Madras High Court
G.Ramanujam vs State Of Tamilnadu on 21 December, 2020
Author: N.Seshasayee
Bench: N.Seshasayee
SA(MD)No.307 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 30.09.2020
Pronounced on : 21.12.2020
CORAM : JUSTICE N.SESHASAYEE
SA(MD)No.307 of 2020
G.Ramanujam ...Appellant/Appellant/Plaintiff
Vs.
1.State of Tamilnadu,
Rep. By its District Collector,
Tuticorin.
2.The District Revenue Officer,
Tuticorin.
3.The Revenue Divisional Officer,
Revenue Divisional Office,
Kovilpatti,
Tuticorin.
4.The Tahsildar,
Tahsildar Office,
Kovilpatti,
Tuticorin. ...Respondents/Respondents/Defendants
PRAYER:- Second Appeal filed under Section 100 of Civil Procedure
Code against the Judgment and Decree dated 24.07.2019 passed in A.S.No.
10 of 2015 on the file of the Subordinate Judge, Kovilpatti, confirming the
Judgment and Decree dated 11.04.2014 passed in O.S.No.70 of 2013 on the
file of the District Munsif Court, Kovilpatti.
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SA(MD)No.307 of 2020
For Appellant : Mr.V.Meenakshi Sundaram
For Respondents : Mr.J.Gunaseelan Muthiah,
Additional Government Pleader
JUDGMENT
The plaintiff in O.S.No.70 of 2013 on the file of District Munsiff Court, Kovilpatti, who having lost his suit successively, first before the trial Court and then before the first appellate court in A.S.No.10 of 2015, has approached this Court in this Second Appeal. Parties would be referred to by their respective rank before the trial court.
Pleadings
2. The nature of the suit and the manner in which the Courts below have approached it, dispense with the need for an elaborate facts-narration. The plaintiff claims title to two items of suit properties based on a settlement deed dated 15.09.1943. They are as follows:
Item No. Survey Number Extent 1 S.No.71/1A – 46 ct 1.10 a out of 2.52 a S.No.71/1B1 – 50 ct S.No.71/1B2A – 14 ct 2 S.No.71/3B1 – 14 ct 50 ct out of 1.71 a S.No.71/3A2C – 28 ct S.No.71/3A2B – 8 ct http://www.judis.nic.in2/22 SA(MD)No.307 of 2020
He claims that his title to these properties has been declared in O.S.No.114 of 1995 on the file of District Munsiff Court, Kovilpatti. Be that as it may, the revenue officials had sub-divided his properties with no notice to him, and interfered with his title to these properties. Hence, the plaintiff moved this Court in W.P.No.32020 of 2012 in which this Court, Vide its order dated 11.11.2012, had directed the authorities to consider the representation of the plaintiff intended for the said purpose. Based on that, on 03.04.2012, the Revenue Divisional Officer, Kovilpatti (the third defendant) called for a report from the Tahsildhar, Kovilpatti (the fourth defendant), to which the latter has responded with his report. According to this report, the plaintiff’s properties have been sub-divided without an enquiry. In spite of this report, the third defendant had confirmed the earlier sub-division made. Therefore, after issuing a notice under Section 80 CPC, the suit is laid. 2.2 The principal prayer which the plaintiff has sought is for a declaration that the revenue sub-division of the aforesaid properties in the plaint without issuing notice to him is null and void.
3. There are four defendants to the suit. The first defendant is the State of http://www.judis.nic.in3/22 SA(MD)No.307 of 2020 Tamil Nadu and others are its revenue officials . However, none among the defendants chose to defend the allegation of the plaintiff that he was not heard before his properties were sub-divided.
Approach of the trial court and the first appellate court:
4. Invoking Sec.14 of the Tamil Nadu Patta Pass Book Act, 1983, (hereinafter would be referred to as the Act) both the trial court as well as the first appellate court have non-suited the plaintiff. This provision bars civil suit as “against the Government or any Officer of the Government in respect of a claim to have a entry made in the Patta Pass Book that is maintained under this Act or to have any entry omitted or amended”. This decree is now under challenge in this case.
The Second Appeal
5. The second appeal is admitted for considering the following substantial questions of law:
“1.Whether the Courts below are correct in dismissing the suit for declaration to declare the sub-divisions by the Respondents as null and void under chapter VI of the specific Relief Act by quoting provision of Sec.14 of Tamilnadu Patta Pass Book Act?
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2.When the Title of the plaintiff to the suit property was already decided in O.S.114/95 and the present suit for declaratory reliefs, to declare the sub-divisions of the suit property by the Respondents herein are null & void, whether the Courts below are correct in dismissing the same on Jurisdiction without deciding the same on merits?” The Prelude:
6. Heard the learned counsel appearing for either side. The solitary question involved in this case revolves around the justifiability of applying Sec.14 of the Act to non-suit the plaintiff. It may have to be recalled that while the plaintiff’s prayer relates to the unilateral revenue sub-division of his properties without notice to him, Sec.14 of the Act on its face only bars a civil suit insofar as it relates to the correctness of the entries in the patta passbook.
7.1 The Patta Passbook Act, 1983, had a belated birth in 1986. But revenue sub-division and issuing of patta existed even prior to it. It is evident that both the trial court and the first appellate court appeared to have short circuited the issue, and possibly may have misconceived the inter- connection between a revenue sub-division and the entries in the register of http://www.judis.nic.in5/22 SA(MD)No.307 of 2020 patta passbook. Necessity has therefore, arisen to allay the misconception which is seen to have distracted the Courts below in opting for a ready-to- apply formula in Sec.14 of the Act, to resolve the issue before them. 7.2 This Court therefore, may have to separate the multiple layers that have rolled up to constitute the issue now presented before it. Accordingly, this Court may have to now deal with, (a) the revenue sub-division of the survey field; (b) entries in the patta (or the record of rights), more in the context of the Act; (c) inter-relation between the revenue sub-division and the entries in the patta; and (d) bar of suit under Sec.14 of the Act.
(a) Revenue Sub-division
8.1 A revenue sub-division of a property in a survey field may be explained as metes and bounds division of a survey field as matching the preexisting title of the parties over it. When the title to a survey field gets fragmented, a revenue sub-division may become necessary. It may be broadly stated that a need for revenue sub-division of a survey field arises when there is disintegration of unity of title of a property comprised in a survey field, either by devolution of title by succession, or by any alienation inter vivos such as a sale, or a gift as per the provisions of the Transfer of Property Act, http://www.judis.nic.in6/22 SA(MD)No.307 of 2020 or by any acquisition of property under any of the expropriation statutes. Another situation where revenue sub-division is normally resorted to is when the Government assigns its land to a few, which lead to disintegration of unity of its title to a property comprised in a survey field. Where however, the entire property in a survey field has devolved on one person wholly, either by succession or inheritance, or by transfer inter vivovs, or is acquired or assigned by the Government, there may not be a need for a revenue sub-division at the instance of the parties. This however, does not preclude the Government from sub-dividing a property in a survey-field for its fiscal purposes, such as grading the property for fixing the tax payable on it.
8.2 There is no compulsion for any group of persons having joint right over the entire property in a survey field such as the co-sharers (where each will have joint ownership over every grain of sand) or co-owners (who may have right to distinct share or extent), or those who have right over a distinct portion of the same survey field to mandatorily seek for revenue sub- division. In all such instances, the Tahsildar, would issue a joint-patta, and this is governed by BSO 27. However, in terms of BSO 31 there must be a http://www.judis.nic.in7/22 SA(MD)No.307 of 2020 constant updating of the register of holdings showing the names of persons who are the real owners of the properties. Indeed in Ramesh Vs Union of India & Others [W.A.284 of 202, dated 06-10-2020], the First Bench of this Court (speaking through A.P.Sahi CJ) observed, that the amendment of entries in the register of patta passbook must be an automatic consequence of a registration of a deed transferring the title. 9.1 Where however, any person who has acquired a title to part only of the property in a certain survey field, requires to have a metes and bounds division of his plot, then he might have to apply to the Tahsildar. The Tahsildar in turn would cause the surveyor to propose the subdivision based on the title of the applicant. The survey officer would then go through the process of sub-dividing a survey field as per the provisions of the Tamil Nadu Survey and Boundaries Act, 1923, and Tamil Nadu Chain Survey Land Records Manual. Once the surveyor completes his job, he would make a proposal to the Tahsildar, who when satisfied with its correctness, accords his acceptance to it. And, based on this proceedings, the revenue records, including the Village Permanent Record (commonly known as the ‘A’ Register) would be mutated.
http://www.judis.nic.in8/22 SA(MD)No.307 of 2020 9.2 It may now be stated that a revenue sub-division of a survey field takes place before the revenue records are mutated, and it is merely a step in the process towards mutation of revenue records.
10. This Act had its advent only in 1983, (Act IV of 1986). It received the Presidential assent on 24-01-1986, and came into operation on 30-01-1986 the date on which it was gazetted. The preamble to the Act states that it was intended to “ issue patta passbook to holders of agricultural lands”. The Act does not have instant and universal application across the State, but is only limited to those places where its application was notified in terms of Sec.1(3) of the Act, which implies that the Act, and in the context of the present case, Sec.14 thereof, cannot have an automatic application unless the place where the property under litigation is, falls within the notified area.
11.1 Turning to the operational scheme of the Patta Passbook Act, a few provisions of the Act may be now extracted:
http://www.judis.nic.in9/22 SA(MD)No.307 of 2020 Section Provision
3. Issue of patta pass book. - (1) The Tahsildar shall issue a patta pass book to every owner in respect of land owned by him, on an application made by him in this behalf. Any application received under this section shall be acknowledged by the Tahsildar or any other officer authorised by him in this behalf.
(2) A taluk shall be the unit for the issue of patta pass book. (3) (a) As soon as may be after the publication of the notification under subsection (3) of section 1 bringing this section into force in an area and before undertaking the work relating to the issue of the patta pass book, the Tahsildar shall publish a notice in each village in such area informing the public that patta pass book is to be issued under this Act to every owner and such owner shall apply for the issue of patta pass book as provided under this section.
(b) The notice shall contain such further particulars and shall be Sec. 3 published in such manner, as may be prescribed.
(4) The application under sub-section (1) shall be in such form, shall contain such declaration and particulars, and shall be made in such manner and within such time, as may be prescribed. (5) In cases where no application has been made by any owner within the time-limit referred to in sub-section (4) in respect of any land, the Tahsildar shall, based on the entries made in the records available in his office, cause a notice to be served on the owner of the land concerned requiring him to furnish any information or produce any document for his inspection and also to make his representation, if any, in writing for making necessary entries in respect of the land concerned in the Register of Patta Pass Book maintained by him and for the purpose of issuing the patta pass book.
(6) (a) Any owner on whom a notice has been served under sub- section (5) shall be bound to furnish or produce for the inspection of the Tahsildar within such time as may be specified in such notice or within such further time not exceeding thirty days as the Tahsildar may, in his discretion, allow, all such information or documents needed for making necessary entries in the Register of Patta Pass Book in respect of the land concerned or for the purpose of issuing the patta pass book, as may be within his knowledge or in his possession or power.
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(b) Where, any information is furnished or any document is produced in accordance with the notice under sub-section (5), the Tahsildar or any officer authorised by him in this behalf shall give a written acknowledgment thereof to the person furnishing or producing the same and shall endorse on such document a note under his signature stating the fact of its production and the date thereof.
(7) On receipt of the application under sub-section (1) or on the basis of information obtained by the Tahsildar under clause (b) of sub-section (6), the Tahsildar shall follow such procedure as may be prescribed and shall also give a reasonable opportunity to the persons having interest in the land to make their representations either orally or in writing. After considering the claims of the persons having interest in the land, the Tahsildar shall determine as to whom the patta pass book is to be issued and shall issue a patta pass book accordingly to the owner of the land concerned:
Provided that in the case of any owner who has not made an application under sub-section (1) and in respect of whom a notice has been served under subsection (5), no patta pass book shall be issued by the Tahsildar, unless a declaration in the prescribed form is filed by the owner concerned before the Tahsildar:
Provided further that in any case where the Tahsildar is satisfied that any person is not the owner of any land for which a patta pass book is applied for or claimed, he shall, for reasons to be recorded in writing, reject the application or claim, for the issue of a patta pass book in respect of such land.
(8) to (10) ...........
Sec.4 4. Presumption of correctness of entries in the patta pass book. -
The entries in the patta pass book and the certified copy of entries in the patta pass book shall be presumed to be true and correct until the contrary is proved or a new entry is lawfully substituted therefor.
6. Entries in the patta pass book to be prima facie evidence of title. - The entries in the patta book issued by the Tahsildar under section 3 shall be prima facie evidence of title of the person in Sec.6 whose name the patta pass book has been issued to the parcels of land entered in the patta pass book, free of any prior encumbrance, unless otherwise specified therein. http://www.judis.nic.in11/22 SA(MD)No.307 of 2020
7. Acquisition of rights to be reported. - (1) Any person acquiring by succession, survivorship, inheritance, partition, purchase, or otherwise, or by decree or order of a Court or by order of the Government or other authority any right in or over any land as owner shall report in writing his acquisition of such right to the Tahsildar within three months from the date of such acquisition or within such further period, as may be prescribed, and the said officer shall give a written acknowledgment of the receipt of the report to the person making it:
Provided that where the person acquiring the right is a minor or otherwise disqualified, his guardian or other person having charge of his property shall make the report to the Tahsildar:
Provided further that any person acquiring a right by virtue of a Sec.7 registered document shall be exempted from the obligation to report to the Tahsildar.
Explanation. - A person in whose favour a mortgage is discharged or extinguished, acquires a right within the meaning of this section.
(2) On receipt of report under sub-section (1), the Tahsildar shall cause necessary changes to be carried out in the Register of Patta Pass Book maintained by him and shall also cause necessary changes to be carried out in the patta pass book already issued under section 3, or as the case may be, issue a new patta pass book after sub-division, if necessary, within such time and on collection of such fees, as may be prescribed:
Provided that, before causing any such change to be carried out or issuing such new patta pass book, the Tahsildar shall follow the procedure laid down in sub-section (7) of section 3.,
14. Bar of suits. - No suit shall lie against the Government or any officer of the Government in respect of a claim to have an entry made in any patta pass book that is maintained under this Act or to have any such entry omitted or amended:
Provided that if any person is aggrieved as to any right of which he is in possession by an entry made in the patta pass book under Sec.14 this Act, he may institute a suit for a declaration of his rights under Chapter VI of the Specific Relief Act, 1963 (Central Act 47 of 1963); and the entry in the patta pass book shall be amended in accordance with any such declaration http://www.judis.nic.in12/22 SA(MD)No.307 of 2020 11.2 The Scheme of the Act provides for an elaborate procedure for issuing patta passbook. It could be seen that under Sec.3(1) the Tahsildar is enjoined with the authority to issue a patta passbook. Sec.3(5) empowers the Tahsildar to issue it, inter alia, in every case where no application is made for the purpose. It provides that the primary basis for making entries in the register of patta passbook are the records available in the office of the Tahsildar. It then requires the Tahsildar to cause a notice to be served on the owner of the land requiring the latter to make a written representation, if any to the former. Sec.3(6) mandates that on the receipt of the said notice, the owner of the land shall furnish, or produce for the inspection of the Tahsildar all such information and documents required by the official for making necessary entries in the Register of Patta Passbook. Sec.3(7) provides for hearing the owner on his representation.
11.3(a) To reiterate, and it is done with a degree of emphasis, that the entries in the patta are sourced by (i) the existing entries in the records available with the Tahsildar, (ii) any information which the owners of the land might provide through their response to the notice issued under Sec.
3(5); and/or (iii) any information which a Tahsildar may obtain during the hearing of the land-owners as contemplated under Sec.3(7). http://www.judis.nic.in13/22 SA(MD)No.307 of 2020 11.3(b) Another source of information is from the Sub-Registry which registers any document of title to the immovable property, such as a sale deed or a gift deed. Here Sec. 7 of the Act is significant which provides that, “any person acquiring by succession, surviorship, inheritance, partition, purchase or otherwise, or by decree or order of a court, or order of the Government or other authority any right in or over any land as owner shall report in writing of his acquisition such right to the Tahsildar within three months from the date of such acquisition or within such further period”, but subject to the exception that where the document is registered, then there is no need for intimating it. In terms of BSO 31.9, a Registering Authority is required to receive a duly filled up application from the transferee of the property, and to transmit the same to the Tahsildar, on receipt of prescribed charges. This implies that the information about the transfer of title would be sourced to the Tahsildar by the concerned Sub Registry. However, this single window system has not delivered expected results, as the transferee of immovable property still might have to queue up before the Tahsildar, pay the requisite charges again for the very purpose for which he had already paid the charges.
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12. Only when a patta is issued in the manner contemplated, the entries made therein are presumed to be correct under Sec.4 of the Act, and merit consideration as a prima facie document of title under Sec.6.
13. To sum up, for making the entries in the Register of Patta Passbook, the Tahsildar is guided exclusively by the preexisting rights of the owners of the immovable property; in other words a Tahsildar cannot generate a title in a person merely with the entries in the Register of Patta Passbook unless there existed a prior title in that person. The entries on the title which a Tahsildar has in his register is what he enters based on the information he had received, and hence they do not qualify for being considered as a primary source of information on title. It is precisely for this reason the Courts have always held that a patta is not a document of title, but as one that may corroborate a title (with the solitary exception of patta granted on assignment of lands by the Government. See BSO 15). And, it is precisely for this reason Sec.6 also provides that patta is only a prima facie evidence of title, and not as a conclusive evidence of title.
(c) Patta Passbook and Revenue Sub-division
14. Paragraphs 8.1, 8.2, 9.1 and 9.2 above may be revisited. A revenue http://www.judis.nic.in15/22 SA(MD)No.307 of 2020 sub-division, wherever it is undertaken, is but a stage in the process of mutating a land-holder’s name in the revenue record, but it is not the same as making an entry in the patta. Correcting an entry in the revenue record need not be preceded by a revenue sub-division of a survey field, but the contra may not be true; a revenue sub-division of a survey field necessarily leads to correcting the revenue record.
15. As outlined earlier, a revenue sub-division of a survey field is carried out only in terms of the Tamil Nadu Chain Survey Land Records Manual and Tamil Nadu Survey and Boundaries Act. Nowhere in the entire Patta Passbook Act is there any reference to a revenue sub-division of the survey field. Indeed, there is no mandatory requirement for revenue sub-division of a survey field, since the Tahsildar has the power to issue joint-patta in terms of BSO 27.
Patta, Revenue Sub-Division and Title:
16. A revenue sub-division of a survey field takes place normally between the date of reporting of the acquisition of right over the land under Sec.7 of the Act in places where the Patta Passbook Act has application, and the final proceedings ordering correction of entries in the Register of Patta Passbook. http://www.judis.nic.in16/22 SA(MD)No.307 of 2020 In other places it continues to be governed by the Tamil Nadu Survey and Boundaries Act, 1923 and Tamil Nadu Chain Survey Land Revenue Manual and BSO 31. As earlier mentioned in paragraph 9.1 above, once the revenue sub-division is made, and proposals of the survey officer on sub- division by metes and bounds is accepted by the Tahsildar, an order for the consequential corrections of the records, which include the Register of Patta Passbook in places where the Act has application, would be made. It is therefore, evident that neither a revenue official, nor a survey official, while concerning themselves with the sub-division of a survey field has the authority to interfere with the preexisting title of land owners. The ultimate objective of their administrative authority is to identify the person in relation to a certain piece of land for revenue-collection, and no more. They are mere recorders of rights, as the vesting and divesting of right takes place under the substantive law. In Rukkaiah Natchiar Vs P.M.S.Mohamed Aamina Beevi and others [2020-5- LW 455], this Court has had an occasion to examine the authority of the survey officer constituted under the Tamil Nadu Survey and Boundaries Act, 1923, to deal with the vested rights over the lands and held the same in the negative, and the reasons therefor are applicable here.
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17. Be it issuing a patta passbook, or a revenue sub-division of a survey field, one inviolable rule is that the authority concerned shall accord the persons who might be affected by their intended act, a fair hearing. This also brings into focus the applicability of Sec.14 of Act which the courts below have invoked.
18.1 Sec.14 applies only when the entries in the register of holdings/patta are made in strict adherence to the procedure prescribed under the Act. Where any statute, or any Executive Order having the force of law, prescribes a procedure for the exercise of any authority by an official, then the power can be exercised only in the manner so prescribed and no other. See: Taylor Vs Taylor [(1875) 1 Ch D 426], M.P. State Wakf Board Vs Subhan Sha [(2006)10 SCC 696] and R.M.Bhattad Vs State of Maharashtra [(2007)2 SCC 588].
18.2 Where an official ignores the procedure prescribed for the exercise of his authority, or deviates from it to the prejudice of the party concerned, then it cannot be said that he has acted within the scope of his statutory power. Accordingly, an official, who blindfolds himself to the procedure http://www.judis.nic.in18/22 SA(MD)No.307 of 2020 prescribed for the exercise of his power, and roams freely outside the statute for exercising it, is not later permitted to lean on the very statute which he has chosen to ignore for defending his extra statutory actions. The statute protects he who serves it, and saves only those acts which are done in obedience to it. It now follows that a civil court’s jurisdiction to subject an extra statutory actions of an authority to a forensic scrutiny is not barred, even where there is a statutory provision ousting its jurisdiction. And, in all cases where the principles of natural justice are violated, affecting the vested rights of individuals, then the civil court will have jurisdiction as the action complained of has produced civil consequences. See Dhulabhai Vs State of Madhya Pradesh [AIR 1968 SC 78], Rajasthan State Transport Corporation Vs Bal Mukund Bairwa [(2009)4 SCC 299] and State of Tamil Nadu Vs Ramalinga Swamigal Madam [(1985) 4 SCC 10]. The conclusion:
19. Turning to the facts of this case, with the defendants opting not to file a written statement to dispute the allegation of the plaintiff that he was not served with any notice at any time before the proceedings sub-dividing his properties were issued, all that the authorities have done must be held to be void and illegal. After all, the plaintiff cannot be insisted or expected to prove the negative.
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20. Be it the Tamil Nadu Survey and Boundaries Act, or the Patta Passbook Act, both provide for a right of hearing of the party who is likely to be affected by the contemplated actions of the authorities concerned. When this right of hearing is not so granted, it is not only a blatant violation of the principles of natural justice, but also breach of statutory procedure for exercise of authority by the officials concerned. Hence, the same can be challenged in a civil suit, notwithstanding the statutory bar, even if any, in any of these statutes. Consequently, the present suit is maintainable. The substantial question No.1 is thus decided in favour of the plaintiff. So far as the second of the substantial question is concerned, since the suit is not instituted for declaration of plaintiff’s title, the same is not required to be decided.
21. In conclusion, this second appeal is allowed and the Decree passed in A.S.No.10 of 2015 on 24.07.2019 by the Subordinate Court, Kovilpatti is set aside, and the suit in O.S.No.70 of 2013 on the file of District Munsiff Court, Kovilpatti is hereby decreed. No costs.
21.12.2020 Index : Yes/No Internet: Yes/No Tsg-2 http://www.judis.nic.in20/22 SA(MD)No.307 of 2020 To:
1.The Sub Judge Kovilpatti.
2.The District Munsiff Kovilpatti.
3.The Section Officer VR Section High Court of Madras Madurai Bench.
http://www.judis.nic.in21/22 SA(MD)No.307 of 2020 N.SESHASAYEE.J., tsg-2 Pre-delivery Judgment in S.A.(MD) No.307 of 2020 21.12.2020 http://www.judis.nic.in22/22