1. Defendants have focussed the instant Second Appeal challenging the Judgment and Decree dated 23.3.2005 passed by the Principal Subordinate Judge, Villupuram, in A.S No. 130 of 2004 wherein and by which the Judgment and Decree dated 20.1.2004 made in O.S No. 315 of 2001 on the file of the II Additional District Munsif, Ulundurpet, were reversed.
2. The Plaintiff filed the Suit for declaration of title and for recovery of possession of the Suit property.
3. The case of the Plaintiff is that his father Mottaiya Padayachi purchased the Suit property situate in R.S No. 111/1-7 to an extent 60' × 42', from the original owners one Parvathammal and her five sons, on 27.3.1954 and was in possession and enjoyment till his death in 1982. After the death of the Mottaiya Padayachi, the Plaintiff being the sole Legal Heir, was in enjoyment of the Suit property. According to the Plaintiff, the Defendants encroached into the Suit property and constructed a house and also obtained EB connection to the Suit property without the knowledge of the Plaintiff. Therefore, the Plaintiff sent a Legal Notice on 7.7.2001 calling upon the Defendant to surrender possession of the Suit property for which, according to him, the Defendants have sent a suitable reply on 15.7.2001 As the Defendants refused to vacate to surrender possession, the Suit was filed.
4. Contesting the Suit, the Defendant filed Written Statement denying all the Plaint allegations. The contention of the Defendant was that the Suit property belonged to the Tamil Nadu Government and it was a Natham Poramboke. It is stated that the Defendants' mother Periyayeeammal, who was assigned the Suit property with the specific measurements and boundaries in T.S No. 18/1979, had put up a small thatched house in the Suit property and was living there and that after her death, i.e, 19 years ago, the house got damaged and was demolished. The further contention of the Defendants is that they enjoyed the Suit property as vacant site till 1999 and in 1999, they constructed a RCC Roofed house and the Defendants 1 & 2 are in occupation of the same in the northern and southern portion respectively. As such, according to the Defendants, they have been in possession of the property for more than 32 years with the knowledge of the Plaintiff and hence, claimed title by adverse possession. The Defendants denied the marketable right of the vendor Parvathammal from whom the Plaintiff's father had purchased the Suit property in the year 1954. Hence, the Defendants prayed for dismissal of the Suit.
5. Before the Trial Court, the Plaintiff had examined himself as PW1 besides examining one Krishnamoorthy as PW2 and marked Exs. A1 to A4. On the side of the Defendants, the First Defendant examined himself and marked Exs.B1 to B15.
6. The Trial Court, on an evaluation of the evidence available on record, finding that the Plaintiff has failed to prove Exs.A1 & A4, dismissed the Suit. On Appeal, the Lower Appellate Court, after appreciating the facts, reversed the Judgment of the Trial Court and allowed the Appeal decreeing the Suit. The Lower Appellate Court also granted two months time to the Defendants to hand over vacant possession of the Suit property to the Plaintiff. Feeling aggrieved, the Defendants have come up with this Appeal.
7. At the time of admission of this Second Appeal, the following substantial questions of law were framed for consideration:
(i) Whether in law the Lower Appellate Court was right in holding that the presumption under Section 90 of the Indian Evidence Act was available for Ex.A1 Sale Deed when the Respondent could not prove the right and title of the vendor?
(ii) Whether in law the Lower Appellate Court was not wrong in not applying the same yardstick, i.e, the presumption under Section 90 of the Indian Evidence Act to Exs.B1 & B2 assignments, in favour of the Appellants' mother?
(iii) Whether in law the Lower Appellate Court was not wrong in failing to see that by being in open, hostile and continuous possession for more than three decades, the Appellants had prescribed title by adverse possession?
8. Heard Ms. R. Meenal, learned Counsel appearing for the Appellants and Mr. R. Rajarajan, learned Counsel for the Respondent and perused the records.
9. From the materials available on record, it transpires that the Suit property is a grama natham measuring an extent of 60' × 42' in RS. No. 111/1 in Thenkunam village, Elevanasur Sub-Division, Kallakurichi. The Plaintiff has produced the Sale Deed marked as Ex.A.1, dated 27.3.1954 which stands in the name of the Plaintiff's father. However, admittedly, Ex. A1 is only a registration copy of the Sale Deed and not the original and there is no valid explanation given by the Plaintiff for non-production of the original of Ex.A1 From a perusal of Ex.A1, it is seen that the lands are categorised as Grama Natham. Ex.A4-Sale Deed dated 7.9.1945, executed by one Thandayee Ammal and others in favour of Srinivasa Iyyer, also describes the Suit property as situated in natham. Further, though the Plaintiff claimed that his father had purchased the property on 27.3.1954 under Ex.A1-Sale Deed, he has not filed single scrap of paper to prove his possession. The Plaintiff has also not produced Patta either in the name of his father or in the name of his father's vendor. The only contention put forth by the Plaintiff was that Exs.A1 & A4 were 30 years old and, therefore, they should be presumed to be valid under Section 90 of the Indian Evidence Act. Though one of the vendors under Ex.A1, viz., Krishnamurthy, has been examined as PW2, nothing useful could be elicited from his evidence to prove the title of the vendors.
10. On the contrary, the Defendants had produced Ex.B2 dated 18.9.1969, which is the assignment order in favour of Periyayeeammal, for the Suit property situate in RS No. 111/1. The Defendants have also produced Ex.B1 dated 7.9.1969 which is a Notice given by the Tahsildar to Periyayeeammal for her appearance with regard to the assignment. As such, it is the definite case of the Defendants that the Suit property was Grama Natham and the same was assigned in favour of their mother on 18.9.1969 Further, the land has been assigned in favour of Periyayeeamal with specific boundaries and specific extent. After the filing of the Written Statement wherein the Defendants have claimed title to the Suit property and the assignment, the Plaintiff has not denied the same. Further, it is seen that on the strength of the assignment under Ex B.2, the Defendants have put up a pucca building in the year 1999 and also obtained Electricity Service connection and had been paying the charges for the same. In support of the same, they have also produced Bills, which are exhibited as Exs.B8 to B14. Immediately after the construction in the year 1999, service connection has been obtained by the Defendants which is also supported by Ex.B7-Deposit Receipt dated 3.7.2000 standing in the name of Sakthivel, the First Defendant.
11. As stated earlier, it is also clear from the circumstances that despite the fact that the Defendants had sent a Reply Notice on 15.7.2001 for the pre-Suit Notice dated 7.7.2001 under Ex.A2, the Plaint has been silent about the said fact. At this juncture, it is pertinent to note that though the Plaintiff has come up with specific case that the Suit property belonged to him, he had not filed any document to establish his title excepting Exs.A1 & A2, viz., registration copy of the original Sale Deed and pre-Suit Notice respectively, whereas the Defendants, who claim title under their mother, who was the original assignee of the land, had produced documents to establish their possession which is also admitted by the Plaintiff. Moreover, if the assignment is not true, the Defendants would not have ventured into investing money in constructing the house.
12. Learned Counsel appearing for the Respondent/Plaintiff contended that Natham land does not vest with the Government and, therefore, the assignment could not be true. According to her, once the land is classified as Grama Natham, the only question to be seen is as to who is the occupier.
13. In support of his contention that Grama Natham never vested with the Government, learned Counsel placed reliance on the decision in The Executive Officer, Kadathur Town Panchayat v. V. Swaminathan, 2004 (3) CTC 270, wherein this Court, in Paragraphs 12 & 13 observed as follows:
“Para 12: Further, ‘Grama Natham’ 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 residential portion of a village; or portion of a village inhabited by the non-Brahmins; or land reserved as house sites; etc.
Para 13: In the light of the above and in view of the fact that the admitted classification of the land being a ‘Grama Natham’, it is obvious that the land was never vested with the Government or the Town Panchayat. Inasmuch as the Petitioners and their ancestors were in exclusive possession of the lands in question for the past 40 years, the impugned Order of the Third Respondent in cancelling the Pattas with a view to evict them summarily at the instance of the resolution passed by the Panchayat is not sustainable. Further such a summary eviction is not permissible in law when the disputed question of title is involved for adjudications as laid down by the Apex Court in number of decisions.”
14. From the above decision, it is clear that ipso facto Grama Natham cannot be considered as Government property. If a property is classified as Grama Natham, it should mean that it does not belong to the Government. In an attempt to levy tax (), Natham lands were surveyed and Survey Numbers were assigned and Pattas were issued. Once it is a Grama Natham, the occupants of the lands may build houses and reside there. The term Grama Natham is assigned only to distinguish and differentiate the other lands, viz., Inam lands, Ryotwari lands and Waste lands and excepting Grama Natham, other classifications vest with the Government. However, under UDR Scheme (Up Dating Revenue Record Scheme), to levy a tax on Natham lands, Pattas were issued to the occupants, who were holding the lands at the relevant point of time. Similarly, in this case, based on the decisions, the Defendants' mother was given the assignment under Ex.B2 dated 18.9.1969 If the Suit lands are Grama Natham, admittedly, the Court has to see who is the first occupier. Though the Plaintiff claims that he has been in occupation of the land from the date of purchase by his father in 1954 under Ex.A1, absolutely, there is no evidence to prove his title or possession excepting the registration copy of the Sale Deed, whereas the Defendants have established their possession and the subsequent construction by them. The contentions raised by the Respondent based on the classification of Grama Natham would be relevant if the State is trying to recover the property from the Defendants/Appellants. In this case, when the Plaintiff has sued for declaration of title and recovery of possession, the burden is cast upon the Plaintiff to non-suit the Defendants while establishing his own title.
15. Further, though the Plaintiff has sought for recovery of possession contending that he has been in possession of the Suit land, he has not substantiated the claim for the laches on his part for having allowed the Defendants to raise a pucca building. It is not the case of the Plaintiff either that he was living away from the Suit village or he was not aware of the construction being made by the Defendants. The Defendants also had specifically contended in the Written Statement that the Plaintiff have acquiesced to their act of constructing a building in the Suit property. In this regard, it would be relevant to refer to the finding of the Lower Appellate Court, which reads as follows:
“…. And he would also specifically confirm that 1st Defendant has completed construction of a house in the Suit property. And he did not know the date of actual encroachment. And he would admit on being cross-examined further that he has not measured the property based on Ex.A1 and he did not know as to whether the exact extent as referred under Ex.A1 is available on the ground….”
Therefore, the Plaintiff is estopped from claiming recovery of vacant possession. Though the Defendants claim perfected title by adverse possession, the same has not been established.
16. From the foregoing discussion, it is candidly clear that the Plaintiff has made a futile attempt to establish his title and recovery of possession. The Lower Appellate Court had granted decree in favour of the Plaintiff based on Exs.A1 & A4 which are of more than 30 years old and drawn presumption as to the validity under Section 90 of the Evidence Act. The Defendants also have produced Exs.B1 & B2-Assignments which are also of more than 30 years old on the date of filing of the Suit.
17. That apart, Exs.A1 & A4 produced by the Plaintiffs being the registration copies and no valid reason coming forth from the Plaintiff for non-production of the original, presumption cannot be drawn under Section 90 of the Evidence Act whereas the Defendants have filed the Original Assignment under Exs.B2 of the year 1969, in favour of their mother, which is not denied by the Plaintiff. Besides, as regards Ex.B2-Original Assignment, a presumption can also drawn under Section 90 of the Evidence Act being more than 30 years old.
18. Suffice it for this Court to point out that in the light of qualitative and quantitative discussion mentioned supra and on a careful consideration of respective contentions, this Court comes to an inevitable conclusion that the Respondent/Plaintiff had not derived title in respect of the Suit property though according to him, he has been in possession of the same from the year 1954 for the simple reason that the Suit property is Grama Natham and that he had allowed the Defendants to construct a pucca house and the Trial Court has rightly dismissed the Suit taking into account all the relevant facts and circumstances of the case in a right perspective. Resultantly, the instant Appeal filed by the Defendants succeeds and the substantial questions of law are answered accordingly.
In the result, the Second Appeal is allowed restoring the Judgment and Decree of the Trial Court dated 20.1.2004 passed in O.S No. 315 of 2001 and the Judgment and Decree of the Lower Appellate Court dated 23.3.2005 passed in A.S No. 130 of 2004 are set aside. But in the circumstances of the case, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.
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