Madras High Court
S.Rukkumani vs The President on 15 June, 2021
S.A.No.325 of 2021
and CMP.No.6326 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 15.06.2021
CORAM:
THE HONOURABLE Mr.JUSTICE M.SUNDAR
S.A.No.325 of 2021
and
CMP.No.6326 of 2021
S.Rukkumani
... Appellant
Vs.
1. The President,
Tharamangalam Panchayat Board,
Tharamangalam, Omalur Taluk,
Salem District.
2. The Executive Officer,
Selection Grade Town Panchayat,
Tharamangalam and Post,
Omalur Taluk, Salem District.
... Respondents
Prayer: Second Appeal has been filed under Section 100 of Code of Civil
Procedure, 1908, praying to set aside the Judgment and Decree dated
20.11.2019 passed in A.S.No.30 of 2019 on the file of the learned Sub Court,
Omalur, in confirming the judgment and decree dated 12.03.2018 passed in
O.S.No.235 of 2012 on the file of the learned District Munsif Court, Omalur.
For Appellant : Mr.P.Mani
***
1/15
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S.A.No.325 of 2021
and CMP.No.6326 of 2021
JUDGMENT
Four days ago, i.e., 11.06.2021 (Friday), the lis [that has led to the
captioned Second Appeal] turned nine as the original suit i.e., O.S.No.235 of
2012 was filed on 11.06.2012 on the file of 'District Munsif Court, Omalur'
[hereinafter 'trial Court' for the sake of brevity]. To put it differently, the lis
is now heading towards becoming a decade old lis.
2. 'A notice dated 31.05.2012 bearing reference Na.Ka.No.73/2012/E
issued by the Executive Officer of the Local Body/Local Authorities i.e.,
Town Panchayat' [hereinafter 'impugned notice' for convenience] was sought
to be declared as null and void and a decree for permanent injunction qua
possession of suit property was also sought for in this suit.
3. Suit property as described in the schedule to the plaint is interesting
and the same reads as follows:
' DESCRIPTION OF PROPERTY
Salem District, Omalur Taluk, Tharamangalam Village, in
Survey No.176/1A1 (old S.No.176/1B1B), Theppakulam,
Government poramboke land to the extent of 1.04.5 hectares in
which an extent of 0.01.0 hectares of land is in possession and
enjoyment of the plaintiff, with a terraced house constructed in it
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and CMP.No.6326 of 2021
and it's doors, door frames, windows, window frames and all
superstructures thereon, having mamool pathway rights,
easementary rights and other rights related to it.'
(underlining made by this Court to highlight,
supply emphasis and for ease of reference)
4. Impugned notice calls upon the noticee to remove the encroachment
made by her in a 'Government Poramboke land' [classified as a 'water body']
on or before the date specified therein and says that if the noticee does not
comply, the encroachment will be removed by the local body.
5. The 'lone appellant in captioned Second Appeal' [hereinafter
'plaintiff ' for convenience] filed the aforementioned suit in the trial Court
with the aforementioned prayers. The President of the local body was
arrayed as first defendant and the Executive Officer, Selection Grade Town
Panchayat was arrayed as second defendant. Pleadings were completed and
as many as four issues were framed, parties went to trial Court on these
issues framed, plaintiff examined herself as PW1, second defendant-
Executive Officer examined himself as DW1, 10 exhibits namely Exs.A1-
A10 were marked on the side of the plaintiff and 12 exhibits namely Exs.B1
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and CMP.No.6326 of 2021
to B12 were marked on the side of the defendants. After full contest, trial
Court partly decreed the suit as the prayer for declaration qua impugned
notice was dismissed and with regard to the prayer for permanent injunction
qua suit property the decree says that defendants can evict the plaintiff from
the suit property but by following due process of law. For clarity, relevant
portion of decree is extracted and reproduced hereunder:
6. Plaintiff carried the matter in appeal by way of a regular First
Appeal under Section 96 of 'The Code of Civil Procedure, 1908' ['CPC' for
the sake of brevity] vide AS.No.30 of 2019 on the file of 'Sub Court, Omalur'
[hereinafter 'First Appellate Court']. After full contest, First Appellate Court
dismissed the appeal in and by judgment and decree dated 12.03.2018
confirming the aforementioned judgment and decree of the trial Court.
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7. As against the aforementioned two concurrent judgments and
decrees, captioned Second Appeal has been preferred by the plaintiff under
Section 100 of CPC.
8. Mr.P.Mani, learned counsel for appellant, who was before this
virtual Court made submissions summation of which is as follows:
a) Courts below have proceeded on the basis that
adverse possession cannot be used as a sword by the plaintiff
and that it can only be used as a shield by defendant. This
position of law has now changed and the Courts below have
not noticed the changed position of law.
b) Owing to section 131(2) of 'The Tamil Nadu
Panchayats Act, 1994 [Tamil Nadu Act 21 of 1994]'
[hereinafter 'Panchayats Act' for the sake of convenience]
cannot be invoked when the suit property is Government
Poramboke land and when it does not vested in the village
panchayat.
c) In the impugned notice, no provision of law has been
quoted.
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9. This Court carefully considered the aforementioned submissions
and the case file placed before this Court was also examined. This Court
now proceeds to set out its discussion and give its dispositive reasoning qua
the conclusion.
10. At the outset, it is noticed that there is no disputation that the suit
land is Government Poramboke land, which has later been classified as
'Theppakulam Government Poramboke land' and is therefore a water body.
Another important aspect that emerges clearly from the case file is, all other
encroachers in this water body have been removed and the plaintiff's
encroachment alone is now standing on the same. This is not merely a factual
finding that has been returned by the Courts below, but it is a categoric
admission of the plaintiff, who deposed as PW1 before the trial Court.
Relevant portion of deposition of PW1 is set out in paragraph 16 of judgment
of the First Appellate Court, which reads as follows:
'16. ....... In this regard, the plaintiff has been examined as
PW1. She deposed that ... “jhth brhj;jpypUe;J btspnaWkhW
njh;t[epiy ngU:uhl;rpauhy; vdf;Fk; mUfpy; cs;s kw;w
egh;fSf;Fk; mwptpg;g[ bfhLf;fg;gl;lJ vd;why; rhpjhd;/
kw;w midtUk; me;j ,lj;ijtpl;L btspnawp tpl;lhh;fs;/
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me;j ,lj;jpy; ntyp njh;te
[ piy ngU:uhl;rpahy;
nghlg;gl;Ls;sJ/ tHf;F jhf;fy; bra;ag;gl;l bghGJ
,Ug;gJ nghy ,Uf;fntz;Lk; vd cj;jput[ ePjpkd;wj;jhy;
gpwg;gpf;fg;gl;lJ/ mjdhy; jhd; vd; tPL ,d;wst[k;
mfw;wg;glhky; cs;sJ/ me;j ,ilf;fhy kD js;Sgo
bra;ag;gl;L. nky;KiwaPL jhf;fy; bra;ag;gl;L. mJ
epYitapy; cs;sJ/”...'
(underlining made by this Court
to supply emphasis)
11. It is also noticed that this is the second round of litigation as the
plaintiff's father-in-law, who originally encroached the water body filed a
suit in OS.No.99 of 1999 on the file of District Munsif's Court, Omalur and
the decree in that suit dated 04.09.2017 has been marked as Ex.A1.
Judgment has been marked as Ex.A2. Courts below had noticed that the
earlier decree is to the effect that dispossession will not be de hors due
process of law.
12. Even according to the plaintiff's pleading, the encroachment was
made more than 70 years ago by plaintiff's father-in-law one Krishnan. First
submission of learned counsel for appellant turns on adverse possession,
owing to law laid down by Hon'ble Supreme Court in Ravinder Kaur Grewal
Vs. Manjit Kaur case reported in 2019 (6) MLJ 16.
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13. The plea of adverse possession is no doubt now available to a
plaintiff also, but in the instant case, there are two aspects of the matter
which prevent this obtaining position of law coming to the aid of the
plaintiff. One is, on facts, both the Courts below have returned findings
against adverse possession plea and there is nothing to demonstrate that the
possession of suit property by the plaintiff has been continuous uninterrupted
and hostile satisfying all the determinants for perfecting title by adverse
possession. There was nothing before this Court to demonstrate that these
concurrent findings of fact returned by the Courts below are perverse and
deserve to the interfered with in exercise of powers under Section 100 of
CPC. The second aspect of the matter is, as already alluded to supra, the suit
land is admittedly a water body. The lead case in this regard is a full Bench
judgment of this Hon'ble Court in T.K.Shanmugam's case being
T.K.Shanmugam Vs. State of Tamil Nadu reported in 2015 (5) LW 397]. A
Hon'ble Division Bench of this Court (following the Full Bench), vide order
dated 27.11.2015 made in W.P.No.1295 of 2009 in paragraphs 28 to 30 and
the concluding paragraph of said order held as follows:
'28. That apart, while answering the reference in a Writ
Petition filed at the instance of the petitioner herein, viz., T.K.
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Shanmugam vs. The State of Tamil Nadu [2015 (5) LW 397],
the Full Bench of this Court, after considering the various
Government Orders and the judgments of this Court and also
following the observations and directions issued by the Hon'ble
Apex Court, vide order dated 30.10.2015, has held that even the
tanks which do not fall within the purview of the Tamil Nadu
Protection of Tanks and Eviction of Encroachment Act, 2007,
also require protection from encroachment and any
encroachment made in such tanks or water bodies have to be
removed by following the provisions of the Act.
29. It is significant to point out that the Hon'ble Apex
Court in a series of judgments, has held that statutory rules
cannot be amended by Executive instructions but "if the rules
are silent" on any particular point, Government can fill up the
gaps by issuing executive instructions, in conformity with the
existing rules. Having regard to the acute water scarcity
recurring in the State of Tamil Nadu as a whole, we feel that a
time has come where the State has to take some definite
measures to restore the already ear marked water storage
tanks, ponds and lakes, to its original status as part of its rain
water harvesting scheme, which has already been initiated.
30. This Bench also wants to put it on record that as
against the directions issued by this Court from time to time for
eviction of the encroachers in the water bodies, which is in the
larger interest of the society, no individual has raised his little
finger, except the present writ petitioner, Secretary of a
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and CMP.No.6326 of 2021
Political Party, that too, under the garb of a Public Interest
Litigation.
In view of the foregoing discussion and in the light of the
answer to the reference rendered by the Full Bench on this
issue, we are of the view that the arguments of the petitioner
claiming that the encroachments in river poramboke have to be
regularized, is legally not sustainable and the relief claimed in
this Writ Petition cannot be granted. As such, the Writ Petition
fails and the same stands dismissed but without costs.'
14. This takes us to the next argument, which takes us to Section
131(2) of Panchayats Act. This provision talks about Village Administrative
Officer in every Revenue village reporting on encroachment of properties
vested in village panchayats. In the instant case, it has been contented by the
defendants that the Commissioner of Town and Country Planning vide letter
dated 30.03.2012 bearing reference No.D.No.Roc.No.21804/2011-UPI as per
G.O.Ms.70 Housing and Urban Development [UD (2)] Dept. dated
21.03.2012 has made it clear that Towns including Tharamangalam village
have been selected for implementation of Heritage Town Development
Projects during the year 2012-2013 by providing large sums of money for
Heritage Town Development Programme. It is also submitted that as per the
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direction of the Assistant Director of Salem vide letter dated 07.05.2012
bearing reference in Na.Ka.No.1113/2012/A, Executive Officers are to get an
approval from the concerned Panchayat Board for spot inspection and send a
report urgently by 20.05.2012. District Collector, Salem vide proceedings
dated 25.01.2012 bearing reference Na.Ka.No.11790/2011 K2 sent reports
for removal of encroachments made in the aforementioned water body. In
accordance with this, the Tahsildar of Omalur i.e., jurisdictional Tahsildar
vide proceedings dated 25.05.2012 bearing reference
Na.Ka.No.3035/2012/A6 directed the Executive Officer of Tharamangalam
Town Panchayat (second defendant) to take necessary steps for removal of
the encroachment made by plaintiff's father-in-law and others. In accordance
with the order of Tahsildar, second defendant issued the impugned notice to
the plaintiff and other illegal encroachers. All this has been established by
way of records and evidence before the Courts below. More importantly, as
already alluded to supra, other encroachers have already been removed and
even according to the admitted case of plaintiff, as the litigation was
pending, the plaintiff was not removed from the suit property and her
property alone stands in the water body and in other words it stands between
the aforesaid project and its implementation. Therefore, the argument
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predicated on Section 131(2) of Panchayats Act does not come to the aid of
the plaintiff in the captioned matter.
15. The third submission turning on no provision of law being invoked
in the impugned notice stands answered in the discussion and dispositive
reasoning set out supra in dealing with the second point predicated on
Section 131(2) of Panchayats Act as the trajectory, which the removal of
encroachment exercise has taken, has been captured. Therefore, it is not
necessary to delve any further into this aspect of the matter.
16. This Court reminds itself that captioned matter being a Second
Appeal under Section 100 of CPC has to necessarily turn on substantial
question/s of law. The expression 'substantial question of law' occurring in
Section 100 of CPC has been elucidatively explained in Sir Chunilal
Mehta's case [Sir Chunilal V.Mehta and Sons Ltd., Vs. Century Spinning
and Manufacturing Co., Ltd., reported in AIR 1962 SC 1314]. This Court
refrains itself from extracting and reproducing the relevant paragraphs to
avoid this judgment becoming verbose. Suffice to say that there is nothing to
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demonstrate that any debatable question or settled position of law has been
violated arises in the captioned second appeal.
17. In the light of the discussion and dispositive reasoning set out
supra, no substantial question of law arises in the case on hand. A perusal of
questions proposed by the protagonists in second appeal as substantial
question/s of law and additional substantial question/s of law, pale into
insignificance and become non starters in the light of the discussion and
dispositive reasoning supra. They clearly do not qualify as substantial
questions of law inter alia owing to the discussion and dispositive reasoning
supra besides being clearly non-starters.
18. In Kirpa Ram case being Kirpa Ram Vs. Surendra Deo Gaur
reported in 2020 SCC OnLine SC 935, Hon'ble Supreme Court has held that
a second appeal can be dismissed at the admission stage without formulating
substantial questions of law that have arisen in the matter. This case clearly
qualifies as one which deserves to be dismissed in the admission stage by
adopting Kirpa Ram principle.
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19. In the light of the narrative, discussion and dispositive reasoning
thus far, captioned second appeal is dismissed at the admission stage holding
that no substantial question of law arises. Owing to the nature of the
submissions made before this Court, there shall be no order as to costs.
Consequently, connected CMP is also closed.
15.06.2021
Speaking order: Yes/No
Index: Yes/No
kmi
To
1. The Sub Judge,
Omalur.
2. The District Munsif,
Omalur.
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S.A.No.325 of 2021
and CMP.No.6326 of 2021
M.SUNDAR.J.,
kmi
S.A.No.325 of 2021
15.06.2021
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