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Rajagopala Goundar and ors. Vs. Maruthamuthu Asari - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtChennai
Decided On
Reported inAIR1933Mad668; 147Ind.Cas.501
AppellantRajagopala Goundar and ors.
RespondentMaruthamuthu Asari
Cases Referred(vide Ambu Nayar v. Secy
Excerpt:
- - l series, clearly show that in respect of pattah no 380(ex. if in the beginning, possession was only permissive the burden of proving that at some later time it became adverse to the owner is clearly on the person who sets up a title by such adverse possession. tikait srinivasa kukum sing deo air 1922 pat 541. 4. if a land is held as a service tenure to be enjoyed as remuneration for services the fact that no services have been performed for any length of time cannot of itself make the holding adverse. this bar can be held to be good, if it is proved that there was an order passed by the survey and settlement officer under section 11 of that act and it is shown that the procedure prescribed under that act was duly observed......belonged to the mirasidars of the village and was subsequently gifted by them to the temple. the suit land which is comprised in survey no. 83/2-x according to the old survey is included in the pattah, ex. a which stood in the name of the temple and other prominent mirasidars of the village. the defendant and his ancestors have no doubt been in possession and enjoyment of this land for a pretty long time. a number of documents have been filed on the plaintiff's side which have been duly considered by the learned district munsif who came to the conclusion that the temple is the real owner of the suit land and that the defendant's predecessor must have been let into possession of this land for the performance of the blacksmith's service, and as such, his possession was permissive at the.....
Judgment:

Sundaram Chetty, J.

1. This second appeal arises out of a suit brought by the plaintiffs as trustees of the plaint mentioned temple in the village of South Therku Poyyur for the recovery of possession of a plot of land 71 cents in extent as belonging to the temple and also for the recovery of mesne profits. The plaintiffs' case is that this land is a Blacksmith's service manyam land which originally belonged to the mirasidars of the village and was subsequently gifted by them to the temple. The suit land which is comprised in survey No. 83/2-X according to the old survey is included in the pattah, Ex. A which stood in the name of the temple and other prominent mirasidars of the village. The defendant and his ancestors have no doubt been in possession and enjoyment of this land for a pretty long time. A number of documents have been filed on the plaintiff's side which have been duly considered by the learned District Munsif who came to the conclusion that the temple is the real owner of the suit land and that the defendant's predecessor must have been let into possession of this land for the performance of the Blacksmith's service, and as such, his possession was permissive at the inception. Though there is no document to evidence the alleged gift in favour of the temple, there is, in my opinion, sufficient documentary evidence to indicate that the temple was dealing with this land as owner, though the enjoyment of it has been with the family of the defendant. The cist receipts, Ex. L series, clearly show that in respect of pattah No 380(Ex. A) the temple was paying the cist from the year 1899 to 1903.

2. The plea of the defendant that the temple had nothing to do with the suit land and had no sort of title to it is obviously untenable. The learned District Judge did not give a definite finding as to who is the owner of the suit land, though he made a reference to a number of documents bearing on this question in para. 6 of his judgment. The reasoning of the District Munsif is clear, and should, in my opinion, be accepted in coming to a conclusion on this question.

3. I therefore hold that the plaint temple is the owner of the suit land, which is styled as Blacksmith's manyam land and which must have been granted to a predecessor of the defendant for doing the Blacksmith's service to the temple and to the mirasidars of the village. There is no doubt that the possession of the defendant's ancestor was only permissive in its nature at the beginning. There was thus a relationship of landlord and tenant between the temple and the defendant, the condition for the enjoyment of the land being the rendering of some service to the temple. Both the lower Courts have practically treated the defendant's possession as adverse to the temple by reason of the fact that the enjoyment by defendant had been for over the statutory period without rendering any service. If in the beginning, possession was only permissive the burden of proving that at some later time it became adverse to the owner is clearly on the person who sets up a title by such adverse possession. On this question the principle of law has been laid down in two decisions relied upon by the learned advocate for the appellants, namely, Komargowda v. Bhimaji (1899) 23 Bom. 602 and Nandlal Sahu v. Tikait Srinivasa Kukum Sing Deo AIR 1922 Pat 541.

4. If a land is held as a service tenure to be enjoyed as remuneration for services the fact that no services have been performed for any length of time cannot of itself make the holding adverse. In order to make the possession adverse to the owner, there must be a refusal to perform service or a claim to hold the land free of service. If therefore mere cessation in the performance of service would not change the character of possession into adverse possession, it has to be seen whether there was a demand for the performance of service and a refusal on the part of the defendant. It is alleged in the plaint that the defendant declined to render service to the villagers and the temple for six years before the date of the suit. The evidence on the side of the plaintiffs also tends to show that the defendant was refusing to comply with the demand for performance of service during three or four years before suit. In fact the defendant himself admits in his evidence that before settlement the temple authorities asked him to do some work and he refused to do it. The settlement referred to by him was in 1920 or 1921.

5. In this view the possession of the defendant could not be deemed to be adverse to the temple before such demand and refusal. The lower Courts are not correct in treating the defendants's possession to be adverse from the mere fact of non-performance of services for more than 12 years before the date of suit. The present suit is not therefore barred under Article 144, Lim. Act. The Courts below have held that the plaintiffs' suit is barred under Section 13, Survey and Boundaries Act (Act 4) of 1897, because it was brought after the expiry of the period of one year prescribed in that section. This bar can be held to be good, if it is proved that there was an order passed by the Survey and Settlement Officer under Section 11 of that Act and it is shown that the procedure prescribed under that Act was duly observed. In February 1921 the present defendant filed a petition to the Survey Collector referring to the re-survey of the village and also to the fact of the Survey Inspector having registered the land in question in his name. He further stated that the counter-petitioners were objecting to his enjoyment and causing obstruction to him. He prayed for the decision of the dispute and for an order in his favour: vide Ex. D. Ex. D-l is a copy of the order passed by the Special Assistant Settlement Officer. The defendant's petition was treated as one for the transfer of registry in his name in respect of S. No. 84/1. It seems some inquiry was made and that officer observed in his order as follows:

The whole village says that the land belongs to the temple. The Asari certainly occupies the house and has raised the crops surrounding the house. It is admitted that he and his family have lived in the house for 50 years. Revenue registry should follow enjoyment. The temple authorities should evict petitioner by civil suit. Register in the name of the Asari.' (Ex, D-1).

6. In view of Exs. D and D-1 it is contended on behalf of the appellants that the order is not one within the purview of Section 11 of the aforesaid Act, but must be deemed to be one passed under Board's Standing Order 31, Clause 7. That clause says, that where parties who have no documents of title are shown in a summary inquiry to have been in possession and to have paid the revenue as reputed owners for 12 years or more, transfer of registry must be made after notice, as provided in Rule 3(1)(a). Such an order can be made by a revenue officer as is indicated in the rule itself, because the action contemplated may be taken by the revenue officers either on their own motion or on the application presented by the parties concerned. If this order should be deemed to have been passed under the aforesaid rule, then Section 13, Survey and Boundaries Act, would have no application. It is however argued on the respondent's side that such an order can be passed at the re survey by the Survey and Settlement Officer and would therefore come within the scope of Section 11 of the Act. There is some difficulty in deciding whether this order comes really within the purview of Section 11 or not, in the absence of sufficient materials before the Court. It looks that) both the Courts below assumed that the order is one to which the Survey and Boundaries Act applied and therefore this aspect of the question was not fully considered and decided. As the question of limitation turns upon the determination of this point, it seems to me necessary in the interests of justice, that a revised finding should be submitted after giving an opportunity to both sides to adduce any additional evidence which they choose to offer. The point as to which the revised finding is to be submitted is as follows:

Whether the order evidenced by Ex. D-l was one coming within the purview of Section 11, Survey and Boundaries Act (Act 4) of 1897, which would be conclusive against the plaintiffs under Section 13 of the Act, as no suit was brought to have that order set aside within a year from its date.

7. The case is remanded to the Court of the District Munsif of Negapatam for the submission of the finding within six weeks from this date. Ten days will be allowed for objection. If the plaintiffs' suit should be held to be not barred, then the question of paying compensation to the defendant in respect of the house built by him on the suit site or of allowing him to be in possession thereof, will have to be considered and decided.

8. Finding.--This Court has been asked by the High Court to submit a finding on the following point:

Whether the order evidenced by Ex. D-l was one coming within the purview of Section 11, Survey and Boundaries Act (Act 4) of 1897, which would be conclusive against the plaintiffs under Section 13 of the Act, as no suit was brought to have that order set aside within a year from its date.

9. For the reason discussed above, my finding is that the order evidenced by Ex. D-1 is one coming within the purview of Section 11, Survey and Boundaries Act (Act 4) of 1897, and that it is conclusive against the plaintiffs under Section 13 of the Act as no suit has been brought to have that order set aside within a year from its date. (After the return of the finding of the Courts of first instance, the Court delivered the following)

10. Judgment.-- The question now to be determined is, whether the finding of the learned District Munsif, on the issue framed and sent to him for a finding should be accepted. Defendant who sets up a special bar of limitation to the suit, has to prove satisfactorily, that the order (Ex. D-l) dated 28th February 1921, is really an order passed by the Survey Officer under Section 11, Survey and Boundaries Act of 1897. It is necessary to pay particular attention to the wording of the order itself, for understanding its nature and scope. The order does not specify under what provisions of law it was passed. The petition of the defendant is treated as an application for the transfer of registry in his name for Survey No. 84/1 in Therukupoyyur village, Nagapatam Taluq. The dispute was as to the ownership of this land. By virtue of the defendant's long enjoyment, the registry was ordered to be made in his name. The reason for this order is stated thus: 'Revenue registry should follow enjoyment.' It is obvious, that this was not a case of boundary dispute at all. In the petition (Ex. D) on which this order was passed, there is no allegation as to the existence of any dispute as to the boundaries of any land. The preamble of the aforesaid Act, shows that it relates only to Survey of lands and settlement of boundary disputes. Section 11 of the Act, relates to disputes about boundary only. If the boundary between two lands is in dispute and has to be fixed, a proper survey should be made, and the question of possession and enjoyment may have to be determined, for fixing the boundary correctly.

11. In the present case, such was not the dispute at all. It is also clear, that the authority competent to pass an order under Section 11 is the Survey Officer. There can be no doubt as to this. About the time of this order, Mr. Holdsworth, I.C.S., was Sub-Collector and Special Assistant Settlement Officer (as would appear from the History of Services of Gazetted Officers), and the Notification No. 160, Part I, pp. 1000 of the Fort Saint George Gazette of 1920, shows that he was appointed as Special Assistant Settlement Officer, No. 1 Party, Tanjore. Whereas, the Survey Officer was Mr. R. Dasaratha Raman, as shown by Exs. 4 and 7. From the materials available, it is not possible to hold that Mr. Holds-worth was the Survey Officer, when he passed the order (Ex. D-1) in February 1921. The learned District Munsif does pot seem to have paid due attention to the scope of the said Act and the nature of the dispute contemplated in Section 11 of that Act, before inferring that the order Ex. D-l must be one passed under that section. Mr. Holdsworth has passed that order, as Special Assistant Settlement Officer. In that capacity, he had the power to fix the rates of assessment, and make the classification of the soils, which would be incorporated in the settlement record. For that purpose, he would have authority to determine the person liable for paying the assessment fixed for a particular land. It is for revenue purposes, he has ordered the transfer of registry to the defendant's name.

12. Under the Boards Standing Order No. 31, Clause 7, transfer of registry may be effected by a Revenue Officer. Mr. Holds-worth, was on the date in question a Revenue Officer, as he was a Sub-Collector. But in the order Ex. D-l, he styled himself as Special Assistant Settlement Officer. If it can be said that order should not be taken to be one passed under Section 11, Survey and Boundaries Act, as he was not the Survey Officer, it can also be urged, that the order should not be deemed to be one passed under Clause 7 of Board's Standing Order No. 31, as he did not purport to pass that order as a Revenue Officer. At any rate, we can safely hold, that the order in question would not have become conclusive against the plaintiffs after the lapse of a year from its date, under Section 13, Survey and Boundaries Act, because the order is not shown to be one passed under Section 11 of that Act. On a perusal of Exs. 4 and 7, there is no difficulty in stating, that the notice issued to the defendant after the completion of the survey, on 12th February 1922, is one under Section 11, Sub-section 4 of the Act, and not a special communication of an order as per Sub-section 3. Moreover, this notice (Ex. 4) was issued about a year after the date of the order Ex. D-l, and this is an indication that it could not be an order under Sub-section (2). I am therefore unable to accept the finding of the District Munsif. The issue sent down for a finding, must be answered in the negative and against the defendant.

13. The present suit is, in my opinion governed by Article 120, Lim. Act, and is not barred as it has been filed within six years from the date of Ex. D-l: (vide Ambu Nayar v. Secy, of State AIR 1924 PC 150 of 47 Mad). In case of eviction, the defendant is certainly entitled to adequate compensation for the house built on the suit land. In the result, the decrees of the Courts below are set aside, and a decree is passed in plaintiff's favour for the recovery of possession of the suit land, with the house thereon, on payment of adequate compensation to the defendant for the house, which will be fixed by the Court of First Instance in execution, after making the requisite inquiry. The payment of compensation so fixed, is a condition precedent for the recovery of the suit land from the defendant. Considering the circumstances of the case, I direct the parties to bear their own costs throughout.


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