The State of Madras vs Karupplah Ambalam

Ramachandra Iyer, J.—This appeal arises out of the decree and judgment in A.S. No. 92 of 1955 on the file of the Subordinate Judge''s

Court, Devakottai, confirming those of the District Munsif of Sivaganga in O.S. No. 36 of 1954. The defendant, the State of Madras, represented

by the Collector of Ramanathapuram, is the appellant herein. The suit out of which this second appeal arises was filed under S. 14 of the Madras

Surveys and Boundaries Act. The respondent is a ryot of Sudaikanendal village an under tenure dharmasanam village in the Sivaganga Taluk. That

village was taken over by the State by a notification issued under the Madras Act XXVI of 1948. The village was unsurveyed and with a view to

facilitate the introduction of ryotwari settlement, a survey of the estate was directed. In that survey the plot ABC C-2, C. 3 L M N O G A J K in

the plan Ex. A-l between the tank known as Pudukanmoi and the respondent''s property, was classified as tank bed and was given the same

number as the tank namely S. No. 166. The contiguous land on the north and east of the property which was admittedly in the possession of the

respondent was mentioned as S. No. 167 and belonging to him. The case for the respondent was that the plot A. B-C, C. 2, C. 3, L. M. N. O. G.

A. J. K, was not part of the tank bed but part of his patta land. He, therefore, filed a petition to the Survey Officer in regard to the demarcation of

the boundary between S. Nos. 167 and 166 claiming that S. No. 166 could not properly include the disputed plot which according to him was in

his enjoyment from the time of his ancestors. The survey officer rejected his claim and that was affirmed by the Assistant Director of Survey and

Land records. Thereupon the plaintiff filed a suit out of which the present second appeal arises to set aside the order of the Survey Authorities after

declaring that the suit land formed part of his property. The appellant contested the suit. According to it the disputed plot was a portion of the tank,

poromboke and that as such its survey was correct and it also stated that the plaintiff who would be entitled to 13 kurukams or 7-28 acres had

more than the extent in S. No. 167 which measured 7.98 acres. The learned District Munsif held that the suit property was part and parcel of the

respondent''s property having been in his enjoyment from the time of his ancestors for more than the statutory period and that the survey of the land

as part of the tank poromboke was wrong. In that view the suit was decreed as prayed for; on appeal the learned Subordinate Judge came to the

same conclusion. The State has filed the present second appeal against the decision of the lower appellate Court. The substantial question for

decision in the present appeal is whether an erstwhile ryot or landholder who has not yet obtained patta has got a right of suit under S. 14 of the

Madras Surveys and Boundaries Act, 1923. Sudaikanendal village in which the suit property is situate was an unsurveyed estate in respect of

which a notification under S. 3 of the Madras Act XXVI of 1948 which I shall refer hereafter as the Abolition Act, was issued. The effect of that

notification is to vest the entire estate in the Government freed from all encumbrance. The object of the Act was to abolish the zamindari and inam

estates and to introduce ryotwari settlement. That purpose was achieved by taking over the entire estate freed from all encumbrances and granting

ryotwari patta to the ryot, landholder of an estate or under tenure, or the holder of a service tenure as the case may be in accordance with the

provisions of Ss. 14 to 17 , of the Act. Thereafter the pattadar held the land under his patta as a proprietor directly paying to the Government such

assessment as may lawfully be imposed on the land. Therefore after the estate vested in the Government the only right of the landholder, under

tenure holder or the ryot was to obtain patta. But the statute, however, provided that possession of ryoti lands and private lands should continue as

before S. 3 (d) of the Act 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 after 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) if such person is a ryot pending the decision of the Settlement Officer as to whether he is actually entitled to such patta;

(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.

This provision does not in any way derogate the absolute vesting of the title in the Government or create any title in the person in possession of

the property. S. 3 (d) proviso implies that it was for the Settlement Officer to decide whether a ryot or landlord would be entitled to a patta. S. 15

directs the Settlement Officer to examine the nature and history of all lands in respect of which the landholder claims pattas to decide as to or for

what lands patta should be given to him. There is no provision for deciding the character of the lands which is claimed to be ryoti lands as it is

evidently presumed that every cultivable land is ryoti land. But S. 3 (d) proviso would seem to contemplate a decision by the Settlement Officer as

to whether a person in possession would be entitled to patta which would include a determination whether a land was ryoti land or not. Rules have

been framed under S. 67 of the Act to regulate the granting of pattas by a Government Notification dated 2nd March 1955. S. 65 of the Act states

that no suit or other proceeding shall lie against the Government for any Act done or purported to be done under this Act or any rule made there

under. Where there is a dispute as to who the lawful ryot is in respect of a holding such dispute should be decided by the Settlement Officer under

the provisions of S. 56 of the Act. Any person deeming himself aggrieved by any decision of the Settlement Officer has got a right of appeal to the

Tribunal. It is therefore clear that in respect of lands in a village taken over by the Government under the Abolition Act there is no ownership by

any private individual till that person obtains ryotwari patta from the Government.

For the purpose of effectuating the provisions of the Abolition Act and introducing ryotwari settlement in the village it would be necessary to

have a survey of the land and settlement thereof S. 21 (1) of the Act provides for the survey of the estates taken over. It says:

Any estate or part thereof may be surveyed or if it has been surveyed before the no titled date, may be resurveyed as if it were Government land,

in accordance with the provisions for the survey of such land contained in the Madras Surveys and Boundaries Act, 1923, provided that any

resurvey made under this sub-section may be limited to what is necessary for the introduction of the ryotwari settlement in the estate or part

thereof.

S. 22 relates to the manner of effecting ryotwari settlement of the estates and prescribes that the Settlement Officer shall effect ryotwari

settlement of the estate in accordance with the settlement notification framed and published by the Government for the purpose. S. 22 (4) states:

Neither the Settlement notification nor any order passed in pursuance thereof shall be liable to be questioned in any Court of law.

The manner in which the ryotwari assessment is made is contained in the Board''s Standing Orders and an account thereof can be found at page

168 of Soundararaja Iyengar''s Book on Land Tenures. From the foregoing provisions it is clear that the object of the survey is to facilitate or

prepare for the ryotwari settlement and the granting of pattas. Measurement and classification of the lands would be necessary for the purpose.

There would however be no need to determine boundaries and decide disputes relating thereto as all the lands belong to the Government by virtue

of S. 3 and there could be no outstanding title in any other person in any land for such a dispute to arise. It would, therefore, seem that the

provisions of S. 14 of the Madras Surveys and Boundaries Act, 1923 would not be necessary in a case of survey directed under S. 21 of the

Abolition Act. The contention on behalf of the respondent is that S. 3 (d) of the Act protects the right of possession of a ryot and also guarantees

patta in respect of the properties of which he is in possession. It is further contended that if the boundary of the property in his possession is fixed

contrary to actual enjoyment under a survey ordered under S. 21, his prospective right of getting patta would be prejudiced and that, therefore, he

should have the right of suit. Such a right is sought to be inferred from the provisions of S. 21 which states that the survey shall be done in

accordance with the provisions of the survey of such land contained in the Madras Surveys and Boundaries Act, 1923. This it is contended would

incorporate the provisions of S. 14 of the latter Act.

Under S. 21 of the Abolition Act the manner of the survey is directed to conform to the provisions of the Madras Surveys and Boundaries Act,

1923. The question then would be as to how far the provisions of the Madras Surveys and Boundaries Act, 1923, should be held to be

incorporated in the Madras Act XXVI of 1948. It stands to reason that only that portion of the enactment which is consistent with the Abolition

Act should be held to have been incorporated in the latter enactment. A mere incorporation by reference to a former enactment cannot be held to

mean that the earlier enactment has been incorporated into the later enactment regardless of the fact whether such provisions are necessary for the

working out of later enactment or not. In Mather v. Brown (1876) 1 C.P.D. 596 Lindley J. observed at page 602:

I have examined the authorities to see if they would supply any reasoning by which we might get over this objection but I have found nothing to

support the petitioner''s view. On the contrary I have found two cases which look the other way showing that a mere incorporation by reference to

a former Act does not extend all the provisions of the earlier to the later Act. These are Lane v. Bennett (1836) l M.W. 70 and Davison v. Famur

(1851) 6 Exch. 242.

In my view such provision of the Madras Surveys and Boundaries Act, 1923, which would be inconsistent with or unnecessary for the working

out of the provisions of the Abolition Act cannot be deemed to have been incorporated by virtue of S. 21. I have already indicated that the ryot or

landholder has no title to the lands in the village before the grant of patta and there could therefore be no boundary dispute which calls for a

decision in the sense recognised in S. 14. Secondly, the Abolition Act expressly state that no suit could be filed in respect of acts, done by the

Government. Therefore no suit could lie for the grant of patta. If the ryot could not agitate a right to patta in a suit it would be anomalous to hold

that a classification of land at an earlier stage to facilitate grant of patta would give him such a right. A wrong survey could at best affect the ryot''s

chances of getting patta for the extent claimed. If the suit could not be filed in respect of the extent of land given or refused to be given in patta, it

stands to reason that he should not agitate in a civil suit an order of the Survey Officer which merely demarcates the various lands. Thirdly, the

construction of S. 21 contended for by the respondent would lead to complications and delay. 11. If a right of suit is recognised to exist in an

erstwhile ryot or land-holder under S. 14 of the Madras Surveys and Boundaries Act with subsequent rights of appeal etc, the ryotwari settlement

would be seriously hampered by the litigations. Fourthly, the ryot or landholder could not be deemed to be aggrieved by the survey. The grievance

of a ryot can vise only when patta is refused to him. He can possibly have no grievance if the land is to be put in one survey number instead of in

the other. It is no doubt true that the classification of the suit land as tank poromboke in the instant case might disentitle him to patta in respect of

that land. The question whether he is entitled to patta in respect of the land can be agitated only before the Settlement Officer who is the authority

to grant patta. S. 3 proviso read with S. 56 would be wide enough to embrace such a dispute although the latter section only contemplates a

dispute as to who was the lawful owner of the holding. There is however no direct interest in the respondent in the survey as at best the

classification by the Survey Officer would have only an indirect effect on his chances of getting a patta. In Krishnachandra v. Ramamurthi Pantulu

(1951) 2 M.L.J. 325=44 L.W. 725 it was held that the question as to whether the determination of boundary of a village under S. 13 of the

Madras Surveys and Boundaries Act, 1923, will affect title to a piece of land lying within the said boundary would depend on the nature of the

claim to that land and the question that arose for decision before the Survey Officer. There may be a case in which the result of the boundary fixed

by the Survey Officer becoming conclusive under S. 13 of the Act may have an indirect effect on the title to the area covered by the boundary. A

Survey Officer has no jurisdiction to determine a question of title. But in some cases such decisions may flow from it as an indirect result of fixing of

the boundary. But in all those cases the aggrieved party would be the owner of the lands, the boundary for which was wrongly fixed. Under the

provisions of S. 21 of the Abolition Act, there could be no determination of any boundary strictly so-called because every bit of land is

Government property. The provisions of S. 14 of the Surveys and Boundaries Act cannot, therefore, apply as the respondent could not be held to

be a person aggrieved as he would have no title to the property before the grant of any ryotwari patta. There is no necessity to incorporate that

provision, i.e., S. 14 of the Survey and Boundaries Act, for the working of the Abolition Act. To do so would be inconsistent with the scheme of

the Act which created rights and provided the necessary machinery for the working out of those rights. In the instant case the claim of the

respondent is that he had acquired title to the suit property by adverse possession and that though it was tank bed land in the beginning it ceased to

be so by adverse possession. It is unnecessary for the purpose of this case to find out whether the tank bed land could be acquired by adverse

possession by a ryot by cultivation fugitive, permissive or otherwise but whatever right a ryot may have had in respect of his holding, that land

became freed from all such claims and rights when the village was taken over and vested in the Government under the provisions of the Madras

Act XXVI of 1948. The title of the ryot thereafter would be only by virtue of a grant by Government although such grant is regulated by the

statute. Provisions of S. 14 of the Madras Surveys and Boundaries Act, 1923, should therefore be held not to apply to the case of a survey

directed under S. 21 of the Abolition Act. For the foregoing reasons I am of the view that the respondent could not sustain a suit to set aside an

order of the Survey Officer. The result is that the second appeal is allowed. Having regard to the nature of the questions involved, I direct the

parties to bear their respective costs in all the Courts. Leave refused.