IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 23.6.2010 Coram: THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.Nos.1132 and 1133 of 2009 Murugan .. Appellant in S.A.No.1132 of 2009/ Defendant Tmt.Lalitha repd. By her power of attorney Agents 1. S.Perumalsamy 2. A.Murugan .. Appellant in S.A.No.1133 of 2009 vs. 1. Manthirapandi 2. Rajakani .. Respondents in S.A.No.1132 of 2009/ Plaintiffs Manthirapandi .. Respondent in S.A.No.1133 of 2009 S.A.No.1132 of 2009: The Second Appeal has been filed under Sec.100 of CPC against the common judgment and decree of the IVth Additional Judge, City Civil Court, Chennai, dated 19.11.2008, made in A.S.No.503 of 2007, confirming the judgment and decree of the XVIIIth Assistant Judge, City Civil Court, Chennai, dated 22.12.2006, made in O.S.No.7568 of 1999. S.A.No.1133 of 2009: The Second Appeal has been filed U/Sec.100 of CPC against the common judgment and decree of the IVth Additional Judge, City Civil Court, Chennai, dated 19.11.2008, made in A.S.No.625 of 2007, confirming the judgment and decree of the XVIIIth Assistant Judge, City Civil Court, Chennai, dated 22.12.2006, made in O.S.No.7770 of 1999. For Appellants : M/s.Sujatha Rangarajan For Respondents : Mr.R.Manickavel for R1, R2 in S.A.No.1132 of 2009 for Respondent in S.A.No.1133/2009 https://hcservices.ecourts.gov.in/hcservices/ C O M M O N J U D G E M E N T S.A.No.1132 of 2009: The Second Appeal has been filed against the common judgment and decree of the IVth Additional Judge, City Civil Court, Chennai, dated 19.11.2008, made in A.S.No.503 of 2007, confirming the judgment and decree of the XVIIIth Assistant Judge, City Civil Court, Chennai, dated 22.12.2006, made in O.S.No.7568 of 1999. S.A.No.1133 of 2009: The Second Appeal has been filed against the common judgment and decree of the IVth Additional Judge, City Civil Court, Chennai, dated 19.11.2008, made in A.S.No.625 of 2007, confirming the judgment and decree of the XVIIIth Assistant Judge, City Civil Court, Chennai, dated 22.12.2006, made in O.S.No.7770 of 1999. 2. The plaintiffs in the suit, in O.S.No.7568 of 1999, are the respondents in the second appeal, in S.A.No.1132 of 2009. The suit in O.S.No.7568 of 1999, had been filed praying for a judgment and decree against the defendant in the said suit, who is the appellant in the second appeal for granting a permanent injunction restraining him and others persons acting on his behalf from, in any manner, interfering with the plaintiffs' peaceful possession and enjoyment of the schedule mentioned property. 3. The plaintiffs in the suit, in O.S.No.7770 of 1999, are the appellants in the second appeal, in S.A.No.1133 of 2009. 4. The suit, in O.S.No.7770 of 1999, had been filed praying for a judgment and decree against the defendant therein for a permanent injunction restraining him, and others representing him from entering into the suit property, by constructing a compound wall or any other structures thereby committing damages to the said property. 5. In the plaint filed in O.S.No.7568 of 1999, it has been stated that the suit schedule property is part of a larger extent of the land, which had belonged to one Narasimlu Reddiar. He had purchased the said property from one Duraiswamy Reddiar, on 20.5.1922. Narasimlu Reddiar had sold the property measuring 0.14.4 kanies in favour of Pappaammal, under a sale deed, dated 25.11.1937. An extent of 14 cents had been purchased from Pappaammal by one Venkata Subbiah, on 28.8.1982. The plaintiffs had purchased the suit property measuring 3388 sq.ft. of land under two separate sale deeds, dated 14.12.1998 and 16.12.1998. The plaintiffs had been in possession and enjoyment of the suit schedule property from the date of its purchase, as the absolute owners. While so, the plaintiffs had https://hcservices.ecourts.gov.in/hcservices/ raised a compound wall all around their plot after obtaining the necessary approval and the sanctioned plan from the Corporation of Chennai, on 22.11.1999. Since the defendant in the suit and his men were threatening the plaintiffs stating that they would demolish the compound wall constructed by the plaintiffs, they had filed the suit, in O.S.No.7568 of 1999, on the file of the XVIIIth Assistant Judge, City Civil Court, Chennai. 6. While denying the averments made by the plaintiffs in the suit, the defendant had stated, in his written statement, that the real owners of the suit property are Lalitha and her daughters Vijaya Shree, Leela and her sons Ramakrishnan and Ananda Kumar. The plaintiffs had failed to implead the real owners as parties in the suit. The defendant is one of the power of attorney agents of the real owners of the suit property. 7. It had also been stated that the plaintiffs had wrongly identified the suit property as if it belonged to them based on certain alleged sale deeds as though the property had been purchased from one Venkata Subbiah, who is said to have derived his title through Pappaammal, who had purchased it from one Narasimlu Reddiar. In fact, the suit property was one of the properties included in the estate of one Balarama Reddiar's family, as per the registered partition deed, dated 24.5.1923. 8. It had also been stated that the suit property in Paimash no.226 of Kolathur Village, along with certain other properties had been allotted to the share of Chengalvaraya Reddiar. The sons of Chengalvaraya Reddiar had partitioned the family properties, on 12.5.1938, by way of a registered partition deed. Accordingly, the suit property, along with certain other properties, were allotted to the share of Balarama Reddiar. Thereafter, patta in favour of Balarama Reddiar had been confirmed in patta No.70, for fasli 1350, by the Managing Trustee of Sri Somanatha Swamiar Devasthanam, Kolathur, as it was a Shrotrium village. Subsequently, as per the compromise decree, in O.S.No.83/52 and C.M.P.No.4646 of 1953, in C.S.No.43/1949, on the file of the High Court of Judicature at Madras, dated 1.5.1953, the suit property, along with the other properties, had been allotted to the share of Balarama Reddiar. Thereafter, on the introduction of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act 1963, Kolathur had been taken over by the Government. 9. It had also been stated that on settlement of the suit property, bearing Paimash No.226, correlating to R.S.No.126/7A, the patta had been granted in favour of Balarama Reddiar. Balarama Reddiar had died, on 27.3.1972, leaving behind his son Balakrishnan, who had died, on 18.8.1990, leaving behind his wife Lalitha and her children to succeed his estates. After the town survey had been conducted, old Paimash No.226, correlating to R.S.No.126/7A, had been https://hcservices.ecourts.gov.in/hcservices/ assigned as T.S.No.181, Block No.32 of No.65 Kolathur Village, measuring an extent of 1010 sq.mts. (4 grounds and 1267 sq.ft.) had been registered in the name of Lalitha and her children. As such, the plea of the plaintiffs in the suit that they are the owners of the suit property, having purchased the same for valuable consideration, is false and frivolous. The survey number of the property purchased by the plaintiffs in old Paimash Nos.226 and 209, correlating to R.S.No.126/7, in T.S.No.178 block No.38 of Kolathur Village, to an extent of 3388 sq.ft. is not the suit property. Therefore, the suit is liable to be dismissed, as it is devoid of merits. 10. It had also been stated that lalitha, had filed the suit, in O.S.No.7770 of 1999, through her power of attorney agents Perumalsamy and Murugan. Murugan is the defendant in the suit, in O.S.No.7568 of 1999. The pleadings in the plaint, in O.S.No.7568 of 1999, are the same as those, which had been raised in the written statement, in O.S.No.7770 of 1999. 11. Based on the oral, as well as the documentary evidence available on record, the trial Court had decreed the suit, in O.S.No.7568 of 1999, as prayed for by the plaintiffs therein. The suit, in O.S.No.7770 of 1999, had been dismissed. The trial Court had noted that O.S.No.7568 of 1999, had been filed by Manthirapandi and his wife S.Rajakani, and O.S.No.7770 of 1999, had been filed by one Lalitha, through her power agents Perumalsamy and Murugan. Murugan is the defendant in the suit, in O.S.No.7568 of 1999. In the suit, in O.S.No.7770 of 1999, the defendant is Manthirapandi, who is the first plaintiff in the suit, in O.S.No.7568 of 1999. 12. For the sake of convenience, Manthirapandi and S.Rajakani had been referred to as the plaintiffs. Murugan had been referred to as the first defendant and Perumalsamy as the second defendant and Lalitha as the third defendant. Manthirapandi had been examined as P.W.1. and one Venkata Subbiah has been examined as P.W.2. Exhibits A.1 to A.23 had been marked. Lalitha had been examined as D.W.1 and Exhibits B.1 to B.14 had been marked. Exhibits C.1 to C.4 had been marked as Court documents. 13. The plaintiffs in the suit, in O.S.No.7568 of 1999, had claimed title in respect of 3388 sq.ft. of land, situated in old Paimash Nos.226 and 209 in the then survey No.126/7, which is now bearing T.S.No.181, in block No.38 of Kolathur village. The plaintiffs had claimed title by way of two sale deeds, marked as Exhibits A.3 and A.4. On the other hand, the third defendant had claimed her rights over the said property stating that it was in the possession of her husband’s ancestors. 14. The property had been allotted to Balarama Reddiar, by way of a partition that had taken place, on 12.5.1938 and by way of a compromise decree passed in C.S.No.43/49. After the death of Balarama https://hcservices.ecourts.gov.in/hcservices/ Reddiar the property belonged to his only son Balakrishnan, who had also died, on 18.8.1990, leaving behind the third defendant and her children as his legal heirs. The partition deeds relating to the partition of the properties that had taken place amongst the members of the family of Balarama Reddiar had been marked as Exhibits B.7 and B.8. A copy of the extract from the town survey land register regarding survey Nos.168 and 169 had been marked as Exhibit B.3. The legal heir certificate of Balakrishnan had been marked as Exhibit B.9. The defendants had contended that when the property was standing in the name of the third defendant and her children, the plaintiffs had, illegally, changed the name in the revenue records. Hence, the defendants had changed the name with regard to the ownership of the property in the relevant revenue records. 15. The defendants had approached the Assistant Settlement Officer of Thiruvannamalai, who had issued an order, marked as exhibit B.10, incorporating the defendants name in the revenue records. Since, the revenue authorities cannot alter the name as done by them, without an order being issued by the appropriate Court, the defendants are entitled to the properties in question. 16. It had been contended on behalf of the defendants that the plaintiffs were claiming right over the suit property, under Exhibit A.21, an extract of the town survey register, wherein an entry had been made on the basis of false sale deeds and therefore, it is not reliable. On behalf of the defendants, it had been contended that, according to Exhibit B.12 notification, the entry made in the SLR copy is finalised and that it cannot be altered without an order from the appropriate Court. Since, the plaintiffs in both the suits had been claiming only for the relief of permanent injunction, the trial Court had not gone into the aspect relating to the declaration of title. However, the trial Court had found that the plaintiffs had filed the suit against the defendants stating that they are in possession of the property and that when they put up certain constructions in the suit property, the first defendant, Murugan, had interfered with the construction of the compound wall, with the help of rowdy elements. Therefore, a police complaint had been lodged and a suit had been filed, in O.S.No.7568 of 1999, and an order of interim injunction had also been granted in favour of the plaintiffs. 17. It had also been stated that a copy of the police complaint, given to the sub inspector of police, Kolathur police station, had been marked as Exhibit A.5. Exhibit A.6 is a receipt given by the police. On the other hand, the defendants had claimed that the third defendant and her children have the title in respect of the properties in question and therefore, when the first plaintiff had attempted to interfere with their peaceful possession of the property by the defendants, by constructing a compound wall, the suit, in O.S.No.7568 of 1999, had been filed and an order of injunction had also been obtained. The trial Court had appointed an advocate https://hcservices.ecourts.gov.in/hcservices/ commissioner to note down the physical features of the property in question. The advocate commissioner had inspected the property with the help of the surveyor and filed Exhibits C.1 and C.3. The report of the advocate commissioner had been marked as C.1. The commissioner’s sketch and the surveyor’s sketch had been marked as Exhibits C.2 and C.3. The plaintiffs had marked Exhibits A.1 to A.20, A.22 and A.23 to show their possession of the suit property. D.W.1 had admitted that the plaintiffs are in possession of the said property and that they have put up a construction. Thereafter, they have been paying all the necessary taxes. In such circumstances, the suit, in O.S.No.7568 of 1999, had been decreed in favour of the plaintiffs and O.S.No.7770 of 1999, had been dismissed. However, the trial Court had observed that a party claiming title over the suit property could file a suit for declaring of their title and to take necessary action to recover the property in question. 18. Against the common judgment and decree of the trial Court, dated 22.12.2006, made in O.S.No.7568 of 1999 and O.S.No.7770 of 1999, two first appeals had been filed before the IV Additional Judge, City Civil Court, Chennai, in A.S.No.503 of 2007 and A.S.No.625 of 2007, respectively. 19. The appeal, in A.S.No.503 of 2007, had been filed by Murugan, the defendant in O.S.No.7568 of 1999. The appeal, in A.S.No.625 of 2007, had been filed by Lalitha, represented by her power of attorney agents S.Perumalsamy and A.Murugan, the plaintiffs, in O.S.No.7770 of 1999. 20. Common grounds had been raised in both the appeals. It has been stated that the trial Court had failed to consider the Ryotwari settlement and the order passed by the settlement authority. The trial Court ought to have held that the registered holder of the property in question would be deemed to have title and possession in respect of the suit property and as such, the relief of permanent injunction ought to have been granted, as prayed for by the appellants. 21. It had also been stated that the trial Court had failed to properly appreciate Exhibits B.3 and B.10, while recording its findings. The trial Court ought to have held that the registered holder of the suit property derived title in respect of the said property from their predecessor in title. Further, the trial Court had not considered the Paimash number pertaining to the properties in the correct manner. The appreciation of the evidence by the trial Court is contrary to the provisions of the Indian Evidence Act, 1872. 22. It had also been stated that the trial court had failed to consider the notice issued, under Section 9(2) of the Survey and Boundaries Act, 1923, in favour of Lalitha and her children. Exhibits B.14 had not been considered in a proper manner. It had also not https://hcservices.ecourts.gov.in/hcservices/ considered the operation of the law, under the Tamil Nadu Minor Inam (Abolition and Conversion into Ryotwari) Act, 1963. The deposition of D.W.1 had not been considered by the trial Court in its proper perspective. The trial Court ought to have held that the land held by D.W.1 was different from the land belonging to the predecessors in title of lalitha and her children. The fact that P.W.1 is a trespasser in the suit property had not been considered by the trial Court. The settled position in law that, in case of a vacant land, possession follows title had not been taken into consideration by the trial Court. 23. On considering the grounds raised in the appeals, the evidence available on record and the contentions raised on behalf of the appellants, as well as the respondents, the first appellate Court had confirmed the judgment and decree of the trial Court, dated 22.12.2006. 24. The first appellate Court had held that, based on Exhibit A.3, sale deed, dated 14.12.1998, and Exhibit A.4 sale deed, dated 16.12.1998, the plaintiffs, in O.S.No.7568 of 1999, had derived title to the suit property and that they were in possession and enjoyment of the same. It had also held that on the basis of Exhibits B.10 to B.14, the plaintiffs, in O.S.No.7770 of 1999, cannot establish title over the suit property. The first appellate Court had also found, from the evidence of D.W.1, that Lalitha had no document of title to prove her claims, in respect of the suit property. The plaintiff No.2 had relied on Exhibits B.10 to B.14. Exhibit B.10 is a certified copy of the land register extract showing that Paimash No.226/1 stands in the name of Balarama Reddiar. Exhibit B.11 is a notice issued by plaintiff No.2, under Section 9(2) of the Tamil Nadu Survey and Boundaries Act, 1923. Exhibit B.12 is the gazette notification issued under Section 13 of the said Act. Exhibit B.13 is a letter sent from the Tahsildar, Purasawalkam, Perambur Taluk. Exhibit B.14 is the proceedings of the Assistant Settlement Officer, Thiruvannamalai. The said documents cannot be taken as sufficient evidence to prove the possession of the plaintiff No.2. Further, D.W.1 had admitted that plaintiff No.1 is in possession and enjoyment of the suit property and that he is paying the water tax and other taxes to the Government. 25. The first appellate Court had further found that, from Exhibit A.3, sale deed, dated 14.12.1998, and Exhibit A.4 sale deed, dated 16.12.1998 and the evidences of P.W.1 and P.W.2 that the suit property is in the possession of the plaintiff No.1. In such circumstances, the first appellate Court had dismissed the appeals, in A.S.No.503 of 2007 and 625 of 2007, confirming the judgment and decree of the trial Court, dated 22.12.2006. 26. As against the common judgment and decree, made in A.S.No.503 of 2007, and A.S.No.625 of 2007, these second appeals had https://hcservices.ecourts.gov.in/hcservices/ been filed before this Court raising the following questions, as substantial questions of law: "a. Whether the entries made in the Revenue Settlement Record by the Settlement Authority, who is the Public Servant in the discharge of his official duty and pursuant to the entry in Inam Register and prepared the record amounts to statutory presumption are prima facie evidence to prove the possession and enjoyment of title of the suit property vested with the appellants? b. Whether the case law reported in 2005(4) CTC 9 and relied on by the learned lower appellate Court Addl. Judge and decided the title of the appellants is relevant to the facts in issue of their case, whose names are found in the Revenue Settlement Records Exhibits B.3, B.7, B.8, B.9, B.10, B.11 and B.12 thereby the legal irreleventable statutory presumption is that they have been in possession and enjoyment of the suit property having derived title from their predecessor-in-title is applicable to the case of the appellants? c. Whether the Inam title deeds of the predecessors of the respondents without validated by the Settlement Authority under the provisions of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 30 of 1963 are valid and having evidentiary value as title deeds come under the provisions of T.P.Act? d) Whether the respondents herein purchased the suit schedule property in O.S.No.7770 of 1999 from their alleged predecessor-in-title which is the land comprised in Paimash No.226/1 then No.126/7A part correlating to T.S.No.181 in Block No.32 of No.65, Kolathur Village when they have claimed as purchased the property comprised in Paimash No.226 & 209, then No.126/7 corresponding T.S.No.178 (wrongly and surreptitiously claimed as T.S.No.181 in Block No.38, Kolathur Village, are one and the same? e) Whether the Revenue Patta obtained by the respondents in connivance of the Taluk surveyor and the Tahsildar by sub dividing the land in T.S.No.181 unauthorisedly as T.S.No.181/1 & 2 without having any deed of conveyance from the title-holders is valid?" 27. The learned counsel for the appellants had submitted, inter alia, that the courts below had arrived at their conclusions without properly appreciating the evidence available on record in favour of appellants. The courts below ought to have noted that the sub https://hcservices.ecourts.gov.in/hcservices/ division said to have been effected, in T.S.No.181/1 and 181/2, without an order issued by the appropriate Court is illegal. 28. The learned counsel for the appellants had further submitted that the courts below had failed to appreciate the document marked as Exhibit B.14, the letter of the Assistant Settlement Officer, Thiruvannamalai, dated 20.7.2000, in favour of the claims made by the plaintiffs. 29. The learned counsel had also submitted that even though sufficient evidence was available to substantiate the claims of the appellants, the courts below had erred in coming to the conclusion that the appellants had not proved their possession and enjoyment of the suit schedule property. Even though the claims of the respondents were only in respect of an extent of 3388 sq.ft. in T.S.No.181/1 which forms part of a larger extent of the land in T.S.No.181, the courts below had erroneously come to the conclusion that the respondents were in possession and enjoyment of the suit schedule property. Further, there was no proof to show as to how T.S.No.181 had been sub divided as T.S.Nos.181/1 and 181/2. Therefore, the findings of the courts below are perverse, illegal, void and unsustainable in the eye of law. 30. Per contra the learned counsel appearing on behalf of the respondents had submitted that the claims made by the appellants are false and frivolous. The property claimed by the appellants is totally different from the property in respect of which the respondents had made their claims. Even though the appellants had claimed to be in possession and enjoyment of the suit property, based on a settlement patta, the said document had not been filed before the Courts below. No evidence had been adduced on behalf of the appellants to correlate the suit property to the properties alleged to have belonged to one Balarama Reddiar. The appellants had relied on Ex.B.14, dated 20.7.2000, said to have been issued by the Assistant Settlement Officer, Tiruvannamalai, to show that the sub divisions made in respect of T.S.No.181 is unauthorised and illegal, as it has not been done after obtaining necessary orders from the appropriate Court. 31. It is a fact that the order for effecting the sub divisions had been issued only after the said letter had been issued. The alleged sale deeds had not been marked by the appellants in the suits, either before the trial Court or at the stage of the first appeals. Further, no sale deeds, referred to in the said letter, was in existence at the time when the said letter, had been issued. The above said facts would show that the letter was a concocted document and it had been created with fraudulent intentions. In fact, the officer concerned had been taken into custody for creating such fraudulent documents. The concerned Tahsildar, examined as a court https://hcservices.ecourts.gov.in/hcservices/ witness, had denounced the document marked as Exhibit B.14. Further, from Exhibit C.1, which is the Commissioner’s report and Exhibit C.2, the plan, the property in question had been clearly identified. Exhibits A.1 to A.23, marked as exhibits, includes a number of title deeds to show the possession of the property. 32. It had also been shown that the structures put up by the respondents in the suit schedule property is in accordance with the sanctioned plan. Further, all the necessary taxes have been paid to the Government by the respondents. Payments made for the electricity charges have also been shown. Sufficient evidence had been adduced to show that the property in question had been mortgaged