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2021 DIGILAW 3367 (MAD)

Adaikka Muthiriyar v. Kandasami(died)

2021-12-01

R.VIJAYAKUMAR

body2021
JUDGMENT : (Prayer: Second Appeal is filed under Section 100 of C.P.C, against the judgment and decree dated 17.02.1993 made in A.S.No.58 of 1990 on the file of Subordinate Court, Karur, preferred against the judgment and decree dated 20.02.1990 made in O.S.No.86 of 1984 on the file of Additional District Munsif Court, Kulithalai.) 1. The plaintiffs 1, 3, 4 and 5 are the appellants herein. 2. The plaintiffs filed O.S.No.86 of 1984 before the Additional District Munsif Court, Kulithalai for the relief of declaration, recovery of possession and for passing of future mesne profits. The suit was dismissed by the trial Court. The plaintiffs filed A.S.No.58 of 1990 before the Sub Court, Karur and the first appeal has also been dismissed. As against the same, the present second appeal has been filed. 3. The plaintiffs had contended that the suit 'A' schedule property, having an extent of 21.77 acres in Survey No.141 is a tank poromboke. According to the plaintiffs, 'B' Schedule property consisting of 1.40 acres is part of 'A' schedule property. The plaintiffs further contended that the suit 'A' schedule property and the Well located in the said property are being treated as a communal land by the villagers of Seppalapatti Village. The plaintiffs further contended that 'B' schedule property is part of 'A' schedule property and it is located slightly on a higher plane. The plaintiffs further contended that the first defendant had managed to obtain a patta in his name under the settlement scheme. The patta has been granted behind their back and hence, they have filed the present suit in the representative capacity, representing the villagers of Sepplapatti. 4. The first defendant filed a written statement disputing the representative character of the plaintiffs. The first defendant further contended that 'B' schedule property was purchased by him under Exhibit A3 dated 28.11.1923 and he is in possession and enjoyment of the same from the said date onwards. The first defendant further contended that the suit property was taken over by the Government under Act 26 of 1948 and a settlement patta has been granted in his favour under Exhibit A16. The plaintiffs have not questioned the settlement patta or subsequent revenue patta granted in his name under Exhibit B45 and hence, the present suit is not maintainable. 5. The plaintiffs have not questioned the settlement patta or subsequent revenue patta granted in his name under Exhibit B45 and hence, the present suit is not maintainable. 5. The trial Court after considering the oral and documentary evidence, came to a conclusion that the plaintiffs have not proved that the suit schedule properties are tank poromboke. The trial Court further held that notice issued under Section 80 of C.P.C by the plaintiff to the second defendant is not in proper form and hence, the suit is not maintainable. The trial Court also found that the plaintiffs have not established that the suit properties were used by the villagers. The trial Court further held that even assuming that the suit schedule properties are the tank poromboke, the plaintiffs cannot claim title and recovery of possession. The trial Court also found that the plaintiffs are not the representatives of the villagers. The trial Court further held that patta has been granted in favour of the first defendant way back in the year 1972 and the said fact is also known to the plaintiffs. However, the present suit has been filed only in the year 1984 and the suit is barred by limitation. Based upon the said findings, the trial Court dismissed the suit. 6. The First Appellate Court reversed the findings with regard to the validity of Section 80 notice and held that the notice under Section 80 of C.P.C has been validly issued. However, proceeded to hold that the suit has been filed beyond the period of 3 years from the date of issuance of the settlement patta in favour of the first defendant and found that the suit is barred by limitation. The First Appellate Court also found that the plaintiffs are not the real representatives of the villagers and hence, the application under Order -1 Rule 8 C.P.C is not maintainable. The First Appellate court also confirmed the findings of the trial Court that the plaintiffs have not proved that the suit schedule properties are tank poromboke. However, the First Appellate Court found that Exhibit B16 would reveal that the suit schedule properties are ryoti land and hence, the patta has been granted in favour of the first defendant is legally valid. Based upon the said finding, the First Appellate Court dismissed the first appeal. As against the same, the present second appeal has been filed. 7. However, the First Appellate Court found that Exhibit B16 would reveal that the suit schedule properties are ryoti land and hence, the patta has been granted in favour of the first defendant is legally valid. Based upon the said finding, the First Appellate Court dismissed the first appeal. As against the same, the present second appeal has been filed. 7. The following substantial questions of law have been framed at the time of admission: “(i)whether the suit is barred by limitation? (ii) whether the appellants are not competent to maintain the suit in a representative capacity? 8. I have heard the learned counsel appearing on either side. 9. The learned counsel for the appellants contended that the settlement officer has no jurisdiction to grant patta with regard to the tank poromboke under Section 11 of Tamil Nadu Estates (Abolition and conversion into Ryothwari) Act 26 of 1948. The learned counsel further contended that as per Section 3(16) of Madras Estates Land Act, 1908, a ryoti land does not include beds and bounds of tanks. According to him, only the occupants of the ryoti land will be entitled to patta under Act 26 of 1948. 10. In the present case, the suit property being a tank poromboke. Patta granted in favour of the first defendant is null and void and he cannot claim any title under Exhibit B16 settlement patta. 11. A perusal of Exhibit B16 reveals that the first defendant had contended before the authorities that his ryoti land has been wrongly classified as tank poromboke and included in Survey No.141. The said contention was accepted by the settlement officer after verifying the old records and he had come to the conclusion that the property in possession of the first defendant was in fact a ryoti land and not a tank poromboke. Only after arriving at such a factual conclusion, the statutory authority had issued a settlement patta in favour of the first defendant for an extent of 1 acres and 40 cents. This order has been passed on 10.01.1972. The present appellants have not challenged the grant of patta under Act 26 of 1948. As per Section 64(c) of Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948, any order passed by the Government or other authority under this Act, they are final, subject only to the appeal or revision provided under the Act. The present appellants have not challenged the grant of patta under Act 26 of 1948. As per Section 64(c) of Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948, any order passed by the Government or other authority under this Act, they are final, subject only to the appeal or revision provided under the Act. It is true that the jurisdiction of the civil Court to adjudicate upon the title, is not barred even after an order passed by the statutory authority, if there is a rival claim between the parties. But in the present case, even according to the plaintiffs, the suit schedule properties are tank poromboke and hence, the plaintiffs cannot be said to be making a rival claim to Survey No.141 in order to drag the jurisdiction of the civil Court. Moreover, the Courts below have specifically found that the suit 'B' Schedule property is not forming part of the tank poromboke. 12. The Courts below have found that the patta has been granted in favour the first defendant under Exhibit B16 on 10.01.1972 and revenue patta has been granted to the first defendant under Exhibit B45 on 27.09.1985. The appellants have not chosen to challenge the said order. That apart, even assuming that the case of the plaintiffs is true with regard to 'A' schedule property, the title of a tank poromboke will vest only with the Government and the plaintiffs will not be entitled to get a decree for declaration in favour of the villagers. When it is the case of the plaintiffs that 'B' schedule properties is part of a tank poromboke, the question of seeking recovery of possession in favour of private individual does not arise. 13. The Courts below have found that there is previous personal enmity between the plaintiffs and the first defendant. Hence, the Courts below have rightly come to the conclusion that the plaintiffs are not the representatives of the villagers. The settlement patta has been granted in favour of the first defendant on 10.01.1972 and this was also known to the plaintiffs. But the plaintiffs have chosen to file the present suit only after three years. Hence, the Courts below have rightly held that the suit is barred by limitation. 14. Hence, view from any angle, this Court does not find any illegality or perversity in the judgment and decree of the Courts below. But the plaintiffs have chosen to file the present suit only after three years. Hence, the Courts below have rightly held that the suit is barred by limitation. 14. Hence, view from any angle, this Court does not find any illegality or perversity in the judgment and decree of the Courts below. All the substantial questions of law are answered as against the appellants. The second appeal stands dismissed. No costs.