STATE OF TAMIL NADU Vs. M MADHAVALAKSHMI

JUDGEMENT

(1.) The appellants in all the three appeals are the same. The respondents, no doubt, are different, but the facts in all the three cases are almost identical. There was a joint trial in all the three suits. A common judgment was rendered. Appeals were filed by the present appellants. They were dismissed by a common judgment and the present second appeals have been filed.

(2.) The suits O.S.Nos.302, 503 and 504 of 1981 were filed before the District Munsif's Court, Uthamapalayam, by the respective plaintiffs, who are the respondents in the second appeals for declaration and permanent injunction on the following averments: One Mottayyan Samban was granted Zamin patta on 21-6-1925 by the Bodinayakanur Zamin for an extent of 1.80 kuzhis in Pymash No.27 of Agamalai Village. Mottayyan Samban was in continuous possession and enjoyment of the suit property till 29-1-1952. Under an unregistered sale deed dated 29-1-1952, he sold the suit property in O.S.No.503/81 to the plaintiff Mariyappa Nadar. Ever since the plaintiff had been in possession and enjoyment of the same paying kist to the Government from 1955 onwards. After the taking over of the estate by the Government as per the provisions of the Estates Abolition Act, Act 26 of 1948, the Estate Manager measured the land in the possession and enjoyment of the plaintiff and issued a temporary patta for an extent of 5 acres 10 cents under Section 3(d) of the Act. The patta covered the entire suit property. Similarly, one Veerabadran Asari was granted Zamin patta by the then Zamindari for an extent of 1 kuzhi in the same pymash of Agamalai Village. On 10-8-1953 Veerabadran Asari sold the suit property to the plaintiff in O.S.No.502/81, viz. Madhavalakshmi Ammal under an unregistered sale deed. Madhavalakshmi Ammal was paying kist from 1955 onwards. The actual extent in her possession was 8 acres 40 cents. She was granted patta under Section 3(d) of the Act in respect of the said land. So far as the plaintiff in O.S.No.504/81 is concerned, the Zamindar issued patta to one Kulla Maya Thevar for an extent of 1 kuzi in Pymash No.27. Kulla Maya Thevar was in possession and enjoyment of the suit property and on 27-1-1951 he sold the same to the plaintiff in O.S.No.504/81, viz. Thenammal. She was paying kist from 1955 onwards. The Estate Manager measured the property, which was in her possession and enjoyment; found her in possession and enjoyment of 5 acres 10 cents; issued 3(d) patta to her. During the settlement operations the plaintiffs in the respective suits omitted to apply to Settlement Officer for issuance of patta. However, as per orders inG.O.No.1300 Revenue dated 30-4-1971, the plaintiffs applied independently for ryotwari patta. The Additional Collector of Madurai, who enquired into the matter, found that the plaintiffs and their predecessors in interest have been in possession of the respective extents from 1925 onwards and that the suit lands were ryoti lands. However, he refused to issue patta under the conception that the lands had been declared to be forest lands under the Tamil Nadu Forests Act. The plaintiffs filed independent appeals to the Commissioner. The Commissioner confirmed the orders of the Additional Collector on 25-6-1979 on the ground that the plaintiffs did not produce 3(d) patta at the time of his enquiry. The Commissioner also held that the occupations by the plaintiffs were encroachments. The further appeals by the plaintiffs were dismissed on 28-1-1980. All the Officers did not consider the tenure law governing the parties that once the occupancy right was created,it was a ryoti land and it could not be taken away under any provision of law by the Government. Further, the occupancy right was a transferable and heritable one. The respective plaintiffs have been in possession of the properties even before and after the notification and paying kist to the Government. They have also prescribed for title by adverse possession. The Forest Department under the erroneous orders of the Settlement Department was threatening to disturb the possession of the plaintiffs. Section 80 notice was issued to the first appellant, who sent replies rejecting the claims of the plaintiffs. The second appellant was added as second defendant in the suits as required by the first appellant/first defendant. In these circumstances, the suits came to be filed.

(3.) The first defendant filed a written statement contending inter alia as follows: A notification was issued for taking over the Bodinayakanur Zamin on 9-12-1950 under the Estates Abolition Act, 1948. The estate came into uninterrupted possession of the Government only on 5-3-1954 after the stay granted by the Courts was vacated. Ryotwari settlement was effected in Fasli year 1972. The Settlement Officer, Madurai, in his order D.Dis.88/PKM/62 dated 4-5-1962 ratified the assignment made by the original landholder in favour of the respective plaintiffs under Section 11 of the Estates Abolition Act, 1948. The plaintiffs jointly claimed patta outside the scope of Abolition Act, 1948 under G.O.Ms.No.1300 in respect of various extents. The claim included larger extents than originally granted by the Zamindar. The AdditionalCollector issued patta for the excess land claimed by the various plaintiffs. However, during settlement proceedings there was no claim for these lands. The plaintiffs did not apply for patta outside the scope of the Act when they applied to the Collector earlier during 1974. They were all aware of the proceedings. However, they applied to the Collector of Madurai in 1977 for their assignment of the suit lands in all the three cases outside the scope of the Estates Abolition Act as per the provisions of G.O.Ms.1300, Revenue, dated 30-4-1971. The claims were rejected by the Additional Collector of Madurai on 5-3-1978 since the requirements of continuous possession and enjoyment prior to and from the notified date was not established. The appeals were dismissed; the claims were rejected by the Board of Revenue; the revisions were also rejected. The very fact that the plaintiffs have sought for patta outside the scope of the Abolition Act, 1948 under G.O.Ms.1300, Revenue, dated 30.4.1971 would clearly show that they had admitted the title of the Government since the claims under the said G.O could only be in respect of lands vested in Government by virtue of Section 3(b) of the Estates Abolition Act, 1948. Though all the three plaintiffs applied for patta jointly, they filed independent suits. They were estopped from claiming any title to suit lands that had vested in the State. There could be no right subsequent to the notified date of 9.12.1950 against the State as per the provisions of Sections 3(c) and 3(g) in respect of the lands, which had vested in the State. Pattas under Section 3(d) were issued subject to statutory adjudication at the time of settlement by the authorities concerned. The vendors of the plaintiffs had no right and therefore their conveyance could not confer any right. The suit lands were not ryoti lands within the meaning of Section 3(1) of the Estates Land Act, 1908. They had not established that the lands were agricultural lands or that there was an assignment by the landholder as ryots or that they had held the land subject to payment of rent to the landholder. Mere possession, which was denied would not constitute holding under Section 3(15) of the Estates Land Act, 1908. The plaintiffs had no records to satisfy the requirements of Section 11 of the Estates Abolition Act. The kist receipts relied on were subsequent to the notified date. The plaintiffs were aware of the settlement proceedings. Failure to apply patta could not therefore be treated as due to ignorance or reasons beyond their control. The suit lands are situate in forest. The Assistant Settlement Officer took up suo motu action under Section 63 of the Act and in his order No.63/2-UPM/71 dated 26-3-1973 declared S.No.1374 part as forest. During his enquiry he published a general notice in the village and in response thereof, 27 persons appeared before him for enquiry. The plaintiffs did not avail this opportunity. This order was set aside by the Director of Survey and Settlements inR.P.Nos.1 to 28/74 dated 21-8-1979. There was a remand. In the remanded enquiry, the Assistant Settlement Officer, Madurai, declared S.No.1384/1 measuring 26974.45 acres as forest under Section 63 of the Estates Abolition Act, 1948 in his order SR.63/1-UPM/76 dated 12-6-1976. Notices were issued to all persons who claimed portions. If really the plaintiffs were in possession and enjoyment of the suit properties, notices would have been issued to them also. This would show that the occupation, if any, by the plaintiffs was by way of post settlement encroachment of forest land. They had also not objected to the declaration of the entire area as forest by filing revision petitions to the revisional authorities to sustain a claim under Section 11(a) of the Act. By applying to the revenue authorities for assignment outside the scope of the Act, they had acknowledged the same under Section 3(b) of the Estates Abolition Act. Survey No.1384 had been notified under Section 4 of the Tamil Nadu Forest Act, 1882 and the proclamation under Section 6 of the Act had also been published on 20-4-1978. A Forest Settlement Officer was appointed under the Forest Act, 1882 and the plaintiffs did not put forth their claims before him also. Notices under Section 6 of the Forest Act have been issued to the plaintiffs and instead of appearing before him, they had chosen to file the suits. Pymash No.26 claimed by the plaintiffs is poramboke falling under Section 3(16)(b) of the Estates Land Act and therefore, the alleged alienation by the landholder in favour of the vendors of the plaintiffs is against the provisions of Section 29(a) of the Estates Land Act, 1908. The plaintiffs cannot acquire any prescriptive right. Application for assignment outside the scope of the Abolition Act and failure to take action under Land Encroachment Act, would rule out any claim of adverse possession after vesting of the land in the Government. The plaintiffs are encroachers. They have not legally acquired either occupancy right or kudiwaram right. The suits have not been properly valued. The Civil Court has no jurisdiction to entertain the suits.