Madras High Court
Chinnasamy (Died) vs Annadurai on 23 October, 2024
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 S.A.(MD)Nos.98 & 99 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 26.09.2024
PRONOUNCED ON : 23.10.2024
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)Nos.98 & 99 of 2016 and
C.M.P.(MD)Nos.2091 & 2092 of 2016
S.A.(MD)No.98 of 2016
Chinnasamy (died) ... Appellant / 2nd Respondent/
2nd Defendant
1. Shanthi
2. Selvi
3. Minor Navin Kumar,
Rep. by mother and natural guardian Selvi
4. Minor Arun Kumar,
Rep. by mother and natural guardian Selvi
(Appellants 1 to 4 are brought on record as LRs. of the
deceased sole appellant vide order dated 21.04.2016
made in C.M.P.(MD)No.3167 of 2016) ... Appellants
Vs.
1. Annadurai
2. Saroja ... Respondents 1& 2 /Appellant 1&2 /
Plaintiffs 1 and 2
3. Periyannan ... 3 Respondent / 1st Respondent /
rd
1st Defendant
https://www.mhc.tn.gov.in/judis
2 S.A.(MD)Nos.98 & 99 of 2016
PRAYER : Second appeal filed under Section 100 of CPC, to set
aside the decree and judgment dated 21.02.2014 made in A.S.No.22 of
2011 on the file of the I Additional Subordinate Judge, Trichy, reversing
the decree and judgment dated 17.11.2009 made in O.S.No.260 of 2005
on the file of the District Munsif, Thuraiyur, by allowing the instant
second appeal and consequently dismissing the suit.
S.A.(MD)No.99 of 2016
Chinnasamy (died) ... Appellant / 4th Respondent/
4th Defendant
1. Shanthi
2. Selvi
3. Minor Navin Kumar,
Rep. by mother and natural guardian Selvi
4. Minor Arun Kumar,
Rep. by mother and natural guardian Selvi
(Appellants 1 to 4 are brought on record as LRs. of the
deceased sole appellant vide order dated 21.04.2016
made in C.M.P.(MD)No.3169 of 2016) ... Appellants
Vs.
1. Saroja ... 1st Respondent / Appellant /
Plaintiff
2. The Government of Tamil Nadu,
Rep. by the District Collector,
Trichy, Trichy – 1.
3. The Revenue Divisional Officer,
Musiri, Trichy District.
https://www.mhc.tn.gov.in/judis
3 S.A.(MD)Nos.98 & 99 of 2016
4. The Tahsildar,
Thuraiyur, Trichy District. ... Respondents 2 to 4/
Respondents 1 to 3/
Defendants 1 to 3
PRAYER : Second appeal filed under Section 100 of CPC, to set
aside the decree and judgment dated 21.02.2014 made in A.S.No.23 of
2011 on the file of the I Additional Subordinate Judge, Trichy, reversing
the decree and judgment dated 17.11.2009 made in O.S.No.459 of 2005
on the file of the District Munsif, Thuraiyur, by allowing the instant
second appeal and consequently dismissing the suit.
(in both S.As.)
For Appellants : Mr.Raguvaran Gopalan
For R-1 & R-2 : Mr.V.Balaji
***
COMMON JUDGMENT
The contesting defendant in O.S.No.260 of 2005 and O.S.No.459
of 2005 on the file of the District Munsif Court, Thuraiyur filed the
above second appeals. Both the suits were dismissed on 17.11.2009.
Questioning the same, A.S.No.22 of 2011 and A.S.No.23 of 2011 were
filed before the I Additional Sub Judge, Thiruchirappalli by the plaintiffs.
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The appeals were allowed and the decisions of the trial Court were
reversed on 21.02.2014. Challenging the judgments and decrees passed
by the first appellate Court, these second appeals have been filed. S.A.
(MD)No.98 of 2016 is directed against the judgment and decree made in
A.S.No.22 of 2011 which arises out of O.S.No.260 of 2005. S.A.
(MD)No.99 of 2016 is directed against the judgment and decree made in
A.S.No.23 of 2011 which arises out of O.S.No.459 of 2005. During the
pendency of the second appeals, the original appellant passed away and
his legal representatives have come on record. O.S.No.260 of 2005 was
filed by Annadurai and his wife Saroja for the relief of declaration and
permanent injunction. Chinnasamy, contesting defendant figured as the
second defendant in O.S.No.260 of 2005 and fourth defendant in O.S.
No.459 of 2005. In the second suit, the Government of Tamil Nadu and
the revenue officials were shown as defendants 1 to 3. The above second
appeals were admitted on 04.03.2016 on the following substantial
questions of law:-
“1. Whether the plaintiffs have discharged their
burden of proof and established that they were in
possession of the property prior to the filing of suit and
thereafter?
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2. Whether the lower appellate Court has erred in
decreeing the suit for possession on the basis of Exs.A3 to
A7 revenue documents alone, particularly when Ex.A.3 has
been subsequently modified by defendants 2 and 3?”
2. The learned counsel appearing for the appellants reiterated all
the contentions set out in the memorandum of grounds of appeal and
called upon this Court to answer the substantial questions of law in
favour of the appellants and restore the decisions of the trial Court and
thus allow the appeals.
3. Per contra, the learned counsel for the plaintiffs submitted that
the impugned judgments and decrees passed by the first appellate Court
are well reasoned and that they do not warrant interference. He submitted
that the substantial questions of law deserve to be answered against the
appellants and he called upon this Court to dismiss the second appeals.
4. I carefully considered the rival contentions and went through the
materials on record.
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5. The case of the plaintiffs is as follows:-
The suit property is comprised in survey No.126/3A in B.Mettur
Village and measures an extent of 90 cents. The property belonged to
Annadurai ancestrally. The property lying to the south of the suit
property comprised in survey No.126/3B and survey No.126/3C
admittedly belonged to Annadurai. Recognizing his title and possession,
patta passbook(Ex.A.3) was issued in favour of Annadurai. Patta No.211
in respect of the suit property mentions the name of Annadurai as the
pattadar. Annadurai settled the suit property in favour of his wife Saroja
vide settlement deed dated 20.07.2005. Since the plaintiffs apprehended
that the defendant Chinnasamy may fradulently effect mutation of the
revenue record in his favour, (Ex.A.4) legal notice dated 26.09.2005 was
issued to the Tahsildar, Thuraiyur. Ex.A.7 legal notice dated 17.11.2011
was issued to the jurisdictional Revenue Divisional Officer. Even though
the suit was instituted on 28.06.2005 itself, Chinnasamy managed to
obtain mutation of record in his name subsequently. Ex.B.7 to Ex.B.13
and Ex.B.15 are the documents in the name of Chinnasamy. But all of
them are post suit documents and hence ought not to be looked into.
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6. The learned counsel for the plaintiffs / respondents herein took
me through the testimony of Chinnasamy and pointed out that there is
nothing on record to show that his mother's vendor had title over the suit
property. He also submitted that the evidence on record clearly prove the
plaintiffs' possession.
7. I carefully considered the rival contentions and went through the
evidence on record. O.S.No.260 of 2005 is a suit for injunction
simpliciter. In the written statement filed in the said suit, Chinnasamy
pleaded that the suit property was purchased by his mother Marudhayee
vide registered sale deed dated 25.01.1954. Marudhayee executed a
registered Will dated 01.06.1977 bequeathing the suit property in favour
of Chinnasamy. Marudhayee passed away on 07.06.1998 and the Will
came into force. Chinnasamy dealt with the property by mortgaging the
same in favour of Thuraiyur Co-operative Land Development Bank on
20.03.1995 and discharged the mortgage on 07.06.2002. The defendant
thus categorically denied the title of the plaintiffs over the suit property.
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8. In the face of such categorical denial of the plaintiffs' title and
assertion of the second defendant's title, the plaintiffs ought to have
amended the suit prayer in O.S.No.260 of 2005. Failure to so is fatal. The
Hon'ble Supreme Court in Anathula Sudhakar V. P.Buchi Reddy
((2008) 4 SCC 594) had held as follows:-
“ 21. To summarise, the position in regard to suits for
prohibitory injunction relating to immovable property, is as
under:
(a) Where a cloud is raised over the plaintiff's title
and he does not have possession, a suit for declaration
and possession, with or without a consequential
injunction, is the remedy. Where the plaintiff's title is not
in dispute or under a cloud, but he is out of possession, he
has to sue for possession with a consequential injunction.
Where there is merely an interference with the plaintiff's
lawful possession or threat of dispossession, it is sufficient
to sue for an injunction simpliciter.
...”
Failure to seek the relief of declaration renders the suit in O.S.No.260 of
2005 as not maintainable.
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9. On 20.09.2024, the following additional substantial question of
law was framed:-
“3. Whether O.S.No.260 of 2005 is not maintainable
for having failed to seek the relief of declaration?”
10. Since the plaintiffs are already represented by a counsel, there
is no need to issue fresh notice.
11. I answer the third additional substantial question of law in
favour of the appellants. The judgment and decree made in A.S.No.22 of
2011 is set aside and S.A.(MD)No.98 of 2016 is allowed.
12. Of course the lacuna in O.S.No.260 of 2005 has been made
good by seeking the relief of declaration in O.S.No.459 of 2005. Saroja,
the plaintiff in the suit claims title over the suit property by virtue of the
settlement dated 20.07.2005 executed in her favour by her husband
Annadurai. Interestingly, though the settlement deed was shown as a
plaint document, it was not marked in the suit. Tracing of title as if that
the suit property is ancestral. Heavy reliance is placed on Ex.A.3 patta
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passbook. No doubt in Ex.A.3, Annadurai's name is found. But then, he
is shown only as a joint pattadar in respect of the suit property. Even
according to her own document, she can only be called as a joint
pattadar. I fail to understand as to how she could seek the relief of
declaration that she is the absolute owner of the suit property. On this
sole ground, Saroja's suit may have to fail.
13. But there are weightier reasons for non-suiting her. The
plaintiff had produced only revenue documents in support of her claim of
ownership. The Hon'ble Supreme Court in the decision reported in AIR
2014 SC 937 (Union of India V. Vasavi Coop. Housing Society Ltd.,)
had held as follows:-
“ 21. This Court in several judgments has held that
the revenue records do not confer title. In Corpn. of the
City of Bangalore v. M. Papaiah [(1989) 3 SCC 612] this
Court held that:
“5. … It is firmly established that the revenue
records are not documents of title, and the question
of interpretation of a document not being a
document of title is not a question of law.”
https://www.mhc.tn.gov.in/judis
In Guru Amarjit Singh v. Rattan Chand [(1993) 4 SCC
349] this Court has held that:
“2. … that entries in the Jamabandi are not proof of title.”
In State of H.P. v. Keshav Ram [(1996) 11 SCC 257] this
Court held that:
“5. … an entry in the revenue papers by no stretch
of imagination can form the basis for declaration of
title in favour of the plaintiffs.”
...
24. We are of the view that even if the entries in the record-
of-rights carry evidentiary value, that itself would not
confer any title on the plaintiff of the suit land in
question. ... We are of the view that these entries, as such,
would not confer any title. The plaintiffs have to show,
independent of those entries, that the plaintiff's
predecessors had title over the property in question and it is
that property which they have purchased. ... ”
As already mentioned, Ex.A.1 sale deed marked by the plaintiff is not in
respect of the suit property. Ex.A.2 is the legal notice issued by the
plaintiff to the defendants. Ex.A.3 is the patta passbook showing that
Annadurai is the joint pattadar. Ex.A.4, Ex.A.5, Ex.A.6 and Ex.A.7 are
revenue documents(computer patta / adangal extract / kist receipt). On
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the basis of such documents, relief of declaration could not have been
granted. On the other hand, the contesting defendant Chinnasamy had
marked Ex.B.1 dated 25.01.1954. It is a sale deed executed in favour of
Marudhayee Ammal, the mother of Chinnasamy conveying the suit
property. Of course the learned counsel appearing for the plaintiffs
would argue that Marudhayee Ammal's vendor did not have title over the
suit property. One should not forget that Ex.A.1 is a registered document
of the year 1954. In this document, the suit property with old survey
number has specifically been mentioned(339/3A). Ex.B.2 dated
01.06.1977 is the Will executed by Marudhayee Ammal in favour of
Chinnasamy. In this document also, the suit property along with old
survey number has been specifically mentioned. It is improbable that
documents could have been executed by persons with no title 70 years
ago. What clinches the issue in favour of the appellants is Ex.B.18. Ex.B.
18 which is of the year 1985. It is the extract of “A” register of
Balakrishnampatti East Village. It mentions the name of M.Chinnasamy
as the pattadar of survey No.126/3A. In Ex.B.18, one can notice that one
Loganathan was shown as co-pattadar of survey Nos.126/3B and 126/3C.
Admittedly, Annadurai purchased the lands comprised in survey Nos.
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126/3B and 126/3C only in the year 1999 from the said Loganathan. The
entry of the name of Annadurai in the revenue record is clearly
subsequent in point of time. Before that M.Chinnasamy's name alone was
figured in “A”Register in respect of the suit property. Thus the case of
the appellants is supported both by title deed documents as well as the
revenue record. That is why, the trial Court rightly dismissed the suit.
The first appellate Court went wrong in abruptly upholding the title of
the plaintiffs merely on the strength of the finding that the plaintiffs are
in possession and the defendants are not in possession.
14. The first appellate Court is of course right in rejecting the post
suit documents marked by the defendants. It is seen that prior to filing of
the suits, notices were issued to the jurisdictional Tahsildar as well as the
Revenue Divisional Officer not to make mutation of revenue record. At
the time of filing of the suit, Annadurai's name figured as co-pattadar.
The revenue authorities subsequently deleted Annadurai's name and
issued separate patta in favour of Chinnasamy. This was clearly illegal.
When the jurisdictional civil Court is seized of the matter, the revenue
authorities should hold their hands. The revenue authorities have to be
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censured for effecting mutation in the revenue record after the institution
of the suit. This improper conduct on the part of the revenue authorities
however cannot enure to the benefit of the plaintiff. Chinnasamy, the
contesting defendant had convincingly demonstrated that he has title
over the suit property. Saroja's claim of title therefore has to be rejected.
Once the primary relief has negatived, the consequential relief also has to
fail. I answer the first and second substantial questions of law in favour
of the appellants. The judgment and decree in A.S.No.23 of 2011 is set
aside and the judgment and decree of the trial Court is restored. S.A.
(MD)No.99 of 2016 is allowed. No costs. Consequently, connected
miscellaneous petitions are closed.
23.10.2024
Index : Yes/No
Internet: Yes/No
PMU
https://www.mhc.tn.gov.in/judis
To
1. The I Additional Subordinate Judge,
Trichy.
2. The District Munsif,
Thuraiyur.
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)Nos.98 & 99 of 2016
23.10.2024
https://www.mhc.tn.gov.in/judis
