(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, praying to set aside the decree and judgment passed in A.S.No.46 of 1992 on the file of the I Additional Sub Judge, Madurai and allow the Second Appeal throughout with cost.)
1. The defendants in the suit in O.S.No.46 of 1992 on the file of the Additional District Munsif Court, Thirumangalam are the appellants in the above second appeal.
2. The respondent / plaintiff filed a suit in O.S.No.46 of 1992 on the file of the Additional District Munsif Court, Thirumangalam, for permanent injunction restraining the appellants / defendants from in any way interfering with the respondent's / plaintiff's peaceful possession and enjoyment over the suit property.
3. The suit property is an extent of eastern 31 cents out of 8 acres 52 cents in Survey No.6/1, Karadipatti Village, Madurai North Taluk. The suit property is described in the plaint with reference to four boundaries.
4. The case of the respondent / plaintiff is that the suit property had been purchased by the respondent / plaintiff under a registered sale deed dated 02.04.1974. According to the respondent / plaintiff, the suit property originally belonged to one Puliyan, son of Nagamalai Moopan and that from the said Puliyan, the suit property passed on to different persons and finally to the respondent / plaintiff. The respondent / plaintiff, therefore, claimed title through the said Puliyan, son of Nagamalai Moopan. The certified copies of the previous title deeds dated 06.12.1963, 11.09.1964 and 22.11.1973 were also produced by the respondent / plaintiff along with the plaint.
5. It is the case of the respondent / plaintiff that even when some lands including a portion of the suit property was sought to be acquired by the Government, the predecessor in interest of the respondent / plaintiff, one Manickam Pillai was given notice acknowledging his tile to the suit property. Since the defendants / appellants, who have no interest or title over the suit property, tried to interfere with the respondent's / plaintiff's possession and enjoyment, the respondent stated that he was constrained to file the suit.
6. The appellants / defendants filed a detailed written statement inter alia denying the respondent's / plaintiff's title to the suit property and questioning the sale deed by which the respondent / plaintiff claimed title.
7. It is the specific case of the appellants / defendants that the respondent's / plaintiff's predecessor in interest namely Puliyan, son of Nagamalai Moopan has no title to the suit property and that the alienations referred to in the plaint, according to the defendants / appellants, are null and void. After specifically denying each and every averment in the plaint, the appellants / defendants contended that one Kaluvayee Ammal of Karadipatty village was the original owner of the entire extent of lands, namely, 8 acres 52 cents in Old Survey No.6/1 and that the said Kaluvayee Ammal died in the year 1951 leaving behind her two sons by name Rama Thevar and Karuppiah Thevar, first appellant herein. According to the appellants, Rama Thevar died in the year 1954 leaving behind his three sons, namely, defendants 4, 6 and 7. It was also the case of the appellants that the defendants 2 and 3 are the sons of first defendant Karuppiah Thevar. 5th defendant is the son of fourth defendant. Hence, according to the appellants, the entire property in Old Survey No.6/1 devolved on the heirs of Kaluvayee Ammal, namely, the appellants. They further contended that patta was also transferred in the name of first defendant and in the name of the sons of Ramathevar.
8. The trial Court framed necessary issues and after considering the pleadings and evidence let in by both sides, came to the conclusion that the title of plaintiff's predecessor in interest had been admitted by the predecessor in interest of the appellants in the sale deed under Ex.A15 executed by the first defendant's father. Since the documents filed by the appellants / defendants do not support their case that the entire extent of 8 acre 52 cents in Old Survey No.6/1 was assigned to Kaluvayee Ammal, the lower Court also found that the appellants / defendants have not proved their title. The trial Court considered all the documents and the evidence on both sides before rendering specific findings on the relevant issues. Aggrieved by the judgment and decree of the trial Court, the appellants / defendants preferred an appeal in A.S.No.44 of 2000 before the First Additional Sub Court, Madurai and the appellate Court also fell in line with the trial Court. The appellate Court framed issues on the question of title and enjoyment independently and found in favour of the respondent / plaintiff. Apart from the document Ex.A15, the appellate Court considered all the documents and found that there is no document to prove the enjoyment of the property by Kaluvayee Ammal from the year 1932, as contended by the defendants / appellants. Since burden lies on the respondent / plaintiff to prove his case, the lower appellate Court considered the issue regarding title and enjoyment, by rightly putting the burden on the respondent / plaintiff to prove his case and finally held in favour of plaintiff. Aggrieved by the judgment and decree of the lower appellate Court the above Second Appeal has been filed by the appellants / defendants in the suit.
9. The learned counsel for the appellants raised the following substantial questions of law.
(1) Whether the Courts below properly considered the documents that were produced by the appellants as per the Indian Evidence Act?
(2) Whether the suit is maintainable in law without prayer for declaration when admittedly patta stands in the name of the appellants?
(3) Whether the Court below, having come to the conclusion that the appellants have sold 5 acres 19 cents are right in decreeing the suit in favour of the respondent?
10. In support of the grounds raised in the appeal, the learned counsel for the appellants made the following submissions:
(a) The documents Ex.A15 is not admissible in evidence and hence, conclusions of the Courts below that the appellants' predecessor in interest had acknowledged the title of Puliyan are erroneous and unsustainable in law.
(b) The plaintiff in the suit has to prove his case. However, the respondent / plaintiff in the present case have not proved their title or enjoyment by independent evidence. Hence, the Courts below ought not to have decreed the suit based on the weakness in the case of the defendant regarding title.
(c) Finally, the learned counsel for the appellants submitted that patta is a record of possession and that the Courts below ignored the patta that was issued to the appellants while deciding the question of possession. (The learned counsel for the appellants has not argued on the third question of law which delve more on facts.)
11. The learned counsel advanced his argument that the document Ex.A15 is inadmissible on the ground that the appellants / defendants are not parties to the document. According to the learned counsel for the appellants / defendants, the document which is not inter-parties is not admissible in evidence. The learned counsel for the appellants / defendants relied upon a judgment in the case of V.A.Amiappa Nainar (Died) and others v. Annamalai Chettiar (Died) and others reported in L.W. (Vol.84) 691 wherein a Division Bench of this Court has held that recitals as to boundaries in documents not inter parties are inadmissible in evidence and that the only method by which recitals in a document not inter partes could be admitted in evidence is by examination of the executant of the document in which such recitals as to boundaries are found. However, the learned counsel for the appellants / defendants ignored the fact that the document Ex.A15 is one which was executed by the appellants who are the legal heirs of original owner Kaluvayee Ammal.
12. This Court carefully considered the document Ex.A15 and the recitals thereto. It is not in dispute that the suit property which lies on the eastern side of the total extent available in Survey No.6/1 in Karadipatty Village. The document Ex.A15 is in respect of a land which lies within the western half of the entire extent namely 8.52 acres of suit property. In this document, the eastern boundary of the property is shown as the property that belonged to Puliyan, predecessor in interest of the respondent / plaintiff. This crucial document was marked without any objection from any quarter. Further, except appellants 2 and 4, all the appellants are the vendors in this document and this fact is not in dispute. In such circumstances, the conclusion reached by the Courts below on the basis of Ex.A15 that the suit property which forms part of the eastern half of the Survey No.6/1 which belonged to Puliyan is perfectly right and in the absence of any explanation or any other evidence to contradict the contents of Ex.A15, the conclusion of the Courts below are irresistible. It is not open to the appellants / defendants to dispute the title of Puliyan, in respect of the eastern half of Survey No.6/1.
13. The learned counsel for the appellants / defendants further contended that the respondent / plaintiff who is expected to prove his case cannot fall back on the weakness of the appellants' / defendants' case. He also referred to the judgment of the Hon'ble Supreme Court in the case of C.N.Ramappa Gowda v. C.C.Chandregowda (Dead) by LRs and another reported in AIR 2012 SC 2528 wherein the Hon'ble Supreme Court, even in a case where written statement had not been filed, observed that, facts pleaded in the plaint need to be proved and that the Court cannot pass a decree and judgment ex parte without there being proper proof for the plaintiff's case. In the case on hand, the situation is slightly different where both plaintiff and defendants produced / let in various documents apart from examining independent witnesses to prove their respective cases. The Courts below considering both oral and documentary evidence, came to the conclusion that the plaintiff has proved his case. The document Ex.A15 itself is a crucial document wherein the appellants have admitted the title of the plaintiff's predecessor in interest. When the Courts below have categorically held that the plaintiff has proved his title based on several documents of sale deeds, this Court do not find any legal infirmity in the findings of the Courts below holding title in favour of the plaintiff.
14. The further submission of the learned counsel for the appellant is on the strength of the document namely the patta which was granted in favour of the predecessor in interest of the appellants / defendants. Though it is a well settled proposition of law that patta is not a document of title and it can only be a piece of evidence to establish one's possession in a case where there is no rival claim. The Tamil Nadu Patta Passbook Act does not provide a machinery to deal with the rival claims of title. The provisions of the Tamil Patta Passbook Act further indicates that the powers of the authorities under the Act are limited to effect change or mutation in revenue records only under certain contingencies as prescribed under the Act. Unless it is shown that a person to whom patta was granted has derived right from the person whose name was there already in the revenue record as owner, it is not always permissible for the Civil Court to accept patta as a document of title or proof of possession. The learned counsel for the appellants / defendants relied upon a judgment of this Court in the case of Lakshmana Gounder v. The Special Deputy Collector (LA), Salem Steel Plant, Salem and others reported in (2003) 1 M.L.J. 21, wherein this Court was pleased to hold in paragraph 12 of the said judgment as follows:
12. A patta is a record of possession represents a distinct fractional part of lands. The said presumption has its roots in the system of land tenure and in the custom of the area in which the lands are situate. Each pattadar manages his lands and pays fixed share of the Government Revenue. Entries in revenue records are not conclusive, but their importance in a case for possession cannot be denied, until contrary is shown. Though one cannot challenge the entry in revenue records as incorrect but can always impugn it as having been made fraudulently or surreptitiously. Followed the decision in Vishwa Vijay Bharathi v. Fakhrul Hassan and others, (1976) 3 SCC 642. In this case, the Apex Court has held the entries in the revenue records generally to be accepted at their face value and Courts should not embark upon an appellate enquiry into their correctness. But, the presumption of correctness can apply to genuine, not forced or fraudulent entries. When, in a particular case, facts disclose no title in either party, possession alone will decide the right of the parties.
15. The legal position has now been settled and patta given by the revenue authorities are not always binding on the Civil Court. Having regard to the nature of enquiry that is contemplated under the Tamil Nadu Patta Pass Book Act and the specific provisions regarding the statutory obligation and responsibility of the revenue officials to effect mutation in revenue records on specific occasions, it is not possible to give a seal of approval in every case where patta has been issued. In the absence of any evidence contrary, the revenue record like patta or chitta might have relevancy and assume more significance or importance. In the present case, having regard to the fact that the parties have let in several documents and oral evidence, it is not possible to accept the case of the appellants / defendants only on the basis of the patta / chitta issued to the appellants / defendants.
16. Finally the learned counsel argued that the suit was filed only for a bare injunction and the Courts below ought to have dismissed the suit on the ground that the respondent / plaintiff ought to have filed a suit for declaration of title, especially when there is a cloud on title. It is already settled that a suit for bare injunction is maintainable against any one who has neither title nor better title than the plaintiff. Even in a suit for bare injunction, the Civil Court can go into the issue of title incidentally. In the present case, the trial Court has gone into the question of title based on the pleadings after framing proper issues and rested its conclusions after considering various documents and oral evidence. The lower appellate Court also has independently considered the pleadings and evidence both oral and documentary and held title also in favour of plaintiff. In the said circumstances, the contention of the learned counsel for the appellants / defendants is unsustainable.
17. Learned counsel for the respondent / plaintiff relied upon a judgment of the Hon'ble Supreme Court in the case ofRamanuja Naidu v. V.Kanniah Naidu and another reported in (1996) 3 SCC 392 wherein the Hon'ble Supreme Court has quoted with approval the summarisation of law in Mulla's Code of Civil Procedure (15th Edition Vol.I) at page 703 wherein it is stated as follows:
The section even as it stood before its recent amendment allowed a second appeal only on the grounds set out in clauses (a), (b) or (c). Therefore, whereas a Court of First Appeal is competent to enter into questions of fact and decide for itself whether the findings of fact by the lower Court are or are not erroneous, a Court of Second Appeal was not and is not competent to entertain the question as to the soundness of a finding of fact by the Court below. A second appeal, accordingly, could lie only on one or the other grounds specified in the section.
As held in Durga Choudhrain v. Jawahir Sing [17 IA 122 : ILR (1891) 18 Cal 23 (PC)] by the Privy Council, there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of facts, however gross in error they may seem to be. The same view has been expressed also by the Supreme Court. No doubt, a second appeal lay where there was a substantial error or defect in procedure under clause (c), but an erroneous finding of fact is distinct from an error or defect in procedure. Accordingly, where there was no error or defect in procedure, the finding of the First Appellate Court upon a question of fact had to be regarded as final, if that court had before it evidence proper for its consideration in support of the finding, .... The mere fact that the High Court would have upon documents and evidence placed before the Court of First Appeal come to a different conclusion is no ground for a second appeal.
In the same judgment, another judgment of the Hon'ble Supreme Court in Madamanchi Ramappa v. Muthalur Bojjappa by a 3 members Bench reported in AIR 1963 SC 1633 was also relied upon and in that judgment, the scope of Section 100 C.P.C. is dealt with in the following manner:-
"The question about the limits of the powers conferred on the High Court in dealing with second appeals has been considered by High Courts in India and by the Privy Council on several occasions. One of the earliest pronouncements of the Privy Council on this point is to be found in the case of Mst. Durga Choudhrain. In the case of Deity Pattabhiramaswami v. S.Hanymayya, this Court had occasion to refer to the decision of the Privy Council and it was constrained to observe that "notwithstanding such clear and authoritative pronouncements on the scope of the provisions of s. 100, C.P.C., some learned Judges of the High Courts are disposing of second appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes and exercises a jurisdiction which it does not possess, a gambling element in litigation and confusion in the mind of the litigant public." On this ground, this Court set aside the second appellate decision which had been brought before it by the appellants.
In R. Ramachandra Ayyar v. Ramalingam Chettiar, this Court had occasion to revert to the same subject once again. The true legal position in regard to the powers of the second appellate Court under s. 100 was once more examined and it was pointed out that the learned Judges of the High Courts should bear in mind the caution and warning pronounced by the Privy Council in the case of Mst. Durga Chowdhrain and should not interfere with findings of fact.
It appears that the decision of this Court in Deity Pattabhiramaswamy, was in fact cited before the learned single Judge, but he was inclined to take the view that some aspects of the provisions contained in s. 100 of the Code had not been duly considered by this Court and so, he thought that it was open to him to interfere with the conclusions of the courts below in the present appeal. According to the learned Judge, it is open to the second appellate Court to interfere with the conclusions of fact recorded by the District Judge not only where the said conclusions are based on no evidence, but also where the said conclusions are based on evidence which the High Court considers insufficient to support them. In other words, the learned Judge seems to think that the adequacy or sufficiency of evidence to sustain a conclusion of fact is a matter of law which can be effectively raised in a second appeal. In our opinion, this is clearly a misconception of the true legal position. The admissibility of evidence is no doubt a point of law, but once it is shown that the evidence on which courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the courts of fact to contend before the High Court in second appeal that the said evidence is not sufficient to justify the findings of fact in question. It has been always recognized that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the court of facts and cannot be agitated in a second appeal. Sometimes, this position is expressed by saying that like all questions of fact, sufficiency or adequacy of evidence in support of a case is also left to the jury for its verdict. This position has always been accepted without dissent and it can be stated without any doubt that it enunciates what can be properly characterized as an elementary proposition. Therefore, whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits proscribed by s.100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by courts of fact; but on such occasions it is necessary to remember that what is administered in courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavor to avoid."
18. In view of the concurrent findings of the Courts below and the findings of the Courts below are supported by materials and evidence, I am not inclined to interfere with the same. As a result, this Second Appeal is dismissed. However, there is no order as to costs.