(Prayer:Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 23.01.2003 made in A.S.No.15 of 2002 on the file of the Additional Subordinate Court, Dindigul, reversing the Judgment and decree dated 06.07.2000, made in O.S.No.772 of 1998 on the file of the II Additional District Munsif Court, Dindigul.)
1. This Second Appeal has been filed against the judgment and decree dated 23.01.2003 made in A.S.No.15 of 2002 on the file of the Additional Subordinate Court, Dindigul, reversing the Judgment and decree dated 06.07.2000, made in O.S.No.772 of 1998 on the file of the II Additional District Munsif Court, Dindigul.
2. The appellant is the plaintiff, who succeeded in the Trial Court, but lost in the first appellate Court. The respondent is the defendant.
3. Facts of the case:-
(i) The appellant filed suit in O.S.No.772 of 1998, before the II Additional District Munsif Court, Dindigul, for declaration and permanent injunction restraining the respondent from interfering with his peaceful possession and enjoyment of the suit property.
(ii) According to the appellant, the property originally belonged to one Vaiyapuri. He owned 5 acres 42 cents in S.No.362 apart from other properties. After his death, his four sons, viz., Palaniyandi, Aandi, Murugan and Subban partitioned all the properties orally including the property measuring 5 acres 42 cents in S.No.362. His first son Palaniyandi was allotted 90 cents, Aandi and Murugan were allotted 1 acre 35 cents each, and Subban was allotted 1 acre 80 cents in S.No.362 apart from other properties in other survey numbers. After the death of Palaniyandi, his three sons, viz., Subban, Vaiyapuri and Shanmugam partitioned orally all the properties allotted to Palaniyandi and 90 cents in S.No.362 was allotted to the share of second son Vaiyapuri along with other properties. The other two sons viz., Subban and Shanmugam were allotted properties in other survey numbers.
(iii) One Chandra Nadar purchased larger extent of 2 acres 70 cents by the Deed of Sale, dated 13.10.1939, namely, 1 acre 35 cents each from Aandi and Murugan, sons of senior Vaiyapuri, the original owner.
(iv) After the death of Chandra Nadar, the appellant purchased 1 acre 60 cents in S.No.362/1, by the Deed of Sale, dated 14.05.1970 from Lakshmanan, S/o.Chandra Nadar. The appellant also purchased further extent of 90 cents from one Perumal Pillai, by the Deed of Sale, dated 04.08.1976. The said Perumal Pillai purchased the said properties from one Vaiyapuri [Grandson of senior Vaiyapuri, the original owner], who is the paternal uncle of the respondent.
(v) From the date of purchase, the appellant is in possession and enjoyment of the suit property by paying kist and carrying on poultry business. He suffered loss in poultry farm business and therefore, he constructed shops in a portion of the building and rented out the same to the Mosaics Company and others. In a portion of the property, he dug a borewell and obtained electricity connection in N.S.Nos.605 and 651 and carrying on agricultural activities.
(vi) The respondent taking advantage of the fact that patta still stands in his ancestor's name and not changed in the name of the appellant, tried to interfere with the peaceful possession and enjoyment of the appellant. Hence, the appellant has filed the suit for the relief stated above.
(vii) The respondent filed written statement and denied various averments made in the plaint. He admitted the Deed of Sale, dated 13.10.1939, measuring 2 acres 70 cents in favour of Chandra Nadar by Aandi and Murugan [Paternal Grandfather of the respondent]. He disputed the sale of 90 cents, dated 13.12.1975 by Vaiyapuri, Paternal Uncle of respondent to Perumal Pillai and subsequently, by the Deed of Sale, dated 04.08.1976 to the appellant by Perumal Pillai.
(viii) According to the respondent, in the suit property, the respondent's father Subban, Paternal Uncles Vaiyapuri and Shanmugam each were allotted 45 cents. His one of the Paternal Uncle Shanmugam sold his 45 cents to his father-in-law - Silambakudumban. The respondent's father Subban purchased the said 45 cents from Silambakudumban 35 years back. The respondent's father, thus, became owner of 90 cents. Therefore, the Deed of Sale, dated 13.12.1975 in favour of Perumal Pillai and the subsequent Deed of Sale, dated 04.08.1976 in favour of the appellant, are invalid as Vaiyapuri, the vendor of Perumal Pillai, did not have title to 90 cents. In the Chitta and Patta filed by the appellant, the names of the appellant, respondent and others are shown as joint owners. Therefore, the appellant was never in exclusive possession and enjoyment of 90 cents.
(ix) The respondent filed additional written statement and stated that the appellant has not properly valued the suit and has not paid proper Court fee and further stated that he has not shown the proper boundaries.
(x) The appellant filed reply statement and denied all the averments made in the additional written statement.
(xi) Based on the pleadings, the learned II Additional District Munsif, Dindigul, framed necessary issues.
(xii) Before the Trial Court, the appellant examined himself as P.W.1 and three other witnesses were examined as P.Ws.2 to 4 and marked 11 documents as Exs.A.1 to A.11. On behalf of the respondent, the respondent examined himself as D.W.1 and one Gopinathan was examined as D.W.2 and four documents were marked as Exs.B.1 to B.4. The Commissioner filed his report along with the sketch. These documents were marked as Court documents i.e., Exs.C1 and C2.
(xiii) The learned II Additional District Munsif, Dindigul, considering the pleadings, oral and documentary evidence adduced by the parties and arguments of the learned counsel appearing for the parties, decreed the suit and held that the respondent did not prove that his father and his paternal uncles were allotted 45 cents each in S.No.362 and that his paternal uncle Shanmugam sold his share to his father-in-law and his father purchased 45 cents from the father-in-law of his paternal uncle Shanmugam. The learned II Additional District Munsif, Dindigul, also took note of the fact that the respondent did not dispute the title of the appellant in respect of 1 acre 60 cents in the suit property.
(xiv) Against the said judgment and decree, dated 06.07.2000, the respondent has filed A.S.No.15 of 2002 before the Subordinate Court, Dindigul.
(xv) The learned Subordinate Judge, Dindigul, framed necessary points for consideration.
(xvi) The learned Subordinate Judge considering the pleadings, oral and documentary evidence, judgment of the Trial Court and arguments of the learned counsel for the parties, by judgment and decree, dated 23.01.2003, allowed the appeal holding that the learned II Additional District Munsif, Dindigul, has wrongly cast the burden of proof on the respondent for decreeing the suit, on the ground that the respondent failed to prove the oral partition and purchase of 45 cents by his father. The learned Subordinate Judge, Dindigul, allowed the appeal and dismissed the suit in entirety, by the judgment and decree, dated 23.01.2003.
4. Against the said judgment and decree, dated 23.01.2003, the present second appeal is filed.
5. At the time of admitting the second appeal, this Court framed the following substantial question of law:
Whether the learned first appellate Judge is correct in dismissing the entire suit, while the defendant himself admitted the title of the plaintiff with respect of 1 acre 90 cents out of the total extent of 2 acres 54 cents in S.No.362/1 of Seelapadi Village?
6. At the time of hearing of the second appeal, the following second substantial question of law is framed.
Whether the learned Subordinate Judge erred in law in rejecting Exs.A.3 and A.4, when the respondent has not challenged the validity of the same in the competent Court?
7. The learned counsel for the appellant contended that the learned Subordinate Judge erred in dismissing the suit in entirety, when the respondent did not dispute the title of the appellant with regard to 1 acre 60 cents. The learned Subordinate Judge erred in holding that the appellant is not in possession of the suit property. The appellant has proved his possession and enjoyment of the property by marking Ex.A.6 series to Ex.A.9. The respondent is disputing Ex.A.4 - Sale Deed, dated 13.12.1975 and Ex.A.3, dated 04.08.1976 with regard to purchase of 90 cents by the appellant and his vendor. The respondent has not challenged the said documents in any competent Court and unless those documents are declared as null and void, they are valid documents. The learned Subordinate Judge has failed to see that the respondent failed to prove the title and possession of his father and the documents marked by the respondent do not show that he is in exclusive possession of the suit property.
8. The learned counsel for the appellant relied on the judgment of this Court reported in AIR 1975 Madras 51 [Veerasekhara Varmarayar Vs. Amirthavalliammal] and submitted that there is no compulsion on the appellant to file rejoinder challenging the various allegations made in the written statement. The failure to file any rejoinder cannot be treated as admission of averments made in the written statement. The learned counsel for the appellant further submitted that the appellant has filed reply denying various allegations made in the additional written statement.
9. Per contra, the learned counsel for the respondent submitted that the respondent has not given the four boundaries of his purchase by Exs.A.2 and A.3. In the absence of boundaries, it cannot be said that both the properties are adjacent properties. The respondent disputed Exs.A.3 and A.4 and the appellant failed to examine his vendor and mere marking of document does not amount to proof of contents of such documents and the contents have to be proved independently. The appellant has not proved two oral partition and extent of properties allotted to the sons of original owner Vaiyapuri and subsequently, to their sons. The appellant, without there being any pleading, has let in evidence with regard to his title and evidence without pleadings cannot be taken into consideration by the Courts. The burden of proof is on the appellant and he failed to discharge the said burden and the learned II Additional District Munsif erroneously decreed the suit, holding that the respondent failed to prove his case. The respondent has proved his possession by Exs.B.1 to B.4.
10. The learned counsel for the respondent relied on the judgments of this Court reported in 1997 (II) CTC 517 [Kousalya Ammal Vs. Valliammai Ammal and another] and2011 (1) MLJ 509 [Shanmugam Vs. Elumalai Gounder and others] and submitted that mere marking of document does not amount to proof of contents of such document and the contents have to be proved independently.
11. The learned counsel for the appellant in his reply contended that Exs.A.3 and A.4, are of the years 1976 and 1975 respectively and the suit is filed in the year 1998 and therefore, as per Sections 61 to 63 of the Evidence Act, the contents of the documents are presumed to be proved by marking the same. Further, as far as Ex.A.3 is concerned, the appellant is party to the document as a purchaser and he deposed that he purchased the property by Ex.A.3 and thus, proved the contents.
12. I have carefully perused all the materials available on record and the judgment and decree of the Courts below and the judgments relied on and considered the arguments advanced by the learned counsel appearing for the parties.
13. At the out set, I hold that the learned Subordinate Judge, Dindigul, erred in dismissing the suit with regard to 1 acre 60 cents, when the respondent has not disputed the purchase, title and possession of the appellant.
14. As far as the second question of law is concerned, the appellant has claimed title to 90 cents of suit property, by purchase from one Perumal Pillai by Ex.A.3. The said Perumal Pillai purchased the property from Vaiyapuri, the paternal uncle of the respondent. Both the appellant and the respondent claimed that the properties were partitioned among the legal heirs only by oral partition and specific shares were allotted to the legal heirs.
15. In view of the oral partition claimed by both the parties, no document was filed by both the appellant and the respondent to substantiate the allotment of shares to the legal heirs. The respondent admits that his paternal uncle Vaiyapuri was allotted 45 cents and his father and other paternal uncle were allotted 45 cents each. According to the respondent, his father purchased the share of his paternal uncle Shanmugam and became owner of 90 cents, but he has not filed any document to show that his father purchased 45 cents and became owner of 90 cents. He has also not explained as to what happened to 45 cents allotted to his paternal uncle Vaiyapuri. He has not produced any document to show that he is in exclusive possession and enjoyment of 90 cents of suit property. Exs.B.1 to B.3 do not advance the case of the respondent that he is the absolute owner of 90 cents of suit property. These documents reveal the names of original owners along with the appellant and the respondent as owners. Further, the report of the Advocate Commissioner and Sketch reveal that the entire 2 acres 50 cents are in possession and enjoyment of the appellant. The respondent also admitted that he sold various other properties situate in the Village, where the suit property is situated and he is not residing in that place. The appellant has filed Ex.A.6 series to Ex.A.9 to prove his possession. The appellant also produced Exs.A.10 and A.11, whereby the other legal heirs had also sold properties allotted to them. The learned Subordinate Judge failed to consider Ex.A.1 to A.11 in proper perspective. The learned Subordinate Judge failed consider that the respondent did not initiate any legal proceedings challenging Exs.A.3 and A.4. In the circumstances, the second substantial question of law is answered in favour of the appellant, holding that the learned Subordinate Judge erred in law in allowing the appeal.
16. This Court in the judgment reported in 2010 (4) TLNJ 223 (Civil) [Smt.Annammal Vs. Mr.Ammavasai and another] has held that Patta is not a document of title and it does not confer or extinguish title to the property and the Courts must independently consider and decide the question of title. The relevant portion of the said judgment reads as follows:
12.It is appropriate to consider the decisions relied upon by both sides. The learned counsel for the appellant would rely upon the following decisions to the effect that the patta is not the title of the document:
(1) 1962 (1) MLJ 197 in (Valliammai Achi v. Velu Servai and others), it was held as follows:
".. .. Patta is not a document of title. Mere absence of a patta in one's name cannot derogate from the title of that person."
(2) 1999 (3) CTC 650 in (Guruvammal and another v. Subbiah Naicker and others), it was held as follows:
"21. .. .. Revenue records does not create or extinguish the title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question."
(3) 1999 (3) CTC 304 in (Kammavar Sangam through its Secretary R.Krishnasamy v. Mani Janagarajan), it was held as follows:
".. .. Reliance on patta cannot be made to prove title as patta which mutates entries cannot convey or extinguish right over property. "
(4) 2003 (2) LW 152 in Varadarasu @ Devarasu v. Malone Veerasamy @ Thanapal and 2 others), it was held as follows:
"22. .. .. Reliance on patta cannot be made to prove title as patta which mutates entries can not convey or extinguish right over property."
27. .. .. The issue of documents by the Revenue Department is shrouded in suspicion. There is absolutely noting to show as to what kind of enquiry was conducted and as to whether the defendant had any notice of the proceeding, in that admittedly, he was in possession on the date of the suit. The documents produced on the side of the plaintiffs in the instant case being only self serving documents, the lower Appellate Court was in error in placing any reliance on them as supporting the case of the plaintiffs."
(5) 2005 (2) LW 196 in (M.E.A. Mohamed Ali and 6 others v. The District Revenue Officer, Ramnad Collectorate, Ramanathapuram and 2 others) it was held as follows:
"2.The dispute relates to entries in the revenue records. It is well settled that entries in the revenue records does not create or extinguish title nor has it any presumptive value vide M.T.W.Tenzing Namgyal and others v. Motilal Lakhotia and Others, JT 2003 (5) SC 173, Balwant Singh v. DaulatSingh, 1997(7) SCC 137 and Smt.Sawarni v. Smt.Inder Kaur and others, 1996 (7) JT SC 580. Such entries are only for the purpose of payment of land revenue. Hence the parties aggrieved by such entries in the revenue records should get their rights adjudicated in a civil suit."
13.The above citations clearly show that patta is not document of title. Patta will not confer or extinguish title to the property. The learned counsel for the appellant relied upon the decision reported in 2005 (2) LW 196, in which the issues of patta in favour of the party by a revenue authority is not binding in the civil Court and the Civil Court will decide the rights of the parties independently. ....
17. The appellant has claimed title based on the sale deeds Exs.A.1 to A.4 and Exs.A.3 and A.4 relate to 90 cents of land in the suit property. He also marked Ex.A.6 series to Ex.A.9 to prove his possession. The respondent claims title to 90 cents as per oral partition, patta and chitta. In the documents filed by the respondent also, the respondent is not shown as exclusive owner of 90 cents of the land. It is only a joint patta. The respondent did not produce any document like Sale Deed, Gift Deed or Settlement Deed to prove his title against the claim of the appellant based on the Sale Deeds. The learned Subordinate Judge failed to consider this well settled proposition of law and committed error in allowing the first appeal.
18. In the result, the second appeal is allowed. The judgment and decree dated 23.01.2003, made in A.S.No.15 of 2002, is set aside and the judgment and decree, dated 06.07.2000, made in O.S.No.772 of 1998, is confirmed. No costs. Consequently, the connected civil miscellaneous petition is closed.