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SUPREME COURT OF INDIA
ARUN MISHRA, AMITAVA ROY, JJ.
The Tahsildar, Taluk Office, Thanjore & Ors. - Appellants
Versus
G. Thambidurai & Another - Respondents
Civil Appeal No. of 2017 [Arising out of S.L.P. (C) No. 35755 of 2015]
Decided On : 09-05-2017
(b) Property law – Revenue Standing Order (RSO) 45(4) – Assignment of bought in land – Default by original owner in paying revenue dues should not be willful – Default should be for circumstances beyond his control – Cancellation of assignment made in favour of third party would not automatically entitle the original owner to avail the preference under RSO 45(4) – He has to satisfy the conditions – Land “bought in” in 1935 for the failure of original owner/the respondent No.1 to pay land tax – Respondent No.1 not objecting to such take over or offering to pay the arrears till 1958 – Respondent No.1, only after assignment of the land, questioning the same on ground of want of prior notice to him – Not questioning the process – Not endeavouring to show that default was not willful, or the same was due to circumstances beyond his control, or that the assignment, if to be made to the respondent No.1/plaintiff would be unobjectionable – Omission to hold public auction before leasing out suit land to Sericulture Development Department and Bharat Petroleum Corporation Ltd., inconsequential. (Para 21, 22, 24, 25)
(c) Property law – Revenue Standing Order (RSO) 45(4) – Land ‘bought in’ and assigned to third parties observing prescribed process – No error – Respondent No. 1 not entitled to preference under RSO 45(4). (Para 24)
[1875] 1 Ch. D. 426; L.R. 63 Ind Ap 372 – Relied upon
Facts of the case:
According to the respondent No. 1/plaintiff,
The suit property belonged to the grand-father of the respondent No. 1/plaintiff, Kailasam Sanaiyar and after his demise, he eventually being the only legal heir had been enjoying the same.
This land was taken over by the Tahsildar, Thanjavur for the government in the year 1935 for non-payment of land tax and was converted into “bought in” land. This land was later converted into “Punjai Tharisu” (Government Dry) fallow land. Subsequent thereto, the suit property was sub-divided. Following further sub-division of the suit property, the same was assigned to Karuppaiah Sanaiyar and Muthusamy Sanaiyar of Thanjavur in the year 1958.
The respondent No. 1 questioned the same before the Tahsildar, who cancelled the same.
The assignees’ application before the Tahsildar and appeal before D.R.O. were dismissed.
The litigation qua the assignment of the suit land in favour of Karuppaiah Sanaiyar and Muthusamy Sanaiyar culminated on 1.4.1991 with the rejection of their appeal by the Commissioner of Land Administration.
At this stage the respondent No. 1/plaintiff pleaded with the Tahsildar for restoration of the suit land to him in the capacity of being the only legal heir of the erstwhile owner with the offer to pay the arrears of land tax which was not acceded.
Respondent No. 1/plaintiff preferred an appeal before the higher revenue authority which also was of no avail. Instead, the land was handed over to the Sericulture Development Department and Bharat Petroleum Corporation Limited.
Respondent No. 1/plaintiff filed a suit.
The Trial Court decreed the suit and directed restoration of the suit land on payment of the tax due.
The First Appellate Court reversed the decree.
The High Court decreed the suit.
Finding of the Court:
Impugned order is not sustainable.
Result: Appeal allowed.
JUDGMENT :
Amitava Roy, J.
Leave granted.
2. The appellants are aggrieved by the judgment and order dated 16.4.2015 rendered by the Madurai Bench of the Madras High Court in SA (MD) No. 626 of 2011, whereby it has directed them to restore the property involved to the respondent No. 1 within a period of two months unconditionally and further to mutate it in his name in all relevant records. This verdict has reversed the pronouncement in Appeal Suit No. 125 of 2006 by which the suit being O.S. No. 299 of 2005, instituted by respondent No.1, had been dismissed. Incidentally, the suit had been decreed by the Trial Court.
3. We have heard Mr. Subramonium Prasad, learned senior counsel for the appellants, Mr. Vivek K. Tankha, learned senior counsel for the respondent No. 1 and Mr. M. Yogesh Kanna, learned counsel for the respondent No. 2.
4. The indispensable facts essential for comprehending the controversy need be gathered at the outset from the pleadings in the suit, in which the present appellants were the defendants along with respondent No. 2.
5. According to the respondent No. 1/plaintiff, the suit property bearing Survey Field No. 199/2 ad-measuring Ac. 4.59 cents and located at Village Pillayarpatti, Thanjavur Taluk belonged to his grand-father, Kailasam Sanaiyar and after his demise, he eventually being the only legal heir had been enjoying the same. It is his pleaded case that this land was taken over by the Tahsildar, Thanjavur for the government in the year 1935 vide fasli 1343 Order No. 18431/35 A3 dated 31.12.1935 for non-payment of land tax and was converted into “bought in” land. This land was later converted into “Punjai Tharisu” (Government Dry) fallow land vide order Ni-mu/164/45/A5 dated 1.3.1945 of the R.D.O., Thanjavur. Subsequent thereto, by Order L.R 158 dated 31.12.1958 of the Special Tahsildar (Loan) and Taluk 8A order vide 51/21-1-59, the Survey Field No. 199/2 was sub-divided into 199/2A ad-measuring Ac. 2.23 cents and S.F. No. 199/2B ad-measuring Ac. 2.36 cents. Following further sub-division of the suit property, the same was assigned to Karuppaiah Sanaiyar and Muthusamy Sanaiyar of Thanjavur in the year 1958. Being aggrieved by this assignment, the respondent No. 1 questioned the same before the Tahsildar, Thanjavur, who by his order R.C. 1015/91 dated 18.6.1971, cancelled the same.
6. At this, the assignees preferred appeal before the D.R.O. Thanjavur, who too dismissed the same on 7.10.1996. The Board of Revenue, to which the assignees carried their further appeal, however by its order dated. 21.10.1978 revised the determination and remanded the matter to the D.R.O., Thanjavur for re-enquiry.
7. This authority, on remand, again cancelled the assignment in favour of the Sanaiyars vide order dated 2.2.1980, whereupon they unsuccessfully appealed against the same before the Commissioner of Land Administration, Chennai, who refused to intervene by his order dated 1.4.1991. Thus, the litigation qua the assignment of the suit land in favour of Karuppaiah Sanaiyar and Muthusamy Sanaiyar culminated on 1.4.1991 with the rejection of their appeal by the Commissioner of Land Administration, Chepauk, Madras, as aforementioned.
8. It was at this stage that the respondent No. 1/plaintiff vainly pleaded with the Tahsildar, Thanjavur for restoration of the suit land to him in the capacity of being the only legal heir of the erstwhile owner with the offer to pay the arrears of land tax. However, as this request fell in deaf ears, he preferred an appeal before the higher revenue authority which also was of no avail. Instead, the land was handed over to the Sericulture Development Department and Bharat Petroleum Corporation Limited. Situated thus, the respondent No. 1/plaintiff returned to the civil court for redress.
9. In the plaint, the respondent No. 1/plaintiff has pleaded that in terms of Revenue Standing Orders (for short, hereinafter to be referred to as “RSO”) 45(4), the lands taken from a person for non-payment of arr
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