Madras High Court
The Executive Officer vs Sadayappa Gounder(Died) on 18 February, 2022
Author: J.Nisha Banu
Bench: J.Nisha Banu
S.A.Nos.769/1990 and 1147/1992
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 20.01.2022
PRONOUNCED ON : 18.02.2022
CORAM
THE HONOURABLE Mrs.JUSTICE J.NISHA BANU
S.A.Nos.769 of 1990 and 1147 of 1992
SA No.769 of 1990
The Executive Officer
HR&CE
Sri Magudeswarar Veeranarayana Perumal Temple
Kodumudi
In charge of Sri Thanthoniswara Temple
Kollankoil residing at
Kodumudi
Erode Taluk .. Appellant/4th defendant
in Trial Court
Vs.
1.Sadayappa Gounder(Died)
2.Shanmugam
3.Rukmani Ammal
4.Janaki
5.Minor Arjunan
6.Minor Kailasam (Minors 5 & 6 rep. by mother and guardian R3)
7.Nachiappa Gounder
8.Subbanna Gounder
9.Kolandaiswami Gounder
10.Meenakshi
11.Sadayammal
12.Lakshmi
13.Muthuswami Gounder
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S.A.Nos.769/1990 and 1147/1992
14.Thambanan
15.Sri Thanthoniswarar Temple
Kollankoil by its Trustee cum
Archakar Muthusubramania Iyer
16.Kunjumani Iyer
17.The Commissioner
HR&CE Department
Nungambakkam High Road,
Chennai. .. Respondents/Plaintiffs
Prayer :- Second Appeal has been filed under Section 100 of CPC against the
Judgement and Decree dated 17.06.1988 passed in A.S.No.65 of 1987 on the
file of the District Judge, Erode, confirming the Judgment and Decree dated
24.01.1986 passed in O.S.No.224 of 1978 on the file of the Principal
Subordinate Judge, Erode.
For Appellants : Ms.G.Sumithra
For RR 2 - 16 : No Appearance
For R-17 : Mr.M.Bindran,
Additional Govt. Pleader
* R1 Died
SA No.1147/1992
The Executive Officer, HR&CE
Sri Magudeswarar Veeranarayana Perumal Temple
Kodumudi
In charge of Sri Thanthoniswara Temple
Kollankoil residing at
Kodumudi
Erode Taluk .. Appellant/4th defendant
in Trial Court
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S.A.Nos.769/1990 and 1147/1992
Vs.
1.Sadayappa Gounder(died)
2.Saraswathi .. 1 & 2 respondents/
Plaintiffs in Trial Court
3.Sri Thanthoniswara Temple
at Kollankoil rep. by
Trustees and Poojari
Muthusubramaniam
4.Kunjumani Iyer
5.The Commissioner
HR&CE Department
Nungambakkam,
Madras .. 3 to 5 Respondents/ 1 to 3
Defendants in Trial Court
6.Arukkani
7.Thulasimani
8.Velumani
9.Shanmugavadivu .. 6 to 9 Respondents
(R6 to R9 brought on record as LRs of the deceased R1 vide
Order dated 01.08.2017 in CMP Nos.521 to 523 / 2014)
Prayer :- Second Appeal has been filed under Section 100 of CPC against the
Judgement and Decree dated 17.06.1988 passed in A.S.No.47 of 1987 on the
file of the District Judge, Erode, confirming the Judgment and Decree dated
24.01.1986 passed in O.S.No.222 of 1978 on the file of the Principal
Subordinate Judge, Erode.
For Appellants : Ms.G.Sumithra
For Respondents : M/s.McGan Law Firm
for R2, R6 & R9
Mr.M.Bindran,
Addl. Govt. Pleader for R5
No appearance for R3 & R4
(R1- Died)
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S.A.Nos.769/1990 and 1147/1992
COMMON JUDGMENT
Second appeal No.769/1990 has been filed challenging the Judgment and Decree dated 17.06.1988 passed in A.S.No.65 of 1987 on the file of the District Judge, Erode, confirming the Judgment and Decree dated 24.01.1986 passed in O.S.No.224 of 1978 on the file of the Principal Subordinate Judge, Erode.
2. Second Appeal No.1147/1992 has been filed challenging the Judgement and Decree dated 17.06.1988 passed in A.S.No.47 of 1987 on the file of the District Judge, Erode, confirming the Judgment and Decree dated 24.01.1986 passed in O.S.No.222 of 1978 on the file of the Principal Subordinate Judge, Erode.
3.For the sake of convenience, the parties are referred to as per their rankings in the trial Court.
4.The above second appeals arose out of two suits filed before the Subordinate Court, Erode, in O.S.No.222 of 1978 and 224 of 1978. The respondents herein were the plaintiffs in the said suits. https://www.mhc.tn.gov.in/judis 4/28 S.A.Nos.769/1990 and 1147/1992
5.The brief facts of the case is that both the suits were filed by the plaintiffs against the defendants/the appellants herein seeking the relief of declaration that the plaintiffs are the absolute owners of the suit property and for grant of permanent injunction. The respondent plaintiff by virtue of Ex.A1 dated 26.05.1982, which is a registered document, their predecessors in title and ancestors, as the case may be, came into possession of the suit schedule properties. The plaintiffs claimed that the said document, which confers a right of permanent lease without any right of re-entry, clearly establishes the custom prevailed at that point of time that the plaintiffs were having Kudivaram right. The plaintiffs further contended that the plaintiffs their predecessors in title and the ancestors possessed and enjoyed the suit properties as their absolute property without any intervention from the year 1882 and hence, even otherwise they have perfected the title by way of adverse possession and that the appellants/defendants were never in possession of the suit properties at any point of time.
6. The defendants resisted the claim of the plaintiffs by stating that they were granted patta. They placed reliance of the order passed in STA Nos.92 and 93 of 1974 to contend that they were granted both Melvaram and Kudivaram by virtue of the order passed in STA Nos.92 and 93 of 1974 under https://www.mhc.tn.gov.in/judis 5/28 S.A.Nos.769/1990 and 1147/1992 the Tamil Nadu Minor Inam Abolition Act (Tamil Nadu Act 30 of 1963). The defendants further contended that the alleged alienation of the property by virtue of Ex.A1 dated 26.05.1882 was not proved by the plaintiffs. The trial Court ought to have been effected by the person entitled to execute the said document.
7. The trial Court, after framing nine issues, by judgment and decree dated 24.01.1986 refused to grant the decree of declaration, but placing reliance of the judgment of the Court reported in AIR 1984 Madras 217, 97 LW 243 in the case of Subramaniya Gurukkal, which held that in view of the finality given under Sections 46 and 47 of the Inam Abolition Act, the Civil Courts jurisdiction is ousted. However, the trial Court granted the decree of permanent injunction by finding that the possession of the suit properties were the plaintiffs and their predecessors in title from the date of Ex.A1 ie., from the date of 26.05.1882.
8. The defendants aggrieved over the grant of decree of permanent injunction by the trial Court preferred the first appeal before the District Judge, Erode in A.S.Nos.47 and 65 of 1987. The plaintiffs filed Cross objections aggrieved by the refusal of the trial Court to grant the decree of declaration. https://www.mhc.tn.gov.in/judis 6/28 S.A.Nos.769/1990 and 1147/1992
9. The first appellate Court, by judgment and decree dated 17.06.1988 following the decision of this Court reported in 1987 TNLJ 91 and 1988 (2) LW 513 in the case of Ramanuja Kavirayar, which followed the decision of the Supreme Court reported in AIR 1986 SC 794 and 1985 (4) SCC 10 in the case of State of Tamil Nadu v. Ramalinga Swamigal Madam held that the civil Courts jurisdiction is not ousted by virtue of Sections 46 and 47 of the Minor Inam Abolition Act and reversed the conclusion of the trial Court, which followed the decision of the case of Subramaniya Gurukal referred above to hold that the civil Courts jurisdiction is ousted in view of the finality granted under Sections 46 and 47 of the Act.
10. The first appellate Court concurred with the finding of the trial Court that the plaintiffs and their predecessors in title continued in possession of the property for more than 100 years right from the year 1882 and admittedly were also dealing with the property as its absolute owners and held that the plaintiffs are perfected their title and granted declaration by dismissing the appeals preferred by the defendants and allowing the cross appeals of the plaintiffs. Aggrieved over the order of the first appellate Court, defendants preferred the second appeals by raising the following questions of law:
“(a) Whether the Courts below were justified in holding https://www.mhc.tn.gov.in/judis 7/28 S.A.Nos.769/1990 and 1147/1992 that the civil Court has got jurisdiction to try the suit as framed and that the same is not barred under Sections 46 and 47 of the Tamil Nadu Act 30 of 1963?;
(b) Whether the lower appellate Court was justified in granting the plaintiffs declaration of absolute right of the title in respect of a minor inam land covered by the provisions of Act 30 of 1963? and
(c) Whether the Courts below were right in their application of the scope of the law declared by the Supreme Court reported in 1985 (4) SCC 10?”
11. The learned counsel for the appellant, after making elaborate oral submissions, filed written submissions dated 28.01.2022. The respondents also filed synopsis and written submissions dated 19.01.2022 and additional written submissions dated 28.01.2022.
12. At the time of arguments, the learned counsel appearing for the respondents contended that the questions of law raised in the second appeals are covered in favour of them by the subsequent Full Bench decision of this Court reported in 1998 (1) CTC 630 in the case of Srinivasan and others and the Supreme Court decisions in the case of Elumalai Naicker reported in AIR 1995 SC 1613 and Doky Sheela Ramulu reported in 2017 (2) SCC 69, which https://www.mhc.tn.gov.in/judis 8/28 S.A.Nos.769/1990 and 1147/1992 was concurred by the appellants. However, the learned counsel for the appellants wanted to place arguments by raising new questions of law, which are as under:
“a) Whether the plaintiffs are entitled for the relief of adverse possession based on Ex.A1, when the same has been held that Ex.A1 is only a lease deed and not a sale deed under Ex.A4? and
b) When plaintiffs admits the Melwaram right of the temple admitting the temple as landlord to the property whether the plaintiffs are entitled for claim adverse possession as against the temple when there is a specific bar under Section 109 of the Tamil Nadu Hindu Religious and Charitable Endowment Act 1959?”
13. The learned counsel for the appellant contended that the reliance placed by the first appellate Court the judgment reported in 1987 TNLJ 91 in the case of Ramanuja Kavirayar is misconstrued, as the said judgment did not deal with the question of jurisdiction of the civil Court in deciding the title. Further she contended that except Ex.A1, the plaintiffs did not produce any document to prove and establish the title over the suit properties and as per Section 109 of the HR&CE Act 1959, the plaintiffs did not produce any substantial evidence to establish that they have perfected title by adverse https://www.mhc.tn.gov.in/judis 9/28 S.A.Nos.769/1990 and 1147/1992 possession prior to 30th September 1951. Though the plaintiffs have produced the perpetual lease deed Ex.A1, the same was rejected by the settlement Tahsildar in the Ryotwari patta proceedings.
14. The learned counsel for the appellant also contended by placing reliance to the judgment reported in 2007 (3) MLJ 85 in the case of Subramaniyam v. Sri Devanga Swamy Devasthanam and 2008 (2) LW 617 in the case of Arulmigu Kallalagar Thirukoil Alagarkoil v. S.S.Rajaram and nine others that adverse possession is not sustainable as against the temple in view of Section 109 of the HR&CE Act. The learned counsel for the appellant also cited the judgment reported in 2020 (5) LW 397 in the case of Sri Arunachalam Mudaliyar Charities v. Subburaya Mudaliar High School, Kancheepuram and another to contend that the lease is always a lease.
15. In response to the submissions made by the learned counsel for the appellant, the learned counsel for the respondents contended that the issue as to whether Sections 46 and 47 of the Minor Inam Abolition Act oust the civil Court's jurisdiction is no more res integra, since the learned counsel for the appellant also concedes it, this Court holds that there is no substantial question of law in the present second appeals.
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16. The learned counsel for the respondents placed reliance on the following judgments:
(i) 1889 ILR 13 Mad 60 (Appa Rao v. Subbanna and others)
(ii) 1897 ILR 20 Mad 299 (Venkatanarasimha Naidu v. Dandamudi Kotayya)
(iii) AIR 1918 Mad 44 Muna Muhammad Rowther and others v.
K.R.Muthu Alagappa Chettiar, Panchayat of Sri Nayaneetheeswaraswami temple at Sikkal;
(iv) 1949 (2 MLJ 500 (PC) : AIR 1949 PC 278 (Kumbham Lakshmanna and others v. Tangirala Venkateswarlu and others.)
(v) AIR 1962 SC 342 : (1962) 3 SCR 653 Sunkavilli Surana v. Goli Sathiraju ;
(vi) 1982 TNLJ 490 – Udaiyappan and another v. Karuppan and others
(vii) Air 1984 Mad 217 : 1984 (97) LW 243 (subramania Gurukkal v. Arulmigu Thirumaleswaraswami Deity)
(viii) 1987 TNLJ 91 : 1988 (2) LW 513 (T.K.Ramanuja Kaviraiyar v. Sri-la-sri Sivaprakasa Pandara Sannadhi Avargal.
(ix) AIR 1995 SC 1613 : 1995 (4) SCC 156 (Manika Naickar v. M.Elumalai Naicker)
(x) 1998 1 CTC 630 : 1998 2 Mad LJ 722 – Srinivasan & Others v. Sri https://www.mhc.tn.gov.in/judis 11/28 S.A.Nos.769/1990 and 1147/1992 Madhyajuneswaraswami
(xi) 1998 9 SCC 603 (Sri-La-Sri Sivaprakasa Pandara Sannadhi Avargal v. T.Parvathi Ammal (Smt) and others and
(xii) (2017) 2 SCC 69 : 2017 (1) MLJ 294 – Dokiseela Ramulu v. Sri Sangameswara Swamy Varu and others.
17. With regard to the arguments advanced by the learned counsel for the appellant by placing reliance under Section 109 of the Tamil Nadu Hindu Religious and Charitable Endowment Act 1959 trying to raise fresh questions law, this Court is of the view that neither the judgments reported in 2007 (3) MLJ 85 in the case of Subramaniyam v. Sri Devangasamy Devasthanam and 2008 (2) LW 617 in the case of Arulmigu Kallalagar Thirukoil, Alagarkoil v. S.S.Rajaram and 9 others nor Section 109 of the Tamil Nadu Hindu Religious and Charitable Endowment Act 1959, as it stood before the amendment, can be applied to the facts of the present case.
18. Section 109 of the Tamil Nadu Hindu Religious and Charitable Endowment Act 1959, prior to 2003 amendment reads as under:
“109.Section 109 – Property of the Religious Institutions not to vest the Law of Limitation after 30th September 1951, https://www.mhc.tn.gov.in/judis 12/28 S.A.Nos.769/1990 and 1147/1992 nothing contained in the law of limitation for the time being in force shall be deemed to vest in any person, the property or funds of any religious institution, which had not vested in such person or his predecessor-in-title before the 30th September 1951.”
19. The concurrent findings of the Courts below is that the plaintiffs and their predecessors in title were in possession of the suit property right from the date of Ex.A1 ie., 26.05.1882 without any interruption and the first appellate Court has also held that the said fact has not even been disputed by the defendant/appellant. For better appreciation, the findings of the lower appellate Court is extracted hereunder:
“Now the fact that the plaintiffs and their predecessors in title were in possession of the properties for more than 100 years is not denied or disputed. It is also admitted that the first defendant ever possessed with the property at any time. The plaintiffs and their predecessors are dealing with the property as absolute owners. It is contended by the plaintiff's counsel that since they are in possession of the property for more than 100 years, in view of the observation made by His Lordship in His judgment reported in 1987 TNLJ 91, the plaintiffs have perfected their title. His Lordship in that case has accepted that the findings of the lower Court regarding the title of the property which was based on possession of more than 100 https://www.mhc.tn.gov.in/judis 13/28 S.A.Nos.769/1990 and 1147/1992 years. In the present case also the plaintiffs and their predecessors are in possession of the property for more than 100 years and also in the absence of any evidence that the defendant had ever possessed with the property at any time. So the plaintiffs have perfected title to the property by long possession.”
20. Therefore Section 109 of the Tamil Nadu Hindu Religious and Charitable Endowment Act 1959, as it stood at the relevant point of time cannot be applied to the content that the defendants have not perfected their title by prescription. Both judgments relied by the appellants, namely, 2007 3 MLJ 85 in the case of Subramaniyam v. Sri Devanga Swamy Devasthanam and 2008 (2) LW 617 in the case of Arulmigu Kallalagar Thirukoil Alagarkoil v. S.S.Rajaram and nine others are based on Section 109 of the HR&CE Act, 1958 which is not applicable to the facts of the present case.
21. This Court is also not able to appreciate the contention of the appellant that the lease is always a lease and therefore, the possession of the plaintiffs for over the prescribed period of limitation does not lead to prescription of title for the reason that the perpetual permanent lease, which was in practice in Southern India during the relevant point of time cannot be https://www.mhc.tn.gov.in/judis 14/28 S.A.Nos.769/1990 and 1147/1992 equated with the English tenancy.
22. The Privy Council in the case of Kumbam Lakshmanan reported in AIR 1949 PC 278 quoted with the approval the decision of Venkatanarasimha Naidu reported in 1897 ILR 20 Mad 299 to hold that there is no substantial analogy between an English tenancy and Indian Ryot.
“This reasoning is open to two objections. In the first place, it ignores the true conception of the relationship between landlord and tenant in India in Land sold under Inamdars, Zamindars and such proprietors well prescribed by Subramaniya Iyer, J. in Venkatanarasimha Naidu v. Dandamudi Kottayya when after pointing out that there is no substantial analogy between English tenants and Indian ryots and citing the following passage regarding the nature of the rights of the ryots in India in Presidency of Madras already quoted by their Lordships (supra) whether rendered in service , in money or in kind and whether paid to rajas jagirdars, zamindars, poligars, mutadars, shrotriemdars, inumdars or to Government officers, such as Tahsildars, amildars, amins or thannadars, they payments which have always been made are universally deemed the due of Government, he observes as follows:
“To treat such a payment by cultivators to zamindars as rent, in the sixth sense of the term https://www.mhc.tn.gov.in/judis 15/28 S.A.Nos.769/1990 and 1147/1992 and to imply therefrom, the relationship of landlord and tenant so as to let in the presumption of law that a tenancy in general is one from year to year would be to introduce a mischievous fiction, destructive of the rights of great members of the cultivating classes in this province, who have held the provisions of land from generation to generation”.
23. Privy council in the said judgment also noted the customary law prevailing during the relevant point of time:
“The controversy in earlier days, which is very acute centered round the question whether the tenant was a tenant from year to year as strictly understood or whether he was a co-owner of the land with the landlord according to the customary law of the Country, he owing the Kudivaram and the landlord owing the Melvaram interest in the land. In Secretary of State v. Vira Rayan, it was observed by Turnar CJ and Muthusamy Ayyar, J, that according to what is termed the Hindu common law, use of the soil, “the same learned Judges pointed out in Siva Subramaniya v. Secretary of State that Manu and other Hindu writers have rested private property on occupation as owners.” https://www.mhc.tn.gov.in/judis 16/28 S.A.Nos.769/1990 and 1147/1992
24. Therefore, there is no merit in the contention that the plaintiffs were lessees.
25. As has been held by this Court in the judgment reported in the case of Kakaralapodi Janaki Kamaraju and others reported in AIR 1954 Mad 772, the decision of the Apex Court in the case of Ram Janam reported in 1996 (8) SCC 277 and in the case of Basappa reported in 2000 (8) SCC 565, the question of adverse possession is essentially a question of fact. This conclusion of fact having been concurrently held by the Courts below, the same cannot be interfered by the High Court in the proceedings under Section 100 of CPC.
26. The contention raised by the learned counsel for the appellants in the case decided in 1987 TNLJ 91 does not deal with the prescription of title, the possession is completely incorrect. The facts of the said case, which has a chequered history are identical to the present facts of the case, as could be seen in the equivalent citation reported in 1988 (2) LW 530 in the said case, T.K.Ramanuja Kavirayar, Shanmugam J, by order dated 25.09.1984, directed the matter to be placed before the Chief Justice for appropriate orders.
“Shanmugam, J.:
This appeal has a chequered career. In that after hearing https://www.mhc.tn.gov.in/judis 17/28 S.A.Nos.769/1990 and 1147/1992 arguments at length advanced by both the learned counsel, I had to postpone my judgment awaiting a decision of a Division Bench, which was since been reported in Subramaniya Gurukal v. Arulmigu Thirumaleeswara Swamy Deity.
(2) The only substantial question of law that falls for determination in this second appeal is, “Whether the jurisdiction of the civil Court to entertain the suit for declaration and injunction is barred by reason of the provisions of Act 30 of 1963 and Ex.B1 order granting patta for the defendant under Section 8(2)(ii) of the Act.
(3) Maheswaran, J. in S.A.No.1598 of 1979 had referred the same question to be decided by a Larger Bench because according to the learned Judge there are two conflicting decisions of two Division Benches of this Court in Udaiyappan v. Karuppan and in Subramaniya Gurukal v. Arulmigu Thirumaleeswara Swamy Deity. I therefore, feel it prudent to refer the matter to a Larger Bench and to be posted the second appeal No.1598 of 1979.
(4) The papers are directed to be placed before My Lord the Chief Justice for appropriate orders.”
27. By order dated 02.12.1986, the First Bench of this Court comprising of their Lordships M.N. Chandurker, CJ. and Justice Srinivasan, J., (as their Lordships were then) held that there is no requirement for the Full Bench to consider the issue in view of the law being settled by the Supreme Court in the https://www.mhc.tn.gov.in/judis 18/28 S.A.Nos.769/1990 and 1147/1992 judgment reported in 1985 (4) SCC 10 in the case of Ramalinga Swamigal Madam by holding that “the effect of the decision of the Supreme Court therefore, is that the two decisions M.Chayanna v. Narayanan and Chenchulakshmamma v. Subramania Reddy on the basis of which the later Division Bench consisting of V.Ramasamy and V.Rathinam, JJ., took their view have been held to be inapplicable to a case under the Madras Act 26 of 1948 and further held that the view of Ramanujam and Senguttuvelan, JJ., who had followed the earlier view of the Division Bench in the State of Madras v. Ramalingam Swamigal Madam stands confirmed. The later decision of V.Ramaswami and V.Ratnam, JJ., in Subramaniya Gurukal v. Arulmigu Thirumaleeswara Swamigal Deity cannot therefore be considered now to be a good law at all and it is therefore not necessary to constitute any Full Bench to decide any conflict because the conflict now stands resolved by the latest decision of the Supreme Court in State of Tamil Nadu v. Ramalinga Swamigal Madam.
“4.We have already pointed out that so far as the judgment of Ramanujam and Senguttuvelan, JJ, is concerned that now stands confirmed. If the contention of Mr.Kumar is that notwithstanding that judgment that there are some observations of the Supreme Court to support the view that the civil Court has no jurisdiction, he will be at liberty to agitate https://www.mhc.tn.gov.in/judis 19/28 S.A.Nos.769/1990 and 1147/1992 that question.
5.Accordingly, this appeal now will go back to a single Judge for decision according to law.”
28. After remand, His Lordship Srinivasan, J, by order dated 16.03.1987 upheld the decision of the trial Court of prescription of title by way of adverse possession.
“2.As the said land is admittedly a minor inam land proceedings for issue of patta were instituted and the settlement Tahsildar ordered the grant of same in favour of the plaintiffs. The defendant was a party to the said proceedings and his appeal to the Inams Abolition Tribunal, Tirunelveli was dismissed. On a further appeal to the Special Appellate Tribunal, High Court, Madras, the orders of the authorities below were reversed and patta was directed to be issued in favour of the defendant. The only reason given by the Special Appellate Tribunal in support of his order is that the land was iruvaram minor inam granted for the support of maintenance of a religious institution and that the plaintiffs herein were not claiming any right thereto by virtue of any transfer from the inamdar. Thereafter the plaintiffs filed the present suit for a declaration of the title to the suit property and for an injunction restraining the defendant from interfering with their possession. The trial Court held that the documents produced https://www.mhc.tn.gov.in/judis 20/28 S.A.Nos.769/1990 and 1147/1992 by the plaintiffs in support of the case were clinching and they proved their possession over the suit property over 100 years. It was also found that the defendants had not produced any documents to show that it had dealt with the property at any time. It is better to extract the relevant observations of the trial Court, which reads as follows:
“In the face of the documents produced by the plaintiffs, they cannot be of any help to the defendant. The defendants have not produced any document to show that they have dealt with the suit property. They have not whispered in the statement the mode of enjoyment of the suit land whether they are in enjoyment of the land directly or through lease. No scrap of paper has been produced to prove their alleged possession of the suit land.
In that view, the trial Court held that the plaintiffs were entitled to the suit property.” (emphasis supplied)
29. Therefore, it is incorrect to contend that the case of T.K.Kavirayar did not deal with the issue of declaration and the prescription of title by way of adverse possession.
30. As rightly pointed out by the learned counsel for the respondents, the appellant did not raise the issue of res judicata and all that the defendants contended was the bar of the civil Courts jurisdiction in the light of the finality accorded under Sections 46 and 47 of the Minor Inam Abolition Act, which https://www.mhc.tn.gov.in/judis 21/28 S.A.Nos.769/1990 and 1147/1992 this Court and the Supreme Court has held that the finality accorded under Sections 46 and 47 of the Minor Inam Abolition Act does not oust the jurisdiction of the civil Court.
31. This Court in the judgment of T.K.Kavirayar referred above also took note of the fact that the judgment of Natesan, J. in K.L.M.Ramamoorthy v. State of Madras reported in ILR 1970 (2) Mad 788 holding that the patta granted under the Ryotwari Act is not a title deed, but only a bill to collect the revenue has been upheld by the Supreme Court and proceeded to hold that if the civil Court concludes that the person to whom patta is granted is not entitled to the land, the revenue authorities have to take note of the same and amend the registers accordingly.
“17. While dealing with the possession questions whether the Abolition Act created new rights, Natesan, J. in the case of K.L.M.Ramamoorthy said thus:
“... It is clear from a reading of Section 11 to 14 that it is in recognition of the rights of a ryot in ryoti land that ryotwari patta is granted to him; there is no extinguishment of such rights with the notification of the estate. The idea behind the Act so far as a ryoti holding is concerned, is to affirm the holding to the ryot on a more permanent basis https://www.mhc.tn.gov.in/judis 22/28 S.A.Nos.769/1990 and 1147/1992 under the ryotwari system. The ryot, the holder of Kudiwaram interest in an estate as defined in the Estates Land Act 1908, has only permanent right of occupancy. It is certainly a very valuable legal right. His position might have been equated to that of a co-owner; but it is not the same thing as proprietorship. It is a right resembling emphyreusis in Roman law, the right of a person who is not the owner of a piece of land but uses it as his own in perpetuity subject to forfeiture of the same on non-
payment of the fixed rent and on certain other contingencies. The ryotwari settlement made on the abolition of estates completely changes the position of a ryot in relation to his holding. Under Section 11 of the Act, every ryot in an estate shall, with effect on and from the notified date, be entitled to a ryotwari patta in respect of his ryotiland. As a result of the Abolition Act, a cultivator having only occupancy right in law is raised to the stature of proprietor of the land, subject to the prerogative of the State to impose assessment on the land varying from time to time. Under the ryotwari system, the Government does not purport to grant any title deed to the proprietor or holder of the land. But what is granted is only a patta which, as has been repeatedly pointed out in decisions, is not a title deed not only https://www.mhc.tn.gov.in/judis 23/28 S.A.Nos.769/1990 and 1147/1992 a bill or documentary evidence of the fiscal arrangement between the ryotwari proprietor and the Government. The pattadar, that is, the person registered as the owner of a ryotwari holding, is as regards the Government, the responsible proprietor of the ryotwari land registered in his name in the Land Register of the District. As pointed out in Krishnaswami Thevar v. Perumal re Konare, the patta granted under S.11 to 14 also is nothing more than a bill and does not itself confer any title. Of course, with the abolition of the estate, ryoti lands undergo a statutory change but that is as regards their tenure. They become ryotwari entitling the holder to a ryotwari patta. To use the convenient expression, they become ryot's freehold property....”
18....The appeal against the said decision was also heard along with the Civil Appeal in State of Madras v. Ramalinga Swamigal Madam', and was dismissed. It is no doubt true that there are some observations in the judgment of the Supreme Court that the Abolition Act could be said to be creating new rights in favour of landholder and ryot, but the question was not decided finally in that case. However, the Supreme Court did not disapprove the reasoning of Natesan, J. in the judgment which was https://www.mhc.tn.gov.in/judis 24/28 S.A.Nos.769/1990 and 1147/1992 under appeal before it. While I respectfully agree with the reasoning of Natesan, J., I hold that the same will apply to the provisions of the Minor 'Inams Act.'
19. Under Section 8(2) of the Minor Inams Act, the only question to be considered is whether the original grant was of an iruvaram minor inam for the support or maintenance of a religious institution or for the performance of a charity or service connected therewith or of any other religious charity. If the land in such iruvaram minor inam had been transferred by way of sale, the provisions of Clause (1) sub Section (2) would apply and in other cases Clause 2 would apply.
There is no scope for enquiry by the settlement officer with reference to the rights of a person inoccupation vis-a-vis the lands covered by sub- section (2) of Section 8 as on date of the notification. Nor is there any provision for deciding any dispute between two rival claimants who claim to be the inamdars or two rival claimants, who claim to be lawfully entitled to Kudivaram on the date of notification....
21..... If a civil Courts holds that the person to whom patta is granted under the Act is not https://www.mhc.tn.gov.in/judis 25/28 S.A.Nos.769/1990 and 1147/1992 entitled to the land, the revenue authorities have to take note of the same and amend the registers accordingly. It is only the person who succeeds before the civil Court who will be entitled to get patta from the Government. The various provisions in the Act, which are consequential to the grant of patta under the Act will also apply to such cases.”
32. With regard to the similar arguments advanced before the Full Bench in the case of Srinivasan and 6 others reported in 1998 (1) CTC 630, His Lordship Justice D.Raju authorising the judgment of the Full Bench held that, “14. ... the provisions relating to abolition and vesting of the properties do not have the effect of arbitrating and destroying such pre-existing rights, if any,...” “15. Further, the mere fact that the orders passed or decisions rendered under these Acts were given finality for the purposes of those Acts or that the issues, which they are obliged or required to be decided, when so decided are ordained to bind the parties to the proceedings or their privies and successors-in-interest applying the principles of res judicata, does not have the effect of ousting the jurisdiction of the civil Court once and for all. It is by now well settled that even in cases where finality is accorded to any decision or order, there are certain well settled exceptions and proved and existence of such exceptional factors, the civil Court is entitled https://www.mhc.tn.gov.in/judis 26/28 S.A.Nos.769/1990 and 1147/1992 to nullify any or all such decisions.” ...
“18. ...For all the reasons stated above, we answer the question referred to the Full Bench in the negative by holding that the jurisdiction of the Civil Court in entertaining a suit for declaration and injunction is not barred by reason of grant of patta under the provisions of the Tamil Nadu Act 30 of 1963...”
33. Therefore, this Court finds that there is no substantial question of law involved in the second appeals.
34. In the result, the second appeals are dismissed. No costs.
18.02.2022 Index : Yes / No Internet : Yes RR To
1.The District Judge, Erode
2.The Principal Subordinate Judge, Erode.
3.The Section Officer, V.R.Section, High Court, Madras.
J.NISHA BANU, J.
https://www.mhc.tn.gov.in/judis 27/28 S.A.Nos.769/1990 and 1147/1992 RR Judgment made in S.A.Nos.769 of 1990 and 1147 of 1992 18.02.2022 https://www.mhc.tn.gov.in/judis 28/28