Madras High Court
V.Murugan vs Kattalangulam Panchayat on 23 March, 2022
S.A.(MD)No.842 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.842 of 2010
V.Murugan ... Appellant / Appellant / Plaintiff
-Vs-
Kattalangulam Panchayat
Through its President
Kattalangulam
Sawyerpuram via
Tuticorin Taluk,
Tuticorin District. ... Respondent / Respondent / Defendant
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the decree and judgment passed by the learned Subordinate
Judge, Tuticorin in A.S.No.103 of 2007, dated 29.01.2010 confirming the
judgment and decree made in O.S.No.281 of 2006 on the file of the learned
Principal District Munsif, Tuticorin, dated 14.06.2007.
For Appellant : Mr.R.R.Kannan
For Respondent : Mr.N.Muthu Vijayan
Special Government Pleader
https://www.mhc.tn.gov.in/judis
1/6
S.A.(MD)No.842 of 2010
JUDGMENT
The plaintiff in O.S.No.281 of 2006 on the file of the Principal
District Munsif Court, Tuticorin is the appellant in this second appeal.
2. The suit was filed for declaration and permanent injunction. The
case of the plaintiff is that the plaintiff's great grandmother Muthammal had
purchased the suit first item from her mother under a sale deed dated
19.01.1945. It was later settled under a gift deed dated 28.10.1957 in
favour of the plaintiff's grandmother Petchiammai Ammal. Petchiammai
Ammal also annexed the suit second schedule and put up a pial and also
projection over the same in the year 1960. The plaintiff's family have been
in uninterrupted possession and enjoyment of the annexed portion for more
than 45 years. While so, the defendant Panchayat passed a resolution for
demolishing the pial and projection described as the suit 3rd schedule.
Hence, the said suit was instituted with the aforesaid reliefs. The Panchayat
filed written statement controverting the plaint averments. Based on the
divergent pleadings, issues were framed. The power agent of the plaintiff
examined himself as P.W.1 and one Backianathan was examined as P.W.2.
Ex.A1 to Ex.A7 were marked. On the side of the defendant, one Panchayat
Official was examined. Ex.B1 to Ex.B6 were marked. After consideration
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.842 of 2010
of the evidence on record, by judgment and decree dated 14.06.2007, the
suit was dismissed. Aggrieved by the same, the plaintiff filed A.S.No.103
of 2007 before the Sub Court, Tuticorin. By the impugned judgment and
decree dated 29.01.2010, the appeal was dismissed and the decision of the
trial court was confirmed. Challenging the same, this second appeal came
to be filed.
3. The learned counsel appearing for the appellant reiterated all the
contentions set out in the memorandum of grounds and called upon this
Court to frame the substantial question of law and admit the second appeal
and take it up 'for disposal' later.
4. Per contra, the learned Special Government Pleader appearing for
the respondent Panchayat submitted that no substantial question of law
arises for consideration and pressed 'for dismissal' of the suit.
5. I carefully considered rival contentions and went through the
evidence on record.
6. The relief has been sought in respect of the 3rd plaint schedule
property. Even according to the appellant, the disputed portion was not
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.842 of 2010
covered under the title deeds which have been marked in the suit.
The relief of declaration is sought on the basis of adverse possession.
According to the plaintiff, since 1960, the 3rd schedule property is in
exclusive possession and enjoyment of the plaintiff's family. The courts
below have rendered a concurrent finding that the plea of adverse
possession has not been established. Therefore, as rightly contended by the
learned Special Government Pleader, this being a pure question of fact,
there is no scope for interference in exercise of jurisdiction under Section
100 of C.P.C. That apart, the issue can be approached from another angle.
The encroached portion is not a mere government land. Even according to
the plaintiff, it is a threshing floor. A threshing floor apart from being
contiguous to the road is meant for communal use. In other words, all the
villagers are entitled to use the said land. Grazing ground, road, threshing
floor and other lands earmarked for common purposes or communal
purposes cannot be the subject matter of adverse possession. Therefore, the
impugned judgment and decree do not call for any interference.
7. However, I must make one observation. It appears that the
demolition of the 3rd schedule was proposed by the Panchayat in order to
enable putting up a community hall in front of the plaintiff's house. Now,
during the pendency of these proceedings, a pucca community hall had
already been constructed. In fact, the plaintiff's house is now lying in the
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.842 of 2010
backside of the community hall. I am sure that merely because, the second
appeal has been dismissed, the defendant will not take any step for removal
of the same. The defendant will definitely take note of the subsequent
developments. Only if the encroachment of the plaintiff is found to be
objectionable or offends public interest, steps will be taken for removal of
the same.
8. With these observations, this second appeal is dismissed. No cost.
21.03.2022
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Subordinate Judge, Tuticorin.
2.The Principal District Munsif, Tuticorin.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.842 of 2010
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.(MD)No.842 of 2010
23.03.2022
https://www.mhc.tn.gov.in/judis
