Judgment : Challenge is made in this memorandum of second appeal to the judgment and decree, dated 30.12.1999 and made in A.S.No.29 of 1999 on the file of the learned Additional District Judge, Chengalpattu, reversing the judgment and decree of dismissal, dated 29.7.1999 and made in O.S.No.95 of 1994 on the file of the learned District Munsif, Chengalpattu. 2. The appellant herein is the defendant, whereas the respondents 3 to 8 are the legal representatives of the deceased plaintiffs, viz., Gopalsamy Chettiar and Chakkrapani Chettiar. 3. This second appeal came to be admitted on the following substantial questions of law:- a. Whether the learned Judge failed to draw an adverse inference under Section 114 of the Evidence Act against the plaintiff's, viz., that if SLR extract for Paimash No.1029 as mentioned in the sale deed Ex.A1 is produced it will show some other survey number not the suit lands in Survey No.95/7 which negative the plaintiffs' title over the suit lands? b. Whether the learned Judge failed to see that in a suit for declaration of title, plaintiffs must prove the title and the defendant need not prove his title and the burden of proof purely lies on the plaintiff? c. Whether the learned Judge failed to follow the legal principles as enunciated under Section 34 of the Specific Relief Act while deciding the title over the suit lands? d. Whether the learned Judge properly looked into the order passed in Ex.B4 while deciding the title of the defendant/appellant over the suit lands? e. Whether the learned Judge has thoroughly looked into the oral and documentary evidence of the plaintiff and defendant while deciding the case? f. Whether the learned Appellate Judge wrong in reversing the well considered judgment of trial Court? 4. When the appeal is taken up for hearing today, Mr. T.V. Krishnamachari, learned counsel appearing for the appellant/defendant is present and ready to argue the case. 5. On the other hand, despite the service of notice, the legal representatives of the deceased respondents 1 and 2/plaintiffs, viz., R3, R4, R6 and R7 have not chosen to appear either in person or through their respective counsels. T.V. Krishnamachari, learned counsel appearing for the appellant/defendant is present and ready to argue the case. 5. On the other hand, despite the service of notice, the legal representatives of the deceased respondents 1 and 2/plaintiffs, viz., R3, R4, R6 and R7 have not chosen to appear either in person or through their respective counsels. In so far as the respondents 5 and 8 are concerned, substituted service was ordered and accordingly, a paper publication was effected in a Tamil daily, viz., “Makkal Kural”, Chennai Edition, on 29.4.2014 and in spite of that they have not chosen to appear. 6. Therefore, there is no other go for this Court excepting to hear Mr.T.V.Krishnamachari, learned counsel appearing for the appellant and dispose of this second appeal on merits in the absence of the respondents. 7. The deceased respondents 1 and 2/plaintiffs had originally filed a suit in O.S.No.95 of 94 on the file of the District Munsif Court, Chengalpattu as against the appellant/ defendant seeking the relief of declaration of their title over the suit property comprised in S.No.95/7 measuring 0.32 cents at Kanathur Reddikuppam Village, Chengalpattu Taluk, and also for permanent injunction. 8. That suit was dismissed by the learned District Munsif on the ground that the Paimash number mentioned as 1029 in Ex.A1, Registered sale deed, dated 15.1.1930 said to have been executed by one Basha Begum in favour of one Subramania Chettiar and Pavadai Chettiar, does not correlate with the two survey numbers, viz., S.No.95/1 and 95/7. 9. He has also found that no records like survey land extract are filed by the plaintiff to prove the factum that the old Paimash No.1029 has now been assigned as S.No.95/7 and even in Ex.A2 Final settlement notice, the Paimash number has been shown as 278 in respect of the suit property comprised in S.No.95/7 and not 1029. 10. Having been aggrieved by the judgment and decree of dismissal, dated 29.7.1999, the respondents/plaintiffs have preferred an appeal before the first appellate court, viz., learned Additional District Judge, Chengalpattu. 11. After hearing both sides, the first appellate court had proceeded to allow the appeal on 30.12.1999 reversing the judgment of the trial court, against which the present second appeal is filed by the defendant. 12. As per the plaint schedule, the suit property has been described as under:- S.No. Dr.Sur.No. Extent Kist A.C. H.A. Rs.P. 1.95/7 0.32 0.13.5 0.16. 13. After hearing both sides, the first appellate court had proceeded to allow the appeal on 30.12.1999 reversing the judgment of the trial court, against which the present second appeal is filed by the defendant. 12. As per the plaint schedule, the suit property has been described as under:- S.No. Dr.Sur.No. Extent Kist A.C. H.A. Rs.P. 1.95/7 0.32 0.13.5 0.16. 13. The deceased respondents/plaintiffs 1 and 2 have claimed in the suit that the above said property measuring 0.14.0 Kani equivalent to 1.18 cents was purchased by one Subramani Chettiar s/o. Kathavaraya Chettiar and Pavadai Chettiar s/o. Kuppu Chettiar, who are fathers of the respondents/plaintiffs, from one Zaharunisha alias Basha Begum under a registered sale deed, dated 15.1.1930. In the sale deed, the land has been described as if it is comprised in Paimash No.1029 within the following boundaries:- East of the Punja land of Janakiraman Naicker West of the Punja lands of Chithirai Chettiar North of the Punja lands of Janakirama Naicker South of Ponary Chalai of Arulmigu Ellemman Temple. 14. The respondents/plaintiffs have contended that ever since from the date of purchase, the said Subramania Chettiar and Pavadai Chettiar were in possession and enjoyment of the suit land by cultivating and raising Casurina and even after the death of Pavadai Chettiar and Subramania Chettiar, the respondents/plaintiffs have been in possession and enjoyment of the suit lands by raising Casurina. 15. After the abolition of Estate under Act 26 of 1948, the suit village was surveyed and patta was granted and it appears that the suit village was surveyed by one Shrotriamdars and Paimash No.1029 was assigned to the S.No.278. 16. During the survey and settlement under the Act 26 of 1948, the suit land was surveyed and final settlement notice was issued to the said Subramania Chettiar s/o. Kathavaraya Chettiar and assigned with patta No.30. During the updating of the register, the suit land was once again surveyed and the entire land 1.18 cents was measured and assigned the following survey numbers:- A.C. H.A. Dry 95/6 0.86 0.34.5. Dry 95/7 0.32 0.13.5. Total 1.18 0.48.0 17. However, the suit is relating to 0.13.5 cents comprised in survey number 95/7. 18. During the updating of the register, the suit land was once again surveyed and the entire land 1.18 cents was measured and assigned the following survey numbers:- A.C. H.A. Dry 95/6 0.86 0.34.5. Dry 95/7 0.32 0.13.5. Total 1.18 0.48.0 17. However, the suit is relating to 0.13.5 cents comprised in survey number 95/7. 18. The respondents/plaintiffs have contended that they alone have been in absolute possession and enjoyment of the suit land and that the defendant has no manner of either title or interest over the suit properties and he has also not been in possession thereof. 19. Hence, the respondents/plaintiffs were constrained to file the present suit for declaration and permanent injunction. 20. On the other hand, the case of the appellant/defendant is that the suit property comprised in S.No.95/7 is absolutely belonged to him and another land in S.No.96/1 is situated on the southern side of the suit land comprised in S.No.95/7 and both are contiguous. The lands are ancestral lands and the appellant/defendant has been in absolute possession and enjoyment of the land and even prior to his enjoyment, his forefathers were in possession and enjoyment of the suit property. 21. He has further contended that in the settlement proceedings for the suit land patta number 161 was granted in his favour in the year 1961 and UDR patta No.253 was granted in his favour during updating the scheme in the year 1986 in the village as he was in possession of the suit land and another land in S.No.96/1. 22. It is also his case that during the year 1987, the Chengalpattu Tahsildar effected transfer of patta over the suit lands wrongly in the name of the first respondent/plaintiff Gopalsamy Chettiar when he was in Malaysia. The first respondent/plaintiff was taking advantage of his position as President in the suit village to change the patta in respect of the suit land, which stands in the name of the defendant since 1961, during his absence in the suit village. 23. Subsequently, he came to know about the change of patta in the name of the first respondent/plaintiff and therefore, he had presented a petition on 8.4.1991 to the Tahsildar and requested him to re-transfer the patta in his name. 23. Subsequently, he came to know about the change of patta in the name of the first respondent/plaintiff and therefore, he had presented a petition on 8.4.1991 to the Tahsildar and requested him to re-transfer the patta in his name. In pursuant to his application, an enquiry was conducted by the Tahsildar of Chengalpattu on 27.6.1991 and his statement was recorded and he had also visited the suit lands and thereafter, re-transferred the suit lands to UDR patta 253 on 5.11.1992 vide RPT No.470/91. 24. Challenging this order, the first respondent/plaintiff had preferred an appeal to the Sub Collector and after an enquiry, that appeal was dismissed on merits. Once again, the first respondent/plaintiff had preferred a revision before the District Revenue Officer which was also dismissed. 25. He has stated further that UDR patta would be granted to the persons, who are in possession of the land at the time of survey of the lands by the Settlement Tahsildar. 26. As afore stated, the contention made on behalf of the defendant was accepted by the learned trial Judge, viz., the learned District Munsif and had proceeded to dismiss the suit for declaration and permanent injunction. But the lower appellate court had reversed the said judgment of the trial Court and allowed the appeal, against which the present second appeal is filed. 27. Mr.T.V.Krishnamachari, learned counsel appearing for the appellant has submitted that the disputed suit property measuring 0.32 cents is comprised in S.No.95/7 and that the respondents/plaintiffs have been relying upon only on the Paimash number. 28. The respondents/plaintiffs have claimed that their parents had purchased the suit property from one Basha Begum under Ex.A.1 dated 15.1.1930. Ex.A2, dated 28.11.1989 is the final settlement notice, viz., Rough Patta bearing No.30 issued to Subramania Chettiar. 29. In Ex.A1, sale deed, dated 15.1.1930, it is stated that approximately 0.14.0 Kani comprised in Paimash Number 1029 appears to have been sold under this document. 30. Ex.A2 is the final settlement notice, wherein the rough patta number has been mentioned as 30. The holder of the land is Subramania Chettiar s/o. Kathavaraya Chettiar. The survey number has been stated as 95/7 and Paimash number has been stated as 278. 31. It is to be noted that Paimash number 1029 has not been stated in this document. This document is dated back to 28.11.1989. The holder of the land is Subramania Chettiar s/o. Kathavaraya Chettiar. The survey number has been stated as 95/7 and Paimash number has been stated as 278. 31. It is to be noted that Paimash number 1029 has not been stated in this document. This document is dated back to 28.11.1989. It seems to have been issued to Subramania Chettiar s/o.Kathavaraya Chettiar. In this document, the survey number in respect of 0.32 cents has been specified as 95/7 and Paimash number has been stated as 278. It may be relevant to note here that the Paimash number 1029 does not find a place in this document. 32. In paragraph No.3 of the plaint, it has been stated that in the sale deed, the said land is described as if it is comprised in Paimash number 1029. It has also been incorporated in paragraph 3 of the judgment that after the abolition of Estate under the Act 26 of 1948, the suit village was surveyed and patta was granted. The suit village was surveyed by Shrothiramdars and the Paimash number 1029 was assigned to the survey number 278. 33. But as demonstrated by the learned counsel Mr.T.V. Krishnamachari, in Ex.A.2, viz., Final settlement notice, the Paimash number has been mentioned as 278 in respect of the survey number 95/7. 34. On perusal of the judgment of the trial court, it is revealed from paragraph 16 with reference to issue No.1 that the old Paimash number 1029 does not correlate with two survey Nos.96/1 and 95/7. 35. It has also been stated that no records like survey land extract are filed by the plaintiff to prove the fact that old Paimash number 1029 has now been assigned as S.No.95/7. 36. He has also observed that even in Ex.A2 the Paimash number is shown as 278 for S.Nos.95/7 and that the Paimash No.1029 does not find a place. With regard to Exs.A4 and A5 he has observed that in these documents no references are available with regard to the patta number as well as the extent of the land and with regard to these documents Exs.A4 and A5, the learned trial Judge has observed that they do not correlate with the suit lands. 37. Ex.A4 is the Kachayat book showing the payment of kist by the plaintiffs. Similarly, Ex.A5 is the Kachayat Book showing the payment of kist by the plaintiffs. 37. Ex.A4 is the Kachayat book showing the payment of kist by the plaintiffs. Similarly, Ex.A5 is the Kachayat Book showing the payment of kist by the plaintiffs. This Court has verified these two documents and found that the learned trial Judge has correctly examined them and coming to the right conclusion that these documents did not contain any patta number as well as the extent of the land. 38. Having been considered the documentary evidences, the learned trial Judge has concluded that the respondents/plaintiffs did not have any title to the suit property as the Paimash Number 1029 did not correlate with the new survey number 95/7 and equally he has concluded that there is no proof on the side of the plaintiffs to show that the Paimash Number 1029 is assigned with new survey number 95/7 and further he has concluded that the patta now stands in the name of the defendant. 39. Ex.B7 is the patta bearing No.253. It appears to have been issued to the defendant Jayarama Chetty s/o. Samy Chetty in respect of the survey number 96/1 and 95/1. It is significant to note here that the suit property is comprised in S.No.95/7, which stands in the name of the appellant/defendant. 40. Ex.A.11 is the certified copy of Survey Land Register, dated 22.12.1993, which stands in the name of the defendant. On perusal of this document it would reveal that S.No.95/7 for Paimash Number 278 stands in the name of Jayarama Chettiar s/o. Samy Chettiar, i.e., appellant/defendant. 41. Ex.B6 is the certified copy of the Survey and Settlement Register. This document reveals that the land measuring 0.32 cents comprised in Paimash Number 278 which is related to survey number 95/7 stands in the name of the defendant, i.e., Jayarama Chettiar. 42. Ex.A15 is the kist receipt, whereas Ex.A.16 is the notice under Section 11(1) read with Section 7-D and 40-A of the Tamil Nadu Urban Land Tax Act, 1966 as amended in 1991, given to the first plaintiff. 43. This Court takes the risk of reiteration with reference to Ex.A16. The Chengalpattu Tahsildar had effected transfer of patta, in the year 1987, in respect of the suit lands wrongly in the name of the first respondent/plaintiff Gopalasamy Chettiar. On 8.4.1991 the appellant/defendant had presented an application to the Tahsildar requesting to re-transfer the patta in his name. 43. This Court takes the risk of reiteration with reference to Ex.A16. The Chengalpattu Tahsildar had effected transfer of patta, in the year 1987, in respect of the suit lands wrongly in the name of the first respondent/plaintiff Gopalasamy Chettiar. On 8.4.1991 the appellant/defendant had presented an application to the Tahsildar requesting to re-transfer the patta in his name. On his application, a detailed enquiry was conducted and the statements of the parties concerned were recorded and subsequently, the Tahsildar had also visited the suit land personally and thereafter, the patta was re-transferred in the name of the appellant/defendant on 5.11.1992 vide RPT NO.470/91. 44. Thereafter the first respondent/plaintiff (since deceased) had preferred an appeal to the Sub Collector and his appeal was dismissed. He had also preferred a revision before the DRO and that revision was also dismissed. This has not been denied by the respondents/plaintiffs. 45. As contemplated under Section 34 of the Specific Relief Act, 1963, the declaratory relief is purely depending upon the discretion of the court with reference to status or right of a person, who claims the relief. 46. It enacts that any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right and the Court may in its discretion made therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief. Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. 47. As observed in VemareddiRamaraghava vs. Kanduru Seshu ( AIR 1967 SC 436 ), Section 42, now Section 34 of the Specific Relief Act, 1963, of the Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and the Courts have power to grant such a decree independently of the requirements of the section. 48. This Court has also perused the averments of the judgment passed by the first appellate court. 48. This Court has also perused the averments of the judgment passed by the first appellate court. Having given its careful consideration, this Court is of considered view that the judgment of the lower appellate court seems to be perverse in nature and the lower appellate Judge has miserably failed to appreciate the evidences both oral and documentary in proper perspective, which resulted in reversing the judgment of the trial court, wrongly. 49. In the result, the second appeal is allowed and the judgment and decree of the lower appellate court is set aside. The judgment and decree of the trial court is restored. However, there will be no order as to costs. Connected C.M.Ps. are closed.