The Government of Tamil Nadu vs Peria Pallivasal Abiramam and Tamil Nadu Wakf Board

K.P. Sivasubramaniam, J.—This Second Appeal is directed against the judgment of the learned Additional District Judge, Ramanathapuram,

at Madurai, in A.S.No.21 of 1984 confirming the judgment of the learned District Munsif, Paramakudi, in O.S.No.122 of 1981. Defendants 1 to 3

are the appellants in the above Second Appeal. The Plaintiff / Peria Pallivasal, Abiramam, through its trustee, had prayed fur a declaration that the

plaintiff is entitled to the suit property (Uppoorani) in Survey No.249/2 Abiramam and that the resolution No.45 dated 24.11.1973 of the

panchayat was void and cannot affect the rights and enjoyment of the suit property by the plaintiff and for a consequential relief of injunction

restraining the defendants from in any manner interfering with the enjoyment of the suit property by the plaintiff. The first defendant in the suit is the

State of Tamil Nadu represented by the District Collector. '' Second defendant is Abiramam Town Panchayat while the third defendant is the

Tamil Nadu Wakf Board. The plaintiff contended that the entire area comprising the oorani was a single unit surveyed and recorded as Paimash

No. 10 in ancient Olugu account for fasli 1336. Paimash No. 10 was not cultivated as agricultural lands and therefore, the entire paimash number

was recorded as poromboke. There was no change, in the user of the word poromboke which expression simply connotes property which is not

assessed to land revenue. According to the plaintiff, the entire paimash No.10 including oorani its bound and the adjacent vacant site belonging to

the Pallivasal as a single unit. In the course of certain investigation, the karnam of the village appears to have reported that the Pallivasal came into

existence after the preparation of the accounts during fasli 1323. The plaintiff does not admit the same and according to the plaintiff the Pallivasal

was in existence for more than a century and the origin of the same was not traceable. At any rate the entire unit in Paimash No. 10 was under the

control and management of pallivasal. The bunds do not yield any income and the vacant site has been occupied by pallivasal by putting up the

building. The oorani is a source of income and fish was grown in the oorani and the natural growth is sold periodically and the entire income

collected and appropriated by the pallivasal. Therefore, the fish in the oorani was a kind of crop similar to the crops in the agricultural lands which

were solely enjoyed by pallivasal. This was going on for a very long time even during the period of Ramnad Zamindary, who was the owner of the

entire village. Therefore oorani and the vacant site must have been granted to the pallivasal long ago before the time registered documents came

into practice. Therefore according to the plaintiff the principles of law relating to lost grant would be applicable and thus pallivasal has become the

sole owner of oorani. The plaintiff would further state that it was true that oorani waters are also used for bathing and washing purposes. The

Muslim inhabitants were using the oorani as a matter of right. The area is a dry area and therefore, males belonging to other communities were also

allowed by the pallivasal to use the oorani for bathing purpose only as a matter of charity and such user was based on leave and licence either

orally granted to each person or by acquiescence in favour of each individual person. Such a user cannot in any manner create any property or

other legal right in favour of any individual person or community.

The Ramnad Zamindari was notified and taken over by the first defendant in September, 1949 under Madras Act XXVI of 1948 (hereinafter

called ""the Act"") But even thereafter the enjoyment of oorani, its water and the fishing have been only enjoyed by pallivasal. It was further stated-

in the plaint that there is some difficulty in the interpretation and application of various provisions of the Act and the exact position vis-a-vis the

Government has not yet been finally and conclusively determined. But taking advantage of the confusion, some non-muslim inhabitants started

giving trouble which resulted in number of proceedings under the Act before the Board of Revenue. But in none of those proceedings the title of

the oorani was fully or properly considered or determined. Particularly, the fishery income in the oorani vis-a-vis the Government had never been

determined or considered. The entire village was surveyed under the provisions of the Act. Even though there was no reason for sub-dividing the

property the same was subdivided having regard to the nature of the property. But there was no adjudication on the question of title. Certain

proceedings were taken before the High Court in the said context and the orders of the High Court and Board of Revenue have recognised that

the survey of the oorani as poromboke will be subject to the rights exercised in the past and that any dispute will have to be decided by a Civil

Court. It was further pleaded that the peria pallivassal of Abiramam is subject to the jurisdiction of the Wakf Board and the Wakf Board has also

recognised the title of pallivasal and have issued notification to the said effect. While so the second defendant, Abiramam Panchayat had passed a

resolution to take steps to remove the karuvel trees grown inside on the northern bund of the Uppoorani on the ground of insanitary use. The

resolution was a definite challenge on the right of the plaintiff over the oorani. The resolution was also not clear as to how the second defendant

was claiming title to the oorani. Reliance placed upon under Sections 83 and 84 of the Madras Panchayats Act, 1958 cannot vest the title to the

oorani in the second defendant. The plaintiff would further contend that there was no question of the property vesting with the second defendant.

The oorani was never set apart for the use of village community and therefore, it cannot be a public property which could rest in the second

defendant. The plaintiffs further claimed that the oorani had always been enjoyed by the plaintiff at least from the year 1897. The plaintiff had

thereupon filed two writ petitions W.P. Nos. 6583 and 6584 of 1973. This court after considering all the prior proceedings directed the Managing

Trustee of the plaintiff to approach the Civil Court for establishing the title and granted a period of three months for filing the suit. Therefore, a

notice u/s 80 C.P.C. and Section 170 of the Panchayat Act were issued to the defendants.

In the written statement filed by the first defendant, the various claims made in the plaint were denied and it was contended that Abiramam

village originally formed part of Ramanathapuram Zamin and the village was leased out by Zamindar to some Muslims who are the trustees of Peria

pallivasal. The Muslims of Abriramam have established a mosque in the centre of the village known as Peria pallivasal. A trustee had also been

appointed to manage the Peria pallivasal. But the Peria pallivasal has nothing to do with the suit oorani which is called uppoorani. Peria pallivasal is

about three furlongs away from upporani and therefore, the plaintiffs claim that the suit oorani forms part of pallivasal property and it is in its

possession and enjoyment is on the face of it false. The oorani is in existence prior to the pallivasal. The pallivasal never enjoyed the fishery right. It

was never granted to the pallivasal and the principles of law governing ""lost grant"" will not be applicable to this case. The oorani was constructed

by Raja of Ramnad for watering the cattle and bathing and for the household use of the entire population of Abiramam village. A register and

Olugu account kept by zamindar for fasli 1836 clearly shows that oorani was a poramboke in pymash No. 10. The Jamabandhi account of the

year 1923 will also show that it is an oorani. Even the lessees who were trustees of peria pallivasal, Abiramam did not make any claim over the

uppoorani prior to it being taken over by the Government. Originally, uppoorani had an extent of 10.6 acres and pallivasal was built only later.

Taking the topography and real nature of the case the settlement Authority subdivided the Abiramam village. As far as uppoorani poramboke was

concerned namely, survey No. 249/2 with an area of 9.96 cents was kept as poramkoke as it was being used by the public and handed over to

panchayat in the year 1960. Thus it is clear that survey No. 249/2 is a poramboke available for the public at large and no one can claim any special

right over it. The contentions on behalf of the plaintiff that the Muslims have been using the oorani as a matter of right and that males of the other

community were allowed to use for bathing purpose only as a matter of charity, were wrong and false. According to the defendants the general

public were using the water in the oorani right from time immemorial. The bathing ghats were constructed by philanthropists belonging to all

communities. In fact peria pallivasal had purchased some lands in 1930 and dug a separate oorani in that land for exclusive right of peria pallivasal

and patta was also granted to that particular oorani. The said oorani constructed by peria pallivasal lies on the southern side of the village and the

oorani under dispute lies on the north side of the village. Now the pallivasal was trying to create some confusion. The accounts maintained by them

was with reference to the other oorani. The oorani under dispute vests with the Government by virtue of Act 26 of 1948. The peria pallivasal Trust

did not get any patta right from Ramanathapuram Zamindars and even after the village was taken over they were not granted any 3-D patta for the

oorani. It was further contended that the defendant was in possession and enjoyment of oorani for a very long period. It was further contended that

by virtue of Tamil Nadu Panchayat Act 1958 the property vested with the Panchayat from the year 1960 and thereafter the Panchayat had also

laid roads along the area for the benefit of the village. It was further contended that the suit property as oorani vested with the 2nd defendant under

Act 49 of 1974. After the village had been taken over by the Government the Civil Court has no jurisdiction to go into the claim made by the

plaintiff.

In the written statement of the second defendant, Abiramam panchayat, it was contended that the suit property is an oorani poramboke and

vested with Abiramam Panchayat u/s 84 of the Tamil Nadu Panchayat Act 1958. It was handed over to the panchayat for maintenance and

management in the year 1960. The said handing over in 1960 was not challenged by Peria pallivasal or any one in the village. Even since, it was

handed over, the Abiramam Panchayat was in exclusive possession and management and the Abiramam public will utilise for their use. The

panchayat in the interest of the public health passed a resolution to cut and remove the bushes and trees and to clear out poisonous weeds which

are in abundance around the oorani causing obstruction to pathway and roads: The plaintiff was estopped from contesting the vesting of the

property with panchayat. Once a land has been classified as poramboke, the property will naturally vest with the panchayat. The validity of the

resolution passed by the second defendant cannot be questioned by the plaintiff.

The trial court decreed the suit as prayed for holding that the defendants had no rights over the property, that the property belongs exclusively to

the plaintiff and that the plaintiff had also prescribed title by adverse possession having been in enjoyment and management of the property for

more than 100 years. On appeal also the said findings were confirmed by the appellate court and hence the present Second Appeal by the

defendants/ Government and panchayat Union.

Mr. P.M. Bhaskaran, learned counsel for the appellants contends as follows:-

(i) The entries in the Revenue Records show that the land had been classified as poramboke and therefore, the plaintiff cannot claim any rights over

the property.

(ii) In the earlier writ proceedings initiated by the plaintiff as against the Government, the Division Bench of this Court had affirmed the earlier

orders of the Government passed in the year 1964, classifying the land as poramboke.

(iii) There can be no claim of adverse possession against the Government. There is no such pleading in the plaint. Even otherwise, the period prior

to the notified date is completely protected by the vesting with the Government free of all encumbrances. Hence the findings of the court below

regarding adverse possession cannot be sustained.

(iv) Ooranies always vest with the Government and are intended to be for public user without any restriction and no individual or institution can

claim exclusive ownership or control over the ooranies.

Learned Senior Counsel representing the respondents while seeking to sustain the findings on adverse possession as concurrent findings of fact,

would also contend that in the very order passed by the Board of Revenue in the year 1964 on which reliance is placed by the appellant ordering

registration of the land as poramboke, it has been abundantly made clear that such registration was subject to the rights having been exercised in

the past in respect of the management and user and that the disputes between pallivasal and others have to be resolved only by the Civil Court.

I have considered the contentions of both sides as well as the evidence on record. It is a well settled proposition of law that the mere fact that a

particular land is classified or ordered to be classified in the Revenue Registry in a particular manner is not by itself conclusive and such entries are

subject to challenge and decision before the Civil Courts. In other words, it is always open for the aggrieved party to agitate against the

classification of the land as a poramboke land. As mentioned earlier one of the prayers in the suit is for declaration that the plaintiff is entitled to the

suit property. Therefore, we have to consider whether the plaintiffs have successfully established their case.

It is noteworthy that the plaintiffs have phrased the relief of declaration in a rather self-serving manner. The usual prayer for declaration of title is

absent and on the other hand the prayer is for declaration that the plaintiff is entitled to the suit property. This is probably due to the fact that the

plaintiffs themselves are aware of the nature of the origin of their rights. In the plaint there is no disclosure of their title or as to how they came into

possession or control of the Oorani. It is conceded that the property originally belonged to Ramnad Jamin. But the further attempt is to invoke the

principles of lost grant and that the Pallivasal had become the sole owner. It is also conceded in paragraph VIII of the plaint that after the take over

of the village under Madras Act 26 of 1948 ""exact position vis-a-vis the Government has not been finally and conclusively determined"". Therefore,

in the background of the taking over of the village under Act 26 of 1948 (hereinafter called ""the Act"") with effect from 7.9.1949 and the

consequential vesting of the entire estate in the Government all rights and interest over the estate before notified date and the entire estate by the

principal or any other land owner as against the Government ""shall cease and determine vide Section 3(b) and 3 (c) of the Act. Section 3 (b)

makes it clear mat the entire estate would include tanks and ooranies including private tank and ooranies. Thereafter the pallivasal has also moved

the appropriate authority u/s 18(4) of the Act for a declaration that survey No. 249 consisting of oorani, bathing ghats beyond small mosques and

some buildings were appurtenances to the main pallivasal. The Board of Revenue in its earlier order dated 19.3.1961 had held that survey No.

249 should be treated as communal poramboke for which pallivasal could not claim any patta. On consideration of the pallivasal''s petition u/s

18(4) of the Act, passed the following order dated 4.7.1964 in BP/Miscellaneous/1226. ""It will be sufficient if the registry as poramokc is subject

to rights, such as having been exercised in the past in respect of the management and user. Any dispute in regard to this between pallivasal

authorities and the others will naturally be resolved by the Civil Courts.

At once it may be stated at this juncture that the pallivasal appears to be satisfied with the decision of the Board as mentioned above and did

not agitate the matter further and the order thus extracted above would be very significant in deciding the rights of parties.

Subsequent to the passing of the said order there appears to have been some dispute over the enjoyment of the oorani and the villagers

belonging to the Hindu community appear to have petitioned to the Government questioning the correctness of the order where upon the

Government purporting to act u/s 19-A of the Act passed an order dated 20.3.1967 in G.O.MS. No.624, Revenue, and by virtue of the said

order the Government cancelled Board''s order dated 4.7.1964 u/s 18(4) of the Act holding that the said order was in excess of its powers u/s 18

(4) of the Act. It was held that the pallivasal attempted to exercise the fishery right in the oorani resulting in rendering the oorani inaccessible to the

other communities in the Village and therefore, it was decided to retain the oorani as poramboke without recognising any pre existing right and also

to allow the entire village community to have the benefit of the oorani.

The said order dated 20.3.1967 was challenged by the pallivasal in W.P. No.812 of 1967 which was dismissed by the learned single judge

and the appeal by pallivasal was allowed by a Division Bench of this Court in its order dated 5.12.1972 setting aside the order of the Government

dated 20.3.1967 and restoring the Government''s earlier order u/s 18(4) of the Act dated 4.7.1964 After holding that the Board''s order dated

20.3.1967 cannot be supported, the Division Bench held thus:

That appears to be the ground on which the impugned order of the Government rested. The Government also thought that the order of the Board

of Revenue required revision at its had because the pallivasal was trying to exercise fishery rights in the oorani and the oorani was likely to be

inaccessible to other communities in the village, resulting in clashes between Muslims and Hindus. Therefore, the Government said it was desirable

to retain the oorani as a poramboke without recognising any preexisting rights and to allow the entire village community to have the benefit of the

oorani without any kind of restriction and modify the Board''s order. On that view it cancelled the Board''s order: Even on this, we consider that

hardly there was any justification for the Government to have upset the Board''s order. The Board merely stated that while the registry of the

survey number should be as poramboke, it should however be subject to rights, such as have been exercised in the past in respect of management

and user. The Board did not take upon itself to define what those rights were. It rightly left the matter to be decided by civil courts. We are of the

view therefore, that the Government''s order in question is erroneous as indicated

Subsequently, pallivasal approached the Board of Revenue claiming fishery rights u/s 20(1) of the Act. One Ramachandran representing the

Hindu Dharamasabai had objected to the claim and the Board after hearing the parties passed an order in B.P.rt. No. 750 dated 24.10.1973. The

Board confirmed its earlier order and held that its earlier order dated 4.7.1964 in BP/Miscellaneous/1226 will stand and that the petitioner''s

request to recognise the fishery right was left open to be decided by the Civil Court. Therefore, the classification of the land in the Revenue records

as poramboke was affirmed and it is significant to note that this order was also not questioned by the pallivasal.

The second defendant panchayat by a resolution dated 29.11.1973 in Resolution No.45, passed a resolution to take steps to remove the

karuvel trees grown inside the oorani resulting in the misusing of the place and causing insanitary condition and creating problems to the public.

Aggrieved by the same, the pallivasal filed W.P.Nos.6583 and 6584 of 1973 before this court for certiorari to quash the proceedings relating to

the resolution and for consequential writ of prohibition. G.Ramanujam, J. who heard the petitions by this order dated 7.2.1978 held that the

settlement proceedings which culminated in the Board''s order dated 4.7.1964 and the subsequent orders confirming the said order dated

4.7.1964 merely recognised the existing right of user; but it does not create any title to the land in the Pallivasal, for it specifically upholds the

classification of the land as Oorani poramboke. The learned Judge further held that the Oorani was admittedly classified as Oorani poramboke and

will consequently vest with the Panchayat. But if the pallivasal sought to assert title, it has to approach the Civil Court. With these observations the

learned Judge directed the Pallivasal to approach the Civil Court within three months after issuing statutory notices and that till the expiry of the said

period, the impugned resolution shall not be given effect to. The present suit came to be filed by the Pallivasal on 2.1.1979.

All the aforementioned proceedings have been marked in evidence in the suit and the reason why 1 have dealt with the outcome of the

Settlement proceedings in sufficient detail is to appreciate not only the scope of the present suit, but also to consider the rights of the Pallivasal in

the context of the provisions under the Act, which appear to have been completely ignored by the Courts below. In my opinion, both the Courts

have considered the claim of the Pallivasal as though they were dealing with a dispute between two private individuals instead of considering the

origin of Pallivasal''s right over the Oorani and also the effect of take over of the village under the Act and the specific orders passed by the Board

of Revenue on the petitions filed by the Pallivasal itself.

It is pertinent to note that it is not the case of the pallivasal that they are the owners of the Oorani by having established the same or having

acquired any proprietary right. On the other hand in the plaint itself it is clearly admitted that Ramnad Zamindari was the owner of the entire village.

This is followed by a vague and uncertain pleading that the Oorani and the other adjuncts must have been granted to the Pallivasal and that

therefore, applying the principles of ""lost grant"", the Pallivasal had become the sole owner of the Oorani. Such a self serving claim completely

overlooks the effect of the take over of Zamindari under the Act. Section 3(b) of the Act clearly states that the entire estate including even private

banks and Oorani and irrigation works, fisheries, ferries shall be transferred to the Government and vested with the Government free of all

encumbrance. Section 3(c) further elucidates that all the rights and interest created in or over the estate before the notified date by the principal or

any other land holder ""shall cease and determine as against the Government"". Therefore, even on the face of the pleading in the plaint which are

themselves based on assumptions and presumptions, whatever the terms under which the Zamindari had permitted the Pallivasal to use the Oorani,

the said rights were extinguished and vested with the Government with effect from the notified date namely, 7.9.1949. Therefore, it is futile to

invoke the principle, of lost grant'' and to claim that the Pallivasal had become the owner of the Oorani.

The issue of adverse title which has been held in favour of the plaintiff by the Courts below, is again a misconceived one. The Courts below in

having held the claim in favour of the Pallivasal, had totally ignored the pleadings of the Pallivasal and the legal effect of the take over of Zamindari.

Nowhere in the plaint is there a claim for adverse title. The mere statement that the Pallivasal had been in possession and enjoyment of the Oorani

for long number of years is not a plea of adverse possession to title, but only to establish the claim of pre-existing rights of the plaintiff. No adverse

title had been claimed as against the Zamindari or as against the Government assuming that it is open to the plaintiff to put forward such a plea. The

Courts below have not properly appreciated the contents of the plaintiffs pleading of Most grant'' which itself implies only a permissive holding and

the grant of a certain limited right and therefore, by no stretch of imagination the possession can become adverse to the Zamindari. The word ""lost

grant"" is defined in P.Ramanatha Iyer, Law Lexicon, Reprint Edition 1987, as follows:-

The fiction of a ""lost grant"" is merely a presumption, from the long possession and exercise of right by user of an casement of with the acquiescence

of the owner, that there must have been originally a grant to the claimant, which had been lost.

There cannot be any adverse claim against the Government also having regard to the fact that after the take over of the village, the Pallivasal itself

had been moving the Government on several occasions under the provisions of the Act 26 of 1948.

Even though the origin of the Oorani had not been positively established, the earliest reference to the same is found in the A Register and Olugu

account of the year 1836, in which Uppoorani is classified as Uppoorani poramboke. Even though the evidence of the Karnam that the Pallivasal

came to be established only in the year 1849 is disputed by the Pallivasal, even as per the pleadings and the evidence adduced by the plaintiff, the

earliest point of time that when the Pallivasal had anything to do with Uppoorani is of the year 1897. In fact, the trial court itself had only held that

the plaintiff was in enjoyment of the Oorani from 1897. There is also evidence to show that the entire village including the Oorani was being leased

out to different parties at different times by the Zamindar. Therefore, viewed from any angle, the attempt on the part of the Pallivasal to seek for

declaration that the Pallivasal was entitled to the Oorani is misconceived and the Court below holding that the Pallivasal had perfected their title

adversely, is wholly unsustainable and over reaches the very pleading of the Pallivasal. With reference to the contention that Oorani is registered as

a property belonging to the Pallivasal under Wakf Act, it has been rightly held as immaterial by G. Ramanujam, J. in W.P.Nos.6583 and 6584 of

1973. Therefore, having regard to the very pleadings of the Pallivasal and the evidence adduced by both sides, it is seen that the classification of

Uppoorani is rightly held as Uppoorani poramboke. After the take-over of the Zamindari, the rights of the Pallivasal are to be defined, worked out

and governed within the four corners of the provisions of the Act 26 of 1948. It is not as if the Pallivasal is not aware of their limited rights. It is the

Pallivasal which had moved the Government under various provisions of the Act ever since the take-over of Zamindari. Firstly, it was u/s 11(a)

seeking patta with reference to the land (Ex.A.29). Secondly Pallivasal moved the Government u/s 18(4) for a declaration that Survey No.249

consisting of the Oorani bathing ghats and small mosques and other buildings as appurtenances to the main Pallivasal, culminating in the Board''s

order dated 4.7.1964 (Ex.A.13) affirming the classification as Oorani poramboke subject to the rights as exercised in the past. A perusal of the

order in fact shows that the Pallivasal had expressed its acceptance for registering the Oorani as Oorani poramboke. In fact as stated earlier in the

subsequent proceedings, Pailivasal sought only to confirm and to stand by the order of the Board of Revenue dated 4.7.1964 as would be evident

from the judgment of this Court in W.A.No.286 of 1967. Thirdly, Pailivasal moved another application u/s 20(1) of the Act, claiming fishery right

(Ex.B.25).

Therefore, the mere circumstance of the Abiramam Panchayat passing the resolution No.45 dated 29.11.1973 cannot be a justification for the

pailivasal to assert title to the property or to challenge the classification of the oorani as oorani poramboke, totally ignoring all the aforesaid facts

and circumstances and the legal limitations. It is true that as the question of title was raised before Ramanujam J. in W.P. No. 6583 and 6584 of

1973 the learned Judge held that the pailivasal may move the Civil Court to agitate the question of title. I have also indicated earlier that it is always

open to the party to challenge the correctness of the classification of the land in the Revenue records. But it is for the plaintiff to plead and prove

the title and in this case for the aforesaid reasons I hold that the pallivasal''s declaratory prayer that it is entitled to the Oorani cannot be sustained.

The next question that arises for consideration is that if the pailivasal is not entitled for declaration as prayed for and that the classification of the

oorani has to remain as oorani poramboke, what are those rights and user to which the pailivasal would be entitled to. Here again, the rights of the

pailivasal have to be determined from two different aspects namely, (i) the right of the pailivasal vis-a-vis the Government and the panchayat and

(2) the rights of the pailivasal vis-a-vis the general public regarding the user of the oorani, by the non-muslim population in the village. It may be

immediately stated that the scope of the present suit is restricted only to the issue of the rights of the pailivasal as against the Government and the

panchayat only and does not deal with the second issue. The last two sentences of the order of the Board of Revenue dated 4.7.1964 already

quoted, may be requoted.

It will be sufficient if the registry as poramboke is subject to the rights such as have been exercised in the past in respect of management and user.

Any dispute in regard to this between the pailivasal authorities and others will naturally be resolved by Civil Courts.

While the first sentence deals with the claims against the Government, the second sentence deals with the pallivasal''s dispute with the others. But

even though the Board of Revenue left the second issue open to be decided by the Civil courts, the pailivasal for reasons best known to

themselves, had neither put forth a specific prayer in that context, nor had impleaded the objectors or the villagers as parties to the suit either by

impleading them individually or by invoking Order I, Rule 8 C.P.C . Rightly, no issue was also framed to the said effect. It is therefore, made clear

that the scope of the present suit does not relate to the inter se dispute between the pailivasal and the villagers and it is up to the pailivasal to pursue

its remedies in accordance with law so far as their claims against the villagers are concerned.

It remains to be seen as to what are the pre-existing rights of the pailivasal vis-a-vis the Government and the panchayat. I have already held

that the property had been effectively taken over under the provisions of the Act 26 of 1948 and had consequently vested with the Government

free of all encumbrances. Therefore, the existence of the rights of the pailivasal has to be examined only within the four corners of the provisions of

the Act. Such rights cannot exceed the rights which are conferred on the land holder or the occupier under the provisions of the Act,

notwithstanding the take-over of the estate, and the vesting of the estate with the Government free of all encumbrances. The pailivasal was fully

aware of their rights consequent on the take over of the estate and that is the reason why pallivasal itself had approached the Government on

various occasions as pointed out earlier. While disposing of the pallivasal''s application u/s 18 (4) of the Act the Board by its order dated 4.7.1964

confirmed the classification. This order was confirmed by a Division Bench of this court on the appeal filed by the pallivasal and as such the said

order dated 4.7.1964 shall be the basis for the determination of pallivasal''s rights. In the subsequent petition filed by the pallivasal u/s 20 claiming

fishery rights also, the Government affirmed its earlier view. In other words, what are those pre-existing rights were left to be decided by the Civil

Court.

The concurrent findings of the Courts below are that the pallivasal was in enjoyment of the Oorani from 1897 and was also exercising fishery

rights, The said finding has to be confirmed and held as a pronouncement on the pre-existing rights exercised by the pallivasal which would be

relevant for working out the extent of the right to be declared in favour of pallivasal, subject to the provisions of the Act 26 of 1948.

For the purpose of the present suit, which is restricted to the possession of the oorani and the fishery right, Section 20 is the appropriate

provision and Section 18 may be ignored as it deals only with buildings. A perusal of Section 20 shows that even though an occupier''s claim may

be sustained to have been exercising a particular pre-existing right which requires to be recognised, if in the opinion of the Government that in

public interest the exercise of such right by the claimant should be terminated, it may do so by giving three months notice as provided u/s 20(2),

Therefore, it has to be borne in mind that any right which is to be declared in this suit cannot be absolute, but subject to the rights of the

Government as contained in the Act and the orders passed by the Government from time to time under the Act. In G.O. Ms. 1108, Commercial

Taxes and Religious Endowments Department Dated 27.10.1980, the Government examined the rights of the religious institutions to obtain

ryotwari patta for ooranies. It was prohibited by virtue of Section 14-A of the Act inserted by Amendment Act 49 of 1974. The rights of such

institutions admitted into possession of a non-ryotwari land by the land owners, were examined in detail. It was decided that permission granted u/s

19 - A need not be reopened in respect of religious institutions. But certain conditions were imposed while permitting them to remain in possession.

After considering the various suggestions and objections, in the operative portion of the order the following three conditions were imposed:-

(i) The oorani should be thrown open to the public without let or hindrance.

(ii) The Government shall have reversionary right to the land and oorani when it ceases to serve the purpose of the oorani.

(iii) The oorani is to be maintained in good condition.

The above G.O. therefore recognises the right of the Government to resume the land or oorani in public interest as incorporated in the Act

itself. If even in the case of private tanks and ooranies such conditions have been prescribed, afortiori, it is needless to point out that in the present

case, where the oorani is a public one leased out by zamindar to the pallivasal, there is no question of granting a decree recognising any absolute or

perpetual right in the pallivasal.

Another issue which requires to be considered is the extent of control the panchayat can have over the property. With the take over of the

zamindari by the Government, the property had become vested with the Government free of all encumbrances. Therefore, as pointed out by

Ramanujam, J. in his order in W.P. Nos. 6583 and 6584 of 1973, the property was vested with the Panchayat u/s 84 of the Tamil Nadu

panchayats Act. But the panchayat cannot exercise better rights than what the Government itself is entitled to under the Act 26 of 1948. It follows

that the panchayat cannot interfere with the possession and enjoyment of the oorani and the exercise of the fishery rights by the pallivasal. But as a

local authority, the panchayat is competent to exercise its statutory powers and to discharge its duties as it would in respect of any lawful owner or

occupant of a property for the proper up keep of sanitary conditions by issuing such directions and the pallivasal would be bound by all such lawful

directions.

At the risk of repetition, it is again made clear that this suit and the decree thereon, will have nothing to do with the dispute of the pallivasal as

against the villagers inasmuch as no such relief was prayed for by the pallivasal nor any issue was framed for consideration.

In the result, the decree granted by the courts below holding that the pallivasal is entitled to the oorani, cannot be sustained, but only a limited

declaration can be given in terms of the conclusions recorded above. Considering that only a limited relief is to be granted with certain specific

conditions, a decree shall be passed in the following terms which shall be incorporated in the decree;-

There shall be a decree (a) declaring that the plaintiff/pallivasal is entitled to continue in possession and enjoyment and to exercise fishery rights in

the suit property, subject to the rights of the general public and subject to the rights, liabilities and limitations prescribed under the Tamil Nadu

Estates (Abolition and Conversion into Ryotwari) Act. 26 of 1948 and the orders issued by the Government from time to time under the said Act

(b) granting injunction restraining the defendants, their agents and employees from interfering with the enjoyment of the suit property by the plaintiff

but subject to the rights of the defendants to take such legal steps as may be necessary for the enforcement of their respective statutory duties and

functions.

In the result, the above Second Appeal is partly allowed. No costs.