LawDistill
Supreme Court of India

SALEM MUNICIPALITY vs P.KUMAR on 15 November, 2018

Cites 3 provisionsCites 1 judgmentsCited by 0
2018 INSC 1058C.A. No.-000009-000011 - 2014Official PDFAuthor Arun Kumar MishraBench Arun Kumar Mishra, Vineet SaranAdvocates VINODH KANNA B. | R. CHANDRACHUD
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs.9-11 OF 2014
SALEM MUNICIPALITY Appellant(s)
Versus
P.KUMAR & ORS. Respondent(s)
WITH
CIVIL APPEAL Nos.12-14 OF 2014
O R D E R

(a) the Tamil Nadu Estates Land

(Reduction of Rent) Act, 1947

Tamil Nadu Act XXX of 1947 [in so

far as it relates to] matters

other than the reduction rents

and the collection of arrears of

rent and the Tamil Nadu Permanent

Settlement Regulation, 1802 Tamil

Nadu Regulation XXV of 1802, the

Tamil Nadu Estates Land Act, 1908

Tamil Nadu Act 1 of 1908, and all

other enactments applicable to

the estate as such shall be

deemed to have been repealed in

their application to the estate] (b) the entire estate including all

communal lands; porambokes; other

nonryoti lands; wastelands;

pasture lands; Lanka lands;

forests; mines and minerals;

quarries; rivers and streams;

tanks and ooranies (including

private tanks and ooranies and

irrigation works] fisheries and

ferries, shall stand transferred

to the Government and vest in

them, free of all encumbrances

and the Tamil Nadu Revenue

Recovery Act, 1864, the Tamil

Nadu Irrigation Cess Act, 1965,

and all other enactments

applicable to ryotwari areas

shall apply to the estate; (c) all rights and interests created

in or over the estate before the

notified date by the principal or

any other landholder, shall as

against the Government cease and

determine;

(d) 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

for 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;

(e) the principal or any other

landholder and any other person,

whose rights stand transferred

under clause (b) or cease and

determine under clause (c), shall

be entitled only to such rights

and privileges as are recognized

or conferred on him by or under

this Act] (f) the relationship of landholder

and ryot, shall, as between them,

be extinguished; (g) any rights and privileges which

may have accrued in the estate to

any person before the notified

date, against the principal or

any other landholder thereof,

shall cease and determine, and

shall not be enforceable against

the Government or such landholder

and every such person shall be

entitled only to such rights and

privileges as are recognized or

conferred on him by or under this

Act.]”

It is also provided in Section 3(c) that all

rights and interests created in or over the estate

before the notified date by the principal or any

other landholder, shall against the Government

cease and determine.

It is apparent that under Section 3 of the Act

of 1948 vesting is automatic by virtue of the

statutory provisions and government is empowered to

take possession as provided under Section 3 (a)

only saving in the proviso to section 3(d) is that

in case any person is prima facie entitled to

ryotwari patta and during pendency of his

application, for the settlement, was not to be

dispossessed. In the case of the landholder, it is

provided that if the decision is pending before the

Settlement Officer and the Tribunal on appeal, the

State before taking possession has to prima facie

consider whether landholder is entitled to ryot

patta. Another consequence of vesting as clearly

provided in Section 3(f) of Act of 1948 is that the

relationship between the landholder and Ryot shall

stand extinguished.

Section 3(g) of the Act of 1948 specifically

provides that right which may have accrued in the

estate to any person before the notified date shall

not be enforceable against the government and such

person shall be entitled only to such rights and

privileges as are recognised or conferred on him as

provided under the Act of 1948.

Section 11 deals with rights of a ryot in an

estate to apply for a ryotwari patta in respect of

ryoti land which was properly included or ought to

have been properly included in his holding.

Section 11 is extracted hereunder:

“Lands in which ryot in entitled to

ryotwari patta:

“11. Every ryot in an estate shall,

with effect on and from the notified

date, be entitled to a ryotwari patta

in respect of ;

(a) all ryoti lands which,

immediately before the notified date,

were properly included or ought to

have been properly included in his

holding and which are not either

Lanka lands or lands in respect of

which a landholder or some other

person is entitled to a ryotwari

patta under any other provision of

this act; and

(b) all Lanka lands in his occupation

immediately before the notified date,

such land having been in his

occupation or in that of his

predecessors-in-title continuously

from the 1st day of July 1939.

Provided that no person who has been

admitted into possession of any land

by as landholder on or after the 1st

day of July 1945 shall, except where

the Government, after an examination

of all the circumstances otherwise

direct, be entitled to a ryotwari

patta in respect of such land.

Explanation: No lessee of any Lanka

land and no person to whom a right to

collect the rent of any land has been

leased before the notified date,

including an ijaradar or a farmer of

rent, shall be entitled to a ryotwari

patta in respect of such land under

this section.”

Section 12 deals with the right of the

landholder in zamindari estate and Section 13

deals with the landholder of Inam estate with

which we are not concerned in the present case.

Plaintiff has claimed the right, title and

interest as ryot, not as landholder.

Section 14-A was inserted by amendment Act

49 of 1974. The provisions contained in Section

14-A is extracted hereunder;

“Ryotwari patta not to be granted in

respect of private tank or oorani:

14-A.(1) Notwithstanding anything

contained in this Act, no ryotwari

patta shall be granted in respect of

any private tank or oorani.

(2) Any ryotwari patta granted in

respect of any private tank or oorani

under this Act before the date of the

publication of the Tamil Nadu Estates

(Abolition and Conversion into

Ryotwari) Amendment Act, 1974, in the

Tamil Nadu Government Gazette, shall

stand cancelled, and for purposes of

compensation under this Act the

private tank or oorani shall be

deemed to be land in respect of which

neither the landholder nor any other

person is entitled to ryotwari patta

under this Act.”

Section 14-A(1) makes it clear that

Notwithstanding anything contained in this Act,

no ryotwari patta shall be granted in respect of

any private tank or ooranies. Even if any patta

has been granted the same shall stand cancelled

and the land of the private tank or oorani shall

be deemed to be land of neither the landholder

nor any other person is entitled to ryotwari

patta under the Act.

It is apparent from the conjoint reading of

the provisions contained in Sections 3(15) and 3

(16) of the Act of 1908 and the provisions

contained in Section 3, 11 and 14-A of the Act

of 1948 that the land of the tank is not ‘ryoti

land’ as such no rights of ‘ryot’ could accrue

in the person by holding the land on temporary

arrangement of lease granted for 8 months in a

year when water was not there in the tanks.

Such bodies are protected by virtue of the

aforesaid provisions carved out under the Acts

of 1908 and 1948. The amendment made in 1974 in

Section 14-A makes it clear that even if any

ryot patta has been granted to any incumbent

even with respect to private tank or ooranies

that shall be inoperative and stand cancelled.

In the instant case, it is apparent that

not only S.Vijayaranga Mudaliar the vendor of

plaintiff had applied for a grant of patta under

the provisions of Section 11 of the Act of 1948,

but the same very prayer had been unsuccessfully

made four times by the original plaintiff. All

such prayers made in 1953, 1968, 1971, 1982 and

1994 had been rejected. It is not in dispute

that ryotwari patta had not been granted. In

the order passed rejecting review in 1973, there

is categorical finding that land is comprised in

the tank and area was liable for submergence and

formed part of the irrigation tank. Once the

claim of the original plaintiff had been

rejected, it was incumbent upon him to file a

suit for establishing his rights, if any. He

could not have waited till 1984, after initial

rejection of the prayer in 1953. Again, could

not have waited till December 1984 after the

rejection order was passed in 1968 and again on

11.5.1971 and review had been dismissed on

7.5.1973. In the absence of grant of ryotwari

patta and even otherwise in view of the fact

that land formed part of tank reserved for

common use, no right accrued to the plaintiff to

claim ryotwari patta as his predecessor was not

‘ryot’ and the disputed land was not ‘ryoti

Land’. Apart from that, vendor of the plaintiff

did not hold land for 12 continuous years, as

such no right, title or interest accrued to the

vendor of the plaintiff or to the plaintiff.

The Trial Court, as well as the High Court, have

committed patent illegality in ignoring the

aforesaid prohibition contained in the

provisions of the Act of 1908 as well as of the

Act of 1948.

Coming to the question of possession, the

High Court has discarded B-9 proceedings taking

possession on 12.1.1951. Though, there was

absolutely nothing to doubt factum of taking

over the possession. It is also apparent that

the land formed part of tank which used to go in

submergence during the rains from the month of

July to October, it was not capable of being

possessed continuously. No patta was granted to

the vendor of the plaintiff for a complete year

at any point of time, it was from November to

June. The four lease deeds for the period of

four years are for 32 months i.e. 8 months each

year, have been placed on record of 1940, 1942,

1943 and 1946, no other lease has been produced

indicating that he was holding land for 12 years

or any lease of the land as on the date when the

Act of 1948 came into force or on the appointed

day. Even the vendor was not in possession of

the land as the entire estate of the village

stood vested in the state, as per the

notification issued on 12.1.1951, possession had

been taken. Thus, there was absolutely nothing

to hold that possession continued with the

vendor of the plaintiff. After the purchase was

made by Pachiappan in 1952 there is not even

single revenue entry placed on record indicating

that he ever remained in possession at any point

of time or cultivated the land. On the other

hand, various documents to the contrary have

been placed on record by the appellant.

Firstly, there are copies of settlement

register indicating the land comprised in new

survey No. 163 corresponds to 779 old and same

is recorded as Poramboke (common land) for

common use. Entire area 24.62 acre had been

recorded as Poramboke. There is yet another

settlement entry of 1959 which records that

Survey No.163 had been carved out of 779 in an

area 24.62 acre and area has been recorded as

Achuveri i.e., lake and also Porampoke i.e., for

the common use. The document records the fact

that Pachiappan’s application for grant of

ryotwari patta has been rejected on 5.11.1968.

Survey Map of the village also records that the

old survey number 779 has vested in the State.

When we consider Exh B-13, Fasli 1379 = 1969

year (Gregorian) the land has been recorded as

Chinneri (small lake). In the remarks column

possession of several persons is recorded as a

trespasser, but not that of the plaintiff -

Pachiappan. Similar is the position in the

entry of various Fasli 1380 = 1970, 1381 = 1971,

1382 = 1972, 1383 = 1973, 1384 = 1974, 1386 =

1976, 1390 = 1980, 1391 = 1981 till 1405 = 1995.

The entries in remarks column shows neither

ownership nor tenancy as observed by this Court

in Beohar Rajendra Singh v. State of M.P. and

others,1970 RN 16 (Supreme Court).

Other documents are also placed on record

indicating that area is Chinneri (lake) of

common use. Thus, there was absolutely no

material or ground available to the High Court

to set aside the finding of possession recorded

by the First Appellate Court and for discarding

the B-9 of taking possession in 1951 as that was

supported by corresponding revenue entries and

statutory presumption of correctness is attached

to such entries though such presumption is

rebuttable. However, there is absolutely no

evidence adduced on record by the plaintiff to

rebut the statutory presumption of correctness

of document of record of rights. Thus, trial

court, as well as the High Court, has acted in a

perverse manner in discarding the overwhelming

evidence merely on the ground that document A-1

to A-4 stands proved. The High Court could not

have inferred in favour of the plaintiff, as no

right accrued to the plaintiff or to his

predecessor-in-interest on the basis of the

aforesaid document A-1 to A-4. The High Court

has unnecessarily drawn adverse inference just

in order to give a finding of the genuineness of

the document A-1 to A-4. We take these

documents as proved and proceed to deal with the

case on that basis.

When we consider the documents A1 to A-4,

taken as proved, not only they fail to advance

the cause espoused by the plaintiff but rather

negates it. Ex.A-2 are the 4 pattas placed on

record by the plaintiff granted in favour of

S.Vijayaranga Mudaliar as predecessor interest

of 1940, 1942, 1943 and 1946. The lease deed

itself records that land was comprised in the

tank and formed part of the tank. Thus, no right

or title or interest could have accrued to the

plaintiff over the said land.

Apart from that, when we consider sale deed

A-1, executed by S.Vijayaranga Mudaliar in

favour of original plaintiff Pachiappa, the

recital in the sale deed is that though patta

was granted in his name he could neither

cultivate nor able to look after the same, as

such, he has decided to sell the land. In

Exh.A-3 rent register of Fasli 1369 = 1959. It

only records the rent not the factum of lease or

possession or cultivation by S.Vijayaranga

Mudaliar. A-4 is document of the year 1949 that

records the name of S.Vijayaranga Mudaliar but

in that, no cultivation is recorded of

S.Vijayaranga Mudaliar. It records only how much

was the cess of land. No case is made out in

favour of vendor of the plaintiff on the basis

of the entry of amount of land cess or land

revenue of the year 1949. Merely recording the

cess or revenue in the year 1949 or even

assuming it was paid by the vendor in 1949, is

not going to confer title in favour of vendor,

particularly when the area was comprised in the

tank. In case any lease had been granted for

the period of 1947 to 1949 ought to have been

placed on record but no such lease deeds except

for four years have been placed on record.

Thus, the finding recorded by the High Court as

to possession is clearly perverse and contrary

to the revenue records and the Gazette

notification of vesting of land in State issued

in 1951.

It is no doubt true that under Section 114

of the Evidence Act, there is a presumption of

continuance of a state of affairs once shown to

have prevailed. It is open to the court under

Section 114 to presume the continuity of any

fact once shown to have prevailed. Such

presumption of continuity can be drawn not only

forward but backward also. Court can presume

that such state of affairs might have existed in

past also unless discontinuity is proved. In

the instant case, it is not shown by any

affirmative evidence on record in the form of

revenue record that the plaintiff’s vendor was

in possession on the date of abolition and

thereafter plaintiff remained in possession at

any point of time. This Court has observed in

Sir Bhimeshwara Swami Varu Temple v. Pedapudi

Krishna Murthi and Ors., AIR 1973 SC 1299 that

by stray entry no such presumption arises. On

the other hand, the successive five attempts

made by the plaintiff and his vendor failed to

obtain ryotwari patta as no right in such land

existed neither accrued. The plaintiff due to

failure to obtain ryotwari patta and even

otherwise as land formed part of tank has failed

to prove entitlement to be treated as Ryot. No

right, title or interest has accrued to the

plaintiff to obtain any ryotwari patta or for

obtaining decree in the suit.

It was urged before us on behalf of the

appellant that suit was barred by limitation by

virtue of provisions contained in Article 58 of

the Limitation Act 1963. The suit was required

to be filed within three years. We need not go

into the question. We have found on merits that

absolutely no case is made out in favour of the

plaintiff. Thus, he was not at all entitled

for any relief.

The High Court has considered another

aspect of the difference in area, it has opined

that earlier it appeared that land was 15.00

acres only later on how the area was increased

to 24.62 acres has not been explained by the

defendants. The aforesaid reasoning recorded by

the High Court is totally based upon the

ignorance of the material aspects and evidence,

as a matter of fact earlier dispute land was

comprised in survey no. 779 and which

corresponding to new s.no. 163 in 24.67 acres,

said area has been continuously recorded in the

revenue papers and register of settlement, right

from the beginning. After 1948 till 1995, no

cogent document indicating the disparity in the

area has been filed by the plaintiff. Even

assuming that the finding recorded by the High

Court is correct, it passes comprehension how

that helps the case of the plaintiff. Plaintiff

has to succeed only on the strength of his case

and when temporary leases had been granted to

his vendor within the area of tank as mentioned

in the lease deeds which was reserved for the

common use, no right could have accrued. The

High Court has ignored and overlooked this

material aspect. In case, the area has

increased from 15 acres to 24.62 acres and has

not been explained how the plaintiff can claim

any right in the land which formed part of water

body is not understandable as the case of the

plaintiff is not at all or buttressed by the

aforesaid discrepancy even if it exists.

Moreover, the entire area of 24.63 acres has

been recorded as Chinneri (tank) and poramboke

i.e., for common use.

Now, we deal with last ground raised by

learned senior counsel on behalf of the

plaintiff based on provisions contained in

section 64 of the Act of 1948. Section 64 deals

with the right of the owner, occupier not to be

affected by temporary

dispossession/discontinuance of possession.

Section 64 is extracted hereunder:

“Rights of owner or occupier not to

be effected by temporary

discontinuance of possession or

occupation:

64. Where a person-

(a) is entitled to the ownership of

to the possession or occupation of

any land or building immediately

before the notified date, but has

transferred his right to the

possession or occupation thereof or

has been temporarily dispossessed or

deprived or his right to the

occupation thereof; and

(b) has not on that date lost his

right to recover the possession or

occupation of such land or building;

He shall, for the purposes of this

Act, and subject to the provisions

thereof be deemed to be the owner, or

to be in possession or occupation, of

such land or building;

Provided that any lawful transferee

of the right to the title to such

land of building shall be entitled to

all the rights this Act of his

transferor.

Section 64 pre-supposes that a person is

entitled to ownership or possession or occupancy

of any land immediately before the notified

date. In case of temporary dispossession or

deprivation of his right to occupation hereafter

and he has not lost the right to recover the

possession of such a land or building shall for

the purpose of the Act be deemed to be the owner

or to be in possession or occupation of such

land or building.

There cannot be any dispute with respect to

legal provisions in Section 64 of the Act of

1948. It is settled proposition of law that in

case of wrongful dispossession or discontinuance

of possession of owner, possession of person who

has wrongfully taken it is deemed to be that of

the true owner, but in the instant case, the

provisions of Section 64 render no help to the

plaintiff for the singular reason that his

vendor is not proved to be the owner of the land

nor has proved his occupation on the date of

abolition or that it had been discontinued in

illegal manner, no such right of vendor to

remain in possession has been established.

Plaintiff’s vendor was not having any right,

title or interest after the lapse of temporary

leases. Consequently, he did not possess any

transferable right in the land. Hence,

Pachiappan did not derive any right, title or

interest from his predecessor in the land as he

had none. Plaintiff was required to prove

derivative title in which he has miserably

failed. It was mentioned in recital in the sale

deed by his vendor that he was not able to

possess land nor could cultivate it.

Apparently, the vendor of the plaintiff was not

in occupation of land. Moreover, possession had

been taken in 1951 of entire estate by the State

Government as apparent from the Gazette

notification, the land of the entire village

stood vested in the State.

The State Government has handed over the

land to Salem Municipality and a major part of

it has been given to the Anna Transport

Corporation for the purpose of the bus stand.

The High Court has observed why entire land was

not given to Transport Corporation by

Municipality and consequently inferred in favour

of the plaintiff, only part of the land has been

given could not have been made the basis by the

High Court to derive a conclusion in favour of

the plaintiff so as to buttress the title. The

High Court has gravely erred in recording such

an inferential finding. There was no scope to

arrive at the same. The approach employed by

the High Court is wholly impermissible,

unsustainable, perverse and illegal.

Thus, we have no hesitation in setting

aside the judgment and decree passed by the High

Court and restoring that of the First Appellate

Court. All the three suits stand dismissed. As

there was multiplication of various proceedings

and three suits were filed, we impose cost of

Rupees One Lakh upon the plaintiff/respondent to

be deposited with the Welfare Fund of Supreme

Court Advocate-on-Record Association within two

months and receipt be filed in the Registry.

The appeals are allowed.