Thenmozhi vs State Of Tamil Nadu
2022 Latest Caselaw 8249 Mad

Citation : 2022 Latest Caselaw 8249 Mad
Judgement Date : 20 April, 2022

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 https://www.mhc.tn.gov.in/judis

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.