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Judgment
G. Rajasuria, J.—This second appeal is focussed by the first defendant, animadverting upon the judgment and decree dated 28.9.2007
passed by the Sub Court, Pollachi, in A.S. No. 7 of 2007, confirming the judgment and decree dated 31.8.2006 passed by the District Munsif
cum-Judicial Magistrate, Valparai, in O.S.No. 108 of 2001, which was one for declaration. The parties, for the sake of convenience, are referred
to hereunder according to their litigative status and ranking before the trial Court.
Compendiously and concisely, the germane facts absolutely necessary for the disposal of this second appeal would run thus:
(a) The first respondent herein, as plaintiff, filed the suit O.S.No. 108 of 2001 as against the defendants, namely, 1. Shanmugaiah and 2.
Chinnapparaj, seeking the following reliefs:
a) to declare that the plaintiff has got rightful title to the property described in the schedule hereunder, and to direct the defendants to surrender
possession of the said property to the plaintiff.
b) to direct the 1st defendant to pay damages for use and occupation of the property at the rate of Rs. 1000/- per month from 04.07.2000 till this
date and future profit at the said rate from the date of suit till the date of delivery of possession of the property.
c) to direct the defendants to pay the costs of the suit to the plaintiff.
(extracted as such)
(b) The averments in the plaint could succinctly and precisely be set out thus:
(i) The plaintiff company being the one incorporated under the Companies Act, 1956, was assigned with a vast extent of land in S.No. 17/3A2B
situated in Annamalis, Valparai Taluk, by the then Government of Madras as per G.O.No. 948 dated 10.5.1929, for developing the land into Tea
plantations. The area so developed includes the lands covered by fuel trees, factory buildings, labour lines, officers'' quarters, swamp etc.
(ii) The company developed that area into a full-fledged estate, which resulted in influx of people directly or indirectly connected with the affairs of
the estate. Ultimately, the company provided facilities for their shopping. With that goal, the shopping center called ''Mudis Bazaar'' was
established by the plaintiff company in a portion of the area referred to supra by putting up at its cost the buildings and shops and licencing them in
favour of various persons in consideration of payment of licence fee. Each shop was assigned with a distinct number. The plaintiff has been paying
property tax for those structures.
(iii) The shop bearing Door No. 26 Mudis Bazaar was allotted to D1-Shanmugaiah''s father Nallakannu by virtue of the deed of licence-Ex. A12
dated 1.12.1990 for the purpose of running finance business, subject to his liability to pay a monthly licence fee of Rs. 49 to the plaintiff.
(iv) On the death of Nallakannu, his son-D1-Shanmugaiah became the licensee under the plaintiff and he had been continuing there, subject to the
same terms and conditions, which his father agreed to while entering into the suit premises.
(v) Recently D1-Shanmugaiah inducted D2-Chinnapparaj in a portion of the building and both D1 and D2 are in joint possession of the building.
(vi) Since the plaintiff required the premises described in the schedule of the plaint for its purpose, the said licence was cancelled by issuing the
notice dated 17.2.2000 and D1 was called upon to vacate and hand over possession of the suit premises.
(vii) Earlier R.C.O.P. proceedings were initiated as against D1, anticipating that he might claim the status of a tenant, but the proceedings got
terminated with the finding that the plaintiff should approach only the civil Court for redressal. Whereupon, the suit was filed seeking the aforesaid
reliefs.
(c) D2 remained ex-parte and D1 filed the written statement and the additional written statement, oppugning and impugning, challenging and
refuting the allegations/averments in the plaint; the warp and woof of the same would run thus:
(i) The plaintiff is not the owner of the suit property. D2 is not a sub-licensee or sub-tenant under D1-Shanmugaiah.
(ii) D1 and his predecessor in title have been in possession and enjoyment of the suit property for over 55 years.
(iii) In fact, D1-Shanmugaiah filed the counter claim. Since Court fee was not paid, the same was not entertained.
(d) The plaintiff filed the reply statement refuting the contentions in the written statement.
(e) Whereupon issues have been framed. Up went the trial, during which, on the plaintiff''s side, P.Ws. 1 to 3 were examined and Exs. A1 to A66
were marked. The first defendant-Shanmugaiah examined himself as D.W. 1 and marked Exs. B1 to B47.
(f) Ultimately, the trial Court decreed the suit, as against which, the appeal was filed for nothing but to be dismissed by the first appellate Court,
confirming the judgment and decree of the trial Court.
Challenging and impugning the judgments and decrees of both the Courts below, this second appeal has been focussed by D1-Shanmugaiah on
various grounds and also suggesting the following substantial questions of law:
(a) Whether the Courts below erred in law and misdirected themselves in granting the relief of declaration and recovery of possession merely on
the basis of the assignment order (Ex. A2) in the absence of any other oral or documentary evidence of title to the suit property in favour of the
plaintiff?
(b) Whether the courts below erred in law and misdirected themselves in decreeing the suit on the basis of revenue documents in the absence of
any evidence or explanation for entitlement of more extent of lands by the plaintiff when admittedly lesser extent is granted under Ex. A2?
(c) Whether the present suit is hit by the principle of constructive resjudicata in view of the dismissal of the RCOP. No. 7 of 2000 filed in respect
of the very same suit property especially between the parties to this lis?
(d) Whether the Courts below are right in law in decreeing the suit in the absence of any document of title in the name of the plaintiff particularly
when the suit is bad for non joinder of necessary and proper parties in view of the conditional assignment deed dated 10.5.1929?
(e) Whether the courts below have considered the principle of settled position in the light of the law declared by the Honourable Supreme Court in
2004(3) LW 143 (SC)?
(extracted as such)
The learned counsel for the appellant/first defendant would pyramid his arguments, which could succinctly and precisely be set out thus:
(i) Both the Courts below fell into error in not appreciating the fact that the plaintiff is not the owner of the suit property. Even as per the document
relied on by the plaintiff, so to say, Ex. A2-G.O.No. 948 dated 10.5.1929, the Government only virtually gave permission to the plaintiff company
to use the said land measuring an extent of 5851 acres out of the total extent of 5918 acres in Annamalis, Valparai Taluk purely for the purpose of
setting up a tea plantation. The Government reserved its right to take back the land also. In such a case, granting the prayer for declaration of the
plaintiff''s absolute title in respect of the suit property, is a well-neigh impossibility, but both the Courts below never concentrated on that aspect;
however they simply declared as though the plaintiff is the absolute owner of the suit property.
(ii) There is nothing to indicate and exemplify that the suit property forms part of the land allotted by the Government in favour of the plaintiff under
Ex. A2.
(iii) Patta will not confer title.
(iv) Without any procedure having been followed, the Tahsildar simply issued the regular patta, which would not be taken as the title deed of the
plaintiff.
(v) At no point of time there was any connection between D1''s father Nallakannu and the plaintiff.
(vi) The plaintiff cannot claim that construction of the shop premises is part and parcel of the objectives, for which the allotment was given by the
Government in favour of it under Ex. A2.
(vii) D1''s father of his own accord had put up the shed and started occupying it and on his death, D1-Shanmugaiah continues in possession of the
suit premises.
(viii) The so called licence deed-Ex. A12 does not contain the signature of Nallakannu.
(ix) No steps have been taken to establish that Nallakannu signed the said licence deed. Had Nallakannu continued as the licensee under the
plaintiff, then as claimed by the plaintiff, the licence fees must have been collected from him every month and his signature should have been
obtained evidencing the issuance of such receipt in his favour. But no such evidence was let in.
(x) Simply because the plaintiff company is a big one, it cannot try to erode the rights of the D1, who is carrying on a small business in his own
shop.
(xi) Both the Courts below assumed and presumed as though the case of the plaintiff is true and valid.
(xii) After the dismissal of the RCOP filed by the plaintiff as against D1, they have, without any basis, chosen to file the present suit, which is barred
by resjudicata.
(xiii) Both the Courts below failed to take note of all these salient features, but decreed the suit, warranting interference in second appeal.
Per contra, in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the appellant/D1, the learned counsel for the
plaintiff would advance his arguments, the warp and woof of the same would run thus:
(i) The exhibits marked on the side of the plaintiff would unambiguously and unequivocally highlight and spotlight, display and demonstrate that the
plaintiff became the absolute owner of the suit property.
(ii) The confirmation of patta by the Government would amply make the point clear that the plaintiff became the owner of the suit property and D1
is having nothing to do with the suit property except that he is squatting in the property, despite cancellation of the licence.
(iii) The identity of the suit property is beyond doubt.
(iv) The Tahsildar''s evidence unambiguously and unequivocally demonstrate and display that earlier in S.No. 17/3A an extent of 5851.31 acres
was allotted by the Government in favour of the plaintiff company. Subsequently, an extent of 4.46 acres was taken away from the said total extent
and it was assigned the number as S.No. 17/3A1 and allotted to P.W.D. for the construction of Solaiyar Dam. Thereafter, from out of the
remaining extent of 5846.85 acres, an extent of 0.37 acres was carved out and assigned the number as S.No. 17/3A2A and given to the
Telephone Exchange. As such, what remains now with the plaintiff is an extent of 5846.48 acres in S.No. 17/3A2B.
(v) In the aforesaid fashion alone the original S.No. 17/3A got sub-divided and in the present S.No. 17/3A2B, the suit property forms a molecular
extent. As such, the title of the plaintiff is beyond doubt.
(vi) The prayer for declaration was added in the plaint purely for the purpose of abundant caution, because D1 went to the extent of disputing the
title of the plaintiff and also the relationship of licensor-licensee between the plaintiff and D1.
(vii) The evidence on record would amply display that there existed licensor-licensee relationship between the plaintiff and D1''s father, namely,
Nallakannu.
(viii) It is only an after thought on the part of D1 to dispute the very relationship of licensor-licensee between the plaintiff and D1.
(ix) Both the Courts below, after analysing the evidence in entirety, held that the denial of D1 is nothing but a frivolous one and gave a concurrent
finding, warranting no interference in second appeal.
On hearing both sides, I was of the considered view that the following substantial questions of law have to be framed and accordingly framed to
the knowledge of both sides.
(i) Whether both the Courts below, applying, in stricto senso the incidents and ingredients of absolute ownership, analysed the evidence and held
that the plaintiff is the absolute owner of the suit property and whether in the facts and circumstances of this case, the plaintiff is under the constraint
to pray for any declaration of its absolute title over the suit property?
(ii) Whether both the Courts below, in the absence of proving the signature of Nallakannu in the licence deed-Ex. A12 and also in the absence of
licence fee receipts, were justified in holding that there was licensor-licensee relationship between the plaintiff and Nallakannu and that after the
death of Nallakannu, D1 continued to be a licensee under the plaintiff?
(iii) Whether there is any perversity or illegality in the judgment and decree of the Courts below?
At the outset itself, I would like to fumigate my mind with the following maxims:
(i) Affirmatis est probare He who affirms must prove.
(ii) Affirmanti, non neganti incumbit probatio The burden of proof lies upon him who affirms, not upon one who denies.
It is the duty of the person who affirms a particular fact to prove it and he cannot call upon the other side to prove the negative aspect.
Accordingly if viewed, the burden of proof is on the plaintiff to adduce evidence. Ex. A2-The G.O.No. 948 Revenue Department dated
10.5.1929 ex facie and prima facie would connote and denote, portray and project that the then Madras Government, during British Regime in
India, allotted the aforesaid big extent of land with certain conditions, but without conferring absolute ownership in favour of the plaintiff. The
mandate as contained in the said allotment was that the plaintiff should develop the property as a tea plantation and that the area should not be
converted for any other purpose and the Government retained its power to take back the land.
Subsequently, no doubt, as claimed by the plaintiff, patta, as revealed by Ex. A3, was issued by the Revenue Department, which would
contain the nomenclature as patta No. 1, ''Thanipatta''.
The plaintiff prayed for declaring the entire property as their absolute property, so to say, asserting absolute ownership. In such a case, the
burden is on the plaintiff to prove that they acquired absolute ownership over the suit property, so to say, the power of alienation, encumbrance
and conversion etc. But both the Courts below have not applied their mind on that aspect, but simply decreed the suit.
The learned counsel for the plaintiff in all fairness would submit that the purpose of having included such prayer for declaration in the plaint is to
get evicted the defendants, on the strength of their paramount right to take back the suit property, so to say, the shop bearing Door No. 26 from
the defendants and not for any other purpose.
When such is the requirement of the plaintiff, I am at a loss to understand as to why such a larger prayer for declaration of title should have
been asked for. No doubt, in the event of the plaintiff failing to prove the licensor-licensee relationship between the plaintiff and D1, or D1''s father,
then only the question of proving the plaintiff''s paramount right to get immediate possession from the defendants has to be gone into. As such, I
would like to clarify that the Courts below, without really understanding the issue, simply decreed the suit with regard to the first relief of
declaration is concerned.
The learned counsel for the plaintiff would argue that Ex. A12-the licence deed contains the signature of Nallakannu-the father of D1; and D1
being his son, now for the purpose of squatting in the property, disputes his father''s signature.
I am fully aware of the fact that in all cases expert assistance need not be resorted to for the purpose of proving the disputed signature. But if
the plaintiff could not establish the genuineness of the said document, then there would be no harm in even taking the assistance of a handwriting
expert in proving the disputed signature.
If at all the plaintiff received the licence fee from Nallakannu, for decades together, then certainly, the plaintiff being a company, must have
records maintained in the regular course of its business and that would probabilise its case. But in this case, no such evidence was adduced by the
plaintiff.
When this Court raised the query on the aforesaid line, the learned counsel for the plaintiff would submit that there are overwhelming evidence
in that regard that the licence fee was collected from the father of D1 and also from D1; however, receipt was issued only in the name of
Nallakannu. In such a case, the plaintiff should have adduced best evidence before the lower Court.
When the plaintiff in the plaint itself realised that D1 went to the extent of disputing the title of the plaintiff and also the relationship of licensor-
licensee, then the plaintiff was expected to be diligent in adducing the best evidence available. But in this case, the plaintiff did not choose to
adduce such evidence.
No doubt, the judgment of the trial Court would reveal that on the plaintiff''s side Exs. A1 to A67 were marked. But absolutely there is nothing
to indicate that any receipt evidencing and exemplifying that the licence fee was collected from D1 or D1''s father, was filed in Court.
The plaintiff mainly concentrated in convincing the Court that they have been paying property tax and other dues to the Government. But in
order to establish the licensor-licensee relationship, in my considered opinion, the evidence was not adduced by the plaintiff and as such, it is
expected to adduce the best evidence in that regard.
On the defendants'' side, Exs. B1 to B13 were marked. I would like to point out that precisely there is no evidence to show up and convey as
to when Nallakannu-the father of D1, of his own accord had put up the shed and got the shop number as 26 and when he had started enjoying the
suit property as the owner. No doubt, I am fully aware of the maxim ''Jus superveniens auctori accrescit successori'' An additional or enhanced
right for the possessor accrues to the successor.
The person who stepped into the shoes of the previous owner can claim the rights of the previous owner, but the fundamental point to be
established is as to when D1''s father constructed the shop at his own instance and when he had started enjoying it independent of the plaintiff''s
control and licence. That evidence is lacking on the part of D1.
The learned counsel for the D1 would vehemently argue that there is nothing to indicate and exemplify that the suit property forms part of the
extent allotted by the Government under Ex. A2. However, Ex. A4 would evince and convey and exemplify as to how the original S.No. 17/3A
got bifurcated and trifurcated and ultimately the extent of 5846.48 acres is with the plaintiff under S.No. 17/3A2B.
The learned counsel for the plaintiff also, by inviting the attention of this Court to Ex. A60-the Chitta, would submit that the aforesaid changes
were effected as per the order passed by the Revenue authority on 4.3.1990.
The preponderance of probabilities would govern the adjudication in civil cases. If at all D1 wants to insist upon his contention that the shop
bearing Door No. 26 is situated outside the S.No. 17/3A2B, then it is for him to rebut it. I do not think that D1 rebutted it. But the plaintiff by
relying on the aforesaid documents and also by P.W. 3''s deposition would establish that the suit property bearing the shop No. 26 is situated in a
small area in the aforesaid survey number, namely, S.No. 17/3A2B.
D1 would deny and refute the claim of the plaintiff that Nallakannu was paying licence fee during his life time and following him D1 also paid
licence fee in the name of Nallakannu. To the risk of repetition and pleonasm, but without being tautologies, I would like to reiterate that there is no
evidence in that regard and both the Courts below have not concentrated on that aspect. Nothing could be presumed unless law envisages certain
facts should be presumed.
Accordingly the substantial questions of law are answered as under: Substantial Question of Law No.(i) is decided to the effect that both the
for a below have not applied the incidents and ingredients of absolute ownership and analysed the evidence in holding that the plaintiff is the
absolute owner of the suit property.
Substantial question of Law Nos.(ii) & (iii) are answered to the effect that both the Courts below, in the absence of proving the signature of
Nallakannu in the licence deed-Ex. A12 and also in the absence of licence fee receipts, were not justified in holding that there was licensor-licensee
relationship between the plaintiff and Nallakannu and that after the death of Nallakannu, D1 continued to be a licensee under the plaintiff.
Both sides dilated on various points, but the plaintiff failed to adduce evidence in a clinching manner concerning the licensor-licensee
relationship and hence, I am of the considered view that the matter has to be remitted back to the first appellate Court setting aside its judgment
and decree, with the following direction.
The first appellate Court shall give due opportunity to both sides to adduce additional, documentary and oral evidence in order to substantiate their
respective pleas and more so, to establish the facts indicated by this Court in the body of this judgment. With this mission, the matter is remitted
back to the first appellate Court. The first appellate Court shall do well to see that the matter is disposed of within a period of six months from the
date of receipt of a copy of this order.
The second appeal is disposed of accordingly. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.