Smt.R.Onila, Vs the Tahsildar

PRAYER : Second Appeal filed under Section 100 of the Civil Procedure Code, against the Judgment and Decree passed in A.S.No.33 of 2008 dated 23.12.2010 on the file of the Sub-Court, Srivilliputhur confirming the Judgement and Decree

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passed in O.S.No.461 of 2004 dated 15.02.2008 on the file of the Additional District Munsif Court, Srivilliputhur.

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For Appellant	: Mr.M.Thirunavukarasu
For R1 to R3	: Mr.V.Omprakash
For R4	: Mr.R.Murali
For R5 & 6	: Mr.Athimoolapandian

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JUDGMENT

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The second appeal is preferred by the plaintiff in the suit against the Judgment and Decree passed in A.S.No.33 of 2008 dated 23.12.2010 on the file of the Sub-Court, Srivilliputhur confirming the Judgement and Decree passed in O.S.No.461 of 2004 dated 15.02.2008 on the file of the Additional District Munsif Court, Srivilliputhur.

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The plaintiff in the suit is the appellant herein and the defendants in the suit are the respondents herein. For the sake of convenience, the parties shall be referred as plaintiff and defendants as per the ranking in the suit.

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The brief facts of the case as stated in the plaint is that originally,

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the suit schedule property situated at P. Nallingaperi village, Srivilliputtur Taluk

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belongs to one Karuppanan son of Muthukumar of Kolinchipatti Village. Subsequently he sold 40 cents of land through registered sale deed dated 14.11.1972 for himself and on behalf of his minor children Rajaiah and Palani along with his brother Raman in favour of the plaintiff's husband, namely Rajaiah and his brother Muthukannan, Though the extent is 40 cents the same is used as house site. At the time of purchase, the plaintiff's husband was in military service and his brother was in police and they were not in a position to manage and enjoy the schedule property directly. Hence in the year 1973 the 4^th defendant's husband, namely Chinnamuthu was permitted to maintain and supervise the land in order to avoid any encroachment by strangers. Then the plaintiff's husband retired from his army service in the year 1975 and had obtained the possession of plaint schedule property from 4^th defendant's husband and her husband and started to enjoy the land in person for himself and on behalf of his brother.

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While the plaintiff's husband was in possession, he had put up a thatched shed with mud wall in the portion of the schedule property. Subsequently the same had fallen down, but remanence of the same is available. Then the plaintiff's husband and his brother orally partitioned the entire schedule property in two portions in the month of Thai 2001. In that oral partition, the southern

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portion of 20 cents was allotted to the share of the plaintiff's husband and northern

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portion was allotted to the share of the plaintiff husband's brother Muthukannan. Even after partition the plaintiff and her husband were in enjoyment of the suit property by themselves and on behalf of the plaintiff husband's brother Muthukannan. On 25.07.2002 the plaintiff's husband executed a registered settlement deed in respect of his property in favour of his wife i.e. the plaintiff and the same was duly accepted and acted upon. Likewise, Muthukannan has also executed a registered sale deed on 16.12.2002 pertaining to his half share of northern portion in favour of the plaintiff. On the date of sale itself, title, possession and enjoyment were handed over to the plaintiff. Thereafter, the plaintiff became the absolute owner of the entire suit schedule property to an extent of 40 cents. The plaintiff as a lawful owner put up stone fence in the year 1991 for the entire suit schedule property. All the defendants have no title over the suit schedule property except this plaintiff.

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Taking advantage of management given to the 4^th defendant's

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husband Chinnamuthu and after his demise the 4^th defendant was making an attempt to interfere with the plaintiff's peaceful possession. For the unlawful act of the 4^th defendant, the defendants 5 and 6 are colluded with the 4^th defendant. The

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5^th and 6^th defendants are husband and wife and the 5^th defendant is the son-in-law

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of the 4^th defendant. As a lawful title-holder the plaintiff has approached the revenue authorities i.e. the defendants 1 to 3 to get Patta in her favour pertaining to the schedule mentioned property since no mutation was effected, though the plaintiff and her predecessors have been in exclusive possession and enjoyment of the plaint schedule property. Even prior to that plaintiff's husband and his brother Muthukannan also approached the defendants 1 to 3 on several occasion by making representation in order to obtain Patta on 09.09.2002 and 18.11.2002 at the office of the 3^rd defendant. But there is no response has been made to them and their predecessors in title. Therefore, on 22.12.2002, as a lawful owner the plaintiff has issued a legal notice under Section 80 of Civil Procedure Code, to all the defendants calling upon the defendants 1 to 3 to issue Patta in favour of the plaintiff in respect of the plaint schedule property. The plaintiff also called upon the defendants 4 to 6 not to interfere with the plaintiff's peaceful possession and enjoyment over the plaint schedule property. All the defendants have received the legal notice of the plaintiff. The defendants 1 to 3 have not made any reply. The defendants 1 to 3 are being competent authority bound to issue Patta in favour of the plaintiff. They have not even called for enquiry and also not called for any further explanation nor have made any investigation.

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It is significant to point out the non-issuance of Patta in favour of plaintiff is tantamount to violation of principles of natural justice. Whereas, the 4^th defendant alone sent a reply on 6.2.2003 making full of false statement. The defendants 4 to 6 have been making propaganda in the village on 20.2.2003 onwards, that they are only residing very nearer to the suit property but the plaintiff is far away from the plaint schedule property and hence they will not allow the plaintiff to enjoy the schedule property. The plaintiff being a lady apprehends that the defendants 4 to 6 may cause hindrance at any moment to the enjoyment of schedule property. Subsequent to filing of the suit, the defendants 4 to 6 unlawfully have encroached into the suit property by putting up thatched shed, thatched bathroom, cattle shed, water tub, erecting stone pillars etc. All such encroachments of the defendants 4 to 6 in the suit property were noticed at the time of inspection of the Advocate Commissioner i.e. on 25.01.2004. Since the plaintiff has been residing at Srivilliputtur Town, she has no occasion to make frequent visit to the suit property. Taking advantage of the same, the defendants 4 to 6 unlawfully encroached into entire suit property and also allowed the 4^th defendant to occupy into the thatched shed. The unlawful occupation is highly arbitrary, illegal and high handed. Therefore, the defendants 4 to 6 are bound to

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remove all encroachments and to surrender the vacant possession to this plaintiff. Hence, the suit was filed by the plaintiff.

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The 1^st defendant Tahsildar had filed written statement which was adopted by the 2^nd and 3^rd defendants Revenue Divisional Officer and the District Collector respectively. In the written statement it is contended that the defendants 1 to 3 are unnecessary parties to the suit, hence the suit is bad for mis-joinder of parties, further stated they do not know the facts and allegations stated in the plaint. The sale deed, dated 14.11.1972 in the name of Rajiah and Muthukannan do not reveal Nalingaperi village or any Survey No, instead it states only Boovani village, hence there is dispute regarding the name of the village. The plaintiff is bound to prove the identification of the suit property, the genuineness of the sale deed, dated 14.11.1972 and also ought to prove the two documents namely settlement deed, dated 25.7.2002 and the sale deed, dated 16.12.2002 from which she claims title over the suit property. Since, there is dispute in description of the property, the plaintiff had not proved the same through the documents, hence the plaintiff is not entitled to the relief of declaration and consequential. Since, the description of the property in the plaint is ambiguous and unclear, the plaintiff's suit is to be dismissed in limine. The plaintiff is not entitled to claim mandatory

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injunction against the defendants 1 to 3 for issue of Patta to the suit property. The plaintiff's suit is not a bonafide one and avoid of any merits.

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The cause of action stated in the plaint are highly imaginary and unbelievable and untrue. Without prejudice to the contentions of defendants 1 to 3, these defendants are ready to act accordingly to the directions and decisions of this Court and hence they have prayed dismiss the suit with cost of this defendants. The defendants 1 to 3 had filed additional written statement wherein it is stated that as per the revenue records, the disputed land in Survey No.14 with as extent of 0.69.5 acres is classified as “Natham", afterwards, it was sub-divided as 14/1 with an extent of 0.17.00.0 square meters is classified as Government promboke as well as vacant site in the name of Chinnamuthan's son Chinnamuthan. On concealing all these facts the plaintiff has come forward with this false suit. The plaintiff has not come with clean hands. The plaintiff is living at Rajapalayam and never enjoyed the suit property at any time. The plaintiff was not in actual possession and enjoyment of the suit property. As stated supra the suit property is Government Promboke no one got individual right over the suit property and hence they have prayed to dismiss the suit with the cost of this defendants.

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The 4^th defendant had filed a written statement wherein it is stated

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that it is not correct to state that the plaintiff and her husband have purchased the plaint schedule property under a sale deed, dated 14.11.1972. Further the defendant denied that the plaint schedule property was handed over to the husband of the 4^th defendant in the year 1973 for protecting the same from encroachment as the plaintiff's husband and his brother were away in their employment and that the plaintiff's husband had obtained back the possession from the 4^th defendant's husband in 1975. The alleged oral partition and execution of settlement deed are denied. Furthermore, the defendant also denied that the plaintiff has purchased the northern half of the plaint schedule property from the brother of her husband on 16.12.2002. The plaint schedule property is a Government Natham and the same is in the enjoyment of Chinnamuthan, for more than 38 years. The 4^th defendant is his 2^nd wife and the 5^th defendant is his son-inlaw, Patta has been granted on the basis of his enjoyment. In the plaint schedule property, there is a thatched house and two stables. The defendants 5 and 6 have kept their hay stake and waste dump with the permission of the 4^th defendant The alleged sale deed and the settlement deed are created with a view to have documents with regard to the plaint schedule property. The defendants 1 to 3 were impleaded unnecessarily. As per the Provisions of the Tamil Nadu Survey and

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Boundaries Act, Civil suit should have been filed within 3 years from the date of receipt of notice under Section 3 (1). The husband of the 4^th defendant had purchased the property north and south of plaint schedule property as per the sale deed, dated 20.03.1964 from one Thangammal. Since the Legal heirs of Chinnamuthan are not added as parties, hence the suit the same is not maintainable for non-joinder of necessary parties. The 4^th defendant had filed Additional Written Statement, wherein it is stated that the defendants 4 to 6 encroached the plaint schedule property after institution of suit is false. As the amendment has been made after 3 years of the filing the Commissioner’s report, the prayer claimed therein is barred by time. There is no pleading as to on what date the defendants constructed the thatched house and stables.

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The 6^th defendant had filed separate written statement and additional written statement. The averments are more or less same as that of the written statement and additional written statement of the 4^th defendant.

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The plaintiff has filed a reply statement wherein it is stated that the defendants 1 to 3, without the knowledge and consent of the plaintiff classified the suit property into Natham and sub-divided as S.No.14/1 as

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Government Promboke as well as the vacant site of Chinna Muthan. No notice was issued to the plaintiff nor any enquiry was conducted for such impugned classification. No opportunity was given to the plaintiff. So, there is gross violation of principle of natural justice. Under such circumstances, alleged classification, is not legally valid nor binding the plaintiff. It is further stated that when there is a registered sale deed pertaining to the suit property as early as in the year 1972, vide registered document No.2329/72, the defendants 1 to 3 have no locus standi to convert the suit property of plaintiff's vendor in to Natham promboke. Moreover, the alleged Chinna-Muthan nor his father has got any title over the suit property nor they ever enjoyed.

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In the additional written statement of defendants 1 to 3 have stated that the plaintiff was residing at Rajapalayam and the plaintiff has not in enjoyment of the property and the land is government promboke, no individual has any right and the same is denied by the plaintiff and stated that in fact from the beginning, the plaintiff is residing at Srivilliputtur alone and not at Rajapalayam. The defendants 1 to 3 have not adopted the procedure as stated under the Revenue Standing Orders before such classification as well as issuance of Patta in the name of Chinnamuthan. The Additional Written Statement filed by

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the 4^th defendant states as if in the Revenue Record from the inception, 4^th defendant's husband name alone is found is not correct. The claim of the 4^th defendant is baseless, arbitrary and illegal. When the suit property is to be admitted as Grama Natham, the Government has no right to classify or convert into Government Promboke and it is not the property of Government. Therefore, all such classifications are null and void. On the basis of illegal classification, the 4^th defendant cannot make any claim. It is also stated that subsequent to suit, as per the amended plaint, the defendants 4 to 6 unlawfully encroached the suit property and the same was noticed at the time of Commissioner's inspection. So, the question of limitation will never arise.

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The allegation of the 6^th defendant in his additional written statement, as if there is no cause of action for mandatory injunction. It is emphatically denied that bath room, cattle shed, cement tub, was constructed and enjoyed from time immemorial. There is no truth in saying that as if all the defendants have been enjoying and the same is well within the knowledge of the plaintiff. It is not accepted as correct to say that the claim of the plaintiff is hit by doctrine of estoppel and limitation. All the defendants 4 to 6, are only encroaches and are not lawful title-holders. The defendants 4 to 6 influenced the defendants 1

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to 3 and all colluded together maneuvered to enter their name in revenue records

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without the knowledge and consent of the plaintiff. The defendants 4 to 6, have never enjoyed the suit property till the filing of suit. Whereas the request of the plaintiff to mutate her name was of no use. Then, on 24.3.2003, the 1^st defendant sent reply stating that the matter is subjudice, it could not be done. Hence the plaintiff had prayed to decree the suit with costs as prayed for in the 2^nd amended plaint.

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On the above pleadings the Trial Court has framed the following

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issues and additional issues:

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1.Whether the plaintiff is entitled to the declaration that the plaint schedule property belongs to her?

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2.Whether the plaintiff is entitled to the permanent injunction as against the defendants 4 to 6?

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3.Whether the plaintiff is entitled to the mandatory injunction?

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Whether it is true that the plaint schedule property is not properly described as stated by the 1^st defendant?

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5.Whether the land in S.No.14/1 is a government poromboke standing in the name of Chinnamuthan?

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6.Whether the suit is bad for non - joinder of necessary parties?

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7.Whether the defendants 5 to 6 have no right in the suit properties as claimed by the 4th defendant?

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To what other relief is the plaintiff is entitled?

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Additional Issues:

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1.Whether the Plaintiff is entitled to the relief of recovery of possession of the plaint schedule properties from the defendants?

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2.Whether the suit is barred by limitation?

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In the Trial Court the plaintiff had marked Ex.A1 to Ex.A13 and

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examined PW1 to PW 3. The defendants had marked Ex.B1 to Ex.B5 and examined DW1 to DW 3. The Commissioner Report and plan is marked as Ex.C1 to Ex.C2. The Trial Court after considering the evidence has dismissed the suit. Aggrieved over the plaintiff had preferred Appeal Suit and the same was dismissed. Aggrieved over the present second appeal is preferred. The plaintiff had raised the following substantial question of law:

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i. Whether the judgments and decrees of the Courts below are perverse and the same is liable to be set aside?

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ii. Whether the Court below are right in ignoring the admission made by DW 1 to 3 when section 58 of Evidence Act says that admitted facts need not be proved.

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iii. Whether the Courts below are right in rejecting Ex.A1 without appreciating the evidence adduced by PW1 to 3 and DW1?

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iv. Whether the Courts below are right in accepting Ex.B4 which is a revenue record in which the name of the 4^th defendant’s husband Chinnamuthan was entered without issuing notice to the plaintiff and no title will confer from the revenue record which is a settled principles of law?

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v. Whether the Revenue Authorities are having right to reclassify the Grama Natham as Government Promboke?

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As far as the 5^th substantial question of law is concerned, the defendants 1 to 3 had stated that the land in S.No.14 admeasuring 0.69.5 acres which is classified as “Natham”. Then the land was sub-divided as S.No.14/1 with an extent of 0.17.00.0 square meters is classified as Government Promboke. Then patta to the vacant site was granted in the name of Chinnamuthan's son Chinnamuthan. The said statement of the defendants 1 to 3 was not substantiated by filing any revenue records. Further the revenue authorities are not having power to reclassify the lands. It is only the government empowered to reclassify. The defendants had not produced any government order or proceedings to prove the land was reclassified. Therefore, the 5^th substantial question of law is held in favour of the plaintiff and against the defendants.

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In order to considered the 2, 3 and 4 substantial questions of law

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the relevant documents and depositions are perused. On perusal of Ex.A1 sale deed dated 14.11.1972 executed in favour of the plaintiff’s husband, it is seen the suit land is mentioned as house site. While describing the four boundaries, the two boundaries are shown as punja lands i.e. on North is Chinnamuthan Punja land, on West Veeranan Punja land. Then on East Villupanur Village boundary, on South Perumal house. When the adjacent land is stated as punja lands, then the statement of the defendants that the land is natham and then converted into poramboke may not be correct. Hence the said statement is not acceptable without proper evidence.

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Further it is seen while mentioning the eastern boundary in the sale deed, it is mentioned that on east is the neighboring village boundary. As stated earlier the punja lands are available on two sides, then one side is house site and another side is neighboring village boundary. Hence the neighboring village may be Natham lands. It is pertinent to state that the 4^th defendant’s husband Chinnamuthan’s punja land is shown as one of the boundaries i.e. on the northern side, which is classified as punja lands. Therefore, it throws some light that the disputed site is a house site situated next to punja land. When the Chinnamuthan

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had punja land, which is situated next to the house site, then the claim of the defendants that the house site belongs to the them ought to be proved by documents, but the defendants had not produced any documents except the patta. Further the sale deed was executed on 14.11.1972, whereas the patta to the defendants was issued during 1990-1991 under “Natham Nilavari Thitta Thuyai Adangal Register 1990-1991”. The DW1 while deposing had admitted that the said Natham Patta was issued under the scheme during the year 1990-1991. Hence the patta was issued subsequent to the sale deed executed in favour of the plaintiff’s husband. Therefore, this Court is of the considered opinion that the plaintiff is having sale deed to the disputed site, whereas the defendants are having patta, the plaintiff’s sale deed would grant better title than the defendants patta.

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Further when the sale deed Ex.A1 was executed on 14.11.1972, then the plaintiff is entitled to patta. If any patta ought to be issued in any other person’s name apart from the plaintiff, then the revenue authorities are bound to issue notice to the plaintiff. In the present case it is an admitted fact that no notice was issued to the plaintiff before the patta was issued in favour of the defendants. When the sale deed is in favour of the plaintiff, then only based on defendant’s

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patta, the defendants will not become the owner of the property. Therefore the Courts below had erred in rejecting the Ex.A1 sale deed and also erred in not accepting the deposition of PW1 to PW3. The 3^rd substantial question of law is answered in favour of the plaintiff.

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The defendants alleged that the suit land in not in Poovani Village but it is in P.Nalingaperi Village, but the Ex.A1 sale deed shows the land is in Poovani Village. However, the same is clarified by the Village Administrative Officer who was examined as DW1, wherein he had deposed that the Nalingaperi Village, Muthukrishnapuram Village and Poovani Village are coming under Poovani Panchayat Limits and for the said three villages, the parent village is “Poovani Village”. The DW1 further stated that if 10(1) adangal is sought for the P.Nalingaperi Village, Muthukrishnapuram Village, then the Village Administrative Officer would issue the certificate by affixing a seal as “Poovani Panchayat” only. The deposition of the DW1, the Village Administrative Officer is extracted hereunder:

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F.tp. (5-tJ gpujpthjp jug;gpy;):-

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rHNt vz;:14/1-y; jw;NghJtiu njd;gf;fj;jpy; ngUkhs;rhkp $iutPL Nghl;L mDgtk; nra;Jk;> khl;Lf;nfhl;lk; fl;bAk; mDgtk; nra;J tUfpwhh;. jPHit vJTk; mtH ngahpy; Nghltpy;iy. r.vz;: 14/1f;F tlf;Fg;gf;fk; ngUkhsk;khs; tPL cs;sJ. jhth nrhj;jpd; tlf;Fg;gf;fj;jpid ngUkhsk;khs;jhd; mDgtk; nra;J tUfpwhH. Jha mlq;fy ; gjpNtL eypq;fg;Nghp fpuhkj;jpw;Fk;> G+thdp fpuhkj;jpw;Fk; jdpj;jdpahf cs;sJ. G+thdp fpuhkk; vd;gJ vt;tsT tp];jPuzk; ,Uf;Fk; vd;why; Mtzq;fisg; ghHj;jhy;jhd; njhpAk;. thjp jug;G F.tp. (Ntz;LNfhSf;fpzq;f xj;jpitf;fg;gLfpwJ).

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05.01.2008:- F.tp.:- (thjp jug;gpy;):-

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jhth nrhj;J ,Uf;Fk; ,lj;jpy; xU tUlfhykhf fpuhk epHthf mYtyuhf gzpGhpfpNwd;. ,ijjtpu G+thdp> Kj;Jf;fpU;zhGuj;jpw;Fk; ehd;jhd; fpuhk epHthf mYtyH. jhth

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nrhj;J eypq;fg;Nghp fpuhkj;jpy; cs;sJ. G+thdp> Kj;Jf;fpU;zhGuk;> eypq;fg;Nghp Mfpa 3 fpuhkq;fSf;Fk; G +thdpjhd; jha;fpuhkk;. eypq;fg;Nghp fpuhkj;jpw;F> Kj;Jf;fpU;zhGuk; fpuhkj;jpw;F 10(1) fzf;Ff; Nfl;lhy; fpuhk epHthf mYtyH> G+thdp vd;W rPy; NghLNthk; vd;why; rhpjhd;. tof;fpw;fhf jhth nrhj;ij ehd; 2 ehl;fSf;F Kd; ghHitapl;Nld;. nrhj;J ahUf;Fg; ghj;jpak; vd;gijAk; tprhhpj;Njd;. vd; tprhuizapy; thjpapd; fztH fpuak; thq;fpajhfr; nrhd;dhHfs;. fpuak; thq;fpa gpd;G thjpAk;> fztUk; tof;Fr; nrhj;ij mDgtpj;J tUfpwhHfs; vd;W nrhd;dhHfs; vd;why; nrhy;ytpy;iy. mijg; gw;wp ehDk; Nfl;ftpy;iy. jhth nrhj;J cs;s ,lk; fpuhk ej;jk;. ,jd; nkhj;j tp];jPuzk; 40 nrz;L. jhth nrhj;jpd; fpo;Gwk; njd;tly; NuhL nry;fpwJ. jhth nrhj;jpd; tlGwk; rpd;dKj;jdpd; tptrha epyk; cs;sJ. jhth nrhj;Jf;F Nkw;Nf rPdp> Nfhtpe;jd; tPLfs; cs;sd. Nky;Gwk; tPuzd; kfd; uhkd; ,lk; cs;sJ. jhth nrhj;J Muk;g fhyj;jpy; ,Ue;J fhypkidahfj;jhd; ,Ue;jJ. ehd; nrhd;d ehd;Fkhy;fSf;F cl;gl;lJjhd; jhth nrhj;J vd;why; rhpjhd;. jhthnrhj;J cs;s ,lk; Kj;JfpU;zhGuk;jhd;. th.rh.M.1-y; Fwpg;gpl;Ls;s Kj;Jf;fpU;zGuk; eypq;fg;Nghp fpuhkj;ijr; rhHe;jJjhd;. th.rh.M.1 Mtzj;ij ehd; ,jw;F Kd;G ghHj;jjpy;iy. vd;Dila ep&gz mtpltpl;by; th.rh.M.1y; eypq;fg;Nghp fpuhkNkh> rHNt vz;Nzh Fwpg;gplg;gltpy;iy vd;W nrhy;ypAs;Nsd;. Mdhy; mJ vij itj;J nrhy;yg;gl;lJ vd;W vdf;F Qhgfk; ,y;iy. th.rh.M.1-y; fhl;lg;gl;Ls;s ehd;Fkhy;fSf;F cl;gl;lJjhd; jhth nrhj;J. Kj;Jf;fpU;zhGuk; fpuhkk; KOtJk; r.vz;.14-y;jhd; ,Ue;jJ. vd;Dila rHNt tiuglj;jpd;gb jhth nrhj;J r.vz;:14-y; tlfilrp vd;why; rhpjhd;. r.vz;.14 1990-91-y; cl;gphpT nra;ag;gl;lJ. Kjd;Kjypy; ej;jk; epyq;fSf;F gl;lh toq;Fk;NghJjhd; cl;gphpT nra;ag;gl;lJ. ej;jk;

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epyq;fspy; fhyp kidfspy; ahH ahH Fbirfs; Nghl;L mDgtpj;J tUfpwhHfNsh mtHfSf;Fj;jhd; gl;lh toq;FNthk;. r.vz;.14 nkhj;jk; 10 cl;gphpTfshfg; gphpf;fg;gl;lJ. 10 cl;gphpTfspy; jhth nrhj;J r.vz;:14/1. r.vz;:14/1d; nkhj;j tp];jPuzk; 0017 r.kPl;lH. gp.rh.M.1 r.vz;.14 cl;gphpTf;F Kd;G cs;sjhFk;. mjpy; fl;lk; fl;lkhff; fhl;lg;gl;Ls;sit FbapUg;G tPLfshFk;. gp.rh.M.1-y; tlfilrp fhypkidahf fhl;lg;gl;Ls;sJ. me;j fhypkidjhd; jw;NghJ r.vz;.14/1 MFk;. gp.rh.M.2-y; fyk; 1y; Fwpf;fg;gl;Ls;sJk;> fyk; 2y; Fwpf;fg;gl;Ls;sJk; xNu r.vz; jhd;. fyk; 12y; ej;jk; vd;W fhl;lg;gl;Ls;sJ. ej;jk; vd;gJ fpuhk ej;jk; MFk;. fpuhk ej;jj;ijj;jhd; 10 cl;gphpTfs; nra;J Nghl;Ls;Nshk;. gp.rh.M.3-y; fl;lq;fshff; fhl;lg;gl;Ls;sit midj;Jk; FbapUg;G tPLfshFk;. gp.rh.M.3-y;14/1y; FbapUg;G tPLfNsh> fl;blq;fNsh vJTk; ,y;iy. gp.rh.M.3 epfo;epiyapy; vd;d ,Uf;fpwNjh mijf; fhl;LtjhFk;. VjhtJ khw;wq;fs; ,Ue;jhy; mij ehq;fs; tiuglj;jpYk; Fwpg;G nra;Nthk;. gp.rh.M.3y; r.vz;.14/1y; vq;F tPL cs;sJ vd;W vd;dhy; nrhy;y KbahJ. eypq;fg;Nghp fpuhkj;jpw;F ej;jk; epythpj;jpl;lk; vg;NghJ ,Wjpahf;fg;gl;lJ vd;W vdf;F njhpahJ. gp.r.M.4y; fyk; 12>13y; rpd;dKj;jd; kfd; rpd;dKj;jd; vd;W fhl;lg;gl;Ls;sJ. mNj gp.rh.M.4y; fyk; 5y; fhypaplk; vd;W fhl;lg;gl;Ls;sJ. fyk; vz;.12y; Fwpg;gplg;gl;Ls;s vz;fs; KiwNa 85>60>81 Mfpait gl;lh vz;fshFk;. Mdhy; rpd;dKj;jd; kfd; rpd;dKj;jDf;F ve;jtpjkhd gl;lh vz;Zk; nfhLf;ftpy;iy. Mjdhy; r.vz;.14/1Ig; nghWj;J vt;tpjkhd gl;lhTk; toq;fg;gltpy;iy. rpd;dKj;jd; kfd; rpd;dKj;jd; vd;w ngaH vjd; mbg;gilapy; NrHf;fg;gl;lJ vd;W vdf;F njhpahJ. gp.rh.M. 4I itj;Jf;nfhz;L rpd;dKj;jd; kfd; rpd;dKj;jDf;F r.vz;.14/1 ghj;jpak; vd;W nrhy;y KbahJ vd;why; rhpjhd;. nghJthf xU

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nrhj;jpd; mDgtj;jp;y; ,Uf;Fk;NghJ mJgw;wp tUtha;Jiwapy; gl;lh Nfhhp tpz;zg;gk; nra;jhy; mjid Neubahf ehq;fs; ghHitapl;L tpz;zg;gjhuhpd; mDgtj;jpy; nrhj;J cs;sjh vd;gij Ma;T nra;J mwpf;if rkHg;gpg;Nghk;. msT nra;tJ cz;lh vd;why; rHNtj;Jiwaplk;jhd; Nfl;f Ntz;Lk;. 0.17 r.kP. vd;gJ vj;jid rJumb my;yJ vj;jid mb my;yJ vj;jid nrz;L vd;w tpguj;ij rHNtahplk;jhd; Nfl;fNtz;Lk;. gp.rh.M.3y; 0.17 r.kP. gug;G Fwpj;J jdpj;J vJTk; fhl;lg;gltpy;iy. gp.rh.M.3y; njd;tly; msT Nky;gf;fk; 92.8 kPl;luhfTk; fPo;g;gf;fk; 94.6 kPl;luhfTk; fpoNky; tlGwk; 22 kPl;luhfTk;> njd;Gwk; 22.8 kPl;luhfTk; kw;Wk; 2.4 kPl;luhfTk; Fwpg;gplg;gl;Ls;sJ vd;why; rhpjhd;. tiuglj;jpy; tPLfs; cs;s gFjp jdpahf msTfs; Fwpf;fg;gl;Ls;sJ. vdNt> me;j tPl;bd; msit fopj;Jtpl;lhy; kPjk; cs;s msTfs; r.vz;.14/1y; mlq;Fk; vd;why; rhpjhd;. 0.17 r.kP msT rpd;dKj;jd; kfd; rpd;dKj;jd; vd;w ngahpy; vt;thW gjpT nra;jhHfs; vd;w tpguk; vdf;F njhpahJ. mJ rhpah jtwh vd;gJk; vdf;F njhpahJ. jhth nrhj;ij ehd; ghHitapLk;NghJ r.vz;.14/1f;F tlGwk; rpd;dKj;jd; kfd; rpd;dKj;jd; tptrha epyk; cs;sJ. me;j tptrha epyj;jpy;jhd; mtuJ FbapUg;G tPL cs;sJ vd;why; rhpjhd;. rpd;dKj;jd; kfd; rpd;dKj;jd; mDgtj;jpy; ,Ue;jJ Fwpj;J vd;d Mtzk; jhf;fy; nra;jhH vd;W rHNtaiuj;jhd; Nfl;f Ntz;Lk;. gp.r.M.4y; 1 Kjy; 4 cl;gphpTfspy; midj;Jk; fpuhk ej;jj;ij muR Gwk;Nghf;fhf fhl;bj;jhd; msit gjpT nra;Js;Nshk; vd;why; rhpjhd;. fpuhk ej;jj;ij Gwk;Nghf;fhf khw;w muRf;F mjpfhuk; fpilahJ vd;why; vdf;F mJgw;wp njhpahJ. rpd;dKj;jd; kfd; rpd;dKj;jd; ngaUf;F ve;jtpjkhd thptpjpg;Gk; fpilahJ vd;why; rhpjhd;. xU egUf;F xU nrhj;J Fwpj;J fpuag; gj;jpuk; ,Uf;Fk;NghJ fpuaj;Jf;F tpNuhjkhf gl;lh toq;fpdhy; mJ jtW. ehs; 15 Mz;Lfshf fpuhk epHthf

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mYtyuhf ,Uf;fpNwd;. nghJthf ej;jk; epythpj; jpl;lk; vd;gjpy; epyclik Nkk;ghl;Lj; jpl;lj;jpd; Nghpy; tUtha;Jiw xU eghpd; nrhj;ij kw;nwhU egUf;F gl;lh toq;fp tp];jPuzq;fis $LjyhfTk;> FiwthfTk; Nghl;L tUtha;Jiwapduhy; jtW Vw;gLj;jg;gLk; vd;why; rhpjhd;. me;j khjphp tof;Ffs; epiwa jw;NghJk; MH.b.x.tplk; tprhuizapy; cs;sJ. th.rh.M.5>6 Mtzq;fs; vq;fs; tUtha;Jiwahy; nfhLf;fg;gl;lJ vd;why; rhpjhd;. vdJ ep&gz mtpltpl;by; Fwpg;gplg;gl;Ls;s 09.09.2002> 18.09.2002 Mfpa Njjpfspy; nfhLj;j kDtpy; r.vz;Zk;> fpuhk ngaUk; fhz;gpf;fg;gltpy;iy vdf; Fwpg;gplg;gl;Ls;sJ gw;wp vdf;F njhpahJ. th.rh.M.3>4 ,uz;Lk; jhth nrhj;jpw;Fhpa Mtzk; vd;why; rhpjhd;. th.rh.M.2 vq;fs; tUtha; Jiwahy; nfhLf;fg;gl;lJ vd;why; rhpjhd;. th.rh.M.2 mtHfs; mq;F FbapUg;gijf; fhl;Lk; Mtzk; vd;why; rhpjhd;. murhq;fj;jpd; rhHgpy; ,e;j tof;fpw;F vjpHtof;Fiu jhf;fy; nra;a ahH tptuk; nrhd;dhHfs; vd;W vdf;F njhpahJ. thjpAk;> thjpap;d; fztH kw;Wk; mtuJ rNfhjuHfs; ve;nje;j Njjpapy; jhth nrhj;Jf;F gl;lh Nfl;L kDf; nfhLj;jhHfs;. vjdhy; mtHfSf;F gl;lh toq;fg;gltpy;iy vd;w tpguk; vdf;F njhpahJ. vd;Dila ep&gz mtpltpl;by; nrhy;ypAs;sgb ve;jtpjkhd gjpYk; jhf;fy; nra;atpy;iy vd;why; rhpjhd;. ehd; ,lj;ij ghHitapLk;NghJk; jhth nrhj;jpy; rHNt fy; ,Ue;jjh vd;gij ehd; ghHf;ftpy;iy. ehd; ghHitapLk;NghJ ,Ue;j Fbir tPl;Lf;F fjT vz; ,Ue;jjh vd;gijAk;> ehd; ghHf;ftpy;iy. mJ gioa Fbir tPL. me;j Fbir tPL RkhH 10 tUlkhf ,Ue;jJ. mjpy; nfhl;lk;Nghl;L MLkhL fl;bapUe;jJ. Mdhy; Fbirapy; ahUk; FbapUf;ftpy;iy. jhth nrhj;ij ePjpkd;w MizaH ghHitapLk;NghJ ehd; ,y;iy. jhth nrhj;J vd;Dila tprhuizapy; ahUila mDgtj;jpy; ,Ue;jJ vd;W ehd; tprhhpf;ftpy;iy. vdNt> i\

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Fbiria ahH Nghl;lhHfs; vd;Wk; ehd; tprhhpf;ftpy;iy. ehd; nrhy;tJNghy; 10 tUlkhf ve;jtpjkhd FbirAk; fpilahJ vd;why; rhpay;y. xt;nthU tUlKk; [kge;jpf;F Kd;G vq;fs; Vhpahitg; ghHj;J khw;wk; Vw;gl;bUe;jhy; mwpf;if rkHg;gpg;Nghk; vd;why; rhpay;y. nrhj;J Nuhl;bd; Nky; cs;sJ. i\ Fbiria ahH Nghl;lhHfs;> jPHit Nghl;Ls;shHfsh vd;gijg; gw;wp ehq;fs; vJTk; tprhhpf;ftpy;iy. mjw;F fhuzk; jhth nrhj;ij Kjd;Kjyhf ehd; 03.01.2008-y; ghHj;Njd;. mjw;F Kd;dhy; mij ghHf;ftpy;iy. vdNt> fle;j 10 tUlkhf Fbir cs;sJ vd;gJ vd;Dila mDkhdk;jhd;. Mjpapy; jhth nrhj;J thjpapd; fztUf;Fk;> mtuJ rNfhjuUf;Fk; ghj;jpag;gl;lJ vd;why; rhpjhd;. thjpapd; fztH chpikahsuhf ,Uf;Fk;NghJ mtUf;F tpNuhjkhf rpd;dKj;jd; kfd; rpd;dKj;jDf;F gp.rh.M.4y; ngaiur; NrHe;jJ jtW vd;why; rhpjhd;. ePjpkd;wk; cj;juT toq;fpdhy; gl;lhit thjp ngaUf;F toq;f ehq;fs; jahuhf ,Uf;fpNwhk;.”

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When there is categorical admission by DW1, the Village

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Administrative Officer, that the village is Nalingaperi Village, Muthukrishnapuram Village, but the same comes under the Poovani Panchayat

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Limits, then the said contention of the defendants ought to be rejected. Infact the Ex.A14 is the sale deed dated 31.03.1962 executed in favour of the 4^th defendant husband and the said deed states that the land is in Poovani Village. But in the Ex.A15 is the sale deed dated 19.08.1983 executed in favour of the 4^th defendant

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husband states Nalingaperi Village. It is only in the 1983 the land comes under Nalingaperi Village, which means earlier the land had come under the Village Poovani. Later it was sub divided as Poovani and Nalingaperi villages but coming under Poovani Panchayat Limits. Therefore, the contention of the defendant is liable to be rejected and the Appellate Court had rightly rejected the contention of the defendants. Therefore, this Court is of the considered opinion that the suit land comes under Poovani Panchayat Limits. It is pertinent to observe the said suit site is situated at the end of Poovani village, since the east boundary is shown as Villupanur Village.

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It is seen the Appellate Court had taken the four boundaries mentioned in Ex.A14 and Ex.A15 and had rejected the claim of the plaintiff. The Appellate Court had held as under:

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“36. In Ex.A14 the southern boundary is stated to be the property of Ramasamy, Veeranan and Govindan and in Ex.A15 the southern owner is described as Veeranan. Ex.A15 is the document dated 19.03.1983. As per the plaint averments the plantiff hauband Rajaiah and her brother Muthukannan have purchased the plaintiff schedule property on 14.11.1972 as per Ex.A1. But Ex.A15 which is subsequent to Ex.A1 relating to the property north of plaint schedule describes the southern property as the property of Veeranan Ex.A15 is the document produced by plaintiff herself. The said document

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falsify the case of the plaintiff that after 1975 the plaintiffs husband was in possession and enjoyment of the plaint schedule property.”

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On perusing the Ex.A14 dated 31.03.1962 the deed states “south of Muthukumar vagayara punja land”, which means the suit property is on the northern side. Hence, it is evident the Appellate Court had taken the direction wrongly. Further it is seen that the second sale deed in Ex.A15 is situated further south of Ex.A14. It is evident that the Appellate Court’s judgement is total non-application of mind, besides being perverse. Therefore, this Court is of the considered opinion that the plaintiff had proved that the suit property on the northern side of the Ex.A14 and Ex.A15 both are the sale deeds executed in favour of the defendants. Further the Appellate Court failed to see that the extent of the both the properties is different, then naturally the four boundaries would differ. Therefore, by simply stating that the plaintiff name is not in the four boundaries in Ex.A15 is total non-application of mind.

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It is pertinent to state that the said Muthukumar stated in Ex.A14 sale deed (which is executed in favour of 4^th defendant’s husband) is the plaintiff’s vendor and this vital fact was not taken into consideration by the Appellate Court. If this vital fact is taken then the finding of the Appellate Court that the plaintiff

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failed to prove the suit property belonging to the previous vendor falls to ground. Infact the entire judgment of the Appellate Court revolve around that the plaintiff had not proved that the property belongs to Karuppanan. On perusing the Ex.A14 it is seen that the property belongs to Muthukumar vagayara. The said Karuppanan is the son of Muthukumar. Hence the Ex.A14 terms the said land belongs to “Muthukumar vagayar” i.e. it belongs to Muthukumar family. Since the plaintiff failed to produce the earlier document which was executed in favour of the said Muthukumar’s family by Thosai and Lakshmanan, the document executed by the said Muthukumar vagayar in favour of plaintiff would not become unproved. Further on one hand the defendant is having a patta, that too the patta was issued in the year 1982 and on the other hand the plaintiff is having a sale deed executed in the year 1972, then the plaintiff is having better title than the defendant. Therefore, this Court is of the considered opinion that both the Courts had failed to appreciate the fact that the plaintiff’s sale deed gives a better title to the plaintiff than the defendant’s patta.

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At this juncture the Learned Counsel appearing for the defendants vehemently objected that the facts cannot be reappreciated in second appeal stage. It is the settled principle of law that facts cannot be reappreciated at second appeal

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stage. But if the facts and documents clearly prove the plaintiff’s title especially the sale deed then the Courts below had failed to appreciate the probability of title, then the same would amount to perversity, then the Courts have power to interfere at second appeal stage. As held supra both the Courts had failed to appreciate the deposition of the DW1, wherein it is categorically states that the Chinna Muthan’s son Chinna Muthan was not granted any “patta number” . Also has stated it is not known how the name of Chinna Muthan’s was added in the list of pattadars. Further stated Ex.B4 would not be prove the possession in favour Chinna Muthan. Therefore, the finding in the Appellate Court that the defendants were granted patta for the suit property is absolutely perverse. Further, when the DW1 had admitted it is not known how the patta was issued in the name of 4^th defendant husband Chinnamuthan, then the Courts below have erred in accepting Ex.B4. Then the said admission would come under section 58 of Indian Evidence Act. As rightly pointed out the said patta was issued without issuing notice to the plaintiff. Therefore, this Court is of the considered opinion the said patta will not confer titled to the defendants. The 2^nd and 4^th substantial questions of law are held in favour of the plaintiff and against the defendants.

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The defendants submitted that they are in long possession of the

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property and hence based on patta the suit property belongs to the defendants. This Court is of the considered opinion that the claim of the defendants 4 to 6 is based on encroachment, then the encroachers cannot claim protection. Further even though the defendants claim adverse possession, the defendants had not come out with the clear pleadings from when the defendants were in possession with the knowledge of the plaintiff. When there is no pleading in the written statement regarding the date of possession, from which date the plaintiff has knowledge, the said plea cannot be accepted. Furthermore, the defendants had not filed any counter claim and had not paid any court fees for the counter claim, hence the contention of the defendants is rejected.

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Interestingly the official defendants have denied the sale deeds, settlement deeds of the plaintiffs. This Court is at loss how the official defendants have knowledge on the personal documents of the parties.

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Based on the aforesaid discussions, all the substantial questions of law are answered in favour of the plaintiff and against the defendants. The Judgment and Decree passed in A.S.No.33 of 2008 dated 23.12.2010 on the file of

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the Sub-Court, Srivilliputhur confirming the Judgement and Decree passed in

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O.S.No.461 of 2004 dated 15.02.2008 on the file of the Additional District Munsif Court, Srivilliputhur are set aside. The second appeal is allowed. Connected Civil Miscellaneous Petitions are closed. No costs.

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13.02.2025

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Index : Yes / No NCC : Yes / No

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KSA

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TO: