(Prayer: Second Appeal has been filed under Section 100 of Civil Procedure Code against the Judgment and decree of the lower Appellate Court, dated 26.04.2005 made in A.S.No.110 of 2003 on the file of the II Additional Sub Court, Madurai reversing the judgment and decree of the trial Court, dated 20.02.2003 made in O.S.No.415 of 1999 on the file of the District Munsif Court, Thirumangalam.)

1. The above second appeal arises against the judgment and decree, dated 26.04.2005 made in A.S.No.110 of 2003, on the file of the II Additional Sub-Court, Madurai reversing the judgment and decree, dated 20.02.2003 made in O.S.No.415 of 1999, on the file of the District Munsif Court, Thirumangalam.

2. The plaintiff is the appellant herein. The plaintiffs society filed the suit arising out of which is the present second appeal thereby questioning the validity and enforceability of the notice issued by the second defendant/Tahsildar in his R.O.C.No.11011/99-A-2, dated 20.12.1999 in and under which, the plaintiff was demanded to pay Rs.16,394/- per cent towards lease in respect of the suit property. The plaintiff has resisted the demand by claiming himself to be the owner of this property on the strength of registered sale deed, dated 06.02.1998 and by denying the existence of any tenancy relationship between the plaintiff and the Government, whereas, the ownership of the plaintiff is seriously denied by the contesting defendants/Government Authorities mainly on the ground that the land in question is classified as Gramanatham and is vested with the Government and individuals have no right to effect any transfer or to claim any individual right of ownership over the same. The trial Court on the basis of the available evidence, accepted the claim made by the plaintiff by negativing the right claimed by the Government and held that the impugned notice is not valid and is not binding upon the plaintiff and decreed the suit accordingly. Aggrieved against the same, the defendants 1 and 2 preferred an appeal and the lower appellate Court though admitted the nature of the property to be Gramanatham, negatived the plaintiffs claim for ownership and vested the ownership of the same upon the Government. Hence, this second appeal by the plaintiff before this Court.

3. The substantial questions of law framed for consideration in the second appeal are as follows:-

1. Whether Gramanatham will vest with Government so as to justify the dismissal of the suit claim

2. What is the legal right of an occupier of Gramanatham Whether will it not be in favour of the appellant/plaintiff as observed in 2004 CTC 270.

4. The simple issue arising for consideration of this Court in this second appeal is as to whether the suit property, being classified as Gramanatham, is vested with the Government or not and what is the right of the occupier over the suit property. The issue is directly answered by our High Court in the judgment reported in 1998 (3) LW 603 in A.K.Thillaivanamand another Vs. The District collector, Chengai Anna District at kanceepuram and others and the judgment of the Division Bench of our High Court reported in 2004 (3) CTC 270 [LQ/MadHC/2004/744] in The Executive Officer, Kadthur Town Panchayat Vs. V.Swaminathan and others. The learned single Judge of our High Court in A.K.Thillaivanamscase cited supra dealt with the Writ Petition for a Mandamus, forbearing the Government officers, men, subordinates and agents from in any manner proceeding against the petitioners in respect of the property comprised in survey number in question. The property in question was admittedly Gramanatham and the cause of action for filing the writ petition was the attempt made on the part of the petitioners to convert the agricultural lands into plots and to sell the same and the same way objected to by the Thasildar resulting in police complaint and criminal case also was registered for the offence under Section 420 I.P.C., on the ground that the petitioner sold the portion of the Government property. The relief was sought for before the High Court on the ground that the land being Gramanatham does not vest with the Government and the Government officials have no right to proceed against the writ petitioners in respect of the land classified as Gramanatham. Our High Court in para 23 onwards discussed the issue as to whether the Government has any right over the land classified as Gramanatham. The learned Single Judge, relied upon the judgment reported in 1959 (2) MLJ 513 [LQ/MadHC/1959/43] in S.RengarajaIyengar and another Vs. Achikannu Ammal and another, and referred to the definition of Gramanatham in Law Lexican and then arrived at a conclusion that the land classified as Gramanatham has been defined in the Law Lexican as ground set apart on which the house of a village may be built and the same is not a communal property reserved for the use of the community. The land classified as Gramanatham does not vest with the Government and the individual occupier of Gramanatham could very well resist ejectment or any other act and the same is excluded from the provisions of the Land Encroachment Act and no action could be taken by invoking the provisions of the same. Our High Court having observed so granted the relief as sought for by the writ petitioners.

5. The same issue arose for consideration before Division Bench of this Court in the case reported in (1)2004 (3) CTC 270 [LQ/MadHC/2004/744] in The Executive Office, Dharmapuri District vs. V.Swaminathan and others and the Division Bench has relied on the judgements in reported in (2) 1998 (3) Law Weekly 603 in A.K.Thillaivanamand another Vs. The District collector, Chengai Anna District at Kanceepuram and others and also earlier cases in (3) ChinnathambiGoundan Vs. Venkatasubramania Ayyar reported in 1936 (49) Law Weekly 326; (4)Palani Ammal Vs. L.Sethurama Aiyangar reported in 1949 (1) MLJ 290 [LQ/MadHC/1949/11] ; (5)Papala Narayanaswamy Naidu Vs. The Secretary of State for India reported in24 MLJ 36 [LQ/MadHC/1912/87] ; (6)Venkatarama Sivan Vs. M.Sambasiva Aiyar reported in9 L.W. 381; (7)S.Rangaraja Iyengar Vs. Achi Kannu Ammal reported in1959 (2) MLJ 513 [LQ/MadHC/1959/43] : 1959 (72) L.W 767; (8)C.V.Subbaya Vs. P.Anjayya reported inAIR 1972 SC 1421 [LQ/SC/1972/52] ; (9)N.S.Kuppuswamy Odayar Vs. Narthangudi Panchayat reported in1971 MLJ Reports 190 and (10)Krishnamurthy Gounder Vs. Government of Tamil Nadu reported in2002 (3) CTC 221 [LQ/MadHC/2002/597] and by defining as to what is poramboke, pagodas and Gramanatham and by referring to the definition of Gramanatham in Law Lexicon and Tamil Lexicon published under the authority of University of Madras approved the observation of the learned Single Judge about the nature of the property classified as Gramanatham and the right of the Government or Town Panchayat in respect of the same.

6. In the earliest Judgment reported in 1936 (49) L.W 326 in ChinnathambiGoundans case cited supra, the learned Single Judge took note of the recognised practice of the then Madras Presidency regarding the exercise of control of unoccupied village site in the proprietor whoever he may be. The learned Single Judge has referred to about the nature of the control exercised by Zamindar in Zamindari areas and shrotriemdar village not falling under the Estates Land Act, by shrotriemdar. While doing so, it is observed that the exercise of the power of the Government in respect of land covered under the Madras Estate Land Act is very limited to prevent the diversion of village site poramboke for different purpose other than the purpose for which it is reserved. It is further observed therein that the village site did not actually vest with the Government. The same decision was approved in PalaniAmmals case cited supra.

7. In the other Judgment PapalaNarayanaswamy Naidu Vs. The Secretary of State for India reported in 24 MLJ 36 [LQ/MadHC/1912/87] , the Division Bench of this Court is of the view that unassessed waste and all kinds of communal property and road porambokes and river porambokes, unassessed house sites and backyards, burning grounds and cattle-stands vest with the Government.

8. The Supreme Court has in the Judgment in C.V.SubbayaVs. P.Anjayya reported in AIR 1972 SC 1421 [LQ/SC/1972/52] , held that the communal lands, porambokes, other ryotwari lands, waste lands, forests, mines and minerals, quarries, rivers and streams tanks and irrigation works etc., other than the land classified as Gramanatham vest with the Government.

9. In Thillaivanamscase and Krishnamurthy Gounders case cited supra, it is categorically observed that the house sites classified as Gramanatham cannot be construed as vesting with the Government.

10. The Division Bench judgment reported in 2004 (3) CTC 270 [LQ/MadHC/2004/744] in The Executive Officers case cited supra decided the issue involved in the writ petition, as to whether the Government can exercise any right against the writ petitioners in the occupation of Gramanatham land to evict them from the land in question and decided the same in favour of the writ petitioners, on the ground that the Gramanatham land never vested with the Government or Town Panchayat and the impugned order in cancelling the pattas in favour of the ancestors on the basis of the resolution passed by the Panchayat with a view to evict them summarily is not sustainable.

11. As rightly argued by the learned Counsel for the appellant/plaintiff, the ratio laid down in the Judgments above referred to is forcibly applicable to the facts herein. Herein also the classification of the land is undisputedly Gramanatham. The plaintiff Sangam has been in possession and enjoyment of the land in question on the strength of the settlement deed, dated 19.08.1987. The plaintiff has also produced the prior title deeds which go to show that the property in question had been under the possession and enjoyment of individuals as absolute owners from 1951 onwards. Whereas, the Government authorities issued the impugned notice demanding lease amount from the plaintiff by treating the plaintiffs occupation as that of lessee with the permission of the Government and the validity, binding nature and enforceability of the same is rightly questioned by the plaintiff.

12. The trial Court correctly appreciated the plaintiffs claim and decided the suit reliefs in favour of the plaintiff, whereas, the lower Appellate Court has without duly considering the classification of the land, legal right of the occupier of the same and the absence of control of the Government over the same reversed the findings of the trial Court and upheld the validity of the impugned notice and allowed the Government Authorities to proceed with the demand. Such finding of the lower Appellate Court is totally contrary to the ratio laid down by the Honourable Supreme Court and our High Court and is hence legally unsustainable warranting interference by restoring the trial Court decree for permanent injunction against the enforceability of the impugned notice. The substantial questions of law are accordingly answered in favour of the plaintiff.

13. In the result, the second appeal is allowed by setting aside the judgment and decree dated 26.04.2005 made in A.S.No.110 of 2003, on the file of the II Additional Sub-Court, Madurai. The judgment and decree dated 20.02.2003 made in O.S.No.415 of 1999, on the file of the District Munsif Court, Tirumangalam stands confirmed. No costs. Consequently, connected Civil Miscellaneous Petition is closed.