Anbalagan vs A.Takshinamoorthy
2022 Latest Caselaw 8765 Mad

                                                                               SA.No.302 of 2017


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 26.04.2022

                                                       CORAM:

                                   THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                                 SA.No.302 of 2017


                    1.Anbalagan
                    2. Nagarathinam
                    3.Durian @ Boomilingam
                    4.Elumalai
                    5.Sasi
                    6.Selvam
                    7.Raji
                    8.Prabhu
                    9.Kuppammal
                                                                          .. Appellants

                                                        Vs.

                    A.Takshinamoorthy                                     .. Respondent

                    Prayer:- Second Appeal filed under Section 100 of Civil Procedure Code,
                    to set aside the judgement and decree of the learned Principal Subordinate
                    Judge, Tindivanam, dated 12.12.2016 in A.S.No.53 of 2014, thereby
                    reversing the judgement and decree of the learned District Munsif cum
                    Judicial Magistrate, Vanur dated 20.10.2014 in OS.No.131 of 2008.

                                      For Appellants          :   Mr.T.Saikrishnan
                                      For Respondent          :   Mr.S.Kaithamalai Kumaran

https://www.mhc.tn.gov.in/judis
                                                                                    1 Page of 14
                                                                                     SA.No.302 of 2017



                                                      JUDGMENT

1) The appellants are the defendants in the suit in OS.No.131 of 2008

on the file of the District Munsif Court-cum-Judicial Magistrate,

Vannur Taluk, Thindivanam.

2) The respondent in this appeal as plaintiff, filed the suit in

OS.No.131/2008 for declaration of his title to the suit 'A' Schedule

property and for consequential permanent injunction restraining the

defendants/appellants from interfering with the plaintiff's peaceful

possession and enjoyment of the suit properties.

3) The suit 'A' schedule property is described as an extent of 12 cents in

Survey Number 181/22 in Periya Kozhuvari village in Vannur

Taluk. The extent of 6 cents out of total extent of 12 cents in survey

Number 181/22 is described as suit 'B' schedule property.

4) The case of the respondent herein, in the plaint is that the suit

property is the absolute property of the plaintiff. It is his case that

one Muthammal purchased the suit property by a registered sale

Deed dated 11.12.1944 from one Kamatchiammal and the said

Muthammal later executed a registered settlement Deed in favour of

the plaintiff on 29.06.1966, when he was a minor. It is his further https://www.mhc.tn.gov.in/judis 2 Page of 14 SA.No.302 of 2017

case that his father was in the management of the property till he

became major and that the plaintiff became the absolute owner after

attaining majority.

5) It is his specific case that suit 'B' schedule property is part of suit 'A'

schedule property which was obtained by him under the settlement

Deed, which is marked as Ex.A2. Stating that the defendants have

falsely obtained Patta in respect of suit 'B' schedule property and

tried to interfere with the possession of plaintiff, the plaintiff came

forward with the suit for declaration of title and consequential

injunction.

6) The suit was resisted by the appellants, by specifically disputing the

avernments in the plaint. It is the case of the defendants that

Muthammal the predecessor in title of plaintiff, is the wife of one

Koneri and the said Koneri purchased the properties on 11.12.1944,

in the name of his wife. Stating that the said Koneri died leaving

behind his wife one Muthammal and his brother by one Anandan, it

is contended that the plaintiff is the son born through the said

Anandan and Muthammal. The settlement Deed stated to have been

executed by Muthammal in favour of the plaintiff is specifically

https://www.mhc.tn.gov.in/judis 3 Page of 14 SA.No.302 of 2017

denied in the written statement. It is further stated that the entire

suit 'A' schedule property was in the joint possession and enjoyment

of one Sambasivam and Kali. It is further stated that the said

Sambasivam and Kali had divided the suit properties and other

properties orally and in the said oral partition, the suit 'B' schedule

property was allotted to the share of Sambasivam. It is further stated

that the plaintiff's father Kali was given only an extent of 6 cents.

Stating that the suit 'B' schedule property is in continuous enjoyment

and possession of Sambasivam till his death and Patta and other

revenue records were standing in the name of Sambasivam for a

long period, the defendants as the legal heirs of the said

Sambasivam, claimed title to the property which is described as suit

'B' schedule. It is also stated that the kist receipts filed by the

plaintiff does not relate to the suit property.

7) The Trial Court after considering the documents Exs.A1 and A2

came to the conclusion that the plaintiff has established his title in

respect of the property in Survey Number 181/22 measuring an

extent of 12 cents which is described as suit 'A' schedule property.

However, it was held by the trial Court that the plaintiff has failed to

https://www.mhc.tn.gov.in/judis 4 Page of 14 SA.No.302 of 2017

prove his possession in respect of the entire extent of suit property

as he is in possession of 6 cents alone as revealed from the

document Ex.A19.

8) In view of the findings of the Trial Court that the plaintiff has not

proved his possession in respect of 6 cents which is described as suit

'B' schedule, though the declaratory relief was given in respect of 'A'

schedule property, as regards the relief of permanent injunction, the

Trial Court granted relief including suit 'B' schedule, on the ground

that the suit 'B' schedule property is in the possession of the

appellants.

9) Aggrieved by the judgement and decree of the Trial Court, the

respondent/plaintiff has filed an appeal in A.S.No.53 of 2014 before

the Principal Sub Court, Thindivanam. It is to be noted that the

appellants have not preferred any appeal as against the judgement

and decree of the Trial Court declaring the plaintiffs title in respect

of suit 'A' schedule property. Therefore, this Court is of the view that

the findings of the Trial Court as regards the title of suit 'A' schedule

property has become final.

10)The Lower Appellate Court, considered the pleadings and evidence

https://www.mhc.tn.gov.in/judis 5 Page of 14 SA.No.302 of 2017

independently. After upholding the tittle of plaintiff in respect of

suit 'A' schedule property, the question fell for consideration before

the Appellate Court was whether the plaintiff is in enjoyment of the

suit 'B' schedule property or not?

11)Though the appellants have filed few Kist receipts and Patta that

was given under UDR, after considering the documents Exs. A3 to

A12, the Kist receipts filed by the plaintiff; the Appellate Court held

that the settlement Deed executed by the original owner was acted

upon and that the plaintiff's father was in the possession and

enjoyment of the suit property by paying Kists to the suit property.

The documents Exs.A3 to A12 are also considered by this Court.

Though the document Ex.A3 is not relied upon by this Court, all

other documents Exs.A4 to A12 [Kist receipts] were issued in

respect of the properties pertaining to several Patta numbers

including Patta No.134. The document Ex.A1 is the original sale

Deed under which Muthammal, the plaintiff's predecessor in title

purchased the property in 1944. The said document clearly reveals

that the entire property measuring an extent of 12 cents in survey

Number 181/22 was conveyed in favour of the plaintiff. The total

https://www.mhc.tn.gov.in/judis 6 Page of 14 SA.No.302 of 2017

extent of 12 cents in survey Number 181/22 is also referred to as a

property registered in Patta No.134. The Kist receipts Exs.A4 to A12

clearly reveals that the entire extent in suit survey number, namely

12 cents is registered within the holdings of respondent /plaintiff in

tune with the settlement Deed under Ex.A2 in favour of the plaintiff.

12)The Lower Appellate Court found that the suit 'B'' schedule property

is therefore in the absolute possession and enjoyment of the plaintiff

as it was pleaded in the plaint. The Appellate Court therefore held

that the plaintiff has not only established the title with regard to the

12 cents of the property but also possession of both 'A' and 'B'

schedule properties namely the entire extent of 12 cents in survey

Number 181/22. Therefore the appeal filed by the

respondent/plaintiff was allowed and the suit was decreed in toto by

modifying the judgement and decree of the Trial Court.

13)Aggrieved by the judgements and decrees of the Courts below, the

above Second Appeal is filed by the defendants in OS.No.131/2008.

At the time of admitting the Second Appeal, this Court has framed

the following substantial questions of law:

https://www.mhc.tn.gov.in/judis 7 Page of 14 SA.No.302 of 2017

“[1]Whether or not the Lower Appellate Court is right in holding that the appellant failed to prove their possession of B Schedule property on a premise which is beyond the case and pleadings of both sides?

[2] Whether or not the finding of the Lower Appellate Court that Ex.B1 cannot be looked into for any purpose is correct in law?”

14)As held by the Courts below, this Court has no hesitation to hold

that the plaintiff /respondent has proved his exclusive title to the

entire suit 'A' schedule property. Since the appellants have not

challenged the findings of the Trial Court declaring the title of

plaintiff in respect of suit 'A' schedule property, the findings of the

Trial Court has become final and therefore, it is not open to the

appellants to dispute the title of plaintiff over the entire suit 'A'

schedule property (12 cents).

15)As pointed out by this Court earlier, the documents Exs.A4 to A12

are Kist receipts standing in the name of plaintiff's father by name

Kali, with reference to several properties including the properties

covered by Patta No.134. The fact that the plaintiff was paying Kists

for few decades as seen from the documents Exs.A4 to A12 clearly

https://www.mhc.tn.gov.in/judis 8 Page of 14 SA.No.302 of 2017

proves the case of plaintiff about his possession as exclusive owner

of the entire property.

16)As against the plaintiff's claim, the case of the defendant is

inconsistent and self contradictory. It is admitted that Muthammal

had executed the settlement Deed in the year 1966 in favour of the

plaintiff. However the defendant contended that the said Muthammal

had no right to execute the settlement Deed on the ground that the

property was purchased in the name of Muthammal by her husband

by name Mr.Koneri. No evidence was let in by the defendants as to

how the said Koneri had purchased the property in the year 1944 in

the name of his wife. Assuming that the property was purchased by

the husband of Muthammal in her name, the presumption is that the

sale Deed was for the benefit of Muthammal.

17)The further case of the defendants is that the suit property was

divided between Sambasivam and Kali the plaintiff's father. It is not

stated how the suit property became the joint property of

Sambasivam and said Kali. The defendants claimed title to an extent

of 6 cents as legal heirs of Sambasivam. Unless it is specifically

pleaded and established that Sambasivam had title to suit 'B'

https://www.mhc.tn.gov.in/judis 9 Page of 14 SA.No.302 of 2017

schedule, this Court is unable to find any factual or legal basis for

the contention of the defendants. Therefore the appellants claim that

they are in possession of the property is on the false premise which

is not substantiated by any verifiable material.

18) It is true that the suit 'B' schedule property stands in the name of

one Sambasivam as per Patta under Ex.B1. Though it is stated that

Sambasivam and his sons defendant's 1 to 4 are jointly enjoying the

property by paying Kists, this Court is unable to find any other

independent evidence to show physical possession of suit 'B'

schedule property by any of the appellants. When title of plaintiff in

respect of suit 'A' schedule property is admitted, this Court is unable

to find any substance in the claim on the basis of subsequent

revenue records without title.

19)It is a well settled proposition that 'possession follows title, when

the property is a vacant land. In the present case also the suit

property is described as a vacant land. It is not the case of the

defendants that they are in physical possession of the property by

putting up any construction or by doing any overtact so as to

contend that they are in physical possession claiming title adverse to

https://www.mhc.tn.gov.in/judis 10 Page of 14 SA.No.302 of 2017

the respondent. When the revenue records stands in the name of

plaintiff for a long period of years the recent entires in revenue

records in the name of defendants cannot be considered to accept the

case of defendants that they are in possession of the property.

20)From the reading the provision of Patta Pass Book Act, it is to be

seen that the revenue officials exercising their power under Patta

Pass Book Act, namely the Tashildar, Revenue Division Officer and

District Revenue Officer is not competent to mutate names on their

own on the basis of mere claim by any one. The power of revenue

officials under Tamil Nadu Patta Pass Book Act, is limited under

few circumstances and only in the case of death of any person or by

reason of transfer of interest in the land or by reason of any other

subsequent change in the circumstances, an application for

modification of entries in the Patta Pass Book Act can be

entertained.

21)In the present case, the Patta and revenue records stood in the name

of Muthammal. Thereafter the Patta stands in the name of plaintiff's

father, who happened to be the guardian of the plaintiff. Unless the

defendant claimed title as a legal heir of Muthammal or plaintiff's

https://www.mhc.tn.gov.in/judis 11 Page of 14 SA.No.302 of 2017

father, it is not possible for the defendant to get Patta by a legal

process contemplated under the Tamil Nadu Patta Pass Book Act.

Therefore, this Court is unable to rely upon the documents namely

the revenue records produced by the appellants to hold that they are

in possession of the property. Though the Patta can be relied upon as

a piece of evidence to prove one's possession, in the present case,

this Court is unable to hold in favour of appellants as the plaintiff

has filed several documents namely revenue records showing that

the entire property in survey Number 181/22 is in the possession of

the plaintiff's predecessors interest and thereafter in the name of

plaintiff continuously. As pointed out earlier, this Court is unable to

find transfer of Patta in favour of defendants/appellants by a

legitimate process known to Law.

22)As a result, this Court finds no merits in the appeal and the

substantial questions of law framed have no substance especially in

the light of findings of facts by the Lower Appellate Court.

Accordingly this Second Appeal stands dismissed. No costs. The

judgement and decree of the learned Principal Subordinate Judge,

Tindivanam dated 12.12.2016 in A.S.No.53 of 2014, thereby

https://www.mhc.tn.gov.in/judis 12 Page of 14 SA.No.302 of 2017

reversing the judgement and decree of the learned District Munsif

cum Judicial Magistrate, Vanur dated 20.10.2014 in OS.No.131 of

2008, is upheld.

26.04.2022 jrs Internet : Yes

To

1.The Principal Sub Court, Tindivanam

2.The District Munsif cum Judicial Magistrate, Vanur.

3.The Section Officer, V.R.Section, High Court, Chennai.

https://www.mhc.tn.gov.in/judis 13 Page of 14 SA.No.302 of 2017

S.S.SUNDAR, J.,

jrs

SA.No.302 of 2017

26.04.2022

https://www.mhc.tn.gov.in/judis 14 Page of 14