MAYURANATHASWAMI DEVASTHANAM Vs. JAGADEESA THEVAR AND ORS

JUDGEMENT

(1.) This appeal arises under the following circumstances; The appellant-Devasthanam filed a suit O.S. No. 123 of 1962 before the District Munsif of Mayuram for possession of the suit site after removing the superstructure put up by the respondents-defendants. The said suit was subsequently transferred to the District Munsif's Court, Nagapattinam and numbered as O.S. No. 268 of 1965 and a decree was passed ex parte on 29th July, 1966 on the defendants' counsel reporting no instructions and the defendants being absent and set ex parte. The decree directs the defendants to deliver possession of the property to the appellant after removing the superstructure put up by them. The description of the property as given in the decree is that it is situated in the 4th Ward T.S. No. 280 having an area of 27,378 sq. ft. with the trees and other plants on it. The respondents-defendants filed a petition to set aside that ex parte decree but it was dismissed and against that order of dismissal they filed C.M.A. No. 45 of 1969 in the Sub-Court, Mayuram but that was also dismissed on 4th August, 1969. The respondents-defendants then filed O.P. No. 26 of 1965 under Section 9 of the City Tenants Protection Act but that petition was also dismissed. The defendants then filed an appeal with a petition to excuse the delay in filing the appeal, against the dismissal of that petition but that was also dismissed. Then the appellant sought to execute the decree for possession obtained by it; whereupon the respondents obstructed delivery of possession and possession was not delivered. E.A. No. 577 of 1970 was then filed under Order 21, Rule 98 of the Civil Procedure Code by the appellant for removal of obstruction and delivery of property to the plaintiff-decree-holder. That application was stoutly resisted by the second and third respondents who contended that they were minors when the decree was passed and their rights were not properly safeguarded and protected, and they were not properly represented by their Court guardian and that the suit property was within the Municipal limits and was situated in an inam estate granted in inam to the plaintiff and they, the respondents, have put up valuable buildings and in the partition among them, the respondents, these buildings and the area adjacent to them which was a necessary appurtenance to their buildings were allotted to them, respondents-defendants 2 and 3 and by virtue of Act XXVI of 1963 and Act XXX of 1963 the entire inam estate became vested in the State Government and the interest created in and over the inam estate before the notified date by the landholders ceased and came to an end and as such the relationship between the plaintiff and them, the respondents, of landholder and tenants became extinguished and under Section 15(4) of Act XXVI of 1963 and Section 13 of Act XXX of 1963, the buildings situated within the limits of the inam estate vested from the notified date in the person who owned the buildings immediately before that date and since the building included the site, the suit site has also become vested in them, the respondents who are the owners of the buildings thereon and hence no delivery of the suit site could be given and whatever right, title and interest the appellant had previous to the notified date came to an end by reason of the aforesaid supervening legislation and even the State Government has no right to dispossess any person, of the land in an inam estate in respect of which the Government considered he is prima facie entitled to a ryotwari patta and the decree therefore has become infructuous and ineffective and cannot be executed.

(2.) The learned District Munsif of Mayuram upheld the contention of the respondents that under Section 15 (4) of Act XXVI of 1963 and Section 13 of Act XXX of 1963 the suit site also became vested in them, the respondents who are the owners of the buildings. He purports to rely on the decision in Silamban Sri Ghidambara Vinayagar Devasthanam, Deoakottai through its trustee v. Duraiswamy Nadar and Anr.,1937 2 MadLJ 181

(3.) The learned Subordinate Judge on appeal concurred with the view of the, learned District Munsif and confirmed the order of the learned District Munsif and hence this second appeal in which it is contended that since the appellant had obtained a decree for eviction no subsequent legislation could nullify the decree and the executing Court cannot go behind the decree.