officer or Tahsildar has not been examined on the side of the plaintiff to state about this Ex.A4 since it is disputed by the defendants that it is not pertaining to the suit property and it should be pertaining to the property that was owned by the plaintiff and his brother Sabapathy before the sale deed executed by Achiammal in favour of the first defendant under Ex.A3 in the year 1986 and before the sale, through unregistered sale deed said to have been executed by Sabapathy in favour of the second defendant and thereby these entries cannot be pertaining to the suit property within the specific boundaries described in the plaint schedule. 13. The first defendant as DW1 also has given evidence to the effect that Ex.A3 is pertaining to S.No.72/3 and that is with the extent of 19 acres and S.No.73/3 with the extent of 2 acres is lying on the east by the said 19 areas. Both items were purchased from the elder brother of the plaintiff Sabapathy on 4.8.1999 in the name of the second defendant and thereupon they have paid kist under kist receipts marked as Exs.B1 o B3. He has gone to the extent of saying that the survey number mentioned as 72/3 in plaint is not correct and the correct survey numbers are 73/2 and 73/3. Even in the cross examination, the DW1 has categorically denied the suggestion of the plaintiffs counsel that the sale deed has been obtained from Sabapathy because of the strained relationship between Sabapathy and the plaintiff by the second defendant. This suggestion itself goes to indicate that the second defendant has purchased the suit property from Sabapathy. It is also clarified in the re-examination that the said purchase from Sabapathy through unregistered document dated 4.8.1989. This suggestion itself goes to indicate that the second defendant has purchased the suit property from Sabapathy. It is also clarified in the re-examination that the said purchase from Sabapathy through unregistered document dated 4.8.1989. Therefore, in all force, and probabilities, I am of the view that the plaintiff could not be in possession and enjoyment of the suit property on the date of filing of the suit and instead, it should be with the defendants and that is why at the last minute of filing the suit, the plaintiff has taken hasty actions in sending petition to the Tahsildar for getting assignment and issue of B memos and collection of penalty, etc., and then filed the suit for permanent injunction. 14. Consequently, the reasoning and approach of the first appellate court viz., the Additional Sub Judge, Cuddalore, in my view, does not appear to be proper and justified and the Additional Sub judge has been carried away by the additional evidence marked as Exs.A6 to A8 which cannot be relied on to arrive at the presumption. 15. Therefore, the second appeal is allowed with costs and the judgment and decree of the Additional Sub Judge, Cuddalore is set aside and the judgment and decree of the Additional District Munsif, Cuddalore is restored. The connected C.M.P is closed.