# SALEM MUNICIPALITY v. P. KUMAR & ORS

- **Citation:** [2018] 13 S.C.R. 1223
- **Court:** Supreme Court of India
- **Decided:** 2018-11-15
- **Case number:** Civil Appeal Nos. 9-11 of 2014
- **Bench:** Arun Mishra, Vineet Saran
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/salem-municipality-v-p-kumar-ors-32437
- **Pages:** 19

## Headnote

Land Laws and Agricultural Tenancy:
Tamil Nadu Estates (Abolition and Conversion into Ryotwari)
Act, 1948: ss. 3, 11, 14-A and 64 - Lands in which ryot is entitled to
ryotwari patta - On facts, various leases granted in favour of
predecessor in title of plaintiff by the erstwhile Zamindar - Lease
deed area formed part of Tank Bund Side-Waste dry and Tank BundUpper dry - Lease granted from the month of November to June
next year, to expire before the commencement of rains in July as the
land used to be submerged - Plaintiff's case that his predecessor in
title, continued in possession of the land when the 1948 Act came
into force - Pursuant thereto, entire village, which included the
plaintiff's land taken over by the State Government - Applications
filed by predecessor in title as also original plaintiff for grant of
Ryotwari Patta u/s. 11 - Rejection of, on the ground that land was
not ryoti land - Meanwhile, the State Government handed over
certain land including the plaintiff's land, to the appellant for
construction of new bus stand - Suits for declaration of title and
permanent injunction filed by the plaintiff in respect of their land
against the State Government and the transport corporation as also
the appellant - Suits decreed by the trial court, however set aside
by the first appellate court - Second appeals, filed there against
allowed by the High Court restoring the order of the trial court -
On appeal, held: It is apparent from the leases that area in the lease
deeds formed part of the tank - As per the definition of ryoti land
in s. 3(16), the area was clearly not a ryoti land as such, the
predecessor in interest or plaintiff could not be said to be 'ryot'
holding 'ryoti' land - In the absence of grant of ryotwari patta and
in view of the fact that land formed part of tank reserved for common
use, no right accrued to the plaintiff to claim ryotwari patta as his
predecessor was not 'ryot' and the disputed land was not 'ryoti
Land' - Furthermore, the vendor of the plaintiff did not hold land
[2018] 13 S.C.R. 1223
1223
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for 12 continuous years - Finding recorded by the High Court as
to possession is clearly perverse - There is no evidence on record
in the form of revenue record that the plaintiff's vendor was in
possession on the date of abolition and thereafter plaintiff remained
in possession at any point of time - Thus, no right, title or interest
accrued to the vendor of the plaintiff or to the plaintiff to obtain
any ryotwari patta or for obtaining decree in the suit - Furthermore,
s. 64 whereby right of the owner, occupier not to be affected by
temporary dispossession/discontinuance of possession renders no
help to plaintiff - Also only part of the land has been given to the
Municipality could not have been made the basis by the High Court
to derive a conclusion in favour of the plaintiff so as to buttress the
title - Approach employed by the High Court is wholly impermissible,
unsustainable, perverse and illegal - Thus, the judgment passed by
the High Court is set aside and that of the first appellate court is
restored - As there was multiplication of various proceedings, the
cost of Rupees One Lakh imposed upon the plaintiff to be deposited
with the Welfare Fund of Supreme Court Advocate-on-Record
Association - Tamil Nadu Estates Land Act, 1908 - s. 3(15), (16) -
Evidence Act, 1872 - s. 114 - Costs.
State of Tamil Nadu v. Ramalinga Samigal Madam
(1985) 4 SCC 10 ; Dokiseela Ramulu v. Sri
Sangameswara Swamy Varu & Ors. (2017) 2 SCC 69 ;
Beohar Rajendra Singh v. State of M.P. and others 1970
RN 16 (Supreme Court) ; Sir Bhimeshwara Swami Varu
Temple v. Pedapudi Krishna Murthi and Ors. AIR 1973
SC 1299 - referred to.
Case Law Reference
(2017) 2 SCC 69
referred to
Para 23
1970 RN 16 (Supreme Court) referred to
Para 41
AIR 1973 SC 1299
referred to
Para 44
(1985) 4 SCC 10
referred to
Para 21

## Text

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SALEM MUNICIPALITY
v.
P. KUMAR & ORS.
(Civil Appeal Nos. 9-11 of 2014)
NOVEMBER 15, 2018
[ARUN MISHRA AND VINEET SARAN, JJ.]
Land Laws and Agricultural Tenancy:
Tamil Nadu Estates (Abolition and Conversion into Ryotwari)
Act, 1948: ss. 3, 11, 14-A and 64 - Lands in which ryot is entitled to
ryotwari patta - On facts, various leases granted in favour of
predecessor in title of plaintiff by the erstwhile Zamindar - Lease
deed area formed part of Tank Bund Side-Waste dry and Tank BundUpper dry - Lease granted from the month of November to June
next year, to expire before the commencement of rains in July as the
land used to be submerged - Plaintiff's case that his predecessor in
title, continued in possession of the land when the 1948 Act came
into force - Pursuant thereto, entire village, which included the
plaintiff's land taken over by the State Government - Applications
filed by predecessor in title as also original plaintiff for grant of
Ryotwari Patta u/s. 11 - Rejection of, on the ground that land was
not ryoti land - Meanwhile, the State Government handed over
certain land including the plaintiff's land, to the appellant for
construction of new bus stand - Suits for declaration of title and
permanent injunction filed by the plaintiff in respect of their land
against the State Government and the transport corporation as also
the appellant - Suits decreed by the trial court, however set aside
by the first appellate court - Second appeals, filed there against
allowed by the High Court restoring the order of the trial court -
On appeal, held: It is apparent from the leases that area in the lease
deeds formed part of the tank - As per the definition of ryoti land
in s. 3(16), the area was clearly not a ryoti land as such, the
predecessor in interest or plaintiff could not be said to be 'ryot'
holding 'ryoti' land - In the absence of grant of ryotwari patta and
in view of the fact that land formed part of tank reserved for common
use, no right accrued to the plaintiff to claim ryotwari patta as his
predecessor was not 'ryot' and the disputed land was not 'ryoti
Land' - Furthermore, the vendor of the plaintiff did not hold land
[2018] 13 S.C.R. 1223
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for 12 continuous years - Finding recorded by the High Court as
to possession is clearly perverse - There is no evidence on record
in the form of revenue record that the plaintiff's vendor was in
possession on the date of abolition and thereafter plaintiff remained
in possession at any point of time - Thus, no right, title or interest
accrued to the vendor of the plaintiff or to the plaintiff to obtain
any ryotwari patta or for obtaining decree in the suit - Furthermore,
s. 64 whereby right of the owner, occupier not to be affected by
temporary dispossession/discontinuance of possession renders no
help to plaintiff - Also only part of the land has been given to the
Municipality could not have been made the basis by the High Court
to derive a conclusion in favour of the plaintiff so as to buttress the
title - Approach employed by the High Court is wholly impermissible,
unsustainable, perverse and illegal - Thus, the judgment passed by
the High Court is set aside and that of the first appellate court is
restored - As there was multiplication of various proceedings, the
cost of Rupees One Lakh imposed upon the plaintiff to be deposited
with the Welfare Fund of Supreme Court Advocate-on-Record
Association - Tamil Nadu Estates Land Act, 1908 - s. 3(15), (16) -
Evidence Act, 1872 - s. 114 - Costs.
State of Tamil Nadu v. Ramalinga Samigal Madam
(1985) 4 SCC 10 ; Dokiseela Ramulu v. Sri
Sangameswara Swamy Varu & Ors. (2017) 2 SCC 69 ;
Beohar Rajendra Singh v. State of M.P. and others 1970
RN 16 (Supreme Court) ; Sir Bhimeshwara Swami Varu
Temple v. Pedapudi Krishna Murthi and Ors. AIR 1973
SC 1299 - referred to.
Case Law Reference
(2017) 2 SCC 69
referred to
Para 23
1970 RN 16 (Supreme Court) referred to
Para 41
AIR 1973 SC 1299
referred to
Para 44
(1985) 4 SCC 10
referred to
Para 21
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 9-11
of 2014.
From the Judgment and Order dated 08.12.2010 of the High
Court of Judicature at Madras in Second Appeal Nos. 1025, 1027 &
1028 of 2004
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With
Civil Appeal Nos. 12-14 of 2014.
R. Venkataramani, Rakesh Dwivedi, Gurukrishna Kumar, Rajiv
Dutta, V. Giri, Advs., Vinodh Kanna B., A. Sriram, Siddartha Iyer, Yashraj
Bundela, Praveen Vignesh, Ms. Purbitra Mitra, K.V. Vijayakumar, G.
Sivabalamurugan, Vasantha Kumar, R. Chandrachud, R. Ayyam Perumal,
Ms. C. Rubavathi, Advs. for the appearing parties.
The following Order of the Court was passed:
O R D E R
1. The Salem Municipality and State of Tamil Nadu and others
are in appeals aggrieved by the judgment and decree passed by the High
Court of Judicature at Madras on 8.12.2010 thereby deciding three
Second Appeals by the common judgment and order reversing the
judgment and decree passed by the First Appellate Court of dismissal of
the suits and restoring that of the Trial Court.
2. It was claimed by the plaintiff that initially, the lease was granted
in favour of S. Vijayaranga Mudaliar on 19.11.1940 by the erstwhile
Zamindar - Ms.Gnanambal. It was from the month of November 1940
to the month of June 1941.
3. Similar leases had been granted on 19.11.1942 in 1943 and
1946. In the lease deed area was described as "Chinneri Tank Bund
Side -Waste dry" and "Chinneri Tank Bund Upper-dry".
4. It is significant that each of lease had been granted for eight
months, each year continued from November to June next year, to expire
before the commencement of rains in July as the land used to be
submerged as it was situated in Chinneri Bund side.
5. It was claimed by the plaintiff that his predecessor in title,
continued in possession of the land when the Act called the Tamil Nadu
Estates (Abolition and Conversion into Ryotwari) Act, 1948 (in short
"the Act of 1948") came into force. The Act was published on 19.4.1949.
Sections 1,2,4,5,7,8 58-A,62,67 68 came into force on 19.4.1949, as
provided under Section 1(4) of the Act of 1948. The State Government
enforced the other Sections on the appointed date i.e. 19.12.1950.
Thereafter, the entire Pallapatti village vested in the State as notified
under the Act of 1948. Pursuant thereto, the possession of the entire
village was taken over by the Government, which included the disputed
land also, vide possession receipt dated 12.1.1951.
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6. The original plaintiff -late P.C. Pachiappan purchased 4.91
acres of land from S. Vijayaranga Mudaliar. The suits are with respect
to said land.
7. It transpires that late Vijayaranga Mudaliar had applied for a
grant of Ryotwari Patta under section 11 of the Act of 1948. The prayer
was rejected on the ground that land was not ryoti land and it was
recorded as community land. Thereafter, settlement in the area was
undertaken and was finally notified in the Gazette dated 21.12.1963.
Thereafter, P.C. Pachiappan applied under section 11 of the Act of 1948
for grant of Ryotwari patta of the newly carved out Survey No.163
corresponding to old survey No. 779. Prayer for grant of Ryotwari
patta of the disputed land was rejected vide order 5.11.1968 passed in
DOS 739/68 (F-2) by Assistant Settlement Officers KDIS No. 737/
1968. As recorded in the survey land register, Exhibit B-2, prepared in
the survey and settlement in 1959, the total area of the land 163 = 779
was 24.62 acres, recorded as Achuvan Eri (lake). Hence, it could not
have been allotted.
8. A second application for ryotwari patta moved by Pachiappan
was rejected as per government Order dated 11.5.1971. Review
application was filed by Pachiappan. It was also rejected vide order
dated 7.5.1973 on the ground that records of rights made it apparent that
disputed land formed part of 'Achuvaneri' which is IV class irrigation
source with wet ayacut registered under it and that it is retained as the
tank in the interest of ayacutdars under it. It was also observed that the
entire area comes into submergence and the land in question forms part
of the irrigation tank.
9. Unfettered by the previous two rejections, Pachiappan again
for the third time applied for issuance of patta on 21.6.1982. That
application was ultimately rejected vide Ex. P-5 on 9.5.1984.
10. On 23.2.1984, by virtue of the Office Memorandum 255, the
Transport Department of the State Government handed over Survey
No.163 admeasuring 24.62 acres to Salem Municipality for construction
of a new bus stand.
11. Pachiappan had filed a civil suit on 20.12.1984 registered as
O.S.34 of 1985 in the Court of District Munsiff of Salem against the
State of Tamil Nadu and M/s. Anna Transport Corporation for declaration
of title and permanent injunction in respect of 4.91 acres of the land, out
of survey No.163.
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12. Yet another civil suit came to be filed by the same plaintiff as
against Salem Municipality alone for declaration and injunction on
22.12.1989.
13. Thereafter, the fourth application was filed for obtaining
ryotwari patta by Pachiappan on 26.3.1992. He had filed yet another
writ petition No.3932/1992 for restraining the respondents from disturbing
peaceful possession and enjoyment of the property.
14. In Writ Petition No.5642/1992 he prayed that respondent may
be directed to consider an application for grant of ryotwari patta.
However, both the writ petitions were dismissed as withdrawn. Earlier
writ petition filed in 1984 was also dismissed with liberty to file a civil
suit.
15. Third suit O.S.No.342/1996 (348/95) (renumbered as 2066/
96) was filed as against Salem Municipality, Anna Transport Corporation
and State of Tamil Nadu. He has prayed for the same relief in the third
civil suit.
16. By virtue of the various leases granted to S.Vijayaranga
Mudaliar, he became entitled to obtain ryotwari patta under Section 11
of the Act of 1948. Plaintiff entered into an agreement to purchase the
suit property in 1951 which culminated into a sale on 29.9.1952. The suit
property never formed part of the communal land of Achuvan Eri or its
tank bund. Further, the extent of the Achuvan Eri as per the records is
only 15.00 acres. The Plaintiff had remained in actual possession and
enjoyment of suit property. In the year 1982, Forest Department
attempted to commit a trespass in the suit property and put up a nursery.
The plaintiff objected and obtained the stay orders from the Government
of Tamil Nadu against trespass. The Forest Department withdrew and
was restrained from further work. The plaintiff also filed applications
for grant of ryotwari patta in his favour and his predecessor in interest
since 1940 onwards had prescribed his title by virtue of adverse possession
also.
17. Earlier suit No. OS.34/1985 was dismissed in default, in the
absence of both the parties. The application No.I.A. 583/94 for its
restoration was pending. The cause of action arose in the year 1940,
thereafter in 1952, when the sale deed was executed and again in the
year 1984. Besides declaration and injunction, prayer was also made for
demarcation of the property in question.
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18. After the restoration of the suit of 1985, three suits were
decided vide common judgment and decree dated 27.4.2000 passed by
the Trial Court, Additional District Munsif of Salem. The suit was decreed
on 27.4.2000. The appeals were allowed by the First Appellate Court
i.e., First Additional District Court, Salem vide judgment and decree dated
30.1.2004. Aggrieved thereby, three-second appeals, which were
preferred have been allowed by the impugned judgment and decree
thereby restoring that of the Trial Court.
19. The High Court has given the finding that there is nothing to
doubt the various leases granted to S.Vijayaranga Mudaliar. Sale deed
has also been relied upon, the documents A-1 to A-4 have been relied
upon by the High Court. The High Court has drawn adverse inferences
against the appellants for not producing record pertaining to the aforesaid
documents A-1 to A-4. High Court has disbelieved documents B-9 of
taking possession on 12.1.1951. Finding of possession has been arrived
at in favour of the plaintiff. The High Court has also doubted the action
of Salem Municipality of handing over only 19.64 acres area to the
Transport Corporation for bus stand, whereas the entire land 24.62 acres
has been given to the Salem Municipality by the Tamil Nadu Government.
High Court has further stated that there is no estoppel created against
the plaintiff by virtue of the facts mentioned in lease deeds. It has also
not been explained by the defendants that how the area of 15 acres of
water tank increased to 24 acres. Consequently, the High Court has set
aside the judgment and decree of the First Appellate Court and restored
the judgment and decree passed by the Trial Court.
20. Shri Rakesh Dwivedi, Shri R.Venkataramani and Shri
Gurukrishna Kumar, learned senior counsel appearing on behalf of the
appellants urged that High Court has failed to consider the various
provisions of the Act of 1908 as well as the Act of 1948. No right could
have been created in the water tanks by virtue of the provisions contained
in the said Acts. They have relied upon the definition of Ryot and Ryoti
land in Section 3(15) and 3 (16) of the Act of 1908.
21. The ryoti land as defined in section 3(16) of the said Act
specifically excludes beds and bunds of tanks. It was also urged that
High Court has also failed to consider the impact of dismissal of the
proceedings for obtaining 'Ryot Patta' under Section 11 of the Act, filed
by the Predecessor in interest S.Vijayaranga Mudaliar and by the original
plaintiff. The prayer of S. Vijayranga Mudaliar for grant of ryotwari
patta has been rejected vide order dated 20.7.1953. Other four prayers
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made by Pachiappan also stood rejected in the years 1968,1971, 1984
and 1994. In the absence of a grant of ryotwari patta and even otherwise,
the land remained vested in the State Government. The finding as to
possession of plaintiff recorded by the High Court is also perverse and is
contrary to the revenue entries, the documents of settlement and other
record of rights w.e.f. 1948 till 1995. The revenue records have been
placed on record and in none of them, there is an entry of possession of
Pachiappan. On the strength of sale deed executed in 1952, the name of
Pachiappan had never been mutated. Since Predecessor S. Vijayaranga
Mudaliar had no title, late Pachiappan could not have derived any right,
title or interest from him. Having failed to prove the title of S. Vijayaranga
Mudaliar and also his own title, the plaintiff was not entitled to obtain the
decree in his favour. Apart from that, it was also urged that though such
a suit was barred under the provisions of 1948 Act. Even if it is held to
be maintainable for establishing of the rights of Ryot, plaintiff has
miserably failed to prove right, title or interest so as to seek declaration
and injunction prayed for. The suits were rightly dismissed by the First
Appellate court. Learned counsel have also referred to the decision in
State of Tamil Nadu Vs. Ramalinga Samigal Madam (1985) 4 SCC
10. Even if the documents A-1 to A-4 are taken to be proved, plaintiff
did not derive any sustenance from them for proving of right, title or
interest over the land. The High Court has proceeded merely on the
basis of adverse inference so as to confer a title in favour of the plaintiff
whereas the plaintiff has miserably failed to prove his own case. They
have also relied on Section 14A of the 1948 Act.
22. Shri Rajiv Dutta and Shri V.Giri, learned senior counsel
appearing on behalf of the plaintiff contended that once documents A-1
to A-4 are found to be proved, right, title and interest stands proved not
only of the predecessor-in- interest but that of the plaintiffs also. Finding
of fact as to possession of plaintiff has been rightly recorded by the
Trial Court. The decision of the First Appellate Court has been rightly
reversed by the High Court. The entitlement to obtain ryotwari patta has
been proved. The claim for conferral of ryotwari patta has not been
properly adjudicated by the concerned authorities. Civil suits were
maintainable and have been rightly decreed.
23. It was also contended on behalf of plaintiff that difference in
the area of the tank has not been properly explained and the area in
question is not part of the tank, it was at the periphery of the tank. Thus,
there was no bar under the Act of 1908 to give the same on lease to
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S.Vijayaranga Mudaliar and, as right, title and interest for obtaining of
ryotwari patta had accrued to him, he could have alienated the property
in the year 1952. Finding as to possession is also the question of fact and
has been rightly arrived at by the Trial Court which has rightly been
restored by the High Court. No case for interference is made out. For
maintainability of the civil suit, they have relied upon the decision in
Dokiseela Ramulu vs. Sri Sangameswara Swamy Varu & Ors. (2017)
2 SCC 69. Lastly, they contended that the adverse inference has rightly
been drawn by the High Court.
24. First, we take up the determination of question as to the nature
of the land as the accrual of right, title and interest depends on that
under both the Acts of 1908 and 1948. It is apparent from the lease deed
placed on record by the plaintiff (Exh. A-2) dated 15.11.1940 that the
land formed part of the Chinneri Tank Bund Side -Waste dry Chinneri
Tank Bed Upper-dry Chinneri Tank Bund Side -Waste dry Chinneri Tank
Bed Upper-dry and the lease was granted in Fasli 1350 corresponding
to Gregorian calendar year of 1940 w.e.f. the month of November
1940 to June 1941. Similar other leases collectively marked A-2 are
dated 19.11.1942, 1943 and 1946 w.e.f. the month of November to June.
The leases were granted in the exercise of the powers under Section 51
of the Act of 1908. It is apparent from the leases that area in question is
specifically depicted in the aforesaid lease deeds to form part of the
tank.
25. Besides that, there are a plethora of revenue entries placed
on record indicating that the entire area 24.62 acres had been recorded
as tank continuously right from 1950 till 1995.
26. The lease had been granted for eight months in the year 1940.
The grant of lease for the aforesaid period excluding rainy season from
July to October and evidence indicates that land formed part of the
tank. Thus, we have no hesitation in rejecting the submission to the
contrary raised on behalf of the plaintiff- respondent to the effect that
land did not form part of the tank.
27. Now, we come to the question whether any right can be
acquired on such a land. When we consider the relevant provisions
contained in the Act of 1908 and definition as defined Ryot under Section
3(15) and Ryoti Land under 3(16). The same is extracted hereunder:
"Section 3 (15) - "Ryot" means a person who holds for the purpose
of agriculture ryoti land in an an estate on condition of paying to
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the landholder the rent which is legally due upon it."
Explanation:
A person who has occupied ryoti land for a continuous period of
twelve years shall be deemed to be a ryot for all the purposes of
this Act.
Section 3 (16)- "Ryoti land" means cultivable land in an estate
other than private land but does not include;
(a) beds and bunds of tanks and of supply, drainage, surplus or
irrigation channels:
(b) threshing floor, cattle-stands, village-sites and other lands
situated in any estate which are set apart for the common use of
the villagers.
(c) lands granted on service tenure either free of rent or on
favourable rates or rent if granted before the passing this act or
free of rent if granted after that date, so longs as the service
tenure subsists."
28. It is apparent from the definition of 'ryot' as defined under
Section 3(15), means a person who holds the land for the purpose of
agriculture. It is necessary for such a 'ryot' to hold 'ryoti Land' in an
estate. Ryoti land has been defined in Section 3(16) as cultivable land in
an estate other than private land but does not include beds and bunds of
tanks and of supply, drainage, surplus or irrigation channels. Thus, as the
area in question formed part of the tank was clearly not ryoti land as per
the said definition in Section 3(16). As such, the predecessor in interest
- S.Vijayaranga Mudaliar or plaintiff could not be said to be 'ryot' holding
'ryoti' land.
29. The provisions contained in the 1948 Act have been enacted
to bring about agrarian reforms and to abolish the intermediaries,
zamindars, and Jagirdars etc. As a matter of fact, a lot of agrarian reforms
have taken place by the enactment of Abolition Act, as mandated by
Article 39 (b) and (c) of the Constitution. By virtue of the provisions
contained in Section 3 of the Act, on issuance of notifications with effect
from the notified date certain consequences ensues automatically. It is
provided in Section 3(b) that entire estate including with all communal
lands; porambokes, other then ryoti lands; rivers and streams; tanks and
ooranies (including private tanks and ooranies and irrigation works] etc.,
shall stand transferred to the Government and vest in them, free of all
encumbrances.
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Section 3 is extracted hereunder: "Section 3: With effect on and
from the notified date and save as otherwise expressly provided
in this Act:
(a)
the Tamil Nadu Estates Land (Reduction of Rent) Act,
1947 Tamil Nadu Act XXX of 1947 [in so far as it relates
to] matters other than the reduction rents and the
collection of arrears of rent and the Tamil Nadu Permanent
Settlement Regulation, 1802 Tamil Nadu Regulation XXV
of 1802, the Tamil Nadu Estates Land Act, 1908 Tamil
Nadu Act 1 of 1908, and all other enactments applicable
to the estate as such shall be deemed to have been
repealed in their application to the estate]
(b)
the entire estate including all communal lands;
porambokes; other nonryoti lands; wastelands; pasture
lands; Lanka lands; forests; mines and minerals; quarries;
rivers and streams; tanks and ooranies (including private
tanks and ooranies and irrigation works] fisheries and
ferries, shall stand transferred to the Government and vest
in them, free of all encumbrances and the Tamil Nadu
Revenue Recovery Act, 1864, the Tamil Nadu Irrigation
Cess Act, 1965, and all other enactments applicable to
ryotwari areas shall apply to the estate;
(c)
all rights and interests created in or over the estate before
the notified date by the principal or any other landholder,
shall as against the Government cease and determine;
(d)
the Government may, after removing any obstruction that
may be offered forthwith take possession of the estate,
and all accounts, registers, pattas muchilikas, maps, plans
and other documents relating to the estate which the
Government may require for the administration thereof;
Provided that the Government shall not dispossess any person of
any land in the estate in respect of which they consider that he is
prima facie entitled to a ryotwari patta-
(i)
if such person is a ryot, pending the decision of the
Settlement Officer as to whether he is actually entitled to
such patta;
(ii)
if such person is a landholder pending the decision of the
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Settlement Officer and the Tribunal on appeal, if any, to it,
as to whether he is actually entitled to such patta;
(e)
the principal or any other landholder and any other person,
whose rights stand transferred under clause (b) or cease
and determine under clause (c), shall be entitled only to
such rights and privileges as are recognized or conferred
on him by or under this Act]
(f)
the relationship of landholder and ryot, shall, as between
them, be extinguished;
(g)
any rights and privileges which may have accrued in the
estate to any person before the notified date, against the
principal or any other landholder thereof, shall cease and
determine, and shall not be enforceable against the
Government or such landholder and every such person
shall be entitled only to such rights and privileges as are
recognized or conferred on him by or under this Act.]"
30. It is also provided in Section 3(c) that all rights and interests
created in or over the estate before the notified date by the principal or
any other landholder, shall against the Government cease and determine.
31. It is apparent that under Section 3 of the Act of 1948 vesting
is automatic by virtue of the statutory provisions and government is
empowered to take possession as provided under Section 3 (a) only
saving in the proviso to section 3(d) is that in case any person is prima
facie entitled to ryotwari patta and during pendency of his application,
for the settlement, was not to be dispossessed. In the case of the
landholder, it is provided that if the decision is pending before the
Settlement Officer and the Tribunal on appeal, the State before taking
possession has to prima facie consider whether landholder is entitled to
ryot patta. Another consequence of vesting as clearly provided in Section
3(f) of Act of 1948 is that the relationship between the landholder and
Ryot shall stand extinguished.
32. Section 3(g) of the Act of 1948 specifically provides that right
which may have accrued in the estate to any person before the notified
date shall not be enforceable against the government and such person
shall be entitled only to such rights and privileges as are recognised or
conferred on him as provided under the Act of 1948.
33. Section 11 deals with rights of a ryot in an estate to apply for
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a ryotwari patta in respect of ryoti land which was properly included or
ought to have been properly included in his holding.
34. Section 11 is extracted hereunder:
"Lands in which ryot in entitled to ryotwari patta:
"11. Every ryot in an estate shall, with effect on and from the
notified date, be entitled to a ryotwari patta in respect of ;
(a) all ryoti lands which, immediately before the notified date, were
properly included or ought to have been properly included in his
holding and which are not either Lanka lands or lands in respect
of which a landholder or some other person is entitled to a ryotwari
patta under any other provision of this act; and
(b) all Lanka lands in his occupation immediately before the notified
date, such land having been in his occupation or in that of his
predecessors-in-title continuously from the 1st day of July 1939.
Provided that no person who has been admitted into possession
of any land by as landholder on or after the 1st day of July 1945
shall, except where the Government, after an examination of all
the circumstances otherwise direct, be entitled to a ryotwari patta
in respect of such land.
Explanation: No lessee of any Lanka land and no person to whom
a right to collect the rent of any land has been leased before the
notified date, including an ijaradar or a farmer of rent, shall be
entitled to a ryotwari patta in respect of such land under this
section."
35. Section 12 deals with the right of the landholder in zamindari
estate and Section 13 deals with the landholder of Inam estate with
which we are not concerned in the present case. Plaintiff has claimed
the right, title and interest as ryot, not as landholder.
36. Section 14-A was inserted by amendment Act 49 of 1974.
The provisions contained in Section 14-A is extracted hereunder;
"Ryotwari patta not to be granted in respect of private tank or
oorani:
14-A.(1) Notwithstanding anything contained in this Act, no
ryotwari patta shall be granted in respect of any private tank or
oorani.
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(2) Any ryotwari patta granted in respect of any private tank or
oorani under this Act before the date of the publication of the
Tamil Nadu Estates (Abolition and Conversion into Ryotwari)
Amendment Act, 1974, in the Tamil Nadu Government Gazette,
shall stand cancelled, and for purposes of compensation under
this Act the private tank or oorani shall be deemed to be land in
respect of which neither the landholder nor any other person is
entitled to ryotwari patta under this Act."
37. Section 14-A(1) makes it clear that Notwithstanding anything
contained in this Act, no ryotwari patta shall be granted in respect of any
private tank or ooranies. Even if any patta has been granted the same
shall stand cancelled and the land of the private tank or oorani shall be
deemed to be land of neither the landholder nor any other person is
entitled to ryotwari patta under the Act.
38. It is apparent from the conjoint reading of the provisions
contained in Sections 3(15) and 3 (16) of the Act of 1908 and the
provisions contained in Section 3, 11 and 14-A of the Act of 1948 that
the land of the tank is not 'ryoti land' as such no rights of 'ryot' could
accrue in the person by holding the land on temporary arrangement of
lease granted for 8 months in a year when water was not there in the
tanks. Such bodies are protected by virtue of the aforesaid provisions
carved out under the Acts of 1908 and 1948. The amendment made in
1974 in Section 14-A makes it clear that even if any ryot patta has been
granted to any incumbent even with respect to private tank or ooranies
that shall be inoperative and stand cancelled.
39. In the instant case, it is apparent that not only S.Vijayaranga
Mudaliar the vendor of plaintiff had applied for a grant of patta under
the provisions of Section 11 of the Act of 1948, but the same very prayer
had been unsuccessfully made four times by the original plaintiff. All
such prayers made in 1953, 1968, 1971, 1982 and 1994 had been rejected.
It is not in dispute that ryotwari patta had not been granted. In the order
passed rejecting review in 1973, there is categorical finding that land is
comprised in the tank and area was liable for submergence and formed
part of the irrigation tank. Once the claim of the original plaintiff had
been rejected, it was incumbent upon him to file a suit for establishing
his rights, if any. He could not have waited till 1984, after initial rejection
of the prayer in 1953. Again, could not have waited till December 1984
after the rejection order was passed in 1968 and again on 11.5.1971 and
review had been dismissed on 7.5.1973. In the absence of grant of
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ryotwari patta and even otherwise in view of the fact that land formed
part of tank reserved for common use, no right accrued to the plaintiff to
claim ryotwari patta as his predecessor was not 'ryot' and the disputed
land was not 'ryoti Land'. Apart from that, vendor of the plaintiff did not
hold land for 12 continuous years, as such no right, title or interest accrued
to the vendor of the plaintiff or to the plaintiff. The Trial Court, as well
as the High Court, have committed patent illegality in ignoring the aforesaid
prohibition contained in the provisions of the Act of 1908 as well as of
the Act of 1948.
40. Coming to the question of possession, the High Court has
discarded B-9 proceedings taking possession on 12.1.1951. Though, there
was absolutely nothing to doubt factum of taking over the possession. It
is also apparent that the land formed part of tank which used to go in
submergence during the rains from the month of July to October, it was
not capable of being possessed continuously. No patta was granted to
the vendor of the plaintiff for a complete year at any point of time, it was
from November to June. The four lease deeds for the period of four
years are for 32 months i.e. 8 months each year, have been placed on
record of 1940, 1942, 1943 and 1946, no other lease has been produced
indicating that he was holding land for 12 years or any lease of the land
as on the date when theAct of 1948 came into force or on the appointed
day. Even the vendor was not in possession of the land as the entire
estate of the village stood vested in the state, as per the notification
issued on 12.1.1951, possession had been taken. Thus, there was
absolutely nothing to hold that possession continued with the vendor of
the plaintiff. After the purchase was made by Pachiappan in 1952 there
is not even single revenue entry placed on record indicating that he ever
remained in possession at any point of time or cultivated the land. On the
other hand, various documents to the contrary have been placed on record
by the appellant.
41. Firstly, there are copies of settlement register indicating the
land comprised in new survey No. 163 corresponds to 779 old and same
is recorded as Poramboke (common land) for common use. Entire area
24.62 acre had been recorded as Poramboke. There is yet another
settlement entry of 1959 which records that Survey No.163 had been
carved out of 779 in an area 24.62 acre and area has been recorded as
Achuveri i.e., lake and also Porampoke i.e., for the common use. The
document records the fact that Pachiappan's application for grant of
ryotwari patta has been rejected on 5.11.1968. Survey Map of the village
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also records that the old survey number 779 has vested in the State.
When we consider Exh B-13, Fasli 1379 = 1969 year (Gregorian) the
land has been recorded as Chinneri (small lake). In the remarks column
possession of several persons is recorded as a trespasser, but not that of
the plaintiff - Pachiappan. Similar is the position in the entry of various
Fasli 1380 = 1970, 1381 = 1971, 1382 = 1972, 1383 = 1973, 1384 =
1974, 1386 = 1976, 1390 = 1980, 1391 = 1981 till 1405 = 1995. The
entries in remarks column shows neither ownership nor tenancy as
observed by this Court in Beohar Rajendra Singh v. State of M.P. and
others,1970 RN 16 (Supreme Court).
42. Other documents are also placed on record indicating that
area is Chinneri (lake) of common use. Thus, there was absolutely no
material or ground available to the High Court to set aside the finding of
possession recorded by the First Appellate Court and for discarding the
B-9 of taking possession in 1951 as that was supported by corresponding
revenue entries and statutory presumption of correctness is attached to
such entries though such presumption is rebuttable. However, there is
absolutely no evidence adduced on record by the plaintiff to rebut the
statutory presumption of correctness of document of record of rights.
Thus, trial court, as well as the High Court, has acted in a perverse
manner in discarding the overwhelming evidence merely on the ground
that document A-1 to A-4 stands proved. The High Court could not have
inferred in favour of the plaintiff, as no right accrued to the plaintiff or to
his predecessor-in-interest on the basis of the aforesaid document A-1
to A-4. The High Court has unnecessarily drawn adverse inference just
in order to give a finding of the genuineness of the document A-1 to A4. We take these documents as proved and proceed to deal with the
case on that basis.
43. When we consider the documents A1 to A-4, taken as proved,
not only they fail to advance the cause espoused by the plaintiff but
rather negates it. Ex.A-2 are the 4 pattas placed on record by the plaintiff
granted in favour of S.Vijayaranga Mudaliar as predecessor interest of
1940, 1942, 1943 and 1946. The lease deed itself records that land was
comprised in the tank and formed part of the tank. Thus, no right or title
or interest could have accrued to the plaintiff over the said land.
44. Apart from that, when we consider sale deed A-1, executed
by S.Vijayaranga Mudaliar in favour of original plaintiff Pachiappa, the
recital in the sale deed is that though patta was granted in his name he
could neither cultivate nor able to look after the same, as such, he has
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decided to sell the land. In Exh.A-3 rent register of Fasli 1369 = 1959. It
only records the rent not the factum of lease or possession or cultivation
by S.Vijayaranga Mudaliar. A-4 is document of the year 1949 that records
the name of S.Vijayaranga Mudaliar but in that, no cultivation is recorded
of S.Vijayaranga Mudaliar. It records only how much was the cess of
land. No case is made out in favour of vendor of the plaintiff on the basis
of the entry of amount of land cess or land revenue of the year 1949.
Merely recording the cess or revenue in the year 1949 or even assuming
it was paid by the vendor in 1949, is not going to confer title in favour of
vendor, particularly when the area was comprised in the tank. In case
any lease had been granted for the period of 1947 to 1949 ought to have
been placed on record but no such lease deeds except for four years
have been placed on record. Thus, the finding recorded by the High
Court as to possession is clearly perverse and contrary to the revenue
records and the Gazette notification of vesting of land in State issued in
1951.
45. It is no doubt true that under Section 114 of the Evidence Act,
there is a presumption of continuance of a state of affairs once shown to
have prevailed. It is open to the court under Section 114 to presume the
continuity of any fact once shown to have prevailed. Such presumption
of continuity can be drawn not only forward but backward also. Court
can presume that such state of affairs might have existed in past also
unless discontinuity is proved. In the instant case, it is not shown by any
affirmative evidence on record in the form of revenue record that the
plaintiff's vendor was in possession on the date of abolition and thereafter
plaintiff remained in possession at any point of time. This Court has
observed in Sir Bhimeshwara Swami Varu Temple v. Pedapudi Krishna
Murthi and Ors., AIR 1973 SC 1299 that by stray entry no such
presumption arises. On the other hand, the successive five attempts
made by the plaintiff and his vendor failed to obtain ryotwari patta as no
right in such land existed neither accrued. The plaintiff due to failure to
obtain ryotwari patta and even otherwise as land formed part of tank
has failed to prove entitlement to be treated as Ryot. No right, title or
interest has accrued to the plaintiff to obtain any ryotwari patta or for
obtaining decree in the suit.
46. It was urged before us on behalf of the appellant that suit was
barred by limitation by virtue of provisions contained in Article 58 of the
Limitation Act 1963. The suit was required to be filed within three years.
We need not go into the question. We have found on merits that absolutely
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no case is made out in favour of the plaintiff. Thus, he was not at all
entitled for any relief.
47. The High Court has considered another aspect of the difference
in area, it has opined that earlier it appeared that land was 15.00 acres
only later on how the area was increased to 24.62 acres has not been
explained by the defendants. The aforesaid reasoning recorded by the
High Court is totally based upon the ignorance of the material aspects
and evidence, as a matter of fact earlier dispute land was comprised in
survey no. 779 and which corresponding to new s.no. 163 in 24.67 acres,
said area has been continuously recorded in the revenue papers and
register of settlement, right from the beginning. After 1948 till 1995, no
cogent document indicating the disparity in the area has been filed by
the plaintiff.