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2018 DIGILAW 2869 (MAD)

V. Rajendran (Died) v. K. Chinna Pillai

2018-09-11

C.V.KARTHIKEYAN

body2018
JUDGMENT : C.V. KARTHIKEYAN, J. 1. The plaintiff in O.S. No. 173 of 1999 on the file of the Principal District Munsif Court, Kumbakonam, is the appellant herein. 2. O.S. No. 173 of 1999 had been filed by the plaintiff, Rajendran, against the defendants, Chinnapillai and Viswanathan, seeking a judgment and decree restraining the defendants from interfering with his peaceful possession and enjoyment of the suit property and for costs of the suit. 3. The suit property is situated in Melathukurichi Village, Kumbakonam Taluk in New S. No. 417/14 and Old S. No. 41/5-B. It measures to an extent of 0.01.0 ares equivalent to 2 + cents. The plaintiff claimed that the suit property is a manaicut, which had been in his possession and enjoyment for the past more than 32 years. Previous to him, his father was in exclusive possession. Patta had also been issued in favour of the plaintiff. It was used for tethering cattle, to put hay rick and for other storing agricultural implements. In 1991, the plaintiff created an usufructuary mortgage in favour of one Subramanian and obtained a sum of Rs. 1,000/-. He later redeemed the mortgage and took back possession. The defendants have no manner or right over the suit property. There were criminal cases initiated on either side. The defendants made an attempt to enter into the suit property. It is under these circumstances, that the suit had been filed seeking permanent injunction. 4. The first defendant filed his written statement. According to the first defendant, he was in possession of the suit property. He had filed an appeal before the Revenue Divisional Officer against granting of patta by the Tahsildar. The first defendant claimed that he was in continuous possession of the suit property. He also claimed that the he had not threatened the plaintiff and that he was actually in possession. 5. On the basis of the above pleadings, the learned Principal District Munsif, Kumbakonam, had framed the following issues for trial: "(a) Whether the plaintiff is entitled for the relief of permanent injunction. (b) Whether the statement of the defendants that the plaintiff has no right over the suit property is true. (c) Whether the first defendant is in possession of the suit property. (d) To what other reliefs, the plaintiff is entitled to." 6. During trial, the plaintiff examined four witnesses. He also marked three documents. (b) Whether the statement of the defendants that the plaintiff has no right over the suit property is true. (c) Whether the first defendant is in possession of the suit property. (d) To what other reliefs, the plaintiff is entitled to." 6. During trial, the plaintiff examined four witnesses. He also marked three documents. Ex-A1, dated 30.09.1990, is the patta granted in favour of the plaintiff. Ex-A2, dated 25.11.1991, is the usufructuary mortgage in favour of Subramanian. Ex-A3 is the cancellation of usufructuary mortgage, dated 17.04.1995. The defendants also examined two witnesses and marked three documents. Ex-B1 is the order of the Revenue Divisional Officer, dated 26.11.1999. Ex-B2 dated 27.11.1996 is a representation given by the first defendant and Ex-B3 is appeal given to the Assistant Settlement Officer, Kumbakonam, by the first defendant. 7. Considering the oral and documentary evidence, the learned Principal District Munsif held that the plaintiff was in possession and that the first defendant had failed to prove that he was in possession and consequently decreed the suit, however, without costs. As against that judgment and decree, the defendants filed A.S. No. 122 of 2001, which came up for consideration before the Principal Subordinate Judge, Kumbakonam. 8. During the pendency of the appeal, the plaintiff died. His legal representatives were brought on record. One of the legal representatives also died and his legal representatives were also brought on record. The learned Principal Subordinate Judge, re-examined the evidence on record. He also framed issues for consideration. He found that the patta granted in favour of the plaintiff had actually been cancelled by Ex-B1, by the Revenue Divisional Officer. Consequently, holding that the plaintiff was not in possession, the first appellate Court, by judgment dated 03.11.2009, reversed the judgment and decree of the trial Court and allowed the appeal and dismissed the suit. Challenging the said dismissal, the respondents in the first appeal have filed the present second appeal. 9. Consequently, holding that the plaintiff was not in possession, the first appellate Court, by judgment dated 03.11.2009, reversed the judgment and decree of the trial Court and allowed the appeal and dismissed the suit. Challenging the said dismissal, the respondents in the first appeal have filed the present second appeal. 9. This second appeal was admitted on the following substantial question of law: "Whether the lower appellate Court has rendered a perverse finding regarding possession of the suit property by the appellants/plaintiffs reversing the well considered finding of the trial Court, solely on the ground that patta issued in the name of the deceased plaintiff was cancelled during the pendency of the suit, citing the pendency of the suit as the ground for such cancellation when patta was not issued in the name of the respondents/defendants also." 10. Pending appeal, the appellants filed C.M.P. (MD) No. 4855 of 2018. This petition was filed under Order 41 Rule 21 CPC seeking permission to produce an additional evidence the order of the District Revenue Officer, Thanjavur, dated 21.11.2002. By the said order, the District Revenue Officer, set aside the order of the Revenue Divisional Officer, and which was marked as Ex-B1, which had been relied on by the first appellate Court to hold that the plaintiff was not in possession. 11. In the affidavit filed in support of the said petition, it had been stated that both learned Senior Counsel, who conducted the appeal before the first appellate Court and the original plaintiff died and consequently the order could not be filed before the lower appellate Court. It had been stated that the order is relevant and should be taken up as additional evidence. 12. This stand was contested by the first respondent, who was the first defendant in the suit. He filed a counter stating that the order had been passed cancelling the patta, only because the suit was pending and consequently no right was adjudicated and at any rate granting of patta is not equivalent to grant of title and therefore, it was contended that the said document cannot be taken as additional evidence. Before examining the rival contentions raised in the second appeal, C.M.P. (MD) No. 4855 of 2018 would have to be discussed. 13. The parties would be referred as plaintiffs and defendants. Before examining the rival contentions raised in the second appeal, C.M.P. (MD) No. 4855 of 2018 would have to be discussed. 13. The parties would be referred as plaintiffs and defendants. The plaintiffs would include legal representatives of the plaintiff, who are the appellants before this Court. Even though the legal representatives are on record, they shall be referred in singular as plaintiff. Among the two respondents, the contesting respondent is the first respondent, who was the first defendant in the trial Court. 14. The plaintiff had filed the suit for permanent injunction against the defendants with respect to the suit property in Melathukurichi Village, Kumbakonam Taluk in New S. No. 417/14 and Old S. No. 41/5-B to an extent of 0.01.0 ares equivalent to 2 + cents. The plaintiff had filed documents to substantiate possession. He filed patta granted in his name by the Tahsildar. He also stated in the plaint and also in the evidence that he had created usufructuary mortgage in favour of one Subramanian, which document was marked as Ex-A2. The said Subramanian was put in possession and subsequently, the plaintiff redeemed the mortgage. The discharge receipt in Ex-A2 was marked as Ex-A3. 15. The first defendant, on the other hand, claimed that he was in possession of the suit property. He filed Ex-B1, the order of the Revenue Divisional Officer, cancelling Ex-A1, patta in the name of the plaintiff. It must be kept in mid that the judgment in O.S. No. 173 of 1999 was passed on 04.09.2001. The judgment in A.S. No. 121 of 2001 was passed on 03.11.2009. The document, now sought to be produced was dated 21.11.2002. This order was passed by the District Revenue Officer, subsequent to the judgment passed in Original Suit. However, the said document was not produced before the first appellate Court. 16. Orders granting patta, cancelling patta and subsequently, cancelling the order of cancellation of patta are orders passed by the revenue authorities. However, the plaintiff will have to stand on his own leg to prove possession. The first appellate Court had based its finding only on the revenue documents. Findings in a Court of law should be based on documents adduced before it. Revenue documents may be relevant to establish a fact, but they cannot form the basis for the judgment. However, the plaintiff will have to stand on his own leg to prove possession. The first appellate Court had based its finding only on the revenue documents. Findings in a Court of law should be based on documents adduced before it. Revenue documents may be relevant to establish a fact, but they cannot form the basis for the judgment. The plaintiff will have to independently prove possession, and as a corollary to such proof and to substantiate his claim for possession, he can rely on revenue records. Viewed from that angle, the evidence adduced will have to be examined by the Court and, I hold that by order of the District Revenue Officer, which is produced as additional evidence cannot be the basis of the judgment of this Court. The evidence adduced by the parties should be primarily examined. I hold that the order of the District Revenue Officer need not be pressed into service and the Civil Miscellaneous Petition in C.M.P. (MD) No. 4855 of 2018 is dismissed accordingly. 17. Now, the evidence already on record is to be examined to determine whether the plaintiff is has established that he is in possession or not. Once the lost begins the exercise of examining the evidence on record, it has to be naturally stated that the lower appellate Court was wrong in giving a finding regarding possession only on the basis of the revenue records. 18. During trial, the plaintiff examined himself as PW-1. He marked Ex- A2 and Ex-A3. Ex-A2 is the usufructuary mortgage created by the plaintiff in favour of Subramanian, S/o Raja Manicka Maistry, dated 25.11.1991. Since the value of the stamp papers, on which the document was written, was inadequate, additional stamp duty was collected by the lost. Penalty was also imposed. That was also paid. The document can therefore be examined by this Court. In the document, the plaintiff had clearly stated that suit property was.......which naturally means that he was in possession of the suit property. The schedule of the suit property had also been given in the document. In the document, the plaintiff further covenanted that the property was kept in mortgage with the said Subramanian and he had received a sum of Rs. 1,000/- in cash. The period of mortgage was three years. The said Subramanian, the mortgagee was subsequently granted possession. The schedule of the suit property had also been given in the document. In the document, the plaintiff further covenanted that the property was kept in mortgage with the said Subramanian and he had received a sum of Rs. 1,000/- in cash. The period of mortgage was three years. The said Subramanian, the mortgagee was subsequently granted possession. It was stated........this naturally means that the plaintiff was originally in possession and had handed over possession to Subramanian, due to the mortgage created by him. 19. In support of this document, the plaintiff had also examined Chellaperumal, as PW-2. Chellaperumal, S/o Ramasamy Padayachi, was the second witness to the document. In his cross examination, he affirmed his signature in the document. He stated that he had been asked to sign as a witness by the mortgagee, Subramanian. This is significant, since at the time when the mortgage was created, there was no guarantee that the plaintiff would be in a position to redeem it. Therefore, PW-2 is not a witness, who had affinity with the plaintiff. He also knew the first defendant. He withstood cross examination. 20. The plaintiff then examined as PW-3, Subramaninan, the mortgagee himself. He affirmed that he had given a sum of Rs. 1,000/- to the plaintiff and had obtained possession of the property. He asserted that the property was in possession of the plaintiff. He also affirmed discharge of the mortgage. This was marked as Ex-A3 and was dated 17.04.1995. At the time when the mortgage was redeemed, PW-3 stated that he had handed back possession to the plaintiff. 21. On the side of the defendants, to establish possession, the defendants had marked only Ex-B1, which is the order of the Revenue Divisional Officer. The defendant is also expected to let in independent evidence to prove possession. Independent evidence could also include documentary evidence. Ex-B2 and Ex-B3 would not help the defendants' case in any manner. The other witness examined by the defendant quite apart from himself, was one Murugesan, DW-2. He stated that the property was in the possession of the first defendant. He stated that he did not know the survey number of the property. He did not know the area of the property. He stated that only two days before adducing evidence, he came to know about this civil suit. Notice was not issued to him to given evidence. He stated that he did not know the survey number of the property. He did not know the area of the property. He stated that only two days before adducing evidence, he came to know about this civil suit. Notice was not issued to him to given evidence. His evidence is not at all convincing. 22. When the evidence adduced by either side is weighed, it is found that the plaintiff had clearly established that he was in possession; that he created usufructuary mortgage; that he handed over possession to the mortgagee; that he redeemed the mortgage; and that he took back possession. These are direct evidence. The order of the revenue authorities even if considered, would not come in the way of holding that the plaintiff has proved possession and exclusive enjoyment, which is the fundamental factor to grant or deny an order of injunction. 23. The plaintiff had given the date in the plaint, as to when the first defendant had threatened to dispossession him. Motive for such threat has also been stated in the plaint. There had been disputes between the plaintiff and the first defendant, leading to criminal cases being filed. I hold that the plaintiff has established possession and enjoyment. 24. The evidence adduced convinces me to hold that the reasons of the first appellate Court based on the order of the Revenue Divisional Officer alone and without considering the oral and documentary evidence on record has to be necessarily interfered with. Accordingly, the substantial question of law is answered that the first appellate Court had erred and had ignored the evidence on record and had based its findings on the basis of orders of the revenue authorities and not on independent appraisal of evidence. 25. For all the reasons stated above, the second appeal is allowed with costs. The judgment and decree in A.S. No. 122 of 2001, dated 03.11.2009 passed by the learned Principal Subordinate Judge, Kumbakonam is set aside. The judgment and decree in O.S. No. 173 of 1999, dated 04.09.2001 passed by the learned Principal District Munsif, Kumbakonam is confirmed. The civil miscellaneous petition in C.M.P. (MD) No. 4855 of 2018 is dismissed.