Madras High Court
K.Shreenivasa Rao vs The Director Of Survey & Settlement on 6 February, 2017
Author: B.Rajendran
Bench: B.Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.02.2017
CORAM
THE HONOURABLE MR.JUSTICE B.RAJENDRAN
W.P.No.1637 of 2016
and
W.M.P.Nos.1385 & 1386 of 2016
K.Shreenivasa Rao ... Petitioner
Vs
1.The Director of Survey & Settlement,
Survey House,
Chepauk,
Chennai 600 005.
2.The District Collector,
Krishnagiri District,
Krishnagiri.
3.The District Revenue Officer,
Krishnagiri District,
Krishnagiri.
4.The Revenue Divisional Officer,
Krishnagiri
Krishnagiri District.
5.The Thasildhar,
Krishnagiri Taluk,
Krishnagiri. ...Respondents
Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus to call for the records relating to the impugned proceeding issued by the 3rd respondent in Na.Ka.No.25894/2015 J2 dated 16.12.2015 and to quash the same and consequently directing the respondent to grant patta in respect of lands comprised in S.Nos.19/1, 19/2 & 19/3 to an extent of 21.39 acres and the land comprised in S.Nos.44/3, 44/4 & 44/9 to an extent of 7.38 acres, Kothappettah village, Krishangiri Taluk & District in favour of the legal heirs of R.Narasinga Rao and R.Krishnaji Rao, the original land owners, within a time frame.
For Petitioner : Mr.Venkatachalapathy, SC for M/s.G.Sankaran
For Respondents : Mr.S.Rajeswaran
Special Government Pleader
ORDER
This writ petition has been filed challenging the proceedings of the third respondent dated 16.12.2015 and consequently directing the respondent to grant patta in respect of lands comprised in S.Nos.19/1, 19/2 and 19/3 measuring to an extent of 21.39 acres and in S.Nos.44/3, 44/4 and 44/9 measuring to an extent of 7.38 acres, situated at Kottappettah Village, Krishnagiri Taluk and District in favour of the legal heirs of the land owners R.Narasinga Rao and R.Krishnaji Rao, within a time frame to be fixed by this Court.
2. The case of the petitioner is as follows:
2.1 Originally, the lands comprised in S.Nos.19/1, 19/2 and 19/3 measuring to an extent of 21.39 acres and in S.Nos.44/3, 44/4 and 44/9 measuring to an extent of 7.38 acres, belong to one Neelakanda Rao and Vittal Rao and others, who were the Inamdhars. They transferred the said lands in favour of one R.Narasinga Rao and R.Krishnaji Rao by way of the respective registered sale deeds bearing Document Nos.1191 of 1952 dated 22.05.1952 and 2998 of 1952 dated 01.11.1952. After their demise, the lands were devolved on their legal heirs by way of inheritance. Accordingly, the petitioner being the son of R.Krishnaji Rao became one of the joint owners of the said lands and he has valid title over the same.
2.2 In respect of the lands in question, cloud was created, as the original owners did not obtain ryotwari patta. In view of the same, in the year 1982, the lands were classified as Unassessed Dry Waste (Anatheenam) in the settlement register without any notice to the land owners. Hence, the land owners R.Narasinga Rao and R.Krishnaji Rao had filed a civil suit in O.S.No.784 of 1982 before the District Munsif Court, Krishnagiri against the District Collector, Dharmapuri, Tahsildar, Krishnagiri and other private parties, who had attempted to claim the lands. The said suit was dismissed by judgment dated 31.01.1995, against which, A.S.No.140 of 1995 was filed. The said appeal was allowed by judgment dated 07.01.1997 passed by the learned Additional District Judge, Dharmapuri, which was challenged by the Government by filing SA.No.531 of 1997. The said second appeal stood abated on 28.01.2015. In view of the same, the decree of the civil court declaring the title of the lands in question in favour of the petitioner's predecessors has become final.
2.3 Based on the civil court decree, the petitioner made an application dated 05.08.2015 enclosing all the necessary documents, to the respondents requesting to issue patta in respect of the lands in question. Finding no response, he filed a writ petition in WP.No.27745 of 2015 to issue a writ of mandamus, directing the respondents therein to consider the said application and pass appropriate orders with respect to grant of patta in respect of the lands in question. By order dated 19.09.2015, the said writ petition was disposed of directing the second respondent therein to pass appropriate orders for grant of patta within eight weeks.
2.4 Pursuant to the order of this Court dated 19.09.2015, as directed by the second respondent, the third respondent conducted an enquiry, in which, the petitioner and others have participated and submitted all the documents as well as the orders passed by the civil court and this Court. Thereafter, the third respondent passed an order dated 16.12.2015, rejecting the claim of the petitioner. Aggrieved over the same, the petitioner is before this court with the present writ petition for the above stated relief.
3. The respondents have filed a detailed counter affidavit, wherein, it has been stated as follows:
3.1 The Settlement Tahsildar, Salem, while considering the application for grant of ryotwari patta in the names of R.Narasinga Rao and R.Krishnaji Rao, who were the paternal uncle and father of the petitioner respectively, in respect of the lands in question, has stated that no inamdars appeared for enquiry, despite service of notice and no evidence was adduced regarding the personal occupation or cultivation by servants of the lands for a continuous period of three years in the preceding 12 years as per Section 9(1)(a)(i) of the Act. Even the enquiry with the village authorities clearly revealed that there was no evidence regarding lease of lands and the lands were not partitioned among the inamdars. Therefore, neither the inamdars nor the land owners were granted patta.
3.2 As per Section 71 of the Tamil Nadu Inam Estates (Abolition and Conversion into Ryotwari) Act, 1963 (hereinafter shortly referred to as 'Act'), the order of the Settlement Tahsildar is final. As against the said order, the remedy available is an appeal under Section 12(2) of the Act before the Tribunal and a Second appeal under Section 46(1) of the Act before this Court. As per Section 71(2) of the Act, no other court has jurisdiction to question about the order passed by the Settlement Tahsildar and the Tribunal. However, the land owners have not chosen to file an appeal before the Tribunal or a second appeal before this Court.
3.3 While so, the Government also issued orders in G.O.Ms.No.370 Commercial Taxes and Religious Department dated 03.10.1974 to enable the eligible ryots and land owners, who failed to apply for grant of ryotwari patta in time and G.O.Ms.No.1889 Commercial Taxes and Religious Department dated 24.12.1976 extending the time limit for making application for grant of ryotwari patta by the eligible ryots and land owners upto 31.03.1977. But the said R.Narasinga Rao and R.Krishnaji Rao did not chose to avail the said opportunities, though nothing prevented them from doing so.
3.4 According to the respondents, the second appeal filed by the Government was not disposed of, confirming the decree of the civil court, as alleged by the petitioner, whereas, it stood abated for not taking steps to implead all the legal heirs of the deceased respondent concerned. Further, the civil court proceedings were initiated by the petitioner not only against the Government, but also against some private respondents.
3.5 Pursuant to the order of this Court in WP No.25775/2015, the respondents have provided due opportunity of personal hearing to the petitioner. Even at that time also, the petitioner has not produced any documents, except the civil court decree, for establishing his right over the lands in question and grant of patta.
3.6 The claim of the petitioner is not a transfer of patta in favour of the legal heirs of the land owners, but is a grant of patta in respect of the lands in question. Apart from that, the application for grant of patta in respect of highly valuable huge extent of lands, cannot be considered, as it was made only by one of the legal heirs. Further, the petitioner has sought for patta in the names of the deceased persons, which cannot be granted. By stating so, the respondents prayed for dismissal of the writ petition.
4. Learned senior counsel for the petitioner would contend that when the title and possession over the lands in question was declared in favour of the petitioner's predecessors, it is binding on the respondents, who are party to the Civil suit proceedings as confirmed by this Court in the Second Appeal and hence, the respondents ought to have considered the request of the petitioner for grant of patta in respect of the lands in question. Learned senior counsel would further contend that the impugned proceedings of the third respondent rejecting the claim of the petitioner for issuance of patta in respect of the subject lands on the premises that finality was accorded to the orders of the settlement Tahsildar and the civil court jurisdiction was excluded, is illegal, arbitrary and against the law. Placing reliance on the decision of the Hon'ble Supreme Court reported in 1985 (4) SCC 10 (State of Tamil Nadu v. Ramalinga Swamigal Madam), learned senior counsel would contend that the Settlement Officer has power and jurisdiction merely to grant or refuse to grant the patta on the basis of the materials placed before him and ouster of civil court jurisdiction cannot be implied or inferred simply because finality has been accorded to the order of settlement officer. Therefore, learned senior counsel sought for setting aside the impugned proceedings of the third respondent and directing the respondents to issue patta in respect of the lands in question.
5. Learned Special Government Pleader appearing for the respondents reiterated the averments made in the counter affidavit.
6. Heard both sides and perused the materials placed before this Court.
7. The facts remain undisputed are that the lands in question were classified as Government poramboke by the order of the Settlement Officer, Salem and the lands continue as such. While so, the land owners R.Narasinga Rao and R.Krishnaji Rao filed a suit in O.S.No.784 of 1982 before the District Munsif Court, Krishnagiri against the Government authorities and other private parties, who claimed right over the lands in question. The said suit was dismissed by judgment dated 31.01.1995, against which, A.S.No.140 of 1995 was filed before the learned Additional District Judge, Dharmapuri, who, by judgment dated 7.1.1997 reversed the judgment of the trial court and allowed the appeal, thereby declaring the title over the lands in question in favour of the land owners, except S.No.19/2, which was acquired for the purpose of laying a road. As against the said judgment, the Government preferred a second appeal in SA.No.531 of 1997, which stood abated on 28.01.2015. Consequent to the same, the petitioner being one of the legal heirs of the land owners, made an application to the respondents, requesting to issue patta in respect of the lands in question. Since the same was not considered by the respondents, he filed a writ petition in WP No.27745 of 2015 praying to issue a writ of Mandamus, directing the respondents to consider his application dated 05.08.2015 and pass appropriate orders granting patta in respect of the lands in question within a period of eight weeks. As per the direction of this Court, enquiry was conducted, in which, the petitioner appeared and submitted the documents as well as judgments passed by the civil Court and this Court. Upon considering the same, the third respondent passed the order dated 16.12.2015 rejecting the claim of the petitioner, which is impugned in this writ petition.
8. The order under challenge was passed by the third respondent on the following grounds: (i)the matters which were already decided by the competent civil Court and further confirmed by the judgment of this Court in the Second Appeal, cannot be re-agitated by the petitioner; (ii)though there is an order declaring the title of the petitioner, he is not entitled for patta on the premises that the order of the settlement Tahsildar dated 31.12.1968 has become final, as it is not adjudicated before the Tribunal under Section 12(2) of the Act and there are conflicting views rendered by the civil Court; (iii)since the judgment of this Court in the second appeal was not passed on merits, it cannot be accepted; (iv)the subject lands continue as Government Poramboke lands till date; and (v)the petitioner sought for patta in respect of the subject lands in favour of the deceased persons. The said order, in my considered view, need not be interfered with for the following reasons.
9. As rightly pointed out by the respondents in their counter affidavit, before classifying the subject lands as Government poramboke land, notice was issued to the land owners, despite the same, none appeared and no document was produced to establish their right over the same. Further, the enquiry with the Village Officer would reveal that the lands in question were not in possession and occupation of the land owners as alleged. Therefore, the Settlement Tahsildar passed the order classifying the lands as such.
10. It is true that as per Section 71 of the Act, the order of the Settlement Tahsildar is final. As against the same, an appeal lies before the Tribunal under Section 12(2) of the Act and a second appeal before this Court under Section 46(1) of the Act. Further, as per Section 71(2) of the Act, no other Court has jurisdiction to question about the order passed by the settlement Tahsildar and the Tribunal. Inspite of the remedy available to them, the land owners have not taken immediate steps to file any appeal before the Tribunal or a second appeal before this Court. Further, they have not approached the authority concerned, for grant of patta in respect of the subject lands, within the time provided by the Government and they kept silent. Suddenly, in the year 1982, they filed a civil suit in O.S.No.782 of 1982 for declaration and for permanent injunction against the Government authorities and also some private parties. The trial court, on a careful appreciation of the evidence adduced before the same, has rightly dismissed the suit. For better appreciation, the findings of the trial Court are extracted hereunder:
(i)The lands adjacent to the plaintiffs belong to others.
(ii)If the lands were cultivated, land revenue would have been levied and the plaintiffs did not possess documents to that effect and therefore, the lands cannot be considered as ryoti lands.
(iii)The executors of sale deed to Eswara Rao viz., K.V.Narasinga Rao was in police department and also he was doing textile business, Krishnaji Rao was a tailor, Narayana Rao was a minor, the wife of Vittal Rao was a house wife and therefore, these persons did not cultivate the lands.
(iv)The exhibits filed by the plaintiff are not related to the suit lands.
(v)The plaintiff produced receipts relating to different lands and thereby claimed right over the suit lands.
(vi)There are no records produced by the plaintiff in support of their claim that they cultivated the lands prior to 01.04.1960 or prior to 26.09.1955 for a continuous period of 12 years.
(vii)The predecessors of Easwara Rao would have obtained patta in their names, had they cultivated the lands and paid land revenue and no such records produced in support of the same.
(viii)Had the suit lands were converted as cultivable lands, paimash numbers and survey numbers would have been assigned and since there were no such paimash numbers and survey numbers, the predecessors did not cultivate the lands.
(ix)There were no old records to establish that the plaintiffs and predecessors were in enjoyment of the lands.
(x)The Government had right under Section 3(D) of the Act for having taken over the lands.
(xi)The enjoyment of the plaintiff over the land in S.F.No.19 started from the Fasli 1383 i.e., from the year 1974 only.
(xii)There is no records to show that the plaintiffs were in enjoyment and possession of the suit lands.
(xiii)The plaintiffs entered into the lands and cultivated the same only after declaration of the suit lands as Anadheenam Poramboke.
(xiv)Since the suit lands were Anadheenam Poramboke lands, Kuppaji Rao, Krishnaji Rao, Sadasiva Rao, Chitti @ Krishnan Vavuthan and Dhariyan were also cultivating the suit lands.
(xv)No records produced to prove that the suit lands were cultivated for a period of more than 100 years by the plaintiffs and their predecessors.
(xvi)Since the plaintiffs did not possess any title, they had no right over the suit lands.
(xvii)Since the plaintiffs did not possess any right over the suit lands and since the suit lands are Government poramboke lands, the plaintiffs are not entitled to any relief of declaration or relief of permanent injunction.
(xviii)In the result, it was decided that the plaintiffs were not entitled to any relief of declaration or relief of permanent injunction and accordingly, the suit was dismissed with their costs.
11.It is pertinent to refer herein that as against the said judgment, the land owners preferred A.S.No.140 of 1995, which was allowed, reversing the above findings of the trial court. Challenging the judgment made in the appeal suit, the Government filed second appeal, which got abated for not impleading all the legal heirs of the deceased respondents. When such being the case, this Court is inclined to agree with the contention of the respondents that the suit was not only filed against the Government, but also other private parties and that, the second appeal was not disposed of on merits and that, there are conflicting findings with regard to the right over the lands in question in favour of the predecessors of the petitioner. In the absence of clear cut finding with regard to title in favour of the petitioner's predecessors, the decision of the Hon'ble Supreme Court relied on the side of the petitioner, is not applicable to the facts of the present case.
12. It is also to be noted that pursuant to the direction of this Court in the writ petition, the petitioner was called for enquiry and he appeared, however, he has not produced any documentary evidence to establish their right over the lands in question, except the civil Court judgment. Mere production of civil court decree will not entitle him to get patta in respect of the lands in question. Further, the petitioner has sought for patta in favour of the deceased persons. Therefore, the third respondent has rightly rejected his claim for grant of patta.
13. At this juncture, by relying on the decision of this Court reported in 2007 (3) CTC 798 (Muslim Wakf by its President, Lalgudi and another v. L.K.Annasamy and others), learned senior counsel for the petitioner would contend that since the land owners have got right over the lands in question way back in the year 1952 by way of registered sale deeds, the same cannot be taken away by virtue of subsequent enactment of the Tamil Nadu Inam Estates (Abolition and Conversion into Ryotwari) Act, 1963 (26 of 1963). This Court has no quarrel with the principle laid down in the said decision that the enactment of the Act 26 of 1963 will not in any way affect the pre-existing right held by a person in the property. However, in the present case, the perusal of the records would show that despite service of notice, the inamdhars neither appeared for enquiry nor produced any documents to establish their possession or cultivation by servants for a continuous period of three years in the preceding 12 years as contemplated under the Act. Thereafter, the Government has also provided amble opportunities to apply for patta, but the land owners failed to avail the same. Therefore, neither the inamdhars nor the land owners were granted patta in respect of the lands in question, which, in my considered view, is perfectly right.
14. Thus, for the reasons stated above, this Court finds no reason to interfere with the order impugned herein.
15. In the result, the writ petition is dismissed. No costs. Consequently, connected Miscellaneous Petitions are also dismissed.
Index : Yes/No 06.02.2017
rk
To
1.The Director of Survey & Settlement,
Survey House,
Chepauk,
Chennai 600 005.
2.The District Collector,
Krishnagiri District,
Krishnagiri.
3.The District Revenue Officer,
Krishnagiri District, Krishnagiri.
4.The Revenue Divisional Officer,
Krishnagiri
Krishnagiri District.
5.The Thasildhar,
Krishnagiri Taluk,
Krishnagiri.
B.RAJENDRAN, J.
rk
W.P.No.1637 of 2016
and
W.M.P.Nos.1385 & 1386 of 2016
06.02.2017
http://www.judis.nic.in