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Muthukumaraswami Pillai Vs. Srimushnam Vedapatasalai, Represented by Its Trustee Govindarajan - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1968)2MLJ463
AppellantMuthukumaraswami Pillai
RespondentSrimushnam Vedapatasalai, Represented by Its Trustee Govindarajan
Cases ReferredHariharamuthu v. Subbulakskmi
Excerpt:
- .....inam estate, the plaintiff cannot seek possession of the lands inside it without securing a ryotwari patta from the tribunals and that the issue of such a ryotwari patta is within the competence of the hierarchy of state tribunals constituted under madras act xxvi of 1963, and this being a condition precedent, the plaintiff cannot force a trial on the other issues in the case, as the condition precedent for the institution of such a suit is not satisfied. sri v. vedantachariar arguing contra, urged that in the facts and circumstances of the instant case, there is no bar for the entertainment and trial of the suit, as the reliefs asked for cannot be granted by the tribunals under madras act xxvi of 1963 and that civil courts can incidentally go into the question of title of the.....
Judgment:

T. Ramaprasada Rao, J.

1. This Civil Revision Petition filed by the defendant is directed against the order of the Subordinate Judge of Kumbakonam, whereby, he, while trying the issue on jurisdiction as a preliminary issue, upheld the jurisdiction of the Subordinate Judge's Court, Kumbakonam, to try the suit instituted by the plaintiff. The plaintiff filed a suit against the defendant for possession of certain lands in the occupation of the defendant as his tenant under a registered lease, dated 15th July, 1956 and for other reliefs. His case is that the lands in question, though inside an inam estate within the meaning of Section 3 (2) (d) of the Madras Estates Land Act (I of 1908) as amended in 1936 by Act (XVIII of 1936) and Section 2 (7) of the Madras Inam Estates (Abolition and Conversion into Ryotwari) Act, (Madras Act (XXVI of 1963), are his private lands. The plaintiff has also prayed for other ancillary reliefs such as rent or in the alternative as damages for use and occupation. Inter alia the defendant contended that the lands are not the private lands of the plaintiff, that they are ryoti lands, that the Madras Estates Land (Reduction of Rent) Act, 1947, was extended to the village in question and it has since been notified under Madras Act (XXVI of 1963) and that the Government should be deemed to be in possession of the entire inam estate and that, therefore, the civil Court has no jurisdiction to grant the reliefs prayed for. A preliminary issue was framed reading as under:

Whether this Court has no jurisdiction and the suit is not maintainable as per the provisions of Madras Act XXVI of 1963.

2. The learned Subordinate Judge held that the Court had jurisdiction. Sri R. Kesava Ayyangar appearing for the petitioners states that the order is wrong and that the civil Court has no such jurisdiction. His main contention is that the estate having been notified and the village being an erstwhile inam estate, the plaintiff cannot seek possession of the lands inside it without securing a ryotwari patta from the Tribunals and that the issue of such a ryotwari patta is within the competence of the hierarchy of State Tribunals constituted under Madras Act XXVI of 1963, and this being a condition precedent, the plaintiff cannot force a trial on the other issues in the case, as the condition precedent for the institution of such a suit is not satisfied. Sri V. Vedantachariar arguing contra, urged that in the facts and circumstances of the instant case, there is no bar for the entertainment and trial of the suit, as the reliefs asked for cannot be granted by the Tribunals under Madras Act XXVI of 1963 and that Civil Courts can incidentally go into the question of title of the plaintiff while disposing of the suit. While the learned Counsel for the petitioner would say that as the ultimate order to be passed by the Special Tribunals under Section 71 of Madras Act XXVI of 1963, is final and not being liable to be questioned in a Civil Court, the Civil Court in this case ought not to have passed the impugned order; the respondent's case is that there is no such interdict in law and the suit is maintainable. Both the learned Counsel have argued the case at length and placed relevant authorities in support of their respective contentions before me. Before dealing with the weight of the respective contentions of the parties, the facts of the case and the import of the various relevant pieces of legislation touching the matter in issue has to be noted.

3. It is not in dispute that the village was originally an inam estate. But the bone of contention of the respondent as a landholder throughout was that the suit lands were its private lands. It is represented that the respondent filed an application to the Collector under Section 183 of the Madras Estates Land Act, 1908, for ascertaining and recording that the land is its private land. During the pendency of the said petition, an application for the appointment of a receiver was made and the prayer was granted. Civil Revision Petition No. 874 of 1961, was filed against the said order appointing a receiver. This Court passed an order in the following terms:

It is agreed on both sides that after this Civil Revision Petition was filed the Government has issued a notification on 27th September, 1961, under the provisions of the Rent Reduction Act, 1947. The question whether the land concerned is private or ryoti will have to be decided under the provisions of Act XXIX of 1956. The order of the lower Court appointing a receiver cannot therefore be sustained in the changed circumstances of the case. It is set aside and the matter is remitted back to the lower Court, for taking appropriate action on the petition under the Act.

It is thus seen that a notification, dated 27th September, 1961, under the Rent Reduction Act (as it is commonly called) was issued so as to bring this village also in its clamp. Under Madras Act XXIX of 1956, which caused certain amendments to the Rent Reduction Act, Tribunals were established to decide the question whether any land in a village is ryoti or not and the decision of such a Tribunal shall be final and shall not be liable to be questioned in a Court of law. Consequent upon the constitution of the fresh statutory Tribunal under Madras Act XXIX of 1956, the application under Section 183 of the Madras Estates Land Act, 1908, was transferred to the concerned Tribunal under Madras Act XXIX of 1956. Before the Collector, who was the authority to finally decide the matter, could pass final orders, the Madras Inam Estates (Abolition and Conversion into Ryotwari) Act, 1963 (Madras Act XXVI of 1963) was passed and a notification notifying the inam estate, in which the suit lands are situate, was made on 15th April, 1965. Consequent upon such a notification, the Collector had to terminate the proceedings before him under Madras Act XXIX of 1956, and apparently the authorities under Madras Act XXVI of 1963, have not yet decided whether the plaintiff is entitled to a ryotwari patta to the lands on the strength of his claim as his private lands. In fact, such a contingency is envisaged under Section 9 of Madras Act XXVI of 1963. Section 67 indeed enables the landlord to keep on his possession or right to possession in spite of temporary discontinuance of possession or occupation. Thus, prior to the institution of the suit on 20th January, 1966, the claim of the plaintiff to a ryotwari patta to the lands, on the basis of their being his private lands, was still undecided and the matter is still pending enquiry. It is at this stage the suit is filed and the petitioner as defendant has raised various defences as set out above, including the plaintiff's right to institute the action in a civil Court without securing a ryotwari patta from the Tribunals duly constituted for the purpose.

4. At this stage it would be convenient to refer to the scheme of Madras Act XXVI of 1963. The very set up and sequence of the provisions in Madras Act XXVI of 1963, is the same as that in Madras Act XXVI of 1948, that is, the Madras Estates (Abolition and Conversion into Ryotwari) Act. Section 71 which clothes the orders of the Settlement Officer or the Tribunal under that Act with finality and conclusive-ness is to be read in conjunction with all the other sections in the Act and should not be dealt with de hors the rest of the Act. Section 3 deals with the consequences of notification of an inam estate. Section 3 (b) provides that on and after the notification, the entire inam estate shall vest in the Government free from all encumbrances. Section 3 (c) terminates all rights created by the landholder in or over the inam before the notified date. Section 3 (d) enables the Government to take possession after removing all obstructions. The proviso to Section 3 (d) is significant. It runs as follows:

Provided that the Government shall not dispossess any person of any land in the inam estate in respect of which they consider that he is prima facie entitled to a ryotwari patta pending the decision of the Settlement Officer and the Tribunal and the Special Appellate Tribunal, on appeal, if any, as to whether such person is actually entitled to such patta;

Section 3 (e) provides that the landholder is entitled to such rights and privileges as are recognised or conferred on him by or under this Act. Section 9 deals with the entitlement of the landholder to a ryotwari patta and the conditions required therein. Section 12 (1) enables the Settlement Officer to determine whether the landholder or the ryot as the case may be is entitled to a patta or not. An appeal is provided under Section 12 (2) of the Act to the Tribunal. Section 71 deals with the finality of the orders passed by the hierarchy of Tribunals constituted under the Act and runs as follows:

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

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

5. What is therefore, the right to possession that is referred to in the proviso to section q (d) of Madras Act XXVI of 1963 In common law, a possessory right is a valid, Justiciable and enforceable right; it is good against all except the true owner. Madras Act XXVI of 1963, reiterates the said common law right in Section 3 (d), provision and in other sections. Section 67 is yet another section enabling the landlord to keep on his possession until a final decision on his application for ryotwari patta is taken by the statutory Tribunals or until the Government initially decides to remove him from possession consequent upon the notification of the inam estate. Neither of such events has happened in this case. On the other hand, the enquiry before the authorised Tribunals for the issue of a ryotwari patta is pending. If ultimately the plaintiff is successful in securing a patta it would take effect from the date of the notification. As pointed out by Veeraswami and Krishnaswami Reddy, JJ., in Mustafa v. Udayanchiammal : (1968)2MLJ58 .. 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 pannai or private but, on grant of ryotwari patta, becomes ryotwari land subject to payment of assessment.

6. By the issuance of a patta, a declaration as to pre-existing right is made, though fictionally under the statute, it is given for the first time to him under its provisions. The question therefore, is whether a right for possession said to be inhered by the plaintiff can be agitated and pressed into service in a Civil Court notwithstanding the interdict in Section 71 of Madras Act XXVI of 1963.

7. Reference Was made to me to the case reported in S. S. Khanna v. F.J. Dillon : [1964]4SCR409 . This was a case where the totality of the grant was under consideration. That was not a case where a landholder, who claimed possession of his private lands and pending decision by the statutory tribunals regarding issue of a ryotwari patta came to Court for possession against a tenant or a trespasser. To oust the jurisdiction of Civil Courts, words of express import or significant expressions necessarily implying such ouster are required. It is fundamental that such ouster of jurisdiction of the common Courts of the lands ought not to be lightly inferred. When Tribunals which are creatures of statute are Vested with certain functions and their ultimate decisions regarding the same are not to be questioned in a Civil Court, then it could only be said that, as regards matters to be decided by the Tribunals, the Civil Courts ought not to entertain any lis regarding the same. But it is a totally different thing to say that for all purposes there is an ouster of jurisdiction of Civil Courts even in matters within the exclusive competence of the Civil Court. In the instant case, it is the civil Court alone which can give the relief for possession and grant the other ancillary reliefs. No doubt it is the statutory Tribunal alone that is entitled to grant a ryotwari patta after due enquiry. The plaintiff has been asking for such a recognition and issue of patta even under Section 183 of the Madras Estates Land Act, 1908. Nearly for nine years the matter is pending and no decision has been arrived at by the Tribunal, which, of course was changing from time to time along with the course of agrarian reforms. One salient fact to be remembered is that the Government has not disturbed the possession of the landholder and he is apparently continuing in lawful possession thereof in the bonafide expectation of his entitlement to a ryotwari patta. Therefore, it is a matter in which the plaintiff is not circumventing the procedural law prescribed by Madras XXVI of 1963, by instituting the present suit. The matters to be gone into by the Civil Court and that to be scrutinised by the Tribunal are by and large different, though incidentally the Civil Court might have to consider certain matters coming in the lap of the jurisdiction of the Tribunals.

8. Such an incidental consideration does not really encroach upon the special exclusive jurisdiction of the statutory Tribunals. Rajamannar, C.J., and Ganapatia Pillai, J., in Adakalathmmal v. Chlnnayan Panipundar : AIR1959Mad447 , while considering Section 56 (1), a similar provision in Conversion into Ryotwari Act (XXVI of 1948), held, approving the ratio in Soosai Udayar v. Andiyappan (1959) 1 M.L.J. 195 : , agreed that (at page 317):

If the relief claimed in a Civil Court is not what is created or granted by the Act, e.g., the right to obtain patta, but a Civil right the jurisdiction of the Civil Court which always existed, cannot be held to be ousted as the statute does not either expressly or impliedly extinguish such rights.

9. Veeraswami, J., in Govindaswamiv. Arumugham : (1962)2MLJ368 , observed as follows (h.n) :--' Section 3-A of the Madras Estates Land (Reduction of Rent) (Amendment Act), 1956, creates a special jurisdiction in the Collector to decide whether a land in a village is or is not ryoti land. It does not take away the jurisdiction of Civil Courts to decide the question as to the character of any land in a suit, incidentally for the purpose of granting a relief within its purview. The fact that a special jurisdiction is vested in the Collector to decide a particular fact cannot by implication take away the jurisdiction of the Civil Court to decide a similar question incidentally to grant a relief which it otherwise has.'

10. Again, a Division Bench of the Andhra Pradesh High Court in Sriramamurthy v. Batchu Dhianaraju (1957) 1 AW.R. 332, had to consider a similar issue. The learned Judges held:

Under proviso (it) to Section 3 (d) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, the Government shall not dispossess a landholder of any land in any estate in respect of which they consider that he is prima facie entitled to a ryotwari patta pending the decision of the Settlement Officer and the Tribunal on appeal, if any, to it as to whether he is actually entitled to such patta. If the suit land is a private land of which the landholder is entitled to possession under the said proviso he is entitled to continue in possession. The Government is not entitled to dispossess him and he is surely entitled to evict any trespasser from the land. There is nothing in the Act to support the view that the landholder has no right to possession of private land until he gets a ryotwari patta in respect of it under Section 12. As regards Clause (c) of Sub-section (1) of Section 56 which says that any dispute as to who is the lawful ryot in respect of any holding shall be decided by the Settlement Officer. But the word ' ryot' has the same meaning as under the Madras Estates Land Act, 1908, and the question as to who is a ryot can arise only in respect of ryoti land. Once the land is private land, the question as to who is the lawful ryot in respect of it does not arise and the matter does not therefore, fall within the jurisdiction of the special tribunals set up under the Act. As such, the Act XXVI of 1948 is no obstacle to the maintainability of the suit.

To the above same effect, but in a more forcible manner proposition of law has been set by Subbarao, C.J. (as he then was of the Andhra Pradesh High Court) and Ranganadham Chetty, J., in Appanna v. Ramamurthy I.L.R. (1958) A.P. 396, in the following terms:

When a statute confers a power on any person for public purposes from which an individual may receive an injury, if the mode of redressing the injury is pointed out by the statute, the jurisdiction of the ordinary Courts is ousted and where a special tribunal out of the ordinary course, is appointed by an Act to determine questions as to rights which are the creation of that Act, then except so far as is otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive.

11. Mr. Kesava Ayyangar, however, referred to a Bench decision of this Court in Hariharamuthu v. Subbulakskmi : (1960)1MLJ232 This was a case which arose in a transitional period when Act XXX of 1956, was in force. The provisions of the said Act are not in pan materia in so far as its pith and substance is concerned, with the provisions under Madras Act XXVI of 1963. There was an express ban for the trial of suits by Civil Courts under Act XXX of 1956. There is no such ban under Act XXVI of 1963, either expressly or by necessary implication for the trial of suits, in which the Civil Court alone can give relief.

12. Whether the lands are the private lands or ryoti lands are yet to be decided by the statutory Tribunals constituted for the purpose. It is not as if the respondent is guilty of any laches on his part in that he did not seek an adjudication on the issue whether the lands are non-ryoti in character. He has been diligent, but no orders have been passed so far by the Tribunal. Significantly enough there is an interdict against landholders instituting suits for recovery of rents as regards ryoti lands, ryoti lands defined in Act XXX of 1947, attracts the old Estates Land Act, 1908, but there is no corresponding injunction against the landholders to institute actions against the tenants who were inducted into such possession by a contract or a lease, in respect of lands claimed as their private lands and for the declaration as such, of which, steps have been taken from time to time before the statutory Tribunals constituted for the purpose.

13. This is not a case in which a bare assertion is made by the respondent that the lands are his private lands, for the first time in the plaint in question. He has been persisting in it long prior to the notification of the estate under Act XXX of 1947 and indeed under the Estates Land Act. Mr. Kesava Ayyangar has not cited before me any authority for the proposition that even in such circumstances the jurisdiction of Civil Courts are ousted to adjudicate upon a suit for possession and rent instituted by a landholder against a tenant. Ouster of jurisdiction of Civil Courts ought not to be lightly inferred. Whereas there is a ban on the adjudication of such issue by Civil Courts when the statutory Tribunals have finally decided that the land is ryoti, there is no such ban in cases where such decisions have not yet been made though initiated by the landlord. There appears to me, to be, no bar for Civil Courts to try such suits for possession and rent or mesne profits when the statutory Tribunals have not yet decided the principal matter in controversy. The respondent has instituted this suit and is taking a risk as he is ultimately bound by the decision of the Tribunals. Whatever the landholder does has to necessarily enure to the benefits of the true owner, as found by the Tribunal ultimately.

14. I, therefore, agree with the finding of the lower Court that the Civil Court has. jurisdiction to try the suit. This Civil Revision ' Petition is dismissed with costs.


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