n.s._kuppuswamy_odayar_and_anr._vs_the_panchayat_narthangudi,_..._on_30_june,_1970.pdf

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Madras High Court

N.S. Kuppuswamy Odayar And Anr. vs The Panchayat Narthangudi, ... on 30 June, 1970

Equivalent citations: (1971) 1 MLJ 190

Author: M Ismail

JUDGMENT 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.

3. 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 raisedin this suit, I do not propose to express any final-opinion on any of the points in controversy.

4. 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


Indian Kanoon - http://indiankanoon.org/doc/228125/ 1


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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.

5. Equally, the Courts below have failed to bear in mind the distinction between the possession and

evidence as to exercise of rights of ownership over the property over a certain period of time, when

they approached and dealt with the question of adverse possession in this particular case.

Admittedly there was evidence to show that the appellants and their predecessors-in-interest hadbeen dealing with the f ishery rights in the tank in question from 1873 onwards. However, the

learned District Munsif pointed out that there was no lease deed from 1896 to 1927, in 1934 and

1935 and from 1938 to 1945 and from 1945 to 1953. On this basis, the learned District Munsif came

to the conclusion that there were gaps in the possession of the appellants and that the burden was

on the appellants to establish their continuous possession for the purpose of having their title to

fishery rights in the tank by prescription, accepted by the Courts. With reference to the statement of

the learned District Munsif that there was no evidence of the fishery rights having been leased out by

the appellants from 1945 to 1953, it has to be pointed out that D.W. 1 who was the karnam of the

village, himself in his evidence admitted that from 1949 to 1961 it was the appellants who were

enjoying the fishery rights. This evidence is totally opposed to the conclusion recorded by the

learned District Munsif that there is no evidence of the lease from 1945 to 1953, which takes in the

period from 1949 to 1953. Further, the learned District Munsif assumed that the absence of evidence

in the form of lease deeds is the same thing as abandonment or discontinuance of possession started

by the appellants. It is only on the assumption that the absence of evidence regarding the lease of

fishery rights is tantamount and equivalent to abandonment of possession on the part of the

appellants, the learned District Munsif has discussed the law in this behalf and pointed out that such

discontinuance will enure to the benefit of the real owner of the property who would be deemed to

have constructive possession of the property. In this the learned District Munsif assumed two things




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(1) that the Government was the owner of the tank and (2) that the appellants had discontinued or

abandoned possession of the tank or the fishery rights. Neither of the two assumptions is warranted

by the facts in the case, or the evidence available on record. The law in this behalf has been clearly

laid down by the Privy Council in Secretary of State for India in Council v. Debendra Lal Khan

(1934) L.R. 61 I.A. 78 at 82 : 66 M.L.J. 134, Lord Macmillan pointed out there:

The classical requirement is that the possession should be nec vi. nee clam nee precario. Mr. Dunne

for the Crown appeared to desiderate that the adverse possession should be shown to have been

brought to the knowledge of the crown, but in their Lordships' opinion there is no authority for this

requirement. It is sufficient that the possession be overt and without any attempt at concealment, so

that the person against whom time is running ought, if he exercised due vigilance, to be awared of

what is happening. If the rights of the Crown have been openly usurped it cannot be heard to plead

that the fact was not brought to is notice. The Limitation Act is indulgent to the Crown in one

respect only, namely in requiring a much longer period of adverse possession than in the case of

subject; otherwise there is no discrimination in the statute between the Crown and the subject as

regards the requisites of adverse possession. It may be added that it is not necessary in order to

establish adverse possession that the proof of acts of possession should cover every moment of the

requisite period. Though the possession "be not proven to have continued every quarter, month or

year, yet ordinary possession will be sufficient ad victorium causae albeit it be proponed in the terms

of a continual possession, quiaprobatis extremis praeesumuntur media if the distance be not great."

(Stair's Institutions of the Law of Scotland, IV, 40, 20). 61 I.A.

The fact of possession may be continuous though the several acts of possession are at considerable

intervals. How many acts will infer the fact is a question of proof and presumption independent of

prescription : Miller on Prescription, page 36.

The nature of the requisite possession must necessarily vary with the nature of the subject

possessed. The possession must be the kind of possession of which the particular subject is

susceptible. The Crown in the case of a fishery belonging to it exercise its rights by granting leases or

licenses to fish; it does not itself fish. Consequently the granting by a person other than the Crown of

leases or licenses to fish in the case of a fishery which prima facie belongs to the Crown is evidence

of the usurpation by that person of the distinctive rights of the Crown and is thus most significant

evidence of adverse possession.

These observations of the Privy Council are apposite to this case. This also involves the case of

fishery rights and the Courts below have proceeded to reject the inference that has necessarily to be

drawn from the various lease deeds commencing from 1873, holding that the Government was not a

party to any of these documents. The observation of the Privy Council is that once a trespasser

exercises the rights of possession and ownership openly, it is enough to constitute adverse

possession and that there is no obligation on his part to bring to the notice of the real owner that he

was exercising such rights of ownership adverse to the real owner. Here again, the maxim referred

to by Lord Macmillan, "when the extremes have been proved, those things which lie between are

presumed" will apply. Further, as heldl by the Supreme Court in Nathoo Lal v. Durga Prasad , the

law presumes in favour of continuity of possession. In this case, if there had been a leasing out of the




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fishery rights by the appellants and their predecessors-in-interest from 1873 to 1896 and

subsequently for several years upto 1961 and there is absolutely no evidence to show that during the

interval, or any part of the interval, anybody else including the Government, exercised any right, the

above maxim will automatically apply and the necessary inference and presumption will follow with

reference to the materials available in this case.

6. One other curious thing which the Courts below assumed in this case is that simply because the

first appellant and his family were the hereditary village munsifs of the village, their possession and

the exercise of fishery rights may be attributed to their character as village munsifs and therefore the

character of their possession in this particular case was equivocal. To say the least, this is wholly

unwarranted. In no case the village munsif can be said to have any right to deal with the fishery

rights in a tank, or the tank in a poram-boke in his own right, except in his capacity as village

munsjf, if at all he has got any such right. It is not the case of any party and there is no material to

support the case, that the right exercised by the appellants and their predecessors-in-interest was in

the capacity of there being village munsifs of the village.

7. Taking all these factors into account, I am of the opinion that the Courts below have not applied

their mind to the point to be decided arising out of the claim put forward by the appellants and

therefore the judgments and decrees of both the lower Courts are set aside and the second appeal is

allowed. The matter is remanded to the trial Court for fresh disposal.

8. The appellants herein have filed C.M.P. No. 6272 of 1968 for reception of certain documents as

additional evidence in this case. Since I am remanding the entire matter to the trial Court, this civil

miscellaneous petition also will be transferred to the trial Court for disposal. The second appeal is

allowed in the above terms. The appellants will be entitled to refund of the Court fee paid both on

the memorandum of appeal before the first appellate Court as well as on tht memorandum of secondappeal before this Court. There will be no order as to costs. No leave.



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