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2019 DIGILAW 723 (MAD)

Thiyagarajan v. Vairavasundaram

2019-03-15

R.PONGIAPPAN

body2019
JUDGMENT : (Prayer: Second Appeal filed under Section 100 of C.P.C. against the Judgment and Decree dated 19.08.2008 in A.S.No.47 of 2008 on the file of the learned Subordinate Judge, Pudukottai, reversing the Judgment and Decree dated 14.11.2007 in O.S.No.5 of 2006 on the file of the Principal District Munsif, Pudukottai.) 1. The appellant in this appeal is the defendant in O.S.No.5 of 2006 on the file of the Principal District Munsif, Pudukottai and respondent in A.S.No.47 of 2008 on the file of the learned Subordinate Judge, Pudukottai. 2. The respondent herein filed a suit in O.S.No.5 of 2006 on the file of Principal District Munsif, Pudukottai, seeking for the relief of permanent injunction restraining the defendant and his men from interfering with the peaceful possession and enjoyment of the suit property by the plaintiff. The learned Principal District Munsif, Pudukottai, by Judgment and Decree dated 14.11.2007, had dismissed the suit with costs. 3. Aggrieved over the same, the plaintiff/respondent herein filed an appeal before the learned Subordinate Judge, Pudukottai in A.S.No.47 of 2008. The learned Subordinate Judge, Pudukottai, by Judgment and Decree dated 19.08.2008, had allowed the appeal with costs and decreed the suit as prayed for. 4. Feeling aggrieved by the same, the defendant filed the present second appeal. 5. For the sake of convenience, the parties are referred to as described before the trial Court. 6. The averments made in the plaint, in brief, are as follows: The plaintiff purchased the suit property under sale deed dated 17.12.2004. After the purchase, by using the bore well, he cultivated the said land and raised banana crops. In earlier, the suit schedule property stands in the name of the husband of one Maragatham. After the demise of her husband, the said Maragatham sold out the property to the plaintiff, and ever since from the date of purchase, the plaintiff is in possession and enjoyment of the suit property. In the revenue records also, mutation was effected in favour of the plaintiff. Therefore, the defendant is not having any right in enjoying the suit property, by saying that he is the power agent of one Vasudevan, who is the resident of Malaysia. In the revenue records also, mutation was effected in favour of the plaintiff. Therefore, the defendant is not having any right in enjoying the suit property, by saying that he is the power agent of one Vasudevan, who is the resident of Malaysia. As the defendant unlawfully entered into the suit schedule property, the suit has been filed seeking for the relief of permanent injunction restraining the defendant from interfering with the peaceful possession of the suit schedule property by the plaintiff. 7. The averments made in the written statement in brief are as follows: The vendor of the plaintiff, namely, Maragatham was not having any right and title over the suit schedule property. In earlier, the survey number of the suit property was 20/4A and further, the same was having an extent of 1 acre 15 cents. The said survey number has now been changed by assigning a new survey number as S.F.No.20/16. In fact, the suit schedule property originally belonged to one Venkatachalam Chettiar, son of Velayutham Chettiar. One Natesan Servai, S/o.Ramasamy Servai, purchased the suit property from Venkatachalam Chettiar, after which, he was in enjoyment of the said property and as he was living in Malaysia, he appointed one Ramasamy as a power agent for maintaining the suit schedule property. One Subbiah, the husband of Maragatham, by using the said situation, changed the patta in his name in the year 1984-1985. However, after the demise of Natesan Servai on 25.04.1993, his only son, namely, Vasudevan has been enjoying the suit schedule property and he also changed the patta in his name. In the said circumstances, on 16.08.2005, the said Vasudevan appointed the defendant as power agent. Thereafter only, the defendant is doing agricultural wok in the suit schedule property. When the plaintiff claims to be the owner of the suit schedule property, he has to file the suit for declaration of title. But, without asking the prayer of declaration, the plaintiff filed the suit for bare injunction. Therefore, the suit is not maintainable and the same has to be dismissed. 8. Based on the above said pleadings, the learned Principal District Munsif, Pudukottai, framed the necessary issues and tried the suit. During the trial, the plaintiff examined himself as P.W.1. He examined three more witnesses as P.W.2 to P.W.4 and marked eight documents as Ex.A1 to A8. Therefore, the suit is not maintainable and the same has to be dismissed. 8. Based on the above said pleadings, the learned Principal District Munsif, Pudukottai, framed the necessary issues and tried the suit. During the trial, the plaintiff examined himself as P.W.1. He examined three more witnesses as P.W.2 to P.W.4 and marked eight documents as Ex.A1 to A8. On the side of the defendant, the defendant examined himself as D.W.1 and he also examined two more witnesses as D.W.2 and D.W.3. Further, he marked 24 documents as Exs.B1 to B24. 9. Having considered all the above documents and evidence, the learned Principal District Munsif, Pudukottai, came to a conclusion that the evidence given by P.W.1 to P.W.3 and documents exhibited on the side of the plaintiff did not prove their case and finally, dismissed the suit. 10. In the appeal filed by the plaintiff, the learned Subordinate Judge, Pudukottai, came to a decision that the vendor of the defendant is not having any right and title over the suit schedule property and decided in favour of the plaintiff and subsequently, allowed the appeal and decreed the suit as prayed for by the plaintiff. 11. This Court at the time of admitting the second appeal has formulated the following issues: (i) Whether patta is a document of title? (ii) Whether the learned Subordinate Judge is correct in reversing the findings of the Trial Court even without framing any mandatory issues required under Order 41 Rule 31 C.P.C.? 12. It is the case of the plaintiff that the suit property is initially owned by one Subbiah. After his demise, his wife Maragatham executed a sale deed in favour of the plaintiff and thereby, the plaintiff is the owner of the suit property. In order to prove the title, on the side of the plaintiff, the sale deed executed in favour of the plaintiff dated 17.12.2004 was marked as Ex.A1. Subsequently, the patta transfer order issued by the Revenue authorities in favour of the plaintiff dated 08.02.2005 was marked as Ex.A2. Further, the patta passbook dated 01.03.2005 issued to the plaintiff was marked as Ex.A3. Adangal and kist receipts stand in the name of the plaintiff were also marked as Exs.A4 and A5 respectively. Subsequently, the patta transfer order issued by the Revenue authorities in favour of the plaintiff dated 08.02.2005 was marked as Ex.A2. Further, the patta passbook dated 01.03.2005 issued to the plaintiff was marked as Ex.A3. Adangal and kist receipts stand in the name of the plaintiff were also marked as Exs.A4 and A5 respectively. Moreover, the receipt issued by revenue authorities for the suit land dated 24.04.2007 and the adangal, which stands in the name of the predecessor of the plaintiff dated 16.12.2005 were also marked as Exs.A7 and A8 respectively. Those documents are of the year 2004 and 2005-2007. According to the plaintiff, the husband of Maragatham was the owner of the suit property. But, in order to prove the same, on the side of the plaintiff, a title deed stand in the name of the husband of the vendor is not marked. 13. The learned counsel appearing for the appellant/defendant contended that the patta is not a document of title. He further contended that it is settled preposition of law that the entry made in the patta is nothing, but, an opinion expressed by the Revenue Officials and not more than that. 14. To substantiate his contention, the learned counsel relied upon a Judgment of this Court rendered in the case of Guruvammal vs. Subbiah Naicker reported in 1999 (3) CTC 650 , wherein, this Court relied upon a Judgment of the Hon'le Apex Court rendered in the case of Sankalchan Jaychandbhai Patel and others vs. Vithalbhai Jaychandbhai Patel and others) reported in 1996 (6) SCC 433 , in which, the Hon'ble Apex Court held that mutation of entries are done to enable State to calculate revenue from persons, who are in possession of the property and that the right, title and interest as to the property should be established, dehors the entries; that the entries are only one of the modes of proof of the enjoyment of the property and mutation entries do not create any title or interest therein. 15. Following the principles laid down by the Hon'ble Apex Court as cited supra, this Court is of the view that though the plaintiff purchased the property under the sale deed dated 17.12.2004 and made mutation of entries in revenue records, the same does not confer any right over the suit schedule property to the plaintiff. 16. 15. Following the principles laid down by the Hon'ble Apex Court as cited supra, this Court is of the view that though the plaintiff purchased the property under the sale deed dated 17.12.2004 and made mutation of entries in revenue records, the same does not confer any right over the suit schedule property to the plaintiff. 16. It is the case of the defendant that the suit property was originally purchased by one Natesan Servai from one Venkatachalam Chettiar, under the sale deed on 06.02.1955, a copy of which was exhibited as Ex.B1. In the year 2005, mutation was effected in 'A' register and subsequently, the name of said Natesan Servai was entered in adangal extract. More than that, on 16.01.1991, the said Natesan Servai had executed a power deed in favour of one Ramaswamy, who is the uncle of the vendor of the plaintiff. Before the demise of Natesan Servai on 25.04.1993, one Vasudevan, who is the son of deceased Natesan Servai had given a power of attorney in favour of the defendant on 16.08.2005 under Ex.B9. Thereafter, the defendant filed an application before the Revenue Authority, based on which, the name of the plaintiff has been changed in the revenue records by entering the name of Vasudevan. 17. A perusal of Ex.B5 would go to show that on 07.10.1994 itself, the patta pertaining to the suit land has been changed in favour of Vasudevan. 18. Accordingly, on a comparison of the documents adduced on either side, it establishes that the defendant is having better title than that of the plaintiff. 19. As rightly contended by the learned counsel appearing for the appellant/defendant, by relying upon the Judgment rendered by the Hon'ble Apex Court, the patta is not a document for title. But, here is the case that the plaintiff purchased the property only based on the patta and not on other documents. In fact, during the time of examination of the plaintiff as P.W.1, he has stated that he has not obtained any encumbrance certificate to the suit schedule property. More than that, the reason for not obtaining the encumbrance certificate before purchasing the suit schedule property was not explained by the plaintiff. 20. In fact, during the time of examination of the plaintiff as P.W.1, he has stated that he has not obtained any encumbrance certificate to the suit schedule property. More than that, the reason for not obtaining the encumbrance certificate before purchasing the suit schedule property was not explained by the plaintiff. 20. The contention raised by the plaintiff/respondent herein is that in order to show the title of the suit property, on the side of the defendant, a copy of the sale deed dated 06.02.1955 executed in favour of Natesan Servai was marked, without mentioning the reason for non-production of original title deed. 21. Now, for considering the said argument, it is necessary to see the relevancy of sale deed, which stands in the name of the Natesan Servai. Though the said sale deed was executed in the year 1955, it is not disputed by anybody upto 2004. In the said circumstances, since the said document is 30 years old one, we cannot come to the conclusion that the said document is not having any reliability. 22. The learned counsel appearing for the defendant/appellant would further contend that the plaintiff filed a suit for the relief of injunction alone, the facts and circumstances of the case establish that the title of plaintiff is under cloud. So, it is necessary for the plaintiff to amend the prayer in the suit, by asking the relief of declaration. But, without asking any amendment, the plaintiff continued the suit, which is unsustainable in law and therefore, the relief asked by the plaintiff is not maintainable. 23. On the other hand, the learned counsel appearing for the plaintiff/respondent pointed out that a person, who is in a settled possession of property, cannot be vacated without any due process of law. Since the settled possession of the property is proved by the plaintiff, the suit filed for the relief of injunction is maintainable. 24. In order to appreciate the said contention, it is necessary to see the decision of the Hon'ble Apex Court rendered in the case of Anathula Sudhakar vs. P.Buchi Reddy (Dead) by LRs. & others ( 2008 (6) CTC 237 ), wherein, it has been held as under: “Where plaintiff is in lawful or peaceful possession of property and such possession is interfered by defendant, suit for an injunction simpliciter will lie. & others ( 2008 (6) CTC 237 ), wherein, it has been held as under: “Where plaintiff is in lawful or peaceful possession of property and such possession is interfered by defendant, suit for an injunction simpliciter will lie. But person in wrongful possession is not entitled to injunction against rightful owner.” 25. In the present case on hand, the plaintiff is in possession of the suit schedule property by way of purchasing the said property under the sale deed dated 17.12.2004. On the other hand, on the side of the defendant, a copy of the sale deed executed in favour of Natesan Servai was marked as Ex.B1 and the said sale deed is of the year 1955. From the above, it clearly shows that only after 50 years from the date of purchase of the suit property by Natesan Servai, the plaintiff purchased the said property from one Maragatham. Once the property stands in the name of Natesan Servai, it is the duty of the plaintiff to prove that how the title has been changed in the name of one Maragatham. In order to prove the same, there is no document on the side of the plaintiff in respect of the title owned by the vendor of the plaintiff. Therefore, it is clear that the title of the vendor of the plaintiff is under cloud. Hence, the plaintiff has to file the suit for declaration and not for injunction. 26. In this regard, the Hon'ble Apex Court, in the above referred case, I.e. Anathula Sudhakar vs. P.Buchi Reddy (Dead) by LRs. & others ( 2008 (6) CTC 237 ), made observations. The relevant observation read as under: “Where plaintiff is in possession but his title to property is in dispute or under cloud or where defendant asserts title and there is also threat of dispossession, plaintiff must sue for declaration of title and consequential injunction. Where title of plaintiff is under cloud or in dispute and he is not in possession or not able to establish possession, necessarily plaintiff will have to file Suit for declaration, possession and injunction. A cloud is said to raise over a person's title when there is some defect in his title to property or when some prima facie right of third party over it, is made out or shown.” 27. A cloud is said to raise over a person's title when there is some defect in his title to property or when some prima facie right of third party over it, is made out or shown.” 27. Applying the said principle, as rightly pointed out by the learned counsel for the defendant/appellant, it is necessary for the plaintiff to prove his title by filing a suit seeking for the relief of declaration of title. In fact, in the written statement filed by the defendant, he denied the tile of the plaintiff. Even after knowing the same, the plaintiff has not taken any steps to amend the plaint. 28. It is the case of the plaintiff that after the purchase of the suit property, the plaintiff made improvements in the suit land by putting up PVC pipe line for the purpose of doing agricultural work, which shows that he is in settled possession of the property. In this aspect, it is to be noted that during trial, the trial Court appointed an Advocate Commissioner to inspect the suit property and the Commissioner had also filed his report. In this connection, the report filed by the Advocate Commissioner shows that the pipe line found in the suit land was connected with the bore well, which situates in the land of the defendant and therefore, the plaintiff cannot claim that he made improvements in the suit schedule property, by digging up the bore well and putting up PVC pipe. Even though the trial Court has not framed a specific issue in this regard, the said fact creates a doubt over the plaintiff's possession. Thus, in the light of the above said discussion, the substantial questions of law 1 and 2 are decided in favour of the appellant. 29. For the above said reason, this appeal deserves to be allowed and the Judgment and Decree passed by the First Appellate Court is liable to be set aside. 30. Accordingly, the Second Appeal is allowed and the Judgment and Decree dated 19.08.2008 made in A.S.No.47 of 2008 on the file of the learned Subordinate Judge, Pudukottai, is hereby set aside. No costs. Consequently, connected miscellaneous petition is closed.