Decided on June 30,1970

N.S. Kuppuswamy Odayar Appellant
Panchayat Narthangudi Respondents


M.M.ISMAIL,J. - (1.) THE appellants herein instituted O.S. No. 351 of 1962 on the file of the Court of the District Munsif of Valangiman at Kumbakonam for declaration of their right to a tank and to the fishery rights therein situate in R.S. No. 73/2 in Narthangudi Village and for a permanent injunction restraining the respondents from interfering with their possession of the same, or, in the alterative for recovery of possession of the tank with the fishery rights therein.
(2.) THE appellants claimed title to the tank and the fishery rights therein, having exercised the same for more than hundred years, and they came to file suit only because the first respondent -panchayat purported to lease out the fishery rights in the tank by public auction on 23rd April, 1962. The appellants claimed title to the property and also in the alternative claimed that even if they were not the original owners of the tank and the fishery rights they had perfected their title by adverse possession. On the other hand, the case of the respondents was that the tank was situate in natham poramboke and as such, the tank was Government property and under the provisions of the Madras Panchayat Act, it had vested in the panchayat and consequently the first respondent -panchayat had acquired the right to auction the fishery rights. Both the Courts below have rejected the case of the appellants and dismissed their suit and hence the present second appeal. Since I have decided to set aside the judgment and decree of both the Courts below and remand the suit for a fresh disposal in view of the gross failure on the part of the Courts below to understand the case put forward by the appellants and the wrong approach on their part to the questions raised in this suit, I do not propose to express any final -opinion on any of the points in controversy.
(3.) AS I pointed out already, the appellants claimed that they were the owners of the tank and the fishery rights therein and in the alternative claimed also that they had perfected title by adverse possession. Admittedly, there was documentary evidence to show that it was the appellants' predecessors -in -interest who had been leasing out the fishery rights in the tank from 1873 onwards, as evidenced by Exhibit A -4 and other similar documents. By a partition deed dated 14th July, 1900, marked as Exhibit A -1, the tank had been dealt with as the property belonging to the family and had been partitioned. In each and every one of the lease deeds produced in this case, the lessees had acknowledged that the tank belonged to the lessor's family. However, without paying proper attention to any of these documents as evidence of title of the appellants, the Courts below proceeded on the basis that the tank was situated in natham poramboke and that the appellants themselves had admitted the same. I am clearly of the opinion that this approach was thoroughly wrong and was entirely unjustified with reference to the facts of the case and the materials placed before the Court. As I pointed out already, there is evidence to show that as early as 1873 the fishery rights in the tank were leased out by the predeces -sors -in -interest of the appellant's family. Both the Courts have come to the conclusion that there was no evidence as to who dug the tank and when the same was dug. Nonetheless, relying solely upon Exhibit B -1, which is an extract from the Re -settlement Register the Courts below came to the conclusion that the tank was situate in natham poramboke. D.W. 1 had stated that the Re -settlement Register was prepared in 1925, that Exhibit B -1 was an extract from the Resettlement Register and that R.S. No. 73/2 had been shown in that Register as poramboke. The fact that in 1925 the land in question was shown as poramboke did not automatically mean that at the time when the tank was dug, the land was poramboke, or that in the poramboke land, the tank was dug. Equally, the admission of the first appellant was that the tank was situate in the poramboke land, that is, he was referring to the state of affairs existing on the date when he was examined. There was no admission on the part of the appellants that the tank was dug in a poramboke land. Therefore, there could be no question of the appellants themselves having admitted that the tank was dug in a poramboke land and if at all, they could claim title only by prescription on the basis of adverse possession. Hence, the question regarding title put forward by the appellants had to be investigated into and examined independently of their alternative claim to title by prescription. The Courts below have failed to do that because of the wrong assumption that the appellants had admitted that the tank was situate in natham poramboke, failing to make a distinction between this tank being situate in what was described as a natham poramboke in Exhibit B -1 and the tank having been dug in what was a natham poramboke or not. Tt has been repeatedly held that the mere fact that in the Re -settlement Register, a particular piece of land has been described as poramboke will not by itself establish title of the Government to the land in question. Under these circumstances, I do not have the slightest hesitation in holding that both the Courts below have failed to appreciate the question of title put forward by the appellants to the tank in question and approach the claim from that point of view.;

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