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1999 Supreme(Mad) 604
High Court of Judicature at Madras
K.P. SIVASUBRAMANIAM
The Government of Tamil Nadu, by its collector of Ramanathapuram at Madurai & Others
Versus
Peria Pallivasal Abiramam by its Trustee & Another
Second Appeal No. 1210 of 1986
Decided On :Decided On : 05-07-1999
For the Appellants :P.M. Bhaskaran, Advocate.
For the Respondents:N. Maninarayanan, Advocate.
The rights of the pallivasal have to be determined from two different aspects namely, (i) the right of the pallivasal vis-a-vis the Government and the panchayat and (2) the rights of the pallivasal vis-a-via the general public regarding the user of the oorani, by the non-muslim population in the village.
Headnote:
MADRAS ESTATES (ABOLITION AND CONVERSION INTO RYOTWARI) ACT, 1948 - OORANI - CLASSIFICATION AS PORAMBOKE - RIGHTS OF PALLIVASAL - EXTENT OF CONTROL BY PANCHAYAT - DECREE GRANTED BY COURTS BELOW HOLDING THAT PALLIVASAL IS ENTITLED TO OORANI CANNOT BE SUSTAINED - LIMITED DECLARATION CAN BE GIVEN IN TERMS OF CONCLUSIONS RECORDED.
Fact of the Case:
The plaintiff/Peria Pallivasal, Abiramam, through its trustee, had prayed for a declaration that the plaintiff is entitled to the suit property (Uppoorani) in Survey No. 249/2 Abiramam and that the resolution No. 45 dated 24.11.1973 of the panchayat was void and cannot affect the rights and enjoyment of the suit property by the plaintiff and for a consequential relief of injunction restraining the defendants from in any manner interfering with the enjoyment of the suit property by the plaintiff.
Finding of the Court:
The classification of Uppoorani is rightly held as Uppoorani poramboke. After the take-over of the Zamindari, the rights of the Pallivasal are to be defined, worked out and governed within the four corners of the provisions of the Act 26 of 1948. It is not as if the Pallivasal is not aware of their limited rights.
Issues: 1. Whether the plaintiff/pallivasal is entitled to the oorani? 2. What are those rights and user to which the pallivasal would be entitled to? 3. What are the pre-existing rights of the pallivasal vis-a-vis the Government and the panchayat? 4. What is the extent of control the panchayat can have over the property?
Ratio Decidendi: 1. The mere circumstance of the Abiramam Panchayat passing the resolution No. 45 dated 29.11.1973 cannot be a justification for the pallivasal to assert title to the property or to challenge the classification of the oorani as oorani poramboke, totally ignoring all the aforesaid facts and circumstances and the legal limitations. 2. The rights of the pallivasal have to be determined from two different aspects namely, (i) the right of the pallivasal vis-a-vis the Government and the panchayat and (2) the rights of the pallivasal vis-a-via the general public regarding the user of the oorani, by the non-muslim population in the village. 3. The pallivasal was fully aware of their rights consequent on the take over of the estate and that is the reason why pallivasal itself had approached the Government on various occasions as pointed out earlier. 4. The concurrent findings of the Courts below are that the pallivasal was in enjoyment of the Oorani from 1897 and was also exercising fishery rights. The said finding has to be confirmed and held as a pronouncement on the pre-existing rights exercised by the pallivasal which would be relevant for working out the extent of the right to be declared in favour of pallivasal, subject to the provisions of the Act 26 of 1948. 5. The panchayat cannot exercise better rights than what the Government itself is entitled to under the Act 26 of 1948.
Final Decision: There shall be a decree (a) declaring that the plaintiff/pallivasal is entitled to continue in possession and enjoyment and to exercise fishery rights in the suit property, subject to the rights of the general public and subject to the rights, liabilities and limitations prescribed under the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act. 26 of 1948 and the orders issued by the Government from time to time under the said Act (b) granting injunction restraining the defendants, their agents and employees from interfering with the enjoyment of the suit property by the plaintiff but subject to the rights of the defendants to take such legal steps as may be necessary for the enforcement of their respective statutory duties and functions.
This Second Appeal is directed against the judgment of the learned Additional District Judge, Ramanathapuram, at Madurai, in A.S. No. 21 of 1984 confirming the judgment of the learned District Munsif, Paramakudi, in O.S. No. 122 of 1981. Defendants 1 to 3 are the appellants in the above Second Appeal.
2.The Plaintiff/Peria Pallivasal, Abiramam, through its trustee, had prayed for a declaration that the plaintiff is entitled to the suit property (Uppoorani) in Survey No. 249/2 Abiramam and that the resolution No. 45 dated 24.11.1973 of the panchayat was void and cannot affect the rights and enjoyment of the suit property by the plaintiff and for a consequential relief of injunction restraining the defendants from in any manner interfering with the enjoyment of the suit property by the plaintiff. The first defendant in the suit is the State of Tamil Nadu represented by the District Collector. Second defendant is Abiramam Town Panchayat while the third defendant is the Tamil Nadu Wakf Board. The plaintiff contended that the entire area comprising the oorani was a single unit surveyed and recorded as Paimash No. 10 in ancient Olugu account for fasli 1336. Paimash No. 10 was not cultivated as agricultural lands and therefore, the entire paimash number was recorded as poromboke. There was no change, in the user of the word poromboke which expression simply connotes property which is not assessed to land revenue. According to the plaintiff, the entire paimash No. 10 including oorani its bound and the adjacent vacant site belonging to the Pallivasal as a single unit. In the course of certain investigation, the karnam of the village appears to have reported that the Pallivasal came into existence after the preparation of the accounts during fasli 1323. The plaintiff does not admit the same and according to the plaintiff the Pallivasal was in existence for more than a century and the origin of the same was not traceable. At any rate the entire unit in Paimash No. 10 was under the control and management of pallivasal. The bunds do not yield any income and the vacant site has been occupied by pallivasal by putting up the building. The oorani is a source of income and fish was grown in the oorani and the natural growth is sold periodically and the entire income collected and appropriated by the pallivasal. Therefore, the fish in the oorani was a kind of crop similar to the crops in the agricultural lands which were solely enjoyed by pallivasal. This was going on for a very long time even during the period of Ramnad Zamindary, who was the owner of the entire village. Therefore oorani and the vacant site must have been granted to the pallivasal long ago before the time registered documents came into practice. Therefore according to the plaintiff the principles of law relating to lost grant would be applicable and thus pallivasal has become the sole owner of oorani. The plaintiff would further state that it was true that oorani waters are also used for bathing and washing purposes. The Muslim inhabitants were using the oorani as a matter of right. The area is a dry area and therefore, males belonging to other communities were also allowed by the pallivasal to use the oorani for bathing purpose only as a matter of charity and such user was based on leave and licence either orally granted to each person or by acquiescence in favour of each individual person. Such a user cannot in any manner create any property or other legal right in favour of any individual person or community.
3. The Ramnad Zamindari was notified and taken over by the first defendant in September, 1949 under Madras Act XXVI of 1948 (hereinafter called “the Act”) But even thereafter the enjoyment of oorani, its water and the fishing have been only enjoyed by pallivasal. It was further stated in the plaint that there is some difficulty in the interpretation and application of various provisions of the Act and the exact position vis-a-vis the Government has not yet been
