This second appeal is focussed by the original plaintiff, animadverting upon the judgement and decree dated 08.08.2006 passed in A.S.No.32 of 2006 by the Subordinate Judge, Mannargudi, confirming the judgment of the trial Court, namely, District Munsif Court, Thiruthuraipoondi, in O.S.No.18 of 2004. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court.
2. Pithily and precisely, tersely and briefly, avoiding discursive delineation of facts in view of the case of both sides having been set out in detail in the judgments of both the Courts below, I would like to set out the germane facts thus:
The second appellant/plaintiff herein filed the suit seeking the relief of declaration against the 1st plaintiff declaring him of having the fish farming rights of the suit property and also for permanent injunction retraining the defendants from any manner interfering with such rights in the suit property. The defendants resisted the suit by taking various pleas.
3. During trial, on the side of the plaintiffs, Veeraiyan was examined as P.W.1 and Thirugnanam was examined as P.W.2 and Exs.A1 to A9 were marked. On the side of the defendants D.W.1, D.W.2 and D.W.3 were examined and Ex.D1 was marked.
4. Ultimately the trial Court dismissed the suit as against which an appeal was filed as Appeal No.21 of 2002 before the District Court, Nagapattinam, which Court remanded the matter. Thereafter the suit was numbered as O.s.No.18 of 2004 before the District Munsif, Thiruthuraipoondi, which Court dismissed it, as against which an appeal in A.S.No.32 of 2006 was filed by the unsuccessful plaintiff, the appellant herein and it was also dismissed. Being disconcerted and aggrieved by the judgments and decrees of both the Courts below, this Second Appeal has been filed on various grounds as set out in the memorandum of appeal and also suggesting the following proposed substantial questions of law:
"1. Whether the fishery rights is an immovable property and hence warrants Stamp duty and Registration of the document and whether the Courts below are justified in holding that Ex.A7 executed by the Villagers cannot be accepted?
2. Whether the 1st plaintiff temple has established that it is vested with the Fishery rights of the suit tank ever since 1983, as held by the learned District Judge in A.S.No.21 of 2002, whether the onus shifts upon the 1st defendant Panchayat to prove that the said Fishery rights of the suit tank is vested with them?
3. Whether the claim of the 1st plaintiff that as per Sec.132 of the Tamil Nadu Panchayat Act, unless the Government specifically entrusts the Fishery Rights of a tank to a Village Panchayat, the concerned Panchayat cannot claim the Fishery Right of the tank, is justified?
4. Whether there must be a specific declaration from the Government to the village Pachayat regarding the vesting of the Fishery Rights in common irrigation tanks?
5. Whether the Judgment reproted in 2002(5) CTC page 503 applies to the facts of the present case also?
6.Whether adverse inference can be drawn against the defendant Panchayat for not having produced any documentary evidence to show that they have been auctioning the Fishery Rights of the suit tank, despite the evidence of D.W.2 that the relevant registers containing the details such as the names of the tanks which are under the control of the Village Panchayat, and for which tanks the Fishery Rights have been given, are available with the 1st defendant Panchayat?
5. The learned counsel for first defendant would develop his argument to the effect that even though the appellant in the Second Appeal would contend that the Villagers of that locality gave the right to administer the pond, both the Courts below negatived it by clearly holding that the said pond is part of poramboke and it belongs to Government and it is under the control of Panchayat.
6. Despite printing the names concerned, no one appeared for the appellant as well as for D3 to D4.
7. A bare perusal of and poring over the relevant records including the typed set of papers and the certified copies of judgments of both the Courts below demonstrate and display the fact that earlier the suit O.S.No.226 of 2000 was filed by the first plaintiff and R4 Gunasekaran, seeking the relief of declaration of the 1st plaintiff's fish farming rights in the suit property and also for permanent injunction retraining the defendants from any manner interfering with the such rights in the suit property.
8. At this juncture my mind is redolent and reminiscent of the following provision of law:-
"Sec.14-A Ryotwari patta not to be granted in respect of private tank or oorani -(1) Notwithstanding anything contained in this Act, no ryotwari patta shall be granted in respect of any private tank or oorani".
Section 5 of Tamil Nadu Act No.49 of 1974 is reproduced hereunder:-
"Act to override other laws, contracts, etc. - The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force, or any custom, usage or contract or decree or order of a court or other authority".
The cited provision supra, would indicate that it contains Henry VIII clause which would nullify any other contrary provision in any law authenticated to Section 14-A extracted supra. As such the appellant herein is having no locus standi to file the suit and no villagers are having exclusive ownership right over the suit pond. The First Appellate Court after analysing Exs.A1 to A9 clearly held that I plaintiff had no right as claimed by it warranting no interference by this Court.
8. It is ex-facie and prima-facie clear that ponds like the suit property absolutely got vested with the Government and in turn the Panchayat is vested with the right to administer the same and in such cases, I am at a loss to understand as to how the plaintiff was justified in litigating ignoring the said provision of law, which can be taken note of at any stage of the litigation and apply the same to the admitted set of facts. Absolutely there is no iota or shred molecular or minimal extent of evidence to spell out that the temple got such right by virtue of any grant or some such deeds. But only during 1983 as per the I plaintiff, the Villagers had handed over such right, which pleading is totally untenable as correctly held by both the Courts below, who also highlighted that the Villagers had no right to confer such right of administration of the pond in favour of the temple. As such the proposed 1st and 2nd substantial questions of law does not arise at all.
9. The 3rd proposed substantial question of law is with reference to Section 132 of the Tamil Nadu Panchayat Union, questioning the right of the Panchayat. Once it is found that the subject matter of the suit property belongs to the Government, then it is between the Government and the Panchayat and it is not for the temple to question it. As such the said substantial question of law also does not arise at all. The findings of both the Courts below, also as correctly pointed out by the learned counsel for the 1st defendant are that the District Collector entrusted the right of administration with first defendant.
10. In view of the above, the 5th and 6th substantial questions of law also does not arise at all.
11. Accordingly, there is no merit in the second appeal and hence the same is dismissed. No costs.
rg To
1. Subordinate Judge at Mannargudi
2. District Munsif Court, Thiruthuraipoondi