Madras High Court
The State Rep. By vs Ponnusamy on 4 March, 2021
S.A (MD) No.127 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.03.2021
CORAM :
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A (MD) No.127 of 2021 and
CMP(MD).No.1990 of 2021
1.The State rep. by
District Collector,
Trichy District,
Trichy.
2.The Project Officer,
Project Office,
Trichy District.
3.The Commissioner,
Musiri Panchayat Union,
Trichy District.
4.The Panchayat President,
Manbarai Village Panchayat,
Musiri Taluk,
Trichy District. .. Appellants / Respondents 1 to 4
Vs.
1. Ponnusamy
2.Amsavalli
3.Manokaran ... Respondents 2 & 3/ Respondents
1/8
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S.A (MD) No.127 of 2021
Prayer: Second Appeal filed under Section 100 CPC against the Judgment
and Decree datd 22.01.2020 passed in A.S.No.10 of 2019 on the file of the
Sub Court, Thuraiyur, by reversing the Judgment and Decree dated
19.02.2016 passed in O.S.No.461 of 2005 on the file of the Principal
District Munsif Court, Thuraiyur.
For Appellants : Mr.J. Gunaseelan Muthaiah
Additional Government Pleader
JUDGMENT
The Second Appeal is filed at the instance of the Government
challenging the decree for mandatory injunction granted by the Appellate
Court in A.S.No.10 of 2019 while modifying the Judgment and Decree of
the trial Court in O.S.No.461 of 2005.
2. The plaintiffs sued for mandatory injunction for removal of
the road laid by the defendants over their property measuring 1 acre 6
Cents in S.Nos. 381/6, 381/7 and 381/8 of Manparai Village, Thuraiyur
Taluk. According to the plaintiff, the said extent of 1 acres 67 Cents
belongs to his family and the revenue records also stand in their name.
There is a well and motor pumpset which has been duly energised.
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S.A (MD) No.127 of 2021
Claiming that the defendants 1 to 4 at the instance of the 5th defendant had
encroached upon the property and laid a road and hence, the plaintiff had
sought for the relief of mandatory injunction for removal of the road.
3. The suit was resisted by the defendants contending that
the property in S.Nos.381/6B, 381 / 7B2, 511/6C, 398/5 over which the
road has been laid have been shown as belonging to one Akkandi, S/o.
Mallichan and the S.No. 381/7B2 has been shown as a mud road on
ground. Therefore, according to the defendants, the road has not been
laid on the plaintiff's property.
4. At trial, the plaintiff was examined as PW.1 and Exs.A1 to
A16 were marked. A Commissioner was appointed and he has also filed a
report and plan and the same were marked as Exs.C1 and C2. The
defendants did not lead any evidence either oral or documentary.
5. The trial Court upon consideration of the evidence on
record concluded that there was, in fact, a trespass over an extent of 75
Square meters of the property that belonged to the plaintiffs. However,
without granting a decree for mandatory injunction, the learned trial Judge
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S.A (MD) No.127 of 2021
had decreed the suit directing the defendants to compensate the plaintiffs
for the trespass by offering adequate compensation.
6. The plaintiffs had challenged the said decree in A.S.No.10
of 2019. It should be pointed out at this juncture that the defendants did
not come forward even to implement the decree granted by the trial Court
by offering compensation to the plaintiff. The findings of the trial Court
that there has been encroachment on the plaintiff's property by the
defendants to an extent of 75 Square Meters and the decree directing the
payment of compensation was not challenged by the defendants. The
lower Appellate Court, upon reconsideration of the evidence on record,
concluded that once the factum of encroachment was proved, the court
cannot direct to compensate merely because the encroachment is by the
Government. The lower Appellate Court has also took a note of the fact
that the respondents had not come forward to comply with the decree
granted by the trial Court. On the above conclusions, the lower Appellate
decreed the suit granting mandatory injunction for removal of road that
was laid over the plaintiff's property. Hence, the defendants are an appeal.
7. I have heard Mr. J. Gunaseelan Muthaiah, learned
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S.A (MD) No.127 of 2021
Additional Government Pleader appearing for the appellants.
8. The learned Additional Government Pleader is in a
unenviable position since there is no evidence adduced by the defendants
in support of their contention that the road is not laid in the plaintiffs'
property. On the contrary, the plaintiff has produced the sale deed, which
they purchased the property and Revenue records in support of the
contention that the land on which the road is laid is the plaintiff's family
property and the Commissioner appointed has filed a report affirming the
trespass. It is very unfortunate that the authorities who are bound to
safeguard the interest of citizens have trespassed over the property of the
citizens. Despite having suffered a decree, they had not come forward to
pay the compensation.
9. The learned Additional Government Pleader would seek
remand to enable the Government to let in evidence. I do not think this is
a fit case for remand. No evidence was let in and no appeal was filed
against the Judgment of the trial Court, which found that there is a trespass
and directed the Government to pay compensation.
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S.A (MD) No.127 of 2021
10. In the light of the above, I do not find any question of law,
much less a substantial question of law in this appeal, so as to enable me
to entertain this appeal. Accordingly, this Second Appeal is dismissed,
without being admitted.
11. The executing Court is directed to dispose the E.P.No.13 of
2020 within a period of three months from the date of receipt of a copy of
this Judgment. It is open to the Government to take appropriate action
against the officers responsible for the trespass as well as the manner in
which the proceedings have been conducted before the trial Court and the
Appellate Court. No costs. Consequently, the connected Miscellaneous
Petition is closed.
04.03.2021
Index : yes/no
Internet : yes/no
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S.A (MD) No.127 of 2021
To
1. The Sub Court, Thuraiyur.
2. The Principal District Munsif Court, Thuraiyur. .
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S.A (MD) No.127 of 2021
R.SUBRAMANIAN,J.,
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S.A (MD) No.127 of 2021 and
CMP(MD).No.1990 of 2021
04.03.2021
http://www.judis.nic.in
