SRINIVASAN Vs. MADHYARJUNESWARASWAMI PATTAVIATHALAI TIRUCHIRAPALLY DISTRICT

JUDGEMENT

(1.) THE above second appeals were placed before us under the orders of the Honourable the Chief Justice pursuant to the order of reference dated 25. 4. 1989 made by K. Venkataswami, J. , (as the learned Judge then was), in view of an apparent conflict said to have been noticed by the learned Judge on account of diametrically opposite views found to have been taken in two decisions reported in Kannammal v. G. Panchakshara chetty, 1988 (2) L. W. 11 rendered by E. J. Bellie, J. and in Ramanujam Kavirayar v. Sri-La-Sri sivaprakasa Pandara Sannathi Avargal, 1988 (2) L. W. 513 rendered by M. Srinivasan, J. , (as the learned Judge then was ). THE relevant portion of the order of reference, which explained the need and justification for making the reference reads as follows: - "justice Srinivasan has taken the view that the notification under Section 3 will not have the effect of extinguishing the right in the land, but it recognises the pre- existing right. This is what the learned Judge has said on this aspect: - ". . . On the other hand, a reading of the provisions of the Act makes it clear that there is a recognition of the pre- existing rights. THE proviso to S. 3 (d) of the Minor Inams Act protects the possession of any person who is considered prima facie to be entitled to a ryotwari patta under the Act pending the decision of the appropriate authority. If the Act is to be construed as one wiping out all the pre-existing rights and starting with a clean slate, there would have been no necessity for the inclusion of the aforesaid proviso. Again, S. 8 (1) of the Minor Inams Act declares that every person who will be lawfully entitled to the kudivaram in an inam land immediately before the appointed day, shall be "entitled to ryotwari patta in respect of the land. THE exception thereto is provided in S. 8 (2 ). THE provisions of S. 11 of the Abolition Act. (sic.) In all cases which are not covered by S. 8 (2) of the minor Inams Act, the Settlement officer will have to decide the question as to who is lawfully entitled to the kudivaram immediately before the appointed day. This necessarily involves a recognition of a pre- existing right". 7. Likewise, Justice Bellie has taken the view on the question of civil court's jurisdiction as follows:- ". . . As stated above, under the provisions of the Act on and from the date of notification the title of the land stands transferred to and vested in the Government. THErefore, without any fresh conferment of title by the Government, no title subsists in the landholder. Hence no question of declaration of title arise. But if he is the person lawfully entitled to patta, for declaration of that entitlement he may file a suit. This is because there is no clear provision in the Act to decide a question who is entitled to patta as between rival contenders and therefore the Civil Court's jurisdiction to decide such an issue is not ousted. " "according to Bellie, J. , no suit for title can be maintained in civil court in matters arising out of the provisions of Tamil nadu Act 30 of 1963. On the other hand, Srinivasan, J. has taken a view to the following effect:- ". . . It has to be held that the finality conferred by s. 46 of the Minor Inams Act on the orders passed by the authorities constituted under the Act will not oust the jurisdiction of the Civil Court to decide questions of title. S. 46 of the Minor Inams Act which deals with res judicata correspondents to S. 64-A of the Abolition Act. S. 3 (d) of the Minor Inams Act contains the same language as S. 3 (d) of the Abolition Act. THE ratio of the decision of the Supreme Court in State of Tamil Nadu v. Ramalinga Swamigal Madam, AIR 1986 SC 794 will apply to cases arising under Minor Inams Act. " From the above, it is clear that there is a clear conflict between the two decisions. THErefore, in the interest of all concerned, particularly the Subordinate Judiciary, the issue must be authoritatively decided by the larger Bench, preferably by a Full Bench in view of conflicting views on this issue by Division Benches. 8. I am not able to agree with Mr. Sundaravaradan that second Appeal No. 1088 of 1980 can be decided on merits without going into the question regarding the jurisdiction of Civil Court as that question has to be decided in as much as the lower appellate court has decided the case against the appellate on that issue alone. 9. In the result, I direct the Office to place the papers connected with these two second appeals before My Lord the honourable the officiating Chief Justice for consideration to post the cases be-fore a larger bench or a Full Bench to decide the issue whether the jurisdiction of the civil court to entertain the suit for declaration of title and injunction is barred by reason of grant of patta under the provisions of Tamil Nadu Act 30 of 1963. "

(2.) (a) So far as S. A. No. 1088 of 1980 is concerned, the relevant facts which gave rise to the appeal are as follows:- The appellants in this appeal are plaintiffs 2, 4 to 6 and 8 to10 in O. S. No. 411 of 1965 on the file of the Court of District Munsif Kulittalai. The suit O. S. No. 411 of 1965 was instituted on the file of the District Munsif, Kulittalai for (a) a declaration that the suit properties absolutely belonged to plaintiffs and defendants 2 to 14 and they are entitled to be in possession thereof and (b)for consequential relief of permanent injunction restraining the first defendant from taking possession or in any manner interfering with the peaceful possession and enjoyment of suit properties by the plaintiffs and defendants 2 to 14. It was claimed for the plaintiffs that the suit properties were inam lands coming under the purview of the Tamil Nadu Inam Estates (Abolition and conversion into Ryotwari) Act (Tamil Nadu Act 26 of 1963), that as a consequence of the Notification issued under Section 3 of the said Act, the entire Inam Estate Lands stood vested in the Government absolutely, that nobody, much less the first defendant, is entitled to any right other than those conferred under the said Act, that the suit lands do not come under the catagory of lands in respect of which the first defendant is entitled to ryotwari patta under Section 9 of the Act and on the other hand, the plaintiffs and their predecessors- in-interest have been in possession and enjoyment of the same for more than fifty years and consequently are entitled to ryotwari patta under the provisions of the said Act, that their long possession and title are also saved by the provisions of the said Act and that any attempt by the first defendant to interfere with the possession and enjoyment of the plaintiffs would be illegal and wrongful. As for the right claimed in respect of the lands, the plaintiffs asserted that the suit properties were Village service Inams granted by the Government in favour of Karnam Kuppu Iyer and register No: 126 of September, 1879 relating to Village Service Inams of pettavaithalai Village, Tiruchirapalli District, showed that the lands were so granted to Karnam Kuppu Iyer and confirmed to him at 5/8 of the quit rent, viz. , Rs. 8-8-0 under Title Deed No. 316, that he was doing the Village Karnam service by enjoying the properties and after his death, his son Sethu Iyer was doing the Karnam Service and was enjoying the lands along with Kittu Iyer and ramachandra Rao and subsequent to the death of Sethu Iyer, plaintiffs 1 to 6 and defendants 2 to 6 have been in possession and enjoyment of the same as their ancestral properties and consequently, the plaintiffs and defendants 2 to 6 are the absolute owners of the properties and are entitled to be in possession and enjoyment of the same. The Settlement Register relating to the suit village, it was claimed, also showed that the suit lands were registered in the name of Sethu Iyer and they and the members of their family have leased out the properties, paid kist and have received the income from the lands as owners for generations and by spending a sum of Rs. 5,000 in the year 1955, the punja lands were improved and converted into Nanja lands and the aforesaid persons have also alienated portions of item No. 4 of the suit properties to defendants 7 to 14, who have built also houses in the respective portions purchased by them. Consequently, both proprietary title as also acquisition of title by adverse possession by open, exclusive and continuous possession and enjoyment to the knowledge of the first defendant was also accepted. (b) The first defendant, per contra, contended that the claim of the plaintiffs about the so called grant as Service Inams is false and baseless, that the suit was not maintainable before the Civil Court, that the suit properties are Devadayam Inam granted to the first defendant, who is the absolute owner of the same, that the details given in the Register of 1879 are incorrect and the same cannot be relied upon to prove title claimed by them. In 1897, the first Settlement Registers were prepared and it was found that the suit lands were then under Old Survey Numbers 57, 75, 112 and 128 and subsequent investigations disclosed that Kittu Iyer and Sethu Iyer, who were government Karnams and Temple Accountant respectively, had altered the records with a view to benefit themselves and put the suit lands in T. D. No. 316 as government Karnam Service Inam in 1879 in their names, that the said Sethu Iyer was suspended by the Temple Authorities and in the enquiry which followed, he agreed to transfer the lands from his name to the temple and subsequently, after his death, Kittu Iyer became the Temple Accountant and was enjoying the income from the suit lands and hence the possession of the plaintiffs has been permissive in character and never proprietary and they have paid kist as temple servants and not owners. The alleged improvements were also disputed and the possession of the plaintiffs could not be claimed to be adverse. The Survey and settlement Registers of 1897 and 1927 were said to disclose sufficient proof that the first defendant alone had absolute title to the suit property and accounts were written by Kuppu Iyer upto 1938 and by Kittu Iyer till 1952, when he was dismissed from service and the statement of Kuppu Iyer itself would show that the suit lands are temple properties and he was holding the lands by paying Chathurbagam, while contending that action under Section 101 of the tamil Hindu Religious and Charitable Endowments Act, 1959 are valid and the order passed therein cannot be set aside, the defendant also contended by filing an additional written statement that the suit lands are covered under minor Inams (Abolition and Conversion into Ryotwari) Act (Tamil Nadu Act 30 of 1963) and not Inam Abolition Act under Tamil Nadu Act 26 of 1963 and that it is the first defendant, who is entitled to patta and as a matter of fact, the Inam tahsildar, after due and elaborate enquiry, passed an order granting ryotwari patta to the first defendant by his Proceedings dated 5. 11. 1968 and, therefore, the suit is also barred by virtue of the provisions of Tamil Nadu Act 30 of 1963. (c) On the above claims and counter claims, the suit was tried and both parties adduced oral and documentary evidence. The learned trial judge, by his judgment and decree dated 20. 11. 1978, dismissed the suit holding that the first defendant-temple alone has title to the suit property and that the possession of the plaintiffs was only permissive in character and never adverse. The appellants pursued the matter on appeal in A. S. No. 14 of 1979. The learned appellate Judge also concurred with the judgment and decree passed by the learned trial Judge and the appeal was dismissed holding that in the light of the fact situation that the patta issued in favour of the temple under Tamil nadu Act 30 of 1963 was confirmed by the Tribunal below as also by this Court in S. T. A. 23 of 1975 and, therefore, having regard to the provisions contained in Sections 43 and 46 of Tamil Nadu Act 30 of 1963, the decision of the tribunal below as also of the Special Appellate Tribunal has been rendered final between the parties and the same cannot be reagitated afresh in a civil suit. Hence, the above second appeal. (d) At the time of admitting the second appeal, it was considered that the substantial question of law as to whether the suit land is a Service Inam and whether the adjudication under the Tamil Nadu Act 30 of 1963 resulting in the grant of patta in favour of the first defendant is final and conclusive arise for consideration.

(3.) A learned single Judge of this Court dealt with a similar question under the Abolition Act in the decision reported in Kannammal v. G. Panchakshara chetty, 1988 (2) L. W. 11, in the context of a case wherein ryotwari patta was issued during the course of settlement proceedings in favour of the defendant and the suit came to be filed by the plaintiff for declaration of title and injunction against the defendant. The learned single Judge, after referring to the decisions reported in State of Tamil Nadu v. Ramalinga Swamigal madam, AIR 1986 SC 794 and Ramanujam Kavirayar, T. K. v. Sri-La-Sri Sivaprakasa pandara Sannathi Avargal, 1988 (2) L. W. 513, held that the jurisdiction of the civil Court, in dealing with the claim of a person for a property on the basis of his entitlement to patta under Section 15, is not ousted because there is no sufficient or clear cut provisions to enquire into and decide rival claims or disputes between two rival claimants, while at the same time observing that such suit must be one for declaration of one's entitlement for the grant of patta and not otherwise.