IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:30.07.2010 CORAM : THE HONOURABLE MR.JUSTICE.M.VENUGOPAL Second Appeal No.1258 of 1996 and C.M.P.No.12291 of 1996 Subbammal ... Plaintiff/Respondent/Appellant Vs... 1.Arumugam 2.Bannari 3.Palaniswamy ... Defendants/Appellants/Respondents Prayer : Second Appeal is filed under Section 100 C.P.C against the Judgment and Decree dated 23.01.1996 made in A.S.No.12 of 1995 on the file of the Second Additional District Judge, Coimbatore, preferred against the Judgment and decree dated 07.03.1994 on the file of the Second Additional District Munsif, Coimbatore, made in O.S.No.2075 of 1989. For Appellant : Mr.T.M.Hariharan For Respondents : Mr.R.Sivakamar J U D G M E N T The Appellant/Respondent/Plaintiff has filed this Second Appeal as against the Judgment and Decree dated 23.01.1996 made in A.S.No.12 of 1995 on the file of Second Additional District Judge, Coimbatore. 2. The First Appellate Court Viz., the Learned Second Additional District Judge, Coimbatore, in the Judgment in A.S.No.12 of 1995 dated 23.01.1996 has among other things observed that Palani has got the property with condition and enjoyed the same and further the Palani's sons Karuppan, Nagan, Arumugam and Bannari till 29.04.1987 have got the suit property to enjoy with certain conditions and later the suit property belonged to them and their heirs absolutely. Further, the First Appellate Court has also held that Karuppal her sons Nagan, Arumugam and Bannari have obtained a loan of Rs.700/- from Marakkal and created a registered Mortgage Deed dated 11.05.1959 in respect of the suit property. Also, the First Appellate Court has held that the persons who executed Ex.A2 to Ex.A4 Sale Deeds dated 06.10.1959, 27.10.1959, 30.11.1959 respectively, belong to persons of Adi Dravida Community and therefore the Plaintiff's mother-in-law's 4/5 shares in the suit property to be purchased legally with absolute right and therefore has held that Karuppal and her sons have not sold the suit property https://hcservices.ecourts.gov.in/hcservices/ in entirety as per Sale Deeds dated 06.10.1959, 27.10.1959 and 30.11.1959 with absolute right and that the said sale deeds are not valid in law. In regard to the plea of adverse possession, the First Appellate Court has held that the Appellant/Plaintiff has not acquired the right of adverse possession in respect of the suit property. As regards the relief of permanent injunction prayed for by the Appellant/Plaintiff, the First Appellate Court has come to the Conclusion that there is no acceptable evidence to show that the Defendants have prevented the Appellant/Plaintiff from enjoying the suit property and resultantly allowed the First Appeal filed by the Appellants/Defendants. 3. The trial Court framed four issues for determination. On the side of the Appellant/Plaintiff, witnesses P.W.1 to 4 have been examined and Ex.A1 to A15 have been marked. On the side of Respondents/Appellants/Defendants, D.W.1 and 2 have been examined and Ex.B1 to B18 have been marked. 4. On an appreciation of oral and documentary evidence available on record, the trial Court has come to a resultant conclusion that the suit property belongs to the Appellant/Plaintiff's mother-in-law as per Sale Deeds in Ex.A2 to A4 and after the death of the Appellant/Plaintiff's mother-in-law, the Appellant/Plaintiff is the legal heir and hence the suit property belongs to the Appellant/Plaintiff. Further, it has held that the Appellant/Plaintiff has been in enjoyment of the suit property and the same being established as per the evidence of P.W.2 to 4 and also as per documents filed on the side of the Appellant/Plaintiff, and that the Appellant/Plaintiff is entitled to obtain the relief of permanent injunction and resultantly granted the relief of declaration of title of the Appellant/Plaintiff in respect of the suit property and also granted the consequential relief of permanent injunction and decreed the suit accordingly without costs. 5. Being dissatisfied with the Judgment and Decree dated 23.01.1996 of the First Appellate Court Viz., Learned Second Additional District Judge, Coimbatore, made in A.S.No.12 of 1995, the Appellant/Plaintiff has preferred this Second Appeal before this Court. 6. At the time of admission of the Second Appeal, the following Substantial Questions of Law have been framed by this Court. 1.Whether, in the absence of the original grant and in the light of the admitted case of the respondents that the grant was made to Palani in recognition of his services as Dandal, the lower appellate Court was right in assuming that there were any restrictions regarding alienation and whether the utmost adverse inference ought not to be drawn against the respondents on the non-production of the original grant? 2. Whether, on the very finding of the appellate Court that the sales in favour of Marakkal are true, whether the title would not pass to Marakkal under the same, when the https://hcservices.ecourts.gov.in/hcservices/ grant in favour of the respondents became absolute, even assuming that there were any restrictions in the grant on the date of sale? 3. Whether, the finding of the Appellate Court that the appellant has not proved continuous possession is legally sustainable when it is found that possession was delivered to Marakkal under the mortgage and sales and when there is not even a plea to how the respondents got back possession from Marakkal thereafter? 7. The contentions, discussions and findings on the Substantial Questions of Law 1 to 3: According to the Learned Counsel for the Appellant/Plaintiff, the First Appellate Court has found that Ex.A1-Mortgage Deed dated 11.05.1959, Ex.A2-Sale Deed dated 06.10.1959, Ex.A3- Sale Deed dated 27.10.1959 and Ex.A4- Sale Deed dated 30.11.1959 in favour of Marakkal are true and valid, but it has failed to give effect to its finding and further the First Appellate Court has come to a wrong conclusion that the possession of only 3/5th share in the suit property has been delivered to the Appellant's mother-in-law, Marakkal as per Ex.A2 to A4 Sale Deeds because it has previously held that 4/5 share has been conveyed to the Appellant/Plaintiff as per Ex.A2 to A4 Sale Deeds. 8. Advancing his arguments, the Learned Counsel for the Appellant submits that it is not in dispute that Karuppal is also a legal heir of Palani entitled to succeed his properties and rights and therefore she is a co-owner of the property with other heirs and competent to convey her share which she has done as per Ex.A4-Sale Deed dated 30.11.1959. 9. The Learned Counsel for the Appellant/Plaintiff urges that the entire reasonings of the First Appellate Court that the grant of suit property made to Palani has been a conditional grant that it continued as a conditional grant till 29.04.1987 and thereafter the Respondents and others have obtained absolute interest in the suit property Viz., as the respondents and their men belong to the down trodden community the alienation of the conditional grant made by them as per Ex.A2 to A4 is invalid and hence it cannot be considered that Marakkal obtained a valid sale as per Ex.A2 to A4 are all completely unsutainable one in the eye of law besides smacks of special pleadings for the respondents. 10. Expatiating his arguments, the Learned Counsel for the Appellant contends that there is absolutely no basis for the assumption that the grant is a conditional one and that alienation cannot be effected and this wrong assumption has resulted in miscarriage of justice. 11. The Learned Counsel for the Appellant/Plaintiff submits that even as per the case of respondents there can be no objection to the alienation of the land assigned to Palani and that the sales https://hcservices.ecourts.gov.in/hcservices/ under Ex.A2 to A4 Sale Deeds are legally valid and binding and even assuming without admitting to withdraw that there is any impediment in respect of the sales when the property vested absolutely in the respondents and others after 29.04.1987 absolute title passed on to Marakkal automatically, but these aspects of the matter have not been adverted to by the trial Court in proper perspective. 12. The Learned Counsel for the Appellant/Plaintiff takes a plea that the First Appellate Court having rendered a finding that possession has been delivered to Marakkal and when it has upheld the Ex.A1 to A4 transactions, it ought to have held that the burden shifts on the respondents to prove that they never got back possession and Ex.A1 to A4 documents and Ex.A5 to A11 tax receipts coupled with the evidence of P.W.1 to 4 will point out that the Appellant/Plaintiff and her predecessors have been in possession and enjoyment of the suit property eversince 01.07.1956 in their own right openly, continuously to the knowledge of all including the respondents and their people. 13. The Learned Counsel for the Appellant submits that the First Appellate Court has wrongly held that there is nothing to show that the possession with the Appellant and their predecessors from 30.11.1959 till the date of Ex.A5 is an erraneous and unsustainable one in the eye of law and as a matter of fact Ex.B8 to B18 are all documents after suit which ought to have been rejected by the First Appellate Court. 14. Further, it is the contention of the Learned Counsel for the Appellant/Plaintiff that the ingredients of Section 43 of the Transfer of Property Act applies to the present case and the absolute grant acquired subsequently has fed the estop. 15. In short, the contention of the Learned Counsel for the Appellant is that the reasonings and conclusions arrived at by the First Appellate Court in reversing the Judgment of the trial Court in First Appeal are to be set aside by this Court and the Second Appeal filed by the Appellant/Plaintiff is to be allowed by this Court in furtherance of substantial cause of justice. 16. In response, the Learned Counsel for the Respondents submits that the First Appellate Court has taken into account all the relevant facts and attendance circumstances of the case in a cumulative fashion and has come to a right conclusion that Karuppal and her sons have not executed the Ex.A2 to A4 Sale Deeds in a legally valid manner with absolute right and in fact the First Appellate Court in its Judgment has gone to the extent of holding that the Appellant/Plaintiff has not established her claim of title in respect of the suit property and also not proved that the Respondents/Defendants have prevented the Appellant/Plaintiff from interfering with her possession of the suit property and resultantly allowed the Appeal which need not be interfered with by this Court. 17. It is the case of the Appellant/Plaintiff that the entire suit scheduled property has been under the control and possession of https://hcservices.ecourts.gov.in/hcservices/ one Rangai Gowder son of Maranna Gowder from 01.07.1956 and the said Rangai Gowder is the maternal uncle of plaintiff's husband Subbae Gowder and Rangai Gowder has been raising crops in his own right without any objection and on 11.05.1959 4/5 share of the property has been mortgaged to Marakkal, the mother-in-law of the Appellant/Plaintiff for a sum of Rs.700/-. 18. Later by means of Ex.A2-Sale Deed dated 06.10.1959, Ex.A3- Sale Deed dated 27.10.1959 and Ex.A4-Sale Deed dated 30.11.1959, the entire property has been sold to the Appellant/Plaintiff's mother-in- law, Marakkal and she has been in possession and enjoyment of the same in her own right till her death and has been paying Kist to the property and the Patta No is 454 (later it is 879) and in some Kist receipts Patta is referred to as C-2 to C-4 which represents the same survey No.363 measuring 2 acres 39 cents. 19. According to the Learned Counsel for the Appellant/Plaintiff since the Appellant/Plaintiff's husband Subbee Gowder (son of Marakkal) pre deceased Marakkal the Appellant has succeeded to the property and has been raising crops and enjoying the same in her own right and further that the Appellant/Plaintiff has been paying the Kist in the name of Marakaal since Patta has not been altered in her name. 20. The Learned Counsel for the Appellant/Plaintiff submits that two of the original owners Karuppal and Karuppan have expired and that the Appellant/Plaintiff alternatively takes a plea that title to the suit property has been perfected by adverse possession and their predecessors in interest have also in an uninterrupted possession of the property in their own right to the knowledge of the Respondents/Defendants and others and since the Respondents/Defendants jointly and severally have threatened the Appellant/Plaintiff etc., the Appellant has filed the present suit seeking a declaration of title in respect of the suit property and for the relief of permanent injunction. 21. The Respondents 1 and 3/D1 and D3 in their written statement have categorically stated that the suit property has been given to Palani by the Government on 25.10.1930 as a conditional grant in recognition of his service as a 'Dandal' and Palani being the father of the 1st Respondent/1st Defendant and grandfather of R2 and R3/D2 and D3 and further that the aforesaid Palani has been survived by his wife Karuppal and four sons Viz., Karuppan, Nagan, Arumugam and Bannari and that Karuppal and Karuppan have expired etc. 22. The stand of the Respondents 1 and 3/D1 and D3 is that from the date of the conditional grant the suit property has been in the name of Palani (original owner) till his demise and later changed in the name of Karuppan, the eldest son of Palani who has become 'Dandal' after his father's demise and after the death of Karuppan now the suit property is in the name of Palanisamy, Murugan, Maraththal, Nagan, Arumugam and Bannari. https://hcservices.ecourts.gov.in/hcservices/ 23. According to R1 and R3/D1 and D3, the suit property has never been in the trial and possession of Rangai Gowder from 01.07.1956 and Rangai Gowder never raised any crops in his own right and from 25.10.1930, the land has been in possession and enjoyment of Palani and his legal heirs and it is the Defendant's family who were raising the crops right from 1930 and in short Rangai Gowder or the Appellant/Plaintiff or the Appellant/Plaintiff's predecessor have never raised any crops or possession of the suit property at any point of time. 24. The case of the Respondents/Defendants is that they admitted on 11.05.1959 one of the Defendants Viz., the 1st Respondent/1st Defendant and two other brothers together with their mother have mortgaged the suit property to Rangai Gowder after receiving a sum of Rs.700/- from him and they never mortgaged the suit property to Marakkal, the mother-in-law of the Appellant/Plaintiff etc. That Respondents/Defendants have denied the execution of Ex.A2 to A4 Sale Deeds in favour of Marakkal and according to them, the execution of Sale Deeds is an imaginary one and they or their family members never received any consideration as mentioned in the Sale Deed and also that the Defendants or their family members never left the suit property in possession of the Appellant/Plaintiff or the Marakkal and in fact the suit property is in possession and enjoyment of the Defendants and their family members right from 1930 without any interference. Alternatively, the Defendants have taken a plea that they have perfected title to the suit property by means of Adverse possession by themselves and their family members and their predecessors in interest have been in uninterrupted possession of the suit property in their own right to the knowledge of the Appellant/Plaintiff and others. It is not out of place for this Court to point out that the Defendants and their family members have discharged the mortgage amount in the month of October 1959 itself and that Rangai Gowder has received the mortgage amount from them and obtained their thumb impression in some documents for cancellation of the registered mortgage deed and the said Rangai Gowder has deceived the Defendants and their family members by means of exploitation on the basis of poverty, innocence and lack of education of the Defendant's family. Besides the above, the Respondents 1 and 3/D1 and D3 have taken a stand in the written statement that the Patta has never been in the name of Marakkal or her son at any point of time and also the Appellant's husband or mother-in-law or the Appellant/Plaintiff has never been in possession and enjoyment of the suit property etc., and it is only the Appellant/Plaintiff under men who tried to interfere with the Defendant's peaceful possession and enjoyment of the suit property in the year 1989 when the revenue officers visited the property for the purpose of resurvey and at that point of time the Appellant/Plaintiff approached the revenue officer and asked him to change the Patta in their name under the purported false Sale Deeds to which the Defendants objected and made a complaint against the Appellant/Plaintiff to the District Collector etc., and the collector has ordered an enquiry and that the Tahsildar conducted the enquiry. https://hcservices.ecourts.gov.in/hcservices/ 25. The Learned Counsel for the Appellant/Plaintiff submits that as per Standing Orders of the Board of Revenue the Tahsildar's orders sanctioning the assignment of land (on darkhasts) must be recorded in the A memorandum received from the village and the duplicate copy of the Memorandum with the Tahsildar's orders must be sent to the village authorities etc., and in case of each conditional assignment, the Tahsildar must specify in the order communicating to the Village Administrative Officer the fact that the assignment has been made and all the register of conditional to it that are to be entered in the village the file in the taluk office is not closed until a report supported by the revenue register has been received by him and further the special condition is the assigned land shall not be alienated for a period of 10 years from the date of assignment and in the event of assignee wishing to dispose of the land after the above period, he should get prior permission of either the Tahsildar or the Revenue Divisional Officer who should give permission only if the sale is to one of the categories, eligible for assignment of Government waste lands for cultivation purposes. 26. According to the Learned Counsel for the Appellant/Plaintiff from 1930 to 1940, the assigned land cannot be alienated and in the present case the sale has taken place as per Ex.A2 to A4 Sale Deeds and hence the concerned persons can alienate legally by means of Sale Deeds. 27. Continuing further, the Learned Counsel for the Appellant/Plaintiff submits that the land assigned as per Standing Order of the Board of Revenue 15(1) enjoins that the land assigned shall not be sold or alienated for a period of 10 years from the date of assignment and also that the Government can resume the lands and in the present case the Respondents/Defendants do not say that the sale is not valid. 28. The Learned Counsel for the Appellant/Plaintiff draws the attention of this Court to Section 43 of the Transfer of Property Act which deals with transfer by unauthorised person who subsequently acquires interest in property and submits that by the common law rule of Estoppel by Deed in that the subsequent estate passes to the transferee without any further Act of the transferor and the rule is that if an individual who has no title whatsoever to the property, grants it by a conveyance which in form carries the legal estate and he subsequently acquires an interest to satisfy the grant, the estate instantly passes and submits that the grant feeding estoppel will squarely apply to the facts of the present case and as such the Ex.A2 to A4 Sale Deeds are valid in law. 29. In support of the contention that no evidence can be looked into in the absence of pleadings in written statement on an issue, the Learned Counsel for the Appellant/Plaintiff cites the decision of Hon'ble Supreme Court in Bondar Singh and others Vs. Nihal Singh and others, (2003) 4 SCC 161, wherein, it is held as follows: https://hcservices.ecourts.gov.in/hcservices/ An appeal under Section 100 CPC can be entertained by the High Court only on a substantial question of law. If the findings of the subordinate courts on facts are contrary to the evidence on record and are perverse, such findings can be set aside by the High Court in appeal under Section 100 CPC. A High Court cannot shut its eye to perverse findings of the courts below. In the present case the findings of fact arrived at by the lower appellate court were contrary to the evidence on record and, therefore, perverse and the High Court was fully justified in setting aside the same resulting in the appeal being allowed and suit being decreed. 30. He also relies on the decision of Hon'ble Supreme Court in Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif and others, (1968) 3 SCR 862, wherein, it is among other things observed that "even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue". 31. The Learned Counsel for the Appellant/Plaintiff in regard to his contention that possession follows title and the Appellant/Plaintiff has established her title to the suit property etc., and therefore she is entitled to get the declaratory relief in respect of suit property in her favour and the consequent permanent injunction relief, cites the decision of Hon'ble Supreme Court in L.N.Aswathama and another Vs. P.Prakash, (2009) 13 SCC 229, wherein it is held that "to establish claim of title by prescription, possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years". 32. The Learned Counsel for the Appellant/Plaintiff submits that if the First Appellate Court commits a serious blunder in regard to the point for consideration then the Hon'ble High Court can interfere as per Section 100 of the Code of Civil Procedure and in this regard cites the decision of this Court in Murugaiyan and 2 others Vs. Subbaiyan, 2001 (2) CTC 393, wherein, at page No.397 it is laid down as follows: "Even otherwise the established legal position when there is no adequate evidence with regard to possession by either party, is possession should follow title. In the instant case, the title of the plaintiffs having been clearly found, the lower appellate court was in error in finding that the defendant was in enjoyment of the palmyrah trees. There is some vague averment in the written statement with regard to adverse possession by the defendant. However, there is no proof of the same. The claim of the defendant on the basis of adverse possession cannot therefore be countenanced." 33. The Learned Counsel for the Appellant cites the decision of Hon'ble Supreme Court in Suraj Bhan and others Vs. Financial https://hcservices.ecourts.gov.in/hcservices/ Commissioner and others, (2007) 6 SCC 186, wherein, it is held that "an entry in revenue records does not confer title on a person whose name appears in Record of Rights and no ownership is conferred on basis of such entries etc." 34. The Learned Counsel for the Appellant/Plaintiff in support of the contention that revenue records does not create or extension title of the Appellant/Plaintiff, cited the decision of Hon'ble Supreme Court in State of Himachal Pradesh Vs. Keshav Ram and others, (1996) 11 SCC 257, wherein, it is held that "at any rate such an entry in the Revenue papers by no stretch of imagination can form the basis for declaration of title in favour of the plaintiffs". 35. According to the Learned Counsel for the Appellant that the Respondents/Defendants have not produced the original assignment order dated 25.10.1930. 36. Also, it is the contention of the Learned Counsel for the Appellant/Plaintiff that Ex.B2 Patta in favour of Bannari and five others Ex.B5 Patta in the name of Arumugam and B6 Patta in the name of Nagan will destroy the claim of the Respondents/Defendants and for the first time, the Respondents/Defendants state that they got the assignment as Adi Dravidas. 37. The Learned Counsel for the Appellant/Plaintiff submits that the term 'dandal' means a tax collector who collects tax or collecting tax. 38. The Learned Counsel for the Appellant/Plaintiff submits that no issue that the Defendants