Parvathi Ammal and Others vs Ponniah Nadar and Others

Veeraswami, J.—The legal representatives of the first Defendant are the Appellants. The second appeal arises out of a suit instituted by the

first Respondent and five others in their personal capacity as also representing the villagers for a declaration that the Vinayagar temple and a well

situate in Paimash No. 52/5 in Chinnakattankudi village in an estate notified and taken over under the provisions of Madras Act XXVI of 1948 are

communal property of the villagers of that village or in the alternative that the villagers have a right to worship in the Vinayagar temple and take

water from the well for the purpose of drinking and for ceremonial occasions and also for their cattle. The Plaintiffs also prayed for an injunction

restraining the Defendants from interfering with their rights. The trial Court, on the view, that the suit ought to have been filed u/s 20(2) of the

Madras Estates Land Act of 1908 and on certain other findings dismissed the suit. On appeal by some of the Plaintiffs, the lower Appellate Court

reversed the judgment of the trial Court and decreed the suit as prayed for.

The lower Appellate Court formulated for its decision three points of which the first related to limitation which no longer arises in second appeal.

The second of the points was whether the suit property was a communal property of the villagers of Chinnakattankudi and the third that if the

property was not communal property, whether the Plaintiffs had established any customary right to worship in the temple and to take water from

the well. On the second point the lower Appellate Court was of the view that the suit property was communal property. By reason of that finding,

the lower Appellate Court thought that the third point did not arise for its decision. Nevertheless it gave a finding on that question as well, namely,

that the Plaintiffs and the villagers whom they represented were entitled to customary right to offer worship in the Vinayagar temple and to take

water from the suit well as prayed for in the plaint. When the village was taken over under Madras Act XXVI of 1948, the first Defendant applied

for a ryotwari patta u/s 11 of that Act and got the same. This order was eventually taken in revision to the Board of Revenue which, by its order,

dated March 19, 1956, agreed with the officers below and found that the first Defendant was entitled to a ryotwari patta. This finding the Board

of. Revenue reached on the ground that long prior to the taking over of the village, in about 1922 or so the then landholder had himself granted a

patta to the first Defendant for the temple and the well. As to the claim of the villagers to worship in the temple and use the well, the Board of

Revenue made it perfectly clear in its order that the grant of a ryotwari patta to the first Defendant was without prejudice to such rights as the

villagers might have. In view of this order, it is contended for the Appellant that the character of the land could not be enquired into by the Courts

below as distinguished from a question of title. The lower Appellate Court has nowhere, in its judgment, declared, beyond, stating that the suit

property was communal property, that the title thereto vested in the villagers. Section 64-C of Madras Act XXVI of 1948 raised a bar to any

order passed by the authorities set up under the Act in respect of matters to be determined for the purpose of the Act being questioned in any

Court of law. Apart from this aspect, the scheme of the Act is clear that the character or tenure of the lands in an estate taken over under the

statutory provisions is to be decided by the officers set up by the Act for the purpose subject to appeals and revisions as provided by the Act.

There is, therefore, force in the argument for the Appellants that the lower Appellate Court was not within its bounds in going into and deciding the

character of the suit property as communal. The declaration granted by the lower Appellate Court that the suit lands are communal lands is,

therefore, set aside.

Although the Appellants have succeeded to the extent just now mentioned, they should fail in respect of the rights of the villagers declared by the

lower Appellate Court. That Court on the basis of the documentary evidence and on an appreciation of the oral evidence before it, concluded that

the temple and the well were in existence from time immemorial and that the villagers had been worshipping in the Vinayagar temple and using the

well water for purposes mentioned in the plaint. Sri K. Parasaran for the Appellants in spite of his efforts has failed to show any error of law

vitiating that factual finding. The declaration granted by the lower Appellate Court in favour of the Plaintiffs and the villagers they represent to

worship in the temple and use the well, will stand.

The second appeal is allowed in part on the second point but dismissed in respect of the decision of the lower Appellate Court on point 3 which

as I said it has formulated for its decision. No costs.

No leave.