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Judgment
K. Sampath, J.—Plaintiff in O.S.No. 783 of 1985, on the file of the III Additional District Munsif, Pondicherry, filed the second appeal and
pending second appeal he having died, his legal representatives have come on record as appellant: 2 to 6.
He filed the suit against the respondents herein for declaration of his title to the suit property, recovery of possession of the same, and for mesne
profits.
His case was as follows:
The suit property measuring 5 ares and 60 c.a., i.e., 10 kulis, Dry Land Cad.No. 556/1, Resurvey No. 158/3 belonged to him being his ancestral
property; he had been in possession and enjoyment from time immemorial; he had also been paying taxes for the suit property; he had been dealing
with the suit property; an identical extent of the property situate on the northern side which also originally belonged to the plaintiff''s ancestors
comprised in Cadastre No. 556/2 had been gifted to the first defendant/ first respondent temple and since 1970 the first defendant had been
leasing out the same through public auction; the plaintiff had been cultivating the land, gifted to the first defendant, on the northern side of his
property as a lessee and had been paying lease amount to the first defendant; while so, during the recent survey, conducted by the Survey
Department, the suit property was mistakenly included as the property belonging to the first defendant and mutation was effected in its name; the
plaintiff coming to know about this mistakes, petitioned before the Directorate of Settlement, Survey and Land Records, to rectify the error
committed; pursuant to hearing the plaintiff and the first defendant, and perusing the records produced by them before the Director of Survey and
Land Records, Pondicherry, by proceedings dated 3.6.1985 in S.P.No. 7/85 El it was held that the change of patta on the suit property in favour
of the first defendant was erroneous, and, therefore, further direction was given for inscribing the patta for the suit property in the name of the
plaintiff, however, due to local factions in the village, the first defendant and the erstwhile President to the temple deliberately auctioned the suit
property comprised in Cadastre No. 556/2; the plaintiff sent a legal notice, dated 31.1.1981 to the erstwhile President of the first defendant/
temple explaining the error committed during resurvey and called upon him to rectify the mistake; however, the first defendant represented by a
new President in collusion with the erstwhile President had auctioned the suit property to the second defendant in Margazhi, 1985 for lease amount
of Rs. 250 as soon as the plaintiff had harvested his paddy crop in the suit property, the second defendant forcibly entered into it and started
cultivation of paddy; the plaintiff sought the help of the police, who turned him away saying that his remedy was in the civil Court; and the suit was
therefore necessitated.
The first defendant filed a written statement and the same was adopted by the second defendant.
The plaintiff was unable to trace out his ancestral title to the suit property; there was no gift as claimed by the plaintiff; the entire property without
any division whatsoever including the suit property belonged to and was in the enjoyment of the first defendant temple; the survey proceedings
were denied; the entire property was leased out by the first defendant from time immemorial through public auction and in fact the plaintiff had
participated as a tenant prior to the lease hold by one Arumugam; the plaintiff was estopped from contesting the title of the first defendant to the
suit property; the Government of Pondicherry by its notification in its Official Gazette dated 12.9.1983 Vol.No. 98, page 521 had shown the entire
extent of the property inclusive of Cadastre No,556/1 as belonging to the first defendant/ temple and in such a situation the plaintiff could not claim
protection under the decision of the Department of Survey and Land Records to the contrary; the allegation that the second defendant took
forcible possession was not true; the second defendant took possession of the same from one Arumugam, the previous tenant of the suit property;
and there was no cause of action for the suit.
The trial Court framed the necessary issues and on the oral and the documentary evidence held that the plaintiff was not estopped from
questioning the right of the first defendant since the plaintiff himself participated in the auction proceedings related to the property north of the suit
property, that in the survey proceedings the error was rectified in favour of the plaintiff in the presence of the first defendant represented by D.W.I
and the same not having been challenged before any competent appeal Forum envisaged under the Pondicherry Settlement Act, 1970, the
records/Ex.A-1, as rectified and evidenced, exhibiting name of P.W.I as the owner in respect of the suit item had become final; that the first
defendant was not the owner of the suit item; that the suit item was purported to have been leased out only under Ex.B-2, on 21.11.1984 to D.
W.2 and for the first time mention had been made of the suit item and this document having come into existence after the re-survey proceedings
and subsequent to publishing of Ex.B-5 Gazette notification, no solemnity could be attached to the same; that there was cause of action for the suit;
and that the Government publication under Ex.B-5 did not clothe the first defendant with any title. Thus holding, the trial Court granted a decree in
favour of the plaintiff.
However, on appeal in A.S.No. 202 of 1988, the learned Second Additional District Judge, Pondicherry, reversed the decision of the trial
Court, allowed the appeal, and dismissed the suit holding that the Government publication was sacrosanct and would clearly prove the title of the
first defendant/ temple.
It is as against that the present second appeal had been filed.
At the time of admission the following substantial questions of law were raised for decision:
(1) Whether the Court below was right in brushing aside the evidence adduced on the side of the appellant viz., Ex.A-2 to Ex.A-4, in its entirety
and in not considering Ex.A-1 and depositions of P.Ws.1 and 2 in its proper perspective, while dismissing his suit for declaration and for to
recovery of possession?
(2) Whether the Court below was right in holding that it is the only civil Court that has to consider the correctness of Ex.A-1 and then decide the
issue by giving a finding with reference thereto, contrary to the provisions u/s 25 of the Pondicherry Settlement Act, 1970, barring the jurisdiction
of the Civil Court to set aside or modify the order passed by the Settlement Officer?
Mr.Karunakaran, learned Counsel for the appellants, submitted that the lower appellate Court has misconstrued the various documents and
erred in not taking proper note of the settlement proceedings where corrections had been properly carried out and these corrections had been
made subsequent to the Gazette publication by the Government. According to the learned Counsel there was no provision either in the Act or in
the Rules empowering the Government to issue notification and the defendants not having challenged the settlement corrections, it was not open to
them to claim title of the suit property.
The learned Counsel for the respondent contended that the plaintiff had not produced any title deed in support of his case for declaration of
title and it had been found that he had admitted that the suit property belonged to the first defendant.
The suit property is described as follows:
Pondicherry Registration District, Bahour Sub-Registry, Bahour Commune, Soriankuppam Village, Dry Land Cad.No. 556/l, Resurvey No.
158/3, measuring 5 ares 60 c.a. i.e., 10 kulis 7/16-North of the canal, east of the land No. 557 belonging to Sedal Sengeni Mariamman Koil,
South of the Land No. 556/2, belonging to Selai Sengeni Mariamman temple and West of the Land No. 535 belonging to Valliammal and Land
No. 534 3/3 belonging to Masilamani.
The northern property is shown as Cad.No. 556/2 belonging to Sedal Sengeni Mariamman Koil. The plaintiff relies on Exs.A-1 to A-4 in
support of this title to the suit property. Ex.A-2 is an Extract of the Matrice Cadastral issued by the Contribution Department of the erstwhile
French Government of Pondicherry in the name of P.W.I containing nine items of properties registered in his name. The sixth item of property in
Ex.A-2 is a dry land bearing Cad.No. 556/1 having an extent of 05A-60C and described to be comprised within the land bearing Cad.No. 556.
This was issued on 3.12.1959 at Matrice No. 23 pertaining to Courouvinatham Village, Bahour Commune. This document/ Ex.A-2 being an old
document and the genuineness not having been challenged, the title of the plaintiff to the suit property must be accepted. Nothing has been stated
by the first defendant against Ex.A-2. Though the trial Court has referred to Ex.A-2 and relied on it, the lower appellate Court has not adverted to
it at all. On the contrary, the lower appellate Court has relied on Exs.B-1 to B.4 to prove the title of the first defendant. Ex.B-1 purports to be a
lease deed dated 29.11.1981. A perusal of the document clearly shows that it has been tampered with and the Cadastre Number has been
altered. This has been noticed by the trial Court while the lower appellate Court has not adverted to this at all. The tampering with the document
appears to be deliberate and absolutely no reliance could have been placed on this document by the lower appellate Court. So far as Exs.B-3 and
B-4 are concerned, they do not relate to the suit time at all. So far as Ex.B-2 is concerned, it had come into existence after the publication for
auction on 21.11.1984 and for the first time there is mention about the suit item by D.W.1. In as much as it has come into existence after the re-
survey proceeding in favour of the plaintiff, rightly did the lower Court reject Ex.B-2, while the lower appellate Court has glossed over it. Ex.A-3 is
dated 23.2.1966 which shows that the plaintiff had dealt with the property by mortgaging the same. The lower appellate Court has held against the
plaintiff on the ground that in Ex.B-5 dated 2.9.1983 Gazette issued by the Government of Pondicherry it had been claimed that the suit property
belonged to the Government and the plaintiff had not objected to the same and therefore he could not claim any right, title or interest in the suit
property. The lower appellate Court has clearly overlooked the effect of Ex.A-1 proceedings, dated 3.6.1985 after the Gazette publication on
2.9.1983. We may also incidentally notice that the Government cannot create title by publication in a Gazette and it can, at the most, declare an
already existing title. It cannot also confer any title on the first defendant merely because the plaintiff had not filed any objection within any
stipulated period. However, the lower appellate Court has brushed aside the probative value of Ex.A-1 proceedings of the Settlement Officer,
dated 9.6.1985. The plaintiff had noted that the suit property had been shown as the property belonging to the first defendant without reference to
him. Therefore he applied to the Survey Department for rectification after notice to the first defendant and after hearing both parties and perusing
the documents the survey Department held that there had, indeed, been a mistake as claimed by the plaintiff and corrections directed to be made.
Consequent to the said direction, corrections were made and the plaintiff was shown as the owner of the suit property. The corrections were made
in the presence of the first defendant. Section 23 of the Pondicherry Settlement Act, 1970 (Act 28 of 1970) provides for corrections of mistake in
records. There is a right of appeal provided u/s 20 and Section 25(1) specifically bars suits in civil Courts to set aside or modify and assessment
made under this Act. It has not been shown by the respondents as to why they did not take the matter by way of appeal or revision as provided
under the Act. As already noticed, by mere publication in the Gazette the Government cannot claim any title to any particular property. The lower
appellate Court has misconstrued various documents, relied on total inadmissible documents, ignored the vital documents filed on the side of the
plaintiff and grievously erred in holding against the plaintiff. It had not considered the deposition of P.Ws.1 and 2 in proper perspective and it has
not properly construed the provisions of the Pondicherry Settlement Act, 1970. The plaintiff had proved his title by providing material documents.
His possession also has been recognised and it must be construed to be lawful.
It has been held in Ismail Ariff v. Mohamed Ghouse ILR 20 Cal. 834, that
...lawful possession of land was sufficient evidence of right as owner as against a person who had no title whatever and who was a mere trespasser
and that the former could obtain a declaratory decree and an injunction restraining the wrong doer.
I have followed this principle in S.A.No. 959 of 1997 and granted declaration and injunction on the basis of lawful possession. That will
squarely apply to the facts of the present case. Consequently, both the substantial questions of law are answered in favour of the appellants. The
second appeal succeeds. The judgment and the decree of the lower appellate Court are set aside and those of the trial Court restored There will
be no order as to costs.