Madras High Court
C.Rasambal vs The Government Of Tamil Nadu on 15 December, 2021
S.A.No.664 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
S.A.No.664 of 2016
and C.M.P.No.12441 of 2016
M.Perumal Udayar (Since deceased)
1.C.Rasambal
2.C.Natarajan
3.E.Vimala
4.R.Umarani ... Appellants
Vs.
1.The Government of Tamil Nadu
Rep by the District Collector of Namakkal
Collectorate Building, Tiruchengode Road
Nallipalayam Post, Namakkal Taluk and District
2.The Assistant Director of Land Survey
and Records, Namakkal
Collectorate Bilding, Tiruchengode Road
Nallipalayam Poist,Namakkal Taluk
Namakkal District
3.The Tahsildar of Namakkal
Namakkal Taluk, Namakkal District
1/6
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S.A.No.664 of 2016
4.The Revenue Inspector of Sendamangalam
Sendamangalam, Namakkal Taluk,
Namakkal Taluk, Namakkal District
5.The Village Administrative Officer of Periyakulam
Periyakulam Post, Sendamangalam via
Namakkal Taluk, Namakkal District ... Respondents
PRAYER: The Second Appeal has been filed under Section 100 of the Civil
Procedure Code to set aside the decree and judgment dated 10.02.2016 passed
in A.S.No.11 of 2012 by the Subordinate Judge, Namakkal confirming the
decree and judgment dated 03.01.2012 passed in O.S.No.454 of 2006 by the
Principal District Munsif, Namakkal.
For Appellants : Mr.D.Shivakumaran
For Respondent : Mr.P.Harish, Govt.Advocate
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JUDGMENT
Aggrieved over the concurrent findings of the Courts below, the
plaintiffs have preferred the above Second Appeal.
2. The plaintiffs filed a suit for declaration declaring that the
respondent officials are not entitled to lay a cart track enrouting the irrigation
channel in S.No.131/1 Periyakulam Village, Namakkal Taluk and for a
consequential injunction from laying the cart track. Before the Trial Court, the
official respondents filed a written statement that the suit property is a
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S.A.No.664 of 2016
poromboke land belonging to the Government. The plaintiffs have encroached
the canal on both sides. The encroachments hinders the flow of water
particularly during the winter season through the channel. Therefore, they have
decided to remove the encroachment and widen the channel and they have no
intention to lay the cart track through the channel. Further, for laying the cart
track, there shall be a proposal and financial sanction. Since there is no proposal
to lay a cart track in S.No.131/1 there is no cause of action for the plaintiffs to
maintain the suit.
3. The Trial Court framed appropriate issues. The Advocate
Commissioner was appointed to find out the physical features, wherein he has
reported that there were encroachments on the water channel. The Village
Administrative Officer who deposed as D.W.1 had also categorically deposed
that the respondent have no proposal to lay a cart track and only they are going
to remove the encroachment on the channel on both the sides. Considering the
materials placed before it, the Trial court dismissed the suit holding that the
plaintiffs are not entitled to the relief sought for. Aggrieved over the same,
plaintiffs filed an appeal, the Appellate Court confirmed the decree and
judgment of the Trial Court and dismissed the same. Aggrieved over the same,
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S.A.No.664 of 2016
the present Second Appeal has been preferred.
4. Learned counsel for the plaintiffs would contend that the Village
Administrative Officer had measured the property without notice to them and
stated that they are going to lay a cart track over the channel, which has given
cause of action for the plaintiffs to prefer the suit. In so far as the channel is
used for irrigating their lands, laying a cart track destroying the channel will
definitely give rise to a cause of action and they have the legal right to file a suit.
The Courts have failed to consider the issue in proper perspective and held that
the suit land belongs to the Government and they can deal with it in the manner
known to them. It is also submitted by the learned counsel for the plaintiffs that
as long as the channel is maintained and no cart track is laid over it there is no
grievance. But at the same time, the learned Government Advocate Mr.P.Harish
contended that the evidence of D.W.1 as well as the report filed by the Advocate
Commissioner clearly shows that on either side of the channel there were
encroachments which hinders the free flow of water during the winter season.
The FMB and 'A' Register produced before this Court clearly shows that land in
S.No. 131/1 is classified as “Vaikal”. Now that it is mutually agreed by both the
parties that the encroachment over the channel can be removed by taking
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S.A.No.664 of 2016
appropriate measurements putting the appellants on notice. Further,
Government has filed a status report affirming that they are not going to lay a
cart track over the channel. The status report is taken on file. In view of the
affirmation made in the status report that no such cart track is going to be laid
on the channel and that the encroachments will be removed after putting up the
appellants on notice, I do not find any reason to interfere with the concurrent
findings of the Courts below.
The Second Appeal is dismissed with the following observations:
1. The respondent shall not lay a cart track in the irrigation channel.
2. The appellants/plaintiffs shall not object the removal of the encroachment
and widening of the channel as per the measurements to be taken by the
official.
There shall be no order as to costs. Consequently, connected
miscellaneous petition is closed.
15.12.2021
https://www.mhc.tn.gov.in/judis
S.A.No.664 of 2016
M. GOVINDARAJ, J.
kpr
To
1.The Subordinate Judge, Namakkal
2.The Principal District Munsif, Namakkal.
S.A.No.664 of 2016
and C.M.P.No.12441 of 2016
15.12.2021
https://www.mhc.tn.gov.in/judis
