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MADRAS HIGH COURT
Honourable Mr Justice S. SOUNTHAR
PACHAMMAL (DIED) – Appellant
Versus
SRI BALAVINAYAGAR [DEITY] – Respondent
SA/1754/1997
LAND REVENUE - CANCELLATION OF ALIENATION - PRESUMPTION OF VALIDITY - POSSESSION - PROTECTION OF SETTLED POSSESSION - INJUNCTION - REVENUE DOCUMENTS - PRESUMPTION OF GENUINENESS - BURDEN OF PROOF ON PARTY CHALLENGING VALIDITY
Fact of the Case:
The appellants were in possession of the suit property, which was originally alienated to the respondent temple in 1937. In 1974, the alienation was cancelled by the Government for violation of conditions, and the property was resumed. Subsequently, the suit property was assigned to the first appellant in 1981. The respondent temple issued a notice to the appellants in 1993, claiming right over the suit property and directing them to enter into a lease arrangement. The appellants filed a suit for declaration that the notice was illegal and void, and for injunction restraining the respondent temple from taking any further action against them.
Finding of the Court:
The court held that the entry in the Town Survey Field Register (Ex.A.13) regarding the cancellation of the alienation in favor of the respondent temple was presumed to be correct and genuine. The respondent temple failed to produce any evidence to rebut this presumption or to prove that the cancellation order was vitiated by fraud or surreptitious entry. Therefore, the court held that the respondent temple had no title over the suit property and that the notice issued by it was invalid.
Issues: 1. Whether the finding of the lower appellate Court is vitiated by reason of the erroneous view that Ex.A.13 cannot be relied upon in the absence of production of the original order as mentioned in Ex.A.13?2. Whether the appellants are entitled to a declaration that the notice issued by the respondent temple is invalid?3. Whether the appellants are entitled to an injunction restraining the respondent temple from interfering with their possession?
Ratio Decidendi: 1. Revenue documents, such as the Town Survey Field Register (Ex.A.13), are presumed to be genuine and correct. This presumption can only be rebutted by evidence of fraud, surreptitious entry, or non-compliance with prescribed procedures.2. In the absence of any evidence to rebut the presumption of validity of Ex.A.13, the court held that the cancellation of the alienation in favor of the respondent temple was valid and that the respondent temple had no title over the suit property.3. A person in settled possession of property is entitled to protect their possession, even against the rightful owner, unless the owner takes action to recover possession through due process of law.
Final Decision: The second appeal was allowed, setting aside the judgment and decree of the lower appellate court and restoring the judgment and decree of the trial court. The court declared that the notice issued by the respondent temple was invalid and granted a limited injunction restraining the respondent temple from interfering with the appellants' possession except by due process of law.
S.A.No.1754 of 1997
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.01.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A.No.1754 of 1997
and
C.M.P.No.17390 of 1997
1.Pachamal (died)
2.Narayana Vadivu Ammal (died)
3.S.A.C.Syed Mohammed (died)
4.N.K.Muthu Ashiya Ummal Haja
(Appellants 3 and 4 are impleaded vide court order
dated 28.11.2017 made in M.P(MD) No.2 of 2011)
5.Nuskiya
6.Sajitha
7.Omer Abdul Kader
8.Mohamed Faizal
...Appellants
(Appellants 5 to 8 are brought on record as legal representatives
of the deceased third appellant vide court order dated 16.02.2022
made in C.M.P(MD) No.6360 of 2021)
-Vs-
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S.A.No.1754 of 1997
Sri Balavinayagar (Deity),
Koil through its
Executive Officer,
Sivan Koil Street,
Tuticorin.
... Respondents
PRAYER
: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree of the learned Principal District
Judge, Tuticorin, passed in A.S.No.56/95 dated 15.09.1997 reversing the
judgment and decree of the learned Principal District Munsif, Tuticorin passed in
O.S.No.469 of 1993, dated 21.09.1994.
For Appellants
: Mr.Ajmalkhan
Senior Counsel
for M/s.Ajmal Associates
For Respondent
: Mr.M.Muthu Geethayan
JUDGMENT
The plaintiffs are the appellants 1 and 2. The suit is for declaration that
the notice dated 29.09.1993 issued by the respondent is illegal and void and also
for injunction restraining the respondent from taking any further action against
the appellants 1 and 2 in respect of the suit property. The suit was decreed by the
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S.A.No.1754 of 1997
trial Court and the appeal filed by the respondent was allowed by the first
appellate Court by reversing the findings of the trial Court. Therefore, the
appellants are before this Court.
2. According to the appellants 1 and 2/plaintiffs, the suit property has been
in possession and enjoyment of the first appellant from the year 1960 onwards.
The first appellant is the husband of the second appellant. The second appellant
had put up a house and two shops in the suit property. It was claimed by the
appellants 1 and 2 that the patta for the suit property was issued in the name of
the first appellant on 20.06.1981 under Ex.A.2. It was further averred that the
notice mentioned above was issued by the respondent claiming right over the suit
property and directing the first appellant to enter into a lease arrangement with
the respondent temple and it was also mentioned in the notice that in case of first
appellant failure to enter into a lease arrangement, eviction proceedings would be
initiated against him. Therefore, the appellants 1 and 2 were constrained to file
the suit for above said reliefs.
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S.A.No.1754 of 1997
3. The respondent temple filed a written statement and contended that the
Commissioner of HR & CE Department directed it to take action against the
persons, who had encroached the temple property and consequently, a notice was
issued to the first appellant asking him to enter into a lease arrangement or
otherwise, face eviction proceedings. It was specifically contended by the
respondent that the respondent temple was under the administration of the first
appellant till the appointment of Executive Officer and abusing his position as a
trustee/administrator, the first appellants managed to get patta in his name. It was
contended that the respondent temple has got right over 3912 square feet of land
in T.S.No.1400/2 including the suit property.
4. Before the trial Court, the first appellant was examined as P.W.1 and the
Municipal Surveyor of Tuticorin Municipality was examined as P.W.2. On behalf
of appellants 1 and 2, 14 documents were marked as Ex.A.1 to Ex.A.14. The
Executive Officer of the respondent temple was examined as D.W.1 and 7
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