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Judgment
E. Padmanabhan, J.—The petitioners, who are brothers have filed this writ petition praying for the issue of Writ of Mandamus forbearing the respondents, their men, officers, subordinates or agents from in any manner proceeding against the petitioners in respect of their property, comprised in S. No. 23/1 of Athanacheri Village, Sriperumbudur Taluk to an extent of 6.62 acres as the same has been found to be that of the petitioners absolutely by the 4th respondent in his proceedings in Ne. Mu. Ka. 4410/88-B2 dated 9.10.1988. This Court ordered noticed to the respondents on 4.7.1997. The respondents have entered appearance through their Government Pleader. With the consent on either side the Writ Petition itself is taken up for final disposal.
According to the petitioners, the land comprised in Survey No. 23/1 Athanacheri Village, Sriperumbudur Taluk measuring 6.62 acres was purchased by their father under a registered sale deed dated 12.1.1954 from Raman and others. The land originally formed part of natham. After acquisition, the petitioner''s father converted the same into agricultural lands as the land is low lying and unfit for habitation. The petitioner''s father had sunk a well and obtained electricity service connection for motor pump set and had been cultivating the land. In the partition effected during the year 1974, the lands were allotted to the petitioners'' share. The petitioners are in joint possession and enjoyment of the entire extent of land as exclusive owners.
At the instance of certain third parties during the year 1988, it has been reported by the 4th respondent that the land exclusively belongs to the petitioners and that it is not a poromboke land. The 4th respondent has also submitted a report stating that the land purchased by Kannappa Mudaliar during the year 1954 is the exclusive properly of the petitioners and it is not a Government poromboke nor it is a land vested with the Government.
The petitioners occupation of the said land is in their own right and not that of an encroacher. The petitioner decided to sell the lands as they are in need of funds and they have arranged for plotting out the lands into 42 plots. While so, the 4th respondent had given a report to the Superintendent of Police, who had in turn forwarded the same to the District Crime Branch. Kancheepuram for necessary action. The Sub Inspector of Police. District Crime Branch had registered a crime for offence u/s 420, I.P.C. as it was alleged that the petitioner has sold a portion of the Government land to third parties.
The petitioners have to face difficulties and they were enlarged on bail. As there was an attempt to interfere with the peaceful possession and as the petitioner''s rights have been challenged and as the petitioners being harassed with the criminal proceedings, the present writ petition has been filed seeking relief of mandamus forbearing the respondents from in any manner interfering with the peaceful possession and enjoyment of the lands.
By suppressing material facts, the 4th respondent has lodged a complaint. The petitioners have to substantiate that it is their own land and the petitioners to substantiate their title and purchase of the land by their father and it is not as if that the petitioners have committed an offence punishable u/s 420 I.P.C. by sale of any portion of the land.
It is alleged that the 4th respondent alongwith other subordinates came to the land on 20.6.1997 and inspected the land. It was at that stage, when the petitioners were informed that the 4th respondent is going to take possession. In the circumstances, the present writ petition has been filed.
On behalf of the respondents, the 4th respondent has filed a counter affidavit. In the counter affidavit, it has been stated that Survey No. 23/1 is a Village Natham as per the Village accounts. During 1954, it was used as a residential area by the Harijans of Athanacheri Village. It is admitted the the petitioner''s father had acquired and was in enjoyment of 6.62 acres since 1954 on wards.
It is further stated that the said Kannappa Mudaliar had converted the land for cultivation and secured electricity service connection. After Kannappa Mudaliar. the petitioners had partitioned the said land in equal shares. It is alleged the the petitioners have by a deed of General Power of Attorney conferred power on K. Ganapathy to sell the land. The said Ganapathy had made 80 plots and sold 60 plots to Government servants to the tune of Rs. 8,92,350/-
It has been further stated that though the petitioners are the enjoyers of Survey No. 23/1 measuring 6.62 acres it is classified as village site which is vested with the government and that they have no right to sell the Government poromboke land. In that context, the respondents have lodged a police complaint for taking criminal action against the petitioners for offence u/s 420 I.P.C. for having sold the Government land.
It is admitted that since 1954 onwards, the village site has been converted as cultivable lands and they have made the cultivation. It is further stated that it is highly irregular as the village site which is intended only for residential purpose is being used for cultivation. It is admitted that the land is under the enjoyment of the petitioners since 1954.
The respondents further state that though the petitioners are occupants of the land they have no right to sell the Government land. It is alleged that the petitioners have been prosecuted for offence u/s 420 IPC. It is stated that the petitioners have been allowed to enjoy the land and plot it out for selling the same. It is further claimed that the petitioners are the enjoyers of the Government site and not title owners. It is alleged that the petitioners have made illegal sale of government land and thereby they have cheated the public.
It is further claimed that the land is a Government land and the Government has right to take possession of the property at any point of time and the enjoyers have no right to sell the Government properly.
Heard Mr. R. Gandhi, Senior Counsel appearing for the petitioner and Mrs. T. Kokilavani, Government Advocate appearing for the respondents.
It is vehemently contended by Mr. R. Gandhi, Senior Counsel that admittedly from 1954 onwards, the petitioners and their father had been in exclusive possession. Thus the admitted possession for over 43 years is more than sufficient to establish their right and title and absolute right has accrued to them. It is not the case of the respondent that the petitioners have been assessed to penal charges at any point of time nor the petitioners have paid penal charges for their occupation and hence the senior counsel contends that the respondents have acquired title by continuing possession and there cannot be a dispossession and there could be no criminal prosecution against the petitioner. The petitioner''s counsel further contended that the entire action of the respondents are nothing but misconception and they have no right to interfere with the peaceful possession of the petitioners.
On the other hand. Mrs. T. Kokilavani contended that the land is a village site and no right has accrued to the petitioners irrespective of long exclusive enjoyment by the petitioners and their father.
It has to be pointed cut that the respondents have admitted the exclusive possession of the petitioners and their father since 1954. It is not the case of the respondents that the petitioners were ever assessed to penal charges nor the petitioners have ever been issued B-Memo. Thus, it is obvious that the petitioners are in exclusive possession and enjoyment of the land without interference by the respondents or any other person. Such possession, it is admitted, is since 1954 onwards. As such from the counter affidavit, this Court holds that the petitioners have acquired a valid right to the land by their exclusive possession since 1954 onwards.
That apart, it has been admitted in the counter affidavit that the land is a village Natham. The village Natham is a land which never vested with the respondents and they have no right to it. Admittedly, when the land has been classified as village Natham, it is obvious that no portion of the land vests with the respondents. The admitted classification is village Natham and merely because the petitioners have converted the same into agricultural lands, no right could accrue to the respondents even after conversion.
It is further admitted that the petitioners have not only sunk well, but also secured electricity service connection to the Motor Pump installed therein. Admitted possession is fatal to the respondents'' claim.
Certain portion of the counter affidavit, which is relevant, where the rights of the petitioners have been admitted could be extracted for the purpose of convenience.
"2" I submit that the land in S. No. 23/1 measuring an extent of 23.43 acres is classified as Village Natham in Village accounts. Before 1954 it was used as residential area by the Harijans of Athanacheri Village. In that total extent of 23.43 acres, 6.62 acres were enjoyed by Tvl. Muniun. Raman, Natesan and Chellan. The above extent was sold by them to Thiru A.S. Kannappa Muclaliar who is the rather of the petitioners in the year 1954. He has converted the land far cultivable purpose and gel the electricity Service and cultivated the paddy etc. After his demise, his sons Tvl. A.K. Thillaivanan and A.K. Dayalan have partitioned the said land at equal shares of 3.31 acres each."
"From 1954, the village site has been converted as cultivable land and they have made the cultivation.�
"The abovesaid land is under enjoyment of the petitioners since 1954."
As seen from the portion extracted from the counter affidavit filed by the respondents, it is admitted that the land is a Gramanatham and it has been in exclusive possession of the petitioners and their father since 1954.
Being a gramanatham, it is obvious that the land in question had never vested with the Government. Section 2 of the Land Encroachment Act, 1905 excludes gramanatham owned as house site. As such the provisions of the Land Encroachment Act, 1905 cannot be invoked by the respondents in respect of the land in question.
It has been held as early as in Palani Ammal Vs. L. Sethurama Aiyangar, that gramanatham is not a communal property in the sense in which thrashing floor or burning grounds or other property is communal that is property reserved for the use of the community. Satyanarayan Rao. J. held thus:-
"Grama Natham a land in the occupation of the individual in possession of the gramanatham cannot be interfered and it could very well resist ejectment and also institute a suit in ejectment against the trespasser."
In S. Rengaraja Iyengar and Another Vs. Achikannu Ammal and Another, it has been held thus:-
"It is contended that in relation to buildings, specific provision is made u/s 18 of Act XXVI of 1948 and that, consequently, unless a house site can be brought within the ambit of Section 18, such house-site should be held to be property us to which title gets transferred to the Government u/s 3(b). Section 18 deals, in my opinion, with buildings wherever they may be situate, whether in the gramanatham or in ryoti lands or lanai lands or waste lands. Section 18 has no particular application to buildings or house sites in a gramanatham. A building in a gramanatham (or Village habitation) is protected from transfer of title to the Government both u/s 18(1) of Madras Act XXVI of 1948 and under the Madras Land Encroachment Act (III of 1905). The title to a house site in a gramanatham is protected from transfer to Government by the operation of Madras Act III of 1905.
It is not necessary that in order that the policy underlying Madras Act XXVI of 1948 be completely given effect to, house-sites belonging to private individuals (that is persons other than the land holder) in a gramanatham, should be transferred to the Government. It is not part of the policy of the Act to transfer to the Government, land in which the proprietor had no interest at any time. Further, transfer of tide of such house-sites to the Government would be virtually without payment of compensation because there would be no means of determining the part of the total compensation payable for the estate as a whole, which should be regarded as compensation paid for a few cents of house-sites in a hamlet of the village. Therefore, if there is any ambiguity in the Act, in relation to transfer of title as to a house site, such ambiguity should be resolved in favour of the owner, because no legislation should be held to be expropriator in character if such an inference could possibly be avoided. I hold that Section 3(b) of Madras Act XXVI of 1948 does not have the effect of transferring to the Government title to a house-site within a gramanatham belonging to a person other than the land holder when the estate in which the house, site is situate is taken over under a notification issued under the Act."
Gramanatham has been defined in the Law Lexicon as follows :-
"Ground set apart on which the house of a village may be built
See 16 M.L.T. 48"
Thus it is obvious, the admitted classification of the land being a gramanatham, the land was never vested with the respondents nor they could lake action under the Land Encroachment Act or any other enactment. The petitioners stale they have exclusive right, title, possession, since 1954 onwards. The respondents have no right to interfere with the peaceful possession and enjoyment of the land and their action in giving a complaint for alleged offence u/s 420 of the I.P.C. is total misconception.
Incidentally, the respondents in the counter have slated that it is a village site. Further, it is to be pointed out that even according to the respondent, it is a gramanatham and the respondents never had right nor the gramanatham had ever vested with the respondents. In the circumstances, the petitioner is entitled the relief of Mandamus as prayed for.
Normally, this Court should not have gone into the dispute of title or possession. But in the present case, in the counter affidavit filed by the respondents not only the classification as gramanatham but also the exclusive possession since 1954 has been admitted. As such the petitioners have prescribed title to the land and the same cannot be interfered by the respondents either under Land Encroachment Act or under the Tamil Nadu Public Premises (Eviction of Unauthorized Occupants) Act. In the circumstances, the Writ Petition is allowed with cost of Rs. 1000/- Consequently no order is required in W.M.P. No. 14923 of 1997.