Madras High Court
G.Zakir Hussain (Diseased) vs The District Collector on 29 August, 2023
2023:MHC:3935
WP No.12629 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29-08-2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
WP No.12629 of 2010
And
MP Nos.1 and 2 of 2010
1.G.Zakir Hussain (Diseased)
2.Z.Shamshad
3.Syed Hussain
4.Syed Geyser Hussain
5.Asiya Bee
[P-2 to P-5 are substituted as LRs of the deceased
first petitioner vide order of Court dated 18.08.2022
made in WMP No.29513 of 2021 in WP No.12629
of 2010] ... Petitioners
Vs.
1.The District Collector,
Thiruvannamalai District.
2.The Tahsildar,
Thiruvannamalai Taluk. ... Respondents
Page 1 of 22
https://www.mhc.tn.gov.in/judis
WP No.12629 of 2010
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, calling for the records of
the first respondent in his proceedings No.A2.25803/94 dated 17.09.2007
and quash the same and consequently direct the second respondent to issue
patta in favour of the deceased first petitioner for the property situate in
Thiruvannamalai in T.S.No.1802/1 and 2, Acres 3.75 and Acres 4.77
respectively.
For Petitioners : Mr.T.Raja Gopalan
Senior Counsel
For Mrs.P.Veena Suresh
For Respondents : Mr.R.Ramanlaal
Additional Advocate General
Assited by Mr.T.Arun Kumar
Additional Government Pleader
ORDER
The present writ petition has been instituted challenging the
order dated 17.09.2007 passed by the first respondent-District Collector,
Thiruvannamalai District.
2. The deceased first petitioner states that his father filed OS
No.908 of 1929 to declare that he is entitled for declaration of title with
https://www.mhc.tn.gov.in/judis
WP No.12629 of 2010
respect to the properties mentioned in the plaint Schedule and for the
mandatory injunction and to mutate the revenue records.
3. The suit in OS No.908 of 1929 was decreed by judgment
dated 17.10.1931. The father of the deceased first petitioner again filed the
suit in OS No.595 of 1994 on the file of the District Munsif Court,
Thiruvannamalai for an injunction restraining the respondents therein from
interfering with deceased first petitioner's peaceful possession and
enjoyment of the suit properties. The said suit was also decreed on
21.04.1995.
4. Since the respondents failed to mutate the revenue records
by inserting the name of the father of the deceased first petitioner, the
deceased first petitioner filed WP No.694 of 1996 for a direction to issue
patta for the lands situate in TS Nos.1802/1 and 1802/2 measuring 3.75
Acres and 4.77 Acres respectively. The writ petition was allowed on
03.10.2001, directing the respondents to issue patta in the name of the father
of the deceased first petitioner. The Writ Appeal No.2797 of 2003 filed by
the respondents therein was dismissed by this Court on 17.02.2004. Along
https://www.mhc.tn.gov.in/judis
WP No.12629 of 2010
with the Civil Court decree and the order passed by the High Court, the
deceased first petitioner approached the respondents for issuance of patta.
However, the respondents have not acceded to the request of the deceased
first petitioner. Thus, the deceased first petitioner again filed WP No.24247
of 2005 for a Mandamus to direct the respondents to issue patta in his
favour. The said writ petition was allowed on 28.07.2005. Thereafter, the
deceased first petitioner approached the respondents for issuance of patta,
but not acted upon, and the deceased first petitioner filed Contempt Petition
No.813 of 2007. The respondents took a stand that the Civil Court decree is
unenforceable, as the father of the deceased first petitioner failed to execute
the decree of declaration. Consequently, the respondents herein passed the
impugned order dated 17.09.2007 stating that the subject lands are
'Government Poramboke lands' and 'Water Bodies'. Thus the deceased first
petitioner is not entitled for patta.
5. The learned Senior Counsel appearing on behalf of the writ
petitioners mainly contended that the Civil Court decree of the year 1929
and the decree and judgment dated 17.10.1931 is binding on the
respondents. The subsequent orders passed by the High Court in Writ
https://www.mhc.tn.gov.in/judis
WP No.12629 of 2010
Petitions and Writ Appeals, are also not implemented and the present
impugned order has been passed contrary to the dictum of the Civil Court
and the orders passed by this Court in Writ Petitions and Writ Appeals.
6. The learned Senior Counsel mainly contended that the
Executives cannot be permitted to depart from the dictum of the Civil Court,
which crystallised the rights of the parties.
7. In the present case, there is a daring violations being
committed by the Executives and thus the order impugned is liable to be set
aside.
8. The first respondent-District Collector, being a Quasi
Judicial Authority, ought to have conducted an enquiry and considered the
case of the deceased first petitioner for grant of patta and to effect changes
in the revenue records. Without conducting any such enquiry, the order
impugned has been passed and thus it is in violation of the principles of
natural justice.
https://www.mhc.tn.gov.in/judis
WP No.12629 of 2010
9. The learned Special Government Pleader appearing on
behalf of the respondents 1 and 2 disputed the contentions raised on behalf
of the writ petitioners. The present status of the subject property has been
stated through written instructions by letter dated 17.11.2022. In the said
letter, the second respondent-Tahsildar, Thiruvannamalai has stated that the
lands in TS No.1802/1 (3.75 Acres) and TS No.1802/2 (4.77 Acres) are
continuing as 'Punjai Tharisu' and there is a pond situate in the subject land.
The lands are under the control of the Revenue Department. The pond
situates in Survey No.1802/1. Two Tombs are also situate in the subject
lands. However, the lands are not under the possession of any person. The
land has been classified as 'Government Poramboke' and as of now, there is
no rules to assign the land in favour of any person. There is a 'Water Body'
also situate in the subject land and such objectionable 'Water Bodies' cannot
be assigned or handed over in favour of private persons. The Government
also imposed complete ban to assign the objectionable lands and water
bodies in favour of individuals in G.O.Ms.No.41, Revenue Department,
dated 20.01.1987.
https://www.mhc.tn.gov.in/judis
WP No.12629 of 2010
10. That apart, the subject land situate in the Headquarters of
Thiruvannamalai Town and as per the Government Order in
G.O.Ms.No.3166, Revenue Department, dated 05.11.1996, the Government
Poramboke lands falling within the radius of 8 Kilometers from the District
Headquarters, cannot be assigned in favour of any individual persons. The
said lands are high value properties belonging to the Government and more-
over special market values are to be fixed in such lands as the adjacent
properties are high value properties.
11. The learned Special Government Pleader, appearing on
behalf of the respondents, made a submission that no counter has been filed
in the present writ petition. However, a detailed counter has been already
filed in Contempt Petition No.813 of 2007 in WP No.24247 of 2005 and in
the said counter, the first respondent-District Collector has elaborately
stated the facts and therefore, the counter earlier filed is to be considered for
the purpose of defending the case of the respondents with reference to the
grounds raised by the petitioners in the present case.
https://www.mhc.tn.gov.in/judis
WP No.12629 of 2010
12. The respondents have stated that originally one Inamdar
Mr.Syed Hussain Sahib, Thiruvannamalai filed suit in OS No.908 of 1929
for declaration that the plaint schedule properties belonged to the plaintiff
and the defendants 9 to 14 in common, for an injunction, directing the
District Collector to correct the entries in the Settlement Register by
registering their names. The suit decreed on 17.10.1931. However, neither
the plaintiff nor the defendants 9 to 14 in OS No.908 of 1929 had filed any
Execution Petition till date to execute the decree dated 17.10.1931.
13. In the meantime, the Government of Tamil Nadu passed an
Act 'Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari)
Act XXX of 1963', wherein under Section 3, it has been stated very clearly
that all the minor inams shall stand transferred to the Government from the
date of commencement of the Act. The said Act came into force with effect
from 05.02.1964. The unexecuted decree dated 17.10.1931 in OS No.908 of
1929 stands abrogated due to commencement of the abovesaid Act. Thus no
reliance can be placed upon the said decree to effect any changes as per the
decree dated 17.10.1931 made in OS No.908 of 1929 on the file of the
https://www.mhc.tn.gov.in/judis
WP No.12629 of 2010
District Munsif Court, Thiruvannamalai.
14. One Mr.Syed Gaffar Sahib (father of the deceased first
petitioner) and some others claiming to be the heirs of the decree holders
viz., G.Zakir Hussain Sahib in OS No.908 of 1929 filed another suit in OS
No.1165 of 1990 on the file of the District Munsif Court Thiruvannamalai,
to enforce the decree dated 17.10.1931 passed in OS No.908 of 1929. Since,
an exparte decree was passed by the District Munsif Court,
Thiruvannamalai on 22.12.1998, an appeal had been preferred by the
Government before the Sub Court, Thiruvannamalai in ASSR No.G/9261
dated 11.09.2007 along with a petition under Section 5 of the Limitation
Act.
15. Inasmuch as the original decree holders in OS No.908 of
1929 themselves lost their rights and neither executed the decree nor
utilised the decree directions and moved the State for inclusion of their
names in the Re-Settlement Register and thus, in other words, waived their
rights, after their death, the plaintiffs in OS No.1165 of 1990 are not entitled
to seek or avail the benefits of decree dated 17.10.1931 made in OS No.908
https://www.mhc.tn.gov.in/judis
WP No.12629 of 2010
of 1929 by filing a fresh suit.
16. Yet another suit in OS No.594 of 1994 on the file of the
District Munsif Court, Thiruvannamalai was filed by the father of the
deceased first petitioner Mr.Gafffar Sahib for an injunction not to interfere
with their possession. An exparte decree was again passed on 21.04.1995. In
the said suit also, the father of the deceased first petitioner has not filed any
Execution Petition to execute the ex parte decree dated 21.04.1995 in OS
No.594 of 1994 till date.
17. Pertinently, while the decree dated 17.10.1931 passed in
OS No.908 of 1929 stands abrogated due to the commencement of the
'Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act,
XXX of 1963', no reliance could be placed upon the said decree to effect
any changes as per the decree dated 17.10.1931 in OS No.908 of 1929.
18. Subsequently, the deceased first petitioner Mr.G.Zakir
Hussain filed WP No.24247 of 2005 to direct the Revenue Officials to issue
patta to the deceased first petitioner in respect of subject lands.
https://www.mhc.tn.gov.in/judis
WP No.12629 of 2010
DISCUSSIONS:
19. The above facts commonly stated are not disputed between
the parties in the present lis. The issue to be considered is, whether the
deceased first petitioner is entitled for patta in respect of subject lands and
consequently, the changes are to be effected in the revenue records or not.
20. The petitioners have mainly relied on the judgment and
decree in OS No.908 of 1929 dated 17.10.1931 and the subsequent orders of
the High Court in Writ Petitions and Writ Appeals. As far as the decree in
OS No.908 of 1929 is concerned, all subsequent proceedings initiated by
the father of the deceased first petitioner and by the deceased first petitioner
before this Court in Writ Petitions and Writ Appeals, the scope of the decree
dated 17.10.1931 passed in OS No.908 of 1929 has not been adjudicated.
All along the deceased first petitioner emphasised that the decree in OS
No.908 of 1929 is title decree and the plaintiff was declared as the owner of
the subject property and therefore, the Authorities competent are bound by
the decree of declaration of title dated 17.10.1931.
https://www.mhc.tn.gov.in/judis
WP No.12629 of 2010
21. In this context, this Court has attempted to have close
observations with reference to the decree passed in OS No.908 of 1929
dated 17.10.1931. It is useful to extract the decree, which reads as under:-
“DECREE
This suit coming on the 18th, 20th, 25th
August, 2nd and 16th September and 3rd day of
October, 1931 for final disposal before
M.R.Ry.R.T.Krishnamachari Avl., B.A., B.L.,
District Munsif in the presence of
Mr.T.R.Ramaswamy Iyer, pleader for plaintiff and
of Mr.T.Natesa Iyer, pleader for the first
defendant, Mr.K.Gopalasami Mudaliar, pleader
for 2 to 5, 9, 10 and 12 to 15 defendants and the
other defendants being ex parte, and having stood
over for consideration till this day and that the
plaintiff and defendants 2 to 5 having made an
endorsement on the plaint that the plaintiff does
not press this suit as regards items 1 to 23 of the
plaint D schedule and as against defendants 2 to 5
and the first defendant having admitted the right
of the plaintiff as regards item 1 of the B
schedule and items 8, 11, 12, 13, 26, 27, 29, 30,
32, 34, 36, 37, 39, 40 and 2/3rd share in items 41,
42, 43, 48, 49, 50 and 51 of the plaint D schedule
https://www.mhc.tn.gov.in/judis
WP No.12629 of 2010
and the right of the plaintiff and others to enjoy
the produce of all the trees in and the fishery in
the Kuttais and Ponds in Item 31 of the plaint D
schedule, it is hereby declared as follows:-
1. That the plaintiff and defendants 9 to 14
are absolutely entitled to the plaint A schedule
items 4 and 5 and item 1 of the plaint B schedule
and also items 26, 27, 29, 30, 32, 34, 36, 37, 39,
40 and two-third shares in items 41, 42, 43, 48,
49, 50 and 51 of the plaint D schedule, more
particularly described hereunder.
2. This Court doth further order and declare
that the plaintiff and defendants 9 to 14 be entitled
to enjoy the usufruct of all the trees in and also the
fishery in all the kuttais and ponds in item 31 of D
schedule.
3. That the plaintiff and defendants 9 to 14
be entitled to have the entries in the Re-Settlement
Register amended as indicated above.
4. That in other respects that the plaintiff's
suit be and the same hereby is dismissed.
5. And that the plaintiff do pay first
defendant Rs.46-2-8 being the two-third of his
costs with interest thereon at 6 per cent per annum
from this date till payment and do bear this costs
https://www.mhc.tn.gov.in/judis
WP No.12629 of 2010
Rs.98-9-0 himself.
And the other defendants do bear their costs
themselves.”
22. The suit was instituted by Inamdar Mr.Syed Hussain Sahib
and not by the father of the deceased first petitioner Mr.Syed Gaffar. In the
writ affidavit, the deceased first petitioner has wrongly stated that his father
filed OS No.908 of 1929. Mr.Syed Hussain Sahib, S/o.Syed Abdul Kadhir
Sahib was an Inamdar. Even the cause title in the suit explicitly states that
“Inamdar Syed Hussain Sahib”. Therefore, the said Mr.Syed Hussain Sahib
was an Inamdar.
23. Let us now look into analysis the decree passed by the Civil
Court on 17.10.1931 in OS No.908 of 1929. The first para of the decree
unambiguously indicates that “the plaintiff and defendants 2 to 5 having
made an endorsement on the plaint that the plaintiff does not press this
suit as regards items 1 to 23 of the plaint D schedule and as against
defendants 2 to 5 and the first defendant having admitted the right of
the plaintiff as regards item 1 of the B schedule and items 8, 11, 12, 13,
https://www.mhc.tn.gov.in/judis
WP No.12629 of 2010
26, 27, 29, 30, 32, 34, 36, 37, 39, 40 and 2/3rd share in items 41, 42, 43, 48,
49, 50 and 51 of the plaint D schedule and the right of the plaintiff and
others to enjoy the produce of all the trees in and the fishery in the
Kuttais and Ponds in Item 31 of the plaint D schedule”.
24. The above portion of the preamble of the decree denotes
that the plaintiff does not press the suit as regards items 1 to 23 plaint D
schedule as against the defendants 2 to 5. The first defendant in the suit was
the Secretary of State for India in Council represented by the Collector of
North Arcot. The first respondent admitted the rights of the plaintiff as
regards items mentioned above in B schedule and plaint D schedule to
enjoy the produce of all trees and in and the fishery in the kuttais and
ponds in item 31 of the plaint D schedule.
25. Therefore, the first respondent-District Collector has
admitted the right of the Indamdar Mr.Syed Hussain Sahib only to the
limited extent of enjoying produce of all trees and fishery in the kuttais and
ponds. The first respondent-Government in the suit has admitted the rights
of the Inamdar only to enjoy the produce of the trees and the fishery in the
https://www.mhc.tn.gov.in/judis
WP No.12629 of 2010
kuttais and ponds. Subsequent portion of the decree do not confer any
absolute title or ownership on the plaintiff, Inamdar of Mr.Syed Hussain
Sahib. Even para 2 of the decree stipulates that “the plaintiff and the
defendants 9 to 14 be entitled to enjoy all the trees and also the fishery
in all the kuttais and ponds in item 31 of the D schedule”. The third para
of the decree states that the plaintiffs and the defendants 9 to 14 be entitled
to have entries in the Re-Settlement Register.
26. The holistic reading and understanding of the decree passed
in OS No.908 of 1929 would reveal that the plaintiff was an Inamdar
Mr.Syed Hussain Sahib and the Collector, who is the first defendant in the
suit, admitted the right of the Inamdar to enjoy the produce of the trees and
the fishery in the kuttais and ponds. Therefore, it was not a decree of
declaration of title or ownership. It is only a declaration to make entries in
the Re-Settlement Register and to enjoy the usufruct of the trees and the
fishery in the kuttais and ponds. Thus the case projected by the deceased
first petitioner is absolutely running counter to the decree and judgment
dated 17.10.1931 in OS No.908 of 1929.
https://www.mhc.tn.gov.in/judis
WP No.12629 of 2010
27. As far as the father of the deceased first petitioner
Mr.G.Zakir Hussain is concerned, he filed WP No.694 of 1996 for a
direction to issue patta. This Court passed an order on 03.10.2001 stating
that the property in question should be recorded in the name of the deceased
first petitioner. I therefore, direct that steps shall be taken to record the
disputed property in the name of the deceased first petitioner. However, if
the decree is relied upon by the deceased first petitioner had been reversed,
this order will not be operative to that extent. The above direction may be
carried within a period of three months from the date of communication of
this order. Even in WP No.694 of 1996, there was an adjudication of the
scope of the original decree passed in OS No.908 of 1929 dated 17.10.1931.
Even in the Writ Appeal No.2797 of 2003, there was no adjudication since
the writ order itself was a conditional order.
28. Again the petitioner filed WP No.24247 of 2005 and this
Court passed an order on 28.07.2005 directing the Authorities to pass
appropriate orders on merits and in accordance with law and subject to the
finality in civil proceedings, otherwise, the deceased first petitioner is not
entitled to any benefit. Even in the said order, this Court has not given a
https://www.mhc.tn.gov.in/judis
WP No.12629 of 2010
positive direction to grant patta by conferring the title or ownership
regarding the subject property. The orders passed in the Writ Petitions and
the Writ Appeals are not positive directions, but directing the respondents to
consider the case of the deceased first petitioner on merits and no doubt the
decree has been referred. Mere reference of the decree of the year 1931
would be of no avail to the deceased first petitioner for claiming title or
ownership in respect of 'Government Poramboke' land and the 'Water
Bodies' situate therein.
29. In the impugned order, the District Collector,
Thiruvannamalai has categorically considered the classification of the
subject property, which reveals that it is 'Government Poramboke' and
'Water Bodies', including kuttais and ponds situate in the subject properties.
The respondents have further stated that the 'Government Poramboke' lands,
which is 'Punjai Tharisu', is under the control of the Revenue Department
and there is a pond situates in Survey No.1802/1. The Authorities have
stated that neither the deceased first petitioner nor his relatives are in
possession and enjoyment of the subject lands as of now.
https://www.mhc.tn.gov.in/judis
WP No.12629 of 2010
30. As far as the plaintiff in OS No.908 of 1929, the Inamdar
Mr.Syed Hussain Sahib is concerned, he had not filed any Execution
Petition to execute the decree dated 17.10.1931. Meanwhile, the
Government of Tamil Nadu passed an Act 'Tamil Nadu Minor Inams
(Abolition and Conversion into Ryotwari) Act XXX of 1963', wherein
under Section 3, it has been stated very clearly that all the minor inams shall
stand transferred to the Government from the date of commencement of the
Act. The said At came into force with effect from 05.02.1964. Thus the
unexecuted decree dated 17.10.1931 in OS No.908 of 1929 stands
abrogated due to commencement of the abovesaid Act. Therefore, all
subsequent proceedings initiated by the family members of the original
plaintiff Inamdar Mr.Syed Hussain Sahib cannot be a ground to claim title
or ownership or patta. There was no adjudication before the Settlement
Officer pursuant to the Act nor an application seeking patta has been filed
before the cut off date stipulated by the Government in G.O.Ms.No.714 of
the year 1987.
31. In the absence of any ryotwari patta, the deceased first
petitioner or his family members cannot subsequently institute legal
https://www.mhc.tn.gov.in/judis
WP No.12629 of 2010
proceedings for the purpose of grant of patta. The subject lands were vested
with the Government pursuant to abolition of 'Tamil Nadu Minor Inams
(Abolition and Conversion into Ryotwari) Act XXX of 1963' and thereafter
the decree passed in the year 17.10.1931, cannot be executed. Thus the
decree became an unexecutable one.
32. That apart, the scope of the decree itself has been
misconstrued by the deceased first petitioner and his family members. The
decree dated 17.10.1931 confers rights to the Inamdar Mr.Syed Hussain
Sahib-plaintiff in OS No.908 of 1929, the right to enjoy the produce of the
trees in and fishery in the kuttais and ponds. Such right declared by the Civil
Court would not confer any title or ownership in respect of the subject
lands. Neither the Civil Court decree nor the subsequent proceedings
initiated by the deceased first petitioner and his family members are of no
avail for the purpose of claiming title over the Government lands. The lands
vest with the Government are classified as 'Government Poramboke' and
'Water Bodies' situate in the subject property.
https://www.mhc.tn.gov.in/judis
WP No.12629 of 2010
33. This being the factum established, this Court has to arrive
an inevitable conclusion that the petitioners are not entitled for the relief.
34. Accordingly, the present writ petition stands dismissed.
However, there shall be no order as to costs. Consequently, the connected
miscellaneous petitions are also dismissed.
29-08-2023
Index : Yes/No
Internet: Yes/No
Speaking order/Non-Speaking order
Neutral Citation : Yes/No
Svn
To
1.The District Collector,
Thiruvannamalai District.
2.The Tahsildar,
Thiruvannamalai Taluk.
https://www.mhc.tn.gov.in/judis
WP No.12629 of 2010
S.M.SUBRAMANIAM, J.
Svn
WP 12629 of 2010
29-08-2023
https://www.mhc.tn.gov.in/judis
