SALEM MUNICIPALITY versus P. KUMAR & ORS. on 15 November 2018

O R D E R

1. The Salem Municipality and State of Tamil Nadu and othersare in appeals aggrieved by the judgment and decree passed by the HighCourt of Judicature at Madras on 8.12.2010 thereby deciding threeSecond Appeals by the common judgment and order reversing thejudgment and decree passed by the First Appellate Court of dismissal ofthe suits and restoring that of the Trial Court.

2. It was claimed by the plaintiff that initially, the lease was grantedin favour of S. Vijayaranga Mudaliar on 19.11.1940 by the erstwhileZamindar – Ms.Gnanambal. It was from the month of November 1940to the month of June 1941.

3. Similar leases had been granted on 19.11.1942 in 1943 and1946. In the lease deed area was described as “Chinneri Tank BundSide -Waste dry” and “Chinneri Tank Bund Upper-dry”.

4. It is significant that each of lease had been granted for eightmonths, each year continued from November to June next year, to expirebefore the commencement of rains in July as the land used to besubmerged as it was situated in Chinneri Bund side.

5. It was claimed by the plaintiff that his predecessor in title,continued in possession of the land when the Act called the Tamil NaduEstates (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, asprovided under Section 1(4) of the Act of 1948. The State Governmentenforced the other Sections on the appointed date i.e. 19.12.1950.Thereafter, the entire Pallapatti village vested in the State as notifiedunder the Act of 1948. Pursuant thereto, the possession of the entirevillage was taken over by the Government, which included the disputedland also, vide possession receipt dated 12.1.1951.

A

B

C

D

E

F

G

H

A6. The original plaintiff –late P.C. Pachiappan purchased 4.91acres of land from S. Vijayaranga Mudaliar. The suits are with respectto said land.

7. It transpires that late Vijayaranga Mudaliar had applied for agrant of Ryotwari Patta under section 11 of the Act of 1948. The prayerBwas rejected on the ground that land was not ryoti land and it wasrecorded as community land. Thereafter, settlement in the area wasundertaken and was finally notified in the Gazette dated 21.12.1963.Thereafter, P.C. Pachiappan applied under section 11 of the Act of 1948for grant of Ryotwari patta of the newly carved out Survey No.163corresponding to old survey No. 779. Prayer for grant of RyotwariCpatta of the disputed land was rejected vide order 5.11.1968 passed inDOS 739/68 (F-2) by Assistant Settlement Officers KDIS No. 737/1968. As recorded in the survey land register, Exhibit B-2, prepared inthe survey and settlement in 1959, the total area of the land 163 = 779was 24.62 acres, recorded as Achuvan Eri (lake). Hence, it could notDhave been allotted.

8. A second application for ryotwari patta moved by Pachiappanwas rejected as per government Order dated 11.5.1971. Reviewapplication was filed by Pachiappan. It was also rejected vide orderdated 7.5.1973 on the ground that records of rights made it apparent thatdisputed land formed part of ‘Achuvaneri’ which is IV class irrigationEsource with wet ayacut registered under it and that it is retained as thetank in the interest of ayacutdars under it. It was also observed that theentire area comes into submergence and the land in question forms partof the irrigation tank.

9. Unfettered by the previous two rejections, Pachiappan againFfor the third time applied for issuance of patta on 21.6.1982. Thatapplication was ultimately rejected vide Ex. P-5 on 9.5.1984.

10. On 23.2.1984, by virtue of the Office Memorandum 255, theTransport Department of the State Government handed over SurveyNo.163 admeasuring 24.62 acres to Salem Municipality for constructionGof a new bus stand.

11. Pachiappan had filed a civil suit on 20.12.1984 registered asO.S.34 of 1985 in the Court of District Munsiff of Salem against theState of Tamil Nadu and M/s. Anna Transport Corporation for declarationof title and permanent injunction in respect of 4.91 acres of the land, outHof survey No.163.

12. Yet another civil suit came to be filed by the same plaintiff asagainst Salem Municipality alone for declaration and injunction on22.12.1989.

13. Thereafter, the fourth application was filed for obtainingryotwari patta by Pachiappan on 26.3.1992. He had filed yet anotherwrit petition No.3932/1992 for restraining the respondents from disturbingpeaceful possession and enjoyment of the property.

14. In Writ Petition No.5642/1992 he prayed that respondent maybe directed to consider an application for grant of ryotwari patta.However, both the writ petitions were dismissed as withdrawn. Earlierwrit petition filed in 1984 was also dismissed with liberty to file a civilsuit.

15. Third suit O.S.No.342/1996 (348/95) (renumbered as 2066/96) was filed as against Salem Municipality, Anna Transport Corporationand State of Tamil Nadu. He has prayed for the same relief in the thirdcivil suit.

16. By virtue of the various leases granted to S.VijayarangaMudaliar, he became entitled to obtain ryotwari patta under Section 11of the Act of 1948. Plaintiff entered into an agreement to purchase thesuit property in 1951 which culminated into a sale on 29.9.1952. The suitproperty never formed part of the communal land of Achuvan Eri or itstank bund. Further, the extent of the Achuvan Eri as per the records isonly 15.00 acres. The Plaintiff had remained in actual possession andenjoyment of suit property. In the year 1982, Forest Departmentattempted to commit a trespass in the suit property and put up a nursery.The plaintiff objected and obtained the stay orders from the Governmentof Tamil Nadu against trespass. The Forest Department withdrew andwas restrained from further work. The plaintiff also filed applicationsfor grant of ryotwari patta in his favour and his predecessor in interestsince 1940 onwards had prescribed his title by virtue of adverse possessionalso.

17. Earlier suit No. OS.34/1985 was dismissed in default, in theabsence of both the parties. The application No.I.A. 583/94 for itsrestoration was pending. The cause of action arose in the year 1940,thereafter in 1952, when the sale deed was executed and again in theyear 1984. Besides declaration and injunction, prayer was also made fordemarcation of the property in question.

A

B

C

D

E

F

G

H

A

A18. After the restoration of the suit of 1985, three suits weredecided vide common judgment and decree dated 27.4.2000 passed bythe Trial Court, Additional District Munsif of Salem. The suit was decreedon 27.4.2000. The appeals were allowed by the First Appellate Courti.e., First Additional District Court, Salem vide judgment and decree dated30.1.2004. Aggrieved thereby, three-second appeals, which wereBpreferred have been allowed by the impugned judgment and decreethereby restoring that of the Trial Court.

19. The High Court has given the finding that there is nothing todoubt the various leases granted to S.Vijayaranga Mudaliar. Sale deedhas also been relied upon, the documents A-1 to A-4 have been reliedCupon by the High Court. The High Court has drawn adverse inferencesagainst the appellants for not producing record pertaining to the aforesaiddocuments A-1 to A-4. High Court has disbelieved documents B-9 oftaking possession on 12.1.1951. Finding of possession has been arrivedat in favour of the plaintiff. The High Court has also doubted the actionDof Salem Municipality of handing over only 19.64 acres area to theTransport Corporation for bus stand, whereas the entire land 24.62 acreshas been given to the Salem Municipality by the Tamil Nadu Government.High Court has further stated that there is no estoppel created againstthe plaintiff by virtue of the facts mentioned in lease deeds. It has alsonot been explained by the defendants that how the area of 15 acres ofEwater tank increased to 24 acres. Consequently, the High Court has setaside the judgment and decree of the First Appellate Court and restoredthe judgment and decree passed by the Trial Court.

20. Shri Rakesh Dwivedi, Shri R.Venkataramani and ShriGurukrishna Kumar, learned senior counsel appearing on behalf of theFappellants urged that High Court has failed to consider the variousprovisions of the Act of 1908 as well as the Act of 1948. No right couldhave been created in the water tanks by virtue of the provisions containedin the said Acts. They have relied upon the definition of Ryot and Ryotiland in Section 3(15) and 3 (16) of the Act of 1908.

G21. The ryoti land as defined in section 3(16) of the said Actspecifically excludes beds and bunds of tanks. It was also urged thatHigh Court has also failed to consider the impact of dismissal of theproceedings for obtaining ‘Ryot Patta’ under Section 11 of the Act, filedby the Predecessor in interest S.Vijayaranga Mudaliar and by the originalplaintiff. The prayer of S. Vijayranga Mudaliar for grant of ryotwariHpatta has been rejected vide order dated 20.7.1953. Other four prayers made by Pachiappan also stood rejected in the years 1968,1971, 1984and 1994. In the absence of a grant of ryotwari patta and even otherwise,the land remained vested in the State Government. The finding as topossession of plaintiff recorded by the High Court is also perverse and iscontrary to the revenue entries, the documents of settlement and otherrecord of rights w.e.f. 1948 till 1995. The revenue records have beenplaced on record and in none of them, there is an entry of possession ofPachiappan. On the strength of sale deed executed in 1952, the name ofPachiappan had never been mutated. Since Predecessor S. VijayarangaMudaliar had no title, late Pachiappan could not have derived any right,title or interest from him. Having failed to prove the title of S. VijayarangaMudaliar and also his own title, the plaintiff was not entitled to obtain thedecree in his favour. Apart from that, it was also urged that though sucha suit was barred under the provisions of 1948 Act. Even if it is held tobe maintainable for establishing of the rights of Ryot, plaintiff hasmiserably failed to prove right, title or interest so as to seek declarationand injunction prayed for. The suits were rightly dismissed by the FirstAppellate court. Learned counsel have also referred to the decision inState of Tamil Nadu Vs. Ramalinga Samigal Madam (1985) 4 SCC10. Even if the documents A-1 to A-4 are taken to be proved, plaintiffdid not derive any sustenance from them for proving of right, title orinterest over the land. The High Court has proceeded merely on thebasis of adverse inference so as to confer a title in favour of the plaintiffwhereas the plaintiff has miserably failed to prove his own case. Theyhave also relied on Section 14A of the 1948 Act.

22. Shri Rajiv Dutta and Shri V.Giri, learned senior counselappearing on behalf of the plaintiff contended that once documents A-1to A-4 are found to be proved, right, title and interest stands proved notonly of the predecessor-in- interest but that of the plaintiffs also. Findingof fact as to possession of plaintiff has been rightly recorded by theTrial Court. The decision of the First Appellate Court has been rightlyreversed by the High Court. The entitlement to obtain ryotwari patta hasbeen proved. The claim for conferral of ryotwari patta has not beenproperly adjudicated by the concerned authorities. Civil suits weremaintainable and have been rightly decreed.

23. It was also contended on behalf of plaintiff that difference inthe area of the tank has not been properly explained and the area inquestion 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 ABCDE

FG

H

AS.Vijayaranga Mudaliar and, as right, title and interest for obtaining ofryotwari patta had accrued to him, he could have alienated the propertyin the year 1952. Finding as to possession is also the question of fact andhas been rightly arrived at by the Trial Court which has rightly beenrestored by the High Court. No case for interference is made out. Formaintainability of the civil suit, they have relied upon the decision inBDokiseela Ramulu vs. Sri Sangameswara Swamy Varu & Ors. (2017)2 SCC 69. Lastly, they contended that the adverse inference has rightlybeen drawn by the High Court.

24. First, we take up the determination of question as to the natureof the land as the accrual of right, title and interest depends on thatCunder both the Acts of 1908 and 1948. It is apparent from the lease deedplaced on record by the plaintiff (Exh. A-2) dated 15.11.1940 that theland formed part of the Chinneri Tank Bund Side -Waste dry ChinneriTank Bed Upper-dry Chinneri Tank Bund Side -Waste dry Chinneri TankBed Upper-dry and the lease was granted in Fasli 1350 correspondingDto Gregorian calendar year of 1940 w.e.f. the month of November1940 to June 1941. Similar other leases collectively marked A-2 aredated 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 51of the Act of 1908. It is apparent from the leases that area in question isspecifically depicted in the aforesaid lease deeds to form part of theEtank.

25. Besides that, there are a plethora of revenue entries placedon record indicating that the entire area 24.62 acres had been recordedas tank continuously right from 1950 till 1995.26. The lease had been granted for eight months in the year 1940.FThe grant of lease for the aforesaid period excluding rainy season fromJuly to October and evidence indicates that land formed part of thetank. Thus, we have no hesitation in rejecting the submission to thecontrary raised on behalf of the plaintiff- respondent to the effect thatland did not form part of the tank.G27. Now, we come to the question whether any right can beacquired on such a land. When we consider the relevant provisionscontained in the Act of 1908 and definition as defined Ryot under Section3(15) and Ryoti Land under 3(16). The same is extracted hereunder:

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

Explanation:

A person who has occupied ryoti land for a continuous period oftwelve years shall be deemed to be a ryot for all the purposes ofthis Act.

Section 3 (16)- “Ryoti land” means cultivable land in an estateother than private land but does not include; (a) beds and bunds of tanks and of supply, drainage, surplus orirrigation channels:

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

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

28. It is apparent from the definition of ‘ryot’ as defined underSection 3(15), means a person who holds the land for the purpose ofagriculture. It is necessary for such a ‘ryot’ to hold ‘ryoti Land’ in anestate. Ryoti land has been defined in Section 3(16) as cultivable land inan estate other than private land but does not include beds and bunds oftanks and of supply, drainage, surplus or irrigation channels. Thus, as thearea in question formed part of the tank was clearly not ryoti land as perthe 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.

29. The provisions contained in the 1948 Act have been enactedto bring about agrarian reforms and to abolish the intermediaries,zamindars, and Jagirdars etc. As a matter of fact, a lot of agrarian reformshave taken place by the enactment of Abolition Act, as mandated byArticle 39 (b) and (c) of the Constitution. By virtue of the provisionscontained in Section 3 of the Act, on issuance of notifications with effectfrom the notified date certain consequences ensues automatically. It isprovided in Section 3(b) that entire estate including with all communallands; porambokes, other then ryoti lands; rivers and streams; tanks andooranies (including private tanks and ooranies and irrigation works] etc.,shall stand transferred to the Government and vest in them, free of allencumbrances.

A

B

C

D

E

F

G

H

1232SUPREME COURT REPORTS

[2018] 13 S.C.R.

ASection 3 is extracted hereunder: “Section 3: With effect on andfrom the notified date and save as otherwise expressly providedin this Act:

(a) the Tamil Nadu Estates Land (Reduction of Rent) Act,1947 Tamil Nadu Act XXX of 1947 [in so far as it relatesBto] matters other than the reduction rents and thecollection of arrears of rent and the Tamil Nadu PermanentSettlement Regulation, 1802 Tamil Nadu Regulation XXVof 1802, the Tamil Nadu Estates Land Act, 1908 TamilNadu Act 1 of 1908, and all other enactments applicableto the estate as such shall be deemed to have beenCrepealed in their application to the estate]

(b) the entire estate including all communal lands;porambokes; other nonryoti lands; wastelands; pasturelands; Lanka lands; forests; mines and minerals; quarries;rivers and streams; tanks and ooranies (including privateDtanks and ooranies and irrigation works] fisheries andferries, shall stand transferred to the Government and vestin them, free of all encumbrances and the Tamil NaduRevenue Recovery Act, 1864, the Tamil Nadu IrrigationCess Act, 1965, and all other enactments applicable toryotwari areas shall apply to the estate;E

(c) all rights and interests created in or over the estate beforethe notified date by the principal or any other landholder,shall as against the Government cease and determine; (d)the Government may, after removing any obstruction thatmay be offered forthwith take possession of the estate,and all accounts, registers, pattas muchilikas, maps, plansand other documents relating to the estate which theGovernment may require for the administration thereof; F

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

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

(ii) if such person is a landholder pending the decision of theH

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 ceaseand determine under clause (c), shall be entitled only tosuch rights and privileges as are recognized or conferredon him by or under this Act]

(f) the relationship of landholder and ryot, shall, as betweenthem, be extinguished; (g)any rights and privileges which may have accrued in theestate to any person before the notified date, against theprincipal or any other landholder thereof, shall cease anddetermine, and shall not be enforceable against theGovernment or such landholder and every such personshall be entitled only to such rights and privileges as arerecognized or conferred on him by or under this Act.]”

30. It is also provided in Section 3(c) that all rights and interestscreated in or over the estate before the notified date by the principal orany other landholder, shall against the Government cease and determine.

31. It is apparent that under Section 3 of the Act of 1948 vestingis automatic by virtue of the statutory provisions and government isempowered to take possession as provided under Section 3 (a) onlysaving in the proviso to section 3(d) is that in case any person is primafacie entitled to ryotwari patta and during pendency of his application,for the settlement, was not to be dispossessed. In the case of thelandholder, it is provided that if the decision is pending before theSettlement Officer and the Tribunal on appeal, the State before takingpossession has to prima facie consider whether landholder is entitled toryot patta. Another consequence of vesting as clearly provided in Section3(f) of Act of 1948 is that the relationship between the landholder andRyot shall stand extinguished.

32. Section 3(g) of the Act of 1948 specifically provides that rightwhich may have accrued in the estate to any person before the notifieddate shall not be enforceable against the government and such personshall be entitled only to such rights and privileges as are recognised orconferred on him as provided under the Act of 1948.

33. Section 11 deals with rights of a ryot in an estate to apply for A

B

C

D

E

F

G

H

Aa ryotwari patta in respect of ryoti land which was properly included orought to have been properly included in his holding.

34. Section 11 is extracted hereunder:

“Lands in which ryot in entitled to ryotwaripatta:

“11. Every ryot in an estate shall, with effect on and from theBnotified date, be entitled to a ryotwari patta in respect of ; (a) all ryoti lands which, immediately before the notified date, wereproperly included or ought to have been properly included in his holding and which are not either Lanka lands or lands in respectof which a landholder or some other person is entitled to a ryotwariCpatta under any other provision of this act; and (b) all Lanka lands in his occupation immediately before the notifieddate, such land having been in his occupation or in that of hispredecessors-in-title continuously from the 1st day of July 1939.

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

Explanation: No lessee of any Lanka land and no person to whomEa right to collect the rent of any land has been leased before thenotified date, including an ijaradar or a farmer of rent, shall beentitled to a ryotwari patta in respect of such land under thissection.”

35. Section 12 deals with the right of the landholder in zamindariFestate and Section 13 deals with the landholder of Inam estate withwhich we are not concerned in the present case. Plaintiff has claimedthe right, title and interest as ryot, not as landholder.

36. Section 14-A was inserted by amendment Act 49 of 1974.The provisions contained in Section 14-A is extracted hereunder; G“Ryotwari patta not to be granted in respect of private tank oroorani:

14-A.(1) Notwithstanding anything contained in this Act, noryotwari patta shall be granted in respect of any private tank oroorani.

H

(2) Any ryotwari patta granted in respect of any private tank oroorani under this Act before the date of the publication of theTamil Nadu Estates (Abolition and Conversion into Ryotwari)Amendment Act, 1974, in the Tamil Nadu Government Gazette,shall stand cancelled, and for purposes of compensation underthis Act the private tank or oorani shall be deemed to be land inrespect of which neither the landholder nor any other person isentitled to ryotwari patta under this Act.”

37. Section 14-A(1) makes it clear that Notwithstanding anythingcontained in this Act, no ryotwari patta shall be granted in respect of anyprivate tank or ooranies. Even if any patta has been granted the sameshall stand cancelled and the land of the private tank or oorani shall bedeemed to be land of neither the landholder nor any other person isentitled to ryotwari patta under the Act.

38. It is apparent from the conjoint reading of the provisionscontained in Sections 3(15) and 3 (16) of the Act of 1908 and theprovisions contained in Section 3, 11 and 14-A of the Act of 1948 thatthe land of the tank is not ‘ryoti land’ as such no rights of ‘ryot’ couldaccrue in the person by holding the land on temporary arrangement oflease granted for 8 months in a year when water was not there in thetanks. Such bodies are protected by virtue of the aforesaid provisionscarved out under the Acts of 1908 and 1948. The amendment made in1974 in Section 14-A makes it clear that even if any ryot patta has beengranted to any incumbent even with respect to private tank or ooraniesthat shall be inoperative and stand cancelled.

39. In the instant case, it is apparent that not only S.VijayarangaMudaliar the vendor of plaintiff had applied for a grant of patta underthe provisions of Section 11 of the Act of 1948, but the same very prayerhad been unsuccessfully made four times by the original plaintiff. Allsuch prayers made in 1953, 1968, 1971, 1982 and 1994 had been rejected.It is not in dispute that ryotwari patta had not been granted. In the orderpassed rejecting review in 1973, there is categorical finding that land iscomprised in the tank and area was liable for submergence and formedpart of the irrigation tank. Once the claim of the original plaintiff hadbeen rejected, it was incumbent upon him to file a suit for establishinghis rights, if any. He could not have waited till 1984, after initial rejectionof the prayer in 1953. Again, could not have waited till December 1984after the rejection order was passed in 1968 and again on 11.5.1971 andreview had been dismissed on 7.5.1973. In the absence of grant of AB

C

DE

F

G

H

AB

C

DE

F

G

H

Aryotwari patta and even otherwise in view of the fact that land formedpart of tank reserved for common use, no right accrued to the plaintiff toclaim ryotwari patta as his predecessor was not ‘ryot’ and the disputedland was not ‘ryoti Land’. Apart from that, vendor of the plaintiff did nothold land for 12 continuous years, as such no right, title or interest accruedto the vendor of the plaintiff or to the plaintiff. The Trial Court, as wellBas the High Court, have committed patent illegality in ignoring the aforesaidprohibition contained in the provisions of the Act of 1908 as well as ofthe Act of 1948.

40. Coming to the question of possession, the High Court hasdiscarded B-9 proceedings taking possession on 12.1.1951. Though, thereCwas absolutely nothing to doubt factum of taking over the possession. Itis also apparent that the land formed part of tank which used to go insubmergence during the rains from the month of July to October, it wasnot capable of being possessed continuously. No patta was granted tothe vendor of the plaintiff for a complete year at any point of time, it wasDfrom November to June. The four lease deeds for the period of fouryears are for 32 months i.e. 8 months each year, have been placed onrecord of 1940, 1942, 1943 and 1946, no other lease has been producedindicating that he was holding land for 12 years or any lease of the landas on the date when theAct of 1948 came into force or on the appointedday. Even the vendor was not in possession of the land as the entireEestate of the village stood vested in the state, as per the notificationissued on 12.1.1951, possession had been taken. Thus, there wasabsolutely nothing to hold that possession continued with the vendor ofthe plaintiff. After the purchase was made by Pachiappan in 1952 thereis not even single revenue entry placed on record indicating that he everFremained in possession at any point of time or cultivated the land. On theother hand, various documents to the contrary have been placed on recordby the appellant.

41. Firstly, there are copies of settlement register indicating theland comprised in new survey No. 163 corresponds to 779 old and sameis recorded as Poramboke (common land) for common use. Entire areaG24.62 acre had been recorded as Poramboke. There is yet anothersettlement entry of 1959 which records that Survey No.163 had beencarved out of 779 in an area 24.62 acre and area has been recorded asAchuveri i.e., lake and also Porampoke i.e., for the common use. Thedocument records the fact that Pachiappan’s application for grant ofHryotwari 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) theland has been recorded as Chinneri (small lake). In the remarks columnpossession of several persons is recorded as a trespasser, but not that ofthe plaintiff - Pachiappan. Similar is the position in the entry of variousFasli 1380 = 1970, 1381 = 1971, 1382 = 1972, 1383 = 1973, 1384 =1974, 1386 = 1976, 1390 = 1980, 1391 = 1981 till 1405 = 1995. Theentries in remarks column shows neither ownership nor tenancy asobserved by this Court in Beohar Rajendra Singh v. State of M.P. andothers,1970 RN 16 (Supreme Court).

42. Other documents are also placed on record indicating thatarea is Chinneri (lake) of common use. Thus, there was absolutely nomaterial or ground available to the High Court to set aside the finding ofpossession recorded by the First Appellate Court and for discarding theB-9 of taking possession in 1951 as that was supported by correspondingrevenue entries and statutory presumption of correctness is attached tosuch entries though such presumption is rebuttable. However, there isabsolutely no evidence adduced on record by the plaintiff to rebut thestatutory presumption of correctness of document of record of rights.Thus, trial court, as well as the High Court, has acted in a perversemanner in discarding the overwhelming evidence merely on the groundthat document A-1 to A-4 stands proved. The High Court could not haveinferred in favour of the plaintiff, as no right accrued to the plaintiff or tohis predecessor-in-interest on the basis of the aforesaid document A-1to A-4. The High Court has unnecessarily drawn adverse inference justin 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 thecase on that basis.

43. When we consider the documents A1 to A-4, taken as proved,not only they fail to advance the cause espoused by the plaintiff butrather negates it. Ex.A-2 are the 4 pattas placed on record by the plaintiffgranted in favour of S.Vijayaranga Mudaliar as predecessor interest of1940, 1942, 1943 and 1946. The lease deed itself records that land wascomprised in the tank and formed part of the tank. Thus, no right or titleor interest could have accrued to the plaintiff over the said land.

44. Apart from that, when we consider sale deed A-1, executedby S.Vijayaranga Mudaliar in favour of original plaintiff Pachiappa, therecital in the sale deed is that though patta was granted in his name hecould neither cultivate nor able to look after the same, as such, he has AB

CDE

F

G

H

Adecided to sell the land. In Exh.A-3 rent register of Fasli 1369 = 1959. Itonly records the rent not the factum of lease or possession or cultivationby S.Vijayaranga Mudaliar. A-4 is document of the year 1949 that recordsthe name of S.Vijayaranga Mudaliar but in that, no cultivation is recordedof S.Vijayaranga Mudaliar. It records only how much was the cess ofland. No case is made out in favour of vendor of the plaintiff on the basisBof 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 assumingit was paid by the vendor in 1949, is not going to confer title in favour ofvendor, particularly when the area was comprised in the tank. In caseany lease had been granted for the period of 1947 to 1949 ought to haveCbeen placed on record but no such lease deeds except for four yearshave been placed on record. Thus, the finding recorded by the HighCourt as to possession is clearly perverse and contrary to the revenuerecords and the Gazette notification of vesting of land in State issued in1951.

D45. 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 tohave prevailed. It is open to the court under Section 114 to presume thecontinuity of any fact once shown to have prevailed. Such presumptionof continuity can be drawn not only forward but backward also. Courtcan presume that such state of affairs might have existed in past alsoEunless discontinuity is proved. In the instant case, it is not shown by anyaffirmative evidence on record in the form of revenue record that theplaintiff’s vendor was in possession on the date of abolition and thereafterplaintiff remained in possession at any point of time. This Court hasobserved in Sir Bhimeshwara Swami Varu Temple v. Pedapudi KrishnaFMurthi and Ors., AIR 1973 SC 1299 that by stray entry no suchpresumption arises. On the other hand, the successive five attemptsmade by the plaintiff and his vendor failed to obtain ryotwari patta as noright in such land existed neither accrued. The plaintiff due to failure toobtain ryotwari patta and even otherwise as land formed part of tankhas failed to prove entitlement to be treated as Ryot. No right, title orGinterest has accrued to the plaintiff to obtain any ryotwari patta or forobtaining decree in the suit.

46. It was urged before us on behalf of the appellant that suit wasbarred by limitation by virtue of provisions contained in Article 58 of theLimitation Act 1963. The suit was required to be filed within three years.HWe 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 allentitled for any relief.

47. The High Court has considered another aspect of the differencein area, it has opined that earlier it appeared that land was 15.00 acresonly later on how the area was increased to 24.62 acres has not beenexplained by the defendants. The aforesaid reasoning recorded by theHigh Court is totally based upon the ignorance of the material aspectsand evidence, as a matter of fact earlier dispute land was comprised insurvey no. 779 and which corresponding to new s.no. 163 in 24.67 acres,said area has been continuously recorded in the revenue papers andregister of settlement, right from the beginning. After 1948 till 1995, nocogent document indicating the disparity in the area has been filed bythe plaintiff. Even assuming that the finding recorded by the High Courtis correct, it passes comprehension how that helps the case of the plaintiff.Plaintiff has to succeed only on the strength of his case and whentemporary leases had been granted to his vendor within the area of tankas mentioned in the lease deeds which was reserved for the commonuse, no right could have accrued. The High Court has ignored andoverlooked this material aspect. In case, the area has increased from15 acres to 24.62 acres and has not been explained how the plaintiff canclaim any right in the land which formed part of water body is notunderstandable as the case of the plaintiff is not at all or buttressed bythe aforesaid discrepancy even if it exists. Moreover, the entire area of24.63 acres has been recorded as Chinneri (tank) and poramboke i.e.,for common use.

48. Now, we dealwith last groundraised by learned seniorcounsel on behalf of the plaintiff based on provisions contained in section64 of the Act of 1948. Section 64 deals with the right of the owner,occupier not to be affected by temporary dispossession/discontinuanceof possession. Section 64 is extracted hereunder:

“Rights of owner or occupier not tobe effected by temporarydiscontinuance of possession or occupation:

64. Where a person-

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

DE

F

G

H

A(b) has not on that date lost his right to recover the possession oroccupation of such land or building; He shall, for the purposes of this Act, and subject to the provisionsthereof be deemed to be the owner, or to be in possession oroccupation, of such land or building; BProvided that any lawful transferee of the right to the title to suchland of building shall be entitled to all the rights this Act of histransferor.

49. Section 64 pre-supposes that a person is entitled to ownershipor possession or occupancy of any land immediately before the notifiedCdate. In case of temporary dispossession or deprivation of his right tooccupation hereafter and he has not lost the right to recover the possessionof such a land or building shall for the purpose of the Act be deemed tobe the owner or to be in possession or occupation of such land or building.

50. There cannot be any dispute with respect to legal provisionsDin Section 64 of the Act of 1948. It is settled proposition of law that incase of wrongful dispossession or discontinuance of possession of owner,possession of person who has wrongfully taken it is deemed to be that ofthe true owner, but in the instant case, the provisions of Section 64 renderno help to the plaintiff for the singular reason that his vendor is not proved to be the owner of the land nor has proved his occupation on theEdate of abolition or that it had been discontinued in illegal manner, nosuch right of vendor to remain in possession has been established.Plaintiff’s vendor was not having any right, title or interest after thelapse of temporary leases. Consequently, he did not possess anytransferable right in the land. Hence, Pachiappan did not derive anyFright, title or interest from his predecessor in the land as he had none.Plaintiff was required to prove derivative title in which he has miserablyfailed. It was mentioned in recital in the sale deed by his vendor that hewas not able to possess land nor could cultivate it. Apparently, the vendorof the plaintiff was not in occupation of land. Moreover, possession hadbeen taken in 1951 of entire estate by the State Government as apparentGfrom the Gazette notification, the land of the entire village stood vestedin the State.

51. The State Government has handed over the land to SalemMunicipality and a major part of it has been given to the Anna TransportCorporation for the purpose of the bus stand. The High Court hasHobserved why entire land was not given to Transport Corporation by Municipality and consequently inferred in favour of the plaintiff, onlypart of the land has been given could not have been made the basis bythe High Court to derive a conclusion in favour of the plaintiff so as tobuttress the title. The High Court has gravely erred in recording such aninferential finding. There was no scope to arrive at the same. Theapproach employed by the High Court is wholly impermissible,unsustainable, perverse and illegal.

52. Thus, we have no hesitation in setting aside the judgment anddecree passed by the High Court and restoring that of the First AppellateCourt. All the three suits stand dismissed. As there was multiplication ofvarious proceedings and three suits were filed, we impose cost of RupeesOne Lakh upon the plaintiff/respondent to be deposited with the WelfareFund of Supreme Court Advocate-on-Record Association within twomonths and receipt be filed in the Registry.

53. The appeals are allowed.

A

B

C

Nidhi Jain

Appeals allowed.D

E

F

G

H