Full Judgment
(Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 05.11.1993, made in A.S.No.115 of 1991 on the file of the District Court, Pudukottai, reversing the Judgment and decree dated 15.07.1991, made in O.S.No.66 of 1991 on the file of the Subordinate Court, Pudukottai.)
1. This Second Appeal has been filed against the judgment and decree dated 05.11.1993, made in A.S.No.115 of 1991 on the file of the District Court, Pudukottai, reversing the Judgment and decree dated 15.07.1991, made in O.S.No.66 of 1991 on the file of the Subordinate Court, Pudukottai.
2. The appellants are the defendants 1 to 3 and 5, who succeeded in the Trial Court, but lost in the first appellate Court. The respondents 1 to 4 are the plaintiffs and the fifth respondent is the fourth defendant in the suit in O.S.No.66 of 2001, on the file of the Subordinate Court, Pudukottai.
3. The respondents 1 to 4 filed the suit in O.S.No.66 of 2001 before the Subordinate Court, Pudukottai, for declaration of title that the suit property in S.No.249/2B, measuring 0.44.0 Hectare belongs to them and for injunction.
4. For convenience, the parties are referred to as per their rank in the suit in O.S.No.66 of 1991.
5. Facts of the case:-
(i) The husband of the first plaintiff and the father of the plaintiffs 2 to 4 purchased the property, by the Deed of Sale, dated 24.07.1950, measuring 0.44.0 Hectare and another property on the northern side of S.No.249/2C. Originally, both the properties stood in the name of the husband of the first plaintiff and father of the first defendant and one Karuppan. After the death of the husband of the first plaintiff and the parents of the plaintiffs 2 to 4, the plaintiffs are in possession and enjoyment of the suit property along with the adjacent property and they are paying Kist. Under UDR survey, Old S.No.249/2 was sub-divided as S.Nos.249/2A, 249/2B and 249/2C. Originally, for S.No.249/2A, patta was issued in the name of Karuppan and the first defendant. For S.No.249/2B, patta was issued in the name of plaintiffs and for S.No.249/2C, patta was issued in the name of the first plaintiff. They are enjoying the said property and paying Kist. By mistake, patta was issued to the defendants and the plaintiffs in respect of S.No.249/2B. Therefore, the first plaintiff filed an appeal to the Revenue Divisional Officer, Aranthangi, and on 24.03.1985, the Revenue Divisional Officer, has passed an order, setting aside the order of the Tahsildar and remanded the matter back to the Tahsildar, directing him to issue patta in the name of the persons, who are presently in possession of the properties. On the basis of the order of the Revenue Divisional Officer, dated 24.03.1985, patta granted to the first defendant was cancelled and the Tahsildar after enquiry, granted patta on 09.09.1985 in respect of the land in S.No.249/2B in the name of the plaintiffs alone. Hence, the first defendant filed an appeal before the Revenue Divisional Officer. The Revenue Divisional Officer again remanded the matter on 18.06.1987 to the Tahsildar. Taking advantage of the remand, the defendants interfered with the possession and enjoyment of the suit property of the plaintiffs. Therefore, the plaintiffs have filed the suit for the relief stated above.
(ii) The defendants filed written statement and denied all the averments made in the plaint and stated that the plaintiffs were never in possession and enjoyment of the suit property. The suit property was in the possession of the defendants and joint patta was issued in respect of the suit property in S.No.249/2 in the name of the father of the defendants, husband of the first plaintiff and Karuppan. All the four sides of the suit property, there are bunds (tug;Gfs;) and the northern side of the suit property in S.No.249/2 is in possession of Karuppan. The southern side of the suit property is in possession of the plaintiffs. Based on the same, in UDR Scheme, S.No.249/2 was sub-divided and re-numbered as S.Nos.249/2A, 249/2B and 249/2C and separate patta was issued in the name of Karuppan, first defendant and the first plaintiff respectively. The ancestors of the defendants were in possession and enjoyment of the suit property in S.No.249/2B for a long time and paying Kist. The defendants are maintaining the trees planted by their ancestors. Whileso, the plaintiffs, on 27.09.1985 destroyed the bunds [tug;Gfs;] in the suit property in S.No.249/2B and S.No.249/2C and the defendants on 28.09.1985 gave a complaint to the police and therefore, the plaintiffs have filed the suit.
(iii) Based on the pleadings, the learned Subordinate Judge, Pudukottai, framed necessary issues.
(iv) Before the Trial Court, the first plaintiff examined herself as P.W.1 and three other witnesses were examined as P.Ws.2 to 4 and marked 39 documents as Exs.A.1 to A.39. On behalf of the defendants, the first defendant examined himself as D.W.1 and marked 35 documents as Exs.B.1 to B.35. The Commissioner filed his report along with the sketch. These documents were marked as Court documents i.e., Exs.C.1 to C.5.
(v) The learned Subordinate Judge, Pudukottai, considering the pleadings, oral and documentary evidence adduced by the parties and the arguments of the learned counsel appearing for the parties, dismissed the suit, holding that the plaintiffs failed to prove their title to the suit property in S.No.249/2B and has held that all the parties were paying Kist for the property in S.No.249/2B.
(vi) Against the judgment and decree, dated 15.07.1991, the plaintiffs have filed A.S.No.115 of 1991 before the District Court, Pudukottai.
(vii) The learned District Judge, Pudukottai, framed necessary points for consideration.
(viiii) The learned District Judge, Pudukottai, independently considering the pleadings, oral and documentary evidence, judgment of the Trial Court and the arguments of the learned counsel for the parties, by judgment and decree, dated 05.11.1993, allowed the appeal.
6. Against the said judgment and decree, dated 05.11.1993, the present second appeal is filed.
7. At the time of admitting the second appeal, this Court framed the following substantial question of law:
Whether the Lower Appellate Court was right in accepting the plaintiffs' title for the reason that the plaintiffs have paid higher kist amount when both parties have paid the kist and adangal is in the names of both?
8. The learned counsel for the appellants submitted that the learned District Judge, Pudukottai, erred in holding that the plaintiffs are in possession of the suit property. The learned District Judge erred in rejecting the contention that patta stands in the name of the defendants and they are in possession and paying Kist. The learned District Judge erred in allowing the appeal on the ground that the plaintiffs are paying excess amount of Kist. The learned District Judge failed to consider the Commissioner's report. The learned District Judge allowed the appeal on the ground that the defendants failed to prove their possession and erred in not considering the fact that the plaintiffs only filed the suit and it is for them to prove their possession. The plaintiffs filed the suit for declaration and injunction, after the revenue authorities have rejected their claim for patta stating that they have failed to prove their possession.
9. In support of his submissions, the learned counsel for the appellants relied on following judgments and submitted that the plaintiffs are not entitled to get declaration of title and the plaintiffs cannot succeed by the weakness in the claim made by the defendants.
(i) 1963 Supreme (SC) 30 : 1964 AIR (SC) 24 [S.N.Ranade Vs. Union of India and another]
(ii) 1977 Supreme (SC) 5 : 1977 (3) SCC 532 [Siddu Venkappa Devadiga Vs. Smt.Rangu S.Devadiga and others]
(iii) Unreported judgment of the Hon'ble Supreme Court in Ishwar Dutt Vs. Land Acquisition Collector and another [Appeal (Civil) No.443 of 2001, dated 02.08.2005]
10. Per contra, the learned counsel for the respondents 2 to 4 submitted that the plaintiffs have proved their title and possession by both oral and documentary evidence. The learned Subordinate Judge, Pudukottai, erred in dismissing the suit on the ground that both the plaintiffs and the defendants are paying Kist for the property in S.No.249/2. The learned Subordinate Judge failed to see that joint patta was issued in the names of husband of the first plaintiff, father of the first defendant and one Karuppan and based on the patta only, all the parties were paying Kist. The learned Subordinate Judge failed to see that after purchasing the properties by the plaintiffs on 24.07.1950, S.No.249/2 was sub-divided and re-numbered as S.Nos.249/2A, 249/2B and 249/2C. Number of sales had been taken place and therefore, the name of the owner in adjoining property has been changed. The learned Subordinate Judge failed to consider that the plaintiffs are owners of larger extent, namely, the suit property and adjoining property in S.Nos.249/2B and 249/2C. The learned District Judge, Pudukottai, has considered oral and documentary evidence, especially, the Kist Receipt produced by the plaintiffs in proper perspective and rightly allowed the appeal. There is no error in the said judgment. No question of law, much less substantial question of law arises in the second appeal and the learned District Judge merely on facts and law, allowed the appeal.
11. In support of his submissions, the learned counsel for the respondents 2 to 4 relied on the following judgments:
(i) AIR (30) 1943 Madras 38 (2) [Edara Venkata Rao Vs. Edara Venkayya]
(ii) 1970 MLJ 29 [Somnath Barman Vs. Dr.S.P.Raju and another]
(iii)1998 (1) LW 101 [G.Selvamani and four others Vs. The District Revenue Officers-cum-Revisional Authority and 3 others]
12. Though notice was served on the fifth respondent and his name is printed in the cause list, he has not chosen to appear either in person or through pleader.
13. I have carefully perused all the materials available on record and the judgment and decree of the Courts below and considered the arguments advanced by the learned counsel appearing for the parties and the judgments relied on by them.
14. From the materials on record, it is seen that the plaintiffs claim title in respect of the suit properties, measuring 0.44.0 Hectare in S.No.249/2B as per the sale deed, dated 24.07.1950, purchased by the husband of the first plaintiff and the father of the plaintiffs 2 to 4. Originally, the suit properties and other properties were given Surevey Number as S.No.249/2. It is not disputed that one Karuppan, first defendant's father and the first plaintiff's husband were owners of the property in S.No.249/2. It is not disputed that they were enjoying a portion of the property separately. In view of possession, during UDR Scheme, when the larger extent was sub-divided into three portions as S.Nos.249/2A, 249/2B and 249/2C. For S.No.249/2A, patta was issued to one Karuppan and the first defendant. For S.No.249/2B, patta was issued in the name of the plaintiffs. For S.No.249/2C, patta was issued in the name of the first plaintiff. Subsequently, in respect of S.No.249/2B, patta was granted in the name of the defendants. On appeal filed by the plaintiffs before the Revenue Divisional Officer, the same was set aside and on remand, the Tahsildar issued patta in respect of the said property in the name of the first plaintiff. Against which, the defendants filed an appeal. Again, the Revenue Divisional Officer remanded the same. It is to be noted that the defendants have not produced any document of title and they claim that a portion of the suit property is their ancestral property and the same was in possession of their ancestors and subsequently, in their possession. The defendants also trying to establish their title and possession only based on the Kist Receipts. Therefore, the judgments relied on by the learned counsel for the appellants, do not advance the case of the appellants/defendants. The learned Subordinate Judge dismissed the suit only on the ground that both the parties are paying Kist. On the other hand, the learned District Judge has considered the amounts paid by the plaintiffs and the defendants and come to the conclusion that the plaintiffs are the owners of larger extent of land and therefore, they have paid more amount. There is no error in the said finding of the learned District Judge and no substantial question of law arises in this second appeal.
15. In the result, the second appeal is dismissed. The judgment and decree, dated 05.11.1993, made in A.S.No.115 of 1991, is confirmed setting aside the judgment and decree, dated 15.07.1991, made in O.S.No.66 of 1991. No costs.