IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.1.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA S.A.No.862 of 2006 & M.P.No.1 of 2006 Palaniammal .. Appellant vs. 1. K.G.Lakshmanan 2. Selvam 3. Kannan 4. Govindammal 5. Vijayalakshmi 6. Ayithal 7. Pavayammal 8. Govindaraj 9. Thiyagarajan 10.Arputham 11. The District Collector, Salem. 12. The Revenue Divisional Officer, Mettur Dam, Mettur Taluk. 13. The Tahsildar, Mettur Taluk, Salem District. 14. The Village Administrative Officer, Veerakkalpudur Village, Mettur Taluk, Salem District. .. Respondents Second Appeal against the judgment and decree dated 5.1.2006 in A.S.No.83 of 2004 on the file of the Sub-Court, Mettur, against the judgment and decree dated 23.9.2002 in O.S.No.159 of 1993 on the file of the District Munsif Court, Mettur. For appellant :Mr.A.Elango For respondents:Mr.Lakshmikumar for M/s.S.Amalraj for RR-1 to 10 Ms.Bhavani, Spl.G.P., assisted by Mr.R.Muthaiyan, Govt. Advocate for RR-11 to 14 https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT The Second Appeal is filed by the first defendant against the judgment and decree dated 5.1.2006 in A.S.No.83 of 2004 on the file of the Sub-Court, Mettur, reversing the judgment and decree dated 23.9.2002 in O.S.No.159 of 1993 on the file of the District Munsif Court, Mettur. 2. The averments in the plaint are as follows: The plaintiffs are in possession and enjoyment of the suit property. The suit property is a poramboke land in Veerakkalpudur Village. The first plaintiff's father and the second plaintiff's ancestors and their father Vadamalai Gounder, were occupying the suit property for more than 100 years. The first plaintiff's father and the second plaintiff's father are in possession and enjoyment of the suit property till their lifetime. After the death of the first plaintiff's father and the second and third plaintiffs' father, the plaintiffs are in joint possession and enjoyment of the suit property. They are paying the kist on the penal assessment of the land. The poramboke land lies on the north of the plaintiffs' land. The plaintiffs and their parents are in continuous and uninterrupted possession of the suit property. They have perfected title by way of prescription. The first defendant is a third party to the suit property and the defendants 2 to 5 are having control over the suit property. The first defendant is making false representation to get patta in her favour. So, the plaintiffs have issued a notice, dated 29.1.1992 and the copy of the said notice to the third and fourth defendants, for not to create a change in the revenue records in favour of the first defendant. The first defendant attempted to interfere in possession. So, the plaintiffs have filed the suit for bare injunction. But during the pendency of the suit, the third plaintiff died. The plaintiffs 4 to 8 are his legal heirs. During the pendency of the suit, the defendants joined together and created records in favour of the first defendant, thereby, they carried out the changes in the revenue records and then filed O.S.No.52 of 1997 on the file of the District Munsif Court, Mettur. Hence, the plaintiffs have amended the plaint for declaration that they have perfected title over the suit property by adverse possession and for mandatory injunction, to direct the defendants 2 to 5 to cancel the assignment order in favour of the first defendant, dated 8.1.1993, and for permanent injunction restraining the first defendant from in any manner interfering with the peaceful possession and enjoyment of the suit property. The plaintiffs prayed for a decree. 3. The gist and essence of the written statement filed by the first defendant are as follows: https://hcservices.ecourts.gov.in/hcservices/ Neither the plaintiffs nor their predecessors-in-title were in possession and enjoyment of the suit property. They are not entitled for any injunction. The first defendant's father Muthu Gounder has encroached upon the property in 1942 and he was in possession and paying the kist to the Government. The suit property is bearing S.No.75/2, consisting of 1 acre 75 cents. He reclaimed the property and was doing cultivation. He died in 1980. After his death, the first defendant is in possession and enjoyment of the same. 'B' memo has been issued in her name and she is in possession and enjoyment of the same. That has been recognised and patta has also been issued after following the procedures by way of publication in the Salem District Government Gazette, dated 15.5.1992. Since there was no objection, the patta has been issued in accordance with law. The first defendant is in possession and enjoyment of the suit property. So, neither the plaintiffs, nor the predecessors-in-title were in possession. There is no cause of action for the suit. The first defendant prays for dismissal of the suit. 4. The gist and essence of the additional written statement filed by the first defendant are as follows: The plaintiffs ought to have proved that the plaintiffs 4 to 8 are the legal heirs of the deceased third plaintiff. The plaintiffs are not in possession and enjoyment of the suit property. Hence, he prayed for dismissal of the suit. 5. The gist and essence of the written statement filed by the fourth defendant, which was adopted by defendants 2, 3 and 5, are as follows: The land was registered as Kallankuthu poramboke bearing S.No.75/2 measuring an extent 0.70.0 hectares in the revenue records of Veerakkalpudur Village. It is not in the possession of the plaintiffs. The first defendant is in possession and enjoyment of the suit property. She filed an application requesting to assign the land in her favour. The land was divided into two as S.No.75/2 with an extent of 0.54.0 hectares and S.No.75/11 with an extent of 0.16.0 hectares. Necessary transfer proposal to change the classification of the land as AWD in order to assign the land to the first defendant, has been sent to the Collector, Salem. It is not true to state that the plaintiffs are in possession of the suit property. But only the first defendant is in possession of the suit property, when the Tahsildar and Sub-Collector inspected the suit property. The defendants 2 to 5 are having control over the property. Sending registered letters to the defendants cannot establish the plaintiffs' right over the suit property. The plaintiffs have no manner and right over the suit property. There is no cause of action for the suit. Hence, they prayed for dismissal of the suit. https://hcservices.ecourts.gov.in/hcservices/ 6. The trial Court, after considering the averments made both in the plaint and in the written statement, has framed five issues and eight additional issues and considering the evidence P.Ws.1 to 3, D.Ws.1 and 2, Exs.A-1 to A-4 and Exs.B-1 to B-25, dismissed the suit. Against that, the plaintiffs preferred appeal in A.S.No.83 of 2004. The first appellate Court, after hearing the arguments of both sides, framed nine points for consideration, allowed the appeal and set aside the judgment and decree of the trial Court. Against that, the present Second Appeal has been filed by the appellant-first defendant. 7. At the time of admission of the Second Appeal, the following substantial question of law was framed consideration: "Whether on the facts pleaded and established, is the finding of the lower appellate Court that the plaintiffs have made out a case on adverse possession, is opposed to the legal evidence on record?" Substantial question of law: 8. The respondents as plaintiffs filed the suit for declaration that they have perfected title by adverse possession and also for mandatory injunction to cancel the assignment order issued in favour of the appellant-first defendant, stating that the respondents-plaintiffs are in possession and enjoyment of the suit property for more than 100 years and that they have prescribed title by adverse possession. The defendants have stealthily obtained patta in their name and attempted to interfere with his possession. Hence, they have come forward with the suit. 9. The appellant-first defendant has resisted the suit stating that her father Muthu Gounder encroached upon the Government poramboke land and enjoying the property. It was recognised by issuance of 'B' memo. After his death, the appellant-first defendant is in possession and enjoyment of the same. She further contended that the revenue authorities, on the basis of her application, made a spot visit and assigned the property in accordance with law, after following the procedures laid down under law. So, she is the absolute owner of the property. The appellant- first defendant prayed for dismissal of the suit. 10. The trial Court, after framing necessary issues, and considering the oral and documentary evidence, dismissed the suit. Against that, the respondents-plaintiffs preferred appeal, which was allowed. Against that, the appellant-first defendant has preferred this Second Appeal. 11. Learned counsel for the appellant-first defendant would contend that the suit S.No.75/2 is a Government poramboke land https://hcservices.ecourts.gov.in/hcservices/ consisting of 1 acre 75 cents and that her father Muthu Gounder has encroached upon the property and in possession and enjoyment of the property. It has been recognised by the Government by issuance of 'B' memo and he has also paid kist/penal assessment amount. He was in possession till his death and after his death, the appellant- first defendant is in possession and enjoyment of the same. She also gave an application for assignment of land and that the revenue authorities have made proper inspection and followed the procedures and issued assignment in the name of the first defendant, as per Ex.B-20. Subsequently, the defendants are in possession and enjoyment of the same. She gave a letter, in pursuance of the same, the Executive Officer of the Selection Grade Town Panchayat has recommended to the Government for issuance of patta, and the same is marked as Ex.B-18. Then, publication has also been made as per Ex.B-23 by Salem District Collector. Ex.B-19 was issued on 15.5.1992 in the Salem District Government Gazette and then Ex.B-20 'D' Memo has been issued to the appellant-first defendant. The defendants are in possession and enjoyment of the same. Hence, the trial Court considered all these aspects and came to the correct conclusion. The first appellate Court has misconstrued the same and came to the conclusion that Ex.B-20 is hit by "lis pendens" and allowed the appeal, decreeing the suit, which is against law. Learned counsel for the appellant-first defendant relied upon the decision of this Court reported in 2009 (5) C.T.C. 24 (Kasilingam Vs. Government of Tamil Nadu, rep. by District Collector) and stated that the first appellate Court has not framed proper point for determination and prayed for allowing the Second Appeal. 12. The learned counsel for the respondents-plaintiffs would contend that the plaintiffs are in possession and enjoyment of the suit property. The kist receipt is marked as Ex.A-1. The plaintiffs have also sent a letter to the District Collector, Salem, under Ex.A-3 and the acknowledgement has been marked as Ex.A-4. The kist receipt relating to the period 1381 and 1394 is marked as Ex.A-1 and the kist receipt relating to the period 1398 is marked as Ex.A- 2. Hence, the respondents-plaintiffs are in possession. The first appellate Court considered all the aspects in proper perspective and came to the correct conclusion and hence prayed for dismissal of the Second Appeal. 13. It is pertinent to note that the suit property is S.No.75/2. It is a Government poramboke land. The averment of the appellant-first defendant is that her father Muthu Gounder was in possession and enjoyment of the same. After his death, she is in possession and the same was recognised on her application and patta has also been issued in her name. It is well settled principle of law that the respondents-plaintiffs must prove their case for possession. Moreover, the respondents-plaintiffs filed the suit for declaration of title based on adverse possession. In the above https://hcservices.ecourts.gov.in/hcservices/ circumstances, it is the duty cast upon the respondents-plaintiffs to prove that themselves and their predecessors-in-title encroached upon the property and are in possession and enjoyment of the property for more than the statutory period, adverse to the interest of the true owner, the Government and so, they have prescribed title to the property. They are in possession, openly, continuously, and uninterruptedly for more than the statutory period and thereby prescribed title by adverse possession. To prove the same, Exs.A-1 and A-2 have been filed and no other document has been filed. 14. It is well settled principle of law that if any person is in possession of the Government poramboke land, that would be recognised by the revenue authority by issuance of 'B' memo and collection of the penal assessment levy for every Fasli. But Ex.A-1 kist receipt relates to Faslis 1394 and 1381, for patta Nos.1042, 1084, 1017, 1010, 1096, 1081, 1100, 1078, 998, 1080, 1060 and 1079 and Ex.A-2 kist receipt relates to Fasli 1398 for patta Nos.1100 and 1095. No document has been filed to show that 'B' memo has been issued for recognising their encroachment and their possession of the Government poramboke land. That factum has not been considered by the first appellate Court and the first appellate Court has mainly concentrated on Ex.B-18. In Ex.B-18, which is the certified copy of the resolution passed by the Panchayat, it is stated that S.No.75/2 has been adjacent to the Panchayat Union Office and in the resolution, it was decided that Palaniammal was directed to put up wire fencing in respect of the Panchayat Union Office. The said resolution as stated in Ex.B-18, reads as follows: @jPh;khdk; vz;/13 (13): ngU:uhl;rp cgnahfj;jpy; ,Uf;Fk; ,lk; nghf kPjp epyj;ij jpUkjp/gHdpak;khSf;F gl;lh bfhLf;f rpghhpR bra;ayhk; vdt[k;. ngU:uhl;rp mYtyfk; Rw;w[p fk;gp ntyp nkw;goahh; mikj;Jf;bfhLf;f ntz;Lk; vdt[k; jPh;khdpf;fg;gl;lJ/@ Thus, the Panchayat recommended to give patta to Palaniammal and they also gave a direction to Palaniammal to put up wire fencing around the building belong to the Selection Grade Town Panchayat. 15. The first appellate Court has considered these aspects in paragraphs 9 and 10 of its judgment, but failed to see that the respondents-plaintiffs must prove their case on the basis of their own documents and evidence. It is pertinent to note that that in Ex.A-1 mentions the name of Anandan, S/o Vadamalai Gounder, Faslis 1381 and 1394 and the patta numbers. Ex.A-2 also mentions the name of Anandan, Fasli 1398 and the patta numbers. Thus, the Fasli 1394 as mentioned in Ex.A-1 relates to the year 1985. Exs.A-1 and A-2 are issued only for the patta property. Ex.A-3 is only the letter https://hcservices.ecourts.gov.in/hcservices/ dated 29.1.1992 addressed to the District Collector, Salem and in that, it was stated that they were in possession and enjoyment of the same for the past 60 years. No other document has been filed, except these documents. Ex.A-4 is the acknowledgement of the letter. 16. Per contra, on the side of the appellant-first defendant, they have filed documents. Ex.B-2 kist receipt stands in the name of Palaniammal and S.No.75/2 relating to Fasli 1391 and 1392 have been mentioned and the kist had been paid on 30.12.1983. In Ex.B-3 kist receipt, which relates to Fasli 1394 issued in the name of Palaniammal, D/o Muthu Gounder relating to Patta No.221, and the kist had been paid on 28.1.1985. In Ex.B-4 kist receipt, which stands in the name of Palaniammal, 'STT' was mentioned and it relates to Fasli 1394 and Re.1 has been collected as kist. Ex.B-5 kist receipt is dated 11.5.1987, which stands in the name of the appellant-first defendant-Palaniammal and in that, C.CR.No. has been mentioned as 75/2 and the kist had been paid on 11.5.1987. In Ex.B-6 kist receipt relating to C1/CR/75/2, the patta number has been mentioned as 230 and the kist was paid on 19.3.1988. In Ex.B-7 kist receipt, the S.No. has been mentioned as S.No.75/2/2A for Fasli 1399, and the kist had been paid on 20.12.1989, and it stands in the name of the appellant-Palaniammal. Ex.B-8 kist receipt relates to Fasli 1400, and the kist had been paid on 15.2.1991 relating to C.No.75/2. Ex.B-9 kist receipt is relating to Fasli 1401 and S.No.75/2 and the kist had been paid on 12.2.1992 and it stands in the name of the appellant. Ex.B-10 is dated 5.2.1994 for Fasli 1403 and the 'LR' has been mentioned and patta number has also been mentioned, but it relates subsequent to the filing of the suit and no relevance could be placed on the same. Exs.B-11, 12, 13, 14, 15, 16 and 17, all relate to land revenue being collected, but all are subsequent to the filing of the suit, for the Faslis 1404 to 1410 and they all show that only the appellant is in continuous occupation of the property. 17. It is also admitted fact that P.W.1 Anandan himself in his oral evidence admitted that the property has been assigned after due publication. In paragraph 26 of the judgment, the trial Court came to the conclusion that the fifth defendant has followed the procedures and then only issued the patta, since he has not received any objection. But that fact has not been considered by the first appellate Court. 18. As already discussed, even though the respondents- plaintiffs are claiming title and they have prescribed title by adverse possession, they have not filed documents to prove that themselves and their predecessor-in-title were in possession and enjoyment of the suit property more than the statutory period against the Government, i.e. 30 years. https://hcservices.ecourts.gov.in/hcservices/ 19. In the above circumstances, I am of the opinion that the first appellate Court has not considered all these aspects and granted decree in favour of the respondents-plaintiffs, which is against law. The judgment and decree of the first appellate Court are perverse and are liable to be set aside. 20. Learned counsel for the appellant-first defendant relied upon a decision of this Court reported in 2009 (5) C.T.C. 24 (Kasilingam Vs. Government of Tamil Nadu, rep. by District Collector) and argued that merely because the respondents- plaintiffs are having land, the assignment in favour of the first defendant is not liable to be set aside. The assignment of the land in favour of the first appellant has been done only on the basis of the eligibility on merits and that will not give rise to any cause of action for the plaintiffs as a matter of right and only Government can decide whether the land can be assigned to any person or not on the basis of Rules and Civil Court has no jurisdiction to issue mandatory injunction. 21. Further, the respondents-plaintiffs are not entitled to title by adverse possession. But however, the respondents- plaintiffs relied upon the assignment in favour of the appellant- first defendant, and stated that they sought for the second prayer for cancellation of assignment. But, this Court has no jurisdiction to cancel the assignment. 22. For the reasons stated above, even though the respondents- plaintiffs are claiming title to the suit property and contended that they have prescribed title by adverse possession, they have not proved the adverse possession by way of marking documents or let in any oral evidence. But the respondents-plaintiffs fairly conceded that the assignment has been given after following the procedures. In the abovesaid circumstances, the respondents- plaintiffs have not prescribed title by adverse possession. They are also not entitled for declaration and the consequential reliefs. The judgment and decree of the first appellate Court are liable to be set aside. 23. The Second Appeal is allowed. The judgment and decree of the first appellate Court are set aside. The judgment and decree of the trial Court are restored. The suit in O.S.No.159 of 1993 is dismissed. No costs. The Miscellaneous Petition is closed. cs Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Subordinate Judge, Mettur. 2. The District Munsif, Mettur. 3. The District Collector, Salem. 4. The Revenue Divisional Officer, Mettur Dam, Mettur Taluk. 5. The Tahsildar, Mettur Taluk, Salem District. 6. The Village Administrative Officer, Veerakkalpudur Village, Mettur Taluk, Salem District. 7. The Section Officer, V.R. Section, High Court, Madras. + 1 cc to M/s.A.Ilango, Advocate SR No.1123 + 1 cc to Government Pleader, SR No.824 SSK(CO) SR/3.2.2010 Judgment in S.A.No.862 of 2006 https://hcservices.ecourts.gov.in/hcservices/