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2019 DIGILAW 155 (MAD)

K. Ramasamy v. S. Sundaravadivel

2019-01-11

R.THARANI

body2019
JUDGMENT : Heard Mr.G.Prabhu Rajadurai, learned counsel appearing for the appellants and Mr.J.Maria Roseline, learned counsel appearing for the respondents. 2. The appeals have been filed against the Judgment and Decree passed in A.S.Nos.75 and 76 of 2011 dated 18.09.2012 on the file of the Principal Subordinate Judge, Trichy confirming the Judgment and Decree passed in O.S.Nos.2029 of 2006 and 164 of 2007 dated 26.02.2010 on the file of the learned II Additional District Munsif, Trichy. 3. The appellants herein are the plaintiffs in O.S.No.2029 of 2006 and they filed the suit for permanent injunction. The respondents are the plaintiffs in O.S.No.164 of 2007 and they filed a suit seeking for a relief of declaration and for recovery of possession by directing the defendants to deliver possession of the suit property after removing the thatched shed put up over the foundation laid in the suit property. The appellants are the defendants in O.S.No.164 of 2007. Both the suits were tried together by the learned II Additional District Munsif, Trichy and he has passed a common Judgment in both the suits on 26.02.2010. The learned II Additional District Munsif, Trichy has decreed the suit in O.S.No.164 of 2007 and has dismissed the suit in O.S.No.2029 of 2006. Against the Judgment and Decree, the appellants herein have filed appeals in A.S.Nos.75 and 76 of 2011 before the Principal Sub Court, Trichy. The learned Principal Sub Judge has dismissed the appeals and has confirmed the Judgment and Decree passed by the trial Court. Against the dismissal of appeals, the appellants herein have filed these second appeal. 4. The case of the plaintiffs in O.S.No.164 of 2007 is that the suit property is a natham poramboke which was in the enjoyment of one Anthony and the suit property was allotted to him by the Tahsildar, Trichy. Subsequently, this property was sold to one Jegathambal on 17.04.1971. 4. The case of the plaintiffs in O.S.No.164 of 2007 is that the suit property is a natham poramboke which was in the enjoyment of one Anthony and the suit property was allotted to him by the Tahsildar, Trichy. Subsequently, this property was sold to one Jegathambal on 17.04.1971. She has obtained patta and constructed a basement and she died interstate on 28.12.1995 and the legal heirs of Jegathambal who are the plaintiffs have obtained patta in their name and that the plaintiffs 2 and 3 got married and the 1st plaintiff was working out of station and they were not in a position to look after the property and that only in the year 2006, the first plaintiff came to know that the first defendant has raised a thatched house in his property and that the suit was filed for declaration and for recovery of possession. 5. The case of the defendant in O.S.No.164 of 2007 is that the proceedings of the Tahsildar in favour of Antony is a forged document. If the land was allotted to Antony by the Government, that land could not have be sold out within a period of 10 years. If the condition was violated, the original allotment will be cancelled and that the sale deed in favour of Jagathambal is not valid and that the property is in enjoyment of the first defendant and that in the year 1987, the Tahsildar has issued an assessment order in favour of the defendant and that the defendants have also obtained E.B. Connection and are paying house tax. 6. The case of the plaintiffs in O.S.No.2029 of 2006 is that the suit property is in possession and enjoyment of the plaintiff and his ancestors. On 29.11.2006, the defendant has interfered with the possession of the plaintiff and a Police complaint was lodged. The plaintiffs have spent Rs.3,00,000/- (Rupees Three Lakhs only) and has constructed a house in the suit property and the defendants have to be prevented by an order of injunction. 7. On 29.11.2006, the defendant has interfered with the possession of the plaintiff and a Police complaint was lodged. The plaintiffs have spent Rs.3,00,000/- (Rupees Three Lakhs only) and has constructed a house in the suit property and the defendants have to be prevented by an order of injunction. 7. The case of defendant in O.S.No.2029 of 2006 is that the description of the property is wrong and that all the documents filed by the plaintiffs are forged documents and that one Antony was the owner of the suit property and he has executed a sale deed in favour of Jagathambal and that Jagathambal has obtained patta and was in enjoyment and that the plaintiffs are legal heirs of Jagathambal and that as the defendants are not available in the village, the plaintiffs have encroached upon the property and has raised a thatched house. 8. For the sake of convenience, the word “plaintiff” hereinafter will denote the respondent in S.A.(MD)No.469 of 2013 and the word “defendants” hereinafter will denote the appellant in S.A.(MD)No.469 of 2013 in O.S.No.164 of 2007. 9. On the side of the plaintiff in O.S.No.164 of 2007, documents Exs.A1 to A5 were marked and P.Ws.1 to 3 were examined. On the side of the defendant in O.S.No.164 of 2007, Exs.B1 to B15 were marked and two witnesses, D.W.1 and D.W.2 were examined. 10. After considering both side evidence, the trial Court has come to the conclusion that O.S.No.164 of 2007 is to be decreed and O.S.No.2029 of 2006 is to be dismissed. The first Appellate Court has dismissed the appeal by confirming the Judgment and Decree passed by the trial Court. 11. This Court by its Order dated 19.03.2014, has admitted the second appeal by framing the following substantial question of law : “(i) Whether the Courts below are correct in law to hold that the said Jegathambal could acquire an absolute title over the suit property under Ex.A2, particularly when the vendor had no power of dispossession and that the land being a Grama Natham? (ii) Whether the Courts below erred in law in overlooking the nature of the suit property being Grama Natham Land and that the title would only vest with the person who uses the same for residential purpose? (ii) Whether the Courts below erred in law in overlooking the nature of the suit property being Grama Natham Land and that the title would only vest with the person who uses the same for residential purpose? (iii) Whether the Court Courts below erred in law in overlooking the principle that a Grama Natham land would not vest with the Government and hence the Government has no right to assign a non-existing title?” Issue No.1: 12. On the side of the plaintiffs, it is stated that when Antony was in possession of the Natham property in the year 1987(267-87), the Government granted assignment patta in the name of Antony and that in the year 1971, the Antony sold the property to Jegathambal and that Tahsildar granted patta in her name and that the plaintiff are the legal heirs of Jegathambal and that they constructed basement for the house and that in their absence, the defendants constructed a thatched shed upon their basement. 13. On the side of the defendants, it is stated that the suit property is three cents in survey No.162/3 and the suit property is a Natham property and the defendants and their ancestors are in possession of the property for decades and that considering the possession, UDR patta was given to them and that they have constructed a house and they are paying the property tax and they have obtained E.B connection also and are enjoying the property. 14. On the side of the appellants, it is stated that the suit property is a natham land and that a Natham land never vest with the Government and that those who are in possession of the natham land are the owners and the Government cannot assign a natham land to anybody as the Government is not the owner of a natham land. It is stated that the patta is not a document of title and that tax is collected only from the appellants and that the occupation by these appellants and the construction of the house is admitted by the plaintiffs and these aspects are not considered by the lower Courts. 15. It is stated that the patta is not a document of title and that tax is collected only from the appellants and that the occupation by these appellants and the construction of the house is admitted by the plaintiffs and these aspects are not considered by the lower Courts. 15. The learned counsel appearing for the appellant relied on the Judgment and Decree passed by this Court in the case of A.K.Thillaivanam and another V. The District Collector and others reported in 1998 3 L.W. 603, which reads as follows : “The respondents have no right to interfere with the peaceful possession and enjoyment of the land and their action in giving a complaint for alleged offence under Section 420 of IPC is total misconception.... It is to be pointed out that even according to the respondent, it is a grama natham and the respondents never had right nor the grama natham had ever vested with the respondents. In the circumstances, the petitioner is entitled the relief of Mandamus as prayed for.” 16. The learned counsel appearing for the appellant relied on the Judgment and Decree passed by this Court in the case of The Executive Officer V. V.Swaminathan and others reported in (2004)2 M.L.J. 708 , which reads as follows : “'Grama Natham'-land classified as 'Grama Natham'-such land does not vest with the Government or the Town Panchayat-Patta cannot be cancelled by virtue of a resolution passed by the Panchayat-persons in possession of 'Grama Natham' cannot be summarily evicted-question of title is to be decided” 17. On the side of the appellants, it is stated that the appellants are in possession for generations together and in the year 2001, they constructed a house and they are in possession and their possession is recognised by way of patta. On the side of the appellants, it is stated that the appellants are in possession for generations together and in the year 2001, they constructed a house and they are in possession and their possession is recognised by way of patta. It is stated that a person who claim recovery of possession has to identify the property and that there are difference in the boundaries and that the survey number is only for a larger extend and not for the suit property and that in Ex.A1, there is no sub division or lay out plan in Ex.A1 and that there is every possibility for the respondents to claim a wrong site and that a vacant land owner cannot claim any right in a natham land and the names of the appellants are included in the record as owners of the property for collection of tax and that the identification of the suit property is doubtful. 18. On the side of the appellants, it is stated that both the lower Courts have accepted the discrepancies in the boundaries and that the lower Courts have come to a wrong conclusion that the boundaries are to be proved only by the appellants and fail to consider that the plaintiffs who claim recovery of possession has to establish their case and the burden is upon the person who claim recovery of possession and not on the person who is in enjoyment. 19. On the side of the appellants, it is stated that plot number will be given only after the sub division and that the plaintiffs have to appoint a Commissioner to prove the alleged encroachment of the defendants and that the identity of the property is in dispute. 20. The learned counsel appearing for the appellant relied on the Judgment and Decree passed by this Court in the case of Dharmapura Adhinam Mutt V. Raghavan and Another reported in (2012) 1 M.L.J. 369 , which reads as follows: “Land not vested with Government-Patta issued under UDR scheme, to impost tax on Natham lands-No title conferred on 2nd respondent by patta, unless he proves to be land owner” 21. The learned counsel appearing for the appellant relied on the Judgment and Decree passed by this Court in the case of Muthammal (died) and others V. State of Tamil Nadu and another reported in (2006) 3 M.L.J. 216 , which reads as follows : “Possession by plaintiffs for over 30 years-Adverse possession-no documentary evidence by revenue to disprove possession” 22. On the side of the respondents, it is stated that both the lower Courts have come to concurrent findings against the appellants and that there is no substantial question of law to be decided in this case. It is stated that the claim of the appellants is that they are in occupation of natham land and that they got patta on the basis of possession. 23.On the side of the respondents, it is stated that the property was assigned to Antonysamy and Antonysamy sold the property to Jegadhambal. Jegadambal laid the foundation of a house in the suit property and that the first respondent is residing at Oraiyur, 10 k.m., away from the suit property and that he had two married sisters settled at Sivakasi and Thiruppathur respectively and that the suit property was taken care of by one Natarajan, who is the uncle of the respondents and that subsequently, after the death of the uncle, the appellants have encroached upon the property in November 2006 and that a Police complaint was given and a suit was filed and that no revenue officials were examined to prove patta and that P.Ws.2 and 3 have deposed about the assignment to Antonysamy and the issuance of patta in the name of Jegathambal and then in the name of her legal heirs and that no injunction order can be given against the owner of the property and that Exs.B1 to 3 do not co-relates with the suit property. 24.The learned counsel appearing for the respondent relied upon the Judgment passed by this Court in the case of Kammavar Sangam through its Secretary R.Krishnasamy v. Mani Janagarajan reported in 1999 (III) CTC 304 , which reads as follows : “Relief of injunction available to person claiming on the basis of possessory title cannot be maintained against a person having better title-Defendant producing sale deed to prove better title” 25. On the side of the respondent, it is stated that the Judgment cited by the appellants are relating to disputes between the Government and the occupier whereas this case is between two private persons and that the citation are not applicable to this case. 26. The learned counsel appearing for the respondent relied upon the Judgment passed by the Hon'ble Supreme Court in the case of Boodireddy Chandraiah and others v. Arigela Laxmi and another reported in (2007) 8 Supreme Court Cases 155, which reads as follows : “the matter is remitted to the High Court to formulate substantial question of law, if any, and therefore decide the appeal. Needless to say if there is no substantial question of law involved, the appeal has to be dismissed. We make it clear that we have not expressed any view as to whether any substantial question of law is involved.” 27. The suit in O.S.No.2029 of 2006 was filed by the appellants and the suit was filed only for bare injunction. The respondent has disputed the title of the appellants and they have filed a suit in O.S.No.164 of 2007 for declaration of title and for recovery of possession. When there is a cloud raised against the title of the appellants, it is the duty of the appellants to prove the title but the appellants have not taken any steps to amend the suit to include a prayer for declaration of title. Admittedly the possession is with the defendants. 28. This dispute is not between the Government and the appellants. This dispute is between two private persons. The appellants have not filed any document to show that this suit property was a Grama Natham during the year 1970 and that the assignment patta was given to Antonysamy in the year 1970. The appellants have failed to prove that during the year 1970, the suit land was a natham land. The question of law raised by the appellants is only a question of fact and not a question of law. Issue No.2: 29. On the side of the appellants, it is stated that the property is the Natham property and the title is vested only with the person who used the same for residental purpose. The case of the respondent is that the respondent's mother constructed a foundation in the suit property. Issue No.2: 29. On the side of the appellants, it is stated that the property is the Natham property and the title is vested only with the person who used the same for residental purpose. The case of the respondent is that the respondent's mother constructed a foundation in the suit property. Though the appellants are claiming possession for decades, the appellants have filed documents only from the year 1996 onwards. The patta was issued in the year 1996 but all other documents on the side of the appellants are only regarding the possession from the year 2002 onwards. The appellants have not raised any claim by way of adverse possession. There was no prayer for declaration of title. Hence, it is decided that this question that raised by the appellants is not maintainable. Issue No.3 : 30. The claim of the appellants is that the vendor of Jegathambal has no title over the property. The appellants have not claimed declaration of title and no steps was taken by the appellants to implead a prayer for declaration of their title. The appellants are claiming the property only by way of a patta bearing no.376/96 whereas the respondents are claiming title through an assignment order of the year 1987. The appellants have not filed any document to disprove the title of Antonysamy. The patta in the name of appellants is only a subsequent patta. The description of the property in that patta varies from the description of the suit property. Patta is not a document of title. Though the appellants are questioning the validity of Ex.A2, the appellants have not taken any steps to declare Ex.A2 as null and void. When a person is denying a registered document, it is the duty of that person to disprove the document. The patta was in the name of respondents dated 17.07.1970 was filed. The patta in the name of the defendants' predecessors is only a subsequent patta of the year 1996. The documents filed by the defendants as Exs.B2 to B68 are subsequent documents dating from 2002 which prove possession and not title. The assignment order in the name of Antonysamy and the patta in the name of Jegathambal are proved by way of the evidence of the revenue Officials, P.Ws.2 and 3. The question regarding the nature of gramma natham was already discussed in Issue No.2 itself. The assignment order in the name of Antonysamy and the patta in the name of Jegathambal are proved by way of the evidence of the revenue Officials, P.Ws.2 and 3. The question regarding the nature of gramma natham was already discussed in Issue No.2 itself. As the defendants fail to prove that the property is a gramma natham and this question raised by the appellants is not maintainable. 31. All the above said questions are questions of facts and they are not questions of law. There is no merits in the appeals and there is no necessity to interfere in the concurrent Judgments passed by both the lower courts. In the circumstances, these second appeals are dismissed. No Costs. Consequently, M.P.(MD)No.2 of 2013 is closed.