AI Structured Summary
Not yet generated for this judgment
Judgment
V. Bakthavatsalu, J.—The first defendant is the appellant. The first respondent/plaintiff filed the suit for declaration and injunction.
The case of the plaintiff is as follows: One Periyanayagi Ammal wife of Muthukaruppa Pillai for herself and on behalf of her adopted son of
Sadasivam Pillai executed a mortgage in favour of Nallamuthan Chettiar for Rs. 6,000 under Registered deed dated 9.12.1942. The said
Nallamuthan Chettiar assigned the mortgage to Sembayi Achi. She filed the suit in O.S.No. 83 of 1960 and the suit properties were brought to
sale as per decree in the said suit. One Kathiresan purchased the properties in court auction in E.P.No. 2.68 of 1962 and sale certificate was
issued on 17.11.1962. He took delivery of the properties through court in E.A.No. 1080 of 1962 and delivery was duly recorded on 15.12.1962.
Diraviam Pillai purchased the suit properties for Rs. 5,000 from Kathiresan Chettiar under sale deed dated 11.5.1963 and he was also granted
patta in his name. The plaintiff purchased suit properties from Diraviam Pillai for Rs. 19,000 on 3.9.1980. It now transpires that due to want of
proper enquiry and mistake, the suit properties are alleged to have been declared as surplus land of Sadasivam Pillai. Diraviam Pillai learnt about
the mistake of having treated the proper-lies as the surplus land of Sadasivam Pillai through his daughter Vimala, when she showed the
communication dated 13.9.1979 from Special Officer and the order issued by the Authorised Officer dated 25.4.1979. Neither the plaintiff nor
Diraviam Pillai had any notice of any draft notification or final notification. Any such notification declaring the suit properties as surplus land of
Sadasivam Pillai who had lost all title would not bind Diraviam Pillai or the plaintiff. Any such statement could be rectified by deleting the suit
properties as surplus lands of Sadasivam Pillai. But, it was not done so. The plaintiff''s vendor issued a suit notice to the first defendant u/s 80,
C.P.C. on 21.11.1979. The first defendant did not issue reply. Since the first defendant declared the suit properties erroneously as surplus land of
the second defendant, the second defendant is added as a formal party. Therefore, the plaintiff has filed this suit for declaration of title to the suit
properties and for consequential injunction restraining the first defendant from taking any proceedings affecting the rights of the plaintiff.
The case of the first defendant is as follows:
The defendant is not concerned about the suit O.S.No. 83 of 1960 said to have been filed by Sambayee Achi. After commencement of Tamil
Nadu Land Reforms Act 58 of 1961, with a view to defeat the provisions of the Land Ceiling Act, in collusion with the landowner, the suit
O.S.No. 83 of 1960 has been filed. The allegation that Periyanayagi Ammal or Sadasivam Pillai had no right after 15.10.1962 when it was sold in
court auction is not relevant or material. The suit land was standing in the name of Kunjammal wife of the second defendant as on 6.4.1960. It was
treated as her ''stridhana property''. Sadasivam Pillai is a party attracted under the provisions of the Tamil Nadu Land Reforms Act. The second
defendant sold certain lands during the crucial period between 6.4.1960 and 2.10.1962. As the said transactions hit the provisions of Section 22
of the Act, an enquiry was initiated by the Authorised Officer, Land Reforms and orders were passed on 2.9.1965 declaring the sales as null and
void. A draft statement was published in the Gazette on 20.4.1966. The land owners namely Sadasivam Pillai and his wife and other persons filed
their objection and their objections were heard by the Authorised Officer and final orders were passed. Then, final statement u/s 12 of the Act was
prepared and the same was published in the Gazette on 26.4.1972. A notification u/s 18(1) of the Act was also approved by the Government
declaring an extent of 312.03 acres as surplus. Those surplus lands were taken possession on 5.4.1973 by the Government. The statutory
notifications were published in the village and other places as contemplated under the rules and the plaintiff or his predecessor in interest have not
put forth any objection. The second defendant did not prefer any appeal or revision as provided under the Act. In the enquiry, the claim of the
second defendant was rejected. The second defendant did not prefer any appeal or revision. The allegation that neither the plaintiff nor Diraviam
Pillai had any notice of draft notification is incorrect. According to Section 23 of the Act, any transfer whether by sale (including the sale in
execution of a decree or order of civil court) effected on or before the notified date shall not be taken into consideration by the Authorised Officer.
The civil court shall not have jurisdiction to decide or deal with any question which is required to be decided or dealt with by the competent
authorities under the Act. If the plaintiff is really aggrieved, he ought to have agitated the matter before the forum provided under the relevant
provisions of Land Ceiling Act. Hence, the suit is not maintainable.
On the above pleadings, the trial court has framed five issues. On a consideration of oral and documentary evidence, the trial court dismissed the
suit with costs. Aggrieved on the said judgment and decree, the plaintiff preferred an appeal in A.S.No. 8 of 1983. The learned Third Additional
Sub Judge, Madurai by judgment dated 31.8.1983 allowed the appeal and consequently, the suit was decreed with costs. Aggrieved on the said
judgment and decree, the first defendant/Government has come forward with this second appeal.
The following contentions are raised in this appeal.
The appellate court ought to have seen that the Authorised Officer while calculating the holdings of the second defendant can ignore the transaction
including the court sales if the transactions were taken place subsequent to the date of the notification. The appellate court ought to have seen that
the authorised officer has preferred draft and final statements only after giving full opportunities to the landholder. The aggrieved parties should file
a statutory appeal before the land tribunal u/s 78 of the Act within the relevant period. The appellate court ought to not have decreed the suit on
the ground that no notice was issued to the plaintiff or Diraviam Pillai. The appellate court has completely ignored the fact that the relevant Act for
the purpose of this case is only Act 58 of 1961 and not Act 17 of 1970.
The following substantial question of law was formulated while admitting this second appeal:
Whether the Authorised Officer can ignore the transaction of sale as it has taken place after the notified date, namely 2.10.1962?
The suit property an extent of 4 acres, 71 cents comprised in R.S.276/1 A is said to be mortgaged by Periyanayagi Ammal and her adopted
son in favour of Nallamuthan Chettiar who assigned the same in favour of Sembayi Achi. It is the case of the plaintiff that the mortgagee brought
the property for sale after obtaining decree in O.S.No. 83 of 1960. Ex.A-1 the same certificate will show that Kathiresan purchased the property
in court auction on 15.10.1962. Ex.A-2 the delivery receipt will show that the property was delivered to Kathiresan. The said Kathiresan under
sale deed Ex.A-3 dated 11.5.1963 sold the same in favour of one Diraviam Pillai for Rs. 5,000. The said Diraviam Pillai sold the same in favour of
plaintiff under sale deed Ex.A-5 dated 3.9.1980 for Rs. 19,000. It is the case of the plaintiff that by virtue of the above sale deed, he is entitled to
the suit properly.
It is admitted in that plaint that Diraviam Pillai came to know on 15.11.1979 that the suit property by mistake was treated as surplus land of
Sadasivam Pillai and that neither he nor Diraviam Pillai had any notice of any draft notification or final notification. It is the case of the plaintiff that
Sadasivam Pillai had lost his title and that therefore, the above notification will not bind Diraviam Pillai and the plaintiff. The plaintiff also issued
notice under Ex.A-6 to the Government requesting the Government to take suitable action for rectifying the mistake in the notification.
The defendant denies the right and title of the plaintiff to the suit property. It is alleged in the written statement that the second defendant sold the
property during the crucial period between 6.4.1960 and 2.10.1962 and that those transactions were hit under the provisions of Section 22 of the
Land Ceiling Act and that the draft notification was published on 20.4.1966 and that the final notification was published in the Government Gazette
on 14.3.1973. It is, further contended by the defendant that the civil court has no jurisdiction to entertain the suit, in view of bar u/s 107 of the Act.
The trial court has held that the Authorised Officer is not under obligation to take note of the alienation made during the crucial period and that
the alienation includes court sale and that the court auction took place after 6.4.1960 and that the aggrieved party did not file any appeal to land
tribunal and that therefore, the court has no jurisdiction to give a finding that the notification without issuing proper notice is not valid in law. But the
appellate court has taken a different view. The appellate court has held that the date of commencement of Tamil Nadu Land Reforms Act, 1961 is
15.2.1970 and that long prior to that date as early as 17.11.1962, the suit property had been sold to Kathiresan who in turn sold the same to
Diraviam Pillai on 11.5.1963 under Ex. A-3 and that therefore, the first defendant, the competent authority has no right to say that Ex.A-1 is a void
transaction and that Diraviam and Kathiresan were not served with any notice at all and that therefore, the plaintiff is entitled to declaration and
injunction.
It is seen that the defendant has not filed any documents relating to the commencement of draft notification and publication of final notification.
The defendant has not filed documents to prove that the aggrieved parties were issued with notice. The second defendant Sadasivam Pillai
remained exports. But the case of the defendant cannot be negatived for the simple reason that the document as relating to declaration of surplus
land and notification were not filed. As already stated, the plaintiff himself has admitted in the plaint that on 15.11.1979 his vendor came to know
that the suit lands are shown as surplus lands of Sadasivam Pillai. The defendant has not filed documents relating to publication of draft notification
and final notification. The averments in the written statement will show that the draft statement was published in the Gazette on 20.4.1966 and that
on its publication and service on the interested persons, the land owners namely Sadasivam Pillai and his wife filed objection and that their
objections were heard by the Authorised Officer and that the final statement u/s 12 of the Act was published on 26.4.1972. The fact that the
Authorised Officer initiated proceedings even before the amendment of Act is not seriously disputed. Therefore, the findings of the appellate court
that the date of commencement of the Land Reforms Act is 15.2.1970 and that, long before the commencement of the said Act, the properties
were sold in court auction cannot be accepted to"" be correct.
The original Act 58 of 1961 came into force on 6.4.1960. u/s 22 of the Act, if any person has transferred any land held by him by sale, gift,
exchange, surrender etc., after the date of commencement of that Act, but, before the notified date the authorised officer may after notice to such
person or other person affected by such transfer and after enquiry, declare the transfer or partition to be void, if he finds that the transfer or
partition defeated any of the provisions of this Act. Even under the old Act and Amended Act, the Authorised Officer shall not take into
consideration any transfer whether by sale including any execution of the decree or order of civil court or of award or by gift and any sub-division
effected after the notified date and before the date of publication of the final statement u/s 12 or 14 of the Act. Section 23 of the Act is very clear
that the authorised officer need not take into consideration the sale including the court sale effected during the crucial period. The crucial period is
between 6.4.1960 and 2.10.1962. The court sale took place after coming into force of the Act i.e., 6.4.60. Therefore, the authorised officer was
well within his right to ignore the above sale and proceed to initiate proceedings such as preparation of draft notification and enquiry u/s 22 of the
Act. It is, however, open to the Authorised Officer in the enquiry to declare that the said court sale is not valid for the reasons stated by him.
Section 22 of the Act declares that any transfer made during the crucial period is void, if the authorised officer finds that the transfer was made to
defeat the provisions of the Act.
Even admitting that the Authorised Officer is not competent to include the suit property as surplus land, since the sale certificate itself was
issued after. 2.10.1962, the civil court is not competent to decide the said question. Section 107 of the Act which was in force when the suit was
filed states that no civil court shall have jurisdiction to decide or deal with any question which is by or under this Act required to be decided or
dealt with by the Authorised Officer, Land Board, Land Commissioner and Land Tribunal. The Act provides remedy to the aggrieved party. Even
assuming that the notification was prepared without issuing notice to the affected parties, it is open to the aggrieved party to file petition before the
authorised officer to delete a particular piece of land from the notification. The appellate tribunal such as land tribunal is also empowered to decide
the question relating to title to the property. Without exhausting the said remedy, it is not open to the plaintiff to file this suit for declaration. As
already stated, the plaintiff himself requested the Government to rectify the mistake. When the Government filled to rectify the mistake, the remedy
of the plaintiff is only to initiate proceedings under the provisions of Land Reforms Act and not by separate suit. Section 107 of the Act bars the
civil court from deciding the question whether the plaintiff has got title to the property when the suit land was included and declared as surplus land
of Sadasivam Pillai. The operation of Section 107 of the Act was not properly considered by the appellate court.
It is contended by the appellant that no notice was issued to the aggrieved party and as such, the notification published by the first defendant is
not binding on the plaintiff. In support of the same, learned Counsel for the appellant relies upon certain decisions.
In S.G.D.F. Trust Estate v. State AIR 1976 Mad. 337, it is held that wherever a statute provides for service of notice, it is not a ritual, but it is
intended to draw the attention of the person Interested or concerned to the proceedings. It was contended in the above case that the management
trustee was not served with notice by the authorised officer. But, it is seen from the facts of the case that notice was served in the office of the trust.
It has been held that the managing trustee having appeared and objected that he had no notice, it is obvious that he had notice of the proceeding.
The above case arose under Article 226 of the Constitution. It is not doubt true that before publication of the draft notification, notice must be
served on the aggrieved party. There is no evidence to show that any notice was served on the plaintiff and his vendor. But the above facts alone
will not entitle the plaintiff to claim the relief in the civil court. As already stated, if the draft notification is defective or vitiated by any error, it is for
the aggrieved party to take appropriate proceedings under the provisions of the Act. It is open to the competent authority to delete a particular
item shown as surplus land from final notification. Therefore, the contention of the plaintiff that the publication of surplus land in the official gazette is
not binding on him has got to be rejected.
Even admitting but not conceding that the final notification and draft notification are detective and that the entries included therein are vitiated by
error, the said mistake and error can be rectified only by the authorities constituted under the Act. Hence, I hold that in view of bar u/s 107 of the
Act, the civil court has no jurisdiction to decide the question whether or not declaration made by the first defendant is binding on the plaintiff.
Learned Counsel for the appellant relies upon a decision reported in S. Naganatha Ayyar and Others Vs. The Authorised Officer and Others, .
It has been held in the above decision that even transfers made after the notified date which are likely to defeat the provisions of the Act have been
prohibited nor declared void and that the authorised officer is only authorised to declare the lands acquired by the transferee in excess of the ceiling
area as having been transferred to the Government under the transfer. It is seen from the facts of the above case that all the revisions were tiled
under the provisions of Tamil Nadu Land Reforms Ceiling Act, 1961, u/s 83 of Act 58 of 1961 the above revisions were filed. Section 83 of the
Act 58 of 1961 provides revision to High Court. The above case relates to revision tiled under Act 58 of 1961. The above decision will not assist
the case of the plaintiff in any way, since the plaintiff has come forward with a civil suit questioning the legality and validity of the notification issued
by the authorised officer. The appellate court has committed error in holding that long prior to the date i.e., 1 5.2.1970, the sale was held by the
court and that the plaintiff''s vendor purchased the property and that therefore, the above documents are valid documents. As already stated, the
proceedings of the authorised officer commenced even before the commencement of the amended Act of the year 1970. Therefore, it is for the
aggrieved party to take appropriate proceedings under the provisions of the Act to delete the entry relating to the suit property from the final
notification. It is also open to the plaintiff to contend before the competent authority that the court auction was not hit either u/s 22 or 23 of the Act.
It is not within the province of this Court to decide that the sales are valid in law. Thus, looked at from any angle, the civil court is not competent to
entertain the suit, in view of bar imposed u/s 107 of the Act. The decisions relied on by the appellant will not strengthen his plea that the plaintiff is
entitled to declaration, notwithstanding the fact that the suit land is included as surplus land of Sadasivam Pillai in the final notification. I hold that the
remedy of the plaintiff lies elsewhere and not before the civil court. For the reasons stated above, I hold that the judgment and decree of the
appellate court cannot be sustained. On the other hand, the judgment and decree rendered by the trial court have to be restored.
In the result, the second appeal is allowed. The judgment and decree passed by the appellate court are set aside. The judgment and decree
rendered by the trial court are restored I direct the parties to bear their costs throughout.