The Province of Madras vs Sri Vedaranyeswaraswami Devasthanam and Another

Raghava Rao, J.—This second appeal arises out of a suit by the Sri Vedaranyeswaraswami Devasthanam at Vedaranyam for a declaration

against the Province of Madras represented by the Collector of Tanjore as the first defendant that a portion of the Sannadhi Street in the village of

Vedaranyam had been wrongly assigned by the first defendant to the second and for recovery of possession of the street property from the second

defendant after removing the structures built upon it by him pursuant to the assignment. The plaintiff claimed to be the grantee of the entire village in

inam from a Tanjore King of old under a grant which has not been produced but which, as appears from the inam title deed, was confirmed by the

British Government in 1863. The plaintiff accordingly urged that the reversionary title to the street which was one dedicated to the public including

the villagers was all along vested in it.

The second defendant based his title on an assignment made to him by the first defendant after its conversion into ryotwari land as the result of

an order of the District Collector of Tanjore u/s 20-A of the Madras Estates Land Act, dated 31st July, 1944, which held that the street was one

which had existed from before the permanent settlement, that the reversionary right to it was really that of the Government and that the property

was no longer required for the purpose for which it had been originally intended and all along used. Both the defendants pleaded that the order of

the District Collector was correct and that in any case, there having been no appeal preferred by the plaintiff against the order in the manner

provided for in the sixth column of Part B of the schedule to the Act, the plaintiff was precluded from questioning its correctness by force of Sub-

sections (2) and (3) of Section 189 of the Act. There was also a question of res judicata raised by the defendants in their pleadings on the basis of

the decision of the District Court of Negapatam in A.S. No. 35 of 1940 confirmed by the High Court in C.R. P. No. 1506 of 1942 which related

to another plot in the suit village and in respect of which an order u/s 20-A of the Act similar to the one in the present case was passed by the

District Collector and upheld in appeal by the District Judge. The learned District Munsiff dismissed the suit, finding in favour of the defendants on

all the pleas taken by them in answer to the suit. The learned Subordinate Judge, in appeal, reversed the District Munsiff''s decision on all the

points. The first defendant accordingly appeals against the judgment and decree of the learned Subordinate Judge.

The questions which arose for determination in the Courts below and which the learned Government Pleader has argued here are of some

importance, although not of any great difficulty. After reserving decision and considering all the questions carefully I have come to the clear

conclusion that the appeal must fail.

The first contention of the learned Government Pleader is that the reversionary right in respect of the street poramboke in the said inam village

belonged to the Government. Whatever the arguability of the position taken up by him, on the authority of decisions like Narayanaswamy Naidu v.

Secretary of State for India (1912) 24 M.L.J. 36 and Venkatarama Sivan and Another Vs. The Secretary of State for India in Council, might have

been prior to the latest ruling of the Privy Council in the Secretary of State v. Krishna Rao (1945) 2 M.L.J.352 : L.R. 72 IndAp 211 : ILR (1946)

Mad. 225 (P.G.) the position is, in my opinion, altogether incapable of any serious argument in view of that decision in which, construing an inam

title deed like Ex. P-1 in the present case containing the words "" besides poramboke "", their Lordships held that the decision in Narayanaswamy

Naidu v. Secretary of State for India (1912) 24 M.L.J. 36. must be regarded as overruled by the Urlam case (1917) 33 M.L.J. 144 : L.R. 44

IndAp 166 : ILR 40 Mad. 886 (P.C.) The Privy Council case like the case in Narayanaswamy Naidu v. Secretary of State for India1 was

concerned, it is true, not with a street poramboke but with a river bed or channel poramboke used for the purpose of irrigation : but the passage at

pages 240 and 241 of the report of their Lordships'' judgment which I am quoting supplies, in my opinion, authority which concludes the present

case as well adversely to the appellant.

Since the decision of this Board in what usually called the Urlam case (1917) 33 M.L.J. 144 : L.R. 44 IndAp 166 : ILR 40 Mad. 886 (P.C.) there

can no longer be any question but that a grant of the proprietary interest includes the grantor''s rights in tank, river and channel poramboke, and it is

unnecessary to consider what effect, if any, such a grant has on what is called communal poramboke, such as burning grounds, threshing floors and

the like. In their Lordships'' opinion the judgment of the Madras High Court in Narayanaswamy Naidu v. Secretary of State for India (1912) 24

M.L.J. 36 where a contrary opinion was expressed, must be regarded as overruled to that extent, by the Urlam case (1917) 33 M.L.J. 144 : L.R.

44 IndAp 166 : ILR 40 Mad. 886 (P.C.). In the present case the High Court said : '' There is not the slightest indication, that any rights were

reserved by the Government except the right to collect Rs. 1,182 every year. Further, the expression '' besides poramboke'' was put in to indicate

that not merely the lands that were then cultivated, as dry, wet or garden were granted but also all the other rights which the grantor had, as is

pointed out by the Judicial Committee in the Swamigal case (1942) 2 M.L.J. 367 : L.R. 69 IndAp 22 : ILR (1942) Mad. 893 (P.C.) With this

their Lordships, agree, as they do with the rest of the High Court''s judgment.

In the present case, the Court is not concerned with any kind of communal porumboke as to which opinion was reserved by their Lordships but

with a street poramboke which, as Mr. Chandrasekhara Aiyar, J., in his unreported judgment in. C.R.P. No. 1506 of 1942, marked as Ex. D-2

seems to have been inclined to think and which I too am inclined to think is not communal land. The learned Judge''s, observation in the Civil

Revision Petition which has been extracted in paragraph. 18 of the Lower Appellate Court''s judgment and to which reference will be made by me

in another context hereafter in this judgment runs as follows:

The second point argued before me is that a road cannot be regarded as property set apart for any communal purpose as specified in Sub-clauses

(a) and (b) of Clause 16 of Section 3. Ordinarily speaking, a road is poramboke and not communal land as is the case with tank and channel beds

and bunds, threshing floors, cattle-stands and village sites. The villagers would no doubt use the road, but other people who are not residents of the

village might use the road as well. It is not communal property in the sense in which the other properties in Sub-clauses (a) and (b) are. There is

something to be said for this view, but here again the petitioner raised no such objection to the jurisdiction of the Collector to decide the question.

It seems to me that the learned Judge''s reference in this observation to tank and channel beds and bunds as communal poramboke is not in accord

either with the remarks of the Privy Council in The Secretary of State v. Krishna Rao (1945) 2 M.L.J. 352 : L.R. 72 IndAp 211 : ILR (1946)

Mad. 225 (P.C.) in which their Lordships advert to a possible distinction between tank, river and channel poramboke on the one hand and

commual poramboke such as burning grounds, threshing floors and the like on the other, or with the tenor of Section 3, Sub-section (16) of the

Madras Estates Land Act which from the definition of ""ryoti land "" separately excludes beds and bunds of tanks and of supply, drainage surplus or

irrigation channels in Clause (a) arid threshing floor, cattle-stands, village sites and other-lands situated in any estate which are set apart for the

common use of the villagers, in Clause (b). But that point apart, I have no hesitation in agreeing with the view prima facie accepted by the learned

Judge as sound that a road poramboke is not communal property. And if as to road poramboke or what is sometimes called in the Telugu part of

the Presidency as Puntha poramboke, the. law is clear in zamindari areas as laid down by Varadachariar, J., in Rajah Saheb Meharban-I-Dostan,

Sri Rajah Row Venkata Kumara, Mahipathi Surya Rao Bahadur Garu, Sardar Rajahmundry Sarcar and Maharaja of Pithapuram Vs. The

Chairman, Municipal Council, after a review of all prior decisions and a careful examination of principle with which I respectfully agree that the

right of reversion is in the landholder and not in the Government, there is no reason on principle why the same should not be the case in whole inam

village areas; nor can there be any doubt about the matter in view of the remarks of the Privy Council in The Secretary of State v. Krishna Rao

(1945) 2 M.L.J. 352 : L.R. 72 IndAp 211 : ILR (1946) Mad. 225 (P.C.), quoted above, which although made in connection with a case of river

bed or channel poramboke, as already observed by me, is equally conclusive of a case of street poramboke like the present. The first contention

of the learned Government Pleader must accordingly be repelled.

The learned Government Pleader''s second contention that the suit is barred by Section 189 of the Madras Estates Land Act might, at first sight,

seem sound; but must, in my opinion, go the same way as the first. The principles in the light of which the point falls to be decided are to be found

stated by the Privy Council, in a passage in the decision in Secretary of State for India v. Mask & Co.(1940) 2 M.L.J. 140 : L.R. 67 IndAp 222 :

ILR (1940) Mad. 599 (P.C.) which runs in these terms:

It is settled law that the exclusion of the jurisdiction of the civil Courts is not to be readily inferred but that such exclusion must either be explicitly

expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil Courts have jurisdiction to examine into cases

where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles

of judicial procedure.

Applying these principles it seems to me as clear as clear could be that if, as held by me already, the property is not one in respect of which

reversionary rights can vest in the Government, the District Collector had no jurisdiction to make the order of conversion into ryotwari land which

he did make u/s 20-A (b)(ii) of the Madras Estates Land Act. The case would then be one in which "" the provisions of the Act were not complied

with,"" in the language of Lord Thankerton in the Privy Council decision just referred to and the plaintiff would not stand confronted with any

effective bar in his way u/s 189 of the Act.

The third and last contention on behalf of the Government has in my judgment even less of merits than the other two. In the first place the

decision of the District Judge in A.S. No. 35 of 1940 relied upon as res judicata related to a different plot of land in the suit village. Further, the

view in revision expressed by Chandra sekhara Aiyar, J., in Ex. D-2 so far as it goes sounds rather in favour of the plaintiff, although his Lordship

refused to interfere in revision at that juncture. Moreover, as rightly held by the lower appellate Court in the present case on the authority of the

decisions in Varagunarama Pandia Chinnathambiar Vs. Rengasamy Naidu and Others, Adivikolanu Chakrapani Rao and Others Vs. Sri Rajah

Venkatadri Appa Rao Bahadur Zamindar, . The Raja of Sivaganga v. Venkatachalam Cketty (1934) 67 M.L.J. 268 and Ramaswamy Goundar

and Another Vs. Ramaswami Goundar and Others, the doctrine of res judicata can have-no application to decisions of revenue authorities on

questions'' of title, like orders u/s 20-A of the Madras Estates Land Act. All the points taken for the appellant failing, the second appeal fails and is

dismissed with costs of the first respondent.

(Leave to appeal is refused).