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Sulthan Ibrahi v. Ramanathapuram - S.A.No.178 of 1997  RD-TN 1856 (9 June 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09/06/2007
THE HONOURABLE MR.JUSTICE G.RAJASURIA
S.A.No.178 of 1997
Sulthan Ibrahim .. Appellant
Samasthanam Devasthanam by
its hereditary Trustee,
Rani Indira Devi Nachiar. .. Respondent
Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 30.11.1994 in A.S.No.36 of 1993 on the file of the District Judge, Ramanathapuram, reversing the judgment and decree dated 22.01.1993 in O.S.No.24 of 1987 on the file of the learned District Munsif, Ramanathapuram.
For Appellant ... Mr.V.Sitharanjandas
For Respondent ... Mr.G.Sridharan
This second appeal is focussed as against the judgment and decree dated 30.11.1994 in A.S.No.36 of 1993 on the file of the District Judge, Ramanathapuram, reversing the judgment and decree dated 22.01.1993 in O.S.No.24 of 1987 on the file of the learned District Munsif, Ramanathapuram.
2. A re'sume' of facts absolutely necessary for the disposal of this second appeal as stood exposited from the records could be portrayed thus: The quintessence of the averments in the plaint is to the effect that the plaintiff Trust is the owner and possessor of the immovable property to an extent of one acre 18 cents as found described in the schedule of the plaint by virtue of the patta issued by the Government relating to the suit property bearing survey No.333/9. While so, the defendant without any manner of right is trying to evict its tenant Kasi and grab it. Accordingly, the plaintiff prayed for decreeing the suit.
3. Denying and refuting, challenging and impugning the averments in the plaint, the defendant filed the written statement to the effect that absolutely there is no evidence to show that the plaintiff is the owner of the suit property; the patta also is, not in the name of the plaintiff; at one point of time of settlement, joint patta was issued in names of the defendant's elder brother and the plaintiff Trust; subsequently, it was corrected on the ground that the plaintiff was not having any right or possession over the suit property and that the patta stood exclusively in the name of the defendant's elder brother relating to the suit property.; the plaintiff is not in possession of the suit property through his tenant Kasi; the allegations are all false and accordingly, he prayed for the dismissal of the suit.
4. The trial Court dismissed the suit. Being aggrieved by and dissatisfied with, the judgment and decree of the trial Court, the plaintiff preferred the first appeal. But the first appellate Court, reversed the judgment and decree of the trial Court and decreed the original suit.
5. Challenging the judgment and decree of the first appellate Court, the defendant preferred this second appeal on the following main grounds among others:
The first appellate Court failed to consider that the joint patta earlier issued in the name of the plaintiff and the defendant's elder brother was cancelled and the patta was issued in the name of the defendant's brother. Despite notice issued to the plaintiff by the Tahsildar concerned at the time of effecting such transfer, the plaintiff did not appear and ultimately the patta was issued only in the name of Mohammed Abubacker, the elder brother of the defendant and that the defendant as successor of his brother is in possession of the suit property. The plaintiff has not preferred any appeal as against the order granting patta in favour of the appellant; The first appellate Court failed to consider properly the documents Ex.P.4 to P.7 and P.10; Accordingly, he prayed for setting aside the judgment and decree of the first appellate Court and for dismissing the original suit.
6. Based on the appeal grounds, my learned Predecessor at the time of admitting this second appeal, framed the following substantial question of law: "Whether the judgments and decrees of the Courts below are vitiated for not considering the entire evidence available on record and for not applying the correct principles of law applicable to the facts of the case?"
7. Heard both sides in entirety.
8. The perusal of the judgment and decree of the trial Court would reveal that the trial Court allowed itself to be assailed very much by the fact that the settlement Officer while exercising his power under the Act 26 of 1963 as the competent authority determined the rights finally. He would also hold that the plaintiff had failed to correlate the present survey number 333/9 with the old Paimash number. However, the first appellate Court reversed the finding of the trial Court for the detailed reasons stated therein.
9. The learned counsel for the second appellant would submit that the trial Court was right in placing reliance on the findings of the Settlement Officer for the reason that the Clerk of the plaintiff namely, Govinda Iyer before the Settlement Officer as revealed by Ex.B.2 clearly and categorically without mincing words, admitted that Devasdhanam was having no right over the suit property and thereupon only, the Tahsildhar after perusing the records and that too, after identifying the property on ground, issued such order as in Ex.B.2.
10. Per contra, the learned counsel for the plaintiff would refer to the decision of the Full Bench decision in Srinivasan v. Sri Madhyarjuneswaraswami, Pattaviathalai reported in 1998 (I) CTC 630 and develop his argument that Ex.B.2 cannot be taken as one which conclusively adjudicated the civil rights of the parties and that the Civil Court alone is the competent forum to decide the matter relating to the rights of the contesting parties. Paragraph Nos.14 and 15 of the aforesaid judgment are extracted hereunder for ready reference: "14. We have carefully considered the submissions of learned counsel appearing on either side in the light of the catena of cases noticed supra by us and the principles laid down therein. A comparison of the provisions contained in the Abolition Act, the Inam Abolition Act as also the Minor Inams Act would go to show that the ultimate object of one or the other of these legislations is the introduction of ryotwari settlement in the areas covered and notified under the respective enactments, after abolishing existing land tenure and acquiring the rights of the landholders or inamdars concerned, who, under the system of land tenure which was in vogue in these areas, were considered to be intermediaries in between the actual tiller of the soil and the State and that the other provisions pertaining to the constitution of authorities, their powers, jurisdiction and the finality given to the orders passed, or incorporation of a provision in the nature res judicata providing for the binding nature of the orders on the parties to the same and persons claiming under them in any suit or proceeding in a civil Court insofar as such matters are in issue between the parties or persons in such suit or proceeding, are almost identical and similar, except certain differences which, in our view, may not be that much relevant for the issue before us. Even while dealing with this aspect of the matter, the Supreme Court in the decision reported in State of TamilNadu v. Ramalinga Swamigal Madam, AIR 1986 SC 794 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 adjudicata 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 v. Ramalinga Swamigal Madam, AIR 1986 SC 794, R.Manicka Naicker v. E.Elumalai Naicker, 1995 (4) SCC 156 and Sayyed Ali v. A.P.Wakf Board, Hyderabad, 1998(2)SCC 642 and that of a Division Bench of this Court in Ramanujam Kavirayar, T.K v. Sri-La-Sri Sivaprakasa Pandara Sannathi Avargal, 1998 (2) L.W.513 and of a learned Single Judge of this Court in Samsuddin Rowther and another 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." (emphasis added)
11. A mere perusal of the said judgment would clearly and categorically highlight that the civil Court could even nullify the decision of the authorities contemplated under the Tamil Nadu Act 26 of 1963 and the observation made relating to Act 30 of 1963 is applied to the Tamil Nadu Act 26 of 1963.
12. The learned Counsel for the appellant would draw the attention of this Court to the deposition of P.W.3, Govindan, the person whose name is referred to in Ex.B.2 and contend that the said witness before the Settlement Officer having candidly admitted that the suit property did not belong to the Devasdhanam, had a volte face and turned turtle and took a different plea before the civil Court while deposing as P.W.3.
13. In this connection, I would like to highlight the law point in this regard. It is a trite proposition of law that if any, previous admission or commitment has to be proved and pressed into service as against the witness in the witness box, his previous statement should be brought to the knowledge of the said witness and he should be cross-examined on that aspect and then only, his previous statement could be relied on. It is pertinent and significant to note that his previous statement before the Tahsildhar is not available. However, the Tahsildhar in Ex.B.2 would simply refer to such admission of Govindan. P.W.3 would clarify that before the Tahsildhar, he simply stated that for the properties, the defendant was possessing other than the suit property herein, he expressed his stand. But, he never stated no objection for change of patta in the name of the defendant's propositus relating to the suit property. In view of the decision of the Honourable Full Bench of this Court, what had happened before the Tahshildar and the order passed by him would not in any way bind the Civil Court. The civil Court is having independent jurisdiction to look into the matter and analyse the facts and figures and arrive at its own conclusion.
14. This is a suit for title and civil rights of parties are involved. In such case, mere observation made by the Tahsildar in settlement proceedings as though PW3, the clerk of the plaintiff gave confession, cannot be taken to be conclusive and the rights of the rival parties should not be adjudicated based on any admission or confession allegedly given by the clerk of a contesting party and if that held to be so, it would tantamount to ousting the civil Court's jurisdiction itself.
15. The perusal of the judgment of the Full Bench would leave no doubt in the mind of the Court that civil Court could nullify the order of the settlement Officer passed under special enactment, if there are pre-existing rights in favour of the parties. Hence, ignoring all the developments which emerged subsequent to Ex.B.2 dated 30.10.1973, the civil Court should look for some evidence anterior to it. The only evidence available is the Adangal extract of the Fasli year 1365 which refers to the year Calendar year 1955 (Christian era). It is clear that Paimash No.61 measuring an extent of 1.24 acres of land stood in the name of the plaintiff.
16. The core question arises was to whether that Paimash No.61 could be co-related to the suit property, in other words, whether Paimash No.61 could be co-related to S.No.333/9; for which the learned Counsel for plaintiff would rely on Ex.A.15, the Survey Land Register which was prepared on 10.04.1969. The said document would show that S.No.333/9 is co-related to the suit property. The said document would demonstrate that the current survey No.333/9 is correlated to Paimash No.52PT and Paimash No. 61. It is therefore clear that Paimash No.61 could be correlated to part of S.No.333/9. The Paimash No.52 PT and Paimash No.61 both are correlated to S.No.333/9, whereas Paimash 61 stood in the name of Devasthanam in the year 1955. It is clear that the name of the defendant or his predecessors in title is not found mentioned therein. Hence, in this view of the matter, the trial Court was not justified in arriving at the conclusion that there were no correlation between Paimash No.61 and Survey No.333/9. These records would show that even in the year 1955, the suit property stood in the name of the plaintiff and not in the name of the defendant. The learned counsel for the second appellant would canvass his point to the effect that the defendant actually was in possession and enjoyment, but the plaintiff had not taken any steps ever since 1973, so to say after Ex.B.2, till the filing of the suit in the year 1981 and that would show that the preponderance of probabilities are in favour of the plaintiff. By way of torpedoing such an argument put forth by the learned Counsel for the second appellant, the learned Counsel for the respondent would refer to Ex.A.8, the Register maintained by the plaintiff which would show that Devasdanam has been maintaining the said record relating to the lands which are under their control and possession.
17. The learned counsel for the second appellant would point out that under Serial No.7, the Item No.9, referring to Survey Number, is found tampered by correcting as No.333/9, in the place of S.No.338/9 so as to suit the convenience of the plaintiff as an afterthought. But such an argument fails to carry conviction with this Court for the reason that the extent do tally with Ex.A.14. Furthermore, in the same Register, a few pages later, without any correction, the same Survey Number is found mentioned for the year 1973. Hence, I do not think that the plaintiff had fabricated or forged such entries.
18. The learned Counsel for the second appellant would submit that the present suit is nothing but a dubious artifact of the said Kasi and other officials so as to grab the land which has been in the possession and enjoyment of the defendant all along. Such pleas are all matters of oral evidence and relating to the facts, the first appellate Court is the final Court of facts, which arrived at the conclusion that the cause of action for filing the suit, was genuine and based on that, it reversed the judgment and decree of trial Court and decreed the original suit.
19. It is pertinent to note that the first appellate Court while passing its judgment, the cited Full Bench decision of this Court had not emerged and hence, he had no opportunity to refer to that judgment. However, he analysed the facts and arrived at the correct ultimate conclusion. Hence, in view of the present analysis undertaken supra, I am of the considered opinion that no interference with the judgment of the first appellate Court which happened to be the final Court of facts, is warranted and in this view of the matter, this second appeal is dismissed, confirming the judgment and decree dated 30.11.1994 in A.S.No.36 of 1993 on the file of the District Judge, Ramanathapuram. However, there is no order as to costs in the facts and circumstances of this case.
1.The District Judge, Ramanathapuram.
2.The District Munsif, Ramanathapuram.
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