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Vadivelu Mudaliar Vs. the State of Madras by Collector of Madras - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1960)2MLJ140
AppellantVadivelu Mudaliar
RespondentThe State of Madras by Collector of Madras
Excerpt:
- .....mudaliar, the appellant beore us, in forma pauperis for a declaration of his title to the suit land and for an injunction restraining the state of madras from evicting the plaintiff from the suit land. the land in suit is 19 cents in extent and situated in thiagarayanagar in the city of madras. it admittedly formed part of the zamin village of mambalam. the plaintiff claimed that in consideration of rs. 50 paid by the plaintiff to the zamindarini of mambalam the latter granted a patta to him on 17th october, 1934, in respect of the suit land. admittedly he has been in possession of the suit land from the date of the patta and he has put up a structure thereon. on 9th may, 1949, the tahsildar of madras called upon the plaintiff to vacate the suit land. in spite of the plaintiff's.....
Judgment:

Rajamannar, C.J.

1. This appeal from the Judgment of Ramaswami, J., arises out of a suit filed on the Original Side of this Court, C.S. No. 25 of 1951, by one Vadi-velu Mudaliar, the appellant beore us, in forma pauperis for a declaration of his title to the suit land and for an injunction restraining the State of Madras from evicting the plaintiff from the suit land. The land in suit is 19 cents in extent and situated in Thiagarayanagar in the City of Madras. It admittedly formed part of the zamin village of Mambalam. The plaintiff claimed that in consideration of Rs. 50 paid by the plaintiff to the Zamindarini of Mambalam the latter granted a patta to him on 17th October, 1934, in respect of the suit land. Admittedly he has been in possession of the suit land from the date of the patta and he has put up a structure thereon. On 9th May, 1949, the Tahsildar of Madras called upon the plaintiff to vacate the suit land. In spite of the plaintiff's objection the Collector of Madras passed an order for eviction. The Board of Revenue upheld that order. The plaintiff was therefore compelled to institute this suit. In paragraph 7 of the plaint the plaintiff stated that though the suit land was originally part of the site of a channel for drainage of surplus water from a tank that existed on the north of Madley Road, the tank ceased to be used as such long ago and the channel also ceased to be used as such. The Zamindarini assumed possession of the site of the abandoned channel in exercise of her right as zamindar and granted patta to the plaintiff. The defence of the Government was based on the assertion that the suit land belonged to the Government as channel po-ramboke. They relied on certain entries in the course of survey which was finalised in 1943 and pleaded that the plaintiff was not entitled to challenge the correctness of the entry. The case of the State was that the plaintiff had encroached on what was Government property and therefore proceedings under the Land Encroachment Act were justified. The learned Judge, Ramaswami, J., who tried the suit took very little evidence. He rejected the plaintiff's claim on the ground that the poramboke and public lands in the zaminari did not vest in the Zamindarini and the provisions of Section 20-A of the Estates Land Act were not complied with in as much as there was no order in writing from the District Collector converting the suit land to be used for purposes other than the purpose for which it was being used. The learned Judge apparently was not satisfied with the proof of the title set up by the plaintiff. Patta granted to the plaintiff no doubt was filed but the learned Judge apparently thought that it was not sufficient. He further found that the plaintiff had not succeeded in establishing his title by adverse possession. In the result he found that the suit land did not belong to the plaintiff and the plaintiff was not entitled therefore to the declaration and injunction sought. He dismissed the suit with costs. Hence this appeal by the plaintiff.

2. We are unable to agree with the learned Judge that the plaintiff has not proved his title derived from the Zamindarini. The patta granted to him was filed and there appears to have been no question of its genuineness. Nowhere in the written statement was a denial of the grant of a patta to the plaintiff. If really the Government had at the trial contested this claim of the plaintiff, namely, that he was granted a patta in 1934, it would not have been difficult for the plaintiff to have summoned records from the Zamin Office to substantiate his case. We hold that the plaintiff has proved that he was granted a patta in 1934 for the suit land by the Zamindarini of Mambalam.

3. Obviously even though a patta might have been granted to the plaintiff, he cannot succeed in the suit unless he also established that the Zamindarini was entitled to grant him patta for the suit land. It is common ground that the suit land was originally part of a site of drainage channel to take off surplus water from the Mambalam tank which then existed in this area. It is alleged by. the plaintiff, and it is not denied, that the tank ceased as such long ago and consequently the channel also ceased as such. Admittedly the suit site lay within the geographical limits of the Mambalam Zamindari. Whatever may be the position so long as it was used as a drainage channel, once the channel ceased to be as such, the Zamindarini as the pro-prietrix of the estate would be entitled to the bed of the channel. It is not for us to determine whether the land became ryoti land on and after the abandonment of the site as a channel. It is sufficient to say that the title to the bed of the channel vested in the Zaimndarini. Ordinarily the proprietor of an estate would be entitled to beds of abandoned tanks and channels.

4. There remains the objection raised by the Government that the procedure laid down in and by Section 20-A of the Madras Estates Land Act was not followed and no order in writing was obtained from the Collector permitting the conversion of the land into land which could be used for purposes other than the original purpose for which it was set apart. This objection, however, must, in our opinion, fail because the Madras Estates Land Act ceased to apply to the areas which came to be included within the limits of the Presidency Town of Madras. Certainly by the date of the suit it was not denied that the suit land came to be situated within the limits of the Presidency Town. The learned Government Pleader contended that once the area in which the suit land is now situated was outside the limits of the Presidency Town at the time of the coming into force of the Madras Estates Land Act, 1908, the fact that subsequently the area came to be included in the Presidency Town would not render the Madras Estates Land Act any the less applicable to that area. On principle we are unable to acept this contention. Section 1 of the Estates Land Act says that the Act shall extend to the whole of the Presidency of Madras except the Presidency Town, the district of Malabar and the portion of the Nilgiri district known as the South East Wynad. To ascertain whether a particular enactment applies to a particular case, the position as it stands on the date on which the provisions are sought to be applied is material. It is not sufficient to say that some time in the past the Act was applicable to the suit area. If on the date on which the provisions of the Madras Estates Land Act are sought to be applied, the area has become part of the Presidency Town, then automatically the application of the Act could cease from the date on which the area came to be included within the limits of the Presidency Town. Certain observations of Rajagopala Ayyangar, J., in CM.P. No. 383 of 1951, which was a petition for the issue of a writ of mandamus directing the Madras Sate to forbear from taking over possession of the estate known as East Mambalam and West Mambalam in pursuance of a notification in the Fort St. George Gazette, dated 12th December, 1950, were relied on. The learned Judge said:. I am of the opinion that the Estates Land Act of 1908 applied to zamin Mambalam on the date on which that enactment was passed and it continued to be applicable to it notwithstanding that the area became included within the City Limits at a subsequent date. I am not aware of any principle of law or of construction under which by mere extension of the City Limits, laws which previously applied to the areas, which were outside the City, must be deemed repealed in their application to them by reason of their being brought within the City.

With respect to the learned Judge, there is no question here of any repeal. To give an obvious instance, there may be an Act which applies to all Hindus. On the date of the passing of the Act, a certain person may be a Hindu and so the provisions of the Act would apply to that person; but subsequently if that person is converted to another religion and ceased to be a Hindu and a question arises at a later date whether the enactment applies to him, surely it cannot be said that because when the Act was passed he was a Hindu and the Act would apply, the Act would continue to apply though he ceased to be a Hindu. This instance is obvious. But in our opinion the position is equally obvious in the case of areas. An Act when originally passed might be applicable to areas within definite limits, but if subsequently those areas were taken out of the State whose legislature passed the law, such areas would cease to be governed by that enactment though at the time of the passing of the enactment it applied to such areas. The learned Government Pleader contended that when there was an incorporation of a definition by reference, any change of definition in the original Act would not automatically be imported into the subsequent enactment. We entirely agree. But nothing of the sort has happened here. The definition of ' Presidency Town ' continues to be the same even now. Only there has been a change in the limits of that territory. We may state that the above observations were made by Rajagopala Ayyangar, J., in a case in which the applicability of the provisions of the Madras Estates Land Act as such was not in question. The learned Judge was dealing with the validity of a notification issued under Madras Act XXVI of 1948 and the only question which the learned Judge had to decide was whether that Act applied to the two parts of the Mambalam Zamindari. In our opinion on the date of the suit the provisions of the Madras Estates Land Act were not applicable as such to the area in which the suit land was situated. The State, therefore, cannot raise any contention based on the absence of an order in writing on the provisions of Section 20-A of the Madras Estates Land Act. In the result we hold that the plaintiff be declared to be entitled to the suit land.

5. It is, however, necessary to mention certain events which have happened since the institution of the suit. The suit was instituted on 4th May, 1950. On 12th December, 1950, a notification was issued under Madras Act XXVI of 1948 and on 3rd January, 1951, the State purported to take over the two divisions of the Mambalam estate. Actually certain proceedings in this Court prevented the Government from taking over possession till 8th April, 1958. From that date the Government have been in uninterrupted possession of the Zamindari. Under Section 3 (b) of Madras Act XXVI of 1948 the entire estate will vest in the Government subject to rights specifically recognised in the other provisions of the Act. This is not a case of a ryoti land but a case of a building and site on which the building stands and adjacent land. Section 18(4) of Madras Act XXVI of 1948 appears to be the appropriate section. The hut and the site would vest in the plaintiff whom we have now declared to be the owner. There may be a question, however, as to the adjacent land and if there is controversy between the plaintiff and the Government as to the extent which must be deemed to have vested in the plaintiff under subsection (6) of Section 18, it would be for the Government to decide the controversy. Subject to this remark the appeal is allowed and there will be a decree declaring that the plaintiff is entitled to the suit property subject to the provisions of Madras Act XXVI of 1948. In the appeal the appellant will be entitled to costs limited to the Court-fee paid and the cost of printed papers, if any. In the trial Court there will be no order as to costs.


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