Madras High Court
C.Muthuselvi vs R.Vanaja on 11 April, 2022
S.A.(MD)No.562 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.562 of 2014
and
M.P.(MD)No.1 of 2014
C.Muthuselvi ... Appellant / Appellant / 5th Defendant
-Vs-
R.Vanaja ... Respondent / Respondent / 7th Plaintiff
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 25.03.2014 made in A.S.No.
22 of 2012 on the file of the Subordinate Judge, Palani confirming the
judgment and decree dated 29.02.2012 made in O.S.No.95 of 2004 on the
file of the District Munsif Court, Palani.
For Appellant : Mrs.N.Krishnaveni, Senior Counsel
for Mr.P.Thiagarajan
For Respondent : Mr.S.Anand Chandrasekar
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S.A.(MD)No.562 of 2014
JUDGMENT
The 5th defendant in O.S.No.95 of 2004 on the file of the District
Munsif Court, Palani is the appellant in this second appeal.
2.The suit was filed by the plaintiffs 1 to 6 on 29.12.1998 for
declaration and recovery of possession from the defendants 1 to 4.
During the pendency of the suit, the appellant purchased the suit property
from the first defendant vide sale deed dated 07.11.2003 (Ex.B8) while
the respondent herein purchased it from the plaintiffs 1 to 6 vide sale
deed-Ex.A7 dated 20.12.2002. The appellant as well as the respondent
must have been imbued with a sense of adventure and risk because
neither of the vendors had any title deed in their favour. Thereafter, the
plaint was amended and relief was sought for declaring that the suit
property belongs to the 7th plaintiff and for recovery of possession from
the 5th defendant.
3. The case of the plaintiffs can be summarized as follows:-
The suit property is comprised in Survey No.19/2C in
Sivagiripatti Village in Palani Taluk and measures an extent of 7
cents. It originally belonged to one Periyaperumal Thevar and
Chinnaperumal Thevar. The plaintiffs 1 to 6 are their descendants.
The plaintiffs were in possession of the suit property. They were
also paying kist therefor. The property stood in their names. While
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S.A.(MD)No.562 of 2014
so, in the year 1996, the first defendant committed trespass and
forcibly entered the suit property. In the year 1998, the suit for
declaration and recovery of possession was instituted. During the
pendency of the suit, the property was sold in favour of the 7th
plaintiff and thereafter, the plaint was also appropriately amended.
4.The defendants filed written statement controverting the plaint
averments. Based on the divergent pleadings, the trial court framed the
necessary issues. The 7th plaintiff examined herself as P.W.1. One
Rajalingam was examined as P.W.2. Ex.A1 to Ex.A16 were marked on the
side of the plaintiffs. On the side of the defendants, two witnesses were
examined. Ex.B1 to Ex.B8 were marked. An Advocate Commissioner was
appointed and his report and plan were marked as Ex.C1 & Ex.C2. After
consideration of the evidence on record, the trial court by judgment and
decree dated 29.02.2012 decreed the suit as prayed for. Aggrieved by the
same, the 5th defendant filed A.S.No.22 of 2012 before the Sub Court,
Palani. By the impugned judgment and decree dated 25.03.2014, the
appeal was dismissed and the decision of the trial court was confirmed.
Challenging the same, this second appeal came to be filed. Though the
second appeal was filed in the year 2010, only notice was ordered and it
has not been admitted till date.
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S.A.(MD)No.562 of 2014
5.The learned Senior counsel appearing for the appellant reiterated
all the contentions set out in the memorandum of grounds and called upon
this Court to frame substantial questions of law and admit the second
appeal and then take it up for disposal. The learned Senior counsel
pointed out that the defendants 1 to 4 were admittedly in possession of
the suit property and by virtue of purchase from the first defendant, the
appellant is presently in possession of the suit property. She is entitled to
defend the same against everyone in the world except one who is having
a better title. Relying on the decision of the Hon'ble Supreme Court
reported in (2014) 2 SCC 269 (Union of India vs. Vasavi
Coop.Housing Society Ltd), the learned Senior counsel contended that
entries in revenue records would not confer any title and that the plaintiff
has to succeed only on the strength of his case and not on the weakness
of the case set up by the defendants in a suit for declaration of title and
possession. The plaintiffs 1 to 6 did not enter the witness box. The core
argument of the learned Senior counsel appearing for the appellant is that
the courts below have chosen to erroneously anchor their decision entirely
on Ex.A4 patta. Since Ex.A4 is not a title document, it cannot be the
basis for granting decree in favour of the plaintiffs.
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S.A.(MD)No.562 of 2014
6.Per contra, the learned counsel appearing for the respondent
submitted that no case for interference has been made out.
7.I carefully considered the rival contentions and went through the
evidence on record. It is true that the appellant lost before the courts
below. The second appeal has also not been admitted. Yet I cannot
choose the easy and lazy option of handing down a summary dismissal
with an observation that no substantial question of law arises for
determination. I have seen quite a few judgments of Justice
K.Veeraswami showing the door to the appellants containing just a couple
of sentences. I must however remark with a bit of envy in my heart that
such luxury is of course not available to this generation of high court
judges. In Hasmat Ali vs. Amina Bibi and Ors. (29.11.2021 :
MANU/SC/1160/2021), the Hon'ble Supreme Court has laid down the
manner in which the jurisdiction under Section 100 of CPC has to be
exercised :
“13.Section 100 of the CPC provides for a right of second
appeal by approaching a High Court and invoking its aid and
interposition to redress error(s) of the subordinate court,
subject to the limitations provided therein. An appeal under
Section 100 of the CPC could be filed both against the
‘concurrent findings’ or ‘divergent findings’ of the courts below.
Sub-section (1) of Section 100 of the CPC states that a second
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S.A.(MD)No.562 of 2014
appeal would be entertained by the High Court only when the
High Court is satisfied that the case ‘involves a substantial
question of law’. Therefore, for entertaining an appeal under
Section 100 of the CPC, it is immaterial as to whether it is
against ‘concurrent findings’ or ‘divergent findings’ of the courts
below. It is needless to state that even when any concurrent
finding of fact is appealed, the appellant is entitled to point out
that it is bad in law because it was recorded de hors the
pleadings, or it was based on no evidence or it was based on
misreading of material documentary evidence or it was
recorded against the provision of law or the decision is one
which no Judge acting judicially could reasonably have reached.
Once the High Court is satisfied, after hearing the appeal, that
the appeal involves a substantial question of law, it has to
formulate that question and direct issuance of notice to the
respondent.
14.In case the appeal does not involve any substantial
question of law, the High Court has no other option but to
dismiss the appeal. However, in order to come to a conclusion
that the appeal does not involve any substantial of law, the
High Court has to record the reasons. Giving reasons for the
conclusion is necessary as it helps the adversely affected party
to understand why his submissions were not accepted. The
Court must display its conscious application of mind even while
dismissing the appeal at the admission stage. In our view, the
High Court cannot dismiss the second appeal in limine without
assigning any reasons for its conclusion.”
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S.A.(MD)No.562 of 2014
8.Having reminded myself of what I have to do, let me examine the
contentions advanced on either side in the light of the evidence on record.
It is true that Ex.A4 has been made the foundation for granting relief to
the respondent herein. As rightly pointed out by the learned counsel
appearing for the respondent, Ex.A4 has not at all been discredited in the
cross-examination of P.W.1. Except making some suggestions as to the
knowledge of P.W.1 regarding lineage and biological relationship of the
plaintiffs 1 to 6 with those whose names are appearing in Ex.A2 & Ex.A3,
there has been no attack on the genuineness of Ex.A4. Ex.A4 pertains to
fasli 1402 ie., 1992. Section 35 of the Indian Evidence Act, 1872 states
that an entry in any public or other official book, register or record
stating a fact in issue or relevant fact and made by a public servant in the
discharge of his official duty is itself a relevant fact. Ex.A4 has been
signed by the Head Quarters Dy.Tahsildar, Palani. Pattas are evidence of
possession (Donganna v. Jammanna, AIR 1931 Mad 613). I can
therefore safely assume that in the year 1992, the plaintiffs 1, 2, 3, 5 & 6
whose names appear in Ex.A4 were in possession of the suit property.
Though the defendants made a tall claim that they were in possession of
the suit property for more than 35 years prior to the filing of the suit,
there is no proof in support of such claim. The first defendant filed O.S
No.657 of 1996 on the file of the District Munsif Court, Palani seeking
injunction in respect of the suit property but it was dismissed as withdrawn
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S.A.(MD)No.562 of 2014
in the year 2010 (Exs.A13 and A14). I conclude that it has been
established that the plaintiffs 1 to 6 were originally in possession of the
suit property and that they were dispossessed by the defendants 1 to 4 in
the year 1996.
9.Can Ex.A4 be considered as a document evidencing title?. The
Hon'ble Supreme Court in the decision reported in (2007) 8 SCC 361
Syndicate Bank Vs. Estate Officer & Manager, A.P.I.I.C Ltd) quoted
Mulla's Transfer of Property Act wherein the learned author has opined
that in a large number of cases, patta of land has been considered to be a
document of title depending of course on the circumstances under which it
had been given. The issue that arose in the said case was whether on the
strength of allotment letter, license to use the land and possession,
mortgage can be created even without any sale deed having been
executed in favour of the mortgagor. The Hon'ble Supreme Court felt that
the case involving interpretation of Section 58 (f) of the Transfer of
Property Act which provides for mortgage by deposit of title deeds gave
rise to important questions of law and referred the matter for
consideration by a larger Bench so that an authoritative pronouncement
can be made. The reference was taken up after 14 years!. But the larger
Bench in its decision reported in (2021) 3 SCC 736 felt that the
reference need not be answered in the peculiar facts and circumstances of
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S.A.(MD)No.562 of 2014
the case since the State of Andhra Pradesh and its successor were
estopped from challenging the validity of the mortgage. In the order
making reference, we come across the decision of the Hon'ble Division
Bench of the Madras High Court reported in (1925) 21 LW 538 (The
Official Assignee v. Badrinarayan Doss). Justice V.V.Srinivasa
Iyengar after formulating the question as to whether equitable mortgage
can be created by deposit of patta answered as follows :
It is true that a patta has been held in various cases
not to be a title deed ..... So far as South India is
concerned, there is no doubt that a patta has generally
been regarded as a document of title. I use the words
"documents of title" and not "title deed," because it may be
that there is some plausible distinction between the two
expressions. I have no hesitation in holding that a patta has
always been regarded by people in this country as a
document of some evidence with regard to possession if not
also to title. The original meaning of the word "patta"
appears to have been ' a lease, ' but it has always been
used to indicate what is called occupancy right, that is,
whether it be under a landlord who is a Zamindar or under
the Government as suzerain occupancy right, which is really
recognised to be practically proprietary right in the soil.
Having regard to this meaning that the expression "patta"
has acquired among the landowning classes, it will lead to
serious results if it should be held that a patta is not such a
document of title as by depositing which an equitable
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S.A.(MD)No.562 of 2014
mortgage could not be created. As a matter of fact, I am
not at all sure whether in respect of a very large percentage
of property in the country, there are any documents of title
at all other than pattas.
I therefore hold that the learned Judge was right in
holding that a patta was such a document as by depositing
which an equitable mortgage could be created.”
The following words of the Hon'ble Chief Justice (V.M.Coutts Trotter, C.J.)
would humble anyone reading them :
“Finally, I have to say this. As this is a subject-matter
with which I am very unfamiliar, I should require very grave
reasons indeed to dissent from the opinion of two of my
colleagues to whom the subject is familiar and who are
acquainted with the land tenures of this Presidency in a way
in which I cannot pretend to be.”
10.In the decision reported in 2017 (1) CTC 67 (M.Karuppiah
Thevar Vs. John Victor), it was held that in the absence of any evidence
to the contrary, a revenue record like patta or chitta might have relevancy
and assume more significance or importance. Section 6 of the Tamil
Nadu Patta Passbook Act, 1983 is as follows :
“6.Entries in the patta pass book to be prima
facie evidence of title.- The entries in the patta book
issued by the Tahsildar under section 3 shall be prima
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S.A.(MD)No.562 of 2014
facie evidence of title of the person in whose name the
patta pass book has been issued to the parcels of land
entered in the patta pass book, free of any prior
encumbrance, unless otherwise specified therein.”
Of course, the said Act applies only to agricultural lands.
11.Salmond on Jurisprudence opines that in English Law possession
is a good title of right against anyone who cannot show a better. A
wrongful possessor has the rights of an owner with respect to all persons
except earlier possessors and except the true owner himself. By marking
Ex.A4, it has been proved that plaintiffs 1 to 6 were originally possessing
the suit property. Ex.A5 is also in consonance with the entries made in
Ex.A4. The Advocate Commissioner's report and plan also indicated that
in the suit property, there was only a newly constructed room and that it
was enclosed by a newly put up compound wall. It must also be noted
that the first defendant filed O.S.No.657 of 1996 only in respect of Survey
No.19/1b1 and that only later, it was amended and Survey No.19/2c (the
suit property) was included. The appellant is a purchaser of the suit
property during the pendency of litigation. His vendor had trespassed into
the suit property which was till then in the possession of the plaintiffs 1 to
6. That is why, the courts below concurrently came to the conclusion that
the plaintiffs have established a better title and that therefore the
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S.A.(MD)No.562 of 2014
respondent herein was entitled to the relief of declaration and recovery of
possession. The reasoning of the courts below is sound and no case has
been made out for interference. No substantial question of law arises for
determination. The impugned judgment and decree are confirmed. The
second appeal is dismissed. No costs.
11.04.2022
Internet : Yes/No
Index : Yes/No
skm
To
1.The Subordinate Judge, Palani.
2.The District Munsif Court, Palani.
Copy to : The Section Officer, Vernacular Records,
Madurai Bench of Madras High Court, Madurai.
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S.A.(MD)No.562 of 2014
G.R.SWAMINATHAN, J.
skm
Judgment made in
S.A.(MD)No.562 of 2014
11.04.2022
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