IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.1.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA S.A.No.863 of 2006 & M.P.No.1 of 2006 Palaniammal .. Appellant vs. 1. Lakshmanan 2. Kannan 3. Pavayammal 4. Govindaraj 5. Thiyagarajan 6. Arputham 7. Rajaram 8. The Tahsildar, Mettur Dam. 9. The Revenue Divisional Officer, Mettur Dam, Mettur Taluk. 10. The District Collector, Salem-1. .. Respondents Second Appeal against the judgment and decree dated 5.1.2006 in A.S.No.84 of 2004 on the file of the Sub-Court, Mettur, against the judgment and decree dated 23.9.2002 in O.S.No.52 of 1997 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 6 Ms.Bhavani, Spl.G.P., assisted by Mr.R.Muthaiyan, Govt. Advocate for RR-8, 9 & 10 JUDGMENT The Second Appeal is filed by the first plaintiff against the judgment and decree dated 5.1.2006 in A.S.No.84 of 2004 on the file of the Sub-Court, Mettur, reversing the judgment and decree dated 23.9.2002 in O.S.No.52 of 1997 on the file of the District Munsif Court, Mettur. https://hcservices.ecourts.gov.in/hcservices/ 2. The averments in the plaint are as follows: The plaintiffs are husband and wife. The first plaintiff's father Muthu Gounder has encroached upon the Government poramboke land in 1942 and he was enjoying the property and paying penal kist. He reclaimed the same and then, he made it fit for cultivation and enjoying the same till his lifetime. Since he become old, the first plaintiff is in possession and enjoyment of the same. Muthu Gounder died in 1980. After that, the first plaintiff alone is in possession and enjoyment of the same. On 30.10.1991, the Executive Officer of Veerakkalpudur Panchayat has recommended to give patta in respect of 1 acre 34 cents in the survey number. That has been considered by the Salem District Collector and the have made a publication on 15.5.1992. It has also been published in Salem District Government Gazette. Since no one has made objection, on 8.1.1993, the patta memo has been issued to the first plaintiff. She in possession and enjoyment of the same. So, she is the owner. The defendants 1 to 3 are relatives. They have attempted to interfere in possession. Since the plaintiffs refused to give cart-track in the property, they attempted to interfere in the possession and hence, the plaintiffs came forward with the suit for declaration of title and also for injunction. They prayed for a decree. 3. The gist and essence of the written statement filed by the first defendant, which has been adopted by the second and third defendants, are as follows: The first plaintiff's father was not in possession and enjoyment of the suit property. If any record is created, it is not binding on the defendants 1 to 3. The suit property is a poramboke land. It is being enjoyed by the defendants even from their ancestral period. The second plaintiff is the son of the then Karnam of the Gonur Village, namely Gopalsamy and he was keeping the first plaintiff, who is the wife of one Jagannathan of Karnataka State. She left Jagannathan and she is kept as mistress for the second plaintiff. Hence, the status of husband and wife of the plaintiffs is false and denied. The first plaintiff is the daughter of Muthu Gounder, who got four sons and two daughters, namely Sundaram, Sengodan, Hariraman, Arumugam, Palaniammal and Angammal. The said Sundaram and Hariraman died leaving behind their legal heirs. The legal heirs of Muthu Gounder are necessary parties to the suit. Since they are not impleaded, the suit is bad for non- joinder of necessary parties. Since the first plaintiff and the second plaintiff are having illicit intimacy and under the active help of the second plaintiff for getting influence from the Revenue Department, it was possible for the first plaintiff in getting the documents like 'B' memo receipts in her name. Those documents are not valid due to the abovesaid reasons. Actually, the suit https://hcservices.ecourts.gov.in/hcservices/ property is in favour of the defendants and they are in possession and enjoyment along with the patta lands, which abets to it, even from their forefathers. It does not mean that if the receipts, that too for the penal assessment stands in the name of the first plaintiff, but it will give right to the plaintiffs. From the beginning, the petitions were given by the defendants regarding the issue to the Revenue Department and they were destroyed by the Revenue officials by the influence of the second plaintiff. The defendants, as plaintiffs filed a suit in O.S.No.159 of 2003, which was pending for disposal in respect of the same subject matter between the same parties. The first plaintiff is taking part in the proceedings without even disclosing the fact of the pendency of the suit. They have filed the suit for illegal gain. There is no cause of action for the present suit. The suit is bad for non-joinder of parties. The court fee paid is not correct. The defendants prayed for dismissal of the suit. 4. The trial Court, after considering the averments both in the plaint and in the written statement, framed four issues for consideration and considering the evidence of P.Ws.1 to 5, Exs.A-1 to A-33, D.Ws.1 to 3 and Exs.B-1 to B-4, decreed the suit as prayed for in the plaint. Against that, the defendants preferred appeal and the learned first appellate Judge, after considering the arguments of both counsel, has framed five points for consideration, allowed the appeal, and set aside the judgment and decree passed by the trial Court and dismissed the suit. Against that, the present Second Appeal has been preferred by the first plaintiff. 5. At the time of admission of the Second Appeal, the following substantial question of law was framed for consideration: "If adverse possession pleaded by the contesting defendants is to be held against them, then is not the plaintiffs entitled to have a decree of declaration of title based on the assignment of the land given by the Government in their favour?" 6. Substantial question of law: The appellant as first plaintiff filed the suit based on Ex.A- 29, the assignment 'D' Memo issued in her favour on 8.1.1993 after recognising her possession and enjoyment. Before that, her father Muthu Gounder was in possession and enjoyment of the same. The suit has been filed on the basis of Ex.A-29 assignment order--D Memo. She is in possession and enjoyment of the suit property. The respondents-defendants attempted to interfere with the possession. They deny the title of the plaintiffs and claimed adverse possession in the earlier suit. Hence, the plaintiffs have come forward with the present suit for declaration of title and injunction. https://hcservices.ecourts.gov.in/hcservices/ 7. The respondents-defendants raised the defence stating that their forefathers have encroached upon the suit property and enjoying the property. They are also enjoying the property and have perfected title by adverse possession. The respondents-defendants earlier filed O.S.No.159 of 1993 for declaration and injunction. They have got their assignment during the pendency of O.S.No.159 of 1993 and hence, the plaintiffs in the present have not prescribed any title. Hence, the defendants prayed for dismissal of the suit. 8. The trial Court has framed necessary issues and considering the oral and documentary evidence, decreed the suit. Against that, the defendants preferred appeal. The learned first appellate Judge has considered the arguments of both the counsel and set aside the judgment and decree passed by the trial Court and allowed the appeal. Against that, the Second Appeal has been preferred by the appellant-first plaintiff. 9. Learned counsel for the appellant-first plaintiff would contend that on the basis of the appellant's predecessor, the father of the first plaintiff was in possession and enjoyment of the suit property. Recognising his possession, 'B' memo was issued and she has paid penal kist due to the Government. After that, she gave an application for assignment of the suit property. That has been recommended by the Executive Officer of the Selection Grade Town Panchayat. The District Collector, Salem has followed the procedure and issued the patta and 'D' memo assignment order in favour of the appellant-first plaintiff, on 8.1.1993. The respondents-defendants attempted to interfere with the possession and hence, the plaintiffs came forward with the present suit. The first appellate Court has not considered Exs.A-1 to A-23 and has come to the conclusion that Ex.A-29 is hit by "lis pendens". After issuance of Ex.A-29, she filed the suit for declaration of title on the basis of Ex.A-29 and the first appellate Court has not considered all these aspects and he further submits that to prove the case, oral evidence has been let in by way of examining Village Administrative Officers and other revenue officials, which has not been considered. Moreover, the respondents-defendants have not challenged Ex.A-29 in proper forum. Before issuance of patta, publication has been made in Salem District Government Gazette and no objection has been raised. Hence, patta has been issued. In the abovesaid circumstances, the first appellate Court has erroneously set aside the judgment and decree of the trial Court. The first appellate Court has not considered the materials and documents and it amounts to perversity. The appellant-first plaintiff prayed for setting aside the judgment and decree passed by the first appellate Court. 10. Learned counsel for the respondents-defendants would contend that they filed O.S.No.159 of 1993 for declaration of title https://hcservices.ecourts.gov.in/hcservices/ by prescription and also for mandatory injunction to cancel the assignment and for permanent injunction. The trial Court has not considered these aspects and the first appellate Court has considered these aspects in proper perspective and came to the correct conclusion that Ex.A-29 is hit by "lis pendens", since it was granted after filing of O.S.No.159 of 1993. Ex.A-29 has been discussed by the first appellate Court in threadbare and hence, there is no infirmity or illegality in the judgment and decree passed by the first appellate Court. He prayed for dismissal of the Second Appeal. 11. The suit was filed for declaration of title on the basis of assignment Ex.A-29. The suit property is admittedly Government poramboke consisting of S.No.75/2 in 1 acre and 75 cents. The plaintiffs have filed 33 documents to prove that the first plaintiff herself and her predecessor-in-title, father Muthu Gounder, was in possession and enjoyment of the same. She filed kist receipts and filed the suit on the basis of Ex.A-29 assignment order and in paragraph 4 of the plaint itself, she has pleaded that the assignment has been issued on her on 8.1.1993 and her name has been incorporated and registered in all the Revenue records. She paid kist. Even though the appellant-first plaintiff has filed kist receipt for Fasli 1389 relating to 1980, she filed '2C' patta and other documents relating to S.No.75/2 from 11.5.1987 to 12.2.1992, which shows that she was in possession and enjoyment of the same. The respondents-defendants have pleaded that the second plaintiff is the son of the then Karnam of Gonur Village, namely Gopalsami and the documents have been created and confronted for the purpose of the case. It is pertinent to note that one of the Revenue officials, namely Deputy Tahsildar has been examined as P.W.3 and the V.A.Os. as P.Ws.4 and 5 also deposed about the assignment. In the abovesaid circumstances, mere allegation that those documents are obtained by fraud, is unacceptable. 12. It is true that the appellant-first plaintiff has to prove the case on the basis of oral and documentary evidence and to prove Ex.A-29, P.W.3 Viswanathan Deputy Tahsildar has been examined. Moreover, in Ex.A-25, the Resolution passed by the Executive Officer of the Selection Grade Town Panchayat, it was stated that the Executive Officer of the Town Panchayat has given recommendation for grant of patta in respect of S.No.75/2, 1 acre and 73 cents in favour of the appellant-first plaintiff. Before granting patta, the authorities made sub-division in the property as S.No.75/2 measuring 0.54.0 "tharisu" and S.No.75/11 measuring 0.16.0 "Kallankuthu". That has been ordered to be published as per Ex.A-27, which is the publication of the Salem District Collector. Ex.A-26 dated 15.5.1992 is the publication in the Salem District Government Gazette. In Ex.A-26, it was mentioned in page 5 that, "13 Veerakkalpudur Village, 75-2 0.70.0, Kallankuthu, 75-2 0.54.0 Tharisu, 75-11, 0.16.0 Kallankuthu". In Ex.A-26, it is further https://hcservices.ecourts.gov.in/hcservices/ stated that the properties have been released form the possession of the Panchayat. As per Ex.A-28, the District Collector has issued letter dated 29.4.1992 to publish the notification in the Salem District Government Gazettee. 13. Then, Ex.A-29 has been issued on 8.1.1993, in which, "Veerakkalpudur Village, S.No.75/2, extent 0.54.0" have been mentioned and Ex.A-29 'D' memo has been issued in the name of Tmt.Palaniammal (appellant-first plaintiff), w/o Rajaram. The respondents-defendants have accepted that the assignment has been given in favour of the appellant, in cross-examination of D.W.1. But they have not challenged the same. To prove the same, P.Ws.3 to 5 were examined. The trial Court has considered the evidence of D.W.1. As already stated, the suit has been filed on the basis of assignment, that has not been challenged. Besides that assignment, the appellant-first plaintiff-Palaniammal has proved that as daughter, susbsequent to her father, she was in possession and enjoyment and paying kist by way of penalty, which have all been recognised. After the assignment also, she is in possession and she filed Ex.A-30 chitta, which has been issued in the name of the appellant on 12.9.1997. She also filed Ex.A-31 adangal to show that she raised 'cholam' crops. So, the appellant-first plaintiff has proved that she is in possession, as assignment has also been issued to her and patta has been issued to her and she is in possession and enjoyment of the same. The appellant-first plaintiff is entitled to declaration of title. 14. Learned counsel for the respondents-defendants submitted that the appellant-first plaintiff is not entitled to injunction as per Section 41 of the Specific Relief Act. That is not applicable to this case, because the plaintiffs have proved that they are in possession and enjoyment of the suit property even before assignment has been made in favour of the first plaintiff. So, the appellant herein is entitled for declaration of title and injunction. 15. Per contra, the respondents-defendants have filed only four documents and in those documents, even though they pleaded adverse possession, they have not proved the same. Hence, the first appellate Court has not considered the material records, i.e. the public documents Exs.A-25 to 29 and the oral evidence of P.Ws.3 to 5 who are the Government servants that those documents are created while they are discharging their official duties. 16. In the above circumstances, non-consideration of the material documents and oral and documentary evidence by the first appellate Court would amount to perversity and material irregularity. Since the judgment and decree of the first appellate Court are perverse, this Court is entitled to peruse the evidence and documents and interfere with the findings of the first https://hcservices.ecourts.gov.in/hcservices/ appellate Court. 17. Hence, on the basis of the discussion in the earlier paragraphs, I am of the opinion that the appellant-first plaintiff has proved her case by way of filing documents and that herself and her father are in possession and enjoyment of the suit property and subsequently, her possession has also been recognised by way of issuance of assignment and pursuant to the assignment, patta has also been issued in her name and she is paying the kist and enjoying the property. Hence, the first appellate Court has committed error in only discussing Ex.A-28 recommendation letter of the Executive Officer of the Selection Grade Town Panchayat dated 30.10.1991 and came to the erroneous conclusion. Hence, the judgment and decree of the first appellate Court are liable to be set aside. 18. In fine, the Second Appeal is allowed. The judgment and decree of the first appellate Court are set aside and the judgment and decree of the trial Court are restored. The suit in O.S.No.52 of 1997 is decreed as prayed for in the plaint. No costs. The Miscellaneous Petition is closed. cs Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Subordinate Judge, Mettur. 2. The District Munsif, Mettur. 3. The Section Officer, V.R. Section, High Court, Madras. 4. The Tahsildar, Mettur Dam. 5. The Revenue Divisional Officer, Mettur Dam, Mettur Taluk. 6. The District Collector, Salem-1. + 1 cc to Spl Government Pleader (CS) SR No.824 + 1 cc to M/s. Ilango, Advocate SR No.1122 SSK(CO) SR/3.2.2010 Judgment in S.A.No.863 of 2006 https://hcservices.ecourts.gov.in/hcservices/