P.Kumar v. The State of Tamilnadu & Ors.

paying land charges.15.It is also the case of the plaintiff that since the saidMr.S.Vijayaranga Mudaliar was granted patta even in 1940 to a ryotland, the same has been classified as ryoti land and that the suitproperty could never form part of the communal land of achuvanerior its tank bund. Further, the extent of achuvaneri as per therecords is only 15 acres. The suit property lies on the east ofthe tank bund separated from the tank bed by the tank bund. Theextent of the tank cannot be increased without proper notice orenquiry and at no point of time, the suit property was a tank oreri or a part of it.16.It is the case of the plaintiff that in the year 1982,the Forest Department attempted to trespass into the suit propertyfor the purpose of setting up a plant nursery in the suitproperty. The plaintiff objected and obtained stay order from theState Government against trespass. The Forest Department withdrewand refrained from doing further work. The plaintiff also made anapplication for grant of patta in his favour. The plaintiff isentitled to the grant of patta. Further, the plaintiff is entitledto the suit property by virtue of purchase. The plaintiff and hisvendor were never evicted from the suit property at any point oftime from 1940 onwards and the plaintiff prescribed his title byadverse possession also.17.In 1984, the first defendant announced that a new busstand would be located at achuvaneri and the same was to beconstructed by the second defendant and handed over to the thirddefendant . It is the case of the plaintiff that the firstdefendant appeared to have changed the classification of the suitproperty and included it in the extent of achuvaneri. According tothe plaintiff, originally, the eri is 15 acres in extent and thisextent could never be arbitrarily extended or increased to includeryoti lands without notice or enquiry. The first defendantappeared to have claimed that the suit property is a communal landand hence, ryotwari patta could not be granted either to thevendor of the plaintiff or to the plaintiff. The classificationand assertion of the first defendant that the suit property formedpart of the tank is fallacious and unsustainable in law. No noticewas given either to the plaintiff or to his vendor. Therefore, itis necessary that the classification of the suit property ascommunal land has to be declared as null and void. Further, thesuit property has to be demarcated and boundaries have to be fixedaccording to the recitals of boundaries contained in the saledeed. The suit property cannot be annexed with achuvaneri, whichis entirely different in character, away and distinct from it. Itis the further case of the plaintiff that the pre-existing rightof the plaintiff and his vendor cannot be ignored and that on30.9.1992, the Director of Settlement rejected the petition forpatta as belated and for the reason that the proceedings are https://hcservices.ecourts.gov.in/hcservices/ pending before the High Court.18.The plaintiff filed OS.No.34 of 1985 on the file of theDistrict Munsif Court, Salem for declaration and injunction. InWP.No.8750 of 1984, the High Court was pleased to pass an order on24.2.1994 that the dispute regarding the grant of patta can bedecided in the Civil Court. As the stay was granted in 1984 andmade absolute in 1987, an order of status quo was granted forthree months from 24.2.1994. WP.No.1162 of 1992 was disposed of bythe High Court on 31.1.1992 wherein the defendants were directednot to evict the plaintiff except under due process of law.19.The further case of the plaintiff is that in 1992, theofficials of the second and third defendants attempted to trespassinto the suit property in defiance of the stay orders, destroyedthe sheds, fences, etc and the plaintiff lodged a complaint withthe local police. The defendants, their men and servants have beenthreatening forcible dispossession under the untenable claim thatthe suit property formed part of achuvaneri.20.It is the specific case of the plaintiff that thefencing put up by the defendants 2 and 3 is only after excludingthe suit property and therefore, the possession of the suitproperty was not taken over by the Government. It is his furthercase that the defendants, taking advantage of the Chief Minister'sprogramme for inaugurating the bus stand, destroyed the peetam andsheds and withdrew after the programme was over. Since thedefendants are proclaiming that they would put up construction inthe suit property, the comprehensive suit has been filed for thefollowing reliefs:'i.Declaring the title of the plaintiff to the suitproperty;ii.Grant of permanent injunction restraining thedefendants, their men, servants from changing thecharacter of the suit property by putting up foundationand making permanent construction;iii.Declaring that the classification of the suitproperty as communal property is null and void; andiv.Demarcating the suit property as per therecitals of boundary contained in the sale deed dated29.9.1952.'21.The State of Tamilnadu represented by the DistrictCollector – the first defendant contested the suit by filing awritten statement inter alia contending as follows :'i.It is false to state that patta was granted tothe said Mr.S.Vijayaranga Mudaliar in patta NO.200 andthat the same was granted in 1940 itself. It is false tostate that the said Mr.S.Vijayaranga Mudaliar was in https://hcservices.ecourts.gov.in/hcservices/ possession of the suit property and paying land tax tothe estate land holder. Under Section 3 of the Act, theentire estate including all non-ryot and poramboke landswere vested with the Government free of allencumbrances. The suit property is also vested with theGovernment and at no point of time, either the saidMr.S.Vijayaranga Mudaliar or the plaintiff was inpossession of the property;ii.The said Mr.S.Vijayaranga Mudalir has no rightto enter into any sale agreement in respect of the suitproperty either with the plaintiff or with anybody. Thealleged sale is in no way binding on the Government, asthe Government is the lawful owner of the suit property.It is false to state that on the date of sale, theplaintiff was put in possession of the suit property. Itis also false to state that the plaintiff improved thesuit property by way of construction of open water tankand also put up 'Vel' for offering poojas. It is notcorrect to state that the plaintiff was paying land taxto the Government;iii.The further case of the first defendant isthat the suit property formed part of achuvaneri and thetotal extent of achuvaneri is 24.62 acres. It is alsofalse to state that the extent of achuvaneri is only 15acres and that the suit property is a separate propertyfrom the tank bund. It is not correct to state that theextent of achuvaneri was increased without proper noticeor enquiry and that right from the beginning, the totalextent of achuvaneri is 24.62 acres bearing S.No.163;iv.It is also not correct to state that theplaintiff has obtained stay orders against forestofficials. It is also false to state that the plaintiffand his vendor were never evicted from the suitproperty. On the other hand, except the Government, noindividual was in possession of the suit property andtill this time, the possession is with the Government.It is also correct to state that the plaintiff has gottitle by adverse possession as alleged by him. The claimof the plaintiff for issuance of patta was rejected inG.O.No.502 Commercial Taxes and Religious EndowmentsDepartment dated 9.5.1984;v.Against that Government Order, the plaintifffiled WP. No.8750 of 1984 before this Court and the samewas dismissed. The Government handed over the entireextent of land in S.No.163 to Salem Corporation inG.O.No.255 dated 19.2.1984 and from that date, the SalemCorporation is maintaining the suit property and is inpossession of the same. Further, the plaintiff filedWP.No.1162 of 1992 and the same was dismissed on31.1.1992. Again, the plaintiff filed WP.NO.3588 of 1992and the same was dismissed on 12.3.1992. The plaintiff https://hcservices.ecourts.gov.in/hcservices/ also filed two other writ petitions in WP.Nos.3932 and5642 of 1992. It is seen from papers that they weredismissed as withdrawn;vi. The Civil Court has no jurisdiction to decidethe validity of the title in the non-ryotwari lands. Thesuit property has already been classified as non-ryotwari land and on that ground alone, the suit is notmaintainable. The Commissioner of Land Administrationrejected the claim of the plaintiff finding that theplaintiff made misrepresentations to the Authorities andalso that the suit property belongs to the Government.The classification of the suit property in S.No.163 inPallapatti village was decided in survey and settlementas eri poramboke in the year 1962 itself;vii.It is also false to state that the Governmenthas annexed the suit property with achvaneri and thatthe suit property is entirely different in nature orcharacter as alleged in the plaint. In nature andcharacter from 1962, the land bearing S.F.No.163 isclassified as eri poramboke and the total extent ofachuvana eri is 24.62 acres including the suit propertyof an extent of 4.91 acres. It is the further contentionof the first defendant that the plaintiff is notentitled to file vexatious suit with false allegationsand by suppressing real facts. There is no cause ofaction for filing the suit. The plaintiff is notentitled to any declaration. On the aforesaid pleadings,the first defendant sought for dismissal of the suit.22.The second defendant – Transport Corporation filed aseparate written statement inter alia contending as follows :'The allegation that the plaintiff is the owner ofthe ryoti lands described in the plaint schedule is nottrue. It is false to state that the plaintiff wasgranted patta by the said Mr.S.Vijayaranga Mudaliar. Theplaintiff has to establish his title to the suitproperty. WP.No.1162 of 1992 was dismissed as early as31.1.1992 and the second defendant was not issued withany notice in the said proceedings. The possession ofthe suit property is with the Salem Municipality – thethird defendant. The allegation that the seconddefendant attempted to trespass into the suit propertyis false. The second defendant is not a necessary partyto the suit. The suit is misconceived and liable to bedismissed in limine. There is no cause of action to filethe suit. The suit has not been valued properly for thepurpose of court fees and jurisdiction. The descriptionof the property furnished in the plaint is defective andmisleading. On the above pleadings, the second defendantsought for dismissal of the suit.' https://hcservices.ecourts.gov.in/hcservices/

23.The third defendant – Salem Municipal Corporation fileda separate written statement contending inter alia as follows :'i.The Civil Court has no jurisdiction toentertain the suit, since the suit property is part ofS.F.No.163 of Pallapatti Vilalge comprised of 24.62acres, which was classified as chinna eri (a) achvaneriand it is a non ryotwari land. The Supreme Court heldthat under the Act, the Civil Court has jurisdictiononly to try the suits in respect of ryotwari lands andhence, the suit has to be dismissed in limine. ii.The plaintiff made all efforts to get patta inthe suit property on the basis of the sale deed, whichitself is void and the vendor himself has no title andright to make conveyance. Even, the then Board ofRevenue, by its order dated 20.7.1953 in BP.999/1953rejected the claim for patta on the main ground that thecharacter of the land is non ryotwari (communal) one.The Government also rejected all the claims made by theplaintiff. The orders in G.O.RT.No.838 dated 11.5.1971and G.O.No.502 CT & RE Department dated 9.5.1984 havebecome final and in spite of the same, the plaintiff,suppressing the facts, has filed suit after suit againstthe third defendant and others only to cause harassmentand wrongful loss. The plaintiff cannot get any titleover the suit property by virtue of the sale deed in hisfavour, since the vendor has no right to execute anysale deed of the suit property, over which he himselfhas no right or possession. The said Mr.S.VijayarangaMudaliar himself was not in possession of the suitproperty at any point of time. The suit property is partof achuvaneri and comprised of 24.62 acres;iii.It is false to state that the extent of eri isincreased without notice. It is meaningless to statethat the vendor was never evicted by the Government,since there is no necessity for that. The Governmenthanded over possession of the entire land in S.No.163 tothe then Salem Municipality by an order dated 29.2.1984in G.O.NO.255 and since then, the Salem Municipality wasmaintaining the entire property within their possession.The Government, by an order dated 29.2.1984, inG.O.No.255, passed an order after careful considerationdirecting the Municipal Corporation and the TransportCorporation to go ahead with the proposed work ofconstructing the new bus stand in S.No.163. The DistrictCollector was ordered to hand over the entire landcovered by S.No.163 for the Transport Corporation, whichhaving proceeded with the work as indicated by theGovernment and later handed over the entire land coveredby S.NO.163 to the Municipal Corporation to construct a https://hcservices.ecourts.gov.in/hcservices/ new bus stand;iv.The plaintiff, having come to know of thesethings, filed WP.No.8750 of 1984 seeking to quashG.O.No.502 dated 9.5.1984. Since, this Court felt thatit would be inappropriate for this Court to adjudicateupon the nature of the land and to know the nature ofthe land, directed the plaintiff to go to the CivilCourt for redress. This Court ordered status quo for aperiod of three months from 24.2.1994. The plaintiff isnot entitled to any demarcation of the suit property.The plaintiff is not entitled to get injunction. Theplaintiff never put up any fence as alleged. Theplaintiff has no cause of action for filing the suit. Onthe above pleadings, the third defendant sought fordismissal of the suit.'24.Since the third suit, namely OS.No.345 of 1996 is thecomprehensive suit, the pleadings in that suit have been set outabove. It is pertinent to note that the pleadings in the other twosuits are also, in substance, the same.25.The Trial Court framed the following issues :In OS.No.34 of 1985 :"i.Whether the suit is not valued properly forthe purpose of payment of court fees and jurisdiction?ii. Whether the Hon'ble Court has no pecuniaryjurisdiction to try the suit?iii.Whether the suit is barred under Tamilnadu Act26 of 1948 ?iv.Whether the suit is barred by limitation underSection 13 of the Tamilnadu Survey and Boundaries Act ?v.Whether the suit lands fall within the scopeof Section 11 of the Tamilnadu Act 26 of 1948 entitlingthe plaintiff patta under the Tamilnadu Act 26 of 1948 ?vi.Whether the plaintiff perfected his title byadverse possession ?vii.Whether the plaintiff is in continuouspossession of the suit lands for the past 50 years ?viii.Whether the plaintiff is in actual possessionof the suit lands ? ix.Whether the plaintiff is entitled to therelief of declaration and permanent injunction as prayedfor in the suit ? andx.To what relief the plaintiff is entitled?"OS.No.2066 of 1996 : "i.Whether the plaintiff is entitled to therelief of declaration and injunction ? And https://hcservices.ecourts.gov.in/hcservices/ ii.To what relief the plaintiff is entitled ?"OS.No.345 of 1996 :"i.Whether the jurisdiction of this Court isbarred by statute?ii.Whether the plaintiff or Mr.S.VijayarangaMudaliar or any one was in possession of the suitproperty at the time of abolition of estate under EstateAbolition Act ?iii.Whether the plaintiff is entitled to the suitrelief of declaration and consequential injunction ?iv.If not to what other relief, the plaintiff isentitled ?v.Whether the description of property is true ?"26.In view of the joint memo filed, evidence was recordedin OS. NO.342 of 1996, which was treated to be the evidence in theother two suits viz OS.Nos.34 of 1985 and 2066 of 1996. On behalfof the plaintiff, the plaintiff examined himself as PW1, oneMr.Krishna Gounder as PW2 and one Mr.Kumar – the son of theplaintiff as PW3. EXA1 to ExA33 were marked on the side of theplaintiff. On the side of the defendants, the first defendantexamined three witnesses on their behalf, which were adopted bythe other defendants. As such, one Mr.Ponnusamy, Tahsildar wasexamined as DW1, one Mr.Jayavel, Village Administrative Officer asDW2 and one Mr.Sundaram, Taluk Supply Officer as DW3. ExB1 toExB71 were marked on the side of the defendants. TheCommissioner's report and plans, based on his visits on 24.3.1999,2.4.1999, 10.4.1999, 27.4.1999 and 2.5.1999, were marked as ExC1to ExC3 respectively.27.On a consideration of the oral and documentary evidence,the Trial Court decreed the suits. Being aggrieved by that, asaforesaid, four appeals were filed before the First AdditionalDistrict Court, Salem, which reversed the common judgment anddecrees of the Trial Court and allowed the appeals. Against thecommon judgment and decrees of the Lower Appellate Court, theabove second appeals have been filed.28.On the aforesaid substantial questions of law, therespective counsel were heard.29.Mr.T.Mani, learned Senior Counsel for the appellantsubmitted that the property was purchased by the plaintiff underExA1 registered sale deed dated 29.9.1952 from the Mr.VijayarangaMudaliar – the ryot in possession of the said land under ExA2series under zamin patta NO.200 issued by the Zamindarini forfaslis 1350, 1352 and 1356. According to the learned SeniorCounsel, the land was cultivated by the vendor of the plaintiffand ExA3 – chitta extract and ExA4 settlement register extract https://hcservices.ecourts.gov.in/hcservices/ also confirmed his possession. The vendor conveyed the same to theplaintiff for proper consideration and put him in possession andthe land has been in possession through out and enjoyment of theplaintiff and his vendor.30.Mr.T.R.Mani, learned Senior Counsel for the appellantsubmitted that under Notification dated 19.12.1950, Pallapattivillage was taken over under the Tamilnadu Act 26 of 1948 on12.1.1951. ExB9 – Tahsildar's report to the Collector stated thatthe estates in the taluk were taken possession on that date. Afterabolition of the estate, the possession of the plaintiff or hisvendor was never attempted to be disturbed and in fact, thepossession of the ryots is protected under Sections 3(2)(b) and 64of the Act. Any claim to the contrary is illegal and unjustifiedand contrary to the specific provisions of the Act. His vendor'sclaim for patta was said to have been rejected on 20.7.1953.However, no document was produced regarding the refusal. The zaminrecords have not been produced either at the time of trial or whenthe additional documents were filed by the State in the LowerAppellate Court.31. Mr.T.R.Mani, learned Senior Counsel for the appellantfurther submitted that without any notice of hearing, the suitlands would appear to have been erroneously classified as eriporamboke as part of achuvaneri in the resettlement afterabolition of the estate. On the contrary, the Commissioner'sreport and plans would show that achuvaneri is to the west of thesuit land and the bund of the eri separated the suit land. Fromthe documents marked in this case, it is seen that achuvaneri wasto the extent of 15 acres only and in the resettlement introducedin 1959, it has been measured as of an extent of 24.62 acresinclusive of the suit land and chinna eri nearby compendiuosly innew S.NO.163. It is this erroneous measurement which has createdall the trouble.32.Mr.T.R.Mani, learned Senior Counsel for the appellantfurther submitted that the first suit was filed on 7.1.1985against the State, the District Collector and Anna TransportCorporation seeking declaration of title and injunction to protectthe possession of the plaintiff because of the threat topossession made by the defendants 1 and 2 in July, 1984. Accordingto the learned Senior Counsel, this suit was filed after noticeunder ExA7 dated 16.8.1984 and in spite of due service under ExA8– acknowledgement, there was no reply thereto. The second suit wasfiled on 22.12.1989 against the Salem Municipal Corporation fordeclaration of title and for injunction because of the threat topossession made by the defendant therein on 18.12.1989 on foot ofExB1 – G.O.Mis.No.1340 Transport dated 27.10.1989, by which, theconstruction and maintenance of the Municipal Bus Stand in thedefunct 'achuvaneri' was restored to the defendant Corporation inan extent of 19.62 acres earmarked for the construction of the bus https://hcservices.ecourts.gov.in/hcservices/ stand. The third suit came to be filed on 27.4.1994 pursuant tothe direction of this Court under ExA9 dated 24.2.1994 inWP.No.8750 of 1984 whereby the plaintiff was directed to approachthe competent Civil Court, which has jurisdiction to adjudicate onthe real nature of the land within three months, during whichperiod, the plaintiff's possession was protected and in thiscomprehensive suit, the State Transport Corporation and theMunicipal Corporation are party defendants.33.Mr.T.R.Mani, learned Senior Counsel for the appellantfurther submitted that by consent, all the three suits were triedtogether. The Trial Court framed necessary and proper issues ineach of the three suits. After an elaborate trial and after properconsideration of the evidence on record, the Trial Court upheldthe plaintiff's title and possession of the suit property on thefoot of ExA2 – zamin patta series, ExA3 chitta extract, ExA4settlement register extract and ExA1 – sale deed in his favour,holding that the plaintiff's patta land has been wrongly includedin the excess extent measured as achuvaneri in S.No.163.Accordingly, all the three suits were decreed.34.Mr.T.R.Mani, learned Senior Counsel for the appellantfurther submitted that the Lower Appellate Court, without properconsideration of the nature and scope of the three suits and thequestions arising for consideration in the appeals before it,framed several points for consideration includingmultifariousness, abuse of Court process, fraud on Court,maintainability of the suits and bar of limitation in the absenceof any such plea raised in defence in the pleadings nor at thetrial and not covered by the issues framed in the suits. LearnedSenior Counsel further submitted that the Lower Appellate Courtadmitted all the documents produced by the State as additionalevidence in the appeals without proof and opportunity to crossexamination and assumed the veracity of the disputed documents,though the records called for, by notice to produce, were burkedby the defendants. Learned Senior Counsel further submitted thatthe Lower Appellate Court further assumed the correctness of theclassification of the suit land as eri poramboke in favour of theappellants before it, which is a vital question to be decided inthe appeals and in that view, negatived the plaintiff's claim fortitle to the suit lands and dismissed all the suits on merits andon the basis of non maintainability, abuse, fraud and bar oflimitation as well not raised before and considered by the TrialCourt.35.Mr.T.R.Mani, learned Senior Counsel for the appellantsubmitted that it is well settled and is, by no means, disputedthat zamin patta granted by the landholder prior to the AbolitionAct is not merely an evidence of title, but is the document oftitle itself and is conclusive proof of possession of the ryot ofhis holding. In fact, the Lower Appellate Court itself referred to https://hcservices.ecourts.gov.in/hcservices/ the rulings of the Privy Council and this Court in this behalf.Learned Senior Counsel submitted that zamin patta No.200 issued bythe Zamindarini to the plaintiff's vendor – the saidMr.S.Vijayaranga Mudaliar for faslis 1350, 1352 and 1356 marked asExA2 series conclusively established the plaintiff's title to andpossession of the suit land. The zamin patta specifically referredto the prior possession and enjoyment of the land in question bythe said Mr.S.Vijayaranga Mudaliar as ryot and specified the kistand cess payable therefor. The land in question was referred to aschinna eri karai oram tharisu punjai and karai mettu tharisupunjai. Learned Senior Counsel submitted that it is clear that thesuit land was ryoti land and was not eri poramboke or any partthereof. ExA3 – chitta extract for fasli 1359 (1948-1949) showedthat the said Mr.S.Vijayaranga Mudaliar was in possession of theland and the property was described in similar terms as chinna erikarai oram tharisu punjai and karai mettu tharisu punjai. UnderExA4 settlement register extract for fasli 1359, the saidMr.S.Vijayaranga Mudaliar was shown as the pattadar of the land,which was described as punjai. All the zamin records conclusivelyestablished that the suit land was ryoti land and was inpossession and enjoyment of the plaintiff's vendor before theestate was notified and taken over. The plaintiff purchased theproperty from the said Mr.S.Vijayaranga Mudaliar under ExA1 saledeed dated 29.9.1952 executed pursuant to the sale agreement dated15.3.1950 and the sale deed referred to zamin patta No.200.Therefore, the plaintiff's title is well established and cannot bedoubted or disputed.36.Mr.T.R.Mani, learned Senior Counsel for the appellantsubmitted that ExA23 – land register extract dated 21.12.1967 andExB2 – survey land register dated 2.11.1968 clearly showed thatachuvaneri was of an extent of 15 acres only and no explanationwas forthcoming as to how S.NO.163 was measured as of an extent of24.62 acres. Learned Senior Counsel further submitted that infact, ExA26 = ExB71 – the report of the Tahsildar to the Collectordated 14.12.1995 made after examination of the recordsspecifically showed that S.No.163, which corresponded to oldpaimash NO.779 had an extent of 15 acres of achuvaneri and thepresent extent shown as 24.62 acres included the patta land. Theextra land of 9.62 acres included the land covered by zamin pattaNO.200 (suit land) and chinna eri of an extent of 4 acres. ExA23was not disputed and ExB2 and ExB71 were marked on the side of thedefendants themselves and those clinching documents were notconsidered by the Lower Appellate Court.37.Mr.T.R.Mani, learned Senior Counsel for the appellantfurther submitted that however, ExB81 – G.O.Ms.No.2387 Revenuedated 7.5.1973 rejecting the plaintiff's claim for patta wasrelied upon as conclusive, overlooking that the rejection of theplaintiff's claim to patta by the Government was called inquestion in these suits and the Civil Court had to decide the https://hcservices.ecourts.gov.in/hcservices/ matter. In fact, the Lower Appellate Court had correctly statedthe legal position in the earlier portion, but failed to keep thelegal principles in mind in deciding the title of the plaintiff.Learned Senior Counsel further submitted that a perusal of thejudgment of the Lower Appellate Court would show that it assumedthe material issues for decision regarding the title to andpossession of the suit land and the character of the land prior tothe notified date in favour of the defendants and had brushedaside ExA2 series zamin patta, ExA3 – chitta extract and ExA4 –settlement register extract, which conclusively established theplaintiff's title to and possession of the suit land on a totallyerroneous assumption, approach and reasoning.38.Mr.T.R.Mani, learned Senior Counsel for the appellantsubmitted that the land register extract dated 21.12.1967 and thesurvey land register dated 2.11.1968 marked as ExA23 and ExB2showed that achuvaneri is of an extent of 15 acres only and it didnot explain as to how it had measured as of an extent of 24.62acres in the resettlement after the abolition of the estate. As amatter of fact, the correct position was well explained in ExB71 =ExA26 dated 14.2.1995 – the Tahsildar's report to the Collector,made after an analysis of the records, marked as ExA26 and ExB71on both sides. It showed that the excess area of 9.62 acresincluded the land covered by zamin patta NO.200 and four acres ofchinna eri. Those aspects, which clinched the issue, had not beenadverted to and considered by the Lower Appellate Court. Therejection of patta to the plaintiff is erroneous and untenable andthe error has to be rectified by the Civil Court in theseproceedings.39.Mr.T.R.Mani, learned Senior Counsel for the appellantfurther submitted that strangely, the Lower Appellate Courtdeclined to act upon ExA2 to ExA4 – zamin records doubting theirgenuineness without any basis therefor. In fact, at the time oftrial, no such objection was taken. ExA2 series, ExA3 and ExA4were marked without any objection by PW1. There was no crossexamination whatsoever regarding their genuineness. Zamin pattaNo.200 was referred to in the sale deed – ExA1 in favour of theplaintiff and the observation to the contrary by the LowerAppellate Court was incorrect. In fact, the pattas were producedbefore the Estate Manager on 24.6.1974 and marked as ExA3 withoutobjection before him as seen from the endorsement in the documentitself. The claim to patta was negatived solely on the ground thatthe land was part of eri poramboke and not on the ground that thezamin pattas are not genuine.40. Learned Senior Counsel for the appellant submitted thatit would be seen that in ExB63 – G.O.No.502 CT & RE dated9.5.1984, the plaintiff's application for grant of ryotwari pattawas rejected on the sole ground that the land formed part of atank and hence, not ryoti. The grant of patta NO.200 was referred https://hcservices.ecourts.gov.in/hcservices/ to and its genuineness was not questioned in that GovernmentOrder. Further, under ExA33 – the order dated 13.10.1992 passed bythe Commissioner of Land Administration had also accepted theassignment of the land by the Zamindarini, but held the assignmentinvalid as the land was non-ryoti as per the resettlement. Afterthe abolition of the estate, the old zamin records were in thecustody and control of the State and in spite of notices toproduce, the relevant records have been suppressed by theGovernment with ulterior motive and the explanation given that therecords are not available were obviously an attempt to evadeliability and necessary adverse inference was to be drawn againstthe defendants. The same reasoning would apply to ExA3 – chittaextract and ExA4 – settlement register extract for fasli 1359 aswell. The attempt of the Lower Appellate Court to reject the zaminpatta and records as though they were not genuine is erroneous, asthe defendants had no such case at the time of trial or in theprior proceedings.41.Mr.T.R.Mani, learned Senior Counsel for the appellantsubmitted that ExA2 series comprised three genuine pattas issuedin faslis 1350, 1352 and 1356 and the fourth in that series is ahand written copy of the patta issued for fasli 1356. The copynaturally would not contain the signatures of the landholder orthe karnam. It is unfortunate that the Lower Appellate Court,without even looking into this basic fact, had discredited ExA2series pattas on the ground that the signatures therein variedfrom the other signatures of the Zamindarini.42.Mr.T.R.Mani, learned Senior Counsel for the appellantfurther submitted that though several written statements werefiled in the three suits, the plea of questioning the genuinenessof the pattas granted to the said Mr.S.Vijayaranga Mudalir wasraised only in the additional written statement filed by thesecond defendant on 16.10.1995 in OS.NO.34 of 1985. However, inthe subsequent written statement filed by the State on 1.12.1995in the third suit, this plea was not taken, but was advisedlygiven up and naturally, it was not pursued at the time of trial.In fact, ExB63, ExA33 and ExB71 = ExA26 are destructive of such acase.43.Learned Senior Counsel further submitted that in thelight of ExA2 series, ExA3, ExA4 and ExA1, the plaintiff'spossession of the suit land derived from the vendor cannot bedoubted or disputed. However, the Lower Appellate Court reliedupon ExB12 to ExB41 – adangal extracts for 1968 to 1999 to holdthat kist had not been paid for the land in question. The LowerAppellate Court failed to note that the said adangal extractsthemselves would show that S.No.163 was registered as eriporamboke and therefore, kist could not be levied or collected forthe said survey number. Further, ExB29 to Ex41 were after thesuit. https://hcservices.ecourts.gov.in/hcservices/

44.Mr.T.R.Mani, learned Senior Counsel further submittedthat the plaintiff's claim to patta was negatived by ExB81 –G.O.dated 7.5.1973 and ExB63 – G.O. Dated 9.5.1984 and hisapplication for patta outside the Abolition Act was rejected byExA33 – the order of the Commissioner of Land Administration dated13.10.1992 only on the foot of erroneous measurement andclassification and on no other ground. In ExA33 order, the priorbinding order in ExB84 dated 7.9.1988 made by a Division Bench ofthis court was not adverted to. The plaintiff was takingpersistent steps to establish his title to and possession of thesuit property on the ground that registering of the land eriporamboke is erroneous and unsustainable in law and this was alsocriticised by the Lower Appellate Court.45.Learned Senior Counsel for the appellant furthersubmitted that the first suit was filed on 7.1.1985 itself and thesecond suit followed on 12.12.1989 when interference was attemptedby the Municipal Corporation. ExB84 – the order in the writ appealdated 7.9.1988 permitted the plaintiff to work out his remedyavailable under the law and the second suit was filed thereafter.WP.NO.8750 of 1984 was disposed of by this Court by ExA9 – orderdated 24.2.1994, by which, the plaintiff was directed to approachthe Civil Court within three months, granting an interim directionto maintain the status quo till then to protect his longpossession as stated above and the third suit came to be filedaccordingly. ExA9 order points out that the plaintiff had thebenefit of interim orders of injunction since 1984 and themaintenance of the status quo was ordered for three months, withinwhich, he was permitted to file the suit. These directions of thisCourt are binding on the parties thereto and the Lower AppellateCourt as well and the criticism by it regarding the multifariousproceedings is unavailable and unwarranted. Therefore, theplaintiff's possession of the suit property cannot also bedisputed.46.Mr.T.R.Mani, learned Senior Counsel for the appellantsubmitted that under ExB1 – G.O.Ms.No.2387 Revenue dated27.10.1989, the Government authorised construction of themunicipal bus stand in an extent of 19.62 acres and not in theentire extent of 24.62 acres in S.No.163. The Commissioner'sreport and plans - ExC1 to ExC3 established that the plaintiff wasin possession of the suit property and the fact that the bore wellwas sunk by the plaintiff in the suit land in 1982, which wasevidenced by ExA24 – receipt dated 20.6.1982.47.Mr.T.R.Mani, learned Senior Counsel for the appellantsubmitted that the Lower Appellate Court held, in the absence ofany pleas or issues raised in that behalf before the Trial court,that the suits are barred by time and under Order II Rule 3 andOrder IX Rule 9 of the Civil Procedure Code, which provisions have https://hcservices.ecourts.gov.in/hcservices/ no application to the facts of this case and rejecting the suitson the basis thereof and that too without any plea raised in thatbehalf is unsustainable and without any factual or legal basis andhad to be rejected outright. No doubt, it is open to the Court toconsider the bar of limitation though not raised by the oppositeparty, but the solicitous approach made by the Appellate Court inthis behalf is totally devoid of merits. The first suit was filedsoon after ExB63 order and the second and third suits were filedsoon after subsequent Government Orders dealing with the surveynumber by reason of which, the plaintiff's possession wasattempted to be interfered with and that too, pursuant to theorders of this Court, to which, the defendants are parties and theLower Appellate Court is bound by those orders. Further, ExA23 –the land register extract and ExB2 – the survey land register andExA26 = ExB71 – the report of the Tahsildar established that theplaintiff was in possession as owner of the suit land and theexcess measurement of achuvana eri is neither proper nor legal.Therefore, there is no factual or legal basis for sustaining thebar of limitation against the plaintiff.48. Learned Senior Counsel for the appellant furthersubmitted that in fact, the first suit was filed as early asJanuary 1985 and the other two suits were filed as directed bythis Court after hearing the defendants. The plaintiff'sapplication for grant of patta was rejected by ExB63 order dated9.5.1984 on the ground that the land formed part of tank and noton the ground that he was not the owner in possession. The firstsuit came to be filed soon in 1985. The other two suits were filedpursuant to the directions of this Court in ExB84 dated 7.9.1988and ExA9 dated 20.2.1994 in December 1989 and April 1994 forprotection against interference by rason of ExB1 – GovernmentOrder and ExA33 – the order of the Land Commissioner. Therefore,Section 56 of the Act, repealed with effect from 27.12.1958,cannot govern the case on hand and in fact, the very provision canhave no application to the present case. Therefore, there is nofactual or legal basis for rejecting the suits as barred by time.49.Learned Senior Counsel for the appellant finallysubmitted that all the three suits were rightly decreed as prayedfor by the Trial Court. Though an interim order of stay pendingthe appeals was obtained by the Municipal Corporation, theplaintiff's possession was not interfered with pending theappeals. The appellant filed WP.NO.37382 of 2002 against theMunicipal Corporation for Mandamus not to interfere with hispossession and maintenance of status quo was ordered on 9.10.2002.In WA.No.13755 of 2002 filed by the State and the aforesaid writpetition filed by the appellant, a Division Bench of this Court,by an order dated 8.4.2003, directed the learned District Judge todispose of the pending appeals and further directed status quo toremain pending the appeals. Pending the second appeals, this Courtgranted interim injunction in CMP.NO.7572 of 2004 in SA.No.1025 of https://hcservices.ecourts.gov.in/hcservices/ 2004 and the same is in force. Therefore, the plaintiff has beenin continuous and uninterrupted possession of his suit landthroughout as the owner by right of purchase ever since his dateof purchase in 1952 and his vendor was in possession for longearlier. The plaintiff/appellant is entitled to the reliefs soughtfor in the respective suits. Learned Senior Counsel ultimatelysubmitted that the second appeals deserve to be allowed byrestoring the decrees of the Trial Court upholding the title toand possession of the plaintiff/appellant to the suit property andgranting the consequential and ancillary reliefs sought for and byholding that the suits as framed are maintainable and are in time.50.Mr.T.R.Mani, learned Senior Counsel appearing for theappellant, while referring to the recitals contained in ExA1 saledeed submitted that the property in question is not measured as apart of eri, but it has been measured as lying on the east of eriand the patta number is mentioned in the sale deed, which wasomitted to be taken note of by the Lower Appellate Court anderroneously observed that the patta number has not been mentioned.This error on the part of the Lower Appellate Court led the Courtto disbelieve the genuineness of ExA2 series. Learned SeniorCounsel, placing reliance on the expressions, namely 'tharisu andpunja' used in ExA2 to ExA4, submitted that the property inquestion is a cultivable land, but remained uncultivated. LearnedSenior Counsel therefore submitted that the contention of thelearned counsel for the respondents that the suit property is awaste land not fit for cultivation is untenable. Learned SeniorCounsel relied upon ExA3 chitta extract for fasli 1359 to showthat the said Mr.S.Vijayaranga Mudaliar was in possession oftheland in 1948-1949 at the time when the Abolition Act waspassed.51.Learned Senior Counsel for the appellant furthersubmitted that the Lower Appellate Court failed to properlyconsider ExA4 settlement register extract for fasli 1359 whereinthe said Mr.S.Vijayaranga Mudaliar was shown as pattadar and theland has been described as punja land. Learned Senior Counsel, byreferring to ExA24 receipt, submitted that the well, tank, motorpipe, electric poles, sakthivel peetam and the borewell sunk inthe year 1982 are available in the property in question and duringthe pendency of the suits, the Commissioner was appointed by theTrial Court and the Commissioner's report ExC1 and plans ExC2 andExC3 indicated that the well, tank, electric poles, etc wereavailable on ground.52.Learned Senior Counsel for the appellant Mr.T.R.Mani, byreferring to ExB9 report of the Tahsildar dated 13.1.1951,submitted that the Tahsildar had taken possession of the entireestate except Alagapuram estate and further submitted that thepossession taken over by the Tahsildar was only technicalpossession and physical possession was not taken and the https://hcservices.ecourts.gov.in/hcservices/ possession of the appellant's father or his vendor was notdisturbed and therefore, submitted that the contention of thelearned counsel for the respondents that an extent of 4.91 acresof the plaintiff was taken possession is not correct. 53.Mr.T.R.Mani, learned Senior Counsel submitted that inthe written statement filed by the defendants, the rejection ofpatta sought for by the said Mr.S.Vijayaranga Mudaliar has notbeen referred to and to prove that the request for patta wasrejected, the rejection order was not produced either before theTrial Court or before the Lower Appellate Court, even though therespondents filed an application under Order XLI Rule 27 of theCivil Procedure Code to produce additional documents. LearnedSenior Counsel further submitted that had the rejection order beenproduced, then the real reason for rejection would have come tolight and only to suppress the same, the order has not beenproduced before the Court. Learned Senior Counsel furthersubmitted that the reason for rejection of request for grant ofpatta by the said Mr.S.Vijayaranga Mudaliar is not known. LearnedSenior Counsel further submitted that since the suit property is aryoti land under Sections 3(2)(b) and 63 of the Act, possession ofthe ryot cannot be disturbed.54.Mr.T.R.Mani, learned Senior Counsel, by referring toExA23 land register extract and ExB2 survey land register,submitted that these documents show that achuvaneri is of anextent of 15 acres only. Learned Senior Counsel further submittedthat the contention of the learned Additional Advocate Generalthat ExA23 is a fabricated document is untenable, since ExA23formed part of ExB2, which is a document produced by thedefendants themselves. Learned Senior Counsel, by referring toExB2, submitted that ExA23 formed part of ExB2 as per the revenuerecords for the fasli 13 and the extent of achuvaneri is shown as15 acres and after re-survey and re-settlement, the extent isshown as 24.62 acres. Learned Senior Counsel submitted that it hasnot been explained by the defendants as to how the original extentof 15 acres of achuvaneri got enlarged to an extent of 24.62acres.55.Mr.T.R.Mani, learned Senior Counsel submitted that theapplication for patta was rejected on the ground that the landformed part of achuvaneri and hence, the same is a non-ryoti land.Learned Senior Counsel submitted that the observation made by theLower Appellate Court regarding ExA23 is erroneous. The finding ofthe Lower Appellate Court in respect of ExA23 is perverse, as ithad failed to consider the aforesaid aspect, namely that ExA23formed part of ExB2 – a document produced by the defendantsthemselves. Learned Senior Counsel submitted that ExA2 series,ExA3 and ExA4 were marked through the plaintiff without anyobjection by the defendants and there was no cross examination ofPW1 regarding the genuineness of these documents. https://hcservices.ecourts.gov.in/hcservices/

56.Mr.T.R.Mani, learned Senior Counsel further submittedthat there is absolutely no plea raised in the written statementfiled by the defendants regarding these documents and no issue asto the genuineness of ExA2 series was framed by the Trial Court.Learned Senior Counsel further submitted that ExA2 series had beenproduced before the Estate Manager, Salem on 24.6.1974, but thefirst suit was filed only in 1984. But, in spite of the said fact,ExA2 series had been rejected by the Lower Appellate Court as notgenuine without considering the aforesaid fact. Learned SeniorCounsel further pointed out that the Government Authorities,before whom, ExA2 series had been produced, did not dispute thegenuineness of ExA2 series. Learned Senior Counsel submitted thatthe rejection of the request for patta by the plaintiff before theAuthorities was not on the ground that ExA2 series pattas are notgenuine, but on the ground that the character of the land iscommunal and not ryoti.57.In this context, Mr.T.R.Mani, learned Senior Counselreferred to ExB33, which supports the aforesaid contention.According to the learned Senior Counsel, in ExA33, it has beenmentioned that the claim for patta by the vendor of the plaintiffhas already been considered on merits under Section 11 of the Actand rejected by the erstwhile Board of Revenue (SE) in itsNo.BP.999/1953 dated 20.7.1953 on the ground that the originalcharacter of the land is only non-ryoti (communal) and that theassignment by the Zamindarini is legally invalid. Thus, it isclear that even in ExA33, the genuineness of the patta issuedunder ExA2 series issued by the Zamindarini to the saidMr.S.Vijayaranga Mudaliar was not doubted. Therefore, according tothe learned Senior Counsel, the finding of the Lower AppellateCourt on ExA2 series is perverse and unsustainable.58.Learned Senior Counsel further submitted that theplaintiff issued notice to the defendants to produce the originaldocuments of Zamindarini, but the same were not produced on theground that the same are not available. In this context, learnedSenior Counsel referred to ExA26 = ExB71 – the communicationaddressed by the Tahsildar, Salem to the District Collector, Salemwherein the Tahsildar had stated that the old zamin records arenot available in his office and old zamin records are availableonly with the Estate Manager, Salem and the Assistant SettlementOfficer, Dharapuram. Therefore, according to the learned SeniorCounsel, the contention of the defendants that the zamin recordsare not available cannot be countenanced. When the relevantdocuments admitted to have been in existence are not placed beforethe Court by the parties concerned, an adverse inference can bedrawn against that party.59.In support of the said contention, learned SeniorCounsel placed reliance on the decision of the Apex Court in the https://hcservices.ecourts.gov.in/hcservices/ case of Raghavamma Vs. Chenchamma (reported in AIR 1964 SC 136)wherein it has been held as follows :"Now coming to the documentary evidence, as we havealready indicated, all the relevant documents admittedto have been in existence have not been placed beforethe Court and an adverse inference has, therefore, to bedrawn against the appellant."60.Mr.T.R.Mani, learned Senior Counsel also relied upon thedecision in the case of Gopal Krishnan Vs. Mohd.Haji Latif(reported in AIR 1968 SC 1413) wherein it has been laid down thata party in possession of best evidence, which would throw light onthe issue in controversy withholds it, then the Court ought todraw an adverse inference against him notwithstanding that theonus of proof does not lie on him. It has been further held thatthe party cannot rely on abstract doctrine of onus of proof or onthe fact that he was not called upon to produce it. Learned SeniorCounsel reiterated the contention that in spite of the noticeissued by the plaintiff to the defendants to produce the zaminrecords, they failed to produce the same. Therefore, an adverseinference under Section 114(g) of the Evidence Act ought to havebeen drawn. While the Trial Court had correctly drawn an adverseinference, the Lower Appellate Court committed an error in notdrawing such inference. The reasons assigned by the LowerAppellate Court in that regard are unsustainable.61.Mr.Mani, learned Senior Counsel for the appellant,placing reliance on the decision of the Privy Council in the caseof Srinath Ray Vs. Udai Nath (reported in AIR 1923 PC 217)submitted that when it is contended that the entry in the recordsof right is wrong, it lies on the party so contending to provethat it is wrong and not on the opposite party to prove that it isright. In that decision, the Privy Counsel observed as follows: "The learned Judges of the Appellate Courtremarked, not without reason, that the Trial Judge inhis treatment of the case had placed on the defendantthe burden of showing that the entry in the record ofrights was correct, whereas it lay on the plaintiffs toshow that it was erroneous." 62.Relying on the aforesaid decision, Mr.T.R.Mani, learnedSenior Counsel for the appellant submitted that when thedefendants questioned the genuineness of ExA2 series pattas, theburden lies on the defendants to prove that ExA2 series pattas arenot genuine by producing the original zamin records. LearnedSenior Counsel relied upon the same decision to support hiscontention that the pattas are granted by the Zamindarini as titledeeds to the tenant. Learned Senior Counsel further submitted thatthe said decision has been followed in the case of Donganna Vs.Jammanna (reported in AIR 1931 Madras 613). Learned Senior Counsel https://hcservices.ecourts.gov.in/hcservices/ further submitted that the pattas issued by the Zamindarini inrespect of ryoti land are title deeds by themselves. But, aryotwari patta is not by itself is a deed of title, but is anevidence of title. In the decision reported in AIR 1931 Madras 613(cited supra), it has been observed as follows :"In case of pattas in respect of land in azamindari, if the land be at the disposal of thelandlord at the time of granting the patta, prima faciesuch patta would not be a mere bill of rent butsomething more. If it is not so, it would not create anyrights in the pattadar in derogation of the rights of aperson who would be entitled to the land subject to theproper and regular payment of rent : AIR 1923 PC 217)."Mr.T.R.Mani, learned Senior Counsel submitted that in the light ofthe aforesaid decision, the contention of the learned AdditionalAdvocate General that ExA2 series cannot construed to be titledeeds is unsustainable. 63.Mr.T.R.Mani, learned Senior Counsel for the appellantsubmitted that in ExA2 series, the suit property has beendescribed as 'chinna eri karaioram tharisu and karaimedu tharisu'.But, these expressions have not been properly considered by theLower Appellate Court. The contention of the defendants that theaforesaid expressions would show that the said property is withinthe water spread area of the tank cannot be countenanced. LearnedSenior Counsel further submitted that the Lower Appellate Courtcommitted a serious error in incorrectly holding that the suitproperty is part of eri. Learned Senior Counsel further submittedthat since ExA2 series were marked without objection through PW1and the same have also been mentioned in ExA1 sale deed, it cannotnow be contended that ExA2 series are not genuine, that toowithout any proper pleadings.64.Mr.T.R.Mani, learned Senior Counsel for the appellantsubmitted that ExA3 chitta extract for fasli 1359 has been markedas ExA8 before the Estate Manager and the same affirms thegenuineness of ExA2 series. In ExA3 also, the suit property hasbeen described as 'chinna eri karaioram tharisu and karaimedutharisu'. ExA4 settlement register extract for fasli 1359 (1948-1949) mentions patta No.200 and the pattadar's name has been givenas Salem Mr.S.Vijayaranga Mudaliar and the extent of the land isshown as 4.91 acres and the kist is mentioned as 11-3-0. Accordingto the learned Senior Counsel, the aforesaid documents clearlyshow that the suit property was in possession and enjoyment of thesaid Mr.Vijayaranga Mudaliar till his sale in favour of theplaintiff under ExA1.65.Mr.T.R.Mani, learned Senior Counsel, by referring toSection 3(d) of the Act 26 of 1948, submitted that the proviso to https://hcservices.ecourts.gov.in/hcservices/ Section 3(d) of the Act reads as follows :'The Government may, after removing any obstruction thatmay be offered forthwith take possession of the estate,and all accounts, registers, pattas, muchilikas, maps,plans and other documents relating to the estate whichthe Government may require for the administrationthereof :Provided that the Government shall not dispossessany person of any land in the estate in respect of whichthey consider that he is prima facie entitled to aryotwari patta-(i)if such person is a ryot, pending the decisionof the Settlement Officer as to whether he is actuallyentitled to such patta;(ii)if such person is a landholder, pending thedecision of the Settlement Officer and the Tribunal onappeal, if any, to it as to whether he is actuallyentitled to such patta.'Learned Senior Counsel further submitted that as per Section 64 ofthe Act, the rights of the owner or occupier are not to beaffected by temporary discontinuance of possession or occupation,as the plaintiff is a transferee from the said Mr.S.VijayarangaMudaliar and has got all the rights against the Government.Therefore, according to learned Senior counsel, the claim of thedefendants that they had taken possession of the suit propertycannot be sustained. Learned Senior Counsel further submitted thatin view of the aforesaid provision, the finding of the LowerAppellate Court that on coming into force of the Act, theplaintiff is dispossessed is erroneous and totally perverse. 66.Mr.Mani, learned Senior Counsel referred to ExB63 –G.O.No.502 dated 9.5.1984 wherein the tank has been mentioned as'chinna eri' called as 'achuvaneri'. But, according to the learnedSenior Counsel, 'chinna eri' and 'achuvaneri' are different. Inparagraph 4, it has been further observed that during thesettlement, the tank has been classified as eri poramboke thoughpatta NO.200 has been issued to the plaintiff. In that GovernmentOrder, it has been observed that since it was an eri, the same hasbeen classified as eri poramboke during the settlement. LearnedSenior Counsel further submitted that the issue of patta by theZamindarini had been admitted in ExB63 and therefore, thedefendants cannot now seek to contend that ExA2 series pattas arebogus or not genuine.67.Mr.Mani, learned Senior Counsel submitted that theclassification of the suit property as eri poramboke has been donewithout notice or enquiry to the said Mr.Vijayaranga Mudaliar orto the plaintiff. He further submitted that no notice was issuedto the plaintiff under the provisions of the Tamilnadu Survey and https://hcservices.ecourts.gov.in/hcservices/ Boundaries Act (Act 18 of 1923). Learned Senior Counsel furthersubmitted that the observation in ExB63 that on a spot inspectionof the suit property, it was found that no huts were put up by theplaintiff and the said observation is contrary to the findings ofthe Commissioner's report and plans marked as ExC1 to ExC3. InExC1 to ExC3, the physical features mentioned in the plaint havebeen noted. 68.Mr.Mani, learned Senior Counsel submitted that ExA7dated 16.8.1984- the legal notice was issued prior to the firstsuit, but no reply was received from the defendants. In ExA7 – thelegal notice, patta number has been mentioned.69.Mr.Mani, learned Senior Counsel, by referring to ExB71 =ExA26 submitted that the Tahsildar, in his communication, haspointed out that patta No.200 has been issued in the name of thesaid Mr.S.Vijayaranga Mudaliar in respect of an extent of 4.91acres situated in S.NO.163 (part). The Tahsildar had furtherstated that at the time of survey and settlement enquiry, thevendor – the said Mr.S.Vijayaranga Mudaliar failed to produce therelevant records before the Authorities to substantiate his claimfor patta. Hence, the Settlement Authorities have not granted anypatta to his land. In the very same document, the Tahsildarobserved that S.No.163, which corresponded to old paimash No.779,has an extent of 15 acres and was described as achuvaneri. Thepresent extent shown for the same survey number is 24.62 acres.Hence, it may be seen that there is a difference of 9.62 acres.The land covered by patta No.200 measuring an extent of 4.91 acreshas also been included in this poramboke land. The remaining fouracres represented chinna eri.70.Mr.T.Mani, learned Senior Counsel submitted that in thefirst suit, the third defendant filed a written statement on13.8.1985 and the second defendant had filed their writtenstatement on 19.9.1985 whereas the additional written statementwas filed by the second defendant after ten years, namely16.10.1995. In the additional written statement, the genuinenessof ExA2 series is disputed for the first time.71.Mr.T.Mani, learned Senior Counsel submitted that in thesecond suit in the written statement filed by the Salem MunicipalCorporation, the genuineness of ExA2 series has not been disputed.In the third suit, the District Collector filed the writtenstatement on 1.12.1995 and the genuineness of ExA2 series has notbeen questioned. The second defendant – Transport Corporationfiled the written statement on 16.7.1996 and in that writtenstatement also, the genuineness of ExA2 series has not beendisputed. Similarly, the third defendant – Municipal Corporationfiled its written statement on 23.7.1996, but the genuineness ofExA2 series has not been disputed. https://hcservices.ecourts.gov.in/hcservices/

72.Mr.T.Mani, learned Senior Counsel submitted that in viewof the same, no issue was framed by the Trial Court regardinggenuineness of ExA2 series. Therefore, it should be taken that thesaid contention was given up by the defendants. That being so,according to the learned Senior Counsel, the Lower Appellate Courterred in going into the genuineness of ExA2 series.73.In the light of the contentions raised by the learnedcounsel for the respondents, particularly the learned AdditionalAdvocate General that the Civil Court's jurisdiction to decide thequestion of title and issue of patta is ousted under the Act 26 of1948. Mr.T.Mani, learned Senior Counsel submitted that such acontention cannot be sustained in the light of the decision of theDivision Bench of this Court in the case of State of Madras Vs.Ramalingaswamigal Madam (reported in 1969 (II) MLJ 281) wherein ithad been held as follows :"The plaintiffs claimed title to the suit propertyby virtue of their possession, which is protected underSection 3(d) of the Act. There is no machinery in theAct to determine whether a land in an estate is a ryotiland or communal land. Even in respect of an enquiry forgrant of a ryotwari patta under Section 11 read withSection 3(2) of the Act, the decision as to question oftitle by the statutory authorities is only an incidentalmatter which would not preclude a Civil Courtindependently enquiring into it in a properlyconstituted suit. Hence, Section 64-C of the Act cannotbe held to be a bar to the present suits. The suits arenot for grant of ryotwari pattas which alone could bedetermined by the Authorities appointed under the Act."The said decision has been affirmed by the Apex Court in thedecision in the case of State of T.N. Vs. Ramalinga (reported inAIR 1986 SC 794). In the decision reported in 1969 (II) MLJ 281(cited supra), it has been further held as follows : "It is clear from the provisions of the Act that whatreally vests in the Government in respect of a ryoti orprivate land is merely title and there is no vesting ofpossession, which is protected under the proviso toSection 3(d) of the Act. So long as the possession ofthe land continues to vest in the ryot, he would beentitled to protect his rights in respect of the same byresorting to Civil Court."In the light of the aforesaid decision, according to the learnedSenior Counsel, the contention of the respondents that on cominginto force of the Act 26 of 1948, the title as well as possessionof the estate vested with the Government cannot be countenanced.In respect of the same proposition, several other decisions have https://hcservices.ecourts.gov.in/hcservices/ been referred to by Mr.T.Mani, learned Senior Counsel. But, thesame are not necessary and hence, they have not been referred tohere. 74.Countering the contention of the respondents that sincethe Authorities under the Act have classified the land as communalland, the same cannot be questioned before the Civil Court,Mr.T.R.Mani, learned Senior Counsel for the appellant submitted,by placing reliance on the decision in the case of Govt.ofTamilnadu and Others Vs. Peria Pallivasal, Abhiramam and another(2000 (I) LW 154), submitted that mere classification ofparticular land in the revenue records is not, by itself,conclusive.75.Mr.T.R.Mani, learned Senior Counsel submitted that allorders passed by the Authorities, which are after filing of thefirst suit, cannot be relied upon by the defendants. In support ofthe said contention, learned Senior Counsel placed reliance on thedecision in the case of State of Bihar Vs. Radha Krishna Singh(reported in AIR 1983 SC 684) wherein it had been held asfollows : "It is equally well settled that declarations orstatements made post litem motam would not be admissiblebecause in cases made ante litem motam, the element ofbias and concoction is eliminated. Before, however, thestatements of the nature being ante litem motam theymust be not only before the actual existence of anycontroversy but they should be made even before thecommencement of legal proceedings."76.Mr.T.Mani, learned Senior Counsel submitted that sinceExB29 to ExB42 have come into existence after filing of the suit,the same cannot be looked into. But, the same have been reliedupon by the Lower Appellate Court erroneously. Learned SeniorCounsel further submitted that ExB12 to ExB28 are after settlementand re-classification of the suit property as eri poramboke andtherefore, when it is shown as eri poramboke, there will not beany entry in the adangals. Learned Senior Counsel submitted thatthe adangal extracts for the earlier faslis between 1951 and 1967have been purposely suppressed. Had the same been produced, theywould have shown that the said Mr.S.Vijayaranga Mudaliar was inpossession and was cultivating the lands.77.Mr.T.Mani, learned Senior Counsel submitted that as perSection 9(2) of the Tamilnadu Survey and Boundaries Act (Act 18 of1923), notice to the registered holders at that time should beissued before undertaking the survey. But, no notice was issuedeither to the said Mr.S.Vijayaranga Mudaliar or to the plaintiff.Learned Senior Counsel further submitted that from ExB76 series,the Lower Appellate Court had come to the conclusion that thenotice has been served on the plaintiff under Section 9(2) of the https://hcservices.ecourts.gov.in/hcservices/ Tamilnadu Survey and Boundaries Act. But, in ExB76 series, thereis no proof that the plaintiff was served with the notice. But,even the notice to the Zamindar has been received only by theEstate Manager.78.As far as the contention of the respondents that thesecond and third suits are not maintainable in view of theprovisions contained under Order II Rule 2 of the Civil ProcedureCode is concerned, Mr.Mani, learned Senior Counsel submitted thatas no such plea was raised by the written statement filed by thedefendants in any of the suits, no issue was framed by the TrialCourt. But, the Lower Appellate Court suo motu framed a point forconsideration on this aspect, which, according to the learnedSenior, is not sustainable.79. In this context, Mr.T.R.Mani, learned Senior Counselrelied upon the decision of the Apex Court in the case ofRikabasA.Oswal Vs. Deepak Jewellers and Others (reported in 1999 (6) SCC40). In this decision, it has been held that a plea of bar underOrder II Rule 2 of the Civil Procedure Code must be specificallyraised and proved and before the second suit of the plaintiff isheld to be barred by the present rule, it must be shown that thesecond suit is based on the same cause of action, on which, theearlier suit was based and in that suit, the plaintiff had notclaimed certain reliefs available to him without the leave of theCourt. The plea of bar of subsequent suit should be expresslyraised by the defendants in the written statement and brought onrecord the relevant materials. If no such plea is raised by him,it is not open to the Court to take suo motu cognizance on thebasis of assertion of fact on record. In the decision rendered in1999 (6) SCC 40 (cited supra), the plea that the subsequent suitwas barred by Order II Rule 2 of the Civil Procedure Code was notraised either in the written statement or in the memorandum ofappeal by the tenant or in the review petition. Certainassertions, however, were made to the effect that the earlier suitwas also instituted on the ground of default. The Supreme Courtheld that such plea was not expressly raised and could not havebeen allowed by the Court below. The Apex Court further held thatthe plea that the suit is barred is a mixed question of fact andlaw and such a plea has to be raised before the Trial Court andcannot be permitted to be raised in appeal. Therefore,Mr.T.R.Mani, learned Senior Counsel submitted that the LowerAppellate Court erred in framing such point for determination andthe finding recorded by the Lower Appellate Court on this issue isliable to be set aside. 80.Mr.T.R.Mani, learned Senior Counsel submitted that theevidence of DW2 and DW3 cannot given much importance, since theyhad no personal knowledge about taking over of possession and theyhave not even deposed regarding taking over of physicalpossession. Learned Senior Counsel further submitted that DW1 to https://hcservices.ecourts.gov.in/hcservices/ DW3 have been examined only by the first defendant. But, theMunicipal Corporation, though claimed to have been put inpossession, has not chosen to examine any witness on its behalf toprove the exact extent of the land taken possession by it or thedate of taking possession. Learned Senior Counsel furthersubmitted that ExB1 makes it clear that only an extent of 19 acreshas been given possession, which itself would show that theremaining extent out of 24.62 acres has not been handed over toany of the defendants and that the plaintiff was neverdispossessed.81.As far as the contention of the respondents that thesuit property has not been identified is concerned, Mr.T.R.Mani,learned Senior Counsel submitted that the evidence of PW1 issupported by the evidence of DW3 himself and further corroboratedby the Commissioner's report and plans. Learned Senior Counselsubmitted that no objection whatsoever has been filed by thedefendants to the Commissioner's report whereas the plaintifffiled his objections.82.As far as the contentions of the respondents that since,in the various proceedings the claim of the plaintiff and hisvendor for issuance of patta has been rejected, the suits are notmaintainable is concerned, Mr.Mani, learned Senior Counselsubmitted that even if patta is given or refused to be given andlater the Civil Court decides the title, the decision of the CivilCourt is binding on the Revenue Authorities.83.As far as contention of the learned counsel for therespondents that the boundary recitals in ExB58 sale deed itselfwould disprove the claim of the plaintiff that the suit propertylies on the east of eri abutting the tank bund is concerned,Mr.T.R.Mani, learned Senior Counsel submitted that ExB58 is not adocument inter partes and the same has been marked through therevenue officials and the parties to the document have not beenexamined and the document has not been proved. He furthersubmitted that mere marking is not sufficient. In support of thesaid contention, learned Senior Counsel placed reliance on thedecision in the case of Sait Tarajee Khimchand Vs Yelamarti Satyam(reported in (1972) 4 SCC 562) wherein it had been held as follows: "The plaintiffs wanted to rely on Exs. A-12and A-13, the day book and the ledgerrespectively. The plaintiffs did not prove thesebooks. There is no reference to these books in thejudgments. The mere marking of an exhibit does notdispense with the proof of documents. It is commonplace to say that the negative cannot be proved.The proof of the plaintiffs’ books of accountbecame important because the plaintiffs’ accountswere impeached and falsified by the defendants’ https://hcservices.ecourts.gov.in/hcservices/ case of larger payments than those admitted by theplaintiffs. The irresistible inference arises thatthe plaintiffs’ books would not have supported theplaintiffs.The third document on which the plaintiffrelied is Ex. A-8 being a letter, dated June 17,1954, addressed by the lawyer of the firm SethHarakchand Surajmal to the defendant’s lawyer. Inthat letter there is a statement as follows:'As regards Rs 735-0-0 being the amount ofrent payable for the period July 9, 1952 to April9, 1954, your client has subsequently asked myclient to credit the same towards the interest onabout Rs 25,145-11-0 being the amount of principaland interest remaining due after deducting thepayment of Rs.8100-0-0 for which on endorsementhas been made, in respect of the simple mortgagedeed for Rs.17,500/- executed by your client infavour of my client’s Tarajee Khimchand firm onJanuary 1, 1948.'It was said on behalf of the plaintiffs thatthis letter indicated that the amount due to theplaintiffs from the defendants was Rs.25,145/- andsecondly that the defendants had paid Rs.8,100/-towards the mortgage bond of Rs.17,500/-. Thisletter is again not inter-partes because the firmof Seth Harakchand Surajmal is a different firmfrom that of the plaintiffs. Secondly this letterEx. A-8 was also not shown to the defendants incross-examination and therefore cannot be usedagainst the defendants. Thirdly, any statement bya different firm has to be proved as a fact.Documents do not prove themselves. The contents ofthe document have to be proved. The controversy inthe present case is whether the plaintiff firm hasgiven the defendants credit for Rs.19,000/-. Theanswer to that question would decide the truth orfalsity of the statement provided also thestatements were shown to the defendants."Learned Senior Counsel submitted that it has not even beensuggested to PW1 that ExA3 and ExA4 are forged. 84. Learned Additional Advocate General for the firstrespondent submitted that Ex.A-1-sale deed, dated 29.09.1952, issham and nominal and prepared to lay claim over the Governmentproperty; plaintiff has not proved Ex.A-1 in the manner known tolaw when it is seriously disputed by the defendants; the vendorof Ex.A-1- Vijayaranga Mudaliar's title itself is under cloud;property purported to be conveyed under Ex.A-1 is vague and notidentifiable; every property will have paimash number / survey https://hcservices.ecourts.gov.in/hcservices/ number and property is identified only with this basicrequirement; the so called property allegedly transacted throughEx.A-1 does not state the boundaries; the plaintiff has not beenable to identify the boundaries by specifying the holdings ofneighbouring plot owners; on the contrary, the plaintiff seeksthe aid of the court in the third suit in O.S.No.342 of 1996 toidentify the suit property and grant declaration of title to theplaint schedule property; such a prayer is not maintainable andcannot be countenanced in law. 85. Learned AAG further submitted that no sale considerationhas passed through Ex.A-1 except for Rs.500/- which is stated tohave been paid under the agreement; this agreement is also notproved; the balance sale consideration of Rs.2,000/- is notproved to be paid to Vijayaranga Mudaliar and no proof ofdischarge of pro-note is filed; Ex.A-1 is created for the purposeof grabbing the Government property; it is not known when P.W.1claims Rs.500/- as it is a big amount on those days; a sale deedwill be executed on the basis of a pronote for Rs.2,000/-; itcould be seen that the purported transaction under the allegedsale deed, Ex.A-1, is sham and nominal, also Vijayaranga Mudaliar(plaintiff's vendor) himself had no right to execute Ex.A-1;further Ex.A-1 sale deed does not trace the history of theproperty conveyed, nor does it state that Vijayaranga Mudaliar isa ryot and Gnanambal is Zamindarini; only in schedule to the saledeed of Ex.A-1 patta No.200 is found mentioned without any otherparticulars like boundaries, measurements, survey nos / paimashnos. etc.,86. Learned AAG further submitted that P.W.1 himself hasadmitted in evidence that Ex.A-2 (alleged patta) was not handedover to him by Vijayaranga Mudaliar at the time of sale; Ex.A-1does disclose handing over of possession of the suit property toplaintiff; Recitals of Ex.A-1 would show that the vendor of theplaintiff Vijayaranga Mudaliar himself was not in physicalpossession of the property conveyed, and he neither visited norcultivated the said property; Ex.A-1 has been executed at Chennaiand presented for registration at Chennai and not at Salem; hadit been presented at Salem, the Salem Sub-Registrar would not haveentertained Ex.A-1 as there is no survey or paimash number shownin the sale deed and land conveyed is a eri land and no guidelinevalue for the suit property is fixed by Sub Registrar, as the sameare communal lands belonging to Government; hence, VijayarangaMudaliar had no title over properties allegedly conveyed underEx.A-1, nor was he in possession of the suit property; he had notgiven survey number as 163 for the property so conveyed underEx.A-1, nor came forward to give evidence to identify the suitproperty in S.No.163 when it is a fact that he was alive; hence,the plaintiff has miserably failed to identify the property thatis conveyed to him under Ex.A-1; therefore, the subsequent claimto survey number 163 by P.C.Pachiyappan is only speculative and to https://hcservices.ecourts.gov.in/hcservices/ somehow grab the Government property now dedicated to generalpublic.87. Learned AAG further submitted that S.No.163 was claimedfor the first time only when patta was applied in name ofVijayaranga Mudaliar under 1948 Act and such a claim for patta wasrejected on 20.07.1953 (Ex.A-33) and in November 1968; it ispertinent to note that the claim for S.No.163 was made after Ex.A-1 sale deed dated 29.09.1952 came into existence; the reason forobjection is that the land is a non ryoti land and zamindarini hadno right to assign the communal land; under Section 20 of the1908 Act, only the Collector has the power to deal with communallands; the subsequent request for patta made by the plaintiff inhis name under 1948 Act was again rejected on 11.05.1971, reviewthereon was also dismissed on 07.05.1973; P.C.Pachiyaan againmade a petition, dated 21.06.1982, for grant of patta acceptingGovernment as the owner of property and sought for assignmentpatta from Revenue Department which was rejected by Government on09.05.1984 (Ex.B-63), which was challenged by the plaintiff inWrit Petition No.8750 of 1984 (Ex.A-9); therefore havingchallenged non granting of assignment patta under Ex.A-9, theplaintiff is estopped in law, from retreating back on the claimand re-agitating issues for claiming ryotwari patta; even whenthe order, dated 24.02.1994 was passed in W.P.No.8750 of 1984, theplaintiff has not appraised this Court about the aforesaid realfacts including the vacating of interim order made in W.A.No.1918of 1987 dated 07.09.1988 and filing of first suit in O.S.No.35 of1984; the plaintiff is guilty of suppression of material factswhich this Court can take note off and deal with the conduct ofthe plaintiff accordingly.88. Learned AAG submitted that Ex.A-2 (alleged zamin patta)is not proved to be pattas granted by Gnanambal to VijayarangaMudaliar as per Section 54 of 1908 Act in a manner known to law;no supporting document viz., payment of rent receipt (issued underSection 62 of the Act) pursuant to Ex.A-2 were filed tosubstantiate the authenticity of Ex.A-2; on the other hand Exs.A-11 and A-12 is filed which was proved to contain number '2 A'which is given for a Government land over which there can be nodispute, and the said position is conceded by the appellant beforethis Court, that it is not relating to suit property; it is anadmitted case by the plaintiff himself that Ex.A-2 was never givento plaintiff by Vijayaranga Mudaliar and that it was given byVijayaranga Mudaliar to one Kulandai Pillai, who in turn gave itto plaintiff; Zamindarini Gnanambal was not examined to proveEx.A-2; village Karnam who is normally acquainted with ryotipatta was also not examined to prove the probative value of Ex.A-2to make it admissible in evidence; Vijayaranga Mudaliar andKulandai pillai were not examined; hence, no probative /evidentiary value to Ex.A-2 series could be attached to arrive atany legal conclusion; Ex.A-2 is not proved in a manner known to https://hcservices.ecourts.gov.in/hcservices/ law, more so when A-2 series is seriously disputed by defendantsas forged and fabricated one; as such Exs.A-1 and A-2 are notadmissible in evidence and plaintiff has miserably failed to provehis entitlement over the property conveyed under Exs.A-1 and A-2and to suit property; no evidence was let in by the plaintiff toestablish that Ex.A-2 series were issued in accordance withprovisions contained Section 50 of The Estate Land Act, 1908 (Act1 of 1908); Ex.A-2 does not contain the details as required underSection 51 of the aforesaid Act; no evidence is available as towhether Ex.A-2 (alleged Zamin patta), claimed to have been issuedby the Zamindarini was issued in accordance with Section 54 of TheEstate Land Act, 1908 (Act 1 of 1908); Ex.A-2 (alleged ZaminPatta) is not registered and signed by Karnam, as contemplatedunder Section 58 of The Estate Land Act, 1908 (Act 1 of 1908) andtherefore it is not a document issued in confirmity with 1908 Act,and hence no evidentiary value could be placed on it and the samecannot be relied upon; no evidence is available on record toascertain as to whether Thiru.Vijayaranga Mudaliar complied withSection 50(2) of The Estate Land Act, 1908 (Act 1 of 1908) andsought for a Zamin patta; Ex.A-2 (alleged Zamin patta) does notcontain all the details required under Section 51 of the EstateLand Act, 1908 (Act 1 of 1908) nor does it state that the periodof the said patta as mandated under Section 52 of The Estate LandAct, 1908 (Act 1 of 1908).89. Learned AAG further submitted that no documentsmaintained by Government under Section 164 (2) of the 1908 Actwere filed to prove the title of plaintiff's vendor; no documentsof record of rights under Section 167 of the aforesaid Act wasfiled; no documents as required under Section 203 of theaforesaid Act is filed before Court to prove entries in record ofrights which would be the relevant document for VijayarangaMudaliar's claim to be a riot and that suit property is a ryotiland; no documents were filed to show that Vijayaranga Mudaliarpaid any rent as fixed under Section 3 (2) of the Tamil NaduEstates Land (Reduction of Rent) Act (XXX of 1947); the suit isfiled disputing the character of the suit land as communal landand that it is part of estate and that it is a ryoti land; hencesuit before Civil Court is barred under The Tamil Nadu Estates(Supplementary) Act 1956 which received the assent of thePresident of India and came into force on 03.08.1957; theTribunal constituted under Section 3 (1) of the said Act alone hasjursidiction to decide the issue on hand and jurisdiction of CivilCourt is barred under Section 10 of the aforesaid Act; thisposition of law is settled in the decision reported in 1960 (1)MLJ 232 (B.Hariharamuthu Pillai v. Rani Subbulakshmi Nachiar,Hereditary Trustee of Kattalais of Sri Thirukoshtiappar, etc.,Temples and Ors.) by the Division Bench of the Madras High Court;hence suit is not maintainable before the Civil Court and partiescannot confer jurisdiction on Civil Court as Section 9 of the CPCbars entertainment of matters which are expressly barred under any https://hcservices.ecourts.gov.in/hcservices/ Act.90. Learned AAG further submitted that the suit in O.S.No.35of 1985 is hit by principles of res judicata as the plaintiff andhis vendor Thiru.Vijayaranga Mudaliar having failed to obtain thePatta under The Madras Estates (Abolition and Conversion intoRyotwari) Act, 1948 and having lost in the proceedings before thecompetent authority way back in the year 1953 are not entitled tomaintain a suit for declaration. He further submitted that whenthe plaintiff having acknowledged the status of the suit propertyas communal land, by asking for the issuance of revenue patta, isestopped to challenge the title of the Government and seek adeclaration of ownership in his favour; the suit for declarationof title and injunction is not maintainable without seeking forrecovery of possession and suit is barred under the SpecificRelief Act, 1963.91. Learned AAG further submitted that Exs.A-3 and A-4 werefiled by the plaintiff claiming it to be copy of chitta andsettlement register extract; Exs.A-3 and A-4 are certified copiesof alleged chitta and settlement register extract said to havebeen issued by the Estate Manager; nothing is said about thesedocuments by P.W.1 in his chief excepting for marking thesedocuments; however in the cross examination P.W.1 has admittedthat Exs.A-3 and A-4 does not contain suit survey number;further, in Ex.A-3 there is no description against each of theentries; there is no reference as to how Estate Manager can issuecertified copies of chitta and settlement register for Fasili 1359(year 1949) which is dated 27.12.1967 when it is the admitted factthat the pattadar was not registered with Karnam nor records ofryots were registered as contemplated under 1908 Act; more so,when Ex.A-33 it is clearly mentioned as early as on 20.07.1953that the lands in Survey No.163 is a communal land and thatZamindari has no right to alienate alleged communal land; D.W.3has spoken about Exs.A-3 and A-4 in his chief examinationconducted on 17.04.2000 and has said that Exs.A-3 and A-4 does notcontain Government Seal and that none of requirement of a chittais found in Ex.A-3 and that there is no Head Clerk post in theoffice of Estate Manager and the persons who were employed in theoffice of the Estate Manager is filed as Ex.B-57 which disclosethat the person who has signed as Head Clerk was infact working asan Assistant; D.W.3 has also spoken about discrepancies andirregularities in Exs.A-3 and A-4 and has categorically statedthat these documents are not the correct certified copies of theoriginal; hence Exs.A-3 and A-4 are not true documents. Hefurther submitted that Ex.A-6 has come into play after filing suitviz., 23.06.1987 and will have no bearing on the suit; it isquite interesting to see that when the plaintiff claims that hewas carrying agricultural activities (para VII of the plaint inO.S.No.34 of 1985, para 4 of the plaint in O.S.No.348 of 1995renumbered as O.S.No.2066 of 1996, para 4 of the plaint in https://hcservices.ecourts.gov.in/hcservices/ O.S.No.342 of 1996) it is not known as to how suddenly Ex.A-6 isfiled to show that he is running a factory under the name andstyle of Sri Venkateswara Granite Cutting and Polishing doingGranite Cutting and Polishing Business in S.No.163 when there isno such whisper even in the year 1989 when the second suit wasfiled against Salem Municipal Corporation alone nor in the thirdsuit when the same was filed on 27.04.1994; thus it is evidentthat plaintiff created documents for the purpose of the suitincluding the given up documents Exs.A-11 and A-12.92. Learned AAG further submitted that Ex.A-23 is yet anotherfalse document which will show that the actual extract of documentmarked as Ex.B-2 contains the entire particulars about achuvaneriincluding its measurement as 24.62 acres after resettlement andvery same Estate Manager who has issued Exs.A-3 and A-4 which areproved to be a false document has also issued Ex.A-23; much issaid about Ex.A-26 = Ex.B-71 which is an internal communication tothe Collector; it is not known as to how the said document cameinto possession of plaintiff; even otherwise the said documentbeing internal communication cannot have any evidentiary value norit can be relied upon by the court; unelss a document is validlycommunicated it has no value and cannot be relied upon; a readingof Ex.A-26 discloses that Tahsildar has narrated about case of theplaintiff in the patta enquiry and has submitted to Collector thecopies of document produced by the plaintiff and has sought forsuitable action; thus Ex.A-26 will not advance the case of theplaintiff when such document is only an internal communication andcannot be relied in the court (2003 (5) SCC 388 (U.P.LAND DEV.CORPN. v. AMAR SINGH) and AIR 1963 SC 395 (Bachhittar Singh v.State of Punjab and another).93. Learned AAG further submitted that this Court has framedtwo additional substantial questions of law on 23.07.2010; withregard to the same, he submitted that in so far as the firstadditional substantial question of law is concerned, that it isthe consistent stand of the Government that the extent ofachuvaneri is 24.62 acres; in the written statement filed by thefirst defendant in O.S.No.266 of 1994 it has been specificallypleaded in para 5 about the extent of achuvaneri i.e., 24.62 acresand the denial about 15 acres; there is a specific denial aboutthe alleged re-classification; several documents were filed onbehalf of the defendants to prove that achuvaneri measures 24.62acres and the earlier measurement as 15 acres were corrected inresurvey which is evident in Ex.B-11; this is due to wrongmeasurement; the paimash number is 779 and correlated surveynumber is 163; plaintiff has neither proved Survey number norpaimash number for the property conveyed under Ex.A-1; theproperty is not even identified by the plaintiff and would relyupon Ex.A-5 which shows Achuvaneri as 24.62 acres; furtherplaintiff himself has filed Ex.A-5 said to have been issued to himby Vijayaranga Mudaliar at the time of execution of Ex.A-1 which https://hcservices.ecourts.gov.in/hcservices/ shows the extent of achuvaneri as 24.62 acres; therefore whenplaintiff himself admits that Ex.A-5 is given to him by his vendorat the time of sale, then it goes without saying that even as ondate of execution of Ex.A-1 (29.09.1952) achuvaneri measures 24.62acres and not 15 acres; further Ex.A-23 is a document which doesnot contain the entire entries as could be seen in Ex.B-2;further as stated above Ex.A-26=Ex.B-71 is an internalcommunication written by Tahsildar to Collector and only containsthe plaintiff's contention raised for issuance of patta; admittedfacts need not be proved and plaintiff is estopped under Section115 of the Evidence Act; on the contrary, there is no rebuttalevidence that 24.62 acres is wrong with authenticated documents onthe side of the plaintiff (2002 (10) SCC 315); Ex.A-23 isincorrect document and hence fraud and forgery rob a document forall its legal effect and cannot found a claim to possessory title(1976 (3) SCC 642); there is always a presumption about officialdocuments as per Section 114 (e) of the Evidence Act unless thepresumption is dislodged by congent evidence; in so far asalleged claim of achuvaneri as 15 acres is neither proved nor24.62 acres is disproved; hence first additional substantialquestion of law does not arise due to the aforesaid reasons; evenotherwise, it is a question of fact and not a substantial questionof law.94. Learned AAG, as far as the second additional question oflaw is concerned, submitted that as far as Exs.A-1 and A-2concerned they have been proved beyond doubt that they are createdfor grabbing the Government lands and no title passes on to theplaintiff through them; the identity of property is under seriousdispute and only in plaint S.No.163 is introduced and duringevidence by way of Ex.A-5; there is absolutely no reference toEx.A-5 in Ex.A-1; even under Ex.A-1 Vijayaranga Mudaliar hasstated in the sale deed that the entire village has been takenover by the Government and hence there is no reference topossession being handed over to P.C.Pachiappan; both vendor andhis plaintiff having lost in the proceedings claiming patta underthe Abolition Act, the plaintiff claimed patta outside the Act;hence under Section 115 of the Evidence Act the plaintiff isestopped from denying that S.No.163 achuvaneri admeasuring 24.62acres in which plaintiff identifies 4.62 acres is not a Governmentproperty (communal land); hence the second additional substantialquestion of law does not arise due to the aforesaid reasons; resjudicata operates even in the administrative orders; hence orderdated 20.07.1953 having become final and conclusive operates asres judicata to seek for subsequent patta on the same ground as itis barred (MANU/TN/0417/2004). 95. Learned AAG further submitted that the appellant takes astand that to clarify about wrongful classification of the suitproperty as achuvaneri, the third suit is filed and that the sameis not barred under Order 2 Rule 2 of the CPC; one need not file https://hcservices.ecourts.gov.in/hcservices/ a separate suit to clarify the earlier suit; when plaintiff inthe year 1984 had all the reliefs available when he had initiatedthe first suit including the order, dated 20.07.1953 (Ex.A-33)which has become final, conclusive and binding on the successorplaintiff, since he has not chosen to do so, it would amount towaiving the rights and third suit is hit by Order 2 Rule 2 CPC;further there is no explanation whatsoever about limitation atall; as early as on 20.07.1953 the patta claim of VijayarangaMudaliar is rejected on ground of communal land is sought by wayof patta and that the alleged assignment of land by Zamindar islegally invalid (Ex.A-33); the plaintiff for the second timeagain claimed patta which is barred under principles of resjudicata the same was again rejected on 08.11.1968 by AssistantSettlement Officer, Order (Ex.B-2); in the third round ofapplication for patta Government rejected the appeal by G.O. Rt.838 dated 11.05.1971 and review on 07.05.1973; hence plaintiffstarted seeking for patta outside the Act which is evident underExs.B-4, A-26, B-71 and B-76 and hence it is apparent that asearly as on 20.07.1953 itself the plaintiff's vendor's applicationmade after execution of Ex.A-1 has been rejected by the Governmenton the ground that the property is a communal property and hencethe suit is hopelessly barred by limitation.96. Learned AAG further submitted that the appellant claimsin the appeal repeatedly that the defendants had burked thedocuments; it is settled law that the plaintiff has to prove hiscase and burden of proof lies on him; the plaintiff cannot go forfishing or a roving enquiry; since all documents are publicdocuments the plaintiff could have applied certified copies andfiled before the court rather taking a stand that defendants havenot produced the documents; such stand cannot be countenanced inlaw and made in desperation particularly when it is the case ofthe defendant that the plaintiff's case is a false case and nonegative evidence could be proved or records could be produced insupport of the same. 97. Learned AAG further submitted that the plaintiff is notable to identify the suit properties as that of the propertiescovered by Ex.A-2 even when he took the Advocate Commissioner toachuvaneri to identify the suit property; it is pertinent to notethat neither plaintiff nor Advocate Commissioner were able toidentify the suit property in achuvaneri which is evident inCommissioner's Report; it is interesting to note that theplaintiff showed 6.32 acres as his property in achuvaneri (Exs.C-1to C-3); to identify the suit property, the plaintiff has filedEx.A-5 which contains the entire achuvaneri / chinaneri and inwhich the plaintiff has coloured a triangular portion at the footof achuvaneri / chinnaeri to identify it as the property conveyedunder Ex.A-1; Ex.A-5 is not a part of Ex.A-1; normally plans /sketch of property conveyed will be annexed along with sale deedwhen sale is made; however it is surprising to note that Ex.A-5 https://hcservices.ecourts.gov.in/hcservices/ was not annexed to Ex.A-1 and there is no signature of VijayarangaMudaliar; in the cross-examination P.W.1 has stated Ex.A-5 wasgiven separately by Vijayaranga Mudaliar; this document wouldclearly establish that the entire extent of achuvaneri is 24.62acres as shown in Ex.A-5 (right hand side top) even when Ex.A-1was executed; hence, the plaintiff has demolished his own casethat even when Ex.A-1 was executed achuvaneri was admeasuring24.62 acres and therefore even according to plaintiff VijayarangaMudaliar had no right to pass on to plaintiff any property whichis identified in Ex.A-5 as the said property is recorded asachuvaneri / chinnaeri belonging to the Government.98. Learned AAG further submitted that it is the case of theGovernment that achuvaneri / chinnaeri comprised in S.No.163admeasuring 24.62 acres of land are communal lands; achuvaneri /chinnaeri later were subdivided and recorded as Salem MunicipalProperty and that a bus stand is constructed on these lands, whichproperty is claimed by the plaintiff as property conveyed in Ex.A-1 and that the said property were never in possession of plaintiffor with his vendor at any point of time and hence the suit claimis frivolous and vexatious; the plaintiff has miserably failed toprove that Mrs.Gnanambal was the Zamindarini of Pallapatti Villageand that she had at her disposal the properties covered underEx.A-2 series and that she is competent to issue such patta toVijayaranga Mudaliar as contemplated under Section 52 of TheEstate Land Act, 1908 (Act 1 of 1908); Vijayaranga Mudaliar soldthe said property which the plaintiff identifies as part ofachuvaneri; the plaintiff is guilty of suppression of materialfacts relating to Board of Revenue Orders passed from the year1953, settlement officer's order etc., relating to rejection ofpatta applied under the 1948 Act in the plaint; the plaintiff isnot entitled to claim title under the Sale Deed (Ex.A-1) andsimultaneously claim title by way of adverse possession; suchplea is self contradictory; though the appellant would now giveup the said claim of adverse possession, it would only prove thatthe claims of the plaintiff are false even in respect of title;all the suits are barred by limitation as the plaintiff's right tosue has accrued when orders were passed by Board of Revenue Order,dated 20.07.1953; settlement authority order dated 25.11.1968,Revision Petition dated 11.05.1971, Review Petition rejected byG.O.Ms.No.2387/73, dated 07.05.1973 (Ex.B-81).99. Learned AAG further submitted that the plaintiff isguilty of abuse of process of court for indulging in vexatiousproceedings and re-litigation; the cogent evidence of D.W.1 toD.W.3 and the documents filed by the defendants in support oftheir claim to substantiate that the survey No.163 (which theplaintiff claims as that part of it is his property) comprises ofa large extent of 24.62 acres which is called as achuvaneri /chinnaeri and the same was classified as communal lands in theRevenue Records; the exhibits filed by the defendants are https://hcservices.ecourts.gov.in/hcservices/ official records and the evidence and documents adduced by thedefendants would go to show that achuvaneri / chinnaeri thoughoriginally was wrongly shown as 15.00 acres but the re-survey hasconfirmed that the said extent is 24.62 acres and therefore evenapplying plaintiff's false contention that achuvaneri is only 15acres, there is no explanation as to what happened to (15 + 4.91 –24.62 acres) 4.71 acres; therefore, this would only prove thehollowness in such claim; above all Ex.A-5 the sketch of entireachuvaneri which shows its entire extent as 24.62 acres is aclinching document which nails the false plea of the plaintiff.100. Learned AAG further submitted that the entire achuvanerii.e., 24.62 acres have been sanctioned by the Government forconstruction of Salem Bus Stand considering the large number ofrepresentations from the general public of Salem and popularrepresentatives from the area and need for constructing a largebus stand; therefore the entire achuvaneri in S.No.163admeasuring of 24.62 acres has been permitted by the Government toconstruct a bus stand by Anna Road Transport Corporation on behalfof the Salem Municipality (Ex.B-82); therefore, the entireachuvaneri now reclassified as Salem Bus Stand is put into use forpublic purpose and hence public interest would suffer if thejudgment is set aside as no such large property is available forusage of bus stand; the plaintiff himself has admitted that he isnot in possession of the property (Ex.B-4); taking over ofpossession of the ryoti lands in Salem Taluk is support by Exs.B-7, B-8 and B-9; to show that the total extent of achuvaneri is24.62 acres, records from the year 1951 is marked as Exs.B-11, B-12, B-49, B-50 and B-51; originally, there were encroachmentsover the suit property and encroachers were removed which isevident in Ex.B-43; even Ex.B-43 does not show plaintiff's name;it has been established that Ex.A-11 and A-12 does not relate toEx.A-1 as appreciated and accepted by the parties before thisCourt; to prove that any of the boundaries of achuvaneri does notshow land claimed by plaintiff even in the year 1947, Ex.B-58 ismarked which is sale in Survey No.112; in Ex.B-58, the exactmeasurement and boundaries are given which is absent in a documentexecuted in the year 1952 (Ex.A-1).101. Learned AAG further submitted that Ex.B-58 is aclinching document to show that the said property in Ex.B-58 islocated at the foot of achuvaneri and abutting Omalur Road, whichis adjacent to the so called suit property as claimed andidentified by the plaintiff as his property in Ex.A-5; howeverEx.B-58, one of the boundary, is shown as achuvaneri and notplaintiff's property; the measurement in Ex.B-58 can be easilyidentified in Exs.B-60 and B-61 and hence Ex.B-58 will demolishthe claim of the plaintiff that his property is within achuvaneriand abutting Omalur Road; the written statement filed by SalemMunicipal Corporation in the suit will have no bearing in decidingthe title, as Salem Municipality can only claim right through the https://hcservices.ecourts.gov.in/hcservices/ Government, and when the Government has disputed the title of theplaintiff, there cannot be any concession by the Salem MunicipalCorporation; moreover, the plaintiff has to prove his case bypositive and acceptable evidence; the judgment of the appellatecourt is a well considered one and needs no interference. 102. Mr.R.Muthukumarasamy, learned Senior Counsel for thethird respondent / Municipal Corporation submitted that theplaintiff relies upon Ex.A-2 patta series said to have beengranted by the Zamindarini Gnanambal to prove his possession; healso relies upon Exs.A-3 and A-4 which are the chitta extract andsettlement register extract for the fasli 1359; the trial courton an erroneous appreciation of facts and law held that the saiddocuments were genuine documents evidencing the possession of theplaintiff to the suit property and decreed the suits on the basisof the said documents; the trial court failed to consider thatthe defendants had challenged the validity and genuineness of thesaid documents in their written statement and had let in properevidence to prove the said documents were not genuine; the lowerappellate court on a detailed consideration of the documents foundthat the said Ex.A-2 series contained three pattas relating to theFasli years 1350, 1352 and 1356; the patta for the Fasli year1352 was not signed by the Karnam; in the patta for the Fasliyear 1356 the signature of the Karnam could not be ascertained asit is a printed patta; the plaintiff had claimed and deposed thatthe signature was that of Karnam Govindaraj and that KarnamKulandaivelu had signed in two pattas as he was the Karnam ofPallapatti Village at that time; the lower appellate court on aconsideration of the evidence of P.W.2 and D.W.2 and on goingthrough the contents of Ex.B-74 has clearly found that oneSachidanandam Pillai was the Karnam of Kandanpatti Village upto1938 and Kulandaipillai was the Karnam of kandanpatti Villageafter 1938 and that is evidenced from their signatures containedin Ex.B-74; further the signature contained in Ex.A-2 pattaseries is only the signature of Karnam Kulandaipillai whencompared with the signatures found in Ex.B-74; further the saidKulandaipillai was not the Karnam of Pallapatti Village and he hasalso not stated that he is holding additional charge of PallapattiVillage; the notice dated 16.08.1984 issued by the plaintiffunder Section 80 CPC and the plaint in O.S.No.34 of 1985 and thesale deed dated 29.09.1952 do not say anything about these pattas;the signature of Zamindarini Gnanambal differs in each of the fourpattas; the vendor Vijayaranga Mudaliar did not deliver thesepattas when the sale deed was executed; Ex.B-71 is the reportdated 14.02.1995 by Tahsildar, Salem, to Collector, Salem; itsays patta was not granted to Vijayaranga Mudaliar since he hasnot produced any document; had these Ex.A-2 pattas been inexistence they would have produced the same before the enquiryTahsildar; Ex.A-33 refers to an application for grant of pattaunder the provisions of Section 11 of the Tamil Nadu Act, 26 of1948; the provision read: https://hcservices.ecourts.gov.in/hcservices/ "Provided that no person who has been admitted intopossession of any land as landholder on or after thefirst day of July 1945 shall, except when the Governmentafter examination of all the circumstances otherwisedirect, be entitled to a ryotwari patta in respect ofsuch land".therefore A-2 series pattas which relate to the period 1940 – 1944would not have been in existence when the sale deed was executedor when Vijayaranga Mudaliar applied for patta; as such thedocuments Ex.A-2-Patta Series were not genuine documents and onthat basis rejected the evidence of the plaintiff regarding Ex.A-2-patta series.103. Mr.R.Muthukumarasamy, learned Senior Counsel for thethird respondent / Municipal Corporation further submitted thatthe trial court relied upon Ex.A-11-receipts and Ex.A-12-Kistreceipts to hold that the plaintiff had been paying the Kist forthe suit property thereby evidencing his possession and enjoymentof the suit property; the lower appellate court on an examinationof Ex.B-46 and Ex.B-42 the adangal registers for the fasli year1367 found that the plaintiff and his wife Kanagammal hadencroached certain portions of Kundichetti Erikkarai in S.Nos.119and 120 which have been exhibited as Ex.B-62; Ex.A-11 series wereactually receipts issued for the Thandam Theervai for theoccupation of Kundichetti Eri by the plaintiff and his wife;further Ex.A-12 series is for the faslis 1381 and 1392; theplaintiff had deposed that Ex.A-12-series were given for the kistpaid by him through his pannaial Raman; Ex.A-12 series werereceipts issued in the name of one Raman and another Parman; onan analysis of Exs.B-15 and B-26 adangal extracts it is found thatone Raman and one Parman were in occupation of encroached landChina Erikkarai and Thandam Theervai had been collected from themunder Ex.A-12-series; the plaintiff who was not at all concernedwith the suit land and in whose name the said Kist receipts do notstand had falsely deposed particulars regarding the said receipts;hence on a careful consideration of the above documents the lowerappellate court came to the proper conclusion that Exs.A-11 and A-2 do not relate to the suit property and the plaintiff had filedthe same and gave wrong evidence only to mislead the court and hadcommitted a fraud on the court in that aspect; 104. Mr.R.Muthukumarasamy, learned Senior Counsel for thethird respondent / Municipal Corporation further submitted thatthe plaintiff has stated that main point for consideration is whatwas the character of land during the relevant time; it issubmitted that material and relevant point is who was inpossession when the Act was notified on 19.12.1950 and who was inpossession when the sale deed dated 29.09.1952 was executed;Ex.B-9 shows that even before the sale deed Government had takenpossession and Ex.A-1-sale deed itself there is a clear recital https://hcservices.ecourts.gov.in/hcservices/ conceding the fact that Government has taken over the village;the purchaser must have known the meaning of this line in the saledeed since it was introduced later on, but before theregistration; Exs.B-12 to B-41 which are adangals do not showthat the plaintiff has cultivated the suit lands; it is thereforeclear that the plaintiff or his son Kumar had never been inpossession of the property under consideration; the plaintiff'sfather has suppressed material facts about his title andpossession in all the writs and in the suits.105. Mr.R.Muthukumarasamy, learned Senior Counsel for thethird respondent / Municipal Corporation further submitted thatthe plaintiff was never in possession of the suit property; Ex.B-9 report submitted by the Tahsildar to the Collector, Salem, on15.01.1951 shows that the plaintiff or his vendor were never inpossession; the plaintiff has suppressed the applications filedby him for grant of patta in 1971 and that it was rejected; thereview application filed by him as also rejected in 1973; theplaintiff relies upon Exs.A-1, A-2, A-11 and A-12 to put forth hiscase that he was in possession of the suit property for more than50 years; the lower appellate court on a detailed examination ofthe abovesaid documents came to a considered conclusion that thesaid documents were not genuine and do not relate to the suitproperty and rejected the case of the plaintiff; the plaintiffwould put forth yet another case that the actual extent ofChinnaeri was only 15 acres as per Exs.A-23 and B-2 and thatduring settlement survey the extent of Chinnaeri / achuvaneri waswrongly entered as 24 acres 62 cents by wrongly including theplaintif's lands in Survey No.163; in this aspect the respondentshad filed Ex.B-6 which is a descriptive memo of Survey No.163Pallapatti Village, wherein Survey No.163 has been clearlymentioned as Chinnaeri Government Poramboke land having an extentof 24 acres 62 cents; Ex.B-11, A register extract also mentionsSurvey No.163 as Chinneri Government Poramboke measuring an extentof 24 acres 62 cents; Ex.B-52 chitta prepared during the Surveyand Settlement proceedings in the year 1959 and Ex.B-53classification register of the year 1959, the fair land registerEx.B-72, clearly state that Survey No.163 with paimash No.779 hasbeen classified as achuvaneri poramboke having an extent of 24acres 62 cents; hence the contention of the plaintiff that hislands have been wrongly classified as eri poramboke in the surveyand settlement proceedings is false; the total extent ofachuvaneri is only 24 acres 62 cents and not 15 acres as claimedby the plaintiff; 106. Mr.R.Muthukumarasamy, learned Senior Counsel for thethird respondent / Municipal Corporation further submitted thatthe plaintiff has claimed that the suit lands were ryotwari landsand that Ex.A-2 series patta had been issued to his vendorVijayaranga Mudaliar by the Zamindarini Gnanambal; the saidVijayaranga Mudaliar was the son-in-law of Gnanambal; in the said https://hcservices.ecourts.gov.in/hcservices/ pattas it has been mentioned as Chinnaeri Karaioram Tharisu andChinna Eri Karaimedu Tharisu; the word Tharisu means waste land;so it is evident that the land mentioned in the patta are notryotwari land as claimed by the plaintiff; the reference in thepattas infer that the lands were waste lands on the bunds ofchinnaeri; the plaintiff has not produced any document likeadangal to establish that he was in possession of the suit land;the plaintiff further relies upon the commissioner's report Exs.C-1, C-2 and C-3 to show that the physical features spoken to by himare found in the suit property and that he was in possession andenjoyment of the suit property; in this aspect, D.W.2 who was theVAO has clearly deposed that various persons had encroached intoachuvaneri and put up sheds and hutments and subsequently as perthe Government Order those encroachments were removed and suitland was entrusted to Anna Transport Corporation; the peopleliving in the hutments could have formed the peedam temple and theexistence of the temple would not establish the possession of theplaintiff; Exs.B-80, B-12 and B-46 adangal extracts reveal thatseveral persons had encroached the suit property and all thoseencroachments were removed in the year 1984; the claim of theplaintiff that he had put up several huts and that his tenantswere occupying the same is not borne out by any records; theplaintiff has not filed any documents to prove the same; further,the particulars of tenants do not find a place in the adangalextracts; in the absence of any documents produced by theplaintiff to prove his possession and enjoyment of the suitproperty, the physical features stated in the Commissioner'sReport could not be taken as conclusive evidence to prove that thesuit lands were possession of the plaintiff; Ex.B-20 adangalextract also reveals that a Well came into existence in the year1976 at the instance of the Panchayat; Ex.B-28 adangal extractindicates that all the encroachments in the suit property wereremoved and achuvaneri was handed over to Anna TransportCorporation on 16.06.1984 vide Exs.B-60 and B-65; the plaintiffwho was never in possession of the suit lands obtained an order ofstay by suppressing the real facts and ultimately the writpetitions filed by him were dismissed; the plaintiff would relyupon the order passed in W.P.No.8750 of 1984 to state that hispossession had been recognised by the Court and an order of stayhad been granted; however, the said order was set aside by aDivision Bench in its order in W.A.No.3755 of 2002, dated08.04.2003 holding that a writ petition of that nature would nothave been entertained at all and the contention of the plaintiffthat the High Court has given a finding in his favour as to factumof possession is erroneous; the suit filed by the plaintiff isalso barred by limitation; the suit lands were taken over byGovernment on 12.01.1951; the plaintiff's vendor VijayarangaMudaliar's application for grant of patta under Section 11 of theAct had been rejected by the Board of Revenue by its Order dated20.07.1953-Ex.A-33; the claim of the plaintiff for grant of pattawas rejected by the settlement authority by order dated 25.11.1968 https://hcservices.ecourts.gov.in/hcservices/ and his Revision Petition was also dismissed by G.O.No.838,Revenue Department, dated 11.05.1971; the Revision Petition filedby the plaintiff was rejected by G.O.No.2387/73, dated 07.05.1973-Ex.B-81; the plaintiff should have challenged the said orderswithin three years of his knowledge; however, the suit has beenfiled in the year 1985 and as such is clearly barred bylimitation.107. Mr.R.Muthukumarasamy, learned Senior Counsel for thethird respondent / Municipal Corporation further submitted thatthe plaintiff has filed three suits seeking for identical reliefsof declaration of title and for consequential injunction; in thefirst suit O.S.No.34 of 1985 the plaintiff has sought for adeclaration of his title to the suit property and for permanentinjunction; however even on that date he was aware that the suitlands have been classified as communal land by the respondents asevident from the various documents particularly Exs.B-73 and B-81;but he has not prayed for a declaration that the classification ofthe suit land as communal property is null and void; only in theyear 1994 the plaintiff filed O.S.No.366 of 1994 seeking for thesaid relief; the said relief ought to have claimed in the firstsuit itself under Order II Rule 3 CPC where the plaintiff isentitled to many reliefs on the same cause of action and if heomits to claim one of the reliefs in that suit without thepermission of the court he shall not afterwards sue for thatrelief so omitted; the plaintiff having failed to claim thereliefs in the earlier suit O.S.No.34 of 1985, the relief soughtfor in O.S.No.342 of 1996 for declaration that the classificationof the suit lands as communal property is null and void is barredunder Order II Rule 3 CPC; the plaintiff has been abusing theprocess of court by resorting to various litigations and re-litigation as stated above and on this ground also the suits areliable to be dismissed and the ground of re-litigation amount toabuse of process of law; the plaintiff is not the owner of thesuit property and has never been in possession of the same; nodocuments have been produced by him to establish his possession;as stated above by virtue of G.O.Ms.No.3212, Revenue Department,dated 19.12.1950, the entire extent of 24 acres 62 cents inPallapatti Village was notified under the Tamil Nadu Act 26 of1948; the land was taken over by the Government on 12.01.1951 andon and from the date of notification the title of land vests withthe Government by operation of law; unless patta is granted to theland holders as per the provisions of Section 11 of the Act theywill not get any right of title for the same; as stated above theclaim of Vijayaranga Mudaliar and the plaintiff for grant of pattahad been rejected and their revisions had also been dismissedwhich has become final; later the lands were classified asachuvaneri poramboke and subdivided by G.O.Ms.No.299 RevenueDepartment dated 17.03.1977 and the same has been recorded asSalem Municipal Property; the plaintiff or his son were never inpossession of the suit property; the details of the case as set https://hcservices.ecourts.gov.in/hcservices/ out in the judgment shows that the plaintiff is guilty of abuse ofprocess; it will show that plaintiff has been playing hide andseek game using the High Court and Civil Court as the Forumsdepending upon the situations and circumstances to play his game;the finding of the trial court regarding the possession is notbased upon any fact or evidence but on the presumption thatGovernment would not have taken possession as the application forgrant of patta was pending; the property is public property; thethird respondent / Corporation is using the land for its vehiclesand the land is allotted for the Town Bus Stand; already thelitigation is nearly twenty years old; the plaintiff has no primafacie case as can be seen from the facts and evidence in thecases; he is building up cases on the basis of false allegations;being guilty of abuse of process his claim for injunction deservesno consideration; the respondents are in possession of theproperty mentioned in the writ petition, namely, 4.91 acres ofland in S.No.163 of Pallapatti Village, Salem Taluk, right from1984 onwards having been allotted the same along with otherextents totally admeasuring 24.62 acres of vacant land by theGovernment of Tamil Nadu under G.O.Ms.No.255, TransportDepartment, dated 23.02.1984 for construction of a new bus stand;the land was handed over to the Anna Transport Corporation for thepurpose of constructing and maintaining the Bus Stand under thecontrol of the Salem Municipality; the Salem Corporation Bus Standhas been completed and is now functioning from 1987-88; theremaining vacant land has been reclaimed by the Corporation from1984 by filing up with the rubbish and debris and has been cleanedup earmarked for parking of omni buses; currently the garbagelorries, tipper and other vehicles of the Salem Corporation areparked in the land; the Salem Corporation is in actual physicalpossession of the land mentioned in the writ petition from23.02.1984 on wards till date and the public are using the same;this Court has also repeatedly dismissed one writ petition afteranother filed by the plaintiff's father in respect of the samesubject and the same prayer; no substantial question of law hasbeen raised by the appellant in the above second appeals and thereare no merits in the same. 108. I have considered the aforesaid submissions made by thelearned counsel on either side and perused the materials availableon record.109. The entire case of the plaintiff revolves around Exs.A-1, A-2series pattas, A-3 and A-4. While the plaintiff's case isthat under Ex.A-1-registered sale deed, dated 29.09.1952, hepurchased the suit property from Vijayaranga Mudaliar, the riot inpossession of the said land and Vijayaranga Mudaliar had beenissued with Ex.A-2-series pattas by the Zamindrini of Pallapattiand the Patta number is 200 and in respect of Patta No.200,Vijayaranga Mudaliar had paid Kists as per Exs.A-3 and A-4 thedefendants questioned the genuineness of these documents. The https://hcservices.ecourts.gov.in/hcservices/ trial court has accepted their genuineness for reasons recorded byit, whereas, the lower appellate court has held that thesedocuments are not genuine. Hence it is necessary to consider asto whether the reasons assigned by the trial court are correct orthe reasons assigned by the lower appellate court are correct.110. As far as Ex.A-1 is concerned, it has to be pointed outthat it is a registered sale deed, which came to be executedpursuant to an agreement of sale, dated 15.03.1950 for theconsideration cited therein. As per the recitals in Ex.A-1 a sumof Rs.500/- has been paid in cash by the purchaser plaintiff tothe vendor Vijayaranga Mudaliar and so far as the remaining saleconsideration of Rs.2,000/- is concerned, the purchaser /plaintiff has executed a promissory note. In Ex.A-1 it has beenspecifically stated that the vendor has handed over the possessionto the purchaser. In Ex.A-1, in the schedule, it has been statedthat the land is covered by Patta No.200 of Pallapatti Village andthe extent is mentioned as 4.91 acres and the four boundaries havealso been given. It has also been stated that the village hasbeen taken over by the Government. 111. In the written statement filed by the defendants in thethree suits, a plea has been raised that Ex.A-1-sale deed is acreated document, it is false and it is sham and nominal, butnowhere in the written statements it has been pleaded that Ex.A-1is a forged document. Therefore, it is clear that the executionof Ex.A-1- sale deed by Vijayaranga Mudaliar in favour of theplaintiff is not in dispute and hence the contention of therespondents that since neither the vendor nor the attestors ofEx.A-1 have been examined Ex.A-1 cannot be said to have beenproved cannot be accepted. 112. In the written statement filed by the Salem MunicipalCorporation in O.S.No.348 of 1995, in paragraph 3, it is pleadedas follows:-"..... It is false to allege that the plaintiff haspurchased the suit property from one VijayarangaMudaliar under sale deed dated 29.9.1952. This allegedsale deed does not confer any title to the plaintiffover the property. It is false to allege that theplaintiff is in possession and enjoyment of theproperty".In paragraph 5 of the same written statement it is pleaded asfollows:-"..... Originally, the land was a Zamin land under thecontrol of Zamindar Gnanambal. The said ZamindarGnanambal has permitted one Vijayaranga Mudaliar toenjoy the property on payment of charges to her. The https://hcservices.ecourts.gov.in/hcservices/ Vijayaranga Mudaliar had no title to the said suitproperty. The Estate Abolition Act came into force andall the lands has been taken by the Government prior tothe alleged sale deed dated 29.9.1952 obtained by theplaintiff. On the date of alleged sale deed it was theproperty of the Government."The aforesaid pleadings clearly show that it was not the case ofthe defendants that Ex.A-1 sale deed was a forged one. From theaverments, namely, 'the said Zamindar Gnanambal has permitted oneVijayaranga Mudaliar to enjoy the property on payment of chargesto her', makes it abundantly clear that the defendants haveadmitted the possession of Vijayaranga Mudaliar of the suitproperty. Therefore, the defendants are estopped from raising aplea in the trial that Vijayaranga Mudaliar was not in possessionof the suit property, as on the date of coming in force of the Act28 of 1948. 113. Learned Additional Advocate General contended that nosale consideration has passed under Ex.A-1. Such a contention inthe light of the specific recitals contained in Ex.A-1 cannot besustained. The further contention of the learned AAG is that inthe year 1952 when Ex.A-1 sale deed was executed, a sum ofRs.2,500/- was a big amount and that being so, it is inconceivablethat Vijayaranga Mudaliar would have executed the sale deed bysimply receiving cash consideration of Rs.500/- alone and byaccepting the promissory note for the balance of saleconsideration, namely, Rs.2,000/-. The said contention is opposedto the specific recitals contained in Ex.A-1. In Ex.A-1 it hasbeen specifically stated that the vendor was unable to cultivatethe same personally and it was not convenient for him to managethe property and that was the main reason recited for selling theproperty. Admittedly, Ex.A-1 sale deed has been executed andregistered at Chennai where Vijayaranga Mudaliar was staying atthat point of time. The fact that Vijayaranga Mudaliar was stayingat that point of time at Chennai corroborates the version in thesale deed that he was unable to cultivate the lands personally andtherefore there is nothing surprising or suspicious in the vendorselling the suit property under Ex.A-1. Moreover, it is pertinentto point out that it is not open to the respondents to contendthat no sale consideration is passed under Ex.A-1 or Ex.A-1 issham and nominal and created with an ulterior motive. It ispertinent to point out that on 29.09.1952 when the sale deed Ex.A-1 was executed there was no litigation between VijayarangaMudaliar and the defendants or between the plaintiff and thedefendants and therefore it cannot be heard to be contended by thedefendants that Ex.A-1 had been created. There is absolutely nobasis for raising such a plea. P.W.1 in his cross-examination hasstated that he paid the amount covered by the promissory noterecited in Ex.A-1 within three years from the date of Ex.A-1. Itis seriously contested by the defendants before the Courts below https://hcservices.ecourts.gov.in/hcservices/ and before this Court that neither Vijayaranga Mudaliar nor theplaintiff were in possession of the suit properties at any pointof time. It is the further case of the defendants that thepossession was not handed over by Vijayaranga Mudaliar to theplaintiff as recited in Ex.A-1. But during the course of cross-examination of P.W.1 / the plaintiff it has been suggested by thedefendants that only subsequently i.e., after the date ofexecution of Ex.A-1 sale deed physical possession of the land soldunder Ex.A-1 was handed over to the plaintiff. This suggestionhas been denied by P.W.1. This suggestion, in the considered viewof this Court, demolishes the entire case of the defendants thatneither Vijayaranga Mudaliar nor the plaintiff were in possessionof the suit property at any point of time. The aforesaidsuggestion implies that Vijayaranga Mudaliar was in possession ofthe property and subsequent to the execution of Ex.A-1 sale deed,if not on the date of execution of Ex.A-1, but subsequentlypossession was handed over by him to the plaintiff. This vitalaspect has not been considered or taken into account by the lowerappellate court. Had the lower appellate court considered thisvital piece of evidence, it is doubtful that the lower appellatecourt would have recorded a finding that Vijayaranga Mudaliar wasnot in possession of the suit property and he had not handed overpossession of the suit property to the plaintiff. Therefore, inthe considered view of this Court, the finding of the lowerappellate court, as far as Ex.A-1 is concerned, is vitiated,perverse and cannot be sustained. 114. The contention of the learned AAG that on coming intoforce of the Act 26 of 1948, the title and possession of theentire Estate had vested with the Government and Ex.B-9Tahsildar's Report sent to the Collector shows that the possessionof the lands have been taken by him cannot be countenanced for thefollowing reasons:-As has been held by a Division Bench of this Court in 1969MLJ 281 (referred to supra), which has been subsequently affirmedby the Apex Court in AIR 1986 Supreme court 794 (referred tosupra), it is clear from the provisions of the Act that whatreally vests in the Government in respect of a ryoti or privateland is merely the title and there is no vesting of possession,which is protected under the proviso to Section 3 (d) of the Act.The Division Bench has further held that so long as the possessionof the land continues to vest in the ryot, he would be entitled toprotect his rights in respect of the same by resorting to civilcourts. In Ex.B-9 what is stated is that the estate has beentaken possession of by the Tahsildar, it only reveals the takingover of symbolic possession of the estate, but not taking physicalpossession of the ryoti lands of the riots. Ex.B-9 does not showthat the Tahsildar has taken possession of the suit property fromVijayaranga Mudaliar. In the considered view of this Court, thereasons assigned by the lower appellate court for disbelieving https://hcservices.ecourts.gov.in/hcservices/ Ex.A-1 and not relying upon the same cannot be sustained.Similarly, the finding of the lower appellate court thatVijayaranga Mudaliar was not in possession of the suit propertycannot also be sustained. There is absolutely no reasonwhatsoever to hold that Ex.A-1 sale deed is a created document andit is not genuine and therefore the finding to the contraryrecorded by the lower appellate court cannot be sustained.115. As far as Ex.A-2 series pattas are concerned, as rightlycontended by Mr.T.R.Mani, learned Senior Counsel for theappellant, except in the additional written statement filed inO.S.No.34 of 1985, which was filed after ten years after filing ofthe suit in none of the written statements filed in the threesuits, the genuineness of Ex.A-2-series pattas have beenquestioned. As rightly pointed out by the lower appellate courtsince the additional written statement has been accepted by theCourt below the plea relating to Ex.A-2 raised in the additionalwritten statement should not have been rejected at the thresholdby the trial court, but it should have been considered as towhether such a plea has been established by the defendants.During the entire cross-examination of P.W.1 the only suggestionthat has been put to P.W.1 regarding Ex.A-2-series is that theyhave been created, which has been denied by P.W.1. It has noteven been suggested that Gnanambal, the Zamindarini of PallapattiVillage, has not signed in Ex.A-2 series pattas.116. Ex.A-2 series pattas and Exs.A-3 and A-4 have been fieldalong with the plaint in O.S.No.348 of 1995 but yet in the writtenstatement filed by the defendants, the genuineness of thosedocuments have not been questioned. Similarly, in the third suit,namely, O.S.No.342 of 1996 also, the aforesaid documents have beenfiled along with the plaint, but in the separate written statementfiled by the defendants the genuineness of those documents havenot been challenged. When that being so, it has to be seenwhether it is open to the defendants to challenge the genuinenessof those documents in the course of trial. It is also pertinentto point out, as rightly contended by Mr.T.R.Mani, learned SeniorCounsel for the appellant, that Ex.A-2 series pattas, Exs.A-3 andA-4 were marked without any objection through P.W.1. Even beforeany dispute arose between the parties, the Zamin Patta No.200 hasbeen referred to in Ex.A-1 sale deed, but contrary to that, thelower appellate court has erroneously observed that Patta No.200has not been referred to in the sale deed. Had the lowerappellate court properly considered the recitals in Ex.A-1 such anerroneous observation would not have been made. This shows thatthe lower appellate court has over looked a vital recital in Ex.A-1-sale deed which has lead the lower appellate court toerroneously hold that Ex.A-2-series patta are not genuine. Thefact that Zamin Patta No.200 has been referred to in Ex.A-1 itselfwill show that said Patta had been granted by Zamindarini toVijayaranga Mudaliar. Further, as rightly contended by https://hcservices.ecourts.gov.in/hcservices/ Mr.T.R.Mani, learned Senior Counsel for the appellant, that Ex.A-2series pattas have been produced before the Estate Manager asearly as on 24.06.1974 and marked as Ex.A-3 without objectionbefore him as seen from the endorsement in the document itself.Admittedly, the defendants in their written statement filed in thethree suits have not questioned the genuineness of ExA1, ExA2series – pattas, ExA3 and ExA4. But, the said failure on the partof the defendants is sought to be justified by the Lower AppellateCourt by making a special pleadings. The Lower Appellate Court, inthe absence of any pleading on the side of the defendants, hasobserved that there is no proof to show that the copies of thesaid documents were served on the defendants and therefore, thereis no occasion for the defendants to question the genuineness ofthese documents. As already pointed out, when these documents havebeen filed along with the plaint before filing the writtenstatement it is the duty of the defendants to inspect thedocuments and raise proper pleadings in the written statement. Inthe absence of necessary pleadings questioning the genuineness ofthese documents, the lower appellate court ought not to haveallowed the defendants to adduce evidence both oral anddocumentary, the Lower Appellate Court has committed a seriouserror of law in making the special pleadings in favour of thedefendants. 117. It was sought to be contended by the learned AAG thateven if Ex.A-2 series pattas are considered to be genuine, theycannot be considered to be title deeds. In support of the saidcontention, the learned AAG relied upon the following decisions:-(i) 1999 (III) CTC 304 (Kammavar Sangam v. Mani Janagarajan).In the said decision, it has been held that reliance on pattacannot be made to prove title as patta which mutates entriescannot convey or extinguish right over property. Basing relianceon this decision, leaned AAG submitted that reliance cannot bemade on Ex.A-2-seies patta to prove title. But, as rightlycontended by Mr.T.R.Mani, learned Senior Counsel for theappellant, patta referred to in this decision is a ryotwari pattaand not a ryoti patta and therefore the said decision is notapplicable to the facts of these cases; and similarly, thedecisions reported in,(ii) 2007 (13) Supreme Court Cases 182 (Balasubramanian andOrs. v. Ramaiah Thondaman);(iii) 1998 (I) CTC 79 (Subramaian and two Ors. v. KaruppayeeAmmal and 15 ors.);(iii) 1999 (III) CTC 650 (Guruvammal and another v. SubbiahNaicker and Ors.)also relate to a ryotwari patta and not a ryoti patta andtherefore the said decisions ae not applicable to the facts of https://hcservices.ecourts.gov.in/hcservices/ these cases. (iv) (1972) 1 Supreme Court Cases 521 (CHIGURUPATI VENKATASUBBAYYA v. PALADUGA ANJAYYA). The said decision relates to theprocedure to be followed by Collector before diverting the use ofthe communal lands. In these cases, the suit land has not beenconverted into a communal land, but due to the wrong measurementsnoted during the resurvey, the suit properties have been includedin the extent of achuvaneri and therefore the said decision is notapplicable to the facts of these cases.(v) 86 Law Weekly 524 (Velayudham Pillai v. Sndhosa Nadar).In the said decision, it has not been laid down that patta is nota document of title as is sought to be contended by the learnedAAG, hence this decision is not applicable.(vi) 1999 (3) Supreme Court Cases 722 (KONDIBA DAGADU KADAMv. SAVITRIBAI SOPAN GUJAR) and(vii) (2008) 2 Supreme Court Cases 741 (DHARMARAJAN v.VALLIAMMAL) (viii) AIR 1968 SC 1413 (referred to supra) - (Regarding thescope of interference by this Court in a second appeal). Butthe said decisions, as referred to above, supports the case of theplaintiff rather than the defendants.(ix) (1960) 1 MLJ 232 (B.Hariharamuthu Pillai v. RaniSubbulakshmi Nachiar and Others). Basing reliance on this,learned AAG submitted that the Civil Court has no jurisdiction totry the suits and the plaintiff should have approached theTribunal constituted under the Madras Act 30 of 1956. In the saiddecision, it is observed s follows:-"5... (3) .... Section 10 specifically enacts that exceptas otherwise expressly provided for in the Act, no civilor revenue Court and no Tribunal constituted under anyother law, shall have jurisdiction to decide whether anynon-ryotwari area is or is not an estate or part of anestate or is or is not an inam estate...."Thus it is clear that, that was the case were question was whetherthe area is or is not an estate or part of an estate as defined inSection 3 (2) of the Estate Land Act. But here, the suit propertyadmittedly forms part of an estate, as defined in Section 3 (2) ofthe Estate Land Act. Therefore, the said decision is notapplicable to the facts of these cases.(x) 1998 (III) MLJ 577 (Manakkan v. Veera Perumal). Basingreliance on this decision, learned AAG contended that theplaintiff should stand or fail on the strength of his own case and https://hcservices.ecourts.gov.in/hcservices/ not relying on the alleged weakness of the defendant's case. Inthis case, the plaintiff is not relying on the weakness of thedefendants' case, but the plaintiff has established his case basedon the pleadings put forth by him and therefore the said decisionis not applicable to the facts of these cases. (xi) Learned AAG submitted that the word "Tharisu" found inExs.A-1, A-2-series pattas, A-3 and A-4 will denote only the'waste land' and not 'cultivable land'. But this court is unableto accept the said contention of the learned AAG. The word'Tharisu' means 'fallow'. By no stretch of imagination, it can besaid that it means 'waste land'.(x) On the assumption that the plaintiff is not in possessionof the suit property, a contention has been raised by learned AAGand Mr.R.Muthukumarasamy, learned senior counsel, that the suitwithout seeking recovery of possession is not maintainable. Insupport of the said contentions, the learned AAG relied on adecision of the Apex Court reported in 2008 (4) Supreme CourtCases 594 (ANATHULA SUDHAKAR v. P.BUCHI REDDY). But the saiddecision is not applicable tot he facts of these cases, sincepossession of the suit property has been found in favour of theplaintiff. 118. Learned AAG submitted that regarding the identificationof the suit property apart from producing documents, which set outboundaries in vague manner, no acceptable evidence has beenadduced by the plaintiff to identify and locate the suit property.He further submitted that even the reports of the AdvocateCommissioner relied on by the plaintiff are not of any use inlocating the property. He further submitted that the plaintiffhas failed to identify the suit property and hence he is notentitled to a decree. In support of the said contention, he basedreliance on AIR 2003 Madras 374 (John Sylem v. ChanthanamuthuPillai and Ors.). But in the cases hand, the Commissioner hasidentified the property and though the Commissioner has found theextent of the suit property little more than 4.91 acres that willnot affect the credibility of the Advocate Commissioner's report.Apart from the evidence of P.W.1, the evidence of P.W.2 is there,which clearly establishes the identity of the suit property.These aspects have been elaborately considered by the trial court,but those reasons have not been properly considered by the lowerappellate court and the lower appellate court has not recordedacceptable reasons for reversing the finding of the trial court. 119. Mr.T.R.Mani, learned Senior Counsel for the appellant,basing reliance on a decision reported in AIR 1923 PC 217 = 82 IC879 (referred to supra) contended that patta is granted byZamindar as a title deed to the tenant. The said decision hasbeen followed by this Court in the decision reported in AIR 1931Madras 613 (referred to supra). https://hcservices.ecourts.gov.in/hcservices/

120. Learned AAG sought to contend that Ex.A-2 series pattashave not been issued in accordance with the provisions containedunder Section 50 of the Estate Land Act, 1908 and it does notcontain the details as required under Section 51 of the Act. Hefurther contended that Ex.A-2 series pattas have not been issuedby Zamindarini in accordance with Section 54 of the Estate LandAct, 1908 and the same have not been registered and signed byKarnam, as contemplated under Section 58 of The Estate Land Act,1908 (Act 1 of 1908) and therefore contended that those documentshave not been issued in in confirmity with the Act 1 of 1908 andtherefore no evidentiary value could be placed on it. He alsocontended that no evidence is available on record to show thatThiru.Vijayaranga Mudaliar complied with Section 50(2) of TheEstate Land Act, 1908 (Act 1 of 1908). He further contended thatthe lower appellate court has pointed out that the signature ofGnanambal, the Zamindarini of Pallapatti Village, contained inEx.A-2 series pattas, varies with one another and therefore thelower appellate court has rightly disbelieved Ex.A-2 series.Countering the said submissions, Mr.T.R.Mani, learned SeniorCounsel for the appellant, submitted that the Governmentauthorities before whom Ex.A-2 series pattas had been produced didnot dispute the genuineness of Ex.A-2-series, but the request forpatta by the plaintiff before the authorities was rejected not onthe ground that Ex.A-2 series pattas are not genuinene but on theground that the character of the land is communal and not ryoti.He, by relying to Ex.A-33 submitted that in Ex.A-33 it has beenmentioned that the claim of patta by the vendor of the plaintiffhas already been considered on merits under Section 11 of the Actand rejected by the erstwhile Board of Revenue in its proceedingsNo.BP.999/1953, dated 20.07.1953 on the ground that the originalcharacter of the land is non-ryoti land (communal) and theassignment by Zamin is legally invalid. As far as the contentionof the respondents that ExA2 series – pattas have not been signedby the karnams concerned, learned Senior Counsel Mr.T.R.Maniplaced reliance on Sections 50, 51 and 58 of the Estates Land Actand submitted that obtaining pattas is compulsory, but executionof muchalika is optional. He also relied upon two references inthe Text Book on Madras Estates Land Act by Mr.P.DuraiswamyIyenger at page 174, which read as follows :'58. The Karnam of the village in which the holdingis situated shall regularly sign and register puttahsand muchalkas in respect of the holding.Meaning of the words : Karnam is the VillageAccountant (See regulation XXIX of 1802). Holding, seeSection 3(3). Object of the Section: This section recognises thenecessity for a proper registration of puttahs and https://hcservices.ecourts.gov.in/hcservices/ muchalkas in the Zamindar's office or on behalf of theZamindar in the Karnam's office. Though the duty ofsigning and registering puttahs and muchalkas has beenimposed on the Karnam, no provision has been made forcompelling such registration.Puttahs are valid, even if not signed : The absenceof the Karnam's signature in puttahs and muchalkas doesnot invalidate them; and a suit for rent may bemaintained, founded on a muchalka not signed orregistered by the Karnam.'121. In the decision reported in the case of Venkatasubba RaoVs. Sesha Reddy (reported in 4 Madras H.C.R.243), which isreferred to by Mr.P.Duraiswamy Iyengar in the aforesaid passage,it has been laid down as follows : 'In this case, we understand the fact to be thatthe moochilka sued on was given in exchange for a puttahas required by Sections 3 and 4 of the Madras Act VIIIof 1865. If that be so, we are of the opinion that thesuit is maintainable under Section 7 of the Act. Wethink that Section 6 was intended to impose uponkurunams the duty of signing and registering, but nomore. Had it been intended to be a condition of theright to sue, it would have been expressly so providedin Section 7, and a provision made for compellingregistration.' 122. Placing reliance on the said decision, Mr.T.R.Mani,learned Senior Counsel submitted that the absence of Karnam'ssignature in the pattas does not invalidate them and even if theKarnam has not signed in the muchalikas, it does not invalidatethe same and the suit for rent may be entertained even ifmuchalika is not registered nor signed by the Karnams. LearnedSenior Counsel Mr.T.R.Mani further submitted that the same viewhas been expressed by Mr.Vedandhachari in the book on the MadrasEstates Land Act. Learned Senior Counsel referred page 328 of thatbook wherein the following passage is found : ''58.The karnam of the village in which theholding is situated shall regularly sign and registerpattas and muchilikas in respect of the holding.Scope of the Section : This Section provides thatpattas and muchlikas are to be signed and registered bythe Karnam. There was a similar provision under Section6 of the Rent Recovery Act, 8 of 1865, which provided'patas and muchilikas shall be regularly signed andregistered by the Karnam of the village in which thelands engaged for are situated.' https://hcservices.ecourts.gov.in/hcservices/ It is not a condition precedent to the validity ofa patta or muchilika that the same should be signed andregistered by the Karnam. The omission of the Karnam tosign pattas and muchilikas does not invalidate pattasand muchilikas. This question arose in a case underSection 6 of the Rent Recovery Act (a). In this case,the muchilika sued on was given in exchange for a pattaas required by Sections 3 and 4 of Madras Act VIII of1865. The pattas and muchilikas were not signed by theKarnam. The objection was taken to the validity of thepatta and muchilika. It was held that Section 6 wasintended to impose upon Karnams the duty of signing andregistering, but no more. Had it been intended to be acondition of the right to sue, it would have beenexpressly so provided.“ 123. The contention of the learned Senior Counsel Mr.T.R.Manithat the relevant section is only Section 51 of the Act and notSection 58 and that the Trial Court has correctly relied uponSection 51 whereas the Lower Appellate Court has committed anerror in relying upon Section 58 of the Act and therefore, thefindings of the Lower Appellate Court with regard to A2 series –pattas cannot be sustained. The said contention of the learnedSenior Counsel merits acceptance. 124. In the light of the aforesaid submissions made by thelearned Senior Counsel for the appellant, Mr.T.R.Mani and in thelight of the decision reported in 4 MHCR 243 (cited supra), theaforesaid contention of the learned Additional Advocate Generaland Mr.R.Muthukumarasamy, learned Senior Counsel cannot besustained. Even assuming that ExA2 series – pattas do not bear thesignature of the Karnams concerned, the same will not invalidatethe pattas. According to Mr.T.R.Mani, learned Senior Counsel forthe appellant, it is clear that even in ExA33, the genuineness ofthe patta issued under ExA2 series by the Zamindarini to the saidMr.S.Vijayaranga Mudaliar was not doubted, therefore, submittedthat the finding of the lower appellate court on ExA2 series isperverse and unsustainable. He further, by basing reliance on AIR1923 PC 217 (referred to supra) submitted that where it iscontended that an entry in the Records of Right is wrong, it lieson the party so contending to prove that it is wrong and not onthe opposite party to prove that it is right. He furthersubmitted that when the defendants questioned the genuineness ofEx.A-2 it is for them to prove that Ex.A-2 is not genuine byproducing the zamin records. Similarly, Mr.T.R.Mani, learnedSenior Counsel for the appellant, submitted that when thegenuineness of Exs.A-3 and A-4 are challenged the same principlewill apply and the defendants ought to have produced the originalrecords available with them and disproved the same. This legalprinciple has not been kept in mind by the lower appellate courtand has wrongly thrown the burden on the plaintiff as far as the https://hcservices.ecourts.gov.in/hcservices/ proving of Ex.A-2 series pattas, Exs.A-3 and A-4 are concerned.Therefore, he submitted that the lower appellate court hascommitted an error of law in rejecting Ex.A-2-pattas' series,Exs.A-3 and A-4. Mr.T.R.Mani, learned Senior Counsel for theappellant, submitted that after the abolition of the estate theold zamin records are in the custody and control of State andinspite of notice to produce the relevant records, the same havebeen suppressed by the Government with ulterior motive and theexplanation given is that the records are not available, which isobviously an attempt to evade liability and therefore necessaryadverse inference has to be drawn against the defendants.Mr.T.R.Mani, learned Senior Counsel for the appellant, submittedthat the same reasoning would apply to Ex.A-3 chitta and Ex.A-4-settlement register extract for Fasli 1359 as well. Mr.T.R.Mani,learned Senior Counsel for the appellant, rightly submitted thatthe attempt of the lower appellate court to reject the zaminpattas and records as though they were not genuine is erroneous,as the defendants had no such case at the time of trial or in theprior proceedings.125. Mr.T.R.Mani, learned Senior Counsel for the appellant,further rightly submitted that Ex.A-2 series contains threegenuine pattas issued in faslis 1350, 1352 and 1356 and the fourthin that series is a hand written copy of the patta issued forfasli 1356; the copy naturally would not contain the signaturesof the landholder or the karnam, but the lower appellate courtwithout even looking into this had discredited ExA2 series pattason the ground that the signatures therein varied from the othersignatures of the Zamindarini. 126. The three pattas contain the signature of Zamindarini –Gnanambal. The original patta for Fasli 1356 as well as a handwritten copy of the same have been filed. The hand written copyseems to have been filed due to an inadvertant mistake. In thehand written copy the name of the Zamindarini Gnanambal has beenwritten, but the same appears to have been treated or taken as hersignature by the lower appellate court and the same has beencompared with the signatures of Gnanambal found in the pattas forFaslis 1350, 1352 and 1356 and this mistake on the part of thelower appellate court has mislead that Court to come to anerroneous conclusion that the signatures of Gnanambal found inEx.A-2-series pattas varies with one another. A perusal of thesame, by this Court does not reveal any variation in the signatureof Gnanambal. Therefore, the finding to the contrary recorded bythe lower appellate court is perverse and patently erroneous.127. The reasons assigned by the defendants for nonproduction of the original records as demanded by the noticeissued by the plaintiff is that those documents are not available.Such a contention cannot be sustained in the light of what isstated by the Tahsildar, Salem, in Ex.B-71. In that, he has https://hcservices.ecourts.gov.in/hcservices/ stated as follows:-"... In this connection, I submit that the old records arenot available in this office. The old zamin records areavailable with the Estate Manager, Salem, and the AssistantSettlement Officer, Dharapuram." Therefore, in the light of the above, the contention of theMr.T.R.Mani, learned Senior Counsel for the appellant that thedefendants have burked the original zamin records has to beaccepted. When the Tahsilar in his report to the Collector hasstated that the old zamin records are available with the EstateManager, Salem, and the Assistant Settlement Officer, Dharapuram,the defendants on receiving a notice to produce those documentsfrom the plaintiff ought to have produced those documents tosubstantiate their contention that Ex.A-2 series pattas and Exs.A-3 and A-4 are not genuine. When the defendants have admittedlynot produced those documents an adverse inference under Section114 (g) of the Evidence Act ought to have been raised by the lowerappellate court. But it has failed to do so, inspite of the factthat the trial court has rightly raised such an inference. In thedecision reported in AIR 1964 SC 136 (referred to supra) a FullBench of the Apex Court, in paragraph 20, has laid down asfollows:-"(20) Now coming to the documentary evidence, as we havealready indicated, all the relevant documents admitted tohave been in existence have not been placed before theCourt and an adverse inference, has therefore, to bedrawn against the appellant."The said legal principle has failed to be kept in mind by thelower appellate court which has resulted in miscarriage of justiceas the lower appellate court has wrongly thrown the burden on theplaintiff. Therefore, a substantial question of law arises forconsideration in the appeals. 128. Learned AAG as well as Mr.R.Muthu Kumarasamy, learnedsenior counsel for the third respondent, submitted that theplaintiff has not produced the relevant adangal extracts to showthat both Vijayaranga Mudaliar as well as the plaintiff were inpossession of the suit property and were cultivating the same andit is not open to the plaintiff to contend that the defendantsbeing the Government authorities and who are in possession of theoriginals of the adangals ought to have produced the same, thelearned senior counsels submitted that the burden is on theplaintiff to prove his case. To rebut the aforesaid contention,Mr.T.R.Mani, learned Senior Counsel for the appellant, referred toa full bench decision of the Apex Court reported in AIR 1968 SC1413 (referred to supra). In the said decision, the Apex Court,in paragraphs 5 and 6, has been laid down as follows:- https://hcservices.ecourts.gov.in/hcservices/ "5. ... We are unable to accept this argument ascorrect. Even if the burden of proof does not lie ona party the Court may draw an adverse inference if hewithholds important documents in his possession whichcan throw light on the facts at issue. It is not, inour opinion, a sound practice for those desiring torely upon a certain state of facts to withhold fromthe Court the best evidence which is in theirpossession which could throw light upon the issues incontroversy and to rely upon the abstract doctrine ofonus of proof. In Murugesam Pillai v. Gnana SambandhaPandara Sannadhi, 44 Ind App 98 at p. 103 = (AIR 1917PC 6 at p.8 ) Lord Shaw Observed as follows:-“A practice has grown up in Indian procedure ofthose in possession of important documents orinformation lying by, trusting to the abstractdoctrine of the onus of proof, and failing,accordingly, to furnish to the Courts the bestmaterial for its decision. With regard tothird parties, this may be right enough – theyhave no responsibility for the conduct of thesuit; but with regard to the parties to thesuit it is, in their Lordships' opinion aninversion of sound practice for those desiringto rely upon a certain state of facts towithhold from the Court the written evidence intheir possession which would throw light uponthe proposition.”This passage was cited with approval by this Court ina recent decision – Biltu Ram v. Jainandan Prasad,Civil Appeal No.941 of 1965. D/- 15-4-1968 (SC). Inthat case, reliance was placed on behalf of thedefendants upon the following passage from thedecision of the Judicial Committee in Mt. Bilas Kunwarv. Desraj Ranjit Singh, 42 Ind App 202 at p. 206 =(AIR 1915 PC 96 at p.98) :“But it is open to a litigant to refrain fromproducing any documents that he considersirrelevant; if the other litigant isdissatisfied it is for him to apply for anaffidavit of documents and he can obtaininspection and production of all that appearsto him in such affidavit to be relevant andproper. If he fails to to do neither he northe Court at this suggestion is entitled todraw any inference as to the contents of anysuch documents.”6. But Shah, J., speaking for the Court, stated :“The observations of the Judicial Committee donot support the proposition that unless a partyis called upon, expressly to make an affidavit https://hcservices.ecourts.gov.in/hcservices/ of documents and inspection and production ofdocuments is demanded, the Court cannot raisean adverse inference against a partywithholding evidence in his possession. Such arule is inconsistent with illustration (g) ofS. 114 of the Evidence Act, and also animpressive body of authority."129. Thus the settled position of law is that even the burdenof proof does not lie on a party, the Court may draw an adverseinference, if he withholds important documents in his possessionwhich can throw light on the facts at issues. It has to bepointed out that it is not the case of the defendants that theoriginals of the zamin records as well as the adangal extracts forthe period from 1950 are not available with them. Therefore, whenthe defendants, who are the Government authorities have withheldimportant documents in their possession. which can throw light onthe facts at issue, an adverse inference ought to have been drawnunder Section 114 (g) of the Evidence Act, as is laid down in AIR1968 Supreme Court 1413 (referred to supra). The contrary viewtaken by the lower appellate court and the reasonings assigned byit for not drawing the adverse inference against the defendantscannot be sustained.130. For the aforesaid reasons, this Court is of theconsidered view that the findings recorded by the trial court onEx.A-2-series pattas and Exs.A-3 and A-4 are supported byacceptable reasons, whereas, the reversal of that findings by thelower appellate court cannot be sustained, as the reasons assingedby the lower appellate court are not sound and not in accordancewith the said principles of law, as is pointed out above.Therefore, the judgment of the lower appellate court warrantsinterference by this Court.131. As rightly contended by Mr.T.R.Mani, learned SeniorCounsel for the appellant, in the light of Ex.A-2-series pattas,Exs.A-3, A-4 and A-1, the plaintiff's possession of the suit landderived from the vendor cannot be doubted or disputed. However,the lower appellate court relied upon Exs.B-12 to B-41-adangalextracts for the period 1968 to 1999 to hold that Kist have notbeen paid for the land in question. In this context, it ispertinent to point out that the said adangal extracts themselveswould show that Survey No.163 was registered as eri poramboke andtherefore Kists could not be levied or collected for the saidsurvey number. Further, Exs.B-29 to B-41 were after the suit andtherefore those documents would not be admissible. In support ofthe said contention, Mr.T.R.Mani, learned Senior Counsel for theappellant, relied upon a decision of the Apex Court reported inAIR 1983 SUPREME COURT 684 (referred to supra), wherein it is laiddown as follows:- https://hcservices.ecourts.gov.in/hcservices/ “It is equally well settled that declarations orstatements made post litem motam would not be admissiblebecause in cases made ante litem motam, the element ofbias and concoction is eliminated. Before, however, thestatements of the nature being ante litem motam theymust be not only before the actual existence of anycontroversy but they should be made even before thecommencement of legal proceedings.”132. In the light of the law laid down by the Apex Courtreported in AIR 1983 SUPREME COURT 684 (referred to supra) thedocuments which have come into existence after the existence ofcontroversy ought not to have been admitted in evidence. In thesecases, even according to the defendants, Vijayaranga Mudaliar, issaid to have applied for issue of ryotwari patta under Section 11of the Act 26 of 1948 and the same was rejected by the erstwhileBoard of Revenue, by its order dated 20.7.1953 in BP.999/1953.Subsequently, the plaintiff, as a purchaser from VijayarangaMudaliar, had applied for ryotwari patta and thus it is clear thatthe controversy as to whether Vijayaranga Mudaliar or theplaintiff are entitled to ryotwari patta on the basis of Ex.A-2series pattas, Exs.A-3, A-4 and Ex.A-1-sale deed had come intoexistence even before 1953 and therefore all the documents,proceedings which have come into existence after 1953, which aresought to be relied upon by the defendants, ought not to have beenadmitted in evidence, as per the above said decision. Therefore,the lower appellate court erred in placing reliance upon Exs.B-12to B-41 adangal extracts and other exhibits which have come intoexistence after 1953. 133. As rightly contended by Mr.T.R.Mani, learned SeniorCounsel for the appellant, the adangal extracts for the earlierfaslis between 1951 and 1967 have been purposely suppressed; hadthe same been produced they would have shown that VijayarangaMudaliar was in possession and was cultivating the lands. In ExA2series, the suit property has been described as 'chinna erikaraioram tharisu and karaimedu tharisu'. But, these expressionshave not been properly construed by the Lower Appellate Court. Thecontention of the defendants that the aforesaid expressions wouldshow that the said property is within the water spread area of thetank cannot be countenanced. As rightly contended by the learnedsenior counsel, the Lower Appellate Court has committed a seriouserror in incorrectly holding that the suit property is part oferi. Further, since ExA2 series were marked without objectionthrough PW1 and the same have also been mentioned in ExA1 saledeed and in the suit notice-Ex.A-7, it cannot now be contendedthat ExA2 series are not genuine, that too without any properpleadings. It was strenuously contended by the learned AdditionalAdvocate General as well as Mr.R.Muthukumarasamy, learned SeniorCounsel that by producing ExA5, the plaintiff himself has admittedthat the extent of achuvaneri is 24.62 acres and the suit property https://hcservices.ecourts.gov.in/hcservices/ forms part of achuvaneri. 134. Countering the said submission, Mr.T.R.Mani, learnedSenior Counsel submitted that PW1 has stated that ExA5 was givento him by the said Mr.S.Vijayaranga Mudaliar at the time when thesale deed was executed in his favour in 1952. But, actually, thatdocument itself will show that it could not have been given to himon that date, because the survey number is mentioned as 163, whichcame into existence only in 1963, but the document was executed in1952 and therefore, though PW1 has stated that the document wasgiven by the said Mr.S.Vijayaranga Mudaliar in 1952, it could nothave been given by him and the said statement is a wrongstatement. When the established facts show that this statement ofPW1 is wrong, it cannot be contended by the defendants that theplaintiff has admitted by producing ExA5 that the extent ofachuvaneri is only 24.62 acres. 135. In this context, it is pertinent to point out that ExA5is a field map of the Revenue Department pertaining to S.No.163and to describe the suit property and to point out its location,the map has been used by the plaintiff and the suit property hasbeen separately shown by marking it in a shaded colour and byshowing the extent of the suit property as 4.91 acres. Simplybecause the field map has been used by the plaintiff to describethe suit property, it does not mean that the plaintiff hasadmitted that the suit property forms part of achuvaneri or thatthe extent of achuvaneri is 24.62 acres. Therefore, this Court isunable to accept the contentions of the learned AdditionalAdvocate General and Mr.R.Muthukumarasamy, learned Senior Counsel.136. Ex.A-3 chitta extract for fasli 1359 has been marked asEx.A-8 before the Estate Manager and the same affirms thegenuineness of ExA2 series. In ExA3 also, the suit property hasbeen described as 'chinna eri karaioram tharisu and karaimedutharisu'. ExA4 settlement register extract for fasli 1359 (1948-1949) mentions patta No.200 and the pattadar's name has been givenas Salem Mr.S.Vijayaranga Mudaliar and the extent of the land isshown as 4.91 acres and the kist is mentioned as 11-3-0. The saiddocuments show that the suit property was in possession andenjoyment of the said Mr.Vijayaranga Mudaliar till his sale infavour of the plaintiff under ExA1. On the other hand, thedefendants challenged the genuineness of Exs.A-3 and A-4. But, aspointed out above, the burden is on them to show that Exs.A-3 andA-4 are not genuine and that could have been done by producing theoriginals of the said documents, which were admittedly availablewith the defendants, as pointed out above. The non production ofthe originals of Exs.A-3 and A-4 will definitely lead to raisingof an adverse inference under Section 114 (g) of the Evidence Act,but instead the lower appellate court has, for reasons recorded inits judgment, had disbelieved Exs.A-3 and A-4 without drawing an https://hcservices.ecourts.gov.in/hcservices/ adverse inference under Section 114 (g) of the Evidence Actagainst the defendnats as pointed out above and therefore thisCourt is of the considered view that the lower appellate court hascommitted a serious error of law.137. Mr.T.R.Mani, learned Senior Counsel, by referring toSection 3(d) of the Act 26 of 1948, submitted that the proviso toSection 3(d) of the Act reads as follows :'The Government may, after removing any obstruction thatmay be offered forthwith take possession of the estate,and all accounts, registers, pattas, muchilikas, maps,plans and other documents relating to the estate whichthe Government may require for the administrationthereof :Provided that the Government shall not dispossess anyperson of any land in the estate in respect of whichthey consider that he is prima facie entitled to aryotwari patta-(i)if such person is a ryot, pending the decision ofthe Settlement Officer as to whether he is actuallyentitled to such patta;(ii)if such person is a landholder, pending thedecision of the Settlement Officer and the Tribunal onappeal, if any, to it as to whether he is actuallyentitled to such patta.'Learned Senior Counsel further submitted that as per Section 64 ofthe Act, the rights of the owner or occupier are not to beaffected by temporary discontinuance of possession or occupation,as the plaintiff is a transferee from the said Mr.S.VijayarangaMudaliar and has got all the rights against the Government.Therefore, according to learned Senior counsel, the claim of thedefendants that they had taken possession of the suit propertycannot be sustained. Learned Senior Counsel further submitted thatin view of the aforesaid provision, the finding of the LowerAppellate Court that on coming into force of the Act, theplaintiff is dispossessed is erroneous and totally perverse. Theaforesaid contention of the learned senior counsel meritsacceptance.138. As rightly contended by Mr.T.R.Mani, learned SeniorCounsel for the appellant, in Ex.B-63 – G.O.No.502 CT & RE dated09.05.1984, a tank has been mentioned as 'Chinna eri' called as'achuvaneri'. But, according to the learned senior counsel,'chinna eri' and 'achuvaneri' are different. In paragraph 4, ithas been further observed that during the settlement, the tank hasbeen classified as eri poramboke though patta No.200 has beenissued to the plaintiff. In that Government Order, it has beenobserved that since it was an eri, the same has been classified aseri poramboke during the settlement. Learned Senior Counsel https://hcservices.ecourts.gov.in/hcservices/ further submitted that the issue of patta by the Zamindarini hadbeen admitted in ExB63 and therefore, the defendants cannot nowseek to contend that ExA2 series pattas are bogus or not genuine.The aforesaid contention of the learned senior counsel meritsacceptance.139. As rightly contended by Mr.T.R.Mani, learned SeniorCounsel for the appellant, as per Section 9(2) of the TamilnaduSurvey and Boundaries Act (Act 18 of 1923), notice to theregistered holders at that time should be issued beforeundertaking the survey. But, no notice was issued either to thesaid Mr.S.Vijayaranga Mudaliar or to the plaintiff. From Ex.B-76series, there is no proof that the plaintiff was served with thenotice. But even the notice to the Zamindar has been receivedonly by the Estate Manager. By placing reliance on Chain Surveyand Land Records Manual Part II (page 14 paragraphs 5 and 19),learned Senior Counsel for the appellant submitted that the limitof error is only 5%; for every 100 meters, the permitted error is2 meter ie. 2%. But, in this case, admittedly, the extent ofachuvaneri is originally 15 acres. But after resurvey andsettlement, the extent of achuvaneri is shown as 24.62 acres andtherefore submitted that this is impermissible as per the ChainSurvey and Land Records Manual, since the error is nearly about75%. Learned Senior Counsel submitted that when it is establishedthat no notice was served on the ryot while undertaking theresurvey and when the error itself is about 75%, it is for thedefendants to explain as to how 15 acres became 24.62 acres. But,the defendants miserably failed to either plead or prove byacceptable evidence as to how the original extent of 15 acres ofachuvaneri became 24.62 acres. Mr.T.R.Mani, learned Counselsubmitted that the three witnesses examined on the side of thedefendants have no personal knowledge about the facts of the case,since they have been examined several years after the re-surveyand settlement. Learned Senior Counsel referred to the evidence ofDW1 and pointed out that DW1, in his cross examination, hasadmitted that after re-survey, the eri has become 24.62 acres andhe has admitted that he does not know anything about the propertyin question. He has admitted in his cross examination that paimashnumber need not necessarily be given in the pattas and the name ofthe land may also be given. DW1 has also admitted that the Zaminrecords are Government records. Therefore, learned Senior Counselsubmitted that ExA2 series – pattas issued by the Zamindarini areGovernment records. DW1 has also admitted that he does not knowwhether the notice was given to ryot or not before re-survey.Learned Senior Counsel pointed out that DW2 has admitted that thesurvey was completed in 1963, but he was examined only in 1983 andhe has no personal knowledge about the survey at all. In the lightof the aforesaid facts, the contention of the learned counsel forthe appellant that the classification of the suit property as eriporamboke is erroneous merits acceptance. In this context, it ispertinent to point out that when admittedly ExB2 shows that the https://hcservices.ecourts.gov.in/hcservices/ extent of achuvaneri was 15 acres as per the revenue recordsbefore resurvey, the burden lies heavily on the defendants to showas to how the extent of achuvaneri became 24.62 acres. But, thedefendants have not discharged that burden. 140. It is pertinent to point out that in Ex.A-33 it isstated that since the land for which patta has been sought for byVijayaranga Mudaliar had been classified as communal land, hisrequest had been rejected in 1953. As is seen from Ex.B-2, beforethe resurvey and settlement, as per the Revenue Records, theextent of achuvaneri was only 15.00 acres and not 24.62 acres,only after the resurvey and settlement, the total extent ofachuvaneri has been shown as 24.62 acres. Therefore, the saidobservation contained in Ex.A-33 that the land was communal landwould not be correct. It is also pertinent to point out that inparagraph 8 of the written statement filed by the first defendantin O.S.No.342 of 1996 it is stated as follows:-“In nature and character from 1962, the land bearingS.F.No.163 is classified as eri poramboke and the totalextent of achuvana eri is 24.62 acres including the suitproperty of an extent of 4.91 acres.”Thus, even according to the first defendant, only from 1962, thenature and character of the land bearing Survey No.163 isclassified as eri poramboke and the total extent of 24.62 acresincludes the suit property. Therefore what is contained in Ex.A-33 would not be true. Nothing prevented the defendants fromproducing the order of the Board of Revenue, dated 20.7.1953 inBP.999/1953 rejecting the request of the Vijayaranga Mudaliar forryotwari patta and in the absence of that the ground for rejectioncannot be presumed. 141. The contention of the learned AAG that Ex.A-23 is atruncated document and has been created for the purpose of thecase and therefore no reliance can be placed on it cannot besustained, since, admittedly, Ex.A-23 is a part of Ex.B-2 andEx.B-2 has been produced by the defendants. Even if Ex.A-23 isdiscarded as contended by the learned AAG, Ex.B-2 can be reliedupon, as has been rightly done by the trial court. A perusal ofEx.B-2 shows that the original extent of achuvaneri was only 15.00acres and the extent has been shown as 24.62 acres, only after theresurvey and settlement. The contention of the plaintiff is thatin the resurvey and settlement, the plaintiff land measuring 4.91acres have been wrongly included in the extent of achuvaneriwithout any notice to him. As pointed out above, no noticewhatsoever has been served on the plaintiff during the resurveyand therefore the inclusion of the suit property of the plaintiffin the extent of achuvaneri can be questioned by the plaintiff.142. As far as the possession of the suit property is https://hcservices.ecourts.gov.in/hcservices/ concerned, as has been pointed out above, the contention of thelearned AAG that on the coming into force of the Act 26 of 1948the title as well as the possession of the Estate vest with theGovernment cannot be countenanced in the light of the decisionreported in 1969 (II) MLJ 281 (referred to supra). 143. In this context, it is pertinent to point out that thereis absolutely no evidence on the side of the defendants as to whenVijayaranga Mudaliar or the plaintiff were dispossessed. Nowitness has been examined on the side of the defendants regardingtaking over of possession from Vijayaranga Mudaliar or theplaintiff. When it is the case of the defendants that they havetaken over possession and the plaintiff has been dispossessed, theburden is on them to show as to when possession was taken. As perthe GOs passed by the Government, achuvaneri measuring an extentof 24.62 acres has been handed over to Salem Municipal Corporationand later to Anna Transport Corporation. The relevant GOs doesnot show the date on which the physical possession of the entireextent of 24.62 acres was handed over either to Salem MunicipalCorporation or to the Anna Transport Corporation. Admittedly,various proceedings before the Revenue Authorities and civillitigations were pending between the parties. Interim orders havebeen passed by the Revenue Authorities as well as by the HighCourt in various proceedings as is enumerated in the submissionsmade by Mr.T.R.Mani, learned Senior Counsel as well asMr.P.Wilson, learned AAG and Mr.R.Muthukumarasamy, learned seniorcounsel.144. As rightly pointed out by the trial court, interiminjunction has been granted in O.S.No.34 of 1985 and subsequentlythe same had been made absolute. During the pendency of the firstappeals before the lower appellate court, though stay had beengranted, it is not the case of the defendants that pending thefirst appeal, the plaintiff was dispossessed. Admittedly, duringthe pendency of the second appeals, injunction has been granted infavour of the appellant and therefore there is no force in thecontention of the learned AAG that the plaintiff was never inpossession of the suit property.145. In this context, it is relevant to point out that aperusal of Ex.B-1 shows that only an extent of 19.62 acres washanded over to Anna Transport Corporation out of the extent of24.62 acres. When, according to the defendants, the entire extentof 24.62 acres had been given to Salem Municipal Corporation andthereafter to Anna Transport Corporation it is not explained as towhy only 19.62 acres alone has been given to Anna TransportCorporation. It could be very well inferred from Ex.B-1 thatsince the first defendant was not in possession of the entireextent of 24.62 acres, but only in possession of 19.62 acres, thesame had been handed over to Anna Transport Corporation, theremaining five acres would represent, in the considered view of https://hcservices.ecourts.gov.in/hcservices/ this court, the suit property, which measures 4.91 acres.Therefore, Ex.B-1 is a vital document, which will go to show thatthe plaintiff was in possession of 4.91 acres. This documentEx.B-1 has not been properly considered by the lower appellatecourt which has resulted in recording incorrect finding regardingpossession. The lower appellate court has placed reliance onEx.B-4 dated 23.01.1995. Ex.B-4 is the copy of the statement saidto have been given by the plaintiff before the Tahsildar, Salem.In Ex.B-4, it is stated as follows:-"vd; bgaUf;F gl;lh cs;s epyj;ij kPz;Lk; vd;dplk;xg;gilf;FkhW nfhhp bra;Js;s kD rk;ke;jkhf vd;DilavGj;JK:ykhd thf;FK:yj;ij ,d;W (23/1.95) M$h;gLj;jpa[s;nsd;/mjid ghprPypj;J vd; bgaUf;F gl;lh tH';f Mtz bra;a[khWnfl;Lf;bfhs;fpnwd;/"But it has not been explained as to why the original of Ex.B-4 hasnot been produced. Further, it is pertinent to point out thatEx.B-4 has not been shown to P.W.1 / the plaintiff and he had notbeen cross-examined on the contents of Ex.B-4 and therefore therewas no opportunity for P.W.1 / the plaintiff to explain thecircumstances under which the statement was given by him orwhether he really gave such a statement, etc., and therefore thelower appellate court erred in basing reliance on Ex.B-4 to cometo the conclusion that the plaintiff had lost possession of thesuit properties. 146. As has been rightly pointed out by Mr.T.R.Mani, learnedSenior Counsel for the appellant, Exs.C-1 to C-3 report and planof the Advocate Commissioner, who was appointed at the instance ofthe defendants, points out the existence of various physicalfeatures as mentioned in the plaints. The existence of Well,borewell, concrete tank, hut etc., supports the case of theplaintiff.147. The case of the defendants, as contended by the learnedAAG, is that number of persons had encroached into achuvaneri andput up huts and Panchayat had dug up the Well. There isabsolutely no evidence on record to show that the Well or Borewellwas dug by the Panchayat. Though in Ex.B-28, the removal ofencroachers from Chinnaeri is mentioned and in Ex.B-28 it ismentioned as if the entire extent of 24.62 acres was handed overto Anna Transport Corporation, the same could not be correct, inthe light of Ex.B-1. The contents of Ex.B-28, which is contraryto Ex.B-1, makes this court to doubt about the genuineness ofEx.B-28.148. Further, the defendants relied upon Ex.B-43 to show thatnumber of encroachers were evicted from the suit property, but aperusal of the document shows that the encroachers were removed https://hcservices.ecourts.gov.in/hcservices/ from achuvaneri. Achuvaneri, even according to the defendants,was originally of an extent of 15.00 acres and subsequently afterresurvey and settlement its extent is 24.62 acres. From thisdocument, this Court cannot infer from which part of achuvaneri,the encroachers were removed. It is not mentioned in the documentthat the encroachers were removed from the suit property andtherefore the contention of the learned AAG that several personshad encroached into the suit property and such encroachers wereevicted from the suit property and possession was taken, cannot becountenanced. Similarly the reliance placed by the lowerappellate court on Ex.B-65 is also erroneous. The contents ofEx.B-65 are contrary to Ex.B-1. Ex.B-65 is dated 28.02.1992. InEx.B-1 it is stated that as on the date, the entire extent of24.62 acres in Survey No.163 of Pallapatti Village is under thecontrol of Salem Municipality, which is contrary to Ex.B-1. Sincein Ex.B-1, only 19.62 acres was ear-marked for construction of abus-stand at achuvaneri and for construction of bus-depot, thecontents of Ex.B-65 are contrary to Ex.B-1.149. In this context, it is pertinent to point out that thetrial court has considered the relevant evidence on record and hasrightly held that the plaintiff continues to be in possession ofthe suit property and he was never dispossessed. Further, it hasto be pointed out that admittedly the suit property remaineduncultivated for some number of years, after the issuance ofvarious Government Orders by the Government and garbage was beingdumped and the land was found to be uncultivated by the AdvocateCommissioner and therefore it is clear that the land is vacant.In such circumstances, when title has been found in favour of theplaintiff / appellant possession will follow title. This legalprinciple has not been applied by the lower appellate court andtherefore the finding of the lower appellate court that theplaintiff / appellant was not in possession of the suit propertyis erroneous and the same has to be set-aside and accordingly,set-aside. 150. As far as the question of limitation is concerned, thecontention of the learned AAG as well as Mr.R.Muthukumarasamy,learned senior counsel, submitted that limitation should becalculated from the date of passing of various Government Ordersrejecting the request for ryotwari patta by Vijayaranga Mudaliarand the plaintiff. But this Court is unable to accept the saidcontention of the learned senior counsels. In the suits, therejection of ryotwari patta is not in question, but the suits havebeen field to establish the title of the plaintiff. Once title isfound in favour of the plaintiff, then, automatically ryotwaripatta has to be granted to him. As has been laid down in (2000(I) LW 154) (referred to supra) mere classification of particularland in the revenue records is not, by itself, conclusive.Therefore, the contention of Mr.R.Muthukumarasamy, learned seniorcounsel, that since the suit property has been classified as eri https://hcservices.ecourts.gov.in/hcservices/ poramboke long back, the suit filed in the year 1985 fordeclaration of title is barred by limitation, cannot becountenanced.151. Now that possession has been found in favour of theplaintiff and there is absolutely no evidence to show that he wasdispossessed and the suit has been filed since there was animminent threat to the possession of the plaintiff, as thedefendants attempted to take possession, and therefore, the suitis well within time. It cannot be said that it is barred bylimitation. If there is material to show that the plaintiff wasdispossessed and he was out of possession for twelve years and thesuit has been filed after twelve years, then it can be said thatthe suit has been filed beyond the period of limitationprescribed, but that is not the case of the defendants here andtherefore the finding of the lower appellate court that the suitis barred by limitation cannot be sustained. Since, as pointedout above, no notice whatsoever has been served on the plaintiffwhen the resurvey was undertaken under the Tamil Nadu Surveys andBoundaries Act, the question of limitation under Section 14 willnot arise and therefore the finding to the contrary recorded bythe lower appellate court is unsustainable. 152. As far as the pleas based on Order II Rule 2 CPC andOrder IX Rule 9 CPC are concerned, the same were not admittedlyraised in the pleadings and therefore no issue was framed by thetrial court on that, but, yet, the lower appellate court haschosen to frame points for consideration on these issues. In thedecision reported in 1999 (6) SCC 40 (referred to supra) it hasbeen held that a plea of bar under Order II Rule 2 of the CivilProcedure Code must be specifically raised and proved and beforethe second suit of the plaintiff is held to be barred by thepresent rule, it must be shown that the second suit is based onthe same cause of action, on which, the earlier suit was based andin that suit, the plaintiff had not claimed certain reliefsavailable to him without the leave of the Court. The plea of barof subsequent suit should be expressly raised by the defendants inthe written statement and brought on record the relevantmaterials. If no such plea is raised by him, it is not open to theCourt to take suo motu cognizance on the basis of assertion offact on record. In the decision rendered in 1999 (6) SCC 40 (citedsupra), the plea that the subsequent suit was barred by Order IIRule 2 of the Civil Procedure Code was not raised either in thewritten statement or in the memorandum of appeal by the tenant orin the review petition. Certain assertions, however, were made tothe effect that the earlier suit was also instituted on the groundof default. The Supreme Court held that such plea was notexpressly raised and could not have been allowed by the Courtbelow. The Apex Court further held that the plea that the suit isbarred is a mixed question of fact and law and such a plea has tobe raised before the Trial Court and cannot be permitted to be https://hcservices.ecourts.gov.in/hcservices/ raised in appeal. Therefore, Mr.T.R.Mani, learned Senior Counselsubmitted that the Lower Appellate Court erred in framing suchpoint for determination and the finding recorded by the LowerAppellate Court on this issue is liable to be set aside. The saidcontention of Mr.T.R.Mani, learned Senior Counsel for theappellant, merits acceptance and the finding of the lowerappellate court in this regard has to be set-aside and accordinglyset-aside.153. As far as the finding of the lower appellate court thatthe suit is barred under Order IX Rule 9 CPC as the first suitO.S.No.34 of 1985 had been dismissed for default and when thesecond suit was filed, the first suit had not been restored tofile is concerned, it has to be pointed out that admittedly theplaintiff had filed an application to restore the suit O.S.No.34of 1985 and ultimately, the said application was allowed and thesuit was restored to file. Once the suit is restored, it willrelate back to the date of filing of the suit and therefore thefinding of the lower appellate court that the bar under Order IXRule 9 CPC will apply cannot be sustained and therefore the saidfinding is set-aside.154. As far as the contention of the respondents that thesuit property has not been identified is concerned, Mr.T.R.Mani,learned Senior Counsel submitted that the evidence of PW1 issupported by the evidence of DW3 himself and further corroboratedby the Commissioner's report and plans. Learned Senior Counselsubmitted that no objection whatsoever has been filed by thedefendants to the Commissioner's report whereas the plaintifffiled his objections.As far as contention of the learnedcounsel for the respondents that the boundary recitals in Ex.B-58sale deed itself would disprove the claim of the plaintiff thatthe suit property lies on the east of eri abutting the tank bundis concerned, Mr.T.R.Mani, learned Senior Counsel submitted thatExB58 is not a document inter partes and the same has been markedthrough the revenue officials and the parties to the document havenot been examined and the document has not been proved. He furthersubmitted that mere marking is not sufficient. In support of thesaid contention, learned Senior Counsel placed reliance on thedecision in the case of Sait Tarajee Khimchand Vs Yelamarti Satyam(reported in (1972) 4 SCC 562). The aforesaid submissions ofMr.T.R.Mani, learned Senior Counsel for the appellant, meritsacceptance. Therefore, the lower appellate court has erred inplacing reliance on Ex.B-58-sale deed for coming to the conclusionthat the boundaries recited in Ex.A-1-sale deed have not beenestablished and Ex.B-58 will fasify the case of the plaintiff. 155. As far as the finding recorded by the lower appellatecourt that the plaintiff is not entitled to get the reliefs on theground that he played fraud on the court by indulging invexatious proceedings and re-litigation is concerned, it has to be https://hcservices.ecourts.gov.in/hcservices/ pointed out that there is absolutely no pleading in the writtenstatements of the defendants regarding re-litigation,multifariousness and fraud. Further, it has to be pointed outthat the plaintiff had been approaching various RevenueAuthorities for the issue of Ryotwari Patta both under the Act aswell as outside the Act. When the request for issue of RyotwariPatta had been rejected, the plaintiff had to challenge thoseorders before the High Court and that was the reason why he hadfiled various writ petitions as enumerated both by Mr.T.R.Mani,learned Senior Counsel for the appellant, and Mr.P.Wilson, learnedAdditional Advocate General. Therefore, the filing of variouswrit petitions by the plaintiff before the High Court will notamount to re-litigation or multifariousness. It has also to bepointed out that the writ petitions have been mentioned in theplaints and therefore it cannot be said that the plaintiff hadcommitted fraud on the court. In the absence of pleadings therewas no issue to be the tried and therefore the trial court had notframed any such issue, the lower appellate court has erroneouslyframed such a point for determination and has recorded anerroneous finding, which in the considered view of this Court,cannot be sustained.156. As far as the issue on adverse possession is concerned,Mr.T.R.Mani, learned Senior Counsel for the appellant, had notpressed the same. Therefore, the contentions put forth by thelearned AAG are not referred to.157. As rightly contended by Mr.T.R.Mani, learned SeniorCounsel for the appellant, the lower appellate court has attachedmuch relevance on the evidence of D.Ws.1 to 3 who are admittedlyhad no personal knowledge about the facts of these cases. It isadmitted by D.Ws.1 to 3 that they had no personal knowledge aboutthe survey and settlement proceedings or about the taking over ofphysical possession of the lands in the estate and therefore theirevidence does not deserve much importance.158. In the decision reported in 2008 (8) SCC 92 (SBI v.S.N.GOYAL), which is relied upon by Mr.T.R.Mani, learned SeniorCounsel for the appellant, the Apex Court has laid down as to whatis the substantial question of law, in paragraph 13 of thedecision, which reads as follows:-"13. Second appeals would lie in cases which involvesubstantial questions of law. The word "substantial"prefixed to "question of law" does not refer to the stakesinvolved in the case, nor intended to refer only toquestions of law of general importance, but refers to impactor effect of the question of law on the decision in the lisbetween the parties. "Substantial question of law" meansnot only substantial question of law of general importance,but also substantial question of law arising in a case as https://hcservices.ecourts.gov.in/hcservices/ between the parties. In the context of Section 100 CPC, anyquestion of law which affects the final decision in a caseis a substantial question of law which affects the finaldecision in a case is a substantial question of law asbetween the parties. A question of law which arisesincidentally or collaterally, having no bearing on the finaloutcome, will not be a substantial question of law. Wherethere is a clear and settled enunciation on a question oflaw, by this Court or by the High Court concerned, it cannotbe said that the case involves a substantial question oflaw. It is said that a substantial question of law ariseswhen a question of law, which is not finally settled by thisCourt (or by the High Court concerned so far as the State isconcerned), arises for consideration in the case. But thisstatement has to be understood in the correct perspective.Where there is a clear enunciation of law and the lowercourt has followed or rightly applied such clear enunciationof law, obviously the case will not be considered as givingrise to a substantial question of law, even if the questionof law may be one of general importance. On the other hand,if there is a clear enunciation of law by this Court (or bythe High Court concerned), but the lower court had ignoredor misinterpreted or misapplied the same, and correctapplication of the law as declared or enunciated by thisCourt (or the High Court concerned) would have led to adifferent decision, the appeal would involve a substantialquestion of law as between the parties. Even where there isan enunciation of law by this Court (or the High Courtconcerned) and the same has been followed by the lowercourt, if the appellant is able to persuade the High Courtthat the enunciated legal position needs reconsideration,alteration, modification or clarification or that there is aneed to resolve an apparent conflict between two viewpoints, it can be said that a substantial question of lawarises for consideration. There cannot, therefore, be astraightjacket definition as to when a substantial questionof law arises in a case. Be that as it may."If in the light of the aforesaid law laid down by the Apex Courtin these cases, as discussed above, there is a clear enunciationof law by the Supreme Court as well as by this Court, namely, AIR1923 PC 217 (referred to supra), AIR 1931 Madras 613 (referred tosupra), AIR 1964 SC 136 (referred to supra) and AIR 1968 SC 1413(referred to supra). The lower appellate court had misinterpretedor misapplied the same and the correct application of the law asdeclared or enunciated by the Supreme Court as well as this Courtwould have led to a different decision and therefore these appealswould involve the substantial question of law as between theparties. In the said decision, it has been laid down that thesubstantial question of law means not only 'substantial questionof law of general importance' but also 'substantial question of https://hcservices.ecourts.gov.in/hcservices/ law arising in a case as between the parties'. By misapplying thedecisions, which have no relevance to the facts of these cases andby misinterpreting the decisions which have got a direct bearingon the facts of these cases, the lower appellate court hasrecorded incorrect findings and therefore this Court is entitledto interfere with the erroneous and perverse findings of the lowerappellate court.159. As has been discussed in this judgment, the lowerappellate court has admitted inadmissible evidence and the samewas relied upon and if such evidence has been omitted it wouldhave led to a different conclusion. The lower appellate court hasrelied upon Ex.B-58 without proper proof and in the absence of theparties to Ex.B-58 being examined as witness and basing relianceon Ex.B-58, the lower appellate court has held that the boundarydescription of the suit property is falsified by the boundariesrecitals contained in Ex.B-58 and therefore this Court is entitledto invoke Section 100 of the Code of Civil Procedure and interferewith the judgment of the lower appellate court.160. As far as the additional substantial question of law (a)is concerned, it has to be answered in favour of the appellant forthe following reasons : Admittedly, Ex.B-2 pertains to an earlier Fasli. A perusalof Ex.B-2 shows that it is a copy of the SLR and in that theextent of S.F.No.163 Paimash No.779, Achuvaneri is shown to be anextent of 15.00 acres as per Revenue Account pertaining to Fasli13 (Fasli 13 may not be correct). But the same has come intoexistence admittedly before the resettlement and resurvey. Butthe lower appellate court has not given due importance to Ex.B-2only basing reliance on Exs.B-6 and B-11 which have come intoexistence after resettlement and resurvey i.e., on 25.05.1961.Based on Exs.B-6 and B-11, the lower appellate court has come tothe conclusion that the extent of achuvaneri is larger than theextent mentioned in Exs.B-2 and B-71 that too in the absence ofproper pleadings and proof. 161. It is sought to be contended by the learned AdditionalAdvocate General as well as by Mr.R.Muthukumarasamy, learnedSenior Counsel that since the plaintiff had requested for pattaoutside the Abolition Act before the Revenue Authorities and lostbefore them, the plaintiff is estopped from claiming title basedon Exs.A-1 and A-2. As discussed above on coming into force ofAct 26 of 1948 it is clear from the provisions of the Act 26 of1948 that what really vests in the Government in respect of aryoti or private land is merely title and there is no vesting ofpossession, which is protected under the proviso to Section 3(d)of the Act. Vesting of title is also subject to the pre-existingright of the ryots or land holders and therefore by simply asking https://hcservices.ecourts.gov.in/hcservices/ for a patta outside the scope of the Act and such a request of theplaintiff had been rejected, it cannot be said that the plaintiffis estopped from claiming title based on Exs.A2 and A1.162. For the foregoing reasons all the substantial questionsof law are found in favour of the plaintiff / appellant andagainst the defendants / respondents and accordingly the aboveSecond Appeals are allowed. However, there will be no order as tocosts. 163. As far as the Contempt Petition is concerned,Mr.T.R.Mani, learned Senior Counsel for the appellant, had notadvanced any submissions and has not seriously pressed the same.Now that, this Court has found possession in favour of theplaintiff and the trial court has also found that the defendantshad not violated the order of interim injunction. Therefore, thisCourt is of the view that no case for contempt is made out.Hence, the above Contempt Petition stands closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarRs / srkTo1.The First Additional District Judge,Salem.2.The Second Additional District Munsif,Salem.+4ccs to M/s.K.Sridhar Associates Sr 87921+2ccs to Mr.T.M.Hariharan, Sr 88160+4ccs Spl.Govt. Pleader Sr 88101 to 88104+1cc to Mr.M.Ravi Bharathi, Sr 88393RL(CO)km/29.12. S.A.NOS.1025 TO 1028 OF 2004 AND ALL CONNECTED PENDING CMPs &CONTEMPT PETITION NO.925 OF 2005