Madras High Court
Ramalingam vs Government Of Tamil Nadu on 16 April, 2012
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :16.04.2012 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A.No.1597 of 1995 Ramalingam .... Appellant/Respondent/Plaintiff Vs. 1.Government of Tamil Nadu through Collector, Thanjavur. 2.The Commissioner, Keevalur Panchayat Union, Keevalur, Q.M. District. ... Respondents/Appellants/Defendants Appeal filed under Section 100 of Code of Civil Procedure, against the Judgment and Decree dated 30.09.1993 in A.S.No.233 of 1992 on the file of the Learned Additional District Judge, Nagapattinam, reversing the Judgment and Decree dated 18.09.1990 in O.S.No.214 of 1982 on the file of the Learned District Munsif, Nagapattinam. For Appellants : Mrs.Chitra Sampath For Mr.R.Sunil Kumar For Respondents : Mr.Muthiayan Government Advocate J U D G M E N T
The Appellant/Plaintiff has focussed the instant Second Appeal adverting upon the Judgment and Decree dated 30.09.1993 in A.S.No.233 of 1992 passed by the Learned Additional District Judge, Nagapattinam in reversing the Judgment and Decree dated 18.09.1990 in O.S.No.214 of 1982 passed by the Learned District Munsif, Nagapattinam.
2.The Germane Plaint Scenario:
(i)The Appellant/Plaintiff's adopted deceased father Subbiah Mudaliar has been a big landlord at Kurukathi Village in Thiruvarur Taluk. The 9 tanks mentioned in the Plaint schedule have been in enjoyment of the Plaintiff's family for the past 50-60 years. When the Village Panchayat Act of 1958 has come into force all the tanks described as poramboke in Government accounts have been handed over to the Village Panchayat. But concerning village poramboke tanks belonging to private persons, an enquiry has been conducted by the Revenue Officials and the fishing right in the said poramboke tanks belonging to concerned individual, for handing over the same, there has been a provision under the Act. On that basis, the Deputy Collector, Nagapattinam during the year 1963 have conducted an enquiry in respect of 9 tanks mentioned in the Plaint schedule, pertaining to the fishery right and on 27.09.1963 has passed an order.
(ii)As per the Deputy Collector's order, the Plaint 9 tanks fishery right mentioned has been in enjoyment of Plaintiff's adopted deceased father Subbiah and also that he can utilise the revenue derived from fishery right for his own use. In regard to the 9th tank mentioned in the Plaint, the Thiruvasal Tank fishery right has been in enjoyment of Subbiah and the revenue derived from the said tank is used for water charity and for performance of Utsav of Keevalur of Sri Akshyalingaswami Temple Sabsthasthanam, which has been made mention of in the Nagapattinam Deputy Collector's Order. Prior to the year 1958 and also after passing of the order on 27.09.1963 by Nagapattinam Deputy Collector, the 9 tanks mentioned in the Plaint fishery income has been obtained by Plaintiff's adopted father Subbiah and he has been in enjoyment separately.
(iii)Under these circumstances, the deceased Panchayat President of Kurukathi Village Abdul Majid on 18.08.1971 has presented a revision petition before the Nagapattinam Deputy Collector for cancelling the fishery right in respect of suit tanks and to hand over the said tanks to the village panchayat. The former President has enclosed a revision petition's copy along with a letter to Thanjavur District Collector. The District Collector, on receipt of the revision petition, has conducted an enquiry and passed an order on 28.11.1973 and as per the said Collector's order, the Plaint 9 tanks fishery right has been handed over to Kurukathi village panchayat.
(iv)As against the order passed by the District Collector, Thanjavur District dated 28.11.1973, the Appellant/Plaintiff's father has filed a Writ Petition W.P.No.6609 of 1973 and W.M.P.No.10515 of 1973 has been filed praying for the relief of injunction not to interfere with the fishery right revenue to be obtained from the tanks as usual. Till the disposal of Writ Petition, an interim stay has been ordered in respect of the District Collector's Order 28.11.1973 and further, it has been ordered that Subbiah Mudaliar after making payment of Rs.1,000/- through Bank draft in favour of Kurukathi Panchayat President is to enjoy the income of the fishery right from the tanks.
(v)On 09.02.1978 in the aforesaid Writ Petition, an order has been passed by this Court dismissing the Writ Petition but advise the Subbiah Mudaliar to approach the Civil Court for proper relief by filing a suit and to establish his claim to oral and documentary evidence in respect of his fishery right relating to the suit tanks. This Court has granted three months time to the Subbiah Mudaliar to file a suit because of the fact that as per Section 80 of the Civil Procedure Code prior notice will have to be given to the State Government before filing the suit. Till such time, the interim orders passed in the W.M.P. In the main Writ Petition will continue to remain in force as observed by the Hon'ble High Court. But, as directed by this Court, in pursuance of the order passed in the Writ Petition, the Subbiah Mudaliar has not been in a position to file a suit against the Tamil Nadu Governments within three months, because of the reason that the order passed by the Hon'ble High Court in the Writ Petition dated 09.02.1978 has been received by Subbiah Mudaliar only on 03.04.1978.
(vi)An application has been filed before the trial Court praying permission to file the suit without issuance of Section 80 C.P.C. notice to the Government. Moreover, a relief permanent injunction has been sought for restraining the Tamil Nadu Government and the Kurukathi Panchayat President not to interfere Subbiah Mudaliar's fishery right in the tanks and also a relief of Thanjavur District Collector's order dated 28.11.1973 is to be declared as invalid has been sought for. The suit has been numbered as O.S.No.97 of 1978 and during the pendency of the same, Subbiah Mudaliar expired and his wife and the Appellant/ Plaintiff's adopted mother Rajarathinathanni has been added as a heir who continued the suit. The trial Court has taken up the application praying for issuance of dispossession of Section 80(2) C.P.C. notice to the Government and the same has been heard on 19.02.1979 and an application has been dismissed with a direction proper notice will have to be issued to the Government and later to file the suit, the Appellant/Plaintiff's adopted mother Rajarathinathanni issued a notice dated 11.02.1979 to the Tamil Nadu Government and she died on 14.03.1979 before making arrangement to file the suit.
(vii)The deceased Subbiah Mudaliar has two daughters 1.Velambal and 2.Janaki through his first wife. The second wife the Appellant/Plaintiff's adopted mother Rajarathinathanni has no issues, therefore, as per Sastric Usage, the Appellant/Plaintiff has been taken in adoption by Rajarathinathanni. The said adoption supported by the Subbiah's first wife daughters and in respect of the properties a family arrangement through a registered document has been entered into and as per the document recital, the suit tanks fishing right income report will have to be received by the Appellant/Plaintiff and as such, the Appellant/Plaintiff has a right to receive the suit tanks fishing right income, he has also issued Section 80 C.P.C. notice to the Defendants 1 and 2 on 16.03.1980 through his counsel, wherein he has prayed for acceptance of his fishery right in Plaint 9 tanks.
(viii)After receipt of notice, the Thanjavur District Collector has directed the Tiruvarur Tahsildar to conduct a special enquiry and to submit a report. The Tiruvarur Tahsildar along with Deputy Tahsildar has gone to the village and has conducted a personal enquiry in respect of the fishery right in respect of the suit tanks and submitted a report to the Thanjavur District Collector. The Appellant/Plaintiff has furnished a statement before Tiruvarur Tahsildar and also produced evidences and documents to show Subbiah Mudaliar has enjoyed the fishery right in respect of the Plaint tanks for numerous years. But for the Section 80 C.P.C. notice sent by the Appellant/Plaintiff, no reply has been received by him from the District Collector or from the Keevalur Panchayat Union Commissioner who is managing the administration of the Panchayat. Hence, the Appellant/Plaintiff has filed the present suit praying for the relief of declaration that the order dated 28.11.1973 passed by the Thanjavur District Collector in Na.Ka.No.19884/71 K.12 is invalid and also to declare that he has absolute right in the suit tanks fishery rights and also issuance of direction to the 2nd Defendant to hand over his right of enjoyment of fishery right in respect of 9 tanks to the Appellant/Plaintiff and for costs.
3.The Written Statement Pleas of the 2nd Respondent/ 2nd Defendant [Adopted by the 1st Respondent/1st Defendant]:
(i)The 9 tanks mentioned in the Plaint as admitted by the Appellant/Plaintiff have been handed over to the 2nd Defendant. At the time of possession of tanks being handed over to the 2nd Defendant, the fishery right income derived from the said tanks also have been acquired by the Panchayat Union. The Appellant/Plaintiff has no independent right or a trustee right in the suit tanks. After the High Court's order passed in the Writ Petition, the Appellant/Plaintiff's ancestors have failed to take action and as such, the suit filed by the Appellant/Plaintiff is not maintainable.
(ii)The proceedings initiated by the Appellant/Plaintiff's father in respect of the suit tanks have ended against him. Since no prior notice as per Section 80 C.P.C. has been issued by the Appellant/Plaintiff, O.S.No.97 of 1978 has been dismissed. The Appellant/Plaintiff's father has ignored the various orders passed in the said suit. Therefore, as per the said orders neither the Appellant/Plaintiff nor his heirs are entitled to claim the reliefs as prayed for in the suit. Without remitting a sum of Rs.4,000/- as an annual income neither the Appellant/ Plaintiff's father nor the Appellant/Plaintiff has any right to restrain the 2nd Respondent/2nd Defendant from auctioning the fishery right lease in the suit tanks. Further, 12 years have elapsed from the date of order passed by the District Collector as such, the relief prayed for by the Appellant/Plaintiff is no maintainable in law and on facts. The suit has been filed based on false reasons and to establish his imaginary right. The Appellant/Plaintiff is not entitled to claim any right. Hence. The suit is to be dismissed.
4.Before the trial Court in the main suit 1 to 8 issues have been framed. Also, the first issue has been recasted. On behalf of the Appellant/Plaintiff, witnesses P.W.1 and P.W.2 have been examined and Exs.A.1 to A.81 have been marked. On the side of the Respondents/Defendants, no witness has been examined and Exs.B.1 to B.9 have been marked.
5.The trial Court, on a careful analysis and consideration of available materials on record, has held that the Appellant/Plaintiff has fishery right in respect of the suit tanks and granted the relief of declaration to that effect by passing a decree without costs.
6.The Respondents/Defendants being aggrieved against the Judgment and Decree of the trial Court dated 18.09.1990 in O.S.No.214 of 1982 have projected First Appeal A.S.No.233 of 1992 on the file of Learned Sub Judge, Nagapattinam.
7.The First Appellate Court on 30.09.1993 has passed a Judgment holding that the tanks mentioned in Ex.B.9 described in red ink in certain pages, have been handed over to the Panchayat as seen from the evidence and also opined that the Appellant/Plaintiff has not established that he has absolute right in the suit tanks in respect of fishery right. Further, he has not established that he need not remit any income annually and moreover, it has not been established that his ancestors have been in enjoyment of the suit tanks. Therefore, the First Appellate Court has opined that the relief prayed for by the Appellant/Plaintiff that the 2nd Defendant must be directed to hand over possession of his enjoyment in respect of suit tanks to him is not correct and it cannot be said that the order dated 28.11.1973 passed by the Thanjavur District Collector is an invalid one and resultantly, has come to the conclusion that the Appellant/Plaintiff is not entitled to claim the fishery right as prayed for in the Plaint and allowed the Appeal without costs, by dismissing the suit filed by the Appellant/Plaintiff.
8.At the time of admission of the Second Appeal, this Court has framed the following Substantial Question of Law:
"Whether the private customary fishery rights in the tanks specified in the plaint did not become vested with the plaintiff by enjoyment over 30 years unless otherwise enjoyed by the villagers in common and so declared by the Government?"
The Contentions, Discussions and Findings on Substantial Question of Law:
9.The Learned Counsel for the Appellant/Plaintiff submits that the First Appellate Court has failed to take into account the details of several transactions made by the Appellant/Plaintiff and his predecessors asserting title and possession in regard to the fishing right in the tank.
10.The Learned Counsel for the Appellant/Plaintiff contends that the trial Court has found that the documents projected by the Appellant/Plaintiff have been concerned with the lease transactions in respect of the suit tanks and as such, they are very much essential to consider the question whether the Appellant/Plaintiff and his predecessors have asserted right over the properties in regard to the fishing rights.
11.According to the Learned Counsel for the Appellant/Plaintiff, the First Appellate Court has not appreciated the evidentiary value of Exs.A.79 and 80 Settlement Registers of Kurukathi Village as well as the evidence of P.W.2 (V.A.O.) whose evidence is to the effect that there are no other tanks in the village, than the one mentioned in the Plaint and therefore, the Village chit referring to the tanks has been in possession of the Appellant/Plaintiff's predecessors is a clear proof of the fact that the Government has recognised the customary right of the Appellant/Plaintiff.
12.Lastly, the Learned Counsel for the Appellant/Plaintiff projects an argument that the fishery rights over the tanks which vested in a person by means of a long enjoyment, as per custom and usage have not become divested by any of the provisions of the Tamil Nadu Panchayat Act.
13.Per contra, it is the contention of the Learned Government Advocate appearing for the Respondents/Defendants that the First Appellate Court has come to a categorical conclusion that there is no proper record to show that the Appellant/Plaintiff is the heir of deceased Subbiah Mudaliar and further the plea of the Appellant/ Plaintiff that in the suit tanks he has absolute fishery right has not been established and the another plea that annually the Appellant/ Plaintiff need not remit any income and also that the suit tanks which have alleged to be in enjoyment of the Appellant/Plaintiff's ancestors have also not been proved and ultimately A.S.No.233 of 1992 has been dismissed without costs, which need not be interfered with by this Court at this distance point of time.
14.The Learned Counsel for the Appellant/Plaintiff, in support of the contention that the First Appellate Court is not correct in reversing the well considered Judgment of the trial Court in the main suit, submits that if the First Appellate Court's findings are rested on assumptions and not based on evidence and record, this Court can interfere as per Section 100 of C.P.C. and in this regard, relies on the decision of this Court in P.Kamakshi alias Kala Jacob, (2000) 2 MLJ 564 at page 573, wherein in paragraph 37, it is observed and held thus:
"37.In a recent decision of the Honourable Supreme Court reported in Ishwar Das Jain (Dead) through by L.Rs. v. Shohan Lal (Dead), by L.Rs., J.T. (1999) 9 S.C. 305, their Lordships considered the circumstances under which interference is justified. Paragraphs 11 to 13 of the judgment read thus:
"11.There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. This principle has been laid down in a series of judgments of this Court in relation to Sec. 100, C.P.C. after the 1976 amendment. In Dilbagrai Punjabi V. Sharad Chandra, J.T. (1988) 3 S.C. 308: 1988 S.C.C. (Supp.) 710. while dealing with a second appeal of 1978 decided by the Madhya Pradesh High Court on 20.8.1981, L.M. Sharma,J. (as he then was) observed that:
"The court (the first appellate court) is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises as of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. This is the situation in the present case."
In that case, an admission by the defendant-tenant in the reply notice in regard to the plaintiff's as title and the description of the plaintiff as 'owner' of the property signed by the defendant were not considered by the first appellate court while holding that the plaintiff had not proved his title. The High Court interfered with the finding on the ground of non-considered of vital evidence and this Court affirmed the said decision. That was upheld. In Jagdish Singh V. Nathu Singh, (1992) 1 S.C.C. 647, with reference to a second Appeal of 1978 disposed of on 5.4.1991, Venkatachaliah, J. (as he then was) held":
"Where the findings by the court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings."
Again in Sundra Naicka Vadiayar V. Ramasami Ayyar, (1995) 4 S.C.C. (Supp.) 534, it was held that where certain vital documents for deciding the question of possession were ignored such as a compromise an order of the revenue court reliance on oral evidence was unjustified. In yet another case in Mehrunnisa v. Visham Kumari, J.T. (1997) 9 S.C. 616 : (1998) 2 S.C.C. 295, arising out of second appeal of 1988 decided on 15.1.1996, it was held by Venkataswami, J. That a finding arrived at by ignoring the second notice issued by the landlady and without noticing that the suit was not based on earlier notices, was vitiated and the High Court could interfere with such a finding. This was in second appeal of 1988 decided on 15.1.1996.
12.The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it is was omitted, an opposite conclusion was possible. In Sri Chand Gupta v. Gulzar Singh, J.T. (1991) 5 S.C. 400: (1992) 1 S.C.C. 143, it was held that the High Court was right in interfering in second appeal where the lower appellate Court relied upon an admission of a third party treating it as binding on the defendant. The admission was inadmissible as against the defendant. This was also a second Appeal of 1981 disposed of on 24.9.1985.
13.In either of the above situations, a substantial question of law can arise. The substantial question of law that arises for consideration in this appeal is:"Whether the courts below had failed to consider vital pieces of evidence and whether the courts relied upon inadmissible evidence while arriving at the conclusion that the mortgage was sham and that there was no relationship between the plaintiff and the defendant as mortgagor and mortgagee but the real relationship was as landlord and tenant? Point 1 is decided accordingly. .... The finding is also not based on evidence adduced for which there is no foundation in the pleadings. The finding of the lower court appellate court is essentially erroneous approach. For the above reasons it must be held that it is a fit case where interference is called for under Sec. 100 of Code of Civil Procedure."
15.He also cites the decision of the Hon'ble Supreme Court in Mehrunnisa and others V. Visham Kumari and another, (1998) 2 SCC 295 at page 299, in paragraph 13, it is held as follows:
"13.In the case on hand unfortunately the lower appellate court before reversing the finding of the trial court on the issue of bona fide requirement of the landlady for starting a cloth business failed to read the entire evidence and take into consideration all the documents placed before the trial court. Therefore, it was rightly contended by Dr. Ghosh, learned Senior Counsel for the respondent, that the High Court was justified in interfering with the finding of the first appellate court. A reading of the judgment of the lower appellate court leaves no doubt that it has looked into the contents of the first notice whereunder the landlady has stated that she required the premises for her husband's office and ignored the notice issued just before the filing of the suit. The lower appellate court has also failed to give due importance to the fact that the landlady has not taken any steps to file suit for eviction pursuant to the notice issued on two earlier occasion and the ground stated in the notice preceding the suit are relevant for the purpose of deciding the issue."
16.The Learned Counsel for the Appellant/Plaintiff seeks in aid of the decision of the Hon'ble Supreme Court in Santhosh Hazari V. Purushottam Tiwari (deceased) by LRs., (2001) 3 SCC 179 at page 181 wherein it is observed hereunder:
"The phrase substantial question of law, as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying question of law, means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the Legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance."
17.He also draws the attention of this Court to the decision in Vanjiappa Gounder and others V. Arumuga Gounder and others, (2003) 2 MLJ 111 at page 112 wherein it is held as follows:
"When a cart-track enjoyed by the plaintiff for more than a statutory period, the plaintiff are entitled to right over the cart-track. When the lower appellate Court has not pointed out the incorrectness of the taking of the trial judgment, the judgment of the appellate Court is vitiated."
18.To appreciate the merits of the controversy between the parties involved in the main suit, this Court makes a useful reference to oral evidence of P.W.1 and P.W.2, in the interest of justice.
19.P.W.1 (Appellant/Plaintiff), in his evidence, has deposed that his adopted father-Subbiah Mudaliar, who is a native of Kurukathi Village of Tiruvarur circle and the suit tanks are in their family enjoyment of well over 100 years and as per 1958 Panchayat Act, the poramboke tanks have been handed over to the Panchayat and the fishery right in the hands of private individuals are to be handed over to the Panchayat as per Panchayat Act, 1958 and on 27.09.1963 the Nagapattinam Deputy Tahsildar has passed an order stating that in the suit lands they have fishery right which is Ex.A.2 and the suit tanks are in their possession.
20.P.W.1 in his further evidence has deposed that based on the recommendation of Tahsildar, the Divisional Officer has passed orders and in the suit tanks his adopted father has right and that the successful bidder in the auction is in enjoyment of the fishery right and the auction entries for the year 1912-1913 are Exs.A.3 to A.5 and the income entries for the year 1915-1916 at pages 5,7, 14 23, 31 and Exs.A.6 to A.10 and the entries at page 57 for the accounts for the year 1926 is Ex.A.12 and the entries in the year 1926-1927 account are Exs.A.13 to A.47 and the entries in the account book for the year 1928-29 at pages 23, 94, 99, 123 are Exs.A.48 to A.51, the account books for the year 1929-30 are Exs.A.52 to A.55 and the tank lease document dated 10.04.1983 is Ex.A.56.
21.The evidence of P.W.1 proceeds to the effect that the suit fishery lease right dated 10.03.1912 is the Ex.A.57 and the lease documents are Ex.A.58 to A.65 and for the suit tanks belong to him and Ex.A.66 to A.74 are the plan copy of the tanks and Ex.A.75 is the Sale Deed dated 02.07.1975 executed by Janaki Anni to and in favour of Subbiah Mudaliar.
22.P.W.1 in his evidence has deposed that the suit property has come in the hands of his adopted mother and later they have received the same and that the Panchayat President Majid has given a petition before the District Collector stating that Ex.A.2-Order is not valid and based on the said petition enquiry has been conducted and Ex.A.77 is the cancellation order passed by the District Collector cancelling the Ex.A.2-Order and till the year 1975 his adopted father has looked after the income and revenue expenditure and as against Ex.A.77-Order, his adopted father filed a Writ Petition before the Hon'ble High Court and the High Court has passed an order Ex.A.78 in which a direction has been issued to file an Original Suit and his adopted father has expired and thereafter, his adopted mother's death, his adopted father has been directed by the High Court to pay annually a sum of Rs.1000/- and they have remitted the said amount as per the directions of the High Court and since his adopted mother has expired, the suit has not been proceeded further and he prays for declaring Ex.A.78-Order of Thanjavur District Collector dated 09.02.1978 as a invalid one.
23.P.W.1, in his cross examination, has deposed that his adopted father has the enjoyment of the right in suit tanks and that the suit tanks are poramboke tanks and the poramboke tanks have been handed over to Panchayat and the fishery right in the said tanks belong to them and his adopted father has expired on 22.07.1978 and till the year 1977 he has paid a sum of Rs.1000/- to the Panchayat as per High Court's order and from the year 1978 the 2nd Defendant is auctioning the fishery right.
24.That apart, it is the evidence of P.W.1 that the High Court has passed Ex.A.78-Order dated 09.02.1978 wherein three months time has been granted to K.V.Subbiah Mudaliar (Writ Petitioner) to file the civil suit and as per the said Ex.A.78-Order the suit ought to have been filed before 09.05.1978 and that the suit has been filed and because of the death of the Plaintiff, the said suit has been dismissed and that he does not know about the statement given by Rajagopal Iyengar before the Tahsildar and in the accounts filed by him, it is mentioned generally as tanks but no survey number is mentioned and in the suit village there are 9 tanks and in Ex.B.2-Petition 9 tanks are mentioned and in Ex.A.35 the fishery income of the suit tank has been given credit to.
25.It is the evidence of the evidence of P.W.2 (V.A.O. of Kurukathi Village) that in the suit village there are no other tanks, except the 9 tanks mentioned in O.S.No.214 of 1982 and there is an auction notice in respect of Kurukathi Village and A register of the suit village is Ex.A.79 and A register for the Kurukathi Village relating to the year 1925 is Ex.A.80 and in Exs.A.79 and 80 there are 9 tanks mentioned in the suit and the suit tanks name depending on the season will be changed and in Ex.B.9 the tanks and ponds mentioned therein are all poramboke one and presently he has no records to show that the tanks concerned with the suit to whom it belongs too and in Ex.B.9 the places mentioned in red ink is 'gh X' are placed handed over to Panchayat and initially the tanks have been in possession of Subbiah Mudaliar's family and presently they have been handed over to the Panchayat.
26.In Ex.A.1, the Appellant/Plaintiff's lawyer notice [issued under Section 80 C.P.C.] dated 16.03.1981 addressed to the Respondents/Defendants, it is among other things mentioned that the Appellant/Plaintiff's adoptive mother is the wife of late K.V.Subbiah Mudaliar and that the said Subbiah owned extensive landed properties in the village of Kurukathi and the 9 tanks described in the notice, even in his enjoyment and his ancestors for over 60 years and after the advent of the Panchayat Act, 1958, the tanks have been vested in the village Panchayat statutorily. Further, in respect of the fishery rights in the said tanks, the Sub Collector, Nagapattinam by his proceedings No.Rc.34532/E-3 dated 27.9.1963 has found that they belonged to Subbiah and in the aforesaid proceedings, the fishery income in the first 8 tanks has been declared as the personal income of the said K.V.Subbiah and in regard to the 9th tank, the income has been directed to be utilised for the performance of water pandal charities and sabsthasthanam festival of Sri Akshayalingaswami Temple at Keevalur. Moreover, the 1st Respondent/ 1st Defendant has acknowledged the title of the Appellant/Plaintiff's husband to the fishery rights in the 9 tanks even in 1963 etc.
27.Significantly, in Ex.A.1-Lawyer's notice dated 16.03.1981 in paragraph 2 it is averred that after lapse of nearly 9 years the 2nd Respondent/2nd Defendant filed a revision petition on 19.08.1971 before the D.R.O., Thanjavur against the Sub Collector's order of the year 1963 and a copy of the revision petition has also addressed to the 1st Respondent/1st Defendant and that the 1st Respondent/ 1st Defendant passed an order on 28.11.1973 in Rc.No.19884/71 K-12 treating the 2nd Respondent/2nd Defendant's revision petition as an appeal. K.V.Subbiah Mudaliar after entering appearance, produced ancient documents in proof of his right of fishery and contended that the 1st Respondent/1st Defendant has no jurisdiction to entertain an appeal or revision against the order passed by the Sub Collector on 27.09.1963 and that the Sub Collector's order has become final and conclusive.
28.However, the 1st Defendant passed an order dated 28.11.1973 setting aside the Sub Collector's order in the year 1963. Subbiah Mudaliar challenging the 1st Respondent/1st Defendant order in W.P.No.6609 of 1973, the High Court on 09.02.1978 has directed the said Subbiah to file a suit and to establish his claim for the fishery right because the matter involved letting in of oral and documentary evidence. Also, during the pendency of Writ Petition, the said Subbiah alone has been exercising the fishery right in the tanks the Hon'ble High Court has directed the status quo to continue for a period of three months enabling the Plaintiff to file the suit after issuance of Section 80 C.P.C. notice. However, the certified copy of the order of the High Court has made available only on 01.07.1978.
29.Apart from the above, in Ex.A.1-Lawyer's Notice dated 16.03.1981, it is stated that K.V.Subbiah Mudaliar has been constrained to file a suit on 07.04.1978 against the Respondents/ Defendants in O.S.No.96 of 1978 on the file of District Munsif, Nagapattinam. The said suit has been filed emergently as the 2nd Respondent/2nd Defendant made arrangements for leasing out the fishery right in open auction. An application to dispense with Section 80 notice has also been filed. The 2nd Respondent/2nd Defendant has taken notice of the injunction petition and therefore, no orders have been passed by the trial Court. In the meanwhile, the 2nd Respondent/ 2nd Defendant has unlawfully and illegally and in violation of Subbiah Mudaliar's fishery right, leased out the fishery right in open auction to the third parties. But Subbiah died during July 1978, leaving a Will under which his wife is the universal legatee. Subbiah's wife herself got impleaded as Legal Representative of her husband in O.S.No.96 of 1978. In view of the cessation emergency subsequent to the filing of the suit, the trial Court has directed the Appellant/Plaintiff to file the suit after issuance of Section 80 C.P.C. notice. The Appellant/Plaintiff's adoptive mother issued Section 80 C.P.C. notice on 11.02.1979.
30.In Ex.A.1 notice dated 16.03.1981 it is further contended that even in the family arrangement between the Plaintiff and the two daughters of Subbiah Mudaliar by his first wife, the Plaintiff alone has been given the fishery right. In any event, the 1st Respondent/ 1st Defendant has acknowledged the title to the fishery right by virtue of the order passed by the Sub Collector, Nagapattinam in the year 1963. The order passed by the 1st Respondent/ 1st Defendant on 28.11.1973 setting aside the order of 1963 is wholly without jurisdiction. The 2nd Respondent/ 2nd Defendant's application in the year 1971 whether it be an appeal or revision is highly a belated one and ought not to have been entertained by the 1st Respondent/ 1st Defendant. The Sub Collector's order of 1963 is final and conclusive etc.
31.Ex.A.2 is the order dated 27.09.1963 in Rc.34532/63 passed by the Sub Collector, Nagapattinam in which in 9 tanks mentioned in the village 45, Kurukathi K.V.Subbiah Mudaliar's fishery right's enjoyment have been mentioned and in respect of 9th tank, the income from such fishery are to be utilised for the purpose of 'performance of water pandal and sabsthasthanam festival of Akshyalingaswamy Kovil.
32.Exs.A.3 and A.4 are the entries in the account book for the year 1912-1913 at page 27 and 63 maintained by the Appellant/ Plaintiff's adopted father Subbiah. Ex.A.5 is the account book for the year 1912-1913 at page 48 maintained by the Appellant/Plaintiff's adopted father Subbiah. Ex.A.6 to A.10 are the entries in the account book for the year 1915-1916 maintained by the Appellant/Plaintiff's adopted father at pages 5, 14, 27, 31 and 7 dated 12.08.1916, 05.03.1916, 24.06.2016, 30.06.1916, 15.10.1915 respectively.
33.Ex.A.11 is the account book entry for the year 1926 dated 25.01.1926 maintained by the Appellant/Plaintiff's adopted father. Ex.A.12 is the account book entry at page 52 for the year 1926 dated 30.06.1926 maintained by the Appellant/Plaintiff's adopted father. Ex.A.13 to A.47 are the account book entries with relevant pages containing different dates maintained by the Appellant/Plaintiff's father. Ex.A.48 to A.51 are the account book entries at pages 77, 99, 123, 73 dated 27.2.1929, 30.4.1929, 22.6.1929 1.2.1929 for the year 1928-1929 maintained by the Appellant/Plaintiff's father.
34.Ex.A.52 to A.55 are the account book entries for the year 1920-1930 maintained by the Appellant/Plaintiff's adopted father at pages 13, 60, 6, 79 dated 1.2.1930, 18.07.1930, 24.12.1929, 11.9.1930. Ex.A.56 dated 10.04.1883 is the Arasankulam fishery right document executed by the Velu Padayachi. Ex.A.57 is the Thamaraikulam fishery right lease document dated 10.3.1912 executed by Kulanthaivelupillai to Kuppu Anni. Ex.A.58 is the Pasi lease document dated 23.02.1916. Ex.A.59 is the 4 tank fishing lease document dated 11.04.1939 in respect of Thamaraikulam, Vannankulam and 4 other tanks. Ex.A.60 is the lease fishery right agreement dated 09.04.1940 executed by Ponnusamy to and in favour of Subbiah Mudaliar in respect of Thamaraikulam, Vannankulam Tank and 4 other tanks.
35.Ex.A.61 is the Sanankulam and 2 other tanks fishing lease document executed by Hussain Sahib and Md.Ibrahim in favour of Subbiah Mudaliar. Ex.A.62 is the fishing lease document in respect of Pusakulam and 4 other tanks executed by Natesavanniar in favour of Subbiah Mudaliar. Ex.A.63 dated 04.05.1957 is the fishing lease right executed by Murugaiyan in respect of inner tank in favour of Subbiah Mudaliar. Ex.A.64 is the fishery right Muchalicka dated 24.4.1967 . Ex.A.65 is the fishery right lease chit executed by Mariappa Vanniar to Subbiah Mudaliar dated 30.03.1973. Exs.A.66 to A.74 relates to Plan pertaining to tanks mentioned therein.
36.Ex.A.75 is the copy of the sale deed dated 02.07.1925 executed by Minor Janaki Anni in favour of K.V.Subbiah Mudaliar. Ex.A.76 is the partition deed dated 13.07.1980 entered into between the Plaintiff, Velambal Anni and Janaki Anni. Ex.A.77 is the certified copy of the order passed by the Thanjavur District Collector dated 28.11.1973. Ex.A.78 is the order of the High Court dated 09.02.1978 made in W.P.No.6609 of 1973. Exs.A.79 and 80 are the settlement Faisalathi register of Kurukathi village. Ex.A.81 is the lease auction fishery right notice of tanks in Kurukathi Panchayat.
37.Exs.B.1 and B.2 are the Petitions dated 27.06.1963 sent by K.V.Subbiah Mudaliar to Nagapattinam Tahsildar. Ex.B.3 is the order dated 28.11.1973 passed by the District Collector of Thanjavur in R.C.19884. Ex.B.4 is the order dated 30.07.1974 passed by the Hon'ble High Court in W.M.P.No.3387 of 1974 in W.P.No.6609 of 1973. Ex.B.5 is the reply notice of the 1st Respondent/1st Defendant's lawyer addressed to the Appellant/Plaintiff's lawyer together with acknowledgement card. Ex.B.6 is the Plaint copy in O.S.No.96 of 1978. Ex.B.7 is the I.A. affidavit filed by the Plaintiff in O.S.No.96/78. Ex.B.8 is the counter filed in I.A.No.302/78 in O.S.No.96/78 by the 1st Respondent/1st Defendant. Ex.B.9 is the photo copy of resettlement faisalathi of Kurukathi Village.
38.In Ex.B.5-Reply Notice sent by 1st Respondent/1st Defendant's lawyer addressed to the Appellant/Plaintiff's advocate, it is among other things mentioned that the order of the District Collector in R.C.19884/71-A12/D1 dated28.11.1973 is final, binding and quite legal and there is no further appeal from it preferred and that the order of the Sub Collector, Nagapattinam in R.C.34532/63E dated 27.09.1963 cannot be relied upon since it has been set aside and over ruled by the order of the 1st Respondent/ 1st Defendant. Moreover, the Plaintiff cannot claim any right to the title of the suit tanks etc.
39.Ex.B.6 is the copy of the Plaint filed in O.S.No.96 of 1978 by the 1st Plaintiff K.V.Subbiah Mudaliar (died) wherein K.S.Rajarathinathanni has figured as Supplemental 2nd Plaintiff. In the said Plaint, the deceased Subbiah Mudaliar and another have prayed for the relief of declaration that the order of the 1st Defendant in R.C.19884/71.K.12 dated 28.11.1973 is null and void and for consequential declaration of of title to the fisheries in the suit tanks and for permanent injunction.
40.In Ex.B.8 counter filed by the 1st Respondent/ 1st Defendant in I.A.No.302/78 in O.S.No.96/78, it is mentioned that the fishery rights are to be leased out on behalf of the Panchayat in public auction by the Block Development Officer or an officer deputed as per G.O. in force and that the Plaintiff Subbiah Mudaliar therein could be present and even bid at the auction without prejudice and the best price would therefore, be secured etc.
41.At this stage, it is to be pointed out that Section 132 of the Tamil Nadu Panchayats Act, 1994 speaks of 'Vesting of communal property or income in village panchayat' which reads as follows:
"Any property or income including any fishery right which by custom belongs to, or has been administered for the common benefit of the inhabitants of the village or of the holders in common of village land generally or of the holders of lands of a particular description or of the holders of lands under particular source of irrigation shall, if so declared by the Government, vest in the village panchayat and be administered by it for the benefit of the inhabitants or holders aforesaid."
42.As a matter of fact, Section 132 corresponds to Section 83 of the 1958 Act and Section 58 of the 1950 Act. Indeed, Section 83 of the old Act, which corresponds to Section 132 of the 1958 Act vesting communal property, or income in panchayat and the Section contemplates that there should be a declaration by Government for vesting the communal property or income to avail the benefits as per Section 132 of the Tamil Nadu Panchayats Act 1994.
43.This Court aptly points out the decision in Alagar Iyengar and others V. State of Tamil Nadu rep. By the District Collectort, Kamarajar District, Virudhunagar and another, 2002 (2) T.L.N.J. 155 at page 157 wherein it is laid down as follows:
"Section 83 clearly contemplates a declaration by the Government. Mr.Gopalaratnam submitted that the declaration contemplated under Section 83 relates only to the last clause preceding, viz. "of the holders of lands under a particular source of irrigation". This, in my view, is not at all correct. If we remove the word "shall" for the earlier clauses, the very section will become meaningless. The contention in this regard urged on behalf of the second respondent is, therefore, untenable. We can therefore rest assured that there has to be a declaration by the Government for vesting of communal property or income in Panchayat."
In the aforesaid decision at page 158 & 159, it is observed as follows:
"Section 83, as already pointed out, contemplates a declaration and unless there is a declaration, there can be no vesting. As opposed to Section 83 where a declaration is contemplated, under Section 84 there is automatic vesting of water works in Panchayat.
If there is a declaration by the Government under Section 83, then there would be vesting of communal property or income in Panchayat and only where the maintenance of any work is transferred under Section 85 of the Act to any Panchayat Union, the fishery rights of Government will be transferred to and vested in it and in the instant case, there was no transfer of any irrigation work and the fishery rights cannot therefore belong to the Panchayat. If as contended in the written statement that tanks and channels are maintained by the Government at its expense, then it goes against the case of the second respondent under Section 85 of the Act."
44.This Court worth recalls the decision of Hon'ble Supreme Court in Tirunagar Panchayat V. Madurai Co-operative House Construction Society, AIR 1966 Supreme Court 1807 at page 1808 wherein it is held as follows:
"In the enactment of S. 58 the legislature did not contemplate that parks, play grounds, schools or temple or hospital dedicated to the public should vest in the panchayat merely by the fact of such dedication. What is required by s. 58 for the' purpose of vesting is the proof of custom by which the villagers in common acquire title to any property or income. Vesting of rights takes place under S. 58 if there is proof of customary right of administration of any property or income for the benefit of the villagers in common. Unless therefore there is proof of customary right, the Panchayat cannot claim title to the property or income ad ministered for the benefit of the villagers in common. For example, the Society may have established a library or a social club or a school for the benefit of its members Again, a private individual may have created a trust for the provision of amenities like parks, play grounds and hospitals for the residents of the village. In a case of this description the legal ownership of the Society or of the trustees will not vest in the Panchayat because of the provisions of s. 58 of the Act. It cannot be supposed that such a startling and unjust result was contemplated by the, legislature in enacting s. 58."
45.It is not out of place for this Court to point out that in the decision in Commissioner, Rajapalayam Panchayat Union, Kamarajar District V. Madasamy and others (2007) 4 MLJ 38 at page 39, in paragraph 18 and 19, it is observed hereunder:
"18.when Section 133 of the Tamil Nadu Panchayats Act empowers Panchayat Unions the right of maintenance and when Section 143 provides independent right to Panchayat Unions to remove the danger in respect of tanks, wells, etc., I am not in agreement with the finding of the lower appellate court that the plaintiff-Panchayat Union does not have the locus standi to file the suit and that the Government ought to have been impleaded as a party to the suit. This is because, as rightly contended by the counsel for the appellant, the plaintiff-Panchayat Union, being an instrumentality of a welfare State which has the duty and responsibility to protect the interest of the public at large, has every right to set right the wrong done to the communal property which is nothing but the tank in the instant case.
19.Admittedly, the appellant is a wing of the Government and an instrumentality of the State and it is governed by the Tamil Nadu Panchayats Act and the provisions made therein provide independent right of maintenance of tank bund to the appellant and also to take action to evict the encroachers, to maintain the delicate ecological balance and to provide proper and healthy environment to enable people to enjoy a quality life which is the essence of the fundamental right guaranteed under Article 21 of the Constitution of India. Thus, there can be no doubt that the appellant has the domain power by virtue of the sovereign rights available with the Government and the appellant, being a wing of it, can exercise its powers particularly in the matter of public utility. Therefore, the appellant's action in preventing any kind of obstruction of flow of water is obviously within its powers and the Trial Court has gone into this matter in detail with its cogent reasonings; whereas the lower appellate court, on the contrary, has gone wrong in interfering with the findings of the Trial Court by giving unconvincing and unacceptable reasonings to disbelieve the evidence. The primary object of the appellant is to protect the interest of the public at large and the interest of the individuals certainly cannot prevail over the public interest etc."
46.Apart from the above decisions, this Court cites the following decisions:
(a)In Nadimpalli Venkataraju V. Ravipadu Panchayat Board, by President, Kotagiri Kondalarao, 1960-I Andhra Weekly Reporter at page 18, it is held as follows:
"The land in question did not vest in the Panchayat Board under any of the sections 56, 58, 60 and 77 of the Act. Vesting depends not upon the description in the village accounts but upon the nature of the property. Although the Panchayat Board seems to have laid a road through the survey number, there was no permanent cart-track used by the public running through it. In this view no part of the survey number could have vested in the Panchayat Board as a public road under section 56 of the Act. Section 58 refers to communal property and not to any property belonging to the State. This section has no application to the facts of the case. Section 77 cannot be invoked because the land is not covered by a tank nor can it be described as adjacent land of the kind mentioned in the section. Section 60 empowers Panchayats in ryotwari tracts to exercise power to regulate the use of certain kinds of porambokes which are at the disposal of the Government. It also provides that in the case of "any other poramboke which is at the disposal of the Government" than those specified in sub-section (2) of that section, the Panchayat may exercise like power if "authorised in that behalf by an order of the Government". This section makes no mention of the vesting of any such porambokes in the Panchayat. The Panchayat has no right to interfere with the possession of the defendant."
(b)In Malayankulam Panchayat, Kancheepuram District V. T.Vivekanandan and others, (2007) 7 MLJ 424 (DB), the Hon'ble Division Bench of this Court has observed and held as follows:
"6..... Rule 11 of the said Act reads as under:11.Lease of fishery rights:- The lease of fishery rights in the water sources vested in the village panchayats or the panchayat union council shall be given after conducting public auction by the respective village panchayats or panchayat union council, as the case may be. Such lease shall be for a period of five years. Lease amount shall be raised every year at the rate of 10 per cent over the lease amount of the previous year.
7.The above Rule makes it clear that lease of fishery right in the water sources vested in the village panchayats shall be given by way of public auction by the village Panchayat or Panchayat Union Council. It further shows that it shall be for a period of five years and lease amount shall be raised every year at the rate of 10% over the lease amount of the previous year.
(c)In K.Chandru and others V. The President, Karambakkam Village Panchayat, Karambakkam, Tiruvellore District and others (2003) 3 MLJ 832, it is held as hereunder:
"Under Rule 11 of the Tamil Nadu Panchayats (Lease and Licensing of Fishing Rights in Water Sources vested and regulated by Village Panchayats and Panchayat Union Councils) Rules (1999), a licence for fishing rights can be granted only for a period of 5 years. But, a licence granted for 9 years cannot be cancelled without giving adequate opportunity to the licensees."
(d)In S.Durai V. District Collector, Tirunelveli and others, (2007) 2 MLJ 870, it is held as hereunder:
"8.The entire text of Rule 11 makes it clear that the local body is entitled to enhance the lease amount every year and the five years mentioned therein permit the authorities to grant maximum period of lease. Once lease is granted for one year after compliance of necessary formalities, which is one of the essential conditions of tender, it cannot be altered by the parties after entering into the arena.
9..... The petitioner having agreed the terms and conditions mentioned in the notification and participated in the auction, it is not open to him to say the period of one year fixed is incorrect."
(e) In the decision in Paruthipalli Panchayat Union rep. By its President P.Thangammal, Tiruchengode Taluk V. The Collector, Collectorate of Namakkal and others, 2008 Writ Law Reporter 274 wherein it is held as follows:
"Though this Court is not deciding the title or right relating to the tank, which is the subject matter of this writ petition, this Court is of the view that the way in which the lease was ordered to the society is not satisfactory, besides, it is illegal, hence, this Court is inclined to allow WP No. 49149 of 2006 and consequently, WP No. 3363 and 3364 are liable to be dismissed. It is open to the parties to go for any further auction or leasing, but first decide the issue about the right or title of Paruthupalli Village, hence, the District Collector, who is having the over all control of the District, is directed to decide the said issue in accordance with law."
47.In this context, this Court makes a reference to Section 2 of the Tamil Nadu Land Encroachment Act, 1905 which reads as follows:
"2.Rights of property in public roads, etc., waters and lands.- (1) All public roads, streets, lanes and paths, the bridges, ditches, dikes and fences, on or beside the same, the bed of the sea and of harbours and creeks below high water mark, and of rivers, streams, nalas, lakes and tanks, and Substituted for the words 'all canals and water-courses" by, ibid [all back waters, canals and water-courses) and all standing and flowing water, and all lands, wherever situated, save in so far as the same are the property-
(a) of any [Zamindar estate has been abolished. See section 3 of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Tamil Nadu Act XXVI of 1948)]. Zamindar, poligar, mittadar, shrotriemdar or [Inam Estate has been abolished. See section 3 of the Tamil Nadu. Inam Estates (Abolition and Conversion into Ryotwari) Act, 1963 (Tamil Nadu Act 26 of 1963)] inamdar or any person claiming through or holding under any of them, or
(b) of any person paying shit, kattubadi, jodi, poruppu or quit-rent to any of the aforesaid persons, or
(c) of any person holding under ryotwari tenure [Substituted for the words "including that of a janmi in Malabar, or of a wargdar in South Kanara" by the Madras Adaptation of Laws Order, 1957] [including that of a janmi in the Gudalur taluk of the Nilgiris district] [Inserted by Section 4 of, and the Second Schedule to, the Tamil Nadu (Transferred Territory) Extension of Laws Act, 1960 (Tamil Nadu Act 23 of 1960)] [and in the transferred territory] or in any way subject to the payment of land-revenue direct to Government, or
(d) of any other registered holder of land in proprietary right, or
(e)of any other person holding land under grant from [The words "the Crown" were substituted for the word "Government" by the Adaptation Order of 1937 and the word "Government" was substituted for "Crown" by the Adaptation Order of 1950] [the Government] otherwise than by way of licence, and, as to lands, save also in so far as they are temple site or owned as house-site or back yard, are and are hereby declared to be [The words "Crown property" were substituted for the words "the property of Government" by the Adaptation Order of 1937 and the words "the property of Government" were substituted for "Crown property" by the Adaptation (Amendment) Order of 1950 [the property of Government] except as may be otherwise provided by any law for the time being in force, subject always to all rights of way and other public rights and to the natural and easement rights of other land-owners, and to all customary rights legally subsisting.
(2) All public roads and streets vested in any local authority shall, for the purpose of this Act, be deemed to be [the property of Government].
Explanation.- In this section, "high water mark" means the highest point reached by ordinary spring-tides at any season of the year."
48.From the above, it is evident that all public roads, streets, land including water courses, rivers, streams, nalas, lakes and tanks etc. are the property of the Government and belongs to the Government and that the Government have jurisdiction to issue notice as per Section 7 of the Act and that the person aggrieved by the said notice should have filed his objections before the appropriate authorities.
49.The burden of proof as per Section 2 of the Act, the initial burden lies on the person who is to prove title to show that he comes within the saving clause to Section 2(1) of the Tamil Nadu Land Encroachment Act. Really speaking, Section 2 of the Act declares, subject to the saving clause that the Government is the owner of certain kinds of property, including the beds of tank. As per Section 14 of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963, (Tamil Nadu Act 27 of 1963) the rights of certain lessees and others are mentioned as follows:
"14.Rights of certain lessees and others.- (1) In cases not governed by any other provision of this Act, where on or after the 30th day of September, 1961, but before the appointed day, an inamdar has created, by way of lease or otherwise, rights in any mines or minerals, quarries, fisheries or ferries, the transaction shall be deemed to be valid; and all rights and obligations arising thereunder, on or after the appointed day, shall be enforceable by or against the Government:
Provided that the transaction was not void or illegal under any law in force at the time and that any such right was created for a period not exceeding one year.
(2)(a) Where any such right was created before the 30th day of September, 1961 for a period exceeding one year, the Government may, if in their opinion it is in the public interest to do so, by notice given to the person concerned, terminate the right with effect from such date as may be specified in the notice, not being earlier than three months from the date thereof.
(b) The person whose right has been so terminated shall be entitled to compensation from the Government which shall be determined by the Board of Revenue [By virtue of section 10(1) of the Tamil Nadu Board of Revenue (Abolition) Act, 1980 (Tamil Nadu Act 36 of 1980) an reference to the Board of Revenue shall be deemed to be a reference to the State Government] in such manner as may be prescribed, having regard to the value of the right and the period for which the right was created.
(c) Where any such right created before the 30th day of September 1961 is not determined under this sub-section, the transaction whereby such right was created shall be deemed to be valid and all rights and obligations arising thereunder, on or after the appointed day, shall be enforceable by or against the Government:
Provided that the transaction was not void or illegal under any law in force at the time.
(3)The Government may, if in their opinion, it is in the public interest to do so, impose reasonable restrictions on the exercise of any right continued under this section.
Explanation.- Any rights granted in perpetuity shall cease and determine and be dealt with under section 3(e) and not under this section."
50.The trial Court, in its Judgment in the main suit, has opined that as confirmed by the evidence of P.W.2 the tanks in the suit schedule properties have been in possession of the Appellant/Plaintiff's ancestors who had the fishery right and also that Ex.A.56 to 65 have been filed before the Defendant and the number of years and the continuous enjoyment have not been taken into consideration by the 1st Respondent/1st Defendant and has rejected in pursuance of the orders-Ex.A.77 dated 28.11.1973 is a contrary one and further the documents and evidence filed and produced on behalf of the Appellant /Plaintiff show that in the suit 9 tanks the Appellant/Plaintiff has acquired adverse possession and that the enjoyment of 9 tanks from the 2nd Respondent/2nd Defendant is directed to be handed over to the Appellant/Plaintiff has found already and accordingly held that the order in R.C.19884 dated 28.11.1973 passed by the 1st Respondent/1st Defendant is not a valid one and consequently answered the issues 1, 4 and 5 in favour of the Appellant/Plaintiff.
51.The trial Court, in regard to the issue whether the Appellant/ Plaintiff without payment of annual income is entitled to restrain the fishery auction right by means of an injunction prayer, has held that in Ex.A.78 Order of the High Court in W.P.No.6609 of 1973 dated 09.02.1978 wherein it is observed that the adopted father has been given the three months time to file a suit separately and also it is observed that the adopted father has to remit a sum of RS.1,000/- to the 2nd Respondent/2nd Defendant and to continue the fishing right in respect of the suit tanks and as per Ex.A.78-High Court's Order, the three months time have elapsed before and the High Court order will not remain in force after three months and in the year 1982 when the Appellant/Plaintiff files a suit it cannot be asked that the Appellant/ Plaintiff is to pay a sum of Rs.1,000/- to the 2nd Respondent/2nd Defendant.
52.Further, it has been observed by the trial Court that as such as per Ex.A.78-High Court Order in W.P.No.6609 of 1973 only for three months alone the Appellant/Plaintiff is to pay a sum of Rs.1,000/- to the 1st Respondent/1st Defendant and after expiry of three months, the adopted father filing a suit and paying a sum of Rs.1,000/- to the 2nd Respondent/2nd Defendant and to utilise the fishing right there is no order and therefore, to the 2nd Respondent annually Rs.1,000/- has to be paid and only after making the said payment it is not correct to state that the auction of the fishing right in respect of the suit tanks to be made by the 2nd Respondent/ 2nd Defendant is to be prevented and resultantly, held that annual income need not be paid by the Appellant/Plaintiff to the 2nd Respondent/ 2nd Defendant.
53.As regards the issue when the suit has not been filed in time, whether the Appellant/Plaintiff is entitled to continue the suit filed by him? the trial Court, has, among other things, come to a conclusion that a fishing right in respect of the suit tanks is an immovable property and that the Appellant/Plaintiff has filed a suit within 12 years from the year 1971 and since the suit is not barred by limitation and as per Ex.A.78 High Court's Order when the suit is to be filed within three months from the date of High Court's order in W.P.No.6609 of 1973 the Appellant/Plaintiff is entitled to file a suit within a period of 12 years and also that inasmuch as the suit has been filed well within 12 years, the suit is not barred by limitation and that the time limit of three months granted by the High Court as per Ex.A.78 Order will not bind the Appellant/Plaintiff and answered in favour of the Appellant/ Plaintiff.
54.In short, the trial Court has finally held that the Appellant/ Plaintiff has acquired the right of adverse possession in respect of the fishery right in the suit tanks and further the Appellant/Plaintiff has a fishery right in respect of suit tanks and accordingly, granted the relief of declaration by passing a decree with costs.
55.The First Appellate Court, in its Judgment in the Appeal in A.S.No.233 of 1992, on 30.09.1993 has held that there is no evidence that the Appellant/Plaintiff is the heir of deceased Subbiah Mudaliar as evident from the evidence of P.W.1 and has not accepted the finding of the trial Court that the Appellant/Plaintiff is the adopted son of the deceased Subbiah Mudaliar and held that the Judgment of the trial Court is an unacceptable one. Moreover, it also held that to say the Appellant/Plaintiff has got fishery right in suit tanks and further he need not remit any annual income and added further, the allegation that the Appellant/Plaintiff's predecessors have been in enjoyment of the suit tanks have not been established and consequentially it held that it cannot be said that the order of the Thanjavur District Collector dated 28.11.1973 is an invalid one and that it is not correct that the Appellant/Plaintiff to pray for a direction being issued to the 2nd Respondent/2nd Defendant to hand over the enjoyment of the suit tanks to the Appellant/Plaintiff and accordingly, allowed the appeal by setting aside the Judgment and Decree of the trial Court.
56.It transpires from Ex.B.3-Proceedings of the Collector of Thanjavur dated 28.11.1973 [in appeal filed by the President of Kurukathi Panchayat Board against the order of Sub Collector, Nagapattinam in R.C.34532/63 B dated 27.09.1963] vesting the fishery rights of 9 Panchayat tanks mentioned therein in favour of one K.V.Subbiah Mudaliar of Kurukathi Village. An order has been passed inter alia to the effect that 'Evidence is clearly available to show that the tanks in question are Government Poramboke tanks. Evidence is also available that the maintenance of these tanks have been transferred to the Panchayat and that Panchayat funds had been utilised for the maintenance and protection of these tanks. The Respondent to substantiate his claim of adverse possession of these tanks should have been able to produce undisputed evidence to show that he had been in a position and enjoyment of the fishery rights for a continuous period of 30 years prior to the date of commencement of the Tamil Nadu Panchayat Act, 1958 etc. and resultantly, held that there is no evidence whatsoever to substantiate his claim of enjoyment of fishery right in respect of any of the tanks for the period required to establish his title of adverse possession and set aside the order of the Sub Collector, Nagapattinam issued in R.C.345332/63 B dated 27.09.1963 and directed the vesting of fishery rights in respect of all the 9 tanks in question in Kurukathi Village Panchayat.
57.Furthermore, in Ex.B.3-Order dated 28.11.1973 of Thanjavur District Collector in paragraph 4, it is, among other things, observed that 'In response to this the respondent was able to produce only 8 lease deeds purported to have been executed in his favour by certain lessees who had allegedly taken the fishery rights of these tanks on lease. 10 account books where the income and charges of these leases were said to have been entered were also filed by him. Of the 8 lease chits, the deed executed by Kulandaivelu Pillai in favour of one Kuppanni on 10.3.12, the lease deed executed by Mottaiyan and others in favour of Meenakshi Anni on 23.2.1916, the lease deed executed by Siddi Md.Rowther and Vaithilinga Chettiar in favour of the respondent on 6.4.35, the lease chit executed by one Thiru Ibrahim Rowther in favour of Muthu Kutti Anni on 10.4.37 and the lease deed executed by one Thiru Hussain Sahib and one Thiru Md.Ibrahim Sahib in favour of the respondent have no bearing to the present issue at all as they relates to altogether different tanks. The lease deeds executed by one Thiru Vaidyalingam Chettiar in favour of the respondent on 16.4.1938 in respect of Thamaraikulam and Vannankulam, the lease deed executed by one Thiru Ponnusami Angarayar in favour of the respondent on 11.4.39 in respect of Thamaraikulam and Vannankulam, the lease deed executed by the same Thiru Ponnusami Angurayar in favour of the respondent on 9.2.40 in respect of Thamaraikulam and Vannankulam alone are relevant to the present issue. Out of the 10 account books produced there are entries with regard to the fishery receipts only in 4 account books. These four books relating to the years 1926, 1927, 1928 and 1929 have entries only about receipts from Thamaraikulam fishery. (Account book for 1926 Pages 9-10-11-12 and 43, Account book for 1927 page 42 Account Book for 1928 Page 94, Account book for 1929 page 6).'
58.In Ex.A.76-Partition Deed dated 13.07.1980 entered into between Appellant/Plaintiff, Velambal Anni and Janaki Anni. Each of the parties have divided the properties as per A.2 C schedule. In Ex.A.76 Partition Deed, Rajarathinathanni beloved son is mentioned as Ramalinga Mudaliar (Appellant/Plaintiff). Ex.A.75 is the Sale Deed dated 02.07.1925 executed by Minor Janaki Anni in favour of K.V.Subbiah Mudaliar.
59.In Ex.B.4-Order dated 30.07.1974 in W.M.P.No.3387 of 1974 in W.P.No.6609 of 1973 [filed by K.V.Subbiah Mudaliar as Petitioner] time has been extended till 07.08.1974 for payment of Rs.1,000/- directed to be paid on or before 15.06.1974 and that the Writ Petitioner therein has been directed to send the amount by way of bank draft purchased in favour of the 2nd Respondent and sent it by registered post acknowledgement due.
60.Ex.A.81 relates to fishery right auction notice in respect of Kurukathi Panchayat tanks wherein it is mentioned that on 22.05.1978 Monday at about 10.00 a.m. the fishery right in 11 survey numbers mentioned in the notice will be let out in auction. But auctioning of the conditions is that those who are desirous of taking part in the auction bid per tank will have to remit a sum of Rs.25/- in advance and then only to take part in the auction and further, the successful bidder in respect of the tanks towards his enjoyment right has to execute a Muchalika.
61.As per Ex.A.78-Order dated 09.02.1978 passed by this Court in W.P.No.6609 of 1973 the petitioner therein K.V.Subbiah Mudaliar has been given three months time to file a suit against the Government as well as the Panchayat and till such time, the interim orders passed by this Court which is now in force has been directed to be continued. As seen from Ex.A.78-Order passed by the Hon'ble High Court in the Writ Petition, only K.V.Subbiah Mudaliar has been given three months time to file a civil suit.
62.Therefore, it is quite clear that the three months time has been granted to K.V.Subbiah Mudaliar to file a civil suit from the date of order passed by this Court in W.P.No.6609 of 1973 on 09.02.1978.
63.A reading of the Plaint in paragraph 6 in O.S.No.214 of 1982 (filed by the Appellant/Plaintiff) shows that as per High Court's order passed in the Writ Petition a sum of Rs.1,000/- has to be paid annually in respect of fishery rights in tanks. But Rathinathanni has died without filing the suit and therefore, no provision has been made for payment of Rs.1,000/- per year towards fishery right in respect of the suit tanks. From the year 1978, the Kurukathi Former Panchayat President has let out the fishery right in respect of the suit tanks through the auction and after dissolution of Panchayat, the 2nd Respondent who has administered the Panchayat has let out the tanks in auction and the auction amount has been in deposit of Panchayat Union.
64.Although the Appellant/Plaintiff has taken a plea in the Plaint that Subbiah Mudaliar is his adoptive father, no convincing and positive proof has been let in on the side of the Appellant/Plaintiff to show that he has been taken in adoption by the adoptive father K.V.Subbiah Mudaliar. Even P.W.1 (Appellant/Plaintiff) in his evidence has not spoken about the conduct of any ceremony relating to the adoption. In the absence of any concrete or positive evidence to show that the Appellant/Plaintiff has been taken any adoption by the adoptive father K.V.Subbiah Mudaliar, the Appellant/Plaintiff has no locus to file the present suit and to seek the necessary relief of declaration that the order of the Thanjavur District Collector dated 28.11.1973 is an invalid one and for the relief of permanent injunction. Also, without payment of any money to the Panchayat the Appellant/Plaintiff cannot take part in the fishing right auction.
65.To take a plea on the side of the Appellant/Plaintiff that no annual income need be paid in regard to the enjoyment of the suit fishery tank, it is to be pointed out by this Court without making payment as required by the auction conditions, it is not open to the Appellant/Plaintiff to take part in the fishery right auction, in respect of the suit tanks, in the considered opinion of this Court. [Whether it is for a particular year or at a later point of time as the case may be]. Even though on the side of the Respondents/ Defendants no one has been examined as a witness, yet, there is a duty cast on the Appellant /Plaintiff to prove to the subjective satisfaction of this Court and to satisfy its judicial conscience that he is the adopted son of the deceased K.V.Subbiah Mudaliar and further that said Subbiah is his adoptive father. Unfortunately, the Appellant/Plaintiff has not established the factum of adoption that he has been taken in adoption by the adoptive father K.V.Subbiah through tangible evidence, in the manner known to law.
66.As per Section 132 of the Tamil Nadu Panchayats Act, 1994 the fishery right in respect of the suit tanks is to be construed as annual property or income in the village panchayat, therefore, the suit 9 tanks vest in the village Panchayat as per Section 132 of the Tamil Nadu Panchayats Act and it is to be administered by it for the benefit of the inhabitants or holders. When the suit 9 tanks has been vested in the hands of Village Panchayat as per Tamil Nadu Panchayats Act, then, in respect of the fishery right therein the Panchayat has a right to administer it for the benefit of the inhabitants or holders as mentioned in Section 132 of the Tamil Nadu Panchayats Act, 1994. Therefore, the 2nd Respondent/2nd Defendant Panchayat Union is entitled to conduct fishery right auction as per Rule 11 of Tamil Nadu Panchayat (Lease & Licensing of Fishery Rights), Rules, 1999. As per said the rule, it is made clear that the upset lease amount shall be fixed by the village panchayat and the panchayat union council concerned in consultation with the Inspector of Fisheries of the respective area.
67.Moreover, the Lease of Fishery Rights in the water resources vested in the village panchayats or the panchayat union council shall be given after conducting public auction by the respective village panchayats or panchayat union council as per Rule 11 of the Lease of fishery rights rules as mentioned supra. Further, such lease shall be for a period of five years and that the lease amount shall be raised every year at the rate of 10 per cent over the lease amount of the previous year.
68.From the ingredients of Rule 11 of the Tamil Nadu Panchayat (Lease & Licensing of Fishery Rights), Rules, 1999, it is quite evident that every year the lease amount shall be raised at the rate of 10 per cent over the lease amount of the previous year and that the upset price sum shall be determined by the Village Panchayat and the Panchayat Union Council concerned in consultation with the Inspector of Fisheries of the respective area. As such, it is not open to the Appellant/Plaintiff to take a contrary plea [against the Rule 11] that there is no need for him to pay any sum or even the terms and conditions of auction in any by which one has to pay Rs.25/- per tank as advance so as to take part in the auction bid of the suit tanks fishery rights, as per Ex.A.81-Auction Notice dated 15.07.1975 of Kurukathi village.
69.Moreover, the order passed by the District Collector, Vellore is more than 12 years and that is to be challenged by the Appellant/ Plaintiff, which is a strange one. After the fishery rights in the suit tanks have been vested with the Village Panchayat Union Council, then, the Panchayat or the Panchayat Union Council is the appropriate authority to lease out the fishery rights and as such, the plea taken on behalf of the Appellant/Plaintiff that the fishery rights in the tanks mentioned in the Plaint have become vested with the Appellant/Plaintiff by enjoyment over 30 years by his predecessors or ancestors etc. is not accepted by this Court. Moreover, by operation of Law, when the lease of fishery rights in respect of water resources or suit tanks have become vested in Village Panchayat or Panchayat Union Council, then, the the Appellant/Plaintiff is not entitled to take the plea of adverse possession. It cannot be gainsaid that as per Ex.B.3-Order dated 28.11.1973 the District Collector, Thanjavur has set aside the order of the Sub Collector, Nagapattinam in Proceedings No.Rc.34532/E-3 dated 27.9.1963. Viewed in that perspective, the Substantial Question of Law is answered against the Appellant/Plaintiff.
70.In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. Consequently, the Judgment and Decree of the First Appellate Court in A.S.No.233 of 1992 dated 30.09.1993 are affirmed by this Court for the reasons assigned in this Appeal. The suit filed by the Appellant/Plaintiff is dismissed.
16.04.2012 Index : Yes Internet : Yes Sgl To
1.The Additional District Judge, Nagapattinam.
2.The District Munsif, Nagapattinam.
M.VENUGOPAL, J.
Sgl JUDGMENT IN S.A.No.1597 of 1995 16.04.2012