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2018 DIGILAW 4425 (MAD)

Poochi Servai (died) v. Rajendaran

2018-12-03

R.SUBRAMANIAN

body2018
JUDGMENT : Prayer: Second Appeal is filed under Section 100 of C.P.C., against the judgment and decree made in A.S.No.38 of 2005 on the file of the Subordinate Court, Ramanathapuram, dated 28.06.2006, confirming the judgment and decree made in O.S.No.38 of 2003 on the file of the District Munsif cum Judicial Magistrate Court, Thiruvadanai, dated 08.11.2004. The plaintiff in O.S.No.38 of 2003 on the file of the Principal District Munsif, Thiruvadanai is the appellant. The said suit was filed by him seeking a decree of permanent injunction restraining the defendants from interfering with the possession of the plaintiff. 2. According to the plaintiff, the suit property measuring about 3 cents in Survey No.226/8B1 is the ancestral property of the plaintiff and was classified as Grama Natham. During the Natham Settlement Scheme, Patta was issued to the plaintiff and his brother Subbiah Servai in respect of 350 sq.m., of land in Survey No.226/8B. Subsequently, the said survey number was subdivided into two and Patta was issued to the plaintiff for an extent of 250 sq.m., in Survey No.226/8B1, for the remaining 100 sq.m., Patta was issued to the brother of the plaintiff. Claiming that the defendants are attempting to interfere with his possession, the plaintiff came forward to file the above suit. 3. The suit was resisted by the defendants contending that neither the plaintiff nor his predecessor in interest have any title to the suit property. According to the defendants, the suit property originally belonged to Ponnu Iyengar, who sold portions of it to Balavesam and Sudalaimuthu. It is further claimed that Balavesam’s sons Kayambu and Manamuthu had sold an extent of 3 cents to one Ganesan, S/o. Subbiah Kone under a sale deed, dated 03.09.1996. The said Ganesan had in turn conveyed the property purchased by him under the sale deed, dated 03.09.1996, to Thavamani / the second defendant in the suit. The defendants would further claim that the first wife of the first defendant viz., Pappathi Ammal had purchased to an extent of 2 « cents from Ravichandran and others, who are the heirs of Sudalaimuthu. The defendants would further claim that the first wife of the first defendant viz., Pappathi Ammal had purchased to an extent of 2 « cents from Ravichandran and others, who are the heirs of Sudalaimuthu. The defendants would also claim that subsequent to the purchase, mutation of the revenue records was effected and the Patta transfer order was passed on 27.06.2002, subdividing Survey No.226/8B into 226/ 8B1 measuring 250 sq.m., and 226/8B2 by measuring 100 sq.m. The Patta in respect of 226/8B2 was transferred in the name of Pappathi / wife of the first defendant. The Adangal Extract relating to the suit property viz., 226/8B2 measuring about 100 sq.m., standing in the name of the said Pappathi was also relied upon by the defendants to show that the plaintiff has no title or possession of the suit property. 4. At trial, the plaintiff examined himself as P.W.1 and examined one Kitta as P.W.2. The first defendant was examined as D.W.1 and D.Ws.2 to 6 were examined on his side. The plaintiff has produced Exs.A1 to A3 and defendants produced Exs.B1 to B26. A Commissioner was appointed pending suit and he also filed a report and plan which were marked as Exs.C1 and C2. 5. The trial Court, after framing necessary issues, concluded that the plaintiff is not entitled to the relief of permanent injunction inasmuch as he has not established his title. The trial Court found that Ex.A1, Patta, will not confer title on the plaintiff and therefore, the plaintiff has no right over the property and hence, he is not entitled to injunction. At the same time, the trial Court also found that the defendants have not established that the suit property originally belonged to Ponnu Iyangar, who had sold the same to Sudalaimuthu and Balavesam, from whose heirs the defendants claim to have purchased and dismissed the suit. Aggrieved, the plaintiff filed an appeal in A.S.No.38 of 2005 on the file of the Sub Court, Ramanathapuram. The learned Subordinate Judge upon re-appreciation of the evidence on record, agreed with the conclusions of the trial Court, had dismissed the appeal. Aggrieved, the plaintiff has come on appeal. 6. I have heard Mr.A.Arumugam, learned counsel for the appellants and Mr.C.Jeya Prakash, learned counsel appearing for the respondents 1 and 4. The third respondent is not appearing through counsel, despite service of notice. 7. Mr. Aggrieved, the plaintiff has come on appeal. 6. I have heard Mr.A.Arumugam, learned counsel for the appellants and Mr.C.Jeya Prakash, learned counsel appearing for the respondents 1 and 4. The third respondent is not appearing through counsel, despite service of notice. 7. Mr. A. Arumugam, learned counsel appearing for the appellants would contend that the learned trial Judge was no right in dismissing the suit for permanent injunction. Particularly, when the plaintiff has established his possession by way of revenue documents viz., Exs.A1 to A3. He would also contend that both the Courts below having disbelieved the title pleaded by the defendants should have protected the possession of the plaintiff. He would also submit that a person in possession is entitled to protect his possession against the whole world, except the true owner. Once it is found that the defendants had not established the title, the plaintiff having proved his possession by virtue of Exs.A1 to A3, should have been favoured with the decree for permanent injunction. 8. Per contra, Mr. C. Jeya Prakash, learned counsel appearing for the respondents 1 and 4 would submit that though the plaintiff would plead that the property belongs to his family ancestrally, there is no evidence to show that their possession prior to issuance of Ex.A1 / Patta in the year 1991. He would further contend that the heirs of Balavesam and Sudalaimuthu have dealt with the property by way of registered sale deeds would show that the defendants have got a better title than that of the plaintiff. The following questions of law were framed at the time of admission of the appeal. (i). Whether the Courts below are right in law in rejecting Ex.A1? Patta issued under Natham Land Tax Scheme and Ex.A2 ? Adangal and Ex.A3 ? Chitta in respect of the suit property in the name of the appellant and his brother, which go to prove the possession and enjoyment of the suit property by the appellant? (ii) whether the Courts below erred in thinking that Exs.A1, A2 and A3 which are documents relating to the appellant’s enjoyment and possession of the suit property were not sufficient for decreeing the suit, which suit was filed for bare injunction? (ii) whether the Courts below erred in thinking that Exs.A1, A2 and A3 which are documents relating to the appellant’s enjoyment and possession of the suit property were not sufficient for decreeing the suit, which suit was filed for bare injunction? (iii) Whether the Courts below erred in dismissing the appellant’s suit for bare injunction filed on the basis of possession and enjoyment under Exs.A1 to A3, on the ground that the appellant failed to prove title to the suit property? (iv) Whether the Courts below having incidentally probed the title of the respective parties in the suit for injunction erred in law leaving the question of title open? (v) Whether the Courts below erred in law in not adverting to the admission of the respondents in the Written Statement about the possession of the appellant, which admission is the best piece of evidence as against the respondents? (vi) Whether the judgments and decrees of the Courts below are vitiated by misappreciation and misconception of the evidence both oral and documentary as adduced on the side of the appellant? 9. Upon hearing the arguments of the learned counsel for the appellant as well as the learned counsel for the respondents, the questions of law framed are re-framed as follows: (i) Whether the Courts below were right in dismissing the suit for injunction based on possession on the ground that the plaintiff has not established his title more so when the Courts below have rejected the claim of title made by the defendants? (ii) Whether the Patta granted under the Natham Settlement Scheme could be equated to the Revenue Patta which operates as only evidence of possession? 10. Both the counsel have addressed the Court on the re-framed questions of law. 11. The essence of the claim of the plaintiff is that the property belongs to them ancestrally and being a property classified as Natham, it was taken up for settlement under the Natham Settlement Scheme framed in the year 1984 and after enquiry, Patta was issued to him under Ex.A1 and to his brother under Ex.A2. Ex.A2 / Adangal for the said property would show that the plaintiff is in possession of 250 sq.m., in Survey No.226/8B(1). Ex.A3 / Chita also stands in the name of the plaintiff in respect of 250 sq.m., in Survey No.226/8B1. Ex.A2 / Adangal for the said property would show that the plaintiff is in possession of 250 sq.m., in Survey No.226/8B(1). Ex.A3 / Chita also stands in the name of the plaintiff in respect of 250 sq.m., in Survey No.226/8B1. Relying upon these documents, Mr.A.Arumugam, learned counsel for the appellant would submit that the plaintiff has established the possession of the property. Therefore, he would be entitled to injunction unless the defendants proved a better title. Such better title, according to Mr.A.Arumugam, learned counsel for the appellants, has not been made out and therefore, the plaintiff would be entitled to a decree for injunction. Contending contra Mr.C.Jeya Prakash, learned counsel for the respondents 1 and 4 would submit that the predecessors in interest of the defendants have dealt with the properties under registered instruments even in the year 1996 and pursuant to the same, a Patta transfer order has been issued by the Tahsildar under Ex.B7, wherein Patta has been issued to an extent of 100 sq.m., in favour of Papathiammal. From Ex.B6, it could be seen that the said Papathiammal, wife of the first defendant, has purchased an extent of 2 « cents from the heirs of Sudalaimuthu. Of course, the Courts below have held that the defendants have not established the title of Ponnu Iyengar and the derivative title of Sudalaimuthu and Balavesam. Once it is found that the defendants have no better title, the plaintiff in whose name the revenue records stands, particularly in respect of the properties covered by Natham Settlement would be entitled to protect his possession. The Courts below have rightly left the question of title open. I therefore find that the plaintiff has established his possession in respect of 250 sq.m., of land as claimed by him under Exs.A1 to A3. For the foregoing reasons, the first question of law is answered in favour of the appellant and against the respondents. 12. A Patta issued under the Natham Settlement Scheme cannot be equated to a Revenue Patta. Natham lands are lands meant for habitation of villagers and prior to the introduction of the Natham Settlement Scheme in the year 1984, there was no tax leviable for Natham lands. The land classified as Grama Natham never vested with the Government and the Government is not the paramount owner. It was the person in possession, who had the title to the property. The land classified as Grama Natham never vested with the Government and the Government is not the paramount owner. It was the person in possession, who had the title to the property. With a view to regularise occupation of Natham lands and to bring them under the tax-net, the Natham Settlement Scheme was introduced and under the Scheme, Patta were issued to various persons, who were found in possession of Natham lands. Therefore, the Patta issued under the Natham Settlement Scheme does have evidentiary value, so as to establish title as against stranger. Therefore, both the Courts below were no right in holding that A1 / Patta does not confer any title on the plaintiff. Hence, the second question of law is also answered in favour of the plaintiff / appellant. 13. In the light of the above discussion and the answers given to the questions of law 1 and 2, I find that both the Courts below had misread the scope of Natham Settlement Patta and treated it as an Ordinary Revenue Patta which should be accompanied by documents of title. This had lead to erroneous and perverse findings being recorded by the Courts below. Therefore, I have no hesitation in setting aside the judgment and decree by both the Courts below. The second appeal will stand allowed. The suit in O.S.No.38 of 2003 will stand decreed as prayed for. However, there shall be no order as to costs. 14. It is made clear that any finding in these proceedings will not bar either of the parties from seeking declaration of their title. If such a declaration is sought for, the Court below which deals with the said suit will determine the question of title, without being influenced by any of the observations made in these proceedings.