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2009 DIGILAW 1080 (MAD)

Ecof Industries Pvt. Ltd. v. Janabai & Others

2009-04-13

S.K.KRISHNAN

body2009
Judgment 1. This Second Appeal has been preferred against the Judgment and decree, dated 11. 1994 passed by the learned Prinicipal District Judge, Pondicherry in A.S.No.126 of 1993, confirming the judgment and decree, dated 111. 1993 made in O.S.No.418 of 1992 by the learned I Addl. Distict Munsif, Pondicherry. 2. The appellant herein is the Company which is a subsequent purchaser of the suit property from the plaintiffs in O.S.No.418 of 1992 on the file of the I Addl. District Munsif, Pondicherry, pending disposal of the appeal A.S.No.126 of 1993 on the file of the Principal District Judge, Pondicherry. The appellant got itself impleaded as the 7th respondent in A.S.No.126 of 1993 by order, dated 8. 1994 made in I.A.No.353 of 1994. 3. The suit in O.S.No.418 of 1992 was filed by the respondents 1 to 6 herein seeking a declaration of their title to the suit property measuring about 1 Hectare 48 are equivalent to 2 Kanies 76 Kuzhies 9/16 veesams in Cd No.15, 299/301, R.s.No.19/2 of Setharapet Village, Vilianur Commune, Pondicherry – Villinanur Sub-Registry, Pondicherry and for a consequential permanent injunction restraining the defendants therein from interfering with their peaceful possession and enjoyment of the suit property. 4. The brief averments in the plaint are as follows: The suit properties originally belonged to one Boovaragamurthy who died leaving behind his four sons by name venkatraman, Subramanian, Viswanathan and Ramakrishnan. It is further averred that one of the sons, namely, Ramakrishnan died without issues and Viswanathan died leaving behind his one son by name Krishnamoorthy who also died issueless. The other son Subramaniam had died leaving behind one son by name Aswathanarayanan who had executed a will bequeathing his share in the suit property in favour of the first plaintiff. According to the plaintiffs the first plaintiff and the other heirs of Venkatraman had entered into a partition on 12. 1986 by virtue of a registered deed in and by which the suit property was allotted to the plaintiffs. On the strength of the said partition deed the plaintiffs have been in possession and enjoyment of the suit property. According to the plaintiffs the first plaintiff and the other heirs of Venkatraman had entered into a partition on 12. 1986 by virtue of a registered deed in and by which the suit property was allotted to the plaintiffs. On the strength of the said partition deed the plaintiffs have been in possession and enjoyment of the suit property. Since the defendants who have no right over the suit property attempted to interfere with the possession of the plaintiffs, the plaintiffs made enquiries and found that the revenue records stood in the name of the defendants 1 to 4, the plaintiffs had therefore, approached the Director of Settlements, Pondicherry and sought rectification of the revenue records and the Director by his proceedings, dated 24. 1991 bearing No.DOS/PA/2876/1991 had ordered rectification of the settlement records thereby including the name of the plaintiffs in the records. According to the Plaintiffs the defendants had attempted to interfere with their possession on 26. 1992 which forced to them to file the above suit. 5. The defendants 1 to 4 resisted the said suit contending that the suit property never belonged to the plaintiffs or their ancestors. According to the defendants, the suit properties were assigned to them by the Government of Pondicherry under the Pondicherry Land Grand Rules 1975 on 9. 1978. The defendants had further claimed that they were cultivating the suit properties and paying taxes and other charges to the Government even prior to the assignment in their favour. The defendants had also given details of the crops raised by them in the suit property. 6. On the above pleadings, the learned District Munsif framed the necessary issues and after trial decreed the suit holding that order of the Director of Settlement dated 24. 1991 cannot be called in question in the civil suit in view of the bar enacted under Section 25(2) of the Pondicherry Settlement Act 1970. The learned District Munsif was also of the view that the defendants having not questioned the order of the Director of settlements dated 24. 1991 cannot now seek to challenge the same. The learned District Munsif also came to the conclusion that the defendants have not established their possession on the date of the suit. 7. Aggrieved by decree in the suit, the defendants 1 to 4 had filed A.S.No.126 of 1993 on the file of the learned principal District Judge, Pondicherry. 1991 cannot now seek to challenge the same. The learned District Munsif also came to the conclusion that the defendants have not established their possession on the date of the suit. 7. Aggrieved by decree in the suit, the defendants 1 to 4 had filed A.S.No.126 of 1993 on the file of the learned principal District Judge, Pondicherry. The learned Principal District by his judgment and decree dated 11. 1994 allowed the appeal and dismissed the suit. The learned Principal District Judge and found that the bar enacted under Section 25(2) of the Pondicherry Settlement Act, 1970 will not be attracted in view of the fact that it has not been established that the order dated 24. 1991 marked as Ex.A2 had been passed after notice to the defendants in the suit. The learned Principal District Judge had also found that the said order has been passed on application dated 14. 1991. He had also taken exception to the manner in which the order has been passed within four days from the date of the application. The lower appellate Court had also taken note of the fact that from the partition deed dated 12. 1986, the plaintiffs have not produced any document to show their title to the property in question. Against this judgment of the learned Principal District Judge, the present appeal has been filed. 8. Respondents 10 to 13 were brought on record as legal heirs of 7th respondent in this appeal, vide order in CMP No.2043 of 2008. Likewise, respondents 14 and 15 were brought on record vide order in CMP No.2046 of 2008 dated 112. 2008 as the legal heirs of 9th respondent. The legal heirs of the 9th respondent were brought on record vide order dated 2. 2008 in CMP No.1073 of 2007. 9. At the time of admission of the above second appeal, the following Substantial questions of law were framed. 1. Whether the order made under Ex.A2 dated 24. 1991 is binding on the court to hold that the plaintiffs are entitled to the suit property on this ground alone? 10. Heard Mr. Vijayanarayan learned senior counsel appearing for the appellant and R. Subramanian and Mr. M.K. Subramanian, learned counsel appearing for the respondents. 11. The only core question to be decided in this appeal is, whether the order of the Director of Settlement dated 24. 10. Heard Mr. Vijayanarayan learned senior counsel appearing for the appellant and R. Subramanian and Mr. M.K. Subramanian, learned counsel appearing for the respondents. 11. The only core question to be decided in this appeal is, whether the order of the Director of Settlement dated 24. 1991 Ex.A2 is binding on the civil Court in deciding the question of title. 12. When this appeal is taken up, Mr.V ijaynarayan, learned senior counsel appearing for the appellant, while placing reliance on Section 25(2) of the Pondicherry Settlement Act, 1970, would contend that the Civil Court cannot go behind the order of the Director of settlement, namely Ex.A2 and decide on rival claims of title. In support of this contention, the learned senior counsel relied upon the decision reported in “ 1994 (6) SCC 572 (Srikant Kashinath Jituri And Others Versus Corporation Of City Of Belgaum)” And “1993 Supp. (3) SCC 389 (Jyotendrasinhji Versus S.I. Tripathi And Others)”. 13. On the other hand, the learned counsel appearing for the respondents would contend that the order of the Director of Settlements cannot take away the title vested in the respondents under the orders of assignments dated 9. 1978 marked as Ex.B3 series. He would rely upon the judgment of the FULL BENCH of this Court reported in “AIR 1980 Madras 180 (Periathambi Goundan Versus The District Revenue Officer, Coimbatore And Others)”, in support of his contention that the embargo enacted under Section 25(2) of the Pondicherry Settlement Act, 1970 should be confined only to the questions that are left to be decided by the authorities under the ACT. 14. Before dealing with the rival submissions, the scope and ambit of the provisions of the Pondicherry Settlement Act, 1970 should be taken into account. The presumable of the said Act runs as follows: .“An act to provide for the settlement of lands and the assessment thereon in the union territory of Pondicherry and for the preparation of land records and for matters connected there with or ancillary thereto.” 15. Chapter 5 of the said Act, namely, Sections 23 to 31 deal with correction of mistakes and records, delegation of powers, bar of suits in civil courts, protection of action taken in good faith, power to make rules, etc., The provisions of Sections 23 and 25 assume importance in view of the question of law framed by this Court. Chapter 5 of the said Act, namely, Sections 23 to 31 deal with correction of mistakes and records, delegation of powers, bar of suits in civil courts, protection of action taken in good faith, power to make rules, etc., The provisions of Sections 23 and 25 assume importance in view of the question of law framed by this Court. Section 23 of the Act reads as follows: “23(1) The Director or the Settlement Officer may either of his own motion or an application of any person. (a) if he is satisfied that the bona fide mistake has been made in record to any decision or proceedings under this Act, make or cause to be made the necessary correction thereon. (b) at any time correct or cause to be corrected any clerical or arithmetical mistake in any such decision or proceeding. (c) The Collector may at any time during the currency of settlement correct any error in the area or assessment of any survey number or subdivision due to a mistake of survey or arithmetical miscalculation. Provided that no arrears of land revenue accruing to the Government or refund thereof to the registered older shall become payable by reason of such correction.” 16. Section 25 of the said Act reads as follows: 25(1). No suit shall lie in any civil Court to set aside or modify any assessment made under this Act. (2) Except as otherwise provided in this Act the decision of any authority of officer under this act shall be final and no Civil Court shall have jurisdiction to decide or dealt with by the authorities or officers under this Act is required to be decided or dealt with by the authorities or officers under this Act.” 17. From a conjoint reading of the above provisions, it is clear that the power under Section 23 namely, the power to correct mistakes can be exercised by the Director of Settlement or the Settlement Officer in two contingencies namely, a mistake in regard to any decision or proceeding under the Act or a clerical or arithmetical error in such decision or proceeding. Sub section 2 of Section 23 empowers the Collector to correct an error in the area of assessment of any survey number of subdivision due to a mistake of survey or arithmetical miscalculation. 18. Sub section 2 of Section 23 empowers the Collector to correct an error in the area of assessment of any survey number of subdivision due to a mistake of survey or arithmetical miscalculation. 18. In my considered opinion, the Director of Settlement has no power to correct the name of the assessee or the owner in the settlement records in the guise of exercising his power under Section 23 of the Pondicherry Settlement Act. As seen from the provisions extracted above, the power to correct mistakes is confined only to two situations. By no stretch of imagination, the order dated 24. 1991 Ex.A2 can be brought under Section 23 of the Pondicherry Settlement Act. Further, as rightly pointed out by the lower appellate Court, the order has been passed on application dated 14. 1991 within four days of the receipt of the application. From the proceedings, it is not clear as to whether the respondents were heard before the correction was directed to be carried out. It is a trite position of law that no order to prejudicial to any person shall be made without he being heard. A reading of the order of the Director of Settlement namely, Ex.A2 would show that the same has been passed only on the basis of the registered partition deed, a publication made in the newspaper, encumbrance certificates and certain tax receipts. It is also seen that the fact that the lands in question were assigned to the respondents was not at all considered by the Director of Settlements. Now adverting to the provisions of Section 25(2) of the Pondicherry Settlement Act, what is barred under the said section is the jurisdiction of the civil Court to decide or deal with any question which under the said Act is required to be decided or dealt with by the authorities or officers under the said Act. The extent of the embargo placed on the jurisdiction of the civil Courts by the some of these enactments has been considered by the Courts on various occasions. A Full Bench of this Court had considered the scope and ambit of the embargo created by section 16-A of the Tamil Nadu Agricultural Land Record of Tenancy Rights Act (10 of 1969) in the decision reported in “ AIR 1980 Mad 180 ”. A Full Bench of this Court had considered the scope and ambit of the embargo created by section 16-A of the Tamil Nadu Agricultural Land Record of Tenancy Rights Act (10 of 1969) in the decision reported in “ AIR 1980 Mad 180 ”. The following extract from the said judgment will be helpful in deciding the scope of the embargo created by Section 25(2) of the Pondicherry Settlement Act, 1970. “36. The next aspect be considered is the ascertainment of the ambit amplitude and the extent of the interdict imposed by Section 16-A of the Act on the exercise of jurisdiction by Civil Court. We have already extracted Section 16-A. Two things are clear from the language of the Section. One is, the interdict is on the jurisdiction of the matters which by or under the Act have to be determined by the Record Officer, the District Collector of other Officer or authority empowered by the Act. The Section itself does not enumerate as to what those matters are. The second is, the interdict is not on any particular proceeding in the civil Court, but only on the exercise of jurisdiction in respect of matters. Controversies that come before Court or a Tribunal cannot either be pigeonholed or put in strait jackets. They may be of different varieties as well as different standards. For the purpose of deciding the main controversy the Court or tribunal may have incidentally to decide a number of subsidiary questions or controversies. Therefore, when the section itself does not enumerate the matters in respect of which the jurisdiction of the civil Court is ousted, one will have to ascertain the said matters, with reference to the other provisions of the Act conferring power or jurisdiction on the authorities functioning under the Act and some others outside the jurisdiction. In such a case, the suit or proceeding as such cannot fail unless the case is of such a nature that can be terminated solely on the determination of the matter falling within the jurisdiction of the authorities functioning under the Act. Since the section itself does not bar the institution of the suit or other proceeding it is unnecessary to labour on the second aspect any further. “37. We shall now proceed to consider the first aspect of the matter. Since the section itself does not bar the institution of the suit or other proceeding it is unnecessary to labour on the second aspect any further. “37. We shall now proceed to consider the first aspect of the matter. As far as the first aspect is concerned, as we have pointed out already, we have to ascertain the matters covered by Section 16-A with reference to the other provisions of the Act dealing with the matters to be determined by the authorities functioning under the Act. Two provisions in the Act which are relevant in this behalf are Section 3(2) and Section 14(1) which we have extracted already. Section 3(2) of the act refers to the Act refers to the particulars which the record, directed to be prepared under subsection (1) thereof, should contain, while Section 14(1) provides for a certified copy of the record being annexed to an application made in pursuance of the provisions of the enactments enumerated therein. The object of the act as well as provisions contained in Section 3(2) makes it clear that the record officer or the appellate or revisional authority has to determine the following matters, viz., i) the survey number, subdivision number, extent and local name, if any, of the land left for cultivation by a tenant; ii) the name and address of the landowner; iii) the name and address of the intermediary, if any, and iv) the name and address of the tenant cultivating the land. It may be prime facie stated that these are the four matters which are required to be determined by the record officer or the appellate or revisional authority under the provisions of the Act. However, the necessity to determine these questions may occur in the context of different controversies are not purely on a specific dispute with respect to these particulars. Even the determination of the particulars enumerated in Section 3(2) cannot be in isolation in respect of any particular matter but can only be in the context of preparing the approved the record showing the particulars in respect of the land and who is the tenant and who is the land owner. For instance, the statutory requirement for the preparation of a record under the Act is that the land must have been let for cultivation by a tenant. For instance, the statutory requirement for the preparation of a record under the Act is that the land must have been let for cultivation by a tenant. A controversy may arise whether the land has been let for cultivation by a tenant at all. The question to be considered is whether the determination of that Controversy is within the exclusive jurisdiction of the authorities functioning under the Act so as to bar the jurisdiction of the civil Court under Section 16-A. From the language of Section 3(2), it cannot be stated that the determination of the controversy is within the exclusive jurisdiction of the authorities functioning under the Act, though basic and fundamental to the exercise of the jurisdiction by the record officer and other authorities under the Act. The very object of the Act is to provide for preparation and maintenance of record of tenancy rights in respect of the land there is no question of any further particulars being determined. This aspect is made clear even from the definition of the expression land owner occurring in Section 2(5) of the Act, because according to the said definition, ‘land owner’ means the owner of the land let for cultivation by a tenant and includes the heirs, assignees or legal representatives of such owner or person the deriving rights through him. Consequently, the controversy as to whether a particular piece of land has been let for cultivation by a tenant or not is one constituting the jurisdictional issue which a record Officer has to decide before he can determine any other matter under the Act. But that controversy cannot be said to be within the exclusive jurisdiction of the authorities functioning under the Act, because to hold so will enable the statutory authorities to assume jurisdiction by erroneously deciding the jurisdictional issue. If the controversy arises the authorities functioning under the Act, have necessarily to decide the same, because a decision on that controversy alone will determine the jurisdiction of the authorities functioning under the Act. If the decision is that the land has been let for cultivation by a tenant then, the record officer will have jurisdiction to determine the further particulars for in Section 3(2) of the Act. If the decision is that the land has been let for cultivation by a tenant then, the record officer will have jurisdiction to determine the further particulars for in Section 3(2) of the Act. If, on the other hand, the decision on the controversy is that the land has not been let for cultivation by a tenant there is no question of there being a tenancy rights in respect of the said land and consequently there is no question of the record officer ascertaining or determining any further particulars in this behalf. Therefore, if such controversy arises that controversy cannot be said to be within the exclusive jurisdiction of the authorities functioning under the Act, and any determination of the controversy by the authorities can be said to be only incidental to the assumption of jurisdiction by the authorities under the Act. Subject to this qualification, it can be held that once the record Officer or any other authority functioning under the Act has come to the conclusion that the land has been let for cultivation by tenant, the matters provided for in Section 3(2), have to be determined by the record officer or other authority functioning under the Act, and to that extent the jurisdiction of the Civil Court is barred under section 16-A of the Act.” 19. It is relevant to extract the observations made by the Full Bench, which are as follows: “We are merely referring to these cases only by way of illustration for the purpose of showing that it is not every suit or proceedings instituted in civil Court which raises one or other of the matters enumerated in Section 3(2) of the Act, which are to be determined by the authorities functioning under the Act, that will fail and what Section 16-A of the Act bards is the exercise of jurisdiction by Civil Court in respect of matters referred to already and not the jurisdiction to deal with the suit or proceeding in other respects.” 20. From the above extracts, it will be clear that whenever a bar is imposed by a statutory enactment on the jurisdiction of the civil Court, it has to be looked into as to what is the extent of the bar imposed by the enactment. From the above extracts, it will be clear that whenever a bar is imposed by a statutory enactment on the jurisdiction of the civil Court, it has to be looked into as to what is the extent of the bar imposed by the enactment. The provisions of Section 25(2) of the Pondicherry Settlement Act extracted above would show that the bar imposed by the enactment is only with regard to matters which are required to be decided by the Director of Settlements under the Act. The object of the enactment already referred to would show that the object is to provide for settlement of lands and assessment thereon in the Union territory of Pondicherry and for the preparation of land records or for matters connected their with or ancillary thereto. The reading of the provisions of the Act also would demonstrate that the Act is intended for preparation of the land records and for collection of land revenue. This being so, it cannot be said that the order passed by the Director of Settlements under Section 23 of the Act would have the effect of debarring the civil Court from going into the question of title. 21. The learned counsel appearing for the respondents had also relied upon the judgment of another Full Bench of this Court reported in 1998(2) LW 189 . The question that was referred to the Full Bench in the above said decision is as follows: “In the result, I direct the office to place the papers connected with these two second appeals before My Lord the Hon’ble officiating Chief Justice for consideration to post these cases before a larger Bench to decide the issue whether the jurisdiction of the Civil Court to try a suit for declaration of title and injunction is barred by reason of grant of patta under the provisions of Tamil Nadu Act 30 of 1963”. 22. 22. After referring to various decisions of the Hon’ble Supreme Court as well as this court, the Full Bench has observed the following: “Consequently, in our view, the ratio of the decisions of the Apex Court reported in AIR 1986 SC 794 = 98 LW 849 (supra) and (1995) 4 SCC 156 = 1995-I-LW 731 (supra) and (1998) 2 SCC 642 (supra) and that of the Division Bench of this Court in 1992-I-LW 207 (supra) would squarely apply and govern the case and consequently, it has to be necessarily held that the jurisdiction of the Civil Courts cannot be held to have been completely ousted or barred at any rate in respect of adjudication of claims of title and questions or issues which are not obliged or questions or issues which are not obliged or required to be adjudicated for the purpose of enforcement of these laws which have as the object and aim to implement Pyotwari Settlement in the areas governed by them.” 23. Adverting to the decision relied upon by the learned senior counsel appearing for the appellant, it would pointed out that both the decisions may not be applicable to the facts of the present case. The judgment reported in (1994) 6 SCC 572 deals with a suit in which the enforcement of property tax was challenged as excessive, arbitrary, unreasonable and illegal. In such circumstances, the Hon’ble Supreme Court had observed that the jurisdiction of the Civil Court is barred in view of the fact that the appellate remedies provided under the Municipalities Act have not been pursued. Even in the said judgment the Hon’ble Supreme Court has pointed out that as laid down in “Dhulabhai’s case reported in AIR 1969 SC 78 , the bar arising by the necessary intendment can be overridden in cases and situations pointed out in the above judgment of the Hon’ble Supreme Court. The other decision of the Hon’ble Supreme Court reported in “1993 Supp (3) SCC 389, arose under the Income Tax Act, wherein the Hon’ble Supreme Court pointed out that the extraordinary jurisdiction of the High Courts under Article 226 of the Constitution of India, cannot be availed of without exhausting the statutory remedies provided under the enactment. I am afraid that this decision may also be not of much help to the appellant. 24. I am afraid that this decision may also be not of much help to the appellant. 24. Adverting to the facts of the case on hand, it could be seen that the order of the Director of settlement, dated 24. 1991 cannot at any stretch of imagination, the termed as one which covers an issue that is required to be decided by the authorities under the Pondicherry Settlement act, 1970. This being so, I am afraid that the question of law framed by this court at the time of admission of the above second appeal has to be answered in the negative. At this juncture, I must also point out that the factual aspects decided by the lower appellate Court on the question of the great urgency exhibited by the Director of Settlements in passing the order dated 24. 1991 have not been effectively challenged by the learned senior counsel appearing for the appellant. 25. On the question of possession, the lower appellate Court had as of fact found that the respondents herein have established their possession on the date of the suit under the orders of assignment granted by the Government of Pondicherry even as early as 1978. 26. In view of the above findings, this Court is inclined to confirm the judgment and decree of the lower appellate Court. Accordingly, the Second Appeal is dismissed confirming the judgment and decree of the appellate Court in A.S.No. 126 of 1993. However, the parties are directed to bear their own costs.