NACHIMUTHU Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The plaintiff in O.S. No. 609 of 1973, District Munsifs Court, Namakkal, is the appellant in this second appeal. That suit was instituted by the appellant for a declaration that he is the owner of the suit properties, namely, the southern fence of Survey No. 233|7 with its site, the northern fence of Survey Nos. 237|1 and 237/3 with its site and the eastern fence of Survey Nos. 237/3 and 237/8 with its site and for an injunction restraining the State of Tamil Nadu from interfering with his possession and enjoyment of the same. According to the case of the appellant, he was the owner of shares in lands locally known as Vadaman Punjai and Kuittaiparai Punjai also known as Kuttaparai punjai and Kudaparai punjai in Vagurampatti village forming part of Kondichettipatti mitta abolished and taken over by the Government under the provisions of the Tamil Nadu Act XXVI of 1948. After the take over, there was a survey of the lands belonging to the appellant wherein his lands were surveyed as parts of Survey Nos. 233 and 237. The holdings in Vadaman Punjai were correlated to Survey No. 233/7, while the holdings in Kuttaparai punjai had been measured as Survey Nos. 231/11, 237/3 and 237/8. To the south of Vadaman Punjai, there is a Kai Itteri or a foot-path, which is the northern boundary for the portions owned by the appellant in Kuttaiparai punjai and this Kai Itteri had been surveyed as Survey No. 233|9, while the Itteri on the east of Kuttaiparai punjai had been measured as Survey No. 237|1. In the rough plan filed by the appellant, his portion in Vadaman punjai was shown as X, while the holdings in Kuttaiparai punjai had been mentioned as XI, X2 and X3. The east-west Kai Itteri was shown as AB and the Itteri running north south as AC. Between the portions X and AB Kai Itteri and on the south of AB and also on the either side of AC, there are fences and the fences separating the X portion from the Kai Itteri AB on its south and the fences: separating XI and X2 portions from AB Kai Itteri on the north with the sites over which they stand belong to the appellant. Similarly, the north-south fences in Survey Nos. 237|3 (X2 portion) and Survey No. 237|8 (X3 portion) also with the sites belong to him and these fences had been shown in red colour. The appellant claimed that these fences as well as the sites over which they stood are part of the appellants holdings. During the survey undertaken by the Government consequent to the application of the provisions of the Tamil Nadu Act XXVI of 1948, the lines along which the fences stood had been wrongly measured as forming part of Survey Nos. 233|9 and 236|1 and included therein treating them as porambokes. The appellant put forth the plea that he and his predecessors-in-title had been in possession for more than 60 years openly, exclusively and continuously and had thus acquired prescriptive title to those properties. The further case of the appellant was that he was away in Singapore and became aware of the wrong demarcation some time in 1968 and thereafter he preferred a petition to the District Revenue Officer, Salem, for the grant of a ryotwari patta outside the purview of the Tamil Nadu Act XXVI of 1948. Meanwhile, proceedings were initiated under the provisions of the Land Encroachment Act for the eviction of the appellant and the appellant stated that those proceedings were initiated on representations of persons who were motivated by jealously. The appellant claimed that though the AB itteri was formed for the exclusive use of the owners of Vadaman punjai and Kuttaiparai punjai, there was no objection for the use of AB itteri by others for taking men and cattle. The appellant further claimed that the trees which are more than 70 years old had been maintained by him and his predecessors and the fences were put up to protect the lands against straying cattle. The application preferred by the appellant for the grant of a ryotwari patta outside the purview of the Tamil Nadu Act XXVI of 1948, was dismissed by the District Revenue Officer and a further revision to the Board of Revenue also stood dismissed on 7th October, 1972. Complaining that the inclusion of the fences and the sites over which they stood in porambokes is incorrect and stating that the classification of the properties as poromboke and the attempted disturbance and dispossession of the appellant treating his occupation as encroachment was erroneous, the appellant instituted the suit praying for the reliefs set out earlier.

(2.) The first respondent in its written statement contended that after the notification and take over of Vagurampatti village under the provisions of the Tamil Nadu Act XXVI of 1948, ryotwari settlement was introduced and Survey No. 233/9 measuring 70 cents and Survey No. 23611 measuring 51 cents were classified as cart track porombokes. The portion shown as AB., according to the first respondent, was only a cart track poromboke and not a Kai Itteri. There were fences on either side of Survey No. 233/9, and the northern fence was put up only recently after the take oyer of the village by the Govern-ment. The first respondent also charged the appellant with having encroached upon the can track poromboke in Survey No. 233/9. The north-south fences in Survey Nos. 237/3 and 237/8 were put up by the appellant, according to the first respondent, after the village was taken over and the appellant has also encroached upon Survey No. 236/1, and put up fences and thereafter claimed patta. The lands were surveyed as per the enjoyment and the cart track portions were measured separately and treated and classified correctly as cart track poromboke according to the first respondent. The knowledge of the demarcation on the part of the appellant was stated to be very much anterior to 1968 and after the proceedings were initiated for eviction of the appellant, a stay application, was filed by the appellant and others before the Revenue Divisional Officer, Namakkal, and only thereafter an application for the issue of a patta outside the scope of the provisions of the Tamil Nadu Act XXVI of 1948, was filed which was also rejected by the District Revenue Officer, Salem, as well as the Board of Revenue. The formation of the AB pathway for the exclusive use of the owners of the Kuittaiparai punjai was disputed by the first respondent. The age of the trees was disputed and the rearing of those trees by the appellant and his predecessors in title was also questioned. The trees were stated to be of recent origin and the possession of the appellant was characterised as unauthorised and, therefore, the appellant was not entitled to the relief of injunction. The encroachment by the appellant was only after the take over of the estate and the cart track poromboke had been handed over to the Panchayat for maintenance. As objection that in the absence of the other sharers of the lands as parties, the suit is not maintainable was also raised. The claim of prescriptive title made by the appellant was also refuted. The suit was stated to be not maintainable either in law or on facts.

(3.) The second respondent in its written statement raised the contentions similar to those raised by the first respondent. In addition, the second respondent put forth an objection that the appellant is not entitled to maintain the suit in view of the provisions of the Tamil Nadu Act XXVI of 1948.