& Ors. Vs. Ramaiah Thondaman  Insc 1292 (14 December 2007)
Arijit Pasayat & P. Sathasivam P. Sathasivam, J.
Legal Representatives of the deceased defendant being aggrieved by the judgment
and order dated 22.03.2001 passed by the High Court of Judicature at Madras in
Second Appeal No. 45 of 1985 allowing the same filed by the respondent-herein
have preferred the above appeal.
Brief facts of the case are as follows:
respondent herein/plaintiff filed a suit for declaration of his title and for
injunction restraining the defendant from interfering with his possession and
enjoyment of the suit property or in the alternative for possession of the suit
property. According to the plaintiff, the suit property belonged absolutely to Ramasamy
Konar and his daughter Nachammai.
was in their names and they were in enjoyment of the same. The plaintiff
purchased the suit property from the said Ramasami Konar and his daughter for
Rs.12,300/- on 11.09.1978. From the date of purchase, the plaintiff was in
possession. The defendants husband purchased some of the property from the
said Ramasami Konar. Since the defendant with their followers caused
disturbance to the plaintiff in the matter of enjoyment of the suit property, the
plaintiff filed the suit.
case of the defendant as stated in the written statement was that the
settlement patta had been wrongly issued for the suit lands to Ramasami Konar
and Nachammai without proper enquiry. The grant of patta in favour of them
cannot confer any title to the suit property as the same is not a document of
title. The plaintiff is debarred in claiming title to the suit property by
virtue of the patta in favour his vendors. The sale in favour of the plaintiff
was brought about by fraud, misrepresentation and by undue influence. In any
event, Ramasami Konar and his daughter had no right and title to the suit
property. When the defendants husband Chelliah Pillai came to know about
the wrong issuance of patta for the suit property in favour of Ramasami Konar
and his daughter, he filed an application before the settlement authorities for
transfer of patta for the property in his favour.
said Ramasami Konar appeared before the Assistant Settlement Officer and
conceded that he and his daughter Nachammai had no title or possession of the
suit property and the patta for the suit property was wrongly granted to him.
He consented for the transfer of registry for the suit property. The defendant
and her predecessors in title have and had been in possession of the suit
properties for more than the statutory period adversely openly and
uninterruptedly. The defendant and their children have acquired title to the
suit properties by adverse possession. The village karnam is the brother of the
plaintiff. Hence with the assistance of his brother, the plaintiff had brought
the sale deed and filed the suit. He denied the claim of the plaintiff with
regard to possession.
trial Court decreed the suit on 15.10.1982.
by the same, the defendant filed appeal in A.S. No. 146 of 1982 before the
lower Appellate Court. By judgment dated 05.08.1983 on consideration of the
oral and documentary evidence, the Appellate Court allowed the appeal and set
aside the judgment and decree of the trial Court and dismissed the suit.
Questioning the same, the plaintiff filed a Second Appeal No. 45 of 1985 before
the High Court. The High Court accepted the case of the plaintiff, set aside
the judgment of the lower Appellate Court and allowed the second appeal. In the
meanwhile, the defendant passed away and his LRs filed the above civil appeal
before this Court. The only respondent though duly served notice from this
Court has not chosen to contest the appeal.
heard Mr. B. Sreedhar, learned counsel appearing for the appellants and perused
the relevant materials and annexures filed along with this appeal.
points for consideration in this appeal are:-
Whether the High Court was justified in upsetting the factual findings arrived
at by the lower Appellate Court?
Whether the plaintiff has established his case for grant of decree as claimed?
support of his case, the plaintiff has pressed into service Ex. A-1 sale deed
dated 11.09.1978 to the effect that he purchased the suit property from Ramasami
Konar and Nachammai. On the other hand, it is the case of the defendant that
her husband alone was in possession of the suit property for a long time and
plaintiffs vendors have no title to the suit property at any point of
time. The plaintiff apart from examining himself as PW 1 also examined One Velusami
as PW 2 who is an attestor of Ex. A-1 Sale
from these two persons, one Veerappa Pillai has been examined as PW 3. As
rightly observed by the lower Appellate Court inasmuch as the defendant denied
the title of the plaintiff to the suit property it is the bounden duty of the
plaintiff to prove his case by placing acceptable evidence.
the plaintiff has not examined his vendors to show how they got title to the
property sold under Ex. A-1. On the other hand, the defendant by placing notice
Ex. B-19 issued by vendors of the plaintiffs i.e. Ramasami Konar and Nachammai
contended that the suit property was in possession of the defendant and not
with the vendors of the plaintiff. The lower Appellate Court on perusal of Ex.
B-9 came to the conclusion that the suit property was enjoyed by the defendant
and her husband through out by paying kisht to the same. It was also
highlighted before the courts below that patta was wrongly given to Ramasami Konar/Nachammai/vendors
of the plaintiff. This material aspect was stated before the Assistant
Settlement Officer and in fact they informed the said officer that they had no
objection for change of patta in the name of the defendants husband. In
fact in Ex.B-9 the defendant has admitted that he was not aware of the grant of
patta by the Settlement Officer. The evidence further show that the said Ramasami
Konar and his daughter never executed any sale deed in favour of the plaintiff
and the same was obtained on account of old age of Ramasami Konar. It was also
highlighted that the said Nachammai was also not well versed with the
transactions of this nature. It is not clear when the vendors of the plaintiff
mentioned several material aspects in Ex. B-19, the plaintiff had not taken any
action and not even denied the same by sending reply. In those circumstances,
based on the relevant and acceptable materials, the lower Appellate Court
arrived at a conclusion that the sale deed Ex. A-1 was obtained by fraud, undue
influence and mis-representation.
the earlier paragraphs, we have already stated that the plaintiffs vendors
were not in possession of title deed to the suit property except adangal
extracts and patta in the name of Ramasami Konar. No doubt he also filed
proceedings of the Assistant Settlement Officer dated 24.02.1969 as Ex. A-7
which shows that rough patta had been issued in favour of Ramasami Konar and Nachammai.
In this aspect, it is relevant to refer to the factual discussion by the lower
Appellate Court. In the proceedings for a grant of Ryotwari patta, the
Settlement Officer had issued a notification calling for objections from the
villagers. As rightly pointed out by learned counsel for the appellants, the
name of the defendants husband found in Form 5. It is brought to our
notice that in the said proceedings, Settlement Officer conducted suo motu
enquiry in respect of 370 cases by verifying the revenue records and prepared
Form 5 statement which refers the name of the defendants husband. This
factual information strengthen the case of the defendant that her husband got
title to the suit property. Based on the various material/information a
petition was filed (Ex. B-3) on 29.04.1969 before the Assistant Settlement
Officer for rectification of the mistake in grant of patta in favour of the
plaintiffs vendors. Only in this context, Ramasami Konar appeared in
person and informed the officer that he has no objection to change the patta in
respect of the suit property in favour of the defendants husband. Even
otherwise, the grant of patta cannot be equated to that of a document of title.
At the most the patta proceedings and the ultimate order by the competent
authority granting patta may be used as a piece of evidence to show that the
subject-matter property is with the grantee. Considering all these material
aspects particularly the action of the plaintiffs vendors in informing the
Assistant Settlement Officer about the wrong decision in granting patta in
their favour and considering the oral and documentary evidence with regard to
the same, the lower Appellate Court rightly concluded that the Assistant
Settlement Officer has passed an erroneous order which could not confer any
right or title to the plaintiffs vendors i.e. said Ramasami Konar and Nachammai.
stand of the defendant that since at the relevant time plaintiffs brother
was a village karnam, the plaintiff got the sale deed by utilizing his
brothers service as well as taking advantage of old age of plaintiffs
cannot be ruled out. All these factual aspects were duly considered by the
lower Appellate Court which is a final Court of appeal. While such is the
position, the High Court placing heavy reliance on Ryotwari patta alone
interfered with the well-considered judgment of the lower Appellate Court. We
are satisfied that all the details as adverted to by the lower Appellate Court
have not been considered by the High Court and committed an error in setting
aside the judgment merely on the basis of Ryotwari patta when the same was
proved to be obtained by mistake by the authority concerned. In fact, the High
Court did not consider Ex. B-19 notice sent by the vendors to plaintiff wherein
they admitted in categorical terms that patta was wrongly granted to them. In
such circumstances, the High Court could not have allowed the second appeal
based only on patta proceedings which were found to be wrongly obtained.
the light of the above conclusion, we set aside the judgment and decree of the
High Court dated 22.03.2001 made in Second Appeal No. 45 of 1985 and confirm
the judgment and decree of the lower Appellate Court dated 05.08.1983 passed in
Appeal Suit No. 146 of 1982. The civil appeal is allowed. No costs.