CHARLES HEREWARD SIMPSON Vs. GOVERNMENT OF TAMIL NADU

JUDGEMENT

(1.) THESE two appeals out of the common judgment and separate decrees of the District Judge, Kanyakumari District at Nagercoil in O. S. Nos. 66 and 67 of 1986. The plaintiffs in the suits are the appellants. The defendants are the respondents. The plaintiffs are the children of one Charles Harold simpson, who is no more. The two plaintiffs in O. S. No. 66 of 1986 are the sons and the three plaintiffs in O. S. No. 67 of 1986 are the daughters of Charles harold Simpson. The pleadings of the parties in both the suits are based on common allegations. The plaintiffs in O. S. No. 66 of 1986 seek a declaration of title and a permanent injunction against the defendants in respect of the following properties. (i) Old Survey No. 2917/1 (part) - acres 155. 27 (ii) Old Survey Nos. 2898/1 (part) and 2917/1 (part) -acres 36. 73 Total - acres 192. According to the plaintiffs, the extent of acres 155. 27 in item (i) was comprised in title deed No. 3 and the extent of acres 36. 73 in item (ii) was comprised in title deed No. 15. THESE title deeds numbers 3 and 15 were the result of grants by the Dewan of Travancore Sirkar on behalf of the travancore Sirkar, to Reverend John Cox, the ancestor of the plaintiffs; title deed No. 3 being dated 23. 10. 1866 and title deed No. 15 being dated 15. 8. 1867. The plaintiffs in O. S. No. 67 of 1986 seek declaration of title and permanent injunction in respect of two items of properties as follows; (a) Old Survey Nos. 2917/1 (Part) and 2898/1 (Part) -acres 73. 68 (b) Old Survey No. 2917/1 (Part) - acres 4. 17 Total - acres 77. 85 According to the plaintiffs in O. S. No. 67 of 1986, a total extent of acres 111. 62 in Old Survey Nos. 2917/1 (part) and 2898 (l) (part) was comprised in title deed No. 37 and the extent of acres 4. 17 in Old survey No. 2917/1 (part) was comprised in title deed no. 94. THESE title deeds again, according to the plaintiffs, were the result of grants to Reverend John Cox, the ancestor of the plaintiffs, by the Dewan of Travancore on behalf of travancore Sirkar; title deed No. 37 being of the date 4. 3. 1869 and title deed no. 94 being of the date 15. 10. 1875. Out of the total extent of 111. 62, covered by title deed No. 37, and comprised in Old Survey Nos. 2917/1 (part) and 2898/l (part) the plaintiffs in O. S. No. 67 of 1986 have sold away acres 37. 94 to third parties and hence their claims are restricted to acres 73. 68 with regard to this item (a ).

(2.) THE case of the plaintiffs runs as follows: Reverend John Cox established a coffee estate on the properties, coyered by the four title deeds. Permanent boundary marks and pathways were put up and maintained by him A bungalow was built and some building were also constructed for estate purposes. During THE Years 1880-1883 a disastrous blight affected the entire coffee plantation and there was abolition of land tax for coffee lands by the Maharaja of Travancore by his royal proclamation dated 1. 10. 1883. later Revered John Cox planted China-tea and cardamom of Mysore variety and other fruit-yielding trees like oranges, mangoes and jacks. Lemon-grass was cultivated by the heirs of Reverend John cox and they were distilling oil therefrom till about 1912. On the death of reverend John Cox, his heirs, who inherited the properties covered by the title deeds, continued to enjoy the same as owners and ultimately the properties devolved on Mr. Charles Harold Simpson, the eldest grand-son of Reverend John cox and the father of the plaintiffs, who become the absolute owner of these properties in 1921 and he was in possession and enjoyment of the same as absolute owner thereof from 1921 onwards. On 24. 12. 1969, there was an oral family arrangement amongst Mr. Charles Harold Simpson and his children, who were minors then, and the result of the oral family arrangement was the two sons the plaintiffs in O. S. No. 66 of 1986 were given the undivided shares of acres 192 comprised in title deeds numbers 3 and 15 and the three daugh-ters-the plaintiffs in O. S. No. 67 of 1986 were given the undivided shares of acres 115. 79 comprised in title deeds numbers 37 and 94. THE plaintiffs would claim that themselves and their predecessors in title have been in possessions and enjoyment of the properties continuously and without interruption for more than the statutory period and apart from deviation of title by the deeds, the plaintiffs claim to have prescribed title by adverse possession to the suit properties. THE properties covered by the four title deeds lie outside lekkom 28, which is a registered private holding. According to the plaintiffs, Mrs. Anna Amy Cox grandmother of Mr. Charles Harold Simpson, purchased properties under a sale deed of the year 1059 M. E. , and those properties were comprised in lekkom 28, lying west and south-west of the properties covered by the four title deeds. THE plaintiffs rely on the proceedings in O. S. No. 88 of 1958, on the file of the District Munsif, Nagercoil, filed against the state of Tamil nadu and its officers, which was a suit filed by Mr. Charles Harold Simpson for declaration of title of acres 856. 50 (less 5 acres for which patta had been given) comprised in Survey Numbers 2898/2 and 3, 23902/1 and 2917/3 covered by 1050 M. E. Sale deed, and for a permanent injunction for the purpose of showing that survey numbers 2903,2905,2906. 2910 and 2911/1 and 2 were shown and located as forming part of 1050 M. E. sale deed properties. This reliance on those proceedings was to demonstrate that the case of the defendants that these were the survey numbers forming part of the properties covered by the title deeds and they were alienated, could not be accepted and will come within the mischief of the principles of res judicata and interpartes judgment. THE proceedings in O. S. No. 88 of 1958 passed on to the first appellate stage In a. S. No. 164 of 1960, on the file of the District Judge, Kanyakumari at nagercoil and to the second appellate stage in S. A. No 266 of 1966. THE plaintiffs in O. S. No. 67 of 1986 would also rely on the proceedings in O. S. No. 98 of 1980 on the file of the Subordinate Judge, Nagercoil, filed by the licence from these plaintiffs of an extent of acres 37. 97 as comprised in property covered by title deed No. 37. That was a suit for declaration of title and for recovery of possession with a consequential injunction against the State of tamil Nadu and the Forest Department and that suit was decreed. THE plaintiffs would claim that they have effected valuable improvements in the suit-properties. THE plaintiffs would state that the defendants despite the plaintiffs right, title and interest in the suit-properties, have claimed them as forest-reserve and have issued the Notification under the Tamil Nadu Forest Act, 1882 and they are interfering with the possession of the plaintiffs by pulling down the boundary marks through the forest-guards.

(3.) IN these two Appeals,directed against the common judgement and separate decrease of the Court below, on the submission made by mr. S. Chellaswami, learned Counsel for the plaintiffs and Mr E. D. Dakshinamoorthy, learned Government Advocate (Forest Cases) appearing the for defendants, the following aspects emerge for consideration; There is now dispute with reference to acquisition of properties by the ancestors of the plaintiffs under the four title deeds. According to the plaintiffs, the suits, two survey numbers are properties covered by title deeds. The defendants would say that the properties covered by the title deeds were in survey numbers 2903,2905,2906,2910 and 2911/1 and 2 and patta was already granted to the ancestor of the plaintiffs and these properties were alienated to third parties and hence the properties covered by the title deeds, are not available for the plaintiffs. The plaintiffs would counter-act this plea of the defendants by saying that the aforesaid survey numbers related to properties purchased by mrs Anne Amy Cox under the sale deed of 1050 M. E. comprised in lekkom 28 and they were so located and the decisions in O. S. No. 88 of 1958 and in appeal and second appeal would operate as res judicata and in any event they will be binding on the parties as decisions inter parties. IN any event, the plaintiff claim to have prescribed title by adverse possessions to the properties covered by the suits two survey numbers. Though the plaintiffs rely on the oral family arrangement of 24. 12. 1969 inter se themselves and their father to project their claims separately, there is no need to concentrate on this aspect for the simple reason the plaintiffs do not put forth claims adverse to each other and they all accept the oral family arrangement and they have a common cause against the defendants and vice versa the daughters admit the claims of the sons. The defendants have not denied the factum of the oral family arrangement and they would only say that the said family arrangement would be ineffective in law, obviously on the ground of want of title to the properties concerned. If plaintiffs have no title to the properties in question,the oral family arrangement would be of no legal consequence at all If, on the other hand, the plaintiffs have title certainly the oral family arrangement could be worked out inter se the plaintiffs against the defendants. Then the voice of protest of the defendants need not be taken into account to defeat the claims of the plaintiffs. The plaintiffs also claimed that they have made valuable improvements. This question will depend upon the decision on title either through deed or by adverse possession and will relevantly arise only if no tittle has been found in favour of the plaintiffs. There is an aspect of the notification under the Tamil Nadu Forest Act of 1882. Here again, the question will assume relevance depending upon the finding on title, The court below has declined to grant injunction even in respect of properties covered by title deed No: 15, on the ground that there are others in possession and without they being parties to the suit, there cannot be an accord of the relief of injunction. This question we will relegate for consideration to that part of this judgement, dealing with possession.