muthammal (died) and t. ... vs the state of tamil nadu, rep. by the ... on 17 march, 2006

Equivalent citations: (2006) 3 MLJ 216

Bench: S A Kumar

Muthammal (Died) And T. Periyasami vs The State Of Tamil Nadu, Rep. By The Collector And The RevenueDivisional Officer on 17/3/2006

JUDGMENT

S. Ashok Kumar, J.

1. The unsuccessful plaintiff before the courts below is the appellant herein.

2. During the pendency of this appeal, the first appellant/plaintiff died and his legal representative, the secondappellant has been brought on record. The plaintiff filed the suit for declaration of title and for permanentinjunction in respect of the schedule mentioned suit property. According to the plaintiff she purchased suitfirst and second items of the properties from his vendor Palaniandi under Ex.A.1, dated 14.1.1945 for a saleconsideration of Rs. 25/=. In respect of suit third item, he has been in adverse possession since purchase ofsuit first and second. As the defendants are attempting to take possession of the suit properties, the plaintiffhas filed the suit for the reliefs stated as above.

3. The second defendant in his written statement which has been adopted by the first defendant,has stated thatthe first and second items of the suit properties did not belong to even Palaniandi, the plaintiff's vendor as hehimself had no title over the said items and no such sale or possession took place, the alleged Ex.A. 1 has beencreated on the anti dated old stamp paper, the plaintiff is not in possession of the suit items, the plaintiff alsonot in adverse possession of suit third item from the date of purchase of suit first and second items, it is truethat the plaintiff's son Periyasamy and two others submitted a petition before the defendant on 5.9.1988 alongwith the alleged sale deed which is pending consideration, that the suit properties absolutely belonging to theGovernment and the plaintiff cannot object to the same being issued to the eligible Harijans by issuing pattas,there is no cause of action for the suit, the plaintiff is only an encroacher, and that the suit is liable to bedismissed.

4. On the said pleadings and on hearing the learned counsel appeared on either side and taking intoconsideration of the documentary and oral evidence, the trial court dismissed the suit holding that Ex.A. 1 saledeed is not genuine since the vendor himself has no title to the suit 1 and 2 items. On appeal, the firstappellate court also concurred with the findings of the trial court and dismissed the First Appeal. Aggrievedby the same, the second appeal has been preferred by the plaintiff.

5. At the time of admission, the following substantial Question of Law was framed by this Court forconsideration:-

Whether the appellant in possession of the village Natham lands is not entitled to decree as prayed forespecially in the light of the admissions of D.W. 2?

6. Learned senior counsel appearing for the appellants/plaintiffs contended that the first plaintiff haspurchased the first and second items of the suit properties from her vendor under Ex.A. 1 dated 19.1.1945 fora sale consideration of Rs. 25/= which does not require any registration. During trial, the plaintiff who wasaged 101 years was examined as P.W. 1 and she has deposed her case. Third item of the suit property wasenjoyed by her from the date of purchase of first and second items of the suit properties and thus she isclaiming adverse possession in respect of the same. It is submitted that the defendants have issued B. Memosin respect of the plaintiff's possession in third item of the suit property. According to the learned seniorcounsel even if the sale is held to be invalid, the plaintiff has perfected title by adverse possession as against

Muthammal (Died) And T. ... vs The State Of Tamil Nadu, Rep. By The ... on 17 March, 2006

Indian Kanoon - http://indiankanoon.org/doc/100308/ 1

the Government as she has been in possession of the suit properties for 43 years.

7. According to the learned senior counsel, it is the admitted case of the parties that the entire suit propertiesfalls under the category of grama natham. As far as natham is concerned, the first occupier of the land is theowner of the land. The plaintiff's possession is admitted by the defendants in their written statement. It is alsosubmitted that since her vendor Palaniandi was the first occupier he had no parent deed in his favour and sincethe sale consideration is Rs. 25/= during 1945, the document was not registered. It is further submitted thatP.W. 2, attestor to the document Ex.A. 1 spoken to the fact that he has attested the document. The evidence ofD.W. 1 Village Administrative Officer and D.W. 2, Surveyor also supports the plaintiff's case.

8. Learned Senior Counsel also clarified that in Natham, first occupier will be treated as the owner and nopatta will be given to them. Patta is issued only for assessed lands and it is the settled law. That is why,Natham is called as Poramboke i.e., "natham poramboke" which means "poram (g[wk;)" is outside; "poke(nghf;F)" is revenue record. Thus the word "poramboke lands" means the lands which is not assessed torevenue records and it is outside the revenue accounts. Likewise, "gramanatham" is defined in the LawLexicon as "ground set apart on which the house of village may be built". Similarly, Natham land is describedin Tamil lexicon published under the authority of University of Madras to the effect that it is a residentialportion of a village; or portion of a village inhabited by the non brahmins; or land reserved as house sites; etc.,Learned senior counsel also relied on very many decisions of this High Court as well as the Apex Court to theeffect that Poramboke does not include natham and grama natham never vest with the Government, whichwill be referred to in the latter part of this judgment.

9. Per contra, learned Additional Government Pleader appearing for the respondents/defendants contendedthat both the courts below have concurrently disbelieved the version of the plaintiffs as regards title to the suit1 and 2 properties. More over there are inconsistencies in the evidence of the witnesses as regards possessionis concerned. Learned Additional Government Pleader also contended that when the findings of the courtsbelow are concurrent, the interference by this Court under Section 100 CPC in this Second Appeal is veryvery limited unless the findings were erroneous being contrary to mandatory provisions of law applicable orcontrary to settled position on the basis of pronouncements made by Supreme Court or was based uponinadmissible evidence or arrived at without evidence. Learned Additional Government Pleader also contendedthat the substantial question of law formulated in this Second Appeal also does not fit in with the parametersenunciated by the Apex Court. Learned Additional Government Pleader also brought to the notice of thiscourt that the stamp paper used for Ex.A. 1 document has been forged in that the name of the plaintiff has notbeen mentioned in the said document and even the name found in Ex.A. 1 is not her husband's name. It isultimately submitted that no interference is called for with respect to the concurrent findings of the courtsbelow.

10. Taking into consideration of the evidence of P.W. 1, who is the plaintiff, at the time of her examinationshe was aged 101 years and she has deposed that she had purchased suit items 1 and 2 as vacant lands andbefore that there was a building in the said lands. She had purchased the grama natham lands in the year 1945from her vendor. P.W. 2, who is one of the attesting witness to Ex.A. 1 has deposed that he knows thepossession of suit items 1 and 2 even by the vendor Palaniandi's father since he is doing onion business in theadjacent land. At the time of purchase, there was a hut where cattle were tied and haystack was also stored.P.W. 3 is the son of the first plaintiff. He deposed that it is not Government Poramboke, but it is gramanatham and since 1945 they are in possession and enjoyment of the same by putting by hut which gotdestroyed during the recent rain.

11. D.W. 1, who is the Village Administrative Officer stated that patta has not been given to anybody inrespect of the Survey No. 370/A1,B1 as seen from the A Register. If the suit lands are in the possession of theplaintiff, it would reflect in the FMB. It is only mentioned in the register that it is used for keeping thehaystacks. In the cross examination he has admitted that in S. No. 370/A1, B1, in a extent of 13 hectares and40 ares, there are about 350 individual houses and no tax being levied for the same. The entire extent is grama



natham. He has also stated that there is no revenue record to show that P.W. 3 is in possession of the suitproperties.

12. D.W. 2, who is the Surveyor in his evidence stated that they have prepared a draft for issuing patta infavour of the persons who are in possession of S. No. 370. Sine S. No. 370/A/1B is vacant the issuance ofpatta has been stopped on the directions of the proceedings issued by the Directorate. In his cross he has statedthat his predecessor has recommended for issuance of patta to P.W. 3, Periyasamy in respect of S. No.370/A/16 which is 36 cents.

13. It is the admitted case of both the parties that the suit properties are grama natham lands. As rightlycontended by the learned senior counsel no patta will be issued in respect of grama natham and the firstoccupier is the owner of the particular portion of land. Though D.Ws 1 and 2 have deposed that the suit 1 and2 properties were vacant sites, D.W. 1 admitted that there is a hut used for keeping haystack. He has alsoadmitted that there were houses around the suit properties. It is very unfortunate that to prove that the plaintiffwas not in possession of the suit properties no documentary proof in the nature of revenue records or registershave not been produced by the defendants. Even the fasalis mentioned by D.W. 1 relates to the period afterfiling of the suit. D.W. 2 in his evidence admits that 36 cents is in possession of the plaintiff.

14. Learned senior counsel relied on the earliest judgement on this subject in Papala Narayanaswamy Naiduand Ors. v. Secretary of State for India in Council rep. by the Collector of Chingleput and Ors. reported in 24MLJ 36, wherein a Division Bench of this Court observed that the words poramboke may convey unassessedwaste but not communal property such as burying grounds, temple sites, threshing floors, public roads, andrivers all of which also are included in the area of the village but which are not in terms excepted from thegrant.

15. Learned Senior Counsel also relied on the judgment in Rengaraja Iyengar and Anr. v. Achikannu Ammaland Anr. reported in 1959 MLJ 513, wherein it is observed that Lands which are within the limits of thegramanatham and on which buildings or sheds may be put up when necessary should also be house siteswithin the meaning of the section whether such buildings are constructed or not. In the present case, there wasbuilding in the suit properties before 1945 and later the plaintiff put up a shed as admitted by the witnesses.

16. Reliance was placed on the judgment of this court in N.S. Kupuswamy Odayar and Anr. v. The Panchayatof Narthamgudi reported in 1971 (I) MLJ 190, wherein M.M. Ismail,J., held that "the mere fact that in there-settlement Register, a particular piece of land has been described as poramboke will not by itself establishtitle of the Government to the land in question.". In the present case even after the resurvey the entire extent isclassified as gramanatham and it is only the adjacent lands to the suit lands are government poramboke asadmitted by D.W. 2.

17. In A. Sankaralingam v. Arunachala Reddiyar and Ors. reported in 1993 (1) MLJ 472, it has been held that"there is no law saying that all natham properties are Government or Panchayat properties. The decision inRengaraja Iyengar v. Achikannu Ammal is that Grmanatham does not stand vested in the Government underSection 3(b) of the Madras Estates (Abolition and Conversion into Ryotwari) Act. Thus, at any rate, it cannotbe said automatically that all natham properties are Government properties". In the present case it is not indispute that the entire extent of the survey number is gramanatham and hence it does not vest with theGovernment.

18. In A.K. Thllaivanam v. The District Collector, Kancheepuram and Ors. reported in 1998 (3) LW.603, ithas been held that grmanatham being vested with the petitioners no action could be taken under the LandEncroachment Act or Estate Abolition Act or any other enactment, it is not communal property, and beinggramanatham as the petitioners had exclusive right, title and possession, the Government had no right tointerfere or give complaint under Section 420 IPC. In the present case, it is in evidence that the suit propertieswere in possession of the plaintiff's vendor's father.



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19. As regards genuineness of Ex.A. 1, it is submitted by the learned Additional Government Pleader that thestamp paper has been purchased even two months prior to the date of the document and it has been purchasedin the name of one Kesava Naidu and not either in the name of the plaintiff or her husband. In this connectionwe have to visualise the situation that existed during 1945. The value of the stamp paper is 1 Rupees and 8Annas. The suit is of the year 1988. Normally, the courts shall not entertain any doubt as to the genuineness ofthe documents of such old period that too when the purchaser as well as one of the attesting witness havegiven their deposition. It is in evidence that no stamp vendor was available in Valayapatti at that point of timeand probably the plaintiff's husband might have purchased the stamp paper from the said Kesava Naidu. Sincethe land being grama natham, the plaintiff's vendor's father had no parent document in respect of the suit itemsand he might have occupied the land as the first occupier and naturally he is the owner. From the vendor theproperties comes to the hand of the plaintiff and the suit has been filed in the year 1988. Thus from 1945 formore than 43 years, the plaintiff and after her death her son has been in exclusive possession and enjoyment ofthe grama natham land. Thus even if there is no such sale deed (Ex.A. 1), the plaintiff has perfected title byadverse possession as against the Government namely, they have been in possession and enjoyment of the suitproperties for over the period of 30 years without any disturbance. Admittedly, there is no other rival claim inrespect of the suit properties. In the circumstances it has to be held that even if Ex.A. 1 is not believed, suit fordeclaration can be given on the basis of possession.

20. Learned Additional Government Pleader also submitted that the plaintiffs were never in possession of thesuit properties. But, from the evidence of the parties it could be seen that there is admission that the plaintiff isin possession of 39 cents and even proceedings were initiated to issue patta to the plaintiff's son. The issuanceof B-memo in respect of third suit item would go to show that the plaintiff was in possession. The existence ofthatched shed and usage of the same is also admitted by the parties in their evidence. Admittedly, thedefendants being Government Authorities, not a single documentary evidence from the years 1945 to 1988has been produced to show that the suit properties were in possession of some other person or the lands arenot grama natham. As rightly contended by the learned Senior Counsel as regards third item of the suitproperty, the plaintiff has proved her adverse possession supported by B. memo, which is not supposed to beissued to grama natham lands. Whether the plaintiff's vendor's father was in occupation or whether theplaintiff's vendor Palaniandi or the plaintiff, or the plaintiff's son, P.W. 3 were in possession of the suitproperties would be revealed in the revenue records. But unfortunately, though the Village AdministrativeOfficer and the Surveyor have been examined on the side of the defendants, no document has been producedto show that either the plaintiff or her son were not in possession of the suit properties. A party, who is havingrecords in his possession withholds the same which will throw light on the facts in issue, then the court isentitled to draw adverse inference against such party. In this case, the non production of the revenue recordsby the defendants would only go to show that if the records are produced, it may be useful to the plaintiff andthat is why the records have not been produced.

21. The contention of the counsel for the respondents that there is no substantial question of law involved inthis case, is liable to be rejected since the concurrent findings of the courts below are contrary to mandatoryprovisions of law applicable and based upon inadmissible evidence. The courts below have failed toappreciate the evidence of the parties that the plaintiff was in possession as per Ex.A. 1 from 19.1.1945 andshe has perfected title by adverse possession and thus even Ex.A. 1 is disbelieved, the plaintiff is entitled tothe relief of declaration and injunction on the basis of long possession for over the statutory period.Accordingly, the substantial question of law is answered in favour of the appellant/plaintiff since theconcurrent findings of the courts below are based on erroneous appreciation of the evidence and statutoryprovision of law and well settled principle of law.

22. In the result, the Second Appeal is allowed setting aside the judgments and decrees of the courts belowand decreeing the suit. No costs.



muthammal (died) and t. ... vs the state of tamil nadu, rep. by the ... on 17 march, 2006

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