Salem Municipality vs P.Kumar .

Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.9-11 OF 2014

SALEM MUNICIPALITY Appellant(s)

Versus

P.KUMAR & ORS. Respondent(s)

WITH CIVIL APPEAL Nos.12-14 OF 2014

O R D E R

The Salem Municipality and State of Tamil Nadu

and others are in appeals aggrieved by the

judgment and decree passed by the High Court of

Judicature at Madras on 8.12.2010 thereby deciding

three Second Appeals by the common judgment and

order reversing the judgment and decree passed by

the First Appellate Court of dismissal of the

suits and restoring that of the Trial Court.

It was claimed by the plaintiff that

initially, the lease was granted in favour of S.

Vijayaranga Mudaliar on 19.11.1940 by the

erstwhile Zamindar – Ms.Gnanambal. It was from

the month of November 1940 to the month of June 2

1941.

Similar leases had been granted on 19.11.1942

in 1943 and 1946. In the lease deed area was

described as “Chinneri Tank Bund Side -Waste dry”

and “Chinneri Tank Bund Upper-dry”.

It is significant that each of lease had been

granted for eight months, each year continued from

November to June next year, to expire before the

commencement of rains in July as the land used to

be submerged as it was situated in Chinneri Bund

side.

It was claimed by the plaintiff that his

predecessor in title, continued in possession of

the land when the Act called the Tamil Nadu

Estates (Abolition and Conversion into Ryotwari)

Act, 1948 (in short “the Act of 1948”) came into

force. The Act was published on 19.4.1949.

Sections 1,2,4,5,7,8 58-A,62,67 68 came into force

on 19.4.1949, as provided under Section 1(4) of

the Act of 1948. The State Government enforced the

other Sections on the appointed date i.e.

19.12.1950. Thereafter, the entire Pallapatti

village vested in the State as notified under the 3

Act of 1948. Pursuant thereto, the possession of

the entire village was taken over by the

Government, which included the disputed land also,

vide possession receipt dated 12.1.1951.

The original plaintiff –late P.C. Pachiappan

purchased 4.91 acres of land from S. Vijayaranga

Mudaliar. The suits are with respect to said

land.

It transpires that late Vijayaranga Mudaliar

had applied for a grant of Ryotwari Patta under

section 11 of the Act of 1948. The prayer was

rejected on the ground that land was not ryoti

land and it was recorded as community land.

Thereafter, settlement in the area was undertaken

and was finally notified in the Gazette dated

21.12.1963. Thereafter, P.C. Pachiappan applied

under section 11 of the Act of 1948 for grant of

Ryotwari patta of the newly carved out Survey

No.163 corresponding to old survey No. 779.

Prayer for grant of Ryotwari patta of the disputed

land was rejected vide order 5.11.1968 passed in

DOS 739/68 (F-2) by Assistant Settlement Officers

KDIS No. 737/1968. As recorded in the survey land 4

register, Exhibit B-2, prepared in the survey and

settlement in 1959, the total area of the land 163

= 779 was 24.62 acres, recorded as Achuvan Eri

(lake). Hence, it could not have been allotted.

A second application for ryotwari patta moved

by Pachiappan was rejected as per government Order

dated 11.5.1971. Review application was filed by

Pachiappan. It was also rejected vide order dated

7.5.1973 on the ground that records of rights made

it apparent that disputed land formed part of

‘Achuvaneri' which is IV class irrigation source

with wet ayacut registered under it and that it is

retained as the tank in the interest of ayacutdars

under it. It was also observed that the entire

area comes into submergence and the land in

question forms part of the irrigation tank.

Unfettered by the previous two rejections,

Pachiappan again for the third time applied for

issuance of patta on 21.6.1982. That application

was ultimately rejected vide Ex. P-5 on 9.5.1984.

On 23.2.1984, by virtue of the Office

Memorandum 255, the Transport Department of the

State Government handed over Survey No.163 5

admeasuring 24.62 acres to Salem Municipality for

construction of a new bus stand.

Pachiappan had filed a civil suit on

20.12.1984 registered as O.S.34 of 1985 in the

Court of District Munsiff of Salem against the

State of Tamil Nadu and M/s. Anna Transport

Corporation for declaration of title and permanent

injunction in respect of 4.91 acres of the land,

out of survey No.163.

Yet another civil suit came to be filed by the

same plaintiff as against Salem Municipality alone

for declaration and injunction on 22.12.1989.

Thereafter, the fourth application was filed

for obtaining ryotwari patta by Pachiappan on

26.3.1992. He had filed yet another writ petition

No.3932/1992 for restraining the respondents from

disturbing peaceful possession and enjoyment of

the property.

In Writ Petition No.5642/1992 he prayed that

respondent may be directed to consider an

application for grant of ryotwari patta. However,

both the writ petitions were dismissed as

withdrawn. Earlier writ petition filed in 1984 6

was also dismissed with liberty to file a civil

suit.

Third suit O.S.No.342/1996 (348/95)

(renumbered as 2066/96) was filed as against Salem

Municipality, Anna Transport Corporation and State

of Tamil Nadu. He has prayed for the same relief

in the third civil suit.

By virtue of the various leases granted to

S.Vijayaranga Mudaliar, he became entitled to

obtain ryotwari patta under Section 11 of the Act

of 1948. Plaintiff entered into an agreement to

purchase the suit property in 1951 which

culminated into a sale on 29.9.1952. The suit

property never formed part of the communal land of

Achuvan Eri or its tank bund. Further, the extent

of the Achuvan Eri as per the records is only

15.00 acres. The Plaintiff had remained in actual

possession and enjoyment of suit property. In the

year 1982, Forest Department attempted to commit a

trespass in the suit property and put up a

nursery. The plaintiff objected and obtained the

stay orders from the Government of Tamil Nadu

against trespass. The Forest Department withdrew 7

and was restrained from further work. The

plaintiff also filed applications for grant of

ryotwari patta in his favour and his predecessor

in interest since 1940 onwards had prescribed his

title by virtue of adverse possession also.

Earlier suit No. OS.34/1985 was dismissed in

default, in the absence of both the parties. The

application No.I.A. 583/94 for its restoration was

pending. The cause of action arose in the year

1940, thereafter in 1952, when the sale deed was

executed and again in the year 1984. Besides

declaration and injunction, prayer was also made

for demarcation of the property in question.

After the restoration of the suit of 1985,

three suits were decided vide common judgment and

decree dated 27.4.2000 passed by the Trial Court,

Additional District Munsif of Salem. The suit was

decreed on 27.4.2000. The appeals were allowed by

the First Appellate Court i.e., First Additional

District Court, Salem vide judgment and decree

dated 30.1.2004. Aggrieved thereby, three-second

appeals, which were preferred have been allowed by

the impugned judgment and decree thereby restoring 8

that of the Trial Court.

The High Court has given the finding that

there is nothing to doubt the various leases

granted to S.Vijayaranga Mudaliar. Sale deed has

also been relied upon, the documents A-1 to A-4

have been relied upon by the High Court. The High

Court has drawn adverse inferences against the

appellants for not producing record pertaining to

the aforesaid documents A-1 to A-4. High Court has

disbelieved documents B-9 of taking possession on

12.1.1951. Finding of possession has been arrived

at in favour of the plaintiff. The High Court has

also doubted the action of Salem Municipality of

handing over only 19.64 acres area to the

Transport Corporation for bus stand, whereas the

entire land 24.62 acres has been given to the

Salem Municipality by the Tamil Nadu Government.

High Court has further stated that there is no

estoppel created against the plaintiff by virtue

of the facts mentioned in lease deeds. It has

also not been explained by the defendants that how

the area of 15 acres of water tank increased to 24

acres. Consequently, the High Court has set aside 9

the judgment and decree of the First Appellate

Court and restored the judgment and decree passed

by the Trial Court.

Shri Rakesh Dwivedi, Shri R.Venkataramani and

Shri Gurukrishna Kumar, learned senior counsel

appearing on behalf of the appellants urged that

High Court has failed to consider the various

provisions of the Act of 1908 as well as the Act

of 1948. No right could have been created in the

water tanks by virtue of the provisions contained

in the said Acts. They have relied upon the

definition of Ryot and Ryoti land in Section 3(15)

and 3 (16) of the Act of 1908.

The ryoti land as defined in section 3(16) of

the said Act specifically excludes beds and bunds

of tanks. It was also urged that High Court has

also failed to consider the impact of dismissal of

the proceedings for obtaining ‘Ryot Patta’ under

Section 11 of the Act, filed by the Predecessor in

interest S.Vijayaranga Mudaliar and by the

original plaintiff. The prayer of S. Vijayranga

Mudaliar for grant of ryotwari patta has been

rejected vide order dated 20.7.1953. Other four 10

prayers made by Pachiappan also stood rejected in

the years 1968,1971, 1984 and 1994. In the

absence of a grant of ryotwari patta and even

otherwise, the land remained vested in the State

Government. The finding as to possession of

plaintiff recorded by the High Court is also

perverse and is contrary to the revenue entries,

the documents of settlement and other record of

rights w.e.f. 1948 till 1995. The revenue records

have been placed on record and in none of them,

there is an entry of possession of Pachiappan. On

the strength of sale deed executed in 1952, the

name of Pachiappan had never been mutated. Since

Predecessor S. Vijayaranga Mudaliar had no title,

late Pachiappan could not have derived any right,

title or interest from him. Having failed to

prove the title of S. Vijayaranga Mudaliar and

also his own title, the plaintiff was not entitled

to obtain the decree in his favour. Apart from

that, it was also urged that though such a suit

was barred under the provisions of 1948 Act. Even

if it is held to be maintainable for establishing

of the rights of Ryot, plaintiff has miserably 11

failed to prove right, title or interest so as to

seek declaration and injunction prayed for. The

suits were rightly dismissed by the First

Appellate court. Learned counsel have also

referred to the decision in State of Tamil Nadu

Vs. Ramalinga Samigal Madam (1985) 4 SCC 10. Even

if the documents A-1 to A-4 are taken to be

proved, plaintiff did not derive any sustenance

from them for proving of right, title or interest

over the land. The High Court has proceeded

merely on the basis of adverse inference so as to

confer a title in favour of the plaintiff whereas

the plaintiff has miserably failed to prove his

own case. They have also relied on Section 14A of

the 1948 Act.

Shri Rajiv Dutta and Shri V.Giri, learned

senior counsel appearing on behalf of the

plaintiff contended that once documents A-1 to A-4

are found to be proved, right, title and interest

stands proved not only of the predecessor-in-

interest but that of the plaintiffs also.

Finding of fact as to possession of plaintiff has

been rightly recorded by the Trial Court. The 12

decision of the First Appellate Court has been

rightly reversed by the High Court. The

entitlement to obtain ryotwari patta has been

proved. The claim for conferral of ryotwari patta

has not been properly adjudicated by the concerned

authorities. Civil suits were maintainable and

have been rightly decreed.

It was also contended on behalf of plaintiff

that difference in the area of the tank has not

been properly explained and the area in question

is not part of the tank, it was at the periphery

of the tank. Thus, there was no bar under the Act

of 1908 to give the same on lease to S.Vijayaranga

Mudaliar and, as right, title and interest for

obtaining of ryotwari patta had accrued to him, he

could have alienated the property in the year

1952. Finding as to possession is also the

question of fact and has been rightly arrived at

by the Trial Court which has rightly been restored

by the High Court. No case for interference is

made out. For maintainability of the civil suit,

they have relied upon the decision in Dokiseela

Ramulu vs. Sri Sangameswara Swamy Varu & Ors. 13

(2017) 2 SCC 69. Lastly, they contended that the

adverse inference has rightly been drawn by the

High Court.

First, we take up the determination of

question as to the nature of the land as the

accrual of right, title and interest depends on

that under both the Acts of 1908 and 1948. It is

apparent from the lease deed placed on record by

the plaintiff (Exh. A-2) dated 15.11.1940 that the

land formed part of the Chinneri Tank Bund Side

-Waste dry Chinneri Tank Bed Upper-dry Chinneri

Tank Bund Side -Waste dry Chinneri Tank Bed

Upper-dry and the lease was granted in Fasli 1350

corresponding to Gregorian calendar year of 1940

w.e.f. the month of November 1940 to June 1941.

Similar other leases collectively marked A-2 are

dated 19.11.1942, 1943 and 1946 w.e.f. the month

of November to June. The leases were granted in

the exercise of the powers under Section 51 of the

Act of 1908. It is apparent from the leases that

area in question is specifically depicted in the

aforesaid lease deeds to form part of the tank.

Besides that, there are a plethora of revenue 14

entries placed on record indicating that the

entire area 24.62 acres had been recorded as tank

continuously right from 1950 till 1995.

The lease had been granted for eight months in

the year 1940. The grant of lease for the

aforesaid period excluding rainy season from July

to October and evidence indicates that land

formed part of the tank. Thus, we have no

hesitation in rejecting the submission to the

contrary raised on behalf of the plaintiff-

respondent to the effect that land did not form

part of the tank.

Now, we come to the question whether any

right can be acquired on such a land. When we

consider the relevant provisions contained in the

Act of 1908 and definition as defined Ryot under

Section 3(15) and Ryoti Land under 3(16). The

same is extracted hereunder:

“Section 3 (15) - “Ryot” means a person who holds for the purpose of agriculture ryoti land in an an estate on condition of paying to the landholder the rent which is legally due upon it.”

Explanation:

15 A person who has occupied ryoti land for a continuous period of twelve years shall be deemed to be a ryot for all the purposes of this Act.

Section 3 (16)- “Ryoti land” means cultivable land in an estate other than private land but does not include;

(a) beds and bunds of tanks and of supply, drainage, surplus or irrigation channels:

(b) threshing floor, cattle-stands, village-sites and other lands situated in any estate which are set apart for the common use of the villagers.

(c) lands granted on service tenure either free of rent or on favourable rates or rent if granted before the passing this act or free of rent if granted after that date, so longs as the service tenure subsists.”

It is apparent from the definition of ‘ryot’

as defined under Section 3(15), means a person who

holds the land for the purpose of agriculture. It

is necessary for such a ‘ryot’ to hold ‘ryoti

Land’ in an estate. Ryoti land has been defined

in Section 3(16) as cultivable land in an estate

other than private land but does not include beds

and bunds of tanks and of supply, drainage,

surplus or irrigation channels. Thus, as the area 16

in question formed part of the tank was clearly

not ryoti land as per the said definition in

Section 3(16). As such, the predecessor in

interest - S.Vijayaranga Mudaliar or plaintiff

could not be said to be ‘ryot’ holding ‘ryoti’

land.

The provisions contained in the 1948 Act have

been enacted to bring about agrarian reforms and

to abolish the intermediaries, zamindars, and

Jagirdars etc. As a matter of fact, a lot of

agrarian reforms have taken place by the enactment

of Abolition Act, as mandated by Article 39 (b)

and (c) of the Constitution. By virtue of the

provisions contained in Section 3 of the Act, on

issuance of notifications with effect from the

notified date certain consequences ensues

automatically. It is provided in Section 3(b) that

entire estate including with all communal lands;

porambokes, other then ryoti lands; rivers and

streams; tanks and ooranies (including private

tanks and ooranies and irrigation works] etc.,

shall stand transferred to the Government and vest

in them, free of all encumbrances. 17 Section 3 is extracted hereunder:

“Section 3: With effect on and from the notified date and save as otherwise expressly provided in this Act:

(a) the Tamil Nadu Estates Land (Reduction of Rent) Act, 1947 Tamil Nadu Act XXX of 1947 [in so far as it relates to] matters other than the reduction rents and the collection of arrears of rent and the Tamil Nadu Permanent Settlement Regulation, 1802 Tamil Nadu Regulation XXV of 1802, the Tamil Nadu Estates Land Act, 1908 Tamil Nadu Act 1 of 1908, and all other enactments applicable to the estate as such shall be deemed to have been repealed in their application to the estate]

(b) the entire estate including all communal lands; porambokes; other nonryoti lands; wastelands;

pasture lands; Lanka lands; forests; mines and minerals; quarries; rivers and streams; tanks and ooranies (including private tanks and ooranies and

irrigation works] fisheries and ferries, shall stand transferred to the Government and vest in them, free of all encumbrances and the Tamil Nadu Revenue Recovery Act, 1864, the Tamil Nadu Irrigation Cess Act, 1965, and all other enactments applicable to ryotwari areas shall apply to the estate;

(c) all rights and interests created in or over the estate before the notified date by the principal or any other landholder, shall as against the Government cease and determine;

18 (d) the Government may, after removing any obstruction that may be offered forthwith take possession of the estate, and all accounts, registers, pattas muchilikas, maps, plans and other documents relating to the estate which the Government may require for the administration thereof;

Provided that the Government shall not dispossess any person of any land in the estate in respect of which they consider that he is prima facie entitled to a ryotwari patta-

(i) if such person is a ryot, pending the decision of the Settlement Officer as to whether he is actually entitled to such patta;

(ii) if such person is a landholder pending the decision of the Settlement Officer and the Tribunal on appeal, if any, to it, as to whether he is actually entitled to such patta;

(e) the principal or any other landholder and any other person, whose rights stand transferred under clause (b) or cease and determine under clause (c), shall be entitled only to such rights and privileges as are recognized or conferred on him by or under this Act]

(f) the relationship of landholder and ryot, shall, as between them, be extinguished;

(g) any rights and privileges which may have accrued in the estate to any person before the notified date, against the principal or 19

any other landholder thereof, shall cease and determine, and shall not be enforceable against the Government or such landholder and every such person shall be entitled only to such rights and privileges as are recognized or conferred on him by or under this Act.]”

It is also provided in Section 3(c) that all

rights and interests created in or over the estate

before the notified date by the principal or any

other landholder, shall against the Government

cease and determine.

It is apparent that under Section 3 of the Act

of 1948 vesting is automatic by virtue of the

statutory provisions and government is empowered to

take possession as provided under Section 3 (a)

only saving in the proviso to section 3(d) is that

in case any person is prima facie entitled to

ryotwari patta and during pendency of his

application, for the settlement, was not to be

dispossessed. In the case of the landholder, it is

provided that if the decision is pending before the

Settlement Officer and the Tribunal on appeal, the

State before taking possession has to prima facie

consider whether landholder is entitled to ryot 20

patta. Another consequence of vesting as clearly

provided in Section 3(f) of Act of 1948 is that the

relationship between the landholder and Ryot shall

stand extinguished.

Section 3(g) of the Act of 1948 specifically

provides that right which may have accrued in the

estate to any person before the notified date shall

not be enforceable against the government and such

person shall be entitled only to such rights and

privileges as are recognised or conferred on him as

provided under the Act of 1948.

Section 11 deals with rights of a ryot in an

estate to apply for a ryotwari patta in respect of

ryoti land which was properly included or ought to

have been properly included in his holding.

Section 11 is extracted hereunder:

“Lands in which ryot in entitled to ryotwari patta:

“11. Every ryot in an estate shall, with effect on and from the notified date, be entitled to a ryotwari patta in respect of ;

(a) all ryoti lands which, immediately before the notified date, were properly included or ought to have been properly included in his 21

holding and which are not either Lanka lands or lands in respect of which a landholder or some other person is entitled to a ryotwari patta under any other provision of this act; and

(b) all Lanka lands in his occupation immediately before the notified date, such land having been in his occupation or in that of his predecessors-in-title continuously from the 1st day of July 1939.

Provided that no person who has been admitted into possession of any land by as landholder on or after the 1st day of July 1945 shall, except where the Government, after an examination of all the circumstances otherwise direct, be entitled to a ryotwari patta in respect of such land.

Explanation: No lessee of any Lanka land and no person to whom a right to collect the rent of any land has been leased before the notified date, including an ijaradar or a farmer of rent, shall be entitled to a ryotwari patta in respect of such land under this section.”

Section 12 deals with the right of the

landholder in zamindari estate and Section 13

deals with the landholder of Inam estate with

which we are not concerned in the present case.

Plaintiff has claimed the right, title and

interest as ryot, not as landholder. 22 Section 14-A was inserted by amendment Act

49 of 1974. The provisions contained in Section

14-A is extracted hereunder;

“Ryotwari patta not to be granted in respect of private tank or oorani:

14-A.(1) Notwithstanding anything contained in this Act, no ryotwari patta shall be granted in respect of any private tank or oorani. (2) Any ryotwari patta granted in respect of any private tank or oorani under this Act before the date of the publication of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Amendment Act, 1974, in the Tamil Nadu Government Gazette, shall stand cancelled, and for purposes of compensation under this Act the private tank or oorani shall be deemed to be land in respect of which neither the landholder nor any other person is entitled to ryotwari patta under this Act.”

Section 14-A(1) makes it clear that

Notwithstanding anything contained in this Act,

no ryotwari patta shall be granted in respect of

any private tank or ooranies. Even if any patta

has been granted the same shall stand cancelled

and the land of the private tank or oorani shall

be deemed to be land of neither the landholder

nor any other person is entitled to ryotwari

patta under the Act.

23 It is apparent from the conjoint reading of

the provisions contained in Sections 3(15) and 3

(16) of the Act of 1908 and the provisions

contained in Section 3, 11 and 14-A of the Act

of 1948 that the land of the tank is not ‘ryoti

land’ as such no rights of ‘ryot’ could accrue

in the person by holding the land on temporary

arrangement of lease granted for 8 months in a

year when water was not there in the tanks.

Such bodies are protected by virtue of the

aforesaid provisions carved out under the Acts

of 1908 and 1948. The amendment made in 1974 in

Section 14-A makes it clear that even if any

ryot patta has been granted to any incumbent

even with respect to private tank or ooranies

that shall be inoperative and stand cancelled.

In the instant case, it is apparent that

not only S.Vijayaranga Mudaliar the vendor of

plaintiff had applied for a grant of patta under

the provisions of Section 11 of the Act of 1948,

but the same very prayer had been unsuccessfully

made four times by the original plaintiff. All

such prayers made in 1953, 1968, 1971, 1982 and 24

1994 had been rejected. It is not in dispute

that ryotwari patta had not been granted. In

the order passed rejecting review in 1973, there

is categorical finding that land is comprised in

the tank and area was liable for submergence and

formed part of the irrigation tank. Once the

claim of the original plaintiff had been

rejected, it was incumbent upon him to file a

suit for establishing his rights, if any. He

could not have waited till 1984, after initial

rejection of the prayer in 1953. Again, could

not have waited till December 1984 after the

rejection order was passed in 1968 and again on

11.5.1971 and review had been dismissed on

7.5.1973. In the absence of grant of ryotwari

patta and even otherwise in view of the fact

that land formed part of tank reserved for

common use, no right accrued to the plaintiff to

claim ryotwari patta as his predecessor was not

‘ryot’ and the disputed land was not ‘ryoti

Land’. Apart from that, vendor of the plaintiff

did not hold land for 12 continuous years, as

such no right, title or interest accrued to the 25

vendor of the plaintiff or to the plaintiff.

The Trial Court, as well as the High Court, have

committed patent illegality in ignoring the

aforesaid prohibition contained in the

provisions of the Act of 1908 as well as of the

Act of 1948.

Coming to the question of possession, the

High Court has discarded B-9 proceedings taking

possession on 12.1.1951. Though, there was

absolutely nothing to doubt factum of taking

over the possession. It is also apparent that

the land formed part of tank which used to go in

submergence during the rains from the month of

July to October, it was not capable of being

possessed continuously. No patta was granted to

the vendor of the plaintiff for a complete year

at any point of time, it was from November to

June. The four lease deeds for the period of

four years are for 32 months i.e. 8 months each

year, have been placed on record of 1940, 1942,

1943 and 1946, no other lease has been produced

indicating that he was holding land for 12 years

or any lease of the land as on the date when the 26

Act of 1948 came into force or on the appointed

day. Even the vendor was not in possession of

the land as the entire estate of the village

stood vested in the state, as per the

notification issued on 12.1.1951, possession had

been taken. Thus, there was absolutely nothing

to hold that possession continued with the

vendor of the plaintiff. After the purchase was

made by Pachiappan in 1952 there is not even

single revenue entry placed on record indicating

that he ever remained in possession at any point

of time or cultivated the land. On the other

hand, various documents to the contrary have

been placed on record by the appellant.

Firstly, there are copies of settlement

register indicating the land comprised in new

survey No. 163 corresponds to 779 old and same

is recorded as Poramboke (common land) for

common use. Entire area 24.62 acre had been

recorded as Poramboke. There is yet another

settlement entry of 1959 which records that

Survey No.163 had been carved out of 779 in an

area 24.62 acre and area has been recorded as 27

Achuveri i.e., lake and also Porampoke i.e., for

the common use. The document records the fact

that Pachiappan’s application for grant of

ryotwari patta has been rejected on 5.11.1968.

Survey Map of the village also records that the

old survey number 779 has vested in the State.

When we consider Exh B-13, Fasli 1379 = 1969

year (Gregorian) the land has been recorded as

Chinneri (small lake). In the remarks column

possession of several persons is recorded as a

trespasser, but not that of the plaintiff -

Pachiappan. Similar is the position in the

entry of various Fasli 1380 = 1970, 1381 = 1971,

1382 = 1972, 1383 = 1973, 1384 = 1974, 1386 =

1976, 1390 = 1980, 1391 = 1981 till 1405 = 1995.

The entries in remarks column shows neither

ownership nor tenancy as observed by this Court

in Beohar Rajendra Singh v. State of M.P. and

others,1970 RN 16 (Supreme Court).

Other documents are also placed on record

indicating that area is Chinneri (lake) of

common use. Thus, there was absolutely no

material or ground available to the High Court 28

to set aside the finding of possession recorded

by the First Appellate Court and for discarding

the B-9 of taking possession in 1951 as that was

supported by corresponding revenue entries and

statutory presumption of correctness is attached

to such entries though such presumption is

rebuttable. However, there is absolutely no

evidence adduced on record by the plaintiff to

rebut the statutory presumption of correctness

of document of record of rights. Thus, trial

court, as well as the High Court, has acted in a

perverse manner in discarding the overwhelming

evidence merely on the ground that document A-1

to A-4 stands proved. The High Court could not

have inferred in favour of the plaintiff, as no

right accrued to the plaintiff or to his

predecessor-in-interest on the basis of the

aforesaid document A-1 to A-4. The High Court

has unnecessarily drawn adverse inference just

in order to give a finding of the genuineness of

the document A-1 to A-4. We take these

documents as proved and proceed to deal with the

case on that basis.

29

When we consider the documents A1 to A-4,

taken as proved, not only they fail to advance

the cause espoused by the plaintiff but rather

negates it. Ex.A-2 are the 4 pattas placed on

record by the plaintiff granted in favour of

S.Vijayaranga Mudaliar as predecessor interest

of 1940, 1942, 1943 and 1946. The lease deed

itself records that land was comprised in the

tank and formed part of the tank. Thus, no right

or title or interest could have accrued to the

plaintiff over the said land.

Apart from that, when we consider sale deed

A-1, executed by S.Vijayaranga Mudaliar in

favour of original plaintiff Pachiappa, the

recital in the sale deed is that though patta

was granted in his name he could neither

cultivate nor able to look after the same, as

such, he has decided to sell the land. In

Exh.A-3 rent register of Fasli 1369 = 1959. It

only records the rent not the factum of lease or

possession or cultivation by S.Vijayaranga

Mudaliar. A-4 is document of the year 1949 that

records the name of S.Vijayaranga Mudaliar but 30

in that, no cultivation is recorded of

S.Vijayaranga Mudaliar. It records only how much

was the cess of land. No case is made out in

favour of vendor of the plaintiff on the basis

of the entry of amount of land cess or land

revenue of the year 1949. Merely recording the

cess or revenue in the year 1949 or even

assuming it was paid by the vendor in 1949, is

not going to confer title in favour of vendor,

particularly when the area was comprised in the

tank. In case any lease had been granted for

the period of 1947 to 1949 ought to have been

placed on record but no such lease deeds except

for four years have been placed on record.

Thus, the finding recorded by the High Court as

to possession is clearly perverse and contrary

to the revenue records and the Gazette

notification of vesting of land in State issued

in 1951.

It is no doubt true that under Section 114

of the Evidence Act, there is a presumption of

continuance of a state of affairs once shown to

have prevailed. It is open to the court under 31

Section 114 to presume the continuity of any

fact once shown to have prevailed. Such

presumption of continuity can be drawn not only

forward but backward also. Court can presume

that such state of affairs might have existed in

past also unless discontinuity is proved. In

the instant case, it is not shown by any

affirmative evidence on record in the form of

revenue record that the plaintiff’s vendor was

in possession on the date of abolition and

thereafter plaintiff remained in possession at

any point of time. This Court has observed in

Sir Bhimeshwara Swami Varu Temple v. Pedapudi

Krishna Murthi and Ors., AIR 1973 SC 1299 that

by stray entry no such presumption arises. On

the other hand, the successive five attempts

made by the plaintiff and his vendor failed to

obtain ryotwari patta as no right in such land

existed neither accrued. The plaintiff due to

failure to obtain ryotwari patta and even

otherwise as land formed part of tank has failed

to prove entitlement to be treated as Ryot. No

right, title or interest has accrued to the 32

plaintiff to obtain any ryotwari patta or for

obtaining decree in the suit.

It was urged before us on behalf of the

appellant that suit was barred by limitation by

virtue of provisions contained in Article 58 of

the Limitation Act 1963. The suit was required

to be filed within three years. We need not go

into the question. We have found on merits that

absolutely no case is made out in favour of the

plaintiff. Thus, he was not at all entitled

for any relief.

The High Court has considered another

aspect of the difference in area, it has opined

that earlier it appeared that land was 15.00

acres only later on how the area was increased

to 24.62 acres has not been explained by the

defendants. The aforesaid reasoning recorded by

the High Court is totally based upon the

ignorance of the material aspects and evidence,

as a matter of fact earlier dispute land was

comprised in survey no. 779 and which

corresponding to new s.no. 163 in 24.67 acres,

said area has been continuously recorded in the 33

revenue papers and register of settlement, right

from the beginning. After 1948 till 1995, no

cogent document indicating the disparity in the

area has been filed by the plaintiff. Even

assuming that the finding recorded by the High

Court is correct, it passes comprehension how

that helps the case of the plaintiff. Plaintiff

has to succeed only on the strength of his case

and when temporary leases had been granted to

his vendor within the area of tank as mentioned

in the lease deeds which was reserved for the

common use, no right could have accrued. The

High Court has ignored and overlooked this

material aspect. In case, the area has

increased from 15 acres to 24.62 acres and has

not been explained how the plaintiff can claim

any right in the land which formed part of water

body is not understandable as the case of the

plaintiff is not at all or buttressed by the

aforesaid discrepancy even if it exists.

Moreover, the entire area of 24.63 acres has

been recorded as Chinneri (tank) and poramboke

i.e., for common use.

34

Now, we deal with last ground raised by

learned senior counsel on behalf of the

plaintiff based on provisions contained in

section 64 of the Act of 1948. Section 64 deals

with the right of the owner, occupier not to be

affected by temporary

dispossession/discontinuance of possession.

Section 64 is extracted hereunder:

“Rights of owner or occupier not to be effected by temporary discontinuance of possession or occupation:

64. Where a person-

(a) is entitled to the ownership of to the possession or occupation of any land or building immediately before the notified date, but has transferred his right to the possession or occupation thereof or has been temporarily dispossessed or deprived or his right to the occupation thereof; and

(b) has not on that date lost his right to recover the possession or occupation of such land or building;

He shall, for the purposes of this Act, and subject to the provisions thereof be deemed to be the owner, or to be in possession or occupation, of such land or building;

Provided that any lawful transferee 35

of the right to the title to such land of building shall be entitled to all the rights this Act of his transferor.

Section 64 pre-supposes that a person is

entitled to ownership or possession or occupancy

of any land immediately before the notified

date. In case of temporary dispossession or

deprivation of his right to occupation hereafter

and he has not lost the right to recover the

possession of such a land or building shall for

the purpose of the Act be deemed to be the owner

or to be in possession or occupation of such

land or building.

There cannot be any dispute with respect to

legal provisions in Section 64 of the Act of

1948. It is settled proposition of law that in

case of wrongful dispossession or discontinuance

of possession of owner, possession of person who

has wrongfully taken it is deemed to be that of

the true owner, but in the instant case, the

provisions of Section 64 render no help to the

plaintiff for the singular reason that his

vendor is not proved to be the owner of the land 36

nor has proved his occupation on the date of

abolition or that it had been discontinued in

illegal manner, no such right of vendor to

remain in possession has been established.

Plaintiff’s vendor was not having any right,

title or interest after the lapse of temporary

leases. Consequently, he did not possess any

transferable right in the land. Hence,

Pachiappan did not derive any right, title or

interest from his predecessor in the land as he

had none. Plaintiff was required to prove

derivative title in which he has miserably

failed. It was mentioned in recital in the sale

deed by his vendor that he was not able to

possess land nor could cultivate it.

Apparently, the vendor of the plaintiff was not

in occupation of land. Moreover, possession had

been taken in 1951 of entire estate by the State

Government as apparent from the Gazette

notification, the land of the entire village

stood vested in the State.

The State Government has handed over the

land to Salem Municipality and a major part of 37

it has been given to the Anna Transport

Corporation for the purpose of the bus stand.

The High Court has observed why entire land was

not given to Transport Corporation by

Municipality and consequently inferred in favour

of the plaintiff, only part of the land has been

given could not have been made the basis by the

High Court to derive a conclusion in favour of

the plaintiff so as to buttress the title. The

High Court has gravely erred in recording such

an inferential finding. There was no scope to

arrive at the same. The approach employed by

the High Court is wholly impermissible,

unsustainable, perverse and illegal.

Thus, we have no hesitation in setting

aside the judgment and decree passed by the High

Court and restoring that of the First Appellate

Court. All the three suits stand dismissed. As

there was multiplication of various proceedings

and three suits were filed, we impose cost of

Rupees One Lakh upon the plaintiff/respondent to

be deposited with the Welfare Fund of Supreme

Court Advocate-on-Record Association within two 38

months and receipt be filed in the Registry.

The appeals are allowed.

.........................J. (ARUN MISHRA)

.........................J. (VINEET SARAN) NEW DELHI, 15th NOVEMBER, 2018