(Prayer: Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 20.04.2000 in A.S.No.70 of 1983 on the file of the learned Principal Subordinate Judge, Dindigul in confirming the judgment and decree dated 22.09.1982 in O.S.No.678 of 1981 on the file of the learned Principal District Munsif, Dindigul.)

This second appeal is focussed as against the judgment and decree dated 20.04.2000 in A.S.No.70 of 1983 on the file of the learned Principal Subordinate Judge, Dindigul in confirming the judgment and decree dated 22.09.1982 in O.S.No.678 of 1981 on the file of the learned Principal District Munsif, Dindigul.

2. The parties are referred to hereunder in the same order as they were arrayed before the trial Court.

3. Broadly but briefly, pithily but narratively, the case of the plaintiffs could be portrayed thus:

The first plaintiff and the second plaintiff, being the brother of the first plaintiffs father, filed the suit as against the three defendants. The second plaintiff Kandasamy Gounder and the first plaintiffs father Palaniappa Gounder and the first defendant Vellaian alias Palaniappa Gounder happened to be sanguine brothers, being the sons of late Periyanna Gounder. The first plaintiffs father is an ex-serviceman who was assigned with the suit property measuring an extent of six acres and thirty two cents. While so, the second plaintiff Kandasamy Gounder contributed his arduous labour on the eastern portion of the suit property and reclaimed it and thereby started occupying that area with the consent of the first plaintiffs father. After the death of the first plaintiffs father, the first plaintiff Periyasamy started enjoying the western portion of the suit property. While so, the first defendant and the first defendants sons viz., second and third defendants without any manner of right barged in to the suit property and attempted to cut and remove the trees, whereupon the plaintiffs were constrained to file the suit based on the pattas, tax receipts and various other documents.

4. Impugning and challenging, denying and refuting the allegations/averments in the plaint, the defendants filed the refutatory written statement; the gist and kernel of it would run thus:

The suit property was not assigned in favour of the first plaintiffs father, whereas the first plaintiffs father, second plaintiff and the first defendant were enjoying the suit property jointly. The Zamin patta Ex.B2 and ryotwari patta were issued in the name of the first defendant and the second plaintiff.

5. By availing loan from the Co-operative Land Mortgage Bank, Reddiar Chathiram, the first defendant sunk bore well and also purchased motor pump sets and installed them for pumping out water from the said well. Tobacco was cultivated by the third defendant viz., Maruthaiappan, for which the Central Excise Department also had given licence. At no point of time, the plaintiffs were in exclusive possession and enjoyment of the suit property hostile to the ownership and possession of the defendants. Accordingly, the defendants prayed for the dismissal of the suit.

6. The trial Court framed the relevant issues and during trial, on the side of the plaintiffs the first and second plaintiffs examined themselves as P.Ws.1 and 2 along with P.W.3 and Exs.A.1 to A.38 were marked. On the side of the defendants, the third defendant examined himself as D.W.2 along with D.Ws.1 and 3 and Exs.B.1 to B.57 were marked.

7. The trial Court ultimately decreed the suit granting the reliefs of declaration and injunction.

8. Challenging the said Judgment and decree of the trial Court, the defendants preferred the first appeal before the Principal Sub Court, Dindigul, which Court confirmed the Judgment and decree of the trial Court.

9. Being aggrieved by and dissatisfied with the Judgments and decrees of both the Courts below, the second appeal has been filed on the grounds inter-alia thus:

The Judgments and decrees of both the Courts below are against the weight of evidence and those Judgments were passed without appreciating the facts placed before it. The Courts below misinterpreted the documents and also disbelieved the authentic documents filed on the side of the defendants. The plaintiffs failed to prove that the land was assigned in favour of the first plaintiffs father by way of honouring his service in the army. Accordingly, they prayed for setting aside the Judgments and decrees of both the Courts below and consequently for dismissing the original suit filed by the plaintiffs.

10. The following substantial question of law was framed by my learned Predecessor at the time of admitting this second appeal:

"Whether the judgment and decree of the Courts below are sustainable in law as the courts below have not appreciated the entire evidence available on record and the law applicable to the facts of the case"

11. Heard the learned counsel for the appellants/defendants. The names of the respondents/plaintiffs were printed, even so neither the plaintiffs nor their Advocate appeared and represented.

12. A resume of facts absolutely necessary and germane for the disposal of this second appeal would run thus:

Unassailably and indubitably, the first plaintiffs father Palaniappa Gounder, the second plaintiff Kandasamy Gounder and the first defendant Vellaian alias Palaniappa Gounder happened to be sanguine brothers related by full blood. Neither of the parties could produce any title deed as both sides relied upon patta, tax receipts and other documents.

13. At this juncture, I would like to highlight the trite proposition of law that patta by itself would not constitute title, nonetheless it might be relied on as a piece of evidence. Both the Courts below were proceeded on the assumption as though patta could be taken as document of title. The perusal of the Judgment of the trial Court would leave no doubt in the mind of the Court that the trial Court virtually thought that the Zamin patta and the subsequent patta are all documents of title of the plaintiffs, forgetting for the movement that those pattas can never be treated as documents of title.

14. At this juncture, I would like to refer to the following decisions of this Court:

(i) Velayudham Pillai v. Sandhosa Nadar and others reported in 1973(1) MLJ 44.

(ii) Kuppuswami Nainar v. The District Revenue Officer, Thiruvannamalai and others reported in 1995 (1) MLJ 426. [LQ/MadHC/1994/869]

15. The aforesaid decisions are to the effect that patta alone would not construe title.

16. In this connection, the decision of this Court in Srinivasan and 6 others v. Sri Madhyarjuneswaraswami, Pattavaithalai, Thiruchirappalli District by its Executive Officer at Pattavaithalai Devasthanam and 5 others reported in 1998 (II) M.L.J Page 722. An excerpt from it, would run thus:

"15. Further, the mere fact that the orders passed or decisions rendered under these Acts were given finality for the purposes of those Acts or that the issues, which they are oblilged or required to be decided, when so decided are ordained to bind the parties to the proceedings or their privies and successors-in-interest applying the principles of resjudicata does not have the effect of outing the jurisdiction of the Civil Court once and for all. It is by now well settled that even in cases where finality is accorded to any decision or order, there are certain well settled exceptions and proved the existence of such exceptional factors, the Civil Court is entitled to nullify any or all such decisions. Similarly, even in cases where the principles of res judicata are rendered applicbale, the jurisdiction of the competent Civil Court to go into the question and find out whether the necessary ingredients to apply the principles of res judicata exist in a given case or not cannot be denied to the Civil Court and from the mere fact of according finality to the orders or decisions rendered under the or the application of the principles of res judicata a total or complete bar or ouster of the jurisdiction of the Civil Courts for all and any purpose cannot be automatically inferred or implied. Before a plea of res judicata can be given effect to, it must be sufficiently pleaded and established that the litigating parties must be the same, that the subject matter of the suit and the other proceedings also are identical, that the questions arising in the suit and the other proceedings were directly and substantially in issue and the same ws finally decided and that too by an authority or court of competent jurisdiction.

16. On coming to know of the existence of an unreported decision of the Apex Court rendered by a Bench consisting of three of their Lordships, efforts were made to secure the same when the judgments in this case was under preparation and it was ascertained that in Civil Appeal No.5141 of 1993 Sri-La-Sri Sivapradkasa Pandara Sannadme Avargal v. Smt.T.Parvathi Ammal and others, (1998)2 L.W. 188, their Lordships of the Apex Court by a judgment dated 20.2.1996, not only approved the earlier decision of the Apex Court reported in R.Manicka Naicker v. Elumalai Naicker, (1995) 4 S.C.C. 156 and set their seal of approval to the principles laid down therein, but had categorically held in unmistakable terms that the decision in (Vatticharularu Village Panchayat v. Nori Venkatarama Deekchithulu, 1991 (2) S.C.C (Supp.) 228) has no application to the provisions or in respect of claims arising under the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963. Their Lordships of the Apex Court in coming to such a conclusion, held as follows:

"The only question for decision relates to the jurisdiction of the Civil Court to entertain the suit which was filed by the respondent. The trial Court decreed the suit. The First appellate Court set aside the decree taking the view that the civil Courts jurisdiction was barred. In the second appeal filed by the present respondents, the High Court has restored the judgment and decree of the trial Court taking the view that the civil Courts jurisdiction was not barred.

The plea of exclusion of the Civil Courts jurisdiction to adjudicate the title of the parties in the present case is based on the provisions of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963. This Court in a recent decision in R.Manicka Naicker v. Elumalai Naicker, (1995) 4 S.C.C. 156:(1995) 1 L.W 731, has clearly held that the Civil Courts jurisdiction to adjudicate title of the parties, is not barred by virtue of the provisions of the said Act. This is a direct decision of this Court on the provisions of the with which we are concerned in the present case. Learned Counsel for the appellant placed reliance on the decision in Vatticharularu Village Panchayat v. Nori Venkatarama Deekchithulu, 1991 (2) S.C.C (Supp.) 228. It is sufficient to observe that this decision relates to the provisions under a different Act of Andhra Pradesh. Moreover, in R.Manicka Naicker, this decision relating to the provisions in the Andhra Pradesh Act was considered and distinguished. In view of the direct decision of this Court in R.Manicka Naicker, there is no merit in this appeal. The appeal and the Contempt Petition are dismissed."

17. In view of the above unreported decision of the Supreme Court, the decision in S.Vanathan Muthuraja v. Ramalingam, (1997) 6 S.C.C. 143 : (1997) 3 L.W. 231 rendered without even referring to the earlier reported decision of the very same Court in R.Manicka Naicker v. Elumalai Naicker, (1995) 4 S.C.C. 156:(1995) 1 L.W 731 and the unreported decision of even a larger Bench directly arising under the Tamil Nadu Act 30 of 1963, cannot be said to lay down or declare the correct position of law or constitute a binding precedent.

18. For all the reasons stated above, we answer the question referred to the Full Bench in the negative by holding that the jurisdiction of the civil Court to entertain a suit for declaration of title and injunction is not barred by reason of the grant of patta under the provisions of Tamil Nadu Act 30 of 1963.

19. We direct the respective appeals to be posted before the learned single Judge concerned for the disposal of the appeals on merits in the light of the answer given on the reference made to the Full Bench. The cost in the appeals shall abide by the result of the appeals on merits."

17. The excerpt extracted above and also the perusal of the entire Judgments cited supra would highlight and spotlight the facts that patta cannot be considered as document of title. In fact, the decision of Division Bench of this Court cited supra would go a step further and highlight that Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 and Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 cannot be taken as total embargoes for the parties to get their title decided before the civil Court. It is therefore clear that de hors the patta proceedings and pattas, the civil Court could have very well independently decided the title to the suit property. The trial Court simply believed the documents filed on the side of the plaintiffs and in a one sided manner barely held the title in favour of the plaintiffs. Even though the trial Court dealt with the documents marked on the side of the defendants, nonetheless it rejected all those documents, citing one reason or other. It is therefore just and necessary to consider the correctness of the decision of the trial Court on those aspects.

18. In paragraph No.11 of the Judgment of the trial Court, it is found held by the trial Court correctly that Ex.B2 to B.11 and B.16, patta and kist receipts relating to the suit property and Ex.B.13 to B.15, B.17 and B.26 to B.42 are the receipts for payment of current charges and the documents relating to the motor and pump set concerning the suit well, are in the custody of the defendants. Placing reliance on such a finding by the trial Court, the learned counsel for the appellants/defendants would argue that to that much extent, the finding of the trial Court could be accepted and that is the case of the defendants also. However, surprisingly, the trial Court went to the extent of holding that simply because those documents have been produced on the side of the defendants, there was no presumption that it was they, who actually paid the tax and that those documents would not enure to the benefit of the defendants. In fact, in the last portion of paragraph No.11, it is found stated by the trial Court that according to the first plaintiff, as P.W.1 after his fathers death they had no assistance and the defendants being related to them in close degrees had occasion to visit their house and on one such occasion they had removed those documents, which have been produced by them before the Court.

19. The learned counsel for the appellants/ defendants convincingly and correctly would comment upon such an observation made by the trial Court and develop his arguments that such voluminous documents as set out supra could not have been simply taken away by the defendants and in connection with that, no proceedings were initiated by the plaintiffs. He has also appositely argued that Palaniappa Gounder, i.e., the first plaintiffs father, died in the year 1961, but the documents filed before the trial Court emerged subsequently and in such a case there was no likelihood of those documents having been emerged during the time of the first plaintiffs father and such documents being grabbed away by the defendants. The peculiar feature involved in this case is that the trial Court itself observed that Ex.A8, B.2 and B.33 receipts issued by the Co-operative Land Mortgage bank, were produced on the side of the plaintiffs, whereas similar receipts issued by the Land Mortgage Bank, viz., Ex.B.18 to 25, B.44 and B.45 relating to the loan availed for sinking the bore well in the suit property were produced on the defendants side. The ratiocination adopted by the trial Court is far from satisfactory as it is not known as to how when the defendants had allegedly taken away Exs.B18 to 25 and B.44 and B.45 from the custody of the plaintiffs they could have left out Exs.A15 to 28 alone.

20. It is a trite proposition of law that preponderance of probabilities would govern the adjudication in civil cases. The case of the defendants is that it is they, who actually availed loan from the Co-operative Land Mortgage Bank and for sinking the bore well in the suit property and that they have been jointly in possession of the suit property. The very fact that some of the receipts in discharge of the loan were with the plaintiffs and some other receipts were with the defendants, would connote and denote that both the plaintiffs and defendants were in joint possession of the suit property. This aspect has not been considered by both the Courts below.

21. Absolutely there is iota or shred of evidence to demonstrate that the suit property was assigned by the Government in favour of the first plaintiffs father in recognition of his military service. It is a well known fact that ex-serviceman are normally given with land. But there would be clinching records to that effect. Had really there been any assignment, the plaintiff must have been able to produce the documents before the Court. But for reasons best known to them, they have not produced any such documents.

22. Both the Courts below should have looked askance at the plea of the plaintiffs, but they ignoring the probabilities simply believed their case. The onus of proof is on the plaintiffs to prove that they are the exclusive owners of the suit property. But they failed to discharge their burden. Furthermore, the probabilities as discussed supra are against the case of the plaintiffs also.

23. There is one other glaring defect in the plaintiffs case, which the learned counsel for the appellants/defendants had highlighted during arguments to the effect that had really the first plaintiffs father happened to be the exclusive owner of the suit property then there would have been no possibility or probability of the second plaintiffs name figuring in the pattas, which emerged subsequently. No doubt, the plaintiffs have come forward with a farfetched case as if the second plaintiff Kandasamy Gounder contributed his extraordinary arduous labour and effort and reclaimed the uneven eastern portion of the suit property and hence that uneven eastern half portion was given to him. Absolutely that remains only the ipse dixit of the first plaintiff i.e., P.W.1 and his witnesses and it is not borne by any clinching evidence. In fact, the way in which the plea has been taken would convey the idea to that the plaintiffs intend exclude the first defendant from the suit property as the first and second plaintiffs wanted to take the entire property and they felt that if the first defendant also is included in sharing the property, the plaintiffs respective shares would get diminished. D.W.1, the revenue official concerned, clearly with reference to the village register highlighted that the patta stands only in the name of Palaniyappa Gounder and Kandasamy Gounder and not in the name of Periyasamy Gounder; even though Ex.A4 the patta dated 02.06.1981, which refers to the first plaintiff and the second plaintiff. D.W.1 was cross examined on that aspect, however he clearly highlighted that if at all there were changes, the surveyor would have highlighted it and thereupon effective steps would have been taken. Here no such steps have been taken by the surveyor as the reality is different from the one pleaded by the plaintiffs. According to him the village register would speak only in the names of Palaniyappa Gounder and Kandasamy Gounder. I am having no reason to doubt the genuineness of the deposition of D.W.1.

24. Ex.B.56, which is the tobacco licence in the name of the third defendant relating to the suit property bearing survey No.888, which is also referred as Kattupu Thottam, goes against the case of the plaintiffs and supports the case of the defendants. The trial Court simply for the purpose of depriving the defendants from relying on such clinching and authentic evidence, which proved the joint possession of the defendants, observed as though the ink with which that survey number was specified, differs. I am at a loss to understand as to how the Court of its own accord without any experts assistance could arrive at such a conclusion. Mere look at Ex.B.56 does not convey there was any interpolation or insertion or fabrication. The trial Court while doubting that Ex.B.56 was not related to the suit property, then the question arises as to which property then it relates to. There was no evidence on that. The plaintiffs who are attacking Ex.B.56, should be able to convincingly point out as to which property Ex.B.56 according to them, relates. I am fully aware of the fact that it is not the duty of the plaintiffs to prove the defendants case. But once the plaintiffs are disputing the genuineness of the document of Ex.B.56, the plaintiffs should have explained that it relates to some other property. They have also not chosen to summon the Government official concerned to produce registers pertaining to the suit property without resorting to such procedures, the approach of the trial Court as well as the first appellate Court in discarding Ex.B56 which was issued by the Central Excise Department, cannot be countenanced. Certainly, Ex.B.56 should be treated as a document in favour of the defendants case and as against the plaintiffs theory that they have exclusive possession and enjoyment of it. It is therefore clear that the Judgments and decrees of both the Courts below are perverse as they were based on misinterpretation of the evidence as well as the documents placed before them and consequently this second appeal has to be allowed.

25. Accordingly the substantial question of law is answered to the effect that both the Courts below have not appreciated the entire evidence available on record in the proper perspective by applying correct proposition of law.

26. In the result, the second appeal is allowed, setting aside the Judgments and decrees of both the Courts below and ultimately the original suit is dismissed. In the facts and circumstances of this case, there is no order as to costs.