Velaiya Gounder (Deceased) v. Annamalai(Died)

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 13.02.2020 Date of Verdict : 24.02.2020

CORAM

THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN S.A.No.1859 of 2004 1.Vellaiya Gounder (Deceased) 2.Annadurai 3.Gunasekaran 4.Jagadeesan 5.Padma ... Appellants /Appellants/Defendants (5th Appellant brought on record as legal heirs of the deceased 1st Appellant vide order of the Court dated 27.04.2018 made in C.M.P.No.512 of 2015 in S.A.No.1859 of 2004) Vs.

1.Annamalai (Died) 2.A.Theethiammal 3.H.A.Arunachalam 4.A.Elangovan 5.A.Roja ... Respondents/Respondents/Plaintiffs/ LRS of Plaintiff (Respondents 2 to 5 are brought on record as legal heirs of the deceased Sole Respondent viz., Annamalai vide order of the Court dated 20.09.2019 made in C.M.P.Nos.16206, 16208 and 16209 of 2019 in S.A.No.1859 of 2004) Prayer :- This Second Appeal is filed under Section 100 of Civil Procedure Code against the Judgment and Decree dated 22.06.2004 made in A.S.No.91 of 2003 on the file of the Subordinate Judge's Court at Dharmapuri confirming the Judgment and Decree dated 30.09.2003 made in O.S.No.202 of 1996 on the file of the District Munsif Court at Harur. For Appellant : Mr.I.C.Vasudevan For R1 : Died For R2 : Ex-parte (Vide Court Order dated 30.10.2019) For R3 to R5 : Notice served

J U D G M E N T

This appeal has been filed as against the Judgment and Decree dated 22.06.2004 made in A.S.No.91 of 2003 on the file of the Subordinate Court at Dharmapuri confirming the Judgment and Decree dated 30.09.2003 made in O.S.No.202 of 1996 on the file of the District Munsif Court at Harur. 2.For the sake of convenience, the parties are referred to as per their ranking in the trial Court. 3.The case of the plaintiff in brief is as follows :- 3.1.The suit is filed for injunction. The suit property belonged to the plaintiff ancestrally and through oral exchange. The plaintiff and the first defendant have orally partitioned their ancestral properties before 17 years. In the said oral partition, the plaintiff was allotted a part of the suit property and other lands as his share. The first defendant was allotted some other lands as his share.

The part of the suit properties were exchanged between the plaintiff and the first defendant through oral exchange after the partition. The plaintiff and the defendants are living separately for the past 17 years and cultivating their respective lands. Thus the plaintiff is in exclusive possession and enjoyment of the suit property for the past 17 years. Without notice and behind the back of the plaintiff, the first defendant had entered his name for the suit properties as joint pattadar and the first defendant also obtained separate patta without the knowledge of the plaintiff. The Thasildar, Harur had cancelled the patta issued in the name of the first defendant after enquiry and issued patta in the name of the plaintiff by an order dated 15.05.1995. The plaintiff is also paying kist for the suit property. While being so, on 27.04.

1996, the defendants have illegally attempted to tress-pass into the suit property to cause disturbances to the plaintiff's peaceful possession and enjoyment of the suit property. Hence the suit. 4.Resisting the same the defendants filed the written statement stating that the suit property is not at all belonged to the plaintiff and they denied the entire averments and allegations made in the plaint as false and frivolous. There was no oral exchange between the plaintiff and the first defendant. The patta issued in favour of the plaintiff is not a valid one, since he is not entitled for any patta. In fact, even before 43 years there was a partition and after partition, the plaintiff and the first defendant were cultivating their respective shares.

In the suit property, the first defendant constructed the house and obtained electricity connection and he is in possession and enjoyment of the suit property and hence prayed for dismissal of the suit.

5.On the side of the plaintiff PW1 was examined and

sixteen documents were marked as Ex.A1 to Ex.A16. On the side of the defendants DW1 to DW3 were examined and Ex.B1 to Ex.B10 were marked in their favour. The Advocate Commissioner's report and rough sketch were marked as Ex.C1 and Ex.C2. On considering the oral and documentary evidences adduced by the respective parties and the submission made by the learned counsel, the trial Court decreed the suit in favour of the plaintiff. Aggrieved over the Judgment and Decree of the trial Court, the defendants preferred an appeal suit in A.S.No.91 of 2003 before the Subordinate Court, Dharmapuri. The first appellate Court on appreciating the materials placed on records dismissed the appeal, by confirming the Judgment and the Decree passed by the District Munsif Court, Harur. Challenging the same, the defendants have come forward with the present second appeal.

6.At the time of admission of the second appeal on 17.09.2004 the following substantial questions of law were framed :- "(i) When the case of oral partition and oral exchange was pleased by the respondent and in the absence of any evidence in support there of, whether the Courts below are justified in granting decree without giving any finding as to whether the case of oral and exchange of oral partition was made out by the respondent as claimed by him?

(ii) When the adangal from fasli 1382 to 1404 and patta, chitta, kist receipts and property tax receipts, electricity consumption charges marked as Exs.B1 to B10 stands in the name of the first appellant and when the documents of the respondent relates to the period after the dispute, whether the Courts below are correct in law in granting decree for injunction?"

7.Heard Mr.I.C.Vasudevan, learned counsel appearing for the defendants/appellants is present. Though notice was served to the plaintiff/respondents, no one appeared on behalf of the respondents.

8.The learned counsel appearing for the defendants submitted that the plaintiff and the first defendant are brothers. They have partitioned their ancestral properties and they are in possession and enjoyment of their respective shares. There was no oral exchange between the plaintiff and the first defendant in respect of the suit properties. In fact, the plaintiff submitted an application before the Thasildar, Harur and obtained patta in his favour behind the back of the first defendant. He submitted that in the application without issuing any notice to the first defendant, the Thasildar, Harur passed an order and directed to issue

separate patta in favour of the plaintiff. Aggrieved by the same, the first defendant filed a revision before the Revenue Divisional Officer, Dharmapuri and the same was dismissed by an order dated 06.08.1997. Again aggrieved by the said order, the first defendant filed a revision before the District Revenue Officer, Dharmapuri. While pending the said revision, the present suit was filed by the plaintiff and as such the District Revenue Officer, Dharmapuri dismissed the revision and directed the first defendant to file a necessary petition after the final verdict of the Civil Court in O.S.No.202 of 1996. Admittedly, the first defendant was never issued any notice by the Thasildar, Harur, while ordering change of patta in favour of the plaintiff.

Now based on the patta, the plaintiff sought for injunction in respect of the suit properties. Even till today, the defendants are residing in the suit properties and they are continuously paying electricity bill in the name of the second defendant and paying tax in their names. Though the patta issued in favour of the plaintiff, it would not prescribed any title over the suit properties. Therefore, both the Courts below erroneously held in favour of the plaintiff only on the basis of the patta and the orders passed by the Revenue Authorities. 9.Admittedly, the plaintiff and the first defendant are brothers, they have partitioned their ancestral properties. Thereafter, they are in possession and enjoyment on the respective shares and cultivating the same separately.

According to the plaintiff, after the partition, there was an oral exchange between the plaintiff and the first defendant in respect of the suit properties. Accordingly, the plaintiff had applied for patta and by an order dated 15.05.1995, the Thasildar, Harur directed to issue separate patta in favour of the plaintiff, which was marked as Ex.A3. The first defendant challenged the order dated 15.05.1995 before the Revenue Divisional Officer, Dharmapuri and the same was dismissed by an order dated 06.08.1997, which was marked as Ex.A4. Aggrieved by the same, again the first defendant filed a revision before the District Revenue Officer, Dharmapuri and the same was dismissed by an order dated 11.02.2002, which was marked as Ex.A5. While pending the said revision, the plaintiff filed the present suit in O.S.No.

202 of 1996 on the file of the District Munsif Court, Harur for injunction. Therefore, the Revisional Authority viz., District Revenue Officer, Dharmapuri directed the first defendant to file a petition subject to the result of the suit in O.S.No.202 of 1996.

10.The learned counsel for the defendants rightly pointed out that the Thasildar, Harur passed an order without issuing any notice to the first defendant, since the plaintiff had applied for separate patta, by canceling the joint patta and the joint patta was issued in favour of the plaintiff and the first defendant, which was marked as Ex.A13. Therefore, the Thasildar, Harur ought to have issued notice to the first

defendant before passing the said order. However, the appeal filed by the first defendant also dismissed by the Revenue Divisional Officer, Dharmapuri and the revision also dismissed by the Appellate Authority viz., District Revenue Officer, Dharmapuri. Though the revision was dismissed, the first defendant was directed to file an appropriate petition after the verdict of the Civil Court in O.S.No.202 of 1996. 11.On perusal of the records, the defendants are in possession and enjoyment of the suit properties. In fact, the electricity service connection stands in the name of the second defendant and he is paying the electricity charges in his name. They also paid property tax in their names and they proved their possession and enjoyment in the suit properties.

In fact, the Advocate Commissioner's report revealed that there is a house in the suit property and the electricity service connection also stands in the name of the second defendant. Even then, both the Courts below found that when the patta stands in the name of the plaintiff, there is no question of electricity service connection stands in the name of the second defendant and did not believe the Advocate Commissioner's report. Only on the basis of the Ex.A3 to Ex.A5, the trial Court concluded that the property belonged to the plaintiff and decreed the suit.

12.In support of his contention, the learned counsel appearing for the defendants relied upon the Judgment reported in 2014 (3) CTC 785 in the case of Amsaveni Vs. The District Revenue Officer, Madurai and others. The relevant portion of the Judgment is extracted as under:

"15. The present Writ Petition is against the order of the first respondent restoring the patta in the name of the fourth respondent. Therefore, in this Writ Petition, under Article 226 of the Constitution of India, this court cannot go into the title of the parties. Any opinion by this Court on the validity of the settlement deed and cancellation deed would prejudice the interest of the parties.

Already, the fourth respondent filed a Cvil Suit in O.S.No.107/2011 for permanent 16 injunction. But no relief as to title is sought in the suit. On the date of filing the suit, the order of the second respondent was in force. The allowance or dismissal of the suit would also not confer any title over the parties as the appropriate relief would be to file a suit for declaration.

16. Patta is not a document conferring title, unless the same is issued by the Government by way of assignment. When there is a dispute regarding title based on documents and possession, it is only the

civil court, which will have jurisdiction.

In this case, both the Appellate Authority, the second respondent herein and the Revisional Authority, the first respondent herein have gone into the question of title, which they cannot to do so. If there is a cloud over the title, they must have relegated the parties to approach the Civil Court. In the order impugned, the first respondent has restored the patta in the name of the fourth respondent, which was issued by the third respondent, without hearing the petitioner."

13.In the above case, this Court held that Patta is not a document conferring title and there is a dispute regarding the title based on documents and possession, it is only the Civil Court, which will have jurisdiction to deal with the issue. In the case on hand, the plaintiff claimed the title over the suit properties only on the basis of the patta issued in his favour.

14.On perusal of Ex.A3 to Ex.A5, it is seen that behind the back of the first defendant, the plaintiff had applied for patta and without issuing any notice to the first defendant, the Thasildar, Harur passed an order dated 15.05.1995 in favour of the plaintiff. Though the appeal was preferred by the first defendant and the same was dismissed by the Revenue Divisional Officer, Dharmapuri by an order dated 06.08.1997. Again aggrieved by the said order, the first defendant filed a revision before the District Revenue Officer, Dharmapuri. While pending the said revision, the present suit was filed by the plaintiff and as such the District Revenue Officer, Dharmapuri dismissed the revision and directed the first defendant to approach the concerned authorities after the final verdict of the Civil Court in O.S.No.202 of 1996.

Therefore, the Thasildar, Harur did not conduct proper enquiry and without giving any opportunity of hearing to the first defendant issued patta in favour of the plaintiff behind the back of the first defendant. 15.Both the Courts below upholding that the plaintiff is entitled for injunction against the first defendant based on the patta and the orders passed by the Revenue Authorities. As such, this Court constraint to interfere with the finding of the Courts below. Therefore, the finding of the Courts below are perverse and against law and also against the evidence on record. Accordingly, the substantial questions of law, formulated by this Court in this Second Appeal, are answered in favour of the defendants and as against the plaintiff.

16.In fine, this Second Appeal stands allowed. Both the Judgments and Decrees passed by the Courts below are set

aside. Consequently, the suit filed by the plaintiff is dismissed. No order as to costs.

Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar ah To 1.The Subordinate Judge, Dharmapuri.

2.The District Munsif, Harur.

Copy To The Section Officer, V.R. Section, High Court, Madras.

+1cc to Mr.I.C.Vasudevan, Advocate, S.R.No.15918 S.A.No.1859 of 2004 GJ(CO) GN(29/09/2020)