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Judgment
R. Karuppiah, J.—This second appeal is directed against the decree and judgment dated 19.8.1997 made in A.S. No. 162 of 1996 on the
file of the District Court, Sivagangai modifying the decree and judgment of the District Munsif Court at Sivagangai in O.S. No. 268 of 1994 dated
26.7.1996. For the sake of convenience, the parties averred in the plaint is referred in the appeal.
The appellant/plaintiff has filed a suit for declaration, injunction and also claiming a sum of Rs. 2,100/- as damages for cutting the balm trees.
According to the appellant/plaintiff, the suit property viz., Survey No. 366/9 to the extent of 1.85.0 Ars, in which 30 balm trees also belonged to
the plaintiff as per sale deed dated 29.4.1955 and patta was granted in his name and the plaintiff has paid kist and enjoying the suit property. It is
further stated that at the time of Updating Register scheme joint patta was given in the name of plaintiff and the first defendant. As against the
proceedings, the plaintiff has filed an appeal before the Tahsildar, Sivagangai in B-9-15.199/86 and it is pending and taking advantage of the above
said joint patta, the first respondent/1st defendant cut 21 balm trees worth about Rs. 2,100/- and therefore, the appellant/plaintiff has filed the suit
for the above said reliefs.
The respondents/defendants has contested the above said suit by stating that the plaintiff has purchased only 3 ''thaku'' i.e., approximately 3
acres but the extent of the suit property stated as 4 acres 56 cents and the first defendant is entitled to the half share in the suit property as
ancestral property and at the time of survey and settlement itself, joint patta was granted in the name of the first defendant and plaintiff as Patta No.
75 and in the year 1974 joint patta was granted in favour of both the plaintiff and the first defendant and after that in the year 1985 at the time of
Updating Register scheme, Joint Patta No. 743 was issued in the name of both the first defendant and the plaintiff. According to the defendants,
the suit property is joint possession of the plaintiff and the first defendant and therefore, the first defendant and his legal heirs i.e., second and third
defendants are enjoying the suit property for long period and got prescribed title over the suit property by adverse possession and therefore, the
plaintiff is not entitled to the entire suit property.
From the above said pleadings, the learned trial Judge has framed five issues and on considering the oral and documentary evidence on either
side, finally the trial judge has passed the decree and judgment, in which he declared that the plaintiff is entitled to only undivided half share in the
suit property and dismissed the prayer for permanent injunction and damages. Aggrieved over the above said judgment and decree of the trial
Court, the plaintiff has filed the first appeal and the learned first appellate Judge has partly allowed the appeal and held that the portion viz., 2 acres
39 cents out of 4.56 cents, which was marked as A, B, C, J, K and L, in Exhibit C-2, Commissioner Plan, the plaintiff is entitled to and therefore
granted declaration of title for the above said portion and dismissed all other reliefs sought for in the suit. Aggrieved over the above said finding of
the Courts below, the appellant/plaintiff has preferred this second appeal. Respondents/defendants have not filed any appeal against the decree and
judgment of first appellate Court.
This Court has admitted the second appeal and framed the following substantial questions of law for consideration:
(i) Whether the legal presumption that possession has also been with the appellant be dislodged and discarded merely on the basis of revenue
records created since 1971, when the title has been with the appellant since 1955 by virtue of a sale deed?
(ii) Whether it can be decided that there has been existing legal relationship of joint possession between the appellant and the respondents
eversince the execution of the sale deed executed in 1955, while the respondents do not have any title deeds and documents to prove their alleged
long and continued possession?
(iii) Can the sale deed be questioned as to whether the vendor had title to transfer the entire suit land when the sale deed is more than 30 years old
disregarding the presumption available u/s 90 of the Indian Evidence Act?
Learned counsel for the appellant/plaintiff mainly contended that he has produced Exhibit A-1 sale deed, dated 29.4.1955 to prove the tile of
the plaintiff in respect of the suit property, but both the Courts below held that the plaintiff is not entitled to the entire suit property on the basis of
Exhibit A-1 sale deed and the learned trial Judge has granted decree of declaration of only undivided half share i.e., 2 acres 28 cents in the suit
property and the first appellate Court has increased few cents on the basis of Commissioner Report and plan and granted 2 acres 39 cents out of 4
acres 56 cents and therefore, prayed for setting aside the above said decree and judgments passed by both the Courts below and granted decree
for entire extend of 4 acres 56 cents.
Per contra, the learned counsel appearing for the respondents would submit that the appellant/plaintiff is not at all produced any document,
except Exhibit A-1 sale deed, to prove that the vendor of the plaintiff is entitled to the entire suit property viz., 4 acres 56 cents and further
contended that in Exhibit A-1 sale deed itself it is only stated as ""about 3 ''thaku'' i.e., approximately 3 acres of land"", but the total extend of the
suit property stated in the plaint as ""4 acres 56 cents and therefore, the plaintiff is not entitled to the entire extend of the suit property. It is further
submitted that in the plaint as if U.D.R. Patta alone granted in favour of both the plaintiff and first defendant, but joint Patta i.e., Exhibit B-1, has
been issued in the year 1971 in favour of the first defendant and plaintiff, in respect of Survey No. 75 and Exhibit B-2, Joint Patta Pass Book was
also issued in the year 1974 in favour of the plaintiff and the first defendant in respect of survey No. 366/9 and the first defendant is entitled to only
half share in the suit property and the first defendant also paid kist in respect of the said property for several years and therefore, the learned trial
judge has rightly declared that the plaintiff is entitled to half share and the first defendant is entitled to the half share, but the first appellate Court has
wrongly granted 2 acres 39 cents out of total extend of 4 acres 56 cents and therefore, the plaintiff is not entitled to the entire suit property.
Admittedly, only on the basis of Exhibit A-1 sale deed, the suit has been filed by the appellant/plaintiff. A perusal of Exhibit A-1 sale deed, in
which it is stated about the extend as ""3 ''thaku'' i.e., approximately 3 acres"".
The appellant/plaintiff has not at all produced any document to prove that his alleged vendor of Exhibit A-1 sale deed viz. Jebamalai Konar was
entitled to entire suit property viz., 4 acres 56 cents. In the above said document, it is stated as if patta was granted in the name of the vendor viz.,
Jebamalai Konar. But the appellant has not produced the above said alleged patta issued in the name of the vendor viz., Jebamalai Konar. In
Exhibit A-1 sale deed it is also stated that the patta was also in the custody of the ""Proprietor"". The appellant/plaintiff has not explained why the
above said patta was not having the vendor of the plaintiff and having another person. From the above said averments made in the document itself
reveal that the vendor of the appellant/plaintiff is not entitled to the entire extend of the suit property mentioned in the plaint and only entitled to the
half share of the suit property as contended by the learned counsel for the respondents/defendants.
Admittedly, the appellant/plaintiff has not produced any patta for the entire suit property in the name of plaintiff or plaintiffs vendor. The other
documents produced on the side of the plaintiff viz., Exhibits A-2, A-3 and A-5 are kist receipts, which were paid just before filing the suit. In the
above said kist receipts also not specifically stated that the kist receipts were issued for the entire suit property. Further, the kist receipts paid only
after Update Registering Scheme for patta No. 743 and old Patta No. 75. The plaintiff has produced Exhibit A-6 Updating Register patta, in
which admittedly patta No. 743 was issued in the name of both the plaintiff and the first defendant for the entire suit property. Therefore, as rightly
contended by the learned counsel for the respondents/defendants that the plaintiff is not at all proved, by reliable oral and documentary evidence,
that the entire extent of suit property is belonging to the plaintiff on the basis of Exhibit A-1, Sale deed.
Per contra, as rightly contended by the learned counsel for the respondents/defendants that even before 1971 joint patta was granted in favour
of both plaintiff and the first defendant and in the year 1973, patta pass book was also given in favour of first defendant and at the time of Updating
Register scheme, the patta has been granted in the name of both the plaintiff and the first defendant and also paid kist receipts in respect of the said
property for several years from 1974 on words.
The learned counsel appearing for the appellant would contend that the patta is not a document of title and therefore, the respondents cannot
claim any right over the property under the alleged patta issued in the survey settlement period and as well as the UDR Scheme and to substantiate
the above said contentions, the learned counsel for the appellant has relied upon the following decisions:
(i) In M.E.A. Mohamed Ali and Others Vs. The District Revenue Officer, The Revenue Divisional Officer and S.N. Mohamed Abdullah rep. by
Power Agent A. Mubarak Ali, a Division Bench of this High Court has held as follows:
We further make it clear that the order of the revenue authorities is not binding in the civil suit, and the Civil Court will decide the rights of the
parties independently of the order of the revenue authority.
(ii) In Kammavar Sangam Vs. Mani Janagarajan, a learned single Judge of this High Court has held as follows:
When there is no evidence regarding plaintiffs predecessor had title of the property, it is for the plaintiff to prove, how he acquired the property
after the death of Shanmuga Nadar, his grandfather. Reliance was only placed on Exhibits A-1 and A-2 for the said purpose. Lower appellate
Court also found that predecessor of defendant was owner of 2 acre and 50 cents in pymash No. 350.1 feel that reliance placed by Courts below
on the patta is not correct.
(iii) In Srinivasan and six others Vs. Sri Madhyarjuneswaraswami and five others, a Full Bench judgment of this High Court has held as follows:
For all the reasons stated above, we answer the question referred to the Full Bench in the negative by holding that the jurisdiction of the civil Court
to entertain a suit for declaration of title and injunction is not barred by reason of the grant of patta under the provisions of Tamil Nadu Act 30 of
1963.
(iv) In W.T. Jothimani Vs. Khoday Prakash Sah represented by Mother-Guardian, Gangabai Ammal and Another, a Division Bench of this High
Court has held as follows:
The Revenue Officers had not cared to even refer to the said judgment before taking a final decision. On the other hand, the Revenue Authorities
seem to have passed final orders with gross disrespect to the findings of the civil Court judgment.
Per contra, the learned counsel appearing for the respondents has relied upon the following decisions:
(i) In Karewwa and Others Vs. Hussensab Khansaheb Wajantri and Others, a Division Bench of the Honourable Supreme Court has held as
follows:
We do not dispute the legal position as stated by the learned counsel for the appellant, but the presumption of correctness of an entry in revenue
record cannot be rebutted by a statement in the written statement. Mere statement of fact in the written statement is not a rebuttal of presumption
of correctness of an entry in the revenue record. The respondent was recorded as a tenant in the revenue record in the year 1973 and under law
the presumption is that the entry is correct. It was for the appellant to rebut the presumption by leading evidence. The appellant has not led any
evidence to show that entry in the revenue record is incorrect. We, therefore, do not find any merit in the contention.
(ii) In Mr. Kaliyuga Kannan Vs. The Tahsildar, Land Survey and Settlement, Karaikal and Others, a learned single Judge of this Court has held as
follows:
Entry of one''s name in the patta gives him certain rights. He is recognised as owner of the property. Certain legal rights flow from such recognition.
It is a recognition by the Government or by the Revenue Authorities that he is the owner of the property. It is an evidence of title. That right cannot
be taken away, nor can the name of any other person be included in the patta without notice to him. To get a patta is a common law remedy. The
various Circulars by the Revenue Department prescribe only the procedure. That right is not created for the first time under the Statute. If that be
so, plaintiff is well within his rights to contend that the patta which stands in his name shall not be altered or another man''s name be included therein
without notice to him.
(iii) In Angu Pillai alias Kalyani Achi (died) and Others Vs. M.S.H. Kasiviswanathan Chettiar and Others, a learned single Judge of this Court has
held as follows:
The expression ""document of title"" occurring in Section 58 of the T.P. Act has been the subject of consideration in some decisions. The law in
regard to equitable mortgage is precisely the same as in England as it is in India. (41 Revised Reports 208 VIII L.R.Ch. Appeal Cases 155) In
Indian Law deposit of patta has been held to constitute a valid equitable mortgage though patta is not in itself a deed of title, but is only an evidence
of title.
A careful reading of the decisions relied on by either side would reveal that even though patta is not a document of title it is an evidence of title
and also reveals that presumption of correctness of entry in revenue records cannot be rebutted by a statement in the written statement. In the
instant case, as already stated, joint patta was granted during the survey settlement period and also at the time of UDR Scheme and no proper
explanation was given by the appellant/plaintiff that why joint patta was granted in the name of both if really the entire property belonged to the
vendor of the plaintiff. Therefore, the contention of the appellant/plaintiff is that patta is not a document of title and hence, the defendants are not
entitled to the property cannot be accepted.
Further, the learned counsel for the appellant would contend that if any confusion regarding boundaries and extent, Court should determine the
real intention of the parties at the time of execution of documents and to that effect he has relied upon a decision of this Court in Balusamy Chettiar
and Others Vs. Abdul Razack, Sethu Achi and Sundaram Chettiar in which it is held that
Even from a cursory look of the decision referred to supra, it is made clear that in a deed in question, both extent and boundaries are given, the
Court has to determine the real intention of the parties at the time of grant.
Learned counsel appearing for the respondents has also relied upon a decision of this Court in Ramaiya Asari v. Ramakrishna Naicker alias
Kllimalai Naicker (2000) 3 MLJ 327, in which it is held that
In my considered view, the present case is not one such case where there is any confusion with regard to the area sold. The decisions do not apply
to the facts of the present case. The intention of the parties as expressed in the sale deed is clear that what was intended to be conveyed was only
40 kuzhies. As already noticed ""Kammi-Jasthi"" cannot take in such a large area as 7 1/4 kuzhies.
A careful reading of the above said decisions of this Court reveal that the Court will have to determine what are intentions of the parties, at the
time of execution of the document and also considered the boundaries and extent stated in the above said document and then decide whether the
boundaries would prevail over the area or the area would prevail over boundaries. In the instant case, the area mentioned in the above said Exhibit
A-1 sale deed only nearly half of the suit property and therefore, the intention of the parties must be only half share in the suit property as rightly
contended by the learned counsel for the respondents/defendants and also to prove the intention by way of producing the joint pattas by the
learned counsel for the respondents from 1971 onwards. Therefore, the appellant/plaintiff is entitled only undivided half share in the suit property
and not entitled to entire suit property and answer the first and second questions of law accordingly.
With regard to the third question of law is concerned, the learned counsel for the appellant would further submit that Exhibit A-1, sale deed in
favour of plaintiff, was 30 years old document and therefore, the execution and attestation presume to be proved as true document u/s 90 of the
Evidence Act.
The learned counsel appearing for the respondents submitted that the presumption as to due execution of sale deed more than 30 years only in
respect of due execution and attestation and not as to contends in the documents.
With regard to presumption u/s 90 of the Evidence Act, both sides relied on several decisions. The learned counsel appearing for the appellant
has relied upon the following decisions:
(i) In Panduranga Gramani Vs. Sundaram and Others, a decision of the learned single Judge of this High Court has held as follows:
Presumption of genuineness may be raised if the documents in question is produced from proper custody. It is, however, the discretion of the
Court to accept the presumption flowing from Section 90.
(ii) In A. Anthony Pushpam Ammal Vs. Rev. Mother Superior and Another, a learned single Judge of this High Court has held as follows:
From the close reading of the provision of Section 90 of the said Act, it is made clear to the Court that if any document is thirty years old, the
Court can very well draw a presumption as to its execution and also attestation.
(iii) In Murugayee (Dead) rep. by her LR Meenakshi Vs. Suguna Sambandam and Others, a learned single Judge of this High Court has held as
follows:
Since these two conditions, namely, the age of the document and the proper custody have been proved by the plaintiff, I hold that the requirements
of Section 90 of the Evidence Act have been complied with by the plaintiff and so it is absolutely necessary for this Court to raise the presumption
of due execution and attestation as provided in Section 90 of the Evidence Act in favour of the plaintiff.
(iv) In Rajaganapathy Ganesan Vs. Union of India (UOI) a learned single Judge of this High Court has held as follows:
As I have already stated, u/s 90 of the Evidence Act, there may be a presumption of due execution of sale if the sale deed is 30 years old. As per
the said provision, in the instant case, there may not be any difficulty to presume that the Sale Deed was executed by the vendor in favour of Ms.
Sivagangaiammal for the consideration paid by her as mentioned in the document. This presumption, has not been rebutted in any manner by the
respondents.
The learned counsel for the respondents has relied upon the following decisions:
(i) In Chandulal Asharam Travadi Vs. Bai Kashi, the Bombay High Court has held as follows:
The lower Courts both relied on the presumption arising u/s 90 of the Evidence Act, but that Section does not apply. It only provides that
documents more than 30 years old coming from proper custody prove themselves, but it does not involve any presumption that the contents of the
documents are true.
(ii) In Bhagirathmal Kanodia and Another Vs. Jamini Ghose, Shebait of Lahshmi Janardan Jiu Thakur and Bibhuti Bhusan Ghose and Others, the
Calcutta High Court has held as follows:
The presumption referred to in this Sections is of a limited character and applies only to the signature or handwriting.
(iii) In Banamali Behera and Others Vs. Padmalabha Misra, the Orissa High Court has held as follows:
The lower appellate Court appears to have proceeded on an assumption that the entries in all these documents, purporting to be thirty years old,
must necessarily be correct. No such presumption need necessarily attach to old documents. All that Section 90, Evidence Act, lays down is that a
Ct. may presume that such documents have been written or attested by the person who purports to have written or attested them.
(iv) In Kotiswar Mukherjee and Others Vs. Paresh Nath Mukherjee and Others, the Calcutta High Court has held as follows:
Further the Section makes it clear that the presumption which is to be raised relates only to the signature, execution or attestation of a document. It
does not involve any presumption that the contents of the document are true or that it had been acted upon. Such allegation has to be proved on
adducing proper and relevant evidence.
(v) In Srirangam Co-operative Building Society and Others Vs. T.N. Muniswami Konar and Others a learned single Judge of this High Court has
held as follows:
There cannot be a presumption for the ""Will"" simply because it is 30 years old. It is more necessary to prove the Will, when there is a suspicious
circumstances of execution of such ''Will''.
(vi) In Ghurahu and Others Vs. Sheo Ratan and Others, the Allahabad High Court has held as follows:
In fact Section 90 dispenses with proof of document as required in Sections 67 and 68 and what is required to be done is deemed to have been
done by operation of law. But the proof of signature or handwriting does not establish that whatever is stated in document is also correct. That has
to be proved not only by production of document but by proving its contents as well.
(vii) In Ajit Kumar Maulik Vs. Mukunda Lal Maulik and Others, the Calcutta High Court has held as follows:
This decision of the Privy Council in the case of Munnalal (supra), was followed by this Court in the Division Bench case of Sarat Chandra Mondal
and Others Vs. Panchanan Mondal and Another, The presumption u/s 90 of the Evidence Act is one of due execution and attestation as well as of
testamentary capacity of the testator executing a Will. This presumption does not extend to the truth of the contents of the Will, as stated by the
Division Bench in the case of Kotiswar Mukherjee and Others Vs. Paresh Nath Mukherjee and Others, referred to by Mr. Dasgupta.
(viii) In Mohinuddin and Another Vs. President, Municipal Committee, Khargone, the Madhya Pradesh High Court has held as follows:
Assuming that the document is more than thirty years old and comes from proper custody, there would be no presumption that contents of the
same are true.
A careful reading of the above said decisions relied on by both sides, reveal that even a document purported to be proved 30 years old is
produced from proper custody, a presumption u/s 90 of the Evidence Act is only due execution and attestation. But the presumption does not
extend to the truth of the contents of the document. In the instant case admittedly, Exhibit A-1 Sale deed dated 29.4.1955 and therefore, the
presumption of execution and attestation can be presumed u/s 90 of the Evidence Act. But cannot be presumed the contents of the document i.e.,
the entire suit property was belonging to vendor of the document and the entire extent was transferred by way of sale deed in favour of
appellant/plaintiff and the plaintiff is entitled to entire extend as contended by the appellant/plaintiff. As already discussed, the plaintiff has not
proved by reliable evidence that the entire extent of the suit property belonged to the vender of the appellant/plaintiff and therefore, the plaintiff is
also not entitled to entire extent of the suit property.
From the above said decisions, this Court is of the view that the appellant/plaintiff cannot claim title over the entire suit property on the basis of
Exhibit A-1, Sale Deed i.e., 29.4.1955 and further as per revenue records, the first defendant is entitled to undivided half share in the suit property
from 1971 on wards by producing patta and kist receipts and the presumption available u/s 90 of Evidence Act regarding Exhibit A-1 only on
execution and attestation and not for a contention in the above said document and therefore, the appellant/plaintiff is not entitled to the entire suit
property and only undivided half share in the suit property as rightly held by the learned trail Judge and answer the third question of law
accordingly.
The learned counsel for the respondents/defendants would contend that the first appellate Court has erroneously held that, as if the partition
was already effected between the parties and the plaintiff is entitled to 2 Acres, 39 cents out of 4 Acres, 56 cents on the basis of Commissioner''s
Report and Plan, Exhibits C-1 and C-2, and granted the relief of declaration of title to an extent of 2 Acres, 39 cents out of 4 Acres, 56 cents.
Admittedly, both sides not contended that any partition has been effected between the parties. Further, both sides not claimed the portions to the
plaintiff and defendants as allotted by the learned appellate Court Judge and therefore, the first appellate Court Judge has erroneously granted
declaration of title to the plaintiff to an extent of 2 Acres, 39 cents out of 4 Acres, 56 cents as if already partition has been effected between the
parties and therefore, the decree and judgment passed by the trial Court is to be confirmed and the modified decree and judgment passed by the
first appellate Court is to be set aside and second appeal is to be dismissed. In the result, the decree and judgment passed by the trial Court is
confirmed and the modified decree and judgment passed by the first appellate Court is set aside. The second appeal is dismissed with the above
said observation. However, there shall be no order as to costs.