IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.11.2010 CORAM: THE HONOURABLE MS. JUSTICE K.B.K.VASUKI S.A.No.1689 of 1998 1. The State of Tamil Nadu rep. by its District Collector, Sathuvachari, Vellore-9. 2.The Tahsildar, Tirupattur. ... Appellants/Appellants/ Defendants Vs. 1.Masilamani 2.Madhiyazhagan 3.Srinivasan ... Respondents/Respondents/ Plaintiffs Second Appeal is filed under Section 100 C.P.C against the judgment and decree dated 25.2.1997 made in A.S.No.3 of 1996 on the file of the Subordinate Judge, Tirupattur confirming the judgment and decree dated 8.12.95 made in O.S.No.940/90 on the file of the Additional District Munsif, Tirupattur, N.A.District. For appellants : Mrs.Bhavani Subbarayan, SGP (CS) For respondents : Mr.V.Raghavachari J U D G E M E N T The defendants are the appellants herein. The suit is filed for declaration and for mandatory injunction in respect of the suit property measuring an extent of 4.14 acres in S.No.193, Sorakayalnatham Village. According to the plaintiffs, the suit property originally belonged to the plaintiff's predecessor-in-title as patta lands and the same was used as Kuttai by storing water for irrigation purpose to the patta land and they have been using the property in the same manner for more than 100 years and by paying kist etc. While so, during 1956 after due notice and enquiry, patta was issued by the Settlement Tahsildar in favour of three individuals viz. Munusamy, Ramasamy and Lakshmi Ammal. While doing so, the property was treated as Private kuttai and the plaintiffs are the subsequent purchaser of the same by virtue of registered sale deeds dated 16.9.1972 and 3.8.1974 and the plaintiffs have orally partitioned the property during 1986. Thereafter they have been in separate possession and enjoyment of the property by paying kist, by digging well and by putting up ridges. When the plaintiffs approached the revenue authorities for transfer of patta in favour of their names, they came to know that the same is entered as poramboke land in the revenue records and the same https://hcservices.ecourts.gov.in/hcservices/ compelled the plaintiffs to issue notice to the revenue authorities to correct the same. On the failure of the defendants to do so, the plaintiffs filed the suit for the reliefs as stated supra. 2.The claim of the plaintiffs is seriously resisted on the side of the defendants by contending that the property is kuttai poramboke and not patta land and the plaintiffs' predecessor have been, at no point of time, in possession and enjoyment of the same and the patta was wrongly issued by the Assistant Settlement Officer in favour of the plaintiffs without any basis and the same was subsequently cancelled by the Regular Tahsildar by order dated 5.8.1971 and thereafter the suit property was only treated as Kuttai poramboke and the same is so entered in the revenue records. 3.The trial court decreed the suit in respect of declaratory relief and dismissed the suit in respect of the relief of mandatory injunction on two grounds that (i) patta having been originally issued by the Assistant Settlement Officer in favour of the plaintiffs' predecessor in title, the same cannot be cancelled by the Revenue Tahsildar and the plea of cancellation was not established by producing relevant statutory records and (ii) the plaintiffs have not paid necessary court fee for the relief of mandatory injunction. Aggrieved against the same, the defendants and the plaintiffs have filed Appeal and Cross Appeal respectively. The lower Appellate Court dismissed both the appeal and cross appeal by confirming the judgment and decree of the trial court. Hence, the present second appeal is filed by the defendants before this court. 4.The second appeal is admitted on the following substantial questions of law: a. Whether the courts below committed an error in granting the relief of declaration as prayed for in the plaint? b. Whether the suit claim is barred by limitation? c. Whether the courts below misread the evidence and failed to consider the materials on record in granting the relief of declaration as prayed for in the plaint? 5.The only point that arises for consideration herein is as to whether the courts below are right in granting the relief of declaration in favour of the plaintiffs more fully on the basis of patta issued by the Assistant Settlement Officer without reference to subsequent cancellation by the Regular Tahilsdar? 6.The plaintiffs claim the suit reliefs on the ground that the suit property in question is private property covered under patta issued to private individual and thereafter covered under Ryotwari patta issued by the Assistant Settlement Officer after due enquiry under special enactment and on the strength of the documents as referred to above, the plaintiffs predecessor-in-title was in enjoyment of the same and on the strength of sale transaction made by the plaintiffs during 1972-74, the properties have been subsequently in possession and enjoyment of the plaintiffs. The plaintiffs in support of such claim, produced Ex.A1 https://hcservices.ecourts.gov.in/hcservices/ mortgage deed dated 17-5-1900 and Ex.A2 discharge receipt dated 2-4- 1903, Ex.A3-patta issued in favour of predecessor-in-title, Ex.A4 dated 14.8.1957 and Ex.A5 dated 1.2.1959 orders of the Settlement Officer, Tirupattur and Chennai respectively, Ex.A6 Sale deed dated 16.9.1972 and Exs.A8 to 18-Kist receipts. 7.The learned counsel for the respondents has in support of his contention that Regular Tahsildar has no power to deal with claims under the special enactment and he cannot interfere with patta issued by the Assistant Settlement Officer under the special enactment cited judgment reported in 1996 (I) CTC 217 in Palaniappa Pandaram and 10 others v. The Special Commissioner & Commissioner, Land Administration and 3 others. In that case, the writ petition is filed challenging the order of the second respondent therein in and under which, the second respondent set aside the order of the Tahsildar transferring the patta relating to the land in question in favour of the appellants, who are poojaris of Arulmighu Vijayapuriamman at Kovilpalayam of Erode Taluk and the ryotwari patta was issued by the competent authority under a special enactment in favour of the deity and the same was at the instance of the appellants in the writ appeal, transferred by the Revenue Tahsildar in favour of the appellants. When the same was challenged before the writ petition, the learned single judge upheld the same in favour of deity and the correctness of the order of the learned single judge was challenged before the Hon'ble Division Bench, the Hon'ble Division Bench has upheld the patta issued in favour of deity and negatived the the claim of the appellants by holding that "the Regular Tahsildar of the Taluk under the Revenue side has no power to deal with claims under the special enactment in question. The patta granted in favour of the temple cannot be interfered with by the Tahsildar or any of the ordinary revenue authorities exercising their powers under the Revenue standing Orders and that the patta granted under the said special enactment under a particular provision can, if at all, be interfered or modified only by the statutory authorities provided under the statute itself in the manner and to the extent provided therein". That being the legal position, the order of cancellation of patta issued in the name of the plaintiffs predecessor-in-title is without jurisdiction and non est in law and the same will in no way affect their right conveyed under the sale deed by the original owner. Both the courts below have hence rightly upheld the claim of the plaintiffs' title, right and interest in respect of the suit property. This court finds no reason to interfere with the same. In so far as the relief of mandatory injunction is concerned, both the courts below have negatived the same. As the plaintiffs have not filed any cross appeal against the same, the same deserves no interference. 8.In the result, the second appeal stands dismissed by confirming the judgment and decree of the Courts below. No costs. Sd/ Deputy Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ rk To 1.The Subordinate Judge, Tirupattur. 2.The Additional District Munsif, Tirupattur, Vellore District. +1cc to Mr.V.Raghavachari, Advocate Sr 84740 +1cc to Govt. Pleader (CS) Sr 85014 MS(CO) km/11.11. S.A.No.1689 of 1998 https://hcservices.ecourts.gov.in/hcservices/