Madras High Court

Haridhas vs Vijayakumar on 1 October, 2021

                                                                             S.A.(MD)No.1031 of 2006


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  DATED : 01.10.2021

                                                       CORAM

                            THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                              S.A.(MD)No.1031 of 2006

                Haridhas                                                ... Appellant


                                                         Vs.

                1.Vijayakumar
                2.Padmini
                3.Ragini
                4.Vasini
                5.Rupini                                                ... Respondents


                Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
                against the judgment and decree of the Sub Court, Padmanabhapuram dated
                14.09.2004 made in A.S.No.95 of 2002 confirming the Judgment and decree of
                the District Munsif cum Judicial Magistrate, Eraniel dated 11.04.2002 in
                O.S.No.31 of 2001.


                                  For Appellant    : Mr.N.Dilip Kumar

                                  For Respondents : Mr.V.M.Balamohanthambi



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                                                                              S.A.(MD)No.1031 of 2006


                                                  JUDGEMENT

The Defendant in O.S.No.31 of 2001 on the file of the District Munsif

cum Judicial Magistrate, Eraniel is the appellant in this second appeal. The

said suit was filed by the respondents herein seeking the relief of permanent

injunction. The case of the plaintiffs is that they are the children of one

Ayyappan Nair. Their father executed Ex.A1/settlement deed dated 20.06.1995

settling the suit property in their favour. The suit property originally belonged

to one Subbaiah Pillai, S/o.Neelakanda Pillai. Vide Ex.A2/mortgage deed

dated 20.09.1956, the said Subbaiah Pillai mortgaged 7 cents of lands in favour

of their father. Vide Ex.A4/lease deed dated 17.07.1979, the said Subbaiah

Pillai leased out seven more cents of land in favour of their father. After taking

possession of 7 cents of land, which is a part of the suit property, their father

put up construction and was living therein. It was bearing Door No.33/90 and

the present Door Number is 11/90. It is also having electricity connection. The

plaintiffs' father dug a well and has also fenced the same. Whileso, one

Subbiramani filed O.S.No.217 of 1980, on the file of the District Munsif

Court, Padmanabhapuram against the father. An advocate commissioner was

appointed in the said case and he submitted his report and plan. The said suit

came to be dismissed on 17.09.1980. Based on the settlement deed, the

plaintiffs obtained patta from the Jurisdictional Tahsildar. That was challenged

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S.A.(MD)No.1031 of 2006

by the appellant herein before the Revenue Divisional Officer. The Revenue

Divisional Officer cancelled the patta issued in favour of the plaintiffs.

Challenging the same, the plaintiffs' father filed an appeal before the District

Revenue Officer. The District Revenue Officer confirmed the decision of the

Revenue Divisional Officer. After knowing about the order passed by the

Revenue Divisional Officer, Padmanabhapuram, the defendant/appellant herein

attempted to trespass into the suit property. Therefore the plaintiffs filed a

police complaint. Not with standing the warning issued by the local police, the

defendant made another attempt to enter into the suit property. Hence, the

plaintiffs had to file the suit in question. The defendant filed a detailed written

statement controverting the plaint averments. Based on the rival pleadings, the

trial Court framed the necessary issues.

2.The first plaintiff examined himself as P.W.1 and Exs.A1 to A21 were

marked. The defendant examined himself as D.W.1 and one Ramasamy was

examined as D.W.2 and Exs.B1 to B15 were marked.

3.After a consideration of the evidence on record, the Trial Court by

judgment and decree dated 11.04.2002, decreed the suit by restraining the

defendant from interfering with the plaintiffs' possession and enjoyment of the

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S.A.(MD)No.1031 of 2006

suit property except due process of law. Aggrieved by the same, the defendant

filed A.S.No.95 of 2002 before the Sub Court, Padmanabhapuram. The first

appellate Court by the impugned judgment and decree dated 14.09.2004,

confirmed the decision of the trial Court and dismissed the appeal. Challenging

the same, this second appeal came to be filed.

4.The Second Appeal was admitted on the following substantial

questions of law:-

“i) Whether the trial Court as well as the first appellate Court were correct in acting on an advocate commissioner's report in some other case in O.S.No.217 of 1980 to which the appellant is not a party?

ii) Whether voter's list is enough to hold that a person is in possession of the place which is stated as their address in the said voters list?

iii) Whether an injunction can be granted to the plaintiff against the title holder of the property after finding that the appellant herein/defendant therein had right over suit property?

iv) Whether the gift deed and mortgage deed based on which the suit was decreed, are valid documents in the eye of law and can they form a basis for decreeing the suit?

v) Whether the patta proceedings and subsequent confirmation in appeal by D.R.O. Will not prove the possession and right of the appellant?”

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S.A.(MD)No.1031 of 2006

5.Heard the learned counsel on either side.

6.The learned counsel appearing for the appellant reiterated all the

contentions set out in the memorandum of grounds and called upon this Court

to answer the substantial questions of law in favour of the appellant and set

aside the impugned judgment and decree and allow the appeal and dismiss the

suit.

7.Per contra, the learned counsel appearing for the respondents herein

submitted that the impugned judgment and decree do not warrant any

interference. He stressed the fact that what has been granted is only protection

against the illegal or coercive dispossession . The plaintiffs have clearly

established that they are in possession of the suit property. He drew my

attention to the fact that the defendant himself in his testimony admitted the

possession of the plaintiffs. The plaintiffs' father was inducted in possession as

early as in the year 1956. A residential house has been put up. The plaintiffs

have been residing in the suit property for more than half a century. Their

names have been entered in the voters list. He would also point out that even in

the order passed by the Revenue Divisional Officer whereby the patta granted

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S.A.(MD)No.1031 of 2006

in favour of the plaintiffs was set aside and their possession has been affirmed.

The learned counsel drew my attention to the decision reported in 2004 (1)

SCC 769 (Rama Gowda Vs M.Varadappa Naidu).

8.The learned counsel for the plaintiffs was at paints at point out that

even a trespasser cannot be thrown out, if it can be shown that he is in settled

possession. The case on hand is one of settled possession. He called upon this

Court to answer the substantial questions of law against the appellant and

dismiss the second appeal and confirm the decision of the Court below.

9.I carefully considered the rival contentions and went through the

evidence on record. The suit property measures an extent of 14 cents. It is

comprised in R.S.No.288/8. The Plaintiffs have not given the corresponding old

survey number precisely. There was no old S.No.58/42. It was either S.Nos.

58/42A or 58/42B. I do not know as to why the plaintiffs have merely

mentioned the old survey number as S.No.58/42. Be that as it may, the

plaintiffs claim of possession and enjoyment as well as title over the suit

property is based on Ex.A1/settlement deed dated 20.06.1995. Based on

Ex.A1/settlement deed, the plaintiffs also obtained patta in their favour. When

the defendant challenged the issuance of patta in favour of the plaintiffs, the

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S.A.(MD)No.1031 of 2006

Revenue Divisional Officer, Padmanabhapuram, issued proceedings dated

22.07.1998 cancelling the same. The order of the Revenue Divisional Officer,

Padmanabhapuram, has been marked as Ex.B6. When the plaintiffs' father filed

an appeal before the District Revenue Officer, Padmanabhapuram, the order of

the Revenue Divisional Officer was confirmed vide proceedings 24.11.2000

(Ex.A16). The learned counsel appearing for the plaintiffs would want me to

take note of the finding rendered in their favour by the revenue authorities. I

am clearly of the view the scope and appeal before the Revenue Divisional

Officer as well as District Revenue Officer, Padmanabhapuram, was whether

granting patta in favour of the plaintiffs was correct or not. Having rightly

found that patta could not have been issued in favour of the plaintiffs and

having rightly cancelled the same, both the authorities went beyond their brief

in giving a finding that the plaintiffs are in possession of the suit property.

Hence, Ex.A16 as well as Ex.B6 will not come to the rescue of the plaintiffs.

10.The plaintiffs have marked Ex.A2/mortgage deed 20.09.1956 and

Ex.A4/lease deed dated 17.07.1979. Under Ex.B2, the plaintiff's father was

inducted into possession in respect of 7 cents of land. Under Ex.A4/lease deed

dated 17.07.1979, Subbiah Pillai is said to have leased out 7 cents more. On a

reading of Ex.A4, it is obvious that Subbiah Pillai has leased out 1.55 Acres of

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S.A.(MD)No.1031 of 2006

land in favour of the plaintiffs' father. A reading of Ex.A4 would show that

Subbiah Pillai had created a lease deed for a period of 6 years. It obviously

required registration. Since it is an unregistered document, it could not have

been admitted in evidence. I therefore eschew Ex.A4 out of consideration.

11.The plaintiffs have marked Exs.A6 to A12 to show that they have

been remitting property tax. Exs.A6 to A12 came into existence pursuant to the

issuance of patta in favour of the plaintiffs. Inasmuch as the foundational

document, namely, patta has itself has been cancelled by the orders of Revenue

Divisional Officer and the District Revenue Officer, these documents also do

not deserve any consideration.

12.The Court below committed few other errors. O.S.No.217 of 1980

was instituted by one Subbiramani against the plaintiffs' father namely,

Ayyappan Nair. The said suit was dismissed for default on 17.09.1980. In the

said suit, an advocate commissioner was appointed and his report and sketch,

which were marked as Ex.A14 was relied upon by the Courts below.

Admittedly, the defendant/appellant herein, namely, Haridas was a not party to

O.S.No.217 of 1980. The report and sketch filed by the advocate commissioner

in that suit could not have been marked in the present suit or relied upon.

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S.A.(MD)No.1031 of 2006

During the cross examination of P.W.1, it was suggested that the plaintiff in

O.S.No.217 of 1980 was a stranger, P.W.1 replied that he was working in those

lands. Therefore, there is some force in the contention of the learned counsel

appearing for the appellant that it was a collusive and engineered suit. I

therefore answer the first substantial question in favour of the appellant.

13.It is also seen that Subbiah Pillai through whom the plaintiffs trace

their rights, filed O.S.No.424 of 1981, on the file of the Additional District

Munsif, Padmanabhapuram seeking injunction against the appellant and three

others. Injunction was granted by the first appellate Court. Challenging the

same, the appellant herein filed S.A.No.1166 of 1990 before the High Court of

Madras. The High Court vide judgment and decree dated 04.02.1998 allowed

the second appeal filed by the appellant herein and dismissed the injunction suit

filed by Subbiah Pillai. In the said judgment, the sale deed executed in favour

of the appellant herein were upheld as valid. The judgment decree passed in

S.A.No.1166 of 1990 have been marked as Exs.B2 and B3.

14.The plaintiff's father did not have any title or ownership over the suit

property. Yet without referring to any of antecedent documents, he chose to

execute Ex.A1/settlement deed in favour of the plaintiffs. Having found that

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S.A.(MD)No.1031 of 2006

the plaintiffs' father did not have any title to convey the revenue authorities

rightly set aside the grant of patta, which was issued on the basis of Ex.A1.

Therefore I answer the fourth substantial question of law also in favour of the

appellant.

15.At the same time, as rightly pointed out by the learned counsel

appearing for the respondents, there does exist a residential house in the suit

property. It is enjoying electricity connection. The defendant in his cross

examination admitted the existence of the same. Even according to the

appellant, Subbiah Pillai did have 1/18th share in the property comprised in old

S.No.58/42A. It comes to 3.32 cents. Subbiah Pillai had a brother also.

Together, they had an undivided of 7 cents in old S.No.58/42A. It was this that

was mortgaged in favour of the plaintiffs' father under Ex.A2/mortgage deed

dated 20.09.1956. The plaintiffs' father had put up a house in the land covered

under Ex.A2. As held by the Hon'ble Supreme Court in Rame Gowda's

decision a trespasser, who is in settled position is entitled to protect his

possession even against the true owner. In the case on hand, the plaintiffs

cannot be called as trespassers. Subbiah Pillai and his brother did have

ownership and title over 6.7 cents of land (almost 7 cents in old S.No.58/42A).

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S.A.(MD)No.1031 of 2006

Therefore, I answer the third and fifth substantial questions of law against the

appellant. The judgment and decree passed by the Courts below are modified

and the plaintiffs will be entitled permanent injunction in respect of 7 cents of

land covered under Ex.A2 dated 20.09.1956. Since I have already given a

finding that the plaintiffs do not have any title as such, they cannot be

dispossessed except due process of law in respect of 7 cents of land covered

under Ex.A2. Even the plaintiffs did not claim that they are having absolute

title over the suit property. Their claim was anchored more on their settled

possession. But first appellate Court went beyond the case projected by the

plaintiffs themselves and declared that the plaintiffs are having title. In fact the

first appellate Court chose to grant title based on an earlier suit which was

dismissed for default. The second appeal is partly allowed. No costs.




                                                                                01.10.2021
                Index             : Yes / No
                Internet          : Yes/ No
                ias

Note :In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

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S.A.(MD)No.1031 of 2006

To:

1.The Sub Court, Periyakulam.

2.The District Munsif Court, Andipatti.

Copy to:

The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.

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S.A.(MD)No.1031 of 2006

G.R.SWAMINATHAN, J.

ias

S.A.(MD)No.1031 of 2006