All India Islamic Foundation & Anr. vs Ayyavoo (died) & Ors.

This Second Appeal has been filed challenging the judgment and decree dated 21.12.2012 passed in A.S.No.30 of 2009 by the learned Subordinate Judge, Camp at Melur, confirming the judgment and decree dated 11.09.2008 passed in O.S.No.39 of 2005 by the learned District Munsif, Melur.

The plaintiffs filed the suit seeking a declaration that they are the owners of the suit property and for a consequential permanent injunction restraining the defendants, their men, agents, servants and persons claiming under them from interfering with the plaintiffs' peaceful possession and enjoyment of the suit property or from trespassing upon it.

According to the plaintiffs, the suit property originally belonged to one Alagan Moopan, who was in possession and enjoyment of the same. After his demise, his legal heirs continued to be in possession and enjoyment of the property by paying kist and other revenue dues. The first plaintiff claimed to have purchased the suit property, along with another property, under a registered sale deed dated 19.09.1996 from Mookkayee and the legal heirs of late S.A. Chinnalagan, for a consideration of Rs.2,30,550/-. According to the plaintiffs, after the purchase, the first plaintiff paid kist and other taxes and continued to be in possession and enjoyment of the property. It was further pleaded that, after the purchase, the first plaintiff established a Residential Matriculation School for Girls in a larger extent of land and that the second plaintiff was managing the affairs of the School. The plaintiffs alleged that, on 21.01.2005, the defendants, along with their men, attempted to trespass into and encroach upon the suit property. According to the plaintiffs, the said attempt was prevented by the second plaintiff with the help of neighbours and office bearers. Hence, the suit was filed.

The defendants resisted the suit by denying the title and possession claimed by the plaintiffs. According to them, the suit property, measuring 7 Acres 87 Cents, was their ancestral property and they had been in continuous possession and enjoyment of the same. They denied the alleged purchase by the first plaintiff, the payment of kist and taxes and the alleged attempt of trespass on 21.01.2005. The defendants further contended that the plaintiffs' vendor had earlier filed O.S.No.358 of 1995 against them in respect of the suit property and that the said suit was dismissed for default on 10.07.2000. They also relied upon the order dated 22.12.1997 passed by the District Revenue Officer, Madurai, in Na.Ka.No.1992/183376/96/2, wherein the revenue claim relating to the suit property was decided in favour of the defendants. The said order was challenged before this Court in W.P.No.1741 of 1998. The writ petition was disposed of on 07.12.2004, directing the plaintiffs' vendor to work out his remedy before the competent Civil Court.

According to the defendants, neither the plaintiffs' vendor nor the first plaintiff, who claims title under the said vendor, thereafter took effective steps to establish their title before the competent Civil Court. It was further contended that the plaintiffs had suppressed the earlier proceedings and the order passed by the District Revenue Officer and had therefore approached the Court below without disclosing the material facts. The defendants also contended that, since the title of the plaintiffs was specifically disputed, the plaintiffs were required to establish the title of their vendor and trace their own title to the suit property. According to them, the plaintiffs had failed to do so and, therefore, the suit was liable to be dismissed.

Before the Trial Court, on the side of the plaintiffs, two witnesses were examined as PW.1 and PW.2 and 10 documents were marked as Exs.A1 to A10. On the side of the defendants, one witness was examined as DW.1 and 4 documents were marked as Exs.B1 to B4.

Upon consideration of the oral and documentary evidence, the Trial Court found that the plaintiffs had failed to establish their title and possession over the suit property and dismissed the suit by judgment and decree dated 11.09.2008. Aggrieved by the same, the plaintiffs preferred A.S.No.30 of 2009 before the learned Subordinate Judge, Camp at Melur. The First Appellate Court, after re-appreciating the oral and documentary evidence, concurred with the findings of the Trial Court and dismissed the appeal by judgment and decree dated 21.12.2012.

Challenging the concurrent findings of the Courts below, the plaintiffs have preferred the present Second Appeal.

I have heard Mr.S. Subbiah, learned Senior Counsel appearing for the appellants and Mr.H. Arumugam, for Mr.Arikaran learned counsel apparing for the respondents 2, 3, 5 and 6.

The Second Appeal was admitted by this Court on the following substantial questions of law:

The appellants/plaintiffs filed the suit seeking a declaration that they are the absolute owners of the suit property and for a consequential permanent injunction restraining the defendants, their men, agents, servants and persons claiming under them from interfering with their peaceful possession and enjoyment of the suit property or from trespassing upon it.

The suit property is measuring 7 Acres 87 Cents comprised in Survey No.90/2. The case of the first plaintiff is that he purchased the suit property under Ex.A1 registered sale deed dated 19.09.1996 from Mookayee and the legal heirs of Chinnalagan. According to the plaintiffs, the suit property originally belonged to one Alagan Moopan. After his demise, Chinnalagan and his legal heirs were in possession and enjoyment of the property. The first plaintiff claims to have purchased the property from them under Ex.A1. Thereafter, patta was issued in favour of the first plaintiff, Abdul Kadhar, on 01.02.2005. The plaintiffs relied upon the kist receipts relating to the years 2004-2005, marked as Exs.A2 to A4, in support of their possession. They also relied upon the patta passbook standing in the name of Mookayee, marked as Ex.A6. Further, Exs.A7, A8 and A10, namely, the chitta and kist receipts, were relied upon to show that Alagan Moopan was in possession and enjoyment of the property.

Per contra, the defendants contended that the suit property in Survey No.90/2, measuring 7 Acres 87 Cents, belonged to their grandfather's father, namely, Veerakizhavan. Ex.B2 is the order passed by the Tahsildar dated 20.06.1995. Against the said order, proceedings were initiated before the District Revenue Officer. The District Revenue Officer, by order dated 22.12.1997, held that Survey No.90/2 belonged to Veerakizhavan, the grandfather's father of the defendants. It was also held that Survey No.90/1 belonged to Alagan Moopan. Thus, according to the defendants, Survey Nos. 90/2 and 90/1 were respectively assigned to Veerakizhavan and Alagan Moopan. The order passed by the District Revenue Officer dated 22.12.1997 was relied upon by the defendants as a final order in the revenue proceedings. It is also not in dispute that the plaintiffs' vendor had earlier filed O.S.No.358 of 1995 before the District Munsif Court, Melur, seeking the relief of permanent injunction in respect of the suit property. The said suit was dismissed for default.

The learned counsel appearing for the appellants/plaintiffs contended that the order passed by the District Revenue Officer cannot be treated as final with regard to the title of the property. In support of his contention, the learned counsel relied upon the decision of the Hon'ble Supreme Court reported in 2021 (11) SCC 98, in Edelweiss Asset Construction Company Limited Vs. R. Perumalswamy and others.

The learned counsel further contended that, under the Tamil Nadu Patta Pass Book Act, 1983, the Revenue Authorities have no jurisdiction to finally adjudicate upon the title to the property. According to him, the question of title can be decided only by a competent Civil Court. Therefore, the order of the District Revenue Officer under Ex.B4, by which the earlier patta granted in favour of the defendants was upheld/corrected, cannot by itself establish the defendants' title over the suit property.

It was further contended that the grant, cancellation or alteration of patta would not by itself confer or extinguish title to the property. The entries in the revenue records are only relevant for revenue purposes and are subject to the decision of the competent Civil Court. According to the appellants, once the Civil Court adjudicates the title, the revenue records and the patta passbook have to be modified in accordance with the decree of the Civil Court.

Therefore, the principal contention of the learned counsel for the appellants is that the Courts below erred in passing the order of the District Revenue Officer dated 22.12.1997 as conclusive proof of the defendants' title and in dismissing the suit on that basis.

The learned counsel appearing for the appellants/plaintiffs submitted that the appellants are in possession and enjoyment of a larger extent of about 100 Acres, in which the school building is situated. According to the learned counsel, the suit property forms part of the said larger extent and is in the possession and enjoyment of the appellants. It was further submitted that, though the suit property was originally vacant, trees have subsequently been planted therein. The learned counsel further submitted that the appellants have a better title to the suit property and that the physical features and identity of the property have to be properly ascertained. Therefore, the appellants have filed C.M.P.(MD) No.4459 of 2025 seeking appointment of an Advocate Commissioner to inspect the property, identify the suit property and note its physical features. The learned counsel submitted that such inspection would assist the Court in determining the identity and possession of the property.

The appellants have also filed C.M.P.(MD) No.4450 of 2025 seeking permission to receive additional documents. According to the learned counsel, the additional documents are necessary for proper adjudication of the dispute and to establish the appellants' case regarding title, possession and identity of the suit property.

In support of his submissions, the learned counsel relied upon the following decisions:

Relying upon the above decisions, the learned counsel submitted that a person in settled possession cannot be dispossessed except by due process of law. He further submitted that, when the period prescribed under Article 65 of the Limitation Act, 1963 is completed, a person claiming adverse possession may acquire title against the true owner, subject to proof of all the necessary ingredients of adverse possession.

The learned counsel also relied upon the decision in Iqbal Basith and others Vs. N. Subbalakshmi and others, reported in 2021 (2) SCC 718, and submitted that possession is a relevant consideration even where the plaintiff is unable to establish title. According to him, the possession of the appellants/plaintiffs over the suit property is sufficient to protect them against forcible dispossession, except in accordance with law.

The learned counsel further submitted that the patta and revenue records relied upon by the appellants constitute evidence regarding possession and enjoyment of the property. In this regard, reliance was placed upon the decision reported in 2023 (3) L.W. 202 in L. Duraivel and another Vs. N. Padmavathy and others.

The learned counsel also relied upon the decision reported in 2011 (5) CTC 241 in C. Sabesan Chettiar (deceased) and others Vs. The District Revenue Officer and others, and submitted that the Revenue Authorities exercising powers under the Tamil Nadu Patta Pass Book Act, 1983 cannot adjudicate complicated questions of title. According to him, the question of title has to be decided only by a competent Civil Court.

The learned counsel therefore submitted that the Courts below erred in relying upon the order of the District Revenue Officer dated 22.12.1997 (Ex.B4) as conclusive proof of the defendants' title. According to him, the District Revenue Officer had no jurisdiction to finally decide the title to the suit property.

It was further submitted that the identity of the suit property is also in dispute. Since the appellants claim to be in possession of a larger extent of about 100 Acres, the suit property measuring 7 Acres 87 Cents has to be properly identified on the ground. Hence, the appointment of an Advocate Commissioner is necessary to locate the suit property, ascertain its physical features and correlate it with the revenue records. He further contended that the additional documents sought to be produced by the appellants are relevant and necessary for deciding the controversy between the parties. Therefore, he prayed that C.M.P.(MD) No.4450 of 2025 for receiving additional documents and C.M.P.(MD) No.4459 of 2025 for appointment of an Advocate Commissioner may be allowed and the matter may be considered after taking into account the additional materials and the physical identity of the suit property.

Per contra, the learned counsel appearing for the respondents/defendants submitted that the plaintiffs have relied mainly upon Ex.A1 sale deed dated 19.09.1996 to establish their title. However, the plaintiffs have not produced the antecedent title documents of their vendor to establish the vendor's title over the suit property. The learned counsel further submitted that the plaintiffs' vendor had earlier filed a suit for permanent injunction in respect of the suit property and that the said suit was dismissed for default. Prior to that, the District Revenue Officer had passed a detailed order in respect of Survey Nos.90/1 and 90/2. According to the said order, the lands originally belonged to the Government and were assigned in the year 1928 to Alagan Moopan, the predecessor-in-interest of the plaintiffs, and Veerakizhavan, the predecessor-in-interest of the defendants, respectively.

The learned counsel submitted that, challenging the order of the District Revenue Officer, the plaintiffs' vendor filed W.P.No.1741 of 1998 before this Court. The writ petition was disposed of with a direction that the question relating to the title of the property had to be decided in the pending civil proceedings in O.S.No.358 of 1995 before the District Munsif Court, Melur.

It was further submitted that, thereafter, the plaintiffs' vendor took steps to restore the said suit. However, the restoration proceedings were also dismissed for default. Thereafter, neither the plaintiffs' vendor nor the plaintiffs took any steps to restore or pursue the earlier suit or to establish their title before the competent Civil Court. In spite of the same, the plaintiffs' vendor executed the sale deed in favour of the first plaintiff in respect of the property comprised in Survey No.90.

According to the learned counsel, when the vendor himself had no established right or title over the suit property, he could not have conveyed a better title to the first plaintiff. The plaintiffs had also suppressed the earlier litigation and the order passed by the District Revenue Officer and had instituted the present suit without disclosing the material facts. The plaintiffs' vendor was examined as P.W.2 on the side of the plaintiffs, and his evidence also does not establish the title of the vendor. The learned counsel submitted that, after considering the oral and documentary evidence, the Trial Court rightly dismissed the suit. The First Appellate Court, upon re-appreciation of the evidence, also concurred with the findings of the Trial Court. Therefore, there is no ground to interfere with the concurrent findings of fact in the Second Appeal.

In support of his submissions, the learned counsel relied upon the following decisions:

The learned counsel, relying upon the above decisions, submitted that the burden of proving title lies upon the plaintiffs. The plaintiffs have to succeed on the strength of their own case and cannot rely upon any weakness in the case of the defendants. According to him, since the plaintiffs have failed to establish the title of their vendor and the derivative title claimed under Ex.A1, the suit was rightly dismissed by the Courts below. The learned counsel therefore submitted that the appellants have not made out any substantial question of law warranting interference by this Court and prayed for dismissal of the Second Appeal.

This Court has considered the rival submissions and perused the oral and documentary evidence available on record.

In the present case, the first appellant/plaintiff claims title to the suit property measuring 7 Acres 87 Cents in Survey No.90/2 on the basis of Ex.A1 sale deed dated 19.09.1996. Under Ex.A1, the first plaintiff purchased the property from Mookayee and others, who are stated to be the legal heirs of Chinna Alagan. According to the plaintiffs, Chinna Alagan's predecessor was Alagu Moopan, who was in possession and enjoyment of the suit property.

In support of their claim, the plaintiffs relied upon the chitta, adangal and kist receipts standing in the name of Alagu Moopan. They also produced the patta passbook standing in the name of Mookayee. After the purchase under Ex.A1, patta was stated to have been transferred in the name of Abdul Kadar, the first plaintiff, on 01.02.2005. The plaintiffs also relied upon the kist receipts for the years 2004 and 2005 to show their possession and enjoyment of the property.

However, the revenue records relating to the suit property disclose that there was an earlier dispute regarding the grant of patta. Ex.B2 is the order dated 20.06.1995 passed by the Deputy Tahsildar. In the said proceedings, it was stated that the land in Survey No.90/2, measuring 7 Acres 87 Cents, had been assigned in favour of Veerakizhavan of Kallapatti Village under proceedings No.T.K.T.N.40-42/37 dated 30.06.1928. Against the said order, an appeal was preferred before the Revenue Divisional Officer. During the pendency of the revenue proceedings, the first plaintiff's vendor had also filed O.S.No.385 of 1995 before the District Munsif Court, Melur, seeking the relief of permanent injunction against the defendants.

Thereafter, a revision proceeding was taken before the District Revenue Officer. The District Revenue Officer, by a detailed order dated 22.12.1997, considered the relevant revenue records, including the certified copy of the Land Assignment Register. Upon examination of the said records, the District Revenue Officer found that Survey No.90/2, measuring 7 Acres 87 Cents, had been assigned in favour of Veerakizhavan, whereas Survey No. 90/1, measuring 9 Acres 50 Cents, had been assigned in favour of Alagan Moopan on 30.06.1928. Based upon the said finding, the District Revenue Officer directed that the patta in respect of Survey No.90/2, measuring 7 Acres 87 Cents, be transferred in favour of the legal heirs of Veerakizhavan. The said order is marked as Ex.B4.

The Trial Court relied upon Ex.B4 order passed by the District Revenue Officer and the other materials available on record and came to the conclusion that the plaintiffs had failed to establish their title and possession over the suit property. Accordingly, the Trial Court dismissed the suit. The First Appellate Court, upon re-appreciation of the evidence, concurred with the findings of the Trial Court.

The principal issue that arises for consideration in this Second Appeal is the effect of Ex.B4, namely, the order passed by the District Revenue Officer dated 22.12.1997. The appellants contend that the District Revenue Officer had no jurisdiction to adjudicate upon the title to the suit property and, therefore, the Courts below ought not to have treated Ex.B4 as conclusive proof of the defendants' title.

It is true that the Revenue Authorities maintain the revenue records such as the Assignment Register, patta, chitta, adangal and other connected records. The entries made in such records are relevant for revenue purposes. However, the Revenue Authorities cannot finally adjudicate complicated questions of title, which fall within the jurisdiction of the competent Civil Court.

In the present case, the District Revenue Officer, while passing Ex.B4, relied upon the certified copy of the conditional assignment proceedings relating to Survey Nos.90/1 and 90/2. As per the said document, Survey No.90/2, measuring 7 Acres 87 Cents, was assigned in favour of Veerakizhavan, the predecessor of the defendants, whereas Survey No.90/1, measuring 9 Acres 50 Cents, was assigned in favour of Alagan Moopan, the predecessor of the plaintiffs. Based upon the said revenue records, the District Revenue Officer directed transfer of patta in respect of Survey No.90/2 in favour of the legal heirs of Veerakizhavan. However, such an order passed by the Revenue Authority cannot, by itself, be treated as a decree declaring title in favour of the defendants. The question of title has to be independently decided by the competent Civil Court.

The learned counsel appearing for the respondents/defendants submitted that the assignment proceedings bearing Na.Ka.No.40-42/37 dated 30.06.1928 are more than 30 years old and that the certified copy of the public document was rightly taken into consideration by the District Revenue Officer. It was therefore contended that there was no error in relying upon the said document in Ex.B4.

This Court is of the view that the revenue records and the certified copies of the old assignment proceedings can certainly be taken into consideration as relevant evidence, subject to the provisions of the Indian Evidence Act. However, mere production or acceptance of such revenue records does not, by itself, establish title to the property. The evidentiary value of such documents has to be considered along with the other oral and documentary evidence available on record.

The respondents/defendants further relied upon the earlier proceedings initiated by the plaintiffs' vendor. It is not in dispute that the plaintiffs' vendor had filed O.S.No.358 of 1995 before the District Munsif Court, Melur, seeking the relief of permanent injunction in respect of the suit property. The said suit was dismissed for default. The plaintiffs' vendor had also challenged the revenue proceedings before this Court in W.P.No.1741 of 1998. The said writ petition was disposed of directing the parties to work out their remedy before the competent Civil Court. Thereafter, steps were taken to restore the earlier suit. However, the restoration proceedings were also dismissed for default. It is significant to note that, in the meantime, the plaintiffs' vendor had executed Ex.A1 sale deed dated 19.09.1996 in favour of the first plaintiff. Even after the purchase, the first plaintiff was not impleaded in the earlier proceedings. Thereafter, neither the plaintiffs' vendor nor the present plaintiffs took effective steps to pursue the earlier litigation and obtain an adjudication of title. The learned counsel appearing for the respondents/defendants therefore submitted that the plaintiffs, having failed to establish their title in the earlier proceedings, cannot rely upon the alleged weakness in the defendants' case to succeed in the present suit.

This Court finds considerable force in the said submission. The present suit is one for declaration of title and consequential permanent injunction. Therefore, the burden is upon the plaintiffs to establish their own title to the suit property. The plaintiffs cannot succeed merely by pointing out any defect or weakness in the title claimed by the defendants.

The first plaintiff claims title under Ex.A1 sale deed dated 19.09.1996. Once the title of the plaintiffs' vendor was specifically disputed, it was necessary for the plaintiffs to establish the title of their vendor and trace the title to the suit property. However, the plaintiffs have not produced the necessary antecedent title documents to establish the title of their vendor. The fact that patta, chitta, adangal and kist receipts stand in the names of the plaintiffs or their predecessors may support their claim regarding possession or revenue enjoyment. However, such revenue records cannot, by themselves, confer title upon the plaintiffs when their title is specifically disputed.

The contention regarding the earlier suit also requires consideration. The earlier suit was for permanent injunction and was dismissed for default. The dismissal for default does not amount to an adjudication of title on merits. Therefore, the present suit for declaration of title cannot be dismissed solely on the ground of res judicata. At the same time, the earlier proceedings are relevant circumstances for considering the conduct of the parties and the failure of the plaintiffs' vendor to establish his title.

The plaintiffs have sought to establish their case principally on the basis of Ex.A1 and the revenue records. However, when the defendants have produced the old assignment records and Ex.B4 order and have specifically disputed the title of the plaintiffs' vendor, the plaintiffs ought to have produced the antecedent title documents and established the source of title of their vendor. The plaintiffs cannot rely upon the fact that they are in possession of a larger extent of about 100 Acres and that they are running a school therein to establish their title to the specific suit property measuring 7 Acres 87 Cents in Survey No.90/2. The possession of a larger extent of land does not automatically establish title to the particular property in dispute.

The appellants have also filed C.M.P.(MD) No.4450 of 2025 seeking to receive additional documents and C.M.P.(MD) No.4459 of 2025 seeking appointment of an Advocate Commissioner for identifying the suit property and noting its physical features, with the assistance of a Surveyor.

The appellants contend that the suit property was originally vacant and that mango trees have subsequently been planted therein and, therefore, the physical features may have changed. However, the present suit was instituted in the year 2005 and the parties have already adduced their oral and documentary evidence before the Trial Court. The appellants had sufficient opportunity to establish the identity, title and possession of the suit property during the trial. The appointment of an Advocate Commissioner at this stage cannot be permitted to fill up the lacuna in the evidence of the plaintiffs. Likewise, the additional documents sought to be produced have not been shown to be such documents which could not, despite due diligence, have been produced before the Trial Court. The requirements for receiving additional evidence at the appellate stage are therefore not satisfied. Hence, C.M.P.(MD) No.4450 of 2025 seeking reception of additional documents and C.M.P.(MD) No.4459 of 2025 seeking appointment of an Advocate Commissioner are liable to be dismissed. Section 35 of the Limitation Act does not provide a basis for reopening the evidence or for receiving additional documents or appointing an Advocate Commissioner at this stage.

On a careful consideration of the entire evidence, this Court finds that Ex.B4 cannot, by itself, be treated as a final adjudication of title in favour of the defendants. Nevertheless, the plaintiffs cannot succeed merely because Ex.B4 is not conclusive on the question of title. The plaintiffs, who seek a declaration of title, are required to establish their own title by tracing the title of their vendor and producing the necessary antecedent documents.

In the present case, the plaintiffs have failed to establish the title of their vendor and, consequently, their own derivative title under Ex.A1. The revenue records relied upon by them are insufficient to establish title in the face of the specific dispute raised by the defendants. The plaintiffs have also failed to establish their title by any independent and acceptable evidence. Therefore, even though the order of the District Revenue Officer under Ex.B4 cannot be treated as a conclusive declaration of title, the plaintiffs have failed to discharge the burden of proving their own title. The Courts below, on an overall consideration of the evidence, were justified in dismissing the suit. The appellants cannot succeed by relying upon the alleged weakness in the defendants' case. In a suit for declaration of title, the plaintiffs must succeed on the strength of their own case. The concurrent findings of the Courts below do not warrant interference in the present Second Appeal.

In view of the above discussion, this Court finds that the appellants have failed to establish any substantial question of law warranting interference with the concurrent judgments of the Courts below.

In the result, C.M.P.(MD) No.4450 of 2025 and C.M.P.(MD) No. 4459 of 2025 are dismissed. The Second Appeal is also dismissed. The judgment and decree dated 21.12.2012 passed in A.S.No.30 of 2009 by the learned Subordinate Judge, Camp at Melur, confirming the judgment and decree dated 11.09.2008 passed in O.S.No.39 of 2005 by the learned District Munsif, Melur, are hereby confirmed. Consequently, MP(MD).No. 1 of 2013 is closed. There shall be no order as to costs.