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CASE NO.: Appeal (civil)  452 of 2002

PETITIONER: Balasubramanian & Ors.

RESPONDENT: Ramaiah Thondaman

DATE OF JUDGMENT: 14/12/2007

BENCH: Dr. Arijit Pasayat & P. Sathasivam

JUDGMENT: JUDGMENT

P. Sathasivam, J.

1)      The Legal Representatives of the deceased defendant  being aggrieved by the judgment and order dated 22.03.2001  passed by the High Court of Judicature at Madras in Second  Appeal No. 45 of 1985 allowing the same filed by the  respondent-herein have preferred the above appeal.  2)      Brief facts of the case are as follows: The respondent herein/plaintiff filed a suit for declaration of  his title and for injunction restraining the defendant from  interfering with his possession and enjoyment of the suit  property or in the alternative for possession of the suit  property.  According to the plaintiff, the suit property belonged  absolutely to Ramasamy Konar and his daughter Nachammai.   The patta was in their names and they were in enjoyment of  the same.  The plaintiff purchased the suit property from the  said Ramasami Konar and his daughter for Rs.12,300/- on  11.09.1978.  From the date of purchase, the plaintiff was in  possession.  The defendant\022s husband purchased some of the  property from the said Ramasami Konar.  Since the defendant  with their followers caused disturbance to the plaintiff in the  matter of enjoyment of the suit property, the plaintiff filed the  suit.  3)      The case of the defendant as stated in the written  statement was that the settlement patta had been wrongly  issued for the suit lands to Ramasami Konar and Nachammai  without proper enquiry.  The grant of patta in favour of them  cannot confer any title to the suit property as the same is not  a document of title.  The plaintiff is debarred in claiming title  to the suit property by virtue of the patta in favour his  vendors.  The sale in favour of the plaintiff was brought about  by fraud, misrepresentation and by undue influence.  In any  event, Ramasami Konar and his daughter had no right and  title to the suit property.  When the defendant\022s husband  Chelliah Pillai came to know about the wrong issuance of  patta for the suit property in favour of Ramasami Konar and  his daughter, he filed an application before the settlement  authorities for transfer of patta for the property in his favour.   The said Ramasami Konar appeared before the Assistant  Settlement Officer and conceded that he and his daughter  Nachammai had no title or possession of the suit property and  the patta for the suit property was wrongly granted to him.  He  consented for the transfer of registry for the suit property.  The  defendant and her predecessors in title have and had been in  possession of the suit properties for more than the statutory  period adversely openly and uninterruptedly.  The defendant  and their children have acquired title to the suit properties by

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adverse possession.  The village karnam is the brother of the  plaintiff.  Hence with the assistance of his brother, the plaintiff  had brought the sale deed and filed the suit.  He denied the  claim of the plaintiff with regard to possession.  4)      The trial Court decreed the suit on 15.10.1982.   Aggrieved by the same, the defendant filed appeal in A.S. No.  146 of 1982 before the lower Appellate Court.  By judgment  dated 05.08.1983 on consideration of the oral and  documentary evidence, the Appellate Court  allowed the appeal  and set aside the judgment and decree of the trial Court and  dismissed the suit.  Questioning the same, the plaintiff filed a  Second Appeal No. 45 of 1985 before the High Court.  The  High Court accepted the case of the plaintiff, set aside the  judgment of the lower Appellate Court and allowed the second  appeal.  In the meanwhile, the defendant passed away and his  LRs filed the above civil appeal before this Court.  The only  respondent though duly served notice from this Court has not  chosen to contest the appeal.   5)      We heard Mr. B. Sreedhar, learned counsel appearing for  the appellants and perused the relevant materials and  annexures filed along with this appeal.  6)      The points for consideration in this appeal are:- a)      Whether the High Court was justified in upsetting the  factual findings arrived at by the lower Appellate Court?  b)      Whether the plaintiff has established his case for grant of  decree as claimed? 7)      In support of his case, the plaintiff has pressed into  service Ex. A-1 sale deed dated 11.09.1978 to the effect that  he purchased the suit property from Ramasami Konar and  Nachammai.  On the other hand, it is the case of the  defendant that her husband alone was in possession of the  suit property for a long time and plaintiff\022s vendors have no  title to the suit property at any point of time.  The plaintiff  apart from examining himself as PW 1 also examined One  Velusami as PW 2 who is an attestor of Ex. A-1 Sale deed.   Apart from these two persons, one Veerappa Pillai has been  examined as PW 3.  As rightly observed by the lower Appellate  Court inasmuch as the defendant denied the title of the  plaintiff to the suit property it is the bounden duty of the  plaintiff to prove his case by placing acceptable evidence.   Admittedly, the plaintiff has not examined his vendors to show  how they got title to the property sold under Ex. A-1.  On the  other hand, the defendant by placing notice Ex. B-19 issued  by vendors of the plaintiffs i.e. Ramasami Konar and  Nachammai contended that the suit property was in  possession of the defendant and not with the vendors of the  plaintiff.  The lower Appellate Court on perusal of Ex. B-9  came to the conclusion that the suit property was enjoyed by  the defendant and her husband through out by paying kisht to  the same.  It was also highlighted before the courts below that  patta was wrongly given to Ramasami  Konar/Nachammai/vendors of the plaintiff.  This material  aspect was stated before the Assistant Settlement Officer and  in fact they informed the said officer that they had no  objection for change of patta in the name of the defendant\022s  husband.  In fact in Ex.B-9 the defendant has admitted that  he was not aware of the grant of patta by the Settlement  Officer.  The evidence further show that the said Ramasami  Konar and his daughter never executed any sale deed in  favour of the plaintiff and the same was obtained on account  of old age of Ramasami Konar.  It was also highlighted that the  said Nachammai was also not well versed with the  transactions of this nature.  It is not clear when the vendors of  the plaintiff mentioned several material aspects in Ex. B-19,  the plaintiff had not taken any action and not even denied the

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same by sending reply.  In those circumstances, based on the  relevant and acceptable materials, the lower Appellate Court  arrived at a conclusion that the sale deed Ex. A-1 was  obtained by fraud, undue influence and mis-representation.  8)      In the earlier paragraphs, we have already stated that the  plaintiff\022s vendors were not in possession of title deed to the  suit property except adangal extracts and patta in the name of  Ramasami Konar.  No doubt he also filed proceedings of the  Assistant Settlement Officer dated 24.02.1969 as Ex. A-7  which shows that rough patta had been issued in favour of  Ramasami Konar and Nachammai.  In this aspect, it is  relevant to refer to the factual discussion by the lower  Appellate Court.  In the proceedings for a grant of Ryotwari  patta, the Settlement Officer had issued a notification calling  for objections from the villagers.  As rightly pointed out by  learned counsel for the appellants, the name of the  defendant\022s husband found in Form 5.  It is brought to our  notice that in the said proceedings, Settlement Officer  conducted suo motu enquiry in respect of 370 cases by  verifying the revenue records and prepared Form 5 statement  which refers the name of the defendant\022s husband.  This  factual information strengthen the case of the defendant that  her husband got title to the suit property.  Based on the  various material/information a petition was filed (Ex. B-3) on  29.04.1969 before the Assistant Settlement Officer for  rectification of the mistake in grant of patta in favour of the  plaintiff\022s vendors.  Only in this context, Ramasami Konar  appeared in person and informed the officer that he has no  objection to change the patta in respect of the suit property in  favour of the defendant\022s husband.  Even otherwise, the grant  of patta cannot be equated to that of a document of title.  At  the most the patta proceedings and the ultimate order by the  competent authority granting patta may be used as a piece of  evidence to show that the subject-matter property is with the  grantee.  Considering all these material aspects particularly  the action of the plaintiff\022s vendors in informing the Assistant  Settlement Officer about the wrong decision in granting patta  in their favour and considering the oral and documentary  evidence with regard to the same, the lower Appellate Court  rightly concluded that the Assistant Settlement Officer has  passed an erroneous order which could not confer any right or  title to the plaintiff\022s vendors i.e. said Ramasami Konar and  Nachammai.  9)      The stand of the defendant that since at the relevant time  plaintiff\022s brother was a village karnam, the plaintiff got the  sale deed by utilizing his brother\022s service as well as taking  advantage of old age of plaintiff\022s cannot be ruled out.  All  these factual aspects were duly considered by the lower  Appellate Court which is a final Court of appeal.  While such is  the position, the High Court placing heavy reliance on  Ryotwari patta alone interfered with the well-considered  judgment of the lower Appellate Court.  We are satisfied that  all the details as adverted to by the lower Appellate Court have  not been considered by the High Court and committed an  error in setting aside the judgment merely on the basis of  Ryotwari patta when the same was proved to be obtained by  mistake by the authority concerned.  In fact, the High Court  did not consider Ex. B-19 notice sent by the vendors to  plaintiff wherein they admitted in categorical terms that patta  was wrongly granted to them.  In such circumstances, the  High Court could not have allowed the second appeal based  only on patta proceedings which were found to be wrongly  obtained.   10)     In the light of the above conclusion, we set aside the  judgment and decree of the High Court dated 22.03.2001

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made in Second Appeal No. 45 of 1985 and confirm the  judgment and decree of the lower Appellate Court dated  05.08.1983 passed in Appeal Suit No. 146 of 1982.  The civil  appeal is allowed.  No costs.