RAJASEKARAN AND ORS. Vs. ELUMALAI GOUNDAN AND ORS.

JUDGEMENT

(1.) THE plaintiffs, who are the appellants and who are the father and sons filed a suit for declaration of title, injunction and possession in respect of four items of properties situated in the Pallapatti Zamindari in Salem. The lands originally formed part of Gundu Chetty Eri. In 1915 or 1916 a railway line was constructed to the south of these properties, with the result the flow of water towards these lands was interrupted. According to the plaintiffs these lands ceased to be the Eri land since then. The four items are in T.S. No. 7/3 measuring 10 cents; T.S. No. 7/4 measuring 19 cents. T.S. No. 7/5 measuring 22 cents and T.S. No. 7/9 measuring 67 cents. The father of the plaintiff had a rice mill in T.S. No. 6 and these lands were acquired from the Zamindar on 19th December, 1938. A receipt was passed for Rs. 649 paid by cheque for compensation, for the land, value for patta No. 152 of Pallapatti village. It may be mentioned herein, that the rice mill is situate in patta No. 152. On 12th April, 1943 another receipt was executed by the Zamindarini by name Gnanambal saying that in respect of these lands lying west of survey No. 152 measuring 60 cents, a sum of Rs. 2,400 was received for the purpose of granting a patta and the amount was referred to as compensation. The receipt marked as Exhibit A -25 was to be returned to the Zamindarini after the patta was granted. On 23rd July, 1945 a further receipt for Rs. 1,000 in respect of 10 cents of land adjacent to the 60 cents mentioned earlier was issued. In this receipt also it was declared that it was to be returned on the grant of patta. The plaintiffs claimed in the plaint that these properties had been, sold by the Zamindarini to the first plaintiff's father, that the father was put in possession, of the properties and that the parties owning a rice mill on. the east of the suit properties enjoyed these lands as appurtenances. The rice mill along with the suit lands were alleged to have been leased to one Abboy Chetty in 1945 for a period of five years. As Abboy Chetty did not pay the rent properly, the father of the first plaintiff filed a suit in O.S. No. 244 of 1950 in the Court of the Subordinate Judge, Salem, and obtained a decree for possession. This decree was executed in R.E.P. No. 259/51 and delivery of possession was obtained in 1952 after removal of the obstructions. There was a partition on 27th May, 1952 between, the first plaintiff and his father and it was alleged in. the plaint that the first plaintiff was allotted a half share in the suit properties and the mill, the other half falling to his father. The father of the first plaintiff executed a registered will in favour of plaintiffs 2 and 3 in respect of the properties and died subsequently on 19th September, 1965. The plaintiff thus claimed to have become entitled to the whole of the suit properties.

(2.) THE first plaintiff's father claimed patta for these lands under Section 11 (a) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, hereinafter called the "Abolition Act". His claim for patta was negatived upto the level of the Director of the Settlement. Thereafter the claim was considered under Section 19A of the Abolition Act on the proposal submitted by the Special Assistant Settlement Officer. Under that provision the Board directed the Special Assistant Settlement Officer to dispose of the claim of the petitioner under Section 18 (4) of the Act. The Special Settlement Officer took up enquiries under Section 18 (4) of the Act and he disallowed the claim on the ground that there was no building on the notified date and that consequently the claim would not fall under Section 18 (4) of the Abolition Act. On revision the Director of Settlement confirmed the order of the Special Assistant Settlement Officer and on further revision the Board remanded the case in respect of the suit lands to the Settlement Officer, Salem, for fresh enquiry and disposal.

(3.) AT that stage the first defendant came forward with a petition to the Director of Settlement praying that the order of the Settlement Officer granting ground rent patta to the plaintiff's father under Sections 18 (4) or 19 of the Abolition Act should be set aside. The Director remanded the matter for fresh disposal and this order of remand was confirmed by the Government. This led to a writ petition being filed bearing W.P. No. 2544 of 1968, which came before Kailasam, J. In this order dated 7th January, 1969 the learned Judge pointed out that in the petition, filed by the first defendant he had confined the memorandum of grounds only to T.S. No. 7/5 measuring 22 cents in extent and that the other survey numbers had been struck off. He, therefore, held that the Director was in error in reversing the order of the Settlement Officer dated 7th August, 1965 regarding Survey Nos. 7/3, 7/4 and 7/9. In his order Kailasam, J., observed further as follows: