Vedaranyeswaraswami Devasthanam vs A.C. Dharma Devi and Others

V.S. Sirpurkar, J.—This appeal challenges the order passed by the learned single Judge of this Court. By the instant judgment, the learned

single Judge allowed the writ petition filed by the first respondent herein, viz., A.C. Dharmadevi, wife of Chakravarthy, challenging the order

passed by the Special Commissioner and Commissioner of Land Administration dated 7-2-1985, directing a remand to enquire into the question

of ownership of the lands covered by Survey Nos. 175/486 and 175/515 (part), measuring 18 cents and 04 cents respectively. The writ petitioner,

before the learned single Judge had staked her claim for a patta in respect of these lands and there has been a marathon litigation on account of

this. Initially, the whole action started somewhere in the year 1971 but, ultimately by order dated 30-4-1978, the Settlement Tahsildar, Thanjavur,

ordered grant of patta in respect of the site, on which the superstructure of the writ-petitioner was standing in favour of the writ-petitioner holding

that she had established her rights in respect of that land. A basic fact, which was considered by the Tahsildar, was that the Devasthanam, which is

the appellant herein. had never asserted any ownership in respect of these lands which were undoubtedly the part of the existing Inam Estate,

notified in G.O. Press No. 781 (Revenue), dated 12-3-1965 and which Inam Estate was taken over by the Government on 15-6-1968. On the

basis of the voluminous evidence led before the Settlement Tahsildar, he ultimately came to the conclusion that these two lands, amongst the others,

were under the control and ownership of the writ-petitioner and that, in reality, the Deveasthanam had not in any way asserted its ownership about

the said lands. We must hasten to add that even at this point, there is no dispute that these lands are part of the existing Inam Estate.

Against the Settlement Tahsildar''s order dated 30-4-1978, the matters were taken by way of a revision before the Assistant Settlement Officer,

who held that the revision was time-barred. The matters were further taken before the Settlement Officer, who rejected the revision, by his order

dated 16,11.1978. The matters were then taken up by way of a revision to the Director of Survey and Settlement, who by his order dated

10.1.1980, remanded the matters to the Assistant Settlement Officer. The Assistant Settlement Officer, by his order dated 15.10.1980, again

dismissed the revision and confirmed the earlier orders holding that the lands would vest in the writ petitioner-1st respondent in this appeal under

the provisions of Sec. 15(4) of the Act. The Assistant Settlement Officer observed that the Devasthanam had failed to prove its title over the lands

and the superstructure thereon and, accordingly, he held that the concerned lands would vest in the 1st respondent/writ-petitioner.

Very strangely, a revision came to be made against the order of the Assistant Settlement Officer to the Settlement Officer (SP-II), Thanjavur

and, very strangely, the Settlement Officer also entertained the revision which was filed at the instance of the present appellant. We must make it

clear that there was, in fact, no revisional jurisdiction in the Settlement Officer, at least none can be found in the provisions of the Act 26 of 1963

and the rules framed thereunder. Be that as it may, the revision was entertained but. met the same fate and the order of the Assistant Settlement

Officer, Thanjavur was confirmed. A further revision under the provisions of the Act against the Settlement Officer''s order was taken before the

Director of Survey and Settlement who, dismissed that revision by his order dated 2.1.1982.

All through, the concerned officials kept on maintaining that the Devasthanam had not established its ownership or at any rate, its nexus with

lands in question inasmuch as the Devasthanam had never demurred anything against the long and continuous possession of the lands by the writ-

petitioner. The order of the Director of Survey and Settlement dated 2.1.1982 was finally sought to be revised before the Board of Revenue which

was then being represented by the Commissioner of Settlement of Estate, Board of Revenue. The Commissioner, however, took a different view.

The Commissioner found that the Director of Survey and Settlement had written contradictory findings. The Commissioner pointed out that at one

place the Director had held that under Sec. 15(4) of the Act, the site would vest with the writ petitioner while at other place, he had held that the

site would vest with the Government under Sec. 3(b) of the Act. The Commissioner also relied on the Division Bench decision of this Court in K.

Vellappa Gounder and Sons and Others Vs. K.S. Thirugnanasambandam Chettiar and Others, and held that there was no question of the land,

which is covered under the buildings, vesting with the landowner as that land had to vest under Sec. 3(b) of the Act with the Government. Be that

as it may, a remand order was passed directing the Director of Survey and Settlement to consider the matter afresh, after issue of notice to all

concerned. The writ-petitioner approached the learned single Judge against this order.

The learned single Judge has allowed the writ petition and has held that the writ-petitioner was entitled to the patta under Sec. 15(4) of the Act

again, predominantly relying upon the Division Bench decision of this Court in Vellappa Gounder''s case, cited supra. The learned single Judge,

therefore, upheld the orders of the lower authorities granting patta in favour of the writ-petitioner.

The learned counsel Mr. S.K. Rakhunathan, appearing on behalf of the appellant Devastanam takes a serious objection to the correctness of the

order of the learned single Judge. He firstly points out that there was no question of the Devasthanam establishing its rights or ownership with the

lands in question and that all the concerned authorities were in error in expecting that the Devasthanam should come forth with some proof

regarding its ownership. The argument of the learned counsel is that if this was an existing Inam Estate and the lands were the part of the estate

then, there was no question of the Devasthanam being required to prove its title. The learned counsel argues that the whole lis started by the 1st

respondent herein claiming patta in respect of these lands. The learned counsel, therefore argues that it was for the 1st respondent to establish as to

how she derived any ownership in respect of these lands. The learned counsel also pointed out that there was no authentic document suggesting

that these lands were owned exclusively to the exclusion of the Devasthanam or the 1st respondent or any predecessor in title. According to the

learned counsel merely because the Devasthanam did not claim any pagudi from the 1st respondent or merely because the Devasthanam did not

insist upon any services from the 1st respondent, it could not be said that the Devasthanam had no concern with the said lands. The learned

counsel further argues that the learned single Judge fell in error in holding that merely because the superstructure over these lands belongs to the 1st

respondent, the lands under that superstructure would also go along with the superstructure. The learned counsel pointed out that the law laid

down in Vellappa Gounder''s case cited supra, has not been approved and, in fact, that case has been overruled by the Apex Court in another

decision, reported in 1996 1 LW 19 (SC) (K.S. Thirugnasambandam Chettiar (dead) by LRs and others v. The Settlement Thesildar, Coimbatore

and others).

There can be no doubt that the Apex Court had set aside the judgment of the Division Bench of this Court in Vellappa Gounder''s case.

However, according to us. both these judgments would not be really apposite to the present matter. Firstly, the Division Bench judgment of this

Court and the Supreme Court judgment are in respect of the lands over which there is a superstructure which does not belong to the original

landowner and belongs to someone else. When we consider the description of the lands in question, though we have to consider the two building

standing on the two survey number, it cannot be disputed that some of the land is not occupied by the buildings and is still being cultivated by the

1st respondent. Therefore, the whole controversy cannot be covered by these decisions.

Now, let us first take the question of the lands which are covered by the buildings. There are two buildings - one pucca building and one to the

extent of 04 cents. The Apex Court now holds that in respect of such lands, there can be a ""dual estate"" and the concept of ""dual estate"" is not

unknown to the Act. Undoubtedly, the Apex Court was considering the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act

(30 of 1963). However, it has specifically applied the provisions of Act 30 of 1963 even to the lands covered by (sic) Tamil Nadu Minor Inams

(Abolition and Conversion into Ryotwari) Act (26 of 1963). The Supreme Court has held that what interpretation has been provided to Sec 13 in

Act 30 of 1963 would also apply to Sec.15 of Act 26 of 1963, that is the present Act under question. The following paragraphs would highlight

the law laid down by the Supreme Court while considering the rival claims between the parties:

It is plain from bare reading of the Section and its setting that it is a provision occurring in Chapter III as one of the tools to confer ryotwari pattas

to persons entitled. The preamble of the Act makes it clear, as also its name, that the Act enables the State to accomplish acquisition of the right of

inamdar in minor Inams in the State of Tamil Nadu and the introduction of ryotwari settlements in such inam lands. It nowhere envisaged that the

rights of a person who held a ryotwari patta in his favour or was otherwise entitled to a ryotwari pattas. were meant to be abolished under the Act.

Rather on abolition of Inams claims of persons entitled, to the grant of ryotwari pattas had to be examined and settled. Under the provisions under

scrutiny too, it is patent that some ryotwari pattas had to be settled, where buildings stood erected on inam lands immediately before the appointed

day and the Government in that event was entitled to an appropriate assessment as envisaged therein. Designedly, the building so erected was to

include the site on which it stood and any adjacent premises occupied as an appurtenance thereto. Since the scheme of the Act patently was in

establishment and preservation of ryotwari rights, it cannot be said that by virtue of Section 13, the ryotwari rights of the site-owners stood

abolished or those rights got merged in the building and hence vesting in the building owner. Rather, a dual estate is conceived of in the scheme of

Section 13, that is to say, the building may belong to one and the site to another. It is, therefore, not necessary that both the site and the building

should belong to one and the same person so as to derive the benefit of Section 13 with effect from the appointed day. A dual estate is not

repugnant to the provision, which evidently is of a very special nature, when ryotwari patta may not be admissible for a building per se but may be

admissible for the site standing thereon. Yet this is a special provision which confers rights on the building-owners also, though in strict sense that

right may not be a ryotwari right conferrable in the form of a patta. The provision, self-contained as it is, allows the Government levying an

appropriate assessment thereon for each fasli year commencing with the fasli year in which the appointed day fell which assessment obviously

would be based on the assessment due on the site as if un-built and not on the price of the building....

(emphasis supplied).

It is to be understood that these observations were made because the Apex Court was considering the rival claim between two claimants - one

claiming the land and the other claiming the ownership in the building. It must be remembered that this is not a dispute between the one claimant

claiming the land and the other claimant who had in fact erected a construction on the inam land. claiming ownership in the building. The Supreme

Court found out the concept of ""dual estate"" because of the peculiar nature of the dispute in that case, which would be clear from the following

observations:

Primarily, it is this view which is under challenge in these appeals, which are of a bunch, preferred by persons, some of whom claiming to be site-

owners and others claiming to be owners of the buildings erected thereon. The claim of the site-owners is that since the building includes the site in

terms of Section 18, they become owners of both the estates i.e., the site and the building.

Such factual background is clearly not available in the present case. Here, very strangely, the fact that the building is owned by the writ-petitioner is

an admitted fact, at least there is no claim made either before the authorities below or before us that the Devasthanam was the owner of the

building. The clash of interests is very strangely here between the Devasthanam and a person who has constructed a building on the

Devasthanam''s land. The genesis of the claim of the writ-petitioner is that the writ-petitioner is the owner of the building and is also the owner of

the site whereas, the Devasthanam says that the site must go back to the Government under Sec.3(b). It has to be understood that the

Devasthanam does not claim any patta in respect of the land though in two or three grounds, the Devasthanam has insisted upon a patta being

granted. That would be obviously absurd because the owner of the inam would not be justified in claiming patta in respect of that land much less

under Sec. 15(4) of the Act. The claim of the Devasthanam is only this much that a patta should not be granted under the provisions of Sec. 15(4)

in favour of the writ-petitioner as the site on which the building stood belonged to the inam and as such belonged ultimately to the Devasthanam.

We do not propose to go into these questions because it is not for us to go into these questions. The net result of the order would be that the

building, which is admittedly belonging to the writ-petitioner, would undoubtedly vest in the writ-petitioner and there could be no dispute about it.

The question is of the site. Assuming that the site is held to vest in the Government under ''Sec.3(b) of the Act, even then, the Government not

having claimed any rival rights against the writ-petitioner, the writ petitioner remains safe. Her building is not in jeopardy. It must be remembered

that in the whole affair the Government has remained a silent spectator. The interest of the appellant is only in getting compensation for that land

which, according to the Devasthanam, should not have been settled in favour of the 1st respondent herein. We observe that even if the land is

settled in favour of the 1st respondent herein, it would be of no consequence whether the land goes in favour of the 1st respondent or whether it

goes in favour of the Government and the appellant may still be able to claim compensation if that is the only interest of the Devasthanam and.

indeed, the learned counsel for the Devasthanam was fair enough/in admitting that the only interest of the appellant was claiming compensation for

me land. We observe that the Devasthanam would be free to make an application for compensation to the Government and the Government may

consider that application in the light of the applicable provisions and decide the right of the Devasthanam to claim the compensation in respect of

that land. Whether the land goes to the Government under Sec.3(b) of the Act or it goes by way of a patta to the 1st respondent, it would hardly

matter.

In so far as the rights of the writ-petitioner, which have been saved by the learned single Judge, are concerned, they would remain safe as the

Government is not claiming adversely to the rights of the writ-petitioner. In this view, we dispose of this writ appeal maintaining the order of the

learned single Judge but, observing that if the Devasthanam so feels it is at liberty to apply for compensation before the Government and the

Government may consider that application if it fells within the framework of the Act and Rules. With these observations, the writ appeal is disposed

of. No costs.