2018 Supreme(Mad) 4370

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
S.S. SUNDAR, J.
Thayammal - Appellant
Versus
Government of Tamil Nadu Represented through the District Collector, Madurai & Others - Respondents
S.A. (MD) No. 195 of 2018
Decided On : 25-06-2018

Headnote:

Civil Procedure Code,1980 - Order 41 - Rule 31 - Section 100 - Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 - Section 9,10,7(c),11,14,15 and 64(c) - Tamil Nadu Revenue Recovery Act, 1864 - Tamil Nadu Irrigation Cess Act, 1865 - Suit property and to grant permanent injunction - Suit for peaceful possession and enjoyment - Sole owner having absolute right over suit property for past more than years - Plaintiff is in peaceful possession and enjoyment of suit property - Plaintiff was granted patta in her favour by Assistant Settlement Officer Madurai - After conducting proper enquiry was given to plaintiff - Even before was given to plaintiff suit property was cultivated by plaintiff - Adjacent lands of suit properties were classified as poramboke but enjoyed by others and they were given patta and chitta - In old revenue records suit properties were never classified by Government as but recently suit properties were alone mistakenly entered as in revenue records - Mistake in entry of classification regarding suit property was also rectified by Assistant Settlement Officer on basis of enquiry and on perusal of documents - Village Administrative Officer admitted before Assistant Settlement Officer that suit properties are classified as in revenue records - After patta was issued by Assistant Settlement Officer second defendant did not obey order of Assistant Settlement Officer and refused to enter plaintiffs name in chitta adangal and other revenue records - Order of Assistant Settlement Officer is a final order and no order can be passed by revenue officials contrary to order of Assistant Settlement Officer passed in accordance with provisions of Tamil Nadu Estates Act - Even though other adjacent land owners of suit properties in of Village were granted patta and their names were also included in revenue records plaintiff alone was denied said benefit by second defendant - Whether first appellate court is right in holding that is tainted with fraud without any reason overcome reasoning of lower Court when prescribed authority after evaluating documents for long cultivation of appellant in Kanmoi poramboke granted in favour of her? Whether first appellate court is wrong in holding that is fraudulent one when it is not case of respondent but contended that second respondent has no power to grant patta for kanmoi to appellant under? Whether order passed by third respondent cancelling order of second respondent is hit by violation of principle of natural justice as without giving opportunity to affected parties in order? Whether third respondent has power to cancel settlement patta under Section 7(c) of Tamil Nadu Estates Act, that too after period of years when Act itself prescribes one year for government to prefer appeal under Section 15 of Tamil Nadu Estates Act and hence his order is invalid? Whether order passed by third respondent cancelling order of second respondent is a counter blast to suit filed by appellant? Whether order passed by third respondent cancelling order of second respondent during pendency of suit is sustainable in law? Whether finding of first appellate court not on basis of evidence available before him but solely relied on grounds of appellant without determining points for consideration and hence not satisfied Order 41, Rule 31 CPC? - Held, It is well settled that no can be granted in respect of land which was classified as a tank or etc - Hence first substantial question of law has no merits and appellants admission by framing this question of law would also support case of respondent State - Assistant Settlement Officer has passed an order by reclassifying land to favour appellant - Appellant cannot file a suit to get a declaration on basis of order passed by Assistant Settlement Officer and hence suit itself is not maintainable - During pendency of suit third respondent has set aside order passed by Assistant Settlement Officer and validity of order passed by third respondent is also raised as an issue - However when a mistaken or fraudulent order is brought to notice of Commissioner he can take corrective measure and for that there is no time limit - In present case order passed by Assistant Settlement Officer was not noticed till he applied for grant of revenue patta on basis of order Revenue officials did not oblige appellant as no patta can be granted in respect of a land which is classified as - It was in these circumstances revenue officials seems to have approached third respondent and appraised facts and records - It is only on basis of classification of land at time of settlement and authenticated records of revenue Commissioner of Land Administration has set aside order - This was also challenged in pending suit by filing an amendment - This is not a case where suit has been filed for declaration of title - A suit can be filed to nullify legal implications of an order passed by authority - Here suit itself is filed to ratify order of Assistant Settlement Officer and to set aside order passed by revisional authority which is not permissible - Further it has been by this Court in case v Special Commissioner and Commissioner of Land Administration Chennai reported in that Commissioner can pass orders when an irregular order is passed by mistake or by playing fraud - Appeal Dismissed