Madras High Court
The Honourable Mr.Justice vs R.K.Muthusami(Died) on 12 November, 2025
SA No. 1293 of 1988
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12-11-2025
CORAM
THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN
SA No. 1293 of 1988
AND
SA No. 1294 OF 1988, SA No. 1295 OF 1988
1. T.N.Raja Gounder
2. Kumararaja (died)
3. Sivam K. W/o.T.R.Kumararaja
4.Vengatesh T.K.
5.Ramprasad T.K.
6.Lakshmipriya Kumararaja,
A2 died, A3 to A6 are brought on
record as LRs. of the deceased A2, vide
court order dated 01.12.2023 made in
CMP.No.7489 of 2022 in S.A.No.1293
of 1988(CKJ)
Appellants
Vs
1. R.K.Muthusami(died)
2.A.Shanmugam(died)
3.A.Muthu
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SA No. 1293 of 1988
4.Pappayee
5.Bakkiam
6.P.Arumugam
7.P.Muthu Gounder (died)
8.Rajammal (died)
memo recorded(USR.No .4817) R8-
died, R9 to R11, who are already on
record are recorded as LRs. of the
deceased R8 vide court order dated
16/04/2024 made in S.A.No.1293 of
1988
9.M.Murugesan(died)
10.M.Raju(died)
11.M.Senthil Kumar
12.Parvathy
13.Vasuki,
14.Kalaiselvi,
15.Sumathi,
16.Komathy,
17.Naveen,
18.Gobhi,
R2 died, R12 to R15 are brought on
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SA No. 1293 of 1988
record as LRs of the deceased R2 and
R10 died, R16 to R18 are brought on
record as LRs of the deceased R10 vide
court order dt 01/12/2023 made in
CMP.Nos.4725 and 4726 of 2021 in
SA.No.1293 of 1988
19.Palaniswamy
20.Jayammal
R7 died, R19 and R20 are brought on
record as LRs of the deceased R7 vide
court order dated 04/03/2024 made in
CMP.Nos.3170, 3176 and 3177 of 2023
in S.A.No 1293 of 1988
21.Saraswathi
22.Sathyamurthy
23.Gokulapriya
R9 died, R21 to R23 are brought on
record as LRs of the deceased R9 vide
court order dated 05/02/2025 made in
CMP No.9658 of 2024 in SA.No. 1293
of 1988.
Respondents
PRAYER
Against the judgment and decree dated 29.07.1988 made in A.S.No.88 of 1986
on the file of the I Additional District Court, Salem reversing the decree and
judgment dated 11.04.1986 made in Original Suit No.236 of 1985 on the file of
the Sub Court, Sankari
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SA No. 1293 of 1988
For Appellants : Ms.L.Sweety for
Mr.M.Nallathambi
For Respondents 3 : Mrs.Chitra Sampath, Senior Counsel,
for Mr.S.Kalyanaraman
For Respondents
11, 16 to 18, 21 to 23 : Mr.P.Thiyagarajan
For Respondents
13 to 15 : Mr.P.Ravishankar Rao
For Respondents
19 and 20 : Mr.L.Mouli
R1, R2, R4, R5, R7, R8, R9 and R10 – Died
R6 and R12 - Not ready in notice
SA No. 1294 of 1988
1. P.Arumugam
Appellant
Vs
1. R.K.Muthusami (died)
2.A.Shanmugam
3.A.Muthu
4.Pappaayee
5.Bakkiam
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SA No. 1293 of 1988
6.Rajammal
7.M.Murugesan
8.M.Raju
9.M.Senthil Kumar
Respondents
PRAYER
Against the judgment and decree of the I Additional District Court, Salem dated
29.07.1988 in Appeal Suit No.89 of 1986 preferred against the judgment and
decree of the learned Subordinate Judge, Sankari dated 11.04.1986 made in
Original Suit No.304 of 1985.
For Appellant : No appearance
For Respondents 3 : Mrs.Chitra Sampath, Senior Counsel,
for Mr.S.Kalyanaraman
R1, R2, R4 and R5 – Died
R7 to R9 - Not ready in notice
SA No. 1295 of 1988
1. T.N.Raja Gounder
Appellant(s)
Vs
1. A.Shanmugam
2.A.Muthu
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SA No. 1293 of 1988
3.R.K.Muthusami Gounder(died)
4.Pappayee W/o late Appavoo Gounder
5.Bakkiam D/o Late Appavoo Gounder
6.Rajammal(died)
7.M. Murugesan
8.M.Raju
9.M. Senthil Kumar
R6 died, R7 to R9 already on record are
recorded as LRs of the deceased R6.
Memo recorded vide court order dated
26/04/2024 made in SA.No.1295 of
1988
Respondent(s)
PRAYER
Against the judgment and decree dated 29.07.1988 in Appeal Suit No.90 of
1986 on the file of the I Additional District Court, Salem reversing the decree
and judgment dated 11.04.1986 made in Original Suit No.305 of 1985 on the
file of the learned Subordinate Judge, Sankari.
For Appellant : No appearance
For Respondents 2 : Mrs.Chitra Sampath, Senior Counsel,
for Mr.S.Kalyanaraman
R1, R3, R4 and R5 – Died
R7 to R9 - Not ready in notice
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SA No. 1293 of 1988
COMMON JUDGMENT
These three second appeals, having arisen out of a common judgment,
have been heard together and disposed of by this common judgment.
2. O.S.No.236 of 1985 came to be filed seeking for the following reliefs:
“To declare the plaintiffs and the fourth defendant are
entitled to the suit property and the title to the same with them.
To grant permanent injunction restraining them in any
way interfering with the plaintiffs possession and direct the
defendants 1 to 3 to pay the Court and grant such other relief or
reliefs.”
3. O.S.No.304 of 1985 came to be filed seeking for the following reliefs:
“To restrain the defendants and their men in any way
interfering with the peaceful possession and enjoyment of the
suit property by the plaintiffs by means of permanent
injunction.
Awarding costs of the suit”
4. O.S.No.305 of 1985 came to be filed seeking for the following reliefs:
“To grant permanent injunction restraining the
defendants and their men from unlawful trespassing upon the
suit property or otherwise interference with the plaintiffs
possession of the suit property.
Awarding costs of the suit”
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5. The lead case is OS.No.236 of 1985 on the file of the Subordinate
Court at Sankari. Originally, it was presented as O.S.No.564 of 1983 before
the Subordinate Court at Salem. Subsequently, another suit was presented
in O.S.No.643 of 1983, on the file of the District Munsif Court at
Tiruchengode. Thereafter, it was transferred to the file of Sub Court at
Salem and renumbered as O.S.No.572 of 1984. Yet again, it was transferred
to the file of the Sub Court, Sankari and renumbered as O.S.No.304 of
1985. This was a suit for permanent injunction filed by the plaintiffs in
O.S.No.236 of 1985 against their alleged lessee. It sought to restrain the
defendant from interfering with the plaintiff's peaceful possession and
enjoyment of the suit properties. Another suit had been filed in O.S.No.683
of 1983 on the file of the District Munsif Court at Tiruchengode. This was a
suit for permanent injunction restraining the defendants from unlawfully
trespassing upon the suit property or otherwise interfere with the
possession of the property by the plaintiff. This suit too, was subsequently
transferred to the Sub Court, Salem and numbered as O.S.No.574 of 1984.
Thereafter, it was yet again, transferred to the file of the Subordinate Court
at Sankari and numbered as O.S.No.305 of 1985. The plaintiff in the last
suit is the first defendant in O.S.No.236 of 1985.
6. The learned Subordinate Judge, Sankari tried the three suits
together. In and by way of a judgment dated 11.04.1986, he dismissed
O.S.No.236 of 1985 and O.S.No.304 of 1985, and decreed the suit in
O.S.No.305 of 1985. The plaintiffs, being aggrieved by the said judgment
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and decree, preferred three appeals to the learned District Judge at Salem.
These appeals were received as A.S.No.88 of 1986, A.S.No.89 of 1986 and
A.S.No.90 of 1986. The learned I Additional District Judge, in and by way of
a judgment dated 29.07.1988, allowed all the appeals. Consequently, he
decreed O.S.No.236 of 1985 and O.S.No.304 of 1985 as prayed for with
costs. He dismissed O.S.No.305 of 1985 with costs.
7. Aggrieved by the reversal of the decrees, three second appeals were
presented before this Court in S.A.Nos.1293 to 1295 of 1988.
8. The Hon'ble Mr.Justice T.N.Vallinayagam set aside the judgment of
the lower appellate court and restored the judgment of the trial court by
allowing the second appeals on 18.02.1997. The respondents in the second
appeals preferred Civil Appeals to the Supreme Court in Civil Appeal
Nos.7774-7776 of 1997. The Supreme Court, by a judgment dated
10.09.2003 allowed the appeals and remitted the same to this court for
fresh disposal. Hence, these appeals are again before this court.
9. For the sake of convenience, the parties will be referred to as the
plaintiffs and the defendants, keeping in mind, their respective ranks in
O.S.No.236 of 1985.
10. It is the case of the plaintiffs that the suit schedule mentioned
property consists of three tiled houses. They originally belonged to one Raja
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Gounder. The said Raja Gounder married one Pavayee Ammal @ Nallammal.
The couple had three children, namely,
(i) Senguttu Nalliah Gounder;
(ii) Appavu @ Nallaiah Gounder; and
(iii) Chinnayan @ Raja Gounder.
11. The father, Raja Gounder, passed away in the year 1906 and his
three sons succeeded to the estate. The aforesaid three persons executed a
sale deed for the suit property and the other properties in favour of one,
Peria Gounder and his brother, Muthuraja Gounder on 17.08.1906. The sale
was for valid consideration of Rs.500.00. Pursuant to the sale, the vendors
also handed over possession of the property to the purchasers. The
purchaser, Muthuraja Gounder passed away in 1941 leaving behind his
son, Appavu, the first plaintiff to succeed to his estate. Peria Gounder had
two children, namely, Raja Gounder and Muthu Gounder (fourth defendant).
Peria Gounder passed away in 1952.
12. During the lifetime of Peria Gounder and Muthu Raja Gounder,
they retained the suit property and sold the other landed properties which
came into their hands, to third parties. The family of the original vendor,
Raja Gounder purchased the same from such third parties.
13. Raja Gounder died as a bachelor on 21.10.1981. He bequeathed
all his immovable properties to the second plaintiff, R.K.Muthusamy, by way
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of a registered 'WILL', dated 05.07.1981. The plaintiffs pleaded that the first
plaintiff, Appavu Gounder is entitled to 1/2th share and the second plaintiff,
R.K.Muthusamy is entitled to 1/4th share and the fourth defendant, Muthu
Gounder is entitled to other 1/4th share.
14. The first plaintiff claimed that he is residing in door No.170. and
his cousin, Raja Gounder, (the bachelor), had let out the door Nos.171 &
171-A in the year 1972 to one, Natesan, who was in occupation till the year
1982. Door No.171-A had become dilapidated, and a shed alone was left.
The fourth defendant, Muthu Gounder went away to Madras and settled
there. Consequently, he did not join the plaintiffs 1 and 2 to file the suit.
Hence, he was arrayed as the fourth defendant.
15. The first defendant is one, T.N.Raja gounder. The second
defendant, Kumararaja is his son. The third defendant, P.Arumugam is a
tenant of theirs. As the defendants 1 to 3 attempted to interfere with the
peaceful possession and enjoyment of the plaintiffs, the plaintiffs were
constrained to present the suit for declaration of title and for permanent
injunction.
16. Summons were served on the defendants. The first defendant filed
a written statement and it was adopted by his son, the second defendant.
The first defendant accepted that the original owner of the property was his
grandfather, Raja Gounder. He also accepted the relationship between Raja
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Gounder, Pavayee Ammal and the birth of three male children to them. He
also accepted that a sale deed had been executed on 17.08.1906 by the
legal heirs of Raja Gounder, in favour of Muthuraja Gounder and Peria
Gounder, the ancestors of the plaintiffs and the fourth defendant. According
to him, the sale deed was sham and nominal and no consideration was paid
for the same. As the document was not meant to be acted upon, it was not
given effect to. He urged that title to the properties did not pass by virtue of
that document and the possession was also not delivered.
17. The first defendant further pleaded that the vendors' family
continued to remain in possession and thereafter, the defendants were in
possession of the same. Consequently, the defendants had perfected their
title by adverse possession. He pleaded that the revenue records stood in the
name of his father, Appavu @ Nalliah Gounder and thereafter, in his name.
He urged that he is the one, who has been paying the house tax for the said
property as its owner, after his father's death. In effect, the plea being that,
despite the sale deed having been executed by his father and his senior and
junior paternal uncles in favour of Peria Gounder and Muthuraja Gounder,
their family continued to be in possession of the properties. He alleged
Natesan, who the plaintiffs pleaded was their tenant, was in fact his tenant,
and it was the first defendant, who had leased the properties to several third
parties. On these pleadings, he sought for dismissal of the suit.
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18. Insofar as O.S.No.304 of 1985 is concerned, as pointed out earlier,
it is a suit for bare injunction. After having traced their title as they did in
O.S.No.236 of 1985, the plaintiffs pleaded that the third defendant,
Arumugham, who is the sole defendant in O.S.No.304 of 1985, attempted to
trespass into the property on 18.06.1983. Immediately, the first plaintiff
lodged a complaint with the police. Thereafter, Arumugham demanded the
plaintiffs to sell the property to him. When the plaintiffs refused,
Arumugham, on 17.10.1983, attempted to trespass into the property. With
great difficulty, the plaintiffs prevented such trespass. Instead of being a law
abiding citizen, Arumugham, who has a large number of supporters, started
proclaiming that he will trespass into the property and dispossess the
plaintiffs. Fearing that this incident might take place at any time, the
plaintiffs came forward with a suit for injunction.
19. Arumugham, on being served with summons, filed a written
statement. He pleaded that he is a lessee under the first defendant in
O.S.No.236 of 1985, namely, T.N.Raja Gounder. He alleged that the
plaintiffs have no right, title, or interest over the property. He pleaded that
he is running a Timber business and Tiles Godown, under the name and
style of "N.Palaniappa Goundar and Sons”. He pleaded he was using the
vacant land in the suit property for the purpose of business to store timber
and tiles. He took a stand that he was paying the house tax for door No.170
and 171, for and on behalf of his landlord, T.N.Raja Gounder. He added that
he was not aware of the existence of door No.171A. He denied that the first
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plaintiff is residing in door No.170, and that the remaining portion of the
property was in occupation of Natesan. He denied the allegation of attempt
to trespass on the ground that there was no necessity for him to trespass, as
he is in possession of the property. On the contrary, he alleged that the
plaintiffs had attempted to dispossess him and damaged the goods stored in
the suit property, for which he lodged a complaint on 24.10.1983. On
account of this ill motive of the plaintiffs, he pleaded that he had suffered a
loss to the tune of Rs.30,000/-. Based on these pleas, he sought for
dismissal of the suit.
20. The first defendant in O.S.No.236 of 1985 has also presented a
suit in O.S.No.305 of 1985. This too, was a suit for bare injunction. In this
suit, he pleaded that there are three tiled buildings in the suit property. The
municipality assessment for the said property is No.2333 and the electricity
service connection No.2477, and that both these stands in his name. He
urged that the three tiled buildings were constructed by his father, Appavu
@ Nalliah Gounder. He had put one, Arumugham into possession of the
property and that he is the absolute owner of the same. In addition to
occupying a portion, he pleaded that he had leased out the property to
several third parties, namely, Palaniappan, Arumugam Chettiar, A.Natesan
Mudaliar and Arumugam. He alleged that the defendants (who are the
plaintiffs in O.S.No.236 of 1985) are neighbours at Rajagoundampalayam
and there was some bad blood between both of them. On 28.10.1983 and
30.10.1983, the plaintiffs in O.S.No.236 of 1985 had attempted to trespass
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into the suit property. With the help of neighbours and his lessee, the first
defendant thwarted their attempt. Since the plaintiffs in O.S.No.236 of 1985
were holding out that they will dispossess the first defendant, he came
forward with the suit in O.S.No.305 of 1985.
21. The plaintiffs and the first plaintiff's sons, who were arrayed as
defendants in O.S.No.305 of 1985, filed a written statement. Apart from
reiterating their pleadings in O.S.No.236 of 1985, they pleaded that the first
defendant had been a Village Munsif in Tiruchengode, and enjoyed active
support of the police and other Government & Municipal officials. They
pointed out that, by abusing his position, he had transferred the municipal
records and electricity service connection in his name. They pleaded that
there was no necessity for them to trespass into the property on 28.10.1983,
or on 30.10.1983, as they were the absolute owners of the property. They
categorically pleaded that they were in possession of the same and sought
for dismissal of the suit.
22. On the basis of these pleadings, the trial court framed the
following issues:
“(1) Whether the plaintiffs are entitled for declaration and injunction?
(2) Whether the sale deed dated 17.08.1906 is a sham and nominal
transaction?
(3) Whether the plaintiffs are in possession of the property?
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(4) Whether the 1st defendant has perfected his title by adverse
possession?
(5) Whether the 2nd defendant is an unnecessary party to the suit?
(6) Whether the suit is in time?
(7) To what relief?
(1) Whether the plaintiff is entitled to for permanent injunction?
(2) To what relief?
(1) Whether the plaintiff is in lawful possession of the property?
(2) Whether the plaintiff is entitled for injunction?
(3) To what relief?
23. The plaintiffs, apart from examining themselves, examined three
other witnesses. In all, PW1 to PW5 were examined. They exhibited 25
documents, namely Ex.A1 to Ex.A25. The first defendant entered witness
box as DW1 and examined four other witnesses, including the defendant in
O.S.No.304 of 1985 viz., P.Arumugham, as a witness on his side. In all, the
defendants examined five witnesses. The defendants marked Ex.B1 to
Ex.B57. Pending the suit, the Trial Court appointed an Advocate
Commissioner. He filed three documents, a report, list of inventories and a
plan. They were received as Ex.C1 to Ex.C3.
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24. The learned Trial Judge held that the sale deed dated 17.08.1906
is a sham and nominal document and consequently, came to a conclusion
that the plaintiffs cannot claim any right, title, or interest over the property.
He also held that the plaintiffs had not proved that they were in possession
of the property at any point of time and that the first defendant had
demonstrated with overwhelming evidence that he and his tenants are in
possession of the same and consequently, answered the issue of possession
against the plaintiffs. He further held that the first defendant had perfected
his title by adverse possession. On the basis of these findings, he came to a
conclusion that the plaintiffs are not entitled to any relief. Consequently, as
pointed out above, he dismissed O.S.No.236 of 1985 and O.S.No.304 of
1985 and decreed O.S.No.305 of 1985.
25. When the matter was carried to the lower appellate court, the
learned Judge framed the following issues for consideration under Order XLI
Rule 31 of the Code:
“The points that arise for consideration in
A.S.No.88/1986 as follows:
(1) Whether the sale deed dated 17.08.1906
by Pavayee alias Nallammal and her sons was a
sham and nominal one?
(2) Whether R1 has title acquired or
otherwise?
(3) Whether the applicants have title and
possession?
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The points that arise for determination in
A.S.No.89/1986 are as follows:-
(1) Whether the appellants have title and
possession?
(2) Whether the tenancy alleged by the
respondent is true?
(3) Whether T.N.Raja Gounder has title and
possession?
The points that arise for determination in
A.S.No.90/1986 are as follows:
(1) Whether the sale deed dated 17.08.1906
by Pavayee alias Nallammal and her sons was a
sham and nominal one?
(2) Whether R1 has title acquired or
otherwise?
(3) Whether the appellants have title and
possession?”
26. After re-appreciation of the entire evidence, he came to a
conclusion that the sale deed executed on 17.08.1906 was for valid
consideration, and is not a sham and nominal one. He pointed out that
municipality registers cannot be relied upon for the purpose of deciding the
possession. He reached this conclusion on the finding that when the
plaintiffs approached the municipality for the records, they had intimated
that the documents had been destroyed. The reason being under the rules
connected with the then Panchayat Act, house tax demand register should
be maintained only for five years. Curiously enough, the very same
municipality issued copies of registers, which they had earlier stated were
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destroyed, to the first defendant. He held that the possession was with the
plaintiffs, and that they have the title and possession of the same, and that
the first defendant had not acquired title by adverse possession.
27. When the defendants preferred Second Appeals before the Court,
the following substantial questions of law were framed for consideration:
“(i) Whether the plaintiffs could establish their possession
from 1906 till the date of suit to claim the relief of injunction?
(ii) Who is in possession right from 1906 till the date of
suit?
(iii) Whether the defendants' prescribed title by adverse
possession?”
28. I heard Ms.Sweety representing Mr.M.Nallathambi for the
appellants, Ms.Chitra Sampath, learned Senior Counsel for
Mr.S.Kalyanaraman, Mr.L.Mouli, Mr.P.Thiyagarajan and Mr.Ravishankar
Rao for the respondents.
29. Ms. Sweety argued as follows:
(i) The sale deed dated 17.08.1906 is a sham and nominal document;
(ii) The plaintiffs have not produced any document to show their
possession after execution of the sale deed;
(iii) The plaintiffs did not produce any document to show that the
revenue records were transferred in their name after the alleged sale;
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(iv) The original of Ex.A1 was in the custody of the
defendants/appellants and not produced by the plaintiffs;
(v) The defendants have produced documents to show their
continuous possession from 1925 to 1983 and thereby, the defendants have
proved their title by prescription, even assuming Ex.A1/Ex.B2 is a
document that confers title on the plaintiffs;
(vi) The Municipal records under Ex.B8 stand in the name of the 1st
defendants and his father, which is correlated by Ex.B12. Ex.B16 to Ex.B20
and Ex.B21 to Ex.B30 point out that the defendants are in possession and
enjoyment of the property;
(vii) The possession is further proved by the electricity service card
that has been produced by the defendants;
(viii) The lease deed entered into between the tenant Arumugam and
the first defendant indicates that the property had been leased by the
defendant in favour of the said Arumugam. She relied upon Ex.B49 to
Ex.B54 to the same effect.
30. In fine, her arguments is that the defendants have custody of the
documents and, since they have been enjoying the property by leasing out
the same, when read together with the municipal records, it is evident that
the defendants are the ones, who are in possession and hence, the judgment
and decree of the lower appellate court should be set aside. In the
alternative, she adds that the appellants have prescribed title by adverse
possession.
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31. Insofar as the appeal against Arumugam is concerned, she points
out that the plaintiffs admit to the tenancy between Arumugam and
themselves, but plead that Arumugam is a stranger. On Ex.A16 to Ex.A21,
she urges that the documents were filed through PW5, the son of the first
plaintiff and that he is incompetent to speak about the same.
32. Per contra, the learned counsel for the respondents submitted as
follows:
(i) Ex.A1/Ex.B2 is not a sham and nominal document but one
executed for valid consideration and had come into force.
(ii) There is no pleading as to how the defendants came into
possession of the property after the execution of Ex.A1 / Ex.B2;
(iii) The document under Ex.A1/Ex.B2 cannot be a sham and nominal
document, when it had been acted upon as is evident from Ex.A18, Ex.A19,
Ex.A20 and Ex.A21;
(iv) Revenue & municipality receipts will not confer title. It was only on
15.07.1982, the defendant had made an application to the municipality for
mutating the revenue records in his name. Ex.B31 to Ex.B33 relied upon by
the defendants do not relate to the suit property;
(v) The defendants have not prescribed title by adverse possession;
(vi) The lower appellate court had analysed the issues threadbare and
therefore, there is no necessity for this court to re-appreciate the evidence.
They add this Court cannot re-appreciate the evidence as sought for by the
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appellants in exercise of powers under Section 100 of the Code of Civil
Procedure.
33. In particular, Mrs.Chitra Sampath appearing for
Mr.Kalyanaraman urges that Ex.A16 to Ex.A21 prove that the sale deed in
Ex.A1/Ex.B2 was acted upon. She points out that when the defendants
plead that the document relied upon by the plaintiffs is a sham and nominal
transaction, they ought to have filed a separate suit or at least, a counter
claim seeking for declaration to that effect. For this point, She relies upon
the judgment of the Supreme Court in Vishwanath Bapurao Sabale v.
Shalinibai Nagappa Sabale, (2009) 12 SCC 101.
34. Mr.L.Mouli urges that the combined reading of Ex.A1 with Ex.B1
would point out that the property had been alienated only for settling dues
incurred by the family of the defendant's ancestors and hence, the
document on its own showing cannot be treated as sham and nominal. He
states that the appellants cannot plead adverse possession, as the date on
which the possession became adverse to the plaintiffs, has not been
pleaded. He states that the appellants ought to have filed a suit for
declaration of title by adverse possession and cannot set up a defence in a
suit for title filed by the plaintiffs. Finally, he states that Section 90 of the
Evidence Act comes to the rescue of the respondents as Ex.A1/Ex.B2 is of
an ancient origin as required by that Section.
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35. I have carefully gone through the papers and have paid my
anxious consideration to the submissions made by both sides. The facts
have already been set forth in detail and hence, I am not reiterating the
same. As the facts, issues and questions of law are intertwined, they are
taken up together.
36. For the sake of appreciation, the admitted genealogy of the parties
are set forth hereunder:
Genealogy Tree of the Vendor's Family
Raja Gounder – Pavayee Ammal
____________________________________|__________________________________
| |
|
Sengottu Nalliah Appavu @ Nalliah- Raja
Gounder Gounder Gounder
|
|
|
T.N.Raja Gounder
(D-1: R-1)
|
Kumara Raja (Son)
(D-2: R-2)
|
P.Arumugam
(D-3: R-3)
(Lessee under D-1 & D2)
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Genealogy Tree of the Vendee's Family
Periya Gounder Muthuraja Gounder
___________________|__________________ |
| | Appavu Gounder
st
Raja Gounder Muthu Gounder (1 Plaintiff)
|
|
R.K.Muthusamy Gounder
nd
(2 Plaintiff)
37. The factum of execution of sale deed on 17.08.1906, Ex.A1 /
Ex.B2 is not in dispute between the parties. The plea of the defendants is
that the document is a sham and nominal one.
38. When can a document be said to be sham and nominal? A
document will be sham "if it ostensibly creates rights/obligations, which are
not intended to be acted upon by the parties to the deed". It is pursuant to a
secret arrangement with an ulterior motive of securing an undisclosed
advantage to the owner. It should be a product of collusion between the
parties to the document to achieve an illegal objective. (See, V.M. Salim v.
Fathima Muhammed, (2011) 15 SCC 756).
39. Though by usage, the term “sham and nominal” are used together,
they have different legal connotations. A “sham transaction” is one that is
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not intended to be acted upon by the parties. The document executed by the
parties is pursuant to a secret arrangement with an ulterior motive.
Whereas, a “nominal transaction” is one where an apparent owner, often
referred to as a Benamidar, holds a property for the benefit of the real owner
and no title was intended to pass to the nominal purchaser. In either case,
title never passes on to the person, whose name is shown in the deed. When
it relates to a sale deed, the sale lacks real consideration and has no
intention of transferring ownership. It is normally a contract that serves as a
camouflage to deny the benefits. The three principle ingredients to such
transactions are:-
(i) no consideration is paid;
(ii) title is not intended to be passed; and,
(iii) it was not meant to be acted upon.
Hence, the burden of proof lies on a person claiming that the document is
sham and nominal to prove the same.
40. Remembering these principles, let me now approach the case at
hand. As long as the original vendors were alive, no suit or claim was made
by them that the document was a sham and nominal one. It was for the first
time, nearly after 80 years, after the execution of the document in 1983,
that the disputes arose between the parties regarding the deed. The very
property was the subject matter of several transactions after the execution
of Ex.A1/Ex.B2. The original purchasers, namely, Periya Gounder and
Muthuraja Gounder had, in exercise of their ownership, created a mortgage
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in favour of Papayee Ammal. This was by way of a registered document in
Document No.3608/1907, marked as Ex.A17. The document was executed
on 31.10.1907.
41. A perusal of Ex.A17 shows that Muthuraja Gounder and Periya
Gounder had acquired the property, which they were mortgaging, by way of
a document on 17.08.1906, in document No.2793/1906. Ex.A1 / Ex.B2 is
that document. This points out that the predecessors in title of the plaintiffs
had not only asserted their title by purchase, but had also mortgaged the
same in exercise of their ownership.
42. Yet again, this property had been dealt with by way of another
document in Doc. No.2390/1912 marked as Ex.A18. On 15.07.1912, ten
persons had executed the document, to which the predecessors in title of
the plaintiffs, were also parties. Within a couple of days, another document
also came to be executed by the aforesaid 10 persons in Doc.No.2391/1912
on 17.07.1912. If not for Ex.A1 / Ex.B2, the purchasers, Periya Gounder
and Muthuraja Gounder could not have executed Ex.A18 & Ex.A19. They
did so in the capacity of owners of the schedule mentioned properties.
43. The next document, which throws much light on the nature of sale
deed dated 17.08.1906 is Ex.A20. This was a document to which Appavu @
Nalliah Gounder, the father of the first defendant was a party. This is in
document No.367/1917 dated 05.03.1917. To this transaction also, the
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aforesaid 10 persons were parties. On 02.06.1917, another document was
entered into between the parties, namely, the first defendant's father and
the 1st plaintiffs' father in document No.1501/1917. By this document, the
purchasers, under Ex.A1/Ex.B2, transferred a portion of the property in
favour of the father of the first defendant. This document was exhibited as
Ex.A21.
44. I have referred to these documents because, if Ex.A1/Ex.B2 were
to be treated as a document not conveying title or as sham and nominal,
then there would have been no necessity for the father of the first defendant
to purchase portions of the property conveyed earlier under Ex.A1 / Ex.B2,
which he is said to have ostensibly alienated in favour of the predecessors in
title of the plaintiffs.
45. When these documents were pointed out to Ms.Sweety, she urged
that no person connected with the documents was examined and it was
PW5, who had exhibited the same. On the face of it, the submission is
untenable. This is because the documents, at the time of their marking
before the court, were already more than 7 decades old. It is not the case of
the defendants that the parties to the documents were alive and they had
been kept away from the witness box. The documents are registered deeds
executed between the predecessors in title of the plaintiffs and therefore, the
plaintiffs are competent to exhibit the same.
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46. Apart from Ex.A17 to Ex.A21, another fact which looms large
against the defendants is the content of Ex.A1/Ex.B2, read with Ex.B1. The
sale consideration for Ex.A1/Ex.B2 was Rs.500/-. Consideration was to be
paid in the following manner:
(i) Rs.180/- to the creditor who had obtained a decree,
(ii) Rs.300/- to settle the dues of another creditor, and
(iii) Rs.20/- paid in cash to the vendors.
47. The first defendant has produced Ex.B1, which is a suit register of
O.S.No.120 of 1903. This was a suit presented by one, Arunachalam Chetty,
against the grandmother, father and uncles of the first defendant. The suit
was one based on a promissory note. The suit came to be decreed on
25.03.1903. The decree holder had put this decree into execution in
REP.No.715 of 1904.
48. The Executing Court had passed a direction to attach the
movables of the father of the first defendant and his brother. The movables
had also been sold for a sum of Rs.25/- and part satisfaction was recorded.
After having suffered several proceedings, the decree holder recorded full
satisfaction of the decree to an extent of Rs.170-0-0. Thereafter, the cattle
and movables belonging to the judgment debtor / predecessors of the
defendants were directed to be released by the Executing Court, pursuant to
an order in REA.No.1211 of 1906. This order was passed on 30.08.1906.
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49. As rightly pointed out by the counsel for the legal heirs of the
second plaintiff, the amount paid to the decree holder in O.S.No.120 of 1903
tallies with the amount set forth in Ex.A1/Ex.B2. The demand by the Trial
Court that the plaintiffs ought to have proved the payment of Rs.500/- after
80 years is putting an impossible burden on the plaintiffs. The plaintiffs had
produced a sale deed in the favour of their predecessors, which is a
registered document and has a ring of genuineness attached to it. The
burden of proof lies very heavily on the defendants 1 and 2, who had taken
a stand that the document is a sham and nominal one.
50. To expect a party to prove the payment of consideration, after a
lapse of 80 years cannot but be termed as an impossible task. The finding of
the trial court in this regard is perverse. It is not the role of the courts to
demand that parties perform impossibilities. The trial court had not
appreciated the scope of Ex.B1 and Ex.A1/Ex.B2 in the correct perspective.
This aspect had rightly been interfered with and set right by the lower
appellate court. I should point out here that the sale deed, which had been
executed for the purpose of extinguishing the liability in the money decree,
had in fact achieved that purpose, because the decree itself came to be
satisfied, a mere 13 days thereafter on 30.08.1906.
51. In the earlier portion of the judgment, I had pointed out that a
sham document must be preceded by a secretive arrangement, in order to
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bring about a document, which is not intended to convey title, with an
ulterior motive of securing an undisclosed advantage of the owner. None of
these conditions are satisfied in the present case.
52. Going through the records, I am able to conclude that the father of
the first defendant, along with his siblings represented by their mother, had
executed a sale deed transferring the title for the purpose of repayment of
antecedent debts, which were incurred by the family and the debts were also
referred to in the very sale deed. It was not a case where the document was
entered into for the purpose of keeping the property away from the creditors
of the family, but the sale deed was entered into for the purpose of receiving
funds in order to discharge the creditors. This is clear from Ex.B1. As none
of the requirements of a sham transaction have been satisfied in the facts
and circumstances of the present case, I am of the view that the defence
that has been taken by the first defendant should be termed as a sham one.
53. The aforesaid discussion leads me to the conclusion that not only
was the sale deed executed and acted upon, but also supported by
consideration. Hence, I am not in a position to agree with the submissions of
Ms.Sweety to the contrary.
54. The argument of Ms.Sweety is that the revenue records, that have
been produced by the first defendant points out that the first defendant and
before him, his father, had been in continuous possession and enjoyment of
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the property and therefore, the plaintiffs are not entitled to the relief of
injunction. Entries made in the municipal records cannot confer title. This
is too fundamental a position of law, and the judgment need not be
burdened with authorities for the said purpose. If the case of the appellants
is to be accepted, then it must be clear and categorical that there were only
door Nos.170, 171 and 171A in the Bungalow Street, Tiruchengode. On the
contrary, the evidence of DW1 would point out that on the same road, both,
for the property under the occupation of the tenants of the first defendant,
as well as the property of the plaintiffs, the door Nos.170 and 171 were
given. This is clear from the evidence of DW1. The relevant portions are
extracted hereunder:
“uh$h ft[z;ld;ghisaj;jpy; 35 tUv&khf
FoapUe;njd;/ ehd; 1980 mf;nlhgh; khjk; Xa;t[
bgw;nwd;/ jhth brhj;jpy; nlhh; ek;gh; 171A vd;w
Foir ,Ue;jJ/ ,J enlrd; (PW3) fl;odhh;/
nlhh; ek;gh; 171A fl;olj;jpw;Fk; vdf;F ghj;jpak;
,y;iy/ RthjPdKk; ,y;iy/ ..... Ex.B3
brhj;Jf;Fk; jhth brhj;Jf;Fk; xnu rh;nt ek;gh;/
xnu thp tpjpg;g[ jhd;/ Ex.B3 epyj;jpd; ePsk;.
mfyk; 52 1-2 x 41 1-2 rJuoahFk;/ S.No.87/2 -y;
bkhj;j tp!;jPuzk; Rkhh; 2 Vf;fh; MFk;/ jhth
brhj;Jk; Ex.B3 brhj;Jk; xnu epykhf ,Ue;njd;/
ABT MgP!; fl;olk; fl;oajw;F Ex.B3 go tHf;F
bjhlug;gl;lJ/ me;j tHf;fpYk; Door No.171/A
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vdf;F ghj;jpag;gl;lJ ,y;iy vd;W vjph;thjk;
brhy;y tpLjiy Mndd;/ ABT MgPRf;F Door
No.171 MFk;/ jhth brhj;Jf;Fk; Door No.171, 171.”
This shows that the plaintiffs and the defendants were in occupation of
different properties in the same survey number, with door numbers
overlapping.
55. I should point out here that it is under Ex.A21, that the father of
the first defendant had purchased the property from the father and the
senior paternal uncle of the first plaintiff. Unity in door numbers alone
cannot be a ground to come to a conclusion that the defendants are in
possession of the suit schedule mentioned property.
56. It is here I have to consider the nature of avocation carried on by
the first defendant and his father. The father of the first defendant was the
Hereditary Village Munsif. He was succeeded by the first defendant. The
revenue records of the village were available with them till 1981. Till the
State of Tamil Nadu abolished the posts of Hereditary Village Officers,
records were being kept and maintained only by the family of the first
defendant with respect to Tiruchengode Village hereditarily. Same door
numbers having been given for the properties situated in the same survey
number, I am able to come to a conclusion that the first defendant and his
family members were not in enjoyment and possession of the suit property.
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It also indicates that the village records were not maintained in a manner
required by law; i.e., separate door numbers for separate properties.
57. I will now turn to the plea of adverse possession that has been
raised by Ms.Sweety. The concept of adverse possession is based on a latin
maxim 'neque vi, neque clam, neque precario'. This translates into "neither by
force, nor secretly, nor by permission". This latin maxim is commonly used
by courts is “nec vi, nec clam, nec precario”. In order to establish the
principle of adverse possession, a party will have to satisfy the three
requirements, namely, nec vi - without force, nec clam - without secrecy and
nec precario - without permission. In ordinary parlance, it is understood as
open, hostile and continuous use, as if it were their own, in denial of the
true owner's title. The first respondent, apart from the municipality receipts,
has not been in a position to show that the possession by him has been
open, hostile, and continuous. These are the basic requirements for the plea
of adverse possession.
58. Here is a case where a document had been executed on
17.08.1906. It is a registered document. Therefore, there is a presumption
that it has been validly executed. I have already discussed the heavy
burden, that has been placed on the defendants to prove the document as
sham, has not been discharged. I have further found that the deed has been
supported by consideration and acting on the sale, the first defendant's
father had entered into a registered transaction with respect to the
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properties covered under Ex.A1 / Ex.B2. Hence, the plaintiffs have proved
that the document is valid, in addition to the initial presumption of validity
of the document in their favour. I have already held that no evidence has
been let in by the defendants to prove the three necessary ingredients of
adverse possession. Hence, this plea of Ms.Sweety too, fails and it is
rejected.
59. Ms.Sweety then referred to the documents pointing out that the
plaintiffs were residing elsewhere and not in the suit schedule mentioned
property. It is not necessary that a person, who owns a property, should be
residing in the same at all point of time. What a court is concerned with is
legal and lawful possession. The legal and lawful possession having been
proved by the plaintiffs, for the fact that the first plaintiff is residing
elsewhere, does not mean that he loses the ownership which has passed
down to him from his father.
60. Ms.Sweety drew my attention to the finding of the trial court and
pleaded that the fourth defendant, at no point of time, had shown any
interest in the litigation. I have to agree with her submission that the fourth
defendant had not shown any interest in the litigation. In fact, he has
remained ex parte. For the reason that the fourth defendant had remained
ex parte, does not improve the case of the first defendant. The plea of the
plaintiffs, as stated above, is that 1/2 share belongs to the first plaintiff,
1/4th share belongs to the second plaintiff, and the remaining 1/4th share
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belongs to the fourth defendant. The fourth defendant, having received the
summons and being satisfied that the plaintiffs are fighting on his behalf,
has remained ex parte. In other words, the fourth defendant had not decided
to contest the suit. This would not mean that the fourth defendant has given
away his right. All that it implies is that the fourth defendant has no
objection for a decree having been passed in the suit in favour of the
plaintiffs.
61. At this stage, like a drowning man clutching at a straw, Ms.Sweety
attempted to challenge the “WILL” that had been executed by Raja Gounder,
the cousin of the first plaintiff, in favour of R.K.Muthusamy. She referred to
the plaint and the written statement filed by the co-defendants. She pleaded
that it is doubtful as to whether R.K.Muthusamy is a legatee of the “WILL”
executed by Raja Gounder on 05.07.1981.
62. The first defendant is not a member of the family of Periya
Gounder and Muthuraja Gounder, the original vendees. The first defendant
does not have any right to oppose the “WILL” that is said to have been
executed by Raja Gounder in favour of the second plaintiff. Even assuming
that the “WILL” is not genuine, the 1/4th share of the property that would
have come to Raja Gounder would not have been transferred to Muthuraja
Gounder and consequently, from him to the respondents 19 and 20. A
person, who has no interest in the property of Raja Gounder, cannot take a
stand that the “WILL” is not enforceable. If at all one had an issue, it would
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have been the fourth defendant. As found supra, the fourth defendant was
served with summons and he did not oppose the claim made by Muthusamy
Gounder, the second plaintiff that he is the beneficiary of the “WILL” written
by Raja Gounder. Therefore, this plea of Ms.Sweety too, stands rejected.
63. I will now turn to the submission of Mrs.Chitra Sampath, that it is
not open to a party to plead that a document is sham and nominal, unless
and until he files a suit for cancellation or declaration or makes a counter
claim to that effect. A suit for cancellation of a document falls under Section
31 of the Specific Relief Act. The said section reads as follows:
“31. When cancellation may be ordered.—(1) Any
person against whom a written instrument is void or voidable,
and who has reasonable apprehension that such instrument, if
left outstanding may cause him serious injury, may sue to have
it adjudged void or voidable; and the court may, in its
discretion, so adjudge it and order it to be delivered up and
cancelled.
(2) If the instrument has been registered under the Indian
Registration Act, 1908 (16 of 1908), the court shall also send a
copy of its decree to the officer in whose office the instrument
has been so registered; and such officer shall note on the copy
of the instrument contained in his books the fact of its
cancellation.”
64. A casual glance at this provision would show that the relief of
cancellation is permissible, and not obligatory. This is because the Section
itself states that the person “may sue”. Therefore, if the first defendant had
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succeeded in proving that the document is sham or nominal, it would be a
document which is inoperative. The effect of finding a document is sham or
nominal is that, no title would have passed from the vendors in favour of the
vendees and therefore, the family of vendors would continue to enjoy the
property as such. When the Parliament itself states that the relief is
obligatory, the courts are empowered to ignore the document which is a
nullity, Therefore, I am not inclined to agree with the submission of
Mrs.Chitra Sampath.
65. Insofar as the plea that the defendants should have filed a suit for
cancellation or declaration, is concerned, I have the following to state –
normally, a transaction binds the party, if he is a party to the transaction or
if he is an eo nominee to the said document. In such kind of situations, as
pointed out by Justice Wadsworth in Vellaya Konar Vs. Ramaswami
Konar, (1939) 2 MLJ 400, the party necessarily has to sue to have it set
aside. As to when a party must seek declaratory relief has been laid down by
the learned Judge as follows:
“When the plaintiff seeks to establish a title in himself
and cannot establish that title without removing an
insuperable obstruction such as a decree to which he has been
a party or a deed to which he has been a party, then quite
clearly he must get that decree or deed cancelled or declared
void in toto...”
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66. This is because under a document, title would have passed. A
plea that a document is a sham and nominal one, is an attempt by the said
party to prove that the document has no legal effect at all. In the case of
sham and nominal transactions, title has not passed to the transferees. The
law will not uphold the ostensible title conferred by those instruments. If he
is able to convince the court on this plea, the court has to treat it as
inoperative, and dispensing with requirement of filling a specific declaration
to have it set aside as such. Even if such declarations are sought for, they
are best superfluous. (See, Kaka Hajee Md Ishaque Sahib v. Kaka Md.
Saddiq Sahib, (1969) 82 LW 622).
67. In fact. Five Judges of this Court have considered as to when a
specific prayer for cancellation or declaration is necessary in C.R.
Ramaswami Ayyangar v. C.S. Rangachariar, 1940 (51) LW 11. The
Special bench held as follows:
“Where the plaintiff was not bound under the
substantive law by which he was governed to sue for a
declaration or cancellation in respect of any of the said
transactions and a prayer for declaration of cancellation
would in such cases, even if the plaint contained one, be one
for a purely incidental, but unnecessary relief.”
68. Thus, while dealing with sham or nominal transaction that have
no legal effect, it is sufficient for a party to establish their inoperative
nature, without seeking for a formal declaration to have it set aside. This is
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because, the courts will treat such transactions as nullity without requiring
to grant a declaration to that effect. Under section 34 of the Specific Relief
Act, the grant of declaratory relief is discretionary. If a party is able to
convince the court that the transaction falls within the category of sham and
nominal, the court can record the same and hold it to be inoperative,
without taking on itself the burden of declaring it so.
69. Earlier, the Privy Council was presented with a similar issue in
Petha Perumal Chetty v. Muniandi Servai, (1908) 18 MLJ 277. The
question placed for determination was whether a suit to recover properties,
which had been transferred by benamidar in the name of another person, is
governed by Article 91 of the erstwhile Limitation Act, 1877. The Privy
Council observed as follows:
“the conveyance of the 11th June 1895, being an
inoperative instrument, as, in effect, it has been found to be,
does not bar the plaintiff's right to recover possession of his
land, and that it is unnecessary for him to have it set aside
as a preliminary to his obtaining the relief he claims.”
70. Following this judgment, this court and the Bombay High Court
have consistently held that it is not necessary to have the document set
aside, where the transaction is a sham and nominal. See,
(i) K. Subraya Chetti v. Nagappa Chetti, AIR (1927) Mad 805 at
(ii) Krishnaswami Aiyangar v. Kuppu Ammal, AIR 1929 Mad 478,
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479 at 479;
(iii) Muhammad Nazir v. Zulaikha Bibi, AIR 1928 All 267;
(iv) Sangawa Kom Gurubasappa v. Huchangowda bin
Huchangowda Gowdar, AIR 1924 Bom 174
71. Further, all that I have to refer is the view of this Court in Sahul
Hameed Rowther v. K.P.C. Mohideen Pichai, (1948) 61 LW 270 : AIR
1948 Mad 451. Justice Horwill, speaking for himself and Justice Bell, held
as follows:
“We have been referred to many cases, of which
Swaminatha Iyer v. Rukmini Ammal. AIR 1920 Mad 88 and
Pethaperumal Chetti v. Muniandi Servai 35 I.A. 98 (P.C.), may
be cited as examples, in which it has been held that when a
transaction is sham and nominal there is no need to have the
transaction formally set aside, and that it can be ignored.
…
In all the cases to which we have been referred and in which this,
question has arisen it has been uniformly held, as pointed above,
that it is not necessary to set aside a transaction which does not
effect any transfer of title at all. If so, then the transaction and the
document evidencing it are not insuperable obstacles to the
granting of the plaintiff's prayer.”
Thus, if a transfer was inoperative and a mere paper transaction, it would
not require to be set aside.
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72. In fine, I am of the view that the defendants are entitled to take a
defence that the document is sham and nominal, and they need not file a
suit separately for the purpose of such declaration or seek for its
cancellation. If this proposition requires a judgement, it is in Kewal
Krishan v. Rajesh Kumar, Civil Appeal No.6989-6992 of 2021 dated
22.11.2021 [2021 INSC 765]. Speaking through Justice Abhay S.Oka, the
Supreme Court held that if a document is sham and nominal, it can be
ignored and need not be challenged by claiming a declaration, as the said
plea can also be set up in collateral proceedings, and a party need not file a
separate suit.
73. I will now turn to the authorities that have been cited by
Ms.Sweety. For the scope of Section 100 of the Code of Civil Procedure, she
had referred to a judgment in Surain Singh v. Mehenga, (1996) 2 SCC
624. She pleaded that where there is a reversal in finding of the lower
appellate court, the High Court can independently look into the evidence
and come to a conclusion.
74. In order to maintain the second appeal, a party would have to
adequately define the substantial questions of law that are involved in the
case. Once this court comes to a conclusion that such substantial questions
of law are involved, it takes the appeal on file. Once the appeal is before the
court, the second appellate court, as per Section 107 read with Section 108
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of the Code of Civil Procedure, looks into the appreciation of law and facts
by the courts below. In this very case, when the matter went to the Supreme
Court, while setting aside the judgment and remitting it for fresh
consideration, the Supreme Court had directed this court to examine
whether any substantial questions of law arise for consideration between the
parties and, thereafter, dispose of the appeal.
75. As the litigation has been pending before the courts for more than
37 years, I have heard the parties at length on the substantial questions of
law that have been framed and as directed by the Supreme Court in Civil
Appeal Nos.7774-7776 of 1997 dated 10.09.2003. I have analysed the
pleadings, evidence, findings and the positions of law argued by the
counsels. It is in complete compliance to the principles laid out in this
verdict.
76. Ms.Sweety then referred to a judgment of this court in
Valliammal v. Pachaiammal, (1996) 1 LW 310, to plead that this court
has held that if the plaintiffs have lost their title to the suit property, the
defendant would be entitled to succeed on the plea of adverse possession.
This judgment too, does not help Ms.Sweety's case as I factually found the
defendants did not satisfy the essential conditions of open, hostile and
continuous possession of the property.
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77. Ms.Sweety, then takes me to the judgment of the Supreme Court
in Sree Meenakshi Mills Ltd. v. CIT, AIR 1957 SC 49 to urge that this
court has to see whether a transaction is genuine or sham. She submits
that the point for decision would be, not who paid the consideration but
whether any consideration was paid at all.
78. In the previous paragraphs, I have found that a sum of Rs.500/-
was paid in 3 different ways:-
(i) Rs.180/- to the judgment creditor (Arunachalam Chetty) in the suit
in which the properties of the vendors (the father, the siblings and the
grandmother of the first defendant) were involved;
(ii) Rs.20/- by cash; and
(iii) Rs.300 to the other creditors.
Therefore, this judgment too, does not come to the rescue of Ms.Sweety.
79. Finally Ms.Sweety referred to the judgment in Avadh Kishore
Dass v. Ram Gopal, AIR 1979 SC 861 to plead that she has filed the
relevant municipal records and hence, this judgment of the Supreme Court
comes to her rescue. Let me analyse this case in detail.
80. Avadh Kishore's judgment arose out of a suit presented under
Section 92 of the Code of Civil Procedure against one, Avadh Kishore Dass.
The plaintiff pleaded that the suit schedule mentioned property was a public
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religious endowment belonging to the temple of Shri Thakur Ram Jankiji
Maharaj @ Shri Thakurji Maharaj. The claim of the plaintiff was that the
properties had been endowed by King Mohamad Shah in favour of one,
Swami Sewa Das for the specific purpose of constructing and maintaining a
temple and allied activities. This endowment had been made in the 14 th
century. The said endowment had been confirmed in favour of the successor
Mahant Shri Mahesh Das, by Prince Mulla Hafis in the year 1526.
Subsequently in 1785, the rulers of Gwalior granted another Sanad in
favour of the then Mahant Rattan Das. The village came under the control of
the British Government in 1843 who took over half the village, while the
remaining half continued to be with the endowment. During the revenue
settlements of the year 1845, the land revenue was assessed in respect of
the entire endowed asset of the temple at 50%, while the remaining 50% was
declared as Muafi or land exempted from tax or duty. The records that were
maintained by the endowment were destroyed during the First War of
Independence in 1857. As the defendant projected that he was the Mahant
and that the properties belonged to him, it was pleaded that the claim of the
plaintiff was untenable and hence, he should be removed as a trustee.
During the course of trial, as the original documents had been destroyed as
aforesaid, the plaintiffs relied upon the settlement records that had been
prepared during the colonial British era to support their claim. One such
document was Wajib-ul-arz.
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81. Relying on the said document, the trial court, as well as the High
Court decreed the suit, against which, the appeal arose before the Supreme
Court. The Supreme Court too, relying upon Wajib-ul-arz, came to a
conclusion that the plea of the defendant that the property was a personal
grant was untenable, and rejected the plea. Hence, it has to be discussed as
to what is Wajib-ul-arz.
What is Wajib-ul-arz?
82. Wajib-ul-arz is a village administration paper. It is a record that
used to be prepared during the settlement proceedings in the year 1864. It
was a memorandum directed to be prepaid by Regulation VII of 1822,
wherein, it was a prima facie evidence of custom recorded in it unless and
until it has been formally altered. It was a key document during the British
colonial land revenue system. Wajib-ul-arz had an important significance,
when the area was ruled by the State of Avadh. It had since been
superseded by modern laws. It is an administrative record of existing
practice and not a legislative document that creates new rights or liabilities.
The courts have held that the agreements recorded in Wajib-ul-arz are
legally binding only for the duration of the land settlement in which they
were recorded (See, Chhote Khan v. Mal Khan, 1954 SCR 60).
83. Following the annexation of the Avadh by British in 1856, the land
settlement underwent major restructuring, which included preparation of
administrative records for each village separately and were not centralised.
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These records were created to formalise the property relations and to
establish revenue collection mechanisms in the new colonial administration.
By virtue of that record, the customs prevailing in the said village, and the
rights and liabilities hereditarily existing in the village were recorded. It is
primarily a documentation of existing practices, rather than a record which
declares the creation of new rights.
84. Wajib-ul-arz contains recording of customs relating to:-
(i) easementry rights,
(ii) water rights,
(iii) agreements amongst the village's landlords, and residents and
(iv) permission rights.
85. In Raja Rajinder Chand v. Sukhi, AIR 1957 SC 286, the
Supreme Court held that Wajib-ul-arz cannot be used to establish land
owner's claim to sovereign right and ownership of such revenue land. The
court emphasised that the document's role is to record the existing customs
and not create new rights or grant away State property. Wajib-ul-arz is
accepted as evidence on customary law but must still be interpreted in the
light of relevant Land Revenue Act. It observed that though Wajib-ul-arz
does not create a title, it gives rise to a presumption in its support, which
prevails unless the presumption is properly displaced.
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86. In Safdar Hussain v. Muhammad Azam Khan, PLD 2009
Lahore 347, while discussing the procedure for preparation of Wajib-ul-arz,
the Court held as follows:
“Wajibul Arz, prepared by a public servant, …. at the
time of settlement, carries statutory presumption of
correctness attached to it. Wajib ul Arz, describes the rights
and liabilities among the villagers inter se, such as
enjoyment of proceeds of common land and rights of grazing
of common land etc.,"
87. The practice of Wajib-ul-arz had been followed in the parts of
British India & in present day,(both sides of the border) Punjab and Madhya
Pradesh. The areas covered by this document is now covered by their
respective State Land Revenue Codes, such as, Madhya Pradesh Land
Revenue Code. This shows that the nature of the document dealt with by
the Supreme Court in Avadh Kishore's case was a document prepared with
careful survey and scrutiny.
88. As pointed out above, Wajib-ul-arz was dealt with in Punjab, i.e.,
to say on both sides of the present border. The Courts in Peshawar too, had
an occasion to deal with the nature and evidentiary value of its document. In
Mst. Bhag Bhari etc v. Mst Bhagan and another, PLD 1954 Lahore
356, the court observed as follows:
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“Entries in a Wajib-ul-arz may be of two kinds. They
may be statements of local custom or usage or they may be
recitals of agreements. As statements of custom or usage
they are strong evidence of the existence of such custom or
usage but they have only an evidentiary value. Agreements
incorporated in the Wajib-ul-arz are however binding but
only on the parties to the agreements, and even in such
cases it is open to a party to prove that in fact no such
agreement was entered into though the task would be
difficult.”
89. The Supreme Court of Pakistan also had an occasion to deal with
this document. In Haji Qudrat Ali v. Government of N.W.K.P., Peshawar,
1993 SCMR 381, the Supreme Court of Pakistan held as follows:
“This is the village administration paper; it contains a
specification of village customs, rules of management and
everything affecting the government of the estate, the
distribution of profits, irrigation, and rights in the waste.”
“The wajib-ul-arz, or village administration paper,
should be a record of existing customs regarding rights and
liabilities in the estate.”
“The paper declaring the customs and containing the
Code of rules for the future management of the manor (called
now the administration paper) is always considered a most
important document.”
“The state of the customs respecting rights and
liabilities on the estate shall be in narrative form; it shall be
as brief as the nature of the subject admits, and shall not be
argumentative, but shall be confined to a simple statement of
the customs which are ascertained to exist. The statement
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shall be divided into paragraphs numbered consecutively,
each paragraph describing as nearly as may be separate
custom.”
90. Yet again, the Peshawar High Court, Abbottabad Bench dealt with
this nature of document. This was in Muhammad Younas v. Malik
Muhammad Javed, CR.No.152-A of 2017 dated 18.09.2018. Justice Syed
Muhammad Attique Shah held as follows:
“Wajib-ul-Arz is a basic document prepared by a public
servant at the time of settlement on the basis of usages, local
customs and agreements between the proprietary body of
village, which carries statutory presumption of correctness,
and determines the rights, duties and liabilities of the
villagers inter se and further provides mechanism for the
management of the common land (Shamilat Deh) by the
proprietary body of the Village.”
91. A municipality record cannot be given the same treatment as
Wajib-ul-arz. Tax receipts can certainly not been compared with a Wajib-ul-
arz. This is more so, because during the relevant time, the records were
maintained by the first defendant and his father, who were imposed with
this duty, being the village munsifs.
92. Therefore, the attempt of Ms.Sweety to compare the house tax
receipts and municipality records and puff it to the level of a document in
the nature of Wajib-ul-arz, cannot be countenanced by this court and has to
be rejected.
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93. In the light of the above discussion, I am of the clear view that the
substantial questions of law framed by the appellants do not arise for
consideration. All the three appeals are dismissed. The common judgment
and decree of the learned I Additional District Judge, Salem in A.S.No.88 of
1986, A.S.No.89 of 1986 and A.S.No.90 of 1986 dated 29.07.1988 in
reversing the decree and judgment dated 11.04.1986 passed in O.S.No.236
of 1985, O.S.No.304 of 1985 and O.S.No.305 of 1985 on the file of the
learned Subordinate Judge, Sankari is hereby confirmed. Costs throughout.
12-11-2025
nl
Index:Yes/No
Speaking/Non-speaking order
Internet:Yes
Neutral Citation:Yes/No
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To
1. The I Additional District Judge, Salem
2. The Subordinate Judge, Sankari
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V.LAKSHMINARAYANAN J.
nl
SA No. 1293 of 1988,
SA No. 1294 of 1988 &
12-11-2025
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