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2012 Supreme(Mad) 1890
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. VENUGOPAL
Ramalingam
Versus
Government of Tamil Nadu Through Collector, Thanjavur & Another
S.A.No.1597 of 1995
Decided on : 16-04-2012
For the Appellants:Mrs. Chitra Sampath, Mr. R. Sunil Kumar, Advocates. For the Respondents:Mr. Muthiayan, Government Advocate.
Headnote:
Whether the private customary fishery rights in the tanks specified in the plaint did not become vested with the plaintiff by enjoyment over 30 years unless otherwise enjoyed by the villagers in common and so declared by the Government?
Fact of the Case:
The Appellant/Plaintiff filed the present suit praying for the relief of declaration that the order dated 28.11.1973 passed by the Thanjavur District Collector in Na.Ka.No.19884/71 K.12 is invalid and also to declare that he has absolute right in the suit tanks fishery rights and also issuance of direction to the 2nd Defendant to hand over his right of enjoyment of fishery right in respect of 9 tanks to the Appellant/Plaintiff and for costs.
Finding of the Court:
The First Appellate Court has held that there is no evidence that the Appellant/Plaintiff is the heir of deceased Subbiah Mudaliar as evident from the evidence of P.W.1 and has not accepted the finding of the trial Court that the Appellant/Plaintiff is the adopted son of the deceased Subbiah Mudaliar and held that the Judgment of the trial Court is an unacceptable one. Moreover, it also held that to say the Appellant/Plaintiff has got fishery right in suit tanks and further he need not remit any annual income and added further, the allegation that the Appellant/Plaintiff's predecessors have been in enjoyment of the suit tanks have not been established and consequentially it held that it cannot be said that the order of the Thanjavur District Collector dated 28.11.1973 is an invalid one and that it is not correct that the Appellant/Plaintiff to pray for a direction being issued to the 2nd Respondent/2nd Defendant to hand over the enjoyment of the suit tanks to the Appellant/Plaintiff and accordingly, allowed the appeal by setting aside the Judgment and Decree of the trial Court.
Issues: Whether the private customary fishery rights in the tanks specified in the plaint did not become vested with the plaintiff by enjoyment over 30 years unless otherwise enjoyed by the villagers in common and so declared by the Government?
Ratio Decidendi: The fishery rights in the suit tanks is to be construed as annual property or income in the village panchayat, therefore, the suit 9 tanks vest in the village Panchayat as per Section 132 of the Tamil Nadu Panchayats Act and it is to be administered by it for the benefit of the inhabitants or holders. When the suit 9 tanks has been vested in the hands of Village Panchayat as per Tamil Nadu Panchayats Act, then, in respect of the fishery right therein the Panchayat has a right to administer it for the benefit of the inhabitants or holders as mentioned in Section 132 of the Tamil Nadu Panchayats Act, 1994. Therefore, the 2nd Respondent/2nd Defendant Panchayat Union is entitled to conduct fishery right auction as per Rule 11 of Tamil Nadu Panchayat (Lease & Licensing of Fishery Rights), Rules, 1999.
Final Decision: The Second Appeal is dismissed, leaving the parties to bear their own costs. Consequently, the Judgment and Decree of the First Appellate Court in A.S.No.233 of 1992 dated 30.09.1993 are affirmed by this Court for the reasons assigned in this Appeal. The suit filed by the Appellant/Plaintiff is dismissed.
1. The Appellant/Plaintiff has focussed the instant Second Appeal adverting upon the Judgment and Decree dated 30.09.1993 in A.S.No.233 of 1992 passed by the Learned Additional District Judge, Nagapattinam in reversing the Judgment and Decree dated 18.09.1990 in O.S.No.214 of 1982 passed by the Learned District Munsif, Nagapattinam.
2. The Germane Plaint Scenario:
(i) The Appellant/Plaintiff's adopted deceased father Subbiah Mudaliar has been a big landlord at Kurukathi Village in Thiruvarur Taluk. The 9 tanks mentioned in the Plaint schedule have been in enjoyment of the Plaintiff's family for the past 50-60 years. When the Village Panchayat Act of 1958 has come into force all the tanks described as poramboke in Government accounts have been handed over to the Village Panchayat. But concerning village poramboke tanks belonging to private persons, an enquiry has been conducted by the Revenue Officials and the fishing right in the said poramboke tanks belonging to concerned individual, for handing over the same, there has been a provision under the Act. On that basis, the Deputy Collector, Nagapattinam during the year 1963 have conducted an enquiry in respect of 9 tanks mentioned in the Plaint schedule, pertaining to the fishery right and on 27.09.1963 has passed an order.
(ii) As per the Deputy Collector's order, the Plaint 9 tanks fishery right mentioned has been in enjoyment of Plaintiff's adopted deceased father Subbiah and also that he can utilise the revenue derived from fishery right for his own use. In regard to the 9th tank mentioned in the Plaint, the Thiruvasal Tank fishery right has been in enjoyment of Subbiah and the revenue derived from the said tank is used for water charity and for performance of Utsav of Keevalur of Sri Akshyalingaswami Temple Sabsthasthanam, which has been made mention of in the Nagapattinam Deputy Collector's Order. Prior to the year 1958 and also after passing of the order on 27.09.1963 by Nagapattinam Deputy Collector, the 9 tanks mentioned in the Plaint fishery income has been obtained by Plaintiff's adopted father Subbiah and he has been in enjoyment separately.
(iii) Under these circumstances, the deceased Panchayat President of Kurukathi Village Abdul Majid on 18.08.1971 has presented a revision petition before the Nagapattinam Deputy Collector for cancelling the fishery right in respect of suit tanks and to hand over the said tanks to the village panchayat. The former President has enclosed a revision petition's copy along with a letter to Thanjavur District Collector. The District Collector, on receipt of the revision petition, has conducted an enquiry and passed an order on 28.11.1973 and as per the said Collector's order, the Plaint 9 tanks fishery right has been handed over to Kurukathi village panchayat.
(iv) As against the order passed by the District Collector, Thanjavur District dated 28.11.1973, the Appellant/Plaintiff's father has filed a Writ Petition W.P.No.6609 of 1973 and W.M.P.No.10515 of 1973 has been filed praying for the relief of injunction not to interfere with the fishery right revenue to be obtained from the tanks as usual. Till the disposal of Writ Petition, an interim stay has been ordered in respect of the District Collector's Order 28.11.1973 and further, it has been ordered that Subbiah Mudaliar after making payment of Rs.1,000/-through Bank draft in favour of Kurukathi Panchayat President is to enjoy the income of the fishery right from the tanks. (v) On 09.02.1978 in the aforesaid Writ Petition, an order has been passed by this Court dismissing the Writ Petition but advise the Subbiah Mudaliar to approach the Civil Court for proper relief by filing a suit and to establish his claim to oral and documentary evidence in respect of his fishery right relating to the suit tanks. This Court has granted three months time to the Subbiah Mudaliar to file a suit because of the fact that as per Section 80 of the Civil Procedure Code prior notice will hav
