IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.03.2011 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.No.20 of 2011 and M.P.No.1 of 2011 1. Venkatesappa 2. Lakshmamma .. Appellants/Plaintiffs vs. Pillappa Naidu .. Respondent/Defendant This Second Appeal is focussed as against the judgment and decree dated 26.02.2010 made in A.S.No.43 of 2008 on the file of the Court of the Subordinate Judge, Hosur, confirming the judgment and decree dated 15.10.2008 made in O.S.No.1/2003 on the file of the Court of the District Munsif, Hosur. For appellants : Mr.M.V.Krishnan For respondent : Mr.V.Nicholas JUDGMENT This Second appeal is focussed by the original plaintiffs animadverting upon the judgment and decree dated 26.02.2010 passed in A.S.No.43 of 2008 by the Subordinate Judge, Hosur, confirming the judgment and decree of the District Munsif, Hosur in O.S.No.1 of 2003. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. Narratively but precisely, broadly but briefly, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The plaintiffs filed the suit seeking the following reliefs: "(i) For a declaration of the title of the plaintiffs over the suit schedule property; (ii) For a permanent injunction against the defendant, his men servants agents and others https://hcservices.ecourts.gov.in/hcservices/ claiming by or under the defendant restraining them from trespassing and interfering with the peaceful possession and enjoyment of the suit property by the plaintiffs; and (iii) For costs." (b) The written statement was filed by the defendant resisting the suit. (c) Whereupon issues were framed by the trial Court. (d) During trial, the first plaintiff-Venkatesappa examined himself as P.W.1 along with P.Ws.2 and 3 and Exs.A1 to A9 were marked. Exs.A10 to A16 were marked before the first appellate Court. The defendant-Pillappa Naidu examined himself as D.W.1 and Exs.B1 to B32 were marked. 3. Ultimately the trial Court dismissed the suit as against which appeal was filed for nothing but to be dismissed confirming the judgment and decree of the trial Court. 4. Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been focussed by the plaintiffs on various grounds inter alia to the effect that both the Courts failed to take into account the entire oral and documentary evidence. Before the first appellate Court even though by way of additional evidence, Ex.A11 the order passed by the Settlement Tahsildar dated 21.08.1968 was produced, yet it was not considered in proper perspective. As per Ex.A11, it is clearly found spelt out that the plaintiffs' vendors' propositus, Venkatappa was given with ryotwari patta as per Ex.A11 in S.No.32 along with four other persons, of whom Lagumiah, the ancestor of the defendant also was included. The total extent of land available in S.No.32 was 7.79 acres, whereas, the plaintiffs are claiming only an extent of 1.49 acres. The plaintiffs are not in any way claiming any portion in Lagumiah's land. There is a ridge also separating the land of Lagumiah with that of the land of Venkatappa and in such a case, both the Courts below simply took into account Ex.A3 which is not a relevant document in this case filed on the plaintiff's side. The Courts below erroneously construed Exs.A8 and A9 as though the plaintiff's indulged in creating some false documents in order to buttress and fortify their claim and on that ground ignoring Exs.A1 and A11 dismissed the suit of the plaintiffs warranting interference in the Second Appeal. 5. The learned counsel for the plaintiffs also would implore and entreat, that if a Commissioner is appointed and the suit property is located with reference to the boundaries and extent, then the entire dispute would be solved, as otherwise, there will be https://hcservices.ecourts.gov.in/hcservices/ perpetual trouble and confusion at the spot. 6. According to the learned counsel for the plaintiffs, the western side owner of the suit property is the defendant and in such a case measuring the area with reference to revenue records and documents would lead to rendering of substantial justice in this case. 7. Piloting the arguments on the side of the defendant and in a bid to torpedo and pulverise the arguments as put forth on the side of the plaintiffs, the learned counsel for the defendant would advance his arguments, which could pithily and precisely be set out thus: (a) The plaintiffs after meeting with their waterloo in both the Courts below, are trying their level best to make out a case based on nothing. (b) Ex.A3 has been correctly discarded by both the Courts below and as an afterthought the plaintiffs are giving a go by to Ex.A3. (c) Relying on Ex.A11 coupled with Ex.A1, the plaintiffs cannot try to fish out evidence with the help of the Court. (d) Ever since 1862 as found in Ex.B1, the defendant's ancestors have been in possession and enjoyment of the property in S.Nos.32/3 and 32/7 and in such a case, maliciously and illegally the plaintiffs got executed in their favour certain documents incorporating therein the S.Nos.32/3 and 32/7 which belong to the defendant. (e) The revenue records all do stand in the name of the defendant and none of the revenue records subsequent to 1968, so to say subsequent to Ex.A3, stand in the name of the plaintiffs. (f) There is no iota or shred, shard or miniscule, molecular or pint of evidence to show that at any point of time the plaintiffs or the plaintiffs' vendor were in possession and enjoyment of the said property found described in the schedule of the plaint. Accordingly, the learned counsel for the defendant would submit that both the Courts below after considering the pros and cons of the matter and discussing threadbare the evidence dismissed the original suit of the plaintiffs, warranting no interference in the Second Appeal. 8. After hearing both sides, I am of the considered view that the following substantial questions of law do arise in this case: (1) Whether both the Courts below took into account in the proper perspective the provisions of the Madras https://hcservices.ecourts.gov.in/hcservices/ Minor Inams (Abolition and Conversion into ryotwari Act), 1963 and whether the first appellate Court after entertaining Ex.A11, the order of the settlement dated 21.08.1968 properly appreciated and decided the lis from the available evidence? (2) Whether there is any perversity or illegality in the judgments and decrees of both the Courts below. 9. I fumigate my mind with the following decisions of the Hon'ble Apex Court: (i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL. (ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER. (iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL (iv) (2011) 1 SCC 673 [VIJAY KUMAR TALWAR vs. COMMISSIONER OF INCOME TAX, DELHI] A mere poring over and perusal of those judgments would convey and portray, that the High Court while exercising its power under Section 100 of CPC should see as to whether there is any substantial question of law is involved in the matter. However, after framing such substantial question of law, interference would be possible. Hence, it is the paramount duty of the Court to find out as to whether there is any perversity or illegality on the part of the Courts below in deciding the factual and legal issues involved in the matter. 10. It is quite obvious and axiomatic that by virtue of the Madras Minor Inams (Abolition and Conversion into ryotwari Act), 1963, the minor inams were abolished and ryotwari pattas were issued in appropriate cases. In such a case it is crystal clear, that any document in favour of the defendant or his ancestors claiming right over the inams land would not have any probative force. However, those documents could only be relied on to show the possession over a certain area. 11. The learned counsel for the defendant would submit that even assuming that the documents emerged anterior to 1963 would not confer any title in favour of the defendant or defendant's ancestors, yet the revenue records existing anterior to 1963 and subsequent to it do refer to the defendant's ancestors' enjoyment of the property and the defendant's enjoyment of it and there was also a partition in the family of the defendant, but on the other hand, there is nothing to highlight that the plaintiffs' vendors had possession of the suit https://hcservices.ecourts.gov.in/hcservices/ property described in the schedule of the plaint and exercised right over it. He would also draw the attention of this Court to the schedule of the property of the plaint and focus his argument. Hence, it is just and necessary to extract hereunder the schedule of the property found therein. "Schedule of property Dry lands situated in Advanapalli village, Venkateshpuram post Hosur Taluk, within the sub registration district of Hosur and Registration district of Krishnagiri bearing the following particulars: 1. S.No.32/3 Dry of 0.32.5 Hec., or 0.80 Acre Assessment Rs.0.70 2. S.No.32/7 dry of 0.28.0 Hec. Or .0.69 acres Assessment Rs.0.60 and both bounded as follows:- East by : Land of Chudamma in S.No.32 West by : Land of A.L.Pillappanaidu in S.No.32/1 32/2 North by: Land of Smt.Shashikala w/o Narasimhiah South by: Village site and house of Venkatesappa (Plaintiff 1)" 12. Pointing out the defects in the said schedule, the learned counsel for the defendant would submit that without any rhyme or reason, the S.Nos.32/3 and 32/7 are found referred to in the schedule and also in Ex.A1. There should be some basis for mentioning those survey numbers in Ex.A1. Accordingly, he would submit that absolutely there is no substance in the contention of the plaintiffs. 13. Whereas, the learned counsel for the plaintiffs would invite the attention of this Court to Ex.A11 and put forth his arguments. Hence, it is just and necessary to extract hereunder the relevant portion of Ex.A11. "IN THE COURT OF THE SETTLEMENT TAHSILDAR No.1, SALEM PRESENT: THIRU R.VENKATANARAYANAN S.R.NO.1123/68/N.I.aCT/30/63/HOSUR TK./DHARMAPURI DISTRICT/DT.21.8.68. Name of the District - Dharmapuri Name of the Taluk - Hosur Name of the Village - Adavanapalle https://hcservices.ecourts.gov.in/hcservices/ Name of the Claimant - --- Name of the Objector - --- T.D.No.& Description of Inam - T.D.No.631 Birmadayam Survey Numbers - 3 and 32 Date of Commencement of enquiry - 19-8-68. Date of completion of enquiry - 19-8-68. Date of order - 21-8-68. Nature of order - Allowed. O R D E R The above S.Nos.3 and 32 of Adavanapalle Village of Hosur Taluk covered by T.D.No.631 are Birmadayam Inam lands. None has applied for ryotwari patta as required by the rules framed Act 30/63. Hence suo motu enquiry under Sec.11 of the Madras Minor Inams (Abolition and conversion into ryotwari) Act, 1963 was instituted with reference to the available materials furnished by the field staff after due service and publication of notices in form Nos.5 and 6 as required by Sec.11(2) of the Act read with Minor Inam rules of 1965. The parties and the Karnam were present. They were examined. The enquiry was summary. 2. Thiru.Krishnappa W/o Seepooriappa was examined as P.W.1. He deposed that he inherited the suit land along with 5 others as per schedule that they are in continuous possession and actual enjoyment of the lands for more than 18 years, and that they are personally cultivating the lands with iruvaram rights. He further added that they are pying the land revenue to Government for the land. He requested the grant of ryotwari patta. 3. The karnam of the village was examined as C.W.1. He corroborated the evidence of P.W.1 and deposed that the persons mentioned in the schedule are enjoying and cultivating the suit lands with iruvaram rights. They are paying the land revenue for these lands. They are the title holders of the land according to village accounts. These lands are not required for any public purpose. There is no objection in granting ryotwari patta to them. These lands are described in the accounts as Birmadayam inam lands the grant of it was confirmed in T.D.No.681. https://hcservices.ecourts.gov.in/hcservices/ 4. I accent the evidence of the Karnam and decide that the suit lands are iruvaram minor inam lands in respect of which the persons mentioned in the schedule below are lawfully entitled to iruvaram rights immediately before the appointed day (i.e.)15- 2-65. The lands are not required for any public purpose. 5. I, therefore, hold that the persons mentioned in the schedule noted below are entitled to ryotwari patta for the lands shown in the schedule below under Sec.11 read with Sec.8(1) of Act 30 of 63. In exercise of powers of the Assistant Settlement Officer, delegated to me in G.O.(P) No.401 (Revenue) dated 15-2-65, I allow ryotwari patta to them as shown in the schedule in the above section. / True copy/ Sd.R.Venkatanarayanan Settlement Tahsildar No.1 Salem P.A. To Collector (G) Krishnagiri SCHEDULE ------------------------------------------------------ Name of the Village T.D.No. S.No. Extent Name of the persons to whom ryotwari patta is allowed. ----------------------------------------------------------------- Adavanapalle 631 3 2-05 Krishnappa S/o.Seepooriappa.1. Legumaiah S/o.Anneappa 2. Muniappa S/o. - do- Lakshmaiah.4. Venkataramanappa 5. sons of Appee Naidu Narasmihaiah S/o.Venkataramanappa. 32 7-79 Legumaiah S/o.Anneeappa Naidu. Venkatappa S/o.Bathereddiappa 2. M.R.Nanjunda Rao https://hcservices.ecourts.gov.in/hcservices/ S/o.Ramasamiah 3. Lakshmi Naidu S/o.Appee Naidu 4. Narasimhaiah S/o.Venkatramanappa.5. --------------------------------------------------------- Settlement Tahsildar, No.1., Salem Witnesses Examined:- P.W.1 Krishnappa S/o.Seepooriappa C.W.1 R.Sathyanarayanamoorthy, Karnam. To The persons mentioned in the scheduled above. Copy to the Tahsildar, Hosur. Copy submitted to the Assistant Settlement Officer, Salem and the Settlement Officer, Salem. /True copy/" 14. A mere poring over and perusal of that order would exemplify and demonstrate that consequent upon the said abolition of minor inams, those lands got vested in the Government and since the Government did not want to make use of certain areas including the land in S.No.32, they did choose to issue ryotwari patta. While doing so, so far S.No.32 in Adavanapalle village is concerned, joint patta was issued in favour of the following persons: " Lagumaiah S/o Anneeapopa Naidu Venkatappa S/o Bathereddiappa M.R.Nanjunda Rao S/o Ramasamiah Lakshmi Naidu S/o Appee Naidu Narasimhaiah S/o Venkatramanappa" (emphasis supplied) 15. Admittedly, the defendant is claiming title and possessory right under Legumaiah to an extent of 3 acres 90 cents. In the written statement, the defendant would state thus: "7. It is submitted that on 17.10.1862, title deed in respect of the suit survey number was issued in favour of one Munippi Naidu who is great grand father of the defendant in T.D.No.631. Subsequently, on 15.06.1859 patta was issued in his favour. After his demise his son by name Anippi Naidu who is grand https://hcservices.ecourts.gov.in/hcservices/ father of defendant mortgaged an extent of Acre – 3.90 in S.No.32 as per mortgage deed dt.1.8.1934 on the western portion. The Eastern portion was belonged to one Mahiligiri Naidu. The said Acre-3.90 was subsequently sub-divided as S.Nos.32/1, 32/2, 32/3, 32/4, 32/5, 35/6, 32/7 in the up-dating survey scheme. In the land in S.No.32/5 road is formed. The land in S.Nos.32/1, 32/2, 32/6 and 14/1 were given to Beggilappa and Lagumiah sons of gopalliappa and the defendant has got their lands in S.No.8/1B and 8/2A. The suit lands in s.No.32/3 and 32/7 have been restrained by the defendant. The said Munippi Naidu was in possession and enjoyment of the said Acre 3.90 throughout his life. After his demise his son Anippi naidu was in possession and enjoyment of the same. After the life time of Anippi Naidu his son Lagumiah who is father of defendant was in possession and enjoyment of the same. After the life time of Lagumiah the defendant became entitled to the said land who retained the suit properties and dispossessed the remaining property as detitled above." (extracted as such) 16. Placing reliance on the said written statement and the documents filed on the side of the defendant, the learned counsel for the defendant would submit, that in S.No.32, as it is found exemplified in Ex.A11, on the western portion an extent of 3 acres 90 cents was under the occupation and enjoyment of Legumaiah and as the ultimate legal heir of Legumaiah, the defendant enjoyed it and disposed of also certain portions therein. According to him, the S.Nos.32/3 and 32/7 also fall within the said western portion, totally measuring 3 acres 90 cents and in such a case, the plaintiffs' vendor could not have had any right over the land in those survey numbers and sold them in favour of the plaintiffs and Exs.A1, A8 and A9 are all self serving documents purely fabricated for the purpose of making false claim over the defendant's land. 17. Whereas the learned counsel for the plaintiffs would correctly and legally put forth his arguments, to the effect that Ex.A11, the order passed by the Settlement Tahsildar granting Ryotwari Patta in favour of Venkatappa is beyond challenge. In fact, it has been admitted by both sides and in such a case, the plaintiff's vendors' propositus, namely Venkatappa, whose name is found in Ex.A1, cannot be denied of any extent in S.No.32 which measures totally 7.79 cents. 18. I could see considerable force in the submission made by the learned counsel for the plaintiffs because the defendant and his ancestors claim the right to an extent of 3.90 acres on the western portion of S.No.32 totally measuring an extent of 7.79 acres and in https://hcservices.ecourts.gov.in/hcservices/ the schedule of property while describing the boundaries, the plaintiffs also took care to specify the land of the defendant as the western boundary and they restrict their claim only to an extent of 1 acre 49 cents to the east of defendant's land and in such a case, this has to be located by appointing an Advocate Commissioner, and getting it measured with reference to revenue records and the documents available on the plaintiffs' side as well as the defendant's side. 19. I would hark back to paragraph No.3 of the order dated 21.08.1968 in Ex.A11, to point out that the said order itself emerged based on the revenue records. According to the Settlement Tahsildar, Legumaiah and Venkatappa and three others were enjoying different portions in S.No.32 of Adavanapalli village and in such a case, as correctly claimed by the learned counsel for the plaintiffs, the area belonging to Venkatappa should necessarily be located and carved out and over that area alone the plaintiffs are now claiming ownership as the one purchased from the descendants of Venkatappa. But both the Courts below based on hyper technicalities and punctilious of Court procedures misdirected themselves and threw the baby along with bath water. Even if there might be some mis-description in specifying the sub division of the survey numbers, nonetheless the genuine right of the plaintiff or the defendant cannot be denied or deprived. 20. The boundaries as found spelt out in the schedule of property appended to the plaint as well as Exs.A1, A8 and A9, were not verified and located. The Courts below simply relied on Sub Divisions of the survey number and misdirected themselves. Absolutely there is no answer in the judgments of the Courts below as to what happened to the land of Venkatappa who was also on par with Legumaiah, was entitled to a portion in the ryotwari land as per Ex.A11. 21. At this juncture, I recollect the maxim: Ubi jus ibi remedium: When there is a right there is a remedy. 22. No doubt, I also recollect the following maxims: (1) Affirmantis est probare : The person who affirms must prove (2) Affirmanti, non neganti, incumbit probatio : The proof is incumbent on the one who affirms, not on the one who denies. 23. The burden of proof as correctly put forth by the learned counsel for the defendant was on the plaintiffs, but in this case after having succeeded in getting Ex.A11 marked during the appellate https://hcservices.ecourts.gov.in/hcservices/ stage by invoking Order 41 Rule 27 of CPC, the plaintiffs also should have taken steps to summon the relevant revenue records which existed around 1968 so as to highlight as to what were the respective extents to which those five persons were entitled to as per Ex.A11, because in Ex.A11 the entitlement of each of the five joint pattadars were not found exemplified or set out. The trial Court did not have had the opportunity of perusing Ex.A11 because it was not produced by the plaintiff, but the first appellate Court being the last Court of facts on coming to know of the existence of Ex.A11 should have passed necessary further incidental orders in summoning records to arrive at the truth, but that was not done so. On the other hand discussions were mostly on picking holes in the evidence of the plaintiffs and further more, the first appellate Court also in its judgment in certain places referred to the sub division number wrongly also. 24. I am of the considered view that so far this case is concerned, since the entire case hinges on Ex.A11 - the ryotwari patta, the approach should have been entirely different, but the first appellate Court misdirected itself without making any reference to the Madras Minor Inams (Abolition and Conversion into ryotwari Act), 1963. 25. Whereof, the substantial question of law No.1 is decided to the effect that both the Courts failed to take into account in the proper perspective the provisions of the Madras Minor Inams (Abolition and Conversion into ryotwari Act), 1963 and the first appellate Court after entertaining Ex.A11, the order of the settlement dated 21.08.1968, had not properly appreciated and decided the lis from the available evidence. 26. The substantial question of law No.2 is decided to the effect that that since both the Courts below failed to take into account the aforesaid points discussed supra, interference in the Second Appeal is warranted. 27. Hence in these circumstances, I am of the considered view that the matter has to be remitted back and accordingly the matter is remanded to the first appellate Court by setting aside the judgment and decree of the first appellate Court with the following direction: The first appellate Court shall appoint an Advocate Commissioner at the expense of the plaintiff to visit the suit property with the assistance of Government Surveyor and locate the same with reference to revenue records and the documents filed by both sides and to note down the physical features also. In the light of the observations made by this Court, the matter shall be analysed and accordingly the lis be decided after giving due opportunity of filing objections to both sides on the Commissioner's report that would be filed https://hcservices.ecourts.gov.in/hcservices/ and also give opportunity to both sides to adduce further evidence, if any, in support of their respective pleas. Accordingly, the matter shall be disposed of within a period of four months from the date of receipt of a copy of this order. Both sides shall appear before the first appellate Court on 01.04.2011. Accordingly, this Second Appeal is disposed of. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Subordinate Judge, Hosur. 2. The District Munsif, Hosur. 3. The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr. V. Nicholas, Advocate SR No.15948 + 1 cc to Mr. M.V. Krishnan, Advocate SR No.15797 NG(CO) SR/11.3.2011 S.A.No.20 of 2011 https://hcservices.ecourts.gov.in/hcservices/