Madras High Court
P.Balakankatharathilagar vs The Special Commissioner And ... on 15 July, 2021
W.P.No.11086 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.07.2021
CORAM
THE HONOURABLE MR.JUSTICE R. SURESH KUMAR
W.P. No. 11086 of 2006
1. P.Balakankatharathilagar
2. R.Jayachandran
3. C.Lakshmanan ... Petitioners
-vs-
1. The Special Commissioner and Commissioner
of Land Administration,
Chepauk, Chennai.
2. The Settlement Officer,
Thanjavur.
3. Adhinakarthar,
Tiruvannamalai Madam,
Kundrakudi. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India, praying for issuance of Writ of Certiorarified Mandamus calling for
the records of the proceedings of the first respondent in R.Dis.K1/R.P.15,
16, 20 and 21 of 1991 dated 29.08.2005 to quash the same and allow the
claim of the patta in R.P. No. 20 of 1991.
1/36
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W.P.No.11086 of 2006
For Petitioners : Mr.M.K.Kabir
Senior counsel
for Mr.G.Krishnakumar
For Respondents : Ms.Akila Rajendran
Counsel for Government for R1&R2
Mr.K.V.Ananthakrishnan for R3
ORDER
The prayer sought for herein is for a Writ of Certiorarified
Mandamus calling for the records of the proceedings of the first
respondent in R.Dis.K1/R.P.15, 16, 20 and 21 of 1991 dated 29.08.2005
to quash the same and allow the claim of the patta in R.P. No. 20 of
1991.
2. The case as projected by the petitioners is that, the land to an
extent of 2.85 acres in Survey No.83 corresponding to Paimash Nos.608,
609, 610, 612 and 613 in Adambakkam Village (No.136), Chengalpattu
District, is the subject matter.
3. The said land is covered under Title Deed No.482 dated
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03.04.1862, originally it was declared as Inam Estate within the meaning
of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act,
1948, in short 'Abolition Act'. The said declaration was set aside by the
Estate Abolition Tribunal, Vellore, by order dated 03.03.1955 in A.S. No.
47 of 1954. This order was confirmed by this Court in S.T.A. No. 7 of
1958.
4. Thereafter, a notification issued under the Tamil Nadu
Act 26 of 1948 was cancelled by the Government. After the advent of the
Tamil Nadu Inam Estates Act, the Village was notified under the said
Act.
5. Since the notification was issued under the Act 26 of 1963, that
seems to have been challenged by the third respondent Kundrakudi
Adheenam, and that challenge has become unsuccessful and the said
issue had been confirmed up to the Hon'ble Supreme Court. Thereafter,
the Village itself was taken over on 30.06.1971.
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W.P.No.11086 of 2006
6. In this context, ultimately, it seems to have been held that, in
T.D.No.482, only two pangus out of 48 pangus claimed by the third
respondent Adhinakarthar alone were covered under third respondent's
Kudivaram rights.
7. Subsequently, in respect of the subject land referred to various
Paimash numbers equal to Survey No.83, the petitioners' predecessors in
title claimed the rights of Melvaram as well as Kudivaram and based on
which, they filed a partition suit before the District Munsif Court,
Poonamallee in O.S. No. 669 of 1962 and after decree with regard to the
partition, it seems, they have filed a Execution Petition in E.P. No. 9 of
1967. In that Execution Petition, the right of the said parties, i.e.,
predecessors in title of the petitioners were recorded that, they have 1½
Cawnies land in Paimash Nos. 608, 609, 610, 612 and 613.
8. Subsequently, the said 1.3 Cawnies which is equivalent to 1.76
acres had been purchased by these petitioners and based on which, when
they sought for settlement patta, the matter had gone to the Assistant
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W.P.No.11086 of 2006
Settlement Officer, Tiruvannamalai in S.R. No. 274 of 1988, where,
orders were passed by the Assistant Settlement Officer on 06.10.1988. In
the said order, the Assistant Settlement Officer by giving the reason that,
the Survey No.83 is not correlated with the properties claimed by the
petitioners' predecessors in title as the relevant Paimash numbers as
claimed by the petitioners have not formed part of the partition
proceedings as well as execution proceedings taken place among
predecessors in title of the petitioners. Taking this reason as a prime
reason or prime ground, the Assistant Settlement Officer, by order dated
06.10.1988 has concluded that, the petitioners are not entitled to get the
patta. In order to appreciate the said findings given by the Assistant
settlement Officer, the relevant portion of the order dated 06.10.1988 are
extracted hereunder:
@jpU/ghyf';fhjuh; jpyfh;. yl;Rkzd; b$afhe;jd;
v!;/vy;/uh$d; Kjypatu;fs; jkpH;ehL rpW ,dhk;
xHpg;g[ kw;Wk; uaj;Jthupahf khw;Wk; rl;lk; 30-
63 mKyhf;fg;gl;l ehs; 15/02/1965f;F gpd;g[ 1981
1?k; ek;gh; gl;lhjhh; r';fu brl;oahu; g{gjp
brl;oahu; gl;lhtpy; ,e;j epyk; nru;e;jJ vd;W
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W.P.No.11086 of 2006
jtWjyhf th';fp 1983?y; tpw;fpua';fs;
bra;Js;shu;fs;/ Mfnt nkw;go th';fpaJk; tpw;wJk;
rl;lk; 30-63d; tpjpfspd; go Vw;Wf; bfhs;s
,ayhjjhFk;/
,e;j tHf;fpy; rk;ge;jg;gl;l epyk; igkh!; ek;gu;
608. 612. 613. bjhlu;g[ila ru;nt ek;gh; gl;lh 1y;
,y;iy/ gl;lh 7y; cs;sJ/ gl;lh 7y; Fd;wf;Fo mofshu;
bgauhy; cs;sjhFk;/ Mfnt nkw;fz;l fhuz';fisf;
bfhz;L jpUkjp njrk;khs;. Kj;JfpUco;zz;.
Re;jughg[. $Pthde;jk;. khzpf;fuh$;. ghyf';fhju
jpyfu;. yl;Rkzd;. b$afhe;jd;
jpU/v!;/V/v!;/vy;/uh$d; mtu;fSf;Fk; rl;lk; 30-63
mKyhf;fg;gl;l ehshd 15/02/1965k; ehs; md;Wk;
mjw;F Kd;g[k; nky;thuk; brYj;jp Fothu cupkj;Jld;
mDgtpj;J te;jtu;fsplk; (mHpe;Js;sJ) K:yk; fpuak;
bgw;W mDgtpf;fhjjhy; nkw;fz;ltu;fs; bgaupy;
gl;lh tH';f ,ayhJ vd;W jPu;khdpf;fg;gLfpwJ/@
9. Felt aggrieved over with the said order passed by the Assistant
settlement Officer, the Revision Petitioner in R.P. No.22 of 1989 and the
other owners who claimed ownership of the remaining property filed
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W.P.No.11086 of 2006
R.P. No.23 of 1989. These Revision Petitions were heard and decided by
the Settlement Officer, Thanjavur, by order dated 05.09.1991. In the said
order, the Settlement Officer, Thanjavur, has given exhaustive reasons for
arriving at a conclusion that, the petitioners have established their rights
at Paimash Nos. 608, 609, 610, 612 and 613. By giving such findings,
the Settlement Officer however concluded that, though the petitioners
have established their rights in respect of the property in the said Paimash
numbers, insofar as to the extent, up to which, they are entitled to is
concerned, they are entitled to have only 1.5 Cawnies based on the earlier
documents referred to, which is equivalent to 1.76 acres. Therefore, they
are not entitled to get the patta for an entire extent of 2.85 acres. By
giving such reasonings and findings, the Settlement Officer allowed the
Revisions filed by the petitioners in part and declared that, the petitioners
are entitled to get only 1.76 acres in Survey No.83 correlated to T.S. No.
139 and the balance land is to be treated as a Government poramboke.
10. Felt aggrieved over with the said order given by the Settlement
Officer by allowing only 1.76 acres and not the full extent of 2.85 acres to
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W.P.No.11086 of 2006
the petitioners, the petitioners filed Revision Petition in R.P. No. 20 of
1991 before the Special Commissioner and Commissioner of Land
Administration. Along with the said revision, several Revision Petitions,
i.e., R.P. Nos. 15, 16 and 21 of 1991 also were filed by the other parties
and all these revisions were heard together and decided by the common
order of the Land Commissioner dated 29.08.2005, where, the Land
Commissioner decided in R.P. No. 21 of 1991 filed by Tmt.Desammal
and others that, they are not entitled for right over the property in
Paimash Nos. 608, 609, 612, 613, 614 and 616, because those properties
are not correlated with the Survey No.83 and those Paimash numbers
were shown only as boundaries in respect of the properties mentioned in
the partition suit between Sankara Chettiar, Bhoopathi Chettiar and
Desappa Chettiyar and by giving these findings, the Land Commissioner
rejected the claim of Tmt.Desammal in R.P. No. 21 of 1991.
11. In the same order, the Land Commissioner has given a reason
that, since the petitioners who filed Revision Petition in R.P. No. 20 of
1991 are the subsequent purchasers from the revision petitioners of R.P.
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W.P.No.11086 of 2006
No. 21 of 1991 and since, it has already been held that, the petitioners in
R.P. No. 21 of 1991 who are the predecessors in title of the petitioners
are not entitled to have the right over the property for the reasons stated
therein, the subsequent purchasers, i.e., petitioners also do not have any
right over the property and therefore, on that ground, the Revision
Petition in R.P. No. 20 of 1991 filed by the petitioners also was rejected.
12. The Land Commissioner further has decided that, not only half
portion of the property, i.e., remaining property other than 1.76 acres, but
the entire property of 2.85 acres covered in the said Paimash numbers or
survey numbers are only to be treated as Government poramboke land
and accordingly, the Land Commissioner ordered the land in Survey
No.83 of Adambakkam Village shall be vested with Government under
Section 3(b) of the Tamil Nadu Minor Inam (A&CR) Act 30 of 1963.
13. Felt aggrieved over the said order passed by the Land
Commissioner dated 29.08.2005, setting aside the order passed by the
Settlement Officer, Thanjavur granting 1.76 acres to and in favour of the
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W.P.No.11086 of 2006
petitioners, the petitioners filed this Writ Petition with the aforesaid
prayer.
14. Reiterating the aforesaid factual matrix, Mr.M.K.Kabir, learned
Senior counsel appearing for the petitioners would contend that, the
reasons stated by the first respondent / Land Commissioner in the order
impugned dated 29.08.2005 is mainly culled out from the reasons stated
by the Assistant Settlement Officer only. The first respondent has not
considered the very acceptable and exhaustive reasoning given by the
Settlement Officer, i.e., second respondent, in his order dated 05.09.1991.
Therefore, on that ground itself, the impugned order is liable to be
interfered with.
15. He would also submit that, it is not a mere claim of the third
respondent Adheenam, alone as the petitioners have made claim over the
property in question, because Adhinakarthar's claim for Kudivaram since
has been rejected and the Adhinakarthar though went up to the Hon'ble
Supreme Court, which has become unsuccessful, they have given up their
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W.P.No.11086 of 2006
claim of right over the property in question.
16. When that being so, insofar as the property in question in
various Paimash numbers as referred to above is concerned, it is
correlated only with Survey No.83 and in this context, the learned Senior
counsel appearing for the petitioners has relied upon the following
detailed findings given by the Settlement Officer, i.e., second respondent
in his order dated 05.09.1991. To appreciate the said aspect, the relevant
portion of the order passed by the second respondent is extracted
hereunder:
"The third issue is that who enjoyed the
Kudivaram rights in the Survey No.83. Both sides
have produced voluminous arguments and
number of documents on their sides. The
petitioners base their claims on the document 218
of 1911 by which the predecessor in title of all the
petitioners in the two cases, Thiru Lingappa
Chettiar bought the land. The petitioners side has
traced the ownership of the lands to the present
petitioners and need not be reiterated here again.
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W.P.No.11086 of 2006
The question to be decided is whether these
documents can be relied on to arrive at the
correct ownership of the land. The fact that
paimash numbers are correlated to the
boundaries found in the subsequent documents is
found through the deed 218 of 1911. The
respondents have not been able to refute the as of
correlation of the boundary with the paimash
numbers except through the statement that this
document has been suddenly introduced in the
cases and so need not be relied on. But the fact
remains that it is a valid document which had
been in existence for a long time and not
suddenly fabricated for the sake of this case.
Subsequently other documents, though they do
not mention the paimash Nos. They correlate to
the boundaries and based on the correlation of
the boundaries it will be a reasonable assumption
to believe that they cover the same paimash Nos.
The argument that E.P. No. 9 of 1967 was after
the introduction of the Act cannot be admitted
because the whole process started in 1962 itself
and it has been one containing process. Moreover
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W.P.No.11086 of 2006
the link is established right up to 1988 and so
there is no question of all these facts arising after
1965. Similarly the sale document in 1981 by
which the petitioners in R.P. No. 22 of 1989 came
in to ownership can be accepted because their
origin can be traced up to 1908. Based on all
these documents and the court transactions it is
reasonable to assume that the concerned paimash
numbers has found place on the land claimed to
be owned by the two petitioners. Moreover the
patta No.1 produced by the petitioner has the
paimash Nos. 608, 609, 610, 612 and 613. The
1st respondent's contention is that this is a
fabricated patta issued by an unauthorized
person. The sample of patta issued by the 1st
respondent is very different from patta claimed to
be patta No.1. But they did not produce a copy of
the correct patta No.1 issued by themselves to
refute the claims of the petitioners. Moreover
from the example of pattas filled in the S.R. No.
24 AIB/73/Act30/63/SDT. It is seen that they are
very much similar to the pattas filed by the
petitioner and have been issued by the same
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W.P.No.11086 of 2006
mirazdar. If those pattas are accepted in the
earlier cases, there is no reason to reject this
patta as fabricated in absence of a contrary
evidence. Thus the patta No.1 is taken to be a
genuine one and the appearance of Survey
Nos.608, 609, 610, 612 and 613 in it goes further
to bolster the claims of the petitioners. Again
patta No.7 has not been filed by the respondent, a
but the Ex.A22 filed by the petitioners also shows
that these paimash numbers do not find place in
the patta. So it is difficult to arrive at an answer
to the question that how the Assistant Settlement
Officer, Thiruvannamalai managed to see the
paimash numbers in patta No.7 and not in patta
No.1. Again the documents Ex.A.20 Ex.A.21,
Ex.A.22 and the documents referred to in the
Judgment of Assistant Settlement Officer,
Chengalpattu in 1973 show that the two pangus
which was bought by the Adheenam correlates
completely to the patta No.7. So if the Adheenam
claims rights over the paimash Nos. 208, 209,
210, 212 and 213 it has to be through some other
authority and not just the 2 pangus of land
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W.P.No.11086 of 2006
bought in 1867 or the T.D. No. 481 of 1862 for
which the question of having Kudivaram rights
has already been decided by the Assistant
Settlement Officer, Chengalpattu in his judgment
in 1973, subject to the appeal pending in the High
Court. But the 1st respondent has not filed any
document to show any authority apart from T.D.
No. 482 and the purchase made in 1867 at
pangus of land. Thus based on the above the
obvious conclusion is that the petitioners have
established their rights on the paimash Nos. 608,
609, 610, 612 and 613."
17. By relying upon these findings as well as the Execution Petition
filed by the petitioners' predecessors, pursuant to the partition suit in E.P.
No. 9 of 1967, the learned Senior counsel has contended that, it is not
only the right of the parties having been confirmed by relying upon the
various documents, several years together having been maintained by the
petitioners' predecessors in title and subsequently by the petitioners and
also based on the findings given in each of the documents, the right of the
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W.P.No.11086 of 2006
petitioners to claim over the property in question have been perfected and
therefore, absolutely there has been no plausible reason available for the
Land Commissioner to brush aside the detailed findings given by the
second respondent and hence, the present reasoning given that, merely
because the Paimash numbers are not correlated with Survey No.83, the
right of the predecessors in title have been rejected and correspondingly,
the claim of the petitioners also have been rejected.
18. However, according to the learned Senior counsel, the fact
remains that, the Paimash numbers are very much correlated with Survey
No.83 and this has been evident from the detailed findings given by the
Settlement Officer in his order referred to above.
19. Therefore, the learned Senior counsel would further submit
that, the entire impugned order insofar as the rejection of Revision
Petitions filed by the petitioners is concerned, are completely faulted.
Therefore, it requires interference from this Court, he contended.
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20. I have heard Mr.K.V.Ananthakrishnan, learned counsel
appearing for the third respondent i.e., Adhinakarthar, Kundrakudi. He
has relied upon the two paragraphs of the counter affidavits, which reads
thus:
"3. I am placing the following facts for
consideration: The land under dispute is in Survey
No. 83 of Adambakkam village, Tambaram Taluk,
Kancheepuram District to an extent of 2.76 acres
was in possession and enjoyment of the third
respondent Madam. There were several claims
relating to the property by different persons
including the third respondent, Shri Kundrakudi
Thiruvannamalai Madam. Each of the party
claimed right to be property under different right.
Rival claimants claimed patta for the property on
the basis of Kudivaram. The 3rd respondent
claimed Kudivaram and Melvaram rights. In the
Judgment dated 28.02.2001 made in S.T.A.
No. 3637 of 1982, the Hon'ble Hight Court held
that the Adheenam has no right to the said
property. The Adheenam took up the matter to
Supreme Court in Civil Appeal Nos.2212 and 2213
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W.P.No.11086 of 2006
of 2002. The Supreme Court on 20.08.2015
dismissed the appeal and confirmed the order of
the High Court that Adheenam had no Kudivaram
and Melvaram rights."
"7. In view of the Court's findings that the
Adheenam has no right over the property, it has no
intention to execute any further power of attorney
to anybody for maintenance of the property. The
Adheenam agreed to abide by the order of this
Hon'ble Court. Pursuant to the power of attorney,
the petitioner, E.Aranganathan filed W.P. No.
28379 of 2006 challenging the order in Revision
Petition. After his death, his legal heirs are in
possession and attempt to put up their right and
claim to the property under the rights of
Adheenam. When the Adheenam itself has lost its
right to the property, the power of attorney holder
or his legal representatives cannot claim any right.
On the death of Mr.E.Aranganathan, his power
has come to an end and his representatives cannot
claim any right under the Adheenam."
21. By relying upon these averments, the learned counsel appearing
for the third respondent would fairly submit that, the claim made by the
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third respondent has been completely negated in hierarchy of forum up to
the Hon'ble Supreme Court. Therefore, the question of making reclaim by
the third respondent at this length of time does not arise. Hence, the third
respondent have given its claim over the property in question.
22. I have heard Ms.Akila Rajendran, learned counsel appearing
for the first and second respondents, who, by relying upon the averments
made in the counter affidavit would submit that, the reasoning given by
the first respondent in the impugned order to reject the claim of the
petitioners' predecessors in title and consequently, the petitioners claim
are mainly based on the non-correlation of Paimash numbers with the
Survey No.83 and this has been specifically stated at para (b) at internal
page 9 of the impugned order. In order to appreciate the same, the said
reasoning given by the first respondent in the impugned order, to reject
the R.P. No. 21 of 1991 filed by the Tmt.Desammal and others as well as
R.P. No. 20 of 1991 filed by the Balakankatharathilagar and others i.e.,
petitioners, are extracted hereunder:
"8. Revision Petition 21 of 1991 filed by
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W.P.No.11086 of 2006
Tmt.Desammal and 4 others:
The Settlement Officer, Thanjavur granted
patta in favour of these petitioners, relying upon
the partition suits filed in C.S. No. 504 of 1926 on
of 1962 on the file of District Munsif Court,
Poonamallee. These suits are filed between
Sankara Chettiar and Bhoopathi Chettiar on the
one side and Desappa Chettiar on the other side.
The petitioner in this revision petition have
claimed to be the legal heirs of Desappa Chettiar.
However, the suit lands in Survey No.83
correlated to Paimash Nos. 608/2, 609/2, 612/2,
613/2, 614/2, 616/1 do not find place in these
partition suits and these Paimash numbers were
shown only as boundaries to the lands partitioned
in those suits. The Assistant Settlement Officer,
Thiruvannamalai, has correctly rejected their
claims. However, the Settlement Officer has come
to the conclusion that they were entitled to patta
for 1.76 acres in Survey Number.83 without
correlating the Paimash numbers to Survey No.83.
The Settlement Officer further went on to divide
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W.P.No.11086 of 2006
the extent of 1.76 acres equally without any
request from the petitioners. Moreover, the
Settlement Officer did not mention under which
section of the Act the petitioners have accrued
rights to get Ryotwari patta. It only shows that
the Settlement Officer had hastily and arbitrarily
allowed patta. It only shows that the Settlement
Officer had hastily and arbitrarily allowed patta
in favour of the petitioners, even without
localizing the land under dispute. Therefore, the
order of Settlement Officer is liable to be set
aside.
C. Revision Petition 20 of 1991 filed by
Tvl.Balagangadhara Thilagar and others:
These revision petitioners were the
subsequent purchasers of the land from the year
1981, long after the notified date, from Sankara
Chettiar and Bhoopathi Chettiar who were the
persons involved in partition suits C.S. No. 504 of
1926 on the file of High Court, Chennai and O.S.
No. 669 of 1962 on the file of District Munsif
Court, Poonamallee. As explained in para (b)
supra their predecessors-in-title were not eligible
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to get patta under the provisions of the Act.
Whileso, the subsequent purchasers have no locus
standi to claim patta before the Settlement Officer.
The Assistant Settlement Officer has correctly
rejected their claim. Hence, the order of
Settlement Officer is liable to be set aside."
23. By stating these reasons, the learned counsel for the
Government wants to sustain the impugned order and she would further
submit that, insofar as the findings given for the remaining part of the
land by the Settlement Officer is concerned, that is apart from 1.76 acres
and to state that, the land belongs to the Government is concerned, since
there has been no claim prevailing from any party and the petitioners also
or their predecessors in title were not in a position to claim right over the
property based on any documents, the said portion of the order passed by
the Settlement Officer has been accepted by the first respondent and
insofar as the remaining part of the land, i.e., 1.76 acres equal to
1.3 Cawnies is concerned, since the reasoning given by the Settlement
Officer is not appealing and the reason given by the Assistant Settlement
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W.P.No.11086 of 2006
Officer since is acceptable, therefore, accepting the same, the first
respondent has passed the order rejecting the claim of predecessors in
title in R.P.No.21 of 1991 and as a sequel the right claimed by the
petitioners, who are the subsequent purchasers in R.P. No.20 of 1991,
through the impugned orders. Therefore, the said orders, according to the
learned counsel for the Government appearing for the first and second
respondents, are to be sustained. Therefore, she seeks dismissal of this
Writ Petition.
24. I have considered the said submissions made by the learned
counsel appearing for the parties and have perused the materials placed
before this Court.
25. As has been rightly pointed out by Mr.M.K.Kabir, learned
Senior counsel appearing for the petitioners, the only reason given by the
first respondent in coming to the conclusion that, even the predecessors in
title of the petitioners were not entitled to claim right over the property
is concerned, the Paimash Nos.608 etc., were not correlated with Survey
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W.P.No.11086 of 2006
No.83.
26. This finding, the first respondent has taken only from the
findings given by the Assistant Settlement Officer, in his order dated
06.10.1988. The said findings given by the Assistant Settlement Officer
reads thus:
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b$afhe;jp. v/v!;/uh$d; j';fs; rhd;Wiuapy; Kiwna
0/45. 0/45. 0/45 kw;Wk; 0/7 epy';fis 1981y; r';fu
brl;o g{gjp brl;oahuplk; fpuak; bgw;W 1983y;
xt;bthU gFjpia ghyf';fhju jpyfu; kw;wtu;fs;
fpuak; bra;J tpl;ljhft[k; jw;bghGJ j';fsplk;
bkhj;jj;jpy; 0/81 brd;L kl;Lk; kPjk; ,Ug;gjhf
bjuptpj;Js;shu;/ gl;lh nfl;Lk; ,dhk; jhh;
kWg;gtu;fs; rhd;Wiufisa[k; mtu; jhf;fy; bra;j
rhd;whtz';fisa[k; kpf;f ftdj;njhL guprPyiz
bra;njd;/ ,e;j tHf;fpy; rk;ge;jg;gl;l epy';fs; ru;nt
ek;gu; bjhlu;g[ila igkh!; ek;gu; 608-2. 609-2.
612-2. 613-2. 616-2 mitfs; 1926k; Mz;L brd;id
cau;ePjpkd;wj;jpy; r';fu brl;oahu; g{gjp brl;oahu;
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W.P.No.11086 of 2006
tifauh njrg;g brl;oahu; tifauh ghfg; gpuptpid
tHf;fpy; rk;ge;jg;gltpy;iy/ 1962y; ek;gu; 669-62
tHf;F jPu;g;gpYk; ,lk; bgwtpy;iy/ $hup cj;jut[
1967y; rl;lk; 30-63 mKyhf;fg;gl;l ehSf;F
gpwg;gpj;jjpy; $f;F ge;jpapy; jhd; Twg;gl;Ls;sJ/
$hup cj;jut[ efy; (jhf;fy; bra;Js;sJk;) Vw;Wf;
bfhs;s jf;fjhf ,y;iy/ nkYk; ,tu;fs; rhl;rpa';fspy; ,e;j
epyk; Mjpd gl;lh ek;gu; (mHpe;Js;sJ) vd;W
Fwpg;gpl;Ls;shu;fs;;/ Mjpd gl;lh ek;gu; xd;W
jpU/r';fubrl;o bgaupy; cs;sJ/ mjpy; ml';fpa igkh!;
ek;gu;fs; 9. 201. 215. 216. 236-1. 347. 348.
375. 419. 456-1. 478-1. 479-1. 544-16. 576-3.
577-1. 586-5 (mHpe;Js;sJ) me;j ek;gu;fspd;
fz;l epy';fs; ,ju brhj;Jf;fs; jhd; r';fu brl;oahu;
jug;gpdUf;Fk; njrg;g brl;oahu; tifauht[f;Fk;
ghfg;gpupt[ fp!;jp tpah$;aj;jpy; fl;Lg;gl;ljhFk;/
Mdhy; 2y; cs;s igkh!; ek;gu;fspy; fz;l epy';fis
Fwpg;ghid gjpntl;oy; v!;/v/y/Mu;/ gl;lhjhu;
mDgtjhu; fyj;jpy; gjpntl;od; ,lJ gf;fj;jpy; Fd;wf;Fo
mofshu; bgaupy;jhd; cs;sJ/ tyJ gf;fj;jpy;
Mf;fpukpg;g[jhu; fyj;jpy; r';fu brl;oahu; njrg;g
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W.P.No.11086 of 2006
brl;oahu; tifauhf;fs; bgaiu jtWjyhf 1982?83y;
vGjpa[s;shu;fs; epytup jpl;lk; mKyhf;fg; glhjjw;F
Kd;g[ mt;thW xg;g[jy; bra;ag;glhj Fwpg;ghiz
fzf;fpy; vLj;Jf; bfhs;sf; TlhJ/ Mdhy; mjw;F Kudhf
nkw;go jtwhf Fwpf;fg;gl;l mog;gil r';fu brl;o.
g{gjp brl;oahu; tifauhf;fsplkpUe;J fpuak;
bgw;wtu;fSk;. njrg;g brl;oahu; thupRjhu;fSk;
gl;lh nfl;Lf; bfhs;s ,ayhJ/@
27. If we go through the said reasonings given by the Assistant
Settlement Officer, he has stated that, the land relates to the Paimash
Nos. 608, 609, 612, 613 and 616 are concerned, those lands were not
related to or involved in the partition suit by Sankara Chettiar and
Bhoopathi Chettiar in the year 1926, it has also not been quoted in 1962
Judgment of O.S. No. 669 of 1962. However, the Assistant Settlement
Officer has stated that, in Jarry order in 1967 passed under 1963 Act, this
has been stated, which cannot be accepted. This is the only findings given
contra to the claim of the petitioners and their predecessors in title by the
Assistant Settlement Officer in his order dated 06.10.1988.
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W.P.No.11086 of 2006
28. The said findings of the Assistant Settlement Officer have
influenced the first respondent to pass this impugned order.
29. However, the first respondent seems to have not considered the
very detailed and exhaustive findings given by the Settlement Officer, i.e.,
second respondent in his order dated 05.09.1991. In that order, the
second respondent, after having considered various documents produced
by the parties, has concluded that, the said documents though do not
mention the Paimash numbers, they correlated to the boundaries and
based on the correlation of the boundaries, its reasonable assumption to
believe that, they covered the same Paimash numbers.
30. The further findings given by the Settlement Officer in his order
dated 05.09.1991 states that, the link is established right up to 1908 and
so, it can not be said that all these facts arising after 1965. Similarly, the
sale document is of 1981, by which, the petitioners in R.P. No. 22 of
1991 came in to ownership can be accepted, because their origin can be
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W.P.No.11086 of 2006
traced up to 1908. He has further given findings that, the Patta No.1
produced by the petitioners, i.e., present petitioners before the second
respondent has the Paimash Nos. 608, 609, 610, 612 and 613.
31. It has further been stated by the second respondent that, the
Patta No.7 issued by the same Mirasdar has been accepted, whereas, the
Patta No.1 issued by the very same Mirasdar has been omitted to be
accepted by the Assistant Settlement Officer. This was found out by the
Settlement Officer and he has given the findings stating that, the Patta
No.1 is taken to be a genuine one and the appearance of Paimash Nos.
608, 609, 610, 612 and 613 which goes further to bolster the claim of the
petitioners.
32. When these kind of specific findings based on the documents
were given by the Settlement Officer, by his order dated 05.09.1991,
absolutely there has been no reasoning given by the first respondent, in
the impugned order, to reject it or brush aside the said findings.
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W.P.No.11086 of 2006
33. Instead, the first respondent by merely taking into account one
such findings given by the Assistant Settlement Officer by order dated
06.10.1988, has gone to the extent of rejecting the claim of the
predecessors in title of the petitioners as well as the claim of the
petitioners, through the impugned order.
34. Therefore, this Court feels that, the reasoning given by the first
respondent in rejecting the claim of the petitioners for getting the patta for
1.76 acres of land alone, is totally untenable and bereft of any plausible
reasons.
35. It is further to be noted that, insofar as to the extent of 1.76
acres is concerned, the Settlement Officer has arrived in his order dated
05.09.1991 to issue patta in favour of the petitioners, based on the
document in E.P. No. 9 of 1967 in O.S. No. 669 of 1962, where, in the
schedule, it has been clearly stated that, all the piece and parcel of the
cultivable land with four boundaries to the extent of 1½ Cawnies with
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W.P.No.11086 of 2006
Paimash Nos. 608, 609, 610, 612 and 613. 1½ Cawnies is equivalent to
1.76 acres. Therefore, the petitioners in both R.P. Nos. 22 and 23 of 1989
before the second respondent were found to be entitled to only for that
much land, i.e., 1.76 acres and not the entire land of 2.85 acres. The
relevant findings of the second respondent reads thus:
"The fifth issue is the area to be given to the
petitioners. Admittedly and through the documents
produced it is seen that the ownership is limited to
1.5 cawnies that is 1.76 acres and not 2.85 acres
which is under dispute. As discussed in the third
issue, the respondents did not have any claim to
other areas apart from patta No.7, similarly the
petitioners do not have any claim in excess of 1.76
acres. So if the full area is alloted to them it will be
a miscarriage of justice and would land to undue
benefit to them. The excess amount cannot even be
explained by encroachment since at the time of
partition in 1962 the area was limited only to 1.5
cawnies. And any encroachment subsequent to the
introduction of the Act has to be treated through
other rules and regulations and not the provisions
of the Act. As per 93 Law Weekly page 707 it is
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W.P.No.11086 of 2006
clearly said that claim to patta in case of buildings
will be only if there is coalescence of ownership of
land and the building. Otherwise the land would be
vested with the Government. So taking it all under
considerations it would be in nature of fair justice
if the 1.76 acres is alloted jointly to the petitioners
in Survey No.83 and the balance 1.09 acre is kept
as poramboke land.
Based on the conclusion arrived above, I
allow the petition partially under Section 5(2) of
the Act and set aside the order of the Assistant
Settlement Officer, Thiruvannamalai in his
SR/274/88/Dt.06.10.1988. The petitioners in R.P.
Nos. 22 of 1989 and 23 of 1989 are entitled only to
1.76 acres Survey No.83 correlated to T.S. No. 139
and the balance is to be treated as Government
Poramboke. Of the 1.76 acres, the petitioners in
R.P. No. 22 of 1989 are eligible for 0.88 acres and
petitioner in R.P. No. 23 of 1989 are eligible for
0.88 acres. The case is remain to the Assistant
Settlement Officer, Thiruvannamalai for the limited
purpose of determinating the locating of the
Government poramboke of 1.09 acres involved in
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Survey No.83 and carrying out the subdivisions
accordingly. In determining the provisions of the
93 Law Weekly, page 707 should be followed
strictly."
36. Though such a prime, fair and acceptable reason is given by the
second respondent in his order as to why he arrived at a conclusion to the
extent of 1.76 acres to be eligible for the claim of patta for both the
revision petitioners, that conclusion has been lamented by the first
respondent in the impugned order stating that, the Settlement Officer
without any reason has come to the conclusion that, the petitioners are
entitled for 1.76 acres.
37. Therefore, even in that count also, the first respondent / Land
Commissioner has not considered the issue in proper perspective by fully
taking into account the reason given by the Settlement Officer in his order
dated 05.09.1991.
38. Therefore, for all these reasons and discussions made above,
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W.P.No.11086 of 2006
this Court is of the considered view that, the impugned order is flawed
and therefore, it shall not stand under legal scrutiny, hence, it is liable to
be interfered with.
39. However, this Court also feels that, since the claim now made
by the petitioners, if we traced the past history, it goes nearly about
hundred years or more and in this regard, there has been several
documents seems to have been produced before the Assistant Settlement
Officer as well as Settlement Officer and based on which, findings have
been given in detail by the Settlement Officer in the order referred to
above dated 05.09.1991, hence, in order to reconsider the same and to
issue a fresh order by taking into account the irresistible findings and
conclusion given by the second respondent, the matter can be remitted
back to the first respondent / Land Commissioner to pass a fresh order in
that line indicated above within a time frame that may be stipulated by
this Court.
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W.P.No.11086 of 2006
40. Accordingly, this Writ Petition is disposed of with the following
orders:
"That the impugned order passed by the first
respondent dated 29.08.2005 is hereby set aside
insofar as the petitioners are concerned and
accordingly, the matter is remitted back to the first
respondent for reconsideration. While reconsidering
the same, the aforesaid discussions made in this
order especially in the context of various findings
given by the second respondent in his order dated
05.09.1991 shall borne in mind and accordingly,
after giving an opportunity of being heard to the
parties concerned, a fresh order shall be passed by
the first respondent. While considering the aforesaid
issue as indicated so far, the further input if the
petitioners want to place it before the first
respondent for his consideration can also be received
and considered and accordingly, a final order shall
be passed within a period of three months from the
date of receipt of a copy of this order."
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W.P.No.11086 of 2006
41. With these directions, this Writ Petition is ordered accordingly.
However, there shall be no order as to costs.
15.07.2021
Index: Yes
Speaking Order: Yes
vji
To
1. The Special Commissioner and Commissioner
of Land Administration,
Chepauk, Chennai.
2. The Settlement Officer,
Thanjavur.
3. Adhinakarthar,
Tiruvannamalai Madam,
Kundrakudi.
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W.P.No.11086 of 2006
R. SURESH KUMAR, J.
vji
W.P. No. 11086 of 2006
15.07.2021
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