V. Sethuraman, J.
1. The plaintiffs, who are the appellants and who are the father and sons filed a suit for declaration of title, injunction and possession in respect of four items of properties situated in the Pallapatti Zamindari in Salem. The lands originally formed part of Gundu Chetty Eri. In 1915 or 1916 a railway line was constructed to the south of these properties, with the result the flow of water towards these lands was interrupted. According to the plaintiffs these lands ceased to be the Eri land since then. The four items are in T.S. No. 7/3 measuring 10 cents; T.S. No. 7/4 measuring 19 cents. T.S. No. 7/5 measuring 22 cents and T.S. No. 7/9 measuring 67 cents. The father of the plaintiff had a rice mill in T.S. No. 6 and these lands were acquired from the Zamindar on 19th December, 1938. A receipt was passed for Rs. 649 paid by cheque for compensation, for the land, value for patta No. 152 of Pallapatti village. It may be mentioned herein, that the rice mill is situate in patta No. 152. On 12th April, 1943 another receipt was executed by the Zamindarini by name Gnanambal saying that in respect of these lands lying west of survey No. 152 measuring 60 cents, a sum of Rs. 2,400 was received for the purpose of granting a patta and the amount was referred to as compensation. The receipt marked as Exhibit A-25 was to be returned to the Zamindarini after the patta was granted. On 23rd July, 1945 a further receipt for Rs. 1,000 in respect of 10 cents of land adjacent to the 60 cents mentioned earlier was issued. In this receipt also it was declared that it was to be returned on the grant of patta. The plaintiffs claimed in the plaint that these properties had been, sold by the Zamindarini to the first plaintiff's father, that the father was put in possession, of the properties and that the parties owning a rice mill on. the east of the suit properties enjoyed these lands as appurtenances. The rice mill along with the suit lands were alleged to have been leased to one Abboy Chetty in 1945 for a period of five years. As Abboy Chetty did not pay the rent properly, the father of the first plaintiff filed a suit in O.S. No. 244 of 1950 in the Court of the Subordinate Judge, Salem, and obtained a decree for possession. This decree was executed in R.E.P. No. 259/51 and delivery of possession was obtained in 1952 after removal of the obstructions. There was a partition on 27th May, 1952 between, the first plaintiff and his father and it was alleged in. the plaint that the first plaintiff was allotted a half share in the suit properties and the mill, the other half falling to his father. The father of the first plaintiff executed a registered will in favour of plaintiffs 2 and 3 in respect of the properties and died subsequently on 19th September, 1965. The plaintiff thus claimed to have become entitled to the whole of the suit properties.
2. The first plaintiff's father claimed patta for these lands under Section 11 (a) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, hereinafter called the 'Abolition Act'. His claim for patta was negatived upto the level of the Director of the Settlement. Thereafter the claim was considered under Section 19-A of the Abolition Act on the proposal submitted by the Special Assistant Settlement Officer. Under that provision the Board directed the Special Assistant Settlement Officer to dispose of the claim of the petitioner under Section 18 (4) of the Act. The Special Settlement Officer took up enquiries under Section 18 (4) of the Act and he disallowed the claim on the ground that there was no building on the notified date and that consequently the claim would not fall under Section 18 (4) of the Abolition Act. On revision the Director of Settlement confirmed the order of the Special Assistant Settlement Officer and on further revision the Board remanded the case in respect of the suit lands to the Settlement Officer, Salem, for fresh enquiry and disposal.
3. The Settlement Officer pointed out in his order dated 7th August, 1965 that in respect of T.S. Nos. 7/4 and 7/5 which were above the full tank level, it could be presumed that they never formed part of the tank bed, and consequently they were only ryoti lands. The other lands viz., T.S. Nos. 7/3 and 7/9 ceased to be part of the tank bed on the formation of the railway line in 1916. He, therefore, held that these lands remained validly abandoned as tank bed lands and that they had also become ryoti lands. He held that the landholder was at liberty to admit any ryot into possession without obtaining the permission of the Collector, which would have been necessary under Section 20-A of the Madras Estates Land Act, if it formed part of a tank. The Settlement Officer found that the admission by the Zamindar of the plaintiff's father with reference to these lands was valid. As the lands were put to non-agricultural use, it was held that the plaintiff's father would be entitled to a patta under Section 18 (4) or under Section 19 of the Abolition Act. Section 18 (4) would apply with reference to buildings and Section 19 would apply with reference to vacant lands.
4. At that stage the first defendant came forward with a petition to the Director of Settlement praying that the order of the Settlement Officer granting ground rent patta to the plaintiff's father under Sections 18 (4) or 19 of the Abolition. Ac; should be set aside. The Director remanded the matter for fresh disposal and this order of remand was confirmed by the Government. This led to a writ petition being filed bearing W.P. No. 2544 of 1968, which came before Kailasam, J. In this order dated 7th January, 1969 the learned Judge pointed out that in the petition, filed by the first defendant he had confined the memorandum of grounds only to T.S. No. 7/5 measuring 22 cents in extent and that the other survey numbers had been struck off. He, therefore, held that the Director was in error in reversing the order of the Settlement Officer dated 7th August, 1965 regarding Survey Nos. 7/3, 7/4 and 7/9. In his order Kailasam, J., observed further as follows:
It may also be mentioned that a suit by the petitioner for declaration of his title and possession regarding T.S. Nos. 7/3, 7/4,7/5 and 7/9 is pending and the rights of parties may have to be decided in the civil litigation.
In the result, the order of the Director of Settlement dated 30th September, 1966 was modified and the fresh enquiry directed was to be confined only to T.S. No. 7/5. The order of the Settlement Officer in so far as it related to other numbers was set aside.
5. There was an appeal against this judgment which came before Anantanarayanan, C.J. and Natesan, J., for admission on 17th March, 1969. The learned Judges pointed out that there was a suit for declaration, of title pending to which the appellant in the writ appeal viz., the first defendant herein, was a party defendant. They observed as follows:
Obviously, the rights between the parties will have to be worked out in the original suit, and, in exercise of our jurisdiction under Article 226 of the Constitution, neither the learned Judge (Kailasam, J.) nor this Bench, in writ appeal, will be concerned with the merits of that pending litigation. Indisputably, the question whether the Settlement Officer should now make a fresh enquiry, only confined to T.S. No. 7/5, or with regard to other survey numbers as well, is independent of the rights which may ultimately be declared in the Common Law remedy, being pursued by the respondent, and, will be subject to that declaration.
The Court did not, therefore, see any need or justification for the admission of the writ appeal. The proceedings before the Settlement Officer stand there even now.
6. The suit, which has given rise to the second appeal, was filed sometime in February, 1966 after the Settlement Officer passed his order on the 7th of August, 1965. I have already mentioned that the prayer in the suit was for declaration of title, for injunction and for possession on. the ground that the plaintiffs had become entitled to the properties by purchase and the defendants were disturbing their possession. The suit was defended by the defendants on the ground that the receipts, dated 19th December, 1938, 12th April, 1943 and 23rd July, 1945 could not and did not convey any valid title to the first plaintiff's father, that the proceedings for recovery of possession from Abboy Chetty were not bona fide and that the defendants were in actual possession of the properties. Regarding T.S. Nos. 7/4 and 7/9 the case of the defendants was that they originally belonged to one Doraiswamy Pillai and then to Karuppanna Pillai and that from them the first defendant got possession. It was contended that the first defendant, along with his predecessors, was in enjoyment of the said properties for over 25 years.
7. The trial Court framed issues regarding the title of the plaintiffs to the suit properties, the alleged trespass by the defendant and about the rights of the defendants to get the alternative relief of the possession. It was held that the plaintiffs had proved their title, possession and trespass and the suit was, therefore, decreed.
8. Defendants 1 and 2 to the suit appealed against this judgment. The learned Subordinate Judge held that the suit properties had not been shown to be the subject of the transaction under Exhibits A-25 and A-26 the receipts, dated 12th April, 1943 and 23rd July, 1945 respectively, that they did not evidence the handing over of possession, that patta had not been issued to the plaintiff and that except the 'suspicious' delivery of possession in O.S. No. 244 of 1950 no other documentary evidence had been filed to prove possession. The learned Judge pointed out that kist had not been shown to have been paid prior to 1950 with reference to the properties and that the records on the side of the defendants showed their title and their predecessors' possession from the year 1961. In view of these facts the learned Judge found that the plaintiffs had not proved their title and possession and that the defendants had acquired title by possession for over 12 years. He, therefore, allowed the appeal and dismissed the suit with costs.
9. In the present appeal filed by the plaintiffs, the first submission was that the civil Courts, had no jurisdiction to go into the question as to the character of the lands. According to the Learned Counsel the lands were ryoti lands, and therefore, the Zamindarini and the Settlement Authorities had exclusive jurisdiction to determine the character of the lands. As in this case the character of the lands has been found to be ryoti lands, the question of issue of patta WES exclusively within the domain of statutory authorities, so that the civil Courts would have no jurisdiction to go into them. On behalf of the respondents the submission was that they were not ryoti lands, that the plaintiffs applied for grant of ryotwari patta under Section 11 of the Act, that the proceedings in respect thereof had no finality under the provisions of the statute and that the question of title to the property could only be gone into by the civil Courts.
10. In determining the title to properties the civil Courts have jurisdiction to go into all the incidental questions including the character of the lands. In N.P. Ponnuswami v. The Retunirng Officer, Namakkal Constituency, Salem District and Ors.1, the Supreme Court pointed out that where a right or liability was created by a statute which gave a special remedy for enforcing it, the remedy provided by that statute alone must be availed, of. The question as to whether the right to obtain ryotwari patta was a common law right or a statutory right was gone into in the State of Madras represented by the Collector of Ramanathapuram at Madurai v. Ramalingaswamigal Madam : 1SCR218 (North Thiruppachetti) represented by N.S.K. Paramasiva Thevar and Ors. : (1969)2MLJ281 The learned Judges pointed out that whenever a claim was made to obtain a ryotwari patta under the provisions of the Act, the civil Court would have no jurisdiction to entertain the same, as the machinery was provided for in the Act for the said purpose. Therefore, it would follow that if in the present proceedings the question was merely one of issue of ryotwari patta, then, the civil Court would have no jurisdiction to entertain any suit in respect thereof. But the present suit is for declaration of title and not for a mere issue of patta.
11. But where the question is one of deciding the rival claims to the title, the point to be considered is whether there is any statutory machinery under the Abolition Act, so as to rule out the jurisdiction of Courts. In the State of Madras v. Ramalingaswamigal Madam : (1969)2MLJ281 , after reviewing all the authorities a Bench of this Court pointed out as follows:
There is no machinery in the Act to determine whether a land in an estate is a ryoti land or a communal land...Even in respect of an enquiry for grant of a ryotwari patta under Section 11 read with Section 3 (2) of the Act, the decision as to question of title by the statutory authorities is only an incidental matter which would not preclude a civil Court independently enquiring into it in a properly constituted suit.
The learned Judge in dealing with the plea that Section 64-C of the Abolition Act excluded the jurisdiction of Courts held that that provision could not be held to be a bar.
12. The same question has been, gone into by a Division Bench in the State of Madras, represented by the District Collector, Ramanathapuram at Madurai v. Balamanavala Reddiar and Anr. : AIR1973Mad14 , and the learned Judges observed as follows:
It is true that by reason of Section 11 of the Abolition Act, the plaintiffs in these suits cannot invoke the jurisdiction of the civil Court for obtaining a ryotwari patta, but they are certainly entitled to get a declaration of their title to safeguard their possession of the suit lands ....
In a later Bench decision reported in T. M. Lakskminarayana Ayyar and Ors. v. Nallachi Ammal and Ors. (1974) 87 L.W. 276, it was observed that the question of title has necessarily to be gone into by the civil Court and is not a matter within, the jurisdiction of the Settlement Authority. In, the same page it was again, observed even with reference to a case where patta had been, granted as follows:. we fail to see how it can be rightly contended that the question, of title to the land cannot be agitated in the civil Court. Even under the above circumstances, the grant of patta by the Settlement Authority to a particular party may at best be only one piece of evidence regarding the question of title to the land. So it cannot be said that once the settlement authorities grant a patta to one of the rival claimants, the jurisdiction of the civil Court to go into the question of title to the land is taken away.
At page 281, in paragraph 15 it was pointed out that the Act had not provided any machinery to determine a dispute between, rival claimants for ryotwari patta under Section 11 and that Section 11 itself did not provide such machinery. It was also pointed out following the decision in the State of Madras v. Ramalingaswamigal Madam : (1969)2MLJ281 that the finality under Section 64-C was only in respect of matters to be determined for the purpose of the Act and that Section 64-C was not a bar to the maintainability of a suit for title.
13. From the cases discussed above it follows that the Act has not provided any machinery for the purpose of deciding a dispute between the rival claimants for ryotwari patta under Section 11 and that any decision of the statutory authorities on. this aspect has no finality so as to bar the jurisdiction of Courts. The suit herein being for the purpose of getting a declaration of title to the lands, all questions bearing on the point in issue before the Court are open for decision by the, Court. There is no provision in the Abolition Act, which has impressed the decision of the statutory authority with any finality for all purposes so as to rule out the decision by the Courts.
14. The next question that arises is regarding the character of the lands. There is a definition of 'Ryoti land' is Section 3 (16) of the Madras Estates Land Act, as meaning cultivable land in an estate other than private land but as not including beds and bunds of tanks and of supply, drainage surplus or irrigation, channels etc. The word 'ryot' has been defined in Section 3 (15) of the Act as meaning a person who holds for the purpose of agriculture ryoti land in an estate on condition, of paying to the landholder the rent which was legally due upon it. Therefore, in order to be entitled to a patta in respect of a ryoti land, the land must be held for the purpose of agriculture. In the present case it is not in dispute that the land was claimed as an appurtenance to the rice mill owned by the plaintiffs. The plaintiffs would clearly thus be outside the scope of 'ryots', as the land is not held for agricultural purpose. The land was never under cultivations. The land would not be ryoti land. The Estates Land Act is designed to protect agriculturists and not others. Sri Venugopala Rice Mill v. Raja of Pethagoundam I.L.R. (1930) Mad. 367 : 32 L.W. 92 : 128 IND.CAS. 525 : 1931 59 M.L.J. 74 : A.I.R. 1931 Mad. 194.
15. The next question is whether the decision of the Settlement Officer that the land is a ryoti land is binding on. civil Courts. For the present purpose I proceed as if the order of the Settlement Officer in Exhibit A-5 still holds the field. A Full Bench of this Court in Sri Pollapalli Venkatarama Rao and Ors. v. Musunuru Venkayya and Ors. (1954) 2 M.L.J. 1 : 67 L.W. 354 : I.L.R. (1954) Mad. 715 has held that a decision of the Revenue Court incidentally on a particular matter which did not fall within its exclusive jurisdiction, would not be binding on the parties in a civil Court. In Section 15 of the Abolition Act there is a provision, that the claim for ryotwaripatta under Sections 12, 13 and 14 should be examined by the Settlement Officer and decided by him. Against the decision of the Settlement Officer, there is a right of appeal to the Tribunal. Section 15 (2) (b) provides that the decision of the Tribunal on any such appeal shall be final and not liable to be questioned in any Court of law. But a similar provision has not been made with reference to the claim for grant of patta under Section 11 of the Act. It follows that the statute did not want the matters to be examined under Section 11 to be within the exclusive jurisdiction of the statutory authorities. Therefore, any decision in any proceeding under Section 11 would not be binding on the civil Court. Similarly any decision under the provision of Sections 18 or 19 of the Act with reference to the grant of patta to buildings or vacant lands cannot also have a finality beyond the scope of examination by a civil Court. As pointed out earlier, the finality under Section 64-C of the Abolition Act is only for the purpose of the Act and has no effect in a suit for declaration of title. See also the State of Madras v. Balamanavala Reddiar and Anr : AIR1973Mad14 , State of Madras v. Ramalingaswamigal Madam : (1969)2MLJ281 and T.M. Lakshminarayana Ayyar and Ors. v. Nallachi Ammal and Ors. (1974) 87 L.W. 276.
16. I have now to examine the title of the plaintiffs to the suit properties. The only evidence in support of the plaintiffs' claim is found in Exhibits A-24, A-25 and A-26. I have already given relevant particulars regarding the receipts, dated 19th December, 1938, 12th April, 1943 and 23rd July, 1945. As regards these receipts the contention on behalf of the respondents was that they could not serve as foundation, for establishing title to an immoveable property, as title to immoveable property could only be obtained by a registered sale deed. In support of the above contention my attention was drawn to the decision of the Supreme Court in Alapati Venkataramiah v. Commissioner of Income-tax, Hyderabad : 57ITR185(SC) . It was ruled in that case that title to immoveable property could not pass till conveyance was executed and registered. Those receipts cannot, therefore, serve as foundation of title to the suit lands. Further in Exhibits A-24 and A-25 there is a reference to the surrender of these receipts in exchange for a patta. It is not clear as to why the plaintiffs' father did not take any steps for obtaining a patta and surrender these receipts. As the plaintiffs do not have any conveyance in their favour or in favour of their predecessor, there can be no question of the plaintiffs having any title to the suit property. The defendants based their claim on adverse possession. I shall examine their claim presently. But in the absence of a proper conveyance in favour of the plaintiffs or their predecessor, it has to be held that they have not established their title to the suit properties so that they cannot obtain a declaration as prayed for. The specific case set up in. the plaint is that there was a sale in their favour or in favour of their predecessor. As there is no registered document conveying the property, the case set up by the plaintiffs on the basis of title has to be rejected and was rightly rejected by the lower appellate Court.
17. The Learned Counsel for the appellants pointed out that the plaintiffs have paid kist with reference to these properties thereby establishing their title to them. The payment of kists is evidenced by Exhibits A-27 to A-34. All these receipts relate to a period subsequent to 1960. It is not clear as to why, if the plaintiffs were entitled to the suit properties even from 1938 and 1945 onwards, there has been no payment of kist by them at any time till 1960. But the payment of kist is not conclusive as even with reference to the payment of kist it has been held in Uthamaram Nathuram Salt and Ors. v. Hude Gopalakrishnayya : AIR1957Mad463 , by a Bench of this Court that the fact that the kist was paid did not prove possession when it is also paid by the rival party. In the present case the defendants also claimed to have paid kist and in addition rely on Exhibits B-55 to B-62 which are adangal extracts from fazli 1366 onwards. These go to show that the defendants have been in possession of the properties. Therefore, the fact that at some point of time the kist was claimed to have been paid by the plaintiffs does not establish that the plaintiffs have been in possession of the suit properties. If they proved possession over the statutory period, then perhaps the case of the plaintiffs would have deserved further examination. But there is absolutely no evidence of possession, at any rate, after 1952 when the lands were said to have been got delivered in execution proceedings taken against Abboy Chetty. The case of the plaintiffs has, therefore, to fail, as they have not established any title or possession over the statutory period.
18. It was next contended on behalf of the appellants that the present claim of the defendants is barred by res judicata. The foundation for this contention is that the question of issue of patta had been considered and decided in favour of the plaintiffs in. the settlement proceedings, which have virtually been confirmed by Kailasam, J., as the learned Judge held that the remand made by the Board of Revenue would operate only in respect of T.S. No. 7/5. The point sought to be made is that with reference to other survey numbers the order of the Settlement Officer stood.
19. This contention appears to be opposed to the decision in the State of Madras v. Balamanavala Reddiar and Anr. : AIR1973Mad14 In that case the appeal arose out of a suit against the State of Madras for declaration and injunction holding that the suit lands were ryoti lands and not tank bed lands. It was contended for the State that the finding of the Settlement Officer that the suit lands were tank bed lands was final and could not be questioned in a civil Court and that the previous decision by the High Court in the writ petitions filed by the plaintiffs in that case would operate as res judicata. In dealing with this point the learned Judges observed at page 148 that though in principle the previous adjudication might operate as res judicata the decision of the Settlement Officer whether a land was a ryoti land or not was an order passed in summary proceedings solely for the purpose of granting ryotwari patta. The limited scope of the writ petition in that case is clear from the observations made in the judgment in the writ petition. It was pointed out at page 149 as follows:
The decision of this Court on the writ petitions filed by the plaintiffs went against them mainly on account of the limited jurisdiction of this Court in the writ proceedings, namely, to see whether there was an error apparent out he face of the record in. the orders of the Settlement Officer in refusing to grant patta to the plaintiffs. The decisions are not based on all the materials which were considered in the subsequent suits filed by the plaintiffs. In fact, there can be no question of res judicata so long as the parties have a right to a suit to establish their title which could not be lawfully taken, away by summary proceedings under the Abolition Act intended merely to determine the question about the grant of ryotwari patta.
I have already extracted the relevant passages from the judgment of Kailasam, J., and also of the Bench which dealt with the appeal therefrom. They also show the limited character of the proceedings. The observations of the learned Judges are clearly to the effect that the question of title was clearly to be determined in civil proceedings. The right of the civil Court to go into the question of title was specially preserved by the learned Judges who heard the appeal. In fact, it was observed by the learned Chief Justice that the proceedings before the Settlement Officer would be subject to the declaration by the civil Court. In view of the above, I am unable to accept the contention of the Learned Counsel for the appellants that there was any bar of res judicata operating against the defendants with reference to their claim.
20. I have already held that the plaintiffs have not established their title to the suit properties. The claim of the plaintiffs would, therefore, fail even independently of any decision on the question as to whether the defendants have perfected their title to the relevant properties by adverse possession. However, having heard arguments on this question also, I would briefly deal with it,
21. For the appellants the submission was that the defendants were independent trespassers and that a trespasser could not tack on the previous adverse possession of an earlier trespasser. This question as to how far the adverse possession of one trespasser can be tacked on by the successor has been gone into in several decisions. In Rajagopala Naidu and Ors. v. Ramasubramania Ayyar and Ors. : AIR1935Mad449 , Varadachariar, J. (as he then was), held as follows:
The doctrine of independent trespassers will come in only when the second man trespasses upon the possession of the first or the first man abandons possession. It is not applied to a case in which on the death of the first man. while still in possession the person who thinks he is entitled to succeed him steps in without any interruption.
Thus, a person claiming derivative possession. from the earlier trespasser could tack on the period of adverse possession of the earlier trespasser. It was ruled by the Allahabad High Court in Baijnath and Anr. v. Ram Bilas and Ors. (1924) IND.CAS. 12 that a trespasser succeeding another under an invalid transfer could tack his possession on to that of the former so as to bar a suit for ejectment brought more than 12 years after the dispossession by the original trespasser. Similarly in Nomula Narasimha v. Vasam Mangamma (1925) 91 IND.CAS. 556, Venkatasubba Rao, J., held that a succession, of trespassers claiming through one another (e.g. as heir, legatee, assignee, or otherwise) could though the possession of each of them had extended to less than. 12 years, add and tack the periods of their possession so as to defeat the right of the true owner. In Gurbinder Singh and Anr. v. Lal Singh and Anr. : 3SCR63 , this question has been finally decided. At page 1556, it was observed as follows:
This is a suit to which Article 144 is attracted and the burden is on. the defendant to establish that he was in adverse possession for 12 years before the date of suit and for computation of this period he can avail of the adverse possession of any person or persons through whom he claims--but not the adverse possession of independent trespassers. (Italics mine).
So, the result is that the defendants are entitled to tack on the period of adverse possession of persons through whom they derived title and they have proved adverse possession over the statutory period. Thus, the appeal fails and it is dismissed. There will be no order as to costs. No leave.