(Prayer in S.A.: Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree dated 20.02.2014 in A.S.No.36 of 2013 passed by the Subordinate Judge, Harur reversing the judgment and decree dated 03.08.2012 in O.S.No.83 of 2011 on the file of the District Munsif, Gingee.)

1. This Second Appeal filed by the appellant/defendant arises out of the decree dated 20.02.2014 in A.S.No.36 of 2013 on the file of the Subordinate Judge, Harur, reversing the judgment and decree dated 03.08.2012 in O.S.No.83 of 2011 on the file of the District Munsif Court, Harur. The suit is one for declaration of title and permanent injunction.

2. For the sake of convenience parties are referred to by their ranks as stood before the trial court.

3. The plaintiff and the defendant are sisters. The plaintiff claims title to the suit properties namely Survey No.14/3 (Punjai – 1.88 acres), Survey No.18/2 (Punjai – 2.94 acres), and Survey No.18/6 (Punjai – 0.79 acres), together with a well and a thatched dwelling house, situate in Malai Thangi Village. Her claim is founded on Government assignment/D-card records, issued in her name viz., Ex.A1, relating to Survey No.18/2 for an extent of 2.94 acres with theervai Rs.0–91, and Ex.A2, relating to Survey No.14/3 (1.88 acres, theervai Rs.0–59) and Survey No.18/6 (1.68 acres, theervai Rs.0–25), under which she asserts exclusive title and possession. According to the plaintiff, the defendant, after repeatedly requesting her to sell a portion of the suit properties and failing, approached the revenue authorities and obtained patta in her favour without the plaintiff’s knowledge or consent, taking advantage of the plaintiff’s illiteracy. The plaintiff’s further case is that, without any lawful divestment of her assignment rights, the defendant procured mutation of patta and began asserting rights over portions of the suit lands, and that on 20.05.2011 the defendant attempted to interfere with her possession by ploughing the lands, which was resisted with the help of villagers.

4. In support of his enjoyment pursuant to the said assignments, the plaintiff produced Ex.A3, being a record of land ownership bearing Patta No. 84, relating to the suit survey numbers, namely: Survey No. 14/3 (punjai) with an extent of 1.88 acres and theervai fixed at 0.59; Survey No. 18/2 (punjai) with an extent of 2.94 acres and theervai fixed at 0.91; and Survey No. 18/6 with an extent of 0.80 acres and theervai fixed at 0.25.

5. The plaintiff further produced kist receipts, namely Ex.A4 for Fasli year 1388, Ex.A5 for Fasli year 1389, Ex.A6 for Fasli year 1392, Ex.A7 for Fasli year 1393, Ex.A8 for Fasli year 1394, and Ex.A9 for Fasli year 1395, being receipts of the mid-1980s culminating in the year 1986, evidencing payment of land revenue consistent with the theervai fixed under the assignments.

6. The plaintiff contends that the UDR patta dated 24.05.2011 issued in favour of the defendant is illegal and void, and that when she approached the revenue authorities seeking cancellation of the same, she was informed that such relief could be granted only pursuant to a decree of a competent civil court, necessitating the present suit for declaration of title and permanent injunction.

7. The appellant/defendant, while admitting the relationship between the parties as sisters and not disputing that the original Government assignments under Ex.A1 and Ex.A2 stood in the plaintiff’s name, denies the plaintiff’s claim of exclusive title and possession. According to the defendant, the father of the parties, Ramasamy, had taken possession of the lands several decades prior to the suit, cleared and developed them, and brought them under cultivation when both the plaintiff and the defendant were minors, and the family as a whole was in enjoyment of the properties. It is the defendant’s case that the D-Card pattas were obtained in the plaintiff’s name only because she was the major daughter at the relevant time and that such issuance did not confer exclusive ownership on the plaintiff. The defendant further pleads that after she attained majority , in the year 1982 an oral partition was effected by their father in the presence of villagers of the suit properties and other properties amongst all the family members including his brothers Selvam, Krishnan, Velayudham, pursuant to which specific portions of the assigned lands fell to her share, and that such allotment was acted upon and came to be reflected in the revenue records.

8. The defendant asserts that from the date of such partition she has been in exclusive cultivation and enjoyment of the portions allotted to her, that she constructed a well and obtained electricity service connection, that separate pattas were issued in her name in respect of Survey No.14/3C (0.47.5 acres), Survey No.18/2A (0.22.5 acres), and Survey No.19/1A (0.18.0 acres), and that the survey numbers mentioned in the plaint are incorrect in view of such subdivisions.

9. In support of this plea, the defendant relies primarily on Ex.B1 patta No 31 dated 25.2.1986 being a patta issued in respect of Survey No. 14/3C with an extent of 0.47.50 ares and theervai of 0.35; Survey No. 18/2A with an extent of 0.22.50 ares and theervai of 0.20; and Survey No. 19/1A with an extent of 0.16.00 ares and theervai of 0.10, aggregating to a total extent of 0.86.00 ares with theervai fixed at 0.65.

10. Ex.B2 is a computerized version of Ex B1 Patta No. 31, relating to said Survey numbers with slightly differing extent such as Survey No. 14/3C with an extent of 47.50 ares and theervai of 0.33; Survey No. 18/2A with an extent of 22.80 ares and theervai of 0.17; and Survey No. 19/1A with an extent of 18.00 ares and theervai of 0.14, the total extent being 88.00 ares with theervai of 0.64.

11. The defendant further marked a series of kist receipts, namely: Ex.B7 dated 06.02.1988 for Patta No. 37; Ex.B8 dated 23.01.1990; Ex.B11 dated 05.01.1992; Ex.B9 dated 22.02.1994; Ex.B13 dated 02.01.1996; Ex.B12 dated 01.02.1997; Ex.B10 dated 10.03.1998; Ex.B14 dated 22.01.2000; Ex.B15 dated 09.01.2001; Ex.B6 dated 15.02.2002; Ex.B16 dated 13.02.2003; Ex.B17 dated 04.03.2008; Ex.B18 dated 05.03.2011; and Ex.B19 relating to Fasli year 1402. Ex.B3 is a computerized patta bearing Patta No. 28 standing in the name of the plaintiff, relating to Survey No. 14/B with an extent of 23.00 ares and theervai of 0.20; Survey No. 18/2B with an extent of 20.50 ares and theervai of 0.16; and Survey No. 19/1B with an extent of 57.00 ares and theervai of 0.41.

12. Ex.B4 is a computerized patta bearing Patta No. 162 standing in the names of Kumar, son of Velayutham, and Senthil, son of Velayutham, relating to Survey No. 14/3A with an extent of 5.50 ares and theervai of 0.06, and Survey No. 19/1C with an extent of 89.50 ares and theervai of 0.69, the total extent being 95.00 ares with theervai fixed at 0.75.

13. Contending that it is the plaintiff who is attempting to interfere with her lawful possession and enjoyment, the defendant seeks dismissal of the suit.

14. The trial Court, upon consideration of the pleadings, oral evidence of PWs.1 to 3 and DWs.1 to 3, and the documentary evidence marked as Exs.A1 to A9 and Exs.B1 to B21, found that the plaintiff’s claim of ownership was based on the D-Card assignment dated 22.05.1970, supported by Exs.A1 and A2, and the land title deed of the year 1974 (Ex.A3), along with kist receipts evidencing payment of land revenue prior to 1986. However, the Court noted that the evidence of PWs.2 and 3 did not materially strengthen the plaintiff’s case on exclusive possession. On the defendant’s side, the trial Court found that Patta No.31, issued in the defendant’s name in the year 1986 (Ex.B1), covered subdivided extents in Survey Nos.14/3C, 18/2A and 19/1A, and that the defendant had produced subsequent revenue records and kist receipts evidencing payment of land revenue in respect of those extents. The Court accepted the defendant’s plea that the original survey numbers had been subdivided and that, pursuant to a family partition, the defendant was in independent possession of the portions covered under Patta No.31, a fact which was supported by the testimony of DW-3, the maternal uncle of the parties. The trial Court further held that the defendant was in possession only of the extents covered under her patta, while the plaintiff continued to hold other portions, and that the plaintiff, despite alleging fraud in the issuance of patta to the defendant, had not taken steps to have the same cancelled. In view of the evidence relating to subdivision, possession, and patta standing in the defendant’s name, the trial Court concluded that the plaintiff had failed to establish entitlement to declaration and permanent injunction in respect of the entire suit properties as claimed, and accordingly dismissed the suit, directing the parties to bear their own costs.

15. The first appellate Court, on a reappraisal of the entire documentary evidence, found that the suit lands stood surveyed in the year 1970 and that Government D-Card pattas had been issued in favour of the plaintiff under Exs.A1 and A2, covering Survey Nos.18/2, 14/3 and 18/6 for the respective extents shown therein. It noticed that the plaintiff’s title was further supported by the land title deed of the year 1974 (Ex.A3) and by a series of kist receipts (Exs.A4 to A9) evidencing payment of land revenue by the plaintiff pursuant to such assignments. The appellate Court recorded a clear finding that the original Patta No.84 stood in the plaintiff’s name and that she had been discharging the revenue liability attached to the said patta. It further found that Patta No.31, issued in the defendant’s name on 25.02.1986 (Ex.B1), related to the very same survey numbers and was the result of a mutation effected by the Revenue Department. On examining Exs.B2 to B5 and the subsequent kist receipts produced by the defendant, the appellate Court held that no material had been placed to show that the transfer from Patta No.84 to Patta No.31 was preceded by compliance with the mandatory statutory procedure, namely issuance of notice to the existing pattadar, calling for objections, or obtaining consent. The Court specifically noted the absence of any affidavit or lawful explanation as to how a subsisting patta in the plaintiff’s name was divested, despite her continued payment of revenue. The appellate Court therefore concluded that the alteration of patta in favour of the defendant had been effected without prior notice to the plaintiff and contrary to the procedure governing patta transfer and survey administration, and that such unilateral mutation could not defeat the plaintiff’s subsisting rights flowing from Government assignment. On these findings, the first appellate Court held that the patta issued in favour of the defendant was legally unsustainable and that the plaintiff was entitled to declaration of her rights and consequential relief, and accordingly reversed the judgment of the trial Court. Aggrieved by the Judgment , defendant preferred this second appeal.

16. The Second appeal was admitted on 30.4.2014 on the following substantial questions of law which is extracted verbatim here below:

                   1. While reversing the decision of the trial court is not the lower appellate court bound to consider each and every one of the points considered and decided by the trial court and in the absence of the case is not the judgment vitiated?

                   2. In the absence of challenging the change of patta which took place as early as in 1982 for nearly over two decades is the lower appellate court correct in holding that transfer of patta was invalid?

                   3. Is the lower appellate court correct and justified in upholding plaintiff’s title even without considering the plea that there was partition in the family and by virtue of partition in the family and by virtue of partition property was allotted to defendant which formed basis for change or patta in 1982?

17. The plaintiff claims title to three items of properties measuring a total extent of 5 acres and 61 cents, comprised in S.No.14/3 (1.88 acres), S.No.18/2 (2.94 acres), and S.No.18/6 (0.79 acres). In support of her claim, she relied upon D-pattas marked as Exs.A1 and A2 dated 22.05.1970 and 20.06.1970, respectively, and the patta passbook for the year 1974 relating to Patta No.84. Under Ex. A3, the suit schedule properties are recorded to the extent claimed by the plaintiff. The plaintiff also produced kist receipts relating to Patta No.84 for the years 1979, 1980, and 1983 to 1986.

18. The suit came to be filed in the year 2011. However, the plaintiff did not produce any document relating to the suit properties subsequent to the year 1986. Further, although Patta No.28 dated 06.06.2011 stood in her name, the plaintiff failed/suppressed to produce the same before the trial court.

19. On the defendant’s side, Patta No.28 dated 06.06.2011 was produced and marked as Ex.B3. A perusal of Ex. B3 shows that S.No.14/3 was subdivided as S.No.14/3B and S.No.18/2 as S.No.18/2B, with extents shown as 0.57 cents and 0.51 cents, respectively. S.No.18/6 is not found in this patta. The plaintiff did not explain under what circumstances Patta No.28 came to be issued in her name after subdivision of the first and second items of the suit properties.

20. Further, Patta No.162, standing in the names of the plaintiff’s brother’s sons Kumar and Senthil, was marked as Ex. B4 dated 06.06.2011, wherein S.No.14/3A is mentioned. Patta No.45, standing in the name of the plaintiff’s brother Krishnan, was marked as Ex. B5 dated 06.06.2011, in which S.No.18/2D is mentioned.

21. The patta standing in the name of the defendant was marked as Ex. B1 dated 25.02.1986, wherein the suit item properties were shown as S.No.14/3C and S.No.18/2A after subdivision. The defendant also produced kist receipts relating to Patta No.31, marked as Exs.B7 to B19, evidencing payment up to the year 2011.

22. The subdivisions reflected in the above documents clearly indicate that mutation of revenue records had taken place in respect of the suit properties and other properties among the children of Ramasamy, the father of the plaintiff and the defendant.

23. The defendant’s case is that although the D-patta was issued in the name, of plaintiff, the suit properties and other lands measuring a total extent of 15 acres were in possession of her father and family members. According to her, even during the lifetime of her father, there was an oral partition among his children, and under the said partition, the suit properties were allotted to her and the defendant. In pursuance of the said oral partition, revenue records were mutated and Patta No.28 was issued in favour of the plaintiff and Patta No.31 in favour of the defendant in the year 1986. The defendant’s plea of partition among the children of Ramasamy, which fact was admitted by P.W.2 in his evidence.

24. The plaintiff, however, failed to give any satisfactory explanation as to why the mutation of revenue records was effected as early as 1986. Her contention that the patta was wrongly issued in the defendant’s name during the UDR Scheme, and that she came to know of the same only on 20.05.2011, when the defendant attempted to trespass into the property, is not convincing. The plaintiff’s plea that she became aware of the mutation effected in the year 1986 only in the year 2011 nearly after a quarter century is highly improbable.

25. Further, while alleging that Patta No.31 standing in the defendant’s name was wrongly issued during the UDR Scheme, the plaintiff offered no explanation for the subsequent subdivisions and issuance of Patta Nos.28, 45, and 162 in the names of herself, her brother, and her brother’s sons, respectively.

26. The records reveal that, as on the date of filing of the suit, the plaintiff was not in exclusive possession of the entire extent mentioned in the plaint schedule. At best, she could have been in possession only to the extent covered under Patta No.28. As on the date of the suit, Patta No.84 was no longer in existence, and consequently, no kist had been paid thereunder. The lands covered by Patta No.84 had already been subdivided and assigned separate pattas bearing Nos.28, 31, 45, and 162.

27. Though Exs.A1 to A3 stands in the name of the plaintiff, evidence adduced by the parties shows that plaintiff’s father, and other siblings were once in possession of the suit properties, after the oral partition of the year 1982, the properties stood subdivided. Taking advantage of the old revenue records standing in her name, the plaintiff sought declaration and injunction for the entire extent of properties, while suppressing the existence of her current Patta No.28. Consequently, the plaintiff failed to prove exclusive title and possession as on the date of the plaint.

28. The lower appellate court, without considering these vital aspects discussed by the trial court, reversed the judgment. The appellate court ignored the mutation effected in the year 1986, erroneously holding that pattas issued more than two decades earlier were invalid, and failed to consider the plea of partition raised by the defendant. Further, the appellate court overlooked the fact that pattas stood in the names of the plaintiff, the defendant, the plaintiff’s brother, and the plaintiff’s brother’s sons, and nevertheless concluded that the plaintiff was in possession of the entire suit property as on the date of the suit. Such a finding is unsustainable.

29. Accordingly, the substantial questions of law are answered against the plaintiff.

30. In the result, the judgment and decree of the lower appellate court in A.S.No.36 of 2013 dated 20.02.2014 are set aside, and the judgment and decree of the trial court in O.S.No.83 of 2011 dated 03.08.2012 are restored. Consequently, O.S.No.83 of 2011 stands dismissed. The Second Appeal is allowed. Considering the close relationship between the parties, there shall be no order as to costs. Connected miscellaneous petitions, if any, stand closed.