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Judgment
Ramachandra Iyer, the Chief Justice
Nagappa Servai who was the registered landholder of Nerpukapatti, an inam estate, coming within the provisions of the Madras Act XXVI of
1948 in Ramanathapuram District bad a business in Burma, where he had a second home. He had married thrice in this country and the
respondents to this appeal are his daughter and grand-daughters. While at Burma Nagappa Servai is stated to have married a fourth wife
(Meenakshi) and the appellant is the son born of that union. Nagappa left this country for good in the year 1930 and thereafter he lived in Burma
where he died in the year 1941. His properties in India were taken possession of by his wives who later transferred them in favour of the
respondents. They have been in possession of the properties till now. Nerpukapatti was taken over by the Government under Madras Act XXVI
of 1948. The respondents filed an application before the Assistant Settlement Officer for the grant of ryotwari patty under S 13 of the Act in
respect of 18 items of properties, claiming them as the private land of the landholder (R.P. No. 17 of 1956). That application was countered by
the appellant who filed an independent application, R.R. No. 13 of 1956 in respect of the very same items and 18 other items of properties
claiming that he as the preferential and lawful heir of the registered landholder, Nagappa Servai, was entitled to the patta. There was a dispute as to
the legitimacy of the appellant before the Assistant Settlement Officer and also at the stage of the appeal from his order before the Estates
Abolition Tribunal. That matter is now concluded by the finding of the Tribunal to the effect that the appellant was born to Nagappa through his
legally married wife. The Assistant settlement Officer rejected the claim of the appellant and allowed that of the respondents. On appeal to the
Tribunal, the appellant succeeded but that order was set aside by Rajagopala Aiyangar, J., on being moved under Art 226 of the Constitution by
the respondents to this appeal. The appellant contests the correctness of the judgment of the learned Judge in this appeal.
Certain facts are not now in dispute. Nagappa Servai was in possession of Nerpukapatti village till the time of his death in the year 1941. Such
possession, as the respondents had of the village during his lifetime, was only with his permission or licence. But there was no such permission
granted by the appellant, the legitimate son of Nagappa Servai, who had a preferential claim to the properties left by him. The respondents had no
title to the properties but they asserted a title to succeed to them. The appellant never took possession of the properties. On the other hand the
respondents who were in possession of the properties in derogation of the rights of the appellant claimed the same in their own right from the date
of the death of Nagappa. From these facts it is clear that there bad been dispossession of the appellant from the properties as and from the date of
death of his father and thereafter possession of those properties by the respondents was really adverse to that of the appellant. But before the
respondents could perfect their title by adverse ''possession against the lawful heir of Nagappa, the Government had taken over the village under
the provisions of Madras Act XXVI of 1948.
The question then is as to who would be entitled to the grant of patta in respect of the private lands in the village, whether it is the appellant who
had title to the properties to which he succeeded, or the respondents who were in continuous possession of the properties but who sad not
perfected their title to the same on the date when the estate was taken over by the Government. Rajagopala Aiyangar, J., was of opinion that
unless the appellant was able to bring his case within the terms of S. 64 of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948
he would not be entitled to the grant of ryotwari patta. 8. 64 states:
Where a person--
(a) is entitled to the ownership or to the possession or occupation of any land or building immediately before the notified date, but has transferred
his right to the possession or occupation thereof or has been temporarily dispossessed or deprived of his right to the occupation; and
(b) has not on that date lost his right to recover the possession or occupation of such land or building he shall, for the purpose of this Act and
subject to the provisions thereof, be deemed to be the owner, or to be in possession or occupation of such land or building;;
Provided that any lawful transferee of the right to the possession or occupation of such land or building shall, save as otherwise expressly provided
in this Act, continue to have the same rights against his transferor, as he had immediately before the notified date;
Provided further that any lawful transferee of the title to such land or building shall be entitled to all the rights under this Act or his transferor.
The yearned Judge has expressed the view that even if it were to be assumed that the appellant was entitled to the ownership of the lands
immediately before the notified date, he should prove that such ownership was protected under the terms of Sub-Cls. (a) and (b) of S. 64 of the
Act. In other words, the conditions to be satisfied are that the appellant must, have been temporarily dispossessed or deprived of his right to
occupation immediately before the notified date and that he should not have on that date, lost his right to recover possession or occupation of such
land. As the appellant had never been in possession of the properties since he succeeded to the same the learned Judge held it could not be said
that he was dispossessed by the respondents and, therefore, the provisions of S. 64 could not be invoked by him in his favour.
On behalf of the appellant, it is contended that the view taken by the learned Judge is incorrect. According to the learned Counsel appearing for
the appellant, on the notification being made under the Act, the entire property vests in the Government, and every person who was entitled to the
property on the date when it so vested in the Government, will be automatically entitled to the grant of ryotwari patta under S. 13 of the Act. To
put it differently, what is contended is that an application for the grant of patta under S. 13 should be determined with reference to that section and
not with reference to S. 64 which applies only to a case where possession has either been lawfully transferred or taken unauthorisedly by a third
party. In support of this contention reliance is placed on the decision of the Andhra High Court in Jagannadham v. Estates Abolition Tribunal
(1960) 1 An. W.R. 262, where it was hold that S 64 dealt only with preservation of the rights of a person who had been temporarily dispossessed
either by means of lawful transfer or otherwise, and that it could not be regarded as an exception to S. 13. In that case there was an application for
the grant of patta under S. 13 of the Act with respect to certain ryoti lands. Previously the applicant, landholder, had obtained a decree for
possession of those lands but the decree could not be executed. The land was found to be ryoti land. An application was, therefore, made under
S. 13 (iii). It was contended that although the landholder was not in possession of the land he should be regarded after the decree for possession in
his favour, as temporarily dispossessed; and patta should be granted to him by virtue of S. 64 of the Act. The learned Judges rejected the
contention holding that the claim to patta should be determined with reference to S. 13 which was in no way subservient to S. 64 and as the case
did not satisfy the requirements of S. 13 (b) (iii) and as the landholder failed to establish that the land was either abandoned or relinquished by the
ryot and was subsequently cultivated by the landholder himself, the application should fall.
We are unable to see how that decision can at all help the appellant in the present case. In that case claim did not come within the terms of S. 13
and the application for grant of patta was, therefore, rejected. In the present case, the matter is different. Admittedly the lands are private lands.
The only question is whether a person who had title but had no possession of the land on the date when he made an application for the grant of
patta will be entitled to such patta. S. 64 provides that a person entitled to the ownership or to the possession or occupation of any land but who
has temporarily been dispossessed would be entitled to the grant of patta. The wording of the section is Unfortunately neither happy nor clear. It is
difficult to understand what exactly the legislature meant, by the words ""temporarily dispossessed"". The section obviously applies to a case where
the applicant for patta has not been in possession of the land or the date of his application. The words ""temporarily dispossessed"" can hardly apply
to such a case.
It is, however, unnecessary for us to consider whether the view taken by Rajagopala Aiyangar, J., that there had been no temporary
dispossession in this case is correct or not, as in our opinion, the judgment of the learned Judge can be supported on another ground. S. 3 (a) and
(b) of the Abolition Act (XXVI of 1948) provide that on notification the entire estate shall stand transferred to the Government freed from
encumbrances and that the rights and interests created in or over the estate shall cease as and from that date. Sub-Cl. (a) to that section states that
no person shall be entitled to any rights or privileges except those recognised and conferred by the Act. The Act provides for payment of
compensation to the landholder for the taking over of the estate. Such compensation based on the rent collected by the zamindar or inamdar from
the ryots cannot be regarded as including compensation for pannai or private lands of the landholder. In respect of such lands the statute provides
only for the grant of ryotwari patta, to the landholder. Vide Ss. 13 to 15 of the Act. S.3 (d) which provides for taking over of the possession of the
estate by the Government states.
The Government may, after removing any obstruction that may be offered forthwith take possession of the estate, and all accounts, registers,
pattas, muchilikas, maps, plans and other documents relating to the estate which the Government may require for the administration thereof;
Provided that the Government shall not dispossess any person of any land in the estate in respect of which they consider that he is prima facie
entitled to a ryotwari patta;.............
(i).........
(ii) if such person is a landholder, pending the decision of the Settlement Officer and the Tribunal on appeal, if any to it as to whether he is actually
entitled to such patta;
Thus, there is a statutory right in the landholder to be in possession of private lands for which he would prima facie be entitled to be granted
patta. In Soosai Udayar v. Audiappa (1959) 11 M.L.J 195, one of the members of the present Bench held that notwithstanding the notification by
the Government under Act XXVI of 1948, a person who was dispossessed could maintain a suit for recovery of possession on the basis of his
possessory title alone against a trespasser (his title as owner having been lost by reason of it having vested in the Government). That view was
accepted by a Bench of this Court in Adakalathammal Vs. Chinnayyan Panipundar, . It would follow, that if the appellant were entitled to the
private lands as the preferential heir of Nagappa Servai, he could have maintained a suit for recovery of possession against the respondents
notwithstanding the fact that on the abolition of the estate, he ceased to have any title except to the extent granted under the Act. Thus the appellant
who should be deemed to have been dispossessed on the date of the death of his father by the respondents, could have maintained a suit for
possession till the date of taking over of the estate by the Government on the basis of his superior title and even after that date by reason of his right
to possession recognised under the Act. He did not, however, file any suit for recovery of possession of the land and it continued to be in the
occupation of the respondents. The consequence is that after the expiry of the period of 12 years from the date of dispossession, namely, the date
of the death of Nagappa, the appellant''s right to property became extinguished by virtue of S. 28 of the Limitation Act which says that at the
determination of the period limited to any person for instituting a suit for possession of any property his right to such property shall be extinguished.
There can be no doubt that on the facts of the present case Art. 142 of the Limitation Act would apply as there was a dispossession of the
appellant by the respondents. Notwithstanding the fact that the village was notified under the Abolition Act, the appellant could have sued on the
basis of dispossession but he failed to file any such suit within 12 years. His right to claim possession of the property would therefore stand
extinguished.
The question in the present case is not so much whether the respondents have acquired title to the properties by adverse possession before the
vesting date, but whether the appellant had not lost Ms rights to the properties by reason of the fact that he never got possession of the properties
within the statutory period. The circumstance that during a period of twelve years since his dispossession, the estate had vested in the Government
will be of no significance as the appellant could, nevertheless, have instituted a suit for possession basing his claim on his statutory right to
possession. We are, therefore, of the opinion that the appellant would not be entitled to a ryotari patta. The appeal fails and is dismissed. There will
be no order as to costs.