IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23/08/2002 CORAM THE HON'BLE MR.JUSTICE P.SHANMUGAM and THE HON'BLE MR. JUSTICE K.SAMPATH A.S.No.309 of 1995 and W.P.No.6579 of 1995 C.M.P.No.13465 of 1995 and W.M.P.No.10619 of 1995 A.PL. Meyyappa Chettiar ... Appellant in Appeal and the petitioner in W.P. -Vs- 1. The District Collector, Sivagangai, P.M.T. District. 2. District Revenue Officer, Sivagangai, P.M.T. District. 3. Sub-Collector of Devakottai, Devakottai, P.M.T. District. 4. Tahsildar, Karaikudi Taluk, P.M.T. District. ...Respondent Nos. 1 to 4 in W.P. 5. K.R.Narayanan Chettiar ...Respondent in Appeal and Respondent No.5 in W.P. Appeal against the judgement and decree dated 16.02.1995 made in O.s.No.38 of 1994 the file of the Court of the Sub Judge, Devakottai. Writ Petition filed under Article 226 of the Constitution of India praying for issue of writ of certiorarified mandamus as stated therein. For Appellant/petitioner : Mr.P.L.Narayanan For Respondents 1 to 4 in W.P. : Mr.M.E. Ravi Selvam For Respondent in Appeal and R5 in WP. : Mr. AR.L.Sundaresan :COMMON JUDGEMENT P.SHANMUGAM, J. The appeal as well as the writ petition are taken together for consideration. The suit in O.S.No.38 of 1994 on the file of the Court of the Subordinate Judge, Devakottai, was filed for declaration and permanent injunction by appellant in the appeal. The suit was dismissed with cost. The appeal is against this judgement and decree. He has also filed the writ petition under Article 226 of the Constitution of India praying for issue of writ of certiorarified mandamus to set aside the order of the District Revenue Officer, Sivagangai, dated 10.06 .1994 confirming the order of the Sub Collector of Devakottai dated 3 0.1.1994 and consequently to direct the respondents therein to restore the name of the writ petitioner in the `A' register of the fourth respondent therein, namely, the Tahsildar, Karaikudi Taluk, in respect of the land in S.No.27/5 measuring 1.07 acres, at Kottaiyur Village, Karaikudi Taluk. 2. The facts of the case are as follows:- The parties are referred to as per their ranking in the suit. According to the plaintiff, the suit property in S.No.27/5 of Kottaiyur Village, K. Velangudi Group, Karaikudi Taluk, of an extent of 1.07 acres was purchased by the father of the plaintiff by a registered sale deed dated 01.05.1929 for a consideration of Rs.10,000/- from M/s. V. CT. Chockalingam Chettiar, VR. Chockalingam Chettiar, PR.P. Vairavan Chettiar, the trustees of Shree Kandeeswaramudaiyan Devasthanam, and ever since, they had been in possession and enjoyment of the property by paying revenue and kist. Their names have been entered in the patta passbook and adangal. It is his further case that while the suit property was covered on three sides by a compound wall, they have grown trees, plants and have been enjoying and in possession of the land without hindrance from anybody. While so, when the plaintiff was out of India, an erroneous entry was made in the `A' Register of the Revenue Department in the name of one K. Govindan Chettiar in the place of the plaintiff. He came to know of this, when he went to pay the kist and immediately thereafter, he applied for removal of the name of K. Govindan Chettiar from the said register. The Tahsildar, considering his possession, right and title, found that erroneous entry has been made in the name of K.Govindan Chettiar and ordered restoration of the same to the petitioner's name as evidenced by Ex.A.4 (1971). Six years thereafter, the defendant along with his brother K. Ramanathan Chettiar conveyed 7 cents of land adjoining the suit property herein by a registered sale deed dated 27.07.1979, describing thereunder that the suit property belongs to the plaintiff. However, after fourteen years, the defendant invoked the jurisdiction of the Sub Collector, Devakottai, for an appeal dated 01.09.1993 against the transfer of the entry in `A' Register in the petitioner's name made by the Tahsildar on 05.03.1971. The Sub Collector, by order dated 30.01.199 4 restored the entry in the name of K. Govindan Chettiar. The said order was confirmed by the District Revenue Officer by Ex.B.1 order in the appeal filed by the plaintiff. According to the plaintiff, the defendant who is a highly influential man and has money and power, armed now with an illegal order, tried to unlawfully interfere with the possession and enjoyment of the plaintiff, thereby driving the plaintiff to institute the suit for declaration and permanent injunction. He had also filed the Writ Petition No.6579 of 1995 against the order of the District Revenue Officer confirming the order of the Sub Collector and for the consequential restoration of the plaintiff's name in the register. 3. The case of the defendant, who is the 5th respondent in the writ petition, is that the suit property is their ancestral property and that they had been in enjoyment of the same by obtaining patta and paying the revenue to the Government. As the defendant and his brothers were working abroad, patta granted by the Settlement Officer was wrongly transferred to the name of the plaintiff taking advantage of their absence, but however, on his appeal, the Sub Collector allowed the same and the revision filed by the plaintiff was dismissed confirming the transfer of the entry in the name of K. Govindan Chettiar. He also claims that they had been enjoying the suit property by enclosing compound wall with gate, digging a well and that they have also acquired title by adverse possession. According to him, he recently came to know that there are interpolations in Ex.A.13 and therefore, the same would not bind the defendant and the description of the property is incorrect and therefore, the suit and the writ petition are liable to be dismissed. 4. On the pleadings, the learned Subordinate Judge, Devakottai, framed the following five issues:- (i) Whether the plaint schedule property belongs to the plaintiff? (ii) Whether the defendant is interfering with the enjoyment of the plaintiff? (iii) Whether the plaintiff is entitled for declaration and permanent injunction as prayed for? (iv) Whether the suit is maintainable? (v) To what relief, the plaintiff is entitled? 5. The learned Subordinate Judge permitted marking of Exs.A.1 to A.2 8 documents on behalf of the plaintiff, and Exs.B.1 to B.7 documents on behalf of the defendant. P.Ws.1 to 4 were examined on behalf of the plaintiff, and D.Ws.1 to 4 were examined on behalf of the defendant. The Advocate Commissioner has submitted his report Ex.C.1 and plan Ex.C.2. After considering the oral and documentary evidence, the learned Subordinate Judge found that the plaintiff has not established that the suit property belonged to his ancestors on Issue No.1, that the defendant is not interfering with the enjoyment of the plaintiff on Issue No.2 and that the plaintiff cannot exclusively claim title to the suit property and that the suit is not maintainable for non-joinder of the necessary parties on Issue Nos.3 and 4. The suit was ultimately dismissed with cost. The appeal is against that judgement and decree. 6. Coming to the writ petition, we find from the typed set of papers that the defendant KR.Narayanan Chettiar had made a representation dated 01.09.1993 to the third respondent therein, viz., the Sub Collector, Devakottai, stating that the name of the plaintiff had been wrongly entered in the Village Accounts and he came to know of that when he tried to pay the kist for the property, and that since he was working outside the country, the transfer of patta was not brought to his notice, and therefore, he prayed for an enquiry and appropriate orders. On this application, after considering the objection of the plaintiff dated 11.10.1993, the Sub Collector, Devakottai, found that the plaintiff had not produced any records to show that the property was obtained from K. Govindan Chettiar and therefore, the transfer in the name of the plaintiff was to be cancelled. The defendant was also directed to get the transfer of patta after producing a Certificate to the effect that they are the legal heirs of K. Govindan Chettiar. Ultimately, the name of K. Govindan Chettiar was directed to be entered in reference to the S.No.27/5 of an extent of 1.07 acres. On appeal, the District Revenue Officer, in his impugned order dated 10.0 6.1994, while confirming the order of the Sub Collector, found that the plaintiff has failed to identity of the property in reference to the sale deed, that the plaintiff had not established his title to the property and that there was no explanation as to why the petitioner/plaintiff could not get consent from the settlement pattadar, namely, K. Govindan Chettiar. In other words, both the Revenue Authorities proceeded on the basis that K. Govindan Chettiar is pattadar and that the petitioner/plaintiff has not established his independent title. The writ petition is against the order of the District Revenue Officer confirming the order of the Sub Collector. 7. According to the plaintiff/writ petitioner, there is total nonapplication of mind and the order impugned has been passed without reference to the valid title established by two registered sale deeds of the years 1929 and 1979, namely, Ex.A.1 and Ex.A.13. According to the plaintiff/writ petitioner, the authorities have misdirected themselves both legally and factually, inasmuch as K. Govindan Chettiar has no right or title or interest in the property, and without considering that the entry in the name of K. Govindan Chettiar in `A' Register is nothing, but a mistake. The plaintiff/writ petitioner has also pleaded mala fides against the second respondent. 8. The Counsel appearing on behalf of the fifth respondent in the writ petition who is the defendant in the suit justifies the orders of the revenue authorities and the learned Government Pleader submits that the orders were passed on the basis of the records available. 9. We have heard the Counsel appearing on either parties elaborately and considered the matter carefully. 10. The main question that arises for consideration is whether the plaintiff has established his title to the suit property, so as to seek the relief of declaration and permanent injunction, and whether the order of the revenue authorities are justifiable?. 11. Before going into the question, the controversy in reference to the suit property, viz., whether the suit property is identified and co-related to the sale deeds Exs.A.1 and A.13, has to be resolved. (i) As per the description in the plaint schedule of property, the suit property is of an extent of 1.07 acres in S.No.27/5 in Patta No.57 of the Kottaiyur Village, K.Velangudi Group, Karaikudi Taluk, Pasumpon Muthuramalinga Thevar District. The four boundaries set out in the schedule of property are: East by north-south third street; South by the Serkattan Urani Tenkarai, the vacant the vacant property belonging to the Shree Kandeeswaramudaiyan Devasthana Trustees and the east-west street; West by N.K. Annamalai Chettiar's house and wall and AL.CT.Alagappa Chettiar's Banglow; North by plaintiff's father A.PL. Palaniappa Chettiar's Bungalow, AK.RM.K.RM. Karuppan Chettiar's vacant land, the property agreed to be purchased from Kathamuthu Pillai, by A.PL.Palaniappa Chettiar and A.PL.Palaniappa Chettiar's buildings and land; In between them, 2-1/2 "Manai" of vacant land of 60 "Thatchumulan" from east-west and 100 "Thatchumulam" from north-south bounded by compound wall on three sides consisting of building, well including trees. (ii) The descriptions as found in Ex.A.1 sale deed dated 12.05.1929, by which the plaintiff's father A.PL. Palaniappa Chettiar purchased the property from M/s. S.CT.K.Chockalingam Chettiar, PR.Veera Chockalingam Chettiar and PR.P. Vairavan Chettiar, the trustees of Sree Kandeeswaramudayar Devasthanam, are as follows:- East by north-south third street; South by Sokkattan Urani Tenkarai, the vendor's vacant land and east-west road; West by the house and wall of N.K.Annamalai Chettiar and the house and wall of AL.CT.Alagappa Chettiar; North by the purchaser's property, AK.RM.K.RM. Karuppan Chettiar's vacant land, the land proposed to be purchased by the purchaser from M.Kathamuthu Pillai, and the vacant land and buildings belonging to the purchaser; In between these properties, in 2-1/2 "Manai" of 60 "Tatchumulam" from east to west and 100 "Tatchumulam" from north to south bounded on three sides with building at Solaimudiyenthal Village, Selangudi Ulkadai, Karaikudi Sub Division, Ramanathapuram Division. (iii) A Commissioner was appointed to inspect the suit property and note down the physical features of the suit property, and the description of the property as given in the plaint schedule was given in the Interlocutory Application for appointment of the Commissioner. The Commissioner has submitted a report Ex.C.1 and a plan Ex.C.2. The Commissioner has stated in his report that "ABCD" is the suit property and the property was bounded by compound wall on four sides. He has stated that there is a main gate at the Raman Street, that inside the suit property, there are different types of trees, like, Mango, Neem, Coconut, Palmirah, Jackfruit, etc., that there is a well on the north-eastern corner of the property, that there is a tiled shed with an oven, and firewood had been gathered near the oven, and that adjoining to that shed, there is a large tank with platform, bathroom and lavatory. The plaintiff claims that these form part of his house. In paragraph 7 of the Commissioner's report, it is noted that there are three granite platforms, and in one of them, it is inscribed as the gift of A.PL.Meenakshi Achi with date as 19.07.1954 equivalent to 4th, Adi month, Bava year. The report has also noted the claims of both the plaintiff as well as the defendant. A rough plan, the description of boundaries as gathered from Exs.A.1, A.13, C.1, C.2 and A.24 is as follows:- Cghokkattan Urani and vacant land A North D Na.Ka.Annamalai Chettiar West Raman St.--- --- AL.CT.Alagappan (III Street Chettiar East) East B/////// South //////// C //////// //////// //////// //////// | | | Plain- Defen- Plain- tiff's dant's tiff's house. plot house sold under Ex.A.13. 12. A combined reading of the schedule of property described in the plaint and the Commissioner's report as well as Ex.A.1, we find that there is no difficulty in identifying the suit property. Besides, we find from Ex.A.13, the sale deed executed by the defendant along with his brother K.R.Ramanathan Chettiar in favour of the plaintiff, that the sale deed was in reference to 7 cent s of the land. The boundaries as recited in the schedule to Ex.A.13 for the 7 cents of land are : West by the plaintiff's property; North by C.A.C. Lakshmanan Chettiar and others house; East by A.PL..Meenakshi Achi's house (Plaintiff's mother) South by RM.AN.St. and others' bunglow and the plaintiff's land; In other words, in this description, seven cents of land is situate on either side of the properties belonging to the plaintiff, i.e., on the east side the property belonging to the plaintiff's mother and in the western and southern sides the properties belonging to the plaintiff. 13. Ex.A.24 is the Field Plan of the Velangudi Village, which clearly shows that the sub division of 7 cents, namely, 27/17 and the house property of the plaintiff as 27/16 and the plaintiff's mother as 27 /18. 14. The defendant as D.W.1 has admitted in his cross examination that the opening of the door to the backyard of the plaintiff's house will lead to the suit property and the suit property is surrounded by a compound wall but it was put up by K.Govindan Chettiar. Even in Ex.A.1 sale deed of the year 1929, there is a reference to the compound wall on three sides, and in the schedule of property in the plaint, there is a reference to the well. The Commissioner's report confirmed the existence of the compound wall on three sides. As per the evidence of D.W.1 and Ex.A.24, the Village Field Map, it is seen that the property is bounded on north, east, west and on the southern side by the wall extended and covered by the plaintiff's property and only 7 cents of land that was left had been subsequently purchased under Ex.A.13 by the plaintiff himself. There is a main gate on the Raman Street, which was originally called Third Street running on northsouth. The main gate of the street was intended to take heavy vehicle inside the vacant land for carrying red sand, manure, etc., and the existence of bath room, lavatory, oven and the sitting platforms with the plaintiff's mother's name would also show that the suit property is attached to the plaintiff's house and accessible from south and it had been in use of the plaintiff. 15. By going through these documentary and oral evidence, we do not find any difficulty in identifying the suit property in reference to the extent and its boundary. Excepting the change of name of the street by the passage of time and minor changes effected over the boundaries, everything tallies. Therefore, the suit property is the same as found in Exs.A.1, A.13 and A.24 and the property has been properly identified by the Advocate Commissioner also. The contrary finding of the learned Subordinate Judge in para 15 and the revenue authorities in this respect are unsustainable. However after all this, in Paragraph 17 of the judgement, the learned Subordinate Judge held that description in Ex.A.1 sale deed is co-related to the plaint schedule property and the contention of the defendant cannot be accepted. TITLE TO THE PROPERTY: 16. The plaintiff claims title by virtue of registered sale deeds Ex.A.1 dated 12.05.1929 and Ex.A.13 dated 27.07.1979. The plaintiff further states that he has paid kist in his name as per Ex.A.2 dated 0 3.12.1964 for fasli years 1368 to 1374. Ex.A.3 evidencing the kist receipt for fasli years 1375 to 1380 dated 06.02.1971 in the name of the plaintiff for S.No.27/5 for patta No.191. Ex.A.5 evidencing kist receipt for the patta No.191 for fasli years 1381 and 1382 dated 04.04 .1973. In Ex.A.6 dated 12.04.1976 and Ex.A.7 patta book for S.No.27/5 in the name of the plaintiff, payment of revenue kist of fasli years 1383 to 1385 and 1386 to 1387 and 1391 to 1399 were entered. Exs.A.8 to A.12 are the kist receipts in the name of the plaintiff for the period 1982 to 1993. From the above documents, it is seen that the plaintiff traced his title to the suit property by virtue of Exs.A.1 and A.13 sale deeds and payment of kist upto the year 1993 from 1964. Ex.A.13 sale deed is executed by the defendant along with his brother in favour of the plaintiff in reference to the seven cents of the land which forms part of the larger extent of Ex.A.1 property, namely, 1.07 acres. As contended by the learned Counsel appearing for the appellant/plaintiff that the plaintiff has purchased this property for the convenient enjoyment of the whole extent of property comprised of land and house in Survey No.27/5 including the seven cents of land in S.No.27/17. As a matter of fact, Ex.A.1 also refers to the vacant land of Karuppan Chettiar on the north and Ex.A.13 refers to the plaintiff's property both on the east, west and south. The defendant is clearly estopped from questioning the title of the plaintiff to the suit property, inasmuch as in Ex.A.13, the defendant himself has described the suit property as plaintiff's property. He has referred to as ..."j';fs; tPl;Lf;F nkw;F / / / j';fs; ,lj;jpw;Fk; bjw;F"...of these seven cents. By the sale of these seven cents to the plaintiff, who has already got 1.07 acres of land and house in that survey number, by this description, the defendant has acknowledged the ownership of the plaintiff over the property as ..."j';fs; ,lj;jpw;Fk; bjw;F"... 17. The contention of the Counsel for the respondent/defendant is that Ex.A.1 sale deed refers to as cowl, which can only mean a lease of the property and not the sale. We do not find any substance in such contention. As per P.Ramanathan Aiyar's Law Lexicon, the expression "cowl" may be used for other transactions also. That apart, the expression is not a mere cowl, but it is a sasuvetha cowl. Ex.A.1 further says as follows:- ..."ehsJ njjpapy; eh';fs; buhf;fkha; bgw;Wf; bfhz;L tpl;l goapdhny moapy; fz;l brhj;jpy; jh';fs; j';fspc&;lg;gpufhuk; fl;olk; Kjypaitfs; fl;of; bfhz;Lk; g[j;jpu bgsj;jpu re;jjp ghuk;giuaha[k; jhdhjp tpdpka tpw;fpua';fSf;F nahf;fpakha[k; Fr;re;jpuhh; f!;jhapa[k; rh;t Rje;jpu ,Uthu ghj;jpa';fSld; Mz;lDgtpj;J bfhs;s ntz;oa J/"... It also says, ..."nkny fz;l c&uj;Jg;go jh';fSk; j';fs; thhpRfSk; j';fs; ghj; jpaijia milfpwth;fSk; thp brYj;jp Mz;lDgtpj;Jf; bfhs;s ntz;oaJ/"... In the description of the property, it further says, ..."rfy tpj ghj;jpa';fSk; j';fSf;F rh!;tjf;ft[yhf bfhLj;jpUf;fpwJ/" which literally translated would read as follows:- "the purchaser and his successor in interest with their succeeding generations to come for ever till the Sun and Moon shine enjoy the property absolutely with right of alienations, sale by putting up building etc., as per their wishes." As already pointed out that the consideration for this property was Rs.10,000/- in the year 1929, which according to the Counsel appearing for the appellant/plaintiff would amount to a minimum One Crore of rupees in the present market value, has much force and they could not have simply obtained a lease for such a huge consideration. The recital that the property shall be enjoyed for ever with the right of succession with all the interest and title stated in more than one place, gives no room for doubt that the property conveyed is a transfer by way of sale and not lease as contended. In Ex.A.13, another sale deed executed by the defendant along with his brother in favour of the plaintiff, the description of the property therein confirms the sale already taken place in the year 1929. In the light of this, it is not possible to accept the contention that the plaintiff had not purchased the property. 18. Insofar as the payment of revenue receipts and records are concerned, Ex.A.4 dated 05.03.1971 shows that the name of the holder of patta No.191 has been transferred from K. Govindan Chettiar to the plaintiff. The case of the plaintiff is that he was away from India, that he came to know of the transfer of entry in favour of K. Govindan Chettiar's name to the patta No.191, when he went to pay the subsequent kist, and that on his objection that it is an erroneous and mistaken entry without notice to him, his name was restored and thereafter, ever since from 1971, the plaintiff had been paying kist receipt till the year 1993. After nearly 22 years on the objection raised by the defendant, the plaintiff submitted his counter statement dated 11.1 0.1993. The Sub Collector referred to the counter statement wherein the plaintiff has stated that there is a building at S.No.27/5 and that the said property and land belong to him ancestrally. However, the Sub Collector found that the plaintiff has not produced any records to show that how the property came to him from K. Govindan Chettiar and that he has not produced any document to show that he is the legal heir of the K. Govindan Chettiar, which is, in our view, total non-application of mind. The claim of the plaintiff was that the suit property ancestrally belonged to him and that there is building and payment of kist. Without reference to these documents and payment of kist from 1964 to 1971 and without explaining the inordinate delay of 22 years in seeking for correction on the part of the defendant, the Sub Collector, only on the ground that the plaintiff has not proved that he is the legal heir of K. Govindan Chettiar, has restored the name of K.Govindan Chettiar in S.No.27/5 of an extent of 1.07 acres. Admittedly, before the Sub Collector, there is no proof as to how K. Govindan Chettiar had obtained the prop erty or title deed in his favour or any orders either by the revenue court or by the authorities showing that this property belonged to K. Govindan Chettiar. In other words, there was absolutely no material whatsoever to show that the property belonged to K. Govindan Chettiar. The Sub Collector, had, disregarding the title and evidence furnished by the plaintiff, simply accepted the case of the Village Administrative