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John Sylem Vs. Chanthanamuthu Pillai (Died), - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberLetters Patent Appeal No. 38 of 1998
Judge
Reported inAIR2003Mad374
AppellantJohn Sylem
RespondentChanthanamuthu Pillai (Died), ;state of Tamil Nadu, Represented by Collector, ;chengapager Pillai, ;
Appellant AdvocateR. Thiagarajan, Sr. Counsel for ;Issac Mohanlal, Adv.
Respondent AdvocateG. Subramanian, Sr. Counsel for ;Selvi George, Adv. for ;V. Sethuraman, Special Government Pleader (Forests) For respondent 2 and ;J. Anandavalli, Adv. For respondents 3 to 8
DispositionAppeal dismissed
Cases Referred(John Sylem vs. Chanthanamuthu Pillai).
Excerpt:
- t.n. estates (abolition & conversion into ryotwari) act, 1948 [act no. 26/1948]. sections 5(2) & 67; [a.p. shah, cj, mrs. prabha sridevan & p. jyothimani, jj] suo motu revisional powers held, on a bare reading of the provisions of section 5(2) of the act, it is clear that the power conferred on the director by section 5(2) to cancel or revise any of the orders, acts or proceedings of the settlement officer is very wide. in the first place, the director need not necessarily be moved by any party in that behalf, and the power could be exercised either on an application by an aggrieved person or suo motu. for example, if the director comes to know that contrary to the scheme of the act or due to misrepresentation or fraud played, a patta had been granted to a person under the relevant..........sale in favour of the plaintiff. he has mentioned that there are 80 to 150 year old trees in the suit property. he has also stated that the suit property is not a portion of lekkom 28. he has stated that he does not know the total extent of lekkom 28 because he did not measure it, that he did not survey the suit property and that he does not know how many survey numbers are there in lekkom 28. 11. the evidence of this witness does not in any manner help the plaintiff to improve his case. the burden of establishing the case is on the plaintiff. unless the property with reference to which the declaration sought is clearly identified, the plaintiff is not entitled to a decree. the plaintiff has failed to establish that identity. the learned single judge was right in rejecting the appeal.....
Judgment:

R. Jayasimha Babu, J.

1. This appeal is by the plaintiff who had brought the suit O.S. No. 106 of 1969 on the file of the Subordinate Judge, Nagercoil seeking the relief of declaration of his title and possession of the plaint schedule property and for other reliefs. The order under appeal is reported in (John Sylem vs. Chanthanamuthu Pillai).

2. The title claimed by the plaintiff rested upon the document Ex.A.1 dated 10.03.1969 in which the property was described thus: 'Property which lies in the middle portion of Lekkom 28 having an area of approximately 100 acres lying in the North East portion of the of Lekkom 28 ( consists of the west part of northern and the whole of western side) in survey No. 2917'. The boundaries given are - North : Mulagumadan Pottai; East : Survey No. 2917/3; South : Survey No. 2696; and West : Survey No. 2695/3. The northern boundary was to be located with reference to the judgment of the High Court in Appeal Suit No. 81 of 1961 relating to one Kumaraswamy. The suit filed by Kumaraswamy was later dismissed, and that northern boundary was not located and it's location remains unknown.

3. That the purchase made for Rs. 10,000/- of over 100 acres of forest land - the precise area not having been stated, was entirely at the risk of the buyer, was set out in the sale deed itself : 'The vendee can take all necessary action of her liability for the enjoyment of the property and for protecting her title. The vendor will not be held responsible for any action or loss.' The vendor did not put the vendee in possession, as he was himself not in possession and there was litigation pending between him and the State. Lekkom 28 of which this property is stated to be a part stretches over 18 miles, and has more than 10,000 acres.

4. The trial Court, as also the learned single Judge have held that the plaintiff had not identified the plaint schedule property, and that the plaintiff was not in possession of the same. The learned single Judge in an elaborate judgment after carefully analysing all the documents, has found, and, in our opinion rightly, that the suit brought by the plaintiff was entirely speculative. The plaintiff had also claimed that there was, in the year 1958, an oral agreement between the original plaintiff's husband Issiah and the plaintiff's vendor. That agreement was not proved before the Courts. The vendor under the sale deed was himself litigating his claims against others, as also against the State as of 1958. It has been found by the Court below that the vendor himself was not in possession of the land purported to have been sold.

5. During the trial, the plaintiff sought to improve his case by relying upon reports of two Commissioners. The Commissioners appear to have been appointed shortly after the institution of the suit and the reports had been marked as Exs.C.1 to C.7. Those reports were found by the trial Court to be of no assistance for locating the property. Initially, the State had not been impleaded as a defendant in the suit. The State came to be impleaded after the initial dismissal of the suit and an appeal therefrom which resulted in a remand. The State came to be impleaded only in the year 1981. After the remand, the vendor was not examined. P.W.2 alone was examined further and cross examined. Two exhibits, viz., Exs.A.22 and A.23 were marked. For the State, the District Forest Officer was examined as D.W.1.

6. Learned single Judge has rightly discarded the depositions of witnesses who had not been tendered for cross examination after the State was impleaded. After the remand, another Commissioner was appointed who submitted the reports Exs.C.8 and C.9. The Commissioner himself was not examined before the Court. The trial Court, as also the learned single Judge have found that those reports, Exs.C.8 and C.9 are wholly unreliable. Learned single Judge has pointed out that those reports give no basis for the purported identification of the property by the Commissioner who claims to have been in a position to view the area of 18 miles at a stretch. The learned single Judge has noted that on the basis of the plan, the area could not be calculated. The Commissioner has nevertheless proceeded to opine that the area was more than 160 acres. In the reports Exs.C8 and C.9, reference is made to the reports which have been filed in Exs.C.1 to C.7. The learned single Judge has extracted the portion of the reports Exs.C.8 and C.9 which shows that the Commissioner appointed after the State was impleaded has merely relied upon the reports, Exs.C.1 to C.7 which had been given by the Commissioner who was appointed shortly after the suit was filed. Those reports had been found to be of no assistance in locating the property by the trial Court, as also by this Court to which the appeal had been brought. The order of remand made by this Court was after having examined those reports of the Commissioner - Exs.C.1 to C.7, and after reaching the conclusion that those reports did not enable that plaintiff to establish the location of the suit schedule property.

7. Thus, the plaintiff, apart from producing a document executed by a person whose title to the property conveyed was uncertain and which document set out the boundaries in a vague manner, has not adduced any acceptable evidence to identify and locate the property. An important boundary mentioned in the schedule to that deed remained vague and it's location unknown. The plaintiff only sought to improve his case with the aid of the reports of the Commissioner. All those reports have been rightly found by the trial Court and the learned single Judge to be wholly unreliable and not of any use in locating the suit schedule property.

8. Lekkom 28 is admittedly a large forest area having in it thousands of acres of forest lands. The earliest of the title deeds produced in the case is of 27.7.1874 marked as Ex.A.22 which record the sale of one-fourth portion for one Muthusamy. One-fifth share of that one fourth was conveyed to two persons, viz., Sivan and Ananchaperumal under Ex.A.23 dated 27.07.1875. Subsequently, there was a partition under Ex.A.3 dated 14.10.1878 under which, what had been the subject matter of the sale under Ex.A.23 was divided into ten parts and allotted to various persons. The persons who were parties to the partition sold a portion of what they had received under Ex.A.2 to one Mrs. Aney Amemy Cox. Her grandson one Simpson who had disputes with the Government and was litigating his claims and even while those claims were under litigation allegedly entered into an agreement in 1959 with the original plaintiff's husband Issiah. Long after the alleged oral agreement, the sale deed Ex.A.1 was executed on 10.03.1969 in favour of Issiah's wife and suit was filed within five months of that sale deed. The purchase made and the suit that followed were wholly speculative.

9. It is the case of the State that Simpson had obtained from the State patta to the extent to which he was entitled by virtue of the purchase that had been made by his grandmother Mrs. Cox and he had nothing left to convey to the plaintiff. That is probabilised by the manner in which the property has been described in Ex.A.1 and the recitals contained in that document.

10. Learned senior counsel for the appellant Mr.A. Thiagarajan submitted that a crucial piece of evidence which according to him is the deposition of the District Forest Officer who was examined as D.W.1 had been ignored by the Courts below and that if his evidence is taken into account, the plaintiff's case was required to be accepted. We have perused that evidence. The District Forest Officer has deposed that he had worked as District Forest Officer has deposed that he had worked as District Forest Officer for one year preceding the date of examination, i.e., 09.08.1995 and that he had worked in the area earlier between 1964 and 1966. He has not said that he had conducted a survey of Lekkom 28, or identified the area which was the subject matter of the sale in favour of the plaintiff. He has mentioned that there are 80 to 150 year old trees in the suit property. He has also stated that the suit property is not a portion of Lekkom 28. He has stated that he does not know the total extent of Lekkom 28 because he did not measure it, that he did not survey the suit property and that he does not know how many survey numbers are there in Lekkom 28.

11. The evidence of this witness does not in any manner help the plaintiff to improve his case. The burden of establishing the case is on the plaintiff. Unless the property with reference to which the declaration sought is clearly identified, the plaintiff is not entitled to a decree. The plaintiff has failed to establish that identity. The learned single Judge was right in rejecting the appeal against the dismissal of the plaintiff's suit.

12. We do not find any merit in this appeal. The letters patent appeal is dismissed with costs. Consequently, CMPs. No. 2030 to 2032 of 2002 are dismissed.


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