Nagappa, Manjunath, Lingamma and Jayamma vs V. Nagaraj, Krishnama Naidu, T.M. Swami and Manjunath

G. Rajasuria, J.—This second appeal is focussed by the Defendants 1 to 4, animadverting upon the judgment and decree 9.7.1999 passed

in A.S. No. 6 of 1999 by the Sub Judge, Hosur, reversing the judgment and decree dated 9.12.1998 passed by the District Munsif, Hosur, in

O.S. No. 450 of 1996. For the sake of convenience, the parties are referred to hereunder according to their letigative status before the trial Court.

A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this second appeal, would

run thus:

The Respondent/Plaintiff filed the suit O.S. No. 450 of 19% as against as many as 7 Defendants, seeking declaration of tile over the land bearing

Survey No. 9/10 measuring an extent of 14 ares (34 cents) and for obtaining delivery of possession of the same, as against which, the Defendants

1, 2 and 4 filed the written statement and resisted the suit.

During enquiry, the trial Court framed the relevant issues. The Plaintiff examined himself as P.W.1 along with one R. Hansa Raj as P.W.2 and

Exs.A1 to A.10 were marked. The first Defendant examined himself as D.W.1 along with D.3 as D.W.2, one Sadhappa Naidu as D.W.3, Mani

as D.W.4 and Umavathy as D.W.5 and Exs.B1 to B8 were marked.

Ultimately, the trial Court dismissed the suit, as against which the appeal A.S. No. 6 of 1999 was filed. Whereupon the first appellate Court

reversed the judgment and decree of the trial Court and decreed the original suit in toto.

Being disconcerted and aggrieved by the judgment and decree of the first appellate Court, the Defendants 1 to 4 filed this second appeal on

various grounds.

At the time of admitting the second appeal, my learned predecessor framed the following substantial questions of law:,

Whether the learned Subordinate Judge ought to have held that the boundaries and the extent are being the same under Ex.B1 and B8, the

Defendants had acquired title to the suit property?

Whether the lower appellate Court failed to see that a mere fact of patta standing in the name of a person is not conclusive to hold that the

person had title to the suit property?

A bare poring over and perusal of the typed set of papers and also considering the arguments of both sides would reveal and display that the

Plaintiff filed the suit for recovery of the land bearing Survey No. 9/10 measuring an extent of 14 ares (34 cents) placing reliance mainly on Ex.A1-

the Settlement patta, dated 22.4.1958.

The learned Counsel for the Plaintiff would develop his argument by pointing out that the trial Court failed to consider that the suit property

originally was stated to be situated in Survey No. 9/3 and not paimash No. 9/3, as paimash number was not in use at the time of issuance of the

Settlement patta during the year 1958.

Whereas the learned Counsel for the Defendants would advance his argument to the effect that the Plaintiff''s father, namely, Venkatasamy, as

per Ex.A10 dated 25.3.1949, is claimed to have purchased an extent of 25 cents in Survey No. 9/3; as per Ex.B1, the said Plaintiff''s father sold

in favour of Sadhappa Naidu, son of Chinna Munivenkata Naidu, an extent of 34 cents in Survey No. 9/3; Ex.A9-the encumbrance certificate,

with reference to Survey No. 9/10, so to say the suit property, as described in the plaint measuring an extent of 14 ares, would reveal that on

14.5.1968 one Thimmaiah sold it in favour of Venkataramiyah, who in turn sold it, as per the sale deed dated 24.1.1972, in favour of Krishnama

Naidu, who in turn sold it as per the sale deed dated 5.10.1978 in favour of Lingamma(D3). Accordingly, he would submit that the Plaintiff''s

father sold away the suit property in favour of the D3''s predecessor in title and D3, as per Ex.B8 acquired valid title over the suit property.

At this juncture I would like to recollect and call up the trite proposition of law that the Plaintiff has to stand or fall on the strength of his own

pleadings and evidence and he cannot fob off the burden of proof on the Defendants. It has to be seen that whether the Plaintiff has discharged his

burden of proof.

Here the first appellate Court''s judgment is under challenge. A plain reading of the first appellate Court''s judgment and more specifically

paragraph No. 5 of it would exemplify and evince that the first appellate Court Judge compared the boundaries in Ex.A10 with that of Ex.B1 and

held that both are one and the same. It is just and necessary to compare the boundaries as found set out in those two documents:

In Ex.A10 the following description of property is found set out:

The punja land situated in Survey No. 9/3, measuring an extent of 25 cents within the following boundaries:

On the East: Vendor''s land

On the West: Petha Muniappa''s land

On the North: Bowsaram''s Land

On the South: Venkatanna Rao

Basappa Rao

In Ex.B1 the description of property runs as under:

The land in Survey No. 9/3 measuring an extent of 34 cents situated within the following boundaries:

On the East: Kundimuniyappa, Petha Muniappa''s land

On the West: Ramakrishnappa''s land

On the North: Venkatapa''s land

On the South: Panamappa, Pasappa''s land

In Ex.B1 the antecedent title deed has not been found mentioned. The Plaintiff''s father in Ex.B1 recited that the said land belonged to him by his

enjoyment.

A mere comparison of boundaries specified in Ex.A10 with that of boundaries in Ex.B1 would demonstrate that there are certain discrepancies

between the two sets of boundaries. In fact, the land described in Ex.A10 is stated to be situated on the West of Petha Muniappa''s land. Whereas

in Ex.B1 the land is stated to be situated to the East of Petha Muniappa''s land. The extent also differs significantly and in Ex.A10 the extent was

25 cents whereas in Ex.B1 the extent is specified as 34 cents. As such, there is a difference of 9 cents, which in the facts and circumstances of this

case cannot be taken as a pococurante or insouciant one. Absolutely there is no explanation also available in that regard.

In fact, the attempt on the part of the Plaintiff is to explain away by expounding and detailing that what was sold by Plaintiff''s father was not the

suit property, as the suit property is situated in Survey No. 9/10, whereas, the property sold by the Plaintiff''s father was in Survey No. 9/3.

The first appellate Court has not taken note of the differences highlighted supra. The crucial and the paramount point which could be culled out

from the deposition of the Tahsildar- D.W.4, who would depose before the trial Court with reference to the Survey Records, is that the old Survey

No. 9/3pt is equivalent to the present Survey No. 9/10. The old Survey No. 9/3 was divided into five parts as under:

S. No. 9/5: 40 cents

S. No. 9/8: 40 cents

S. No. 9/9: 31 cents

S. No. 9/10: 34 cents

S. No. 9/11: 21 cents

It is therefore axiomatic that the suit property is in the New Survey No. 9/10, which was equivalent to the old Survey No. 9/3pt and the Plaintiff''s

father did not own any other extent in Old Survey No. 9/3, apart from the suit property measuring 14 ares (34 cents).

Ex.A1, which is relied on by the Plaintiff himself would pellucidly and palpably, plainly and manifestly highlight that the New Survey No. 9/10 is

equivalent to the Old Survey No. 9/3pt. As such, the description in Ex.A1, which the Plaintiff himself relied on, clearly, in commensurate and in

consonance with the deposition of the Tahsildar. In Ex.A1 under the first column, the new Survey Number with sub division is found mentioned

and mere it is stated as 9/10, which refers to the suit property, admittedly. The old Survey Number was 9/3pt and it is found mentioned in Column

No. 2. The Revenue authorities very carefully captioned column 2 as under:

Old Survey Number or Paimash Number and Letter

It is also in evidence that from the year 1963 onwards the new Survey Number has come into vogue and accordingly Survey No. 9/10

emerged. As such, the attempt on the part of the Plaintiff now to estrange himself from Ex.B1 is totally untenable. The very caption of the Column

2 in Ex.A1-the Settlement extract would unambiguously show that anterior to 1963, so to say before the introduction of the new Survey Number

in the Revenue records, the numbers referred to were treated as old Survey Numbers. As such, now the Plaintiff cannot take a stand quite

antithetical to Ex.A1 that Survey Number 9/3 is different from Survey No. 9/10.

Pithily and precisely, succinctly and briefly it could be stated that the suit property, as described in the plaint refers to new Survey No. 9/10

and the old Survey Number was 9/3pt. It cannot also be, by any stretch of imagination, visualised that New Survey Number 9/3 was purchased by

Plaintiff''s father in the year 1949 and the New Survey No. 9/3 was sold by the Plaintiff''s father during the year 1959, as per Ex.B1.

The first appellate Court, to say the least, without understanding the real implications got obfuscated and confused, perplexed and flummoxed

with the Survey Numbers and the facts involved.

The Plaintiff as well as the first appellate Court forgetting for the moment that the Plaintiff, who is claiming the property bearing Survey No.

9/10 measuring 14 ares (34 cents) as per Ex.A1, simply indulged in virtual jugglery of words and Survey numbers. If according to the Plaintiff even

as on the date of emergence of Ex.B1 itself, there were the Survey Numbers 9/10 and 9/3 the question would arise as to how in Ex.A1 for the

Survey No. 9/10, the Survey No. 9/3pt is contemplated as its equivalent number. Without understanding the basic reality involved in this matter,

the first appellate Court allowed itself to be side tracked.

The Plaintiff, whose burden to prove the case, failed to prove it. The trial Court correctly observed that the present Survey No. 9/3 measuring

an extent of 40 cents, is different from the old Survey No. 9/3. As such, the reasoned approach of the trial Court was upset by the first appellate

Court unjustifiably by wrongly understanding the implications as set out supra.

In Ex.B8 the land is found described as one situated in Survey No. 9/10 measuring an extent of 34 cents. As such, comparing Ex.B1 and

Ex.B8 with reference to Ex.A1, it is clear that the Defendants acquired title to the suit property. Accordingly, the substantial question of law (1) is

answered in favour of the Defendants and against the Plaintiff.

Substantial question of law No. 2: Trite the proposition of law is that patta alone would not confer title. At this juncture, my mind is reminiscent

and redolent of the Full Bench decision of this Court reported in Srinivasan and six others Vs. Sri Madhyarjuneswaraswami and five others,

District by its Executive Officer at Pattavaithalai Devasthanam and five others. Certain excerpts from it would run thus:

The Supreme Court in the decision reported in State of Tamil Nadu Vs. Ramalinga Samigal Madam, observed that the powers of the statutory

authority constituted under the Act are exercised in a summary manner and the claims of occupants comes to be determined only incidentally and

they cannot be equated with the Civil Courts in respect of what they could do or the nature of relief that they could grant. A careful analysis of the

scheme underlying these abolition laws would go to show that the vesting on abolition under everyone of these legislations are subject to the pre-

existing rights of the occupants, except in respect of what are known as public or communal properties, meant for common use and the grant of

patta has been always considered and held to be in recognition of their pre-existing rights. The provisions relating to abolition and vesting of the

properties do not have the effect of obliterating or destroying such pre-existing rights, if any, except in respect of public or communal properties

and the rights which inhere are the basis and fundamental rights which entitle a person to preferentially get patta under these legislations and the

same could not be equated to the grant of patta by way of assignment under the Revenue Standing Orders or under rules of assignment outside the

scope of the statutory enactments. Similarly, a meticulous analysis of the scheme underlying the provisions of the Act dealing with the nature of

rights dealt with by the various authorities, the manner in which such authorities adjudicate such rights and the consequences of such adjudication,

disclose that they do not mean and even intended to be a substitute or alternate mode of resolution of the ordinary civil right of a citizen or for that

matter persons asserting competing claim, in their attempt to project a claim for patta. Consequently, in our view, the ratio of the decisions of the

Apex Court reported in State of Tamil Nadu Vs. Ramalinga Samigal Madam, , R. Manicka Naicker Ors. Vs. E. Elumalai Naicker, and Sayyed

Ali and Others Vs. Andhra Pradesh Wakf Board Hyderabad and Others, and that of a Division Bench of this Court in Ramanujam Kavirayar,

T.K. v. Sri-La-Sri Sivaprakasa Pandara Sannathi Avargal, 1988 (2) L.W. 513 and of a learned single Judge of this Court in Samsuddin Rowther

and Anr. v. Avvammal and 2 Others, 1992 (1) L.W. 207 would squarely apply and govern the case and consequently, it has to be necessarily

held that the jurisdiction of the Civil Courts cannot be held to have been completely ousted or barred at any rate in respect of adjudication of

claims of title and questions or issues which are not obliged or required to be adjudicated for the purposes of enforcement of these laws which has,

as their objection and aim, to implement ryotwari settlement in the areas governed by them.

15 Further, the mere fact that the orders passed or decisions rendered under these Acts were given finality for the purposes of those Acts or that

the issues, which they are obliged or required to be decided, when so decided are ordained to bind the parties to the proceedings or their privies

and successors-in-interest applying the principles of res judicata, does not have the effect of ousting the jurisdiction of the Civil Court once and for

all. It is by now well settled that even in cases where finality is accorded to any decision or order, there are certain well settled exceptions and

proved and existence of such exceptional factors, the Civil Court is entitled to nullify any or all such decisions. Similarly, even in cases where the

principles of res judicata are rendered applicable, the jurisdiction of the competent Civil Court to go into the question and find out whether the

necessary ingredients to apply the principles of res judicata exist in a given case or not cannot be denied to the Civil Courts and from the mere fact

of according finality to the orders or decisions rendered under the Act or the application of the principles of res judicata, a total or complete bar or

ouster of the jurisdiction of the Civil Courts for all and any purpose cannot be automatically inferred or implied. Before a plea of res judicata can

be given effect to, it must be sufficiently pleaded and established that the litigating parties must be the same, that the subject matter of the suit and

the other proceedings also are identical, that the questions arising in the suit and the other proceedings were directly and substantially in issue and

the same was finally decided and that too by an authority or Court of competent jurisdiction.

On coming to know of the existence of an unreported decision of the Apex Court rendered by a Bench consisting of three of their Lordships,

efforts were made to secure the same when the judgment in this case was under preparation and it was ascertained that in Sri-La-Sri Sivaprakasa

Pandara Sannadhi Avargal Vs. Smt. T. Parvathi Ammal and Ors, . Their Lordships of the Apex Court by a judgment dated 20.02.19%, not only

approved the earlier decision of the Apex Court reported in R. Manicka Naicker Ors. Vs. E. Elumalai Naicker, and set their seal of approval to

the principles laid down therein, but has categorically held in unmistakable terms with the decision in Vatticherukuru Village Panchayat Vs. Nori

Venkatarama Deekshithulu and Others, has no application to the provisions or in respect of claims arising under the Tamil Nadu Minor Inams

(Abolition and Conversion into Ryotwari) Act, 1963. Their Lordships of the Apex Court in coming to such a conclusion, held as follows:

The only question for decision relates to the jurisdiction of the Civil Court to entertain the suit which was filed by the Respondents. The trial Court

decreed the suit. The First appellate Court set aside the decree taking the view that the Civil Court''s jurisdiction was barred. In the second appeal

filed by the present Respondents, the High Court has restored the judgment and decree of the trial Court taking the view that the Civil Court''s

jurisdiction was not barred.

The plea of exclusion of the Civil Court''s jurisdiction to adjudicate the title of the parties in the present case is based on the provisions of the Tamil

Nadu Minor Inam (Abolition and Conversion into Ryotwari) Act, 1963. This Court in a recent decision in R. Manicka Naicker Ors. Vs. E.

Elumalai Naicker, , has clearly held that the Civil Court''s jurisdiction to adjudicate title of the parties, is not barred by virtue of the provisions of the

said Act. This is a direct decision of this Court on the provisions of the Act with which we are concerned for the Appellant placed reliance on the

decision in Vatticherukuru Village Panchayat Vs. Nori Venkatarama Deekshithulu and Others, . It is sufficient to observe that this decision relates

to the provisions under a different Act of Andhra Pradesh. Moreover, in R. Manickanaicker, this decision relating to the provisions in the Andhra

Pradesh Act was considered and distinguished. In view of the direct decision of this Court in R. Manickanaicker, there is no merit in this appeal.

The appeal and the contempt petition are dismissed.

In view of the above unreported decision of the Supreme Court, the decision in S. Vanathan Muthuraja Vs. Ramalingam alias Krishnamurthy

Gurukkal and Others, , rendered without even referring to the earlier reported decision of the very same Court in R. Manicka Naicker Ors. Vs. E.

Elumalai Naicker, and the unreported decision of even a larger Bench directly arising under the Tamil Nadu Act 30 of 1963, cannot be said to lay

down or declare the correct position of law or constitute a binding precedent.

For all the reasons stated above, we answer the question referred to the Full Bench in the negative by holding that the jurisdiction of the Civil

Court to entertain a suit for declaration of title and injunction is not barred by reason of the grant of patta under the provisions of Tamil Nadu Act

30 of 1963.

However in this case, the very patta-Ex.A1 relied on by the Plaintiff speaks against himself in view of the documents filed on the side of the

Defendants. As it is evident that the Plaintiff''s father himself parted with the suit property by sale deed Ex.B1 even in the year 1959 and ultimately

D3, as per Ex.B8 acquired the suit property.

In view of the ratiocination adhered to above in deciding the substantial questions of law, the second appeal is allowed, setting aside the

judgment and decree of the first appellate Court dated 9.7.1999 passed by the Sub Judge, Hosur, in A.S. No. 6 of 1999 and the judgment and

decree of the trial Court is restored and the net result is that the Plaintiff''s suit O.S. No. 450 of 1996 shall stand dismissed. No costs.