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The State of Madras Represented by the Collector of Ramanathapuram Vs. Ramalingaswamigal Madam, Represented by N.S.K. Paramasiva thevar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Reported in(1969)2MLJ281
AppellantThe State of Madras Represented by the Collector of Ramanathapuram
RespondentRamalingaswamigal Madam, Represented by N.S.K. Paramasiva thevar and ors.
Cases ReferredState of Madras v. Parisudda Nadar
Excerpt:
- 1. the state of madras is the appellant in these second appeals, which came up originally before natesan, j., who considered it desirable that they should be decided by a division bench, in view of the conflicting decisions as to the jurisdiction of civil courts to give declaration of title in respect of property included in an estate taken over by the government by virtue of the madras estates (abolition and conversion into ryotwari) act, 1948, hereinafter referred to as ' the act.'2. it is really unnecessary to deal with the concurrent findings of fact in both these second appeals and, in fact, natesan, j., has in his orders of reference in these second appeals, observed that there has been no challenge before him with regard to the findings on the merits of the title put forward by the.....
Judgment:

1. The State of Madras is the appellant in these second appeals, which came up originally before Natesan, J., who considered it desirable that they should be decided by a Division Bench, in view of the conflicting decisions as to the jurisdiction of civil Courts to give declaration of title in respect of property included in an estate taken over by the Government by virtue of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, hereinafter referred to as ' the Act.'

2. It is really unnecessary to deal with the concurrent findings of fact in both these second appeals and, in fact, Natesan, J., has in his orders of reference in these second appeals, observed that there has been no challenge before him with regard to the findings on the merits of the title put forward by the plaintiff in each of the second appeals. It is sufficient to refer to the findings of fact to appreciate the question of jurisdiction raised in these second appeals.

3. Ramalinga Swamigal Madam, represented by its trustee is the plaintiff, respondent in S.A. No. 1149 of 1962. The Madam is situated in a portion of Survey No. 114 in Sivaganga Estate, which formed the subject-matter of the suit. Even in January, 1938, the Sivaganga Estate recognised the actual enjoyment of the suit property by the Madam and assigned the same to the plaintiff subject to payment of rent Re. 1 per acre, besides cesses. S.No. 114 now stands sub-divided into S. No. 114/1 measuring 7 cents and S. No. 114/2 measuring 3 acres 48 cents. The State of Madras, the defendant-appellant, pleaded that S. No. 114/1 was occupied by Udayanatchiamman Koil worshipped by the Harijans and that S. No. 114/2 contained a public Oorani, a burial ground for the Asari community and another burial ground for the Brahmins and claimed the entire suit property as a communal poramboke property. After the Abolition Act, the respondent sought recognition of its title. On 29th December, 1953, the Additional Assistant Settlement Officer, Sivaganga, informed the plaintiff-respondent that its petition would be considered at the time of enquiry under Section 11 of the Act. The Assistant Settlement Officer Sivaganga passed the order Exhibit B-4 dated 25th June, 1954 purporting to act suo motu, and also on the petition of Sutha Chaitanya Swamigal, holding that no one was entitled to a ryotwari patta in respect of the suit property. There is nothing, to show that this order was communicated to the plaintiff-respondent till it was sent to it by way of a reply to the suit notice. The Courts below found that it had been : established by ample evidence that the suit property was only the private property of the plaintiff-Madam by reason of the assignment made by the Sivaganga. Estate, and this finding is one of fact, which was not the subject of challenge before Natesan, J., when the second appeal came up before him.

4. The findings in S.A. No. 338 of 1963 on the file of this Court, are rested on even stronger grounds than in the other case. The suit property in this second, appeal bearing Adangal No. 1361 is situated in a mitta village, taken over by the Government under the Abolition Act. The patta in respect of the property gives the extent as 7 acres 85 cents. There has been a survey in the village subsequent to the abolition of the estate and Adangal No. 1361 has been sub-divided into S. No. 193/1 measuring 3 acres 10 cents, 193/2 measuring 1 acre 66 cents and 193/3 measuring 1 acre 55 cents. S. No. 193/1 alone has been recognised as patta land. S. Nos. 193/2 and 193/3 have been treated as Oorani and Odai Porambokes. The claim of the plaintiffs is that the entire extent in the old Adangal No. 1361 comprising the several sub-divisions of the new S. No. 193 have been enjoyed as ryoti land for over a century and that there has never been any Oorani in the land within living, memory. On ample and substantial evidence, the Courts below found in favour of the plaintiffs on the merits of the case.

5. A distressing feature of the case noticed by Natesan, J., is that, even before the commencement of the enquiry contemplated under Section 11 of the Act, proceedings were taken in advance by the Assistant Settlement Officer as the Government wanted to build Police lines in the village and directed the Village Officers to point out some poramboke area suitable for erecting buildings and the Assistant Settlement Officer has practically complied with the directions of the Collector in finding that the land in dispute is not ryoti land. It is admitted by the Village Officers that there is a Land Register maintained by the Mitta Office which would show the boundaries of each Adangal number, but the register has been kept back and not produced in spite of the requisition by the plaintiffs. Natesan, J., has referred to the direction from a superior Revenue Officer for an advance settlement in respect of the suit land treating the same as poramboke and observed that if the matter had come up before this Court in its jurisdiction under Article 226 of the Constitution of India, he had no doubt that the order would have been quashed. It is clear from the order of reference made by Natesan, J., that there has been no challenge before him with regard to the findings on the merits of the plaintiffs' title and right to possession of the plaint schedule property.

6. Thus the decision in each of the second appeals depends entirely on the question whether a civil Court hag. jurisdiction to entertain the suit by the plaintiff in each case. The contention of the learned Advocate-General is that the State, having, rightly or wrongly held that the suit property is communal poramboke, the civil Court would have no jurisdiction to entertain the suit for declaration of title to the suit property, having regard to the provisions of the Abolition Act. Sri Vedantachari appearing for the respondents in these second appeals contended that having regard to the Preamble and purpose of the Act, the interest of the ryot is not in any way intended to be affected and it did not vest in the Government, that the Act is intended only for the acquisition of the rights of landholder, that there is no machinery provided under the Act to determine whether the land in the possession of a tenant is a ryoti land or poramboke land and that even if the title of a tenant for a ryotwari patta is considered by a Settlement Officer for purpose of granting patta, it would only be a collateral or incidental adjudication of title which would not preclude a civil Court by virtue of anything contained in Section 64-G of the Act from deciding questions of title.

7. We may at once mention that conflicting views have been expressed in several decisions and in some cases even by the same judge and hence the question for decision is not free from difficulty.

8. Under Section 9 of the Civil Procedure Code, ' the Court shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.' It is a well known principle that a party seeking to oust the jurisdiction of ordinary civil Courts must establish his right to do so. Natesan, J., has in his order of reference in S. A. No. 338 of 1963 referred to the observations of Romer, L. J. in Lee v. Showmen's Guild of Great Britain (1952) All E.R. 1175, that

the proper tribunal for the determination of legal disputes are the Courts and they are the only tribunals which, by training and experience, and assisted by properly qualified Advocates are fitted for the task and that, naturally the Courts zealously uphold and safeguard the prima facie privilege of every man to resort to them for the determination and enforcement of his legal rights.

He has further observed that the [claim forming the subject-matter of that second appeal is a good illustration for the position that a civil Court's jurisdiction should not be readily assumed to be taken away. In Secretary of State for India v. Mask & Co. I.L.R. (1940) Mad. 599 : L.R. 67 IndAp 222 : (1940) 2 M.L.J. 140, the Privy Council stated it as settled law that the exclusion of the jurisdiction of the Civil Court is not to be readily inferred, but that such exclusion must be explicitly expressed or clearly implied. Willes, J., in his classical judgment in Wolverhampton New Waterworks Co. v. Hawkesford (1898) 6 C.B. (N.S.) 336, has explained the scope of the above principle in the following passage:

There are three classes of cases in which a liability may be established founded upon a statute. One is where there was a liability existing at Common Law and that liability is affirmed by a statute which gives special and peculiar form of remedy different from the remedy which existed at Common Law; there, unless the statute contains words which expressly or by necessary implication exclude the Common Law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy. There the party can only proceed by action at Common Law. But, there is a third class viz., where a liability not existing at Common Law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed and it is not competent to the party to pursue the course applicable to cases of the second class.

Ramachandra Iyer, J., as he then was, has rightly pointed out in Soosai Odayar v. Andiyappan (1959) 1 M.L.J. 195, that the right to obtain ryotwari patta was not a Common Law right of the ryot who was holding under the landholder in an estate, that the said right is conferred on a ryot by virtue of the Act and that such a right is a creature of the statute and the remedy provided by the statute should be deemed to be the exclusive remedy on the basis of the third category of the cases mentioned in the above passage of Willes, J., Ramachandra Iyer, J., has explained that this is not really exclusion of jurisdiction of the Court, but as stated by Maxwell in his Interpretation of Statutes (10th edition) at page 132:

Where indeed a new duty or cause of action is created by statute, and a special jurisdiction out of the course of the Common Law is prescribed there is no ouster of the ordinary Courts for they never had any.

Thus if a claim is made to obtain a ryotwari patta under the provisions of the Act, civil Courts would have no jurisdiction to entertain the same as a machinery has been provided for in the Act for the said purpose.

9. Sri Vedantachari urged on the strength of the Preamble and the other provisions of the Act that the interests of a ryot in an estate did not vest in the Government under the Act. He stressed on the fact that the purpose of the Act was to bring into existence ryotwari tenure in estates and that the Act was not intended to destroy the rights of the ryot ,or to vest them in the Government. He relied on the proviso to Section 3 (d) of the Act. which safeguards the rights of a ryot to remain in possession of a ryoti land and of a landlord to remain in possession of his private lands, pending the grant of ryotwari patta under the Act. It is true there are observations in several decisions that in granting ryotwari pattas to a ryot for ryoti land and to a landholder for his private land in an estate, the pre-existing title is recognised and given effect to under the provisions of the Act. Thus, in Writ C.M.Ps. Nos. 8017 etc. of 1950, attack was made on the provisions contained in Section 27 of the Act, excluding the income from the lands for which the landholder is entitled to a ryotwari patta in computing the gross annual demand for the purpose of fixing compensation, as a fraud on the Constitution. But the said contention was negatived 011 the ground that a Zamindar cannot both have the lands and also ask for the income from the lands to be included in the computation of the basic annual sum. It is observed in that decision that the ownership of the land which was originally subject to peishcush continued to be with the Zamindar subject to payment of kist. The above decision has been followed in Seethalakshmi Ammal v. Krishnaswam Rao 71 L.W. 706, where Ramaswami, J., has pointed out that it has been held in the said case that practically there has been no change by reason of the Act in so far as pannai lands are concerned and that instead of the burden of peishcush, there is the burden of ryotwari assessment and that the Zamindar cannot both have the lands and also ask for the income from the lands to be included in the computation of the basic annual sum, for the ownership of the lands, subject to assessment, continues to be with the Zamindar and that therefore there is no real grievance on that account. There was an appeal against the above decision of Ramaswami, J., and the judgment of the appellate Court is reported in Seethalakshmi Ammal v. Krishnaswami Rao (1061) 1 M.L.J. 87. It was held in this decision that the ownership of the private lands must be deemed to continue with the Zamindar and that there has only been a change of the nature of the burden on such land. It was held that the charge for unpaid purchase money would continue to subsist over the private lands for which a ryotwari patta had been issued to the landholder.

10. The decision in Rana Sheo Ambar Singh v. Allahabad Bank : [1962]2SCR441 , turned on the construction of Section 18 of the U. P. Zamindari Abolition and Land Reforms Act I of 1951, which is different from the Madras Act. By virtue of Sections 4 and 6 of the said Uttar Pradesh Act, the entire estate vested in the State, and the bhumidari rights created under Section 18 of the said Act conferred new rights on the intermediary and hence it was held that the said bhumidari rights cannot be followed by a mortgagee, who had taken a mortgage prior to the Abolition Act, as substituted security. In Sidheshwar Prasad v. Ram Saroop : AIR1963Pat412 , a Full Bench of the Patna High Court distinguished the above decision of the Supreme Court. It was held in this Full Bench decision that by virtue of Sections 4 and 6 of the Bihar Land Reforms Act, XXX of 1950, the bakasht lands constituted an entity separate and distinct from the estate which has vested in the State without reservation, that the intermediaries became statutory tenants in respect of the said bakasht lands, that the bakasht lands could be proceeded against by the mortgagees who had taken a mortgage of the lands prior to the said Bihar Land Reforms Act and that this is on the doctrine of substituted security. This decision follows the above Supreme Court decision in recognising the principle that the vesting of the estate has not the effect of destroying the mortgage, but that the mortgage could operate only on that portion of the hypotheca which has not vested in the State. The above decisions have all been referred to in Md. Mustafa Marakayar v. Md. Aliar Marakayar (1967) 80 L.W. 424, which upheld the right of a mortgagee to proceed against the pannai lands of the mortgagor subsequent to the grant of ryotwari patta to the landholder in pursuance of the Act. It has been held in this decision that both possession and title of a person, who is entitled to a ryotwari patta are saved from the effect of the notification under Section 3 (b) of the Act and the ownership in such lands continue in the quondam landholder notwithstanding the notification and the fact that it is subject to determination of the character of the land for which he will be entitled to a ryotwari patta. It is observed in this decision that the change brought about is not with regard to the ownership but in respect of the tenure of the land for which ryotwari patta is granted. It is clear from the decision that the grant of patta under Sections 12 to 14 of the Act read with the protection of continued possession of the private land with the landlord is only in recognition of the anterior title which is continued with different incidence from the standpoint of revenue and the relationship of landlord and tenant. It is pointed out in this decision that the position under the Madras Act appears to be very akin to that of the Bihar Act which was under consideration in Sidheswar Prasad v. Ram Saroop : AIR1963Pat412 , and that there is nothing in the Madras Act corresponding to Section 18 of the Uttar Pradesh Act.

11. The State of Madras v. Parisutha Nadar (1961) 2 M.L.J. 285, it has been held that it is not open to the .Government in the course of the proceedings to put forward its own title to the property sought to be acquired so as to defeat the rights of the persons entitled to the compensation. It is true the decision is based on the principle of estoppel. It was contended by the State in that case that in the absence of ryotwari patta in favour of the claimant in the land acquisition proceedings, the mere possession of the land with the claimant (ryot) would not give him a right to claim compensation amount. But the contention was negatived in that case. It was held in this decision that a claimant could claim the benefit of the proviso to Section 3 (d) of the Act, if he is sought to be dispossessed from his holding and that he could not be dispossessed under the provisions of the Land Acquisition Act without being paid compensation. This decision supports several of the contentions put forward by Sri Vedantachari. It is pointed out in this decision that the Preamble to the Act indicates that the Act was intended to provide for the repeal of the Permanent Settlement and for the acquisition of the rights of the landholders in permanently settled estates and other estates in the State of Madras and for the introduction of Ryotwai i Settlement in, such estates. The effect of the said conversion is stated in the following passage at page 289:

In this process of statutory conversion of erstwhile Zamin and inam estates into ryotwari villages, it was the landholder who lost his existence as such. Even this landholder, despite the Act, is not deprived of the holding of his private lands as he had a right to obtain a ryotwari patta in respect of such lands. The vesting, of the entire estate as provided for under Section 3 of the Act free of all encumbrances and the transfer to the Government have got to be understood and interpreted in the light of the object of the enactment and should not be construed as having brought about a total abolition of all rights of ownership of properties lying within the limits of the taken over estate.

It is further held in the decision that the obtaining of ryotwari patta by the person, entitled to such patta under the Act can, if at all, be only in recognition of the preexisting rights of ownership.

12. Though the pre-existing title of a ryot in a ryoti land and of a landholder in a private land is recognised for granting a ryotwari patta under the Act, it cannot affect the clear language of Section 3 of the Act that what vests in the Government is the entire estate and the words used in the section are wide enough to include the vesting of the ryoti land of a ryot and the private land of a landholder. In Kumararajah of Venkatagiri v. State of Andhra Pradesh : [1960]1SCR552 , it was urged that the Long Title and the Preamble to the Act indicate that the object of the Act is to provide for the acquisition of the rights of landholders and that the policy of the Act is not to interfere with the rights of other persons in the estate. But it has been pointed out by the Supreme Court that this assumption, however, is not borne out by the substantive provisions of the Act itself and that Section 3 sets forth the consequences which ensue on the notification of an estate and that it is clear that on an estate being notified, the entire estate is to stand transferred to the Government and all rights and interests created in or over the estate before the notified date by the principal or any other landholder must, as against the Government, cease and determine.

13. All the above decisions, where the question of vesting of the estate in the Government has been considered, relate to suits to enforce mortgages, or charges. In Barmeshwar Nath v. Babu Kuer Rai A.I.R. 1864 Pat. 116, it has been held that where a mortgage consists of several items of properties, some of which have vested in the State under the provisions of the Bihar Act XXX of 1950 and others have not to vested, the mortgagee has the option to elect whether he 'will seek his remedy under Section 14, or will proceed in the civil Court as against the non-vested properties, but he -cannot have both the remedies. It has been further held in this decision that a suit for enforcing the mortgage in such a case will be perfectly maintainable as against the non-vested mortgaged properties, but in no case the mortgaged properties vested in the State could be proceeded against in the Civil Court. The right to proceed against the properties taken over under the Abolition Act and vested again in the mortgagor, whether he be landlord owning pannai lands, or ryot owning ryoti lands, really proceeds on the well-known equitable doctrine of substituted security, the principle of which is embodied in Section 74 of the Transfer of Property Act. As pointed out by Mulla in his Transfer of Property Act, Section 73 of the Transfer of Property Act is an instance of the application of the doctrine of substituted security, viz., that the mortgagee is, for the purpose of his security, entitled not only to the mortgaged property, but also to anything that is substituted for it. If the subject of the mortgage is the undivided share of the joint sharers effecting a partition, the mortgagee must pursue his remedy against the share allotted in severalty to his mortgagor and in the absence of fraud or collussion, the co-sharers of the mortgagor would hold their shares free of the mortgage. Mulla has pointed out that this is a case not dealt with in Section 73 of the Transfer of Property Act, to which the same doctrine applies. Another illustration of this principle of substituted security is given by Sri L. G. Mukherje in his Law of Transfer of Property, second edition, page 182. Suppose the land mortgaged is sold in public auction and purchased by a third party from whom the mortgagor re-purchases the land. Here, the moment the hypotheca comes back into the hands of the mortgagor, it is again responsible for the mortgagee's claims. It is true the decision in Rana Sheo Ambar Singh v. Allahabad Bank : [1962]2SCR441 , appears at first sight to conflict with the above view. But it could be distinguished on the ground that it proceeded on a construction of Section 18 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act.

14. Hence, however attractive the arguments of Sri Vedantachari arc, it is not possible to accede to them in full and find that the rights of a ryot in a ryoti land are not affected by the Act, that they do not vest in the Government and therefore, any claim to such right could not be the subject-matter of any decision under the Act, but could be dealt with only by civil Courts.

15. Section 64-C of the Act provides for finality of orders passed under the Act and it runs as follows:

(1) Any order passed by the Government or other authority under this Act in respect of matters to be determined for the purposes of this Act shall, subject to any appeal or revision provided by or under this Act, be final.

(2) No such order shall be liable to be questioned in any Court of Law.

The contention of Sri Vedantachari is that there is no provision in the Act enabling a ryot of a ryoti land in an estate abolished under the Act, to put forward a claim for a ryotwari patta, unlike in the case of a landholder, on whom Sections 12 to 14 of the Act confers a right to apply for the issue of a ryotwari patta. There is no provision for a Settlement Officer to investigate into the claim of any ryot in an estate abolished under the Act, for a ryotwari patta corresponding to Section 15 of the Act, which empowers the Settlement Officer to determine the private lands in respect of which the landholder is entitled to a ryotwari patta. Section 11 of the Act provides for grant of ryotwari patta to a ryot in respect of a ryoti land in his possession. In State of Madras v. Karuppiah Ambalam (1959) 1 M.L.J. 185, Ramachandra Iyer, J., as he then was, has pointed out that there is no provision for deciding the character of the lands which is claimed to be ryoti lands as it is evidently presumed that every cultivable land is ryoti land. He has however pointed out that Section 3 (d) proviso would seem to contemplate a decision by the Settlement Officer as to whether a person in possession would be entitled to patta which would include a determination whether a land was a ryoti land or not, and that Rules have been framed under Section 67 of the Act to regulate the granting of pattas by a Government notification dated 2nd March, 1955. Ramachandra Iyer, J., in Soosai Udayar v. Andiayappan (1959) 1 M.L.J. 195 relied on the provisions of Section 56 of the Act, (since repealed) as providing an agency to decide disputes as to who was the lawful ryot of a holding prior to the notification. Section 56 of the Act ran as follows:

(1) Where an estate is notified and a dispute arises as to (a) whether any rent due from a ryot for any fasli year is in arrear or (b) what amount of rent is in arrear or (c) who the lawful ryot in respect of any holding is, the dispute shall be decided by the Settlement Officer.

(2) Any person deeming himself aggrieved by any decision of the Settlement Officer under Sub-section (1) may within two months from the date of the decision or such further time as the Tribunal may in its discretion allow, appeal to the Tribunal; and its decision shall be final and not be liable to be questioned in any Court of law.

It is true under Section 56 (1) of the Act a Settlement Officer has to decide as to who is the lawful ryot in respect of any holding. But it is clear that the section was intended to provide a machinery for summary decision as between rival claimants for ryotwari patta solely for the purpose of deciding from whom the kist should be collected. In fact, Section 56 of the Act has since been repealed and the effect of the same has been considered in Adakalathamtnal v. Chinnayan Panipundar (1939) 1 M.L.J. 314, and in Krishnaswami Thevar v. Perumal Konar (1961)1 M.L.J. 168, Section 21 (1) of the Act provides for the survey of the estates taken over under the Act and Section 22 of the Act provides the manner of effecting ryotwari settlement of estate. In Venkata Subba Rao v. State of Andbra (1961) 2 A.W.R. 329, Chandra Reddy, C.J., as he then was, held in a Division Bench judment, that a combined reading of Section 3 (d) and Section 11 of the Act will result in the inescapable conclusion that jurisdiction was vested in the Settlement Officer to decide whether a ryot was entitled to a ryotwari patta of ryoti land. This view has also been expressed in several decisions of our own High Court. It is sufficient to refer to the recent decision of Venkataraman, J, in Somasundara Servai v State of Madras I.L.R. (1966) 2 Mad. 539. Chandra Reddy, C. J., has pointed out in the decision referred to above that the Legislature intended that, the rights and obligations should be worked out as speedily as possible by the tribunals set up under the Act. Normally, there would be no difficulty in determining the ryoti land in an estate having regard to the exchange of pattas between the landlord and ryot and other records kept under the provisions of the Estates Land Act. Having regard to Section 21 of the Act providing for survey of the estates, and the proviso to Section 3 00 protecting the possession of a ryot in a ryoti land and the general Section 11 providing for the grant of ryotwari patta to such ryots, it could not be said that the Act does not contemplate an order by the authority under the Act for grant of ryotwari patta and there could be no doubt about the finality of such an order under Section 64-G of the Act.

16. We have already pointed out that the grant of a ryotwari patta under the Act is a right created under the Act and that the machinery provided under the Act is the only remedy for obtaining ryotwari patta. If the provisions of the Act are disregarded and the principles of natural justice are violated, it would certainly be open to an aggrieved party to obtain relief under the writ jurisdiction of this Court. In some of the earlier writs, Ramachandra Iyer, J , as he then was, has expressed his opinion that a ryot who has failed to obtain patta under Section 11 of the Act has got a remedy by way of suit. Thus in Writ Petitions Nos. 759 and 760 of 1958, which involved the determination of the question as to the title of the petitioners to obtain ryotwari patta under Section 11 of the Act, Ramachandra Iyer, J., dismissed the petitions at the admission stage after expressing his view that the question as to title and the right to obtain patta under Section 11 of the Act could be adjudicated by a civil Court. In a subsequent Writ Appeal 147 of 1959, Ramachandra Iyer, C.J., as he then was, took the same view and dismissed the appeal at the admission stage. The learned Advocate-General relied on the decision in Abdul Malick v. Collector of Dharmapuri : (1968)1MLJ9 , in support of his contention that the above two judgments given by a Court per incuriam,, i. e., judgments rendered on hearing only one side, will have no force as precedents.

17. We have pointed out that the right to secure patta is one given under the Act and it could be obtained only under the provisions of the Act. Therefore, no suit would lie for the grant of patta and this principle has been stated in several decisions. It is well recognised that in construing the plaint, the substance of the same should be looked into and not merely the form in which' it has been couched and that if the suit is really one for patta, the civil Court would not entertain the same. Thus in Ramaswami v. Parimala Pandian I.L.R. (1964) 1 Mad. 740. it has been held that if the suit is in effect for grant of a ryotwari patta in respect of land in a notified estate, such a suit does not lie in a civil Court. The decisions in State of Madras v. Swaminathan (1955) 2 M.L.J. 178, and Somasundara Servai v. State of Madras I.L.R. (1966) 2 Mad. 539, that if the plaint is framed as one based upon the proviso to Clause (d) of Section 3 of the Act, the plaintiff will be entitled to sue for and obtain an injunction.

18. The decisions under Section 189 (3) of the Madras Estates Land Act as to the scope of that section are pretinent to the present case. The earlier decisions have all been considered in the Full Bench decision in Venkatarama Rao v. Venkayya (1954) 2 M L.J. 1,. It has been held in that case that a decision of a Revenue Court on a matter falling within its exclusive jurisdiction shall be binding on the parties and their representatives in any suit or proceedings in a civil Court and that a decision of a Revenue Court incidentally on a particular matter, which . does not fall within its exclusive jurisdiction cannot be binding on the parties in a Civil Court. A decision of a Revenue Court as to a claim of occupancy right and the question whether particular lands are situated in an estate or not, are not within its exclusive jurisdiction and therefore it is not res judicata in a subsequent civil proceeding. In Raja Rajeswara Sethupathi v. Muthudayan (1929) I.L.R. 52 Mad. 332 : (1929) 55 M.L.J. 379, it has been held by Philips and Madhavan Nair, JJ., that a decision of a Revenue Court in a suit by a tenant under Section 55 of the Madras Estates Land-Act that he was not entitled to demand a patta is res judicata on the ground that he was the occupancy tenant because of the provisions of Section 189 (3) of that Act. In this case, reference was made to the decision of Spencer, J., in Appa Rao v. Gurraju : (1920)39MLJ476 , that the decision as to title in the Revenue Court was a decision on an incidental matter inasmuch as the patta had been ordered and its provisions were settled, and it was observed that if the decision as to the occupancy right of the plaintiff in that suit could be deemed to be on an incidental matter, it would not constitute res judicata in the subsequent civil proceedings. But Philips, J., was however of the opinion that the claim for occupancy right which is the basis for the grant of a patta was within the exclusive jurisdiction of the Revenue Court and that the subsequent civil suit was barred. In the Full Bench decision in Venkatarama Rao v. Venkayya (1954) 2 M L.J. 1, it has been held that ' Raja Rajeswara Sethupathi v. Muthudayan I.L.R. (1929) Mad. 332 : (1929) 55 M.L.J. 379, was wrongly decided and is opposed to a considerable body of judicial opinion in our Court '. The Full Bench, agreed with the interpretation of Section 189 (3) of the Madras Estates Land Act adopted by successive Bench decisions referred to by it, namely, that it is only in respect of disputes or matters exclusively within the jurisdiction of a Revenue Court that its decision would be binding on the parties in a subsequent civil proceedings and not its decision on incidental disputes or matters which arise in the course of adjudicating on the disputes and matters not falling within its exclusive jurisdiction.

19. The Supreme Court in Desika Charyulu v. State of A.P. : AIR1964SC807 , has in considering the exclusive jurisdiction of the tribunal by virtue of the then existing Section 9 (4) (c) of the Madras Estates (Abolition and Conversion into Ryotwari) Act XXVI of 1948, clearly enunciated the principles for deciding that question. Under the relevant provision considered by the Supreme Court in that decision, the decision of the Tribunal shall be final and not liable to be questioned in any Court of law. The very provision setting up an hierarchy of judicial tribunals for the determination of the question on which the applicability of the Act depends, as pointed out in that decision, is sufficient in most cases for inferring that the jurisdiction of the Civil Courts to try the same matter is barred. But even in such cases it has been held that this exclusion of jurisdiction of civil Courts would be subject to two limitations; first even if the jurisdiction is so excluded, the civil Courts have jurisdiction to examine cases where the provisions of the Act have not been complied with, or the statutory-tribunal has not acted in conformity with the fundamental principles of judicial I.L.R. (1920) Mad. 859 : 39 M.L.J. 476 procedure. The second is as regards the extent to which the powers of statutory tribunals are* exclusive. The following principle formulated by Lord Esher on this point in The Queen v. The Commissioner for Special Purposes of the Income Tax (1888) L.R. 21 Q.B.D. 313, has been quoted with approval by the Supreme Court:

When an inferior Court or tribunal, or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give the tribunal or body. It may in effect say that if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The Legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the Legislatures are establishing such a tribunal or body with limited jurisdiction,, they also have to consider whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist because the Legislature gave them jurisdiction to determine all the facts including the existence of the preliminary facts on which the further exercise of their jurisdiction depends, and if they were given jurisdiction so to decide, without any appeal being given there is no appeal from such exercise of their jurisdiction.

20. We have already referred to the decision in Krishnaswami Thevar v. Perumal Konar (1961) 1 M.L.J. 168 and the observations at pages 170 and 171 which support the view that the grant or refusal of patta under Section 11 of the Act cannot amount to a determination which will bar an adjudication of title and as to the character of the land by virtue of Section 64-C of the Act. It is true that case relates to competing titles of rival claimants. But after the repeal of Section 56 of the Act, there is no scope even for the semblance of an arguments that there is any machinery to decide the case of a claim to patta by rival claimants. If the claim of a ryot for a ryotwari patta is a matter which could be decided by a Settlement Officer by virtue of Section 11 read with proviso (1) to Section 3 (d) of the Act, it would stand to reason that the claim of a number of applicants for the same relief would equally fall under the same provisions. In Ramaswami v. Parimala Pandian I.L.R. (1964) 1 Mad. 740, Veeraswami, J., has expressed the view that the jurisdiction of the civil Court is certainly excluded from determining the nature of the lands in a notified estate and granting declarations of title. But he has added that where the nature of the land is determined and ryotwari patta is directed under the provisions of the Act, the question of conflicting claims to title may be a different matter, which may well come within the jurisdiction of the civil Court.

21. The finality under Section 64-C of the Act is only in respect of matters to be determined for the purpose of the Act. Unlike in Sections 12 to 14 of the Act for the grant of ryotwari patta to a landholder in respect of private lands, there is no similar express provision for any enquiry and grant of a ryotwari patta to a ryot in respect of a ryoti land. It is only by reading Section 11 in the light of proviso (1) to Section 3 (d) of the Act that an inference could be made that a Settlement Officer is enabled to grant a ryotwari patta to a ryot. In Writ Petitions Nos. 707 and 708 of 1957, on the file of this Court, Rajagopalan, J., accepted the contention that the proviso to Section 3 (d) has to be read with Section 22 of the Act and that the determination of the question whether a given person is entitled to a ryotwari patta is part of the Settlement Proceedings for which Section 22 provides. He did not accept the contention of the learned Additional Government Pleader that the proviso to Section 3 (d) confers the jurisdiction on the Settlement Officer independent of the jurisdiction conferred on him by Section 22 of the Act, though he recognised the undoubted jurisdiction of the Settlement Officer to determine whether a claim by a ryot under Section 11 of the Act is well founded and to determine whether a ryotwari patta should be issued to him. In Appeal No. 359 of 1961, on the file of this Court, Veeraswami, J., has, in delivering the judgment of the Division Bench, held that the issue of patta is in recognition of the title that inhered before the notified date and continued to inhere in the landholder thereafter to the private lands but only with this difference that after the notification the tenure of the land is no longer pannal or private, but on grant of ryotwari patta, becomes ryotwari land subject to payment of assessment. It is clear from the provisions of the Act that what really vests in the Government in respect of a ryoti or private land is merely title and there is no vesting of possession, which is protected under the proviso to Section 3 (d) of the Act. So long as the posses : ion of the land continues to vest in the ryot, he would be entitled to protect this right in respect of the same by resorting to civil Courts. This is clear from the decision of Krishnaswami Thevar v. Perumal Konar (1961) 1 M.L.J. 168. Ramachandra Iyer, J., as he then was has pointed out that irrespective of any question of title, the plaintiff could base his title on his antecedent possessory title and that if the defendant in such a case is able to obtain patta from the authorities, he can put forward a superior title under it in answer to the 'plaintiffs' claim. He has pointed out that this is but : an illustration of the familiar rule of law that mere possessory title would avail against the rest of the world except the true owner.

22. In Adakalathammal v. Chinnayyan : AIR1959Mad447 , it is pointed out that if a person has been in possession of a ryoti land, and any person has trespassed on his holding and no ryotwari patta has actually been granted to either of the persons, there is nothing prima facie in any of the provisions of the Act which prevents a civil Court from entertaining : a suit for possession by a person who had been in possession and who had been dispossessed, though such a dispute would not necessarily mean that the successful party would be eventually entitled to a patta. It is pointed out in the decision that the jurisdiction conferred on the Settlement Officer was only for the purpose of the working of the Act, that is, to enable the grant of patta. The case related to the jurisdiction of civil Court to try a suit for possession and other incidental reliefs based on title. In Bhagawan Dayal v. Reoti Devi : [1962]3SCR440 , the plaintiff claimed title to the suit properties and for an injunction restraining the execution of the decree obtained by the defendant in a Revenue Court. It was held that the Revenue Court was not competent to try the subsequent suit filed in the civil Court and hence the civil Court's jurisdiction was not ousted. On the same analogy by the claim made in these suits; could not have been agitated before the Settlement Officers on applications for obtaining ryotwari patta.

23. There is also no provision under Section 11 of the Act read with the proviso 1 to Section 3 (2) of the Act for the ascertainment of the character of the land, namely, whether it is ryoti land, or communal land. The decision of a Settlement Officer. whether a land is ryoti land or not is only for the purpose of granting a ryotwari patta and it is only an incidental determination for the purpose of granting patta. In Venkatamma Rao v. Venkayya (1954)2 M.L.J. 1, Rajamannar, C.J., in delivering the judgment of the Division Bench., agreed with the view of Spencer, J., in Appa Rao v. Gurraju I.L.R. 43 Mad. 859 : 39 M.L.J. 476, that the dispute as to occupancy right and the question whether the lands are situated in an estate or not are not matters falling within the exclusive jurisdiction of the Revenue Court and differed, with respect, from the view of Philips, J., in Raja Rajeswara Sethupathi v. Muthudayan I.L.R (1929) Mad. 332 : (1929) 55 M.L.J. 379, that the decision as regards the claim for occupancy right of the plaintiff was a matter falling within the exclusive jurisdiction of the Revenue Court, on the ground that it was not incidental to the grant of patta.

24. In State of Madras v. Umayal Achi and Anr. L.P A. No. 106 of 1959, it was held that the civil Court had jurisdiction to entertain the suit for a mere injunction restraining the Government from arbitrarily and oppressively applying the provisions of the Land Encroachment Act to persons like the plaintiffs who have been in occupation of lands in a notified estate even prior to the date of the notification. It was contended by the learned Government Pleader in that case that the only course open to the plaintiffs was to apply to the Settlement Officer for the grant of a patta and that this Court had no jurisdiction to go into the question whether the plaintiff, were entitled to a ryotwari patta. This contention was negatived on the ground that there was no prayer in the suit for the grant of a ryotwari patta. It has been pointed out that the civil Court cannot itself grant a ryotwari patta to the plaintiffs, nor can it direct the Government to grant such a patta, as it is a matter entirely within the cognizance of the Special Officers on whom statutory powers have been conferred under the Act. But it was pointed out in that decision that there is no impediment to the plaintiffs obtaining the limited relief of injunction against dispossession which was all they had sought in that case. The decision of Jagadeesan, J. in State of Madras v. Ramaswami Chettiar and Ors. C.M.A. No. 24 of 1960, distinguished the above decision on the ground that the provisions of the Land Encroachment Act were sought in aid by the State Government to evict a person from the possession of a Land in a quondam estate taken over under the Abolition Act, instead of resorting to the special machinery provided in the Rules framed under the Act. The plaintiff in that case sued for a declaration that the land described in the plaint schedule belonged exclusively to him and that he was entitled to a ryotwari patta in respect thereof and for a permanent injunction restrating the State of Madras from interfering with his possession. Though he gave up the relief for declaration that he was entitled to a ryotwari patta in respect of the suit land, it was held that he could not be granted an injunction on the ground that the civil Court can have no jurisdiction to entertain a suit in which the relief asked for if granted may lead to the abrogation of the powers of the State under Section 3 (d) of the Act. It is clear from the decision that the competency of the Court to grant a declaration and injunction and the propriety of granting such reliefs are distinct matters and they ought not to be mixed up. It was found in that case that the substance of the relief was for a declaration and injunction against the Government on the ground that the plaintiff was entitled to a ryotwari patta. But the same learned Judge Jagadisan, J., in State of Madras v. Parisudda Nadar (1961)2 M.L.J. 285, has expressed a different view, namely, that a ryotwari patta granted by the revenue authorities in respect of lands in a Government village is not a title deed, but only a bill for rent and that it is not as if the right of ownership of property in an estate which has been taken over cannot be proved except by the production of the ryotwari patta. Under the Abolition Act a claimant could claim benefit of the proviso to Section 3 (d) of the Act if he was sought to be possessed from his holding. If such a right were to be recognised in favour of a claimant it follows that the State Government cannot put forward any obstacle in his way to receive the compensation amount under the Land Acquisition Act.

25. In both these second appeals, the plaintiffs claimed title to the suit property by virtue of their possession, which is protected under Section 3 (d) of the Act. There is no machinery in the Act to determine whether a land in an estate is a ryoti lands or a communal land. In S.A. No. 1149 of 1962 there was no enquiry in the presence of the plaintiff-Madam and there is nothing to show that the order that no one was entitled to a ryotwari patta in respect of the suit property was communicated to the Madam. In the other second appeal, the enquiry as to the character of the land was taken up in advance by the Assistant Settlement Officer and it was decided practically in pursuance of the direction given by the Government. It could not be said that there was any order passed by the Government, or other authority under the Act, in matters to be determined for the purpose of the Act as contemplated under Section 64-C of the Act. 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. Hence Section 64-C of the Act cannot be held to be a bar to the present suits, which form the subject-matter of the second appeals. The decrees and judgments of the Courts below upholding the title of the plaintiff in each of the suits cannot be said to be without jurisdiction. The suits are not for grant of ryotwari pattas which alone could be determined by the authorities appointed under the Act.

26. For the foregoing reasons, the second appeals are liable to be dismissed and they are hereby dismissed with costs.


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