- (1.) THE appeal is against the judgment and decree of the learned Additional Subordinate Judge of Salem in O.S.No.556 of 1976. THE unsuccessful plaintiffs are appellants.
(2.) THE suit was originally instituted by the 1st plaintiff and his three sons who are plaintiffs 2 to 4. Pending suit, the 1st plaintiff thed whereupon his daughter and widow have been subsequently impleaded as plaintiffs 5 and 6. THE brief facts of the case which is a suit for compensation for land acquisition are these: THE property more particularly described in the plaint bearing pymash Number 111/3, Komarapalayam Agraharam village in Trichengode Taluk with an extent measuring 3.09 acres belonged to the 1st plaintiff by purchase under three registered deeds of sale dated 29.4.1950, 30.7.1950 and 11.10.1950 in favour of the 1st plaintiff. Ever since, the 1st plaintiff had been in possession and enjoyment of the same. Patta book has been issued in favour of the 1st plaintiff by the Government and kist was being paid by the 1st plaintiff. THE 1st plaintiff was also taking water for suit land from the Cauvery river by virtue of the permission given by the Collector. In or about 1972, the Government acquired certain properties in this village for the purpose of forming a by-pass road. Before issuing the Notification for acquisition, the Government took possession of the lands with the consent of the land-owner. An extent of 1.50 acres in the said pymash No. 111/3 out of the total extent of 3.09 acres was taken possession of by the Highways Department with permission of the 1st Plaintiff. THE landowners were assured that notifications will be duly issued under the Land Acquisition Act and compensation paid. THE promised Notification was published on 24.10.1973. But the said Notification did not contain this land of 1.50 acres in pymash No.111/3 belonging to the plaintiffs. THE plaintiffs understood that this extent of 1.50 acres in pymash No.111/3 has been left out of acquisition on the ground that this property came under the category of M.C. field. THE plaintiffs, in law and equity, are entitled to be paid the value of 1.50 acres of their land taken possession of by the Government. In the acquisition proceedings in respect of other lands in the village for the formation of the by-pass road, the Government has awared compensation at the rate of Rs. 11,400 per acre. THE suit property is also a Nanja land irrigated by Cauvery water and the plaintiffs are entitled to be paid compensation at the same rate of Rs. 11,400 per acre, though in fact the suit property will be worth more than Rs.20,000 per acre. For the extent of 1.50 acres, the plaintiffs are entitled to compensation of Rs. 17,000. THE plaintiffs are also entitled to claim interest on the said amount at 12% p.a. from the date of taking possession. However they restrict their claim for interest at 6% p.a. from the date of publication of the Sec.4(1) Notification on 24 10 1973 In view of the attitude of the Government" in denying the plaintiffs the compensation they have been constrained to file the suit for recovery of compensation of Rs.20,206. 50 P. for the land taken over by the Government, after issuing the staturoy notice under Sec80 of the Civil Procedure Code. THE Plaintiffs have claimed Rs. 17000 with interest thereon at 6% p.a. from 24.10.1973 to the date of plaint, in all Rs.20,206.50 P. The Government raised the following contentions: The suit land is situated in Komarapalayam Agraharam village which has been held by this Court and the Supreme Court to be not an inam village, and it has not therefore been taken over by the Government. The tenure of this village has not been decided so far. The suit land which bears old Pymash No.111/3 is classified as "Poramboke" in the Revenue Records namely, Fair Land Register of the village. Since the tenure of the lands in this village has not been decided so far, the title for the land under dispute has to be decided only by Settlement Department after Survey and Settlement is over. It is admitted that the first plaintiff applied to the Collector for permission to take Cauvery water and permission was granted But it was subsequently revoked as the 1st plaintiff violated the conditions of the permission. It is not denied that the 1st plaintiff violated the conditions of the permission. It is not denied that the 1st plaintiff's land has been taken over by the Government for laying the by-pass road. But it is disputed that the extent taken over is 1.50 acres. According to the defendant, the extent of land took possession of by the Government for forming the bypass road was only 1.35 acre as in Pymash No. 111/3. As this land is classified as 'Poramboke' in the village Fair Land Register, it was not notified under Sec.4(1) of the Land Acquisition Act and compensation was not paid. According to the defendant, the plaintiffs have to establish and prove their title before the Court and then only they are entitled to compensation and that too only for an extent of 1.35 acres, and that in any event, the compensation claimed at Rs.11,400 per acre is excessive. The quantum of compensation claimed was disputed. It is denied that the plaintiffs are entitled to a sum of Rs.20,206.50 p. as claimed in the plaint. On the above pleadings, the following issues were framed for trial: 1. Whether the plaintiff has title to the suit property" 2. Whether the suit property is a proamboke land as contended by defendants" 3. What is the area in the suit survey number acquired by Government for the road" 4. What is the amount of compensation to which the plaintiff is entitled to"
(3.) TO what reliefs, are the plaintiffs entitled" Issue No.3 related to the extent of land acquired. According to the plaintiffs, the extent acquired was 1.50 acres in Pymash No.111/3. But the Government contended that the area taken possession of was only 1.35 acres. During the course of the trial in the Court below, learned counsel for the plaintiffs restricted their claim to 1.35 acres. Consequently, the learned Subordinate Judge on Issue No.3 found that the area acquired was 1.35 acres. The learned Subordinate Judge elaborately discussed the title of the plaintiffs to get compensation, but did not give any finding thereon. He went on to decide the matter in a tangent, holding that the plaintiffs ought to have asked for a declaration that they are entitled to the compensation amount, and without such a declaration, the suit for compensation was not maintainable. He consequently dismissed the suit with costs. Aggrieved thereby, the plaintiffs have come in appeal. The points which arise for consideration are: (1) Whether the suit is not maintainable without a prayer for declaration" (2) Whether the plaintiffs are entitled to the suit property" (3) To what amount of compensation, if any, are the plaintiffs entitled" ;