Madras High Court
Ponniah @ Ponnusamy vs R.C.Diosces Sivagangai on 11 March, 2021
S.A.No.982 of 1997
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
S.A.No.982 of 1997
and
C.M.P. No.9490 of 1997
Ponniah @ Ponnusamy ...Appellant/Respondent/Defendant
Vs.
R.C.Diosces Sivagangai,
Rep. by its Procerator and
Power Agent A.Eganasi,
S/o. Arulananth, Avudai Poilkari Village,
O.Chiruveyal Village,
Karaikuadi Taluk ..Respondent/Appellant/Plaintiff
PRAYER: This Second Appeal is filed under Section 100 of the Civil
Procedure Code, against the decree and judgment passed in A.S.No.20 of
1992 on the file of the Subordinate Judge, Devakottai dated 31.01.1995
allow the appeal setting aside the judgment and decree made in O.S.No.269
of 1988 on the file of the District Munsif Court, Devakottai dated
20.10.1991.
For Appellants : Mr.M.P.Senthil
For Respondent : Mr.S.Ramesh
for Mr.V.Raghavachari
JUDGMENT
Aggrieved over the reversal finding of the First Appellate Court
decreeing the suit filed for declaration and for recovery of possession, the
present second appeal has been filed.
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S.A.No.982 of 1997
2. For the sake of convenience, the parties are referred to herein,
as per their rank before the Trial Court.
3.The brief facts, leading to the filing of this Appeal Suit, are as
follows:-
The plaintiff is the present parish priest of Karaikudi Parish, in
which there is a village called Peyanpatti. The suit property for an extent of
17 acres 3 cents in Survey No.8/3 originally belonged to one Antony Udayar
S/o. Santhiyagu Udayar. The suit property was also included in patta No.
535. Antony Udayar died on 14.09.1985 leaving behind his three sons
Rayappan @ Singarayan, Santhiyagu and Gnanaprakasam. The entire
property was enjoyed by Antony Udayar and his sons after the death of
Antony Udayar. Besides they also perfected title by adverse possession.
The sons of the Antony Udayar sold the suit property in favour of the
predecessor of the plaintiff for the church on 23.04.1986. Patta also
transferred in the name of the plaintiff in patta No.413. The defendant has
no title or interest in the said property. The defendant has recently
trespassed into the property and put up a thatched house to an extent of
20*12 ft., out of 47 cents in the suit property. The other area is vacant.
Hence the suit is filed for declaration of the title of the property and
recovery of possession.
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S.A.No.982 of 1997
4. It is to be noted that the originally the suit has been laid for the
relief of declaration and for permanent injunction. Though the suit was
filed in the year 1988, by an order dated 22.02.1993, the suit was amended
to include the relief of recovery of possession
5. Before the trial Court, on the side of the plaintiff P.W.1 and P.W.2
were examined and Exs.A1 to A25 were marked and on the side of the
defendants D.W.1 and D.W.2 were examined and Exs.B1 to B22 were
marked.
6. Disputing the claim of the plaintiff, it is the contention of the
defendant that the boundaries set out in the plan is not correct and the
entire property was vested with the Government under Act 26 of 1948. The
suit property and the property in the eastern side of the suit property in
Survey No.8/1 were classified as poromboke land. In the north of the suit
property, Shiva temple is situated. The plaintiff was never in possession of
the property at any point of time. Even prior to the settlement, the proeprty
was always classified as Government poromboke. The defendant and his
predecessors were in possession and enjoyment in Survey No.8/1 for an
extent of 50 cents. In the year 1974, the defendant’s father put up a
construction and he is residing in the suit property since then. The suit
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S.A.No.982 of 1997
property never belonged to Antony Udayar. Antony Udayar and others have
filed a suit for bare injunction in O.S.No.124 of 1972 in respect of Survey
No.8/1. The suit has been dismissed holding that the plaintiff had neither
title nor possession. The above suit has reached its finality. When the
matter stood thus, the plaintiff with the collusion of the Revenue Officials
had obtained patta by classifying the land as Survey No.8/3 only for the
purpose of this case. Hence, prayed for dismissal of the suit.
7. Based on the above pleadings, the trial Court has framed the
following issues:-
1.Whether the suit property is situated in Survey No.8/3 or
Survey No.8/1?
2.Whether suit property belongs to the plaintiff?
3. Whether the sit property is a poromboke land?
4.Whether the possession should be granted to the
plaintiff?
5. To what other reliefs the plaintiff is entitled to?
6. Whether the suit is barred by estoppels?
7.Whether the defendant perfected title by adverse
possession over the suit property?
8. Whether the suit is maintainable?
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S.A.No.982 of 1997
8. Based on the evidences and materials, the trial Court has
dismissed the suit mainly on the ground that all the documents filed before
the trial Court in this case were already produced in an earlier suit filed by
the plaintiff’s predecessors in O.S.No.124 of 1972, wherein the Court has
held that those documents are no way connected to Survey No.8/1. The
trial Court in the present suit held that when the civil Court has held that
those documents are not related to Survey No.8/1, subsequent classification
by the revenue authorities to the effect that Survey No.8/3, is not valid. By
holding so, the trial Court has dismissed the suit. Whereas the First
Appellate Court in para No.9, as held that since in a reclassification alone,
the revenue authorities under Ex.A1, has issued patta, the earlier judgment
will not bind on the plaintiff. Therefore, decreed the suit. As against which,
the present second appeal is filed.
9. While admitting the second appeal the following substantial
questions of law have been framed:-
1.Whether Ex.P.25 dated 13.05.1971 would invalidate
the judgment delivered in O.S.No.124 of 1972 and confirm any
legal right to the plaintiff over the property?
2. Can the settlement officers order of granting patta
to other than a person who is not in possession of the property
is valid. Can it bind the person who is in possession and
enjoyment of the property?
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S.A.No.982 of 1997
3. Whether adverse possession be necessary to be
adversed to the real owner and necessary to brought to the
knowledge of the real owner, it is sufficient if the possession is
notorious and publicity and against the interest of the real
owners?
10. The learned counsel appearing for the appellant vehemently
contended that the suit has been filed originally for declaration and
injunction. Thereafter, in the year 1993, the suit was amended for recovery
of possession. It is the contention that earlier a suit has been filed in
O.S.No.124of 1972 by the plaintiff’s predecessors in respect of same Survey
No.8/1, as against the elder brother of the defendant herein seeking bare
injunction. However, the Court in the above judgment had held that the
plaintiff has not established title nor possession in respect of Survey no.8/1
and further held that the defendant’s father was issued a B-Memo and he
was in possession at the relevant point of time. The above suit has been
dismissed and no appeal has been filed as against the same. The earlier
suit has been dismissed in the year 1973 and the present suit has been filed
in the year 1988, more than after 15 years. That apart amendment for
recovery of possession was sought after another five years. The suit has
been filed on basis of Ex.A7, so called patta transfer proceedings by the
Tahsildar, reclassifying the land in Survey No.8/1 as patta land from
poromboke land. Hence, it is the contention that when the civil Court has
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S.A.No.982 of 1997
already decided the issue as to the nature of the properties, the revenue
authorities have no right whatsoever to reclassify the nature of the property,
that too without any notice to the persons, who are in possession of the
property. Hence, it is the contention that the First Appellate Court
judgment is nothing but perverse and it is liable to be interfered.
11. The learned counsel appearing for the respondent submitted
that the Settlement Officer has classified the nature of the property as per
the orders of the Board of Revenue, dated 13.05.1971. Publication to that
effect was also issued and no one has objected for that. Only on proper
enquiry, reclassification has been done as per law. Therefore, it is his
contention that once the land was wrongly classified as poromboke and it
was subsequently set right by the Revenue Officials on proper enquiry, the
earlier judgment of the Court will not operate as res-judicata. Earlier
judgment is based on the classification available on the revenue records.
Therefore, the above judgment cannot be taken as conclusion to decide the
nature of the property. Further, the contention is that the defendant was
not a party to the earlier judgment. Only his elder brother was a party to
the above suit. Hence, he submitted that the First Appellate Court has
rightly concluded that the plaintiff has established title to the suit property
and they purchased the property under Ex.A2, dated 22.04.1986.
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S.A.No.982 of 1997
12. In respect of his submission, he has relied upon the following
judgments:-
1. Vellaiyan and others vs. A/M. Sundaraj Perumal
Devasthanam Managing Trustee [S.A.(MD)No.417 of 2018]
2. Janaki vs. Raja [2020 SCC online Mad 1939]
13. The suit has been filed for declaration and recovery of
possession. The plaintiff traces title on the basis of Ex.A2, said to have been
executed by one Rayappan @ Singarayan and others, who are the sons of
Antony Udayar. The property was originally owned by Antony Udayar.
Thereafter, his sons continued be in possession and sold the same. The
defendant has trespassed into the property recently and hence, the relief of
declaration and recovery of possession was sought. Amendment was sought
in the year 1993 to amend the prayer for recovery of possession. It is to be
noted that the vendor of the plaintiff has filed a suit in O.S.No.124 of 1972
in respect of Survey No.8/1 for an extent of 13 acres. The first defendant in
that suit is the brother of the plaintiff herein. This fact is not in disputed.
The previous suit has been filed for an extent of 13 acres in Survey No.8/1.
Now the present suit is filed only to 47 cents in same survey No.8/1.
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S.A.No.982 of 1997
14. In the earlier judgment, the Civil Court has considered the
nature of the document marked as Ex.B1 filed by the plaintiff and
conclusively, recorded a finding to the effect that those documents are no
way connected to Survey No.8/1 and the above Survey number was
classified as Government Poromboke land. The above judgment was
delivered on 03.11.1973, which has not been challenged by the plaintiff’s
predecessors. It is relevant to note that the civil Court has held that the
plaintiff’s predecessors have no title to the property nor possession,
particularly in respect of Survey No.8/1. After the above judgment in the
year 1986, the property was conveyed by the same persons, whose
possession was not proved before the civil Court. Therefore, when the
persons had no title at the time of sale of the property in view of the decree
and judgment, which also binds on them, they cannot convey any title.
Therefore, the contention of the plaintiff that they derived title under Ex.A2,
cannot be countenanced.
15. Be that as it may, now the plaintiff tried to establish title on the
basis of survey proceedings, namely Ex.A7. Ex.A7, proceedings when
carefully seen, the plaintiff’s predecessors were given patta in respect of
Survey No.8/1. Though it was originally classified as poromboke land under
Ex.A7, which was reclassified as patta land and patta has been issued in
favour of the plaintiff’s predecessors. It is also relevant to note that no
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S.A.No.982 of 1997
parties, who are in possession of the properties, were heard while
reclassifying the property. This proceedings appear to have been taken
place in pursuant to the general order passed by the Board of Revenue,
which is marked as Ex.A25 dated 13.05.1971. A bare perusal of Ex.A25
makes it very clear that the Board taking note of the fact that large number
of cases in Ramanathapuram District are covered by the term of Kulam
Korvai and there were some wrong classification, has observed that
wherever substantial evidence is placed before the Assistant Settlement
Officer, the Settlement Officer can consider the request of grant of patta not
with standing the earlier order rejecting the said request for grant of patta.
Ex.A25, is with regard to specific area namely, Ramanathapuram. Taking
advantage of the said order, issuing patta to the plaintiff’s predecessors,
particularly when the right was already decided by the Civil Court, cannot
be permitted under law. If such proceedings were allowed to continue and
said proceedings is given license, it will amount to siting over the judgment
of the civil Court.
16. Accordingly, this Court is of the view that the decree of the
First Appellate Court accepting Ex.A1 and granting title and declaration in
favor of the plaintiff is not according to law. As indicated above in the
earlier suit, the brother of the defendant is also a party. The earlier
judgment though would not bind on the defendant, but certainly bind on the
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S.A.No.982 of 1997
plaintiff. Since the plaintiff’s predecessors are the plaintiff in the earlier
suit., their right has been declined under the earlier judgment, in which all
the documents were negatived by the civil Court. When such being the
position, issuing patta by the Revenue Authorities cannot be permitted in
the eye of law. Therefore, the judgment of the First Appellate Court is liable
to be interfered with. The Court has held that B-Memo was also issued in
favor of the defendant’s father and that itself clearly probabilise the defence
theory that from the year 1974 onwards they were in possession of the
property. If really they are not in possession of the property, there was no
need for the plaintiff’s predecessor to file a suit in O.S.No.124 of 1978. The
above suit has been dismissed on 1978 itself. Therefore, filing of the
present suit in the year 1988 alleging as if the defendant has made recent
encroachment is highly improbable. Further, amendment for recovery of
possession has been made after five years of filing of the suit. In fact, the
defence theory that they are in possession of the property from the year
1974 is more probable. Therefore, even if the title is established in favour
of the plaintiff, right to recover the property is lost by operation of law. For
all these facts, this Court is of the view that the judgment of the First
Appellate Court is nothing but perverse. Accordingly, all the points are
answered.
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S.A.No.982 of 1997
17. In the result, this second appeal is allowed and the judgment of
the First Appellate Court is set aside and the decree and the judgment of
the trial Court is restored. No costs. Consequently, connected
miscellaneous petition is closed.
11.03.2021
Index : Yes/No
Internet : Yes/No
ta
To
1.The Subordinate Judge, Devakottai
2.The District Munsif Court, Devakottai
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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S.A.No.982 of 1997
N.SATHISH KUMAR, J.
ta
Judgment made in
S.A.No.982 of 1997
11.03.2021
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