Nagammal (deceased) and Others vs Sri Veeraghava Swamy Devasthanam

G. Rajasuria, J.—Animadverting upon the judgment and decree dated 25.9.2001 passed in A.S. No. 13 of 2000 on the file of the

Subordinate Judge, Tiruvellore, confirming the judgment and decree dated 30.11.1999 passed in O.S. No. 741 of 1982 on the file of the District

Munsif, Tiruvellore, this second appeal is focused. The parties are referred to hereunder according to their litigative status and ranking before the

trial Court.

Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:

The first respondent/plaintiff/Sri Veeraghava Swamy Devasthanam, represented by its representative V.N. Parthasarathy, filed the suit for

declaration and recovery of possession of the suit property based on various averments, the gist and kernel of them would run thus:

The property described in the schedule of the plaint along with other properties were conferred on the said Devasthanam by the appropriate

authority concerned, vide Ex. A1. While so, the defendants who were allowed to occupy a portion of the property belonging to the plaintiff,

committed default in paying the rents whereupon the previous suit O.S. No. 809 of 1972 was filed. The trial Court as well as the appellate Court

rejected the case of the plaintiff, as against which the Second Appeal in S.A. No. 1821 of 1983 was filed; whereupon this Court remitted the

matter back to the trial Court with certain directions. Before the trial Court, as directed by the High Court, an Advocate Commissioner was

appointed, who visited the suit property, measured it and submitted his report and the lower Court decreed the suit in favour of the plaintiff, as

against which at the instance of the defendants, A.S. No. 16 of 2007 is pending in the Tiruvallur Sub Court. However, during the pendency of the

earlier Second Appeal itself, the defendants herein who happened to be the defendants therein, trespassed into the adjacent vacant area which is

described as the suit property herein; whereupon the present suit was necessitated to be filed.

Per contra, the defendant, 1 and 2 filed the written statement refuting and challenging, impugning and questioning the averments/allegations in the

plaint. The plaint is nothing but a pack of lies fraught with falsity and mendacity and it could only be treated as a load of baloney. The defendants

herein have beer, in possession and enjoyment of only one extent of property by constructing their respective houses. It is highly preposterous on

the part of the plaintiff to project and portray, describe and delineate as though pending the earlier litigation, the defendants herein trespassed into

the adjacent vacant area etc. The defendants are occupying only the kuttai poromboke area and not the property as claimed to have been

conferred in favour of the plaintiff temple. While filing the plaint, the crucial document, namely EX. A1 was not filed, which was in violation of

Order VII Rule 14(1) and (2) of CPC. The crucial document based on which the cause of action was projected, was not filed and it was fatal to

the case of the plaintiff. Both the Courts below failed to take note of the same, but simply decreed the suit. It is the duty of the plaintiff to prove that

the plaintiff Devasthanam is the owner of the suit property, but absolutely there is no smidgeon or molecular extent of evidence to establish the

same. Accordingly the learned counsel for the defendants would pray for the dismissal of the suit.

The trial Court framed the issues.

Up went the trial during which on the side of the plaintiff one Ramachari was examined as P.W. 1 and Exs. A1. To A8 were marked and on the

side of the defendants, Nagamma/D1 examined herself as D.W.1 along with D.Ws. 2 to 4 and Exs. B1 to B29 were marked. Exs. C1 to C5 were

marked as Court documents.

Ultimately the trial Court decreed the suit as against which first appeal was filed for nothing but to be dismissed 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 focused on various grounds.

The learned counsel for the appellants would pyramid his arguments which could succinctly and pithily be set out thus:

(a) Flouting the ingredients of Section 10 of CPC the trial Court proceeded with the trial in O.S. No. 741 of 1982 (the present suit) and rendered

judgment, which was against law.

(b) Both the courts below failed to consider the facts and issues properly.

(c) No plausible evidence was adduced on the side of the plaintiff in support of the prayer for declaration of title and for recovery of possession.

(d) The trial Court blindly placed reliance on the property register maintained by the plaintiff Devasthanam which his having no evidentiary force is

own.

(e) The first appellate Court also followed suit and simply confirmed the findings of the trial Court, which warrants interference in the second

Appeal.

A thumbnail sketch of the arguments of the learned counsel for the first respondent/plaintiff could be set out thus:

(a) No application u/s 10 of CPC was filed before the trial court for getting the trial stayed and in such a case, it is too late in the day on the part of

the appellants herein to raise such a plea based on Section 10 of CPC.

(b) The earlier suit in O.S. No. 809 of 1972 was on a cause of action to wit tenancy, whereas the present suit in O.S. No. 741 of 1982 is based

on a different cause of action, so to say the defendants trespassed into the adjacent land to the land which was leased out earlier to the same

defendants. As such both the suits cannot be treated as the ones based on the same cause of action.

(c) The suit property as per the Commissioner''s report, would reveal and expatiate that it is situated in S. No. 480 and not in kuttai poromboke.

Whereas the defendants would try to portray and project as though they are in possession of an extent in kuttai poromboke. which is totally

untenable. Both the courts below taking into account pro et contra, correctly decided the lis warranting no interference in the second Appeal,

wherein only substantial questions of law could be considered and nothing more.

Accordingly, he would pray for the dismissal of the second Appeal.

While hearing arguments, I have come across the recitals in Ex. A1 which I would like to extract hereunder for ready reference:

(2) The Karnam of the village was examined as C.W.1 He has deposed that the suit land is unenfranchised Devadayam Inam grantee for the

support of Sri Veeraraghava swamy temple at Thiruvallur and confirmed in T.D. No. 681 that it is an iruvaram minor inam that the temple owns

both warams in the land that there is a building (Madam) in the land and that the land lies within Tiruvallur Municipal limits.

The suit land is unenfranchised religious inam granted for the support of Sri Veeraraghava swamy Temple at Tiruvallur and confirmed in T.D.

No. 681. The inam in question is iruvaram minor inam. The temple owns both warams in the land. The temple is entitled to ryotwari patta for the

suit lands u/s 8(2)(ii) of the Act. Therefore, in exercise of the powers delegated to me G.O.P. No. 401, Revenue, dated 15.2.65, I hereby allowed

patta under Sec 11 read with Sec 8(2) (ii) of the Act 30 of 1963 in favour of the temple detailed in the schedule appended to this order.

Glaringly and pellucidly plainly and palpably, it could be seen that the settlement Tahsildar passed order on 19.2.1970 conferring patta in

favour of the temple in respect of the suit property.

The warp and woof of the order as contained in Ex. A1 is to the effect that the Settlement Tahsildar, Chengalpattu, by virtue of Section 8(2)

and (3) of the Madras Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963, (Act 30 of 1963) passed orders conferring patta. In fact

he candidly and categorically highlighted the point that the suit property was one under Devadayam Inam and it was granted in support of the

plaintiff Devasthanam. It is therefore obviously and axiomatically clear that by virtue of Tamil Nadu (Madras) Minor Inams (Abolition and

Conversion to Ryotwari) Act, 1963, (Act 30 of 1963), the entire property got vested with the Government, which by virtue of its powers

empowered the Settlement Tahsildar to conduct enquiry and confer patta similar to that of one contained in Ex. A1 on eligible persons as per

statute. The Settlement Tahsildar conducted enquiry and under the said Act, conferred patta in favour of the plaintiff. No doubt, both the parties as

well as the Courts below did not advert to this point at all. I am fully aware of the fact that the High Court while dealing with the Second Appeal, of

its own accord cannot analyse or scan any factual evidence, but on the other hand, the High Court while dealing with the matter comes across legal

lacuna or legal fallacies, certainly it could intervene and decide the lis based on such pure law point.

My learned Predecessor formulated the following substantial questions of law:

Whether the Courts below are right in proceeding with hearing of the case in O.S. No. 741 of 1982 and A.S. No. 13 of 2000, when it has been

brought to notice that the suit filed by the plaintiffs earlier in O.S. No. 809/1972 against the second and third respondents disputing ownership of

suit property, was dismissed, appeal confirmed but remanded in Second Appeal stage to the Trial Court and the same is pending before the Trial

court (Extracted as such)

I would like to frame the additional substantial questions of law as under:

(1) Whether in view of Ex. A1, the order dated 19.2.1970, conferring patta in favour of the first plaintiff by the Settlement Tahsildar under the

Tamil Nadu (Madras) Minor Inams (Abolition and conversion into Ryotwari), Act, 1963, (Act 30 of 1963) the defendants could put forth the

defence as they contended in their written statement and also dispute the title of the plaintiff?

(2) Whether the trial conducted by the lower Court stood vitiated in view of alleged non compliance with Section 10 of CPC?

(3) Whether the non filing of Ex. A1 along with the plaint was fatal to the presentation of the plaint itself and for the carriage of the case based on

such presentation?

(4) Whether there is any evidence in support of the defendants? contention that they are in occupation of kuttai poromboke?

(5) Whether there is any perversity or illegality in the judgments and decrees of both the Courts below?

All these points are taken together for discussion as they are inter linked and inter woven with one another.

I would like to fumigate my mind with the following decisions of the Hon''ble Apex Court:

(i) Hero Vinoth (minor) Vs. Seshammal,

(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 plain poring over and perusal of those decisions would highlight and spotlight the fact that the Second Appeal cannot be entertained by the High

Court as per Section 100 of CPC unless there is any substantial question of law is made out from the available materials on record.

The real purport of the order as contained in Ex. Al should necessarily be considered. In that regard Section 3 of the Tamil Nadu (Madras)

Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963. (Act 30 of 1963) is extracted hereunder for ready reference:

Vesting of minor inams, etc., in Government.? With effect on and from the appointed day and save as otherwise expressly provided in this Act?

(a) Clause (b) of sub-section (1) and sub section (2) of section 17 of the Abolition Act and clause (b) of sub-section (1) and sub-section (2) of

section 14 of the Inam Estates Abolition Act, sections 2 and 12 of the Madras City Land Revenue Act, 1851 (Central Act XII of 1851), the

Pudukkottai (Settlement of Inams) Act, 1955 (Tamil Nadu Act XXIII of 1955), section 22 of the Tamil Nadu (Transferred Territory)

Incorporated and Unincorporated Devaswoms Act, 1959 (Tamil Nadu Act 30 of 1959), clause (i) of Section 3 of the Tamilnadu (Transferred

Territory) Ryotwari Settlement Act, 1964, the Service Inams Proclamation, dated the 13th May 1893, and all other enactments applicable to

minor inams as such shall be deemed to have been repealed in their application to minor inams:

(b) Every minor inam including all communal lands and porambokes, waste lands pasture lands, forests, mines and minerals, quarries, rivers and

streams, tanks and ooranies (including private tanks and ooranies) and irrigation works, fisheries and ferries, situated within the boundaries thereof,

shall; stand transferred to the Government and vest in them free of all encumbrances, and the Madras City Land. Revenue Act, 1851 (Central Act

XII of 1851) except sections 2 and 12, the Madras City Land Revenue (Amendment) Act, 1867 (Madras Act VI of 1867), the Tamil Nadu

Revenue Recovery Act, 1864 (Tamilnadu Act II of 1864), the Tamil Nadu Irrigation Cess Act, 1865 (Tamil Nadu Act VII of 1865), the

Tamilnadu (Transferred Territory) Ryotwari Settlement Act, 1964, and all other enactments applicable to ryotwari lands shall apply to the minor

inam;

(c) all rights and interests created by the inamdar in or over his inam before the appointed day, shall, as against the Government, cease and

determine;

(d) The Government may, after removing any obstruction that may be offered, fort with take possession of the minor inam and all accounts,

registers, pattas muchilikas, maps, plans and other documents relating to the minor inam which the Government may require for the administration

thereof:

(Provided that the Government shall not dispossess any person who is personally cultivating any land in the minor inam, until the Assistant

Settlement Officer and the Tribunal and the Special Appellate Tribunal, on appeal, if any decide that such person is not actually entitled to a

ryotwari patta in respect of that land under the provisions of this Act.

(e) The inamdar and any other person whose rights stand transferred under clause (b) or cease and determine under clause (c) shall be entitled

only to such rights and privileges as are recognised or conferred on him by or under this Act;

(f) any rights and privileges which may have accrued in the minor inam to any person before the appointed day against the inamdar shall cease and

determine and shall not be enforceable against the Government or against the inamdar, and every such person shall be entitled only to such rights

and privileges as are recognised or conferred on him by or under this Act;

(f) the rights and obligations of the inamdar as such shall be extinguished;

(g) any rights and privileges which may have accrued in the minor inam to any person before the appointed day against the inamdar shall cease and

determine and shall not be enforceable against the Government or against the inamdar, and every such person shall be entitled only to such rights

and privileges as are recognised or conferred on him, by or under this Act.

A plain reading of the aforesaid provisions of law, would leave no doubt in the mind of the Court that S. No. 480 in Tiruvallur village got

vested with the Government, which in turn, authorized by virtue of the notification referred to supra, the Settlement Officer to conduct enquiry and

confer patta in favour of the eligible persons as per law. The said order was passed on 19.2.1970.

The learned counsel for the defendants would put forth an argument to the effect, that had Ex. A1 was brought to the knowledge of the

defendants at the earliest point of time, so to say, even while filing the earlier suit O.S. No. 809 of 1972, then they would have challenged the order

itself on the ground that the defendants had been in possession and enjoyment of the suit property from time immemorial, so to say, their ancestors

were in possession and enjoyment of the said property, following their possession the defendant started enjoying the suit property. This is only a

pure law point. By virtue of the statutory provisions referred to supra, whatever be the claim of the occupier, even based on prescriptive title, all

those claims would get obliterated by virtue of Section 3 of the Act. Notifications were made at the appropriate time under the said Act. But there

is nothing to indicate and exemplify that the defendants approached the concerned authority for conferring patta in their favour.

Ex. A1 also would reveal that it was the first plaintiff which filed a petition for the grant of ryotwari patta for the suit property. Whereupon, a

notice in Form 6 was published in the village in the prescribed manner. At that time also, there is nothing to indicate that the defendants raised their

little finger against it. Whereupon alone, the said order was passed in favour of the plaintiff. As per Section 114 illustration (e) of the Indian

Evidence Act, presumption also is attached to the genuineness of the order passed as contained in Ex. A1. As such, based on the aforesaid

statutory provisions and Ex. A1 the plaintiff could rightly be held to be the owner capable of evicting the defendants who have no right at all over

the suit property. However this finding is purely based on the law point and the available materials.

However, for comprehensively dealing the matter, I would like to proceed to discuss the other points also dealt with by the Courts below.

Precisely the case of the plaintiff is that the suit property is situated in S. No. 480, whereas the defendants would gainsay the same and contend

that they are in occupation of Kuttai poromboke and that they have been paying municipal tax for their superstructures in the suit property as

revealed by Exs. B1 to B29.

Fittingly and plausibly, the learned counsel for the plaintiff would submit that no ''B'' memo was filed by the defendants to buttress and fortify

their contention that they have been in occupation of the kuttai poromboke. I could see considerable force in his submission, because if really the

defendants have been in possession and enjoyment of the kuttai poromboke, naturally they might have been served with ''B'' Memo and they

should have paid penalty also every now and then as per the rules governing collection of penalty from the occupiers of poromboke lands. But

there is no smidgeon or iota, jot or pint of evidence in that regard. No revenue records have been produced to demonstrate and display that the

defendants have been in occupation of kuttai poromboke. The revenue authority and more so, the Settlement Tahsildar is the competent authority

to decide about the nature of the land. Here on the plaintiffs side, de hors the property register Ex. A8 produced by them, they relied on Ex. Al

and a fortiori, the suit property belongs to the temple.

Regarding identity of the suit property is concerned, the Advocate Commissioner who visited the suit property along with the surveyor, clearly

located it and gave a finding that the suit property is situated in S. No. 480 and not in kuttai poromboke. Exs. C1 to C4 would reveal the said fact

relating to which absolutely there is no controversy also. Wherefore, based on those facts both the Courts below rendered the judgments which

cannot be found fault with.

It is also quite obvious that no application u/s 10 of CPC was filed before commencement of trial in the present suit. In my considered opinion,

the principle Res Sub-judice would not cut at the validity of the trial conducted in violation of Section 10 of CPC. It is only to save time and to

avoid emergence of conflicting decisions out of two parallel proceedings. Here the cause of action of the present suit is based on trespass into the

suit property, whereas, the earlier suit was based on landlord and tenant relationship. Hence, the cause of action in the present suit differs from the

other one. Even though the defendants made an unsuccessful attempt to portray as though at the time of filing the present suit itself the defendants

have been in possession and enjoyment of the present suit property described herein, yet there is nothing to buttress and fortify their contention.

There is also no evidence to indicate that in the earlier proceedings there was any specific plea in the written statement that the suit property

described in the plaint therein was deliberately twisted and projected as though it was lesser in extent etc. Hence, as against the concurrent finding

of facts, I do not think that any interference by this Court is necessary.

Regarding non production of Ex. A1 at the time of filing the suit, the learned counsel for the defendants would cite the decision of the Hon''ble

Apex Court reported in Bhau Ram Vs. Janak Singh and Others, A mere running of the eye over the said decision would highlight and spotlight the

fact that the factual matrix involved in the cited precedent is relating to rejection of a plaint. No doubt, at the earliest point of time even before

commencement of trial, the defendant is entitled to file an application under Order VII Rule 11 of CPC for rejection of the plaint. In that case it is

so happened that the crucial documents, the registered power deed was not filed and that the suit itself was relating to an agreement to sell.

Whereupon, the Hon''ble Apex Court remarked that in the absence of such document, the plaintiff should not be allowed to proceed with the

proceedings based on such inadequate plaint. But here the factual matrix is entirely different. The plaintiff, during the trial itself produced Ex. A10

whose authenticity is beyond doubt, and without any demur the document was marked.

I would like to recollect the following decision of the Hon''ble Apex Court reported in Shalimar Chemical Works Ltd. Vs. Surendra Oil and

Dal Mills (Refineries) and Others, an excerpt from it would run thus:

10 ...An objection to the admissibility of the documents can be raised before such endorsement is made and the court is obliged to form its opinion

would depend the documents being endorsed, admitted or not admitted in evidence. In support of the submission he relied upon a decision of this

Court in R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple where it was observed as follows: (SCC p. 764, para 20)

20 ...The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the documents which is

sought to be proved is itself is inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence

but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case merely because a document has been

marked as an exhibit an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even appeal or revision

In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked

as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot

be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The

crucial test is whether an objection if taken at the appropriate point time would have enabled the party tendering the evidence to cure the defect

and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object

allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand,

a prompt objection does not prejudice the party tendering the evidence, for two reasons; firstly it enables the court to apply its mind and

pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought

to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode of

method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and

procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and

timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved

being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court

(emphasis in original).

On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial court should not

have marked as exhibits the Xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants It should

have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the

issue of admissibility of those copies open and hanging by marking them as exhibits subject to objection of proof and admissibility. The appellant,

therefore, had a legitimate grievance in appeal about the way the trial proceeded.

Applying the aforesaid dictum, as found envisaged therein, if the facts and circumstances are analysed, it is axiomatically clear that as an

afterthought only the defendants are challenging the genuineness of Ex. A1 which cannot be countenanced.

On balance,

The first substantial question of law is answered to the effect that the subsequent suit is based on a different cause of action from the earlier suit

and hence, the trial conducted and the judgment rendered by the lower Court in the subsequent proceedings did not get vitiated.

(i) The first additional substantial question of law is answered to the effect that in view of Ex. A1 the order dated 19.02.1970 conferring patta in

favour of the first plaintiff by the settlement Tahsildar under the Tamil Nadu (Madras) Minor Inams (Abolition and Conversion into Ryotwari) Act

1963 the defendants could not put forth the defence as they contented in their written statement and also dispute the title of the plaintiff?

(ii) The second additional substantial question of law is answered to the effect that the trial conducted by the lower Court did not stand vitiated in

view of alleged non compliance with Section 10 of CPC.

(iii) The third additional substantial question of law is answered to the effect that the non filing of Ex. A1 along with the plaint was not fatal to the

presentation of the plaint itself and for the carriage of the case based on such presentation?

(iv) The fourth and fifth additional substantial questions of law are answered to the effect that there is no evidence in support of the defendants?

contention that they are in occupation of kuttai poromboke.

In the result there is no perversity or illegality on the part of the Courts below in accepting the case of the plaintiff. As such this Second Appeal

is dismissed. No costs. Hardly could it be stated that the defendants are not poor people wherefore sufficient time could be granted for vacating

and handing over delivery of possession of the suit property. As such, I am of the considered view that nine months time from this date, so to say

upto the end of July 2013 could be granted for vacating and handing over delivery of possession to the plaintiff by the defendants.