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K. Vellappa Gounder and Sons and ors. Vs. K.S. Thirugnanasambandam Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberS.T. Ap. Nos. 23 to 26 etc., of 1976
Judge
Reported inAIR1981Mad100
ActsTamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 - Sections 3, 8 (1) and 13; Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 - Sections 19-A
AppellantK. Vellappa Gounder and Sons and ors.
RespondentK.S. Thirugnanasambandam Chettiar and ors.
Appellant AdvocateM.R. Narayanaswami, Adv. for ;R. Balasubramaniam and ;D. Raju, Advs.
Respondent AdvocateN.R. Chandran, Adv. for ;Addl. Govt.Pleader ;V. Natarajan, ;V. Nicholas, ;E. Padmanabhan and ;G.M. Nathan, Advs.
Cases ReferredSornasundaram Pillai v. Dorairaj
Excerpt:
civil procedure code (act v of 1908), order xxi rule 90--application pending--order confirming sale is illegal and will be set aside--expression made--order xxi, rule 92 cannot mean admission of application under order xxi in rule 90.; the properties were brought to sale in execution of the decree by the decree-holder. the first respondent purchased the property. thereafter the appellants and the fourth respondent filed an application to set aside the sale. the said application was returned for complying with certain requirements of the office. after complying with the requirements, the petition was re-presented in time and was later numbered. meanwhile the sale in favour of the first respondent had been confirmed. thereafter when this application and several other connected petitions..........village, palladam taluk, coimbatore district comprised in t. d. no. 174 was a devadayam minor inam land and it was granted to one mavalinga naicker, for performing "ugranam service" in the temple of sri. visweswaraswarni and veeraraghava perumnal at tirupur. on a reading of the provisions of the inam fair register extract relating to this minor inam, the settlement tahsildar came to the conclusion that it is personal inam burdened with service of the categories specified in section 8 (5) of the, tamil nadu minor inam (abolition. and conversion into ryotwari) act (act xxx of 1963), (here in after called the act). this finding that it is a personal inam burdened with service is not in dispute in this case. the grantee alienated the property by way of permanent lease sometime in 1864......
Judgment:
1. The land in RC No. 209/1 in Tiruppur village, Palladam taluk, Coimbatore District comprised in T. D. No. 174 was a Devadayam minor inam land and it was granted to one Mavalinga Naicker, for performing "ugranam service" in the temple of Sri. Visweswaraswarni and Veeraraghava Perumnal at Tirupur. On a reading of the provisions of the Inam Fair Register extract relating to this minor inam, the settlement Tahsildar came to the conclusion that it is personal inam burdened with service of the categories specified in Section 8 (5) of the, Tamil Nadu Minor Inam (Abolition. and Conversion into Ryotwari) Act (Act XXX of 1963), (here in after called the Act). This finding that it is a personal inam burdened with service is not in dispute in this case. The grantee alienated the property by way of permanent lease sometime in 1864. Subsequently the grantee sold and released the right of revision thus making the lessee an alienee of the grant itself. Though there was an attempt by the Government to resume the land on the ground of non-performance of service, that ultimately, ended in a settlement accepting the alienation as valid. This Anor inam was notified under the Act and taken over and the vesting date is 15-2-1965. It appears that almost -the entire area became house sites and on the date when the minor inam was notified and taken over, there were buildings on the sites. These properties were divided into two schedules in the order of the settlement Tahsildar. Schedule-A related to cases where the buildings and sites were owned by a single individual. Schedule B related to cases where the superstructures were owned by different persons, but the sites were owned by the alienees from the grantee who will hereinafter be referred to as the 'land owners'. The Settlement Tahsildar following a decision of this court reported in Silambani Sri Chidambara Vinavagar Swami Devastanarn v. Duraisami Nadar, held that the persons who owned the buildings and the sites would be entitled for a patta under Section 13 of the Act. In respect of these cases where the superstructures are owned by different persons: and not by the owners of the sites, a Joint patta was directed to be issued in favour of the persons owning the superstructure and the land owner. Both the land owners and the owners of the buildings preferred appeals in respect of cases where there were directions for issue of joint patta claimed that each was entitled to separate Pattas under Section 13 The Tribunal held that unless a person owns both the buildings and the site patta granted cannot be granted to the owner of the building alone and rejected the claim by the, owner of superstructures But Me Tribunal directed the issue of Patta to the land owners an the ground that they are the owners of the sites and therefore the site must be deemed to be the owners of the buildings and accordingly patta has to be issued to them Section 13. it is as against this judgment, these batches of cases are filed.

2. The finding that the Appelants in all them cases are the owners of the superstructures concerned in these cases is a concurrent finding and there we so grounds alas to intefere with the same. The finding of the Tribunal that the land owner owned site is a legal inference made by the Tribunal and that is disputed in these cases. According to the learned counsel for the appelants in view of the decision of this court, the land owner cannot claim a ryodwari patta under Section 8 (1) in respect of the after alone, nor can he claim a patta under Section 13 in respect of the building and the site as he did not awn the superstructure on the site. On the other hand, relying on the decision in 1Sri Kumara Kattalai Subramaniaswami Devastanam at Mayuram v. Sundaram Chettiar ILR (1975) Mad 501, and an unreported jadgement in Ramachandra Pillai v. Shanmugha Pillai, (S. A. 11313 of 1969 bv Ramanujam J.) the learned counsel fm the respondent (land owner) contended that in spite of the provisions in Section 3 (b) o f the Act, the land owner continued to be in constructive possession of the site even after the notified date and that, therefore, both the legal title and possession are with the land holder and as such he will either be entitled to a ryotwari patta under Section8(1)) or for a patta under See. 13 itself as a person owing the site.

3. Before dealing with these rival contentions. I may refer to the relevant provision under Section 13, which reads as follows "13 (1) Every building situated with in the limits of an inam land shall, with effect an and from the appointed day, vest in the person who owned it immediately before that day but the Government shall be entitled for each fasli year in which with the appointed day falls to levy the appropriate assess thereon.

(2) In this Section 'building' includes the site on which It stands and any adjacent premises occupied by an appurtenance thereon".

There was a similar provision in Madras Act 26 of 1948 in Secs. I8 (4) and I8 (5). On a construction of these Provisions a Division Bench of this Court in Silambani Sri Chidambaram, Vinayagar Swami Darastanam v. Duratswami Nadar, held that the provisions will be

attracted only to cases where the building as well as the site on which it stands belong to the same person on the date of notification and it will not apply to a case where the building and the site are owned by different persons. A another provision in Act 26 of 1963 was considered by another Division Bench in somasundaram Pillai v. Dorairaj 1979-1-Mad LJ 443. it was held in this case that in this case where the superstructure is owned by a person other then the landholder, the site over which the building stands will not vest in the landholder and that Section 2 (b) will vest the site also in the Government, To hold that the landholders. continue lo own the site ever which the buildings have been built by the tenants not with standing the notification, will be against the both of the general vesting contemplated in Section 3 (b). He can avoid that vesting of the site only if he had put up the building himself and not when some one else had put up a building therein. The landholder can not take advantage of the existence of the buildings Put up by some bodv else to claim that the site continuous to vest in him. The Bench also held that Section 3 (b) contemplates the vesting of all lands including gramanatham. But an exception has been made In Section 18 in respect of poromboke lands on whicb buildings had been ,erected, by treating such lands as part of the buildings and vesting them in he person owning the buildings.In another Bench decision reported in Natarajan v. Ram Kunrlruthai ,

considering the scope of vesting under Sec. & (b), and the provisions. of. Section 18 of Madras Act 26 of 1948. this Court held that the effect of Section I8 (4) is to recognise the pre-existing owner of the building in the persons concerned and if the land and the building are not owned by the same individual, vesting under Section 3 (b) will not be affected. The provisions of Section 3 (b) and Section, 13 of the Minor Inams Act that thev are similar to Sections 3 (b) and 18 (4) and 18 (6) of Madras Act 26 of 1948. The ratio of the judgments are clearly applicable for the interpretation of Sections 3 (b) and 13 of the Minor Inam Act. Therefore, unless a person owns both the building and the site an which the building is situate, it will not vest in him so as to enable him to obtain a ground rent patta under Bection 13. The decisions in Ramachandra Pillai v. Shanmugha Pfflai S. A No. 1139 of 1969 (Mad) and Sri Kumara, Kattalai Subramaniswami Devastanam, Mayuram, v SundararaJulu Chettiar ILR (1951) 1 Mad 501, were rendered by Justice Ramanujam. Though there were certain stray observations which may lead to an argument that in the case of sites in which there are buildings, Section 3 (b) would not be operative, those decisions cannot be takm as authorities for that Position in view of the Division Bench judgment In Samasundaram Pillai v. Durairaj 1979-1 Mad LJ 443 to which the learned Judge was a party and in fad, the judgment was written by the same learned Judge. As already noted in Sornasundaram Pillai v. Dorairaj 1979-1-Mad IJ 443. the Bench held that in cases where the buildings have been built by parties other than the landholder, the vesting contemplated under Section 3 (b) cannot be affected and the site is vested in the Government and not in the landholder.

4. It is therefore, clear from the provisions of the Act and decided cases that in order to enable a person to get a ground rent patta under Section 13, he must be owner of the site and the building and if the owner of the building is anybody other than the landholder, the land will be vested in the Government under Section 3 (b). Section 3 specifically saves only the express provisions in the Act.

5. It is now necessary to consider the other claim of the respondent landholder under Section 8 (1) of the Act Under this Provision, every Person who, is lawfully entitled to, the kudiwaram in, an inam land immediately before the appointed day whether such person is an inamdar or not shall, with effect on and from the appointed day, be entitled to ryotwari patta in respect off that land. Inam land is defined in Section 2 (7) meaning any land comprised in a minor inam. The question for consideration is whether the word land in these provisions will include the site on which a building is constructed. Under Sections 8 (1) and 8(2), ryotwari pattas are to be granted to, the person who is entitled to the kudiwaram in the land or in the case of institutions, owning both warams to the persons referred to, in sub-clause(2). Section 96 provides that where no person, is entitled to a ryotwari patta under Section 8 and the land is vested in the Government, the persons specified therein shall be entitled to ryotwari patta. The condition referred to there in refers to personal cultivation of such land.

6. Section 10 refers to lands in respect of which ryotwari patta could be granted. They are, forests, beds and bunds of tanks and of supply. drainage, surplus or irrigation channels, threshing floor cattle stands. village sites, cart tracks, roads, temple sites and such other lands situated in any minor inam as are set apart for the common use 0f the villagers, rivers, streams and other porombokes and also Private tanks and ooranies. It may be possible to construe as contended by the learned .counsel for the respondent that except in respect of lands mentioned in Secs. 10 and, 10 (A), in respect. of all other lands, Section 8 would apply. But even so, we are not convinced that the land in Section 8 would include the site or which. a building is constructed. though normally the land in Section 8 construing in conjunction with Section 9 would bring within it only cultivation land, it is not necessary for the purpose of this case to give a final decision on that question except to state that it will not include the site on which a building is situate. With reference to Section 13, the notification in G 0 No. 401 Revenue dated 15-2-1965, designating the authorities and officers by whom the power shall be exercised under that provision, states that the power to decide the claim of any Person for ground rent patta, is vested in Assistant Settlement Officer where as with reference to the provisions in Sec- tion 8 or 9 it is stated that, the power is to decide the claim of any person for ryotwari patta. Thus, ryotwari pattas are issued under Section 8 or 9 which would normally mean with respect to cultivable lands in the inam estate and ground rent patta is appropriate only to a case of non-cultivable lands such as house sites. The respondent-landholder would not, therefore, be entitled for any patta under Section 8 (1) in respect of the site in which the building stands. The net result of the above discussion is neither the landholder will be entitled for a patta either under Section 8 (1) or Section 13 nor the appellants who are the owners of the superstructures alone would be entitled to a patta under Section 13. There is no provision similar to Section 19-A of Madras Act 26 of 1048 where admission to non-ryotwari land by a. landholder-could be recognised by Government. But all the same, the provisions of the Minor Inams Act or any other provision do not prevent the, Government considering the claims of the owners of the building for grant of patta outside the provisions of the Act. Therefore, it would be open to the persons who are owning the buildings to apply to the Government in whom the site is vested by virtue of Section 3 (b), for grant of a ground rent patta outside the provisions of the Act. The orders of the Settlement Tahsildar and the Inarn Tribunal in so far as the lands which are the subject malters of these appeals are concerned, are therefore, set aside and the owners of the buildings are directed to aproach the Government if they so choose. There will be no order as to costs.

7. Judgment accordingly.


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