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Judgment
G. Rajasuria, J.—This appeal is focussed at the instance of D3 and D4, animadverting upon the judgment and decree dated 24.02.2005
passed in A.S. No. 101 of 2003 by the learned Principal District Judge, Dharmapuri @ Krishnagiri, confirming the judgment and decree passed
by the learned District Munsif cum Judicial Magistrate, Uthangarai in O.S. No. 110 of 2000 dated 27.06.2003. The parties are referred to
hereunder according to their litigative status and ranking before the trial Court.
Niggard and bereft of details, the germane facts absolutely necessary for the disposal of this Second Appeal would run thus:
The first respondent/plaintiff filed the suit seeking the following reliefs in respect of the suit property,
(i) To declare the title of the plaintiff to the suit property;
(ii) To grant permanent injunction in favour of the plaintiff restraining the defendants, their subordinates, their men, their agents, their friends and
their relatives in any way or in any manner interfering with the plaintiff''s peaceful possession and enjoyment of the suit property and also restraining
them from trespassing into the suit property and also restraining them from preventing the plaintiff from renovating and putting up further
construction and super structures in the suit property; and
(iii) For costs.
SCHEDULE OF PROPERTY
The house site situate in Dharmapuri District, Uthangarai R.D., Uthangarai S.R.D., Uthangarai Taluk, in Uthangarai Town and Village bearing the
survey Number; 96/10 to an extent of 0.01.5 Hectares (127 sq. meters) and the assessment is Rs. 2.00.p. And the Patta Number is 1074, which
lies within the following boundaries:
North of a land bearing S. No. 96/91;
South of a Bound bearing S. No. 96/8;
East of Suganthi''s house bearing S. No. 96/7;
West of Street bearing S. No. 97/22;
and inclusive of a dilapidated thatched shed.
(Extracted as such)
on the main ground that the said property was granted by the Government under Form No. 21 (Ex.A2). However, it is the grievance of the plaintiff
that subsequently he faced threat at the hands of the Government as well as D3/the Head Master, Government Boys Higher Secondary School,
Uthangarai and D4/the President, Parents Teachers Association, Government Boys Higher Secondary School Uthangarai.
Per contra, on the side of D1 and D2, the written statement was filed contending that the said Form No. 21 was obtained by the plaintiff, by
practising fraud and misrepresentation and the official of the Government was also in connivance with the plaintiff issued such Form No. 21 (Ex.
A2), which is liable to be cancelled and action also has been already initiated.
Accordingly they would pray for the dismissal of the suit.
Whereupon, D3 and D4 would portray and project in the written statement that the students and the staff of the School, namely, the
Government Boys Higher Secondary School, Uthangarai are using the suit property for having ingress and egress to the School and that cannot be
prevented by the plaintiff and the conferment of Form No. 21 (Ex.A2) was bad in law.
Whereupon, issues were framed.
During trial, the plaintiff-Rasulkhan examined himself as P.W. 1 along with P.W. 2-Perumal and Exs.A1 and A2 were marked. On the side of
the defendants, D.W. 1 and D.W. 2 were examined and Exs.B1 to B7 were marked.
Ultimately the trial Court decreed the suit, as against which the appeal was filed by D3 and D4, for nothing but to be confirmed by the appellate
Court.
Being aggrieved by and dissatisfied with the judgments and decrees of both the Courts below, this Second Appeal has been filed by D3 and D4
on various grounds.
However, my learned predecessor formulated the following substantial questions of law:
Whether the Courts below were justified in declaring the rights of the plaintiff on the basis of Exs.A1 and A2, when the documents had been
proved to be concocted and forged?
Whether the Courts below were justified in decreeing the suit when the genuineness of Exs.A1 and 2 had not been proved and established?
Heard both.
I would like to fumigate my mind with the following decisions of the Hon''ble Apex Court:
(i) Hero Vinoth (minor) Vs. Seshammal, l.
(ii Kashmir Singh Vs. Harnam Singh and Another,
(iii) State Bank of India and Others Vs. S.N. Goyal,
(iv) Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi, A mere poring over and perusal of those judgments would convey and portray,
that the High Court while exercising power u/s 100 of CPC should see as to whether there is any substantial question of law is involved in the
matter. However, after framing such substantial question of law, interference would be possible. Hence, its the paramount duty of the Court to find
out as to whether there is any perversity or illegality on the part of the Courts below in deciding the factual issues involved in the matter.
No doubt so far this case is concerned, there are concurrent finding of facts by both the Courts below as though the Government itself
conferred such grant in favour of the plaintiff and that they could not go against it.
The learned counsel for D3 and D4 would put forth and set forth his arguments, which could pithily and precisely be set out thus:
(a) It is a trite proposition of law that the Government authority concerned which granted the suit property in favour of the plaintiff, had the power
also to cancel it for valid reasons and it cannot be stated that those authorities are estopped from taking action even after coming to know of the
fact that there was fraud and misrepresentation in the issuance of Ex. A2.
(b) It is the case of the Government that the Government official who issued patta had no competency or power to issue such grant. He was only a
Tahsildar in-charge of the post concerned at the relevant time of issuing the said grant, and he ought not to have issued Ex.A2.
(c) Over and above that the revenue records would speak that the suit property was under the occupation of one Kuppammal, however
misleading statement was uttered out by the plaintiff as though his ancestors several decades together had been in possession and enjoyment of the
suit property and acquired right over it and the Government by way of recognition conferred such right.
(d) As on date, the suit property is vacant. The students and staff of the said School are using the said property for ingress and egress to the
School.
(e) Both the Courts below fell into error in decreeing the suit as prayed for, without properly considering the falsity involved in Ex.A1 - the patta
issued in favour of the plaintiff with respect to the suit property and Ex.A2 - the house site patta in favour of the plaintiff.
(f) The provisions of the land Encroachment Act were not considered and the suit was not maintainable, but the Courts below did not take note of
the same.
Whereas, the learned Senior Counsel for the plaintiff would put forth and set forth his arguments which could pithily and precisely be set out
thus:
(a) The Government authority validly conferred right in favour of the plaintiff as per Ex.A2. Over and above that, as per the other documents,
namely Exs.B2 and B6 - chittas, they reiterated the factum of the plaintiff having been in possession as on the date of filing of the suit. In such a
case, the Government authority or 03 or D4, cannot simply try to erode the right conferred on the plaintiff.
(b) The Government cannot claim right over Natham properties and it is a well settled proposition of law.
(c) The plaintiff and his ancestors had been in possession and enjoyment of the suit property for decades together and as such, the plaintiff had
already acquired title over the said property.
(d) The obtention of Ex.A1 from the Government is only by way of securing his title and possession over the suit property and in no way, it could
be construed as though for the first time the plaintiff came into possession of the suit property.
(e) There is no fraud much less misrepresentation involved in obtention of Exs.A1 and A2.
(f) Both the Courts below taking into account the pros and cons of the matter decided the lis, warranting no interference in the Second Appeal.
(g) As against the concurrent finding of facts, interference of the High Court in the Second Appeal might not arise.
Accordingly he would pray for the dismissal of the Second Appeal.
A mere running of the eye over the judgments of both the Courts below, would exemplify and demonstrate that they took Exs.A1 and A2 for
granted and the documents relied upon by the plaintiff and simply granted the decree. There is no estoppel or embargo on the part of the public
authority to reconsider their earlier decision, once it is brought to the knowledge of the authority concerned that such grant or conferment of patta
was obtained by fraud and misrepresentation. My mind is redolent and reminiscent of the following maxims:
(1) Fraus et jus nunquam cohabitant - Fraud and justice never dwell together.
(2) Fraus et dolus nemini patrocinari debent - Fraud and deceit should excuse no one. Fraud vitiates everything. On coming to know of the fact
that the plaintiff in collusion with the official who was not fully competent to issue such grant, obtained such grant, steps have been taken by the
official concerned by issuing notice for cancellation.
Ex.A2 - House site patta was issued in Form No. 21 as per paragraph 7(ii) of Revenue Standing Orders. In this connection, I would like to
refer to the following provisions:
APPENDIX XIX
(STANDING ORDER NO. 21 PARAGRAPH 7, CLAUSE (II))
FORM OF ORDER OF ASSIGNMENT OF HOUSE SITES IN VILLAGE
Conditions
(7) (a) That the assignment is liable for cancellation if it is found that ti was grossly inequitable or was made under a mistake of fact or owing to
misrepresentation or fraud or in excess of authority delegated to the officer making the grant or that there was any material irregularity in the
procedure, and
(8) That in the event of the cancellation of the assignment either on appeal or in the event of re-entry by the Government in accordance with the
conditions attached to the grant, the assignee shall not be entitled to compensation for any buildings he may have constructed on or other
improvements he may have made to the land.
A plain reading of those provisions would demonstrate that the authority which issued the patta or grant in respect of gramanatham, can also
cancel it. It is the contention of the learned Senior Counsel for the plaintiff that the Government cannot be deemed to be the owner in respect of
gramanatham. A plain perusal of the said provisions itself would convey and connote, that the portions of Gramanatham or village site at the
disposal of Government which is not required for common use of the villagers, could be granted by the Government authorities concerned subject
to rules in favour of the bona fide applicants. That itself pre supposes that among Gramanatham lands, there could be (i) gramanatham lands which
got vested with the Government and (ii) gramanatham lands which did not get vested with the Government. To put it in single syllable words, what
I could see is, that an individual could also acquire prescriptive title over gramanatham land by virtue of the principle nec vi nec clam nec precario,
provided it is not a poromboke land or land which got vested with the Government. As such a sweeping statement that the Government itself is
having no right over gramanatham land is a far fetched one, which cannot be countenanced. Over and above that the provisions referred to above
and the capacity of the Government to have control over such gramanatham lands, were not challenged at any point of time in the way known to
law. If really the plaintiffs contention was to the effect that the Government was having no control over gramanatham land and only the possessor
would acquire title over it, then there is no knowing of the fact as to what prompted, galvanised, propelled and impelled him to approach such a
Tahsildar, namely Bimachar and obtain such Ex.A1. Not to put too fine a point on it, the plaintiff cannot blow hot and cold. It is the specific case of
D1 and D2, that Ex.A1 was obtained by practising fraud and misrepresentation on the Government and the said Bimachar had no capacity or
official power to issue such patta.
Both the Courts below have not taken into consideration the very spirit of the contention of the Government. There is no gainsaying of the fact
that the authority which issued Ex.A2 has got the power to cancel it. Without properly referring to the provisions of law and the actual issues, both
the Courts below proceeded on the footing as though as an afterthought the officials thought fit to interfere with the right of the plaintiff over the suit
property. The courts below dwelt very deeply into the oral evidence adduced on the side of the plaintiff and also tried to pick holes in the oral
evidence adduced on the side of the Government. The trial Court would refer to the depositions of D.Ws.1 and 2 and observe as though no
evidence was adduced to substantiate the contention of D1 and D2, when Ex.A2 was issued fraudulently and falsely. The appellate Court also
confirmed the said finding, by referring to the depositions of the official witnesses. Without discerning the reality, that when statutorily the authority
has got the power to cancel Ex.A2 and the consequential entries emerged in the other documents, the Courts below simply observed as though
such statutory authority should produce evidence before the civil Court in the suit which was filed, ignoring the statutory provisions and powers
conferred on the authority to cancel Ex.A2. The statutory authority cannot be dragged to the Court by the plaintiff by way of throttling the authority
to exercise his powers. As such in the suit filed by the plaintiff, the statutory authority was not bound to adduce any evidence to prove that Ex.A1
was fraudulently issued. The statutory authority could very well in the proceedings before him could confront the plaintiff herein with the realities
and give him opportunity to explain his position.
What I could understand from the approach of both the Courts below is, that they dealt with this case as though it is a case based purely on
oral evidence and not on any substantive rights relating to the property. In fact, it is the specific case of Dl and D2 that the Government records
including the revenue records, do subsequently speak in the name of the plaintiff, because of the fraud and misrepresentation committed by the
plaintiff and some of the officials of the Department concerned. A fortiori, there is no rhyme or reason on the part of the Courts below in placing
reliance on those challenged documents for gospel truth and render the judgments. That is the fundamental mistake committed by both the Courts
below. De hors Ex.A2, absolutely there is no iota or shred, shard or miniscule, pint or iota of evidence to demonstrate and display that either the
plaintiff or his predecessors had been in possession and enjoyment of the property. Whereas, on the other hand, placing reliance on the revenue
records, the Government authorities would contend now that one Kuppammal alone was in possession and enjoyment of the said property. In such
a case, the powers of the Government authority cannot be throttled by the Court judgments, simply because the plaintiff did choose to approach
the Court holus bolus and sought for injunction.
When it is clear that law contemplates certain procedures to be adhered to before cancelling and the authorities also have resorted to such a
course, the Court should give a free hand to the officials to deal with the matter.
My mind is redolent and reminiscent of the following maxims:
(1) Jura naturae sunt immutabilia (Principles of natural justice cannot be dispensed with and should be adhered to)
(2) Audi alteram partem
The principles of natural justice no doubt, should necessarily be adhered to. The civil Courts including the High Court could only reiterate those
maxims and leave the matter to the very authority concerned to adhere to the principles of natural justice and deal with the matter and objectively,
if the authority can come to the conclusion that Ex.A1 has to be cancelled, it is open for him to do so and the Court cannot simply dwarf or curtail
or throttle the right of the authorities contemplated under law.
Hence in this view of the matter, absolutely there is perversity and illegality in the judgments passed by the Courts below in appreciating the
evidence on record and also in understanding the gamut and scope of the suit and the defence. There is no gainsaying of the fact that the
Government had not preferred the appeal or the Second Appeal and that it does not mean that they had given up their rights and powers
concerning this matter. On the other hand, D3 and D4 who really felt aggrieved by the judgments of the Courts below preferred the appeal and the
Government officials support the cause of D3 and D4. I do not think that there is any embargo for the Government to support the appellants'' case
even though D1 and D2 are cited as respondents in the Second Appeal. As such I am of the view that the judgments and decrees of the Courts
below have to be set aside.
Fair and square, the learned Senior Counsel for the plaintiff would submit that there is nothing to indicate and exemplify that the plaintiff is not in
possession, because the Government records would show that he was recognised to be in possession and till the Government might take action as
per law for regaining possession, his possession should not be disturbed, for which the learned counsel for the appellants/D3 and D4 would submit
that as on date, the suit property is vacant and the students and staff concerned are using it for ingress and egress to the said School. No doubt
there is nothing to exemplify and demonstrate that any superstructure is in existence. However, possession is stated to be with the plaintiff. In such
a case, by way of resolving the conflict on this point, what I would like to observe would be as under:
There shall not be any further construction or modification of the suit property and status quo should be maintained and in the meanwhile, the
Government authorities are given liberty to proceed as per law for cancelling Ex.A2 adhering to the principles of natural justice and the legal
provisions in this regard.
On hearing the judgment, the learned Senior counsel for the plaintiff would submit that a time limit may be prescribed as otherwise, perpetually
the plaintiff would be debarred from using the land in the way that he might intend to use. I could see considerable force in that submission also.
Accordingly, the Government is directed to deal with the matter as expeditiously as possible and if there are any laches, it is open for the
plaintiff to approach this Court highlighting the laches, whereupon this Court also could give further direction for expediting the process referred to
supra. On balance,
The substantial question of law Nos. 1 and 2 are decided to the effect that the Courts below were not justified in declaring the right of the plaintiff
ignoring the defence of D1 and D2, that Exs.A1 and A2 were brought about fraudulently and falsely and it is for the authorities to take action for
cancellation, whereupon it is open for the plaintiff to put forth his defence and in fact the plaintiff attempted to reverse the entire process by
approaching the Court.
Accordingly, this Second Appeal is disposed of. However, there shall be no order as to costs.