Madras High Court
Kaliappan (Died) vs The State Of Tamil Nadu on 23 March, 2022
S.A.(MD)No.693 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.693 of 2010
Kaliappan (died) ... Plaintiff / Appellant / Appellant
2.Vellaiyammal
3.Andiappan
4.Mallika
5.Poongodi
6.Rajini
7.Ilayaraja ... Appellants
(Appellants 2 to 7 are suo motu impleaded as Lrs of the deceased
sole appellant vide order dated 04.03.2022
made in S.A.(MD)No.693 of 2010)
-Vs-
1.The State of Tamil Nadu
represented by the
District Collector,
Karur.
2.The Thasildar,
Taluk Office,
Kulithalai.
3.The Village Administrative Officer,
Athanoor Village,
Kulithalai Taluk.
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S.A.(MD)No.693 of 2010
4.Kaliappan
5.Pichai
6.Sait @ Palanisamy
7.Andiappa Gounder ... Defendants /Respondents / Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the Judgment and decree in A.S.No.22 of 2007, dated
25.09.2008 on the file of the Sub Court, Kulithalai, confirming the
judgment and decree in O.S.No.464 of 2004, dated 26.04.2007 on the file of
the District Munsif Court, Kulithalai.
For Appellants : Mr.K.Govindarajan
For R1 to R3 : Mr.N.Muthu Vijayan
Special Government Pleader
For R4 to R7 : no appearance
JUDGMENT
The plaintiff in O.S.No.464 of 2004 on the file of the District Munsif
Court, Kulithalai filed this second appeal.
2. The suit was filed seeking the relief of declaration, permanent
injunction and mandatory injunction. Though the plaintiff had included a
number of suit items, the contest is only as regards the water body known
as Marappan Kulam comprised in S.F.No.177/11 in Athanoor Village in
Kulithalai Taluk. The said water body measures 50 cents. Though as many
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S.A.(MD)No.693 of 2010
as 7 persons have been shown as the defendants, the contestants are only
the State of Tamil Nadu and the Revenue Department. The State filed
written statement pointing out that since the disputed property is a water
body, the relief sought for cannot be granted. Based on the divergent
pleadings, the trial court framed the necessary issues. The plaintiff
examined himself as P.W.1. One Muthammal / wife of the 7th defendant was
examined as P.W.2. One Mariappan was examined as P.W.3. Ex.A1 to
Ex.A12 were marked. On the side of the defendants, an official by name
Manickam was examined. Ex.B1 to Ex.B3 were marked. After considering
the evidence record, by judgment and decree dated 26.04.2007 dismissed
the suit. Challenging the same, the plaintiff filed A.S.No.22 of 2007 before
the Sub Court, Kulithalai. By the impugned judgment and decree dated
25.09.2008, the decision of the trial court was confirmed and the appeal
came to be dismissed. Challenging the same, this second appeal came to be
filed. The second appeal was admitted on 21.03.2022 on the following
substantial question of law:-
“Whether the appellant is entitled to any relief in view of the lie of the
water body and in the light of Ex.B3?”
During the pendency of the appeal, the appellant passed away and his legal
heirs were brought on record.
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S.A.(MD)No.693 of 2010
3. The learned counsel appearing for the appellants reiterated all the
contentions set out in the memorandum of grounds and called upon this
Court to answer the substantial question of law in favour of the appellants
and set aside the impugned judgment and decree and decree the suit as
prayed for.
4. Per contra, the learned Special Government Pleader appearing for
the contesting respondents submitted that the impugned judgment and
decree do not call for any interference.
5. I carefully considered the rival contentions and went through the
evidence on record. As rightly pointed out by the court below, there does
not appear to be any dispute regarding the other suit items set out in the
schedule. The only dispute is regarding what is known as Marppan Kulam
comprised in Survey No.177/11 in Athanoor Village. The primary objection
raised by the learned Special Government Pleader is that in view of the law
laid down by the Hon'ble Full Bench of the Madras High Court reported in
(2015 (6) CTC 369) (T.K.Shanmugam Vs. State of Tamil Nadu) and in
view of Section 14(A) of the Tamil Nadu Estates (Abolition and Conversion
into Ryotwari) Act, 1948, patta cannot be granted in favour of private
persons in respect of any water body. The disputed property is admittedly a
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S.A.(MD)No.693 of 2010
water body. Therefore, he called upon this Court to sustain the impugned
Judgment and decree and dismiss the second appeal.
6. No doubt, the objection of the learned Special Government Pleader
is well founded. But two aspects will have to be taken note of. Firstly, the
actual lie of the water body. The Hon'ble Full Bench of the Madras High
Court in the decision reported in (1959) 2 MLJ 254 (K.S.Lakshmipathy
Nayakar Vs. The State of Madras) held that the land holder would be
entitled to ryotwari patta in respect of the water body, if it is found that
having regard to its size and the quantity of the water in the reservoir, it
was nothing more than a well or a pond. The contest will be whether the
tank was really an irrigation source for other lands. In that event, the tank
would be government property and the land holder would have no right to
have patta for the same. Of-course as rightly pointed out by the learned
Special Government Pleader, the judgment of the Hon'ble Full Bench was
rendered before incorporation of Section 14(A) of the Tamil Nadu Estates
(Abolition and Conversion into Ryotwari) Act, 1948. But the principle set
out in the said judgment and decree does contain a key to the problem
raised in this case.
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S.A.(MD)No.693 of 2010
7. I went through the title documents marked on the side of the
plaintiffs. It is also seen that the disputed water body is located on all the
side only by the lands belonging to the appellants. More than anything else,
the order dated 10.10.1975 passed by the Assistant Settlement Officer and
the other documents marked on the side of the Government indicates that
Mariyaye / previous title holder was the sole ayacutdhar in respect of the
disputed water body. Though the disputed property bears the title
Marappan Kulam, it appears to be more a water harvesting structure for the
plaintiff's land. It does not have any inlet or outlet. It is not an irrigation
source for any of the other lands in the village. It is well settled that based
on the admitted stand taken by the defendants, it is open to the appellate
court to pass an appropriate decree.
8. Since the disputed property has been known as a tank and since its
character as water body is not disputed, in view of Section 14(A) of Tamil
Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948,
declaration cannot be granted in favour of the appellants. Therefore, the
denial of the declaratory relief by the courts below is sustained. Hence, the
question of directing the jurisdictional Thasildar to include the name of the
plaintiff in the revenue document in respect of the disputed water body is
also rejected. However, taking note of the lie of the land and the features
obtaining in respect of the water body and particularly, the fact that even
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S.A.(MD)No.693 of 2010
according to the defendants, the appellants are the sole ayacutdhars, the
defendants are restrained by the decree of permanent injunction from
disturbing the rights of the appellants as the exclusive ayacutdhars of the
suit tank. The substantial question of law is answered in favour of the
appellants. The judgment and decree is accordingly modified. The second
appeal is partly allowed. No cost.
23.03.2022
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Sub Court, Kulithalai.
2.The District Munsif Court, Kulithalai.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.693 of 2010
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.(MD)No.693 of 2010
23.03.2022
https://www.mhc.tn.gov.in/judis
