Madras High Court
Kulasekarapattinam Panchayat vs Narayanavadivu on 14 July, 2021
S.A.(MD).No.592 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 14.07.2021
CORAM :
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
Second Appeal(MD)No.592 of 2015
and
C.M.P.(MD)No.1 of 2015
Kulasekarapattinam Panchayat,
Rep. by its President,
Panchayat Office,
Kulasekarapattinam – 628 206,
Tiruchendur Taluk,
Tuticorin District. : Appellant/Appellant/2nd Defendant
-Vs-
1.Narayanavadivu
2.Jyothi Vinayagam
3.Annamugam
4.Shanmuganathan
5.Balasaraswathi
6.Nithiyananda Eswaran : Respondents 1 to 6/Respondents 1 to 6/
Plaintiffs
7.Madasamy
8.Commissioner,
Udangudi Panchayat Union,
Udangudi – 628 101.
9.Block Development Officer,
Collectorate,
Tuticorin – 628 101.
10.Government of Tamil Nadu,
Rep. by its District Collector,
Tuticorin District,
Tuticorin – 628 001. : Respondents 7-10/Respondents 7-10/
Defendants 1 and 3 to 5
1/27
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Prayer: Second Appeal filed under Section 100 of the Code of the
Civil Procedure, praying to set aside the decree and the judgment
dated 29.11.2013 rendered in A.S.No.29 of 2010 on the file of the
Subordinate Judge, Tuticorin, confirming the decree and the judgment
dated 12.08.2009 rendered in O.S.No.62 of 2005 on the file of the
Additional District Munsif of Tiruchendur, by allowing this Second
Appeal.
For Appellants : Mr.S.Subbiah
Senior Counsel
for Mr.G.Aravindan
For Respondents 1 to 6 : Mr.M.P.Senthil
For Respondent 7 : No appearance
For Respondents 8 to 10 : Mr.R.Sethuraman
Special Government Pleader
***
JUDGMENT
The second defendant in the suit in O.S.No.62 of 2005 on the file
of the Additional District Munsif Court, Tiruchendur, is the appellant
in the above Second Appeal.
2.The respondents 1 to 6 in this appeal filed the suit in O.S.No.
62 of 2005 for declaration of their title to the suit property and for
consequential relief of mandatory injunction to remove a T.V. room
constructed by the second defendant and for removal of a well that
had been dug by the third defendant in the suit.
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3.The appellant/second defendant is the local body, namely,
Panchayat of Kulasekarapattinam. The third defendant is the
Commissioner of Udangudi Panchayat Union. The fourth defendant is
the Block Development Officer and the fifth defendant is the State
represented by the District Collector.
4.The suit property is described as an extent of 5 7/8 cents (72 ft
east-west x 35 ft. north-south) out of a larger extent in Natham Survey
No.239 in Kulasekarapattinam Village within the Udangudi Sub
Registration District. The property is described as land and thatched
house bearing Door No.3A within Kulasekarapattinam Town
Panchayat.
5.The plaintiffs stated in the plaint that the suit property was
purchased by the husband of first plaintiff and father of plaintiffs 2 to
6 by way of registered sale deed dated 22.06.1981 from one Pattani,
son of Kovilpillai for a valid consideration and that the property was
fenced on all sides at the time when the property was purchased. It is
also stated that the thatched house bearing Door No.3A was there in
the suit property and that the first plaintiff was paying kist and tax for
the building. Stating that their father Thiru.Yacob died on 27.12.1994
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leaving behind the plaintiffs as his legal representatives, the plaintiffs
claimed absolute title to the suit property. It is also admitted in the
plaint that the thatched house was destroyed and that the property
was kept as a vacant land with boundary stones on all sides. They
contended that the Udai trees grown in the suit property were
periodically cut and removed by the plaintiffs.
6.It is the specific case of the plaintiffs that the defendants have
no semblance of right over the property and that the second
defendant at the instance of first defendant put up a T.V. room in a
small portion of suit property without the permission of the plaintiffs
in October, 2002. It is also contended by the plaintiffs that the third
defendant, during May, 2003 dug a well without the permission of the
plaintiffs. Stating that the construction of T.V. room and digging of
well by defendants 2 and 3 respectively are illegal, the plaintiffs
contended that the illegal construction by encroaching into the
property of plaintiffs should be removed. It was also alleged that the
defendants 2 and 3 are trying to remove the trees standing in the
other part of the property and that therefore, the defendants should
be restrained from interfering with the possession and enjoyment of
the suit property by the plaintiffs. It was on this background, the suit
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came to be filed for declaration of title and consequential permanent
injunction restraining the defendants from interfering with the
peaceful possession and enjoyment of the suit property by putting up
construction or by other manner. As stated earlier, the relief of
mandatory injunction to remove the T.V. room and the well were the
consequential reliefs.
7.The suit was contested by the second defendant alone. It
appears that other defendants jointly endorsed the written statement
filed by the second defendant. In the written statement, it was
contended by the second defendant that the suit property measuring
an extent of 0.01.69 ares in Survey No.256/40 belong to an
organisation by name Mutharamman F.R.C. Kovil Dussehra Kuzhu. It
is further stated that the second defendant with the permission of the
said Dussehra Kuzhu constructed a T.V. room under Jawahar
Employment Scheme. It is also stated that the well was also dug by
the third defendant. Since the second defendant believed that the suit
property belongs to a third party, it is also contended by the second
defendant that the said third party is also a necessary party to the
suit. Since the second defendant took a stand that the suit property
lies in a different survey field, it was further contended that the suit
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property, as per the description of the plaint, cannot be identified on
ground. The case of the plaintiffs relying upon the sale deed dated
22.06.1981 and the plaintiffs' contention about their enjoyment were
specifically denied by the second defendant in the written statement.
Stating that the plaintiffs are not in enjoyment of the suit property, it
is contended by the second defendant that the suit for declaration of
title and for mandatory injunction cannot be granted in favour of the
plaintiffs. The second plaintiff examined himself as P.W.1. P.W.2 was
examined to support the case of the plaintiffs regarding their
enjoyment and existence of super structure. Plaintiffs filed Ex.A1 –
the original sale deed dated 22.06.1981. The plaintiffs also marked
Ex.A2 and A3 which are the tax receipts for the super structure. The
appellant or other defendants did not file any document. However,
the first defendant was examined on behalf of the defendants. It is
very important to note that the only witness examined on behalf of the
defendants has given evidence quite contrary to the plea of second
defendant, which was adopted by other defendants. During cross
examination, it was admitted by first defendant that there is no
document to show that the suit property belong to Madasamypuram
Mutharamman F.R.C. Kovil Dussehra Kuzhu and that they have no
record to show either patta or kist for the suit property. The witness
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almost pleaded ignorance and state that he did not know on what
basis or under what right the second defendant constructed the T.V.
room and dug the well. It is to be remembered that the plaintiffs have
specifically come forward with the plea that the second defendant has
encroached into the property at the instigation of the first defendant.
After framing necessary issues, the trial Court on the basis of the
documents and the evidence of P.Ws.1 and 2, came to the conclusion
that the plaintiff has proved their right and title over the suit
property. Therefore, the trial Court granted a decree declaring the
title of plaintiffs. The trial Court also examined the issue whether suit
for mandatory injunction can be granted without the relief of recovery
of possession. After distinguishing a few two judgments of this Court
cited by the appellant, the trial Court held that the encroachment by
putting up a small construction by the second defendant cannot be
taken into consideration for denying the relief to the plaintiffs, as the
plaintiffs are in enjoyment of the property. The trial Court also
granted relief of permanent injunction after holding that the plaintiffs
have established their possession and enjoyment of the property in
respect of the remaining portion. Though the defendants prayed that
the T.V. room was constructed by the second respondent long prior to
the filing of the civil suit, the trial Court also held that the
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construction of T.V. room and digging of well was just prior to the suit
and that the plaintiffs are entitled to mandatory injunction for removal
of the small T.V. room and the well.
8.Aggrieved by the judgment and decree of the trial Court, the
second defendant alone preferred an appeal in A.S.No.29 of 2010
before the Sub Court, Tuticorin. The lower appellate Court also fell in
line with the trial Court and dismissed the appeal after independently
holding that the plaintiffs have proved their title and enjoyment of the
suit property. Aggrieved by the concurrent findings of the Courts
below, the above Second Appeal is preferred by the second defendant.
9.Before this Court, the appellant has raised the following
substantial question of law:-
(a) When the title of the plaintiffs came to be disputed
by the defendants and when the defendants set up a third
party as the real owner, whether the suit is bad for non-
joinder of necessary parties under Order I, Rule 9 of Code of
Civil Procedure ?
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(b) When the contesting defendants set up a title over
the suit property, in favour of a third party, whether the
contesting defendants are bound to establish the title of the
third party not impleaded as a party to the suit and for such
failure to prove the title of the third party, whether a decree
for declaration could be passed as against the defendants so
made as parties to the suit ?
(c) When the plaintiffs themselves had admitted that the
defendants had put up the constructions in portions of the
suit property, whether a suit for a mere declaration and
permanent injunction without a decree for the relief of
possession is maintainable under Section 34 of the Specific
Relief Act ?
(d) When the plaintiffs acquiesced the constructions put
up by the defendants over their property and when they filed
the suit for mandatory injunction to remove the construction,
nearly after 2 and ½ years, whether the plaintiffs are entitled
to the relief of mandatory injunction ?
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(e) When the constructions were put up by the public
authority for the benefit of the general public and the
villagers, in particular, whether a decree of mandatory
injunction after 2 and ½ years, could be granted under
Section 39 of the Specific Relief Act, so as to affect injuriously
the public interest ?
10.While considering the questions of law raised by the
appellant, this Court has to narrate the facts as borne out from
records. The suit was filed for declaration of title and for
consequential mandatory injunction to remove the super structure
and the well that were constructed and dug by the appellant in a
portion of the suit property. The plaintiffs' case is very simple that the
father of the respondents 2 to 6 purchased the property by a
registered sale deed in the year 1981 under Ex.A1. To show that
there was a super structure in the suit property and that the husband
of first respondent and father of respondents 2 to 6 was residing
there, the property tax that was paid to the local body for the super
structure is marked as Ex.A2 and A3. The second plaintiff was
examined as P.W.1. Apart from P.W.1, P.W.2 was also examined to
support the case of the plaintiffs. The appellant came up with a
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peculiar case that the suit property itself is not lying in the survey
field as given by the plaintiffs in the plaint. It is the case of the
second defendant that the suit property lies in Survey No.256/40 and
it belonged to one Mutharamman F.R.C. Kovil Dussehra Kuzhu. The
dispute raised by the second defendant is therefore by claiming right
to a property which is not his property. It should be noticed that the
second defendant has raised an issue regarding identity of suit
property. However, no attempt was made to dislodge the case of the
plaintiffs with regard to the title of plaintiffs to the suit property in
natham survey field No.239. Admittedly, from the description of the
property, the suit property is described as a property classified as
natham. Even in the written statement, it is admitted that the
property is classified as natham. The property which is classified as
natham does not vest with the Government. Any person who is
residing in the property will be recognised as the owner of the
property. Though the second defendant filed written statement as if
there is a rival claim, from the specific stand with regard to the
identity of suit property, it has to be taken that the first defendant has
no rival claim to the property which is described as a property
comprised in natham survey field No.239 in Kulasekaranpattinam
Village. From the documents Ex.A2 and A3 and the evidence, this
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Court has no reason to interfere with the findings of the trial Court
holding title and enjoyment in respect of the suit property in favour of
plaintiffs.
11.Before considering the issue whether the suit is bad for non-
joinder of necessary party, this Court has to see the legal basis for the
contention from the pleadings. It is the specific case of the
defendants in the written statement that the suit property as
described in the plaint with reference to the survey number and
measurements cannot be identified on ground. The appellant in the
written statement has stated that a third party, namely,
Mutharamman F.R.C. Kovil Dussehra Kuzhu is the owner of property
in Survey No.256/40. The suit property does not lie in Survey No.
256/40. As stated in the plaint, the property, which is the subject
matter of suit, is an extent of 5 7/8 cents in natham survey field No.
239 in Kulasekaranpattinam Village, which is described with
reference to the survey number and measurement. Hence, this Court
is unable to find a plea in the written statement disputing the
plaintiffs' title. The second defendant presumed that the suit property
lies in Survey No.256/40 and that with the permission of the owner of
Survey No.256/40, namely, Mutharamman F.R.C. Kovil Dussehra
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Kuzhu, they have put up a small T.V. room and dug a well. Since the
defendants have not made any attempt to prove that the suit property
lies in Survey No.256/40, there is no scope for construing the pleading
in the written statement filed by the second defendant as one
disputing the title of plaintiffs over the suit property, which lies in
Survey No.239. Secondly, the trial Court has relied upon the evidence
of D.W.1 disowning the connection between the suit property and
Mutharamman F.R.C. Kovil Dussehra Kuzhu. The second defendant's
own witness says that he did know under what basis the said third
party claimed right over the suit property. The plaintiffs cannot be
directed to implead a third party who has no semblance of right as far
as the suit property is concerned. Therefore, the first question of law
regarding non-joinder of necessary party has to be answered against
the appellant.
12.The second question of law is also related to the first question
of law. In this case, the second appellant has assumed some kind of
right over the suit property by setting up title in favour of a third
party. When the appellant failed to lead any evidence suggesting that
the suit property belonged to a third party, he cannot insist on the
plaintiffs to implead such third party, as the plaintiffs are the dominus
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litis to choose the person against whom he seeks relief When the
plea itself indicate that the third party is the owner of some other
property by raising some doubt with regard to the identity of
property, the second question of law also cannot have any
significance.
13.The third question of law raised by the appellant is on the
basis of Section 34 of the Specific Relief Act. The question is whether
the suit for declaration of title and mandatory injunction without a
prayer for recovery of possession is maintainable? In this case, the
plaintiffs have come forward with the case that they are the absolute
owners of the suit property and in possession and enjoyment of the
property except a small portion over which a T.V. room has been
constructed and a well had been dug. The plaintiffs have prayed for
declaration of title and consequential injunction in respect of a portion
of the suit property in which the super structure has been put up by
appellant and the plaintiffs have also prayed for mandatory injunction
to remove the construction and the well. Section 34 of the Specific
Relief Act is based on public policy to avoid multiplicity of proceedings
and whatever the relief the plaintiffs are entitled to at the time of
filing the suit the plaintiffs must plead and pray. In the present case,
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the plaintiffs claimed to be in possession and enjoyment of the suit
property which is a vacant land. Therefore, the relief is for
declaration of title and consequential injunction in respect of the
portion in which the plaintiffs are in possession or deemed to be in
possession. In respect of other portion, the plaintiffs sought for
mandatory injunction to remove the super structure put up by the
second defendant. If the relief of mandatory injunction is granted, the
plaintiffs need not ask for recovery of possession as such, as the
prayer will be redundant. Having regard to the facts and
circumstances as pointed out, this Court is unable to hold that the suit
without a prayer for possession is not maintainable in view of Section
34 of the Specific Relief Act.
14.The next question of law raised by the appellant is on the
basis of doctrine of acquiescence. It is well settled that the Court can
consider the issue only if there is proper plea. In the whole written
statement, there is no plea of acquiescence. That apart, the defendant
who set up a title in favour of third party has pleaded that the
construction was with the permission of real owner, has to plead and
prove that the suit property belonged to a third party. Disputing the
identity of suit property, the appellant/second defendant filed a
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written statement to the effect that the other property, which
according to the appellant, is the suit property, belonged to a third
party and that he has put up construction and dug well with the
permission from the said third party. The issue based on the written
statement to be resolved is, whether the defendants' plea has any
bona fides. The appellant has not even made an attempt that he has
done something with good faith and that the plaintiffs were put to
some hardship by their negligence in believing that the suit property
belonged to a third party. Absolutely, there is no document and no
evidence to show that the defendants were driven by good faith. The
conduct and attitude of the appellant shows that there was an attempt
to grab the land of plaintiffs taking advantage of their economic
conditions.
15.The appellant who has made an attempt to grab the land of
plaintiffs has now come forward with the plea that the appellant has
done something in public interest and that therefore, a decree for
mandatory injunction need not be given. For a person like the
appellant, a plea, based on equity, cannot be considered.
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16.The learned Senior Counsel appearing for the appellant
submitted that it is a well settled principle that in a suit for
declaration of title, the plaintiffs could succeed only on the strength of
their own title and that no relief can be given on the weakness of the
defendants. The learned Senior Counsel relied upon the judgment of
Hon'ble Supreme Court in the case of Union of India vs. Vasavi Co-
op. Housing Society Ltd. and others reported in 2014 (4) CTC
471 wherein the Hon'ble Supreme Court has held as follows:-
“15. The legal position, therefore, is clear that the plaintiff in a suit for
declaration of title and possession could succeed only on the strength of its
own title and that could be done only by adducing sufficient evidence to
discharge the onus on it, irrespective of the question whether the defendants
have proved their case or not. We are of the view that even if the title set up by
the defendants is found against, in the absence of establishment of plaintiff’s
own title, plaintiff must be non-suited.”
17.This Court has no quarrel with the legal proposition, as this
Court and the Hon'ble Supreme Court, has time and again reiterated
the principle. However, the settled legal position can be applied only
if the facts also fit into. In the present case, this Court has seen that
the defendants have not raised any plea disputing the title of plaintiffs
over the suit property. The appellant presumed that the suit property,
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as described in the plaint, is not the property in which the defendants
claimed right under a third party. From the plea raised in the written
statement and the evidence of D.W.1, this Court is unable to agree
with the submission of the learned Senior Counsel appearing for the
appellant, relying upon the above judgment of the Hon'ble Supreme
Court. The learned Senior Counsel submitted that the plaintiffs who
are not found to be in possession of the property cannot seek
mandatory injunction as a consequential relief instead of a suit for
recovery of possession. The learned Senior Counsel relied upon a
judgment of the Hon'ble Supreme Court in the case of Executive
Officer, Arulmigu Chokkanatha Swamy Koil Trust,
Virudhunagar vs. Chandran and others reported in 2017 (2) CTC
678 wherein the Hon'ble Supreme Court has held as follows:-
“35. In the present case, the plaintiff having been found not to be in
possession and having only sought for declaratory reliefs, the suit was
clearly not maintainable and has rightly been dismissed by the trial court.
In this context the reference is made to the judgment of this Court
reported in Ram Saran and Anr. versus Smt. Ganga Devi, AIR 72 SC
2685, wherein para 1 & 4 following was stated:
"1. This is a plaintiffs' appeal by special leave. Ram Saran and
Raghubir Saran, the plaintiffs are brothers. They jointly owned suit
property with Chhabili Kuer widow of Lalita Prasad. After the
death of Chhabili Kuer on February 8, 1971, Ganga Devi the
defendant in the suit came forward as the legal representative of
Chhabili Kuer and got the mutation effected in her name in the
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place of the deceased Chhabili Kuer. In 1958, the plaintiffs brought
this suit for a declaration that they are the sole owners of the suit
properties. They did not claim possession either of the entire or
even any portion of the suit properties.
4. We are in agreement with the High Court that the suit is hit
by Section 42 of the Specific Relief Act. As found by the fact-
finding Courts, Ganga Devi is in possession of some of the suit
properties. The plaintiffs have not sought possession of those
properties. They merely claimed a declaration that they are the
owners of the suit properties. Hence the suit is not maintainable.”
36. The plaintiff, who was not in possession, had in the suit claimed only
declaratory relief along with mandatory injunction. Plaintiff being out of
possession, the relief of recovery of possession was a further relief which
ought to have been claimed by the plaintiff. The suit filed by the plaintiff
for a mere declaration without relief of recovery of possession was
clearly not maintainable and the trial court has rightly dismissed the suit.
The High Court neither adverted to the above finding of the trial court
nor has set aside the above reasoning given by the trial court for holding
the suit as not maintainable. The High Court in exercise of its jurisdiction
under Section 100 C.P.C. could not have reversed the decree of the
courts below without holding that the above reasoning given by the
courts below was legally unsustainable. We, thus, are of the view that the
High Court committed error in decreeing the suit.”
18.From the reading of the judgment of Hon'ble Supreme Court,
this Court is persuaded to hold that the issue should be considered in
the light of principles reiterated by this Court and the Hon'ble
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Supreme Court on the interpretation of Section 34 of the Specific
Relief Act. As it has been discussed by this Court in the earlier
paragraphs, this Court is fully convinced that the plaintiffs are in
possession of the entire suit property except the small portion over
which the second defendant has put up construction and dug a well
just prior to the suit. In such circumstances, the Courts below
granted the relief of declaration and permanent injunction in respect
of the vacant land which was held to be the property of plaintiffs by
granting declaratory relief in favour of the plaintiffs. In such
circumstances, it is not necessary that the plaintiffs should be driven
to file a suit for recovery of possession in respect of the encroached
portion. The Courts below have granted a decree of mandatory
injunction in favour of the plaintiffs and this Court has no reason to
interfere with the findings. The learned Senior Counsel for the
appellant has relied upon a judgment of the Hon'ble Supreme Court in
the case of Karnataka Board of Wakf vs. Government of India
and others reported in (2004) SCC 779 for the proposition that the
plaintiffs who files a suit for title should be very clear about the origin
of title over the property and that he must specifically plead. This
Court, after reading paragraphs 11 and 12 of the judgment, is of the
view that the said judgment has been cited out of context and that the
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principles reiterated in the said judgment has no application to the
facts of this case.
19.The learned Senior Counsel appearing for the appellant relied
upon a judgment of this Court in the case of Kammavar Sangam
through its Secretary R.Krishnasamy vs. Mani Janagaranaj
reported in 1999 (III) CTC 304 for the proposition that the relief of
permanent injunction cannot be availed by a person claiming
possessory title against a person having better title, and that reliance
on patta cannot be made to prove title as patta cannot convey or
extinguish right over the property. This Court is unable to apply the
principle reiterated in the said judgment to the present case in view of
the admitted facts and the peculiar circumstances indicated above.
20.The learned Senior Counsel relied upon a judgment of this
Court in the case of K.Thirunavukkarasu and others vs.
Loganathan (deceased) and others reported in 2018 (5) CTC
883. The learned Senior Counsel relying upon the judgment
advanced his arguments in the following lines:
(a) the plaintiff must stand on their own legs and prove their
case and cannot grant relief to the plaintiff by relying upon
the defendants' failure to establish their title.
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(b) Mere revenue documents cannot be construed as
document of title.
That was a case where the plaintiffs filed a suit for declaration of title
and for permanent injunction and also for possession in the year 1990
based on the sale deed dated 12.10.1989. Defendants disputed the
tile of plaintiff. Except the sale deed, no other document was filed. It
was found that the chitta extract filed by plaintiff therein was after
suit. This Court found that the plaintiff filed no document to show
that at any point of time plaintiff's vendor or his vendor's father had
been in possession of 'A' schedule property. 'B' schedule was in the
possession and enjoyment of defendants therein. Though plaintiff
stated that patta was given to his vendor, no revenue document was
produced. The defendants therein examined two witnesses to support
their case regarding possession and enjoyment of property by putting
up constructions long prior to suit. In the present case, no document
was filed by defendants. Only witness examined on behalf of
defendants has admitted that defendants have no document to show
their right and that he did not know on what basis appellant claim
right or put up a T.V. room or dug a well in the suit property. The
evidence of D.W.2 indicates that the appellant came up with a false
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plea claiming right under a third party without producing any
evidence to sustain the plea.
21.The learned Senior Counsel reiterated his arguments by
relying upon few judgments for the proposition that the plaintiffs who
are out of possession has to seek declaration of title and recovery of
possession, not for declaration of title and injunction. He relied upon
the judgment of this Court in the case of Cheventhipaul Nadar vs.
Srinivasa Nadar and others reported in 1982 (2) MLJ 348 and the
judgment of this Court in Saravanan Pillai vs. A.S.Mariappan and
others reported in 2002 (1) MLJ 419. In the first case, this Court
has held that a suit for declaration of title and injunction is not
maintainable by the plaintiff who is out of possession. In the second
judgment, it was held that the plaintiff who is found to be out of
possession cannot file a suit for declaration and injunction without
asking for recovery of possession. Both the judgments relied upon by
the learned Senior Counsel for the appellant is on the basis of Section
34 of the Specific Relief Act.
22.This Court has already held that the suit as such is not
affected by Section 34 of the Specific Relief Act having regard to the
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admitted facts and circumstances of the case, where the courts below
have found that the plaintiffs are in possession of suit property except
the small portion where the defendants have encroached by putting
up a T.V. room and there is a prayer for mandatory injunction to
remove the encroachment.
23.To support his arguments by advancing the doctrine of
acquiescence, the learned Senior Counsel relied upon a judgment of
this Court in the case of R.S.Muthuswami Gounder vs.
A.Annamalai and others reported in AIR 1981 Madras 220. This
Court in the said judgment applied the principle of acquiescence
holding that the plaintiff residing very near the property did not raise
any objection at the time when the construction was made and that he
started complaining the construction asserting his right over the
property later when he filed the suit. This Court has already pointed
out that there is no specific plea enabling the plaintiff to file a reply
statement in the course of trial explaining why he could not make his
objection at the time when the encroachment was made by the second
defendant. Secondly, the second defendant/appellant is the local
body. Having regard to the peculiar stand taken in the written
statement claiming derivative title to the property and the substance
https://www.mhc.tn.gov.in/judis/
S.A.(MD).No.592 of 2015
of the pleadings, there is no scope for the plaintiffs stopping the
appellant from putting up a small T.V. room and the well at the
relevant time. Finally, the judgment relied upon by the learned
Senior Counsel in the case of Kandasamy and others vs. Savithiri
(Died) and another reported in 2005 (3) MLJ 495 will not help the
appellant having regard to the facts and circumstances narrated by
this Court earlier while answering the points raised by the learned
Senior Counsel in this appeal. In view of the specific findings of the
Courts below and the nature of plea set up by the appellant disputing
the plaintiffs' case of title and possession, this Court is unable to find
any merit in any of the questions of law raised by the appellant.
24.As a result, this Second Appeal has no merits and, therefore,
is dismissed. However, there is no order as to costs. Consequently,
the connected miscellaneous petition is closed.
Index : Yes/No 14.07.2021
Internet : Yes/No
SRM
https://www.mhc.tn.gov.in/judis/
S.A.(MD).No.592 of 2015
To
1.The Sub Judge,
Tuticorin.
2.The Additional District Munsif,
Tiruchendur.
3.The Commissioner,
Udangudi Panchayat Union,
Udangudi – 628 101.
4.The Block Development Officer,
Collectorate,
Tuticorin – 628 101.
5.The District Collector,
Tuticorin District,
Tuticorin – 628 001
6.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
S.A.(MD).No.592 of 2015
S.S.SUNDAR, J.
SRM/dixit
Second Appeal(MD)No.592 of 2015
14.07.2021
https://www.mhc.tn.gov.in/judis/
