Madras High Court
Thenmozhi vs State Of Tamil Nadu on 20 April, 2022
S.A.No.317 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.04.2022
CORAM:
THE HONOURABLE Mr. JUSTICE S.S.SUNDAR
S.A. No.317 of 2022
and C.M.P. No.6734 of 2022
Thenmozhi
.. Appellant
Vs.
1. State of Tamil Nadu,
Represented by the District Collector,
Kanchipuram District,
Kanchipuram.
2. The Tahsildar,
Thirupporur Taluk,
Thirupporur,
Kanchipuram District. .. Respondents
Second Appeal is filed under Section 100 of Civil Procedure Code,
1908, against the judgment and decree dated 07.02.2019 passed in A.S. No.5
of 2019 on the file of the Principal Sub-Court, Chengalpattu, confirming the
judgment and decree dated 03.03.2017 passed in O.S. No.107 of 2015 on the
file of the District Munsif Court, Chengalpattu.
For Appellant : Mr. K.Govi Ganesan
For Respondents : Mr. P.Harish,
Government Advocate (C.S.)
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S.A.No.317 of 2022
JUDGMENT
The plaintiff in the suit in O.S. No.107 of 2015 is the appellant in the
above second appeal. The appellant filed the suit in O.S. No.107 of 2015 for
permanent injunction against the respondents from interfering with her
peaceful possession and enjoyment of the suit property.
2. The suit property is described as an extent of 2 acres including one
hut and trees in Survey No.105 (Kallankuthu Poromboke) in Keezhakottaiyur
Village, Thiruporur Taluk, Kancheepuram District.
3. The case of the appellant is that she is in enjoyment of the suit
property for more than the statutory period. It is contended by the plaintiff
that by virtue of long enjoyment of the property continuously over a statutory
period, she has prescribed title by adverse possession as against the
Government. It is seen that the first defendant is the state represented by
District Collector and the second defendant is the Tahsildar of Thiruporur
Taluk. Though the defendants did not appear before the trial Court and were
set ex parte, the trial Court independently examined the case of plaintiff on
the basis of documents and the deposition of plaintiff. After elaborately
considering the pleadings and available materials, the trial Court found that
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S.A.No.317 of 2022
the plaintiff has to prove her case to get the relief and that the plaintiff is not
entitled to get the relief merely because the defendants did not contest the suit
and were set ex parte.
4. The trial Court found that the claim of plaintiff is not supported by
any material. Even though the plaintiff pleaded adverser possession against
the Government, no cogent material is produced to show that the plaintiff was
in enjoyment of more than 30 years. As a matter of fact, the plaintiff has
admitted that the suit property belonged to the Government. Even in the suit
schedule, the property is described as a poromboke land. While that being so,
the plaintiff, as an encroacher, is not entitled to file a suit for injunction as a
rightful owner. Though the plaintiff / appellant relied upon the judgment of a
Division Bench of this Court that the plaintiff is entitled to an opportunity of
being heard before initiating any eviction proceedings against the appellant,
the trial Court found that the plaintiff has not approached the Court with clean
hands and is not entitled to any discretionary relief of injunction against the
true owner.
5. Aggrieved by the judgment and decree of the trial Court, dismissing
the suit, the appellant preferred an appeal in A.S. No.5 of 2018 before the
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S.A.No.317 of 2022
Principal Sub Court, Chengalpattu. The lower appellate Court, considered the
pleadings and documents independently and confirmed the findings of the
trial Court. As against the dismissal of the appeal by the lower appellate
Court, confirming the judgment and decree of the trial Court, the plaintiff in
the suit preferred the above second appeal before this Court.
6. In the memorandum of grounds of second appeal, the appellant has
raised the following substantial questions of law:
“ a. When the plaintiff is found to be in possession of the suit
property, is she not entitled for lesser relief of injunction i.e.
restraining from evicting her except under due process of law ?
b. Whether the Courts below are correct in dismissing the suit
in toto when she is in possession of the suit property from the year
1980 and more particularly when the Courts have ample power to
modify the relief ?”
7. The appellant, though has raised several grounds and substantial
questions of law, the learned counsel for the appellant confined his argument
to the question “ Whether the plaintiff who is found to be in possession of the
suit property is entitled to a lesser relief of injunction to the effect that she
should not be evicted otherwise than by due process of law ?”
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S.A.No.317 of 2022
The appellant / plaintiff has filed the suit without admitting the title of
respondents. Even though the property is classified as poromboke land, even
according to plaint averments, still the appellant claim title to the property by
adverse possession against the Government. A person who set up a plea of
title by adverse possession against Government, cannot be shown any
indulgence on the basis that he is in enjoyment and possession for a long time
by denying the lawful owner's right. Granting of injunction is an equitable
relief and that the Court cannot be forced to grant relief in every case where
possession is admitted. In other words, the plaintiff being an encroacher or
trespasser, cannot be shown any indulgence by granting even the limited
prayer of injunction as he has not come to Court with clean hands.
8. In view of the concurrent findings of facts recorded by the Courts
below based on appreciation of evidence, this Court is unable to find any
substance in any of the substantial questions law raised in the second appeal.
As a result, the Second Appeal is dismissed. Consequently, connected
miscellaneous petition is closed. No costs.
20.04.2022
bkn
Index: Yes / No
Speaking order / Non-speaking order
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S.A.No.317 of 2022
S.S.SUNDAR, J.,
bkn
To:
1. The Principal Sub Judge, Chengalpattu.
2. The District Munsif, Chengalpattu.
S.A. No.317 of 2022
20.04.2022
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