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Judgment
Challenge in this second appeal is made to the judgment and decree dated 17.06.2002 passed in A.S.No.20 of 2002 on the file of the Sub-
ordinate Court, Hosur, confirming the judgment and decree dated 08.06.2001 passed in O.S.No.15 of 1997 on the file of the District Munsif
court, Hosur.
The parties are referred to as per the rankings in the trial court.
Suit for direction, declaration and mandatory injunction.
The case of the plaintiff in brief is that the the suit property bearing survey number 154/5 of Athimugam Taraff belonged to the plaintiff and been
in possession and enjoyment of the same and the plaintiff''s ancestors were in possession and enjoyment of the suit property during the period of
Zamindhari and accordingly, patta had been granted to the plaintiff''s father Lahuma Naidu by the Zamindhari system, under patta number 43 in
Bimash number 33 and Lahuma Naidu was enjoying the property, by paying Kists and after the abolition of the Zamindhari system and conversion
of the lands into Ryothwari scheme, for the Bimash number 33, survey number 154/5 was assigned and at the time of settlement, survey authorities
had not given the patta to the plaintiff''s father in respect of the suit property, despite representation made in that behalf and the authorities had kept
the suit property in suit survey number 154/5 as ""Anadhinam"" and accordingly, no patta was granted either in favour of the plaintiff''s father or the
plaintiff. Though the plaintiff had made representations to the defendants 2 to 4 for grant of patta and the plaintiff came to know that the 4th
defendant is trying to grant patta in respect of the suit property to the first defendant and inasmuch as, the suit property is remaining in the
possession and enjoyment of the plaintiff from the days of his ancestors and inasmuch as, the defendants are trying to issue 2(A) assessment or any
other assessment in favour of the first defendant, as regards the suit property and on the other hand, requested them to issue the patta in his favour
and as the same was not acceded to, the plaintiff''s issued the statu tory notice and inasmuch as the first defendant, the neighboring land owner,
attempted to interfere with this possession and enjoyment of the suit property and as the defendants 2 to 6 failed to issue patta in favour of the
plaintiff in respect of the suit property, even after the issuance of the statutory notice and on the other hand, attempting to grant the patta or 2(A)
assessment in favour of the first defendant, it is the case of the plaintiff, he has been necessitated to lay the suit for appropriate reliefs.
The case of the first defendant in brief is that the suit is not maintainable either in law or on facts and it is false to state that the suit property
belonged to the plaintiff and he has been in possession and enjoyment of the same from the days of his ancestors and patta for the suit property
was originally granted in favour of the plaintiff''s father under patta number 43 in Bimash number 33. It is true that the suit village was surveyed and
in the place of Bimash numbers, new survey numbers were assigned and it is false to state that the plaintiff''s father represented to the settlement
authorities to grant patta in his favour in respect of the suit property. Survey number 154/5 co-relates to Bimash number 32 and Kists for the
above said property has been paid only by the first defendant and the first defendant is in possession and enjoyment of an extent of 2.25 acres
within the specific boundaries and enjoying the same and it is true that the ""Inam Estate"" was taken by the Government and the defendant continued
to be in possession and enjoyment of the suit property and the defendant had made representations to the authorities concerned for the grant of
patta in his favour and the defendant''s father is entitled to the property above stated, by way a registered sale deed dated 06.01.1941 and since
then, it is only the defendant''s predecessors in interest and the defendants, who are in continuous possession and enjoyment of the suit property by
paying Kists etc., and it is false to state that the defendant attempted to trespasse into the suit property as put forth in the plaint and the plaintiff is
not entitled to the grant of patta, in respect of the suit property and never been in possession and enjoyment of the suit property as claimed in the
plaint and hence the suit is liable to be dismissed.
The case of the defendants 2 to 6 in brief is that the suit is not maintainable either in law or on facts. The plaintiff has not issued a valid statutory
notice prior to the institution of the suit. It is false to state that the suit property in possession and enjoyment of the plaintiff and his predecessors in
interest from the days of the Zamindhars. It is true that the Zamindhars had issued patta to the plaintiff''s father by name Lahuma Naidu under patta
number 43 in Bimash number 33, however, it is false to state that Lahuma Naidu had been paying Kists to the Government and it is true that after
the abolition of Zamindhari system, the Bimash numbers are abolished and it is correct to state that Bimash number 33 was assigned as survey
number 154/5 and inasmuch as the plaintiff''s father had not been in possession and enjoyment of the suit property, he has not been granted the
patta by the settlement authorities and it is false to state that the plaintiff is entitled to the grant of patta in respect of the suit property, it is true that
the first defendant is the neighboring land owner and it is false to state that the first defendant is attempting to interfere with the plaintiff''s possession
and enjoyment of the suit property. It is false to state that the first defendant is not entitled to the suit property and he has been attempting to secure
the patta from the defendants in respect of the suit property and hasty action had been taken to assign the suit property in favour of the first
defendant by the defendants. No doubt, ""B"" memos have been booked in favour of the first defendant since, he is in possession of the suit property
by cultivating the same and hence the suit is liable to be dismissed.
In support of the plaintiff''s case, P.Ws.1 to 5 were examined. Exs.A1 to A10 were marked. On the side of the defendants, D.Ws.1 to 5 were
examined. Exs.B1 to B7 were marked. Exs.C1 to C4 were also marked.
On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the Courts below were
pleased to dismiss the suit preferred by the plaintiff. Aggrieved over the same, the present second appeal has been laid.
At the time of admission of the second appeal the following substantial questions of law were formulated for consideration.
(i)Whether oral evidence could not be admitted, considered or received when the records of the Government are against such evidence?
(ii)Whether to recognize the possession and enjoyment of the poromboke land, payment of tax to the Government is necessary?
From the materials placed, it is noted that during the first appellate court stage, the plaintiff had not pressed the relief sought for by him as
regards the grant of patta and accordingly, it is found that the said issue was not gone into by the first appellate court.
According to the plaintiff, he has been in possession and enjoyment of the suit property from the days of his ancestors and even during the
Zamindhari period and according to the plaintiff, during the Zamindhari period, patta was granted in favour of the plaintiff''s faher under patta
number 43 in Bimash number 33 and after the abolition of Zamindhari stystem, the Ryothwary system came into existence and according to the
plaintiff, Bimash number 33 was assigned survey number 154/5 and accordingly, the plaintiff''s father made representations to the settlement
authorities to grant patta in his favour and further the plaintiff had also made representations to the Government authorities for the issuance of patta
in respect of the suit property, however, as the Government authorities had not granted patta in favour of the plaintiff as claimed and on the other
hand, as the Government authorities had started issuing the ""B"" memos in favour of the first defendant as if, he is in occupation and enjoyment of
the suit property, according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs.
Per contra, it is the case of the defendants that the plaintiff and his ancestors had never been in possession and enjoyment of the suit property
from the days of Zamindhars as claimed in the plaint and accordingly, the plaintiff''s father had not been granted patta under the Ryothwary system
by the settlement authorities as regards the suit property and further, inasmuch as, the plaintiff is also not in possession and enjoyment of the suit
property, his request for the grant of patta was also not accepted and on the other hand, inasmuch as the first defendant is found to be in
possession and enjoyment of the suit property, it is the case of the defendants that they had been issued the ""B"" Memos and accordingly, it is the
case of the defendants that the suit is liable to be dismissed.
From the materials placed, it is found that even as per the case of the plaintiff, the suit property had been converted into ""Anadhinam lands
under the Ryothwary system and accordingly, it is found that the claim of the patta, in respect of the suit property had been rightly negatived by the
Government authorities. Inasmuch as the defendants have disputed the claim of the plaintiff that he is in possession and enjoyment of the suit
property right from the days of his ancestors, it is for the plaintiff to establish the same. In this connection, the plaintiff has marked the patta issued
in favour of his father Lahuma Naidu as Ex.A1 and marked the Kists receipts as Ex.A2 series. As rightly found by the Courts below, from Ex.A1,
it could be seen that, Lahuma Naidu was granted patta for Bimash number 33 of an extent of 1.13 acres of land and from the Kists receipts
marked as Ex.A2 series, it is found that, he has been paying Kists in respect of the said lands. However, it is the case of the plaintiff that after the
settlement survey, the suit property had been converted as ""Anadhinam lands"". It is for the plaintiff to establish that he continues to be in possession
and enjoyment of the suit property as described in the plaint right from the days of his ancestors. The suit property is stated to be situated in survey
number 154/5 of an extent of 2.25 acres of land. To establish that Bimash number 33 corresponds to survey number 154/5, the plaintiff has
marked Ex.A6 land survey register extract and from the same, it could be seen that for Bimash number 33 of an extent of 0.99 acres of land, new
survey number 154/5 has been assigned. However, when it is the case of the plaintiff that survey number 154/5 consists of an extent of 2.25 acres,
as rightly determined by the first appellate court, sans any basis, it cannot be inferred or concluded that the plaintiff''s father or as the case may the
plaintiff has been in possession and enjoyment of an extent of 2.25 acres, right from the days of Zamindhars and if that to show, as rightly
contended, on the abolition of Zamindhars system, the plaintiff''s father would have been granted the Ryothwary patta by the settlement authorities.
However, when it is found that Bimash number 33 of an extent of 0.99 acres alone corresponds to survey number 154/5 as per Ex.A6, as rightly
determined by the Courts below, by way Ex.A6, we cannot safely conclude that suit property has been in possession and enjoyment of the
plaintiff, right from the days of his ancestors as put forth in the plaint.
As rightly determined by the Courts below, no valid and acceptable document has been projected by the plaintiff to hold that, he has been in
possession and enjoyment of the suit property from the days of his ancestors, as put forth in plaint. The Kists receipts marked as Ex.A10 are found
to be of no use to sustain the plaintiff''s case as when, according to the plaintiff, he had not been granted the patta or the 2(A) assessment in
respect of the suit property by the Government authorities, at any point of time and when it is the case of the plaintiff that he has been making
repeated representations with reference to same to the Government authorities and when it is not pleaded by the plaintiff that he has been paying
the necessary encroachment fees to the Government as such, accordingly, it is noted that the Courts below had not placed reliance upon Ex.A10
Kists receipts alleged to have been paid by the plaintiff in respect of the suit property. Further, as rightly found by the Courts below, the alterations
and corrections found in the above said Kists receipts by themselves would go to show that they had been concocted for the purpose of this case
by the plaintiff and accordingly, no infirmity is found in the approach of the Courts below discarding the above said Kists receipts filed by the
plaintiff.
Based on the materials placed, as rightly determined by the Courts below, it is found that, it is only the first defendant, who has been in
possession and enjoyment of the suit survey number of an extent of 0.91.0 Hectares of land and with reference to the same, it is seen that the first
defendant''s father''s name had been incorporated in the adangal extract marked as Exs.C1 to C4 and accordingly, it is determined by the Courts
below rightly that, it is only the first defendant, who has been in possession and enjoyment of the above said extent in survey number 154/5.
When there is no material placed on record by the plaintiff to hold that he is in possession and enjoyment of the suit property as described in
the plaint and when the documents projected by him namely Exs.A1, A2, A6 and A10 are found to be not serving the case of the plaintiff as such,
for the reasons aforestated, I do not find any error or mistake in the determination of the Courts below that plaintiff has miserably failed to establish
his possession and enjoyment of the suit property.
In the light of the above discussions, merely on the basis of the oral evidence adduced by the respective parties, sans materials/ documents to
buttress the same, the Courts below were justified in not accepting the oral evidence of both the parties for upholding their respective cases and
when the plaintiff has failed to establish that he is in possession and enjoyment of the suit property by placing acceptable and reliable records, the
Courts below were justified in rejecting his case. The substantial questions of law formulated in the second appeal are accordingly answered
against the plaintiff.
In conclusion, the second appeal fails and is accordingly dismissed with costs. Consequently, connected miscellaneous petition, if any, is
closed.