THE STATE OF MADRAS REPRESENTED BY THE COLLECTOR OF MADURAI Vs. M. DORAIPANDIAN ALIAS SUBBA NAICKEN AND ORS.

JUDGEMENT

(1.) In Original Suit No. 38 of 1958, District Munsif's Court, Palani, the Plaintiff sued for a declaration of his exclusive right to fishery in four tanks in Periammapatti village and for a permanent injunction to restrain the State of Madras, the first Defendant, from interfering with such right of the Plaintiff. In Original Suit No. 203 of 1958 on the file of the same Court, a similar declaration was sought by the Plaintiff therein that he and Defendants 2 to 5 were jointly entitled to the fishery right in three tanks in Andipatti Tillage. Though the Plaintiffs in the two suits are different, the basis of their contentions and the alleged source of the right claimed were identical. According to the respective claims, these tanks were constructed by the ancestors of the Plaintiffs and were recorded as the private tanks of the Plaintiff's predecessors -in -title. It was also stated that the maintenance and repairs of these tanks were done only by the Plaintiffs and their predecessors -in -title. The fishery rights were also enjoyed by them and it was claimed that the proprietors of the estate of Rettayambadi, in which the two villages are situated, never interfered with the enjoyment of such rights; nor did these proprietors exercise at any time any rights over these tanks. In 1872, the then proprietor of the estate filed a suit in the District Court of Madurai against the predecessors -in -title of the Plaintiff in Original Suit No. 203 of 1958, seeking to enforce his rights with regard to the tanks. The suit ended in a compromise and a decree was passed on the basis of a registered agreement of compromise. Subsequently, this agreement was modified by another registered agreement in 1875. It was claimed by the Plaintiff in Original Suit No. 208 of 1958 that by virtue of tills agreement, the exclusive right of the Plaintiff's predecessors -in -title with regard to the three tanks in Andipatti village was recognised and this recognition was followed up by the issuance of pattas by the proprietor. After the passing of the Madras Estates Abolition Act, the State attempted to interfere with such rights and it was the issue of a notice by the Estate Manager seeking to auction fishery rights in the above three tanks that led to the suit.

(2.) With regard to the four tanks which are the subject -matter of Original Suit No. 38 of 1958, the claim put forward by the Plaintiff therein was identical. It was alleged that the Plaintiff's ancestors constructed these tanks to ensure supply of water to their own ryoti lands. In like manner as in the other suit, the then proprietor of Rettayambadi estate filed a suit Original Suit No. 6 of 1870, seeking to declare that he was entitled to the four tanks. In this suit also, there was a compromise which was incorporated in a registered agreement and a consent decree was passed in terms thereof. According to the Plaintiff, the then proprietor conceded the position that the Plaintiff's ancestors constructed the tanks and conceded also the right of the Plaintiff's grandfather to the absolute ownership of the tanks, fishery rights, trees on the bunds, etc. Some long time afterwards, disputes arose, and the Plaintiff's father filed Original Suit No. 28 of 1931, Sub -Court, Dindigul, which upheld the right of the Plaintiff's father to the ownership of the tanks and other associated rights. The Plaintiff came to Court alleging that the action sought to be taken by the first Defendant in the two suits, the State of Madras to lease out the fishery rights after the passing of the Estates Abolition Act interfered with the long established claims of the Plaintiff, and that the above said Act could not affect the Plaintiff's right to ownership of the tanks and the right of fishery therein. The suit was thus laid for a declaration and for an injunction.

(3.) The contention of the principal Defendant, the State of Madras, was that these tanks have always been recorded in the village accounts as tanks poramboke; the tanks were not constructed by any private individual; they were only communal tank which by force of the enactment - -Act XXVI of 1948, Sec. 3(b) thereof - - vested in the Government; and equally the fishery right and the right of the trees on the tank bunds also became vested in the Government. In so far as the suit Original Suit No. 28 of 1931, Sub -Court, Dindigul which purported to declare the right of the Plaintiff's father in Original Suit No. 38 of 1958, was concerned, the State of Madras contended that it was not bound by that decision, not having been a party thereto. It was also claimed that by force of the enactment, the estate vested in the Government free from all encumbrances and that all agreements which bound the landholder ceased to be operative on and after the notification.