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R. Sivaji Rao Saheb Seervai Vs. Akilandathammal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberSecond Appeal Nos. 37 and 38 of 1959
Judge
Reported inAIR1962Mad417
ActsCode of Civil Procedure (CPC), 1908 - Order 20, Rule 12
AppellantR. Sivaji Rao Saheb Seervai
RespondentAkilandathammal and ors.
Cases ReferredNagaratnammal v. Ibrahim Saheb
Excerpt:
.....- order 20 rule 12 of code of civil procedure, 1908 - grants of land in favour of plaintiff by state government - plaintiff filed suit for recovery of possession - trial court decreed suit but appellate court reversed decree - whether plaintiff have valid title to suit properties to evict defendants -defendants claimed to be in possession as lessees of state government - unable to produce lease deed in their favour - state government was not party to suit - civil court cannot set aside government order on ground that it vitiated by illegality due to non-compliance with rules - grants will continue to subsist till they set aside by competent authority - defendants in suit cannot be permitted to challenge grant merely by way of defence raised in action for ejectment - judgment of..........as he was met with the opposition of the persons in possession claiming to he lessees from the state government under the scheme sponsored by the government called 'the grow more food' campaign. sivaji rao was therefore compelled to institute a suit, o. s. no. 120 of 1956 on the file of the district munsif court, tiruvaiyaru for recovery of possession of the properties covered by the patta in his favour from four persons who were impleaded as defendants 1 to 4 in the suit. the first defendant disclaimed all interest in the property and submitted that he was an unnecessary party to the suit.(2) the second defendant claimed to be in possession of plaint item 1 as a lessee from the state government under the grow more food campaign and submitted that lie belonged to a class of persons.....
Judgment:

(1) The State Government of Madras assigned two Items of property, 2 acres 12 cents comprised in R. S. No. 33/2, and 2 acres 92 cents in R. S. No. 338/2 in the village of Indalur, Tanjore taluk belonging to them in favour of Sivaji Rao Sahib Soorvai who claimed to be of the class of persons described as 'political sufferers' to whom grants of lands were being made in accordance with the Government orders issued from time to time. The assignment in favour of Sivaji Rao was dated 27-6-1950. A revenue patta was also issued in his favour on 12-1-1951. He could not however get possession of the assigned properties as he was met with the opposition of the persons in possession claiming to he lessees from the State Government under the scheme sponsored by the Government called 'The Grow More Food' campaign. Sivaji Rao was therefore compelled to institute a suit, O. S. No. 120 of 1956 on the file of the District Munsif Court, Tiruvaiyaru for recovery of possession of the properties covered by the patta in his favour from four persons who were impleaded as defendants 1 to 4 in the suit. The first defendant disclaimed all interest in the property and submitted that he was an unnecessary party to the suit.

(2) The second defendant claimed to be in possession of plaint item 1 as a lessee from the State Government under the Grow More Food campaign and submitted that lie belonged to a class of persons known as 'landless poor' that he had reclaimed the lands by spending a sum of Rs. 1000/- that the Government was bound to have granted an assignment only to him and that the assignment in favour of the plaintiff was not valid. The third defendant submitted that he had no interest in any portion of the suit. properties and that he was an unnecessary part to the suit. Defendant 4 claimed to 13e in possession of plaint item 2 and she also claimed that the land was granted to her by the Government under the Grow More Food campaign in 1943. She submitted that the land was originally a waste land and that she re-claimed it at an enormous cost as she was made to understand by the Government that the reclaimed lands would be assigned only to her with permanent rights therein. She pleaded that she had spent a sum of Rs. 1000/- for purposes of reclamation. She contested the validity of the grant in favour of the plaintiff and denied his right to evict her.

(3) The learned District Munsif of Triuvaiyaru who tried the suit round that the grant in favour of the plaintiff was valid, that the defendants had no right to continue in possession of the suit properties and granted a decree in favour of the-plaintiff for recovery of possession of the suit Properties with future mesne profits from date of the plaint till delivery of possession to he ascertained in separate proceedings under Order XX Rule 12 Civil Procedure Code. The plaintiff's claim for recovery of past mesne, profits was negatived. Both the second and the fourth defendants preferred appeals against the judgment and decree of the trial Court to the District Court of West Tanjore at Tanjore which were transferred to the Sub Court of Kumbakonam, for disposal. The appeal of the defendant 4 before the Sub Court was A. S. No. 105 of 1957 and that of the second defendant was A. S. No. 108 of 1957. The plaintiff preferred memorandum of cross objections against the decree of the Court below negativing past mesne profits. The learned Subordinate Judge of Kumbakonam held that the assignment in favour of the plaintiff was not valid as it was not in accordance with the rules governing dharkhast grants by the State Government, that the contesting defendants 2 ant 4 were lawfully in possession as lessees from the State Government and that therefore their possession cannot he disturbed. Accordingly the judgment and decree of the trial Court were set aside and the gust was directed to be dismissed with costs throughout. The cross objections preferred by the plaintiff also failed necessarily. S. A. No. 37 of 1959 has been preferred by the aggrieved plaintiff in O. S. No. 120 of 1956.

(4) Chinnasami Kalingarayar, the plaintiff in O. S. No. 213 of 1956 on the file of the District Munsif Court, Tiruvaiyaru was another political sufferer in whose favour the State Government made a grant of an extent of 4 acres of land in R. S. No. 341/2 in Indalur village, Tanjore taluk. The grant was made on 6-1-1951. That item of property was in the possession of two individuals, Akhilandathammal and her son Ramalingam, who claimed to be in possession as lessees from the State Government under the Crow More Food campaign. Chinnasami the grantee could not obtain possession of the properties and he, therefore instituted the suit for recovery of possession impleading Akhilandathammal and Ramalingam as defendants 1 and 2. The questions raised in this suit were identical with the questions raise in O. 8. No. 120 of 1956 already referred to. The learned District Munsif upheld the plaintiffs claim and granted a decree for recovery of possession in his favour from the first defendant. His claim for past mesne profits was negatived but he was granted future profits to be ascertained on separate application under Order XX Rule 12 Civil Procedure Code. The first defendant preferred an appeal to the District Court of West Tanjore against the said judgment and decree which was eventually transferred to the Sub Court at Kumbakonam and taken on file as S. No. 106 of 1957. The learned Subordinate Judge reversed the judgment and decree of the trial Court, negatived the plaintiff's claim and nonsuited the plain-tiff. The memorandum, of cross objections preferred by the plaintiff in respect of past mesne profits also failed. S. A. No. 38 of 1959 has hem preferred by the aggrieved plaintiff in that suit.

(5) Both these second appeals were heard together. The only question that arises for consideration in both the appeals is whether the plaintiffs in the two suits have a valid title to the suit properties to evict the contesting defendants from the suit properties. The lands admittedly belonged to the State Government. The contesting defendants claimed to be in possession as lessees from the State Government. Their case is that they were inducted as tenants in the lands by the policy inaugurated by the Government under a scheme known as 'Grow More Food'. They were however unable to produce any lease deed in their favour or any extract from the lease register maintained by the Government. The learned District Munsif was of the opinion that the defendants, failed to prove that they were tenants holding under the Government. But the lower appellate Court disagreed with that finding of the trial Court and held that there was evidence on record to show that these defendants must have come into possession of the suit lands only as lessees or tenants. Even according to the defendants the lands were leased out to them only in 1943 for a period of five years only. That period undoubtedly expired in 1948. Thereafter they were merely in the position, if at all of tenants holding over of the demised properties. It is obvious that the defendants had no proprietary interest in the suit properties of any kind on the date when the State Government assigned the properties in favour of the plaintiffs in the two suits.

(6) The Courts below have proceeded on the footing that tire grant in favour of the plaintiffs was made by the State Government under the provisions of Board Standing Order 15. The learned counsel for the appellants contended that the grant in favour of political sufferers is governed by a separate set of Government orders, and that the Board Standing Order cannot govern such grants. There are variations between the terms of the Government order issued regarding grant in favour of political sufferers and the provisions of Board Standing Order 15. G. O. No. 1523 dated 11-6-1949, clause 10 reads as follows:

'Such of the provisions of the B. S. O. 15 etc., which are not in conflict with the orders in this Government Order will continue to apply. The Board is requested to issue necessary amendments to B. S. O. 15 etc., in the light of the orders in this Government order.'

I do not think it is necessary for me to decide in this ease the question whether the validity of the grant in favour of a political sufferer or Thyagi should be judged by the terms of the special Government order or by the terms of B. S. O. 15, as I am of opinion that the grant in favour of the plaintiffs in the two suits is not void and that in any event it cannot be challenged In a civil court.

(7) Board Standing Order 15 sets out an elaborate procedure to be adopted by the Revenue department in the matter of making darkhast grants. Grants can be made by the Tahsildar or the Divisional officer or the Collector according to the circumstances mentioned in the Board Standing Order. From every original decision passed by the Tahsildar, Divisional officer or the Collector an appeal is provided from tile Tahsildar to the Divisional Officer or from the Divisional Officer to the Collector or from the Collector to the Board. Clause 18 of B. S. O. 15 provides that the order of the authority making the assignment, if no appeal is presented, or of the appellate authority if an appeal is presented, is final. If the Collector is satisfied within three years of the original or the appellate decision that there has been material irregularity in the procedure or that the decision was grossly inequitable or that it exceeded the powers of the officer who passed it or that it wig passed under a mistake of fact or owing to fraud or misrepresentation, he may in the case of an order passed by an officer subordinate to him set aside, cancel or In any way modify the decision. Similar powers are given to the Board of Revenue to set aside, cancel or modify the decision of any officer subordinate to it.

(8) The, learned Subordinate judge has adverted to certain alleged irregularities in the matter of the grant made by the State Government in favour of the plaintiff in both the suits. It is stated that under Rule 4 of B. S. O. 15, no application can be considered except for land which is actually at the time unoccupied or has been occupied without the proper sanction and that therefore the application of the political sufferers in the present case ought not to have been entertained. This is one irregularity which according to the lower appellate court vitiates the grant. It is next pointed out that there is no proof that the formalities prescribed in the B. S. O. for referring the matter to the village officer for report, and giving necessary publicity by beat of tomtom in the village choultry, were gone through. The learned Subordinate Judge in para 12 of his judgment has observed thus:

A perusal of the rules relating to dharkhast would indicate that a duty is cast on the revenue officers to satisfy the conditions prescribed therein before the assignments in question are made. The duties cast upon them consist of the power to make an enquiry, the power to make the publicity and ultimately the power to issue the necessary orders. The exercise of these powers depends upon the observance of the rules, Ind if they are not substantially complied with, it is the duty of the court to see that these powers are exercised. air conformity with the rules.'

(9) I have no hesitation in holding that the learned Subordinate Judge has totally misconceived the jurisdiction of the civil court to interfere with darkhast grant made by the State Government in their administrative capacity. It is now settled law that the procedural irregularities if any, occurring in the course of proceedings for grant of Government lands cannot vitiate the grant and that it is beyond the competence of civil court either to set aside such grant or to refuse to recognize its validity.

(10) In Periaroyalu Reddi v. Royalu Reddi, ILR 18 Mad 434 a grant was made by the revenue authorities in favour of an individual. A patta was also issued in his favour. Another individual had objected to the grant but the objection was overruled. The successful grantee filed the suit for declaration of his title and for recovery of possession of the land. The trial court passed a decree in his favour as prayed for but that decree was upset on appeal by the District Judge who held that dharkast was vitiated by reason of non-compliance with B.S.O. 30 section 5 which required that the application such as that of the plaintiff should be proclaimed in the village by beat of tomtom. The District Judge was of opinion that these formalities not having been complied with the plaintiff had Obtained no title to the land. A division bench of this court set aside the judgment of the District court and held that the plaintiff's title was not invalidated by reason of the non-compliance with the dharkhast rules. At page 435 their Lordships Muthuswami Iyer and Best observed thus:

'Dharkhast rules are departmental and if they are infringed, the remedy for such infringement is also departmental. Irregularities in observing those rules constitute no valid ground of interference by the civil courts with a grant of land made by the Government. The land in dispute is entered in the pymash account as waste and as such it is at the disposal of Government. It is not competent to the civil courts to set aside a grant made by an officer competent to make the grant.

(11) In Secy. of State v Kasturi Reddi, ILR 26 Mad 268, Bashyam Iyengar J. delivering the judgment of the Bench dealing with the question of the civil court's jurisdiction in respect of dharkhast grants observed as follows:

'The only portion of the rules with which the courts, need Concern themselves are those which define the officers competent to make assignments of land, the extent of their authority including the description of lands which the said officers may respectively dispose of under the dharkast rules and the decree of control by a higher grade officer to which the exercise of such authority is subject; and so far as the present case is concerned, there can be no doubt that the officer under whose grant the respondent claims was competent to make the grant and the land which he granted, i.e., assessed waste land was of a description which be was authorised to grant on dharkhast. The bulk of the dharkhast rules, which are in the nature of instructions issued by Government to the various officers concerned, as to the principles which should guide them in entertaining or rejecting applications for grant of various descriptions of land and determining to which of several competing applicants the grant should be made, if at all and the procedure to be adopted by them do not concern the civil courts.'

(12) in Muthuveera Vandayan v. Secy. of State, ILR 29 Mad 461 the facts of the case were as set out in the headnote as follows: A applied to the Tahsildar under rule IV of the dharkast rules for a grant of land. The Tahsildar made the grant under rule 7 on 10-5-1897 and the grant stated that it was subject to the result of any appeal that may be preferred. On 15-7-1897 and on 2-11-1897 two appeals were preferred to the Deputy Collector against the grant. On 15-6-1898 the Deputy Collector issued a patta to A in pursuance of the grant. The appeals were heard on 28 6-1899 after notice to A and the grant of the Tahsildar was set aside on the ground that the notice under rule 15 was not duly published. A appealed to the Collector and to the Board of revenue and his appeals were dismissed. A instituted the suit out of which the appeal arose for a declaration that the lands had become his property and that the Deputy Collectors order canceling the grant was null and void or in the alternative for a decree directing the defendant to pay the kist paid by A and the cost of improvement effected by him. The Court of first instance granted a declaration as prayed for. On appeal the Subordinate Judge holding that it was not open to the civil court to question the propriety of the cancellation passed by the Deputy Collector modified the decree by granting the alternative remedy in respect of kist and improvement. On appeal to the High Court, White C. J. held that it was not open to a Civil court to cancel a patta because some of the formalities of the dharkhast rule have not been complied with. It may however set aside an order of an appellate revenue Tribunal which allowed an appeal against the grant by the revenue official on the ground of irregularity of procedure if it is of opinion that there is no evidence of irregularity although it will not be open to civil Court to interfere if the Tahsildar declaimed to make the grant due to irregularity of procedure. But Benson J. held that it was not open to the civil courts to discuss the sufficiency or otherwise of the grounds on which the dharkast authorities whether original or appellate grant Or refuse to grant Government lands to parties applying to them so long as those authorities act within the scope of the authority conferred on them by the rules. The following observation of Benson J. can be quoted as it succinctly sets out the scope of the jurisdiction of the civil courts in respect of darkhast grant (page 470):

'But in nay judgment it is not open to the civil courts to discuss the sufficiency or otherwise of the grounds on which the Dharkhast authorities--whether original or appellate--grant, or refuse to grant Government lands to parties applying for them, so long as those authorities act within the scope of the authority conferred on them by the rules.

To do so would, in effect, be equivalent to an assumption by the civil courts of the appellate jurisdiction in all matters connected with the administration of the Darkhast rules. Those rules provide for the procedure to be followed in dealing with applications for State lands, and they provide for the exercise of appellate and revisional powers by certain authorities, and it is not open to the Civil courts to assume to themselves the appellate powers thus conferred on other authorities. it would of course be different if the revenue authorities purporting to act under the Dharkhast rules acted outside the scope of their authority, but that is not the present case.'

By reason of this difference of opinion the case again came up before a Bench of three Judges, consisting of White C. J. Benson and Miller JJ. That decision is Muthuveera Vandayan v. Secretary of State for India, ILR 30 Mad 270. Miller J. agreed with the judgment of Benson J. Dealing with this question of jurisdiction the learned Judge observed thus:

'The Civil Courts can enquire whether the officers of the Government are acting within the scope of their authority, and nothing more.................. I entirely agree with what is pointed out in the latter case, that any other rule will lead to con-fusion, and the whole body of darkhast rules will become unworkable in the civil Courts.'

It is really unnecessary to cite further cases on the subject. Irregularities caused by deviation from the rules of procedure framed by the State Government in the matter of dharkast grants can be examined and corrected only by the authorities to whom the task is entrusted. It will be beyond the province of the jurisdiction of civil court to cure the ills caused by administrative. lapse., in cases where no evil rights of the parties are involved. If the State Government can make a grant of its land to A or B the fact that the grant is made to one of them alone, be it not strictly in conformity with the rules framed for the grant cannot give a cause of action to the disappointed rival to obtain redress in a civil court.

(13) Learned counsel for the respondents relied on a decision of a Full Bench of this court in Nagaratnammal v. Ibrahim Saheb, : AIR1955Mad305 . The question that arose for decision before the Full Bench was whether the Board of Revenue had power to interfere with an order made by the District Collector under S. 10(5) of Madras Act ill of 1895 appointing a deputy to a post registered in the name of a minor. The Full Bench of this court held that holders of office governed by the statute cannot in relation to their offices be dealt with except in the manner provided by the relevant statute and that neither the Revenue Divisional officer nor the District collector nor the Board of revenue can deal with them except in the manner permitted by the statute. Though the decision of that case has no bearing on the present case, the following observations of Balkrishna Aiyar J. were relied upon:

'But even with reference to matters not governed by statutory provisions or rules but governed only by the standing orders of the Board of Revenue, the passage we have extracted above is liable to be misunderstood. We are unable to subscribe to the view that where a rule already exists and provides for any specific matter, still when an individual case comes up before the Board, it is open to the Board, notwithstanding the existence of that rule, to decide that case in any manner it thinks fit, even in contravention of the existing rule. In other words, the Board cannot ignore the existing rule by treating the order made in that particular case as an amendment of the rule........ We wish to emphasize the position, that the decision in any given case must be in accordance with the rules in force on the date of the decision. Otherwise the difference between what may he by way of analogy called legislative (rule making functions of the Board) and its judicial and quasi-judicial function would be blurred, and the door thrown open to charges of arbitrariness.'

(14) This Observation was quoted by learned counsel for the respondents in support of the contention that any violation of the departmental authorities of a Standing order under the B. S. O. is an irregularity which it will be open to the civil court to correct and set aside.

(15) I am unable to accept this contention. It must he noted that the present suits are not suits for cancellation of the Government order making the dharkhast grant. The State Government is not a party to these suits. The civil court is not therefore called upon to set aside a Government Order on the ground that it is vitiated by illegality due to non-compliance with the rule as framed under the B. S. O. It must be presumed that the grants will subsist and continue to subsist till they are set aside by a competent authority. The defendants in these suits cannot be permitted to challenge the grant, merely by way of a defence raised in an action for ejectment. I am of opinion that the observation of Balkrishna Iyer J. has no application to the present case.

(16) The ground on which the learned Subordinate Judge set aside the judgments and decrees of the trial court is erroneous in law and cannot be sustained. In the result, second appeals are allowed, the judgments and decrees of the learned Subordinate Judge are set aside and those of the trial court are restored. The parties will bear their respective costs throughout. No leave.

(17) Appeals allowed.


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