Ramalingam v. 1.Government of Tamil Nadu through Collector, Thanjavur & Ors.

(v)On 09.02.1978 in the aforesaid Writ Petition, an order hasbeen passed by this Court dismissing the Writ Petition but advise theSubbiah Mudaliar to approach the Civil Court for proper relief byfiling a suit and to establish his claim to oral and documentaryevidence in respect of his fishery right relating to the suit tanks.This Court has granted three months time to the Subbiah Mudaliar tofile a suit because of the fact that as per Section 80 of the CivilProcedure Code prior notice will have to be given to the StateGovernment before filing the suit. Till such time, the interim orderspassed in the W.M.P. In the main Writ Petition will continue toremain in force as observed by the Hon'ble High Court. But, asdirected by this Court, in pursuance of the order passed in the WritPetition, the Subbiah Mudaliar has not been in a position to file asuit against the Tamil Nadu Governments within three months, becauseof the reason that the order passed by the Hon'ble High Court in theWrit Petition dated 09.02.1978 has been received by Subbiah Mudaliaronly on 03.04.1978. (vi)An application has been filed before the trial Court prayingpermission to file the suit without issuance of Section 80 C.P.C.notice to the Government. Moreover, a relief permanent injunction hasbeen sought for restraining the Tamil Nadu Government and theKurukathi Panchayat President not to interfere Subbiah Mudaliar'sfishery right in the tanks and also a relief of Thanjavur DistrictCollector's order dated 28.11.1973 is to be declared as invalid hasbeen sought for. The suit has been numbered as O.S.No.97 of 1978 andduring the pendency of the same, Subbiah Mudaliar expired and hiswife and the Appellant/ Plaintiff's adopted mother Rajarathinathannihas been added as a heir who continued the suit. The trial Court hastaken up the application praying for issuance of dispossession ofSection 80(2) C.P.C. notice to the Government and the same has beenheard on 19.02.1979 and an application has been dismissed with adirection proper notice will have to be issued to the Government andlater to file the suit, the Appellant/Plaintiff's adopted motherRajarathinathanni issued a notice dated 11.02.1979 to the Tamil NaduGovernment and she died on 14.03.1979 before making arrangement tofile the suit.(vii)The deceased Subbiah Mudaliar has two daughters 1.Velambaland 2.Janaki through his first wife. The second wife theAppellant/Plaintiff's adopted mother Rajarathinathanni has no issues,therefore, as per Sastric Usage, the Appellant/Plaintiff has beentaken in adoption by Rajarathinathanni. The said adoption supportedby the Subbiah's first wife daughters and in respect of theproperties a family arrangement through a registered document hasbeen entered into and as per the document recital, the suit tanksfishing right income report will have to be received by theAppellant/Plaintiff and as such, the Appellant/Plaintiff has a rightto receive the suit tanks fishing right income, he has also issued https://hcservices.ecourts.gov.in/hcservices/ Section 80 C.P.C. notice to the Defendants 1 and 2 on 16.03.1980through his counsel, wherein he has prayed for acceptance of hisfishery right in Plaint 9 tanks. (viii)After receipt of notice, the Thanjavur District Collectorhas directed the Tiruvarur Tahsildar to conduct a special enquiry andto submit a report. The Tiruvarur Tahsildar along with DeputyTahsildar has gone to the village and has conducted a personalenquiry in respect of the fishery right in respect of the suit tanksand submitted a report to the Thanjavur District Collector. TheAppellant/Plaintiff has furnished a statement before TiruvarurTahsildar and also produced evidences and documents to show SubbiahMudaliar has enjoyed the fishery right in respect of the Plaint tanksfor numerous years. But for the Section 80 C.P.C. notice sent by theAppellant/Plaintiff, no reply has been received by him from theDistrict Collector or from the Keevalur Panchayat Union Commissionerwho is managing the administration of the Panchayat. Hence, theAppellant/Plaintiff has filed the present suit praying for the reliefof declaration that the order dated 28.11.1973 passed by theThanjavur District Collector in Na.Ka.No.19884/71 K.12 is invalid andalso to declare that he has absolute right in the suit tanks fisheryrights and also issuance of direction to the 2nd Defendant to handover his right of enjoyment of fishery right in respect of 9 tanks tothe Appellant/Plaintiff and for costs.3.The Written Statement Pleas of the 2nd Respondent/ 2nd Defendant[Adopted by the 1st Respondent/1st Defendant]:(i)The 9 tanks mentioned in the Plaint as admitted by theAppellant/Plaintiff have been handed over to the 2nd Defendant. At thetime of possession of tanks being handed over to the 2nd Defendant,the fishery right income derived from the said tanks also have beenacquired by the Panchayat Union. The Appellant/Plaintiff has noindependent right or a trustee right in the suit tanks. After theHigh Court's order passed in the Writ Petition, theAppellant/Plaintiff's ancestors have failed to take action and assuch, the suit filed by the Appellant/Plaintiff is not maintainable.(ii)The proceedings initiated by the Appellant/Plaintiff'sfather in respect of the suit tanks have ended against him. Since noprior notice as per Section 80 C.P.C. has been issued by theAppellant/Plaintiff, O.S.No.97 of 1978 has been dismissed. TheAppellant/Plaintiff's father has ignored the various orders passed inthe said suit. Therefore, as per the said orders neither theAppellant/Plaintiff nor his heirs are entitled to claim the reliefsas prayed for in the suit. Without remitting a sum of Rs.4,000/- asan annual income neither the Appellant/ Plaintiff's father nor theAppellant/Plaintiff has any right to restrain the 2nd Respondent/2ndDefendant from auctioning the fishery right lease in the suit tanks.Further, 12 years have elapsed from the date of order passed by the https://hcservices.ecourts.gov.in/hcservices/ District Collector as such, the relief prayed for by theAppellant/Plaintiff is no maintainable in law and on facts. The suithas been filed based on false reasons and to establish his imaginaryright. The Appellant/Plaintiff is not entitled to claim any right.Hence. The suit is to be dismissed.4.Before the trial Court in the main suit 1 to 8 issues havebeen framed. Also, the first issue has been recasted. On behalf ofthe Appellant/Plaintiff, witnesses P.W.1 and P.W.2 have been examinedand Exs.A.1 to A.81 have been marked. On the side of theRespondents/Defendants, no witness has been examined and Exs.B.1 toB.9 have been marked. 5.The trial Court, on a careful analysis and consideration ofavailable materials on record, has held that the Appellant/Plaintiffhas fishery right in respect of the suit tanks and granted the reliefof declaration to that effect by passing a decree without costs. 6.The Respondents/Defendants being aggrieved against theJudgment and Decree of the trial Court dated 18.09.1990 in O.S.No.214of 1982 have projected First Appeal A.S.No.233 of 1992 on the file ofLearned Sub Judge, Nagapattinam. 7.The First Appellate Court on 30.09.1993 has passed a Judgmentholding that the tanks mentioned in Ex.B.9 described in red ink incertain pages, have been handed over to the Panchayat as seen fromthe evidence and also opined that the Appellant/Plaintiff has notestablished that he has absolute right in the suit tanks in respectof fishery right. Further, he has not established that he need notremit any income annually and moreover, it has not been establishedthat his ancestors have been in enjoyment of the suit tanks.Therefore, the First Appellate Court has opined that the reliefprayed for by the Appellant/Plaintiff that the 2nd Defendant must bedirected to hand over possession of his enjoyment in respect of suittanks to him is not correct and it cannot be said that the orderdated 28.11.1973 passed by the Thanjavur District Collector is aninvalid one and resultantly, has come to the conclusion that theAppellant/Plaintiff is not entitled to claim the fishery right asprayed for in the Plaint and allowed the Appeal without costs, bydismissing the suit filed by the Appellant/Plaintiff.8.At the time of admission of the Second Appeal, this Court hasframed the following Substantial Question of Law:"Whether the private customary fishery rights inthe tanks specified in the plaint did not becomevested with the plaintiff by enjoyment over 30years unless otherwise enjoyed by the villagers incommon and so declared by the Government?" https://hcservices.ecourts.gov.in/hcservices/ The Contentions, Discussions and Findings on Substantial Question ofLaw:9.The Learned Counsel for the Appellant/Plaintiff submits thatthe First Appellate Court has failed to take into account the detailsof several transactions made by the Appellant/Plaintiff and hispredecessors asserting title and possession in regard to the fishingright in the tank. 10.The Learned Counsel for the Appellant/Plaintiff contends thatthe trial Court has found that the documents projected by theAppellant/Plaintiff have been concerned with the lease transactionsin respect of the suit tanks and as such, they are very muchessential to consider the question whether the Appellant/Plaintiffand his predecessors have asserted right over the properties inregard to the fishing rights. 11.According to the Learned Counsel for the Appellant/Plaintiff,the First Appellate Court has not appreciated the evidentiary valueof Exs.A.79 and 80 Settlement Registers of Kurukathi Village as wellas the evidence of P.W.2 (V.A.O.) whose evidence is to the effectthat there are no other tanks in the village, than the one mentionedin the Plaint and therefore, the Village chit referring to the tankshas been in possession of the Appellant/Plaintiff's predecessors is aclear proof of the fact that the Government has recognised thecustomary right of the Appellant/Plaintiff. 12.Lastly, the Learned Counsel for the Appellant/Plaintiffprojects an argument that the fishery rights over the tanks whichvested in a person by means of a long enjoyment, as per custom andusage have not become divested by any of the provisions of the TamilNadu Panchayat Act.13.Per contra, it is the contention of the Learned GovernmentAdvocate appearing for the Respondents/Defendants that the FirstAppellate Court has come to a categorical conclusion that there is noproper record to show that the Appellant/Plaintiff is the heir ofdeceased Subbiah Mudaliar and further the plea of the Appellant/Plaintiff that in the suit tanks he has absolute fishery right hasnot been established and the another plea that annually theAppellant/ Plaintiff need not remit any income and also that the suittanks which have alleged to be in enjoyment of theAppellant/Plaintiff's ancestors have also not been proved andultimately A.S.No.233 of 1992 has been dismissed without costs, whichneed not be interfered with by this Court at this distance point oftime.14.The Learned Counsel for the Appellant/Plaintiff, in supportof the contention that the First Appellate Court is not correct inreversing the well considered Judgment of the trial Court in the mainsuit, submits that if the First Appellate Court's findings are rested https://hcservices.ecourts.gov.in/hcservices/ on assumptions and not based on evidence and record, this Court caninterfere as per Section 100 of C.P.C. and in this regard, relies onthe decision of this Court in P.Kamakshi alias Kala Jacob, (2000) 2MLJ 564 at page 573, wherein in paragraph 37, it is observed and heldthus:"37.In a recent decision of the Honourable SupremeCourt reported in Ishwar Das Jain (Dead) throughby L.Rs. v. Shohan Lal (Dead), by L.Rs., J.T.(1999) 9 S.C. 305, their Lordships considered thecircumstances under which interference isjustified. Paragraphs 11 to 13 of the judgmentread thus:"11.There are two situations in which interferencewith findings of fact is permissible. The firstone is when material or relevant evidence is notconsidered which, if considered would have led toan opposite conclusion. This principle has beenlaid down in a series of judgments of this Courtin relation to Sec. 100, C.P.C. after the 1976amendment. In Dilbagrai Punjabi V. Sharad Chandra,J.T. (1988) 3 S.C. 308: 1988 S.C.C. (Supp.) 710.while dealing with a second appeal of 1978 decidedby the Madhya Pradesh High Court on 20.8.1981,L.M. Sharma,J. (as he then was) observed that:"The court (the first appellate court) is under aduty to examine the entire relevant evidence onrecord and if it refuses to consider importantevidence having direct bearing on the disputedissue and the error which arises as of a magnitudethat it gives birth to a substantial question oflaw, the High Court is fully authorised to setaside the finding. This is the situation in thepresent case."In that case, an admission by the defendant-tenantin the reply notice in regard to the plaintiff'sas title and the description of the plaintiff as'owner' of the property signed by the defendantwere not considered by the first appellate courtwhile holding that the plaintiff had not provedhis title. The High Court interfered with thefinding on the ground of non-considered of vitalevidence and this Court affirmed the saiddecision. That was upheld. In Jagdish Singh V.Nathu Singh, (1992) 1 S.C.C. 647, with referenceto a second Appeal of 1978 disposed of on5.4.1991, Venkatachaliah, J. (as he then was)held": https://hcservices.ecourts.gov.in/hcservices/ "Where the findings by the court of facts isvitiated by non-consideration of relevant evidenceor by an essentially erroneous approach to thematter, the High Court is not precluded fromrecording proper findings."Again in Sundra Naicka Vadiayar V. Ramasami Ayyar,(1995) 4 S.C.C. (Supp.) 534, it was held thatwhere certain vital documents for deciding thequestion of possession were ignored – such as acompromise an order of the revenue court relianceon oral evidence was unjustified. In yet anothercase in Mehrunnisa v. Visham Kumari, J.T. (1997) 9S.C. 616 : (1998) 2 S.C.C. 295, arising out ofsecond appeal of 1988 decided on 15.1.1996, it washeld by Venkataswami, J. That a finding arrived atby ignoring the second notice issued by thelandlady and without noticing that the suit wasnot based on earlier notices, was vitiated and theHigh Court could interfere with such a finding.This was in second appeal of 1988 decided on15.1.1996.12.The second situation in which interference withfindings of fact is permissible is where a findinghas been arrived at by the appellate court byplacing reliance on inadmissible evidence which ifit is was omitted, an opposite conclusion waspossible. In Sri Chand Gupta v. Gulzar Singh, J.T.(1991) 5 S.C. 400: (1992) 1 S.C.C. 143, it washeld that the High Court was right in interferingin second appeal where the lower appellate Courtrelied upon an admission of a third party treatingit as binding on the defendant. The admission wasinadmissible as against the defendant. This wasalso a second Appeal of 1981 disposed of on24.9.1985.13.In either of the above situations, asubstantial question of law can arise. Thesubstantial question of law that arises forconsideration in this appeal is:"Whether thecourts below had failed to consider vital piecesof evidence and whether the courts relied uponinadmissible evidence while arriving at theconclusion that the mortgage was sham and thatthere was no relationship between the plaintiffand the defendant as mortgagor and mortgagee butthe real relationship was as landlord and tenant?Point 1 is decided accordingly. .... The finding https://hcservices.ecourts.gov.in/hcservices/ is also not based on evidence adduced for whichthere is no foundation in the pleadings. Thefinding of the lower court appellate court isessentially erroneous approach. For the abovereasons it must be held that it is a fit casewhere interference is called for under Sec. 100 ofCode of Civil Procedure."15.He also cites the decision of the Hon'ble Supreme Court inMehrunnisa and others V. Visham Kumari and another, (1998) 2 SCC 295at page 299, in paragraph 13, it is held as follows:"13.In the case on hand unfortunately the lowerappellate court before reversing the finding ofthe trial court on the issue of bona fiderequirement of the landlady for starting a clothbusiness failed to read the entire evidence andtake into consideration all the documents placedbefore the trial court. Therefore, it was rightlycontended by Dr. Ghosh, learned Senior Counsel forthe respondent, that the High Court was justifiedin interfering with the finding of the firstappellate court. A reading of the judgment of thelower appellate court leaves no doubt that it haslooked into the contents of the first noticewhereunder the landlady has stated that sherequired the premises for her husband's office andignored the notice issued just before the filingof the suit. The lower appellate court has alsofailed to give due importance to the fact that thelandlady has not taken any steps to file suit foreviction pursuant to the notice issued on twoearlier occasion and the ground stated in thenotice preceding the suit are relevant for thepurpose of deciding the issue."16.The Learned Counsel for the Appellant/Plaintiff seeks in aidof the decision of the Hon'ble Supreme Court in Santhosh Hazari V.Purushottam Tiwari (deceased) by LRs., (2001) 3 SCC 179 at page 181wherein it is observed hereunder:"The phrase substantial question of law, asoccurring in the amended Section 100 is notdefined in the Code. The word substantial, asqualifying question of law, means - of havingsubstance, essential, real, of sound worth,important or considerable. It is to be understoodas something in contradistinction with -technical, of no substance or consequence, oracademic merely. However, it is clear that the https://hcservices.ecourts.gov.in/hcservices/ Legislature has chosen not to qualify the scope ofsubstantial question of law by suffixing the wordsof general importance as has been done in manyother provisions such as Section 109 of the Codeor Article 133(1)(a) of the Constitution. Thesubstantial question of law on which a secondappeal shall be heard need not necessarily be asubstantial question of law of generalimportance."17.He also draws the attention of this Court to the decision inVanjiappa Gounder and others V. Arumuga Gounder and others, (2003) 2MLJ 111 at page 112 wherein it is held as follows:"When a cart-track enjoyed by the plaintiff formore than a statutory period, the plaintiff areentitled to right over the cart-track. When thelower appellate Court has not pointed out theincorrectness of the taking of the trial judgment,the judgment of the appellate Court is vitiated."18.To appreciate the merits of the controversy between theparties involved in the main suit, this Court makes a usefulreference to oral evidence of P.W.1 and P.W.2, in the interest ofjustice.19.P.W.1 (Appellant/Plaintiff), in his evidence, has deposedthat his adopted father-Subbiah Mudaliar, who is a native ofKurukathi Village of Tiruvarur circle and the suit tanks are in theirfamily enjoyment of well over 100 years and as per 1958 PanchayatAct, the poramboke tanks have been handed over to the Panchayat andthe fishery right in the hands of private individuals are to behanded over to the Panchayat as per Panchayat Act, 1958 and on27.09.1963 the Nagapattinam Deputy Tahsildar has passed an orderstating that in the suit lands they have fishery right which isEx.A.2 and the suit tanks are in their possession.20.P.W.1 in his further evidence has deposed that based on therecommendation of Tahsildar, the Divisional Officer has passed ordersand in the suit tanks his adopted father has right and that thesuccessful bidder in the auction is in enjoyment of the fishery rightand the auction entries for the year 1912-1913 are Exs.A.3 to A.5 andthe income entries for the year 1915-1916 at pages 5,7, 14 23, 31 andExs.A.6 to A.10 and the entries at page 57 for the accounts for theyear 1926 is Ex.A.12 and the entries in the year 1926-1927 accountare Exs.A.13 to A.47 and the entries in the account book for the year1928-29 at pages 23, 94, 99, 123 are Exs.A.48 to A.51, the accountbooks for the year 1929-30 are Exs.A.52 to A.55 and the tank leasedocument dated 10.04.1983 is Ex.A.56. https://hcservices.ecourts.gov.in/hcservices/

21.The evidence of P.W.1 proceeds to the effect that the suitfishery lease right dated 10.03.1912 is the Ex.A.57 and the leasedocuments are Ex.A.58 to A.65 and for the suit tanks belong to himand Ex.A.66 to A.74 are the plan copy of the tanks and Ex.A.75 is theSale Deed dated 02.07.1975 executed by Janaki Anni to and in favourof Subbiah Mudaliar. 22.P.W.1 in his evidence has deposed that the suit property hascome in the hands of his adopted mother and later they have receivedthe same and that the Panchayat President Majid has given a petitionbefore the District Collector stating that Ex.A.2-Order is not validand based on the said petition enquiry has been conducted and Ex.A.77is the cancellation order passed by the District Collector cancellingthe Ex.A.2-Order and till the year 1975 his adopted father has lookedafter the income and revenue expenditure and as against Ex.A.77-Order, his adopted father filed a Writ Petition before the Hon'bleHigh Court and the High Court has passed an order Ex.A.78 in which adirection has been issued to file an Original Suit and his adoptedfather has expired and thereafter, his adopted mother's death, hisadopted father has been directed by the High Court to pay annually asum of Rs.1000/- and they have remitted the said amount as per thedirections of the High Court and since his adopted mother hasexpired, the suit has not been proceeded further and he prays fordeclaring Ex.A.78-Order of Thanjavur District Collector dated09.02.1978 as a invalid one.23.P.W.1, in his cross examination, has deposed that his adoptedfather has the enjoyment of the right in suit tanks and that the suittanks are poramboke tanks and the poramboke tanks have been handedover to Panchayat and the fishery right in the said tanks belong tothem and his adopted father has expired on 22.07.1978 and till theyear 1977 he has paid a sum of Rs.1000/- to the Panchayat as per HighCourt's order and from the year 1978 the 2nd Defendant is auctioningthe fishery right.24.That apart, it is the evidence of P.W.1 that the High Courthas passed Ex.A.78-Order dated 09.02.1978 wherein three months timehas been granted to K.V.Subbiah Mudaliar (Writ Petitioner) to filethe civil suit and as per the said Ex.A.78-Order the suit ought tohave been filed before 09.05.1978 and that the suit has been filedand because of the death of the Plaintiff, the said suit has beendismissed and that he does not know about the statement given byRajagopal Iyengar before the Tahsildar and in the accounts filed byhim, it is mentioned generally as tanks but no survey number ismentioned and in the suit village there are 9 tanks and in Ex.B.2-Petition 9 tanks are mentioned and in Ex.A.35 the fishery income ofthe suit tank has been given credit to. https://hcservices.ecourts.gov.in/hcservices/

25.It is the evidence of the evidence of P.W.2 (V.A.O. ofKurukathi Village) that in the suit village there are no other tanks,except the 9 tanks mentioned in O.S.No.214 of 1982 and there is anauction notice in respect of Kurukathi Village and A register of thesuit village is Ex.A.79 and A register for the Kurukathi Villagerelating to the year 1925 is Ex.A.80 and in Exs.A.79 and 80 there are9 tanks mentioned in the suit and the suit tanks name depending onthe season will be changed and in Ex.B.9 the tanks and pondsmentioned therein are all poramboke one and presently he has norecords to show that the tanks concerned with the suit to whom itbelongs too and in Ex.B.9 the places mentioned in red ink is 'gh X'are placed handed over to Panchayat and initially the tanks have beenin possession of Subbiah Mudaliar's family and presently they havebeen handed over to the Panchayat.26.In Ex.A.1, the Appellant/Plaintiff's lawyer notice [issuedunder Section 80 C.P.C.] dated 16.03.1981 addressed to theRespondents/Defendants, it is among other things mentioned that theAppellant/Plaintiff's adoptive mother is the wife of late K.V.SubbiahMudaliar and that the said Subbiah owned extensive landed propertiesin the village of Kurukathi and the 9 tanks described in the notice,even in his enjoyment and his ancestors for over 60 years and afterthe advent of the Panchayat Act, 1958, the tanks have been vested inthe village Panchayat statutorily. Further, in respect of the fisheryrights in the said tanks, the Sub Collector, Nagapattinam by hisproceedings No.Rc.34532/E-3 dated 27.9.1963 has found that theybelonged to Subbiah and in the aforesaid proceedings, the fisheryincome in the first 8 tanks has been declared as the personal incomeof the said K.V.Subbiah and in regard to the 9th tank, the income hasbeen directed to be utilised for the performance of water pandalcharities and sabsthasthanam festival of Sri Akshayalingaswami Templeat Keevalur. Moreover, the 1st Respondent/ 1st Defendant hasacknowledged the title of the Appellant/Plaintiff's husband to thefishery rights in the 9 tanks even in 1963 etc. 27.Significantly, in Ex.A.1-Lawyer's notice dated 16.03.1981 inparagraph 2 it is averred that after lapse of nearly 9 years the 2ndRespondent/2nd Defendant filed a revision petition on 19.08.1971 beforethe D.R.O., Thanjavur against the Sub Collector's order of the year1963 and a copy of the revision petition has also addressed to the 1stRespondent/1st Defendant and that the 1st Respondent/ 1st Defendantpassed an order on 28.11.1973 in Rc.No.19884/71 K-12 treating the 2ndRespondent/2nd Defendant's revision petition as an appeal. K.V.SubbiahMudaliar after entering appearance, produced ancient documents inproof of his right of fishery and contended that the 1st Respondent/1stDefendant has no jurisdiction to entertain an appeal or revisionagainst the order passed by the Sub Collector on 27.09.1963 and thatthe Sub Collector's order has become final and conclusive. https://hcservices.ecourts.gov.in/hcservices/

28.However, the 1st Defendant passed an order dated 28.11.1973setting aside the Sub Collector's order in the year 1963. SubbiahMudaliar challenging the 1st Respondent/1st Defendant order inW.P.No.6609 of 1973, the High Court on 09.02.1978 has directed thesaid Subbiah to file a suit and to establish his claim for thefishery right because the matter involved letting in of oral anddocumentary evidence. Also, during the pendency of Writ Petition, thesaid Subbiah alone has been exercising the fishery right in the tanksthe Hon'ble High Court has directed the status quo to continue for aperiod of three months enabling the Plaintiff to file the suit afterissuance of Section 80 C.P.C. notice. However, the certified copy ofthe order of the High Court has made available only on 01.07.1978. 29.Apart from the above, in Ex.A.1-Lawyer's Notice dated16.03.1981, it is stated that K.V.Subbiah Mudaliar has beenconstrained to file a suit on 07.04.1978 against the Respondents/Defendants in O.S.No.96 of 1978 on the file of District Munsif,Nagapattinam. The said suit has been filed emergently as the 2ndRespondent/2nd Defendant made arrangements for leasing out the fisheryright in open auction. An application to dispense with Section 80notice has also been filed. The 2nd Respondent/2nd Defendant has takennotice of the injunction petition and therefore, no orders have beenpassed by the trial Court. In the meanwhile, the 2nd Respondent/ 2ndDefendant has unlawfully and illegally and in violation of SubbiahMudaliar's fishery right, leased out the fishery right in openauction to the third parties. But Subbiah died during July 1978,leaving a Will under which his wife is the universal legatee.Subbiah's wife herself got impleaded as Legal Representative of herhusband in O.S.No.96 of 1978. In view of the cessation emergencysubsequent to the filing of the suit, the trial Court has directedthe Appellant/Plaintiff to file the suit after issuance of Section 80C.P.C. notice. The Appellant/Plaintiff's adoptive mother issuedSection 80 C.P.C. notice on 11.02.1979. 30.In Ex.A.1 notice dated 16.03.1981 it is further contendedthat even in the family arrangement between the Plaintiff and the twodaughters of Subbiah Mudaliar by his first wife, the Plaintiff alonehas been given the fishery right. In any event, the 1st Respondent/ 1stDefendant has acknowledged the title to the fishery right by virtueof the order passed by the Sub Collector, Nagapattinam in the year1963. The order passed by the 1st Respondent/ 1st Defendant on28.11.1973 setting aside the order of 1963 is wholly withoutjurisdiction. The 2nd Respondent/ 2nd Defendant's application in theyear 1971 whether it be an appeal or revision is highly a belated oneand ought not to have been entertained by the 1st Respondent/ 1stDefendant. The Sub Collector's order of 1963 is final and conclusiveetc. https://hcservices.ecourts.gov.in/hcservices/

31.Ex.A.2 is the order dated 27.09.1963 in Rc.34532/63 passed bythe Sub Collector, Nagapattinam in which in 9 tanks mentioned in thevillage 45, Kurukathi K.V.Subbiah Mudaliar's fishery right'senjoyment have been mentioned and in respect of 9th tank, the incomefrom such fishery are to be utilised for the purpose of 'performanceof water pandal and sabsthasthanam festival of Akshyalingaswamy Kovil.32.Exs.A.3 and A.4 are the entries in the account book for theyear 1912-1913 at page 27 and 63 maintained by the Appellant/Plaintiff's adopted father Subbiah. Ex.A.5 is the account book forthe year 1912-1913 at page 48 maintained by the Appellant/Plaintiff'sadopted father Subbiah. Ex.A.6 to A.10 are the entries in theaccount book for the year 1915-1916 maintained by theAppellant/Plaintiff's adopted father at pages 5, 14, 27, 31 and 7dated 12.08.1916, 05.03.1916, 24.06.2016, 30.06.1916, 15.10.1915respectively. 33.Ex.A.11 is the account book entry for the year 1926 dated25.01.1926 maintained by the Appellant/Plaintiff's adopted father.Ex.A.12 is the account book entry at page 52 for the year 1926 dated30.06.1926 maintained by the Appellant/Plaintiff's adopted father.Ex.A.13 to A.47 are the account book entries with relevant pagescontaining different dates maintained by the Appellant/Plaintiff'sfather. Ex.A.48 to A.51 are the account book entries at pages 77, 99,123, 73 dated 27.2.1929, 30.4.1929, 22.6.1929 1.2.1929 for the year1928-1929 maintained by the Appellant/Plaintiff's father.34.Ex.A.52 to A.55 are the account book entries for the year1920-1930 maintained by the Appellant/Plaintiff's adopted father atpages 13, 60, 6, 79 dated 1.2.1930, 18.07.1930, 24.12.1929,11.9.1930. Ex.A.56 dated 10.04.1883 is the Arasankulam fishery rightdocument executed by the Velu Padayachi. Ex.A.57 is the Thamaraikulamfishery right lease document dated 10.3.1912 executed byKulanthaivelupillai to Kuppu Anni. Ex.A.58 is the Pasi lease documentdated 23.02.1916. Ex.A.59 is the 4 tank fishing lease document dated11.04.1939 in respect of Thamaraikulam, Vannankulam and 4 othertanks. Ex.A.60 is the lease fishery right agreement dated 09.04.1940executed by Ponnusamy to and in favour of Subbiah Mudaliar in respectof Thamaraikulam, Vannankulam Tank and 4 other tanks. 35.Ex.A.61 is the Sanankulam and 2 other tanks fishing leasedocument executed by Hussain Sahib and Md.Ibrahim in favour ofSubbiah Mudaliar. Ex.A.62 is the fishing lease document in respect ofPusakulam and 4 other tanks executed by Natesavanniar in favour ofSubbiah Mudaliar. Ex.A.63 dated 04.05.1957 is the fishing lease rightexecuted by Murugaiyan in respect of inner tank in favour of SubbiahMudaliar. Ex.A.64 is the fishery right Muchalicka dated 24.4.1967 .Ex.A.65 is the fishery right lease chit executed by Mariappa Vanniarto Subbiah Mudaliar dated 30.03.1973. Exs.A.66 to A.74 relates toPlan pertaining to tanks mentioned therein. https://hcservices.ecourts.gov.in/hcservices/

36.Ex.A.75 is the copy of the sale deed dated 02.07.1925executed by Minor Janaki Anni in favour of K.V.Subbiah Mudaliar.Ex.A.76 is the partition deed dated 13.07.1980 entered into betweenthe Plaintiff, Velambal Anni and Janaki Anni. Ex.A.77 is thecertified copy of the order passed by the Thanjavur DistrictCollector dated 28.11.1973. Ex.A.78 is the order of the High Courtdated 09.02.1978 made in W.P.No.6609 of 1973. Exs.A.79 and 80 are thesettlement Faisalathi register of Kurukathi village. Ex.A.81 is thelease auction fishery right notice of tanks in Kurukathi Panchayat.37.Exs.B.1 and B.2 are the Petitions dated 27.06.1963 sent byK.V.Subbiah Mudaliar to Nagapattinam Tahsildar. Ex.B.3 is the orderdated 28.11.1973 passed by the District Collector of Thanjavur inR.C.19884. Ex.B.4 is the order dated 30.07.1974 passed by the Hon'bleHigh Court in W.M.P.No.3387 of 1974 in W.P.No.6609 of 1973. Ex.B.5 isthe reply notice of the 1st Respondent/1st Defendant's lawyer addressedto the Appellant/Plaintiff's lawyer together with acknowledgementcard. Ex.B.6 is the Plaint copy in O.S.No.96 of 1978. Ex.B.7 is theI.A. affidavit filed by the Plaintiff in O.S.No.96/78. Ex.B.8 is thecounter filed in I.A.No.302/78 in O.S.No.96/78 by the 1stRespondent/1st Defendant. Ex.B.9 is the photo copy of resettlementfaisalathi of Kurukathi Village.38.In Ex.B.5-Reply Notice sent by 1st Respondent/1st Defendant'slawyer addressed to the Appellant/Plaintiff's advocate, it is amongother things mentioned that the order of the District Collector inR.C.19884/71-A12/D1 dated28.11.1973 is final, binding and quite legaland there is no further appeal from it preferred and that the orderof the Sub Collector, Nagapattinam in R.C.34532/63E dated 27.09.1963cannot be relied upon since it has been set aside and over ruled bythe order of the 1st Respondent/ 1st Defendant. Moreover, the Plaintiffcannot claim any right to the title of the suit tanks etc. 39.Ex.B.6 is the copy of the Plaint filed in O.S.No.96 of 1978by the 1st Plaintiff K.V.Subbiah Mudaliar (died) whereinK.S.Rajarathinathanni has figured as Supplemental 2nd Plaintiff. Inthe said Plaint, the deceased Subbiah Mudaliar and another haveprayed for the relief of declaration that the order of the 1stDefendant in R.C.19884/71.K.12 dated 28.11.1973 is null and void andfor consequential declaration of of title to the fisheries in thesuit tanks and for permanent injunction. 40.In Ex.B.8 counter filed by the 1st Respondent/ 1st Defendant inI.A.No.302/78 in O.S.No.96/78, it is mentioned that the fisheryrights are to be leased out on behalf of the Panchayat in publicauction by the Block Development Officer or an officer deputed as perG.O. in force and that the Plaintiff Subbiah Mudaliar therein couldbe present and even bid at the auction without prejudice and the bestprice would therefore, be secured etc. https://hcservices.ecourts.gov.in/hcservices/

41.At this stage, it is to be pointed out that Section 132 ofthe Tamil Nadu Panchayats Act, 1994 speaks of 'Vesting of communalproperty or income in village panchayat' which reads as follows:"Any property or income including any fisheryright which by custom belongs to, or has beenadministered for the common benefit of theinhabitants of the village or of the holders incommon of village land generally or of the holdersof lands of a particular description or of theholders of lands under particular source ofirrigation shall, if so declared by theGovernment, vest in the village panchayat and beadministered by it for the benefit of theinhabitants or holders aforesaid."42.As a matter of fact, Section 132 corresponds to Section 83 ofthe 1958 Act and Section 58 of the 1950 Act. Indeed, Section 83 ofthe old Act, which corresponds to Section 132 of the 1958 Act vestingcommunal property, or income in panchayat and the Sectioncontemplates that there should be a declaration by Government forvesting the communal property or income to avail the benefits as perSection 132 of the Tamil Nadu Panchayats Act 1994.43.This Court aptly points out the decision in Alagar Iyengarand others V. State of Tamil Nadu rep. By the District Collectort,Kamarajar District, Virudhunagar and another, 2002 (2) T.L.N.J. 155at page 157 wherein it is laid down as follows:"Section 83 clearly contemplates a declaration bythe Government. Mr.Gopalaratnam submitted thatthe declaration contemplated under Section 83relates only to the last clause preceding, viz."of the holders of lands under a particular sourceof irrigation". This, in my view, is not at allcorrect. If we remove the word "shall" for theearlier clauses, the very section will becomemeaningless. The contention in this regard urgedon behalf of the second respondent is, therefore,untenable. We can therefore rest assured thatthere has to be a declaration by the Governmentfor vesting of communal property or income inPanchayat."In the aforesaid decision at page 158 & 159, it is observed asfollows:"Section 83, as already pointed out, contemplatesa declaration and unless there is a declaration,there can be no vesting. As opposed to Section 83where a declaration is contemplated, under Section https://hcservices.ecourts.gov.in/hcservices/ 84 there is automatic vesting of water works inPanchayat. If there is a declaration by the Government underSection 83, then there would be vesting ofcommunal property or income in Panchayat and onlywhere the maintenance of any work is transferredunder Section 85 of the Act to any PanchayatUnion, the fishery rights of Government will betransferred to and vested in it and in the instantcase, there was no transfer of any irrigation workand the fishery rights cannot therefore belong tothe Panchayat. If as contended in the writtenstatement that tanks and channels are maintainedby the Government at its expense, then it goesagainst the case of the second respondent underSection 85 of the Act."44.This Court worth recalls the decision of Hon'ble SupremeCourt in Tirunagar Panchayat V. Madurai Co-operative HouseConstruction Society, AIR 1966 Supreme Court 1807 at page 1808wherein it is held as follows:"In the enactment of S. 58 the legislature did notcontemplate that parks, play grounds, schools ortemple or hospital dedicated to the public shouldvest in the panchayat merely by the fact of suchdedication. What is required by s. 58 for the'purpose of vesting is the proof of custom by whichthe villagers in common acquire title to anyproperty or income. Vesting of rights takes placeunder S. 58 if there is proof of customary rightof administration of any property or income forthe benefit of the villagers in common. Unlesstherefore there is proof of customary right, thePanchayat cannot claim title to the property orincome ad ministered for the benefit of thevillagers in common. For example, the Society mayhave established a library or a social club or aschool for the benefit of its members Again, aprivate individual may have created a trust forthe provision of amenities like parks, playgrounds and hospitals for the residents of thevillage. In a case of this description the legalownership of the Society or of the trustees willnot vest in the Panchayat because of theprovisions of s. 58 of the Act. It cannot besupposed that such a startling and unjust resultwas contemplated by the, legislature in enactings. 58." https://hcservices.ecourts.gov.in/hcservices/

45.It is not out of place for this Court to point out that inthe decision in Commissioner, Rajapalayam Panchayat Union, KamarajarDistrict V. Madasamy and others (2007) 4 MLJ 38 at page 39, inparagraph 18 and 19, it is observed hereunder:"18.when Section 133 of the Tamil Nadu PanchayatsAct empowers Panchayat Unions the right ofmaintenance and when Section 143 providesindependent right to Panchayat Unions to removethe danger in respect of tanks, wells, etc., I amnot in agreement with the finding of the lowerappellate court that the plaintiff-Panchayat Uniondoes not have the locus standi to file the suitand that the Government ought to have beenimpleaded as a party to the suit. This is because,as rightly contended by the counsel for theappellant, the plaintiff-Panchayat Union, being aninstrumentality of a welfare State which has theduty and responsibility to protect the interest ofthe public at large, has every right to set rightthe wrong done to the communal property which isnothing but the tank in the instant case. 19.Admittedly, the appellant is a wing of theGovernment and an instrumentality of the State andit is governed by the Tamil Nadu Panchayats Actand the provisions made therein provideindependent right of maintenance of tank bund tothe appellant and also to take action to evict theencroachers, to maintain the delicate ecologicalbalance and to provide proper and healthyenvironment to enable people to enjoy a qualitylife which is the essence of the fundamental rightguaranteed under Article 21 of the Constitution ofIndia. Thus, there can be no doubt that theappellant has the domain power by virtue of thesovereign rights available with the Government andthe appellant, being a wing of it, can exerciseits powers particularly in the matter of publicutility. Therefore, the appellant's action inpreventing any kind of obstruction of flow ofwater is obviously within its powers and the TrialCourt has gone into this matter in detail with itscogent reasonings; whereas the lower appellatecourt, on the contrary, has gone wrong ininterfering with the findings of the Trial Courtby giving unconvincing and unacceptable reasoningsto disbelieve the evidence. The primary object of https://hcservices.ecourts.gov.in/hcservices/ the appellant is to protect the interest of thepublic at large and the interest of theindividuals certainly cannot prevail over thepublic interest etc."46.Apart from the above decisions, this Court cites thefollowing decisions:(a)In Nadimpalli Venkataraju V. Ravipadu Panchayat Board, byPresident, Kotagiri Kondalarao, 1960-I Andhra Weekly Reporter at page18, it is held as follows:"The land in question did not vest in thePanchayat Board under any of the sections 56, 58,60 and 77 of the Act. Vesting depends not upon thedescription in the village accounts but upon thenature of the property. Although the PanchayatBoard seems to have laid a road through the surveynumber, there was no permanent cart-track used bythe public running through it. In this view nopart of the survey number could have vested in thePanchayat Board as a public road under section 56of the Act. Section 58 refers to communal propertyand not to any property belonging to the State.This section has no application to the facts ofthe case. Section 77 cannot be invoked because theland is not covered by a tank nor can it bedescribed as adjacent land of the kind mentionedin the section. Section 60 empowers Panchayats inryotwari tracts to exercise power to regulate theuse of certain kinds of porambokes which are atthe disposal of the Government. It also providesthat in the case of "any other poramboke which isat the disposal of the Government" than thosespecified in sub-section (2) of that section, thePanchayat may exercise like power if "authorisedin that behalf by an order of the Government".This section makes no mention of the vesting ofany such porambokes in the Panchayat. ThePanchayat has no right to interfere with thepossession of the defendant."(b)In Malayankulam Panchayat, Kancheepuram District V.T.Vivekanandan and others, (2007) 7 MLJ 424 (DB), the Hon'bleDivision Bench of this Court has observed and held as follows:"6..... Rule 11 of the said Act reads asunder:“11.Lease of fishery rights:- The lease offishery rights in the water sources vested in thevillage panchayats or the panchayat union council https://hcservices.ecourts.gov.in/hcservices/ shall be given after conducting public auction bythe respective village panchayats or panchayatunion council, as the case may be. Such leaseshall be for a period of five years. Lease amountshall be raised every year at the rate of 10 percent over the lease amount of the previous year.7.The above Rule makes it clear that lease offishery right in the water sources vested in thevillage panchayats shall be given by way of publicauction by the village Panchayat or PanchayatUnion Council. It further shows that it shall befor a period of five years and lease amount shallbe raised every year at the rate of 10% over thelease amount of the previous year.”(c)In K.Chandru and others V. The President, Karambakkam VillagePanchayat, Karambakkam, Tiruvellore District and others (2003) 3 MLJ832, it is held as hereunder:"Under Rule 11 of the Tamil Nadu Panchayats (Leaseand Licensing of Fishing Rights in Water Sourcesvested and regulated by Village Panchayats andPanchayat Union Councils) Rules (1999), a licencefor fishing rights can be granted only for aperiod of 5 years. But, a licence granted for 9years cannot be cancelled without giving adequateopportunity to the licensees."(d)In S.Durai V. District Collector, Tirunelveli and others,(2007) 2 MLJ 870, it is held as hereunder:"8.The entire text of Rule 11 makes it clear thatthe local body is entitled to enhance the leaseamount every year and the five years mentionedtherein permit the authorities to grant maximumperiod of lease. Once lease is granted for oneyear after compliance of necessary formalities,which is one of the essential conditions oftender, it cannot be altered by the parties afterentering into the arena. 9..... The petitioner having agreed theterms and conditions mentioned in thenotification and participated in the auction, itis not open to him to say the period of one yearfixed is incorrect."(e) In the decision in Paruthipalli Panchayat Union rep. By itsPresident P.Thangammal, Tiruchengode Taluk V. The Collector, https://hcservices.ecourts.gov.in/hcservices/ Collectorate of Namakkal and others, 2008 Writ Law Reporter 274wherein it is held as follows:"Though this Court is not deciding the title orright relating to the tank, which is the subjectmatter of this writ petition, this Court is of theview that the way in which the lease was orderedto the society is not satisfactory, besides, it isillegal, hence, this Court is inclined to allow WPNo. 49149 of 2006 and consequently, WP No. 3363and 3364 are liable to be dismissed. It is open tothe parties to go for any further auction orleasing, but first decide the issue about theright or title of Paruthupalli Village, hence, theDistrict Collector, who is having the over allcontrol of the District, is directed to decide thesaid issue in accordance with law."47.In this context, this Court makes a reference to Section 2 ofthe Tamil Nadu Land Encroachment Act, 1905 which reads as follows:"2.Rights of property in public roads, etc.,waters and lands.- (1) All public roads, streets,lanes and paths, the bridges, ditches, dikes andfences, on or beside the same, the bed of the seaand of harbours and creeks below high water mark,and of rivers, streams, nalas, lakes and tanks,and Substituted for the words 'all canals andwater-courses" by, ibid [all back waters, canalsand water-courses) and all standing and flowingwater, and all lands, wherever situated, save inso far as the same are the property-(a) of any [Zamindar estate has beenabolished. See section 3 of the Tamil Nadu Estates(Abolition and Conversion into Ryotwari) Act, 1948(Tamil Nadu Act XXVI of 1948)]. Zamindar, poligar,mittadar, shrotriemdar or [Inam Estate has beenabolished. See section 3 of the Tamil Nadu. InamEstates (Abolition and Conversion into Ryotwari)Act, 1963 (Tamil Nadu Act 26 of 1963)] inamdar orany person claiming through or holding under anyof them, or (b) of any person paying shit, kattubadi,jodi, poruppu or quit-rent to any of the aforesaidpersons, or(c) of any person holding under ryotwaritenure [Substituted for the words "including thatof a janmi in Malabar, or of a wargdar in SouthKanara" by the Madras Adaptation of Laws Order, https://hcservices.ecourts.gov.in/hcservices/ 1957] [including that of a janmi in the Gudalurtaluk of the Nilgiris district] [Inserted bySection 4 of, and the Second Schedule to, theTamil Nadu (Transferred Territory) Extension ofLaws Act, 1960 (Tamil Nadu Act 23 of 1960)] [andin the transferred territory] or in any waysubject to the payment of land-revenue direct toGovernment, or (d) of any other registered holder of land inproprietary right, or(e)of any other person holding land undergrant from [The words "the Crown" were substitutedfor the word "Government" by the Adaptation Orderof 1937 and the word "Government" was substitutedfor "Crown" by the Adaptation Order of 1950] [theGovernment] otherwise than by way of licence, and, as to lands, save also in so far as they aretemple site or owned as house-site or back yard,are and are hereby declared to be [The words"Crown property" were substituted for the words"the property of Government" by the AdaptationOrder of 1937 and the words "the property ofGovernment" were substituted for "Crown property"by the Adaptation (Amendment) Order of 1950 [theproperty of Government] except as may be otherwiseprovided by any law for the time being in force,subject always to all rights of way and otherpublic rights and to the natural and easementrights of other land-owners, and to all customaryrights legally subsisting.(2) All public roads and streets vested inany local authority shall, for the purpose of thisAct, be deemed to be [the property of Government].Explanation.- In this section, "high watermark" means the highest point reached by ordinaryspring-tides at any season of the year."48.From the above, it is evident that all public roads, streets,land including water courses, rivers, streams, nalas, lakes and tanksetc. are the property of the Government and belongs to the Governmentand that the Government have jurisdiction to issue notice as perSection 7 of the Act and that the person aggrieved by the said noticeshould have filed his objections before the appropriate authorities. https://hcservices.ecourts.gov.in/hcservices/

49.The burden of proof as per Section 2 of the Act, the initialburden lies on the person who is to prove title to show that he comeswithin the saving clause to Section 2(1) of the Tamil Nadu LandEncroachment Act. Really speaking, Section 2 of the Act declares,subject to the saving clause that the Government is the owner ofcertain kinds of property, including the beds of tank. As per Section14 of the Tamil Nadu Minor Inams (Abolition and Conversion intoRyotwari) Act, 1963, (Tamil Nadu Act 27 of 1963) the rights ofcertain lessees and others are mentioned as follows:"14.Rights of certain lessees and others.- (1) Incases not governed by any other provision of thisAct, where on or after the 30th day of September,1961, but before the appointed day, an inamdar hascreated, by way of lease or otherwise, rights inany mines or minerals, quarries, fisheries orferries, the transaction shall be deemed to bevalid; and all rights and obligations arisingthereunder, on or after the appointed day, shallbe enforceable by or against the Government:Provided that the transaction was not void orillegal under any law in force at the time andthat any such right was created for a period notexceeding one year.(2)(a) Where any such right was createdbefore the 30th day of September, 1961 for aperiod exceeding one year, the Government may, ifin their opinion it is in the public interest todo so, by notice given to the person concerned,terminate the right with effect from such date asmay be specified in the notice, not being earlierthan three months from the date thereof.(b) The person whose right has been soterminated shall be entitled to compensation fromthe Government which shall be determined by theBoard of Revenue [By virtue of section 10(1) ofthe Tamil Nadu Board of Revenue (Abolition) Act,1980 (Tamil Nadu Act 36 of 1980) an reference tothe Board of Revenue shall be deemed to be areference to the State Government] in such manneras may be prescribed, having regard to the valueof the right and the period for which the rightwas created.(c) Where any such right created before the30th day of September 1961 is not determined underthis sub-section, the transaction whereby such https://hcservices.ecourts.gov.in/hcservices/ right was created shall be deemed to be valid andall rights and obligations arising thereunder, onor after the appointed day, shall be enforceableby or against the Government:Provided that the transaction was not void orillegal under any law in force at the time.(3)The Government may, if in their opinion,it is in the public interest to do so, imposereasonable restrictions on the exercise of anyright continued under this section.Explanation.- Any rights granted inperpetuity shall cease and determine and be dealtwith under section 3(e) and not under thissection."50.The trial Court, in its Judgment in the main suit, has opinedthat as confirmed by the evidence of P.W.2 the tanks in the suitschedule properties have been in possession of theAppellant/Plaintiff's ancestors who had the fishery right and alsothat Ex.A.56 to 65 have been filed before the Defendant and thenumber of years and the continuous enjoyment have not been taken intoconsideration by the 1st Respondent/1st Defendant and has rejected inpursuance of the orders-Ex.A.77 dated 28.11.1973 is a contrary oneand further the documents and evidence filed and produced on behalfof the Appellant /Plaintiff show that in the suit 9 tanks theAppellant/Plaintiff has acquired adverse possession and that theenjoyment of 9 tanks from the 2nd Respondent/2nd Defendant is directedto be handed over to the Appellant/Plaintiff has found already andaccordingly held that the order in R.C.19884 dated 28.11.1973 passedby the 1st Respondent/1st Defendant is not a valid one and consequentlyanswered the issues 1, 4 and 5 in favour of the Appellant/Plaintiff.51.The trial Court, in regard to the issue whether theAppellant/ Plaintiff without payment of annual income is entitled torestrain the fishery auction right by means of an injunction prayer,has held that in Ex.A.78 Order of the High Court in W.P.No.6609 of1973 dated 09.02.1978 wherein it is observed that the adopted fatherhas been given the three months time to file a suit separately andalso it is observed that the adopted father has to remit a sum ofRS.1,000/- to the 2nd Respondent/2nd Defendant and to continue thefishing right in respect of the suit tanks and as per Ex.A.78-HighCourt's Order, the three months time have elapsed before and theHigh Court order will not remain in force after three months and inthe year 1982 when the Appellant/Plaintiff files a suit it cannot beasked that the Appellant/ Plaintiff is to pay a sum of Rs.1,000/- tothe 2nd Respondent/2nd Defendant. https://hcservices.ecourts.gov.in/hcservices/

52.Further, it has been observed by the trial Court that as suchas per Ex.A.78-High Court Order in W.P.No.6609 of 1973 only for threemonths alone the Appellant/Plaintiff is to pay a sum of Rs.1,000/- tothe 1st Respondent/1st Defendant and after expiry of three months, theadopted father filing a suit and paying a sum of Rs.1,000/- to the 2ndRespondent/2nd Defendant and to utilise the fishing right there is noorder and therefore, to the 2nd Respondent annually Rs.1,000/- has tobe paid and only after making the said payment it is not correct tostate that the auction of the fishing right in respect of the suittanks to be made by the 2nd Respondent/ 2nd Defendant is to beprevented and resultantly, held that annual income need not be paidby the Appellant/Plaintiff to the 2nd Respondent/ 2nd Defendant.53.As regards the issue when the suit has not been filed intime, whether the Appellant/Plaintiff is entitled to continue thesuit filed by him? the trial Court, has, among other things, come toa conclusion that a fishing right in respect of the suit tanks is animmovable property and that the Appellant/Plaintiff has filed a suitwithin 12 years from the year 1971 and since the suit is not barredby limitation and as per Ex.A.78 High Court's Order when the suit isto be filed within three months from the date of High Court's orderin W.P.No.6609 of 1973 the Appellant/Plaintiff is entitled to file asuit within a period of 12 years and also that inasmuch as the suithas been filed well within 12 years, the suit is not barred bylimitation and that the time limit of three months granted by theHigh Court as per Ex.A.78 Order will not bind the Appellant/Plaintiffand answered in favour of the Appellant/ Plaintiff.54.In short, the trial Court has finally held that theAppellant/ Plaintiff has acquired the right of adverse possession inrespect of the fishery right in the suit tanks and further theAppellant/Plaintiff has a fishery right in respect of suit tanks andaccordingly, granted the relief of declaration by passing a decreewith costs. 55.The First Appellate Court, in its Judgment in the Appeal inA.S.No.233 of 1992, on 30.09.1993 has held that there is no evidencethat the Appellant/Plaintiff is the heir of deceased Subbiah Mudaliaras evident from the evidence of P.W.1 and has not accepted thefinding of the trial Court that the Appellant/Plaintiff is theadopted son of the deceased Subbiah Mudaliar and held that theJudgment of the trial Court is an unacceptable one. Moreover, it alsoheld that to say the Appellant/Plaintiff has got fishery right insuit tanks and further he need not remit any annual income and addedfurther, the allegation that the Appellant/Plaintiff's predecessorshave been in enjoyment of the suit tanks have not been establishedand consequentially it held that it cannot be said that the order ofthe Thanjavur District Collector dated 28.11.1973 is an invalid oneand that it is not correct that the Appellant/Plaintiff to pray for adirection being issued to the 2nd Respondent/2nd Defendant to hand over https://hcservices.ecourts.gov.in/hcservices/ the enjoyment of the suit tanks to the Appellant/Plaintiff andaccordingly, allowed the appeal by setting aside the Judgment andDecree of the trial Court.56.It transpires from Ex.B.3-Proceedings of the Collector ofThanjavur dated 28.11.1973 [in appeal filed by the President ofKurukathi Panchayat Board against the order of Sub Collector,Nagapattinam in R.C.34532/63 B dated 27.09.1963] vesting the fisheryrights of 9 Panchayat tanks mentioned therein in favour of oneK.V.Subbiah Mudaliar of Kurukathi Village. An order has been passedinter alia to the effect that 'Evidence is clearly available to showthat the tanks in question are Government Poramboke tanks. Evidenceis also available that the maintenance of these tanks have beentransferred to the Panchayat and that Panchayat funds had beenutilised for the maintenance and protection of these tanks. TheRespondent to substantiate his claim of adverse possession of thesetanks should have been able to produce undisputed evidence to showthat he had been in a position and enjoyment of the fishery rightsfor a continuous period of 30 years prior to the date of commencementof the Tamil Nadu Panchayat Act, 1958 etc. and resultantly, held thatthere is no evidence whatsoever to substantiate his claim ofenjoyment of fishery right in respect of any of the tanks for theperiod required to establish his title of adverse possession and setaside the order of the Sub Collector, Nagapattinam issued inR.C.345332/63 B dated 27.09.1963 and directed the vesting of fisheryrights in respect of all the 9 tanks in question in Kurukathi VillagePanchayat.57.Furthermore, in Ex.B.3-Order dated 28.11.1973 of ThanjavurDistrict Collector in paragraph 4, it is, among other things,observed that 'In response to this the respondent was able to produceonly 8 lease deeds purported to have been executed in his favour bycertain lessees who had allegedly taken the fishery rights of thesetanks on lease. 10 account books where the income and charges ofthese leases were said to have been entered were also filed by him.Of the 8 lease chits, the deed executed by Kulandaivelu Pillai infavour of one Kuppanni on 10.3.12, the lease deed executed byMottaiyan and others in favour of Meenakshi Anni on 23.2.1916, thelease deed executed by Siddi Md.Rowther and Vaithilinga Chettiar infavour of the respondent on 6.4.35, the lease chit executed by oneThiru Ibrahim Rowther in favour of Muthu Kutti Anni on 10.4.37 andthe lease deed executed by one Thiru Hussain Sahib and one ThiruMd.Ibrahim Sahib in favour of the respondent have no bearing to thepresent issue at all as they relates to altogether different tanks.The lease deeds executed by one Thiru Vaidyalingam Chettiar in favourof the respondent on 16.4.1938 in respect of Thamaraikulam andVannankulam, the lease deed executed by one Thiru Ponnusami Angarayarin favour of the respondent on 11.4.39 in respect of Thamaraikulamand Vannankulam, the lease deed executed by the same Thiru PonnusamiAngurayar in favour of the respondent on 9.2.40 in respect of https://hcservices.ecourts.gov.in/hcservices/ Thamaraikulam and Vannankulam alone are relevant to the presentissue. Out of the 10 account books produced there are entries withregard to the fishery receipts only in 4 account books. These fourbooks relating to the years 1926, 1927, 1928 and 1929 have entriesonly about receipts from Thamaraikulam fishery. (Account book for1926 – Pages 9-10-11-12 and 43, Account book for 1927 page 42 AccountBook for 1928 – Page 94, Account book for 1929 page 6).' 58.In Ex.A.76-Partition Deed dated 13.07.1980 entered intobetween Appellant/Plaintiff, Velambal Anni and Janaki Anni. Each ofthe parties have divided the properties as per A.2 C schedule. InEx.A.76 Partition Deed, Rajarathinathanni beloved son is mentioned asRamalinga Mudaliar (Appellant/Plaintiff). Ex.A.75 is the Sale Deeddated 02.07.1925 executed by Minor Janaki Anni in favour ofK.V.Subbiah Mudaliar.59.In Ex.B.4-Order dated 30.07.1974 in W.M.P.No.3387 of 1974 inW.P.No.6609 of 1973 [filed by K.V.Subbiah Mudaliar as Petitioner]time has been extended till 07.08.1974 for payment of Rs.1,000/-directed to be paid on or before 15.06.1974 and that the WritPetitioner therein has been directed to send the amount by way ofbank draft purchased in favour of the 2nd Respondent and sent it byregistered post acknowledgement due.60.Ex.A.81 relates to fishery right auction notice in respect ofKurukathi Panchayat tanks wherein it is mentioned that on 22.05.1978Monday at about 10.00 a.m. the fishery right in 11 survey numbersmentioned in the notice will be let out in auction. But auctioning ofthe conditions is that those who are desirous of taking part in theauction bid per tank will have to remit a sum of Rs.25/- in advanceand then only to take part in the auction and further, the successfulbidder in respect of the tanks towards his enjoyment right has toexecute a Muchalika. 61.As per Ex.A.78-Order dated 09.02.1978 passed by this Court inW.P.No.6609 of 1973 the petitioner therein K.V.Subbiah Mudaliar hasbeen given three months time to file a suit against the Government aswell as the Panchayat and till such time, the interim orders passedby this Court which is now in force has been directed to becontinued. As seen from Ex.A.78-Order passed by the Hon'ble HighCourt in the Writ Petition, only K.V.Subbiah Mudaliar has been giventhree months time to file a civil suit. 62.Therefore, it is quite clear that the three months time hasbeen granted to K.V.Subbiah Mudaliar to file a civil suit from thedate of order passed by this Court in W.P.No.6609 of 1973 on09.02.1978. https://hcservices.ecourts.gov.in/hcservices/

63.A reading of the Plaint in paragraph 6 in O.S.No.214 of 1982(filed by the Appellant/Plaintiff) shows that as per High Court'sorder passed in the Writ Petition a sum of Rs.1,000/- has to be paidannually in respect of fishery rights in tanks. But Rathinathanni hasdied without filing the suit and therefore, no provision has beenmade for payment of Rs.1,000/- per year towards fishery right inrespect of the suit tanks. From the year 1978, the Kurukathi FormerPanchayat President has let out the fishery right in respect of thesuit tanks through the auction and after dissolution of Panchayat,the 2nd Respondent who has administered the Panchayat has let out thetanks in auction and the auction amount has been in deposit ofPanchayat Union. 64.Although the Appellant/Plaintiff has taken a plea in thePlaint that Subbiah Mudaliar is his adoptive father, no convincingand positive proof has been let in on the side of theAppellant/Plaintiff to show that he has been taken in adoption by theadoptive father K.V.Subbiah Mudaliar. Even P.W.1(Appellant/Plaintiff) in his evidence has not spoken about theconduct of any ceremony relating to the adoption. In the absence ofany concrete or positive evidence to show that theAppellant/Plaintiff has been taken any adoption by the adoptivefather K.V.Subbiah Mudaliar, the Appellant/Plaintiff has no locus tofile the present suit and to seek the necessary relief of declarationthat the order of the Thanjavur District Collector dated 28.11.1973is an invalid one and for the relief of permanent injunction. Also,without payment of any money to the Panchayat the Appellant/Plaintiffcannot take part in the fishing right auction. 65.To take a plea on the side of the Appellant/Plaintiff that noannual income need be paid in regard to the enjoyment of the suitfishery tank, it is to be pointed out by this Court without makingpayment as required by the auction conditions, it is not open to theAppellant/Plaintiff to take part in the fishery right auction, inrespect of the suit tanks, in the considered opinion of this Court.[Whether it is for a particular year or at a later point of time asthe case may be]. Even though on the side of the Respondents/Defendants no one has been examined as a witness, yet, there is aduty cast on the Appellant /Plaintiff to prove to the subjectivesatisfaction of this Court and to satisfy its judicial consciencethat he is the adopted son of the deceased K.V.Subbiah Mudaliar andfurther that said Subbiah is his adoptive father. Unfortunately, theAppellant/Plaintiff has not established the factum of adoption thathe has been taken in adoption by the adoptive father K.V.Subbiahthrough tangible evidence, in the manner known to law. 66.As per Section 132 of the Tamil Nadu Panchayats Act, 1994 thefishery right in respect of the suit tanks is to be construed asannual property or income in the village panchayat, therefore, thesuit 9 tanks vest in the village Panchayat as per Section 132 of the https://hcservices.ecourts.gov.in/hcservices/ Tamil Nadu Panchayats Act and it is to be administered by it for thebenefit of the inhabitants or holders. When the suit 9 tanks has beenvested in the hands of Village Panchayat as per Tamil Nadu PanchayatsAct, then, in respect of the fishery right therein the Panchayat hasa right to administer it for the benefit of the inhabitants orholders as mentioned in Section 132 of the Tamil Nadu Panchayats Act,1994. Therefore, the 2nd Respondent/2nd Defendant Panchayat Union isentitled to conduct fishery right auction as per Rule 11 of TamilNadu Panchayat (Lease & Licensing of Fishery Rights), Rules, 1999. Asper said the rule, it is made clear that the upset lease amount shallbe fixed by the village panchayat and the panchayat union councilconcerned in consultation with the Inspector of Fisheries of therespective area.67.Moreover, the Lease of Fishery Rights in the water resourcesvested in the village panchayats or the panchayat union council shallbe given after conducting public auction by the respective villagepanchayats or panchayat union council as per Rule 11 of the Lease offishery rights rules as mentioned supra. Further, such lease shall befor a period of five years and that the lease amount shall be raisedevery year at the rate of 10 per cent over the lease amount of theprevious year. 68.From the ingredients of Rule 11 of the Tamil Nadu Panchayat(Lease & Licensing of Fishery Rights), Rules, 1999, it is quiteevident that every year the lease amount shall be raised at the rateof 10 per cent over the lease amount of the previous year and thatthe upset price sum shall be determined by the Village Panchayat andthe Panchayat Union Council concerned in consultation with theInspector of Fisheries of the respective area. As such, it is notopen to the Appellant/Plaintiff to take a contrary plea [against theRule 11] that there is no need for him to pay any sum or even theterms and conditions of auction in any by which one has to payRs.25/- per tank as advance so as to take part in the auction bid ofthe suit tanks fishery rights, as per Ex.A.81-Auction Notice dated15.07.1975 of Kurukathi village.69.Moreover, the order passed by the District Collector, Velloreis more than 12 years and that is to be challenged by the Appellant/Plaintiff, which is a strange one. After the fishery rights in thesuit tanks have been vested with the Village Panchayat Union Council,then, the Panchayat or the Panchayat Union Council is the appropriateauthority to lease out the fishery rights and as such, the plea takenon behalf of the Appellant/Plaintiff that the fishery rights in thetanks mentioned in the Plaint have become vested with theAppellant/Plaintiff by enjoyment over 30 years by his predecessors orancestors etc. is not accepted by this Court. Moreover, by operationof Law, when the lease of fishery rights in respect of waterresources or suit tanks have become vested in Village Panchayat orPanchayat Union Council, then, the the Appellant/Plaintiff is not https://hcservices.ecourts.gov.in/hcservices/ entitled to take the plea of adverse possession. It cannot begainsaid that as per Ex.B.3-Order dated 28.11.1973 the DistrictCollector, Thanjavur has set aside the order of the Sub Collector,Nagapattinam in Proceedings No.Rc.34532/E-3 dated 27.9.1963. Viewedin that perspective, the Substantial Question of Law is answeredagainst the Appellant/Plaintiff. 70.In the result, the Second Appeal is dismissed, leaving theparties to bear their own costs. Consequently, the Judgment andDecree of the First Appellate Court in A.S.No.233 of 1992 dated30.09.1993 are affirmed by this Court for the reasons assigned inthis Appeal. The suit filed by the Appellant/Plaintiff is dismissed.Sd/Asst. Registrar/true copy/Sub Asst.RegistrarSgl To1.The Additional District Judge, Nagapattinam.2.The District Munsif, Nagapattinam.+ 1 cc to Mr.R. Sunilkumar, Sr.25314+ 1 cc to Government Pleader Sr.24947S.A.No.1597 of 1995NM(CO)EU 5.6.12