O.K. Muniyan, O.K. Munuswamy and O.K. Chennakrishnan vs Govinda Chettiar, Govinda Chettiar, Ravindran and Senga Gounder

S. Ashok Kumar

The plaintiffs in O.S. No. 309 of 1987 who are defendants in O.S. No. 515 of 1988, having aggrieved against the common judgment of the first

appellate court have preferred both these second appeals.

Both the parties have filed their respective suits seeking the same reliefs of declaration of title and for permanent injunction against each other.

As the subject matter of the suit property and the parties are one and the same, both the suits were tried jointly and common evidence was

recorded in O.S. No. 515/88 and for convenience, the parties were referred to as arrayed in the said suit. Here also the same thing is being

followed.

The gist of the plaintiffs'' case is that the suit properties were purchased by the plaintiffs in court auction in E.P. No. 649 of 1964 in O.S. No.

409 of 1963 on the file of the District Munsif Court, Dharmapri by proceedings dated 26.2.1965. One Kuppan Egali who is the father of the

defendants namely Munian, Munusamy and Chennakrihsnan mortgaged the suit properties to one Chinnasamy Chettiar, the legal heirs of the said

Chinnasamy Chettiar filed a suit in O.S. No. 409 of 1963 to recover their money. One of the legal heir is 2nd defendant in O.S. No. 809 of 1987,

namely Ravindran. The said suit in O.S. No. 409 of 163 was decreed and the mortgaged properties were brought for auction on 26.2.1965 and

the plaintiff has purchased the mortgaged properties in the said court auction sale. The auction sale was also confirmed by the court on 6.4.1965

and possession of the properties was also delivered to the plaintiff by court Amin on 18.10.1965. Thus the plaintiff is in possession of the suit

properties from the date of delivery by the Court Amin and the defendants have no right in the suit properties. The father of the defendants namely

Kuppan Egali died on 30.12.1969. Since the defendants are trying to disturb the possession of the plaintiffs denying their right in the suit

properties, the suit has been filed for the reliefs of declaration of title and for permanent injunction.

The defendants case in short is that they deny the case of the plaintiffs while contending that the plaintiffs were never in possession of the suit

properties. According to them, the suit property was purchased by their father namely Kuppan Egali and after his death, the property devolved on

his legal heirs and thus the defendants are in possession of the suit properties. The defendants also contended that the plaintiffs created a forged

document and tried to disturb the possession of the defendants on 29.9.1987. The defendants also made a complaint to the Sub Collector,

Dharmapuri and based on that complaint, the patta granted to the plaintiffs was cancelled. There is no cause of action for the suit filed by the

plaintiffs and there is deficit court fee paid. Even the plaintiffs proves their title, the defendants have perfected title by adverse possession and hence

the suit filed by the plaintiff is liable to be dismissed.

On the above pleadings and on hearing the learned Counsel appeared on either side and on a perusal of the evidence both oral and

documentary, the trial court dismissed the the suit in O.S. No. 515 of 1988 filed by the plaintiffs and decreed the suit in O.S. No. 809 of 1987

filed by the defendants. On appeal, the first appellate court allowed both the Appeal Suits by reversing the common judgment and decrees of the

trial court. As against the same, the defendants (plaintiffs in O.S. No. 809/87) have preferred these Second Appeals.

At the time of admission, this Court framed the following separate substantial questions of law in these Second Appeals:

S.A. No. 837/94

(i) Whether the lower appellate court erred in law in reversing the judgment of the trial court when the plaintiff did not establish that he had taken

physical possession through court and thereafter only on 28.1.1987 applied for transfer of patta of the property?

S.A. No. 838/94

(ii) Whether the lower appellate court erred in law in reversing the judgment of the trial court when the first defendant did not establish that he had

taken physical possession through court and thereafter only on 28.1.1987 applied for transfer of patta of the property?

Learned senior counsel appearing for the appellants contended that only after 22 years later patta was obtained and on filing appeal against the

issue of patta the Sub Collector, Dharmapuri ordered the Thasildar to conduct fresh enquiry. Though the plaintiffs'' case is that they purchased the

suit properties in the court auction sale, the appellants case is that they were not arrayed as parties to the said suit and the sale is not binding on

them. Moreover the alleged possession by the plaintiffs is only symbolic and no actual possession taken from them. The first appellate court having

found that after the cancellation of the patta possession is with the defendants, it has rendered a wrong and erroneous finding. Merely because the

defendants have not applied for patta after their father''s death, the same cannot be taken against the defendants.

Per contra, learned Counsel appearing for the respondents contended that it is not in dispute that the plaintiffs have taken possession through

court and a sale certificate has been issued in that respect. The third appellant was a defendant and he was a judgment debtor. His property was

sold in the auction and now he has come before this Court saying that in spite of the court auction sale he continues to be in possession. Learned

Counsel also relied on the judgment reported in 1991 1 L.W. 244 wherein the issue was whether a person who was a party to the suit or his LRs

could claim de hors the delivery made and effected through court that they continue to be in possession, M.Srinivasan,J., as he then was, held that

they cannot set up such a claim as presumption u/s 114 of the Evidence Act is that the Official acts are performed regularly and no doubt could be

raised in that respect. Exs.B.2 and B.3 are Adangal extracts which stand in the name of Kuppan Egali. Ex.A.7 would show that Kuppan Egali died

only in the year 1987. The revenue records only for the purpose of land revenue and they cannot be relied a proof of title as has been held by this

Court in M.E.A. Mohamed Ali and Others Vs. The District Revenue Officer, The Revenue Divisional Officer and S.N. Mohamed Abdullah rep.

by Power Agent A. Mubarak Ali, . The defendants also cannot claim adverse possession sine the plaintiffs are the title holders. Only if they admit

the title of the plaintiffs they can claim adverse possession. Kuppan Egali was a party and he was a judgment debtor in O.S. No. 406 of 1963.

To prove their title the plaintiffs have filed Ex.A.1, sale certificate issued by the court in O.S. No. 409 of 1963 on 6.4.1965. Ex.A.2 is the

delivery note of the Amin dated 18.10.1965 in respect of E.P. No. 649 of 1964 in the said suit. Ex.A.3 is the patta book which stands in the name

of the plaintiff namely Govinda Chetty. Ex.A.4 is the patta transfer order by the Tahsildar which is dated 28.9.1987. Ex.A.5 is the proceedings of

the Sub Colecltor, Dharmapuri setting aside the proceedings of the Tahsildar remanding back the issue for fresh enquiry. Ex.A.6 is the patta

granted in favour of the plaintiff after fresh enquiry by the Tahsildar. Ex.A.7 is the death certificate of Kuppan Egali, father of the defendants.

Exs.A.8 to A.11 are kist receipts in respect of the suit property. Ex.A.12 is the proceedings of the Tahsildar dated 5.10.1987 saying that the

transfer of patta in he name of he plaintiff with effect from 1987. Ex.A.13 is the copy of the chitta. Ex.A.14 is the adangal for the fasli 1380 to fasli

1398 i.e, frm the years 1970 to 1988.

From a perusal of the above documents it is clear that the plaintiff has purcahsed the suit property through court auction and thereby the legal

heirs of Kuppan Egali who are the defendants had lost their right in the suit property. The plaintiff is also in possession of the suit property since

18.10.1965 as seen from the delivery note of the Court Amin. Per contra, the defendants relied on the documents namely (i) patta book Ex.B.1)

(ii) Chitta copy Ex.B.2; (iii) Adangal Extracts Ex.B.3) and copy of order in C.C. No. 70/88 of Palacode Judicial Magistrate, Ex.B.4. The

defendants case is that after the death of Kuppan Egali, their father, the suit property devolved on them. They also pleaded the alternative plea of

adverse possession. But a perusal of the documents filed by the defendants would show that there is no document filed to prove either their title or

their possession in the suit property for over 12 years without any interruption, peaceful and continuous and long possession.

Ex.A.1 is a sale certificate showing the purchase of the suit property by the plaintiff in the court auction sale. Ex.A.2 is a document issued by

the court which stands as a proof for delivery of possession to the auction purchaser, i.e., the plaintiff. EXs.A.3 to A.15 are revenue documents

which can be taken as a supportive documents to prove title along with material documents as the revenue documents cannot be taken as the sole

evidence.

In G. Ramasamy v. Kuruva Boyan and two others, reported in 1991 1 LW.244, M. Srinivasan, J., held as follows:

It is not possible for the court to ignore the evidence afforded by the court officials to the effect that delivery has been affected on a mere allegation

that there is no actual delivery. In order to reject the official records such as the plaintiff''s endorsements there must be a definite and special plea of

fraud. In the absence of a plea of fraud with full particulars as are necessary to support the same, the court shall not direct an enquiry as to whether

there is actual delivery. In every case the judgment debtor is interested in stating that there is no physical delivery in order that he may obtain an

order of stay in the appellate court. A bare allegation that the delivery is a paper delivery and that the appellant continues in possession is hardly

sufficient to direct an enquiry whether there is physical delivery. The presumption u/s 114 of the Evidence Act that official acts are performed

regularly with undoubtedly apply.

In the present case the father of the defendants had delivered possession of the suit property to the plaintiff and there is no escape for the

defendants from this situation. Moreover the presumption u/s 114 of the Evidence Act that official acts are performed regularly with undoubtedly

apply.

In Sagar Mahila Vidyalaya, Sagar Vs. Pandit Sadashiv Rao Harshe and others, , the Supreme Court held that ""So far as sale in favour of

highest bidder is concerned, there is no illegality and sale was rightly confirmed in his favour under order 21 Rule 92 CPC. Once an order was

made under Order 21 Rule 92 confirming the sale, the title f the auction purchaser related back to the date of sale as provided u/s 65 CPC. The

title in the property thereafter rests in the auction purchaser and not in judgment debtor."" In the present case, the defendants have not challenged

the sale and it has reached finality.

In Kuppuswami Nainar Vs. The District Revenue Officer and Others, , a Division Bench of this Section held that

No provision brought to our notice in the standing orders of the Board of Revenue taking away the jurisdiction of the Civil Court to adjudicate

upon the question of title relating to immovable property. Revenue officers in patta proceedings may express their view in a question of title, but

such expression of opinion or decision is not conclusive and it is only intended to support their decision for granting patta. Ultimately it is the civil

court which has to adjudicate the question of title.

In M.E.A. Mohamed Ali and Others Vs. The District Revenue Officer, The Revenue Divisional Officer and S.N. Mohamed Abdullah rep. by

Power Agent A. Mubarak Ali, , Markandeya Katju, C.J., as he then was, held as follows:

The dispute relates to entries in the revenue records. It is well settled that entries in the revenue records does not create or extinguish title nor has it

any presumptive value vide M.T.W. Tenzing Namgyal and Others Vs. Motilal Lakhotia and Others, ; Balwant Singh and another etc. Vs. Daulat

Singh (dead) by L.Rs. and others, and Smt. Sawarni Vs. Smt. Inder Kaur and Others, . Such entries are only for the purpose of payment of land

revenue. Hence the parties aggrieved by such entries in the revenue records should get their rights adjudicated in a civi suit... We further make it

clear that the order of the revenue authorities is not binding in the civil suit, and the civil court will decide the rights of the parties independently of

the order of the revenue authority.

In the present case, both the parties have filed revenue documents in support of their respective claim for possession. As already held, in view of

the binding decisions of this Court as well as the Supreme Court, those documents cannot be taken into consideration as the sole evidence to

decide the issue of either title or possession.

In Kannappan Vs. Pargunan and 9 others, , it has been held that a plaintiff seeking declaration of tile on the basis of document and also vaguely

stating that even if any other person got title, plaintiff had prescribed title by adverse possession, plaintiff can contend adverse possession only

when he admits that another person has got title. Otherwise, the plea of adverse possession has to be rejected. The principle behind the plea of

adverse possession can be extracted from the legal maxim that the possession should be ""nec vi nex clam nec precario"" i.e., the possession

required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. In the absence to fulfill the

necessary ingredients, the claim of adverse possession by the defendants cannot be accepted. In the above circumstances, I do not find any error

of law in the findings of the first appellate court. Accordingly, both the questions of law are answered against the appellants.

In the result, both the Second Appeals are dismissed confirming the common judgment and decrees of the first appellate court. No costs.