Madras High Court
B.S.Balasubramanian vs B.Ramesh ... 1St on 11 January, 2022
S.A(MD)No.411 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.01.2022
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.411 of 2021
and
C.M.P(MD)No.5453 of 2021
B.S.Balasubramanian ... Appellant/Appellant/1st Defendant
Vs.
1.B.Ramesh ... 1st Respondent/1st Respondent/Plaintiff
2.The Tahsildar,
Nilakottai Taluk,
Dindigul District. ...2nd Respondent/2nd Respondent/2nd Defendant
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 26.11.2020 passed
in A.S.No.11 of 2018, on the file of the Principal District Court,
Dindigul, confirming the judgment and decree, dated 18.08.2017
passed in O.S.No.439 of 2012, on the file of the Principal Sub Court,
Dindigul.
For Appellant : Mr.S.Kumar
for K.P.S.Palanivel Rajan
For R - 1 : Mr.T.Arul
for Mr.A.R.Kannappan
For R - 2 : Mr.G.Suriyananth
Additional Government Pleader
1/16
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S.A(MD)No.411 of 2021
JUDGMENT
The concurrent Judgments and decrees passed in O.S.No.439 of
2012, by the Principal Sub Court, Dindigul and in A.S.No.11 of 2018,
by the Principal District Court, Dindigul, are being challenged in the
present Second Appeal.
2. The first respondent/plaintiff has instituted a suit in
O.S.No.439 of 2012 on the file of the trial Court for the relief of
declaration and permanent injunction, wherein, the present appellant
and the second respondent have been shown as defendants.
3. The case of the plaintiff was that originally, the suit property
was assigned to one Marudhai Chettiar, son of Veerappan Chettiar by
the Tamil Nadu Government, who in turn had mortgaged the property
before the Solavandhan L.M.Bank for a sum of Rs.3,500/-. At this
juncture, the said Marudhai Chettiar sold the property to the plaintiff's
father-V.Balasubramani on 09.11.1973 by a registered sale deed for a
valid sale consideration for a sum of Rs.7,000/-. The plaintiff's father
remitted a sum of Rs.3,000/- before the Bank and paid the balance
Rs.3,000/- and also paid the advance of Rs.1,000/- to the said
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Maruthai Chettiar. Later on, the plaintiff's father mutated the revenue
records in his name and has been paying kist and obtained electricity
service connection in S.C.No.75. The said V.Balasubramani had
executed a Will in favour of the plaintiff and his brother, dated
27.01.2004 and when their father died on 16.05.2004, the said
property devolved on the legal heirs of V.Balasubramani, by virtue of
the Will, dated 27.01.2004 and after the death of their father, the suit
property came to be in possession of the plaintiff and he also applied
for patta before the revenue authorities. The second defendant
unilaterally had issued patta only for a reduced extent. Hence, the
plaintiff has approached the second defendant for correcting the patta.
At that point of time, the first defendant had given an objection before
the Revenue Divisional Officer, Dindigul and the Revenue Divisional
Officer, Dindigul, had dismissed the said objection filed by the first
defendant and the first defendant filed an appeal before the District
Revenue Officer, which was also dismissed on 09.07.2012. Inspite of
the said rejection, the first defendant interfered with the peaceful
possession and enjoyment of the plaintiff. Hence, the plaintiff has filed
the suit for the relief stated supra.
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4. The first defendant had filed a written statement, denying all
the averments made in the plaint and submitted that the suit property
was assigned to him on 30.04.1982 by the Tahsildar, Nilakottai and
issued patta No.697 for the said land. He has been paying kist for the
fasli 1417, but the Village Administrative Officer refused to collect the
tax. While so, the plaintiff's father V.Balasubramani died on 16.05.2008
and they have not obtained patta prior to his death. The patta was
transferred only on the basis of the Will, dated 27.01.2004 and the Will
was a forged one and not valid and the same cannot be accepted, as
the Government assigned the land to Maruthai Chettiar only to enjoy
the property and the plaintiff's father has got no right to mortgage or
lease the property. Further, the plaintiff's father has not obtained
permission for purchasing the property. The first defendant has been
enjoying the property for more than 27 years without any interruption
and he has not interfered with the possession of the plaintiff and the
suit has to be dismissed.
5. Before the trial Court, on the side of the plaintiff, the plaintiff
himself was examined as P.W.1 and Exs.A1 to A14 were marked. On
the side of the defendants, D.W.1 and D.W.2 were examined and
Exs.B.1 to B.7 were marked and also Ex.X.1 to Ex.X.4 were marked.
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6. On the basis of the rival pleadings made on either side, the
trial Court, after framing necessary issues and after evaluating both the
oral and documentary evidence, has decreed the suit.
7. Aggrieved by the Judgment and decree passed by the trial
Court, the first defendant, as appellant, has filed an Appeal Suit in
A.S.No.11 of 2018. The first appellate Court, after hearing both sides
and upon reappraising the evidence available on record, has dismissed
the appeal and confirmed the Judgment and decree passed by the trial
Court.
8. Challenging the said concurrent Judgments and decrees
passed by the Courts below, the present Second Appeal has been
preferred at the instance of the first defendant, as appellant.
9. The learned counsel appearing for the appellant/first
defendant would submit that the Courts below ought to have dismissed
the suit on the ground that the plaintiff has not proved the order of
assignment made in favour of Maruthai Chettiar. Further, the Courts
below have committed an error in relying Ex.A.1-sale deed and
Ex.A.2-Will executed in favour of the plaintiff and held that the plaintiff
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S.A(MD)No.411 of 2021
has established his title over the suit property. The Courts below have
failed to appreciate the essential condition enumerated under Section
63 of the Hindu Succession Act and Section 68 of the Indian Evidence
Act to prove the execution of the Will. Further, the Courts below ought
not to have relied upon Exs.A.4 to A.9 and came to the conclusion that
the suit property is in possession of the plaintiff, when those
documents are not related to the suit property. Further, the Courts
below have committed an error in rejecting Exs.B.1 to B.3 viz., UDR
Register, Kist receipt and Chitta in the name of the appellant/first
defendant from 1998 onwards and these documents would clinchingly
proves the title of the appellant over the suit property. The trial Court
has wrongly placed the burden of proof on the first defendant to prove
his title over the suit property when the plaintiff has miserably failed to
discharge his initial burden to establish his rights over the suit property
in accordance with Sections 101 to 103 of the Indian Evidence Act. The
first Appellate Court has failed to consider the averments in the plaint
that the plaintiff claiming title based on the Will alleged to have been
executed by his father and execution of Will is not proved in
accordance with provisions of the Act, but the first Appellate Court held
that the question of proving the execution of the Will is not an issue in
the suit and given a perverse finding that the plaintiff inherited the suit
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property by his father. But the admitted fact that the plaintiff is not
alone the legal heir of the deceased Balasubramanian. Hence, the claim
of the plaintiff that he is an absolute owner is totally untenable.
Further, the Courts below ought not to have relied upon Ex.A.11 and
Ex.A.12, which are the proceedings of the revenue authority and
granted decree in favour of the plaintiff, when the revenue authorities
are not the competent authority to decide the title of the parties. The
first Appellate Court has failed to frame proper issues and prayed for
allowing the Second Appeal.
10. Heard the learned counsel for the appellant, the learned
counsel for the first respondent and also the learned counsel for the
second respondent and also perused the records carefully.
11. On going through the materials available on record, it is seen
that the plaintiff's father V.Balasubramani has purchased the property
and he has also executed a Will on 27.01.2004 by a registered
document and as per the same, the plaintiff is entitled to 'B' schedule
property, which is the second item in the suit schedule property.
Further, as per the said document, the plaintiff is entitled to his share.
On 16.05.2004, the plaintiff's father died, which has been proved by a
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Death Certificate and the same has been marked as Ex.A.3 and as per
the Will, the plaintiff had succeeded the suit property and mutation has
also been effected by the plaintiff in the revenue records and patta has
been granted in favour of him on 05.03.2009 and a computerised patta
was issued to him and further, the revenue documents would prove
that the plaintiff is in possession and enjoyment of the property from
the date of his mutation. The first defendant has objected the
plaintiff's possession and enjoyment of the suit property by stating that
on 30.04.1982 under UDR scheme, he has been issued with patta in
patta No.1267 by the Tahsildar, Nilakottai. The UDR patta cannot be
granted by the Tahsildar.
12. The first defendant further submitted that after the patta
issued for 27 years, he has been paying kist for the said lands, as the
same was also proved by the documents, which is a registered UDR,
which was marked as Ex.B.1 and he has been paying kist receipt,
which was marked as Ex.B.2 and chitta has been marked Ex.B.3 and
obtained patta No.697, which has been marked as Ex.B.4 and he is in
possession and enjoyment of the same, but when the first defendant
had submitted that when the said land has been assigned to Maruthai
Chettair, he cannot sell it or mortgaged it and hence, the said sale is
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not valid and only at that point of time, the Tahsildar, Nilakottai under
UDR scheme, has given him an assignment.
13. It is necessary to peruse the cross-examination of D.W.1 to
verify as to how the said land has been allotted to him by the Tahsildar,
Nilakottai. D.W.1 in his cross-examination submitted that as per Ex.B.
1, UDR register Survey Nos.1218/1 and 1219/1, also comprised in the
said document. In Survey No.1218/2 alone, lands are assigned to him
and the disputed property was also assigned to him in the year 1982,
but to prove the same, no such assignment deed or any other
document has been issued in favour of the plaintiff, is accepted. When
the first defendant has accepted that he has not been issued with any
such document to prove that the land has been assigned to him, the
claim made by him is to be rejected as there was no proof how the
alleged land has been assigned to him. His further contention that the
plaintiff's father was also issued with patta in UDR scheme in Survey
No.1219/1, which was marked as Ex.A.14 and through Ex.A.1, the sale
deed executed in favour of the plaintiff's father was not known to him
would show that the first defendant is just making a claim only based
on the alleged UDR patta. Further, the finding that the plaintiff's
father's name and the defendant's name being one and the same and
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mistakenly UDR patta has been granted by misunderstanding was not
accepted by him. When he has not proved his title to the property by
way of an assignment order or any other document issued by the
Revenue Department, he cannot now come and claim that he has got
right under the UDR patta issued in his favour, is not accepted. Further,
the first defendant also owns some other lands in neighbouring survey
number and the plaintiff's father name and his name being the same,
erroneously some officer would have issued patta in his name. Without
any proper deed of assignment, there cannot be any patta being issued
by the authority. Only in the year 2009, after enquiry patta has been
mutated again in favour of the plaintiff, which has been marked as
Ex.A.10.
14. When the first defendant objected for issuance of patta in
favour of the plaintiff, the Thasildar has examined the claim made by
the plaintiff and dismissed the objection made by the first defendant.
The first defendant also approached the Revenue Divisional Officer and
the Revenue Divisional Officer also dismissed his application, which has
been denied by the first defendant as if he was not aware of the said
order. The said order is dated 26.05.2010 and the Revenue Divisional
Officer observed in his order that the claim made by the first defendant
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regarding the said land alleged to have been allotted to him by way of
an assignment made in the year 1982, but no document whatsoever
has been produced to prove his stand. He has only produced a kist
receipt and mere production of kist receipt alone will not be sufficient
to prove his claim. It is seen that before 1973, the said land has been
assigned in favour of one Maruthai Chettiar and recited in the
registered document produced by the plaintiff proves the same and the
plaintiff's family are in possession, who had dug a Well and installed a
motor pump by getting electricity connection and doing cultivation has
been proved by the plaintiff which confirms the possession of the
plaintiff and there is no truth in the claim made by the first defendant.
That being the case, the first defendant suppressed the above said fact
and has also denied the same in his cross-examination. Further in his
cross-examination, he had admitted that he has filed a revision before
the District Revenue Officer. So it is proved that the first defendant is
aware of the Revenue Divisional Officer's proceedings and order.
15. It could be further seen from the District Revenue Officer's
proceedings in Na.Ka.No.23304/2010/A4, dated 09.07.2012, wherein
he has observed that there was no prohibition in mortgaging the
properties assigned in the Tamil Nadu Land Development Bank as there
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was no ban and also confirmed that the said land in Survey No.1219/1
measuring a total extent of 4-47 acres stood in the name of the
plaintiff's father Balasubramanian and patta has been issued in his
name in Patta No.1152. That being the case, before 1968 itself, the
said Maruthai Chettiar has mortgaged the property in the Tamil Nadu
Land Development Bank and from the recitals of the said document
Ex.A.1-sale deed, it has been found that the first defendant has got no
right over the property. If aggrieved, he can proceed against the said
order within 60 days to approach the competent civil Court for
redressing his grievance, but inspite of the said order being passed in
the year 2012, the first defendant has not taken any steps to prove his
case, by filing a civil suit. Only the plaintiff has filed the suit which is
also admitted by him clearly. Hence, it has been made clear that the
plaintiff's father has purchased the property from one Maruthai
Chettiar and based on the Will, the plaintiff has inherited the same
from his father and accordingly, the plaintiff is entitled for seeking a
declaration in respect of the said property. Further, the document is in
possession of the plaintiff and all the revenue proceedings initiated by
the first defendant which had ended in favour of the plaintiff would
prove that the plaintiff is not entitled for the prayer as prayed for. As
the first defendant had failed to produce any document to prove that
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UDR patta has been granted to him, only based on the document when
he claimed that it has been assigned to him in the year 1982 by the
Tahsildar, Nilakottai, but no such document has been filed to prove his
case. That being the case, the first defendant's claim made has to be
rejected in toto. In the recitals of the sale deed it has been stated as
follows:-
"fPH;fz;l brhj;J vdf;F rh;f;fhuhy; $hhp
bra;ag;gl;L ehd; gz;gLj;jp fpzW btl;o mDgtpj;J
tUfpw fPH;fz;l g[Qi ; r njhl;lj;ij ehsJ njjpapy;
jq;fSf;F ehd; fpiuak; bra;J bfhLj;J &.7>000/-k;
fPH;fz;l gzgw;W tptug;go jq;fsplk; ehd;
bgw;Wf;bfhz;lgoahy; nkw;go &gha;f;F moapw;fz;l
g[Q;irj; njhl;lj;ij ehsJ njjpKjy; jhq;fs; iftrk;
itj;J ,\;lk; nghy; rh;t Rje;jpu ghj;jpakha; g[j;jpu
bgsj;jpu guk;giuaha; jhdhjp tpepnahf tpw;fpiuaq;fSf;F
nahf;fpakha; Mz;lDgtpj;J bfhs;tPh;fshft[k;."
16. The first defendant claims that he is in possession for more
than 27 years by producing mere kist receipts also not proved his case
and no document other than the said document filed. The plaintiff's
father name is also Balasubramanian and the first defendant's name is
also being Balasubramanian and the authorities have erroneously
issued kist receipts to the first defendant and it may be presumed that
by confusion, the same would have been erroneously issued to him.
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Further, the patta issued by the revenue authorities under the UDR
patta has been cancelled by the District Revenue Officer, this Court has
come to the conclusion that the mere payment of kists will not give any
right to the property in favour of the first defendant and the same is
also made clear by both the Courts below and this Court is not inclined
to interfere with the well reasoned Judgments and Decrees passed by
the Courts below. The plaintiff has clearly proved his case for grant of
declaration and permanent injunction.
17. For the reasons aforesaid, this Court is of the considered
view that no questions of law much less substantial questions of law
has been made out by the appellant/first defendant to interfere with
the well considered judgments and decrees rendered by the Courts
below and thus, the Second Appeal fails and the same stands
dismissed. No costs. Consequently, connected Miscellaneous Petition is
closed.
11.01.2022
Index : Yes/No
Internet : Yes/No
ps
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S.A(MD)No.411 of 2021
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.
To
1.The Principal District Court,
Dindigul.
2.The Principal Sub Court,
Dindigul.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.411 of 2021
V.BHAVANI SUBBAROYAN, J.
ps
Judgment made in
S.A(MD)No.411 of 2021
11.01.2022
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