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2011 DIGILAW 3438 (MAD)

Shankar v. Dhanabakkiyam

2011-07-27

R.S.RAMANATHAN

body2011
JUDGMENT :- 1. The unsuccessful defendant is the appellant herein. The respondents/plaintiffs filed the suit for declaration and recovery of possession of the suit property. 2. The case of the respondents/plaintiffs was that one Mr.Arumuga Nattar, the husband of the first respondent was the native of Odaiyur Village, near Kalpakkam and he was owning lands in his Village. All of a sudden, those lands were acquired by the Government of India for atomic power project and instead of paying compensation, houses and house-sites were allotted to those persons, whose lands were acquired and along with the said Mr.Arumuga Nattar, 12 other persons were also allotted house and house-sites in the year 1970 and they have also formed a colony known as "Edaiyur Inland Fisherman Residential Colony'', Pudur and each of them was allotted 10 cents of land and they have taken possession of the property. As patta was not granted to Mr.Arumuga Nattar and others, 13 allottees, including Mr.Arumuga Nattar filed a Petition before this Court in W.P.No.6446 of 1984, seeking for a direction, and order was passed in that Writ Petition, directing the Authorities to consider granting of patta to the petitioners and it was observed in that said order that Mr.Arumuga Nattar and 12 others petitioners were allotted 10 cents of land. 3. It was further stated that the Government also granted patta in favour of Mr.Arumuga Nattar, in respect of the suit property. Thereafter, in the year 1989, the defendant trespassed into the suit property and disputed the title of the said Mr.Arumuga Nattar. Taking advantage of his possession, the defendant also filed a suit in O.S.No.660 of 1989, on the file of the District Munsif Court, Chengalpet, seeking for an injunction and that suit was ultimately dismissed for non-prosecution. As the appellant/defendant is a trespasser and is in illegal occupation, the suit was filed for declaration of plaintiffs' title to the suit property and for recovery of possession. 4. The appellant/defendant contested the suit disputing the allotment of 10 cents of land to the said Mr.Arumuga Nattar, and also the patta, alleged to have been granted in favour of him. 4. The appellant/defendant contested the suit disputing the allotment of 10 cents of land to the said Mr.Arumuga Nattar, and also the patta, alleged to have been granted in favour of him. According to the appellant/defendant, after the allotment of lands, one allotment remained unoccupied and that was allotted by the Fishermen Sangam to the father of the appellant/defendant viz., Mr.Raja Natar and ever since then, the Mr.Raja Natar, was in possession and thereafter, the appellant/defendant continued to be in possession of the property and he has not trespassed into the property, which was in occupation of Mr.Arumuga Nattar, as alleged by the respondents/plaintiffs. The appellant/defendant therefore submitted that the plaintiffs have no title to the suit property. 5. Both the Courts below accepted the case of the respondents/plaintiffs and held that the respondents/plaintiffs proved their title to the suit property and they were dispossessed in the year 1989 and the suit was filed within a period of 12 years and hence, the respondents/plaintiffs are entitled to the decree for declaration and recovery of possession. Aggrieved by the same, the present Second Appeal has been filed. 6. The Following Substantial questions of law were framed by this Court at the time of admission of the Second Appeal:- i) In a suit for declaration of title and possession of the suit property, whether the burden of proof is not on the plaintiff to place his evidence to prove his title over the suit property independent of the evidence to be adduced by the defendant? ii) When the plaintiffs rely upon the documents of assignment of the suit property, but failed to produce the documents of assignment of the suit property alleged to be in their possession, should not the Courts draw adverse inference? iii) When possession is demanded is it not the bounden duty of the person alleging dispossession to specify the date of alleged dispossession?'' 7. It is submitted by the learned counsel for the appellant that both the Courts below erred in holding that the respondents/plaintiffs proved title to the suit property in the absence of any proof of allotment letter or patta issued in favour of the said Mr.Arumuga Nattar or in favour of the respondents/plaintiffs. It is submitted by the learned counsel for the appellant that both the Courts below erred in holding that the respondents/plaintiffs proved title to the suit property in the absence of any proof of allotment letter or patta issued in favour of the said Mr.Arumuga Nattar or in favour of the respondents/plaintiffs. The learned counsel appearing for the appellant submitted that per Exs.A.2, A3, and A7, it was only stated that Mr.Arumuga Nattar was allotted 10 cents of land and in the absence of any allotment letter or patta issued in his favour, the respondents/plaintiffs are not entitled to the relief of declaration. 8. The learned counsel for the appellant further stated that it is not the case of the respondents/plaintiffs that patta was not granted in favour of the Mr.Arumuga Nattar and it was specifically stated in Paragraph No.4 of the plaint that patta was granted in favour of Mr.Arumuga Nattar along with the 12 other persons in respect of the suit property and the allotment letter was issued regarding the allotment of 10 cents of land to Mr.Arumuga Nattar, and those documents are the best evidence of proving the title of the respondents/plaintiffs and without producing the same, the Courts below erred in holding that this Court in W.P.No.6446 of 1984, Exs.A1 to 3 and 7, held that the respondents/plaintiffs were allotted the suit property. 9. The learned counsel for the appellant therefore submitted that in the absence of any proof of title to the suit property, the respondents/plaintiffs are not entitled to the relief of declaration. The learned counsel further submitted that in Ex.A6, notice issued by the respondents/plaintiffs, they have given different boundaries and claimed that property as their property on the basis of the allotment of patta and having regard to the boundary recitals in Ex.A6, and the suit schedule, it cannot be contended that the respondents/plaintiffs have proved title to the suit property. The learned counsel therefore submitted that in the absence of proof of title, the respondents/plaintiffs are not entitled to the relief of declaration. 10. The learned counsel therefore submitted that in the absence of proof of title, the respondents/plaintiffs are not entitled to the relief of declaration. 10. On the other hand, Mr.R.Subramanian, the learned Senior Counsel for the respondents submitted that it cannot be disputed that 10 cents of land was allotted to Mr.Arumuga Nattar and it has been made clear in Exs.A1 to A3 and A7, that 13 persons were allotted, each 10 cents of land and Mr.Arumuga Nattar was one among them and the defendant's father Mr.Raja Natar, was not one of the allotees and having regard to the fact that 10 cents of land was allotted to the said Mr.Arumuga Nattar, it can be safely concluded that the suit property was allotted to the said Mr.Arumuga Nattar, in the absence of any rival claims made by other 12 allottees. 11. The learned Senior Counsel further submitted that Ex.A9, statement would also prove that Mr.Arumuga Nattar was paying taxes and dues to the Fishermen Society and those amounts were paid on the basis that the land was allotted to him and the defendant also did not dispute the identity of the property, eventhough there is some discrepancies in the boundary recitals in the suit schedule as well as in the schedule mentioned in Ex.A6. The learned Senior Counsel also submitted that even in the suit in O.S.No.1660 of 2009, the defendant prayed for interim injunction in respect of 10 cents of property with a specific boundaries and the same boundaries were mentioned in Ex.A6, and therefore, having regard to the admission of the defendant that there is no dispute regarding the identity of the property, the difference in the boundaries in Ex.A6, and the description of properties in the suit schedule can be ignored and having regard to the same properties, both the parties are claiming right and in the absence of any right to the defendant, the plaintiffs are entitled to the relief of declaration, as they were the allottees, as held by this Court in the Writ proceedings-Exs.A1 to 3 and A7. 12. 12. The learned Senior Counsel therefore submitted that both the Courts below on the basis of the oral and documentary evidence have concurrently held that the respondents/plaintiffs were allotted 10 cents of property viz., the suit property and therefore, they have proved their title to the suit property and decreed the suit and the said concurrent findings need not be interfered with in the Second Appeal. 13. Heard both sides. 14. Both the Courts below have decreed the suit on the basis of the order passed in W.P.No.6446 of 1984, as evidenced by Exs.1 to 3 and A7. In those exhibits, this Court has held that Mr.Arumuga Nattar and 12 others were allotted 10 cents of property each and houses were constructed by the Government and they must be granted patta in respect of those lands. This Court in the writ proceedings did not hold that 10 cents of property with specific boundaries as stated in the suit was allotted to the plaintiffs' predecessor viz., Mr.Arumuga Nattar. Therefore, on the basis of the orders passed this Court in the said Writ Petition, it cannot be stated that the suit property was allotted to Mr.Arumuga Nattar and without appreciating the same, both the Courts have held that the suit property was allotted to Mr.Arumuga Nattar. 15. It may be true that Mr.Arumuga Nattar was allotted 10 cents of property, but in the absence of any proof that the suit property was allotted to Mr.Arumuga Nattar, the respondents/plaintiffs cannot rely upon the orders passed by this Court in W.P.No.6446 of 1984, to claim right over the suit property. Being the respondents/plaintiffs, it is the duty cast on them to prove their title, when they filed the suit for declaration. Further, in the plaint, it was specifically stated that 10 cents of property was allotted to 13 persons in the year 1970 and initially, no patta was granted to them. Therefore, they filed the Writ Petition.No.6446 of 1984, before this Court, seeking for a direction, directing the Authorities to issue patta and that was ordered. Though, in the Writ proceedings, this Court has directed the Revenue Authorities, to consider the request of the allottees to grant patta, this Court has not held that Mr.Arumuga Nattar was allotted the suit property and the order of this Court only states that 10 cents of property was allotted to Mr.Arumuga Nattar. 16. Though, in the Writ proceedings, this Court has directed the Revenue Authorities, to consider the request of the allottees to grant patta, this Court has not held that Mr.Arumuga Nattar was allotted the suit property and the order of this Court only states that 10 cents of property was allotted to Mr.Arumuga Nattar. 16. Further, in Paragraph No.4 of the plaint, it was specifically stated that the Government has also granted patta in favour of Mr.Arumuga Nattar for the suit property, along with 12 other persons. Therefore, the respondents/plaintiffs are having patta in their possession, but, they did not produce the same to prove their title. Admittedly, as per the allegations in the plaint, the respondents/plaintiffs are having best evidence with them viz., allotment order and the patta and without producing the same, they cannot rely upon the order passed by this Court in the said Writ Petition to claim that the suit property was allotted to them. According to me, such claim based on the order passed in Writ Petition will not help the respondents/plaintiffs to claim the relief of declaration. When the respondents/plaintiffs are having with them, the patta and allotment letter, they ought to have produced the same, when they claim the relief of declaration and without producing the same, an adverse inference can be drawn against them and without properly considering all these aspects, both the Courts below erred in granting the relief of declaration, 17. Further, there are some discrepancies regarding the boundaries in Ex.A6 and the suit property. As already stated, the plaintiffs have no proof that they were allotted the suit property with specific boundary by producing the allotment letter or the patta. In Ex.A6, it was stated that the plaintiff was allotted 10 cents of property, bounded on the East by Mr.Venugopal, West by Pond, South by Mrs.Lakshmi Ammal and North by Mr.Balaraman. But in the suit schedule, the Western boundary was stated to be Gramanatham and Southern boundary was stated to be Meenakshi Ammal patta land and the Northern boundary belongs to Mr.Bala Krishnan. Therefore, West, South and North boundaries had variance with Ex.A6. No explanation has been stated for changing the boundaries in the suit schedule. But in the suit schedule, the Western boundary was stated to be Gramanatham and Southern boundary was stated to be Meenakshi Ammal patta land and the Northern boundary belongs to Mr.Bala Krishnan. Therefore, West, South and North boundaries had variance with Ex.A6. No explanation has been stated for changing the boundaries in the suit schedule. Therefore, having claimed one property with specific boundaries in Ex.A6-notice, the plaintiffs have filed the suit in respect of another property with different boundaries and this fact would also prove that the plaintiffs have not proved that the suit property was allotted to them by the Government. All these aspects were not properly considered by the Courts below and both the Courts have taken into consideration the orders passed by this Court in writ proceedings, without properly appreciating the facts that in the writ proceedings, the boundaries of the suit property was not given and it was only stated that 10 cents of property was allotted to Mr.Arumuga Nattar. 18. Hence, in the absence of any proof of allotment letter or patta granted in favour of Mr.Arumuga Nattar, by producing the allotment order or patta, it cannot be stated that the plaintiffs have proved title to the suit property. Therefore, the substantial questions of law are answered in favour of the appellant and I hold that the plaintiffs have not discharged the burden of proof that they have got title over the property by producing the allotment letter or the patta. Hence, the respondents/plaintiffs are not entitled to the relief of declaration and once they are not entitled to the relief of declaration, they are also not entitled to the relief of recovery of possession. 19. Therefore, the judgment and decree of the Courts below are set aside and the Second Appeal is allowed. In the circumstances of the case, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed. 20 It was submitted by the learned Senior Counsel for the respondents that this judgment and decree passed in the Second Appeal should not be a bar for the respondents/plaintiffs to claim patta in respect of the allotted to Mr.Arumuga Nattar, by the Government. 21. Consequently, connected Miscellaneous Petition is closed. 20 It was submitted by the learned Senior Counsel for the respondents that this judgment and decree passed in the Second Appeal should not be a bar for the respondents/plaintiffs to claim patta in respect of the allotted to Mr.Arumuga Nattar, by the Government. 21. According to me, the suit filed by the respondents/plaintiffs is dismissed only on the ground that they have failed to prove the fact that the suit property was allotted to them by the Government and it is not in dispute that the plaintiffs' predecessor in title viz., Mr.Arumuga Nattar was allotted 10 cents of property and it is always open to the respondents/plaintiffs to work out their rights in respect of 10 cents of land allotted by the Government.