JUDGMENT
The unsuccessful plaintiff before the courts below is the appellant herein.
2. During the pendency of this appeal, the first appellant/plaintiff died and his legal representative, the second appellant has been brought on record. The plaintiff filed the suit for declaration of title and for permanent injunction in respect of the schedule mentioned suit property. According to the plaintiff she purchased suit first and second items of the properties from his vendor Palaniandi under Ex.A.1, dated 14.1.1945 for a sale consideration of Rs. 25/=. In respect of suit third item, he has been in adverse possession since purchase of suit first and second. As the defendants are attempting to take possession of the suit properties, the plaintiff has filed the suit for the reliefs stated as above.
3. The second defendant in his written statement which has been adopted by the first defendant has stated that the first and second items of the suit properties did not belong to even Palaniandi, the plaintiff's vendor as he himself had no title over the said items and no such sale or possession took place, the alleged Ex.A.1 has been created on the anti dated old stamp paper, the plaintiff is not in possession of the suit items, the plaintiff also not in adverse possession of suit third item from the date of purchase of suit first and second items, it is true that the plaintiff's son Periyasamy and two others submitted a petition before the defendant on 5.9.1988 along with the alleged sale deed which is pending consideration, that the suit properties absolutely belonging to the Government and the plaintiff cannot object to the same being issued to the eligible Harijans by issuing pattas, there is no cause of action for the suit, the plaintiff is only an encroacher, and that the suit is liable to be dismissed.
4. On the said pleadings and on hearing the learned counsel appeared on either side and taking into consideration of the documentary and oral evidence, the trial court dismissed the suit holding that Ex.A.1 sale deed is not genuine since the vendor himself has no title to the suit 1 and 2 items. On appeal, the first appellate court also concurred with the findings of the trial court and dismissed the First Appeal. Aggrieved by the same, the second appeal has been preferred by the plaintiff.
5. At the time of admission, the following substantial Question of Law was framed by this Court for consideration: —
“Whether the appellant in possession of the village Natham lands is not entitled to decree as prayed for especially in the light of the admissions of D.W.2?”
6. Learned senior counsel appearing for the appellants/plaintiffs contended that the first plaintiff has purchased the first and second items of the suit properties from her vendor under Ex.A.1 dated 19.1.1945 for a sale consideration of Rs. 25/= which does not require any registration. During trial, the plaintiff who was aged 101 years was examined as P.W 1 and she has deposed her case. Third item of the suit property was enjoyed by her from the date of purchase of first and second items of the suit properties and thus she is claiming adverse possession in respect of the same. It is submitted that the defendants have issued B. Memos in respect of the plaintiff's possession in third item of the suit property. According to the learned senior counsel even if the sale is held to be invalid, the plaintiff has perfected title by adverse possession as against the Government as she has been in possession of the suit properties for 43 years.
7. According to the learned senior counsel, it is the admitted case of the parties that the entire suit properties falls under the category of grama natham. As far as natham is concerned, the first occupier of the land is the owner of the land. The plaintiff's possession is admitted by the defendants in their written statement. It is also submitted that since her vendor Palaniandi was the first occupier he had no parent deed in his favour and since the sale consideration is Rs. 25/= during 1945, the document was not registered. It is further submitted that P.W.2, attestor to the document Ex.A.1 spoken to the fact that he has attested the document. The evidence of D.W.1 Village Administrative Officer and D.W.2, Surveyor also supports the plaintiff's case.
8. Learned Senior Counsel also clarified that in Natham, first occupier will be treated as the owner and no patta will be given to them. Patta is issued only for assessed lands and it is the settled law. That is why, Natham is called as Poramboke i.e, “natham poramboke” which means “poram ()” is outside; “poke ()” is revenue record. Thus the word “poramboke lands” means the lands which is not assessed to revenue records and it is outside the revenue accounts. Likewise, “gramanatham” is defined in the Law Lexicon as “ground set apart on which the house of village may be built”. Similarly, Natham land is described in Tamil lexicon published under the authority of University of Madras to the effect that it is a residential portion of a village; or portion of a village inhabited by the non brahmins; or land reserved as house sites; etc., Learned senior counsel also relied on very many decisions of this High Court as well as the Apex Court to the effect that Poramboke does not include natham and grama natham never vest with the Government, which will be referred to in the latter part of this judgment.
9. Per contra, learned Additional Government Pleader appearing for the respondents/defendants contended that both the courts below have concurrently disbelieved the version of the plaintiffs as regards title to the suit 1 and 2 properties. More over there are inconsistencies in the evidence of the witnesses as regards possession is concerned. Learned Additional Government Pleader also contended that when the findings of the courts below are concurrent, the interference by this Court under Section 100 CPC in this Second Appeal is very very limited unless the findings were erroneous being contrary to mandatory provisions of law applicable or contrary to settled position on the basis of pronouncements made by Supreme Court or was based upon inadmissible evidence or arrived at without evidence. Learned Additional Government Pleader also contended that the substantial question of law formulated in this Second Appeal also does not fit in with the parameters enunciated by the Apex Court. Learned Additional Government Pleader also brought to the notice of this court that the stamp paper used for Ex.A.1 document has been forged in that the name of the plaintiff has not been mentioned in the said document and even the name found in Ex.A.1 is not her husband's name. It is ultimately submitted that no interference is called for with respect to the concurrent findings of the courts below.
10. Taking into consideration of the evidence of P.W.1, who is the plaintiff, at the time of her examination she was aged 101 years and she has deposed that she had purchased suit items 1 and 2 as vacant lands and before that there was a building in the said lands. She had purchased the grama natham lands in the year 1945 from her vendor. P.W.2, who is one of the attesting witness to Ex.A.1 has deposed that he knows the possession of suit items 1 and 2 even by the vendor Palaniandi's father since he is doing onion business in the adjacent land. At the time of purchase, there was a hut where cattle were tied and haystack was also stored. P.W.3 is the son of the first plaintiff. He deposed that it is not Government Poramboke, but it is grama natham and since 1945 they are in possession and enjoyment of the same by putting by hut which got destroyed during the recent rain.
11. D.W.1, who is the Village Administrative Officer stated that patta has not been given to anybody in respect of the Survey No. 370.A1, B1 as seen from the A Register. If the suit lands are in the possession of the plaintiff, it would reflect in the FMB. It is only mentioned in the register that it is used for keeping the haystacks. In the cross examination he has admitted that in S. No. 370.A1, B1, in a extent of 13 hectares and 40 ares, there are about 350 individual houses and no tax being levied for the same. The entire extent is grama natham. He has also stated that there is no revenue record to show that P.W.3 is in possession of the suit properties.
12. D.W.2, who is the Surveyor in his evidence stated that they have prepared a draft for issuing patta in favour of the persons who are in possession of S. No. 370. Sine S. No. 370.A/1B is vacant the issuance of patta has been stopped on the directions of the proceedings issued by the Directorate. In his cross he has stated that his predecessor has recommended for issuance of patta to P.W.3, Periyasamy in respect of S. No. 370.A/16 which is 36 cents.
13. It is the admitted case of both the parties that the suit properties are grama natham lands. As rightly contended by the learned senior counsel no patta will be issued in respect of grama natham and the first occupier is the owner of the particular portion of land. Though D.Ws1 and 2 have deposed that the suit 1 and 2 properties were vacant sites, D.W.1 admitted that there is a hut used for keeping haystack. He has also admitted that there were houses around the suit properties. It is very unfortunate that to prove that the plaintiff was not in possession of the suit properties no documentary proof in the nature of revenue records or registers have not been produced by the defendants. Even the fasalis mentioned by D.W.1 relates to the period after filing of the suit. D.W.2 in his evidence admits that 36 cents is in possession of the plaintiff.
14. Learned senior counsel relied on the earliest judgement on this subject in Papala Narayanaswamy Naidu and others v. Secretary of State for India in Council rep. by the Collector of Chingleput and others, reported in 24 MLJ 36, wherein a Division Bench of this Court observed that the words poramboke may convey unassessed waste but not communal property such as burying grounds, temple sites, threshing floors, public roads, and rivers all of which also are included in the area of the village but which are not in terms excepted from the grant.
15. Learned Senior Counsel also relied on the judgment in Rengaraja Iyengar and another v. Achikannu Ammal and another, reported in 1959 MLJ 513 = 72 L.W 767, wherein it is observed that Lands which are within the limits of the gramanatham and on which buildings or sheds may be put up when necessary should also be house sites within the meaning of the section whether such buildings are constructed or not. In the present case, there was building in the suit properties before 1945 and later the plaintiff put up a shed as admitted by the witnesses.
16. Reliance was placed on the judgment of this court in N.S Kupuswamy Odayar and another v. The Panchayat of Narthamgudi, reported in 1971 (I) MLJ 190 = 84 L.W 120, wherein M.M Ismail, J., held that “the mere fact that in the re-settlement Register, a particular piece of land has been described as poramboke will not by itself establish title of the Government to the land in question.”. In the present case even after the resurvey the entire extent is classified as gramanatham and it is only the adjacent lands to the suit lands are government poramboke as admitted by D.W.2
17. In A. Sankaralingam v. Arunachala Reddiyar and others, reported in 1993 (1) MLJ 472, it has been held that “there is no law saying that all natham properties are Government or Panchayat properties. The decision in Rengaraja Iyengar v. Achikannu Ammal is that Grmanatham does not stand vested in the Government under Sec. 3(b) of the Madras Estates (Abolition and Conversion into Ryotwari) Act. Thus, at any rate, it cannot be said automatically that all natham properties are Government properties”. In the present case it is not in dispute that the entire extent of the survey number is gramanatham and hence it does not vest with the Government.
18. In A.K Thllaivanam v. The District Collector, Kancheepuram and others, reported in 1998 (3) LW.603, it has been held that grmanatham being vested with the petitioners no action could be taken under the Land Encroachment Act or Estate Abolition Act or any other enactment, it is not communal property, and being gramanatham as the petitioners had exclusive right, title and possession, the Government had no right to interfere or give complaint under Section 420 IPC. In the present case, it is in evidence that the suit properties were in possession of the plaintiff's vendor's father.
19. As regards genuineness of Ex. A.1, it is submitted by the learned Additional Government Pleader that the stamp paper has been purchased even two months prior to the date of the document and it has been purchased in the name of one Kesava Naidu and not either in the name of the plaintiff or her husband. In this connection we have to visualise the situation that existed during 1945. The value of the stamp paper is 1 Rupees and 8 Annas. The suit is of the year 1988. Normally, the courts shall not entertain any doubt as to the genuineness of the documents of such old period that too when the purchaser as well as one of the attesting witness have given their deposition. It is in evidence that no stamp vendor was available in Valayapatti at that point of time and probably the plaintiff's husband might have purchased the stamp paper from the said Kesava Naidu. Since the land being grama natham, the plaintiff's vendor's father had no parent document in respect of the suit items and he might have occupied the land as the first occupier and naturally he is the owner. From the vendor the properties comes to the hand of the plaintiff and the suit has been filed in the year 1988. Thus from 1945 for more than 43 years, the plaintiff and after her death her son has been in exclusive possession and enjoyment of the grama natham land. Thus even if there is no such sale deed (Ex.A.1), the plaintiff has perfected title by adverse possession as against the Government namely, they have been in possession and enjoyment of the suit properties for over the period of 30 years without any disturbance. Admittedly, there is no other rival claim in respect of the suit properties. In the circumstances it has to be held that even if Ex.A.1 is not believed, suit for declaration can be given on the basis of possession.
20. Learned Additional Government Pleader also submitted that the plaintiffs were never in possession of the suit properties. But, from the evidence of the parties it could be seen that there is admission that the plaintiff is in possession of 39 cents and even proceedings were initiated to issue patta to the plaintiff's son. The issuance of B-memo in respect of third suit item would go to show that the plaintiff was in possession. The existence of thatched shed and usage of the same is also admitted by the parties in their evidence. Admittedly, the defendants being Government Authorities, not a single documentary evidence from the years 1945 to 1988 has been produced to show that the suit properties were in possession of some other person or the lands are not grama natham. As rightly contended by the learned Senior Counsel as regards third item of the suit property, the plaintiff has proved her adverse possession supported by B.memo, which is not supposed to be issued to grama natham lands. Whether the plaintiff's vendor's father was in occupation or whether the plaintiff's vendor Palaniandi or the plaintiff, or the plaintiff's son, P.W.3 were in possession of the suit properties would be revealed in the revenue records. But unfortunately, though the Village Administrative Officer and the Surveyor have been examined on the side of the defendants, no document has been produced to show that either the plaintiff or her son were not in possession of the suit properties. A party, who is having records in his possession withholds the same which will throw light on the facts in issue, then the court is entitled to draw adverse inference against such party. In this case, the non production of the revenue records by the defendants would only go to show that if the records are produced, it may be useful to the plaintiff and that is why the records have not been produced.
21. The contention of the counsel for the respondents that there is no substantial question of law involved in this case, is liable to be rejected since the concurrent findings of the courts below are contrary to mandatory provisions of law applicable and based upon inadmissible evidence. The courts below have failed to appreciate the evidence of the parties that the plaintiff was in possession as per Ex.A.1 from 19.1.1945 and she has perfected title by adverse possession and thus even Ex.A.1 is disbelieved, the plaintiff is entitled to the relief of declaration and injunction on the basis of long possession for over the statutory period. Accordingly, the substantial question of law is answered in favour of the appellant/plaintiff since the concurrent findings of the courts below are based on erroneous appreciation of the evidence and statutory provision of law and well settled principle of law.
22. In the result, the Second Appeal is allowed setting aside the judgments and decrees of the courts below and decreeing the suit. No costs.
VCJ/VCS