Madras High Court
The Executive Officer vs Indirani on 28 February, 2022
S.A.No.1674 of 2008
and M.P.No.1 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.02.2022
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.No.1674 of 2008
and
M.P.No.1 of 2008
The Executive Officer,
Anthiyur Town Panchayat,
Anthiyur, Bhavani Taluk,
Erode District ...Appellant
Vs.
1. Indirani
2. The District Collector,
Erode District, Erode.
3. The Tahsildar, Bhavani Taluk,
Erode District.
4. T.K. Nanjappan
5. T.E. Perumal ... Respondents
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
decree and judgment dated 11.09.2008 passed in A.S. No.5 of 2007, on
the file of the Additional District Court / Fast Track Court No.IV,
Bhavani, Erode District, reversing the decree and judgment dated
18.06.2004 passed in O.S. No.283 of 2004, on the file of the First
Additional District Munsif Court, Bhavani, Erode District.
Page 1 of 16
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S.A.No.1674 of 2008
and M.P.No.1 of 2008
For Appellant : Mr.R. Darshan
for Mr.N.Manokaran
For R1 : Mr.S. Sridharan
For R2 & R3 : Ms.S.V.Supraja
Government Advocate
For R4 and R5 : Ms. K. Ponmani
for Mr.V.Rajesh
JUDGMENT
The appellant is the third defendant in O.S.No.283 of 2004 on
the file of the First Additional District Munsif Court, Bhavani, Erode
District. The first respondent, Indirani, filed the said suit for a declaration
of her title to the suit property and also for a permanent injunction
restraining the present respondents and the appellant from interfering
with her peaceful possession and enjoyment of the suit property.
2. For the sake of convenience, the parties are referred to as
per their ranking in the trial court and in appropriate places, their rank in
the present appeal would also be indicated.
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S.A.No.1674 of 2008
and M.P.No.1 of 2008
3. The minimum facts that are required for the disposal of this
second appeal are as follows:
3.1. The suit property is described in two parts in the plaint
schedule and the entire suit property is a vacant site in new survey
Nos.1964/7 and 1964/8 (old survey No.1506/4) of Thavuttupalayam,
Anthiyur Village measuring 1600 sq.ft). The plaintiff Indirani (P.W.1)
claims title and possession over the suit property by means of a sale deed
dated 20.11.1998 (Photostat copy of which is marked as Ex.A2) executed
by one Valliammal and Kuppusamy Gounder.
3.2 The case of the plaintiff is that the suit property was
originally owned by one Kaliyammal, who executed a settlement deed
dated 15.09.1956 (Ex.A1) in favour of her two daughters Valliammal
(one of the vendors of the plaintiff) and Kaliyammal and that since
Kaliyammal (sister of Valliammal) died, Valliammal became the absolute
owner of the suit property. According to the plaintiff, she is in possession
and enjoyment of the suit property ever since the date of purchase and
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S.A.No.1674 of 2008
and M.P.No.1 of 2008
that the Executive Officer, Anthiyur Town Panchayat (present appellant),
is frequently disturbing her peaceful possession and enjoyment over the
suit property. According to her, she has perfected her title by adverse
possession and prescription.
4. The defendants 1 to 3 in their written statements have denied
the title of the plaintiff to the suit property. According to them, the suit
property is a Government land and that the plaintiff alone attempted to
encroach the suit property and also tried to close the well meant for
public usage. The defendants 4 and 5 in their written statement had
contended that the plaintiff had already filed a suit in O.S. No.75/2001 in
respect of the same suit property before the Sub Court, Bhavani, against
them and others in order to legalise her claim as the suit property is a
Government land.
5. The trial court after framing necessary issues and after full
contest dismissed the suit vide its decree and judgment dated 18.06.2004
on the following grounds.
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S.A.No.1674 of 2008
and M.P.No.1 of 2008
i. The plaintiff did not establish the fact that the property mentioned
in the sale deed dated 20.11.1998 (Ex.A2) and the property
mentioned in the settlement deed (Ex.A1) are one and the same as
no survey number is indicated in Ex.A1 and the boundary
descriptions in both the documents do not match with each other.
ii. Though in the original plaint, the suit property was indicated as old
Natham survey No.1506/3, it was amended subsequently as survey
No.1506/4. The plaintiff's explanation in this regard was that, in
the sale deed Ex.A2 the property conveyed to her was mentioned
as natham survey No.1506/3 only based on an assumption that
since her house property adjacent to the suit property is situate in
the same survey number i.e Survey No.1506/3.
iii. There is absolutely no reason as to why the plaintiff did not add the
legal heirs of late Kaliyammal, her sister, as the parties to the sale
deed since Valliammal had only half share in the suit property as is
seen from the settlement deed (Ex.A1).
iv. It is also not known as to how Kuppusamy Gounder, the brother-
in-law of Valliammal was also added as a vendor in the sale deed
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S.A.No.1674 of 2008
and M.P.No.1 of 2008
(Ex.A2).
v. The plaintiff has not also established adverse possession over the
suit property by adducing acceptable evidence.
vi. The plaintiff did not dispute the genuineness of FMB sketch
(Ex.B5) and the Adangal extract issued under the Natham Land
Tax Scheme (Ex.B6). These two documents showed that Bajanai
Koil in survey No.1964/6 is on the northern side of survey
Nos.1964/7 and 1964/8 which are the suit properties. But, in
Ex.A2, the eastern boundary is shown as Bajanai Koil. This
assumes importance since the plaintiff claims her title and
possession in respect of survey Nos.1964/7 and 1964/8 and as per
Ex.B5 and Ex.B6 and the Advocate Commissioner's Report
(Ex.C1), Bajanai Koil in survey No.1964/6 is situated only on the
northern side of survey Nos.1964/7 and 1964/8 and the
measurements also vary in all these documents.
vii.The plaintiff's counsel's arguments that the Government cannot
interfere in natham land cannot also be accepted for the simple
reason that under Natham Land Tax Scheme, the suit property was
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S.A.No.1674 of 2008
and M.P.No.1 of 2008
classified as Government land and not as natham land.
6. Aggrieved over the decree and judgment passed by the trial
court, the third defendant filed an appeal in A.S. No.5/2007 before the
Additional District Judge, Bhavani, Erode. The first appellate court after
analysing the evidence on record reversed the findings of the trial court on
the ground that since the suit property absolutely belonged to the
plaintiff by way of a sale deed dated 12.11.1998 (Ex.A2) and also the
property is a natham land, the third defendant, the Executive Officer,
Anthiyur Town Panchayat, cannot interfere with the plaintiff's possession
and enjoyment over the suit property. It is further held that the properties
mentioned in Ex.A1 and Ex.A2 are one and the same and that the
plaintiff has also perfected her title by way of adverse possession and
prescription.
7. Now the present second appeal is filed by the third defendant
on the following substantial questions of law :
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S.A.No.1674 of 2008
and M.P.No.1 of 2008
i. Whether the first appellate court erred in law in granting the
declaration relief merely on the basis of Ex.A2 in the absence of
any other oral and documentary evidence to prove the prior title of
her vendor over the suit property?
ii. Whether the first appellate court is right in law in decreeing the suit
in its entirety in the absence of any evidence or explanation for the
entitlement of the entire extent of the suit schedule particularly
when the identity of the property has been seriously disputed by
the defendants?
iii. Whether the first appellate court erred in law in not taking into
consideration or giving a specific finding on the question whether
the suit for declaration of title on the basis of Ex.A2 is maintainable
in law especially when the plaintiff has claimed that the suit
property is a grama natham and pleaded adverse possession, but
both the pleas are mutually contradictory in nature and will not go
together?
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S.A.No.1674 of 2008
and M.P.No.1 of 2008
8. In order to establish title over the suit property, the plaintiff
relies on her oral evidence as P.W.1 as well as the sale deed dated
20.11.1998. A photostat copy of the sale deed was marked as Ex.A2.
Ex.A4 is the registration copy of the sale deed. Thus the plaintiff did not
file the original sale deed. Be that as it may, the property conveyed
through Ex.A2 is indicated as Thavuttupalayam natham survey
No.1506/3. Though in the original plaint, this survey number is indicated
as the suit property, subsequently it was amended as natham survey
No.1506/4 of Thavuttupalayam. The plaintiff's contention is that natham
survey No.1506/3 was indicated in Ex.A2 only based on an assumption
that her house which is situated next to the suit property bears the same
survey number. As rightly observed by the trial court, this explanation of
the plaintiff cannot be accepted because the plaintiff has purchased the
property for a consideration through the original of Ex.A2 and it is not
also her case that she was an illiterate. A perusal of the records further
shows that she is a teacher by profession and therefore, it is difficult to
believe that the plaintiff purchased the property even without verifying
the details of the same. Moreover, the boundary description in Ex.A2 is
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S.A.No.1674 of 2008
and M.P.No.1 of 2008
totally different from the one indicated in the settlement deed dated
15.09.1956 (Ex.A1) executed by Kaliammal in favour of her two
daughters Valliammal and Kaliammal. According to the plaintiff since
Kaaliammal died, she became the absolute owner of the suit property.
However, it is not known as to why the brother-in-law of Valliammal also
joined in the execution of sale deed Ex.A2. The recitals of Ex.A2 also
show that the property mentioned in Ex.A2 belonged to Valliammal as
per "sale deed dated 15.09.1956". It is further mentioned that the
property is also a self acquired property of Kuppusamy Gounder. In fact
as per Ex.A1 settlement deed, Valliammal is entitled to only half share in
the property. Moreover, Ex.A1 settlement deed, the property is
mentioned as ancestral property of Kaliayammal. However, the plaintiff
did not produce the parent documents.
9. First and foremost, it has to be decided as to whether the
properties mentioned in Ex.A1 and Ex.A2 are one and the same. A bare
perusal of Ex.A1 and Ex.A2 shows that the boundaries described in both
these documents do not tally with each other. An advocate commissioner
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S.A.No.1674 of 2008
and M.P.No.1 of 2008
was appointed by the trial court who filed his Report and plan (Ex.C1
and Ex.C2). The contents of the Advocate Commissioner's report also
substantiated the fact that the boundary descriptions in Ex.A2 do not
match with Ex.A1. It was concluded by the trial court that there was a
deliberate attempt by the plaintiff who was not an illiterate but a school
teacher to make Ex.A2 appear like Ex.A1 regarding the property though
survey numbers and descriptions differ. This observation of the trial
court cannot be found fault with because subsequently also the plaintiff,
after filing of the suit, amended the suit schedule as natham survey
No.1506/4 when she claims title to the suit property through Ex.A2 sale
deed, wherein the property conveyed to her was indicated as 1506/3.
She did not also take steps to get a Rectification deed. Moreover, as per
adangal extract Ex.B6, survey Nos.1964/7 and 1964/8 are Government
lands. The trial court had held that subsequent to the reclassification of
the land, the suit property was shown as Government land and not
natham land and therefore, the plaintiff cannot contend that the third
defendant was not entitled to evict her. On the contrary, the first appellate
court without going into the glaring inconsistencies in the documentary
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S.A.No.1674 of 2008
and M.P.No.1 of 2008
evidence adduced on the side of the plaintiff concluded that the plaintiff
has absolute title and possession over the suit property. The vendors of
the plaintiff have not also been examined by the plaintiff to explain the
discrepancies found in Ex.A1 and Ex.A2. As already observed, the
description along with the boundaries of the suit property claimed by the
plaintiff do not match with Ex.A2. Ex.B5 (FMB) and the description of
the property in the advocate commissioner's report (Ex.C1) tally perfectly
with each other. This aspect which has been dealt with extensively by the
trial court requires no further clarity or interference or interpretation by
this Court. Suffice it to say that all those observations are based on proper
appreciation of evidence and sound principles of law.
10. The first appellate court relying on the evidence of D.W.1
(third defendant) had concluded that the plaintiff is in the possession of
the suit property and further observed that when the property is a natham
land, Government does not have any right over the same. In Ex.B6, the
suit property was classified as Government land and not as natham land
and the genuineness of Ex.B6 has not also been questioned by the
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S.A.No.1674 of 2008
and M.P.No.1 of 2008
plaintiff.
11. The plaintiff apart from claiming title through Ex.A2, has
also claimed title by way of adverse possession and prescription. Adverse
possession is in one sense is based on the theory or presumption that the
owner has abandoned the property to the adverse possessor or on the
acquiescence of the owner to the hostile acts and claims of the person in
possession. It follows that sound qualities of a typical adverse possession
lie in it being open, continuous and hostile. Where possession of the
property could be referred to a lawful title, it will not be considered to be
adverse. The reasons being that a person whose possession can be
referred to a lawful title, will not be permitted to show that his possession
was hostile to another's title. In the instant case, the plaintiff had claimed
title through Ex.A2 and also by adverse possession, which is mutually
contradictory.
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S.A.No.1674 of 2008
and M.P.No.1 of 2008
12. The plaintiff who has filed a suit for declaration must
establish her title over the suit property by way of adducing acceptable
documentary evidence. In the instant case, the plaintiff mainly relies on
her sale deed Ex.A2 and the settlement deed Ex.A1. It is already held by
this Court that the boundary descriptions do not tally with each other in
both these documents. The survey No.1506/3 was also amended as
1506/4 in the plaint and therefore, the plaintiff is also not sure about the
property purchased by her.
13. In view of all these reasons stated by me, the substantial
questions of law are answered in favour of the appellant.
14. In the result,
i. the second appeal is allowed. No costs. Consequently,
connected miscellaneous petition is closed.
ii. the decree and judgment dated 11.09.2008 passed in
A.S.No.5 of 2007, on the file of the Additional District
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S.A.No.1674 of 2008
and M.P.No.1 of 2008
Court / Fast Track Court No.IV, Bhavani, Erode
District, is set aside and
iii. the decree and judgment dated 18.06.2004 passed in
O.S.No.283 of 2004, on the file of the First Additional
District Munsif Court, Bhavani, Erode District, is
upheld.
28.02.2022
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
mtl
To
1.The Additional District Court / Fast Track Court No.IV, Bhavani,
Erode District.
2.The First Additional District Munsif Court, Bhavani.
3. The Section Officer, VR Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis
S.A.No.1674 of 2008
and M.P.No.1 of 2008
R. HEMALATHA, J.
mtl
S.A.No.1674 of 2008
and M.P.No.1 of 2008
28.02.2022
https://www.mhc.tn.gov.in/judis
