Kullan Padayachi vs Marimuthu and Others

Palaniswami, J.—This appeal is filed by the plaintiff against the reversing judgment of the Subordinate Judge, Salem. The plaintiff is the owner of Survey No. 44, in Kallanatham village, Attur taluk. On the east of it there is S. No. 43/1, which is classified as Kuttai poramboke. Further east is S. No. 48/3. Further east there is a public road going north south. In 1957, the Special Deputy Tahsildar of Attur assigned S; No. 48/3 in favour of the defendants under Ex. B. 1, subject to certain conditions. Aggrieved by this assignment, the plaintiff submitted a petition to the Revenue Divisional Officer, Salem, who, after notice to the defendants, held that there was a pathway in S. No. 48/3, that the assignment in favour of the defendants should have been made after reserving the pathway and that the Special Deputy Tahsildar should issue a revised D Memo. This order was passed en 18th June 1963. Certified copy of that order is Ex. A. 2. The plaintiff laid the suit on 1st September 1962 alleging inter alia that he was entitled to use the pathway by prescriptions and that also by reason of the order of the Deputy Collector, the defendants were bound to allow him to use the pathway. He prayed for a declaration of his right to the pathway and for other reliefs. The defendants contended that no pathway existed, that the plaintiff had no right to use any portion of S. No. 48/3 and that under the terms of the assignment, they were entitled to the entire extent of S. No. 48/3. On a consideration of the evidence, the District Munsif, Salem, found in favour of the plaintiff, holding that the plaintiff was entitled to the cart track on the southern boundary of S. No. 48/3 to a width of 15 links and directed the defendants to restore the said pathway and issued a further induction restraining the defendants front interfering with the right of the plaintiff in using the pathway. On appeal by the defendants, the Subordinate judge of Salem, found that the plaintiff bad not established the right of way by prescription, that the evidence did not establish the existence of a pathway in S. No. 48/3 and that the suit was also not maintainable in the absence of the Government as a party.

Mr. Raghavachariar, appearing for the plaintiff, conceded that the plaintiff''s claim based on prescription cannot be said to have been made out on the evidence. But be submitted that on the terms of Ex. B. 1, the D Memo issued to the defendants, and also on the terms of the order of the Deputy Collector upholding the claim of the plaintiff to a cart track, the plaintiff is entitled to succeed.

Mr. Sundaralingam, appearing for the defendants, put forward three contentions. Inasmuch as the evidence does not establish the existence of a pathway, the plaintiff is not entitled to any relief. (2) In pursuance of the direction given by the Deputy Collector under Ex. A. 2. for the issue of a revised D Memo no revised order has so far been issued and until such a revised order is issued, the plaintiff cannot have any complaint against the defendants. (3) Inasmuch as S. No. 48/3 has been assigned by the Government in favour of the defendants, the Government is a necessary party and the suit should fail, as the Government has not been impleaded.

Ex. B.1. the D memo issued by the Special Deputy Tahsildar, to the defendants in respect of S. No. 48/3 measuring 3.2 area, contains certain conditions subject to which the assignment was made. Condition No. 1. Inter alia states that if it was ultimately found that the assignment was not proper or had been made under a mistake of fact, it is liable to be cancelled. Condition No. 7 inter alia states that the assignment shall not affect the rights subsisting over roads, pathways, water-courses, etc., and existing in the property and that notwithstanding the assignment such rights should continue to exist. No doubt Ex. B-1 does not expressly state that the assignment of S. No. 48/3 was without prejudice to the rights of the persons having a right of way over the southern portion of it. Inasmuch as an express stipulation was not made, it became necessary for the Revenue Divisional Officer, the authority having appellate powers over the Special Deputy Tahsildar, to issue the direction to the Special Deputy Tahsildar to issue a revised D memo reserving the pathway. It is not contended on behalf of the defendants that the Revenue Divisional Officer had no jurisdiction to issue such a direction. Under Board''s Standing O. 15 , the Revenue Divisional Officer is the appellate authority ever the orders of the Tahsildar. Though the petition filed by the plaintiff to the Revenue Divisional Officer docs not appear to be in the nature of an appeal, the Revenue Divisional Officer took the petition on his file and after notice to the defendants, passed the order directing the issue of a revised D memo reserving the pathway. The contention urged on behalf of the defendants is that the report of the Commissioner, Ex. C-3 shows that there is no pathway in S. No. 48/3, and that therefore, the order of the Revenue Divisional Officer recognising a pathway is erroneous and unsustainable. This argument cannot be accepted. The Revenue Divisional Officer had jurisdiction to say whether any pathway should be reserved under the assignment, and in exercise his jurisdiction, he found that a pathway should be reserved on the southern end of S. No. 48/3. The fact that the Special Deputy Tahsildar has not issued a revised D memo does not take away the effect of the order of the Revenue Divisional Officer. The order passed by the Revenue Divisional Officer is by itself sufficient to entitle the plaintiff to say that the defendants can take S. No. 48/3 only subject to his right of using the pathway at the southern end.

Even if it is conceded for the sake of argument that there were no sufficient materials before the Revenue Divisional Officer to come to the conclusion as to the existence of a pathway, the question is whether it is open to the defendants to canvass the correctness of the order of the Revenue Divisional Officer and ask the court to hold that the order is wrong. B S. O. No. 15 sets out the procedure to be followed in the matter of assignment of lands and also contains provisions regarding appellate and revisional powers. It is in exercise of such appellate powers that the Revenue Divisional Officer came to the conclusion that the assignment should be subject to the recognition as to the existence of the pathway. There is nothing to show that he did anything in excess of his jurisdiction It is not open to a civil court to go into the question whether or not there were sufficient materials for the Revenue Divisional Officer to hold that a pathway should be reserved. In Sivajirao Sahib Soorvai v. Akilandathammal 74 L. W. 347 the principle laid down is that it is beyond the jurisdiction of the civil court to correct anything done by an authority empowered to assign Government lands where no civil rights of parties are involved. The same principle is applicable to this case also. The Subordinate Judge in the instant case was therefore, not right in holding that the order of the Revenue Divisional Officer reserving a pathway in S. No. 48/3 was not proper. His erroneous view about the scope and effect of the Revenue Divisional Officer has resulted in his conclusion that the plaintiff has no right of way over S. No. 48/3.

There is no substance in the contention that the suit is not maintainable without impleading the Government at a party. No doubt S. No. 48/3 which originally belonged to the Government has been assigned by the Government in favour of the defendants. But the scope of the assignment has been clarified by the Revenue Divisional Officer in the presence of the plaintiff and the defendants and by that clarification it has been held that the assignment is subject to the enjoyment of the pathway by the plaintiff. In those circumstances ,it is no longer necessary for the plaintiff to implead the Goverment as a patty. All that he seeks to obtain in the suit is to work out the order of the Revenue Divisional Officer. The Subordinate Judge was, therefore, wrong in holding that the suit should fail in the absence of the Government as a party. In the result, the appeal is allowed. The decree of the lower appellate court is set aside and that of the trial court is restored with costs throughout. Leave granted.