In the case of an application for a ryotwari patta by a ryot under Section 11 there is no express provision for any inquiry into the nature or character of the land before granting or refusing to grant such patta to the applicant but impliedly a decision on this aspect of the matter must be arrived at by the settlement officer before he passes his order on either granting or refusing to grant such patta. Such a decision will be an incidental one and arrived at in the summary manner only for the purpose of granting or refusing to grant the patta. A summary decision of this type in an enquiry conducted for revenue purpose cannot be regarded as final or conclusive so as to constitute a bar to a civil court's jurisdiction adjudicating upon the same issue arising in a suit injunction filed by a ryot on the basis of title and/ or long and uninterrupted possession. Even where finality is accorded to the orders passed by the special tribunal one will have to see whether such special tribunal has powers to grant reliefs which civil court would normally grant in a suit and if the answer is in the negative it would be difficult to imply or infer exclusion of civil court's jurisdiction. Where an application is made under Section 11 for a ryotwari patta, the settlement officer has power and jurisdiction merely to grant or refuse to grant the patta on the basis of materials placed before him. But the applicant even after the refusal of the ryotwari patta would be entitled to protect his possessory title and long enjoyment of the land and seek an injunction preventing Government's interference otherwise than in due course of law and surely before granting such relief the civil court may have to adjudicate upon the real nature or character of the land if the same is put in issue. Thus the settlement officer having no power to do what civil court would normally do in a suit, ouster of civil court's jurisdiction cannot be implied simply because finality has been accorded to the Settlement Officer's order under Section 64-C of the Act.
1. Both these second appeals are by plaintiff in O.S. No.39 of 1979 and O.S. No. 143 of 1981, on the file of the Subordinate Judge's Court, Ramanathapuram at Madurai. The suits were filed by the respective plaintiff therein for declaration of title and other consequential reliefs.
2. Schedule items in both the suits were once upon a time Zamindari Estate, and subsequently they were alleged to have been vested with the Government. Both the plaintiffs claim title on the basis of document executed by Zamindar. But, the Government, after abolition of Zamindari system, as per Madras Estates Abolition Act, declared the lands in question as poramboke lands, and this necessitated the filing of the suits.
3. In defence in both the suits defendant- Government took a stand that the suits are not maintainable, and that civil court has no jurisdiction, once the Authorities under the Act have classified the lands in question as 'Natham poramboke'. The identity of the property claimed by the plaintiff was also disputed in the written statement. The cause of action in both the suits was alleged trespass and cutting of trees, for which damages were claimed. The State disputed the liability for the same.
4. On the above pleadings, plaintiff examined witnesses and documents were also marked. P.Ws. 1 to 4 were examined and Exs.A-1 to A-15 were marked. D.Ws. 1 and 2 were examined on the side of the defendant and Exs.B-1 to B-3 were marked.
5. The trial court came to the conclusion that jurisdiction of civil court was barred once the lands were classified as 'Natham Poramboke' and it was of the view that the remedy of the plaintiff was only under the special enactment, and not before civil court. Even after holding so, trial court recorded some findings on merits.
6. Plaintiff in both the suits filed appeals before the lower appellate court against the common judgment, which also accepted the findings of the trial court. The appeals were dismissed.
7. One of the main reasons for dismissal of the appeals was that regarding identity of the property, there was no proper evidence. Lower appellate court also assumed that once the classification is made and the properties are treated as 'Natham Poramboke', civil court's jurisdiction is ousted, and the plaintiff can get title only after getting patta from the Government. The findings of the authorities under the Madras Estates Abolition Act were held to be conclusive. It is against the concurrent findings, these second appeals have been filed on the following (common) substantial questions of law:
(1) Whether the courts below are right in negativing the plaintiffs claim on the ground that the plaintiff's predecessor- in-title, the Zamindar of Ettayapuram, did not get patta under Section 12 of Act 26 of 1948?
(2) Whether the courts below are right in ignoring the fact that 'Natham' does not vest with the Government under Act 26 of 1948? and
(3) Whether the lower courts are right in accepting the extract of evidence tendered in an entirely different proceedings without examining the person who gave evidence?
8. The position of law is now settled, in view of the decisions reported in State of Tamil Nadu v. Ramalinga Swamigal Madam and Manicka Naicker v. E. Elumalai Naicker
. In both these cases, it was declared by the Supreme Court that the jurisdiction of civil courts is not ousted, and the question whether the Settlement Officer's decision is correct or not, can be entertained by civil court. In the first decision, it was held thus:
The civil court's jurisdiction to adjudicate on the real nature of the land is not ousted under Section 64-C by reason of the Settlement Officer's decision to grant or refuse to grant a patta under Section 11 read with the proviso to Section 3(d) of the Act. The finality given under Sub-section (1) of Section 64-C of the Act to the orders passed by the Government or other authorities in respect of the matters to be determined by them for the purpose of the Act and prohibition under Sub-section (2) thereof against calling in question such orders in any court of law by themselves are not decisive of the civil court's jurisdiction. Several other aspect like the scheme of the Act, adequacy and sufficiency of remedies provided by it, etc., will have to be considered to ascertain the precise intendment of the Legislature. Having regard to the vital difference between the provisions dealing with grant of ryotwari patta to a ryot (Section 11) and the grant thereof to a landholder (Sections 12 to 15), different considerations may arise while deciding the issue of the ouster of civil court's jurisdiction to adjudicate upon the true nature and character of the concerned land. The expression "for the purposes of this Act" has been designedly used in Section 64-C suggesting that any order passed by the settlement officer either granting or refusing to grant a ryotwari patta to a ryot under Section 11 of the Act must be regarded as having been passed to achieve the purposes of the Act, namely, revenue purposes, that is to say for fastening the liability on him to pay the assessment or other dues and to facilitate the recovery of such revenue from him by the Government; and therefore any decision impliedly rendered on the aspect of nature or character of the land on that occasion will have to be regarded as incidental to and merely for the purpose of passing the order of granting or refusing to grant the patta and for no other purpose. When a statute creates a special right or liability and provides for its determination, it should also lay down that all questions about the said right or liability shall be determined by the Tribunal or authority constituted by it. If there is a no such provision it will be difficult to infer ouster of the civil court's jurisdiction to adjudicate all other questions pertaining to such right or liability. Since under the Act from the notified date all the estate vests in the Government free from encumbrances it must be held that all the lands lying in such estate including private land of landholder and ryoti land cultivated by a ryot vest in the Government and the Act could be said to be creating a new right in favour of a landholder (re: his private lands) and a ryot (re: ryoti land) by granting a ryotwari patta to them under Sections 12 to 15 and Section 11 respectively, and the Act provides for determination of such right by the Settlement Officer. In the case of an application for a ryotwari patta by a ryot under Section 11 there is no express provision for any inquiry into the nature or character of the land before granting or refusing to grant such patta to the applicant but impliedly a decision on this aspect of the matter must be arrived at by the settlement officer before he passes his order on either granting or refusing to grant such patta. Such a decision will be an incidental one and arrived at in the summary manner only for the purpose of granting or refusing to grant the patta. A summary decision of this type in an enquiry conducted for revenue purpose cannot be regarded as final or conclusive so as to constitute a bar to a civil court's jurisdiction adjudicating upon the same issue arising in a suit injunction filed by a ryot on the basis of title and/ or long and uninterrupted possession. Even where finality is accorded to the orders passed by the special tribunal one will have to see whether such special tribunal has powers to grant reliefs which civil court would normally grant in a suit and if the answer is in the negative it would be difficult to imply or infer exclusion of civil court's jurisdiction. Where an application is made under Section 11 for a ryotwari patta, the settlement officer has power and jurisdiction merely to grant or refuse to grant the patta on the basis of materials placed before him. But the applicant even after the refusal of the ryotwari patta would be entitled to protect his possessory title and long enjoyment of the land and seek an injunction preventing Government's interference otherwise than in due course of law and surely before granting such relief the civil court may have to adjudicate upon the real nature or character of the land if the same is put in issue. Thus the settlement officer having no power to do what civil court would normally do in a suit, ouster of civil court's jurisdiction cannot be implied simply because finality has been accorded to the Settlement Officer's order under Section 64-C of the Act.
The above position of law was followed in the subsequent decision as well viz., Manicka Naicker v. E. Elumalai , wherein it was held thus:
The jurisdiction of the City Civil Court, to entertain and decide the suit for recovery of land was not, in any manner, ousted by the coming into force of the Act. Nor did the decree passed in the suit become a nullity because of the grant of a joint patta by the Assistant Settlement Officer in the names of the appellant and the respondent in respect of the building and land respectively prior to the passing of the decree.
The purpose of the Madras Act is introduction of ryotwari settlement in the place of the rights of inamdars in minor inams with the exception of certain types of public lands set out in Section 10. Section 13 does not vest any property in a person in who that property did not vest prior to the appointed day. By virtue of Section 13(2) the site on which the building stands will vest in the person who owned it immediately before the appointed date. Unless the owner of the building is also the owner of the site, the site will not vest in the owner. The effect of Sub-section (2) is not to make a statutory transfer of the land to the owner of the building where it had not formerly belonged to him. An inamdar who continues to be in constructive possession of the site even after the notified date would be entitled to recover possession from his tenant.
In view of these decisions rendered subsequent to the decisions of the courts below, the finding that the civil court has no jurisdiction cannot stand. The civil suit is maintainable.
9. Once this Court holds that civil suit is maintainable, naturally, the next point to be considered is, whether the plaintiff is entitled to get a declaration. There is serious dispute regarding the identity of the property claimed by the plaintiff in both the suits. The same will have to be measured and located by the issue of aCommission. That was not been done in this case.
10. Learned Additional Government Pleader also agreed that on the basis of the available evidence, a finality cannot be reached, and the matter has to be remanded to the trial court.
11. As regards the claim for damages, plaintiff could have adduced evidence. No evidence was adduced. Both the courts below have held that the Government is not liable to pay damages. Those findings, according to me, are proper, and no interference is called for.
12. In the result, the second appeals are allowed. The judgment and decree of both the courts below are set aside. The suits are remanded to the trial court, holding that civil court has jurisdiction to decide the issues involved in these cases. The trial court is directed to record evidence on all issues, except on the question of damages, which has now become final. On the application of the respective plaintiff, the trial court will issue a Commission to measure and locate the properties and also to identify the same. Thereafter, after giving reasonable opportunity to both parties, trial court will decide the case in accordance with law. Even though the suits are of the years 1979 and 1981, I am inclined to remand them since the available evidence is not sufficient to decide the issues. The trial court also will take into consideration this aspect of the matter and take expeditious steps to dispose of the suits before March, 1997 after giving reason able opportunities to the parties to let in evidence as indicated above. Parties are directed to suffer their own costs.
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Madras High Court
Janakiammal vs The State Of Tamil Nadu ... on 8 February, 1996
Equivalent citations: (1996) 2 MLJ 110
1. Both these second appeals are by plaintiff in O.S. No.39 of 1979 and O.S. No. 143 of 1981, on the file of the Subordinate Judge's Court, Ramanathapuram at Madurai. The suits were filed by the respective plaintiff therein for declaration of title and other consequential reliefs.
2. Schedule items in both the suits were once upon a time Zamindari Estate, and subsequently they were alleged to have been vested with the Government. Both the plaintiffs claim title on the basis of document executed by Zamindar. But, the Government, after abolition of Zamindari system, as per Madras Estates Abolition Act, declared the lands in question as poramboke lands, and this necessitated the filing of the suits.
3. In defence in both the suits defendant- Government took a stand that the suits are not maintainable, and that civil court has no jurisdiction, once the Authorities under the Act have classified the lands in question as 'Natham poramboke'. The identity of the property claimed by the plaintiff was also disputed in the written statement. The cause of action in both the suits was alleged trespass and cutting of trees, for which damages were claimed. The State disputed the liability for the same.
4. On the above pleadings, plaintiff examined witnesses and documents were also marked. P.Ws. 1 to 4 were examined and Exs.A-1 to A-15 were marked. D.Ws. 1 and 2 were examined on the side of the defendant and Exs.B-1 to B-3 were marked.
5. The trial court came to the conclusion that jurisdiction of civil court was barred once the lands were classified as 'Natham Poramboke' and it was of the view that the remedy of the plaintiff was only under the special enactment, and not before civil court. Even after holding so, trial court recorded some findings on merits.
6. Plaintiff in both the suits filed appeals before the lower appellate court against the common judgment, which also accepted the findings of the trial court. The appeals were dismissed.
7. One of the main reasons for dismissal of the appeals was that regarding identity of the property, there was no proper evidence. Lower appellate court also assumed that once the classification is made and the properties are treated as 'Natham Poramboke', civil court's jurisdiction is ousted, and the plaintiff can get title only after getting patta from the Government. The findings of the authorities under the Madras Estates Abolition Act were held to be conclusive. It is against the concurrent findings, these second appeals have been filed on the following (common) substantial questions of law:
(1) Whether the courts below are right in negativing the plaintiffs claim on the ground that the plaintiff's predecessor- in-title, the Zamindar of Ettayapuram, did not get patta under Section 12 of Act 26 of 1948?
(2) Whether the courts below are right in ignoring the fact that 'Natham' does not vest with the Government under Act 26 of 1948? and
(3) Whether the lower courts are right in accepting the extract of evidence tendered in an entirely different proceedings without examining the person who gave evidence?
8. The position of law is now settled, in view of the decisions reported in State of Tamil Nadu v. Ramalinga Swamigal Madam and Manicka Naicker v. E. Elumalai Naicker
. In both these cases, it was declared by the Supreme Court that the jurisdiction of civil courts is not ousted, and the question whether the Settlement Officer's decision is correct or not, can be entertained by civil court. In the first decision, it was held thus:
The civil court's jurisdiction to adjudicate on the real nature of the land is not ousted under Section 64-C by reason of the Settlement Officer's decision to grant or refuse to grant a patta under Section 11 read with the proviso to Section 3(d) of the Act. The finality given under Sub-section (1) of Section 64-C of the Act to the orders passed by the Government or other authorities in respect of the matters to be determined by them for the purpose of the Act and prohibition under Sub-section (2) thereof against calling in question such orders in any court of law by themselves are not decisive of the civil court's jurisdiction. Several other aspect like the scheme of the Act, adequacy and sufficiency of remedies provided by it, etc., will have to be considered to ascertain the precise intendment of the Legislature. Having regard to the vital difference between the provisions dealing with grant of ryotwari patta to a ryot (Section 11) and the grant thereof to a landholder (Sections 12 to 15), different considerations may arise while deciding the issue of the ouster of civil court's jurisdiction to adjudicate upon the true nature and character of the concerned land. The expression "for the purposes of this Act" has been designedly used in Section 64-C suggesting that any order passed by the settlement officer either granting or refusing to grant a ryotwari patta to a ryot under Section 11 of the Act must be regarded as having been passed to achieve the purposes of the Act, namely, revenue purposes, that is to say for fastening the liability on him to pay the assessment or other dues and to facilitate the recovery of such revenue from him by the Government; and therefore any decision impliedly rendered on the aspect of nature or character of the land on that occasion will have to be regarded as incidental to and merely for the purpose of passing the order of granting or refusing to grant the patta and for no other purpose. When a statute creates a special right or liability and provides for its determination, it should also lay down that all questions about the said right or liability shall be determined by the Tribunal or authority constituted by it. If there is a no such provision it will be difficult to infer ouster of the civil court's jurisdiction to adjudicate all other questions pertaining to such right or liability. Since under the Act from the notified date all the estate vests in the Government free from encumbrances it must be held that all the lands lying in such estate including private land of landholder and ryoti land cultivated by a ryot vest in the Government and the Act could be said to be creating a new right in favour of a landholder (re: his private lands) and a ryot (re: ryoti land) by granting a ryotwari patta to them under Sections 12 to 15 and Section 11 respectively, and the Act provides for determination of such right by the Settlement Officer. In the case of an application for a ryotwari patta by a ryot under Section 11 there is no express provision for any inquiry into the nature or character of the land before granting or refusing to grant such patta to the applicant but impliedly a decision on this aspect of the matter must be arrived at by the settlement officer before he passes his order on either granting or refusing to grant such patta. Such a decision will be an incidental one and arrived at in the summary manner only for the purpose of granting or refusing to grant the patta. A summary decision of this type in an enquiry conducted for revenue purpose cannot be regarded as final or conclusive so as to constitute a bar to a civil court's jurisdiction adjudicating upon the same issue arising in a suit injunction filed by a ryot on the basis of title and/ or long and uninterrupted possession. Even where finality is accorded to the orders passed by the special tribunal one will have to see whether such special tribunal has powers to grant reliefs which civil court would normally grant in a suit and if the answer is in the negative it would be difficult to imply or infer exclusion of civil court's jurisdiction. Where an application is made under Section 11 for a ryotwari patta, the settlement officer has power and jurisdiction merely to grant or refuse to grant the patta on the basis of materials placed before him. But the applicant even after the refusal of the ryotwari patta would be entitled to protect his possessory title and long enjoyment of the land and seek an injunction preventing Government's interference otherwise than in due course of law and surely before granting such relief the civil court may have to adjudicate upon the real nature or character of the land if the same is put in issue. Thus the settlement officer having no power to do what civil court would normally do in a suit, ouster of civil court's jurisdiction cannot be implied simply because finality has been accorded to the Settlement Officer's order under Section 64-C of the Act.
The above position of law was followed in the subsequent decision as well viz., Manicka Naicker v. E. Elumalai , wherein it was held thus:
The jurisdiction of the City Civil Court, to entertain and decide the suit for recovery of land was not, in any manner, ousted by the coming into force of the Act. Nor did the decree passed in the suit become a nullity because of the grant of a joint patta by the Assistant Settlement Officer in the names of the appellant and the respondent in respect of the building and land respectively prior to the passing of the decree.
The purpose of the Madras Act is introduction of ryotwari settlement in the place of the rights of inamdars in minor inams with the exception of certain types of public lands set out in Section 10. Section 13 does not vest any property in a person in who that property did not vest prior to the appointed day. By virtue of Section 13(2) the site on which the building stands will vest in the person who owned it immediately before the appointed date. Unless the owner of the building is also the owner of the site, the site will not vest in the owner. The effect of Sub-section (2) is not to make a statutory transfer of the land to the owner of the building where it had not formerly belonged to him. An inamdar who continues to be in constructive possession of the site even after the notified date would be entitled to recover possession from his tenant.
In view of these decisions rendered subsequent to the decisions of the courts below, the finding that the civil court has no jurisdiction cannot stand. The civil suit is maintainable.
9. Once this Court holds that civil suit is maintainable, naturally, the next point to be considered is, whether the plaintiff is entitled to get a declaration. There is serious dispute regarding the identity of the property claimed by the plaintiff in both the suits. The same will have to be measured and located by the issue of aCommission. That was not been done in this case.
10. Learned Additional Government Pleader also agreed that on the basis of the available evidence, a finality cannot be reached, and the matter has to be remanded to the trial court.
11. As regards the claim for damages, plaintiff could have adduced evidence. No evidence was adduced. Both the courts below have held that the Government is not liable to pay damages. Those findings, according to me, are proper, and no interference is called for.
12. In the result, the second appeals are allowed. The judgment and decree of both the courts below are set aside. The suits are remanded to the trial court, holding that civil court has jurisdiction to decide the issues involved in these cases. The trial court is directed to record evidence on all issues, except on the question of damages, which has now become final. On the application of the respective plaintiff, the trial court will issue a Commission to measure and locate the properties and also to identify the same. Thereafter, after giving reasonable opportunity to both parties, trial court will decide the case in accordance with law. Even though the suits are of the years 1979 and 1981, I am inclined to remand them since the available evidence is not sufficient to decide the issues. The trial court also will take into consideration this aspect of the matter and take expeditious steps to dispose of the suits before March, 1997 after giving reason able opportunities to the parties to let in evidence as indicated above. Parties are directed to suffer their own costs.
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