Subbammal vs Arumugam

The Appellant/Respondent/Plaintiff has filed this Second Appeal as against the Judgment and Decree dated 23.01.1996 made in A.S.No.12 of 1995 on the file of Second Additional District Judge, Coimbatore.

2. The First Appellate Court Viz., the Learned Second Additional District Judge, Coimbatore, in the Judgment in A.S.No.12 of 1995 dated 23.01.1996 has among other things observed that Palani has got the property with condition and enjoyed the same and further the Palani's sons Karuppan, Nagan, Arumugam and Bannari till 29.04.1987 have got the suit property to enjoy with certain conditions and later the suit property belonged to them and their heirs absolutely. Further, the First Appellate Court has also held that Karuppal her sons Nagan, Arumugam and Bannari have obtained a loan of Rs.700/- from Marakkal and created a registered Mortgage Deed dated 11.05.1959 in respect of the suit property. Also, the First Appellate Court has held that the persons who executed Ex.A2 to Ex.A4 Sale Deeds dated 06.10.1959, 27.10.1959, 30.11.1959 respectively, belong to persons of Adi Dravida Community and therefore the Plaintiff's mother-in-law's 4/5 shares in the suit property to be purchased legally with absolute right and therefore has held that Karuppal and her sons have not sold the suit property in entirety as per Sale Deeds dated 06.10.1959, 27.10.1959 and 30.11.1959 with absolute right and that the said sale deeds are not valid in law. In regard to the plea of adverse possession, the First Appellate Court has held that the Appellant/Plaintiff has not acquired the right of adverse possession in respect of the suit property. As regards the relief of permanent injunction prayed for by the Appellant/Plaintiff, the First Appellate Court has come to the Conclusion that there is no acceptable evidence to show that the Defendants have prevented the Appellant/Plaintiff from enjoying the suit property and resultantly allowed the First Appeal filed by the Appellants/Defendants.

3. The trial Court framed four issues for determination. On the side of the Appellant/Plaintiff, witnesses P.W.1 to 4 have been examined and Ex.A1 to A15 have been marked. On the side of Respondents/Appellants/Defendants, D.W.1 and 2 have been examined and Ex.B1 to B18 have been marked.

4. On an appreciation of oral and documentary evidence available on record, the trial Court has come to a resultant conclusion that the suit property belongs to the Appellant/Plaintiff's mother-in-law as per Sale Deeds in Ex.A2 to A4 and after the death of the Appellant/Plaintiff's mother-in-law, the Appellant/Plaintiff is the legal heir and hence the suit property belongs to the Appellant/Plaintiff. Further, it has held that the Appellant/Plaintiff has been in enjoyment of the suit property and the same being established as per the evidence of P.W.2 to 4 and also as per documents filed on the side of the Appellant/Plaintiff, and that the Appellant/Plaintiff is entitled to obtain the relief of permanent injunction and resultantly granted the relief of declaration of title of the Appellant/Plaintiff in respect of the suit property and also granted the consequential relief of permanent injunction and decreed the suit accordingly without costs.

5. Being dissatisfied with the Judgment and Decree dated 23.01.1996 of the First Appellate Court Viz., Learned Second Additional District Judge, Coimbatore, made in A.S.No.12 of 1995, the Appellant/Plaintiff has preferred this Second Appeal before this Court.

6. At the time of admission of the Second Appeal, the following Substantial Questions of Law have been framed by this Court.

1.Whether, in the absence of the original grant and in the light of the admitted case of the respondents that the grant was made to Palani in recognition of his services as Dandal, the lower appellate Court was right in assuming that there were any restrictions regarding alienation and whether the utmost adverse inference ought not to be drawn against the respondents on the non-production of the original grant?

2. Whether, on the very finding of the appellate Court that the sales in favour of Marakkal are true, whether the title would not pass to Marakkal under the same, when the grant in favour of the respondents became absolute, even assuming that there were any restrictions in the grant on the date of sale?

3. Whether, the finding of the Appellate Court that the appellant has not proved continuous possession is legally sustainable when it is found that possession was delivered to Marakkal under the mortgage and sales and when there is not even a plea to how the respondents got back possession from Marakkal thereafter?

7. The contentions, discussions and findings on the Substantial Questions of Law 1 to 3:

According to the Learned Counsel for the Appellant/Plaintiff, the First Appellate Court has found that Ex.A1-Mortgage Deed dated 11.05.1959, Ex.A2-Sale Deed dated 06.10.1959, Ex.A3- Sale Deed dated 27.10.1959 and Ex.A4- Sale Deed dated 30.11.1959 in favour of Marakkal are true and valid, but it has failed to give effect to its finding and further the First Appellate Court has come to a wrong conclusion that the possession of only 3/5th share in the suit property has been delivered to the Appellant's mother-in-law, Marakkal as per Ex.A2 to A4 Sale Deeds because it has previously held that 4/5 share has been conveyed to the Appellant/Plaintiff as per Ex.A2 to A4 Sale Deeds.

8. Advancing his arguments, the Learned Counsel for the Appellant submits that it is not in dispute that Karuppal is also a legal heir of Palani entitled to succeed his properties and rights and therefore she is a co-owner of the property with other heirs and competent to convey her share which she has done as per Ex.A4-Sale Deed dated 30.11.1959.

9. The Learned Counsel for the Appellant/Plaintiff urges that the entire reasonings of the First Appellate Court that the grant of suit property made to Palani has been a conditional grant that it continued as a conditional grant till 29.04.1987 and thereafter the Respondents and others have obtained absolute interest in the suit property Viz., as the respondents and their men belong to the down trodden community the alienation of the conditional grant made by them as per Ex.A2 to A4 is invalid and hence it cannot be considered that Marakkal obtained a valid sale as per Ex.A2 to A4 are all completely unsutainable one in the eye of law besides smacks of special pleadings for the respondents.

10. Expatiating his arguments, the Learned Counsel for the Appellant contends that there is absolutely no basis for the assumption that the grant is a conditional one and that alienation cannot be effected and this wrong assumption has resulted in miscarriage of justice.

11. The Learned Counsel for the Appellant/Plaintiff submits that even as per the case of respondents there can be no objection to the alienation of the land assigned to Palani and that the sales under Ex.A2 to A4 Sale Deeds are legally valid and binding and even assuming without admitting to withdraw that there is any impediment in respect of the sales when the property vested absolutely in the respondents and others after 29.04.1987 absolute title passed on to Marakkal automatically, but these aspects of the matter have not been adverted to by the trial Court in proper perspective.

12. The Learned Counsel for the Appellant/Plaintiff takes a plea that the First Appellate Court having rendered a finding that possession has been delivered to Marakkal and when it has upheld the Ex.A1 to A4 transactions, it ought to have held that the burden shifts on the respondents to prove that they never got back possession and Ex.A1 to A4 documents and Ex.A5 to A11 tax receipts coupled with the evidence of P.W.1 to 4 will point out that the Appellant/Plaintiff and her predecessors have been in possession and enjoyment of the suit property eversince 01.07.1956 in their own right openly, continuously to the knowledge of all including the respondents and their people.

13. The Learned Counsel for the Appellant submits that the First Appellate Court has wrongly held that there is nothing to show that the possession with the Appellant and their predecessors from 30.11.1959 till the date of Ex.A5 is an erraneous and unsustainable one in the eye of law and as a matter of fact Ex.B8 to B18 are all documents after suit which ought to have been rejected by the First Appellate Court.

14. Further, it is the contention of the Learned Counsel for the Appellant/Plaintiff that the ingredients of Section 43 of the Transfer of Property Act applies to the present case and the absolute grant acquired subsequently has fed the estop.

15. In short, the contention of the Learned Counsel for the Appellant is that the reasonings and conclusions arrived at by the First Appellate Court in reversing the Judgment of the trial Court in First Appeal are to be set aside by this Court and the Second Appeal filed by the Appellant/Plaintiff is to be allowed by this Court in furtherance of substantial cause of justice.

16. In response, the Learned Counsel for the Respondents submits that the First Appellate Court has taken into account all the relevant facts and attendance circumstances of the case in a cumulative fashion and has come to a right conclusion that Karuppal and her sons have not executed the Ex.A2 to A4 Sale Deeds in a legally valid manner with absolute right and in fact the First Appellate Court in its Judgment has gone to the extent of holding that the Appellant/Plaintiff has not established her claim of title in respect of the suit property and also not proved that the Respondents/Defendants have prevented the Appellant/Plaintiff from interfering with her possession of the suit property and resultantly allowed the Appeal which need not be interfered with by this Court.

17. It is the case of the Appellant/Plaintiff that the entire suit scheduled property has been under the control and possession of one Rangai Gowder son of Maranna Gowder from 01.07.1956 and the said Rangai Gowder is the maternal uncle of plaintiff's husband Subbae Gowder and Rangai Gowder has been raising crops in his own right without any objection and on 11.05.1959 4/5 share of the property has been mortgaged to Marakkal, the mother-in-law of the Appellant/Plaintiff for a sum of Rs.700/-.

18. Later by means of Ex.A2-Sale Deed dated 06.10.1959, Ex.A3-Sale Deed dated 27.10.1959 and Ex.A4-Sale Deed dated 30.11.1959, the entire property has been sold to the Appellant/Plaintiff's mother-in-law, Marakkal and she has been in possession and enjoyment of the same in her own right till her death and has been paying Kist to the property and the Patta No is 454 (later it is 879) and in some Kist receipts Patta is referred to as C-2 to C-4 which represents the same survey No.363 measuring 2 acres 39 cents.

19. According to the Learned Counsel for the Appellant/Plaintiff since the Appellant/Plaintiff's husband Subbee Gowder (son of Marakkal) pre deceased Marakkal the Appellant has succeeded to the property and has been raising crops and enjoying the same in her own right and further that the Appellant/Plaintiff has been paying the Kist in the name of Marakaal since Patta has not been altered in her name.

20. The Learned Counsel for the Appellant/Plaintiff submits that two of the original owners Karuppal and Karuppan have expired and that the Appellant/Plaintiff alternatively takes a plea that title to the suit property has been perfected by adverse possession and their predecessors in interest have also in an uninterrupted possession of the property in their own right to the knowledge of the Respondents/Defendants and others and since the Respondents/Defendants jointly and severally have threatened the Appellant/Plaintiff etc., the Appellant has filed the present suit seeking a declaration of title in respect of the suit property and for the relief of permanent injunction.

21. The Respondents 1 and 3/D1 and D3 in their written statement have categorically stated that the suit property has been given to Palani by the Government on 25.10.1930 as a conditional grant in recognition of his service as a 'Dandal' and Palani being the father of the 1st Respondent/1st Defendant and grandfather of R2 and R3/D2 and D3 and further that the aforesaid Palani has been survived by his wife Karuppal and four sons Viz., Karuppan, Nagan, Arumugam and Bannari and that Karuppal and Karuppan have expired etc.

22. The stand of the Respondents 1 and 3/D1 and D3 is that from the date of the conditional grant the suit property has been in the name of Palani (original owner) till his demise and later changed in the name of Karuppan, the eldest son of Palani who has become 'Dandal' after his father's demise and after the death of Karuppan now the suit property is in the name of Palanisamy, Murugan, Maraththal, Nagan, Arumugam and Bannari.

23. According to R1 and R3/D1 and D3, the suit property has never been in the trial and possession of Rangai Gowder from 01.07.1956 and Rangai Gowder never raised any crops in his own right and from 25.10.1930, the land has been in possession and enjoyment of Palani and his legal heirs and it is the Defendant's family who were raising the crops right from 1930 and in short Rangai Gowder or the Appellant/Plaintiff or the Appellant/Plaintiff's predecessor have never raised any crops or possession of the suit property at any point of time.

24. The case of the Respondents/Defendants is that they admitted on 11.05.1959 one of the Defendants Viz., the 1st Respondent/1st Defendant and two other brothers together with their mother have mortgaged the suit property to Rangai Gowder after receiving a sum of Rs.700/- from him and they never mortgaged the suit property to Marakkal, the mother-in-law of the Appellant/Plaintiff etc. That Respondents/Defendants have denied the execution of Ex.A2 to A4 Sale Deeds in favour of Marakkal and according to them, the execution of Sale Deeds is an imaginary one and they or their family members never received any consideration as mentioned in the Sale Deed and also that the Defendants or their family members never left the suit property in possession of the Appellant/Plaintiff or the Marakkal and in fact the suit property is in possession and enjoyment of the Defendants and their family members right from 1930 without any interference. Alternatively, the Defendants have taken a plea that they have perfected title to the suit property by means of Adverse possession by themselves and their family members and their predecessors in interest have been in uninterrupted possession of the suit property in their own right to the knowledge of the Appellant/Plaintiff and others. It is not out of place for this Court to point out that the Defendants and their family members have discharged the mortgage amount in the month of October 1959 itself and that Rangai Gowder has received the mortgage amount from them and obtained their thumb impression in some documents for cancellation of the registered mortgage deed and the said Rangai Gowder has deceived the Defendants and their family members by means of exploitation on the basis of poverty, innocence and lack of education of the Defendant's family. Besides the above, the Respondents 1 and 3/D1 and D3 have taken a stand in the written statement that the Patta has never been in the name of Marakkal or her son at any point of time and also the Appellant's husband or mother-in-law or the Appellant/Plaintiff has never been in possession and enjoyment of the suit property etc., and it is only the Appellant/Plaintiff under men who tried to interfere with the Defendant's peaceful possession and enjoyment of the suit property in the year 1989 when the revenue officers visited the property for the purpose of resurvey and at that point of time the Appellant/Plaintiff approached the revenue officer and asked him to change the Patta in their name under the purported false Sale Deeds to which the Defendants objected and made a complaint against the Appellant/Plaintiff to the District Collector etc., and the collector has ordered an enquiry and that the Tahsildar conducted the enquiry.

25. The Learned Counsel for the Appellant/Plaintiff submits that as per Standing Orders of the Board of Revenue the Tahsildar's orders sanctioning the assignment of land (on darkhasts) must be recorded in the A memorandum received from the village and the duplicate copy of the Memorandum with the Tahsildar's orders must be sent to the village authorities etc., and in case of each conditional assignment, the Tahsildar must specify in the order communicating to the Village Administrative Officer the fact that the assignment has been made and all the register of conditional to it that are to be entered in the village the file in the taluk office is not closed until a report supported by the revenue register has been received by him and further the special condition is the assigned land shall not be alienated for a period of 10 years from the date of assignment and in the event of assignee wishing to dispose of the land after the above period, he should get prior permission of either the Tahsildar or the Revenue Divisional Officer who should give permission only if the sale is to one of the categories, eligible for assignment of Government waste lands for cultivation purposes.

26. According to the Learned Counsel for the Appellant/Plaintiff from 1930 to 1940, the assigned land cannot be alienated and in the present case the sale has taken place as per Ex.A2 to A4 Sale Deeds and hence the concerned persons can alienate legally by means of Sale Deeds.

27. Continuing further, the Learned Counsel for the Appellant/Plaintiff submits that the land assigned as per Standing Order of the Board of Revenue 15(1) enjoins that the land assigned shall not be sold or alienated for a period of 10 years from the date of assignment and also that the Government can resume the lands and in the present case the Respondents/Defendants do not say that the sale is not valid.

28. The Learned Counsel for the Appellant/Plaintiff draws the attention of this Court to Section 43 of the Transfer of Property Act which deals with transfer by unauthorised person who subsequently acquires interest in property and submits that by the common law rule of Estoppel by Deed in that the subsequent estate passes to the transferee without any further Act of the transferor and the rule is that if an individual who has no title whatsoever to the property, grants it by a conveyance which in form carries the legal estate and he subsequently acquires an interest to satisfy the grant, the estate instantly passes and submits that the grant feeding estoppel will squarely apply to the facts of the present case and as such the Ex.A2 to A4 Sale Deeds are valid in law.

29. In support of the contention that no evidence can be looked into in the absence of pleadings in written statement on an issue, the Learned Counsel for the Appellant/Plaintiff cites the decision of Hon'ble Supreme Court in Bondar Singh and others Vs. Nihal Singh and others, (2003) 4 SCC 161, wherein, it is held as follows:

An appeal under Section 100 CPC can be entertained by the High Court only on a substantial question of law. If the findings of the subordinate courts on facts are contrary to the evidence on record and are perverse, such findings can be set aside by the High Court in appeal under Section 100 CPC. A High Court cannot shut its eye to perverse findings of the courts below. In the present case the findings of fact arrived at by the lower appellate court were contrary to the evidence on record and, therefore, perverse and the High Court was fully justified in setting aside the same resulting in the appeal being allowed and suit being decreed.

30. He also relies on the decision of Hon'ble Supreme Court in Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif and others, (1968) 3 SCR 862, wherein, it is among other things observed that "even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue".

31. The Learned Counsel for the Appellant/Plaintiff in regard to his contention that possession follows title and the Appellant/Plaintiff has established her title to the suit property etc., and therefore she is entitled to get the declaratory relief in respect of suit property in her favour and the consequent permanent injunction relief, cites the decision of Hon'ble Supreme Court in L.N.Aswathama and another Vs. P.Prakash, (2009) 13 SCC 229, wherein it is held that "to establish claim of title by prescription, possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years".

32. The Learned Counsel for the Appellant/Plaintiff submits that if the First Appellate Court commits a serious blunder in regard to the point for consideration then the Hon'ble High Court can interfere as per Section 100 of the Code of Civil Procedure and in this regard cites the decision of this Court in Murugaiyan and 2 others Vs. Subbaiyan, 2001 (2) CTC 393, wherein, at page No.397 it is laid down as follows:

"Even otherwise the established legal position when there is no adequate evidence with regard to possession by either party, is possession should follow title. In the instant case, the title of the plaintiffs having been clearly found, the lower appellate court was in error in finding that the defendant was in enjoyment of the palmyrah trees. There is some vague averment in the written statement with regard to adverse possession by the defendant. However, there is no proof of the same. The claim of the defendant on the basis of adverse possession cannot therefore be countenanced."

33. The Learned Counsel for the Appellant cites the decision of Hon'ble Supreme Court in Suraj Bhan and others Vs. Financial Commissioner and others, (2007) 6 SCC 186, wherein, it is held that "an entry in revenue records does not confer title on a person whose name appears in Record of Rights and no ownership is conferred on basis of such entries etc."

34. The Learned Counsel for the Appellant/Plaintiff in support of the contention that revenue records does not create or extension title of the Appellant/Plaintiff, cited the decision of Hon'ble Supreme Court in State of Himachal Pradesh Vs. Keshav Ram and others, (1996) 11 SCC 257, wherein, it is held that "at any rate such an entry in the Revenue papers by no stretch of imagination can form the basis for declaration of title in favour of the plaintiffs".

35. According to the Learned Counsel for the Appellant that the Respondents/Defendants have not produced the original assignment order dated 25.10.1930.

36. Also, it is the contention of the Learned Counsel for the Appellant/Plaintiff that Ex.B2 Patta in favour of Bannari and five others Ex.B5 Patta in the name of Arumugam and B6 Patta in the name of Nagan will destroy the claim of the Respondents/Defendants and for the first time, the Respondents/Defendants state that they got the assignment as Adi Dravidas.

37. The Learned Counsel for the Appellant/Plaintiff submits that the term 'dandal' means a tax collector who collects tax or collecting tax.

38. The Learned Counsel for the Appellant/Plaintiff submits that no issue that the Defendants have prescribed title by adverse possession has been framed by the trial Court.

39. The Learned Counsel for R1 and R3/D1 and D3 contends that the Sale Deeds Ex.A2 to A4 are not valid because the property belongs to Adi Dravida individual and that D.W.2 Village Administrative Officer has stated that the Defendants belong to the down trodden community and D.W.1(R3/D3) in his evidence has deposed that near the northern side of the suit property there is a Harijan colony and there are about 50 to 60 houses and apart from this there is no other harijan colony.

40. The Learned Counsel for R1 and R3/D1 and D3 cites the decision of Hon'ble Supreme Court in Sri Manchegowda etc., Vs. State of Karnataka and others, AIR 1984 SC 1151, wherein, at page No.1152, it is held as follows:

"Transferees of granted lands with full knowledge of the legal position that the transfers made in their favour in contravention of the terms of grant or any law, rule or regulation governing such grant are liable to be defeated in law, cannot and do not have in law or equity, a genuine or real grievance that their defeasible title in such grievance that their defeasible title in such granted lands so transferred is, in fact, being defeated and they are being dispossessed of such lands from which they were in law liable to be dispossessed by process of law".

41. He also relies on the decision of this Court in K.Palaniappan alias K.Subramanian Vs. The Government of Tamil Nadu and 2 others, 1993-1-L.W 272, wherein, at page No.274 this Court observed as follows:

Coming now to the second contention raised by the learned counsel for the appellant, suffice to say that the classification is both rational and has a clear nexus with the object sought to be achieved, that is to prevent alienation by exploitation of the Harijans by persons, other than Harijans. In Sri Manchegowda Vs. State of Karnataka, the Apex Court was considering the vires of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, which provided for cancellation of alienation in contravention of the conditions relating to the transfer of such assigned land. Before the Supreme Court, the appellants were the purchasers of land which had been originally granted by the State of Karnataka to persons belonging to the Scheduled Castes and Scheduled Tribes under the provisions of law or on the basis of the rules or regulations governing such grant. After the coming into force of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act 1978 (Karnataka Act 2 of 1979), notices were issued by the appropriate authority to the transferees of such land to show cause as to why the lands transferred to them in violation of the terms of assignment should not be resumed for being restored to the original grantees or their legal heirs or for distribution otherwise to the members of Scheduled Castes and Scheduled Tribes. The question about the vires of such a condition was raised before the Supreme Court and it was repelled. The apex Court held that the object of the Act was to protect and preserve the economic interests of persons belonging to Scheduled Castes and Scheduled Tribes and to prevent their exploitation. The Supreme Court found that for the purpose of that Act, the classification has a clear nexus to the object sought to be achieved. The Bench expressed the view that special provisions made for the resumption of "granted" lands, originally granted to the members of Scheduled Castes and Scheduled Tribes and restoration of the same to the original grantees or their heirs and legal representatives and failing them to other members of these communities do not infringe Art.14 of the Constitution. In view of the settlement of law by the Supreme Court which has agains been reiterated in Lingappa Pochanna Vs. State of Maharashtra, the second ground of attack Viz., the unconstitutionality of the restrictions contained in Cl.(9) of Special Form D, Board Standing Order 15, paragraph 9 must also fail and holding that Cl.(9) is constitutionally valid, we reject the argument raised to the contrary by Mr.Doraswamy.

42. He seeks in aid of the decision of the Hon'ble Supreme Court in Lingappa Pochanna Appealwar Vs. State of Maharashtra and another, AIR 1985 SC 389, wherein, at page No.390 it is held as follows:

The Act in its true nature and character is a law relating to transfer and alienations of agricultural lands by members of Scheduled Tribes in the State to persons not belonging to Scheduled Tribes. Such a law does not fall within Entries 6 and 7 in List 3 of Sch. 7 but is within Entry 18 in List 2 and as such , is within Legislative competence of the State. The words other than agricultural land" in Entry 6 and the words 'but not including contracts relating to agricultural land" in Entry 7 in List 3 have the effect of delimiting the legislative power of the Union to make a law with respect to transfers and alienations of agricultural lands with respect to contracts in relation thereto. The power to legislate cannot be denied to the State on the ground that the provisions of Section 3(1) and 4 which provide for annulment to transfers by tribals incidentally trench upon the existing law, namely, the Transfer of property Act, 1882 or a law made by Parliament viz., the Specific Relief Act, 1963. The power of the State Legislature to make a law with respect to transfer and alienation of agricultural land under Entry 18 of List 2 carries with it not only a power to make a law placing restrictions on transfers and alienations of such lands including a prohibition thereof, but also the power to make a law to reopen such transfers and alienations. Such a law was clearly within the legislative competence of the State Legislature being relatable to Entry 8 in List 2 of the Sch. 7. Decision of Bombay light Court D/-21 and 27-6-19894 Affirmed.

43. Besides the above, the Learned Counsel for the Respondents cites the decision of this Court in V.G.P Prem Nagar and another Vs. The State of Tamilnadu represented by the Secretary to Government, Revenue Department, Fort St.George, Chennai-9 and 9 others, 2010 (3) CTC 845(DB), wherein, it is held that "As per Board's Standing Orders, such lands cannot be alienated to any person for '10' years from date of assignment and thereafter they can be alienated only to a person belonging to depressed classes".

44. In the instant case on hand, the original assignment order dated 25.10.1930 in respect of the suit property in favour of Palani (dandalkarar) given by the Government has not been produced by either parties to the case before the trial Court.

45. In this connection, it is relevant to point out that Standing Orders 15(1)(i) of the Board of Revenue (Volume I, Chapter 1) speaks of the grant of lands for occupation subject to payment of assessment. Grant of lands may be a permanent grant or on temporary basis and power is reserved but the Government to resume the land at their pleasure at any point of time, unless and until the assignment has been declared absolute by them. Also, it is mentioned that when such a power of resumption is reserved to the Government, the order of assumption should indicate clearly what compensation, if any will be payable in the event of resumption etc.

46. Furthermore, Standing Orders 15(1)(ii) enjoins that unless the assignment is definitely temporary or unless it is subject to the condition intended to limit permanently the assignee's property right over the surface soil, the grant should for the purpose of acquisition be treated as an outright assignment and the land acquisition under the Land Acquisition Act, is required for any public purpose.

47. In reality, the Standing Order 15(2)(2) refers to the land reserved for special purposes and in the case of land reserved for Scheduled Caste, the same need not be entered in the prohibitive order book, but the necessary entries should be made in the settlement register and the village adangal.

48. Under the Board Standing Orders Section II(3)(xi), the authority competent to resume and re-enter on lands for breach of any condition of assignment shall be

(a) The Tahsildar, if the land is non-valuable, and

(b) The Revenue Divisional Officer, if the land is valuable.

49. Furthermore, the Board Standing Order 15(10)(2) enjoins that all the unauthorised occupations of valuable land shall prima facie be treated as objectionable and if the occupant is ineligible for assignment of the land under the foregoing provisions, he shall be evicted forthwith, whether or not it is proposed to dispose of the land under the foregoing rules. Any proceedings for the disposal of such a land shall not be taken till the unauthorised occupant is evicted.

50. As a matter of fact, Standing Order 15(12) Communication of Orders on Darkhasts which runs as follows:

"The Tahsildar's order sanctioning the assignment of the land should be recorded in the A memorandum received from the Village and the duplicate copy of the A Memorandum with the Tahsildar's order should immediately be sent to the village authorities. It should also be communicated at once by the Tahsildar to all the parties concerned, printed endorsements in Form D given in Appendix V being used for the purpose. In part of the Tahsildar's work are promptitude and system more important than in the disposal of darkhast cases. While on tour he should dispose of any darkhasts that may be pending in the village visited."

51. Added further, Standing Order 15(21) speaks of Maintenance of darkhast records in the Tahsildar office which runs as follows:

Files of A and B Memorandum and the Register C should be maintained by the village officers, while a register in Form No.4 prescribed in the Taluk Manual should be kept in the Tahsildar's office. It will be the duty of the Tahsildar to have the village file of Memorandum and C Register examined and compared with the taluk register, and to submit the latter at the jamabandi to the jamabandi officer, with an attestation under his signature duly certifying that it is correct. It will be the duty of jamabandi officers to examine how far the rules in this Standing Order have been observed."

52. Moreover, Standing Orders 15(29) under the caption 'D' FORM reference to the conditions of assignment which is as follows:

"All conditions subject to which land is assigned or sold should be specified in the D Form or in the "Form of order of assignment by sale" printed in Appendix V. The "forms of notice or sale" printed in the same Appendix should be used for notifying such sales."

53. Most importantly, Standing Order 15(41) deals with reservation of land for assignment to Scheduled Castes and the powers of Revenue Divisional Officers to set apart the land which runs as follows:

"In the case of villages which contain a considerable extent of land available for occupation, the Divisional Officer should, and in all other villages, he may, if he thinks it necessary in the interests of the Scheduled Castes, set apart a specific area for assignment for cultivation to the Scheduled Castes. Land occupied on sivayijama may be included in the reserved list, but if such lands have been cultivated by the same person for three or more years, whether continuously otherwise, provided that they have not been cultivated by any other person in the intervening years, they should not be included in the list unless and until assignment has been offered to and referred by the sivayijamadar, when land is placed in the list is wrongly occupied, action should be taken promptly to evict the occupation."

54. To put it precisely, Standing Order 41(4)(i) restrictions to be imposed on alienation which is as follows:

"Assignments whether of ordinary land or of valuable land in these areas, will be subject to the condition that the lands shall not be alienated to any person (whether a member of the scheduled castes or not) in any manner before the expiry of ten years from the date of the grant not even thereafter, except to other members of these castes. However, in cases where the assignees offer to give such conditionally assigned lands to Gramdan Sarvodaya Co-operative Societies within 10 years from the date of assignment or even thereafter, the Tamil Nadu State Bhoodan Yagna Board is permitted to accept such gift of lands. The Collectors of the district concerned are, authorised to relax the conditions of assignment of lands on receipt of a joint request from the Bhoodan Board and the donor."

55. Also, the Standing Order 41(4) (ii), (iii) read as follows:

(ii) Special conditions when to be imposed  In cases of assignment outside these areas, the special conditions should be imposed only where concessions are enjoyed by assign as being members of the scheduled castes.

(iii) Power to re-enter in case of violation of conditions.--If the condition of non alienation is violated or if the land ceases to be owned by the assignee or his legal heirs or (after the ten years) other members of their class, owing to sale by process of law or otherwise, or if default is made in the payment of the Government revenue on the dates prescribed, the grant will be liable to be resumed by the Government who will be entitled to re-enter and take possession of the land without payment of any compensation or refund of the purchase money.

56. This Court recalls the decision of Hon'ble Supreme Court in State of M.P Vs. Ram Kishna Balothia AIR 1995 SC 1198, wherein, the constitutional validity of certain provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 were challenged and the Hon'ble Supreme Court has observed as follows:

"Despite various measures to improve the socio-economic conditions of the Scheduled Castes and he Scheduled Tribes, they remain vulnerable. They are denied number of Civil rights. They are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical,social and economic reasons".

57. The trial Court on an appreciation of oral and documentary evidence available on record has come to the conclusion that Ex.A2 to A4 Sale Deeds are true and valid. However, the First Appellate Court has come to the conclusion that on the day of Ex.A2 to A4 Sale Deeds it is not proved that Karuppal has absolute right over the suit property as a heir and further it has also held that it is not proved that Palani's sons Karuppan, Nagan, Arumugam and Bannari have absolute right in the suit property till 29.04.1987.

58. It is relevant for this Court to point out in the decision in V.G.P Prem Nagar and another Vs. The State of Tamilnadu represented by the Secretary to Government, Revenue Department, Fort St.George, Chennai-9 and 9 others, 2010 (3) CTC 845(DB), wherein, at page No.846 it is observed as follows:

The Division Bench also referred to a decision in Sri Manche Gowda Vs. State of Karnataka, AIR 1984 SC 1151, wherein it is held that it is not possible to accept that the conditions contained in Form-D are illegal or invalid and dismissed the writ petition. Therefore, with regard to the same subject matter, the Division Bench has held as above and hence, the submission that in the present case, no provision in pari materia as in the Karnataka Act is existing is immaterial since the lands were assigned to persons belonging to the depressed classes subject to the above conditions.

The other submission that since the alienation of these lands was in the year 1925, it will not bind those lands and since the alienation in favour of the appellants was made in the year 1925, these conditions will not affect them can also not hold good, because the Act, as we have seen, by which the lands were distributed to the depressed classes and to secure transfer of those lands contrary to the conditions of assignment.

59. Applying the principles laid down in the said decision of this Court, this Court is of the considered view that in the absence of original assignment order in favour of Palani dated 25.10.1930 and since the persons who executed Ex.A2 to A4 Sale Deeds belong to Adi Dravida Community (Depressed Classes) and since the alienation have taken place in the year 1959 and that it is more than the stipulation of 10 years period for alienation it cannot be accepted that the conditional assignment originally granted to Palani on 25.10.1930 will not affect the EX.A2 to A4 Sale Deeds because of the fact that that as per Section 15(41)(4)(iii) if the condition of non alienation is violated or if the land ceases to be owned by the assignee or his legal heirs or (after ten years) other members of their class, owing to sale by process of law or otherwise etc., the grant will be liable to be resumed by the Government who will be entitled to re-enter and take possession of the land without payment of any compensation or refund of the purchase money and therefore it is held that the Sale Deeds Ex.A2 to A4 in favour of the Appellant/Plaintiff's mother-in-law do not convey a marketable and valid title because of the fact that the economic interests of the Respondents/Defendants who belong to Adi Dravida Community will have to be protected under exploitation by others on account of poverty, illiteracy and ignorance must be prevented.

60. The evidence of P.W.2 is to the effect that the Appellant/Plaintiff's husband has enjoyed the suit property for 25 years but he has admitted categorically in his cross-examination that he is the relative of the Appellant/Plaintiff. Likewise, P.W.3 has also deposed that the suit property has been enjoyed by the Appellant/Plaintiff and that he is also a relative of the Appellant/Plaintiff further, P.W.4 has also stated that the Appellant/Plaintiff is enjoying the suit property and that she is also relative to the Appellant/Plaintiff and other witnesses namely P.W.2 and 3. Admittedly, D.W.1/3rd Defendant in his evidence has stated that in regard to suit property Patta has been given to Palani's family and they are Ex.B1 to B6, 13, 14, 17 and 18. Ex.B1 is Patta in the name of Karuppan's son Palanisamy and 5 others, in respect of survey No.363 measuring an extent of 0.96.5 ares. Ex.B2 Patta bearing No.879 stands in the name of Palani's son Bannari and 5 others in respect of property bearing survey No.363, 0.96.5 ares, Ex.B3 is Patta bearing No.879 which stands in the name of Marakkal wife of Ramasamy and 5 others. Ex.B13 is Chita which stands in the name of Palani Sakkili's sons Karuppan, Nagan, Arumugam and Bannari in respect of survey No.363 2 hectares and 39 ares, in this there is a reference that as per Reference 59 DR/40 dated 25.10.1930, the land has been assigned in favour of Palani Sakkili by means of mortgage as per 1 to 10 clauses found therein. Ex.B14 is the Chitta in respect of survey No.363 in the name of Palanisamy and 5 others. Ex.B17 is the resurvey settlement xerox copy register wherein, it is among other things mentioned that grant to BC members Palani Sakkili vide Deputy Tahsildar 59 DR/40 dated 20.08.1930. In the said document, it is mentioned as Government poramboke Viz., village site Natham. As admitted, the Defendants have not been in the village for the past 20 years the 3rd Defendant has not resided in the suit property. D.W.1 in his evidence has stated that D1 and 2 have houses in the Harijan colony in the suit village but they have not been residing for the past 10 years. D.W.1 (3rd Defendant) in his evidence has filed Ex.B7 to B10 (tax receipts) B15 and 16 (the Adangals). D.W.2 has also stated that he has served as Village Administrative Officer at Chikkadasampalayam and the said village survey No.363 lands from the year 1930 has been in enjoyment of Palani Sakkili and his sons and that Patta has been granted and also mentioned in the Chita and Adangal. The Defendants have filed B1 to B18. However from the year 30.11.1959 to 23.04.1983 Viz., Ex.A5-receipt there is no documentary evidence filed on behalf of the Appellant/Plaintiff that she and her predecessors have enjoyed the suit property. Inasmuch as the Defendants have filed Ex.B1 to B18 documents one can safely conclude that Palani and his heirs have been enjoying the suit property continuously and therefore by any such of imagination, it cannot be said that the Appellant/Plaintiff and her predecessors have been enjoying the suit property in a open hostile fashion uninterruptedly, adverse to the rights of the Defendants/Respondents and in that view of the matter this Court comes to an inevitable conclusion that the Appellant/Plaintiff is not entitled to claim the relief of adverse possession.

61. D.W.1 (D.W.3) in his evidence has stated that he along with his family have enjoyed the suit property and therefore it cannot be said that the Respondents/Defendants have prevented the Appellant/Plaintiff from enjoying the suit property and in this regard there is no acceptable evidence as opined by this Court and therefore the Appellant/Plaintiff is not entitled to claim the relief of permanent injunction.

62. In the present case on hand, the fact that the suit land has been originally assigned to Palani on 25.10.1930 with condition has been mentioned in the written statement of the Respondents/Defendants. Also, the Appellant/Plaintiff's sister Marakkal has purchased some shares in suit property as per Ex.A2 to A4 Sale Deeds and these Sale Deeds will not convey any marketable or valid title in her favour. Moreover, on the facts and circumstances of the present case, the ingredients of Section 43 of the Transfer of Property Act will not apply because of the fact that the persons who dealt with the transfers as per Ex.A2 to A4 Sale Deeds have not acquired subsequently any interest in the property. Indeed, Section 43 of the Transfer of Property Act does not apply when both parties are aware that the transferee had no title. Also, Section 43 of the Transfer of Property Act does not validate the transfer prohibited by statutes etc.

63. In the light of detailed discussion qualitative and quantitative discussions mentioned supra and on an oral assessment of the facts and circumstances of the case in an integrated fashion and on consideration of the available oral and documentary evidence on record, this Court comes to an inevitable conclusion that even in the absence of original grant etc., the Appellate Court is right in assuming that there have been restrictions regarding alienation and the non production of original grant in favour of Palani dated 25.10.1930 will not draw an adverse inference against the Respondents/Defendants and further the Sale Deeds Ex.A2 to A4 in favour of Marakkal will not convey any marketable or valid title because the Assignment land has been given to the person belonging to a depressed class Viz., 1st and 2nd Defendant's father and grandfather of the 3rd Defendant Viz., Palani and as per Standing Order 15(41)(4)(iii), the Government is entitled to resume the land and take possession of the same without payment of any compensation or refund of purchase money, if the condition of non alienation is violated or if the land ceased to be owned by the assignee or his legal heirs or (after 10 years) other members of their class etc., and added further it is held that the finding of the Appellate Court that the Appellant/Plaintiff has not proved continued possession is legally permissible and it need not be proved as to how the respondents have got back possession from Marakkal thereafter and the Substantial Questions 1 to 3 are answered against the Appellant/Plaintiff and resultantly the Second Appeal fails.

M.VENUGOPAL, J.

nb

64. In the result, the Second Appeal is dismissed leaving the parties to bear their own costs. Resultantly, the Judgment and Decree of the First Appellate Court Viz., Learned Second Additional District Judge, Coimbatore, in A.S.No.12 of 1995 dated 23.01.1996 are confirmed by this Court for the reasons assigned in this Second Appeal. Having regard to the facts and circumstances of the case, the parties are directed to bear their own costs. Consequently, C.M.P.No.12291 of 1996 is closed.

30.07.2010 nb Index : Yes Internet : Yes To

1. Second Additional District Munsif, Coimbatore.

2. Second Additional District Judge, Coimbatore.

Second Appeal No.1258 of 1996 and C.M.P.No.12291 of 1996