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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE SHIVARAJ PATIL & THE HONOURABLE MR. JUSTICE P.D. DINAKARAN
Dharmalinga Odayar
Versus
Sundararajan (alias) Subramanian & Others
WA No. 300 of 1990
Decided On :Decided On : 29-10-1997
None
Fact of the Case:
The appellant, a tenant, filed a petition before the third respondent, the Authorised Officer, under the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1971 (the Act), claiming benefits under Section 3 of the Act. The third respondent, after considering the evidence on record, granted the appellant a patta for eight cents of land. The first respondent, the owner of the land, filed an appeal before the second respondent, the Appellate Authority, which dismissed the appeal and confirmed the order of the third respondent. The first respondent then filed a writ petition in the High Court challenging the proceedings of the third and second respondents on the ground that the application filed by the appellant was barred by limitation. The learned single Judge allowed the writ petition and quashed the impugned orders, holding that the question of limitation goes to the root of the jurisdiction and therefore, the third respondent's order was vitiated by non-application of mind to a very relevant issue. The appellant filed a writ appeal against the order of the learned single Judge.
Finding of the Court:
The High Court allowed the writ appeal and set aside the order of the learned single Judge. The Court held that Rule 3 of the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Rules, 1972 (the Rules), which prescribes a period of limitation for filing an application under Section 4 of the Act, is ultra vires Section 4 of the Act, as the Act does not prescribe any period of limitation for filing such an application. The Court further held that the decree and judgment of the Civil Court, even though may have evidential value, should not be taken as conclusive evidence for deciding the dispute referred under Section 4 of the Act.
Issues: 1. Whether Rule 3 of the Rules is ultra vires Section 4 of the Act? 2. Whether the decree and judgment of the Civil Court is conclusive evidence for deciding the dispute referred under Section 4 of the Act?
Ratio Decidendi: 1. Rule 3 of the Rules is ultra vires Section 4 of the Act, as the Act does not prescribe any period of limitation for filing an application under Section 4 of the Act. 2. The decree and judgment of the Civil Court, even though may have evidential value, should not be taken as conclusive evidence for deciding the dispute referred under Section 4 of the Act.
Final Decision: The High Court allowed the writ appeal and set aside the order of the learned single Judge. The Court held that Rule 3 of the Rules is ultra vires Section 4 of the Act and that the decree and judgment of the Civil Court is not conclusive evidence for deciding the dispute referred under Section 4 of the Act.
P.D. DINAKARAN, J.
1. Heard both the parties.
2. The above appeal is directed against the order dated 3rd January 1990 made in W.P. No. 10833 of 1981.
3. The appellant in the Writ Appeal is the third respondent in the writ petition. The first respondent in the Writ Appeal is the only legal representative of the deceased writ petitioner Ramaswamy Mudaliar. The first respondent was permitted to prosecute the writ petition by order of this Court dated 15.4.1988 in W.M.P. No. 1291 of 1988.
4. For me purpose of convenience, the parties are referred as per their rank in the Writ Appeal.
5. The first respondent herein (the petitioner in the writ petition) filed the above writ petition No. 10833 of 1981 for issue of Writ of Certiorari calling for the records relating to the proceeding of the Appellate Authority, Sub-Collector, Kumbakonam (second respondent herein), dated 10th August 1981 made in K.A.P. No. 17 of 1980, wherein, the proceeding of the Authorised Officer, Special Tahsildar, Kumbakonam (third respondent herein) dated 21.11.1982 made in K.P. No. 913/1979/F2, was confirmed granting eight cents in R.S. No. 5/18. Valarpuram Vattam, Alamkurichi Village. Kumbakonam Taluk, in favour of the appellant herein under the provisions of the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1971 (Act 40 of 1971) (hereinafter referred to as the “Act”).
6. The learned single Judge, by order dated 3.1.1990 in Writ Petition No. 10833 of 1981. which is under appeal, quashed the said order of the Appellate Authority dated 10.8.1981 and therefore, the grant of patta for eight cents to the appellant herein stands cancelled.
7. Aggrieved by the said order dated 3.1.1990, the tenant (appellant herein) preferred this Writ Appeal.
8. The brief facts of the case are stated as follows:
According to the appellant, a site of an extent of eight cents out of sixteen cents in R.S. No. 5/18 of Valarpuram Vattam, Alainkurichi Village, Kumbakonam Taluk, originally belonged to one Chellathatchi, who sold the said site of eight cents to one Pichamuthu Padayachi, who was the father of the respondents 4 and 5 in the appeal, from whom the appellant herein purchased the same. Remaining eight cents in the said site R.S. No. 5/18 belonged to one Ponnusamy Odayar, the 6th respondent herein.
9. The appellant herein, constructed a house in the said site of eight cents as a tenant for annual rent of Rs. 3/- under Pichamuthu Padayachi, namely, the father of the respondents 4 and 5 herein, and thereafter, under Ponnusamy Odayar, the 6th respondent herein. The appellant himself is paying the House Tax.
10. The appellant claims that he is an agriculturist and he is not having any site or house site of his own and therefore, he claims the benefit under the Act.
11. The appellant further contends that he was moving the Revenue Authorities for the enforcement of Kudiyiruppu, but no action has been taken, and therefore, the appellant filed a petition before the third respondent herein. The appellant also prays for condonation of the delay if there was any delay in filing the petition.
12. A detailed counter affidavit was filed on behalf of the first respondent. The first respondent contends that he purchased the eight cents from Pichamuthu Padayachi, namely, the father of the respondents 4 and 5 by a registered sale deed dated 5.2.1971 and took possession of the same.
13. The eastern half of the site of eight cents belongs to Ponnusamy Odayar, namely the 6th respondent herein. According to the counter affidavit filed by the first respondent the appellant had constructed a hut in the eastern half of the site which belongs to Ponnusamy Odayar namely the sixth respondent herein.
14. The first respondent further contends that the appellant is neither a tenant nor a licencee of the said site and therefore the claim of tenancy right is false; the appellant trespassed the eastern half portion belonging to me sixth respondent herein on 28.7.1973 by extending his
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