Madras High Court
Perumal (Died) vs K. Chinnaraj on 14 June, 2023
S.A.No.783 of 2010 & M.P. No. 1 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.06.2023
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.No.783 of 2010
&
M.P. No. 1 of 2010
1. Perumal (died)
2. Palaniammal
3. Pachiappan @ Periyavan (died)
4. Raja
5. Vikaramadithan
6. Mangammal
7. Pachiammal
8. Gowran
9. Murugan ...Appellants
Appellants 6 to 9 brought on record as LRs of the 3rd appellant vide
order of Court dated 06.03.2023 in C.M.P. Nos 13658 to 13660/2020.
Vs.
K. Chinnaraj
2. Veerappan
3. Perumal
4. Kumaresan
5. Kaveriammal
Page 1 of 16
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S.A.No.783 of 2010 & M.P. No. 1 of 2010
6. Prakash
7. Buvaneshwari ... Respondents
1st appellant died. RR2 to 7 brought on record as LRs of the deceased
1st appellant vide order of court dated 06.03.2023 in C.M.P.
No.13657/2020.
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
decree and judgment dated 22.03.2010 passed in A.S. No.3 of 2007, on
the file of the Subordinate Judge, Dharmapuri, upholding the decree and
judgment dated 27.10.2006 passed in O.S. No.260 of 2000, on the file of
the District Munsif cum Judicial Magistrate, Palacode.
For Appellants : Mr. T. Deeraj
For R1 : M/s. Sreedevi
for R. Selvakumar
R2 to R7 : Not ready in notice.
JUDGMENT
The defendants who failed before both the courts below had
filed this present Second Appeal.
2. The respondent/plaintiff K. Chinnaraj filed the suit in
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S.A.No.783 of 2010 & M.P. No. 1 of 2010
O.S.No.260/2000 before the District Munsif cum Judicial Magistrate,
Palacode, seeking for a relief of declaration of his title to the suit property
and for a consequential relief of Permanent Injunction restraining the
defendants/appellants from interfering with his peaceful possession and
enjoyment of the suit property. The suit property as described in the
plaint is a punja land in Survey No.656/3B of Erranahalli Reddiyur
Vilage, Palacode Taluk, Dharmapuri District, admeasuring 1.25.5 hectare
within the boundaries stated therein.
3. For the sake of convenience, the parties are referred to as
per their ranking in the trial court and at appropriate places, their rank in
the present appeal would also be indicated.
4. The case of the plaintiff in nutshell is as follows:
The suit property belongs to the plaintiff through two registered
sale deeds dated 08.06.2000 (Ex.A1) and 15.11.2000 (Ex.A2). He
purchased the suit property from one Sathyanarayanan and ever since the
date of purchase, the plaintiff has been in possession and enjoyment of
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S.A.No.783 of 2010 & M.P. No. 1 of 2010
the same by paying necessary tax to the Government, as evidenced by
Ex.A3, Ex.A4 and Ex.A10. The Revenue Divisional Officer, Palacode,
issued a patta (Ex.A8) dated 18.12.2000 to the plaintiff. However, the
defendants without any right over the suit property are attempting to
interfere with the same. Hence the suit.
5. The 4th defendant filed his written statement and the other
defendants adopted the same. In the written statement the
defendants/appellants have stated that the plaintiff had never been in
possession of the suit property and that only they are in possession of the
suit property as lessees. According to them, the original owner
Sathyanarayanan orally leased out the suit property in favour of the
defendants and the plaintiff after the purchase of the suit property vide
sale deeds dated 08.06.2000 (Ex.A1) and 15.11.2000 (Ex.A2), had
demolished the building in the suit property illegally, for which the
defendants lodged a complaint with the Inspector of Police, Palacode
Police Station and the same was registered as Crime No.780/2000.
Moreover, on the basis of the representations given by the defendants 1
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S.A.No.783 of 2010 & M.P. No. 1 of 2010
and 4, they were registered as cultivating tenants of the suit property by
the Tahsildar & Record Officer, Palacode, vide his proceedings dated
29.09.2001 (Ex.B1). Therefore, the suit filed by the plaintiff is liable to
be dismissed.
6. On the basis of the above pleadings, the trial Court framed
the following issues :
i. Whether the plaintiff is the owner of the suit property?
ii. Whether the defendants 1 and 4 are cultivating the suit property for
more than 20 years as lessees?
iii. Whether there is no jurisdiction for the civil court to entertain the
suit since the defendants 1 and 4 are recognised as cultivating
tenants?
iv. Whether the plaintiff is in possession of the suit property?
v. To what relief the plaintiff is entitled?
7. In the trial Court, the plaintiff examined himself and two
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S.A.No.783 of 2010 & M.P. No. 1 of 2010
other witnesses and marked Ex.A1 to Ex.A11. The 4th defendant
examined himself and one another witness and marked Ex.B1 to Ex.B3.
8. After full contest, the learned District Munsif cum Judicial
Magistrate, Palacode, decreed the suit in favour of the plaintiff vide his
decree and judgment dated 27.10.2006 on the following grounds :
i. The plaintiff has established that he is the title holder of the suit
property by way of adducing the registered sale deeds dated
08.06.2000 (Ex.A1) and 15.11.2000 (Ex.A2).
ii. The defendants in their written statement admitted the sale deeds
executed by one Sathyanarayanan in favour of the plaintiff.
iii. The contention of the defendants that the defendants 1 and 4 are
the cultivating tenants of the suit property, has not been established
by any acceptable evidence. They have not also adduced any
acceptable documentary evidence like adangal extract to show that
they are cultivating the suit property for more than 20 years as
claimed by them.
iv. Moreover, the 4th defendant owns a property adjacent to the suit
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S.A.No.783 of 2010 & M.P. No. 1 of 2010
property and therefore, the contention of the defendants that the
defendants 1 and 4 are the cultivating tenants in the suit property
cannot be accepted.
v. The 4th defendant had also admitted that the adangal in respect of
the suit property stands in the name of the original owner
Sathyanarayanan.
vi. The plaintiff has established his possession over the suit property
by way of adducing acceptable evidence.
9. Aggrieved over the decree and judgment passed by the trial
Court Judge, the defendants filed an appeal in A.S. No.3 of 2007 before
the Subordinate Court, Dharmapuri. The learned Subordinate Judge,
Dharmapuri, after analysing the oral and documentary evidence adduced
on both sides, upheld the findings of the trial court vide his decree and
judgment dated 22.03.2010 and dismissed the appeal.
10. Now the present Second Appeal is filed by the defendants.
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S.A.No.783 of 2010 & M.P. No. 1 of 2010
Notice of motion was issued to the respondent and after several
adjournments, the case was posted for hearing today. In the
Memorandum of Second Appeal, the appellants has raised the following
substantial questions of law. -
i. " When the competent Officer/Record Officer appointed under the
Agricultural Record of Tenancy Act, after due enquiry, has
recorded the appellants as cultivating tenants and found their
possession over the suit properties under Ex.B1, whether the courts
below are correct in law in eschewing the said order?
ii. Whether the courts below are correct in law in casting the burden
of proof upon the appellants, especially when Sections 101 to 103
of the Evidence Act, 1872 mandate that the burden of proof would
be on the plaintiff/respondent?
iii. When no decree can be passed on the weakness of the adversary,
whether the courts below are justified in law in granting decree for
declaration and injunction by picking holes in the defence raised by
the appellants?
iv. Whether the courts below are correct in law in ignoring the
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S.A.No.783 of 2010 & M.P. No. 1 of 2010
admissions made by P.W.1 to P.W.3 and in not considering the
contradictions in the said oral testimony which would clearly
negate the case of the respondent?
v. When there is no cause of action for the suit and the alleged cause
of action is not proved, whether the Courts below are correct in law
in granting decree for declaration and permanent injunction?"
11. During the pendency of the appeal the appellants 1 and 3
died and their legal heirs were brought on record as respondents 2 to 7
and appellants 6 to 9 respectively.
12. Heard Mr. T. Deeraj, learned counsel for the appellants,
Ms. Sreedevi, learned counsel for the first respondent.
13. Mr.T.Deeraj, learned counsel for the appellants contended
that when the appellants are the cultivating tenants in the suit property,
both the courts below had committed an error in decreeing the suit in
favour of the plaintiff. His further contention is that when the Tahsildar
& Record Officer, Palacode, vide his proceedings dated
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S.A.No.783 of 2010 & M.P. No. 1 of 2010
29.09.2001(Ex.B1) recognised the defendants 1 and 4 as cultivating
tenants in the suit property, both the courts below did not properly
adjudicate the dispute between the parties. His specific contention is that
as per Ex.B1, the defendants are in possession of the suit property as
cultivating tenants. Hence, the appeal is liable to be dismissed.
14. Per contra, Ms. Sreedevi, learned counsel for the first
respondent contended that though the Tahsildar & Record Officer,
Palacode, had held that the defendants 1 & 4 are cultivating tenants in the
suit property, an appeal in Petition No.17/2003 was filed by the plaintiff
before the Special Deputy Collector (Revenue Court), Trichy, and the
said Court set aside the orders passed by the Tahsildar & Record Officer,
Palacode vide its orders dated 07.04.2005 and remanded the matter back
to the Tahsildar for considering the case of the plaintiff and the
defendants afresh. The counsel for the appellants contended that as
against the orders passed by the Revenue Court, Trichy, they filed a
revision in the year 2015. However, the counsel for the appellants could
not state the result of the said revision.
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S.A.No.783 of 2010 & M.P. No. 1 of 2010
15. Be that as it may, the plaintiff has filed the suit for
declaration of his title and for permanent injunction restraining the
appellants/defendants from interfering with his peaceful possession and
enjoyment of the suit property. In order to prove his title over the suit
property the plaintiff relied on the two sale deeds dated 08.06.2000
(Ex.A1) and 15.11.2000 (Ex.A2). The defendants in their written
statement had not denied the execution of the sale deed by one
Sathyanarayanan in favour of the plaintiff. Apart from the sale deeds the
plaintiff had also adduced several documentary evidence to show that he
is in possession of the suit property.
16. The main contention of the defendants in the written
statement is that the defendants 1 & 4 are the cultivating tenants of the
suit property and in order to substantiate the same they pressed into
service the proceedings of the Tahsildar & Record Officer, Palacode,
dated 29.09.2001 (Ex.B1), in which the defendants are shown as
cultivating tenants of the suit property. However, this particular document
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S.A.No.783 of 2010 & M.P. No. 1 of 2010
may not be useful to the case of the appellants/defendants for the simple
reason that the said order passed by the Tahsildar was set aside in the
appeal filed by the plaintiff before the Revenue Court, Tiruchirapalli in
Appeal No.17/2003. This is evidenced from the proceedings dated
07.04.2005 (Ex.A11) of the Special Deputy Collector (Revenue Court),
Trichy.
17. Learned counsel for the appellants placed reliance on the
decision in The State of Andhra Pradesh and Others vs. Star Bone Mill
and Fertilizer Co., reported in 2013(2) CTC 347 and contended that the
maxim "possession follows title" is applicable in cases where proof of
actual possession cannot reasonably by expected, for instance, in the case
of waste lands, or where nothing is known about possession one-way or
another and that presumption of title as a result of possession, can arise
only where facts disclose that no title vests in any party. In the instant
case, the plaintiffs have proved their title over the suit property and
though the defendants have contended that the defendants 1 & 4 are
cultivating tenants in the suit property, they have not adduced any
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S.A.No.783 of 2010 & M.P. No. 1 of 2010
documentary evidence and therefore, the decision in The State of Andhra
Pradesh and Others vs. Star Bone Mill and Fertilizer Co., cited supra
cannot be applied to the facts of the present case.
18. The appellants/defendants have not also adduced any
documentary evidence to show that they were the lessees of the suit
property. If they had really been cultivating the suit property as lessees,
their names would have been definitely indicated in Adangal. They did
not file Adangal extract before both the Courts below to substantiate their
contention that they are in possession of the suit property for more than
20 years as claimed by them. Moreover, the 4th defendant as DW1 had
admitted that the adangal stands in the name of Sathyanarayanan (PW3),
the vendor of the plaintiff. The defendants also contend that the suit
property was leased out to them by Sathyanarayanan (P.W.3). This was
strongly refuted by P.W.3. When the plaintiff had established his title
and possession over the suit property, the burden of proof shifts to the
defendants to show that they are in possession of the suit property as
cultivating tenants as claimed by them. In the instant case, the defendants
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S.A.No.783 of 2010 & M.P. No. 1 of 2010
have not established their contention by adducing acceptable oral/
documentary evidence. Both the Courts below had appreciated the
evidence adduced on both sides in proper perspective and decreed the suit
rightly in favour of the plaintiff. The counsel for the appellant did not
state how both the Courts below went wrong in assessing the evidence
adduced on both sides. Moreover, there is no substantial question of law
involved in the present case.
19. It is also pertinent to mention that this a second appeal
under Section 100 of the Code of Civil Procedure where the jurisdiction
of the High Court is confined to a substantial question of law. A full
Bench of the Supreme Court in Bholaram Vs. Ameerchand reported in
AIR 1981 SC 1209 has held that the High Court cannot interfere with the
concurrent factual findings of courts below in a second appeal. In fine,
the second appeal fails and is dismissed.
20. In the result,
i. the Second Appeal is dismissed. No costs. Consequently,
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S.A.No.783 of 2010 & M.P. No. 1 of 2010
connected Civil Miscellaneous Petition is closed.
ii. the decree and judgment dated 22.03.2010 passed in A.S. No.3 of
2007, on the file of the Subordinate Judge, Dharmapuri, and the
decree and judgment dated 27.10.2006 passed in O.S. No.260 of
2000, on the file of the District Munsif cum Judicial Magistrate,
Palacode, are upheld.
14.06.2023
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
R. HEMALATHA, J.
bga
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S.A.No.783 of 2010 & M.P. No. 1 of 2010
To
1. The Sub Court, Dharmapuri.
2. The District Munsif cum Judicial Magistrate, Palacode.
3. The Section Officer, VR Section, High Court, Madras.
S.A.No.783 of 2010
& M.P. No. 1 of 2010
14.06.2023
https://www.mhc.tn.gov.in/judis
