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2015 DIGILAW 2742 (MAD)

M. P. Natesan v. Palanisamy

2015-08-10

P.R.SHIVAKUMAR

body2015
JUDGMENT The defendants in the original suit are the appellants in the second appeal. The plaintiff in the original suit is the respondent in the second appeal. For the sake of convenience, the parties are referred to in accordance with their rankings in the suit. 2. The plaintiff filed the suit, O.S.No.613 of 1999 on the file of the learned Principal District Munsif, Namakkal for a bare injunction in respect of the suit property, which was a poramboke land assigned to him under a D-card by the State Government in recognition of his services in the Army. Contending that the defendants wanted the plaintiff to sell the suit property for a paltry sum which was not conceded by the plaintiff, he filed the above suit for permanent injunction against them not to cause disturbance to the peaceful possession and enjoyment of the plaintiff in respect of the suit property. 3. The defendants did not claim any derivative title. On the other hand, they contended that the suit property, being a poramboke land, was lying vacant and they occupied the property. It was their further contention that since Rajammal and Lakshmi were in possession of the suit property, the Revenue Divisional Officer chose to pass an order on 17.10.1988 cancelling the assignment made in favour of the plaintiff holding that he had violated the conditions of assignment; that thereafter the above said persons Rajammal and Lakshmi also left the property, as their claim for issue of patta was rejected, and that thereafter the defendants took possession of the suit property and were in possession and enjoyment of the same till the filing of the suit. In short, the contention of the defendants is two fold. Firstly, the plaintiff lost his right by virtue of the order dated 17.10.1988 cancelling the assignment made in his favour and though the said order came to be set aside in an appeal by the District Revenue Officer (Additional Collector), the same was made on a technical ground holding that the Revenue Divisional Officer did not have jurisdiction and the Additional Collector did not direct the issuance of fresh patta to the plaintiff. Secondly, as on the date of filing of the suit, the plaintiff was not in possession and enjoyment of the property, hence the suit filed by the plaintiff for bare injunction as if he was in possession and enjoyment of the suit property on the date of plaint was liable to be dismissed. 4. The learned trial Judge, after framing necessary issues, conducted a trial in which the plaintiff alone figured as the sole witness (P.W.1) on his side and produced eight documents as Exhibits A-1 to A-8. On the side of the defendants, three witnesses were examined as D.Ws.1 to 3 and twelve documents were marked as Exhibits B-1 to B-12. The report and plan submitted by the Commissioner appointed by the trial Court were marked as Exhibits C-1 and C-2. At the conclusion of trial, the learned trial Judge, on an appreciation of evidence, rendered a finding that the plaintiff was able to substantiate his case that he was in possession and enjoyment of the suit property as on the date of plaint and that the defendants were trying to interfere with his possession and enjoyment. Further holding that the defendants were not having a better title than the plaintiff, the learned trial Judge decreed the suit as prayed for and granted the decree for perpetual injunction by its judgment and decree dated 13.11.2000. 5. Aggrieved by the same, the defendants preferred an appeal on the file of the learned Subordinate Judge, Namakkal in A.S.No.207 of 2000. The learned lower appellate Judge, after hearing the appeal, concurred with the findings of the trial Court and dismissed the appeal by its judgment and decree dated 23.9.2004. It is as against the said decree of the lower appellate Court, the present second appeal came to be filed by the defendants. 6. The second appeal was admitted on 28.10.2009 formulating the following questions to be the substantial questions of law that have arisen for consideration in the second appeal:- “ (1) Whether the Courts below erred in law by giving findings, ignoring the material evidence adduced on the side of the appellants? (2) Whether the Courts below erred in law in relying upon the evidence of the respondent/plaintiff without pleadings in the plaint? (3) Whether the Courts below erred in law in relying upon the revenue records which are not admissible in law as documents of title of the respondent/plaintiff?” 7. (2) Whether the Courts below erred in law in relying upon the evidence of the respondent/plaintiff without pleadings in the plaint? (3) Whether the Courts below erred in law in relying upon the revenue records which are not admissible in law as documents of title of the respondent/plaintiff?” 7. The arguments advanced by Mr.M.V.Karunakaran, learned counsel for the appellants and by Mr.Sundaravadanam, learned counsel for the respondent are heard. The judgments of the Courts below and the other material records sent for from the Courts below are also perused and taken into consideration. 8. Though three questions have been formulated as the substantial questions of law involved in the second appeal, all the three questions can be consolidated in a single question viz., “whether the findings of the Courts below are perverse?” The case of the plaintiff is simple. In recognition of his services in the Army, the suit property was assigned to him by the Government and pursuant to the assignment, patta was issued in his name under Exhibit A-1. He made clear averments to the effect that right from the date of assignment, he was in possession and enjoyment of the suit land and was cultivating the same by raising punja crops. It is the further contention of the plaintiff that since the defendants, who wanted him to sell the suit property for a meagre price, are trying to grab the property by hook or by crook, he was forced to file the suit for a bare injunction to protect his possession from the defendants who were trying to encroach upon and dispossess him. On the other hand, the case of the defendants is not so clear in comparison with the case of the plaintiff. It is not the case of the defendants that right from the beginning, the defendants occupied the property and during their occupation, the property came to be assigned in favour of the plaintiff by the Government. If at all such an assignment was made in de-recognition of their established possession, they could have very well challenged the very assignment itself. The fact that the defendants did not challenge the assignment made in favour of the plaintiff in 1979 itself will show that the defendants were not in possession and enjoyment of the property at the time of the assignment made by the Government in favour of the plaintiff. The fact that the defendants did not challenge the assignment made in favour of the plaintiff in 1979 itself will show that the defendants were not in possession and enjoyment of the property at the time of the assignment made by the Government in favour of the plaintiff. There is also a clear admission in this regard made by the defendants in their written statement, wherein they have stated that subsequent to the assignment, the property was found to be in the possession of Rajammal and Lakshmi; that on their representation to the revenue authorities for grant of patta, the Revenue Divisional Officer initiated suo motu proceedings and passed an order of cancellation of assignment of patta issued in favour of the plaintiff; that thereafter the occupants, namely, Rajammal and Lakshmi also vacated the property, since their efforts to get patta proved to be futile and that only after they vacated the suit property, the defendants entered into the suit property and took possession of the same. However, from which date, month or year the defendants took possession of the suit property has not been clearly spelt out in the written statement. In the evidence also, this position has not been clarified. 9. On the other hand, as against the clear and categorical assertion made in the plaint and the reiteration of the same by the plaintiff as P.W.1, which is also supported by the documents produced by him, namely, patta, kist receipt, adangal etc., the defendants were not able to produce even a single document to show that they were in possession and they were assessed for land revenue. Instead, they have produced the copies of representations made to the revenue authorities seeking issuance of patta in their names. In fact, the defendants very much rely on the order of the Revenue Divisional Officer dated 17.10.1988 cancelling the assignment made in favour of the plaintiff. But a copy of the said order has not been produced either by the plaintiff or by the defendants. The defendants who rely on the said order have not produced a copy of the same, perhaps for the reason that the said order came to be set aside by the Additional Collector in an appeal by his order dated 21.12.92. A copy of the same has been produced as Exhibit A-6. The defendants who rely on the said order have not produced a copy of the same, perhaps for the reason that the said order came to be set aside by the Additional Collector in an appeal by his order dated 21.12.92. A copy of the same has been produced as Exhibit A-6. Contending that the said order of the Additional Collector did not bring the matter to an end and further proceedings by the Additional Collector were contemplated and that still, without there being any directive by the Additional Collector or by the Revenue Divisional Officer, the Tahsildar chose to issue a fresh patta in the name of the plaintiff and that hence no importance or credence can be given to such a patta and the order of the Tahsildar dated 31.1.98 directing the grant of patta marked as Exhibit A-7. 10. Learned counsel for the appellants/defendants contends that the suit property, after the order of the Revenue Divisional Officer, got converted into a poramboke land and hence thereafter the respondent/plaintiff could not contend that the assignment made in his favour and the patta issued to him would hold good. The said contention of the learned counsel for the appellants/defendants cannot be countenanced for the simple reason that once the order of the Revenue Divisional Officer cancelling the assignment is set aside, the original order of assignment and the grant of patta based on the assignment get revived and that there was nothing wrong in the proceedings of the Tahsildar dated 31.1.98, a copy of which has been marked as Exhibit A-7, granting fresh patta based on the order of the Additional District Collector, by which the order of the Revenue Divisional Officer cancelling the assignment was set aside. Of course, the order of the Additional Collector directed the Revenue Divisional Officer to place a report before the Additional Collector for deciding the further course of action to be taken. That does not mean that the original assignment stood cancelled and would be of no effect till an order would be passed by the Additional Collector after considering the report of the Revenue Divisional Officer as called for by him. That does not mean that the original assignment stood cancelled and would be of no effect till an order would be passed by the Additional Collector after considering the report of the Revenue Divisional Officer as called for by him. So long as the assignment remains uncancelled, the mere pendency of the proceedings to take a decision as to whether to cancel the assignment or not cannot be cited as a ground for depriving the plaintiff of his right under the assignment to have the property in his possession and enjoyment. What the defendants in this case seem to have done is to take steps through Rajammal and Lakshmi to have the assignment patta issued in the name of the plaintiff cancelled by claiming that the suit property was in their possession and enjoyment and the assignee, namely, the plaintiff never took possession and was never in enjoyment of the same. As the attempt made by them proved to be a failure, the said Rajammal and Lakshmi disappeared from the picture as could be ascertained from the averments made in the written statement itself. Thereafter only, the defendants have chosen to make attempts to prevent the plaintiff from enjoying the suit property. The various steps taken by the defendants including lodging of a number of criminal complaints against the plaintiff, will show that they were inclined to grab the property by hook or by crook by pressurizing the plaintiff to leave the property in the hands of the defendants and get whatever amount they would be prepared to pay him. In such an attempt alone, the defendants have chosen to contend that originally the suit property was a barren land capable of raising only manavari crops and that after their occupation, they dug a well and they were cultivating nanja crops after converting the land into a dry garden land. 11. From Exhibit A-8, it is obvious that the defendants have initiated criminal proceedings by lodging a complaint as if the plaintiff had stolen the oil motor pump set fitted in the well dug in the suit property. In an attempt to show that the oil motor pump set belonged to the defendants, they also chose to produce Exhibit B-8, a receipt and two bills to prove their case that they purchased it from one Madheswaran. In an attempt to show that the oil motor pump set belonged to the defendants, they also chose to produce Exhibit B-8, a receipt and two bills to prove their case that they purchased it from one Madheswaran. Though Exhibits B-9 to B-11 were produced, they are not proved to be relating to the suit property. In addition to such a complaint of theft, there is also an admission made by D.W.1 that a complaint under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act came to be preferred against the plaintiff. 12. Of course, the plaintiff failed to show the existence of a well in the suit property in the description of property annexed to the plaint. There is also absence of averment in the plaint to the effect that he dug a well and with the water lifted from the well, he is cultivating the lands. On the other hand, the defendants have taken a plea that it were they who dug the well and were cultivating the land using the water lifted from the well. Their contention raised in the written statement is to the effect that they dug the well in the year 1997. Though there is an averment in the written statement that they fitted the oil engine pump set, they did not make a clear averment as to when such a pump set was fitted. In a single sentence they stated that the well was dug in 1997 and the oil engine pump set was fitted in it. However, during trial, they had chosen to produce Exhibit B-8 as the receipt showing the purchase of the oil motor pump set on 10.9.98. It is the clear evidence of the plaintiff as P.W.1 that he himself dug the well in 1998. The sequence of events, as can be culled out from the oral and documentary evidence, will lead to the only conclusion that the defendants, who made an attempt to get the assignment patta issued in the name of the plaintiff cancelled by projecting Rajammal and Lakshmi as the persons cultivating the land, on their failure, used other methods to prevent the plaintiff from enjoying the suit property which forced the plaintiff to file the suit for injunction. The fact that the well was dug within a year prior to the filing of the suit had been taken advantage of by the defendants to contend that the well was dug by them and the oil engine motor pump set came to be fitted by them and that the same was also stolen by the plaintiff. So far as the proof of the alleged possession of the defendants is concerned, apart from the absence of documentary evidence like 'B' memo, kist receipt, adangal etc., the oral evidence is also not consistent. 13. D.W.1 made a clear admission that after the grant of interim order by the trial Court, the property was in the possession and enjoyment of the plaintiff. There are also clinching admissions made by him during cross examination. Those parts containing the admissions are reproduced for better appreciation:- The above extracted portion will make it quite clear that there is a shed in the suit property and the mother of the plaintiff was residing in the suit property. At the helm of affairs, it is quite shocking to come across the evidence of D.W.1 that the property was not assigned to the plaintiff for his services in the Army. The relevant portion reads as follows:- In order to support the evidence of D.W.1, one Selvaraj was examined as D.W.2. During cross examination, D.W.2 made the following admissions:- There is also an admission made by D.W.2 that in the criminal complaint given by the defendants, he figured as a witness against the plaintiff. It is also his admission that in another criminal complaint given by Perumal, the father of the defendants, he figured as a witness. The D.W.2 would have stated that the defendants and one Rajeswari were cultivating the suit land, he has made an admission that all of them (including D.W.2) belong to the same community. Yet another person, namely, K.Rangasamy, the V.A.O., of the village was examined as D.W.3 in order to substantiate the case of the defendants that they are in possession. It is pertinent to note that D.W.3 came to the village as Village Administrative Officer only on 9.10.98. However, he ventured to state that the well found in the suit property was dug by the first defendant. According to the defendants, the well was dug in the year 1997. D.W.3 came to the village as Village Administrative Officer only in October, 1998. However, he ventured to state that the well found in the suit property was dug by the first defendant. According to the defendants, the well was dug in the year 1997. D.W.3 came to the village as Village Administrative Officer only in October, 1998. However, he did have the audacity to say that he was aware of the digging of the well by Natesan in the suit property. During cross examination, he made a clear admission that prior to his assumption of office as V.A.O., in the village on 9.10.98, he did not know who was in possession of the suit property and that chitta and adangal in respect of the suit property had been in the name of the plaintiff alone. The further admission made by him is to the effect that he could not state the exact date from which Natesan was in enjoyment of the suit property. 14. Evaluating the above said evidence, the learned trial Judge came to the conclusion that the plaintiff was able to prove his possession and enjoyment of the suit property by preponderance of probabilities, whereas the defendants failed in their attempt to prove their contention that the suit property was in their possession. On appeal, the lower appellate Court, on re-appreciation of evidence, concurred with the said findings of the learned trial Judge. The question of possession being a question of fact, the concurrent findings of the Courts below cannot be interfered with by the High Court, unless such findings are proved to be perverse. Only in order to show that the findings of the Courts below, in this regard, cannot be termed perverse, the evidence adduced in this case has been discussed and the material parts have been culled out and highlighted. It cannot be said that the findings are based on no evidence or based on inadmissible evidence. It also cannot be said that no person of prudence can arrive at a similar conclusion based on the evidence available. Only if the case falls in any one of the three categories stated above, the findings could be said to be perverse. By no stretch of imagination the findings of the trial Court, which were confirmed by the lower appellate Court, can be termed perverse warranting interference by this Court in the second appeal. Only if the case falls in any one of the three categories stated above, the findings could be said to be perverse. By no stretch of imagination the findings of the trial Court, which were confirmed by the lower appellate Court, can be termed perverse warranting interference by this Court in the second appeal. Hence the consolidated question pointed out above incorporating all the substantial questions of law formulated at the time of admission of the second appeal, is answered accordingly against the appellants/defendants and in favour of the respondent/plaintiff. There is no merit in the second appeal and the same deserves to be dismissed. 15. In the result, the second appeal is dismissed with costs.