Madras High Court
Government Of Tamil Nadu vs K.S.D.Rajendran on 17 November, 2021
AS (MD) NOS.161 & 162 OF 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17 / 11 / 2021
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
AS (MD) NOS.161 AND 162 OF 2014
AND CMP (MD) NOS.1400 AND 1401 OF 2018
AS (MD) NO.161 / 2014
Government of Tamil Nadu
Rep. by the District Collector of
Ramanathapuram. ... Appellant / Referring Officer
Vs.
K.S.D.Rajendran
S/o.K.S.R.Dhasarath (Died)
2.Padma
3.Rajeshwari
4.Raguram
5.Maheswari
(Respondents 2 to 5 are brought on record
as LRs' of the deceased sole respondent,
vide Court order dated 07.06.2018 made
in CMP (MD) Nos.8780 to 8782/2016) ... Respondents / Claimants
PRAYER: First Appeal filed under Section 96 CPC against the judgment and
decree of the learned Subordinate Judge of Ramanathapuram in O.S.No.
37/89 dated 21.03.1994.
For Appellant : Mr.C.Ramar
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Additional Government Pleader
For Respondents 2-5: Mr.S.Meenakshi Sundaram
Senior Counsel for Mr.S.Siva Thilakar
AS (MD) NO.162 / 2014
Government of Tamil Nadu
Rep. by the District Collector of
Ramanathapuram. ... Appellant / Referring Officer
Vs.
K.S.D.Rajendran
S/o.K.S.R.Dhasarath (Died)
2.Padma
3.Rajeshwari
4.Raguram
5.Maheswari
(Respondents 2 to 5 are brought on record
as LRs' of the deceased sole respondent,
vide Court order dated 07.06.2018 made
in CMP (MD) Nos.8785 to 8787/2016) ... Respondents / Claimants
PRAYER: First Appeal filed under Section 96 CPC against the judgment and
decree of the learned Subordinate Judge of Ramanathapuram in O.S.No.
43/89 dated 21.03.1994.
For Appellant : Mr.C.Ramar
Additional Government Pleader
For Respondents 2-5:
Mr.S.Meenakshi Sundaram
Senior Counsel for Mr.S.Siva Thilakar
COMMON JUDGMENT
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The above two appeals have been preferred against the decree
and judgment passed in O.S.No.37 of 1989 and O.S.No.43 of 1989 dated
21.03.1994 by the learned Subordinate Judge, Ramanathapuram.
2. For the sake of convenience, the parties are called as per their
litigative status in the Suit.
The defendant is the appellant in both the appeals. The plaintiff
filed a Suit for declaration declaring the Suit property belonged to the
plaintiff and consequently, for permanent injunction restraining the defendant
from interfering with his peaceful possession and for direction against the
defendant to issue Ryotwari Patta to the plaintiff in respect of the Suit
property. In both the Suits, the Suit properties are agricultural properties
situated in S.No.40/1, Part in Kattu Paramakudi Village, Paramakudi Taluk,
Ramanathapuram District, measuring an extent of 3 Acres 15 Cents and 10
Acres and 58 Cents respectively.
3. According to the plaintiff, the Suit properties are lying south
of River Vaigai, which was a part of erstwhile Ramnad Zamin. The long
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stretch commencing on the west from the channel and stretching up to
Uprapuli Village in the east was separately treated under the name of Athu
Padugai. This Athu Padugai block of land was granted on permanent cowle
by Rajah of Ramanathapuram, land holder of the Zamin under cowle deed
dated 07.02.1865 to one Ayyathurai Pillai, a local vakil of Paramakudi. The
said Ayyathurai Pillai sold a part of the lands to Ponnusamy Thevar, the great
grandfather of the plaintiff. From Ponnusamy Thevar, the property ultimately
vested in Velusamy Thevar called Mappillai Samy Thevar. The said
Velusamy Thevar, in and by his WILL dated 08.09.1924 bequeathed all his
properties to the plaintiff’s mother R.Muthathal Nachiar. The said Muthathal
Nachiar left a WILL on 25.06.1959. By virtue of the WILL, the plaintiff
derived title to the properties as an absolute owner. Muthathal Nachiar was
the daughter of the Zamin Family of Ramnad and wife of K.S.R.Dasarad
Zamindhar of Palayampatty and the properties were in her possession. The
property in her possession were entered as "Estate" are on "No.1 Patta" in her
name in accordance with the practice in such families and estates. The Suit
properties and its adjoining properties lying as a single block were assigned
Paimash numbers 3/2, 4/1, 6/1, 6/2, 7 to 9, 10/1 and 10/2. Except Paimash
numbers 4/2 and 5, which were granted to private individuals, the other lands
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were entered in separate holdings of the Zamin family. During the survey and
settlement, the Manager of the Estate, by negligence, omitted to apply for and
obtain Ryotwari Patta. The said Muthathal Nachiar died in 1961 and the
plaintiff became entitled to the properties on the basis of the WILL of his
mother. When he made enquiries and investigated the properties, it was
found that the properties were registered as "assessed waste land". That is,
the lands were cultivable and assessable and not poramboke. The plaintiff
took steps for obtaining Ryotwari Patta. However, the Director of Settlements
though found title in favour of the plaintiff, declined to issue patta on the
grounds of delay and recommended the case for patta outside the scope of the
Act, by his order dated 30.06.1970. The plaintiff made application for patta
outside the scope of The Madras Estates (Abolition and Conversion into
Ryotwari) Act (XXVI of 1948) (Shortly "the Act"). He voluntarily gave up
the his claim for the portion of the land in the occupation of Municipality, as
the plaintiff found that the portion had already been gifted to Municipality
and two other portions had also been similarly granted to one Karuppiah
Pillai and Meenakshi Ammal. One Sikkandar and his brother's son Musafar
Gani made a rival claim for a small portion in the western side. The Revenue
Department unwilling to go into the anterior title directed the plaintiff to
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establish his title before the Civil Court, by the order of Revenue Divisional
Officer, Sivaganga, dated 25.07.1973. However, the plaintiff pursued the
issue with the Revenue Department and the Commissioner of Land
Administration in his order dated 31.10.1984 reiterated the direction to obtain
a declaration from the Civil Court. Accordingly, the plaintiff filed a Suit in
O.S.No.40/1986 on the file of Sub Court, Ramanathapuram at Madurai and
obtained a decree. In O.S.No.40/1986, his title and possession to Survey
Numbers 40/1, Part and 40/2 was recognized by the competent Court.
However, the Revenue Department declined to issue patta even after the
declaration of Sub Court, Ramanathapuram quoting an irrelevant
Government Order dated 28.02.1989. The plaintiff continues to be in
peaceful possession and enjoyment of the property and therefore, he is
entitled to declaration of title and for direction for the issuance of Ryotwari
Patta and consequential permanent injunction and hence filed the Suit.
4. In the written statement, the defendants have denied the
averments made in the plaint and contended that the plaintiff has no locus
standi to file the Suit. The Suit as framed is not sustainable in law. The
village Kattu Paramakudi, in which the Suit property situated is vested with
the Government under Act 26 of 1948 as on 03.01.1951 and survey and
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settlement was effected in Fasli 1368. The total extent of 18.32 Acres in
S.No.40 at the time of survey was treated as "assessed waste dry". The land
was sub-divided in the following manner:-
S.No.40/1 – 14.96 Acres
S.No.40/2 - 0.30 Acres
S.No.40/3 – 1.89 Acres
S.No.40/4 – 1.17 Acres
admeasuring a total extent of 18.32 Acres.
The plaintiff has no right or whatsoever in the Suit property and not in
possession and enjoyment of the Suit property and the persons through whom
the plaintiff claims alleged inheritance themselves did not have any right over
the Suit property and they were not in possession and enjoyment of the
property. The cowle deed and the WILLs' dated 08.09.1924 and 25.06.1959
referred to in the plaint are not admitted and they were no way connected
with the Suit property. The plaintiff’s mother owned the property and it was
in her possession and enjoyment are all denied. As admitted by the plaintiff,
no application was made for grant of Ryotwari Patta during the time of
settlement and survey and hence, the mother of the plaintiff herself has no
right in the Suit property and the same was absolutely vests with the
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Government. The plaintiff made an application for grant of patta for an extent
of 18.32 Acres and in S.No.40 of Kattu Paramakudi Village outside the scope
of Estate Abolition Act before the Revenue Divisional Officer, Sivagangai
under the provisions of G.O.Ms.No.1300, Revenue, dated 30.04.1971. He
was granted patta for an extent of 3.06 Acres i.e., 1.89 Acres in S.No.40/3,
1.17 Acres in S.No.40/4 and rejected the request of the plaintiff in respect of
S.No.40/1 and 40/2, in his proceedings Roc.A7/35664/71 dated 25.07.1973.
The plaintiff has not preferred any revision against the order of the Revenue
Divisional Officer or filed any Suit before the Civil Court. Again, the
plaintiff has applied for grant of patta for all the lands in S.No.40/1 and 40/2
which was rejected by the Revenue Divisional Officer, Sivaganga, by his
order dated 19.08.1980. Against which, he preferred a revision petition
before the erstwhile Board of Revenue. Consequent upon the abolition of the
Board of Revenue, the revision petition was transferred to the file of
Additional Collector of Composite Ramanathapuram District, who rejected
the revision petition in his proceedings in Roc.No.Z5/83844/81 dated
06.08.1982. Against which, he preferred a revision before the Government
and the same was transferred to the file of Special Commissioner and
Commissioner for Land Administration, Madras and the same was rejected in
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Proceedings D.Dis.No.5600/83 dated 03.04.1984. Against the order of the
Special Commissioner and Commissioner for Land Administration, he
preferred another revision petition to the Government and the same was also
rejected in G.O.Ms.No.697, C.T. & R.E., Department, dated 04.05.1988 since
no valid documentary evidence was produced to prove his title and
continuous possession and enjoyment of the land prior to or on and from the
notified date. The averment that in the order of the Revenue Divisional
Officer, Sivaganga, dated 25.07.1973, a direction was issued to obtain a
declaration in respect of the Suit properties is denied as absolute false. The
Suit in O.S.No.40/1986 was not filed against the Government, but against the
private individuals and therefore, it is not binding on the defendant.
Therefore, the plaintiff, who unsuccessfully claimed patta outside the scope
of the Estate Abolition Act from the year 1970 is not entitled to the relief and
the Suit is barred by limitation. Since no notice was issued under Section 80
CPC, the Suit is not maintainable and there is no cause of action for
maintaining the Suit and the Court has no jurisdiction to entertain the Suit
and sought for dismissal of the Suit.
5. The Trial Court framed the following issues :-
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(i) Whether the plaintiff is entitled to 3.15
Acres and 10.58 Acres respectively in S.No.40/1
described in the Schedule?
(ii) Whether it is true that the plaintiff is not
in possession?
(iii) Whether the Suit is not maintainable as
per the Zamin Abolition Act?
(iv) Whether the plaintiff is entitled to
declaration, enjoyment and direction for issuance of
Ryotwari patta?
6. Before the Trial Court, the plaintiff examined four witnesses
as P.W.1 to P.W.4 and marked Exs.A31 to 37. On the side of the defendant,
three witnesses were examined as D.W.1 to D.W.3 and Exs.B1 to B9 were
marked. Exs.X1 to X13 were marked as Court documents. The Trial Court
after having gone through the evidence has found that though the identity of
the property is not clear, the documentary evidence goes to show that the
plaintiff is entitled to the property by virtue of the WILL of his mother and
the patta issued in his favour. The Trial Court held that once it is admitted
that the plaintiff was in possession of the plaint schedule property, he cannot
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be denied the right to get patta and therefore, granted decree of declaration,
permanent injunction and issued a direction to give Ryotwari patta in favour
of the plaintiff.
7.Aggrieved over the same, the defendant preferred these
appeals on the grounds that the Suit is not maintainable in law and the decree
and the judgment were passed contrary to law and weightage of evidence.
The Civil Court has no jurisdiction to interfere with the classification of the
land pursuant to the survey and settlement. The plaintiff has miserably failed
to prove that he or his predecessors in interest owned the Suit property with
the Survey number correlated to Paimash numbers in Ex.A7. The Trial Court
has erred in relying on the Exs.A3 to A6 and A27 as valid documents without
considering that they are inadmissible, fabricated and does not confer any
title over the predecessors in title. Exs.A3 to A6 and A27 are only copies of
the documents and not the originals. Without producing the original WILL
and without proving the same, the plaintiff cannot claim title over the
property and the Suit property cannot be defined as Estate and it belongs to
Zamin of Ramnad. The property vested with the Government and admittedly,
no patta was obtained within the limitation period and having unsuccessfully
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contested from the year 1970 and the Suit filed in 1989 is absolutely barred
by limitation and therefore, the judgment and decree of the Trial Court is
liable to be set aside.
8. Considering the pleadings, it has to be decided that the
following are the points for consideration:-
(i) Whether the Suit is maintainable in
view of Tamil Nadu Act 26 of 1948?
(ii) Whether the plaintiff and his
predecessors were entitled to the Suit properties
and as to whether the plaintiff is entitled to any
right to get Ryotwari patta?.
9. At the outset, the entire Suit is based on Act 26 of 1948. The
plaintiff claims that originally the land belongs to Rajah of Ramanathapuram
who is a Zamindar of Ramnad. He has given a permanent cowle dated
07.02.1865 to one Ayyathurai Pillai. The cowle is a lease given in favour of
Ayyathurai Pillai. As such, the Ayyathurai Pillai was only a lease holder of
the property and the title of the property at that point of time vested with the
Zamindar of Ramnad. It is deposed by the Manager of the Estate as P.W.1
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that the said Ayyathurai Pillai on 29.11.1868 had sold the property in favour
of one Ponnusamy Thevar by virtue of a Sale Certificate dated 29.11.1868
marked as Ex.A5. It is further stated that one Zamindar Kottaisamy Thevar
has sold the property on 10.05.1892 in favour of one Velusamy Thevar. It is
also stated that Ponnusamy Thevar given the properties by virtue of a WILL
dated 17.05.1895 (Ex.A35) in favour of his daughter Muthathal Nachiar. On
the other hand, in the plaint, it is stated that the WILL dated 08.09.1924.
Thereafter, the said Muthathal Nachiar has executed a WILL dated
25.06.1959 vide Ex.A27 in favour of the plaintiff herein. The said Muthathal
Nachiar died in the year 1961.
10. Admittedly, Tamil Nadu Act 26 of 1948 came into force with
effect from 19.04.1949. Section 3(b) of the Act specifies that the entire estate
including all communal lands, poramboke lands, other non-ryoti lands, waste
lands, pasture lands, lanks lands, forests, mines and minerals, quarries, rivers
and streams, tanks and ooranies and irrigation works, fisheris and ferries shall
stand transferred to the Government and vest in them, free of all
encumbrances and all other enactments applicable to Ryotwari areas shall
apply to the estate.
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11. Section 3(c) of the Act specifies all rights and interests
created in or over the estate before the notified date by the principal or any
other landholder, shall as against the Government cease and determine.
12. Section 3(g) of the Act specifies that any rights and
privileges which may have accrued in the Estate to any person before the
notified date against the Principal or any other landholder thereof, shall cease
and determine and shall not be enforceable against the Government or every
such person shall be entitled only to such rights and privileges as are
recognized or conferred on him by or under this Act.
13. By virtue of the above Sections, it is very clear that on and
from 19.04.1949, the date on which the notification was issued, the right of
landholders in the estate ceased and determined and it vested with the
Government. Likewise, the right of the persons who are claiming under the
landholders or Zamindars also ceased and determined.
14. Admittedly, the plaintiff's mother or after her death, the
plaintiff had failed to apply for patta as mandated by the Act. As per Section
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15 of the Act, the landholder is entitled to Ryotwari Patta under Sections 12,
13 and 14 and the Settlement Officer shall examine the nature and history of
all lands and pass orders. Sub-section 2(a) of Section 15 of the Act, any
person aggrieved by the decision of the Settlement Officer shall prefer an
appeal within two months from the date of the order to the Tribunal. As per
Section 64-C of the Act, any order passed by the Government or other
authority under this Act in respect of matters to be determined for the
purposes of this Act shall, subject only to any appeal or revision provided by
or under this Act, be final; (2) no such order shall be liable to be questioned
in any Court of Law.
15. However, the learned counsel appearing for the respondents
would contend that Section 64-C of the Act cannot oust the jurisdiction of the
Civil Court to adjudicate the real nature of the land as found in the judgment
in STATE OF TAMIL NADU VS. RAMALINGA SWAMI, MADRAS [AIR
1986 SC 794].
16. In support of his contention, the learned counsel for the
respondents would rely on the judgment of the Hon'ble Supreme Court in
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SRI-LA-SRI SIVAPRAKASA PANDARA SANNADHI AVARGAL VS.
SMT. T. PARVATHI AMMAL AND OTHERS [1998 (1) CTC 585] wherein
it is observed as under:-
"The plea of exclusion of the Civil Court's jurisdiction
to adjudicate the title of the parties in the present case is
based on the provisions of the Tamil Nadu Minor Inam
(Abolition and Conversion into Ryotwari) Act, 1963, this
Court in a recent decision in R.Manickanaicker v.
E.Elumalainaicker, 1995 (4) SCC 156, has clearly held that
the Civil Court's jurisdiction to adjudicate title of the
parties, is not barred by virtue of the provisions of the said
Act. This is a direct decision of this Court on the provisions
of the Act with which we are concerned in the present case."
17. He would rely on a judgment of this Court in SRINIVASAN
AND OTHERS VS. SRI MADHYARJUNESWARASWAMI AND
OTHERS [1998 (1) CTC 630] wherein, this Court, relying on the various
judgments including the judgment of the Hon'ble Supreme Court in SRI-LA-
SRI SIVAPRAKASA PANDARA SANNADHI AVARGAL VS. SMT. T.
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PARVATHI AMMAL AND OTHERS [1998 (1) CTC 585] has held that the
jurisdiction of the Civil Court to entertain a Suit for declaration of title and
injunction is not barred by reason of the grant of patta under the provisions of
Tamil Nadu Act 30 of 1963.
18. Further, he would rely on a judgment of this Court in THE
STATE OF MADRAS REPRESENTED BY THE COLLECTOR OF
RAMANATHAPURAM AT MADURAI VS. RAMALINGASWAMIGAL
MADAM (NORTH THIRUPPACHETTI) REPRESENTED BY N.S.K.
PARAMASIVA THEVAR AND OTHERS [1969 (II) MLJ 281], wherein
this Court has observed as under:-
"What is contended for the State before me is that
the civil Court has no jurisdiction whatsoever to entertain
the suit, as in substance the plaintiff is claiming and
seeking to establish his right to a patta for the suit property
when the same had been denied by the State, the State
having held rightly or wrongly that the suit property was a
communal poramboke. The contention is that after the
Abolition Act, the entire estate in which the plaintiff's
property is situated has vested in the State and the plaintiff
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can only claim such rights, if any conferred under the
provision of the Act and that in the manner provided by the
Act. The Act which confers rights in relation to estates on
the abolition, is a self-contained code which provides a
hierarchy of authorities for determination of the matters
and grant of reliefs contemplated under the Act. ..............
Section 11 provides for the issue of ryotwari pattas
to ryots in the estates. Sections 12, 13 and 14 deal with the
rights of landholders to pattas in respect of private lands
and other lands. Section 15 empowers the Settlement
Officer to examine the nature and history of all lands in
respect of which the landholder claims ryotwari patta under
Sections 12, 13 or 14, as the case may be, and decide on the
claim.......
....... Hence, however attractive the arguments of Sri
Vedantachari are, it is not possible to accede to them in full
and find that the rights of a ryot in a ryoti land are not
affected by the Act, that they do not vest in the
Government and therefore, any claim to such right could not
be the subject-matter of any decision under the Act, but
could be dealt with only by Civil Courts."
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Thus, it is clear that after the enactment, the lands vest with the Government
and hierarchy of authorities are conferred with rights to grant ryotwari patta.
Therefore, the decision taken by the authorities once become final cannot be
reagitated by filing a fresh Suit, without challenging or setting aside these
orders by competent Courts. The contention that the jurisdiction of a Civil
Court will not apply to the present case.
19. Be that as it may, admittedly, the Director of Settlement
recommended the case of the plaintiff for being considered in terms of
G.O.Ms.No.1300, Revenue, dated 30.04.1971. As per the said Government
Order, landholders, who could not apply for patta in time, but would have
obtained patta if they had applied in time might be granted patta outside the
scope of the Act. Thus, the Director of Settlement considered that the
plaintiff having failed to apply for patta in time is entitled to apply for the
same outside the scope of the Act.
20. Accordingly, the plaintiff applied for patta in 1971. The
claim of the plaintiff was considered outside the scope of the Act in terms of
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G.O.Ms.No.1300, Revenue, dated 30.04.1971 and patta was granted in
favour of the plaintiff to an extent of 1.89 Acres in S.No.40/3 and rejected his
claim in respect of all the remaining extent of lands. Against which, the
plaintiff has not preferred any appeal or revision nor filed any Suit. Again, as
contended by the defendant, the plaintiff has applied for patta on 19.08.1980
and it was rejected by the Revenue Divisional Officer. Again, he filed a
revision against the rejection order to the Board of Revenue, which was
transferred to the Additional Collector, Ramanathapuram as the Board of
Revenue was abolished. On 03.04.1984 the Special Commissioner and
Commissioner of Land Administration, Madras rejected the request. Against
which, he preferred an appeal to the Government which was also rejected on
04.05.1988. Having failed in all his attempts, the plaintiff has preferred the
above Suits.
21. At the outset, it is noted that on 30.04.1971 itself, the request
of the plaintiff is for grant of Ryotwari patta was rejected in respect of the
properties for which the present Suit is filed. As discussed above, as per
Section 15 of the Act, the limitation for filing an appeal against the
Settlement Officer is only two months. Whereas, the plaintiff has waited for
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18 years to file the Suits. Even assuming that he filed an application for grant
of patta in the year 1980, it can be construed that he filed the same after nine
years from the date of rejection order dated 30.04.1971. Yet, he has not
challenged the order dated 30.04.1971 till date, but applied for patta afresh,
as if it was not rejected. That order rejecting the grant of patta in respect of
the properties except S.No.40/3 had become final. In that view of the matter,
the Suits are hopelessly barred by limitation.
22. In so far as the maintainability of the Suits are concerned, as
found in Section 3(b)(c) and (g) of the Act, after the Act came into force, the
entire estate shall stand transferred to the Government and vest in them free
from encumbrances. The landholder or any person claiming right under him
cannot raise any dispute against the Government as all the rights and interest
created in and over the estate before the notified date shall cease and
determine as against the Government. In that view of the matter, the Suits
filed against the estate, which is vested with the Government are not at all
maintainable.
23. Furthermore, as per Section 3(16) (a) of the Madras Estates
Land Act, 1908, Ryoti land does not include the river beds, bunds of tanks
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and of supply, drainage, surplus or irrigation channels.
24. This Court in SIVAGURUNANDASWAMI
DEVASTHANAM VS. RATHINA PADAYACHI [1958 II MLJ 45,
N.O.R.C.,] has held that Padugai Lands, which are accretions to the bund of
the river are not river bed and hence not ryoti lands. The ryots cannot claim
any occupancy rights over the same. P.W.1 who is the Manager who speak
about the devolution of title and possession of the plaintiff by himself would
admit, in his cross examination that the Suit property in O.S.No.43/1989
measuring an extent of 10 Acres 58 Cents is sand and water flows through
that land. By his own admission, he would further reiterate that the River
Vaigai flows through the lands. The same is the case of the defendant also.
D.W.1 in his evidence would categorically depose that the Suit property is
O.S.No.43/1989 is River Vaigai and the distance between the eastern
boundary and the property is 3 Acres in area and 300 feet in distance. During
cross examination, he would state that there were some encroachments in the
properties mentioned in O.S.No.37/1989 and O.S.No.43/1989 over which B
Memo was issued and that penalty is being collected from encroachers. This
evidence is corroborated by the evidence of P.W.1, who in his cross
examination would admit also state that the Government is collecting penalty
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from the encroachers of the property. When it is the case of the plaintiff
himself that he has obtained B Memo and is paying penalty to the
Government, it cannot be held that the lands are in his possession as an estate
land or a private land as defined under the Act. As per Section 3 (2) (b) of the
Madras Estates Land Act, 1908, any estate shall be registered in the Office of
the Collector. In so far as the nature of the estate is concerned, there is
absolutely no evidence that the Suit properties fall within the definition of the
"estate" and that they were registered in the Office of the Collector before
and after the notified date. Absolutely, there is no oral evidence also in this
regard. In such a view of the matter, the finding of the Trial Court that by
virtue of the order of the Revenue Divisional Officer dated 30.04.1971
granting patta in respect of 1.89 Acres would automatically confer right for
the remaining lands is erroneous and contrary to the scope and object of the
Act. The Trial Court has also observed that only because the plaintiff or his
predecessors have failed to apply patta or obtained patta, it will not disentitle
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them would right over the property. Such a finding is absolutely illegal, for,
on the one hand the property in S.No.40/1 is a river and that nobody is
entitled to Ryotwari patta over water-bodies, rivers, channels, tanks,
ooranies, river banks or bunds or even over the accretions. As per the
admission of P.W.1 in his oral evidence that water will flow in S.No.40/1 and
it is a submersible land. In spite of the concrete evidence, the Trial Court
would go to an extent observing that the plaintiff is entitled to title to the Suit
property. Secondly, the finding is wrong for the reason that the devolution of
right, title and interest was not proved by the plaintiff. The plaintiff being the
propounder of the WILL must have entered the witness box and must have
produced the WILL and proved the same by examining the attesting witness.
None of the WILLs' which were given in favour of his great grandfather, his
mother and the WILL given to him were produced and proved in the manner
known to law. On the other hand, only the copies of the WILLs' were
produced by the Manager of the so-called estate, who deposed as P.W.1. But
for the oral evidence of P.W.1, absolutely there is no evidence to identify the
WILL, the signatures of the testators and the attestors or to prove the right,
title and interest of the properties and continuous possession of the plaintiff
over the same. The other witnesses on the side of the plaintiff were all
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interested witnesses who have encroached the river as the plaintiff. In the
absence of any proof that the Suit properties form part of an estate and that
the plaintiff's predecessor is entitled to that estate, the prayer for declaration
by no stretch of imagination should have been granted by the Trial Court.
25. The previous Suit through which the plaintiff claims title is
O.S.No.40/1986 is of little avail for it was filed against the private
individuals. The Government was not a party to the Suit. Therefore, the
decree and judgment in O.S.No.40/1986 on the file of Sub Court,
Ramanathapuram will not be binding on the Government at all. It will not
confer any right over the plaintiff or anybody else for that matter for getting
any Ryotwari patta. If at all the patta issued on the strength of the decree, that
should also be cancelled by the appellant.
26. The points are determined against the plaintiff and in favour
of the appellant. The decree and judgment dated 21.03.1994 passed in
O.S.No.37/1989 and O.S.No.43/1989 respectively by the learned Subordinate
Judge, Ramanathapuram, stands set aside. In fine, these appeals are allowed
without costs. Consequently, connected civil miscellaneous petitions are
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AS (MD) NOS.161 & 162 OF 2014
closed.
27. At this juncture, it is relevant to note that this Court in
B.BOOMADEVI AND OTHERS VS. THE DISTRICT COLLECTOR,
KANCHEEPURAM AND OTHERS [WP NO.13455 OF 2010 DECIDED
ON 01.02.2019] has held as under:
"27.While passing this order, this Court keeps in
mind that:
(i)the principle that the powers of the High Court
both under Article 226 and 227 cannot be whittled down,
nullified, curtailed, abrogated, diluted or taken either by
judicial pronouncement or by the legislative enactment or
even by the amendment of the Constitution. The power of
the judicial review is an inherent part of the basic structure
and it cannot be abrogated without affecting the basic
structure of the Constitution. (L.Chandra Kumar v. Union
of India, (1997) 3 SCC 261 : AIR 1997 SC 112. Curtailment
of revisional jurisdiction of the High Court by the
amendment in Section 115 CPC does not take away and
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could not have away the constitutional jurisdiction of the
High Court to issue a writ of certiorari to a civil nor is the
power superintendence conferred on the High Court under
Article 227 of the Constitution taken away or whittled
down. (Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC
675 (688) : AIR 2003 SC 3044.
(ii)the power under Article 226 of the Constitution
can be exercised not only over courts and Tribunals as under
Article 227 of the Constitution, but over all 'authorities'
which comes within the meaning of Article 12 of the
Constitution. Therefore, under the circumstances, this Court
has no hesitation in setting at naught the decree in O.S.No.
742 of 2001.
28.In view of the above stated circumstances, the
petitioners are not entitled for patta and accordingly, they
are not entitled for the relief sought for in this writ petition.
Since this Court has declared the decree obtained by the
petitioners as nullity in law, the first and second
respondents shall reject the application of the petitioners for
patta which has been filed on the basis of the decree
obtained from the Trial Court, if not already done earlier.
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Consequently the sale deed executed in favour of the
petitioners also cannot be sustained and accordingly the
same is also declared as null and void. The first and second
respondents are directed to maintain the entries in the name
of the temple. As of now, it is claimed that the property is
under the control of the temple authorities. Hence, the same
shall be possessed and maintained by the Hindu Religious
and Charitable Endowments Department. The Registering
Authority of the concerned jurisdiction shall not register any
sale or lease by and for any person."
28. In the instant case, it is noted that River Vaigai, which has a
width of more than 600 to 700 metres is narrowed down to 50 meters by the
indiscriminate encroachment made by the persons like plaintiff in collusion
with some erring officials of the Revenue Department. The Revenue
Divisional Officer, who appeared before this Court was also indifferent
reckless and irresponsible and he could not throw light over the state of
affairs and would state that patta was granted in favour of the encroachers.
Such an indiscriminating and reckless action of the Revenue Officials shows
their dissent in preserving natural resources.
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29. In the present situation, we have to preserve the waterbodies
and every citizen has a fundamental duty to protect and preserve the national
resources of our country. Hence, a direction is issued to the District
Collector, Ramanathapuram, to restore River Vaigai to its original shape by
removing all the encroachments over the river and its accretions.
30. It is stated that the plaintiff has sold the properties orally to
hundreds of people. Such sale of the Government property by a private
individual is void ab initio and it shall be recovered and the purchasers
cannot claim any equity against the Government as specified in Section 3(c)
and 3(g) of the Act, over the land, which is a river. They can work out their
remedy against the plaintiff or their respective vendors, who sold those lands
in favour of them. The District Collector, Ramanathapuram, is further
directed to recover, restore and resume possession of the river and river bed
within a period of six months from the date of receipt of a copy of this
judgment.
31.Registry is directed to send a copy of this judgment to the
Chief Secretary to the Government, Government of Tamil Nadu, Fort St.
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George, Chennai and the District Collector, Ramanathapuram, for appropriate
follow up action.
17 / 11 / 2021
Index : Yes
Speaking Order : Yes
TK/ASI
To
1.The Subordinate Judge
Subordinate Court, Ramanathapuram.
2.The District Collector
Ramanathapuram District, Ramanathapuram.
3.The Chief Secretary to Government
Government of Tamil Nadu
Fort St. George, Chennai - 600 009.
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AS (MD) NOS.161 & 162 OF 2014
M.GOVINDARAJ, J.
TK/ASI/trp
AS (MD) NOS.161 AND 162 OF 2014
17 / 11 / 2021
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