In the High Court of Judicature at Madras Dated: 27.04.2011 Coram: The Honourable Mr. Justice R.SUBBIAH Second Appeal Nos.2180 and 1082 of 2004 and 1238 of 2007 and C.M.P.No.18792 of 2004 S.A.No.2180 of 2004: S.Arasumani ..Appellant/Defendant No.3 ..vs.. 1. A.Lalitha 2. The District Collector, Thiruvarur. 3. Head Quarters, Deputy Tahsildar, Needamangalam Town & Post, Mannargudi Munsifi. ..Respondents/Plaintiff and Defendants 1 and 2 S.A.No.1082 of 2004: Arasamani ..Appellant/Plaintiff ..vs.. 1. Arumugam 2. Lalitha ..Respondents/Defendants S.A.No.1238 of 2007: A.Lalitha ..Appellant/Plaintiff ..vs.. 1. K.Shanmugavel 2. S.Kumaran 3. S.Balasubramanian 4. S.Sankararameswaran @ Babu 5. S.Arasumani ..Respondents/Defendatns Second Appeal No.2180 of 2004 under section 100 of Civil Procedure Code filed, against the judgment and decree dated 27.07.2004 made in A.S.No.22 of 2003 on the file of Sub Court, Thiruvarur, reversing the judgment and decree dated 25.07.2002 in O.S.No.418 of 2000 on the file of District Munsif Court, Mannargudi. Second Appeal No.1082 of 2004 under section 100 of Civil Procedure Code filed, against the judgment and decree dated https://hcservices.ecourts.gov.in/hcservices/ 30.01.2004 made in A.S.No.70 of 2003 on the file of Principal District Court, Nagapattinam, reversing the judgment and decree dated 10.07.2003 in O.S.No.7 of 2001 on the file of Sub Court, Thiruvarur. Second Appeal No.1238 of 2007 under section 100 of Civil Procedure Code filed, against the judgment and decree dated 22.09.2006 made in A.S.No.35 of 2005 on the file of District Court, Nagapattinam, reversing the judgment and decree dated 28.04.2005 in O.S.No.6 of 2002 on the file of Sub Court, Thiruvarur. For Appellants : Mrs.Hema Sampath, Senior Counsel for Mr.S.Venkateswaran in S.A.Nos.2180 & 1082 of 2004 Mr.S.Veerakathiravan in S.A.1238/2007 For Respondents : Mr.R.Srinivas for R1 & R2 in S.A.1082 of 2004 and for R1 in SA.2180 of 2004 Mr.P.Gopalan for R1 to R5 in S.A. 1238 of 2007 COMMON JUDGMENT All the second appeals are inter-related to each other and the subject matter and also the parties to the proceedings are the same. Hence, all the appeals are disposed of by way of this common judgment. 2. Second Appeal No.2180 of 2004 is directed against the judgment and decree dated 27.07.2004 made in A.S.No.22 of 2003 on the file of Sub Court, Thiruvarur, whereby the judgment and decree dated 25.07.2002 in O.S.No.418 of 2000 on the file of District Munsif Court, Mannargudi were set aside. 3. Second Appeal No.1082 of 2004 is directed against the judgment and decree dated 30.01.2004 made in A.S.No.70 of 2003 on the file of Principal District Court, Nagapattinam, whereby the judgment and decree dated 10.07.2003 in O.S.No.7 of 2001 on the file of Sub Court, Thiruvarur, were set aside. 4. Second Appeal No.1238 of 2007 is directed against the judgment and decree dated 22.09.2006 made in A.S.No.35 of 2005 on the file of District Court, Nagapattinam, whereby the judgment and decree dated 28.04.2005 in O.S.No.6 of 2002 on the file of Sub Court, Thiruvarur, were set aside. 5. It would be appropriate to deal with S.A.No.2180 of 2004 to decide the issues involved in all the appeals. 6. S.A.No.2180 of 2004: The 1st respondent (A.Lalitha), is the plaintiff and respondents 2 and 3 and the appellant (S.Arasumani), https://hcservices.ecourts.gov.in/hcservices/ are the defendants in O.S.No.418 of 2000. The plaintiff Lalitha and the 3rd defendant Arasumani are the sisters and the plaintiff filed the said suit stating that the suit property situate in R.S.No.45/1, Kamaraj Nagar, Needamangalam Town, which consists of a nursery school, was belonging to the plaintiff. The 3rd defendant, the elder sister of the plaintiff claimed that she had purchased the site in the said survey number and constructed a building and she had leased it to the plaintiff; but it was denied by the plaintiff and hence, the 3rd defendant filed a suit in O.S.No.331 of 1995 before the Additional Sub Court, Nagapattinam against the plaintiff for declaration of her title and recovery of possession of the suit property and after trial, the said suit was dismissed and the appeal filed against the said suit was also dismissed by the Additional District Court, Nagapattinam in A.S.No.133 of 1998. Against the said finding, the 3rd defendant did not file any appeal and hence, the finding in A.S.No.133 of 1998 has become final. 7. It was further stated that in the meantime, the plaintiff came to know that the 3rd defendant applied for transfer of patta of the suit property and the 2nd defendant-Zonal Deputy Tahsildar, Needamangalam, without notice to the plaintiff, had changed the patta in favour of the 3rd defendant in 1999. Thereafter, the plaintiff filed an appeal before the Revenue Divisional Officer, Mannargudi and the same was allowed by proceedings dated 30.09.2000. The revenue department has no power to decide the fact as to who is the title holder of the property and the Civil Court alone should decide the same and hence, the order passed by the 2nd defendant effecting change of patta in favour of the 3rd defendant is void. Though the dismissal of the suit filed by the 3rd defendant for declaration of title of the suit property in O.S.No.331 of 1995 was drawn to the knowledge of the 2nd defendant, he ignored the same while passing the order. If the title of the 3rd defendant is negatived and her right to recover the property is barred, the plaintiff, being a person in possession and having succeeded in the suit as well as in the appeal, is the owner of the suit property under law and she is the title holder. Under such circumstances, the plaintiff filed the present suit against the defendants for a declaration that the proceedings of the 2nd defendant dated 18.06.1999 for effecting change of name in favour of the 3rd defendant is void under law and illegal and also for an injunction restraining the 2nd defendant from proceeding with the enquiry relating to the suit property. 8. The 2nd defendant filed a written statement stating that as per the Board's Standing Order, the suit survey number was formerly owned by Needamangalam Co-operative House Building Society and thereafter, it was sold to the 3rd defendant by the said Society vide Document No.1025/85 and thereafter, there had been no registered transfers. Once a registered document was produced by any purchaser from the pattadar, under the Board Standing Order, patta should automatically be transferred from the name of the pattadar to the name of the purchaser when both the purchaser and pattadar accept the https://hcservices.ecourts.gov.in/hcservices/ truth of the transaction. But the plaintiff has not produced any registered document in her favour executed by the said Society. Only if a decision of a Court against the pattadar is produced, then only the revenue authorities can transfer patta on the basis of the said decree. In the absence of any decision of court against the pattadar, the revenue authorities cannot transfer patta in the name of a person who does not made claim under the said pattadar. If the plaintiff files any court order against the original pattadar, they will definitely transfer patta in her favour. When the plaintiff has alternative remedy to file an appeal or revision or writ against such order and seek cancellation or setting aside of such order before the competent authorities, no suit can be filed against either the District Collector or Deputy Tahsildar, Needamangalam. She can file a suit only against the State Government, after giving notice, under Section 79 C.P.C. Since the 2nd defendant was not a party to the earlier suit in O.S.No.331 of 1995, they are not bound by the judgment delivered in the said suit. The plaintiff has no right under law to restrain this defendant from conducting any enquiry with regard to the suit property. When the impugned proceedings was passed by the Zonal Deputy Tahsildar, Needamangalam and not by this defendant, namely, Headquarters Deputy Tahsildar, Zonal Deputy Tahsildar is a proper and necessary party to the proceedings and therefore, the suit is liable to be dismissed. 9. The 3rd defendant Arasumani filed a written statement stating that since the Deputy Tahsildar has already granted patta in her favour, after completing enquiry, the relief sought for in the suit filed by the plaintiff has become infructuous and on this ground, the suit is liable to be dismissed. Admittedly, the 3rd defendant has purchased the suit property from the Needamangalam Co-operative Society for a valuable consideration. In the judgments of O.S.No.331 of 1995 and A.S.No.133 of 1998, the title of the 3rd defendant has not been negatived and the 3rd defendant, being the owner of the land, is entitled to get patta for the land. The plaintiff has also not prescribed title by adverse possession. When the plaintiff is having alternative remedies for challenging the orders of the Tahsildar or the District Collector, the suit filed by the plaintiff is not maintainable and it has no merits. 10. On the basis of the above said pleadings, the trial court framed ten issues and in order to prove the case of the plaintiff, four documents were marked as Exs.A-1 to A-4, but no witness was examined and on behalf of the defendants, the husband of the 3rd defendant was examined as D.W.1 and Exs.B-1 to B-8 were marked. The trial court, after considering the entire evidence on record, both oral and documentary, had dismissed the suit. Against which, the plaintiff filed an appeal in A.S.No.22 of 2003 on the file of Sub Court, Thiruvarur, wherein the decree and judgment of the trial court were set aside and the appeal was allowed. Being aggrieved, the 3rd defendant filed a second appeal in S.A.No.2180 of 2004. https://hcservices.ecourts.gov.in/hcservices/ 11. At the time of admission, this Court has framed the following substantial question of law for consideration: Whether, in law, the lower appellate court was right in decreeing the suit when under S.14 of Patta Pass Book Act, no suit can be filed against either the District Collector or Deputy Tahsildar ? 12. S.A.No.1082 of 2004: The 3rd defendant Arasumani in O.S.No.418 of 2000, filed O.S.No.7 of 2001 on the file of Sub Court, Thiruvarur against the plaintiff and her husband for permanent injunction restraining the defendants from interfering with her peaceful possession and enjoyment of the suit property stating the same averments made in the written statement filed in O.S.No.418 of 2000 with regard to the purchase of the suit property and further stated that since the 3rd defendant refused to sell the property to the plaintiff, the plaintiff and her husband attempted to grab the suit property by means of illegal methods and their one such attempt was defeated by the 3rd defendant with the aid of panchayatdars. Apprehending that the plaintiff and her husband at any time might attempt to trespass into the suit property, the 3rd defendant filed O.S.No.7 of 2001 for the relief stated supra. 13. The plaintiff Lalitha filed a written statement containing the plaint averments made in O.S.No.418 of 2000 and apart from that, it was stated that the 3rd defendant along with her family members and hooligans, had demolished the superstructure and destroyed all the furniture in the suit property and for which, a case was registered in Crime No.343 of 2000, on a complaint given by the plaintiff to the Needamangalam Police Station. On 05.01.2001, the plaintiff had put up a shed and commenced the school. The plaintiff being the title holder must be deemed to be in physical possession, but the 3rd defendant filed the suit describing the suit property as 'vacant site' after demolishing the superstructure. 14. On the basis of the above said pleadings, the trial court framed four issues and in order to prove the case, the 3rd defendant examined three witnesses as P.Ws.1 to 3 and marked six documents as Exs.A-1 to A-6, but no witness was examined on the side of the plaintiff and marked Exs.A-1 to A-4 and the Advocate Commissioner's report and plan were marked as Exs.C-1 and C-2. The trial court, after considering the entire evidence on record, both oral and documentary, had decreed the suit. Against which, the plaintiff and her husband filed an appeal in A.S.No.70 of 2003 on the file of District Court, Nagapattinam, wherein the decree and judgment of the trial court were set aside and the appeal was allowed. Being aggrieved, the 3rd defendant filed a second appeal in S.A.No.1082 of 2004. 15. At the time of admission of the second appeal, this Court has framed the following substantial question of law for consideration: Whether in law the lower appellate Court is right in https://hcservices.ecourts.gov.in/hcservices/ refusing injunction in favour of the true owner against persons attempting to trespass into the property ? 16. S.A.No.1238 of 2007: The plaintiff Lalitha filed O.S.No.6 of 2002 before the Sub Court, Thiruvarur against the 3rd defendant, her husband and her sons claiming damages for a sum of Rs.3,00,000/- with regard to the destruction of the school building and furniture, etc.in the suit property reiterating the averments made in the plaint in O.S.No.418 of 2000 and in the counter in O.S.No.7 of 2001. 17. The 3rd defendant filed a written statement as the 5th defendant in the said suit, denying the averments relating to the destruction of the superstructure. 18. On the basis of the above said pleadings, the trial court framed two issues and in order to prove the case of the plaintiff, P.Ws.1 to 6 were examined and Exs.A-1 to A-19 were marked and on behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B-1 to B-6 were marked. The trial court, after considering the entire evidence on record, both oral and documentary, had decreed the suit, directing the defendants to pay Rs.90,000/- as damages to the plaintiff. Against which, the defendants filed an appeal in A.S.No.35 of 2005 on the file of District Court, Nagapattinam, wherein the decree and judgment of the trial court were set aside and the appeal was allowed. Being aggrieved, the plaintiff filed a second appeal in S.A.No.1238 of 2007. 19. At the time of admission, this Court has framed the following substantial questions of law for consideration: (a) Whether the appellate court failed to consider the principles of law on presumption, as provided under evidentiary law ? (b) Whether the first appellate Court is right in following the principles of Criminal procedure in proving the occurrence of incident ? 20. To avoid confusion, the appellant in S.A.No.1238 of 2007, viz., Lalitha will be hereinafter referred to as the plaintiff and the appellant in S.A.Nos.2180 and 1082 of 2004, viz., Arasumani will be referred to as the defendant. 21. Advancing the arguments on behalf of the defendant, Mrs.Hema Sampath, the learned Senior Counsel would submit that the plaintiff Lalitha has filed the suit in O.S.No.418 of 2000 for a declaration that the proceedings of the Headquarters, Deputy Tahsildar dated 18.06.1999 for effecting change of name in favour of the defendant is illegal and void under law and also for an injunction consequently to restrain the Deputy Tahsildar from proceedings with the enquiry. The learned senior counsel further submitted that already the name transfer has been effected even before the date of filing the suit https://hcservices.ecourts.gov.in/hcservices/ and, therefore, the suit is not maintainable with regard to the prayer of declaration. Moreover, the revenue authorities cannot be restrained perpetually by an order of an injunction from proceeding with the enquiry with regard to the change of name in patta. Therefore, on these grounds, the suit ought to have been dismissed. The trial court, by correctly appreciating the evidence, dismissed the suit filed by the plaintiff; but, the lower appellate court, by erroneously relying upon the judgment rendered in A.S.No.133 of 1998 that had arisen between the same parties, came to the conclusion that the judgment rendered in A.S.No.133 of 1998, whereby the declaration of the defendant's title and recovery of possession of the suit property was dismissed, had already attained finality since the defendant had not challenged the same by filing an appeal against the said judgment and therefore, the revenue authorities are bound by the said decision, and thus, the lower appellate court declared the proceedings of the Deputy Collector as null and void. 22. Attacking the said finding rendered by the lower appellate court, the learned Senior Counsel for the defendant submitted that in A.S.No.133 of 1998, the Court had dismissed the appeal on a finding that since the ownership of the superstructure was not proved by the defendant, she cannot ask for declaration of title for the entire property. The learned senior counsel further submitted that so far as the patta is concerned, it is pertaining to the site only and it has been established by the defendant before that Court that she had purchased the site by a registered sale deed dated 29.09.1985 from the Needamangalam Co-operative House Building Society. Therefore, only on proper enquiry, the revenue authority had effected the transfer of name in patta and, hence, the finding arrived at by the lower appellate court, based on the earlier proceedings in A.S.No.133 of 1998 is not sustainable and by setting aside the judgment decree of the lower appellate court, the judgment and decree of the trial court has to be restored. The learned senior counsel further submitted that under the Patta Passbook Act, the proper remedy for a party, as against the transfer of name in the patta, is only to file an appeal under section 12 and thereafter, file a revision under section 13. Under such circumstances, the suit filed by the plaintiff is barred under section 14 of the Patta Passbook Act and on this ground also, the finding of the lower appellate court has to be set aside. In support of her contentions, the learned senior counsel has relied upon the decisions reported in P.MARAGATHAMANI .vs. GENERAL MANAGER, BHEL & OTHERS (2006-4-L.W.1041), RAJA RAM KUMAR BHARGAVA . vs. UNION OF INDIA ((1988) 1 SCC 681) and DISTRICT COLLECTOR, TIRUVANNAMALAI AND OTHERS .vs. JAYASEELAN ((2008) 1 MLJ 1012. 23. With regard to S.A.No.1082 of 2004, the learned senior counsel appearing for the defendant submitted that the defendant filed the suit in O.S.No.7 of 2001 for injunction against the plaintiff and her husband restraining them from interfering with her peaceful possession and enjoyment of the suit property and in order https://hcservices.ecourts.gov.in/hcservices/ to prove the possession, chitta, patta, copy of 'A' register, etc. were marked. The trial court, by considering the entire materials, correctly granted injunction stating that the defendant is in possession of the suit property. But the lower appellate court has erroneously set aside the judgment and decree of the trial court in the appeal filed by the defendant. It is the specific case of the defendant in the suit that on the date of filing the suit, the possession of the property was with the defendant. Moreover, in this case, the plaintiff Lalitha has not come forward to adduce evidence to prove her case that she is in possession of the suit property and hence, the finding of the lower appellate court is perverse and the same has to be set aside. 24. Combating the said submission, Mr.R.Srinivas, the learned counsel for the plaintiff submitted that earlier the defendant filed the suit against the plaintiff in O.S.No.331 of 1995 on the file of Additional Sub Court, Nagapattinam for declaration of her title and also for recovery of possession of the suit property and the same was dismissed and the defendant filed an appeal in A.S.No.133 of 1998 and the appeal was also dismissed by the Additional District Judge, Nagapattinam. Since the suit for declaration of title and recovery of possession was dismissed, the defendant is not entitled to get patta. But, by suppressing the earlier proceedings and by playing fraud, the defendant got the name transfer in patta. Therefore, on the ground of fraud, the second appeal filed by the appellant has to be dismissed. 25. With regard to S.A.1238 of 2007, the learned counsel for the plaintiff submitted that the plaintiff was running a school in the said property and the earlier legal proceedings initiated by the defendant in O.S.No.331 of 1995 would show that the plaintiff is in possession of the suit property. That apart, the defendant had initiated rent control proceedings against the plaintiff in RCOP No.14 of 1986 before the Rent Controller, Mannarkudi and the same was dismissed; against which, the defendant filed an appeal before the Sub Court, Pattukottai the appeal was also dismissed, against which, the defendant filed C.R.P.No.1068 of 1988 before this Court and the same was also dismissed with liberty to the defendant to work out her remedy before the Civil Court. These rent control proceedings which took place between the plaintiff and the defendant would prove that the plaintiff was in possession of the suit property. Further, the lower appellate court, based on the Advocate Commissioner's report, came to the conclusion that the school was in the site and the same was demolished recently and thereby held that the plaintiff was in possession of the property. There is no perversity in the finding of the lower appellate court and under these circumstances, the appeal filed by the defendant has to be dismissed. 26. In view of the submissions made by the learned counsel for the parties, the questions that arise for consideration in these appeals, are (1) Whether the plaintiff is entitled to the declaration https://hcservices.ecourts.gov.in/hcservices/ sought for in O.S.No.418 of 2000 that the proceedings issued by the Headquarters Deputy Tahsildar, effecting change of name in patta, is illegal ? (2) Whether the suit filed by the defendant in O.S.No.7 of 2001 for permanent injunction as against the plaintiff and her husband is maintainable ? (3) Whether the defendant has proved her possession in the suit property before the courts below ? 27. With regard to the first question, on a perusal of the materials, I find that the trial court has dismissed the suit in O.S.No.418 of 2000, whereas the lower appellate court has granted declaration mainly on a finding that the earlier proceedings initiated by the defendant in O.S.No.331 of 1995 for declaration of title and recovery of possession of the property as against the plaintiff was dismissed and the appeal filed in A.S.No.133 of 1998 was also dismissed and held that since the prayer for declaration of title was dismissed, the defendant is not entitled to get patta. Thus, the lower appellate court has granted the prayer in favour of the plaintiff declaring the proceedings dated 18.06.1999 as illegal. But, a perusal of the earlier judgment in O.S.No.331 of 1995, I find that the defendant has sought for the declaration of title and delivery of possession over the site as well as the superstructure and the case of the plaintiff, who is the sister of the defendant, was that she was permitted to put up a thatched superstructure in the site for running a school. In that suit, the trial court came to the conclusion that the defendant has not proved that she is the owner of the superstructure and thus, dismissed the prayer of declaration and so far as the issuance of patta is concerned, it is only related to the site and not for superstructure. But the revenue authorities have effected the name transfer based on the registered sale deed dated 29.09.1985, through which, the defendant had purchased the property from Needamangalam Co-operative House Building Society. Therefore, in my considered opinion, the result of the earlier proceedings in O.S.No.331 of 1995 and A.S.No.133 of 1998 will not have any bearing in the proceedings of the District Collector in effecting the name transfer. 28. Further I find that originally the patta has been issued by the Tahsildar in favour of the defendant in the year 1999. Since no notice has been issued to the plaintiff in the said proceedings, she has filed an appeal before the Revenue Divisional Officer, who had cancelled the patta and remanded the matter to the Tahsildar, Needamangalam for fresh enquiry and after conducting fresh enquiry, the Needamangalam Tahsildar had effected the name transfer on 24.10.2000. It is the contention of