Madras High Court
Subramaniya Thevar Alias vs K.K.Milraja on 17 December, 2007
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 17/12/2007 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.676 of 2000 1.Subramaniya Thevar alias Koomapattiyan 2.N.Panchatcharam 3.P.V.Muthusamy Thevar 4.T.Irulappan 5.Ammamuthu ... Appellants/Respondents/ Defendants Vs 1.K.K.Milraja 2.K.K.Gandhiraja 3.K.K.Jayaramaraja (died) 4.Vijayan 5.Sridhar 6.Jayalakshmi 7.Ramasubramania Raja 8.Hari Baskar 9.K.J.Srinivasa Raja 10.J.Vijayalakshmi ... Respondents/Appellants/ Plaintiffs (R.9 and R.10 brought on record as L.Rs of the deceased 3rd respondent vide order dated 08.10.2002 passed in C.M.P.Nos.12804 to 12806 of 2002) Prayer Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 04.10.1999 in A.S.No.53 of 1999 on the file of the Principal District Court, Srivilkiputtur, reversing the judgment and decree dated 19.07.1999 in O.S.No.390 of 1992 on the file of the Principal District Munsif, Srivilliputtur. !For Appellant ... Mr.G.R.Swaminathan ^For Respondent ... Mr.P.T.S.Narendravasan for R.1 and R.4 to R.10 :JUDGMENT
This second appeal is focussed as against the judgment and decree dated 04.10.1999 in A.S.No.53 of 1999 on the file of the Principal District Court, Srivilkiputtur, reversing the judgment and decree dated 19.07.1999 in O.S.No.390 of 1992 on the file of the Principal District Munsif, Srivilliputtur.
2. Broadly but briefly, the case of the plaintiffs as stood exposited from the plaint would run thus:
The suit property described in the schedule of the plaint is an Oorani (tank or big pond) with the bank around it totally measuring an extent of 1 acre 85 cents, originally situated in Zamin of Sivagiri. However, the suit property happened to be the personal property of the then Zamindar who used the said Oorani for bathing the cattle belonging to the Zamin. The said suit property was sold to Lakshmiammal, the mother of the plaintiffs 1 to 4 and grandmother of the plaintiffs 5 and 6, by Sankarapandiya Vannianar and Shanmugavelpandiya Vannianar, the legal representatives of then Zamindar by virtue of Ex.A.2 the sale deed dated 11.10.1946. The vendee used the pond by leasing it out for fishery purpose every year. The said Lakshmiammal died two years anterior to the filing of the suit leaving behind the plaintiffs as her heirs. While so, the defendants 1 and 2 illegally constructed two thatched sheds with mud walls on the south-eastern corner of the bank of the Oorani. The defendants also constructed a Peedam on the south-western corner of the suit property. The first plaintiff complained the matter to the police which resulted in the latter warning the defendants and mandating them to remove the encroachments. However, disregarding the same a small temple was put up in the south-western corner of the suit property and shops were constructed in the south-eastern corner of the same suit property. Hence the suit for mandatory injunction for removal of the said encroachments and also for consequential permanent injunction.
3. Per contra, denying and disputing, challenging and impugning the averments/allegations in the plaint, the defendants filed the written statement which would run thus:
The suit property does not belong to the plaintiffs as alleged in the plaint, whereas it belongs to Samusigapuram Panchayat Board which has been maintaining the suit property all along. There are two Pillaiyar temples situate on the northern side of the suit property. There is one Sandanamariamman koil on the southern side of the suit property. Those shops referred to in the plaint are in existence ever since 1970 onwards. After coming into force of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948, (Act 26 of 1948), the alleged vendee Lakshmiammal under sale deed dated 11.10.1946, cannot be the owner. She has not applied and obtained patta over the suit property. Neither Lakshmiammal nor her legal heirs have ever been in possession and enjoyment of the suit property. Accordingly, the defendants prayed for the dismissal of the suit.
4. The trial Court framed as many as seven issues. During trial, on the side of the plaintiffs, P.W.1 was examined and Exs.A.1 to A.16 were marked and on the side of the defendants, D.W.1 to D.W.4 were examined and Exs.B.1 to B.30 were marked and Exs.C.1 and C.2 were marked as Court documents.
5. Ultimately, the trial Court dismissed the suit, as against which A.S.No.53 of 1999 was filed by the plaintiffs before the Principal District Court, Srivilliputtur, which reversed the judgment and decree of the trial Court and decreed the suit.
6. Being aggrieved by and dissatisfied with, the judgment and decree of the first appellate Court, the defendants preferred this second appeal on the following main grounds among others:
The first appellate Court committed error in reversing the judgment and decree of the trial Court by giving undue importance to Ex.A.2. In the absence of proof that the vendors under Ex.A.2 had the title to transfer the suit property, the first appellate Court simply upheld the case of the plaintiffs. The first appellate Court ignored the clinching evidence that the Panchayat Union had exercised its right over the suit property, which at no point of time belonged to any Zamindar as his exclusive property. The Act No.30 of 1963 would treat the suit property as a Government property. Accordingly, the defendants prayed for setting aside the judgment and decree of the first appellate Court and for restoring the judgment and decree of the trial Court in dismissing the original suit filed by the plaintiffs.
7. At the time of admitting this second appeal, this Court framed the following substantial questions of law:
"(1) Whether the lower appellate Court is right in holding that the respondents are the owners of the suit property without a relief for declaration of property?
(2) Whether the lower appellate Court is right in appreciating the evidences on record as per Section 101 C.P.C?
(3) Whether the lower appellate Court is right in holding that the respondents are the owners and they have right over the suit property after the Act 35 of 1958 and Act 30 of 1963?"
8. During arguments, after hearing both sides, the substantial question of law No.3 is modified as under:
(3) Whether the lower appellate Court is right in holding that the respondents are the owners and they have right over the suit property after the Act 35 of 1958 and Act 30 of 1963, Tamil Nadu Act No.26 of 1948 and Tamil Nadu Amendment Act No.49 of 1974?"
9. Both sides after keeping themselves abreast of the modification in the substantial question of law, submitted their arguments.
Point No:(i)
10. The learned Counsel for the defendants would submit that the suit itself was bad for want of a prayer for declaration of title to the suit property as the defendants never admitted at any point of time the plaintiffs' right over the suit property.
11. It is a trite proposition of law that the plaint averments would govern the scope of the suit and it is not for the defendants to dictate terms to the plaintiffs as to how a suit should be framed. If the plaint averments referred to any dispute of title by the defendants, then the plaintiffs would be under the bounden duty to pray for declaration of title. The principle 'dominis litis' would demonstrate that it is for the plaintiffs to frame the suit so as to get the relief. The plaintiffs thought fit in view of the evidence available with them that they could file the suit with the mere prayer for mandatory injunction and that too, they relied on Ex.A.2, the ancient registered sale deed. In such a case, I am of the considered opinion that the suit cannot be declared as bad for want of a prayer for declaration of title. I make it clear that it is for the Court to decide whether the plaintiffs would ultimately succeed or fail in the case based on evidence. But, on technical grounds as discussed supra, the original suit cannot be dismissed. Accordingly, this point is decided.
12. The learned Counsel for the plaintiffs would cite the decision of the Honourable Apex Court in Corporation of Bangalore City v. M.Papaiah reported in AIR 1989 SUPREME COURT 1809 which is on the point that if the plaint averments sufficiently disclose the plaintiff's claim relating to the suit property, then the Court could consider the same. Even though the said decision is not exactly applicable to the facts as highlighted supra, yet in view of the stand of the plaintiffs as per the averments in the plaint, the suit cannot be dismissed on the ground that the suit is bad for want of prayer for declaration.
13. Point Nos.(ii) and (iii) are taken together for discussion as they are interlinked and interwoven with each other.
Point Nos.(ii) & (iii)
14. The learned Counsel for the defendants would correctly and convincingly refer to the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948, (Act 26 of 1948) and the Tamil Nadu Amendment Act 49 of 1974 and develop his argument to the effect that the statutory provisions contained therein declared even private water bodies including Oorani as Government properties. Hence, it is just and necessary to extract hereunder the relevant provisions in the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948, (Act 26 of 1948) thus:
"Section 3(b) : the entire estate (including all communal lands; porambokes, other non-ryoti lands; waste lands; pasture lands; lanka landsl forests; mines and minerals; quarries; rivers and streams; [tanks and ooranies (including private tanks and ooranies) and irrigation works]; fisheries and ferries), shall stand transferred to the Government and vest in them, free of all encumbrances, and the [Tamil Nadu] Revenue Recovery Act, 1864 (Tamil Nadu Act II of 1864), the [Tamil Nadu] Irrigation Cess Act, 1985 (Tamil Nadu Act VII of 1865), and all other enactments applicable to ryotwari areas shall apply to the estate;
Section 14(a): Ryotwari patta not to be granted in respect of private tank or oorani.- (1) Notwithstanding anything contained in this Act, no ryotwari patta shall be granted in respect of any private tank or oorani. (2) Any ryotwari patta granted in respect of any private tank or oorani under this Act before the date of the publication of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Amendment Act, 1974, in the Tamil Nadu Government Gazette, shall stand cancelled and for purposes of compensation under this Act, the private tank or oorani shall be deemed to be land in respect of which neither the landholder nor any other person is entitled to ryotwari patta under this Act."
15. The cumulative reading of those two provisions would leave no doubt in the mind of the Court that all water bodies such as tanks, ooranies etc., including private ones with effect from 1974 got transferred in favour of the Government. Here, the suit property is nothing but admittedly an Oorani which the plaintiffs claimed to be their private one as per Ex.A.2, even then, it got transferred in favour of the Government as per the operation of the law cited supra. The learned Counsel for the plaintiffs would submit that by virtue of the Tamil Nadu Amendment Act 49 of 1974 only, such a situation had arisen with prospective effect and not in respect of Ooranis which are private properties already got vested on the plaintiffs by virtue of Ex.A.2. Such an argument cannot be countenanced and it is neither here nor there. A mere reading of Section 3(b) and 14-A of Act 26 of 1948, would demonstrate that even such private Ooranis got transferred to Government by the operation of law. In such a case, there is no question of contending that because the plaintiffs happened to be the owners as per Ex.A.2, those provisions of law would have no effect relating to the suit property. The very purpose of those provisions are to transfer such private Ooranis in favour of the Government so as to protect the water bodies and no more elaboration is required in this regard.
16. However, by way of strengthening the contention of the defendants, the learned Counsel cited the following decisions:
(i) Damodardas Chatram v. State of Tamil Nadu reported in 1997 (III) CTC
631. An excerpt from it, would run thus:
"4.Section 3(b) of Tamil Nadu 30 of 1963 which provides for the vesting of minor inams in the Government declares that every minor inams including all communal lands and porambokes, waste lands, pasture lands, forests, mines and minerals, quarries, rivers and streams, tanks and ooranies i.e, including private tanks and ooranies and irrigation works etc., shall stand transferred to the Government and vest in them free of all encumbrances. The right of every person who is lawfully entitled to the kudiwaram interest in inam land alone is preserved for being considered and countenanced with issue of patta. As a matter of act, section 19 illustrates certain categories of lands in respect of which there is an embargo upon the grant of ryotwari patta in favour of any one and beds and bunds of tanks and of supply, and drainage surplus or irrigation channels are also some such category of lands in respect of which no ryotwari patta could be granted. Section 10 of the Act inverted by Tamil Nadu Act 2 of 1976 prohibited the grant of ryotwari patta in respect of even private tanks or ooranies. While that be the probation, the probation contemned in Section 10 and 10-A cannot be construed in a manner as to enable patta being granted in respect of the lands comprised in public irrigation tanks as such merely because neither Section 10 nor Section 10-b specifically made any reference to the public irrigation tank. The fallacy in the submission of the learned counsel, according to us, lies in ignoring the scope of vesting under Section 3(b) of the Act and the effect and consequence of such vesting as laid down by their Lordships of the full Bench in the decision reported in Lakshmipathy Narakan v. State of Madras, 72 L.W. 505 while construing an analogous and in pari material provisions in an allied legislation. The effect of vesting of tanks and ooranies, which in our opinion would take within it purview all irrigation tanks, public or private and also the specific mention about the irrigation works, is total and absolute and such vesting in absolute terms in favour of the state itself disentified any one from claiming ryotwari patta in respect of public irrigation tanks or irrigation works. Consequently, we are unable to countenance the submission of the learned counsel that in the absence of any specific embargo in Section 10(b) and 10-A of the Act there was no impediment for the parties to get patta in respect of the lands comprised in the irrigation tanks in question."
17. A perusal of the aforesaid excerpt, would leave no doubt in the mind of the Court that the suit property belongs to Government by virtue of operation of law itself. The suit has been filed in the year 1992 whereas in the year 1974 itself, the suit property became the Government property de hors its previous status.
18. The learned Counsel for the defendants also cited one other decision of this Court in State of Tamil Nadu v. Yagappa reported in 1997 M.L.J 473. He also cited the decision of the Honourable Apex Court in Aniyur Mohaideen v. Kumdhi Panchayat Union reported in (2002) 10 Supreme Court Cases 485. An excerpt from it, would run thus:
"9. It is alleged by the respondent that insertion of Section 14-A was deemed to have been inserted by Section 3 of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Amendment Act, 1974 (Tamil Nadu Act 49 of 1974) with retrospective effect. It is also alleged by the respondent that the said provision has effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom, usage or contract or decree or order of a court other authority. Sub-section (2) of Section 14-A provides that in case of any private tank, the private tank would vest in the Panchayat. BY the said Act, Section 3(b) was also amended and all the private tanks and oorani were also held to have vested in the State."
19. It would further strengthen the case of the defendants that the suit property actually became the Government property and it cannot be taken as the property of the plaintiffs.
20. The learned Counsel for the plaintiffs would contend without any evidence that the suit property is a Grama Natham and in such a case, Grama Natham cannot become the Government property. I am at a loss to understand as to how such a contention could be put forth in the wake of the clear mandatory provisions as set out supra and the decisions of the Honourable Apex Court as well as this Court.
21. In view of the discussion supra, the second appeal could be allowed. However, by way of further factual analysis, I would like to discuss further the evidentiary aspect of the case also.
22. It is the specific contention of the defendants that no evidence was adduced to prove that the vendors under Ex.A.2 had title to transfer it. Absolutely, there is no iota or shred of evidence to demonstrate that the vendors had title to transfer the Oorani in favour of the said Lakshmiammal as per Ex.A.2.
23. I am fully aware of the fact that Ex.A.2 is an ancient document within the meaning of section 90 of the Indian Evidence Act, as per which the presumption is only with regard to the genuineness of the document so to say the registration and the execution and not relating to the genuineness of the title of the vendors under that sale deed. As such, the plaintiffs have not proved that the vendors under Ex.A.2 had title to transfer the Oorani. Over and above that, on the side of the defendants, evidence has been adduced on the point that the Panchayat Union concerned dealt with the suit property as its property and Exs.B.12 to B.23 would amply make the point clear that ever since the year 1938, Samusigapuram Panchayat which is having jurisdiction over that area, exercised its active control over that Oorani namely the suit property as its property. Ex.A.2 is of the year 1946, but Ex.B.12 would clearly demonstrate that even from the year 1938 onwards, till filing of the suit by the plaintiffs, the Panchayat Union had been exercising the control over it as its property and all these aspects have not been considered by the first appellate Court. In fact, the finding of the first appellate Court, to say the least, is totally antithetical to the express provisions contained in Act 26 of 1948 and the relevant evidence available on record. Undue importance was given to Ex.A.2 ignoring Exs.B.12 to B.23 by the first appellate Court.
24. The first appellate Court also failed to consider that Exs.A.4 to A.15 are all not ante litum motum documents, whereas those documents emerged subsequent to the filing of the suit. The plaintiffs even tried to rely on Ex.A.3, the certified copy of the decree in O.S.No.211 of 1990 which was filed by the plaintiffs against the Electricity Board so as to injunct it from laying any electricity line over the suit property herein, but that suit was dismissed. Not to put too fine a point on it, I may hold that the first appellate Court oblivious of the evidence placed before it and also ignoring the salient provisions relating to law, simply decreed the original suit.
25. Accordingly, both the points are decided and the judgment and decree of the first appellate Court is liable to be set aside.
26. In the result, this second appeal is allowed. The judgment and decree dated 04.10.1999 in A.S.No.53 of 1999 on the file of the Principal District Court, Srivilliputtur, is set aside and the judgment and decree dated 19.07.1999 in O.S.No.390 of 1992 on the file of the Principal District Munsif, Srivilliputtur, is restored and confirmed, in dismissing the original suit. The parties shall bear their respective costs throughout.
rsb To
1.The Principal District Court, Srivilliputtur.
2.The Principal District Munsif, Srivilliputtur.