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Nachammal v. S. Murugesan, (Madras)(Madurai Bench) : Law Finder Doc Id # 862095

2011(1) MadWN (Civil) 712
MADRAS HIGH COURT
(Madurai Bench)
Before:- G.M. Akbar Ali, J.
Rev A. Nos. 16 and 17 of 2010 in S.A. Nos. 780 and 781 of 2004. D/d. 24.9.2010.
Nachammal and others - Appellants
Versus
S. Murugesan - Respondent
For the Appellants :- R. Subramanian, Senior Counsel for N.C. Ashok Kumar, Advocate.
For the Respondent :- R. Swaminathan for Rajarajan, Advocates.
A. Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 - Madras Land
Encroachment Act, 1905 - Grama Natham Lands - Legal position - Held, for an Occupied
Grama Natham, the occupier and his successor-in-title become the absolute owner - For
an Unoccupied Grama Natham, which is otherwise known as Natham Poramboke, it was
the practise of the Government to issue assignment for the individuals and on such
assignment, that person becomes the owner of the house site - Government, as the
custodian, has the right to grant such assignment - Appellant cannot challenge the
assignment, unless he proves better title.
[Para 19]
B. Civil Procedure Code, 1908 Section 114 and Order 47 - Review - Grounds for - There
held three grounds for a review: (i) from the discovery of new and important matter or
evidence which, after the exercise of due diligence, was not within petitioner's
knowledge or could not be produced by him at the time when the decree was passed or
order made, (ii) on account of some mistake or error apparent on the face of the record,
and (iii) for any other sufficient reason for a review - Resultantly, unless any one of the
above grounds is satisfied the Court shall not review its own order and shall not rewrite
its judgment.
[Para 22]
Cases Referred :
A. Srinivasan v. The Tahsildar, Egmore Nungambakkam Taluk, 2010 (1) LW 123.
A.K. Thillaivanan and A.K. Davalan v. District Collector, Chennai Anna District, 1998 (3) LW 603.
Chinnathami Goundan v. Venkatasubramania Iyer, 1939 MWN 207.
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Kamrnavar Sangant through its Secretary R. Krishnasamy v. Mani Janagarajan, 1999 (3) CTC 304.
Prataprai N. Kithari v. John Braganza, JT 1999 (4) SC 443.
S. Rengaraja Iyangar v. Achikannu Annual, 1959 (2) MLJ 513.
Vaidyanath Sasthri v. The Assistant Settlement Officer, 1993 (1) LW 383.
Venkataramana Sivan v. Secretary of State for India.
JUDGMENT
G.M. Akbar Ali, J. - Review Applications are filed against the judgment and decree dated 20.1.2010
passed in S A No.780 and 781 of 2004 by this Court.
2. By a common judgment dated 20.1.2010 in S.A. Nos.780 and 781 of 2004, this Court dismissed the
Second Appeals. The Appellant has preferred the present Review Petitions on the following grounds:
(i) This Court having accepted that the suit property is a Grama Natham and that the occupier
of the Grama Natham becomes the owner of the property ought to have allowed the Appeals
thereby confirming the title to the Appellants;
(ii) This Court having found that one Karuppa Naidu and thereafter, the Appellants were in
long possession of the suit property, ought to have held that the Appellant's predecessor was
the first occupier of Grama Natham;
(iii) The Court ought to have considered that the Appellants have established possessory title.
3. Before adverting to the above grounds and the maintainability of the present Review Petition, let
us see the brief facts of the case which is as follows:
The Review Petitioner/Appellants are the Plaintiffs in O.S. No.309 of 1994 and the Defendants in
O.S. No.641 of 1995 They have filed the Suit for declaration of title and consequential
injunction in respect of the suit property in S.F. No.520/C Thanthoni village, Malaipatti Natham.
Karur Taluk. They have claimed that the suit property is a Grama Natham and the Plaintiffs
grandfather was in possession and enjoyment by putting up construction and was running a
tea stall and also residing in the property. On the basis of the continuous possession and as
well as on possessory title they have claimed title.
4. The Respondents claimed that the suit property belonged to Ins grandfather Ponnusamy Pillai
who purchased the property under a registered Sale Deed dated 1.7.1919. He derived title by a
Release Deed executed by his Brothers and Mother. He became the absolute owner and filed the
other Suit for declaration of title. Both the Courts below dismissed the Suit of the Revision
Petitioners/Appellants and decreed the Suit of the Respondent holding that the Respondent had
established his title and the Appellants have no title. The Appellants preferred the Second Appeals.
5. While disposing the Second Appeals, this Court considered the plea of the Appellants that the suit
property is a Grama Natham, that the Appellants' predecessor in title was in possession, but has
held that the property was assigned by the Government to one Karuppa goundan as a Manai
(House Site) from whom the Respondent's grandfather purchased and the Appellant has not proved
either possessory title nor title by adverse possession
6. Mr. R. Subramaniam, the learned Senior Counsel for the Revision Petitioners contended that the
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Grama Natham cannot be assigned as it was not vested with the Government and the occupier of
the Grama Natham becomes the absolute owner. The learned Counsel has also contended that once
long possession is proved the Appellants are entitled to possessory title and the plea of adverse
possession was given up during the course of argument of the Second Appeals.
7. This Court found that the suit property is a Grama Natham and the first occupier becomes the
holder of the land. However, this Court has also found that the property was assigned to one
Karuppa Goundan from whom Ponnusamy Pillai purchased.
8. Now adverting to the grounds raised by the Revision Petitioners. I am of the considered view that
the nature of Grama Natham and rights of the holder of such Grama Natham has to be clarified
9. "Grama Natham" has been defined in the Law Lexican as follows:
"Ground set apart on which the house of a village may be built".
Grama Natham is the village 'habitation' where the land holders may build houses and reside. They
are also known as 'House Sites" (Manai) They were classified as Grama Natham to differentiate
from Inam Lands, Ryotwari Lands, Pannai Lands and Waste Lands, while later vested with the
Government, the Grama Natham never vested with the State.
10. There were two enactments which deal with the Grama Natham Lands (i) Madras Estates
(Abolition and Conversion into Ryotwari) Act, 1948 (Madras Act XXVI of 1948; and (ii) The Madras
Land Encroachment Act 1905 (Madras Act III of 1905).
Section 3(b) of Madras as Act 26 of 1948 read as follows"
"with effect on and from the notified date and save as otherwise expressly provided in this Act
the entire estate (including all communal lands and Porambokes) other Non-Ryotwari lands
shall stand transferred to the Government and vest in them, free of all encumbrances;
11. In S. Rengaraja Iyangar and another v. Achikannu Annual and another, 1959 (2) MLJ
513 , this Court held,-
"A house site owned by a person in what is generally known as Grama Natham is not, under
Madras Act III of 1905, property of the Government".
12. In A.K. Thillaivanan and A.K. Davalan v. District Collector, Chennai Anna District and
others, 1998 (3) LW 603 , this Court held as follows:
"Being Grama Natham, it is obvious that the land in question had never vested with the
Government Section 2 of the Land Encroachment Act, 1905 excludes Grama Natham owned as
house sites. As such the provisions of the Land Encroachment Act, 1905 cannot be invoked by
the Respondents in respect of the land in question."
13. In A. Srinivasan and another v. The Tahsildar, Egmore Nungambakkam Taluk, 2010 (1)
LW 123 , this Court held as follows:
"Further from the decisions cited supra, it is clear that 'Grama Natham' can not be considered,
ipso facto to, as Government property. Once it is found that suit item No.1 is classified as
'Grama Natham' it should be held that it does not belong to the Government. Therefore, there
can be no doubt that the Defendant can not invoke the provisions of the Tamil Nadu Land
Encroachment Act, 1905 "
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14. Since Grama Natham is not vested with the Government, the learned Senior Counsel for the
Revision Petitioner submitted that there cannot be any assignment and the alleged purchase by
Ponnusami Pillai is not valid
15. This Court was not persuaded by the above argument. Indisputably, an assignment (Ex.B1) was
made as early as 17th August 1904 in favour of one Karuppa Gounden for a house site
(VERNACULAR MATTER ) His wife and children have executed a Sale Deed dated 17.8.1919 in
favour of one Ponnusami Pillai. One Chellaiyee had executed a Lease Agreement (Ex.B.3) in favour
of Ponnusami Pillai. Against these documents Appellants have produced the earliest document dated
3.9.1973 a Mortgage Deed, and an another Mortgage Deed dated 8.8.1985 to show their possession
and enjoyment. Apart from these documents, they have produced the House Tax Receipts for the
year 1986, 1992 to 1995. Under U.D.R Scheme the Grama Natham lands were surveyed and Survey
Numbers hare been assigned. Thereafter, there was an attempt by the Government to levy house
site tax for the Natham Lands and later it was given up. From the Revenue Records, it is clear that
the suit property is comprised in S.F. No.520-C and later surveyed as 954/9.
16. I am also not convinced with the argument that this Court having accepted that the suit
property is a Grama Natham and that the occupier of the Grama Natham becomes the owner of the
property ought to have allowed the Appeals thereby confirming the title to the Appellants. There
are two types of Grama Natham. viz., Occupied Grama Natham and Unoccupied Grama Natham
otherwise known as Natham Poramboke (See Vaidyanath Sasthri v. The Assistant Settlement
Officer and Others, 1993 (1) LW 383) . Assignment of house site (VERNACULAR MATTER ) was in
practise and the Natham Poromboke used to be assigned by the Government to the landless poor.
One such assignment was under Ex.B.1 dated 17.8 1904. Therefore, the title initially vested with the
assignee viz., Karuppa Gounden, thereafter passed on to Ponnusami Pillai, grandfather of the
Respondent and later to the Respondent. It is not the case of the Appellants that even prior to the
assignment their predecessor in title was in occupation.
17. The Appellant cannot agitate the assignment under Ex.B1 dated 17.8.1904. Though (occupied)
Grama Natham lands shall not be vested with the Government, an unoccupied village site which is
usually called as Natham Poramboke, can be assigned by the authorities and that was the practise
also.
18. In Chinnathami Goundan v. Venkatasubramania Iyer, 1939 MWN 207 , Wadsworth, J.
dealt with unoccupied village site. It is held as follows:
"I am of opinion that by the recognised practise of this Presidency - excluding areas with a
Special Revenue law such as Malabar - the control of unoccupied village site land vests in the
proprietor whoever he may be. In Ryotwari areas that control is exercised by the Government
in the Revenue Department by means of the grant of house site Pattas without which
occupation by an individual villager would be unauthorised. In Zamindari areas that control is
exercised by the Zamindar. In a Shrotriem village not falling under the Estates Land Act. I am
of opinion that according to the common practise of this Presidency the control of such
unoccupied village site vests in the Shrotriemdar. My attention has been dawn to the decision
of a Bench of this Court in Venkataramana Sivan v. Secretary of State for India , which is
a case arising out of a whole Inam village Wherein the Government claimed the right to
penalise an unauthorised occupation of a cremation ground poramboke. It was held in that
case that the Government was vested with the right of protecting such communal ground tor
the benefit of the community and there rs an observation in the judgment of Spencer. J. To the
effect the Government is the custodian of the rights of the public in lands such as sites for
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Pagodas, burning grounds, threshing floors, cattle stands, unassigned house sites and
backyards The suggestion is that the legal title vests in the Government in trust for communal
purposes"
19. Therefore, for an Occupied Grama Natham, the occupier and his successor-in-title become the
absolute owner. For an Unoccupied Grama Natham, which is otherwise known as Natham
Poramboke, it was the practise of the Government to issue assignment for the individuals and on
such assignment, that person becomes the owner of the house site. The Government, as the
custodian, has the right to grant such assignment. The Appellant cannot challenge the assignment,
unless he proves better title
20. In Kamrnavar Sangamnt through its Secretary R. Krishnasamy v. Mani Janagarajan,
1999 (3) CTC 304 , S.S. Subramani, J. held as follows:
"23. But I do not think that the above decision will help the Respondent in any way. In that
very decision. Their Lordships have held that injunction cannot be granted against a person
who has got a better title to the suit property. In this case, I have held that as per Ex.B.1, the
Appellant has got better title than the Plaintiff. In a recent decision of the Honourable
Supreme Court reported in Prataprai N. Kithari v. John Braganza, JT 1999 (4) SC 443 ,
similar question came for consideration,. In paragraph 11 of the judgment. Their Lordships
have said thus:
"It is quite obvious that the learned Single Judge had not taken note of the principle of
possessory title or the principle of law a person who has been in long continuous possession
can protect the same by seeking an injunction against any person in the world other than the
true owner. It is also well-settled that even the owner of the property can get back his
possession only by resorting to due process of law."
24. Once it is found that the Plaintiff has no title, the question of granting the relief of the
basis of possessory title may not arise since the Appellant herein is having better title. As
against the true owner or as against the person having better title, a person claiming
possessory title cannot get injunction."
21. Coming to the maintainability of the present Review Petition, it is well settled that in a review,
the Court cannot re-write its own judgment:
Order 47(1), C P C , reads as follows:
Order 47, Rule 1:
1. Application for review of judgment .- (1) Any person considering himself aggrieved.-
(a) by a decree or order from which an Appeal is allowed, but from which no Appeal has been
preferred,
(b) by a decree or order from which no Appeal is allowed, or
(c) by a declaration on a reference from a Court of Small Causes
and who, from the discovery of new and important matter or evidence which, after the
exercise of due diligence, was not within his knowledge or could not be produced by him at
the time when the decree was passed or order made, or on account of some mistake or error
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apparent on the face of the record, or for any other sufficient reason, desires to obtain a
review of the decree passed or order made against him, may apply for a review of judgment to
the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment
notwithstanding the pendency of an Appeal by some other party except where the ground of
such Appeal is common to the applicant and the Appellant, or when, being Respondent, he can
present to the Appellate Court the case on which he applies for the review.
Explanation : The fact that the decision on a question of law on which the judgment of the
Court is based has been reversed or modified by the subsequent decision of a superior Court in
any other case, shall not be a ground for the review of such judgment.
22. The three grounds for a review are: (i) from the discovery of new and important matter or
evidence which, after the exercise of due diligence, was not within his knowledge or could not be
produced by him at the time when the decree was passed or order made, (ii) on account of some
mistake or error apparent on the face of the record, and (iii) for any other sufficient reason for a
review. Unless any one of the above grounds is satisfied the Court shall not review its own order
and shall not rewrite its judgment.
In the present review none of the above grounds were raised and satisfied. Therefore, there is no
error apparent on the face of the record and there is no sufficient reason to review the judgment
passed by this Court.
23. In the result, both the Review Applications stand dismissed. No costs.
R.A. dismissed - No costs.