S.Soosai Manickam & Ors. vs R.C.Mission & Ors.

The S.A.(MD)No.604 of 2012 is filed against the Judgment and Decree dated 02.02.2012 passed in A.S.No.112 of 2010 on the file of the Sub Court, Sivagangai confirming the Judgment and Decree passed dated 26.07.2010 in O.S.No.65 of 2009 on the file of District Munsif Court, Sivagangai.

The appellant is the plaintiff in the suit and the respondent is the defendant in the suit. For the sake of convenience, the parties are referred as plaintiff and defendant as per the ranking in the suit or by their names.

3.(i) The brief facts as stated in the plaint are that originally the punja lands in S.Nos.5/4, 5, 6, and 7 belongs to the plaintiff’s father Savraimuthu Udayar who had purchased the said property through sale deed dated 20.08.1931 and he was in possession and enjoyment of the property by cultivating punja crops and also by growing trees and digging a well. After the death the plaintiff’s father, the plaintiff as his legal heir has become the absolute owner of the lands. A dispute arose between the plaintiff and one Kaspa and Arulsekar in respect of S.No.5/4, hence O.S.No.62 of 2003 was filed by the plaintiff and suit was decreed in favour of the plaintiff declaring that the land admeasuring 27 cents in S.No.5/4 belongs to the plaintiff. The plaintiff’s father and plaintiff were illiterate and failed to obtain patta in their names. Under these circumstances, while settlement survey the patta entry for the suit property namely S.No.5/5 was wrongly entered by mistake in the name of the defendant. To establish the same the certified copy of the A Register was produced, in the said register it is entered that the S.No.5/4 belongs to the plaintiff’s father Savarimuthu Udayar and the said old S.No.5/4 has been divided into S.No.5/5 and the name of the ownership is entered as R.C.Mission for the S.No.5/5. Even though the entry for S.No.5/5 has been made in the name of the R.C.Mission under Patta No.11 in the A register, the kist for the said land in Patta No.11 has been paid by the plaintiff and he has been in possession and enjoyment of the said land.

3.(ii) The fact the patta was issued for lesser extent came to the knowledge of the plaintiff in the year 2003, hence he filed a petition on 05.03.2003 in A1/2108/2003 before RDO to change the patta in his name by rectifying the mistake, but he was directed to file an appeal before DRO vide order dated 11.09.2006. Then an appeal was filed on 14.11.2006 and the DRO directed the Tahsildar to take action, but the Tahsildar had not taken any action. Hence the plaintiff filed a petition dated 23.01.2008 to RDO and he had held vide order dated 04.04.2008 that he has no jurisdiction to change settlement patta and appeal was preferred to DRO and the same was also dismissed on the issue of jurisdiction vide order dated 12.03.2009. Taking advantage of the above orders, the defendant tried to enter into the suit property and the plaintiff prevented the same. Hence the suit for declaration that the plaintiff is the absolute owner of the suit property and consequential permanent injunction restraining the defendant from interfering in the peaceful possession and enjoyment of the suit property.

The defendant had filed written statement wherein it is stated that the plaintiff’s father had never purchased the property in S.Nos.5/4, 5, 6, and 7 at any point of time and defendant denied the claim of the plaintiff. In O.S.No.62 of 2003 the defendant was not a party and hence the said decree would not be binding on the defendant. The plaintiff admits that the settlement patta was issued for S.No.5/5 in the name of the defendant’s name. The settlement pass book and UDR patta stand in the name of the defendant till date in the village accounts and the defendant is paying tax for the same. But from the settlement period till date no patta was granted either in the name of the plaintiff or in his father’s name Savarimuthu Udayar and they never paid any tax. The plaintiff’s claim was rejected by the RDO and DRO based on the patta and continuous possession of the defendant. The suit is vexatious. The fact remains that the suit property was assigned to R.C.Mission Soosaiyapparpattinam through gift settlement and so the Zameen Theerwapat Patta (Zameen Rough Patta) was granted to the defendant by the Sivagangai Zamindar on 01.03.1935. Thereafter during settlement survey, the old S.No.5/4 was converted as S.No.5/5 and got entered in the A Register in the name of R.C.Mission and the settlement patta for S.No.5/4 was granted in the name of Pu.Sa.Savarimuthu Udayar. Hence this fact could not be denied by the plaintiff. The plaintiff has to prove that he is the legal heir of the said Savarimuthu Udayar. The plaintiff has not paid proper court fees. The boundaries have not been stated by the plaintiff. Hence the defendant prayed to dismiss the suit.

Based on the above pleadings, the Trial Court framed the following issues:

On the side of the plaintiff PW1 to PW3 were examined and Ex.A1 to Ex.A17 were marked. On the side of defendant DW1 & DW2 were examined and Ex.B1 to Ex.B5 were marked. After considering the oral and documentary evidence adduced by both parties, the Trial Court dismissed the suit. Aggrieved over, the plaintiff preferred Appeal Suit in A.S. No.112 of 2010. The Appellate Court framed the following points for consideration:

After considering the above points for consideration, the Appellate Court confirmed the Judgment and Decree passed by the Trial Court and dismissed the Appeal Suit.

Aggrieved by the concurrent findings, the present Second Appeal has been filed by the plaintiff. At the time of admission, the following substantial question of law was framed:

Heard Mr.V.K.Vijayaragavan, the Learned Counsel appearing for the appellant / plaintiff and Mr.S.Ramesh, the Learned Counsel appearing for the respondent / defendant and perused the records.

The plaintiff claims right over the property through title deed and is relying on the sale deed dated 20.09.1928 executed by the plaintiff’s father Savarimuthu Udayar in favour of one Marimuthu Konar marked as Ex.A1. Thereafter the plaintiff’s father had re-purchased the same property from the said Marimuthu Konar after three years through sale deed dated 20.08.1931 marked as Ex.A2.

On the other hand, the contention of the defendant is that the Sivagangai Zamindar had gifted the property to R.C.Mission and issued Zameen Theerwapat Patta (Zameen Rough Patta) on 01.03.1935. This Court is of the considered opinion that the sale deed has more evidentiary value. It is pertinent to note that the plaintiff’s sale (20.08.1931) is prior to the defendant’s alleged Theerwapat Patta (01.03.1935) and the defendant is silent about the date of the alleged gift. Moreover, the defendant claims that the said property was gifted to the R.C.Mission by the Sivagangai Zamindar (without stating the date of gift), then it ought to be taken as oral gift. But under law only written gift is acceptable and not oral gift. Moreover, it ought to be registered and unregistered gift cannot be accepted under law. Further the defendant had not produced any gift deed to prove his case. Further the Zameen Theerwapat Patta (Zameen Rough Patta) cannot be a valid document to prove the title to the defendant, that too when the plaintiff has sale deed in his favour. Further it is seen that the defendant had not produced the said Zameen Theerwapat Patta (Zameen Rough Patta). In such circumstances, the plaintiff is having better title to the property based on the sale deeds marked as Ex.A1 and Ex.A2.

The Learned Counsel appearing for the defendant submitted that the plaintiff ought to prove his case, the plaintiff ought to stand or fall on his own documents and the plaintiff cannot take the weakness of the defendant. This Court is of the considered opinion that it is settled principle of law that the plaintiff ought to prove his case and he has to stand or fall on his own documents and weakness of other side cannot be taken advantage. In the present case the plaintiff has proved his title based on the sale deed marked as Ex.A1 and Ex.A2. In order to cross check and also in order to consider whether the defendant has better title than the plaintiff, the defendant’s title ought to be considered. It is also settled principle of law that the person claiming any right ought to prove his case. In the present case, the defendant is claiming right over the property based on gift from Sivagangai Zamin and also Zamin Theerwapatta, then the burden of proof lies on the defendant to prove that gift and Zamin Theerwapatta. But the defendant claims right through oral gift, which ought to be rejected. The defendant is claiming right through Zamin Theerwapatta, but has not produced the same. Therefore, this Court is of the considered opinion that the oral gift and Zamin Theerwapatta will not give any right to the defendant. Hence the plaintiff has better title based on plaintiff’s sale deeds.

At this juncture the Learned Counsel appearing for the appellant / plaintiff submitted that he had filed petition seeking permission to raise additional substantial question of law in C.M.P.(MD)No.11817 of 2024 and the same may be considered. The respondent / defendant has filed counter objecting to raise additional substantial question of law, wherein it is stated that the plaintiff cannot frame any question of law which has not been pleaded, the plaintiff has not stated anything about Inam Act (Act 26 of 1948) before the Trial Court, when the same was not pleaded, the same cannot be considered. This Court is of the considered opinion that when the plaintiff had relied on sale deed Ex.A1 and Ex.A2 to claim his title to the property, then the contents of the sale deed would become point for consideration, wherein it is stated that the document was executed based on Iruvaram rights (i.e. Melvaram and Kudivaram) and doing cultivation in the said property, then the Trial Court ought to have framed the issue as under:

Further it is seen, the defendant on the other hand had claimed settlement patta, then the Trial Court ought to have framed the following issue:

But none of the aforesaid issues were framed and the Trial Court had framed general issues i.e. “whether the plaintiff is in lawful possession and enjoyment of the suit property? And whether the plaintiff is entitled to the relief of declaration and consequential injunction as prayed for?”. In such circumstances, this Court is of the considered opinion in order to resolve the contention raised by both the parties, the additional substantial question of law is essential that too based on the sale deed of the plaintiff and the settlement patta of the defendant and hence the C.M.P.(MD)No.11817 of 2024 is allowed. The following additional substantial question of law is framed:

The contents of Ex.A1 and Ex.A2 clearly states that the plaintiff’s father was having iruvaram rights i.e. both the melvaram and kudivarm and the sale deed also states that the plaintiff’s father was doing cultivation and he is selling the both the varams to the said Marimuthu Konar under Ex.A1. Thereafter under Ex.A2 the plaintiff’s father had re-purchased the said property again the document mentions that melvaram and kudivarm rights are being sold and the land is used for cultivation. Therefore, it is evident that the plaintiff’s father was doing cultivation in the property and he was a ryot. Consequently, the plaintiff’s father was entitled to ryotwari patta for the entire extent stated in the document.

On the other hand, the defendant claims that the Sivagangai Zamin has given gift, as discussed supra “oral gift” cannot be recognized under law and it is illegal. If the defendant is claiming gift, then the next question that arises whether the said land is a private land of Zamin, but the defendant has not placed any records for the same. Moreover, it is an admitted fact that the Pallivayal Group is Inam Village even as per Ex.B1 marked on the side of defendant. If so, then the presumption under Section 185 of the Madras Estate Land Act, 1908 would strength the case of the plaintiff, wherein the proviso to the said section states that “provided that the land shall be presumed not to be a private land until the contrary is proved” and further states that the person claiming as private land ought to prove that the land was private land prior to 1898. At this juncture it is pertinent to note that the defendant is claiming settlement patta and also claims gift which is inconsistent to each other. When it is Zamin land then the person holding the land and doing cultivation would become ryot. The defendant being an institution, the said institution cannot be termed as ryot and hence there would not have been any settlement patta issued by the Zamindar or revenue authorities.

It is seen originally the land in S.No.5 (i.e. old survey number) was having only four survey numbers i.e. S.No.5/1 (extent 2 acres), 5/2 (extent 13 cents), 5/3 (extent 14 cents) and 5/4 (extent 2 acres 84 cents) and persons holding the land were paying “thirvai” and the revenue was collecting “thirvai” of Rs.1.12 from each survey numbers and the land was classified as Ryotwari Punja lands. These facts are evident from Ex.B1, the copy of the SLR dated 04.12.1961. In the present the dispute between the plaintiff and the defendant is regarding old S.No. 5/4 – extent of 2.84 cents alone. From the sale deeds Ex.A1 and Ex.A2, it is evident that the plaintiff was having the property with iruvaram rights and paying thirvai of Rs.1.12 from the date of sale 20.08.1931 Ex.A2. The plaintiff was paying thirvai (kist) from 1931 until 1961 for more than 30 years. The following receipts from serial (i) to (iv) are prior to Act 26 of 1948 and the serial (v) and (vi) are after Act 26 of 1948:

From the above it is evident that the plaintiff was paying thirvai for the suit land prior to Act 26 of 1948 for the period from 1932 to 1949 and then was paying kist for the period from 1959 to 1983, then from 1988 to 1993 i.e. for the period of 46 years. Even though the defendant claims that Patta No.11 was issued to them, it is seen that the plaintiff was paying kist for the said Patta No.11 for the period from 1959 to 1983, then from 1988 to 1993 which is evident from kist receipts marked in Ex.A12. On the other hand, the defendant claims settlement patta was issued as early as 1935, but has not produced any tax receipts for the years from 1935 onwards but has filed a single receipt for the year 1988 in Ex.B3, then another receipt without any date in Ex.B4 and computerized chitta dated 03.07.2009 Ex.B5. Further even though the defendant claim settlement patta, the defendant has not produced any settlement proceedings or settlement patta, but has produced the SLR dated 08.10.2003 Ex.B1, then UDR Patta No.807 Ex.B2. Therefore, this Court has to necessarily come to conclusion that there is no settlement proceeding issued by the revenue authorities. Moreover, when the plaintiff has proved that he is ryot in the said land, the burden shifts on the defendant that the same is not a ryot land but a private land belonging to the Zamindar and the Zamindar has right to gift the said land. But the defendant failed to do so. Further as held supra there is presumption clause favouring the plaintiff under section 185 of the Madras Estate Land Act, 1908. Even though the plaintiff has to prove his case, when the defendant put forth rival claim over the property through gift and theewarpatta, then the burden is on the defendant to prove his right over the property as held supra. But the defendant failed to do so. On the other hand, the plaintiff had proved that he is a ryot, he had purchased the property that too both melvaram and kudivaram through the sale deed Ex.A2.

The contention of the defendant is that the extent of the land does not coincide with the Ex.A1 and Ex.A2 and the property is not identifiable. But the plaintiff submitted that the boundaries would prevail over the extent and if the property is identifiable with four boundaries the same is sufficient. The plaintiff had relied on two judgments one reported in 2024-4LW-695 in the case of K.Subramaniam (died) and others Vs. A/M. Chokkalingasamy Koil Devasthanam wherein it is held that four boundaries are sufficient to identify the property and it is not necessary to indicate the door number. Another judgment reported in 2002 (5) CTC 660 in the case of Pratibha Singh and another Vs. Shanti Devi Prasad and another wherein the Hon’ble Supreme Court had held that the plaint should contain sufficient description of immovable property to ensure that the property is identified. If property can be identified by boundaries or numbers in record for settlement of survey, then plaint shall specify such boundaries or numbers. When property cannot be identified by boundaries or numbers then plaintiffs should file map of suit property annexed to plaint. The relevant portion is extracted hereunder:

If the defendant plea that the plaintiff’s property is not identifiable is entertained, then the defendant’s property is also not identifiable since no documents like settlement or gift deed are produced by the defendants. Hence such plea is suicidal to the defendant. Moreover, it is seen that the defendant admits that the plaintiff is entitled to the land in S.No.5/4, but the defendant only denies regarding the new S.No.5/5, therefore the plea of the defendant is for the sake of objection and there is no substance in the objection, hence the defendant plea is rejected.

Further it is settled law that the boundaries would prevail over the extent of the property. It is seen the sale deeds in Ex.A1 and Ex.A2 states as “Thondi Rasthaviku Vadaku”, which means the southern boundary is Thondi Road. If so, then the land is extending from new S.No.5/4, S.No.5/5 and S.No.5/6 until S.No.5/7 and the total extent would be 2 acres 84 cents (it is stated as 2.84 cents in the SLR register Ex.B1). Since S.No.5/6 is declared as an “odai”, a water body, the same would be vested with the government as per Act 26/1948, after the enactment of the Act. But prior to the Act i.e. prior to 1948 the said land was purchased by the plaintiff’s father in Ex.A2 in the year 1931. Therefore, this Court is of the considered opinion based on the principle of boundaries would prevail over the extent, since the southern boundary coincide with the Thondi Road, the entire extent of 2 acres 70 cents (may not be 2 acres 84 cents) of the property belongs to the plaintiff.

It is the case of defendant that zamin patta in Ex.A3 and Ex.A4 of the plaintiff does not corelate the suit property and for the same the defendant submitted that the patta is issued only for S.No.5/4 to an extent of 27 cents and S.No.5/4B and S.No.5/4D – 66 cents (50 +16 cents respectively). It is the case of the plaintiff that the old S.No.5/4 was having 2 acres 70 cents and he was having right of melvaram and kudivaram for the entire extent and he is entitled to patta for the entire extent at least for the extent of 3 kurukams, but patta was granted to the plaintiff for 27 cents by sub dividing the old S.No.5/4 and issued a patta in new S.No.5/4 for 27 cents and the same ought to be rectified and he is entitled to patta for the entire extent of 3 kurukams, for which he had approached the revenue authorities also, since he could not obtain any orders, he had filed the suit. It is seen that while sub dividing the old S.No.5/4, the respondents have initially divided as 5/4 and 5/4B & 5/4D and issued zamin patta to the plaintiff after leaving the odai portion and the plaintiff was under the impression that the patta was issued to the entire extent. But later on, the respondents have sub divided the old S.No.5/4 as new S.Nos.5/4, 5/5, 5/6, 5/7 and retained the S.No.5/7 as sarkar punja and S.No.5/6 as odai and issued patta to plaintiff in 5/4 and defendant in 5/5. When the plaintiff is a ryot in old S.No.5/4 for the entire extent of 3 kukukams (2 acres 70 cents or atleast 1 acre 68 cents), then the respondent ought to have issued patta to the plaintiff for the entire extent after deducting the odai portion. In fact, the respondent ought not to have retained the S.No.5/7 as sarkar punja, since there is no such classification as “sarkar punja”. Hence the plaintiff is entitled to patta for 3 kurukams as per sale deed. So, there is no difference as claimed by the defendant in his written arguments.

The plaintiff claims that he had purchased 3 kurukams and the 3 kurukams would measure 2 acres 70 cents of land since one kurukam is 90 cents. For which the plaintiff is relying on the reply issued from the Information Officer, wherein it is stated that based on local understanding colloquially it is 90 cents for one kurukum. On the other hand, the defendant submitted that the one kurukam is only 56 cents and relied on the judgment reported in 2002 4 LW 297 in the case of Ambala Thevar Vs. Challammal and others. This Court is of the considered opinion even if one kurukam is taken as 56 cents then the plaintiff is entitled to 1 acre 68 cents. If that is so, then the plaintiff is entitled to patta for the said 1 acre 68 cents. But the revenue has issued patta only for 27 cents, hence the patta issued for a lesser extent is erroneous. Further it is seen that the old S.No.5/4 before subdivision was measuring 2.84 cents. The same was subdivided subsequently in new survey numbers as under:

S.No.5/4 – 27 cents

S.No.5/5 – 1.10 cents

S.No.5/6 – 77 cents (odai)

S.No.5/7 – 70 cents The new S.No.5/4 measuring 27 cents (but the plaintiff is entitled to 1 acre 68 cents as per sale deed) and the S.No.5/6 which is an odai admeasuring 77 cents, since it is odai (water body) which would be vested with the government as per Act 26 of 1948, if the extent of 1 acre 68 cents is added to 77 cents, which comes to 2 acres 45 cents, thereafter the remaining available land is only 39 cents. In such circumstances, there is no land to an extent of 1 acre 10 cents which the defendant is claiming. Further the remaining 39 cents would come within the S.No.5/7 which is classified as sarkar punja and there cannot be any such classification as sarkar punja. On the other hand, if the claim of the plaintiff that one kurukam ought to be taken as 90 cents is considered, then the total extent comes to 2 acres 70 cents, then it is more or less coinciding with the total extent of the property as 2 acres 84 cents. In other words, only 14 cents is not the plaintiff’s property, but the remaining 2 acres 70 cents belong to the plaintiff as per his sale deed. The reply under right to information it is stated that the local understanding and colloquially it is 90 cents for 3 kurukams, the parties have executed the document in the year 1931 with local understanding and colloquially that it is 90 cents for 3 kurukams, then the plaintiff is entitled to 2 acres 70 cents. In such circumstances, the claim of the plaintiff that the plaintiff is entitled to 3 kurukams i.e. 2 acres 70 cents is absolutely valid. However, after enactment of Act 26 / 1948, the odai would be automatically vested with the government and hence 77 cents in S.No.5/6 classified as odai belongs to government and the remaining land admeasuring 2 acres 7 cents (since the available land is 2 acres 84 cents minus 77 cents) belongs to the plaintiff. The plaintiff was doing agricultural cultivation from 1931 in the said land and he is a ryot under Act 26/1948, hence the plaintiff is entitled to the said land of 2 acres and 7 cents of land in S.No.5/4, 5/5, 5/7 except 77 cents in S.No.5/6 (odai).

As far as S.No.5/7 measuring 70 cents was classified as “sarkar punja”, there cannot be any classification as Sarkar Punja. When the lands are assessed prior to Act 26 of 1948, then the S.No.5/7 cannot be classified as sarkar punja. Infact the plaintiff had filed a separate suit in O.S.No.77 of 2016 against the government challenging the classification of sarkar punja. When the plaintiff wants to mark the said suit before this second appeal, unfortunately the same was dismissed in CMP(MD)No.5028 of 2024.

It is so unfortunate while the plaintiff’s father and plaintiff was having right as melvaram and kudivaram for the extent of 2.70 (at least to an extent of 1.68 cents), the revenue divided the old S.No.5/4 as New S.No.5/4 – 27 cents, S.No.5/5 – 1.10 cents, S.No.5/6 – 77 cents and S.No.5/7 – 70 cents and made the plaintiff to file suit against the present defendant for S.No.5/5 for erroneous entry and to file another suit against the government for S.No.5/7 for erroneous classification as sarkar punja. The plaintiff even though he is claiming right over the S.No.5/6, but due to classification as odai and automatic vesting, the plaintiff may not be entitled to said S.No.5/6.

Based on the above discussion the substantial question of law and the additional substantial question of law are answered in favour of the plaintiff and against the defendant.

From the above discussion it is evident that the plaintiff has title over the suit property especially have right over the property in S.No.5/4 – 27 cents, 5/5 – 1 acre 10 cents and S.No.5/7 – 70 cents but the plaintiff is not having any right over S.No.5/6 – 77 cents (odai). Therefore, this Court is of the considered opinion that the Courts below erred in dismissing the suit. Accordingly, both the Judgments and Decrees are set aside and the second appeal is allowed.

In the result, both the Second Appeals in S.A.(MD) No.604 of 2012 is allowed and Judgment and Decree dated 02.02.2012 passed in A.S.No.112 of 2010 on the file of the Sub Court, Sivagangai confirming the Judgment and Decree passed dated 26.07.2010 in O.S.No.65 of 2009 on the file of District Munsif Court, Sivagangai are set aside. There shall be no order as to costs. Consequently, the C.M.P.(MD)No.11817 of 2024 is allowed and M.P.(MD)No.1 of 2012 is closed.