IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.10 .2011 CORAM : THE HONOURABLE Mrs.JUSTICE K. MOHAN RAM and THE HONOURABLE Mr.JUSTICE G.M. AKBAR ALI A.S.No.577 of 2006 Dharmapura Adhinam Mutt rep by its Adhinakartha Sri-la-ari Shanmugha Desika Gnanasampanda Paramachariya Swamigal Dharmapuram Mayiladuthurai Taluk Nagapattinam District ... Appellant vs 1. Raghavan 2. R. Subbiah ... Respondents Appeal filed under Sec.96 C.P.C against the judgment and decree made in O.S.No.72 of 2004 dated 29.12.2005 on the file of the learned District Judge, Nagapattinam. For appellant : Mr.S. Sounthar For 2nd respondent : Mrs.K.M. Nalinishree For 1st respondent : No appearance G.M. AKBAR ALI,J., Appeal filed against the judgment and decree made in O.S.No.72 of 2004 dated 29.12.2005 on the file of the learned District Judge, Nagapattinam. 2. The plaintiff is the appellant. The suit property belongs to Dharmapura Aadhina Mutt represented by its Adhinakartha. The suit land was leased out to one Chidambaram Chettiar in the year 1927. He was permitted to put up a construction for the purpose of conducting Rig and Yajur veda pada salai ( Samaradhanai ) and to feed the students, for which, a paguthi (rent) of Rs.3/-was fixed per Fasli. The said Chidambaram Chettiar executed a paguthi deed dated 10.3.1927 agreeing to run the padasalai with a condition that whenever he was unable to run the said padasalai or violated the terms of the paguthi deed, he should vacate and handover vacant possession of the land to the Mutt. The said Chidambaram Chettiar and after his demise, his son Annamalai Chettiar and after his death, his eldest son, the first https://hcservices.ecourts.gov.in/hcservices/ respondent herein, continuously enjoyed this property by performing the undertaking given in the paguthi deed. 3. When the 1st respondent violated the condition by subletting the suit property to the third parties, stopped the purpose for which it was let out and also defaulted in payment of rent, the appellant filed a suit in O.S.No.34 of 1985 before the Sub Court, Mayiladuthurai. The said suit ended in a compromise dated 18.12.1991 and in terms thereof, fresh lease was given to the 1st respondent by fixing the lease amount at Rs.1500/-per fasli. Again it was agreed that if the respondent violated any of the conditions, he should vacate and handover vacant possession. 4. The 1st respondent was irregular in payment of lease amount and did not pay for the Fasli 1401 to 1403. Therefore, the appellant issued a notice dated 20.11.2002 to the 1st respondent. The 1st respondent received the same and replied stating that his brother viz., the 2nd respondent is in actual possession and doing the Samaradhanai and forwarded the notice of the appellant to the 2nd respondent. Since no reply was received from the 2nd respondent , the appellant sent a reminder on 6.1.2003 for which, the 2nd respondent sent a reply that he had not received the notice dated 20.11.2002. Therefore, the appellant forwarded a copy of the notice dated 20.11.2002 to the 2nd respondent, for which there is no reply and the suit was filed for eviction and possession of the suit land after removal of the construction and for arrears of rent and damages. 5. The 1st respondent remained ex-parte and the 2nd respondent contested the suit. According to the 2nd respondent, the said Chidambaram Chettiar created a family trust and after his demise, his elder son Annamalai Chettiar and after his demise, his brother Ramasamy Chettiar were continuing the Samaradhanai. The said Ramasamy chettiar is the father of the 2nd respondent. He died in the year 1996 and the 2nd respondent took over the trust and performed the Samaradhanai. According to the secon respondent, the compromise decree entered between the appellant and the 1st respondent is non-est and will not bind the respondent. The classification of the suit property is Natham and a Manai Patta was issued to the respondent by the competent Revenue authority. He is in possession of the property and the building thereon was assessed to municipal tax and has been regularly paid. From 1998, the respondent is enjoying the suit property as absolute owner by paying the kist for the land and also paying the tax to the municipality and therefore, has denied even the title of the appellant. 6. With the above pleadings the parties went for and the trial court framed eight issues, out of which, the following issues are important: https://hcservices.ecourts.gov.in/hcservices/ 1. Whether the plaintiff is the owner of the suit property? 2. Whether the contention of the 2nd defendant that grant of patta in his favour would entail the extinction of the plaintiff's rights in the suit property? 3. Whether this court has jurisdiction to try the suit? 4. Is it corect to say that 2nd defendant's conduct is against the terms of compromise decree passed in O.S.No.34 of 1985? 7. The appellant filed the certified copy of the lease deed dated 10.3.27 and also the compromise decree in O.S.No.34 of 1985. The legal notice sent to the respondents were also marked. The 2nd respondent examined himself and he had produced a patta dated 20.2.1998 issued by the Special Tahsildar, Sirkazhi. He had also produced the house tax receipts in the name of Ramasami Chettiar. 8. The case of the respondent is that a patta has been granted under Sec.2 of the Land Encroachment Act by effecting a sub division of T.S No.463/7 and the respondent is the owner of the land and unless the patta is cancelled no suit shall lie questioning the validity of the patta. 9. The learned District Judge, Nagapattinam relied on a decision reported in 2001 TNLJ 147 (Chellaiye vs Seethaiammal and another) and found that under the natham abolition scheme, a patta was granted to the respondent/defendant and the only remedy available to the plaintiff is by filing an appeal or revision before the Revenue authorities and the civil court has no jurisdiction to go into the question of validity or otherwise of issuance of patta. Holding so, the trial court dismissed the suit. Aggrieved by which, the Dharmapura Adheenam has preferred the present appeal. 10. The point for consideration in this appeal is whether the issuance of patta under the U D R scheme in favour of a lessee, extinguished the right of the lessor . 11. Mr. S. Sounthar, the learned counsel for the appellant would submit that the respondents cannot deny the title of the landlord as the lease of the land is not denied. He also pointed out that there is no specific denial by the 2nd respondent regarding the lease in the year 1927 in respect of the suit property. The learned counsel pointed out that the original lessee viz., Chidambaram Chettiar was given lease of the property only to conduct the Samaradhanai and admittedly, he was conducting so for his lifetiime and thereafter, his elder son Annamalai Chettiar was https://hcservices.ecourts.gov.in/hcservices/ performing the same and the only dispute is that after Annamalai Chettiar, whether his son namely, the 1st respondent was continuing or his brother, Ramaswami Chettiar, the father of the 2nd respondent was performing the same. 12. The learned counsel further pointed out that the claim of the 2nd respondent that from 1966 onwards, he is in possession of the property and was performing the Samaradhanai was not proved. The learned counsel pointed out that the compromise decree passed in O.S.No.34 of 1985 is binding on the parties who would deal with the property in accordance with the same and the patta issued by the Tahsildar cannot be considered. He also pointed out that the suit property is only a punja land and even assuming that it is a Grama Natham, it will never vest with the Government in order to grant a patta to the person in possession thereof. 13. He relied on a decision reported in 1998 3 LW 603 (Thillaivanam A.K and another vs District Collector, chengai Anna District and three others) wherein the learned Single Judge of this Court has dealt with 'village natham' and has held `27. Thus it is obvious, the admitted classification of the land being a gramanatham, the land was never vested with the respondents nor they could take action under the Land Encroachment Act or any other enactment. The petitioners state they have exclusive right, title, possession, since 1954 onwards. The respondents have no right to interfere with the peaceful possession and enjoyment of the land and their action in giving a complaint for alleged offence under Section 420 of the IPC is total misconception“. 14. The learned cousnel also relied on a decision reported in 2004 (3) CTC 270 (The Executive Officer, Kadathur Town Panchayat, Harur Taluk, Dharmapuri District vs V. Swaminathan and others), wherein the First Bench of this court presided by the then Chief Justice (B. Subashan Reddy, CJ.,), had also held thus: `13. In the light of the above and in view of the fact tht the admitted classification of the land being a 'Grama Natham', it is obvious that the land was never vested with the Government on the Town Panchayat. Inasmuch as the petitioners and their ancestors were in exclusive possession of the lands in question for the past 40 years, the impugned order of the third respondent in cancelling the pattas with a view to evict them summarily at the https://hcservices.ecourts.gov.in/hcservices/ instance of the resolutionpassed by the Panchayat is not sustainable. Further such a summary eviction is not permissible in law when the disputed question of title is involved for adjudication as laid down by the Apex Court in number of decisions. 15. On the contrary, Mrs.K.M. Nalinishree the learned counsel for the 2nd respondent would submit that the respondent and his predecessors in title were in possession and enjoyment of the property for two generations and the property being Grama Natham patta has been granted in the name of the 2nd respondent and the only course left to the appellant is to approach the competent authority to establish their title and cancel the patta and the suit is barred under the Land Encroachment Act. She pointed out that it is the categorical case of the 2nd respondent that the 1st respondent was never in possession and enjoyment of the property and never performed Samaradhanai and the alleged compromise decree is not binding on the 2nd respondent. The learned counsel pointed out that a proper eviction notice is not issued to the 2nd respondent for eviction and therefore, the suit is to fail. 16. Countering the arguments the learned counsel for the appellant quoted the decision reported in AIR 1963 SC 468 (Kanji Manji vs The Trustees of the Port of Bombay), wherein the Apex Court held as follows: ``7. ...... The deed of assignment was approved and accepted by the Trustees of the Port of Bombay, and Rupji Jeraj and the appellant must be regarded as joint tenants. The trial Judge, therefore, rightly held them to be so. Once it is held that the tenancy was joint, a notice to one of the joint tenants was suffcient, and the suit for the same reason was also good. Mr.B> Sen, in arguing the case of the appellant, did not seek to urge the opposite. In our opinion, the notice and the frame of the suit were, therefore, proper and this argument has no merit.“ 17. He also relied on a decision reported in 1996(7) SCC 555 (Joginder Singh and another vs Jogindero (Smt) and Others), wherein the Apex Court following the decision of the Privy Council held that `A tenant who has been let into possession cannot deny his landlord's title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord“ https://hcservices.ecourts.gov.in/hcservices/ 18. We have carefully considered the rival contentions advanced on either side and perused the materials available on record. 19. The appellant is the Dharmapura Aadheenam represented by Aadheena Kartha. 20. Ex.A.10 is a certified copy of the registered lease deed executed by Chidambaram Chettiar to the Dharmapuram Aheena Kartha dated 10.3.1927. The said Chidambaram Chettiar had executed the paguthi pathiram wherein it is stated that the land (manai) of an extent east-west 82 feet, north-south 205 feet in Resurvey No.134/1, which belonged to Adheenam, is being taken by the executant for performing Rig, Yajur vedha Swasthivasana Brahmana Samaradhanai for an yearly rent of Rs.3/- 21. Ex.A.1 is the comprmise decree dated 18.12.1991. The 1st respondent who had defaulted in payment of lease amount had agreed to repay the default payment and the appellant agreed to permit the 1st respondent to continue the performance of Samaradhanai. The lease amount was also enhanced. This was entered into on 18.12.1991. On 20.11.2002, under Ex.A.2, the appellant had issued a legal notice to the 1st respondent terminating the lease and directing him to hand over vacant possession of the property due to default in payment of the lease amount. 22. However, under Ex.A.4, the 1st respondent had written a letter to the 2nd respondent, stating that since the 2nd respondent was performing the Samaradhanai and had forwarded the legal notice. Under Ex.A.5, dated 6.1.2003, a legal notice was issued to the 2nd respondent reminding about the termination notice. Under Ex.A.7, the 2nd respondent through his lawyer had requested for the copy of the notice and under Ex.A.8 a copy of the notice dated 20.11.2002 was forwarded to the 2nd respondent. Only under these circumstances, the 2nd respondent has claimed title to the property under the patta issued by the Tahsildar under UDR Scheme. Ex.B.2 is the patta issued on 20.2.1998. 23. The suit property was treated as Natham and has been re-surveyed in Resurvey No.463/7 and has been treated as house site. (manaikattu). The superstructure was also assessed for house tax. 24. The learned counsel for the respondent would submit that the 2nd respondent is not a party to the compromise decree and admittedly, he is in possession and enjoyment of the property after the death of his father and also been issued with patta under the UDR scheme and therefore, no suit can lie challenging the patta. 25. Sec.2 of Tamil Nadu Land Encroachment Act 1905 deals with the right of property in public roads etc., Under this provision, all the lands vest with the Government except those https://hcservices.ecourts.gov.in/hcservices/ property saved under sub clause (a) to (e) of Sec.2 of the Act. As far as house sites are concerned, they are not vested with the Government. 26. In S.A. Nos. 780 and 781 of 2004 and in Rev. Apln. Nos.16 and 17 of 2010, one of us, (G.M.Akbar ali J) had an occasion to deal with Grama Natham and Natham poromboke lands. Gramanatham has been defined in the Law Lexican as follows:- ` Ground set apart on which the house of a village may be built" 27. Gramanatham is the village 'habitation' where the land holders may build houses and reside. They are also known as 'House Sites" (Manai). They were classified as Gramanatham to differentiate from Inam lands,Ryotwari lands, Pannai lands and Waste lands, while later vested with the Government, the Gramanatham never vested with the State. 28. There were two enactments which deal with the Gramanatham lands, (i) Madras Estates (Abolition and Conversion into Ryotwari) Act 1948 (Madras Act XXVI of 1948 and (ii) The Madras Land Encroachment Act 1905 (Madras Act III of 1905). Section 3 (b) of Madras Act XXVI of 1948 read as follows:- " with effect on and from the notified date and save as otherwise expressly provided in this Act the entire estate ( including all communal lands and porompokes) other non-ryotwari lands ......shall stand transferred to the Government and vest in them, free of all encumbrances; 29. In 1959 2 MLJ 513 ( S.Rengaraja Iyangar and another Vs.Achikannu ammal and another ) this court held, "A house site owned by a person in what is generally known as Gramanatham is not, under Madras Act III of 1905, property of the Government". 30. In 1998 3 L.W.603 (A.K. Thillaivanan and A.K.Dayalan Vs.District Collector, Chengai Anna District and others) this court held as follows: https://hcservices.ecourts.gov.in/hcservices/ " Being Gramanatham, it is obvious that the land in question had never vested with the Government. Section 2 of the Land Encroachment Act 1905 excludes Gramanatham owned as house sites. As such the provisions of the Land Encroachment Act 1905 can not be invoked by the respondents in respect of the land in question." 31. In 2010 -1- L. W.123 (A.Srinivasan and another Vs. The Tahsildar, Egmore Nungampakkam Taluk) this court held as follows: "Further from the decisions cited supra, it is clear that 'Gramanatham' can not be considered, ipso facto, as Government property. Once it is found that suit item No.1 is classified as 'Gramanatham' it should be held that it does not belong to the Government. Therefore, there can be no doubt that the defendant can not invoke the provisions of the Tamil Nadu Land Encroachment Act 1905." 32. Therefore, Gramanatham is not vested with the Government. Under UDR Scheme (Up Dating Revenue Record scheme) the gramanatham lands were surveyed and survey numbers have been assigned. There was an attempt by the Government to levy tax ( Natham Nilavari Thittam). Therefore, under that scheme, the Natham lands were surveyed and resurvey numbers were assigned and pattas were issued. Since gramanatham is the habitation where the land owners may build houses and reside they were known as house sites. They were classified as Gramanatham to differentiate the land from Inam lands Ryotwari lands, pannai lands and waste lands. While the lands under the other classifications vested with the Government, the gramanatham never vested with the State. However, under the UDR scheme, to enforce a tax on the Natham lands, a Thoraya Patta, for tax purporse was issued to those persons who claimed to be the land holders. The land holding is based on the title through the predecessor-in-title. Therefore, the patta issued under UDR scheme is not the patta under the Land Encroachment Act and there is no bar of the jurisdicition of the civil court under Sec.14 of the Land Encroachment Act. 33. In any event, the suit is also not to set aside the patta or to declare the patta as invalid. The alleged patta under Ex.B.2 is not based on the title of the land holder as the appellant alone is the land holder. Though the 2nd respondent is not a party to the compromise decree he would admit that initially Annamalai Chettiar was permitted to put up a construction on the house site and to perform the Samaradhanai. The claim of the 2nd https://hcservices.ecourts.gov.in/hcservices/ respondent is that after Annamalai Chettiar his father Ramasami Chettiar continued the Samaradhanai and after his demise in 1966, the 2nd respondent is performingthe same. Except for filing some house tax receipts for the year 2000, there is nothing on record to show that the 2nd respondent was performing the Samaradhanai from 1996. In any event, he cannot claim title over the property as his predecessor-in-title themselves were only lessees under the appellant. 34. The denial of the title of the landlord itself is a ground for eviction. Moreover, the appellant has proved that there are breach of conditions of lease agreements and there is default in payment of lease amount. 35. As far as the notice under Sec.116 of Transfer of Property Act is concerned, a valid notice has been issued to the 1st respondent and the 2nd respondent seems to be a family member continuing the samaradhanai and therefore, he is only a co-tenant and the notice issued to one tenant is binding and valid against the co-tenant. Therefore, the trial court is wrong in holding that the 2nd respondent had obtained patta and the civil court has no jurisdicition to set aside the patta. 36. There is no question of setting aside the patta as the land was not vested with the Government and also the patta issued is only under UDR scheme to impose tax on Natham lands and the patta will not confer any title to the 2nd respondent, unless he proves that he is the land owner. 37. In view of what has been stated above and under the given circumstances the appellant is entitled to vacant possession of the land and also for recovery of arrears of rent. In the result, appeal is allowed and the judgment and decree made in O.S.No.72 of 2004 dated 29.12.2005 on the file of the learned District Judge, Nagapattinam are set aside. The suit is decreed as prayed for and time to vacate is three months from the date of decree. No costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar sr https://hcservices.ecourts.gov.in/hcservices/ To The District Judge, Nagapattinam. + 1 cc dto Mr.S. Sounthar, SR.63032 + 1 cc to Mr.K.M. Nalinishree, SR.62515 A.S.No.577 of 2006 JRG(CO) Eu 20.1.12 https://hcservices.ecourts.gov.in/hcservices/