Madras High Court
Palanisamy vs The Government Of Tamil Nadu on 24 August, 2021
S.A.No.376 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.08.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.376 of 2021
and C.M.P.No.7132 of 2021
Palanisamy ... Appellant
Vs.
1. The Government of Tamil Nadu,
Rep by The District Collector,
Namakkal District.
2. The Tahsildhar,
Rasipuram Taluk,
Namakkal District.
3. The Block Development Officer,
Rasipuram Taluk, Namakkal District.
4. The President,
Koonavelampatti Panchayat Pudhur,
Rasipuram Taluk,
Namakkal District ... Respondents
PRAYER: Second Appeal filed under section 100 of the Civil Procedure
Code against the Judgement and Decree dated 28.02.2019 in A.S.No.24 of
2018 on the file of the Subordinate Judge, Rasipuram, confirming the
judgment and decree dated 22.03.2016 in O.S.No.33 of 2014 on the file of
the District Munsif, Rasipuram.
1/8
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S.A.No.376 of 2021
For Appellant : Mr. M.Sivavarthanan
For Respondents : Dr.S.Suriya,
Government Advocate (CS)
JUDGMENT
The plaintiff is the appellant before this Court challenging the
dismissal of a suit for declaration that the notice dated 11.02.2014 issued by
the fourth defendant under Section 131(2) of the Tamil Nadu Panchayat Act,
1994 is invalid and for an injunction restraining the defendants, their
officials or any persons claiming under them from interfering with his
peaceful possession and enjoyment of the suit property.
2. The suit O.S.No.33 of 2014 was filed by the plaintiff on the file
of the District Munsif, Rasipuram. The parties are being referred to in the
same rank as before the District Munsif, Rasipuram.
3. The plaintiff would contend that the suit schedule property was
classified as Grama Natham, which was originally comprised in Survey
No.127/3. This property is now part of Survey No.154/49 after 1994 under
the Natham Land Development Scheme. The plaintiff's vendor had been in
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S.A.No.376 of 2021
possession and enjoyment of the suit property for over 5 decades till the
purchase by the plaintiff on 03.04.1998. The plaintiff's father, after his
purchase, had put up a tiled house and was living in it for over the statutory
period of 12 years. The fourth defendant had assessed the house tax in the
name of the plaintiff thereby admitting his title and possession to the same.
The plaintiff has also obtained electricity service connection in respect of the
house, which bears Door No.4/9A and the tiled house thereon assessed as
Door No.4/21. The plaintiff would submit that the cart track to a breadth of
10 feet runs on the south of the suit property.
4. All of a sudden, the fourth defendant had issued the impugned
notice, calling upon the plaintiff to remove the house The plaintiff would
contend that the fourth defendant is not the owner of the suit property, as the
property is Natham land and it will not vest in the fourth respondent, as per
Section 125 of the Tamil Nadu Panchayat Act, 1994. The defendants 1 to 3
are supporting this act of the fourth defendant. Hence, the plaintiff has been
constrained to approach the Court for the reliefs claimed supra.
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S.A.No.376 of 2021
5. The defendants 1 to 3 have filed a separate written statement
and the sum and substance of the same is that the defendants would admit
that the Old Survey No.127/3 is a Natham land and Survey No.154/49
forms part of the land. However, Survey No.154/49 under the Natham Land
Development Scheme has classified as Road and therefore, the fourth
defendant is well within its right to issue the notice under Section 131 of the
said Act. The fourth defendant would also contend that the plaintiff is in
possession and enjoyment of their property and hence, he is bound to
remove and vacate the same. The impugned notice is sent as per law. Since
the suit lacks a cause of action, the fourth defendant has sought for dismissal
of the suit.
6. The trial Court had framed 6 issues and ultimately, on
examining the evidence on record, had dismissed the suit. The trial Court
had considered the evidence of the plaintiff as P.W.1 and the documentary
evidence A.1 to A.8 filed by the plaintiff. On the side of the defendants, the
fourth defendant had examined himself as D.W.1 and one Prabhakaran as
D.W.2 and marked Exs.B1 to B4. The document of the witness has been
marked as Exhibit C1. The learned Judge dismissed the suit.
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S.A.No.376 of 2021
7. Challenging the said judgment and decree, the plaintiff had
originally filed the appeal on the file of the Vacation Civil Judge, Namakkal,
which was later transferred to the Sub Court, Rasipuram and numbered as
A.S.No.24 of 2018. The appellate Court had also confirmed the judgment
and decree of the trial Court. Challenging the same, the appellant is before
this Court.
8. Heard Mr.M.Sivavarthanan, learned Counsel for the appellant,
who has argued for the admission of the appeal would submit that the
property in question is a Natham land and therefore, the Government had no
authority to issue the impugned notice. The very notice was without
jurisdiction, since the property of the plaintiff was a Grama Natham and not
a public road. It is only if the property is in public road, the provisions of
Section 131 of the Tamilnadu Panchayat Act, 1994 could be invoked. This
was the sum and substance of the argument of the learned counsel for the
plaintiff.
9. Heard the learned counsel and perused the records. The
Government Advocate was present in the virtual Court.
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S.A.No.376 of 2021
10. The case of the respondents is that Survey No.154/49 has been
described as Government Poromboke/Public road. Section 131 of the Tamil
Nadu Panchayat Act, 1994 deals with the obstruction caused on or over the
public road and Section 131(2) of the Act empowers the Village
Administrative Officer to report encroachments and thereafter, the Executive
Authority or the Commissioner concerned is empowered to initiate action
for removal of encroachments. It is this action that has now been initiated
by the fourth respondent, since the plaintiff has encroached into the road
comprised in Survey No.154/49 of Koonavelampatti Village, Rasipuram
Taluk.
11. The contention of the learned counsel for the plaintiff is that the
property in question is a Natham property and that the plaintiff is in
possession and enjoyment of the same; that the same has been wrongly sub
divided and included in Survey No.154/49. These contentions cannot be
entertained for the simple reason that the plaintiff has not filed a suit for
declaring his title to the property, but on the contrary, has only filed a suit
questioning the issue of the notice under Section 131(2) of the Tamil Nadu
Panchayat Act, 1994 by the fourth respondent.
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S.A.No.376 of 2021
12. As stated herein above, the property in question is comprised in
Survey No.154/49 which as per the revenue records has been described as
Government Poromboke/Public road. Once the property is described as a
public road, it is well open to the fourth respondent to issue notice and it is
this exercise that has been undertaken by the fourth respondent and the
same cannot be called into question by the plaintiff without seeking a
declaration of his title to the property. In the absence of such a prayer, the
judgment and the decree of the Courts below, cannot be found fault with.
The appellant has not made any question of law warranting the interference
of this Court. Accordingly, the Second Appeal is dismissed. However,
there shall be no order as to costs. Consequently, connected civil
miscellaneous petition is closed.
24.08.2021
Index : Yes/No
Speaking order/non-speaking order
srn
To
1.The Subordinate Judge,
Rasipuram
2.The District Munsif,
Rasipuram.
http://www.judis.nic.in
S.A.No.376 of 2021
P.T.ASHA, J.,
srn
S.A.No.376 of 2021
and
C.M.P.No.7132 of 2021
24.08.2021
http://www.judis.nic.in
