Srinivasan vs Seenikonar and The Tahsildar

P.R. Shivakumar, J.—The unsuccessful plaintiff, after having failed to succeed in the legal battle before the Courts below, has brought forth

this second appeal. The appellant herein had filed O.S. No. 142 of 1992 on the file of the learned District Munsif Court, Devakottai for

declaration, mandatory injunction and permanent injunction.

According to the plaint averments, the suit property was the ancestral property of the appellant. He had constructed a compound wall on the

western boundary of the suit property, put up barbed wire fence on all other three sides and kept the suit property under his exclusive possession

and enjoyment. He has also constructed a small tiled house in the suit property and is residing therein. The balance area is in his use as a space for

tying cattle, spreading the vessels for the purpose of washing and for putting up hay-stacks. In between the suit property and the property of the

first respondent, there is a vacant space classified as natham poramboke used by the village public as a passage, and for draining the rain waters.

While so, the first respondent put up a compound wall close to the eastern fence of the appellant leaving only a 3 feet space for the use of the

public for the above said purposes. The same was reported to the second respondent, when the construction of the wall was in progress. But the

second respondent kept quiet till the completion of the construction and thereafter, instead of taking action against the first respondent, issued a

notice to the appellant herein as if he had occupied a portion in the use of the public as a public street and as a place for parking their carts. In the

above said circumstances stated in the plaint, the appellant was constrained to file the suit for declaration of his title and permanent injunction in

respect of the suit property and for a mandatory injunction for the removal of the compound wall put up by the first defendant.

The second respondent (Tahsildar), arrayed as the second defendant in the suit, did not contest the same and remained exparte. The first

respondent/first defendant resisted the suit contending that there was no encroachment of the street portion by the first respondent as alleged in the

complaint; that the first respondent''s wall had been constructed only on the border of his property; that the said wall was constructed more than

30 years prior to the date of filing of the suit and that the suit property was a natham poramboke land used as public street and a place for parking

the carts of the villagers. He had also contended that pursuant to the notice issued by the second respondent (Tahsildar), the appellant gave a

statement admitting that he had encroached upon the above said property which was earmarked for public use and undertaking to remove the

fence and clear the encroachment made by him and that thereafter, without complying with the said undertaking, the appellant, with ulterior motive,

approached the Court with the false case.

The trial Court, after framing necessary issues, conducted trial, in which the plaintiff was examined as the sole witness on the side of the plaintiff,

besides marking Exs.A.1 to A.5 as documentary evidence. Likewise 3 witnesses were examined and one document (Ex.B.1) was marked on the

side of the defendants. Exs.C.1 and C.2 were also marked as Court documents. After considering the evidence adduced on both sides, the trial

Court decided all the issues against the appellant and dismissed the suit.

On appeal, the lower appellate Court, namely Subordinate Judge, Devakottai, confirmed the judgment and decree of the trial Court. Hence the

present second appeal has been brought forth.

This Court heard the submissions made by Ms. AL. Gandhimathi, learned Counsel appearing for the appellant, by Mr. V. Raghavachari,

learned Counsel appearing for the first respondent and also by Mr. D. Gandhiraj, learned Additional Government Pleader appearing for the

second respondent and perused the materials available on record including the judgments of both the Courts.

The suit was filed in respect of the suit property, which was described in the plaint as a house site. The learned Counsel for the appellant

contended that both the Courts below erred in holding the suit property to be a public pathway in the absence of sufficient evidence; that the

Courts below failed to consider the Commissioner''s report which resulted in improper dismissal of the suit filed by the appellant and that patta

standing in the name of the appellant should have been accepted as prima facie evidence of title, in the absence of any other contra evidence

adduced on the side of the other party.

On the other hand, the learned Counsel appearing for the contesting respondent (first respondent) contended that the Courts below, on proper

evaluation of the evidence adduced on both sides, came to the conclusion that the suit property was a public pathway and a place for parking the

carts of the villagers and that the plaintiff had no title to the suit property; that the concurrent findings of the Courts below could not be interfered

with; that, in any event, the appellant/plaintiff had not established the involvement of a substantial question of law in the second appeal and that the

substantial questions of law framed at the time of admission were not, in fact, substantial questions of law. At the time of admission, the following

questions were framed as substantial questions of law involved in the second appeal:

(1) Whether the Courts below erred in not appreciating that in the absence of any other evidence, patta is prima facie evidence of title and

decreeing the suit on the said basis?

(2) Whether the Courts below erred in holding the suit property as public pathway when there is no pleading to that effect or evidence on record?

and

(3) Whether the Court below erred in dismissing the suit without considering the Commissioner''s report which is a material evidence and forms

part of the record?

Let us now consider the case of the appellant in the light of the above said questions framed as substantial questions of law. The suit property

has been described in the plaint schedule as a house site measuring 0.04.61 hectares comprised in Survey No. 229/13 of Sankarapuram Village,

Karaikudi Taluk, Sivaganga District, which is stated to be lying on the west of the first respondent''s dry land and grama natham poramboke, on

the north of Rama. Chinnakaruppan Ambalam''s dry land, and on the east of the appellant''s larger house and vacant site appurtenant to the same.

Even though the total extent of the disputed property is shown to be 0.04.61 hectares, on a close scrutiny of the plaint averments and description

of the property in the light of the field map found in Ex.A.2-rough patta and Ex.C.2-Commissioner''s plan, it is quite obvious that the dispute is

confined to a part of the total extent comprised in the said survey number, namely the eastern portion lying on the east of the plaintiff''s north-south

compound wall, and not in respect of the entire extent. As per the measurements found in Ex.C.2-Commissioner''s plan, the disputed portion

(eastern part of the suit survey number) measures an extent of roughly 6 cents and the western portion (undisputed portion) measures an extent of

5 cents. The north-south compound wall of the plaintiff shown in blue colour in Ex.C.2 divides the survey number into two parts. Admittedly the

western part including the blue marked compound wall belongs to the appellant and the same is in his possession and enjoyment. According to the

contesting respondent, though the right and enjoyment of the appellant was restricted to the western part of the suit survey number having an extent

of 5 cents, during natham survey, by mistake, Ex.A.2 rough patta happened to be issued in the name of the appellant for the entire extent of

0.04.61 hectares (roughly 11 cents). The appellant got patta for the entire 11 cents. He has chosen to file the suit in respect of the eastern portion

alone i.e. the portion which lies on the east of the plaintiff''s compound wall. However, the appellant has given the extent of the suit property,

namely the property lying on the east of the compound wall marked in blue in Ex.C.2, as 0.04.61 hectares. The fact remains that the said extent

represents the entire survey number including the western portion that lies on the west of the plaintiff''s compound wall. Therefore, it is quite clear

that the extent of the suit property shown in the plaint is incorrect.

It is the admitted case of both parties that the western part of the suit survey number is the ancestral property of the appellant. On the other

hand, the claim of the appellant that the eastern portion, namely the suit property, also is his ancestral property has been disputed by the contesting

respondent. The submission made on behalf of the contesting respondent that if at all the eastern portion of the suit survey number was also the

ancestral property of the appellant/plaintiff, the appellant would have chosen to erect his compound wall on the eastern extremity of the suit survey

number and not on the middle of the same dividing the same into two plots, has got to be countenanced. Further more, while deposing as P.W.1,

the plaintiff made an admission that both the houses were located on the west of the compound wall marked in blue and that only a cattle shed was

located on the eastern part. The said admission of the plaintiff as P.W.1 belies the plaint averment that he had constructed a residential house in the

suit property (portion lying on the east of the blue mark wall) and he was residing in the said house and that the remaining portion was being used

for tying cattle, spreading and washing vessels and for putting up hay-stacks. The oral and documentary evidence adduced on the side of the

contesting respondent, namely the first respondent, show that the southern boundary of the suit property alone was fenced at the time of filing of

the suit and that the said fence was also put up just prior to the filing of the suit. It is also obvious from the said evidence that fencing on the other

two sides was completed only subsequent to the first visit made by the Advocate Commissioner. The said view gets support from the particulars

found in Ex.C.1-Commissioner''s report. There is ample evidence to show that a small tiled shed put up on the east of the blue mark wall was put

up recently with a view to stake claim of title to the suit property.

It is also pertinent to note that the rough patta issued under Ex.A.2 has also been subsequently ordered to be cancelled. As against the issue of

Ex.A.2-rough patta in favour of the appellant, the village public moved the Assistant Settlement Officer, Madurai praying for the cancellation of the

same. The Assistant Settlement officer, by his order dated 31.05,1993, declined to cancel the rough patta on the ground that civil suit was pending

and directed that representations could be made after the disposal of the civil suit. A copy of the order has been marked as Ex.A.4. As against the

said order of the Assistant Settlement Officer, an appeal was filed before the District Revenue Officer, Sivaganga. The District Revenue Officer, by

his order dated 11.04.1994, directed the cancellation of the rough patta so far as it relates to the suit property, the District Revenue Officer has

also directed the issue of patta in favour of the appellant only in respect of the western part of the suit survey number that lies on the west of and

inclusive of the compound wall of the plaintiff shown in blue colour in Ex.C.2. No doubt the said order was passed during the pendency of the civil

suit. But, admittedly, there was no stay of the appeal filed before the District Revenue Officer and there was no injunction. As such, the said order

of the District Revenue Officer cannot be totally ignored, especially when the appellant/plaintiff relies on the rough patta marked as Ex.A.2. In the

light of the above said order passed by the District Revenue Officer marked as Ex.A.4, the claim of title to the suit property based on Ex.A.2-

rough patta has got to be disallowed as the said rough patta is no longer valid.

The learned Counsel for the contesting respondent has brought it to the Court''s notice that there is a clear admission made by the plaintiff as

P.W.1 that he gave a statement before the Tahsildar and that Ex.B.1 was the true copy of the same. The contents of Ex.B.1 clearly show that the

appellant/plaintiff had admitted to have put up a fence encroaching upon the village natham poramboke used by the public and that he had no

objection for the removal of the fence. In the light of the above said admission, it cannot be said that the findings of the Courts below to the effect

that the appellant was entitled to the portion that lies on the west of and inclusive of the compound wall marked in blue in Ex.C.2-Commissioner''s

plan alone and not entitled to any portion on the east of the said wall, is against the preponderance of evidence and that in any event the said finding

cannot be termed based on no evidence or otherwise perverse.

The next contention raised by the appellant is that the first respondent has put up a compound wall enclosing a portion of the public street on

the west of his property. The said contention has been correctly negatived by the Courts below. The Commissioner has noted the compound wall

of the first defendant to be in alignment with the compound wall constructed by the owner of the property that lies on the north of the first

respondent''s property. The fact that the first respondent''s compound wall is in alignment with the compound wall of the northern property has also

been admitted by P.W.1. Taking into account all these aspects, the Courts below have arrived at a correct conclusion that the appellant had got

title and possession only in respect of the portion lying on the west of the compound wall marked in blue in Ex.C.2-Commissioner''s plan and that

the portion lying on the east of the said wall was a community land, a part of which was used as a street and the remaining portion was used as a

space for parking carts of the villagers. The concurrent findings of the Courts below in this regard cannot be interfered with, as they cannot be said

to be based on no legal evidence or against the preponderance of evidence. There is no misreading or misinterpretation of any document. At no

stretch of imagination, the said finding can be stated to be perverse. The appellant has not proved the involvement of a substantial question of law

in the second appeal. All the questions of law framed at the time of admission of the second appeal, according to the considered view of this

Court, are not, in fact, substantial questions of law. Even assuming that those three questions framed at the time of admission of the second appeal

are substantial questions of law, all the questions have got to be answered in negative and against the appellant.

For all the reasons stated above, this Court comes to the conclusion that the appellant has not made out a case for interference with the

concurrent judgments of the Courts below. There is no merit in the second appeal and the same deserves to be dismissed with costs.

Accordingly, the Second Appeal is dismissed with costs. Consequently, the connected miscellaneous petition is also dismissed.