Madras High Court
The Special Officer vs Janulekinal Beevi
Author: N. S A T Hi S H Kumar
Bench: N. S A T Hi S H Kumar
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BE F O R E THE MADURAI BE N C H OF MADRA S HIGH COURT
DATED : 1 8. 0 2 . 2 0 2 0
CORAM:
THE HONOU RA B L E MR. JU S T I C E N. S A T HI S H KUMAR
S.A.(MD).8 4 3 of 2 0 0 2
The Special Officer,
R.S.Mangalam Town Panchayat,
R.S.Mangalam,
Thiruvadanai Taluk,
Ramanathapuram. ... Appellant
Vs.
1.Janulekinal Beevi
2.S.Layala Beevi
3.Seeni Mohammed
4.S.Jallie Begum
5.Sahul Hameed (died)
6.Ibrahim
7.Government of Tamil Nadu
represented by District Collector of Ramanathapuram,
Ramanathapuram District.
8.Mahamootha Beevi
9.Raja Mohamed
10.Ishaq
Respondents 8 to 10 are brought on record as LRS
of deceased 5th respondent vide Court order
dated 06.12.2019 made in C.M.P.(MD).No.9030, 9032 and 9036 of 2019
in S.A.No.843 of 2002. ... Respondents
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Pra y er: The Appeal is filed under Section 100 of Civil Procedure Code against the
judgment and decree in A.S.No.152 of 1996 on the file of the Principal District
Judge, Ramanathapuram, dated 01.12.1999, reversing the judgment and decree
made in O.S.No.74 of 1995 on the file of the District Munsif Court, Thiruvadanai,
dated 23.04.1996.
For Appellant : Mr.S.Natarajan
For RR1, 4, 6, 8 to 10 : Mr.M.Ajmal Khan
Senior counsel for M/s. Ajmal Associates
For R7 : Mr.S.Shanmugaselvam
For R8 : Mr.Rajendrakumar
J U DG ME N T
Aggrieved over the reversal finding of the first appellate Court, decreeing
the suit filed for declaration and injunction, the present second appeal has been
filed.
2. The brief facts leading to the filing of the appeal is as follows:
The case of the plaintiffs is that the suit property originally belonged to
Thiruvenkada Muthusamy Ayyankar. He sold the suit property to one Seeni
Mohammed under registered sale deed, dated 28.09.1911. The said Seeni
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Mohammed enjoyed the suit property till his death and after his demise, his son by
name Shiek Dawood had enjoyed the same. During the reign of Samasthanam
Paimash number 28 part and Patta number 289 were given to the suit property.
During the settlement proceedings, a Patta No.146 was granted to the suit
property, in the name of Shiek Dawood. The said Shiek Dawood died in the year
1981, leaving behind the wife, the first plaintiff and the plaintiffs 2 to 4 and also
Sahulhameed and Ibrahim. The defendants are not having any semblance of right
over the suit property. The suit property is not a tank. The defendants are making
arrangements to disturb the peaceful and enjoyment of the plaintiffs by denying
their title. Hence, the plaintiffs have filed the suit for declaration and permanent
injunction.
3. The first defendant has filed a written statement stating that the suit
property and its adjoining northern property originally belonged to one
Thiruvengada Muthusamy Ayyankar. It is the contention of the defendants that the
suit property is a Oorani Poramboke and during U.D.R., Scheme, the suit property
was classified as Muthukone Oorani Poramboke. Now, the suit property belongs to
R.S.Mangalam Panchayat. Hence, there is no merit in the suit and the same is liable
to be dismissed. The second defendant has also taken a similar defence.
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4. Based on the above pleadings, the trial Court has framed three issues. On
the side of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A1 to A15 were
marked and on the side of the defendants, R.Ws.1 to 3 were examined and Exs.B1
to B9 were marked.
5. Considering the the oral and documentary evidence, the trial Court has
dismissed the suit and re-appreciating the entire facts, the first appellate Court has
decreed the suit. As against which, the present second appeal has been filed.
6. While admitting the second appeal, this Court has framed the following
substantial questions of law, which runs as follows:
(i) Wh e n ad mitt e dly the land ha s b e e n cla s s ifi e d as O or a ni
P or a m b o k e and the s a m e ha s not b e e n challe n g e d for m or e than 17
ye ar s in the pro p e r foru m can the plaintiff s e e k for de cl ar ation of title
ignoring the s aid cla s s ific atio n ?
(ii) W h e n the suit pro p e rt y whic h is O or a ni P or a m b o k e is
v e s t e d with the s e c o n d def e n d a n t P a n c h a y a t, wh et h e r the Lo w e r
Ap p e llat e C o urt is justifie d in taking the vie w that the plaintiffs are
entitle d to de cl ar atio n of title ba s e d on the rou g h patta mi st a k e nl y
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giv e n ?
7. The learned counsel for the appellant vehemently contended that the suit
property was vested with the Government, by virtue of Act 26 of Tamil Nadu
Estates (Abolition and Conversion into Ryotwari) Act, 1948, and the suit property
has been classified as Oorani and the action of the Government has not been
challenged by the plaintiffs for more than 17 years and suddenly, the suit has been
filed. It is the contention of the learned counsel for the appellant that by virtue of
Section 3 B and 14 A(2) of Act 26 of 1948, even the private tanks and Ooranies
were vested with the Government and as per Section 14 A of the Act, even any
Patta granted in respect of the Ooranies has been cancelled, by virtue of the
amendment. Further, it is the contention that Section 64 C Order of the
Government is final. It cannot be challenged. Despite the above facts, the first
appellate Court has wrongly appreciated the facts. Hence, the learned counsel for
the appellant prayed for allowing the appeal.
8. In support of his contentions, he has relied upon the judgment of this
Court, in the case of Govi n d a r a s u Nai d u , G. v. St a t e of Ta m i l Na d u
reported in 1 9 8 7 ( W L R ) 4 0 8 . He has also relied upon the judgment of this
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Court, in the case of S r i Venk at e s w a r a Mid d l e School v. Distr i c t
Coll e c t o r reported in 2 0 1 9 (1) C W C 7 8 4 .
9. The suit has been filed to declare that the suit property belongs to the
plaintiffs and also permanent injunction. It is the case of the plaintiffs that the suit
property originally belongs to one Thiruvenkada Muthusamy Ayyankar and he sold
the suit property to one Seeni Mohamammed, by registered sale deed, dated
28.09.2011. The said sale deed is marked as Ex.A1. The purchase of the suit
property is not seriously disputed. The identity of the property and the subsequent
survey number of the property are also not disputed.
10. The main contention of the respondents is that at the time of
proceedings under Act 26 of 1948, there was no Oorani in the suit property and
the suit property was classified as nanja land, whereas, it is the contention of the
defendants that the suit property was classified as Oorani and vested with the
Government, by virtue of Act, 26 of 1948. The contention of the defendants is that
once the property is vested with the Government, no challenge has been made by
the plaintiffs. Now, they cannot seek for declaration after 17 years lapsed from the
date of passing the order.
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11. It is relevant to note that Ex.A2 is the Patta issued under the settlement
proceedings under Act 26 of 1948. It is also relevant to note that under Section 15
of the Act 26 of 1948, the Settlement Officer shall examine the nature, in respect
of which the land owner claims Ryotwari Patta under Sections 12 or 13 or 14 as the
case may be and decide in respect of which the lands patta to be allowed. This
Court has carefully seen the document Ex.A2. After proper enquiry issuing
summons, Patta was issued by the Settlement Officer in respect of Patta No.446
and Survey No.31/6. The suit property in respect of 48 cents is in favour of one
Shiek Dawood. The issuance of Patta is also not disputed. The main contention of
the defendants is that since the subject matter of the property was Oorani, any
Patta granted in respect of the same should be cancelled, by virtue of Section 14 A
of the Act. It is to be noted that Section 14 A of the Act was amended and
introduced in the year 1974. Till such time, there was no evidence whatever
available on record to show that on the date of vesting the properties, by virtue of
Act 26 of 1948, the suit property was classified as Oorani, at the relevant point of
time. The first appellate Court has clearly analysed the facts and considered the
evidence of D.W.1 that the property was all along classified as nanja land prior to
that. Further, Ex.A14 is the Settlement Register, the same clearly indicated that the
Patta stands in the name of Shiek Dawood and the above documents clearly
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indicated the nature of the property and various other factors. As far as the Survey
No.31/6, the availability of canal or tank conspicuously absent in the Register
maintained by the Government, at the relevant point of time. If really, the Oorani
was very much existence, as contended by the defendants, at the time of vesting of
the lands, the same must have reflected in the Register. But the Register does not
indicate any such entry, at the relevant point of time. It is also relevant to note that
subsequent to the vesting of the lands on the notified date, in the year 1957,
under Ex.A2, the Settlement Officer, on enquiry, has issued a Patta. If really, there
was a Oorani, the Patta would not have been given. The evidence of D.W.1 is also
clearly indicated that it was always classified as nanja land, even prior to the
Notification of the Act 26 of 1948. This has been properly analysed by the first
appellate Court. Further, the Commissioner's report / Exs.C1 and C2 filed before
the trial Court, which were not objected by anyone also, indicated that the
property is a cultivable land. Therefore, the very contention of the defendants is
that on the date of Notification, the property was classified as Oorani was false. It
is relevant to note that Section 14 A introduced in the year 1974 and the
defendants contention is that the suit property has been classified as Oorani from
the year 1976, under Ex.A14, for the first time, it is classified as Oorani, whereas the
Patta number stands in the name of the original owners.
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12. The above facts clearly indicated that only after amendment of Section
14 A, for the first time, the Oorani has been classified by them. The date of
Notification of Act 26 of 1948 and the entries in the revenue records at the
relevant point of time are relevant to decide the nature of the properties and the
entries as noted by the first appellate Court. Exs.A2 and A14 clearly show that the
property was never classified as Oorani, at the relevant point of time. In this
regard, though the learned counsel for the appellant has relied on the decision of
this Court in N.Govindarasu Naidu's case (supra) to show that by virtue of Section
14 A, any Patta granted prior to that stand cancelled, absolutely there is no dispute
in the judgment and in the same judgment, in Para-4, the Division Bench has
clearly held that the power of cancellation, the relevant time for the purpose of
deciding as to whether the lands are private tanks or Ooranies or date of vesting
should be notified date. If at the time of vesting the lands are private tanks or
Ooranies, the enquiry would be there. If Ryotwai Patta has been granted before the
publication of the amended act, then, as per Section 14 A(2) shall stand cancelled.
Therefore, the Division Bench has held that the relevant point of time to look into
the revenue records is a date of vesting or otherwise the notified date. If the
records show that on the notified date, the land is registered as a private tanks or
Ooranies, that is decisive and the subsequent conversion would not give any
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benefit.
13. Therefore, from the above judgment, as indicated, the relevant date is
the date of notification and the decisive entries in the revenue records, but
whereas, in the given case, absolutely, there is no materials in the revenue records
to show that the property has been classified as Oorani at the time of vesting. The
Commissioner Report also clearly shows that the land is a cultivable land and
Oorani is not in existence in the ground. One of the arguments of the learned
counsel for the appellant that the land has been classified as Oorani, which has not
been challenged. It is to be noted that under the Act 26 of 1948, the Settlement
Officer has granted a Patta in favour of the owner, in the year 1967 itself.
Thereafter, in the year 1976, after introduction of 14 A, this has been classified as
Oorani. Such decision was not taken after due enquiry with proper notice.
Therefore, it cannot be said that such decision become final. The Notification came
to be known by the plaintiffs in the year 1976. Ex.A15 indicated that the Survey No.
31/6 was classified as Oorani from 28.05.1976 and no evidence to show that this
has been done after proper notice to the plaintiffs. Therefore, it cannot be
contented that the above decision has not been challenged and such order has
become final. It is to be noted that though Section 64 C of the Act 26 of 1948
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deals with the finality of the order passed under the Act, it will not take away the
rights of the parties to establish the civil right. In this regard, the Hon'ble Supreme
Court, in the case of Ta m i l Na d u vs. R a m a l i n g a Samig al Mad a m
reported in AI R 196 8 SC 7 9 4 , has held that Civil Court's jurisdiction to
adjudicate on the real nature of the land is not ousted under Section 64 C by
reason of the Settlement Officer's decision to grant or refuse to grant a Patta
under Section 11 r/w. the proviso to Section 3(d) of the Act. When there is no
specific bar, it cannot be said that the litigant has no right to go to the civil Court
to establish the right. The judgment relied on by the learned counsel for the
appellant is not applicable to the facts of the present case.
14. The documents filed by the appellant viz., Exs.B1 to B9 are also
subsequent to the reclassification in the year 1976. Therefore, on the date of
vesting of the lands, Oorani was not existence and the wrong classification has
been made subsequently without any notice and enquiry. This Court is of the view
that when the Oorani was not existence on the date of vesting of the property
under Act 26 of 1948, as per Revenue Records and Settlement Register, it has to be
certainly presumed that the subsequent entry under Ex.A15 is a wrong one,
without any enquiry. Merely because that the entries has not been challenged itself
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cannot be a ground to hold that the suit is barred. Accordingly, all the substantial
questions of law are answered as against the appellant and the Second Appeal is
dismissed. No costs.
1 8. 0 2 . 2 0 2 0
akv
To
1. The Principal District Judge,
Ramanathapuram.
2. The District Munsif Court,
Thiruvadanai.
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N. S A T HI S H KUMAR ,J.
akv S.A.(MD).8 4 3 of 2 0 0 2 1 8. 0 2 . 2 0 2 0 http://www.judis.nic.in