Madras High Court
Plaintiff vs The State Of Tamil Nadu on 27 October, 2021
1 S.A.No.1564 OF 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.10.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.1564 of 2003 and
C.M.P.(MD)No.8866 of 2021
Sri.Ahobila Mutt, Kumbakonam,
By its 45th Jeer Srivan Sadagopa
Sri Narayana Yathintra Maha Desikar,
Rep. By his Power Agent and General Manager,
R.Krishnaswamy
(Cause title is accepted vide Order dated 21.08.2003
in C.M.P.(MD)No.11342 of 2003) ... Appellant / Respondent /
Plaintiff
Vs.
1. The State of Tamil Nadu,
Rep. By its District Collector,
Thanjavur.
2. The Forest Officer,
Forest Department,
Kumbakonam. ... Respondents / Appellants /
Defendants
Prayer: Second appeal filed under Section 100 of
C.P.C., to set aside the Judgment and Decree of the learned I
Additional District Judge cum Chief Judicial Magistrate,
Thanjavur at Kumbakonam dated 21.02.2003 passed in
A.S.No.45 of 2002 reversing the well considered judgment of
the learned I Additional District Munsif, Kumbakonam, dated
30.06.2000 passed in O.S.No.176 of 1994.
https://www.mhc.tn.gov.in/judis
1/9
2 S.A.No.1564 OF 2003
For Appellant : Mr.T.V.Ramanujam,
Senior Counsel,
for Mr.M.Saravanan.
For Respondents : Mr.R.Ragavendran,
Government Advocate.
***
JUDGMENT
The plaintiff in O.S.No.176 of 1994 on the file of the
I Additional District Munsif, Kumbakonam, is the appellant in
this second appeal.
2. The suit was filed for directing the defendants to
put the plaintiff in possession of the suit properties. The
plaintiff also asked for half share of the trees raised by the
defendants in the suit properties. The defendants filed written
statement controverting the plaint averments. An Advocate
Commissioner was appointed and he inspected the suit
properties and also filed his report and plan. Based on the
divergent pleadings, the trial Court framed the necessary
issues. The mutt official was examined as P.W.1. Ex.A.1 to
Ex.A.3 were marked. One Panneerselvam, Forest Department
https://www.mhc.tn.gov.in/judis
official was examined as D.W.1. No document was marked by
the defendants. Court Exhibits 1 to 6 were marked. After a
consideration of the evidence on record, the trial Court by
judgment and decree dated 30.06.2000, decreed the suit as
prayed for. Aggrieved by the same, the defendants filed
A.S.No.45 of 2002 before the Additional District and Sessions
Judge cum Chief Judicial Magistrate, Kumbakonam. By the
impugned judgment and decree dated 21.02.2003, the first
appellate Court reversed the decision of the trial Court and
allowed the appeal and dismissed the suit. Challenging the
same, this second appeal came to be filed.
3. This second appeal was admitted on the following
substantial questions of law:-
“(i) Whether the lower appellate Court
has properly appreciated and applied the law
that what is admitted need not be proved when
D.W.1 has admitted the title of the plaintiff?
(ii) Whether the lower appellate Court is
right in law in giving a finding of permissive
occupation which is not supported by any
https://www.mhc.tn.gov.in/judis
pleading or evidence but contrary to the
admission of D.W.1?
(iii) Whether the lower appellate Court
is right in law in giving a finding that the Teak
wood trees have been planted in channel
poramboke or channel bund which finding is
based on no evidence and contrary to specific
findings in the report of Advocate Commissioner
which has been accepted by D.W.1? ”
4. Heard the learned Senior counsel appearing for the
appellant and the learned Government Advocate appearing for
the respondents.
5. The learned Senior counsel appearing for the
appellant took me through the plaint averments. He pointed
out that the plaintiff is a religious institution. The suit
properties belonged to the plaintiff mutt. On the said suit
properties without getting permission from the Madadhipathi,
the Forest Department had planted trees. When the mutt
became aware of the same, it instituted the said suit for
https://www.mhc.tn.gov.in/judis
directing the defendants to hand over vacant possession of the
suit property. Since the trees were grown on the suit property
belonging to the mutt, the plaintiff had also asked for half
share in what was on their property. The learned Senior
counsel also pointed out that before the first appellate Court,
the defendants were permitted to mark additional evidence
without following the procedure set out in Order 41 Rule 27 of
C.P.C. The first appellate Court after referring to Section 2 of
the Tamil Nadu Forest Act 1882, came to the conclusion that
the river bunds also belong to the Government and that
therefore, the plaintiff was not entitled to maintain the suit.
He also submitted that the title of the plaintiff over the suit
property was admitted by the defendants themselves. He
pointed out that before the trial Court, no document was
marked by the defendants. The Forest Department official who
was examined as D.W.1 fairly and frankly admitted that the
suit properties belonged only to the plaintiff mutt. Admission
is a best form of proof. What was admitted need not be proved.
The learned Senior counsel produced before this Court a copy
of “ A ” Register. It can be seen therefrom that the entries in
“ A ” Register tally with the Advocate Commissioner's report
https://www.mhc.tn.gov.in/judis
and plan. He also pointed out that the Advocate Commissioner
had also filed Chitta along with the report. From a perusal of
this document, one can very well come to the conclusion that
the suit properties belonged to the plaintiff mutt. I am more
than satisfied with the submission advanced by the learned
Senior counsel. As rightly pointed out by the learned Senior
counsel, what was admitted need not be proved. That the suit
properties belong to the plaintiff mutt is too obvious. The
Advocate Commissioner had enclosed Chitta along with his
report. It can be seen therefrom that the suit survey numbers
are found in the petition mentioned Chitta.
6. A mere perusal of “ A “ Register also shows that the
suit lands stand in the name of Arulmighu Lakshmi Narasima
Temple. It is true that Beeman Vaikkal is flowing in the
vicinity. For instance, Survey No.16/1 is in the name of the
plaintiff mutt. Beeman Vaikkal flows across Survey No.16/2 as
well as Survey No.17. Likewise Survey No.18/4 is in the name
of the plaintiff. Channel lays through Survey No.18/5. As
rightly pointed out by the learned Senior counsel, Section 2 of
Tamil Nadu Forest Act, 1882 defines that "river" includes
streams, canals, backwaters, creeks, and other channels,
https://www.mhc.tn.gov.in/judis
natural or artificial. If the suit lands formed part of the river in
the revenue records, they could not have been shown as patta
lands. The Government cannot speak in different voices. If the
Revenue Department acknowledges and accepts the title and
ownership of the suit lands, the Forest department cannot
argue contrarily. However, the plaintiff cannot claim any
share on the trees planted by the Forest Department. It is well
settled that the person who had planted the tree is entitled to
cut and remove the same. The plaintiff could not ask for
damages against the Department for having encroached on
their property. The trial Court erred in granting half share to
the plaintiff on the trees grown on the suit properties.
Therefore, the first appellate Court is justified in interfering
with that part of the decree. The decree granted by the trial
Court for directing the defendants to hand over the vacant
possession of the suit property ought to have been sustained.
The substantial questions of law are answered in favour of the
appellant. The judgment and decree of the Court below is
interfered to the extent mentioned above. The decision of the
trial Court in this regard is sustained and the defendants are
granted four months time to cut and remove the trees.
https://www.mhc.tn.gov.in/judis
7. This second appeal is partly allowed. No costs.
Consequently, connected miscellaneous petition is closed.
27.10.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: 1. In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
2. Issue Order copy on 24.01.2022.
To:
1. The I Additional District Judge cum
Chief Judicial Magistrate,
Thanjavur at Kumbakonam.
2. The I Additional District Munsif,
Kumbakonam.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN,J.
PMU
S.A.No.1564 of 2003
27.10.2021
https://www.mhc.tn.gov.in/judis
