The State of Tamil Nadu vs E.M.G.S. Indirani and Others

G.M. Akbar Ali, J.—The appeal is preferred against the judgment and decree dated 27.04.2007 in A.S. No. 15 of 2007 on the file of the III Additional Sub Court, Madurai, reversing the judgment and decree dated 20.12.2006 in O.S. No. 908 of 2004 on the file of the Additional District Munsif Court, Madurai. The defendant is the appellant.

The brief facts of the case is as follows: The suit is filed for a declaration that the plaintiff is entitled to hold the suit property and for permanent injunction. The suit is filed against the District Collector, Madurai. The suit property is a Kanmai (Urani)comprised in S. No. 254/1 of an extent of 62.65 acres. One Krishna Rao bought the an extent of 40.17 acres surrounding the suit property in a Court auction sale in E.P. No. 57 of 1929 in O.S. No. 67 of 1926 in an execution of a decree. The suit said property originally belonged to one K.S.A.Rangachariyar and his brother Krishnamachariyar. The said Krishna Rao and his son Devaji Rao were in possession and enjoyment of the property with the right of irrigation and Paasi kuthagai in the suit kanmoi. It was mortgaged to one Karuppan Chettiar. The said Devaji Rao sold the property under a sale deed dated 09.12.1941 to one Gopalakrishna Konar. The plaintiff inherited the property from the said Gopalakrishna Konar by a will and a settlement and the plaintiff is in possession and enjoyment with irrigation and fishing right in the property. In dry season, he has been cultivating the suit property. While so, the defendant declared that it is a Poramboke land and they are planning to construct buildings for some welfare scheme. Therefore, the suit is filed for declaration and for consequential injunction.

The Government, through the Collector, Madurai, resisted the suit. According to the Government, the property was identified as Maruthankulam Kanmai and it is a poramboke vested with the Government. It is a dry tank and therefore, the Government is planning to construct a women centre through SIDCO and therefore, the suit against the Government is not maintainable.

The Trial Court framed triable issues and on the basis of the oral and documentary evidences found that the suit property is a private tank coming within the amended provision of Tamil Nadu Estates (Abolition and conversion into Ryathwari) Act 26 of 1948 as amended under Act 49/74 and therefore, the suit property is vested with the Government and no private person can claim any exclusive right and has dismissed the suit.

Aggrieved by the decree and judgment, the the legal heirs of the plaintiff preferred an appeal in A.S. No. 15 of 2007 before the III Additional Sub Court, Madurai. The First Appellate Court on re-appreciation of the evidence found that the suit property is not coming under the Estate Abolition Act, Act 26 of 1948 and therefore, it is not a tank Poramboke and has decreed the suit as prayed for.

Aggrieved by which, the Government has preferred the appeal by raising various grounds.

On admission, this Court has framed the following substantial question of law:

Did not the lower appellate court failed to confirm the judgment and decree of trial court on the ground that the private lands and Ooranies were vested with the Government and Government of Tamil Nadu Estate (Abolition and Conversion into Ryatwari) Act, even assuming the same belongs to the respondent herein by virtue of Ex.A8?

The suit property is described as Maruthankulam Village in Survey No. 254/1 to an extent of 19.45.5 hectares (62.64 acres) of Thallakulam Village, Madurai. According to the plaintiff, the property surrounding the suit property originally belonged to K.S.K. Rangachariyar and his brother Krishnamachariyar and the same was sold in a court auction sale in E.P. No. 57 of 1929 in O.S. No. 67 of 1926 in the court of the Subordinate Judge, Madurai and was possessed by one Krishna Rao and his son Devaji Rao. They have mortgaged the property to one Karuppan Chettiyar and later Devaji Rao sold the entire property with all the rights in the Kanmai including the fishery rights to one E.M. Gopalakrishna Konar in the year 1941 and he has created some trust and the plaintiff had inherited the property.

The Trial Court found that on the intervention of Tamil Nadu Estates (Abolition and conversion into Ryathwari) Act 26 of 1948 and amendment Act 49 of 1974 regarding vesting of private tanks and reservoirs with the Government and has stated that the suit property is classified as Maruthankulam Kanmai in the revenue records and therefore it is vested with the Government.

On the contrary, the First Appellate Court has found that the Maruthankulam Village is coming under Ayan Thallakulam Village and therefore, the provisions of the Estate Abolition Act is not applicable and there is no proceeding by the Government vesting the suit property with the Government.

Mr. A.R.L. Sundaresan, learned Senior Counsel for the respondents 1 to 3 submitted that the plaintiffs have produced documents from 1929 to prove that Survey No. 254/1 of 62 acres 65 cents was in the possession and enjoyment of the plaintiffs and their predecessors in title and there is no iota of evidence to show that it is a government Poramboke. The learned Counsel pointed out that there was right of irrigation and fishing rights and in efflux of time the tank has dried and converted into housing sites and whenever there is rain the plaintiffs cultivated the suit property and they are in possession. The learned Counsel also pointed out that the suit property does not fall into the category of ''Estate'' and the provisions of Tamil Nadu Estates (Abolition and conversion into Ryathwari) at 26 of 1948(herein after referred as Act) are not applicable. The learned Counsel pointed out that the First Appellate Court has correctly found that the Government has no right in the property and this Court need not interfere in the well considered judgment.

12.On the contrary, Mr. K.A. Thirumalaiyappan, learned Additional Government Pleader submitted that the suit property is classified as Maruthankulam Kanmai in the revenue records and therefore, private persons cannot claim any right or title over the suit property. The learned Government Pleader pointed out that on the intervention of the Tamil Nadu Estates (Abolition and conversion into Ryathwari) at 26 of 1948, the Tanks including the Private Tanks and Uranis are vested with the Government.

Mr. M.K. Hidayathullah, learned Counsel for the fourth respondent would submit that the First Appellate Court is the last court on facts and the finding of fact could not be disturbed in the second appeal unless or otherwise court comes to the conclusion that the finding of facts are perverse.

The learned Counsel relied on 2005 (3) CTC 504, AIR 2001 SC 2282, for the above proposition.

The claim of the government is that the suit property was classified as Maruthankulam Kanmai Poramboke in the revenue records and therefore, it is a Poramboke vested with the Government. In paragraph 7 of the written statement, the appellant would state that

...It is true that the Maruthankulam tank is rainbed tank. Due to failure of monsoon usually the tank will not be filled with water. And also most of the ayacut lands are becoming House sites and hence the tank become useless and silted with clay and sand. Hence, it became useless and became dilapidated. Ayacut area of the tank also became un-cultivable, due to paucity of water.

The suit property is described as "Land bearing now S. No. 254/1 of an extent of 62.64 acres in Maruthankulam Village hamlet of Thallakulam village, Madurai Taluk, Madurai District"

The averments of the plaint is to the effect that the suit property along with all the surrounding lands originally belonged to one K.S.K. Rangachariyar and his brother Krishnamachariyar. For satisfying the decree debt the entire property including Mavadai, Maravadai and Paasi Kuthagai where brought to court auction sale in E.P. No. 57 of 1929 in O.S. No. 67 of 1926 in the court of Subordinate Court, Madurai. According to the plaintiffs, one Krishna Rao and his son Devoji Rao purchased the property in the Court auction under Ex.A1 and it was also mortgaged the property to one Karuppan Chettiyar under Ex.A8 and thereafter, Devaraj Rao sold the property to one Gopalakrishna Konar under Ex.A2 dated 16.12.1941. Both the courts below have traced the title of the said Gopalakrishna Konar in accordance with the property mentioned in Exs.A1, A2 and A8. The case of the plaintiff is that the lands purchased under the above said documents of an extent of 40 acres 17 cents were irrigated from Maruthankulam Kanmai and the plaintiff and the predecessor in title are Ayakattuthars with a right to Paasi Kuthagai. According to the plaintiff, Maruthankulam Tank being mainly rainbed and due to failure of monsoon, it has become dry and mostly covered by house site and settlements. The further case of the plaintiff is that the entire Maruthankulam Tank is in the possession of the plaintiffs. According to the plaintiffs, the Government, who has no right, decided to set up a women centre in the dry Maruthankulam Kanmai and therefore, he has rushed to the court for a declaration that he is entitled to hold the entire Maruthankulam Kanmai.

A careful perusal of the judgment of the trial court would show that the court has proceeded as if the suit property is a private tank belonged to the plaintiffs and on the intervention of the amendment Act of 49 of 74 to the Tamil Nadu Act of 26 of 1948, the private tank also vested with the Government and therefore, the plaintiffs has no right. It is pertinent to note that the suit property which is a Kanmai was never claimed as a private tank.

On appeal, the First Appellate Court also proceeded in the same line and found that the Government has failed to prove the classification into Kanmai Poramboke and has found the plaintiff is entitled to the suit Kanmai and had decreed the suit.

A careful reading of Exs.A1, A2 and A8 would show that what was purchased by the plaintiff''s predecessor in title in a court auction is an extent of 40 acres 17 cents in various survey numbers on the south-east of Maruthankulam Kanmai. The documents would show that the plaintiffs and the predecessor in title had only irrigation rights and Paasi Kuthagai rights in the Kanmai. The plaintiff is only a Ayakattuthar and he can never claim any exclusive right over the Kanmai. The application of the amended provision in Section 3 of the ''Act'' is un-called for and the confusion of private tank or public tank and the intervention of the amendment Act 49 of 74 are irrelevant.

Ex.B1 is the Adangal extract for the suit property in survey No. 254/1 of an extent 62 acres 65 cents. The revenue records would show that the suit property is classified as Maruthankulam Kanmai and the Government need not prove the Kanmai as Poramboke as it is evident that it is a public tank. Ex.B2, the combined F.M.B would show the various survey numbers mentioned in Ex.A1, A2, A8 and A9 which lay on the eastern side of the Kanmai. The plaintiff is having only an irrigation right for an extent of 40 acres 17 cents. The Government had admitted that there are certain settlements in survey No. 254/1 and the names of those persons occupying to an extent of 70 cents is also mentioned in Ex.B1. But the First Appellate court has misdirected itself and found that the balance of the extent is under the occupation of the plaintiffs.Ex.A11 and Ex.A12 do not reflect the correct position. When Ex.B1 Adangal Extract does not show the name of the said Gopalakrishna Konar, how a xerox copy of the same adangal could show his name as if he is in possession of 62.13 acres? Ex.A10, field map does not describe S. No. 254/1 as Maruthankulam Kanmai, When that is the admitted fact.

The relief sought for by the plaintiff is to the effect that a declaration that he is "entitled to hold the entire extent of 62.65 acres in S. No. 254/1". In the schedule of the property he did not mention that it is a Kanmai. The fact is that he has only an irrigation right as an Ayakattuthar. The First Appellate Court has misdirected itself and has found that the plaintiffs and the predecessor in title has dealt with the property in a court auction sale and also through other documents of title. Whereas, what was dealt under those documents namely, Ex.A1, A2 and A8 are only various survey numbers laying near the tank, may be irrigated with Kanmai water. At no stretch of imagination the plaintiff can claim any exclusive right or title or possession in the suit property which is a tank classified as Maruthankulam Kanmai in the revenue records.

The substantial question of law itself is irrelevant as there is no question, whether the suit property is a private tank coming within the purview of the amendment Act 49 of 1974 of the Tamil Nadu Act 26 of 48. There is no assumption that the suit property belonged to the respondent by virtue of Ex.A8 which is a mortgage deed. Therefore, the substantial question of law is irrelevant as the suit property is classified as Maruthankulam Kanmai in the revenue records and the question of private tank or Urani or public tank does not arise.

The averments in the plaint and the description of the property and also the relief sought for by the plaintiff is misleading and he has approached this Court with unclean hands. On that score alone, the plaintiff is not entitled for any relief.

Admitting that the Kanmai has dried up, the Government seem to have proposed to set up a woman centre viz., Industrial Estate for Woman. The decision of the Government is laudable, but at the same time the Government cannot convert a Kanmai into a housing site or industrial site and the suit property has to remain as rain water source. The water bodies can not be converted into house sites or industrial sites. This Court cannot allow the the same.

In 2005 (4) CTC 1 the First Bench of this Court had dealt with the public interest litigation against encroachment of Oodai, Lake and water courses. The First Court has held as

Since time immemorial ponds, tanks and lakes have been used by the people of our country, particularly in rural areas, for collecting rain water for use for various purposes. Such ponds, tanks and lakes have thus been an essential part of the people''s natural resources. However, in recent years these have been illegally encroached upon in many places by unscrupulous persons who have made their constructions thereon, or diverted them to other use. This has had an adverse effect on the lives of the people.

Further, the First Court has given a direction to the Government to remove encroachments and restore the water-bodies. Therefore, in the interest of justice and also in the public interest, the Government, through the District Collector/Appellant, is directed to remove all the encroachment in the suit survey No. 254/1 to an extent 62.65 acres, which is classified as Maruthankulam Kanmai and maintain the same as a water body.

The question of law is decided accordingly and the judgment and decree of the First Appellate Court is liable to be set aside with the above direction.

28.In the result, the appeal is allowed and the judgment and decree of the First Appellate Court is set aside, with a direction to the Government to remove all the encroachment in the suit survey No. 254/1 to an extent 62.65 acres which is classified as Maruthankulam Kanmai and maintain the same as a water body. An action taken report is to be filed before this Court within six months. The copy of the order is to be circulated to

i) The Chief Secretary, Tamil Nadu Government,

ii) The Commissioner for Land Administration, Chepalk, Chennai and

iii) The Secretary, Public Works Department (Irrigation).

No costs. Consequently, connected M.P. is closed.