OTTAKARA SAMBAN Vs. PALMUTHIAH KUDUMBAN AND ORS.

JUDGEMENT

(1.) THE plaintiff in O.S. No, 207 of 1961 on the file of the Court of the District Munsiff of Srivilliputtur, who lost before the trial Court as well as before the first appellate Court is the appellant before this Court. He instituted the suit for a declaration that he was the Nirganti of Azhuthakanniratrinan tank in inam Chettikulam village and hence entitled to be in possession of the suit property and for the consequential relief of a permanent injunction restraining the defendants (respondents herein) from interfering with the plaintiff's possession of the suit property. The facts are not in controversy. In 1938 under Exhibit A -1 dated 26th January, 1938 the appellant herein was appointed as the Nirganti of the tank in question by the inamdars of the village. Subsequently defendants 1 to 3, who were impleaded as respondents 1 to 3 herein, approached the Revenue Divisional Officer and. the District Collector for ousting the appellant from the office and for appointing them to that office, on the ground that they were hereditarily entitled to the office. They were referred to a civil suit by the Revenue Authorities, and the fourth defendant as the Senior Proprietor, under Exhibit B -1 dated 20th January, 1959 passed orders removing the appellant from the office of Nirganti and appointing respondents 1 to 3 herein in his place. Some representations appear to have been made by the appellant to the Revenue Authorities, but they being of no avail, he instituted the suit for a declaration and injunction as mentioned above.

(2.) THE suit was dismissed by the learned District Munsiff on 11th June, 1964. He came to the conclusion that the appointment of respondents 1 to 3 by the fourth defendant under Exhibit B -1 was not valid for two reasons; one was that the same had been done without notice to the appellant herein, and, secondly, they were appointed solely on the basis of their claim that they were hereditarily entitled to the office and the hereditary principle has been declared to be unconstitutional by the Supreme Court in Gazula Dasaratha Rama Rao v. State of Andhra Pradesh and Ors. : [1961] 2 SCR 931. Notwithstanding this conclusion arrived at by the learned District Munsiff, he still declined to grant any relief to the appellant on the basis that even the appointment of the appellant under Exhibit A -1 in 1938 was illegal, because at the time of his appointment the hereditary claims of other persons were not taken into account. It is in view of this conclusion of the learned District Munsiff that the original appointment of the appellant himself Was not valid, that the relief of declaration as well as the consequential injunction was denied to the appellant. Against this judgment and decree of the learned District Munsiff the appellant preferred an appeal to the learned District Judge of Ramanathapuram at Madurai, and the same was disposed of by the learned Additional District Judge on 22nd February, 1966 in A.S. No. 181 of 1964. The learned Additional District Judge appeared to agree with the conclusion of the learned District Munsiff that the appointment of respondents 1 to 3 herein by the fourth defendant under Exhibit B -1 was invalid for the same reasons on which the learned District Munsiff had rested his conclusion. He also came to the same conclusion as the learned District Munsiff that the appointment of the appellant in 1938 was invalid, since the validity of that appointment had to be tested in the light of the law as it then stood and that, if so tested, it was clear that the appointment Was made without considering the hereditary claims of the other persons to the office. There was yet another reason recorded by the learned Additional District Judge for denying relief to the appellant and that was that Section 13 of Madras Act III of 1895 barred the suit in a civil Court. I may also mention one further consideration, namely, whether the appointment of the appellant in 1938 Was a permanent one or a temporary one. The order Exhibit A -1 itself does not say that the said appointment was a temporary one. But the fourth defendant was examined as P.W. 1 and he stated that the appointment was only temporary. Accepting this evidence of the fourth defendant, who gave evidence on behalf of the appellant himself, the learned District Judge came to the conclusion that the appointment of the appellant in 1938 was only temporary. However, the suit was dismissed for the reasons mentioned already. Hence, the present second appeal by the plaintiff in the suit.

(3.) THE learned Counsel for the respondents, in addition to supporting the conclusions of the Courts below and the reason given for dismissing the appellant's suit contended that the principle of the decision of the Supreme Court in Gazula Dasaratha Rama Rao v. State of Andhra Pradesh and Ors : [1961] 2 SCR 931. had no application to the present appointment, because it was an appointment made by the Senior Proprietor of the inam village and the emoluments of the office were only in the form of enjoyment of certain land and not payment of any salary.