The State of Madras vs Kasthuri Ammal and Others

Natarajan, J.—The second and the third defendants in O.S. No. 9 of 1965 on the file of the Court of the Subordinate Judge of Sivaganga

are the respective appellants in these two appeals and the memorandum of cross-objections has been preferred by the plaintiff therein.

The suit property, which the plaintiff conceded before the trial Court to be 14,534 sq. ft. in extent and not 16,800 sq. ft. as set out in the plaint,

was purchased by the plaintiff under two sale deeds, Exhibits A-9 and A-10. On the plaintiff being approached during September-October, 1959

by the President and the Executive Officer of the Sivaganga Panchayat, the first defendant in the suit, for parting with the site to enable the

panchayat to erect its water works thereon and on being promised proper compensation therefore as fixed by the Government, the plaintiff

delivered possession of the suit site in May-June, 1960 to the first defendant and the first defendant constructed its water works on the site by

December, 1961. When the plaintiff demanded the compensation amount, promised to her, the first defendant sent a reply stating that the Tahsildar

had declared the suit site to be a Government poromboke and that as such, the plaintiff was not entitled to any compensation. It was thereafter, the

plaintiff came forward with the suit for a declaration that she had title to the suit property and that she should be paid compensation for the site

taken over by the first defendant at the rate of Re. 1 per sq.ft.

Besides the first defendant, the plaintiff impleaded the State of Madras as the second defendant and the Sivaganga Municipality which has

succeeded the Sivaganga Panchayat, as the third defendant.

The defence set up by the first defendant and adopted by the third defendant was that the plaintiff and her prede-cessors-in-interest had no title

to the suit property, that the first defendant never admitted the ti(sic) of the plaintiff nor committed itself at any time to pay compensation for the

transfer of the site, that the site had been declared to be a poromboke site and that, in any event, the compensation claimed was excessive.

The second defendant raised the defence that a portion of the suit site formed part of Survey No. 48 and was a road poromboke, that the

remaining portion of the site forming part of Survey No. 74 was a natham poromboke, that Survey No. 48 had been taken ever under the Inam

Abolition Act XXVI of 1963, that Survey No. 74 is a T. D. Minor inam which vested with the State Government under the Minor Inams

(Abolition and Conversion into Ryotwari) Act XXX of 1963, that the plaintiff ought to agitate her remedies in the proper forum constituted under

the said Act, that the civil Court had no jurisdiction to entertain the suit and that, in any event, the compensation claimed was excessive.

On these pleadings, the learned Subordinate Judge framed the following issues for trial:

(1) Whether the plaintiff has title to the suit property?

(2) Whether the first defendant is estopped from denying the title of the plaintiff?

(3) What compensation is the plaintiff entitled to?

(4) Whether the suit is not maintainable because of the provisions of Madras Act XXVI of 1963 and Madras Act XXX of 1963?

(5) To what relief is the plaintiff entitled ?

After a careful consideration of the evidence adduced by the parties, the learned Subordinate judge held that the plaintiff had title to the suit

property, that the defendant was estopped from denying the title of the plaintiff, that the civil Court had jurisdiction to maintain the suit and that the

plaintiff was entitled to compensation for the site taken over from her. As regards the quantum of Compensation the learned Subordinate Judge

held that the rate of 25 paise per sq. ft. would be a reasonable one and consequently gave a decree for Rs. 3,633 together with interest and

proportionate costs.

The second and the third defendants have filed their respective appeals to assail the findings of the learned Subordinate Judge while the plaintiff

has filed the memorandum of cross-objections to claim enhanced compensation.

The three questions that fall for consideration before us in these proceedings are: (1) Whether the plaintiff had title to the suit property? (2)

Whether the civil Court had no jurisdiction to entertain the plaintiff''s suit? (3) Whether the plaintiff is entitled to enhanced compensation?

It is not in dispute that the suit site measuring 14,534 sq. ft. is comprised in two survey numbers, viz., S. No. 48 and S. No. 74. The site as well

as the land adjacent to it were originally owned by one Veluswami Thevar. The sons of Veluswami Thevar conveyed the suit site under Exhibit A-

6, dated 1st August, 1925 to one D. S. Srinivasa Iyengar and the latter, in turn, sold the same under Exhibit A-7, dated 14th February, 1930 to

one Palaniappa Chettiar. The plaintiff purchased the southern half of the site from Palaniappa Chettiar under Exhibit A-9, dated 25th October,

1956. The other extent of the site was purchased by the plaintiff from one Muthukaliammal under Exhibit A-10, dated 9th June, 1957, the said

Muthukaliammal herself having derived title to the same by means of a sale deed, Exhibit A-8, executed in her favour by Palaniappa Chettiar. The

considerations for Exhibits A-9 and A-10 are respectively Rs. 1,500 and Rs. 500, thus making the total cost of the suit site to be Rs. 2,000.

From the evidence adduced by the plaintiff in the case, it is incontrovertibly proved that P.W.8, the then President of the Sivaganga Panchayat,

with the assistance of P.W.1, a respectable mediator, induced the plaintiff to hand over the site to the first defendant on the assurance that the first

defendant would pay compensation for the suit site at the rate fixed by Government. The documentary and oral evidence, to which reference has

been made above, should normally be considered adequate to uphold the claim of the plaintiff. However, the contention of the defendants is that

such portion of the suit site as lies within Survey No. 48 is a road poromboke and such remaining portion of it as lies in Survey No. 74 is a natham

poromboke and that as such, the plaintiff is not entitled to any reliefs in the suit. Though the entire site is said to be comprised in poromboke land,

the grounds on which the plaintiff is sought to be non-suited in respect of each of the porombokes are different and we shall therefore deal with

those objections accordingly. So far as a portion of the suit site forming part of road poromboke in Survey No. 48 is concerned, the defendants

would contend that survey operations were conducted in 1919 and in such survey operations, S. No. 48 had been demarcated by the survey

authorities as a road poromboke. Except for expounding such a contention, the defendants have not placed any material before Court to show that

survey operations were conducted in 1919, that in such survey operations S. No. 48 was demarcated as road poromboke and furthermore, that

the then owner of the site was given notice of the demarcation effected by the survey authorities. Neither the publication effected by the survey

authorities of the proposed survey nor the order of Government publishing the result of the survey, nor the copy of any notice served on the then

owner of the suit site, has been filed before the trial Court. Without placing any of these clinching materials before the Court, the defendants would

place reliance upon Exhibit B-4 a sketch of Survey No. 43 in the Field Measurement Book and upon the evidence of D.W.3, the village karnam to

contend that survey operations were duly effected in 1919 and that Survey No. 48 was demarcated as road poromboke during such operations.

D.W.3 has no personal knowledge of the survey operations and his evidence, therefore, cannot carry any weight. In the absence of more clinching

materials, to which reference has been made above, Exhibit B-4 which is nothing more than a sketch of Survey No. 48 in the Field Measurement

Book cannot form the basis for a judicial verdict in favour of the defendants regarding Survey No. 48. Even assuming for argument''s sake that

survey operations were conducted in 1919 and those operations resulted in Survey No. 48 being labelled road poromboke, such actions cannot

affect the plaintiff in any manner unless the defendants establish that the predecessor-in-interest of the plaintiff was given due notice of the result of

the survey and the latter acquiesced in the correctness of the operations. In V.M.S. Kandasamy Nadar Vs. The Province of Madras and Another,

. this Court has categorically stated that a party concerned by an adverse survey, to whom no notice was given of the survey, is not bound to file a

suit within three years to set aside the order of the Survey Officer because he had no notice of the survey and the orders on it cannot be said to be

correctly passed u/s 13 of the Madras Survey and Boundaries Act and binding on that party. On these grounds themselves, the defendants'' case

that the plaintiff cannot claim title to that portion of the suit site which is comprised in Survey No. 48 should fail. Additional evidence, however, is

not wanting in this case to further militate the case of the defendants. As early as in 1925, there was litigation between the Union Board of

Sivaganga on the one hand and the owners of the areas adjoining the suit site on the other on the question as to whether Survey No. 48 formed

part of road poromboke. The proceedings which culminated in S.A. Nos. 204, 277 and 278 of 1929 in this Court went against the contention of

the Union Board of Sivaganga, the then local body functioning at Sivaganga, that the suit locality formed part of road poromboke. There is, thus,

abundant material in the case to dispel the defence contention that the plaintiff could not have validly owned that portion of the suit site which is

referable to Survey No. 48. The learned Additional Government Pleader placed reliance upon Section 2 (1) of the Tamil Nadu Land

Encroachment Act (III of 1905) to contend that all public roads, streets, lanes and paths etc. have been declared under the said Act to be the

property of Government and that as such, the contention of the defendants regarding Survey No. 48 should be upheld. This argument, in our

opinion, .merely begs the question. As we have stated earlier ,unless the second defendant places reliable and acceptable materials before the

Court to warrant the inference that survey operations in observance of all rules and regulations were effected during 1919 and that such operations

had binding force on the predecessors-in interest of the plaintiff, the defendant cannot have recourse to and avail the provisions of Act III of 1905.

That takes us on to the contentions of the defendants regarding that portion of the suit site which is comprised in Survey No. 84. As Survey

No. 74 is a natham poromboke and has been declared as minor inam, the defendants contend that the land had vested with the Government under

Act XXX of 1963 and as such, the plaintiff can seek her remedies if any available to her, only in the forums constituted under the said Act. Section

3 (b) of the Madras Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 (hereinafter referred to as the Act) lays down that with

effect on and from the appointed day and save as otherwise expressly provided in the Act, every minor inam including all communal lands and

porombokes, waste lands, etc. shall stand transferred to the Government and vest in them free of all encumbrances. The argument, therefore, is

that the trial Court ought not to have entertained the suit, but should have directed the plaintiff to seek her remedies through the machinery provided

under the Act. To lend weight to this argument, the learned Additional Government Pleader places reliance on the pronouncement of this Court in

The State of Madras Vs. Kamakshia Pillai and Others, . That was a case where certain ryots claimed fishery rights in a tank situated in the zamin

village of Kulamangalam and which village was notified and taken over under Madras Act XXVI of 1948. They based their action upon customary

right and also on acquisition of the right by purchase in public auction held by the Official Receiver. The contention of the ryots therein was that

Sections 11 to 15 of Act XXVI of 1948 which provided for ryots and landholders applying for grant of pattas, did not make any provision for an

application being made for a patta for their fishery rights: and since the rights they claimed were not the creation of the land-holder, they cannot get

any benefit by way of compensation or otherwise under the provisions of Act XXVI of 1948, and that as such, their case must be held to fall under

the Madras Land Encroachment Act (III of 1905) which recognised customary rights and that, therefore, the civil Court was competent to

maintain their suit and recognise and declare their rights. The Bench of this Court held that the declaration under Act III of 1905 was not a vesting

declaration, but only a property declaration and that as such, the Act had already exhausted itself in its scope and application as to the character of

the lands when once the declaration was made and all lands barring the excepted lands had become vested in the Government. The Bench further

held that the estate of Kulajnangalam vested in the Government only on and from the notified date under Act XXVI of 1948, that the application of

Act III of 1905 to the said estate will commence only after the estate had vested in the Government and that as such, the plaintiffs therein cannot

be heard to say that their customary fishing rights, the like of which have been exempted from the property declaration contained in Section 2 (1)

of Act III of 1905, were capable of recognition even before the estate had vested in the Government and were available for enforcement after the

estate had been notified under Act XXVI of 1948 and taken over. It was in these circumstances, the Bench held that the customary rights claimed

by the plaintiffs was divestitive so far as the landlord is concerned and investitive so far as the ryots are concerned, that the entire estate including

the customary fishery rights claimed by the plaintiff vested in the Government by reason of Section 3 (b) of Act XXVI of 1948 and that as such,

the aggrieved plaintiffs should resort to the same remedies as are open to the ryotwari ryot under Act XXVI of 1948. We are clearly of opinion

that the ratio decidenti of that case cannot have any application to the facts of the present case. Before proceeding to give our reasons for our

conclusion in this behalf, we wish to advert to another factor which will repel the application of the provisions of Act XXX of 1963 to the suit

property and the plaintiff''s action for (enforcement of her rights.

As we have stated earlier, the plain-tiff, in deference to the request of the President of the Panchayat, handed over the suit site to the first

defendant in 1960 itself and the uncontroverted evidence is that the first defendant also installed its water-works on the suit-site before the end of

1961. Act XXX of 1963 received the assent of the President only on 28th January, 1964 and came into force still later. Such being the case, there

is hardly any force in the contention of the defendants that the minor inam comprised in Survey No. 74 vested in the Government by reason of Act

XXX of 1963 and as such, the plaintiff should seek her remedies only through the machinery provided under the Act. Under the provisions of the

Act, the plaintiff can only ask for the grant of a ryotwari patta in respect of the suit site. When the plaintiff had parted with the possession of the site

and the first defendant had also built its water works, thereon, we are unable to understand the logic of the contention of the second defendant that

the plaintiff should seek her remedies only through the forums provided under the Act. From the moment the plaintiff delivered the suit site to the

first defendant for the construction of its water-works, the plaintiff became entitled to get compensation for the suit-site. It is not, and it can never

be, the contention of the second defendant that this right of the plaintiff, viz., to recover compensation, also vested in the Government on the

introduction of Act XXX of 1963. It is needless to say that the rights of parties have got to be determined as on the date the cause of action arose,

and viewed in that perspective, the supervening event, viz., the introduction of Act XXX of 1963, cannot abridge or modify the right of the plaintiff

as against the first defendant. Be that as it may, even assuming that Act XXX of 1963 must be held to have enmeshed the anterior rights of the

plain tiff, the question for consideration is whether the plaintiff is not entitled to maintain her action for compensation and whether the civil Court is

not entitled to maintain the action.

Inasmuch as Survey No. 74 is a natham poromboke, such portion of the suit site which is comprised therein must be held to be a house-site

and the possession of which the plaintiff is entitled to cling to and resist all invasion. Such a right of the plaintiff can never be held to have been

extinguished or curtailed by reason of Act XXX of 1963. It must also be stated with equal force that any interference or invasion with the said right

of the plaintiff is always challengeable in appropriate proceedings before the civil Court. A cafe similar to the one on hand arose under Act XXVI

of 1948, viz., S. Rengaraja Iyengar and Another Vs. Achikannu Ammal and Another, . and Subramanyam, J. decided the case thus: In order that

a land may properly be described as house-site within the meaning of Section 2 of the Madras Land Encroachment Act, 1905, it is not necessary

that there should be a residential building actually constructed and standing on the site. Lands which are within the limits of the gramanatham and on

which buildings or sheds may be put up when necessary should also be house-sites within the meaning of the section whether such buildings are

constructed or not ....The provisions as to vesting of lands u/s 3 (b) of the Act (XXVI of 1948) should be read so as to be in conformance with the

provisions regarding the applicability of the enactments relating to ryotwari areas. House-sites in gramanatham, therefore, could not stand verted in

the Government u/s 3 (b) of the Estates Abolition Act."" We are of opinion that this decision states the correct position of law and that what

(applies to house-sites in gramanatham in ''estates taken over under Act XXVI of 1948 should mutatis mutandis apply to minor inams taken over

under Act XXX of 1963.

We may also usefully refer to some other decisions which hold that the statutory machinery provided under Act XXVI of 1948 or Act XXX of

1963 as the case may be can have jurisdiction only in respect of those matters, such as the grant of ryotwari patta, provided under the Act and that

such machinery, being the creatures of the statutes, cannot deal with a civil right, the determination of which can be done only by a civil Court. In

State of Madras v. Umayal Achi and Ors. L.P.A. No. 106 of 1959., it was held that the civil Court had jurisdiction to entertain the suit for a mere

injunction restraining the Government from arbitrarily and oppressively applying the provisions of the Land Encroachment Act to persons like the

plaintiff who have been in occupation of lands in a notified estate even prior to the date of the notification. In The State of Madras v. Parisutha

Nadar (1961) 2 M.L.J. 285. it has been held that it is not open to the Government in the course of the proceedings to put forward its own title

property sought to be acquired so as to defeat the rights of the persons entitled to the compensation. In The State of Madras Vs.

Ramalingaswamigal Madam, represented by N.S.K. Paramasiva Thevar and Others, , a Bench of this Court held as follows: ""It is clear from the

provisions of the Act (XXVI of 1948) that what really vests in the Government in respect of a ryoti or private land is merely title and there is no

vesting of possession, which is protected under the proviso to Section 3 (d) of the Act. So long as the possession of the land continues to vest in

the ryot, he would be entitled to protect his rights in respect of the same by resorting to civil Courts."" Though there is a long catena of decisions in

this behalf, we have adverted to a few only as it is unnecessary to make reference to all of them in view of the fact that the law is now well settled

that the statutory machinery created by either Act XXVI of 1948 or Act XXX of 1963 can exercise jurisdiction only in respect of those matters

which are specified in the enactments and cannot pervade the field of civil litigation which is exclusively that of the civil Court. The learned

Additional Government Pleader invited our attention to a Bench decision of this Court in In Re: Raja of Vizianagaram, . which, according to him,

has a bearing on the case. A scrutiny of the judgment, however reveals that the ratio decidenti in that case has no application whatever to the

controversy raised for decision in the appeal. In the abovesaid case, the Raja of Vizianagaram contended that certain house-sites, though forming

part of the estate of Vizianagaram, must be held to be sites given free to the zamindar without any additional assessment and that therefore, the

vacant sites must be held to fall outside the scope of the permanent settlement. Rajamannar, C.J., and Venkatarama Aiyar, J. (as he then was), if

we may say so with great respect, rightly held that the contention was fallacious because what passed to the zamindar under the sanad was not

confused to the lands on which peshkush was calculated and that the fact that in 1802 no income accrued to the zamindar in the house-sites did not

really affect the question. It is also significant to note that the Bench, notwithstanding such a pronouncement held, that ""the right of the Government

to take over the house-sites also along with the estate was however, subject to the claim of the zamindar, if any, u/s 12 and similar provisions of

Act XXVI of 1948 to be granted ryotwari pattas.

The facts of this case which have already been expatiated by us have reference to a house-site owned by a person who is not an estate-holder

and the owner of the site, apart from being entitled to the grant of a patta, is equally conferred by law a right to defend his possession and

enjoyment. If, instead of her action for compensation, the plaintiff were to sue for an injunction based on her right of possession, her right to

maintain the civil action can never be questioned. In like manner, when the plaintiff sues for compensation for the deprivation of the possession of

her land, she is, in no way, worse off than when maintaining her action for retention of possession. Therefore, the second contention of the

defendants to non-suit the plaintiff is a futile one and has therefore been rightly rejected by the trial Court. Consequently, the first defendant, now

suceeded by the third defendant, cannot escape its liability to pay compensation to the plaintiff for the suit site, and the appeals by the second and

the third defendants have therefore to fail.

Turning our attention to the memorandum of cross-objections, the plaintiff feels aggrieved that as against her claim for compensation at the rate

of Re. 1 per square foot the learned Subordinate Judge has granted only 24 paise per square foot. To give an estimate of the prevailing market

value of lands in the locality of the suit site, the plaintiff has exhibited three sale deeds, viz., Exhibits A-1, A-2 and A-31. An appraisal of the

transactions covered by these three documents goes to show that on account of the special location of those properties the sales have been

effected at fancy rates and that those rates cannot reflect the prevailing market price of lands in and around the suit site when the plaintiff parted

with possession of her land. The learned Subordinate Judge was, therefore, justified in declining to place reliance on the documents relied on by the

plaintiff to arrive at the value of compensation awardable to the plaintiff. The defendants have, in their turn, filed another sale deed, Exhibit B-1,

which relates to the sale of a house-site in the same street where the suit property is situate. Deducting a sum of Rs. 300 for the basement existing

on the land, the learned Subordinate Judge has construed Exhibit B-1 to reflect a sale transaction of 2,914 sq. ft. for a sum of Rs. 700 . Mr. P.

Balasubramaniam, learned Counsel for the plaintiff, contends that the learned Subordinate Judge has failed to take into consideration a sum of Rs.

750 which had been spent by the vendee under Exhibit B-1 to level the site and that as such, the cost of the site conveyed under Exhibit B-1 must

be valued at Rs. 700 plus Rs. 750, i.e. Rs. 1,450. D.W.1, who is the vendee under Exhibit B-1 has, stated that he bought the property for Rs.

1,000, that he valued the basement and the wall on the site at Rs. 300, that after purchasing the site he levelled it with about 600 cartloads of earth

and that one cartload of earth would cost Rs. 1-4-0. As such, the sale deed on which the defendants placed reliance to determine the value of

compensation for the suit site makes it appear that the site measuring 2,914 sq. ft. had cost its vendee Rs. 1,450 (Rs. 700 + Rs. 750), which

works out to nearly 50 paise per square foot. Therefore, the premise of the learned Subordinate Judge that the site purchased under Exhibit B-1

cost only 22 paise per square foot is wrong and unsustainable. Taking into consideration the fact that a portion of the suit site is near the oorani and

therefore vulnerable for water-logging during rainy season we are of opinion that the plaintiff cannot be granted compensation for the suit site at the

rate of 50 paise per square foot. On a consideration of the report of the Commissioner about the location of the suit site, we are of opinion that a

compensation at the rate of 40 paise per square foot would he a just and reasonable compensation to be awarded to the plaintiff. We therefore

revise the compensation of Rs. 3,633 granted to the plaintiff by the trial Court to a sum of Rs. 5,813-60 at the rate of 40 paise per sq. ft.

Consequently, the interest which the trial Court has awarded to the plaintiff at the rate of 6 per cent, per annum From the date of demand under

Exhibit A-34 will also stand revised. The plaintiff will be entitled to interest on the amount of compensation awarded till the date of realisation and

proportionate costs in the suit. To the extent the compensation amount is revised, the memorandum of cross-objections will stand allowed.

In the result, both the appeals will stand dismissed without costs. The memorandum of cross-objections will stand partly allowed with

proportionate costs.