Syed Mohindeen vs Periannan @ Ramaswamy on 30 June, 2011

Madras High Court

Dated : 30 --6-2011

CORAM

The Hon'ble Mr.Justice R.S.Ramanathan

S.A.No.1756 of 1993

1.Syed Mohindeen

2.Syed Abdul Khader ... Appellants

Vs.

1.Periannan @ Ramaswamy

2.Chinna Paiyyan @ Palani Goundar

3.Sengottaiyan

4.Palani Ammal ... Respondents

Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree dated 8.12.1992, passed in A.S.No.140 of 1992, on the file of the II Additional District Judge, Salem, reversing the judgment and decree dated 9.9.1991, passed in O.S.No.571 of 1982, on the file of the District Munsif Court, Tiruchengode. For Appellant : Mr.K.G.Vasudevan

For Respondents : Mr.S.Rajasekar

for Mr.D.Sivakumaran

JUDGMENT

The plaintiffs, who were successful in the Trial Court and unsuccessful in the First Appellate Court are the appellants herein.

2. The plaintiffs filed the suit for recovery of possession of the suit properties and for mesne profits.

3. The case of the plaintiffs was that the suit properties were originally Devadaya Service Minor Inams covered by T.D.No.525 and by virtue of the Madras Minor Inams Aboliton Act, 30 of 1963 ( hereinafter referred to as 'the Act') the minor inams were abolished and the land was converted into Ryotwari and the Settlement Authorities issued patta in favour of the plaintiffs and the lands were classified as S.Nos.68 and 74, of Pudupalayam Village.

4. The plaintiffs' father leased out the properties in favour of the first defendant's mother-in-law viz., Pavayee Ammal on 16.2.1945, and the plaintiffs filed a petition under the Cultivating Tenants Protection Act, for collecting the arrears of rents due from Pavayeeammal. Later, the said Pavayeeammal left the properties in the hands of the other defendants and in the settlement enquiry, under the Act 30 of 1963, the first defendant and other persons claimed patta in their favour, denying the right of the plaintiffs. The Assistant Settlement Tahsildar negatived the claims of the first defendant and others in T.R.No.435 of 1967. Aggrieved by the same, an appeal was filed by the first defendant and others before the Minor Inam Abolition Tribunal (Principal Subordinate Judge) Salem. The Learned Principal Subordinate Judge, also confirmed the order of the Assistant Settlement Tahsildar and dismissed the appeal stating that they have no right or title over the suit properties and they are only tresspassers and they were inducted into possession by Pavayeeammal, the lessee of the plaintiffs' father. As the defendants are disputing the title of the plaintiffs, the suit is filed for recovery of possession and for mesne profit.

5. The fourth defendant filed a statement, which was adopted by defendants 1 to 3, stating that the patta granted under the provisions of the Act, 30 of 1963, will not clothe any right on the plaintiffs to claim ownership of the property and the defendants are in possession and enjoyment of the suit property, right from 04.6.1967, the date on which Pavayeeammal, died. The defendants have perfected title to the suit properties by adverse possession and the plaintiffs' right, if any, was lost by long continuous hostile possession of the defendants and the suit filed for recovery of possession, without asking for declaration, is also not maintainable. The third defendant filed an additional written statement, stating that the suit properties are Wakf properties and therefore, without issuance of notice under Section 57 of the Wakf Act, the suit is not maintainable and therefore, the same is liable to be dismissed. The third defendant also filed another additional statement stating that the defendants did not belong to Vellalar Goudar, as stated in the plaint and the defendants belong to Nattu Gounder Community.

6. The first plaintiff filed a reply statement, stating that the properties did not belong to Wakf Board and after the abolition of inams, the property was granted by the Tribunal in favour of the plaintiffs and it was only service inam and that service inam was enfranchised and patta was granted in favour of the plaintiffs. Therefore, there is no need to issue any notice under Section 57 of the Wakf Act.

7. The second plaintiff filed a reply statement stating that Pavayeeammal, did not die on 04.6.1967, as alleged by the defendants and she was alive even in the month of December, 1968 and that was also proved by a proceedings in C.R.P.No.1078 of 1968, which was disposed off by this Court on 11.12.1968 and if she really died in the year 1967, her legal representatives would have been impleaded in that Revision Petition. The fact that the legal representatives were not impleaded in that provision would prove that she was alive till 1968. Therefore, the claim of the defendants that they are in possession of the property in the year 1967 and they perfected title by adverse possession, cannot be accepted.

8. The Learned Trial Judge, decreed the suit, holding that the plaintiffs are the owners of the property and they were granted patta by the Assistant Settlement Tahsildar. The Wakf Board has also filed a memo stating that the properties belong to the plaintiffs and it was given to the plaintiffs, as service inam property. It is also stated that the plaintiffs are the muthavalis of the Dargah and they are maintaining the Dargah and they have no objection for granting the relief prayed for by the plaintiffs and the defendants have not proved that they are in possession of the property for more than 12 years and perfected title by adverse possession.

9. Aggrieved by the judgment and decree of the Trial Court, the defendants 2 to 5 filed first appeal and the Learned First Appellate Judge, held that the properties are Wakf properties and the plaintiffs are only muthavallis of the Wakf and the suit was not filed by the Wakf Board and the plaintiffs also did not file the suit as muthavallis of Wakf. Therefore, the plaintiffs cannot claim any exclusive right over the suit property.

10. The Learned First Appellate Judge further held that the respondents/defendants also proved that they are in possession for more than 12 years and their possession was continuous and hostile and they perfected title to the suit property by adverse possession and set aside the judgment and decree of the Trial Court and allowed the first appeal. Aggrieved by the same, this Second Appeal has been preferred.

11. At the time of admission of this Second Appeal, the following Substantial Question of Law was framed:-

i) Whether the judgment of the Lower Appellate Court is vitiated by itself failing to consider the entire evidence on record and applying the correct principles of law.

According to me, having regard to the recent pronouncement of the Hon'ble Supreme Court, regarding the scope of Section of 100 C.P.C. and reported in 2009 (1) LW Page 1 in the case of State Bank of India Vs. S.N.Goyal, (2006) 5 SCC 545 Hero Vinoth (minor) Vs. Seshammal, (2008) 4 SCALE 300 in the case of Kashmir Singh Vs. Hanuman Singh and others the substantial question of law framed at the time of admission cannot be brought under the phrase "substantial question of law''. However, having regard to the facts of the case, the following substantial questions of law arise for consideration and the learned counsel appearing on both side also submitted the arguments in respect of newly framed substantial question of law, as detailed below.

i) Whether the Lower Appellate Court is right in holding that the suit properties were Wakf properties and the plaintiffs have no right to file the suit, when admittedly, it was service inam and after enfranchisement of the service inam, the appellants/plaintiffs were granted patta in their names.

ii) Whether the Lower Appellate Court has held that the respondents/defendants have perfected title by adverse possession to the suit properties.

12. Admittedly the suit properties were Devadaya Service Minor Inams covered by T.D.No.525. After the introduction of Act, 30/1963, minor inams were abolished and the effect of abolition of service inam and the issue of a fresh title deed in favour of the grantee, is to extinguish the old tittle and to create a new one to the grantee, as held in a judgment reported in A.I.R. (1951) Madras 333 in the case of ( Rasa Koundan and another Vs. Janaki Ammal and another)

13. It is contended by Mr.K.G.Vasudevan, the learned counsel appearing for the appellants that as per the order passed by the Assistant Settlement Tahsildar, patta was granted in favour of the plaintiffs and that was confirmed by the Minor Inam Abolition Tribunal, Salem, in M.I.A.Nos.45,65 and 67/65 viz., Ex.A-5, and in the order passed by Tribunal, the history of the inam was clearly discussed. As per the various entries in the Inam Fair Register, the inam was service inam and having regard to Section 8(2) (i) of the Act 30/1963, the institution or the individual rendering service shall with effect and from the appointed day, be entitled to ryotwari patta. Therefore, the patta was granted in favour of the appellants/plaintiffs and hence, they became the owner of the properties and the properties can no longer retain the character of Wakf properties and as the patta holders, they are entitled to file the suit for recovery of possession.

14. The learned counsel further submitted that the Lower Appellate Court erred in holding that the properties are Wakf properties, when the Wakf Board itself has filed a memo before the Trial Court, which was discussed by the Learned Trial Judge, stating that the properties are given to the plaintiffs, as they are rendering service in the Dargah and they are owners of the properties. Hence, the findings of the Lower Appellate Court that the properties belonged to Wakf Board and therefore, the suit is not maintainable, cannot be sustained.

15. The learned counsel for the appellants also submitted that the Lower Appellate Court also erred in holding that the respondent/defendants perfected title by adverse possession on the ground that they are in possession of the property from the year 1967 itself, and therefore, submitted that even assuming that the respondents/defendants are in possession of the properties from the year 1967, it is admitted by D.W.1, in evidence that they are claiming right under Pavayeeammal and the said Pavayeeammal was admittedly, the lessee of the appellants' predecessors -in- title and therefore, they continued to be in possession of the property in the capacity of lessees and the lessee cannot claim adverse possession in respect of the properties, against the true owners. Without properly appreciating that fact, the Lower Appellate Court erred in holding that the respondents/defendants perfected title by adverse possession.

16. The learned counsel further relied upon the judgment reported in A.I.R. (1951) Madras 333 ( supra) to the effect that where a Devadaya Service Minor Inams consists of the grant of the land itself and not merely of the melwaram alone, the effect of enfranchisement of the service inam and the issue of a fresh title deed in favour of the grantee, is to extinguish the old title and to create a new one in the grantee and in a suit for possession by the grantee against the defendant, the latter cannot rely on long possession.

17. On the other hand, Mr.S.Rajasekar, the learned counsel for the respondents submitted that the Lower Appellate Court has rightly come to the conclusion on the basis of the admission that the suit properties are Wakf properties and it was also admitted by the plaintiffs that the suit properties are Wakf properties and was stated in the Inam Fair Register and the patta granted in favour of the plaintiffs by the authorities constituted under the Act, 30/1963 will not confer any right over the properties, as the patta was granted only for the purpose of collecting taxes. As held in various judgments, the defendants are entitled to question the title of the plaintiffs in a Civil Court and considering all these aspects, the Lower Appellate Court has rightly held that the plaintiffs cannot claim to be owners of the property, as the properties are Wakf properties and once the plaintiffs are not owner of the properties, they are not entitled to the relief of recovery of possession. Further, the defendants are in possession of the properties from the year 1967, in their own right and therefore, they have perfected title by adverse possession. Therefore, the judgment of the Lower Appellate Court need not be interfered with.

18. Heard both sides.

19. Ex.A3, is the title deed granted to Beer Gaya Saheeb Dargah, Ex.A4, is the certified copy of the Inam Fair Register and in Ex.A5, the Tribunal discussed the varies entries in the Inam Fair Register. As rightly pointed out by the Tribunal, as per Column 8 of the Ex.A4, the grant was for the Dastagir Darga at SankarI and it has been stated that that part of the inam properties was in enjoyment of the Sayed Mohideen Sahib, and performing urus and therefore, the inam was confirmed in the name of Sayed Mohideen Sahib. As per column 2, it was Kazi inam and it was given for performing Kazi service. As inam was granted for religious purposes, it comes within the definition of Devadayam. As per Section 44 of Act, 30/1963, there shall be a presumption that the inam consists of both the warams.

20. Therefore, considering the nature of the inam which is ''Devadayam" and having regard to the provisions of said Act, the Minor Inam Abolition Tribunal, rightly granted patta in favour of the plaintiffs and while granting the patta, it has not been stated that the patta was in the name of the Wakf or given to the plaintiffs as muthavallis of the Wakf and therefore, the Lower Appellate Court is not right in holding that the properties are Wakf properties and the plaintiffs have no right over the properties.

21. Further, as rightly held by the Trial Court that Wakf Board filed a memo stating that the properties are the properties belonging to the appellants and the Wakf Board have no claim over the properties and therefore, having regard to Exs.A4 and A5, and the grant of patta in favour of the plaintiffs, I am of the opinion that the plaintiffs are the patta holders of the suit properties and as such they are entitled to file the suit for recovery of possession.

22. No doubt, the authorities under the said Act, cannot decide the rights of the parties, and only Civil suit is maintainable to establish their right and in the absence of any suit filed by the defendants to establish their right over the suit properties, the appellants/plaintiffs, who were granted patta in their name are entitled to file the suit for recovery of possession on the basis of the patta. Further, the facts of the case on hand are similar to the facts of the case in the judgment reported in ( 2003) 3 M.L.J. 507 in the case of [Dr.Natesan (died) and othes Vs. Pandari Narayanan ( died) and others] . In that judgment, the Hon'ble Division Bench of this Court has held as hereunder:- " Applying the ratio laid down in the above decisions, it is seen that the issue before the Civil Court in our case is not between the inamdar and the State or the institution. The issue now before us is between the inamdar and the person claiming under the inamdar. Therefore, the defendant cannot claim better right than what the inamdar had been conferred. There could not have been a permanent lease from the inamdar, which would be clearly outside the scope of the grant and against the public policy as also the provisions of the Tamil Nadu Hindu religious and Charitable Endowments Act, 1959. Even if the jurisdiction of the Civil Court is saved, the Courts have recognized certain exceptions like public or communal properties and the rights which inhere on the basis and fundamental rights which entitle a person to preferentially get patta under this legislation"

23. Therefore, having regard to the fact that the plaintiffs have obtained patta in their names, prima facie they are entitled to the suit properties and that cannot be questioned by the defendants in the absence of the suit filed by them to declare their rights. Therefore, the first substantial question of law is answered in favour of the appellants and the Lower Appellate Court has committed an error in holding that the properties are the Wakf properties and therefore the plaintiffs cannot file the suit for recovery of possession.

24. As rightly pointed out by the learned counsel for the appellants D.W.1, in evidence has admitted that they are not claiming any right by way of adverse possession and they are in possession of the properties as legal heirs of Pavayeeammal. Admittedly, the said Pavayeeammal was a lessee under the plaintiffs' predecessors- in- title and once Pavayeeammal was held to be lessee, under the plaintiffs, any person claiming under Pavayeeammal, cannot claim any title to the suit properties by adverse possession.

25. It is a settled law that for claiming adverse possession, possession must be hostile to the knowledge of the true owner and when the parties are claiming possession under the lessee, they cannot claim adverse possession. In this case, D.W.1, has admitted that they are claiming to be in possession of the properties, as legal representatives of Pavayeeammal and hence, they are not entitled to claim any right over the suit property by adverse possession, however long, the possession may be.

26. It has been held by the Hon'ble Supreme Court as well as by this Court that a person claiming adverse possession must prove that he is in possession of the properties, which belongs to others and without the knowledge of the true owner and he must also state the period from which he is in possession of the property adverse to the tile of the real owner. In this case, no such plea has been raised and even assuming that the defendants are in possession of the property from the year 1967, having regard to the admission of the D.W.1., that they are in possession of the property as the legal representatives of deceased/Pavayeeammal, the defendants cannot perfect title by averse possession to the suit property. Therefore, the second substantial question of law is also answered in favour of the appellants.

27. In the result, the judgment and decree of the Lower Appellate Court is set aside and that of the Trial Court is restored and the Second Appeal is allowed. However, there will be no order as to costs.

1.The II Additional District Judge, Salem.

2.The District Munsif Court,

Tiruchengode