Madras High Court
Society Of St. Joseph'S College, By Its ... vs A. Doraisami (Died) And Nine Others on 30 July, 1998
Equivalent citations: 1998(2)CTC196, (1998)IIIMLJ349
ORDER
1. The defendant who succeeded before the trial court and suffered decree before the lower appellate court has filed the above second appeal.
2. The respondents 1 and 2 plaintiffs claiming that they are having Kudiwaram rights in the suit properties, which are their minor inam lands, filed the suit for declaration and for recovery of possession and for mesne profits, in O.S. No.961 of 1980, on the file of the learned Sub-Judge, Tiruchirapalli. The said suit was resisted by the appellant/defendant stating that the plaintiffs are not entitled to the relief sought for as the same has already been decided by the statutory authorities, which has become final. The Trial Court found that the plaintiffs were having Kudiwaram rights and they were in possession of the suit properties through their lessees and entitled to get kudiwaram rights in the suit lands. But, in view of the orders passed by the statutory authorities under Exs.A-30 and B-l, the Trial Court held that the plaintiffs are not entitled for the relief sought for. Aggrieved against the same, the plaintiffs filed appeal in A.S. No.151 of 1983 on the file of the learned I Additional District Judge, Tiruchirapalli. In the said appeal, the lower appellate court found that the civil court has got jurisdiction to entertain the suit and the plaintiffs would become owners of the lands in question in view of the abolition of melwaram rights as per the Tamil Nadu Act 30 of 1963 and so they are entitled for the declaration as prayed for, on the basis of the finding that the defendant trespassed into the suit land after issue of patta to him in 1971. The lower appellate found that the plaintiffs are entitled for recovery of possession and also for mesne profits. Aggrieved against the same, the defendant has filed the present second appeal.
3. To appreciate the rival submissions made by the counsel on both sides, it is necessary to refer to certain provisions under the Act 30 of 1968 and the proceedings taken before the statutory authorities under the provisions of the said Act, with respect to the properties in question.
4. Inams were granted by sovereigns for religious and charitable purposes. Inam in some cases comprised of right to collect the assessment in a particular village, and the same is termed as an Inam Estate. In some cases it comprised of land free of assessment which is called Iruvarm Inam Lands. Inam which comprised of Iruvaram lands, which do not fall in the category of Inam Estates are called Minor Inams. Such minor Inams were alienated indiscriminately by the Inamdars and the purpose of the grant was not achieved. There were difficulties in resuming the Inam by the Government on account of long possession by the alienees and the rights following from such long possession. Hence the Legislature thought fit to recognise the possessory right acquired and to impose a ryotwari assessment on such lands. Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act 30 of 1963 was enacted not only for the purpose of abolishing the Inam tenure and to convert the same into ryotwari tenure. The result is the assessment is levied on the lands and the right vested in the person in possession is recognised. The rights pf a ryot who is in enjoyment of a minor Inam land, who is lawfully entitled to the Kudiwaram right and who satisfied the conditions laid down under the Act, are recognised and a ryotwari patta is given to him under the provisions of the said Act.
5. Section 8(1) of the said Act deals with the grant of ryotwari patta which reads as follows:-
"Grant of ryotwari pattas:- (1) Subject to the provisions of sub-section (2), every person who is lawfully entitled to the Kudiwaram in an inam land immediately before the appointed day whether such person is an inamdar or not shall, with effect on and from the appointed day, be entitled to ryotwari patta in respect of that land".
From the abovesaid provision, a person who is entitled to get kudiwaram in the inam land, shall be entitled to ryotwari patta in respect of that land. Section 11 of the Act deals with the procedure for determination of lands in respect of which any person is entitled to ryotwari patta. If any person is aggrieved by the order of the Assistant Settlement Officer, an appeal is provided under section 11 (3) of the said Act. Further appeal to the High Court (Special Appellate Tribunal) is provided under Section 30 of the said Act. To give a finality to the proceedings under the Act the Legislature has thought it fit to provide Section 43 of the said Act which reads as follows:-
"Res judicata:- (1) The decision of a Tribunal or the Special Appellate Tribunal in any proceedings under this Act on any matter falling within its jurisdiction shall be binding on the parties thereto and persons claiming under them in any suit or proceeding in a Civil Court, in so far as such matter is in issue between the parties or persons aforesaid in such suit or proceedings.
(2) The decision of a Civil Court (not being the court of a District Munsif or a Court of Small Causes) on any matter falling within its jurisdiction shall be binding on the parties thereto and persons claiming under them in any proceeding under this Act before a Tribunal or the Special Appellate Tribunal in so far as such matter is in issue between the parties or persons aforesaid in such proceeding".
6. In the present case the properties in question are unenfranchised devadayam minor inam confirmed in T.D. No.1181. The Settlement Tahsildar-II, Tiruchirapalli took suo motu proceedings to issue patta as contemplated under section 11 of the said Act. In the said proceedings, it is stated that notices were issued to the concerned persons and publication in the village in the manner prescribed under the rule was made. In the said proceedings the appellant/defendant was granted patta with respect to T.S. No.8/1, 9 and 11. The first respondent/first plaintiff was given patta with respect to T.S. No.7. Aggrieved against this order, the plaintiffs along with one M.V. Sankaran filed appeal in C.M.A. No.433 of 1971. In the said appeal, they challenged the order of the Settlement Tahsildar with respect to Survey Nos.8/1, 9 and 11 at Thennur village which are the suit properties. The appellant/defendant has been impleaded as respondent in the said appeal. They filed an application to receive additional documents on which basis they claimed patta. Their claim is on the basis of some sale certificate dated 22.3.1944 and they claimed title over the said properties. But the Tribunal in the order dated 6.9.1997 found that the respondents herein and another person failed to correlate the lands in the survey numbers which was disputed there in with that of the lands bearing survey Nos.8/1, 9 and 11, and, the Tribunal rejected the case of the respondents. They further raised an averment that no proper notice was served on the basis that they are occupants of the said land. The Tribunal found that the respondents have not proved actual possession and the Act does not contemplate any notice to such persons. Ultimately the Tribunal rejected the appeal. It is not in dispute that the said order has become final.
7. On the basis of the abovesaid facts and the provisions of law, Mr. S. Gopalarathnam, learned Senior Counsel appearing for the appellant has submitted that the courts below has not properly appreciated the rights of the parties on the basis of the said order. According to him, the rights of the parties have already been settled under Ex. B1 which binds on both the parties, and it cannot be reagitated in the civil court. The learned senior counsel has further submitted that though the civil court has jurisdiction to decide the dispute regarding the title to the properties, the same can be decided only subject to the provisions of the code of Civil Procedure including section 11 of the Code. The learned Senior Counsel in support of his submission has relied on paragraph 15 of the Full Bench decision of this Court in Srinivasan and 6 others v. Sri Madhyarjuneswaraswami, Pattavaithalai, Thiruchirapalli Dist., .
8. The learned senior counsel has further relied on the decision in Saraswathi v. Muthukumarasamy (died) and others, 1989 T.L.N.J. 303, wherein, Nainar Sundaram, J., as His Lordship then was, has held that a decision of the Revenue Court on the issues raised, which is within its competence will certainly operate as res judicata in view of Explanation VIII to section 11 of the C.P.C.
9. Similar view has been taken by S.S. Subramani, J., in Suriya Narayana Iyer v. Palanichamy, 1997 (1) M.L.J. 95, which reads as follows: -
"If the matter is already decided, even the Record Officer or the authorities under the Act cannot again re: determine the issue on the principal of res judicata. The principles of res judicata applies not only to civil court but also to all forums the decisions of which will affect the rights of parties. Once the status of a person, whether he be a cultivating tenant or not, is already determined by the record officer, it cannot be reagitated before the authority and the exclusion of jurisdiction applies only to those cases".
10. The issue before the Full Bench in the decision Srinivasan and 6 others v. Sri Madhyarjuneswaraswami, Pattavaithalai, Thiruchirapalli Dist., , was to decide as to whether the jurisdiction of the civil court to entertain the suit for declaration of title and injunction is barred by reason of grant of patta under the Tamil Nadu Act 30 of 1963. The Full Bench after considering the various decisions of the Apex Court and this court ultimately held that the jurisdiction of the civil court to entertain the suit for declaration of title and injunction is not barred by reason of the grant of patta under the provisions of the Tamil Nadu Act 30 of 1963. Having held so, the Full Bench has also dealt with the scope of section 11 of the C.P.C. paragraph 15 of the said decision, reads as follows:-
"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 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 provided the existence of such exceptional factors, the Civil Court is entitled to nullify any or all such decisions. Similarly, even in cases where the principles of res judicata are rendered applicable, the jurisdiction of the competent Civil Court to go into die question and find out whether the necessary ingredients to apply the principles of res judicata exist in a given case or not cannot be denied to the Civil Court and from the mere fact of according finality to the orders or decisions rendered under the Act of the application of the principles of res judicata, a total or complete bar or ouster of the jurisdiction of the Civil Courts for all and any purpose cannot be automatically inferred or implied. Before a plea of res judicata can be given effect to, it must be sufficiently pleaded and established that the litigating parties must be the same, that the subject matter of the suit and the other proceedings also are identical, that the questions arising in the suit and the other proceedings were directly and substantially in issue and the same was finally decided and that too by an authority or court of competent jurisdiction."
In view of the abovesaid decisions cited by the learned Senior Counsel appearing for the appellant, we have to appreciate whether the proceedings before the Tribunal marked as Exs.A-30 and B-l would act as res judicata against the plaintiffs/respondents in the civil suit, in view of section 43 of the said Act and the Explanation VIII to section 11 of the C.P.C. To appreciate the same, we have to appreciate the scope of the proceedings that have to be taken under section 11 of the Act 30 of 1963.
11. Even in Dhulabhai v. State of M.P., A.I.R. 1978 S.C. 78, the Apex Court has held that the said Act is intended to serve the revenue purposes of the Government, by way of securing to the government its sovereign right to collect all the revenues from all the lands and to facilitate the recovery thereof by the Government and in that process, if necessary, to deal with claims of occupants of lands, nature of the lands, etc., only incidentally in a summary manner and that too identifying and registering persons in the revenue records from whom such recovery of revenue is to be made. It is also held that any decision impliedly rendered on the aspect of nature or character of the land on that occasion will have to be regarded as incidental to and merely for the purpose of passing the order of granting or refusing to grant the patta and for no other purposes.
12. The Supreme Court in State of Tamil Nadu v. Ramalinga Swamigal Madam, while confirming the decision of the Division Bench of this Court reported in State of Madras v. Ramalinga Swamigal Madam, 1969 (2) M.L.J. 281 has construed the provisions of Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act 1948 which are similar to the provisions of the Minor Inams Act and held as follows:-
"It will be seen that elaborate provisions have been made in the enactment to carry out the main objective and other purposes of the Act and Sections 4 to 8 deal with constituting authorities like Tribunals and Board of Revenue and appointing various officers such as a Director of Settlement, Settlement Officers and Managers of Estates etc. to Carry out functions and duties assigned to them under the Act. It will be pertinent to observe that in between the provisions dealing with grant of Ryotwari patta to a ryot (section 11) and the grant thereof to a landholder (sections 12 to 15) there is a difference of vital significance; whereas in the case of an application for a Ryotwari patta by a landholder under section 12, 13 or 14 section 15 in terms enjoins a duty upon the Settlement Officer to examine the nature and character of the land and history thereof and then decide whether the claim of the landholder should be allowed or not, in the case of an application for a Ryotwari patta by a ryoti under section 11 there is no similar express provision for any inquiry into the nature or character of the land before granting or refusing to grant such patta to the applicant. Even if section 11 is read with the proviso to clause (d) of section 3, whereunder some inquiry is contemplated before granting a Ryotwari patta to a ryot there is no provision directing an inquiry for the ascertainment of the character of the land, namely, whether it is Ryoti land or communal land and the Settlement Officer's decision on this aspect will be incidental to and impliedly rendered only for the purpose of granting or refusing to grant the Ryotwan patta. There is also this further difference that the Settlement Officer's decision on the nature or character of the land under section 15 is subject to a regular appeal to the Tribunal under sub-section (2) thereof while the Settlement Officer's decision to grant or refuse to grant a patta to a ryot under section 11 is subject to be revised by the Director of Settlement under section 5 (2) as also by the Board of Revenue under section 7 (c) and the relevant Rules in that behalf and the decision of the Director of Settlement in revision is further revisable by the Board of Revenue under Section 7 (d) of the Act. Then comes section 64-C which accords finality to the orders passed by the Government or other authorities under the Act which we have earlier quoted in extenso."
13. The Division Bench of this Court in Ramanujam Kavirayar, T.K. v. Sri La. Sri Sivaprakasa Pandara Sannathi Avargal, 1998 (2) L.W. 513 while deciding with a case arising under the Minor Inams Act, has held as follows:-
"There is no scope for enquiry by the Settlement Officer with reference to the rights of a person in occupation vis-a-vis the lands covered by sub-section (2) of section 8 as on the 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 the notification. In so far as the lands covered by section 8 (2) are concerned, the authorities under the Act are only to apply the formula prescribed under the sub-section and issue ryotwari patta. It is not possible to accept the contention of Mr. Kumar that all the rights of persons in occupation of minor inam lands as on the date of the notification stood wiped out and the legislature intended only to create fresh rights. If that is so, the language of section 8 (1) of the Minor Inam Act would be different and the proviso to section 3 (d) would be absent. When a specific question was put to the learned counsel for the respondents whether there is provision in the Act for deciding disputes inter se between two persons claiming as inamdars of two persons claiming as kudivaramdars, the learned counsel could not answer the same in the affirmative. There is no section in the Minor Inams Act similar to section 56 of the Andhra Pradesh Estates Abolition Act. According to Mr. Kumar, this case is one between an inamdaf on the one hand and a person who claims to be a kudivaramdar on the other and, therefore, the decision of the authorities under the Act will be final and conclusive. The machinery provided under the Act for deciding the claims for ryotwari patta is a common one. There is no separate, machinery for deciding the claims under section 8 (1) of the Act and a different machinery for deciding claims under section 8 (2). Once it is found that a dispute between two persons claiming as rival kudivaramdars cannot be finally decided by the authorities under the Act, it has to follow that any decision of such authorities cannot conclude the matter and exclude the jurisdiction of the Civil Court. It is not possible to hold that while a decision of a claim under section 8 (2) of the Act will exclude the jurisdiction of the Civil Court, a decision of a claim under section 8 (1) of the Act will not have that effect.
According to Mr. Kumar, several sections of the Act relating to determination and payment of compensation would become otiose if the patta issued under the Act is to be construed as a mere bill enabling the Government to collect kist or tax from the pattadar. Reference is also made to section 50 of the Minor Inams Act wherein the Authorised Officer appointed under Madras Land Reforms (Fixation of Ceiling of Land) Act of 1961 shall exclude minor inam land while fixing the ceiling area of any person until the grant of ryotwari patta under the Minor Inams Act. Sub-section (2) of section 50 provides for calculation and recalculation of the ceiling area of any person based upon the grant of ryotwari patta under the Minor Inams Act. I do not find any substance in this argument. If a Civil Court holds that the person to whom patta is granted under the Act is not 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".
14. The Apex Court in R. Manicka Naicker v. E. Elumalai Naicker, , after considering the earlier decisions rendered in Ramalinga Swamigal Madam's case, , has held as follows:-
"It is also not possible to accept the contention of the appellant that jurisdiction of the civil court to determine title to the said land has been ousted by the said Act. Section 43 provides that the decision of a Tribunal or the Special Appellate Tribunal in any proceeding under the said Act shall be binding on the parties in so far as such matter is in issue between the parties in a suit or proceeding. The decision of a Tribunal, or the Special Appellate Tribunal is in respect of the grant of Ryotwari patta. It is only in respect of matters which are covered by the said Act that the decision of the Tribunal or the Special Appellate Tribunal is binding on the parties. Obviously, matters which are not the subject-matter of decision before such a Tribunal, cannot be considered as final or binding between the parties. Sub-section (2) of Section 43 expressly provides that the decision of the Civil Court (not being the court of a District Munsif or a Court of Small Causes) on any matter falling within its jurisdiction shall be binding on the parties thereto in any proceedings before a Tribunal under the said Act. Therefore, there is no question of ouster of the jurisdiction of the civil court in respect of matters falling within its jurisdiction and which are outside the purview of the said Act. Section 46 also provides for finality only in respect of matters which are required to be determined by it for the purposes of the said Act. The jurisdiction of the civil court, therefore, to determine title to the lands in question or to determine whether the lessor has a right to evict the lessee from the lands in question is not ousted in any manner by the said Act.
In the case of State of T.N. v. Ramalinga Swamigal Mada, , this court has construed the provisions of Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 which are similar to the provisions of the said Act. This Court said that the civil court's jurisdiction to adjudicate on the real nature of the land is not ousted by reason of the Settlement Officer's decision to grant or refuse to grant a patta. Construing the provisions of Section 64-C of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 which are similar to section 46 of the present Act, this court held that the finality to the orders passed by the authorities in respect of the matters to be determined by them under the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 is 'for the purposes of this Act' and not generally, nor for any other purpose. The main object and purpose of the Act is to abolish all the estates of the intermediaries like zamindars, inamdars, jagirdars, etc. and to convert all land-holdings in such estates into Ryotwari settlements-which operation in revenue parlance, means conversion of alienated lands into non-alienated lands to deprive the intermediaries of their right to collect all the revenues in respect of such lands and vesting the same back in the Government. The enactment and its several provisions are thus intended to serve the revenue purpose of the Government by way of securing to the Government its sovereign right to collect all the revenues from all the lands and to facilitate the recovery thereof by the Government, and in that process, if necessary, to deal with the claims of occupants of lands, nature of the lands etc. only incidentally in a summary manner and that too for identifying and registering persons in the revenue records from whom such recovery of revenue is to be made. The court further observed that even where the statute has given finality to the orders of the Special Tribunal, the civil court's jurisdiction can be regarded as having been excluded if there is adequate remedy to do what the civil court would normally do in the suit. We need not, however, examine this aspect at any length because of the nature of the grant which has been made in the present case which expressly preserves the rights of the respondent in respect of the land."
15. D. Raju, J., as His Lordship then was, who has spoken for the Full Bench in the decision reported in Srinivasan and 6 others v. Sri Madhyarjuneswaraswami, Pattavaithalai, Thiruchirapalli Dist., after dealing with various decisions of the Apex Court and this Court has held as follows:-
"A careful analysis of the scheme underlying these Abolition laws would go to show that the vesting on abolition under everyone of these legislation is subject to the pre-existing rights of the occupants, except in respect of what are known as public or communal properties, meant for common use and the grant of patta has been always considered and held to be in recognition of their pre-existing rights. The provisions relating to abolition and vesting of the properties do not have the effect of obliterating or destroying such pre-existing rights, if any, except in respect of public or communal properties and the rights which inhere are the basic and fundamental rights which entitle a person to preferentially get patta under these legislations, and the same could not be equated to the grant of patta by way of assignment under the Revenue Standing Orders or under rules of assignment outside the scope of the statutory enactments. Similarly, a meticulous analysis of the scheme underlying the provisions of the Act dealing with the nature of rights dealt with by the various authorities, the manner in which such authorities adjudicate such rights and the consequences of such adjudication, disclose that they do not mean and even intend to be a substitute or alternate mode of resolution of the ordinary civil right of a citizen or for that matter persons asserting competing claims, in their attempt to project a claim for patta. Consequently, in our view, the ratio of the decisions of the Apex Court reported in State of Tamil Nadu v. Ramalinga Swamigal Madam, , R. Manicka Naicker v. E. Elumalai Naicker, and Sayyed Ali v. A.P. Wakf Board, Hyderabad, and that of a Division Bench of this Court in 1988 (2) L.W. 513 and of a learned single Judge of this Court in Samsuddin Rowther and another v. Avvammal and 2 others, 1992 (1) L.W. 207 would squarely apply and govern the case and consequently, it has to be necessarily held that the jurisdiction of the civil Courts cannot be held to have been completely ousted or barred at any rate in respect of adjudication of claims of title and questions or issues which are not obliged or required to be adjudicated for the purposes of enforcement of these laws which have, as their object and aim, to implement ryotwari settlement in the areas governed by them."
16. The Apex Court in Sayyed Ali v. A.P. Wakf Board, Hyderabad, , while dealing with the scope of Andhra Pradesh (Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act 1956 has held that if a decision of a court or a tribunal is without jurisdiction, such a decision or finding cannot operate as res judicata in any subsequent proceedings.
17. In the light of the decisions cited supra, it can be seen that the following are the scope of the proceedings taken under the said Act:- (1) The proceedings taken under the said Act is only incidental and in a summary manner merely for the purpose of passing the orders granting or refusing to grant patta; (2) There is no provision for deciding any dispute between two persons claiming rival kudiwaramdars and so any order deciding the said rival claim cannot be considered as a final one and as the same has been passed within the jurisdiction of the authorities; (3) If the tribunal is not having jurisdiction to decide claim the said decision of findings cannot operate as res judicata.
18. In the light of the above discussions, we have to appreciate whether the Exs.A-30 and B-l would bar the plaintiffs/respondents in filing the suit and the jurisdiction of the civil court is ousted so as to consider the title of the parties with respect to the suit properties, independently, notwithstanding the orders in Exs.A-30 and B-l.
19. Section 11 of the Code of Civil Procedure would apply when the issue involved had directly and substantially been decided in the earlier proceedings. If, by any order, any matter in issue had been directly and explicitly decided, the said decision operates as res judicata and bars the trial of an identical issue in a subsequent proceedings between the same parties. The discussions made earlier will clearly establish that the proceedings under Exs.A-30 and B-l were not directly and substantially in issue and they have not been finally decided with respect to the rival claims of the parties on their title to the suit properties and so it cannot be said that those proceedings will operate as res judicata. In the decisions cited by the learned Senior Counsel appearing for the appellant, namely, in Saraswathi v. Muthukumarasamy (died) and others, 1989 T.L.N.J. 303 and Narayana Iyer v. Palanichamy, 1997 (1) M.L.J. 95, the learned Judges have come to the conclusion that the proceedings of the Revenue Court would operate as res judicata. But, the abovesaid decisions of the Apex Court and the Full Bench decision of this Court were not brought to the notice of the learned Judges and so, I have taken different view, on the basis of the decisions of the Apex Court and the Full Bench of this Court cited supra.
20. For the foregoing reasons, the lower appellate court is correct in entertaining the suit and decided the title of the parties independently on the basis of the oral and documentary evidence available on record. Since the learned Senior Counsel appearing for the appellant did not argue on merits regarding the correctness of the factual findings, I have not dealt with the same.
21. For the reasons stated above, the judgment and decree of the lower appellate court are confirmed, and the Second Appeal is dismissed. No costs.