Madras High Court
Sivaganga Samasthanam Devasthanam ... vs The Special Commissioner And ... on 11 July, 1991
Equivalent citations: (1991)2MLJ468
ORDER Mishra, J.
1. Since these writ petitions arise out of a common order of the respondents 1 to 4 they are being disposed of by a common judgment.
2. Sivaganga Samasthanam Devasthanam has moved this Court under Article 226 of the Constitution of India for writs in the nature of certiorari calling for the entire records of the first respondent comprised in his proceedings in pa.Mu. (1) 49884, dated 28.5.1985, that of the third respondent in Roc. A3/31472/82, dated 10.2.1983 and that of the fourth respondent in H.S.D.A. No. 106/90 dated 16.5.1981 and quash the said proceedings.
3. Facts in short are as follows:
Arulmighu Valmiganathasamy Temple, a temple attached to the petitioner Devasthanam, is situated in survey No. 82/1 of Thiruvettriyur village. Thiruvadanai Taluk. The lands belonging to the temple were however classified as natham in the village accounts. These lands originally belonged to the erstwhile Rajahs and Zamindars who gifted the lands to the temple. In Survey No. 82/1, there is a temple tank which according to the petitioner, was intended for the worshippers to make ablutions before entering into the temple for worship and cater to the needs of the villagers as an additional source of water supply for drinking and other purposes. The area around the temple, according to the petitioner, belongs to the temple. The 5th respondent in each case was inducted as tenants in respect of a small area of land 0.00.5 hectare appurtenant to the tank for the purpose of using it as a vending stall for selling plastic goods, cocoanut and other pooja materials for the worshipping public. As tenants they paid the rents to the temple. All of a sudden however they approached the 4th respondent for the assignment of the land occupied by them and the 4th respondent without proper appreciation of the facts, according to the petitioner, granted assignment in favour of the 5th respondent in each case to the extent of 0.00.5 hectares in his proceedings dated 16.5.1981. The petitioner preferred appeal before the third respondent. The third respondent by his proceedings dated 10.2.1983 dismissed the appeal. The petitioner then filed a revision before the second respondent. The second respondent made enquiries into the title and by his order dated 16.12.1983 allowed the petition and set aside the order of the 3rd and 4th respondents. The 5th respondent in each case this time moved some sort of a petition before the 1st respondent. The 1st respondent set aside the order of the 2nd respondent and affirmed that of the 3id and 4th respondents.
4. According to the petitioner, the classification of the land as Natham poramboke was a mistake and in any event since the land was in possession of the petitioner, it did not come under the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 and never vested with the Government. The 5th respondent in each case was inducted as tenants by the petitioner and paid rents to the petitioner. They could not claim any settlement of such a land with themselves ignoring the rights of the petitioners and thus creating some sort of relationship of landlord and tenant between the Government on the one hand and themselves on the other. According to the respondents however since the lands were classified as Natham poramboke as result of the enforcement of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, all rights in and upon the land stood transferred to the State Government and thus after the enforcement of the Act, the petitioner ceased to have any title or right to possess the land. Even though the 5th respondent in each case was inducted by the petitioner as tenants upon the land, the State Government was within its rights in settling the land in favour of the 5th respondent in each case.
5. There can be no dispute that as a consequence of notification of the state under the Act, the entire estate including all communal lands, porambokes, other non-ryoti lands, waste lands, pasture lands, lanka lands forests, mines and minerals quarries, rivers and streams, tanks and ooranies including private tanks and ooranies and irrigation works, fisheries and ferries stood transferred to the Government and vested in them free of all encumbrances, all rights and interests created in or over the estate before the notified dated by the principal or any other landholder also ceased and stood determined and the Government became entitled to remove any obstruction and take possession of the estate and all accounts, registers, pattas, muchalikas, maps, plans and other documents relating to the estate. This provision however contains a proviso which reads:
Provided that the Government shall not dispossess any person of any land in the estate in respect of which they consider that he is prima facie entitled to a ryotwari Patta-
(i) if such person is a ryot, pending the decision of the settlement officer as to whether lie is actually entitled to such patta;
(ii) if such person is a landholder, pending the decision of the settlement officer and the Tribunal on appeal, if any, to it, as the whether he is actually entitled to such patta.
6. Although a counter affidavit has been filed by the joint commissioner II, Land Administration Department it is nowhere stated that on the promulgation of the Act in the year 1949, possession of the lands in dispute was taken by the State Government. It is not in dispute by the respondents that the petitioner exercised possession and continues to enjoy every right upon and in the land and in the enjoyment of such rights inducted the 5th respondent in each case as tenants and exercised constructive possession through them. No one ever decided the question whether the petitioner was entitled to possession or not and as the owner of the property or a landholder entitled to a ryotwari patta in its name or not, without there being any determination of the right of the petitioner by any person empowered to decide or determine such claims and without ever dispossessing the petitioner as provided under the Act, when the 5th respondent in each case applied for assignment in their favour, the 4th respondent issued the patta. The only material that could be available to claim some semblance of right in the State Government was/is provided by the village accounts in which the land in question is recorded as Natham poramboke. But then the Act did not contemplate dispossession of the intermediary land-holder even from the natham poramboke lands without following the procedure proscribed under the Act and without affording to the landholder opportunity to claim a ryotwari patta. This in my opinion, thus is a case in which the respondents would have got the claim of the petitioner first determined in accordance with law and then only treated the petitioner to have been dispossessed or pursuant to the provisions of the Act taken possession of the land and thereafter proceeded to assign the land to any other persons. Learned Counsel for the 5th respondent has however drawn my attention to a judgment by Ratnam, J. in S.A. No. 1342 of 1976 Sri Ramalinga Sowdeswari Amman Devasthanam by its President v. Sreenath Kagath Guru Renga Chariyar Guruvalaya Madalayam by its President 1980 T.L.N.J. 195, in which there are some observations with respect to the Natham Poramboke lands. The matter had come before the High Court from the suit instituted by Devasthanam for a declaration and injunction and for recovery of Rs. 360 being the arrears of rent. According to the Devasthanam, it owned amongst other properties the suit property which was situate adjacent to the pillayar Temple and was in the possession of the plaintiff. According to the plaintiff-Devasthanam the first defendant Madalayam was constituted over a half a century ago as a subsidiary of the plaintiff-Devasthanam. In 1988 the first defendant wanted lands for raising Nandavanam and approached the plaintiff in this connection for the lease of the suit property. On 16.1.1988, the suit property was leased in favour of the first defendant on a monthly rental of Rs. 410 for a period of five years. The 1st defendant, according to the plaintiff, did not pay the rent as for the lease agreement, but prevailed upon obliging the village officers to issue B memos in respect of the suit property as if the suit property is Government poramboke. The first defendant however asserted that the property did not belong to the plaintiff and had never been in his possession at any time. The first defendant stated that the suit property was taken on lease from Madalayam under the impression that the suit property belonged to the plaintiff. Thereafter on learning that the property is Natham poramboke, the first defendant desisted from paying any rent to the plaintiff. It also maintained that the B Memos were issued to it as it had occupied the Government land and 1st defendant was paying Saraji Nama to the Government. The State Government (the second defendant) maintained in the suit that it was not a party to the lease and therefore the lease did not in any way affect the rights of the 2nd defendant. The District Munsif held that the plaintiff established his title to the suit property and that the lease was not boid. The 2nd defendant never questioned this adjudication against it in appeal as it did not file any appeal against the decree granted by the trial Court. The first defendant in the suit preferred an appeal in A.S. No. 1 of 1975, Sub-court, Coimbatore. The learned subordinate judge however held that the plaintiff-Devasthanam had not succeeded in establishing its title and that the lease would not estop the first defendant from denying the title of the plaintiff. In the second appeal two contentions were raised: (i) Having regard to the principal of estoppel contained in Section 116 of the Indian Evidence Act, it is not open to the 1st defendant to set up title in a third party viz., the 2nd defendant in the suit, and (ii). In the absence of an appeal against the decree in O.S. No. 705 of 1973 by the 2nd defendant, the State of Tamil Nadu, it must be held that the adjudication by the trial Court on the question of title to the suit property in favour of the plaintiff must be deemed to have been accepted by the 2nd defendant and therefore in the appeal by the 1st defendant it was not competent to embark upon an enquiry as regards the title to the suit property, The learned single Judge who disposed of the appeal held that it was permissible to plead the paramount title in a suit of this nature and observed:
A tenant is not entitled to set up the title of the third person even though the title is that of the Government. But he is entitled to plead that he was evicted by the true owner whether the true owner be the Government or a private person and that after such eviction he attorned to the true owner.
In such a case the landlord who let him into possession cannot rely upon the law of estoppel as contained in Section 116 of the Indian Evidence Act as preventing his former tenant from impleading a justertii in a third person.
The learned single Judge also held that the fact that the 2nd defendant from preferring appeal against the judgment of the learned Munsif will not disentitle the first defendant from preferring appeal against the judgment of the learned Munsif.
7. The law stated as above in Sri Ramalinga Sowdeswari Amman Devasthanam v. Sreenath Kagath Guru Renga Chariyar 1980 T.L.N.J. 195, is of no avail to the respondents in this case. It is not a case where any issue as to the title of the petitioner-Devasthanam has been adjudicated in accordance with law and there is no plea that the true owner i.e., the Government evicted the 5th respondent and after evicting them, admitted them as tenants under it. It is a case, in my view, in which it should be clearly understood that the revenue authorities will have no right to adjudicate the dispute of title and if there is any claim for the Government that the property stood vested in it under the Act, it must get it adjudicated in accordance with law. So far as the plea of paramount title is concerned, that could be set up by the 5th respondent only in any action in court by the petitioner and not before the Revenue authorities. Nothing has been shown to me to accept the Revenue authorities who decided the dispute of the were competent in law to decide such a dispute. The first respondent has rather acted in a curious manner. While respondents 2, 3 and 4 heard the parties and went in to the question of title, the first respondent decided to do it without even issuing any notice to the petitioner and without even issuing any notice to the petitioner and without affording any opportunity of being heard. The order of the first respondent is in the teeth of the well-known principle of natural justice that no one should be made to suffer or visited with a civil consequence unless he is provided with adequate opportunity of being heard. His order for the said reason is without jurisdiction.
8. In the result, the applications are allowed, the order of the first respondent in pa.Mu-(I) 497/84, dated 28.5.1985 is quashed. Respondents are restrained from interfering with the possession of the petitioner except in accordance with law. There shall be no order as to costs.