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Koyasan Koya Haji and ors. Vs. Secretary of State for India in Council Represented by the Collector of Malabar and Two ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in(1924)ILR47Mad927
AppellantKoyasan Koya Haji and ors.
RespondentSecretary of State for India in Council Represented by the Collector of Malabar and Two ors.
Cases ReferredIndia v. Assan I.L.R.
Excerpt:
madras land encroachment act (iii of 1605), sections 6 and 14, explanation - notices to quit--encroachment on poramboke lands--plaintiffs' possession, not disturbed after notice--review--dismissal--order to vacate--suit for declaration and injunction--cause of action for suit--limitation of six months--plaintiff, deeming himself aggrieved--plaintiff's right to elect by which proceedings he is aggrieved--starting point of limitation. - .....for a time. in may 1919 the plaintiff put in a petition for a review of this notice to the deputy collector. on the 18th of september 1919 the deputy collector dismissed the review petition. on the 2nd of october 1919 an order which amounted practically to a notice to quit went to the plaintiff. on the 22nd of december 1919 the plaintiff filed the present suit for vindicating her alleged rights of ownership in the civil court.2. the courts below have declared the suit to be barred by limitation by reason of section 14 of the act which says:nothing contained in this act shall be held to prevent persons deeming themselves aggrieved 'by any proceedings under this act except as herein provided from applying to the civil courts for redress.(that is what this woman has done.)provided.....
Judgment:

Victor Murray Coutts Trotter, C.J.

1. In this case the plaintiff was in occupation of some land, cultivating it by a tenant. Government claimed that it was their land, and on the 17th of April 1919 they sent her a notice to quit under Section 6 of the Land Encroachment Act, III of 1905. Nothing happened for a time. In May 1919 the plaintiff put in a petition for a review of this notice to the Deputy Collector. On the 18th of September 1919 the Deputy Collector dismissed the review petition. On the 2nd of October 1919 an order which amounted practically to a notice to quit went to the plaintiff. On the 22nd of December 1919 the plaintiff filed the present suit for vindicating her alleged rights of ownership in the Civil Court.

2. The Courts below have declared the suit to be barred by limitation by reason of Section 14 of the Act which says:

Nothing contained in this Act shall be held to prevent persons deeming themselves aggrieved 'by any proceedings under this Act except as herein provided from applying to the Civil Courts for redress.

(That is what this woman has done.)

Provided that the Civil Court shall not take cognizance of any suit instituted by such persons for any such cause of action unless Such suit shall be instituted within six months from the time at which the cause of action arose.

3. Then follow two explanations:

The cause of action shall be deemed to have arisen (a) in respect of any assessment or penalty.

(that is a provision under another section which I have not dealt with)

on the date on which such assessment or penalty was levied; (b) in respect of eviction or forfeiture, on the date of eviction or forfeiture.

Section 6 contains the machinery for eviction and it is provided that a notice shall be served on the person in occupation requiring him to vacate the land and, if such notice is not obeyed, by removing or deputing a subordinate to remove any person who may refuse to vacate the same. How in the teeth of that provision anybody can venture to argue that a person who has had notice under Section 6 and in spite of it remains in undisturbed possession has been evicted from the land, I cannot understand, and I do not think it can fairly be said that any judgment of this Court has gone that length. But the case is put in another and a slightly, I will not say, more plausible, but a slightly less inarguable, way. It is said that the illustrations contained in the explanation to Section 14 of the Act are not exhaustive and that a person may be aggrieved by proceedings under this Act when those proceedings do not amount to an assessment, penalty, eviction or forfeiture. Assuming that argument to be sound, the plaintiff in this case put forward as the thing which she deemed herself to be aggrieved by, not the notice at all which might have been a mere brutum fulmen which might have resulted in nothing whatever in the future, but a tangible definite order of the Deputy Collector received by her on the 2nd of October 1919 ordering her to quit. How it can be said that the plaintiff must be deemed to be aggrieved by the earliest stage of the proceedings when she did not choose to be aggrieved by it, I cannot appreciate. It is argued that though she says she was not aggrieved by the notice, she obviously was aggrieved by it, because she petitioned the Deputy Collector to withdraw it or to review it. It seems to me that, assuming that to be so, it does not in the least preclude her from saying, 'Well, if I was aggrieved by the notice, in the sense that I put in a petition against it, that is not what I am questioning in this suit here. I am aggrieved and for the purpose of this suit I am solely aggrieved by the order of the Deputy Collector of the 2nd of October 1919'. How anybody can deny her the right to elect as to which stage of the proceedings she should complain of, passes my comprehension. In my judgment, the Full Bench decision in The Secretary of State for India v. Assan I.L.R. (1816) Mad. 725 has no bearing on this point whatever; because there was no question as to when there had been an infringement of the plaintiff's right; and the plaintiff had a continuous chain of proceedings which began by his actually paying money out of his pocket in answer to a demand. To my mind, the Full Bench decision has no bearing on this point whatever.

4. The appeal must be allowed and the suit remanded for re-trial. The appellants will have their costs of this appeal and in the lower Appellate Court in any event. The court-fee will be refunded to the appellants.

In S.A. No. 1341 of 1921.

Coutts Trotter, C.J.

5. Same judgment as in the connected S.A. No. 949 of 1921. There will be a similar order as to costs and refund of court-fee.

Ramesam, J.

6. I entirely agree. Assuming that all the causes of action that may arise under the Act are not exhausted by the explanation to Section 14 and assuming that a declaratory suit filed on account of proceedings taken under the Act also falls under Section 14, it is open to the plaintiff to deem herself aggrieved by whichever one of several proceedings taken against her she may choose. In the case of The Secretary of State for India v. Assan I.L.R. (1916) Mad. 725 the plaintiff actually made a payment. In a case where a penal assessment has been paid it may be that it is not open to a plaintiff to say that he does not deem himself aggrieved by that payment, that he can ignore that payment and that he deems himself aggrieved by a later proceeding, because payment of money to another person in token of his proprietorship is practically a loss to himself and a recognition by him of the adverse title of the other. But in a case where there are a series of proceedings, being mere notices without any further attack against the title and enjoyment of the plaintiff it is open to the plaintiff to choose the last of these things and say that he deems himself aggrieved by this and not by the earlier proceedings. I am aware there are some cases which though they may not arise under the Act, imply that it is not open to a person seeking a declaration to so choose, but I do not agree with them. In this case in paragraph 9 of the plaint the plaintiff has clearly stated that the dismissal of her petition by the Deputy Collector and the communication of the 2nd of October 1919 is the proceeding on which the cause of action arose, which means that she felt herself aggrieved only by this and not by any earlier proceeding, for a declaratory suit. That being so, this second appeal must be allowed and I agree to the order proposed by my lord the Chief Justice.

In S.A. No. 1341 of 1921.

Ramesam, J.

7. I agree. It is contended by the learned Government Pleader in this case that there is an admission in paragraph 4 of the plaint that the plaintiff deemed himself aggrieved on the 19th of March 1919; but seeing that a declaratory suit is an optional one and not compulsory, the view I take in such matters is that a person who wishes to file a declaratory suit has the right to say which of several proceedings taken against him (not amounting to adverse possession or enjoyment) is the particular proceeding by which he deems himself aggrieved for the purpose of filing a declaratory suit. In this case it may be that the plaintiff was aggrieved by several proceedings, but of these he chooses only the proceeding of the 26th of May 1919 as the one by which he felt himself aggrieved for the purpose of filing the declaratory suit and not the earlier proceeding of the 19th of March 1919. That being so, this Second Appeal is governed by the judgment in Second Appeal No. 949 of 1921.


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