Karpaga Sundara Vinayagar KoilRaghunathapuram v. Nunakkadu Panchayat & Ors.
Case at a glance
Outcome
Dismissed
Accordingly, the second appeal is dismissed confirmingthe order passed by this court on 30
Provisions considered
Key paragraphs
- Para 88. At this juncture my mind is redolent and reminiscent ofthe following provision of law:- https://hcservices.ecourts.gov.in/hcservices/ "Sec.14-A Ryotwari patta not to be grantedin respect of private tank or oorani -(1)Notwithstanding anything contained in this Act, no ryotwari patta shall be granted in respectof any private…
- Para 1111. Accordingly, there is no merit in the second appeal andhence the same is dismissed. No costs. 30.03.2009This S.A.634/07 having been listed on Wednesday the Fifteenthday of April Two Thousand nine for being mentioned in purusance ofthe order of this Court dated 30.3.2009 and made…
Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:30.03.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.634 of 2007A/M Karpaga Sundara Vinayagar KoilRaghunathapuram – rep. By its FitPerson Raghunathapuram Village, Thiruthuraipoondi Taluk, Thiruvarur District.. Appellant/ Appellantvs.
Nunakkadu Panchayat rep. By its President V.Vellaiyan Thiruthuraipoondi Taluk, Thiruvarur District2. Baby3. The State of Tamilnadu rep. By its District Collector Vilambal Village, Thiruvarur, Thiruvarur District.4. A.Gunasekaran.. Respondents/ RespondentsThis second appeal is filed against the judgment and decree dated08.08.2006 passed by the Subordinate Judge at Mannargudi inA.S.No.32 of 2006 which preferred by the appellant herein againstthe decree and judgment dated 30.11.2004 in O.S.No.18 of 2004 onthe file of District Munsif Court, Thiruthuraipoondi. For Appellant : No appearanceFor Respondent: Mr.V.Bharathidasan (R1) Mr.Kesavan (R2) https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N TThis second appeal is focussed by the original plaintiff, animadverting upon the judgement and decree dated 08.08.2006passed in A.S.No.32 of 2006 by the Subordinate Judge, Mannargudi, confirming the judgment of the trial Court, namely, DistrictMunsif Court, Thiruthuraipoondi, in O.S.No.18 of 2004. Forconvenience sake, the parties are referred to hereunder accordingto their litigative status before the trial Court.
Pithily and precisely, tersely and briefly, avoidingdiscursive delineation of facts in view of the case of both sideshaving been set out in detail in the judgments of both the Courtsbelow, I would like to set out the germane facts thus: The second appellant/plaintiff herein filed the suit seekingthe relief of declaration against the 1st plaintiff declaring himof having the fish farming rights of the suit property and alsofor permanent injunction retraining the defendants from anymanner interfering with such rights in the suit property. Thedefendants resisted the suit by taking various pleas.
During trial, on the side of the plaintiffs, Veeraiyan wasexamined as P.W.1 and Thirugnanam was examined as P.W.2 and Exs.A1 to A9 were marked. On the side of the defendants D.W.1,D.W.2 and D.W.3 were examined and Ex.D1 was marked.
Ultimately the trial Court dismissed the suit as againstwhich an appeal was filed as Appeal No.21 of 2002 before the District Court, Nagapattinam, which Court remanded the matter. Thereafter the suit was numbered as O.s.No.18 of 2004 before the District Munsif, Thiruthuraipoondi, which Court dismissed it, asagainst which an appeal in A.S.No.32 of 2006 was filed by theunsuccessful plaintiff, the appellant herein and it was alsodismissed. Being disconcerted and aggrieved by the judgments anddecrees of both the Courts below, this Second Appeal has beenfiled on various grounds as set out in the memorandum of appealand also suggesting the following proposed substantial questionsof law: "1. Whether the fishery rights is an immovableproperty and hence warrants Stamp duty and Registrationof the document and whether the Courts below arejustified in holding that Ex.A7 executed by the Villagers cannot be accepted?2.
Whether the 1st plaintiff temple has establishedthat it is vested with the Fishery rights of the suittank ever since 1983, as held by the learned District https://hcservices.ecourts.gov.in/hcservices/ Judge in A.S.No.21 of 2002, whether the onus shiftsupon the 1st defendant Panchayat to prove that the saidFishery rights of the suit tank is vested with them?3. Whether the claim of the 1st plaintiff that asper Sec.132 of the Tamil Nadu Panchayat Act, unless the Government specifically entrusts the Fishery Rights of atank to a Village Panchayat, the concerned Panchayatcannot claim the Fishery Right of the tank, isjustified?4. Whether there must be a specific declarationfrom the Government to the village Pachayat regardingthe vesting of the Fishery Rights in common irrigationtanks?5. Whether the Judgment reproted in 2002(5) CTCpage 503 applies to the facts of the present case also?6.Whether adverse inference can be drawn againstthe defendant Panchayat for not having produced anydocumentary evidence to show that they have beenauctioning the Fishery Rights of the suit tank, despitethe evidence of D.W.2 that the relevant registerscontaining the details such as the names of the tankswhich are under the control of the Village Panchayat, and for which tanks the Fishery Rights have been given, are available with the 1st defendant Panchayat?5.
The learned counsel for first defendant would develop hisargument to the effect that even though the appellant in the Second Appeal would contend that the Villagers of that localitygave the right to administer the pond, both the Courts belownegatived it by clearly holding that the said pond is part ofporamboke and it belongs to Government and it is under the controlof Panchayat.
Despite printing the names concerned, no one appeared forthe appellant as well as for D3 to D4.
A bare perusal of and poring over the relevant recordsincluding the typed set of papers and the certified copies ofjudgments of both the Courts below demonstrate and display thefact that earlier the suit O.S.No.226 of 2000 was filed by thefirst plaintiff and R4 Gunasekaran, seeking the relief ofdeclaration of the 1st plaintiff's fish farming rights in the suitproperty and also for permanent injunction retraining thedefendants from any manner interfering with the such rights in thesuit property.
At this juncture my mind is redolent and reminiscent ofthe following provision of law:- https://hcservices.ecourts.gov.in/hcservices/ "Sec.14-A Ryotwari patta not to be grantedin respect of private tank or oorani -(1)Notwithstanding anything contained in this Act, no ryotwari patta shall be granted in respectof any private tank or oorani".Section 5 of Tamil Nadu Act No.49 of 1974 is reproducedhereunder:-"Act to override other laws, contracts, etc. - The provisions of this Act shall haveeffect notwithstanding anything inconsistenttherewith contained in any other law for thetime being in force, or any custom, usage orcontract or decree or order of a court or otherauthority".The cited provision supra, would indicate that it containsHenry VIII clause which would nullify any other contrary provisionin any law authenticated to Section 14-A extracted supra. As suchthe appellant herein is having no locus standi to file the suitand no villagers are having exclusive ownership right over thesuit pond. The First Appellate Court after analysing Exs.A1 to A9clearly held that I plaintiff had no right as claimed by itwarranting no interference by this Court.8. It is ex-facie and prima-facie clear that ponds like thesuit property absolutely got vested with the Government and inturn the Panchayat is vested with the right to administer the sameand in such cases, I am at a loss to understand as to how theplaintiff was justified in litigating ignoring the said provisionof law, which can be taken note of at any stage of the litigationand apply the same to the admitted set of facts. Absolutely thereis no iota or shred molecular or minimal extent of evidence tospell out that the temple got such right by virtue of any grant orsome such deeds. But only during 1983 as per the I plaintiff, the Villagers had handed over such right, which pleading is totallyuntenable as correctly held by both the Courts below, who alsohighlighted that the Villagers had no right to confer such rightof administration of the pond in favour of the temple. As suchthe proposed 1st and 2nd substantial questions of law does notarise at all.
The 3rd proposed substantial question of law is withreference to Section 132 of the Tamil Nadu Panchayat Union, questioning the right of the Panchayat. Once it is found that thesubject matter of the suit property belongs to the Government, then it is between the Government and the Panchayat and it is notfor the temple to question it. As such the said substantialquestion of law also does not arise at all. The findings of both https://hcservices.ecourts.gov.in/hcservices/ the Courts below, also as correctly pointed out by the learnedcounsel for the 1st defendant are that the District Collectorentrusted the right of administration with first defendant.
In view of the above, the 5th and 6th substantial questionsof law also does not arise at all.
Accordingly, there is no merit in the second appeal andhence the same is dismissed. No costs. 30.03.2009This S.A.634/07 having been listed on Wednesday the Fifteenthday of April Two Thousand nine for being mentioned in purusance ofthe order of this Court dated 30.3.2009 and made herein in thepresence of the Mr.S. Sathiamurthi Advocate for the Appellant andof Mr.V. Bharathidasan, Advocate for the ISt Respondent Mr.V.S.Kesavan, Advocate for the 2nd Respondent and of Mr.R. Muthian, Government Advocate, for the 3rd Respondent this Court made thefollowing order:-This matter is listed today under the caption "beingmentioned" at the instance of the learned counsel for theplaintiff/appellant.2. At the time of mentioning, the learned counsel for theplaintiff/appellant cited the following two decisions of this Court viz., (i) 2002 (5) CTC 503 (Alagar Iyengar and 12 others vs. State of Tamil Nadu rep.by the District Collector, KamarajarDistrict, Virudhunagar and another) and (ii) (1971) I MLJ 190(N.S.Kuppuswamy Odayar and another vs.
The Panchayat Narthangudirep.by its President Murugayyan and others) and developed hisargument to the effect that these two decisions, according to himwould enable the villagers who are in enjoyment of the fisheryrights to empower the temple authorities, to auction the fishingrights and use the auction amount for the welfare of thevillagers.3. Whereas the learned counsel for the respondent wouldgainsay and remonstrate the contention as put forth on the sideof the temple authorities,i.e., the appellant in the secondappeal.4. In this factual matrix, it is just and necessary toconsider the aforesaid two judgments as to its applicability tothe facts and circumstances of this case. The decision reported in2002 (5) CTC 503 would highlight and spotlight the fact that the Government is the authority, which could entrust the fishery https://hcservices.ecourts.gov.in/hcservices/ rights in favour of panchayat union and certain excerpts from itwould run thus: "14.
Section 83, as already pointed out, contemplates a declaration and unless there isdeclaration, there can be no vesting. As opposed to Section 83 where a declaration is contemplated, under Section 84 there is automatic vesting of water works inpanchayat. Section 85 (3) provides that,"where the maintenance of any irrigationwork is transferred under this section, thefishery rights of Government in such work shallbe transferred to and be vested in thepanchayat or the panchayat Union council, asthe case may be, subject to such terms andconditions including terms and conditionsregarding the utilisation of the income, as maybe specified by the Government"Section 85 (1) provided that, "Subject to such conditions and control asmay be prescribed, the Government may transferto any panchayat or to any panchayat unioncouncil the protection and maintenance of anyirrigation work, the management of turns ofirrigation or the regulation of distribution ofwater from any irrigation work to the fieldsdepending on them"15.
If there is a declaration by the Governmentunder Section 83, then there would be vesting ofcommunal property or income in panchayat and only wherethe maintenance of any work is transferred under Section85 of the Act to any panchayat Union, the fishery rightsof Government will be transferred to and vested in it andin the instant case, there was no transfer of anyirrigation work and the fishery rights cannot thereforebelong to the panchayat. If as contended in the writtenstatement that tanks and channels are maintained by the Government at its expense, then it goes against the caseof the second respondent under Section 85 of the Act.16. In my considered view, Ex.B11 does not enlargethe scope of sections 83 and 85 at all. The annexurealready referred to in specific terms governs onlyirrigation sources entrusted to Panchayat Union Councilunder Section 85 (1) of the Act and maintained by them or https://hcservices.ecourts.gov.in/hcservices/ by panchayats and other public water sources vested withthe panchayat.
The rules cannot amount to a declarationcontemplated under Section 83 of the Act. In the presentcase, it is only the Panchayat Union, which had issued anotice of auction and not any panchayat.23. In view of the discussion above, I have nohesitation in holding that the lower Appellate Court wasin error that Ex.B11 would be sufficient to clothe thepanchayat union council with rights to put up fisheryrights in auction. The lower Appellate Court was also inerror in relying on Ex.B10 dated 14.1.1988, which appearsto be a copy of the letter from D.W.1 to the Tahsildar, Srivilliputtur, which is admittedly after the suit. Itought not to have been relied upon by the lower appellateCourt. The lower Appellate Curt clearly lost sight ofthe full implications of ExA4 recognising the plaintiff'srights and reserving the right in the Government torevise the kist alone. It is also to be noted that thesuit kanmois had not been handed over to the seconddefendant panchayat union.
"A bare perusal of these excerpts including the entire judgmentwould leave no doubt in the mind of the court that in the citedjudgment, the ratio decidendi is that there should be specificdeclaration under Section 132 (Section 83 of the old Act) of the Tamil Nadu Panchayat Act, 1994 so as to confer the fishery rightin favour of the panchayat union.5. Here the factual matrix is entirely different ashighlighted in my judgment dated 30.03.2009 in this secondappeal. There is also nothing to indicate in the precedent citedthat the villagers could confer right on a temple so as to enablethe temple to exercise its right to auction fishery rights in awater body. In fact, the cited judgment is against the verysecond appellant herein because, the cited judgment would proceedon the basis that only the Government has got power under Section132 of the said Act to declare the fishery right of a tank infavour of a panchayat union.
If such is the position, I am at aloss to understand as to how the villagers can claim such right of Government. In fact, the cited judgment boomerangs as against theappellant herein.6. The one other judgment cited, viz., (1971) I MLJ 190 isrelating to adverse possession where the facts involved were tothe effect that the tank concerned belonged to the lessors family. https://hcservices.ecourts.gov.in/hcservices/
Operative part
7. Hence, I am of the considered opinion that there isnothing to review or revise the order already passed on 30.03.2009in this second appeal.8. Accordingly, the second appeal is dismissed confirmingthe order passed by this court on 30.03.2009.Sd/Asst. Registrar/true copy/Sub Asst. Registrarvj2To1. Subordinate Judge, Mannargudi2. District Munsif, Thiruthuraipoondi.3. The PresidentNunakkadu PanchayatThiruthuraipoondi TkThiruvarur District4. The District CollectorThiruvarurThiruvarur District.2 ccs to Mr.N. Bharathidasan, Advocate, Sr. 14515, 111231 cc to Government Pleader, Sr. 141432 ccs to Mr.S. Sathiamurthi, Advocate, Sr. 14026, 10817S.A.No.634 of 2007RSY(CO)kk 7/530.3.2009/ 15.4.2009
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: Accordingly, the second appeal is dismissed confirmingthe order passed by this court on 30
Which statutory provisions did this judgment involve?
Tamil Nadu Panchayat Act — s. 132; Tamil Nadu Act — s. 5; theTamil Nadu Panchayat Act, 1994.
Which court decided this case, and when?
Madras High Court, on 30 Mar 2009. The bench was G RAJASURIA.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.