Madras High Court
A/M. Marundeeswarar Thirukoil vs The Chief Engineer on 14 August, 2023
OSA.No.334 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.08.2023
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MRS.JUSTICE R.KALAIMATHI
Original Side Appeal No.334 of 2017
A/M. Marundeeswarar Thirukoil
Rep. by its Executive Officer,
Thiruvanmiyur,
Chennai 600 041. ... Appellant
Versus
1. The Chief Engineer
The Highways Department,
Government of Tamil Nadu
2. The Secretary,
Department of Highways,
Government of Tamil Nadu,
St. George Fort, Chennai. .. Respondents
R2 is suomotu impleaded as party respondent
vide Court order dated 21.11.2019 made
in OSA No.334 of 2017 (NKKJ & PVJ)
PRAYER: Original Side Appeal filed under Order XXXVI Rule 1 of the
Original Side Rules read with Clause 15 of the Letters Patent, against the
Judgment and Decree dated 28.11.2016 in C.S.No.555 of 2005.
1/14
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OSA.No.334 of 2017
For Appellant : Mr.A.K.Sriram
for M/s. A.S.Kailasam & Associates
For Respondents : Mr. A.Edwin Prabakar,
Special Government Pleader
Asst. by Mr.R.Siddharth, G.A., for
JUDGMENT
(Judgment of the Court was delivered by R.SUBRAMANIAN, J.)
The instant Appeal is against the judgement of the Hon’ble Single
Judge of this Court made in CS No.555 of 2005, a suit filed by the
Appellant Temple seeking recovery of possession of an extent of 29
cents of land in Survey No.25/2 of Thiruvanmiyur Village which,
according to the appellant, was encroached upon by the respondent while
widening the Old Mahabalipuram Road (OMR).
2. According to the plaintiff, the land belonged to it under a patta
granted by the Settlement Officer under the Madras Estates (Abolition
and Conversion into Ryotwari) Act, 1948 (hereinafter reffered to as 'Act
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OSA.No.334 of 2017
26 of 1948'). Relying upon the relevant entries made in the ‘A’ Register
which was marked as Exhibit P1, the Temple claimed title to the land.
3. The suit was resisted by the defendant viz., The Chief Engineer,
Highways Department, Government of Tamil Nadu, contending that in
the Revenue records the land was shown as Government Poramboke and
therefore, there is no question of any encroachment. Reliance was placed
on the Town Survey Land Register of Thiruvanmiyur Village in support
of the said contention. A plea was also taken that the Secretary to
Government is a necessary party and the Chief Engineer Highways is not
the sole Authority.
4. On the above pleadings, this Court had framed the following
issues:
(i) Whether the claim of the plaintiff temple to be
the owner of the suit property is supported by
materials?
(ii) Whether the defendant is entitled to deny the
validity of “A” Register?
(iii) Whether the suit property is a Government
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OSA.No.334 of 2017
poromboke land as contemplated by the
defendant in the written statement?
(iv) Whether the use of 29 cents of land in
S.No.25/2 Thiruvanmiyur Village by the
defendant for the purpose of expansion of East
Coast Road, without initiating any proceedings
under any of the Land Acquisition Laws, is valid
and binding?
(v) Whether the plaintiff is entitled to pay for
recovery of possession?
(vi) Whether the defendant is liable to pay
damages of Rs.10,000/- per month for use and
occupation or to any other amount?
(vii) To what other relief, the plaintiff is entitled
to?
5. At Trial, PW.1 was examined on the side of the
appellant/Temple and Exhibits P1 to P3 were marked. D.W.1 was
examined on the side of the respondents and Exhibits D1 to D5 were
marked.
6. The Hon’ble Judge, who tried the suit, dismissed the suit on two
grounds:
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OSA.No.334 of 2017
(i) Non impleading of necessary party viz. the
Secretary to Government, Department of Highways
and Minor Ports, Government of Tamil Nadu, Fort St.
George, Chennai; and
(ii) That Ex.P1 viz., the ‘A’ Register being a
Revenue Document will not assume the character of a
title document.
The Hon’ble Single Judge concluded that there being different entries in
the ‘A’ Register and TSLR, it will be incumbent upon the Temple to seek
declaration of title, on the assumption that the conflict of entries would
constitute a cloud on the title of the Temple, hence this Appeal.
7. Pending this Appeal, a Division Bench had suo motu impleaded
the Secretary to Government, Department of Highways, on 21.11.2019.
Thereafter, it appears from the record that there was an attempt to
withdraw the appeal which was repelled by the Bench. Thereafter a
Meeting was convened by the Additional Chief Secretary to Government,
High ways and Minor Ports Department on 26.07.2023 at 3.00 p.m. with
the Additional Chief Secretary to Government, Revenue and Disaster
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OSA.No.334 of 2017
Management Department; Principal Secretary, Tourism, Culture and
Religious Endowments Department; Commissioner of Land
Administration; Director of Survey and Settlement and Commissioner,
HR & CE, to discuss about the issue relating to the title to these lands.
The Minutes of the said Meeting have been placed before us today. The
above Officers after examining the records relating to the land in
question concluded that the land in question belongs to the Temple. The
Minutes that has been produced before us reads as follows:
“When the A-Register prior to Town Survey was
perused, it was found that the Survey Number 25/2 was
recorded as ‘Ryotwari Dri (punjai) with an extent of
0.29 cents in Patta No.1 with Pattadar as “jh;kfh;jj; h
jw;fhy njt!;jhdk; nfhtpy; Rthkp kUe;jP!;tuh; ”.
As per the A-register, the Survey Number 25/2 is
registered in the name of “jh;kfh;jj; h jw;fhy njt!;jhdk;
nfhtpy; Rthkp kUe;jP!;tuh; ”.
At the time of doing Town Survey, the ownership
was changed as “bghJg;gzpj;Jiw” and the usage as
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OSA.No.334 of 2017
“rhiy” and it is recorded accordingly in present Town
Survey number 9 in Block No.8. There is no record to
show as to why land recorded in the name of
Maruntheeswarar temple is changed as Public Works
Department- Road.
Hence, after careful examination of the above
records in the meeting, it is concluded that SF No.25/2
belongs to Maruntheeswarar Temple.”
8. From the above, it is clear that the entries in Ex.P1 were made
on the basis of the patta granted under Act 26 of 1948. Ex.P1 itself shows
that the Village consisted of Inam lands which were taken over under the
Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Act
26 of 1948). Once an Estate or an Inam is taken over, under any of the
Abolition Acts, the entire estate or the Inam vest with the Government
and the Government issues Patta to the ryots or the occupants as the case
may be subject to the conditions prescribed under different Abolition
Laws. Once such patta is issued that by itself would be an evidence of
title, since the title in the lands stood abolished and on the Settlement
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OSA.No.334 of 2017
Officer concluding that the ryot or the occupant is entitled to patta under
the provisions of the Act, the ryot or the occupant becomes the owner of
the property. Any other interpretation would negate the very object of
the Abolition Laws. It is common knowledge that the Abolition Laws
were brought it, only to abolish the intermediaries and to vest the land in
the ryot or the occupant. The issue relating to the scope of the patta that
is granted under the Abolition Act is not res integra.
9. The next question relating to the finality of title on the grant of
patta has been subject matter of several decisions of Hon’ble Supreme
Court as well as this Court. While it is held that the Patta granted under
the Abolition Act will not be proof of conclusive title as against a rival
claimant before a civil Court, it has also been reiterated that the patta
granted under the Act vis-a-vis the Government or a person without title,
will be in proof of title of the grantee. In Subramania Gurukkal and
others v. Arulmighu Thirumaleswaraswamy Deity, rep. by the
Executive Officer and anr., reported in 97 L.W. 243, a Division Bench
of this Court had an occasion to consider the question, as to whether, a
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OSA.No.334 of 2017
patta granted under the Abolition Acts would constitute evidence of title
and concluded that it will.
10. After referring to the another Division Bench Judgment in SA
Nos.904 and 1250 of 1978 dated 22.10.1982, the Division Bench in
Subramania Gurukkal’s case, concluded that the said judgment cannot
be held to be good law, in view of the fact that the Hon’ble Supreme
Court has in subsequent decisions upheld the view that the grant of patta
under the Abolition Act would be conclusive on the question of title
unless there is a rival claim. The Division Bench after analysing almost
all the judgments on the point concluded as follows:
“28. In fact, as observed in Sanjeevi Naicker v.
Shanmuga Udayar the decisions of this Court had taken
the view that both before and after the repeal of Section
56, the issue of patta would not take away the
jurisdiction of a Civil Court to adjudicate upon
competing titles to lands. Different reasonings have
been given in different decisions and it is not necessary
for us to trace all those judgments, as, in our view, the
decisions of Varadarajan, J. (as he then was) in P.A.
Shukur v. K.S. Sundara Mudaliar and another, and
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OSA.No.334 of 2017
Chinnappa Gounder and others V. Seshadri Iyengar
and another, the decision of Ismail, J. (as he then was)
in Narayanaswami v. Rangaswami, and the decision in
Arunlandu Udayar v. Palaniappa Ambalam, have
referred to all the decisions and held that the decisions
as to the nature of the land and the person entitled to
patta under Section 11 or a similar finding that it is a
ryoti land and not a private land are final and not liable
to be questioned in a Civil Court and those judgments,
in our view, are consistent with the ratio of the two
decisions of the Supreme Court above referred to. Since
we are of the view that the Supreme Court decisions
clearly cover, this question, we are unable to agree with
the reasoning and the judgment of the learned Judges of
the Division Bench.”
11. It was also pointed out that a similar view expressed in
Arulandu Udayar v. Palaniappa Ambalam, reported in 1982 (1) MLJ
257, was affirmed by the Hon’ble Supreme Court in SLP No.7871 of
1981 by order dated 14.02.1983. Therefore, if the question is only as to
the effect of grant of patta under the Abolition Act, the answer has to be
that it will be evidence of title. We hastened to add that such grant will
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by itself will not preclude any other person claiming a rival title from
establishing such title before the Civil Court.
12. Adverting to the case on hand, we find that Ex.P1 itself shows
that vast extent of land in Thiruvanmiyur were Inam lands and they were
taken over under Act 26 of 1948 and Pattas were issued to various
persons including the plaintiff Temple. The entry relating to Survey
No.25/2 in EX.P1 is to the effect that it is Ryotwari Punjai standing in
the name of “jh;kfh;jj; h jw;fhy njt!;jhdk; nfhtpy; Rthkp kUe;jP!;tuh;” and a
Patta Number is also given as “1”. It is clear that this entry emanated out
of the proceedings under Act 26 of 1948. Once it is concluded that the
Temple has been granted Patta under Act 26 of 1948, its title is good
against the whole world except a person who could show the better title.
13. On the evidence available, we have the ‘A’ Register prepared
pursuant to the grant of pattas under Act 26 of 1948 which depicts the
temple as the owner and TSLR which records the land as Government
Promboke without any basis. Fortunately the officers at the level of
Additional Chief Secretaries to the Government, the Land Commissioner
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OSA.No.334 of 2017
and the Commissioner, HR & CE have examined the position and
concluded that the land belongs to the Temple. This has made our job
easier. Once the title of the temple is concluded, the dismissal of the suit
has to be set aside. The issue relating to non-joinder is also cured by the
fact that the Secretary to the Government has been impleaded suo motu
in the Appeal and they have conceded to the title of the Temple.
14. In view of the above, the judgment and decree of the learned
Single Judge will have to be necessarily set aside and they are
accordingly set aside. The suit will stand decreed for possession alone as
prayed for, since the property has been put to use for a public purpose we
do not want to burden the Government with damages for use and
occupation.
15. Considering the fact that there is a road in existence in the land
in question, the Government is directed to acquire the land by initiating
the process of acquisition under the Tamil Nadu Highways Act within a
period of six months from today. The acquisition process shall be
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OSA.No.334 of 2017
completed six months there from. The compensation so determined shall
be paid over to the temple and the same shall be invested in a
Nationalised Bank in an interest earning fixed deposit so that the Temple
will get some revenue out of the same. It will be open to the temple to
prefer appeal for enhancement of the compensation so awarded if it is
less, in its opnion.
16. The Original Side Appeal will stand allowed to the extent
indicated. There shall be no order as to costs.
(R.SUBRAMANIAN, J .) (R.KALAIMATHI, J.)
14.08.2023
jv
Index : No
Internet : Yes
Neutral Citation : No
Speaking order
Note: Issue order copy on 18.08.2023
To
The Section Officer,
Original Side,
High Court of Madras
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OSA.No.334 of 2017
R.SUBRAMANIAN, J.
and
R.KALAIMATHI, J.
jv
Original Side Appeal No.334 of 2017
14.08.2023
https://www.mhc.tn.gov.in/judis
