Annamma and Others v T. N. Janardhanan Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS.JUSTICE M.R.ANITHA** **TUESDAY, THE 21[ST] DAY OF JUNE 2022 / 31ST JYAISHTA, 1944** **RSA NO. 1098 OF 2017** **AGAINST THE JUDGMENT AND DECREE DATED 31.03.2017 IN AS 101/2013 OF ADDL.DISTRICT JUDGE II(SPECIAL), KOTTAYAM AGAINST THE JUDGMENT AND DECREE DATED 31.01.2013 IN OS 603/1998 OF MUNSIFF COURT, CHANGANACHERRY** ## **APPELLANTS/DEFENDANTS:** 1 ANNAMMA AGED 66 YEARS W/O.K.U.JOHN,PUTHUPARAMBILAYA KOCHOOZHATHIL,NEDUMKUNNAM KARA,NEDUMKUNNAM VILLAGE. 2 GIGY AGED 39,S/O.K.U.JOHN,RUNNING HARDWARES FIRM AT M G D M JUNCTION,KANGAZHA FROM PUTHUPARAMBILAYA KOCHOOZHATHIL,NEDUMKKUNNAM KARA,NEDUMKUNNAM VILLAGE. 3 AJI AGED 36,S/O.K.U.JOHN,RUNNING HARDWARES FIRM AT M G D M JUNCTION,KANGAZHA FROM PUTHUPARAMBILAYA KOCHOOZHATHIL,NEDUMKUNNAM KARA,NEDUMKUNNAM VILLAGE. 4 JOJI AGED 33,S/O.K.U.JOHN,RUNNING HARDWARES FIRM AT M G D M JUNCTION,KANGAZHA FROM PUTHUPARAMBILAYA KOCHOOZHATHIL,NEDUMKUNNAM KARA,NEDUMKUNNAM VILLAGE. BY ADV SRI.RAJEEV V.KURUP ## **RESPONDENT/PLAINTIFF:** T.N. JANARDHANAN NAIR AGED 65,RESIDING AT THUNDIYIL HOUSE,KANGAZHA KARA,KANGAZHA VILLAGE,KANGAZHA-686541. BY ADV SRI.K.JAGADEESCHANDRAN NAIR THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON 08.06.2022, ALONG WITH RSA.1123/2017, THE COURT ON 21.06.2022 DELIVERED THE FOLLOWING: R.S.A.Nos.1098/2017 2 & 1123/2017 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 21[ST] DAY OF JUNE 2022 / 31ST JYAISHTA, 1944 RSA NO. 1123 OF 2017** **AGAINST THE JUDGMENT AND DECREE DATED 31.03.2017 IN AS 118/2013 OF ADDL.DISTRICT JUDGE II(SPECIAL), KOTTAYAM AGAINST THE JUDGMENT AND DECREE DATED 31.01.2013 IN OS 603/1998** **OF MUNSIFF COURT, CHANGANACHERRY** ## **APPELLANTS/RESPONDENTS/DEFENDANTS:** 1 ANNAMMA AGED 66 YEARS W/O.K.U.JOHN, PUTHIYAPARAMBILAYA KOCHOOZHATHIL, NEDUMKUNNAM KARA, NEDUMKUNNAM VILLAGE. 2 GIGY, AGED 39 YEARS S/O.K.U.JOHN, RUNNING HARDWARES FIRM AT MGDM JUNCTION, KANGAZHA FROM PUTHIYAPARAMBILAYA KOCHOOZHATHIL, NEDUMKUNNAM KARA, NEDUMKUNNAM VILLAGE. 3 AJI, AGED 36 YEARS S/O.K.U.JOHN, RUNNING HARDWARES FIRM AT MGDM JUNCTION, KANGAZHA FROM PUTHIYAPARAMBILAYA KOCHOOZHATHIL, NEDUMKUNNAM KARA, NEDUMKUNNAM VILLAGE. 4 JOJI, AGED 33 YEARS S/O.K.U.JOHN, RUNNING HARDWARES FIRM AT MGDM JUNCTION, KANGAZHA FROM PUTHIYAPARAMBILAYA KOCHOOZHATHIL, NEDUMKUNNAM KARA, NEDUMKUNNAM VILLAGE. (RESPONDENTS 1 AND 2 DIED DURING THE PENDENCY OF THE 1ST APPEAL. THE APPELLANTS HEREIN ARE THE LEGAL HEIRS OF THE DECEASED). BY ADV SRI.RAJEEV V.KURUP R.S.A.Nos.1098/2017 3 & 1123/2017 ## **RESPONDENT/APPELLANT/PLAINTIFF:** T.N. JANARDHANAN NAIR, AGED 65 RESIDING AT THUNDIYIL HOUSE, KANGAZHA KARA, KANGAZHA VILLAGE, KANGAZHA-686 541. BY ADV SRI.K.JAGADEESCHANDRAN NAIR THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON 08.06.2022, ALONG WITH RSA.1098/2017, THE COURT ON 21.06.2022 DELIVERED THE FOLLOWING: R.S.A.Nos.1098/2017 4 & 1123/2017 ## **M.R.ANITHA, J** ****************** R.S.A.Nos.1098 of 2017 & 1123 of 2017 -----------------------------------------Dated this the 21[st] day of June, 2022 ## **JUDGMENT** These Regular Second Appeals have been filed against the common judgment in A.S.No.101/2013 and 118/2013 on the file of Additional District Court-II (Special), Kottayam, arising out of the judgment in O.S.Nos.603/1998 of the Munsiff’s Court Changanassery. 2. Parties would be referred as per their rank before the Munsiff's Court, Changanassery. Appellants in these R.S.As. are the defendants. O.S.No.603/1998 has been filed by the plaintiff for declaration of title and possession of plaint schedule property and for injunction. R.S.A.Nos.1098/2017 5 & 1123/2017 3. The plaint schedule property originally belonged to Thankappan Nair, the brother of the plaintiff who died as bachelor and was residing with the plaintiff and his family in the plaint schedule property. While so, he executed a Will deed No.23 dated 07.06.1989 of Karukachal Sub Registrar Office bequeathing the plaint schedule property in favour of the plaintiff as item No.2 in the Will deed. Accordingly, the plaintiff has been in absolute possession and enjoyment of the plaint schedule property. The plaint schedule property is well demarcated by boundaries. Defendants' property is situated on the western side of the plaint schedule property and is separated by resurvey stones and a kallukayyala aged more than 60 years. When the defendants attempted to remove the survey stones, destroy the boundaries and create new boundaries, cutting down trees in the plaint schedule property, the suit was filed for declaration as well as to restrain the defendants from annexing any portion of plaint schedule property, putting up any new boundaries, demolishing the kallukayyala in the boundaries, removing the survey stones, 6 R.S.A.Nos.1098/2017 & 1123/2017 cutting down trees and committing any act of waste therein. 4. The defendant filed written statement as well as additional written statement contending that the plaintiff has no cause of action and that the suit is not maintainable in law or on facts. Description of the plaint schedule property is incorrect and the plaintiff is claiming more property than he obtained as per the Will deed. Property on the east of first defendant's property belonged to Thankappan Nair, the brother of plaintiff. After his death, plaintiff modified and corrected re-survey records subdividing re-survey Nos.116/5 into 116/5/1 with an attempt to annex portion of the first defendant's property. Plaintiff has no right to annex any portion of property of first defendant. Defendants are enjoying the plaint schedule property for the last 30 years and plaintiff's right if any is lost by adverse possession. 5. Originally, the suit was filed for perpetual injunction and it was amended incorporating the relief of declaration of title. Pending the proceedings 1[st] defendant died and defendants 3 to 6 were impleaded. PW1 to PW6 were examined. Exts.A1 to A3 R.S.A.Nos.1098/2017 7 & 1123/2017 were marked from the side of the plaintiff. DW1 to DW4 were examined and Exts.D1 to D15 were marked from the side of the defendants. CW1 and CW2 were also examined and Exts.C1 to C3(a) were also marked. 6. On evaluating the evidence and facts and circumstances, learned Munsiff decreed the suit in part granting the relief of permanent prohibitory injunction . Against which defendants filed appeal A.S.No.101/2013 and against the refusal of the relief of declaration sought for, plaintiff filed A.S.No.118/2013. The first appellate court on reappreciating the facts and circumstances and evidence confirmed the decree of injunction passed by the learned Munsiff and further granted prayer for declaration of title. Aggrieved by the above, the defendants filed the two appeals. 7. Notice was issued to the respondent. Adv.K.Jagadeesa Chandran Nair appeared on behalf of the respondent. Heard Adv.Rajeev V.Kurup on behalf of appellants, learned counsel for the respondent filed argument notes as well as advanced R.S.A.Nos.1098/2017 8 & 1123/2017 arguments. Lower court records were called for and perused. 8. At the time of admission of the Regular First Appeals, this Court formulated the following substantial question of law in both appeals: “Did the lower appellate court go wrong in declaring the title of the plaintiff to the plaint schedule property without proof of title by proving the Will relied on by the plaintiff to claim title?” 9. The only point argued by the learned counsel for the appellants is with regard to the proof of Will as provided under Section 68 of the Indian Evidence Act, 1872. 10. It is contended by the learned counsel for the respondent/plaintiff that the Will was not in dispute either before the Munsiff's Court or before the first appellate court and hence defendants are estopped from raising admissibility of the Will in the second appeal because it is not a substantive question of law. Section 58 of the Indian Evidence Act,1872 also relied on to contend that the admitted documents need not be proved. 11. Learned counsel for the appellant, on the other hand, R.S.A.Nos.1098/2017 9 & 1123/2017 would contend that even if the will is not disputed the plaintiff is bound to prove the Will as contemplated under Section 68 of the Evidence Act and no attempt was made by the plaintiff to satisfy the requirements of Section 68 to prove the will by examining any of the attesting witnesses. 12. Section 68 of the Indian Evidence Act is relevant in this context to be extracted which reads thus: _"68. Proof of execution of document required by law to be attested .- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:_ _[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied]._ 13. On reading the above, it is crystal clear that a R.S.A.Nos.1098/2017 10 & 1123/2017 document which is required by law to be attested shall not be used as evidence until at least one attesting witness is examined. Proviso to Section 68 also would make it clear that except in the case of a Will which has been registered in accordance with the provisions of the Indian Registration Act, 1908 it shall not be necessary to call for an attesting witness in proof of the execution of the document unless its execution by the person by whom its purports to have been executed is specifically denied. So, as far as a Will is concerned, notwithstanding the admission of execution of the document, the propounder of the Will is bound to prove its execution by examining atleast one attesting witness. 14. Law in this regard is well settled and it is relevant in this context to quote **Ramesh Verma (D) Thr. LRs v. Lajesh Saxena (D) By LRs & Anr : 2016 ICO 1610 : AIR 2017 SC 494 : (2017) 1 SCC 257** . Paragraphs 13 and 14 of the said judgment is relevant in this context to be extracted which read as follows: _“A Will like any other document is to be proved in terms of the provisions of Section 68 of the Indian_ R.S.A.Nos.1098/2017 11 & 1123/2017 _Succession Act and the Evidence Act. The propounder of the Will is called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement._ _14. In Savithri v. Karthyayani Amma reported as (2007) 11 SCC 621 at page 629, this Court has held as under:-_ _“A Will like any other document is to be proved in terms of the provisions of the Succession Act and the Evidence Act. The onus of proving the Will is on the propounder. The testamentary capacity of the testator must also be established. Execution of the Will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the Will. It is required_ R.S.A.Nos.1098/2017 12 & 1123/2017 _to be shown that the Will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the Will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exists suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before it can be accepted as genuine.”_ 15. In **Sarada v. Radhamani : 2017 (2) KLT 327** , Division Bench of this Court upon a reference on the question as to whether the statutory mandate that a Will required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution if he be alive and subject to the process of Court will apply even while the execution of the Will by the person by whom it purports to have been executed has not specifically denied or expressly admitted. It was answered by holding that even while R.S.A.Nos.1098/2017 13 & 1123/2017 the execution of the will by the person by whom it purports to have been executed is specifically denied or expressly admitted,a will required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution if he be alive and subject to the process of court. 16. In the above decision **Jagdish Chand Sarma v. Narain Singh Saini and Others : 2015 (3) KLT SN 11 (C.No.15) SC : AIR 2015 2149** has been quoted wherein it has been categorically held that the statutory provisions make it incumbent for a document required by law to be attested to have its execution proved by examining at least one of the attesting witnesses, if alive, and is subject to the process of court conducting the proceedings involved and is capable of giving evidence. The rigour is, however, eased in the case of a document also required to be attested but not a Will if the same has been registered in accordance with the provisions of the Indian Registration Act, 1908 unless the execution of this R.S.A.Nos.1098/2017 14 & 1123/2017 document by the person said to have executed it denies the same. It has been emphasised that in any view of the matter, the relaxation extended by the proviso is of no avail qua a Will. The proof of a Will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through atleast one of the attesting witnesses if alive, and subject to the process of the court concerned and is capable of giving evidence. 17. Relevant paragraph of the decision reported in **Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal : (1991) 3 SCC 442** has also been quoted in the above decision which reads as follows: _"It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the filed, which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted by the proviso and to no other. The proper function of a proviso is to except and deal with a case which would otherwise fall_ R.S.A.Nos.1098/2017 15 & 1123/2017 _within the general language of the main enactment, and its effect is to confine to that case. Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms. The scope of the proviso, therefore, it to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule. It has to operate in the same field and if the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect."_ 18. The overriding effect of Section 68 of the Act on Section 58 has also been dealt in **Sarada** 's case. Paragraph No.16 is relevant in this context which reads as follows: _"16. There is a world of difference between the factum of a document akin to the Will being admitted under Section 58 of the Act and proof of due execution of the Will under Section 68 of the Act. The due execution of the Will cannot be proved otherwise than by recourse to Section 68 of the Act and Section 63 of_ R.S.A.Nos.1098/2017 16 & 1123/2017 _the Indian Succession Act, 1925 as has been held time and again. The general provisions of Section 58 of the Act has obviously to give way to the special provisions of Section 68 of the Act which govern documents required by law to be attested. That some documents are required by law to be attested imply that law gives additional solemnity empowering the executants with rights and obligations thereunder. Section 68 of the Act operates as an exception in relation to documents required by law to be attested and cannot be said to be subject to Section 58 of the Act by any stretch of imagination. No distinction has been drawn by the statutory provision between an ‘admitted Will’ and a ‘disputed Will’ as has been rightly observed by Mr. Justice P. Bhavadasan in Poulose.A.V.’s case (supra). One of the attesting witnesses if he be alive should be called for the purpose of proving its execution whenever a Will is used as evidence and for whatever purpose._ 19. **Poulose A.V v. Indira M.R and Others : 2010 (3) KLT Suppl.185 (Ker) : ILR 2010 Ker.388** has also been quoted to emphasise the point that there is no distinction drawn by the statutory provision between an admitted and a disputed Will. So, the fact that the Will was admitted or was not denied is R.S.A.Nos.1098/2017 17 & 1123/2017 not at all a factor to be taken into account while deciding the question of proof of Will as contemplated under Section 68 since Section 68 of the Act has got overriding effect over Section 58 in the case of Wills. 20. So, the next question for consideration is whether the mandate under Section 68 of the Act would apply when the Will is to be proved as against a stranger. It has been contended by the learned counsel for the respondent/plaintiff in the argument notes that as per the dictum laid down in **Sarada** 's case, the contention with regard to proof of Will cannot be raised for the first time in the second appeal as a substantial question of law because the pleadings do not lay any foundation and before the lower courts this question was not raised and it amounts to admission. But, that argument will no longer stand in the light of finding afore. 21. The learned counsel for the appellant fairly brought to my attention **Sreelatha and Others v. Santha and Another : 2022 (1) KHC 74** wherein a learned Single Judge of this Court R.S.A.Nos.1098/2017 18 & 1123/2017 has held that a total stranger has nothing to do with execution of a testament or Will or devolution of successive interest thereunder, unless he is a person claiming under the testator or a “person interested to admit or deny its execution” such as a pendente lite transferee or a person litigating under any of legatees or a person acquired interest over it by any deeds, transfer etc., but will not include a person, who has set up adverse interest over the property in derogation of rights of testator. The principle behind it is that a testament would operate only with respect to the subsisting rights held by the testator over the subject of the Will and it is an internal matter to be agitated between the persons claiming under him viz., legatees, legal heirs and legal representatives and not available to a stranger, who claims adverse interest against the testator over the subject. 22. In this context, it is also relevant to quote **S.Ganesan** ## **v. S.Kuppuswamy and Ors. : MANU/TN/3990/2009** wherein a learned Single Judge of Madras High Court decided an identical R.S.A.Nos.1098/2017 19 & 1123/2017 question while dealing with Section 213(1) of the Indian Succession Act which expressly provides that no right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed. Paragraph Nos.17, 19 and 21 of the said decision is relevant which read as follows: _17. In view of the decision of the Hon'ble Apex Court reported in (2008)4 SCC 300 (cited supra) when a person having no caveatable interest or in any way related to the testator cannot insist upon the Will being proved strictly in accordance with Section 68 of the Indian Evidence Act. In this case, the defendants admittedly are not in any way related to the deceased and obviously they are not the legal heirs of the deceased testator and in such a case, the defendants cannot call upon the plaintiff to prove Ex.A17, the Will in accordance with Section 68 of the Indian Evidence Act. Ex.A17 is a registered Will and in such a case, the decision of the Hon'ble Apex Court reported in 2006(2)LW 658 SC [Pentakota Satyanarayana & Others v. Pentakota Seetharatnam & Others] is relevant and_ R.S.A.Nos.1098/2017 & 1123/2017 20 _an excerpt from it would run thus:_ _"25. A perusal of Ex.B9 (in original) would show that the signatures of the Registering Officer and of the identifying witnesses affixed to the registration endorsement were, in our opinion, sufficient attestation within the meaning of the Act. The endorsement by the sub-registrar that the executant has acknowledged before him execution did also amount to attestation. In the original document the executants signature was taken by the sub-registrar. The signature and thumb impression of the identifying witnesses were also taken in the document. After all this, the sub-registrar signed the deed. Unlike other documents the Will speaks from the death of the testator and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his Will or not and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and the testament of departed testator._ _19. The learned counsel for the defendants_ R.S.A.Nos.1098/2017 21 & 1123/2017 _cited the decision of this Court reported in 2007(5) CTC 513 [L.Bakthavatsalam and others vs. R.Alagiriswamy (died) and others) so as to highlight the point that a Will has to be proved in accordance with Section 63 of the Indian Evidence Act. To the risk of repetition without being tautologous, I would state that the said decision is not applicable to the facts and circumstances of this case for the reason that the Will is sought to be pressed into service as against the defendants who are not the legal heirs or in any way interested in the suit property having some covetable interest in it._ _21. The learned counsel for the plaintiff would appropriately and appositely would cite the decision of this Court reported in (2001) 1 TNLJ 71 [Valliammal vs. Arumugha Gounder and another] to buttress his stand that truth and validity of a Will cannot be questioned by a stranger to the family of the testator. It is therefore crystal clear that in this case, the defendants contention that the Will Ex.A17 was not proved in accordance with Section 63 of the Indian Evidence Act fails to carry conviction with the Court. Accordingly, this issue is decided to the effect that the plaintiff proved the due execution of the Will Ex.A17 by the testator, however in view of the decision under point No.1, such unprobated Will cannot be relied on_ R.S.A.Nos.1098/2017 22 & 1123/2017 _by the plaintiff in support of his claim and prayers in the plaint._ 23. From the above, what could be gathered is that the law laid down is that the truth and validity of a Will cannot be questioned by a stranger who is not claiming under the testator or in any way interested in the suit property, and will not include any person who sets up adverse interest over the property in derogation of rights of testator. So, in that particular case, the defendants who are strangers and their contention that the Will was not proved in accordance with Section 68 of the Indian Evidence Act fails to carry conviction of the court and accordingly it was found that plaintiff proved due execution of the Will by the testator but in view of the dismissal of point No.1 in that case it was found that such unprobated Will cannot be relied on by the plaintiff in support of his claim and prayers in the plaint. 24. While going through **Sreelatha** it could be seen that what has been laid down therein is that there is no scope for proving Will in accordance with the mandate under Section 68 of the Evidence Act against a stranger who is not claiming under the R.S.A.Nos.1098/2017 23 & 1123/2017 testator or having any interest to deny its execution. Moreover, in that case, it has been found by the learned Judge that apart from the fact that Section 68 of the Evidence Act is not to be complied as against a stranger who is not claiming under the testator or having any interest to deny the execution, it has been further found that the plaintiff in that case is the legal heir of the deceased testator and hence it was found that she can maintain the suit even without proving Ext.A12 registered Will. 25. In the case in hand, Ext.A1 Will is executed by the brother of the plaintiff and it is a registered Will also. Apart from that, defendants are total strangers who are not claiming under the testator or having any interest to deny its execution and neither the execution of the Will nor the devolution of the property upon the plaintiff is denied, before the trial court as well as before the first appellate court. Moreover, it has been categorically pleaded in the plaint that the testator of the Will is none other than the brother of the plaintiff and he is the legal heir of the deceased testator. The testator was residing with the plaintiff and died as R.S.A.Nos.1098/2017 24 & 1123/2017 bachelor and the plaintiff is the legal heir of the testator. So, he can maintain the suit even without Ext.A1 will. Hence the contention of the appellants that the plaintiff has to be non-suited for want of proof of Ext.A1 Will in compliance with Section 68 of the Evidence Act is not at all sustainable in law in the fact situation of this case. 26. The trial court refused to grant declaration on the ground that the plaint schedule property has no clarity in its description but was pleased to grant perpetual injunction restraining the defendants from encroaching into the plaint schedule property and allied reliefs. In appeal, the first appellate court by appreciating the facts and circumstances and evidence has come to a conclusion that from the evidence of PWs 1 to 6, it has come out that the disputed area of 3.8 Ares was in the absolute ownership and possession of the plaintiff and teak trees were planted by the plaintiff and his brother and Ext.A2 is the tax receipt of the plaintiff prior to the institution of the suit before the allotment of resurvey No.116/5/1 to the defendants. Though the R.S.A.Nos.1098/2017 25 & 1123/2017 defendants claimed title over the plaint schedule property under the guise of Ext.B12 with respect to an extent of 1 Acre 44½ cents and contended that the disputed area of 3.8 Ares forms part of the defendants' property, it has been found categorically by the first appellate court that the defendants failed to adduce any evidence to show that they have any title or possession over the disputed 3.80 Ares of land. It has been found by the first appellate court that though defendants produced Exts.B1 and B14 tax receipts relating to the years 1999 and 2012, both were obtained after the institution of the suit. Ext.B7 is the document relied on by the defendants to substantiate their contention that they are the owner in possession of 3.8 Ares of property. Ext.B7 is an order passed by the Survey Superintendent during the pendency of litigation and hence it has been found that it does not confer any title to the land claimed by the defendant and it was issued without giving any notice to the plaintiff. 27. The first appellate court also relied on **Durga Das v. The Collector and Others : AIR 1996 SC 2786** wherein the R.S.A.Nos.1098/2017 26 & 1123/2017 Apex Court held that mutation entries do not confer any title to the property and it is only an entry for collection of land revenue from the person in possession. **Guru Amarjit Singh v. Rattan Chand and Others : AIR 1994 SC 227** was also quoted wherein it has been held that entries in jamabandi are not proof of title and they are only statement for revenue purpose. It is further found that the plaintiff is paying tax with respect to 41 Ares 20 square metres of property in Survey No.116/5 and cultivation in the disputed area are teak trees having the same age of teak and Anjili in the plaint schedule property. The boundary of the property is kayyala as per the evidence of the Commissioner and hence it is found that the Kayyala separating Survey Nos.119/4 and 116/5 is boundary kayyala separating the property of the defendants and plaintiff. So, ultimately the first appellate court confirmed the order of injunction passed by the trial court. Further, it was found that plaintiff proved his title and possession over the property having an extent of 41 Ares 20 square metres of property comprised in Survey No.116/5 and R.S.A.Nos.1098/2017 27 & 1123/2017 hence he is entitled to get declaration of title. I do not find any irregularity and illegality in that finding. 28. Before this Court, the learned counsel fairly did not argue anything based on facts and his only argument was with regard to the substantive question of law which I have already discussed. So, in view of the discussions made above, I do not find any merit in the present R.S.As and accordingly the appeals are dismissed. ## (sd/-) **M.R.ANITHA, JUDGE** jsr/20/6/2022 True copy P.S to Judge