Madras High Court
Unknown vs Venkatachalam (Died) on 5 January, 2022
S.A(MD)No.557 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.01.2022
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.557 of 2015
and
M.P.(MD) No.1 of 2015
1.The State of Tamil Nadu,
rep. by District Collector
of Kanyakumari at Nagercoil,
Nagercoil Village,
Agasteeswaram Taluk,
Kanyakumari District.
2.The Assistant Director of Special Grade Town Panchayath,
Collectorate Campus,
Nagercoil Village,
Agasteeswaram Taluk,
Kanyakumari District.
3.The Executive Officer
Azhagiapandiapuram Special Grade Panchayat
Thovalai Taluk,
Kanyakumari District.
1/15
https://www.mhc.tn.gov.in/judis
S.A(MD)No.557 of 2015
4.The President
Azhagiapandiapuram Special Grade Panchayat,
Azhagiapandiapuram,
Azhagiapandiapuram Village,
Thovalai Taluk,
Kanyakumari District. ... Appellants/Respondents/Defendants
Vs.
1.Venkatachalam (died)
2.Sreenivasan
3.Magarapoosana Nayagi (died)
4.Selvakumari ... Respondents/
Appellants/Plaintiffs 2 to 4
(4th respondent brought on records as legal
heirs of deceased first respondent vide order
of this Court, dated 04.09.2020 passed in
CMP(MD)No.9527, 9528 & 9530 of 2019.)
(Memo in USR No.1183 dated 11.01.2021 is
recorded as R3 died and respondents 2 & 4
who are already on record, are recorded as
legal heirs of the deceased third respondent
vide order of this Court, dated 03.03.2021)
Prayer : Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 12.10.2013 passed in
A.S.No.15 of 2012 and I.A.No.152 of 2012, on the file of the II
Additional Subordinate Court, Nagercoil, reversing the judgment and
decree, dated 11.06.2008 passed in O.S.No.57 of 2006 on the file of the
District Munsif Court, Nagercoil.
2/15
https://www.mhc.tn.gov.in/judis
S.A(MD)No.557 of 2015
For Appellants : Mr.G.Suriyananth
Additional Government Pleader
For Respondents 2 & 4 : Mr.V.Meenakshi Sundaram
for Mr.R.Murugan
: R1 & R3 died
JUDGMENT
This Second Appeal is directed against the judgment and
decree passed in A.S.No.15 of 2012 and I.A.No.152 of 2012, by the
learned II Additional Subordinate Judge, Nagercoil, in reversing the
judgment and decree in O.S.No.57 of 2006, passed by the learned
District Munsif, Nagercoil.
2. For the sake of convenience, the parties are referred to
herein, as per their own ranking as before the trial Court.
3.The case of the plaintiff, as per the averments made in the
plaint, in short, is as follows :
The plaint schedule property belonged to the first plaintiff.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.557 of 2015
The first plaintiff purchased the schedule item No.1 on 05.10.1957 from
one Shanmugam @ Samuvel Nadar, which is marked as ABCD in the
rough plan. On the eastern side also the said Shanmugam @ Samuvel
Nadar's property was available. The first plaintiff used the said person's
property bund to approach the plaint schedule item No.1. On
26.07.1972, the first plaintiff purchased the plaint schedule item No.2
from the legal heirs of the said Shanmugam @ Samuvel Nadar for his
pathway purpose. After purchasing the plaint schedule property, the first
plaintiff is in possession and enjoyment of the properties by effective
mutation in revenue records. The plaint schedule properties have to be
approached through the pathway which branches out from the
Azhagiapandiapuram to Thovala Road and it ends EF point. The
defendants very recently laid Tar road in the red washed area for the use
of public. The defendants 1 and 2 with a view to extent the road
attempted to encroach the plaint schedule properties and heaped sand,
rubbles, Tar, etc., on 23.01.2006 without the consent and knowledge of
the first plaintiff. The first plaintiff gave a complaint to the third
respondent on 23.01.2006. The second defendant promised to the first
https://www.mhc.tn.gov.in/judis
S.A(MD)No.557 of 2015
plaintiff that the Panchayat Authorities will not involve in any unlawful
activities and will not form any road within the patta land. On
31.01.2006 the workers of the defendants, laid the rubbles through the
plaint schedule properties with a view to extend the road beyond EF
point. On the same day, the first plaintiff sent a telegram objecting to the
encroachment by forming road in the patta land. The Government has
not taken any acquisition proceedings to take the plaint schedule lands
for the purpose of formation of road. No notice of the acquisition is
issued to the first plaintiff by the defendants. The defendants committed
damage to the plaint schedule properties to the tune of Rs.25,000/-. The
defendants have no right to encroach the plaint schedule property and
form a road without acquiring the land under due process of law. Hence
the suit.
4. The suit was filed on 03.02.2006. Along with the suit, the
plaintiff filed a petition in I.A.No.120 of 2006 for an order of interim
injunction and also another application for appointment of
Commissioner. On that day, the Commissioner visited the suit property
https://www.mhc.tn.gov.in/judis
S.A(MD)No.557 of 2015
and filed his report. At the time, the Commissioner had noted the heaping
up of sand and rubbles for the purpose of forming road. However, after
that, the defendants laid road in the plaint schedule item No.2 which is
red washed in Commissioner's plan and also Tar road within the southern
side of plaint schedule item No.1 having a length of 61.40 metres and 3
metre width which is shown as red washed in Ex.C.2- Plan. The
defendants have no right to encroach the plaint schedule property and
form a road after the institution of suit. So the defendants are bound to
remove the encroachment. Hence, the suit is filed for permanent
prohibitory injunction against the defendants.
5. Originally, the suit was filed before the trial Court for
permanent prohibitory injunction. Subsequently, during the pendency of
appeal, the appellants filed I.A.No.151 of 2012 to amend and incorporate
prayer of mandatory injunction. The same was allowed on 09.04.2013
and the plaint was suitably amended.
6. The defendant filed a written statement contending that
https://www.mhc.tn.gov.in/judis
S.A(MD)No.557 of 2015
the suit is not maintainable either in law or on facts. As per the
proceedings of the Director, Special Grade Panchayat, dated 29.09.2005,
the existing sand roads are being improved under the plan, the integrated
road structure and improvements scheme. In such process, the areas
coming under Azhagiapandiapuram Special Grade Panchayath, the
existing sand road in Perunthalaikadu to Soolankarai, tar road is being
formed. The work of forming road in the said area has been completed.
Hence, the suit became infructuous. The area covered under the Tar road
comes within the limits of R.S.No.256/2 and 258/1 of
Azhagiapandiapuram Village. No road has been formed in S.No.256/1
which is alleged by belonged to the first plaintiff. The State is absolutely
entitled to form road in the area which stands classified as "ghij
g[wk;nghf;F". No one is entitled to raise any objection in the welfare
activities of the State. The defendants have not encroached into the
property belongs to the first plaintiff for the formation of Tar road. The
Plaintiffs have no cause of action to file the suit and hence, suit has to be
dismissed with costs.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.557 of 2015
7. Before the trial Court, on the side of the plaintiffs, the
second plaintiff examined himself as P.W.1 and one Isravel examined as
P.W.2 and Exs.A1 to A8 were marked. On the side of the defendants,
one Vinitha, Executive Officer was examined as D.W.1 and Exs.B.1 to B.
4 were marked. Exs.C.1 and C.2 were marked.
8. On the basis of the rival pleadings on either side, the trial
Court, after framing necessary issues and after evaluating both the oral
and documentary evidence, has dismissed the suit.
9. Aggrieved by the Judgment and decree passed by the trial
Court, the plaintiffs 2 to 4, as appellants, had filed an Appeal Suit in
A.S.No.15 of 2012, on the file of the II Additional Subordinate Court,
Nagercoil.
10. Originally the suit was filed before the trial Court for
permanent prohibitory injunction. Subsequently, during pendency of
appeal, the appellants filed I.A.No.151 of 2012 to amend and incorporate
https://www.mhc.tn.gov.in/judis
S.A(MD)No.557 of 2015
prayer of mandatory injunction. The same was allowed on 09.04.2013
and the plaint was suitably amended.
11. In the appeal, the plaintiffs filed an application in
I.A.Nos.151 of 2012 and 152 of 2012 for amending the plaint as already
the tar road has been laid and to mark additional documents under Order
41 Rule 22 of the Code of Civil Procedure and as per I.A.No.151 of 2012
was allowed and the plaint was amended and I.A.No.152 of 2012 was
allowed but it could be seen that that there was no chance given to the
defendants to file additional document or for filing any additional written
statement. The Appellate Court proceeded further and had allowed the
appeal with costs and allowed the applications also and marked Exs.A.9
to A.11 and the judgment of the trial Court in O.S.No.57 of 2006 dated
11.06.2008 was set aside and the suit is decreed as prayed for by granting
permanent injunction against the defendants and the defendants are
directed to remove the encroachment made in item Nos.1 and 2 of the
suit schedule property, which is more clearly mentioned in Ex.C.2 Plan
within a period of three months from the date of judgment.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.557 of 2015
12. The first appellate Court, after hearing both sides and
upon reappraising the evidence available on record, had allowed the
appeal and reversed the Judgment and decree passed by the trial Court.
Challenging the said concurrent Judgments and decrees passed by the
Courts below, the present second appeal has been preferred at the
instance of the plaintiff, as appellant.
13. Heard the learned counsel for the appellants / defendants
and learned counsel for the respondents/plaintiffs 2 to 4 and also perused
the materials available on record.
14.On going through the averments made in the appeal
grounds, it can be seen that the plaintiffs have not proved their case
beyond doubt and they cannot rest on the weakness of the defendants
plea. Further the Courts below have not framed the issue as to whether
notice under Section 80 (1) of the Code of Civil Procedure was necessary
and the parties were heard before dispensing with the issuance of notice
under Section 80 (1) of the Code of Civil Procedure. Further, when no
https://www.mhc.tn.gov.in/judis
S.A(MD)No.557 of 2015
road has been formed in R.S.Nos.256/1 and 258/1 of
Azhagiapandiapuram Village. The Appellate Court has come to a wrong
conclusion that the public road was used for a long period of time,
which has been converted into Tar road and it is a "pathai poromboke"
and not laid on the plaintiffs property and amendment of prayer was
granted by the Appellate Court without giving them the chance to file a
counter affidavit on the said application and also the Court below has not
considered the Village Map Ex.B.4 to arrive at a correct conclusion and
when the plaintiffs have not produced any patta or any other revenue
documents to show that they are in possession and enjoyment of the
property and as they have stated that patta has lost and they have not
taken any steps to make a complaint for the loss of original documents.
Further, the trial Court has stated non-joinder of necessary parties, as the
first plaintiff died during the pendency of the suit and this question need
not be gone into, as this is a separate proceedings and prayed to allow the
second appeal.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.557 of 2015
15. The learned counsel appearing for the respondents fairly
submitted that the applications were allowed by the Court below and as
pointed out by the learned counsel for the appellants that no opportunity
was given to the Government to putforth their defence and hence
whether the said lands were encroached upon or not has to be considered
by the first Appellate Court and as no opportunity was given to the
appellants herein by not providing them an opportunity to file a counter,
and allowing the petition for filing a additional written statement for the
amended plaint and no chance was given to them to file a counter for
accepting the Exs.A.9 to A.11.
16. Considering the facts and circumstances of the case, this
Court is of the view that the Second Appeal is to be partly allowed by
remanding the matter back to the first Appellate Court for giving them an
opportunity for putting forth their defence, if any by filing additional
written statement, regarding the amendment of plaint alone and also for
producing of additional documents, if any.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.557 of 2015
17. For this purpose alone, the matter is remanded back to
the First Appellate Court and the First Appellate Court is directed to fix
the date for hearing as 04.03.2022 and dispose of the matter on or before
31.08.2022. The parties are hereby directed to let in oral evidence
regarding additional documentary evidences which has already marked
as Exs.A.9 to A.11 and additional written statement, if any, regarding the
amended prayer alone.
18. In the result, the Second Appeal is partly allowed to the
extent indicated above. However, there shall be no order as to costs.
Consequently, connected miscellaneous petition is closed.
05.01.2022
Index : Yes/No
Internet : Yes/No
rm
https://www.mhc.tn.gov.in/judis
S.A(MD)No.557 of 2015
Note : 1) Registry is directed to send the entire records
in O.S.No.57 of 2006 on the file of the District
Munsif Court, Nagercoil, to the Appellate Court
(II Additional Subordinate Court, Nagercoil)
forthwith.
2) 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.
To
1.The II Additional Subordinate Court,
Nagercoil.
2.The District Munsif Court,
Nagercoil.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.557 of 2015
V.BHAVANI SUBBAROYAN, J.
rm
Judgment made in
S.A(MD)No.557 of 2015
05.01.2022
https://www.mhc.tn.gov.in/judis
