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2018 DIGILAW 1518 (MAD)

Chokkampatti Panchayat v. Maruthanayagam

2018-04-24

S.S.SUNDAR

body2018
JUDGMENT : S.S. SUNDAR, J. 1. The defendants 1, 2, 4 in the suit in O.S. No. 190 of 2002 on the file of the Principal District Munsif Court, Tenkasi, are the appellants in this appeal. 2. The respondents 1 and 2 in this appeal filed a suit in O.S. No. 190 of 2002 on the file of the Principal District Munsif Court, Tenkasi, for declaration of title and consequential relief of recovery of possession and also to direct the defendants to remove the unlawful constructions put up by them in the suit property. The suit property is an extent of 9075 sq. ft. in Survey No. 748/5 in Chokkampatti Village within the jurisdiction of Kadayanallur Sub Registrar, Tirunelveli District. 2.1 The case of the plaintiff in the suit is that the suit property originally belonged to one Valangapulithevar, Kotturathevar and Samy Ayya Thevar and that they sold the property to the mother of plaintiffs one Vellaiyathal by a sale deed dated 01.01.1941 and that the said Vellaiyathal died about 20 years back leaving behind the plaintiffs as her legal representatives. 3. It is further stated in the plaint that though the plaintiffs are living away from the suit village, they are in enjoyment of the property through one Veliamba Thevar by tethering cattle, dumping waste and by keeping haystack. It is also the case of the plaintiffs that defendants 1 and 2 made an attempt to construct a public toilet through the third defendant and that the plaintiffs prevented them from doing so and gave a police complaint. However, it is admitted that the police did not take action as the suit property has been classified as a Government poramboke land. It is also the case of the plaintiffs that the suit property originally belonged to Chokkampatti Jamin and that during survey, the suit property was wrongly classified as poramboke and that the said classification is not binding on the plaintiffs. It is also alleged in the plaint that the defendants 1 to 3 put up construction with the assistance of police and that therefore, the constructions are illegal. Since the defendants have indulged in encroachment, it is stated in the plaint that the plaintiffs were constrained to file the suit. 4. The first defendant in the suit is the Chokkampatti Panchayat through its President. Since the defendants have indulged in encroachment, it is stated in the plaint that the plaintiffs were constrained to file the suit. 4. The first defendant in the suit is the Chokkampatti Panchayat through its President. The second defendant is the Kadayanallur Panchayat Union through its Commissioner and the third defendant is the Contractor who was awarded the contract for construction of public toilet by the first defendant. The fourth defendant is the State represented by the District Collector, Tirunelveli. The suit was contested mainly by the local body namely the Chokkampatti panchayat. The case of the plaintiff in the plaint was totally denied by the first defendant in the written statement. It is the specific case of the first defendant that the suit property is a Government poramboke and classified as in the year 1960 and hence, vested with the first defendant, pursuant to the settlement proceedings long back. It is also stated by the first defendant that the classification of the land as per the Settlement Register exists for a long period and that on ground, the suit property exists only as a cart track poramboke (public thoroughfare). It is the case of the first defendant that the panchayat union in their meeting decided to allot a sum of Rs. 2,00,000/- for the purpose of constructing a sanitary complex for women in the suit property. It is the further case of the first defendant that a tender was invited and contract was awarded to the third defendant in the suit to put up sanitary complex for women for the benefit and use of women in the village. Since the women in Chokkampatti Village were suffering a lot and were using lands located either side of National Highways as the place for toilet, the first defendant executed the work by constructing the sanitary complex as planned. Since the complex was constructed for the benefit of public, the present suit has been filed by the plaintiffs with ulterior motive. It is also the definite case of the first defendant that the plaintiffs were never in enjoyment of the suit property. 5. The first plaintiff examined himself as P.W. 1 and examined one Valangaiya Pandian. The plaintiffs also marked Ex. A1 to A4. Ex. A4 is the sale deed executed by one Valangapuli Thevar in favour of plaintiffs' mother on 01.01.1941. 5. The first plaintiff examined himself as P.W. 1 and examined one Valangaiya Pandian. The plaintiffs also marked Ex. A1 to A4. Ex. A4 is the sale deed executed by one Valangapuli Thevar in favour of plaintiffs' mother on 01.01.1941. The defendant examined D.W. 1 and D.W. 2 and marked Ex. B1 to B6. The Commissioner's report and plan were marked as Ex. C1 and C2. 6. The trial Court after framing necessary issues found that the document Ex. A1 relied upon by the plaintiff is not proved to be in relation to the suit property which is located in Survey No. 748/5. It is admitted that the plaintiffs have not produced any correlation register to prove that the document marked as Ex. A1 is in relation to the suit property. The trial Court further found that the plaintiffs have not proved that the suit property is a patta land. Since the suit property is located in Survey No. 748/5 and the said land has been classified in all the settlement records and the Government records as a for a long time and the plaintiffs never raised any objection or took steps to change the classification, the trial Court disbelieved the case of the plaintiffs. 7. After recording the fact that the suit property has been classified as a from 1969 and that the suit property is in existence as a cart track poramboke belonged to Government for a long period, the trial Court further observed that the plaintiffs are not entitled to claim any right under Ex. A1. It is also found, as a matter of fact, that in the field map, the suit property has been detailed as a cart track poramboke. Since the plaintiffs have not proved that they were in possession and the document produced by the plaintiffs would not show enjoyment by any individual, the trial Court also found that the plaintiffs have not proved their case and dismissed the suit in entirety. Aggrieved by the findings of the trial Court, the plaintiffs preferred appeal in A.S. No. 71 of 2006 on the file of the Principal Sub Court, Tenkasi. 8. The lower appellate Court though admitted that the suit property has not been correlated with the suit property rendered a finding that the plaintiff has proved the fact that the property purchased under Ex. 8. The lower appellate Court though admitted that the suit property has not been correlated with the suit property rendered a finding that the plaintiff has proved the fact that the property purchased under Ex. A1 is the suit property by relying upon the boundary description found in the document Ex. A1 and the Commissioner's report. As a matter of fact, the trial Court proceeded as if there is no dispute with regard to the fact that the property purchased under Ex. A1 is the suit property. 9. The lower appellate Court has held that the revenue documents are maintained only for the purpose of collection of revenue and that the revenue records cannot be relied upon to decide the title of individuals. Further, the lower appellate Court observed that when the plaintiffs have filed the document Ex. A1, the defendants have not filed any other document of title which is earlier to the document Ex. A1. Since the Government is not the owner of property, the property cannot be transferred in favour of the first defendant to confer any right in immovable property. After referring to the position that a person cannot deal with anything more than the right he is entitled to, the lower appellate Court further found that the title to the property cannot be claimed by the defendants through the Government. 10. Sum and substance, the lower appellate court was of the view that the defendants who have not produced any document which are prior to 1941 when the property was stated to have been purchased by the plaintiffs' mother, it was held that the Government cannot claim any right merely on the basis of subsequent revenue records. Strangely the trial Court also presumed possession in favour of the plaintiffs by applying the principle that possession follows title. As a result, the judgment of the trial Court was reversed and the appeal was allowed by the lower appellate Court. Aggrieved by the judgment and decree in A.S. No. 71 of 2006 on the file of the Principal Sub Court, Tenkasi, the defendants 1, 2 and 4 have preferred the above Second Appeal. 11. The appellants have framed the following substantial questions of law in the memorandum of grounds: (a) Whether the Court below is legally correct in deciding on Tamil Nadu Survey and Boundary Act? 11. The appellants have framed the following substantial questions of law in the memorandum of grounds: (a) Whether the Court below is legally correct in deciding on Tamil Nadu Survey and Boundary Act? (b) Whether the Court below is legally correct in shifting the burden of proof on the defendant while plaintiff fails to prove his case. (c) Whether the Court below is legally correct in appreciating the sale deed which has no survey number when suit schedule hold a survey number? (d) Whether the Court below is legally correct in deciding upon failure of Plaintiff to produce Correlation Statement? (e) Whether Court below is legally correct in deciding upon the claim of adverse possession? (f) Whether the Court below is legally correct on deciding upon on the issue of poramboke (Cart Track Poramboke)?" 12. However, this Court while admitting the Second Appeal framed the following substantial questions of law: "(a) Whether the Court below is legally correct in deciding on Tamil Nadu Survey and Boundary Act? (b) Whether the Court below is legally correct in deciding upon failure of Plaintiff to produce Correlation Statement? (c) Whether Court below is legally correct in deciding upon the claim of adverse possession? (d) Whether the Court below is legally correct on deciding upon on the issue of poramboke (Cart Track Poramboke)?" 13. The learned counsel appearing for the appellants submitted that the plaintiffs who claim title under Ex. A1 admit that he is not in physical possession and that revenue records in respect of the suit property disclose that the land has been classified as a cart track poramboke at least from the year 1969. When the plaintiffs admit that the suit property is a Jamin land, they cannot dispute the fact that the land vests with Government free from encumbrances under the provisions of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act (26 of 1948) and that the land which was being used and enjoyed as a communal land or public property cannot be treated as a patta land. The learned counsel for the appellant pointed out that the document Ex. A1 is not in respect of the suit property and the plaintiffs failed to establish that the document Ex. A1 is pertaining to the suit property in Survey No. 748/5. After referring to the document Ex. The learned counsel for the appellant pointed out that the document Ex. A1 is not in respect of the suit property and the plaintiffs failed to establish that the document Ex. A1 is pertaining to the suit property in Survey No. 748/5. After referring to the document Ex. B1, B2, B3 and B4, the learned counsel appearing for the appellants pointed out that the suit property has been classified as a cart track poramboke and vested in Panchayat. It was submitted that the suit property was used as a public cart track and that it was later classified as a Government cart track poramboke during settlement. Since the classification of the property from 1960 is admitted it is contended that the plaintiffs who have accepted the classification during settlement and the enjoyment of the property as a cart track poramboke for all these years cannot get their title declared merely on the basis of a document of sale deed of the year 1941 which is not proved to be in respect of the suit property. 14. As against the submissions of the learned counsel appearing for the appellants, the learned counsel appearing for the respondents submitted detailed written arguments advancing the following points: (a) The plaintiffs' mother purchased the suit property under a registered sale deed dated 01.01.1941 from the original pattadars. On the death of plaintiffs' mother, the plaintiffs inherited the suit property and enjoyed the suit property as Manure pit and to stock straw. In 2002, the first defendant attempted to construct the toilet and pending suit constructed the toilet. The panchayat who claim right on the basis of assignment from Government has not produced any record. (b) Revenue record can neither create title nor extinguish any right. Since revenue records are prepared only for the purpose of collection of revenue, it will not confer any title. Since it is accepted that patta is not evidence of title, the case of the appellants relying upon only the classification of the land in the revenue records, cannot be accepted. (c) Properties were identified only by the boundaries in olden days and therefore, though the property purchased under Ex. Since it is accepted that patta is not evidence of title, the case of the appellants relying upon only the classification of the land in the revenue records, cannot be accepted. (c) Properties were identified only by the boundaries in olden days and therefore, though the property purchased under Ex. A1 in the year 1941 do not refer to the suit survey number, the boundary description found in the document with reference to three sides at least is confirmed by the Advocate Commissioner and that there is no dispute about the identification of the property in the document Ex. A1 as the suit property. Ex. A1 is a 61 years old document and a registered document has got a legal sanctity to convey title and under the evidence Act, a 30 years old document should be presumed to be correct unless the contrary is proved. (d) The panchayat claimed title to the suit property on the basis of assignment in their favour. The first defendant has not produced any material to prove assignment and that therefore, the contention of the panchayat claiming right to the suit property has no legal basis. (e) In India, Government is not the owner of any property and that Government may have right under revenue settlement to collect tax from the occupier. It is further submitted that poramboke is a Tamil word meaning outside the revenue records. Since poramboke lands would only mean unassessed land and there are several types of poramboke lands, merely because the land was wrongly classified as road poramboke and the width of the road is only 10 ft. it cannot be concluded that the whole property vests with panchayat. (f) The Commissioner has found that there are trees in the suit property. When it is not the case of the Panchayat that the Panchayat developed the trees, the lower appellate Court has rightly held that the property is in the enjoyment of the plaintiffs by applying the principle possession follows title as it is admitted that property is a vacant land till it was encroached by the first defendant. (g) The land classified as a cannot have a sudden drop of land at one point only. 15. (g) The land classified as a cannot have a sudden drop of land at one point only. 15. The learned counsel appearing for the respondents relied upon the judgment of the Hon'ble Supreme Court in the case of State of Himachal Pradesh v. Keshav Ram and others reported in AIR 1997 SC 2181 wherein the Hon'ble Supreme Court has held as follows: "4.....The question, therefore, arises as to whether the entry in the settlement papers recording somebody's name could create or extinguish title in favour of the person concerned? It is to be seen that the disputed land originally stood recorded in the name of Raja Sahib of Keonthal and thereafter the State was recorded to be the owner of the land in the record of right prepared in the year 1549-0. In the absence of the very order of the Assistant Settlement Officer directing necessary correction to be made in favour of the plaintiffs, it is not possible to visualize on what basis the aforesaid direction had been made. But at any rate such an entry in the Revenues papers by no stretch of imagination can form the basis for declaration of title in favour the plaintiffs. To our query as to whether there is any other document on the basis of which the plaintiffs can claim title over The disputed land, the learned counsel for the plaintiffs - respondents could not point out any other document apart from the alleged correction made in the register pursuant to the order of the Assistant Settlement Officer. In our considered opinion, the courts below committed serious error of law in declaring plaintiffs' title on the basis of the aforesaid order of correction and the consequential entry in the Revenue papers. In the circumstances the appeal is allowed and the judgment and decree passed in all the there forums are set aside. The plaintiffs' suit stand dismissed. There will be no order as to costs." 16. The Hon'ble Supreme Court in the said judgment has not referred to any particular statute under which the settlement register are prepared in the State of Andhra Pradesh. However, in the case on hand, it is not in dispute that the Village was taken over by the Government under Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act (26 of 1948). However, in the case on hand, it is not in dispute that the Village was taken over by the Government under Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act (26 of 1948). During settlement it is not in dispute that the land was classified as a cart track poramboke. This presupposes that the land was enjoyed as a communal land. The legislation was intended to abolish the rights of intermediaries and to grant ryotwari patta in favour of the ryots and others who are in the enjoyment of the lands by cultivation. It is settled law that the ryotwari patta granted under the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act (26 of 1948) is in recognition of a pre-existing right of ryots. The plaintiffs are entitled to claim right of ownership only if they are able to show that they are entitled to get ryotwari patta by virtue of their long possession and enjoyment of the land as a ryot or by establishing their right to get patta under the Act. In this case, admittedly, the plaintiffs or their mother was not given any patta during settlement in recognition of their pre-existing right. Hence, the question whether the plaintiffs were in possession of the property cannot be presumed in the absence of any document. 17. Introduction of Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act (26 of 1948) is not only for the purpose of abolition of intermediaries but also to confer rights or ownership to the ryots. The fact that the plaintiffs were not given ryotwari patta, during settlement, would show that the plaintiffs or their predecessor-in-interest were not recognised as ryots for the purpose of giving them ryotwari patta under the Act. It is true that the the order granting or refusing to grant ryotwari patta is not final and the Civil Court can always entertain a suit to decide as to whether a person is entitled to claim title or not. In this case, except the sale deed under Ex. A1, the plaintiffs have not produced any document to prove their possession so as to conclude that they are in possession of the property. If the plaintiffs claim title under Ex. In this case, except the sale deed under Ex. A1, the plaintiffs have not produced any document to prove their possession so as to conclude that they are in possession of the property. If the plaintiffs claim title under Ex. A1 and prove continuous possession by independent evidence, it is true that the Civil Court can independently decide irrespective of the fact that ryotwari patta was not granted to the plaintiffs under the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act (26 of 1948). 18. Learned counsel for the respondents then relied upon a judgment of this Court in the case of The Government of Tamil Nadu by its Collector of Ramanathapuram at Madurai and others v. Peria Pallivasal Abbiramam by its Trustees and another reported in 2000-1-L.W. 154 for the proposition that mere classification in the revenue records are not conclusive evidence. However, in the same judgment, the effect of Section 3(b) and 3(c) of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act (26 of 1948) has been considered in paragraph 17, 20 to 22 and 26 of the judgment wherein it has been held as follows: "17. It is pertinent to note that it is not the case of the pallivasal that they are the owners of the Oorani by having established the same or having acquired any proprietary right. On the other hand in the plaint itself it is clearly admitted that Ramnad Zamindari was the owner of the entire village. This is followed by a vague and uncertain pleading that the Oorani and the other adjuncts must have been granted to the Pallivasal and that therefore, applying the principles of "lost grant", the Pallivasal had become the sole owner of the Oorani. Such a self serving claim completely overlooks the effect of the takeover of Zamindari under the Act. Section 3(b) of the Act clearly states that the entire estate including even private banks and Oorani and irrigation works, fisheries, ferries shall be transferred to the Government and vested with the Government free of all encumbrance. Section 3(c) further elucidates that all the rights and interest created in or over the estate before the notified date by the principal or any other land holder "shall cease and determine as against the Government". Section 3(c) further elucidates that all the rights and interest created in or over the estate before the notified date by the principal or any other land holder "shall cease and determine as against the Government". Therefore, even on the face of the pleading in the plaint which are themselves based on assumptions and presumptions, whatever the terms under which the Zamindari had permitted the Pallivasal to use the Oorani, the said rights were extinguished and vested with the Government with effect from the notified date namely, 7.9.1949. Therefore, it is futile to invoke the principle of lost grant and to claim that the Pallivasal had become the owner of the Oorani. ................ 20. Therefore, the mere circumstance of the Abiramam Panchayat passing the resolution No. 45 dated 29.11.1973 cannot be a justification for the pallivasal to assert title to the property or to challenge the classification of the oorani as oorani poramboke, totally ignoring all the aforesaid facts and circumstances and the legal limitations. It is true that as the question of title was raised before Rajam J. in W.P. No. 6583 and 6584 of 1973 the learned Judge held that the pallivasal may move the Civil Court to agitate the question of title. I have also indicated earlier that it is always open to the party to challenge the correctness of the classification of the land in the Revenue records. But it is for the plaintiff to plead and prove the title and in this case for the aforesaid reasons 1 hold that the pallivasal's declaratory prayer that it is entitled to the Oorani cannot be sustained. 21. The next question that arises for consideration is that if the pallivasal is not entitled for declaration as prayed for and that the classification of the oorani has to remain as oorani poramboke, what are those rights and user to which the pallivasal would be entitled to. Here again, the rights of the pallivasal have to be determined from two different aspects namely, (i) the right of the pallivasal vis-à-vis the Government and the panchayat and (2) the rights of the pallivasal vis-à-vis. the general public regarding the user of the oorani, by the non-muslim population in the village. Here again, the rights of the pallivasal have to be determined from two different aspects namely, (i) the right of the pallivasal vis-à-vis the Government and the panchayat and (2) the rights of the pallivasal vis-à-vis. the general public regarding the user of the oorani, by the non-muslim population in the village. It may be immediately stated that the scope of the present suit is restricted only to the issue of the rights of the pallivasal as against the Government and the panchayat only and does not deal with the second issue. The last two sentences of the order of the Board of Revenue dated 4.7.1964 already quoted, may be re-quoted. "It will be sufficient if the registry as poramboke is subject to the rights such as have been exercised in the past in respect of management and user. Any dispute in regard to this between the pallivasal authorities and others will naturally be resolved by Civil Courts." While the first sentence deals with the claims against the Government, the second sentence deals with the pallivasal's dispute with the others. But even though the Board of Revenue left the second issue open to be decided by the Civil courts, the pallivasal for reasons best known to themselves, had neither put forth a specific prayer in that context, nor had impleaded the objectors or the villagers as parties to the suit either by impleading them individually or by invoking order i, rule 8 C.P.C. Rightly, no issue was also framed to the said effect. It is therefore, made clear that the scope of the present suit does not relate to the inter se dispute between the pallivasal and the villagers and it is up to the pallivasal to pursue its remedies in accordance with law so far as their claims against the villagers are concerned. 22. It remains to be seen as to what are the pre-existing rights of the pallivasal vis-à-vis the Government and the panchayat. I have already held that the property had been effectively taken over under the provisions of the Act 26 of 1948 and had consequently vested with the Government free of all encumbrances. Therefore, the existence of the rights of the pallivasal has to be examined only within the four corners of the provisions of the Act. I have already held that the property had been effectively taken over under the provisions of the Act 26 of 1948 and had consequently vested with the Government free of all encumbrances. Therefore, the existence of the rights of the pallivasal has to be examined only within the four corners of the provisions of the Act. Such rights cannot exceed the rights which are conferred on the land holder or the occupier under the provisions of the Act, notwithstanding the take-over of the estate, and the vesting of the estate with the Government free of all encumbrances. The pallivasal was fully aware of their rights consequent on the takeover of the estate and that is the reason why pallivasal itself had approached the Government on various occasions as pointed out earlier. While disposing of the pallivasal's application under Section 18(4) of the Act the Board by its order dated 4.7.1964 confirmed the classification. This order was confirmed by a Division Bench of this court on the appeal filed by the pallivasal and as such the said order dated 4.7.1964 shall be the basis for the determination of pallivasal's rights. In the subsequent petition filed by the pallivasal under Section 20 claiming fishery rights also, the Government affirmed its earlier view. In other words, what are those pre-existing rights were left to be decided by the Civil Court." 19. This judgment is therefore more in favour of the defendant than in favour of the plaintiffs. The learned counsel then relied upon a judgment of this Court in the case of Kammavar Sangam v. Mani Janagarajan reported in 1999-3-L.W. 727 : 1999 (III) CTC 304 wherein this Court has held that patta alone cannot establish title as patta cannot convey or extinguish right over the property. In that case, the plaintiff has not placed any document to prove the antecedent title of his grand-father. Except producing patta no other document was filed to prove plaintiff's possession or the enjoyment. It is in that context, this Court has held that a person cannot claim title merely on the basis of the patta without proving the antecedent title of the plaintiffs' predecessor-in-title. Except producing patta no other document was filed to prove plaintiff's possession or the enjoyment. It is in that context, this Court has held that a person cannot claim title merely on the basis of the patta without proving the antecedent title of the plaintiffs' predecessor-in-title. The learned counsel for the respondents relied upon a judgment of this Court in the case of Lingappa Gounder v. Palanisamy Gounder and others reported in (2006) 1 MLJ 423 for the proposition that no order passed without issuance of notice regarding survey will not bind the party on whom such notice was not served. This judgment is by referring to the provisions of Tamil Nadu Survey and Boundaries Act which has no application to the present case. Again the learned counsel appearing for the appellants relied upon another judgment of this Court reported in 1999 (3) CTC 650 and 2017 (2) LW 253 for the proposition that the land classified as a poramboke land would never belong to Government and that by such classification, it would only mean that there is no revenue assessment in respect of this land. Unfortunately, the learned counsel appearing for the respondents has not understood the scope and object of the enactments by which the rights of the intermediaries were abolished and how the ryots were given patta in recognition of their pre-existing right under the provisions of Tamil Nadu Act 26 of 1948. Ryoti land has been defined under the Tamil Nadu Estates Land Act, 1908 as cultivable land in an estate other than private lands excluding lands which are meant and set apart for the common use of the villagers. Under Section 3 of Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948, all permanently settled estate including all communal lands, porambokes, other non-ryoti lands vest with Government free from encumbrances. Only the rights of ryots in respect of ryotwari lands (cultivable lands) is protected so as to enable them to get ryotwari patta under the Act. Since possession of ryots in respect of ryotwari lands is protected it has been held by Courts that vesting of title in Government is subject to the pre-existing rights of ryots or landholders to get patta under the Act. The lands used for communal purpose or waste and uncultivable lands vest with Government under the Act. Since possession of ryots in respect of ryotwari lands is protected it has been held by Courts that vesting of title in Government is subject to the pre-existing rights of ryots or landholders to get patta under the Act. The lands used for communal purpose or waste and uncultivable lands vest with Government under the Act. In this case, it is neither pleaded nor established that the suit property is a ryotwari land to be treated as a land not vested with the Government under Tamil Nadu Act 26 of 1948. The respondent himself admitted that in the revenue settlement, the suit property was classified as road poramboke. Though it is open to a ryot to challenge the classification and seek declaration of title, despite the fact that no ryotwari patta was granted to him and the Civil Court is competent to decide the question of title, it must be established that the property is a ryotwari land and that it is in his enjoyment. Except stating that some third party is in enjoyment with his permission, no document is produced to show that the suit property was a ryotwari land at the time when the village was taken over under Tamil Nadu Act, 26 of 1948. In these circumstances, merely on the strength of Ex. A1, the plaintiff cannot establish his title in respect of a land which is classified as a communal land at the time of settlement. 20. In this case, first of all, the plaintiffs have not convincingly proved that the suit property is the property that was the one purchased by their mother under Ex. A1. From the description of the property, it cannot be concluded that the property dealt with under Ex. A1 is the suit property. There are some discrepancies with regard to boundary description and there is no independent evidence in this case to prove that the suit property was purchased under Ex. A1. The findings of the trial Court is acceptable and the lower appellate Court has reversed the findings with regard to the identity of property as if the Commissioner has identified property on ground on the basis of the boundary descriptions found in the document Ex. A1. The suit property is not identified with reference to survey number. In this case, admittedly, the correlation register pertaining to suit property is not produced. A1. The suit property is not identified with reference to survey number. In this case, admittedly, the correlation register pertaining to suit property is not produced. No attempt is made by the plaintiffs to establish the fact by any authenticated document of government or independent witness. The plaintiffs are not residing in the village where the suit property is located. The documents produced by the defendants would clearly show that the suit property is treated by Revenue Department as a communal property vested with the Panchayat. 21. As assumed by the plaintiffs themselves through the Government machinery provided under the Act, the plaintiffs' predecessor-in-interest failed to get ryotwari patta in recognition of their right to hold the property as a ryot under the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act (26 of 1948). Even for persons who failed to approach the authorities under the Act for getting ryotwari patta, the Government issued various Government Orders to grant ryotwari patta to the tillers of the soil by considering their claim outside the purview of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act (26 of 1948). Till 1987, the time for preferring any appeal against the order of Settlement Tahsildar refusing to grant patta or to apply for patta under the Act was extended. When the property is classified as communal land, there is a decision by the authorities under the Act and hence, the plaintiffs have to either file an appeal or a suit claiming a title to the suit property especially when the property is not a mere poramboke but as a land vested with Panchayat. The plaintiffs who have not produced any document to prove their possession has kept quiet all along and lay a claim on the basis of a document of the year 1941 despite the classification of the land as a cart track poramboke. The lower appellate Court has not considered the provisions of Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act (26 of 1948). The provisions of Tamil Nadu Survey and Boundary Act has been referred to without an application of mind. It is to be noted that the burden lies on the person who assert the existence of the fact contrary to record. The provisions of Tamil Nadu Survey and Boundary Act has been referred to without an application of mind. It is to be noted that the burden lies on the person who assert the existence of the fact contrary to record. In this case, despite the fact that the suit property has been classified as a cart track poramboke land and legal possession is with the local body under the provisions of Panchayat Act no document is produced before this Court to prove the possession and enjoyment of the property by the plaintiffs. The lower appellate Court has wrongly shifted the burden to the defendants to prove their case that the land was a cart track poramboke land stating that the plaintiffs have produced a document of the year 1941. Having regard to the fact that the document Ex. A1 is not proved to be the document pertaining to the suit property, this Court is of the view that the lower Appellate Court has shifted the burden wrongly on the defendants. For the above reasons, this Court is unable to subscribe to the view expressed by the lower appellate Court in reversing the well founded judgment of the trial Court. Since the appellate Court has relied upon the document Ex. A1 without acceptable evidence to correlate the property conveyed under this document with that of the suit property this Court is able to see that the findings of the lower appellate Court relying upon Ex. A1 is perverse. As pointed out earlier, the burden has been wrongly shifted to the defendants to prove that the suit property is a cart track poramboke when the plaintiffs have not produced any document to prove either their title or their enjoyment or about the usage of the property. Having regard to the admitted facts and the evidence in this case, the appellate Court also has rendered a finding with regard to the identity of the suit property as well as its enjoyment based on the document Ex. A1 by applying the principle that possession follows title. In this case, it is already held that the document Ex. A1 cannot be accepted as the document pertaining to the suit property. Hence, based on Ex. A1 the conclusion of the lower appellate Court that the plaintiffs were in enjoyment of the property is perverse. A1 by applying the principle that possession follows title. In this case, it is already held that the document Ex. A1 cannot be accepted as the document pertaining to the suit property. Hence, based on Ex. A1 the conclusion of the lower appellate Court that the plaintiffs were in enjoyment of the property is perverse. The first defendant has put up a sanitary complex in the suit property which was in existence as a cart track poramboke from 1960 and that there was no objection by the plaintiffs or their predecessor-in-interest disputing the classification of the lands in the revenue records. Only at the time of filing the suit, the plaintiffs have issued notice claiming right over the property. For all the above reasons, this Court is not able to accept the case of the plaintiffs with regard to their title or their enjoyment. As a result, this second appeal is allowed and the judgment and decree of the lower appellate Court in A.S. No. 71 of 2006 on the file of the Principal Sub Court, Tenkasi, reversing the judgment and decree of the trial Court in O.S. No. 190 of 2002 is set aside. The judgment of the trial Court in O.S. No. 190 of 2002 is restored. There is no order as to costs. Consequently the connected miscellaneous petition is closed.