Madras High Court
Government Of Tamil Nadu vs Velu Devar on 30 June, 2025
Author: R.Vijayakumar
Bench: R.Vijayakumar
S.A.No.1264 of 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.06.2025
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
S.A.No.1264 of 2003
1. Government of Tamil Nadu,
Represented by its District Collector,
Tirunelveli.
2. The Tahsildar,
Palayamkottai,
Tirunelveli. ... Appellants/Respondents/
Defendants
Vs.
1. Velu Devar
2. Subbaiya Konar ... Respondents/Appellants/
Plaintiffs
PRAYER: Second Appeal filed under Section 100 of C.P.C., as against the
judgment and decree dated 23.10.2002 made in A.S.No.39 of 2001 on the file
of the I Additional Sub Judge, Tirunelveli reversing the judgment and decree
dated 15.02.2001 made in O.S.No.198 of 1998 on the file of the I Additional
District Munsif Court, Tirunelveli.
For Appellants : Mrs.D.Farjana Ghoushia
Special Government Pleader
1/9
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S.A.No.1264 of 2003
For Respondents : No appearance
JUDGMENT
The defendants in O.S.No.198 of 1998 on the file of the I Additional
District Munsif Court, Tirunelveli, have filed the present Second Appeal.
2. The respondents herein representing the ayacutdars of Pudukulam
Village have filed the above said suit for the relief of permanent injunction as
against the State not to auction the fishery rights in the suit tank. As per the
plaint averments, only the ayacutdars of the suit tank are entitled to have
fishing rights over the tank. According to them, for more than 100 years they
are enjoying the customary rights. However, the authorities are attempting to
auction the fishery rights by way of public auction. Hence, the suit.
3. A perusal of the written statement reveals that the State has
contended that the tank belongs to the State and the fishery rights are being
auctioned every year to the general public by way of public auction. It is also
contended that one of the plaintiffs has also taken the fishing rights on
auction in a particular year. Only accepting the rights of the State, the
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plaintiffs have taken part in the auction proceedings. Therefore, they are
estopped from claiming any exclusive fishing rights in the tank belonging to
the State.
4. The trial Court after considering the documents filed on either side
has arrived at a finding that the Tank belongs to the State. The documents
filed on the side of the plaintiffs would disclose they have entered into certain
agreements for fishing rights. However, in those agreements the State is not a
party. The trial Court further found that Exs.B1 to B4 would establish the
rights of the State in the tank and the plaintiffs have been exercising the
fishery rights only based upon the public auction conducted by the State. The
trial Court dismissed the suit.
5. The first appellate Court relying upon Exs.A1 to A6 has arrived at a
finding that such a customary practise is being followed by the ayacutdars of
the suit tank and based upon the said customary rights, they are exercising
their fishery rights. In such circumstances, unless the Government enacts any
Rule or enactment, the customary rights of the plaintiffs cannot be curtailed
by the State. Based upon the said findings, the first appellate Court had
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proceeded to set aside the judgment and decree of the trial Court and decreed
the suit as prayed for. Challenging the same, the present Second Appeal has
been filed by the State.
6. Second Appeal was admitted on the following substantial questions
of law:
(a) Whether the Lower Appellate Court was right in
properly considering the oral and documentary evidence in
its proper perspective?
(b) Whether the Lower Appellate Court was right in
entertaining the suit for injunction, against the lawful and
true owner?
(c) Whether the Lower Appellate Court was right in
allowing the appeal, when the appellants right and title over
the suit kulam is not challenged by way of a declaratory
suit?
(d) Whether the Lower Appellate Court was right in
granting injunction in favour of the respondents, when the
respondents themselves admit the right and title of the
appellant and participated in the auction?
(e) Whether the Lower Appellate Court was right in
decreeing the suit of the respondent based on an alleged
customary fishing rights, when by virtue of Section 3(b) of
ACT XXVI of 1963, the tanks shall vest with the
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Government?
(f) Whether the Lower Appellate Court was right in
decreeing the suit when the respondents/plaintiffs have
failed to prove their title against Act XXVI of 1963??
(g) Whether the other reasons given by the Court
below are legally sustainable?
7. The learned Special Government Pleader appearing for the
appellants/State submitted that the title to the tank has not been disputed.
When the title is vested with the Government, the private parties or the
villagers cannot claim any right over the fishery rights unless they have
participated in the auction process. The learned Special Government Pleader
further contended that in view of Tamil Nadu Act 26 of 1963, the tank has
vested with the State and therefore, all the rights of the ayacutdars including
the customary rights, if any, have got extinguished. In such circumstances, the
first appellate Court was not right in relying upon the alleged customary
rights of the ayacutdars.
8. Though the notices have been served upon the respondents and their
names were also printed in the cause list, they have not chosen to appear
either in person or through their counsel. The second respondent has passed
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away. He had been impleaded in the representative capacity as one of the
ayacutdars. In such circumstances, the second appeal would not get abated
when the other respondent is available and he has not chosen to appear before
this Court.
9. Heard the learned Special Government Pleader appearing for the
appellants and perused the materials available on record.
10. The suit has been filed seeking a permanent injunction as against
the State not to auction fishery rights in the suit tank. According to the
plaintiffs, the villagers have got a customary right of fishing into the suit tank.
Exs. A1 to A6 have been marked on the side of the plaintiffs to establish the
said right. A perusal of these documents would reveal that the State is not a
party to the said proceedings and therefore, the same is not binding upon the
appellants.
11. The first plaintiff has been examined as P.W.1. During his cross
examination, he has admitted that the suit tank belongs to the State. He has
also admitted that all the villagers will join together and they would share the
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fishing rights. A perusal of Ex.B4 reveals that it is the auction proceedings for
the suit tank. The first plaintiff had participated in the said auction and he was
declared as the successful bidder on 30.03.1995. Therefore, it is clear that the
auction was being regularly conducted only by the State by way of public
auction and in the said auction, the first plaintiff had participated and he had
emerged as a successful bidder. In such circumstances, the contention of the
plaintiffs that they are having customary fishing rights over the suit tank is
not legally sustainable. The first appellate Court had relied upon Exs.A1 to
A6 agreements and confirmed customary rights upon the plaintiffs. It is
pertinent to point out that in all these documents the State is not a party. In
such circumstances, Exs.A1 to A6 cannot be pressed into service, to grant a
decree as against the State.
12. The tanks having vested with the State under the Tamil Nadu Act 26
of 1963, the fishery rights would also vest with the State and State would be
entitled to auction the fishery rights by way of public auction. The fishing
rights cannot be segregated from that of the right of the tank. The first
appellate Court has erroneously decided the said legal issue and set aside the
judgment and decree of the trial Court.
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13. In view of the above said deliberations, all the substantial questions
of law are answered in favour of the appellants and the judgment and decree
of the first appellate Court is set aside and the judgement and decree of the
trial Court is restored.
14.Accordingly, this Second Appeal is allowed. There shall be no order
as to costs.
30.06.2025
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
To
1. The I Additional Sub Judge,
Tirunelveli
2. The I Additional District Munsif Court,
Tirunelveli.
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R.VIJAYAKUMAR,J.
ebsi
30.06.2025
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