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2022 DIGILAW 672 (MAD)

Sangaiah v. District Collector, Sivagangai

2022-03-16

R.VIJAYAKUMAR

body2022
JUDGMENT (Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code, to set aside the judgment and decree dated 20.02.2012 in A.S.No.65 of 2011 on the file of the Sub Court, Sivagangai confirming the judgment and decree passed in O.S.No.31 of 2009 dated 31.08.2010 on the file of the District Munsif Court, Sivagangai and to allow the second appeal.) 1. The plaintiff is the appellant. 2. The plaintiff filed O.S.No.31 of 2009 before the Principal District Munsif Court, Sivagangai for permanent injunction not to disturb his enjoyment over the suit Oorani which belongs to him ancestrally. The suit was dismissed by the trial Court. The plaintiff filed A.S.No.65 of 2011 before the Subordinate Court, Sivagangai. The learned Subordinate Judge was pleased to dismiss the appeal. As against the concurrent finding, the present second appeal has been filed by the plaintiff. 3. It is the case of the plaintiff that the mother of his grandfather namely Karuvakkal had purchased the suit schedule property in the year 1907 under Exhibit A3 from one Saumya Narayana Ayyengar through an Olaimuri. The plaintiff further contended that to the east and south of the suit schedule property, the plaintiff's properties are located for which the water is drawn from the suit Oorani. 4. According to the plaintiff, the Oorani is being maintained by the ancestor of the plaintiff and by the plaintiff himself for irrigating the patta lands which are adjacent to the suit Oorani. Hence, he claimed that he has acquired title to the suit Oorani. The plaintiff further contended that the Oorani has been shown as Karuvakkal Oorani in the revenue records and the same has been enjoyed only by the family members of the plaintiff. The defendants, villagers or any other agriculturists do not have any right to enjoying over the suit Oorani. The plaintiff further contended that the Government is attempting to declare as if the suit Oorani is a public tank and they are attempting to deepen and widen the suit Oorani without permission of the plaintiff. Hence, the present suit for permanent injunction. 5. The first defendant namely the District Collector, Sivagangai has filed a written statement contending that the suit village namely Moovar Kanmaai Village was taken over by the Government under the Estates Abolition Act (Act 26 of 1948) on 07.09.1949. Thereafter, the ryotwari settlement was introduced for the said village. Hence, the present suit for permanent injunction. 5. The first defendant namely the District Collector, Sivagangai has filed a written statement contending that the suit village namely Moovar Kanmaai Village was taken over by the Government under the Estates Abolition Act (Act 26 of 1948) on 07.09.1949. Thereafter, the ryotwari settlement was introduced for the said village. At the time of settlement of ryotwari proceedings, the suit survey No.143/4 has be classified as Government poromboke for the entire extent of 2 acres and 10 cents and it has been declared as Karuvakkal Tank in the village account. The defendants disputed the title of the plaintiff and also the genealogy as claimed by the plaintiff. That apart, since the suit schedule property has been declared to be a tank poromboke under the settlement proceedings, the plaintiff ought to have filed his objection within a period of two months from 04.12.1961 under Section 64(c) of Estates Abolition Act No.26/48. The defendants further contended that as per Section 14A of Act 26/48, patta cannot be granted to a private tank. That apart, any patta that has already been erroneously granted under Act 26/48, stood automatically cancelled in view of the Amendment Act 49/1974. The defendants further contended that the said tank is being used as a drinking water source by villagers of Azhagapuri, Karuvikkanmaai and Gopalpattinam. For the said purpose, footsteps have also been constructed in the said tank. It is a drinking water source and the same was never used for agricultural purpose at any point of time. According to the defendants, there is no encroachment by any one over the said waterbody. Hence, he prayed for dismissal of the suit. 6. After consideration of the oral and documentary evidence, the trial Court arrived at a finding that the plaintiff has not established his title over the suit schedule property. According to the plaintiff, the mother of his paternal grandfather one Karuvakkal had purchased the suit schedule property under Exhibit A3. Even as per recital in Exhibit A3, the value mentioned therein is Rs.250/-. However, the document has neither been stamped nor been registered. Hence, the trial court rejected the said claim. Though the plaintiff was granted patta under Exhibit A2 during UDR proceedings, the said patta does not relate to the suit survey number namely 143/4. Even as per recital in Exhibit A3, the value mentioned therein is Rs.250/-. However, the document has neither been stamped nor been registered. Hence, the trial court rejected the said claim. Though the plaintiff was granted patta under Exhibit A2 during UDR proceedings, the said patta does not relate to the suit survey number namely 143/4. The SLR copy has been filed on the side of the plaintiff relating to the suit property. The said SLR copy clearly discloses that the suit schedule property is Karuvakkal Oorani. 7. The trial Court relied upon Exhibit B2, VAO certificate. As per the said certificate, the suit survey is classified as a waterbody and it is a drinking water source for the three villagers. The trial Court also relied upon Exhibit B3 which is a copy of 'A' register of the village under which the suit survey number is classified as Karuvakkal Oorani. The trial Court further found that the plaintiff has not established his genealogy. Hence, the trial Court dismissed the suit. 8. The First Appellate Court has independently analyzed each one of the documents filed on the side of the plaintiff and the defendants and thereafter, arrived at a finding that the plaintiff has not established his title and hence, he is not entitled to a decree for permanent injunction as against the Government. As against the concurrent findings, the present second appeal has been filed. 9. The learned counsel for the appellant contended that the mother of the plaintiff's grandfather namely Karuvakkal had purchased the suit schedule property under Exhibit A3. From the said date onwards, the plaintiff's family is in possession and enjoyment of the suit Oorani. According to the learned counsel for the plaintiff, Oorani is a private Oorani and neither the Government nor the villagers do have any right over the suit tank. The learned counsel for the appellant further contended that the private tank has been wrongly classified as public tank and the local body has put up footsteps in the private tank pending suit. He further contended that the Courts below have not properly appreciated Exhibits A1 to A3. He further contended that Exhibit B3, a copy of 'A' register in the village, will also disclose that the suit schedule property is classified as Karuvakkal Oorani. Hence, he prayed for admitting the above second appeal. 10. He further contended that the Courts below have not properly appreciated Exhibits A1 to A3. He further contended that Exhibit B3, a copy of 'A' register in the village, will also disclose that the suit schedule property is classified as Karuvakkal Oorani. Hence, he prayed for admitting the above second appeal. 10. I have considered the submissions made on the side of appellants. 11. It is the specific case of the plaintiff that the suit Survey No.143/4 was purchased by the mother of his grandfather namely Karuvakkal in the year 1907 under an Olaimuri. A perusal of the said document would disclose the value of the property therein is Rs.250/-. The document is neither stamped nor registered. Hence, the same is inadmissible in law. 12. That apart, the plaintiff has claimed that one Muthaiyah is his grandfather and the said Muthaiyah's mother is Karuvakkal. The plaintiff has not produced any document to establish that he is the legal heir of the said Karuvakkal. The defendants have disputed the relationship in the written statement. Despite that, the plaintiff has not produced any document to establish his connection with the said Karuvakkal. 13. According to the plaintiff, it is a private Oorani which belongs to the plaintiff's family. The plaintiff claims that his family alone is enjoying the survey No.143/4 from the year 1907 onwards but not a single document has produced to show their exclusive enjoyment. The document namely Exhibit A1 SLR copy will show that it is classified as Karuvakkal Oorani. The plaintiff had obtained UDR patta under Exhibit A2 on 28.05.1985. However, the said patta does not include the suit Survey No.143/4. Hence, it is evident that the plaintiff or his ancestor were not in enjoyment of the suit survey number. On the other hand, the certificate issued by the Village Administrative Officer under Exhibit B2 will clearly indicate that the suit survey number is a waterbody which is the drinking water source for three villages. PW1 and PW2 have admitted in their cross-examination that the villagers are drawing drinking water from the suit tank. The plaintiff has also not established that he is drawing water from the suit tank to irrigate his private patta lands which are said to be located adjacent to the suit tank. 14. PW1 and PW2 have admitted in their cross-examination that the villagers are drawing drinking water from the suit tank. The plaintiff has also not established that he is drawing water from the suit tank to irrigate his private patta lands which are said to be located adjacent to the suit tank. 14. According to the defendants, the suit village namely Moovar Kanmai was taken over by the Government under Estates Abolition Act (Act No.26/1948). As per Section 14-A, in the said enactment, patta cannot be granted for private Oorani. Even assuming that if any patta has been granted, they stand automatically cancelled, in view of the amendment in Amending Act 49 of 1974. A perusal of the document filed on the side of the plaintiff will disclose that at no point of time, patta was granted in favour of the plaintiff for the suit tank. 15. Hence, the Courts below were right in arriving at a finding that the plaintiff has not established his title or possession over the suit tank. The plaintiff has also not raised any objection as contemplated under Act 26 of 1948 with regard to the classification of the said survey number as Oorani. 16. In view of the above said discussion, I do not find any question of law much less a substantial question of law that arises for consideration in the present Second Appeal. The judgment and decree of the Courts below are confirmed. The Second Appeal stands dismissed at the admission stage itself. No costs. Consequently, connected miscellaneous petition is closed.