Madras High Court

A.Ramaiah vs Tamil Nadu Government on 30 March, 2022

                                                                                S.A.(MD) No.233 of 2022



                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED : 30.03.2022

                                                        CORAM

                              THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                             S.A.(MD) No.233 of 2022
                                                       and
                                            C.M.P.(MD) No.2869 of 2022

                     A.Ramaiah                                 ... Appellant/Respondent/Plaintiff

                                                            -vs-

                     1.Tamil Nadu Government,
                       Rep. through District Collector,
                       Collectorate,
                       Madurai District, Madurai.

                     2.The Tahsildar,
                       Vadipatti Taluk,
                       Madurai District.

                     3.The Commissioner,
                       Vadipatti Panchayat Union,
                       Vadipatti Taluk, Madurai District.

                     4.The President,
                       Sithalangudi Panchayat,
                       Sithalangudi, Vadipatti Taluk,
                       Madurai.                                ... Respondents/Appellants/
                                                                   Defendants

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                                                                                  S.A.(MD) No.233 of 2022



                     Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside
                     the decree and judgment dated 15.11.2018 passed in A.S.No.73 of 2015 by
                     the Principal Sub Judge, Madurai in reversing the decree and judgment
                     dated 04.07.2014 passed in O.S.No.206 of 2008 by the District Munsif cum
                     Judicial Magistrate, Vadipatti.

                                  For Appellant        :        Mr.A.Srinivasan

                                  For RR1 & 2          :        Mr.G.Sivaraja,
                                                                Government Advocate

                                                            ******

                                                           JUDGMENT

This Second Appeal has been instituted questioning the validity of

the decree and judgment dated 15.11.2018 passed in A.S.No.73 of 2015 by

the Principal Subordinate Judge, Madurai in reversing the decree and

judgment dated 04.07.2014 passed in O.S.No.206 of 2008 on the file of the

Principal District Munsif cum Judicial Magistrate, Vadipatti. The plaintiff is

the appellant. The suit was instituted for permanent injunction. The

plaintiff states that the suit schedule property is situated at Chithalangudi

Village, Vadipatti Taluk, Madurai District. The plaintiff concedes that the

suit property is grama natham and the ancestors of the plaintiff occupied

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portion of the grama natham and constructed a thatched house for dwelling

purpose. They were in peaceful possession of the property without any

interference. Accordingly, the plaintiff states that he acquires right from his

ancestors and continue to be in possession of portion of the grama natham

land. The plaintiff is paying kist and house tax for the suit mentioned

property. However, the 4th defendant-Chithalangudi Panchayat commenced

action for evicting the plaintiff. Thus, the plaintiff was constrained to move

the suit for permanent injunction.

2. The 4th defendant filed written statement stating that the suit

property is a 'natham poramboke' vested with Chithalangudi Village

Panchayat. It is contended that the plaintiff has very recently encroached

with thatched house. It has been falsely stated that the suit property was in

possession and enjoyment of the plaintiff's ancestors. The plaintiff's

possession is with the inference of the State authority and in this regard, B-

Memo was also issued by the authority. The ancestors of the plaintiff has no

right over the suit property. Payment of house tax would not confer any title

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in respect of the natham poramboke land. The plaintiff is an encroacher and

he is in illegal possession of the natham poramboke land. Since the suit

property is vested with the village panchayat, notice was issued to evict the

plaintiff from the suit property in due process of law. The suit property is

essential for implementation of welfare scheme works in the public interest.

The plaintiff is an encroacher. Thus, he should be evicted from the

encroachment in the interest of public. It is the duty of the respondents to

initiate action in the interest of public, as the property is to be utilised for

implementing welfare schemes of the Government.

3. The trial court framed two issues “whether the plaintiff is

entitled for the relief of permanent injunction or not and for any other

relief”. The trial court mainly proceeded based on the documents relatable

to house tax receipts and land tax and further, the application submitted by

the plaintiff for grant of patta. The notice received from Revenue Inspector,

Cholavandhan by the plaintiff is also marked as document. The trial court

made a finding that natham poramboke means it is a residence and the

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plaintiff is in possession of the thatched house constructed in the natham

poramboke land and except the plaintiff, no other person is in possession of

the property. The plaintiff has established the possession and accordingly,

the relief of permanent injunction was granted. At the outset, the plaintiff

would establish the fact that he constructed the thatched house and is in

possession of portion of natham poramboke land. To establish the same, he

filed the house tax receipts and the application submitted by him for grant of

patta to the competent Government authority.

4. The defendants filed an appeal suit in A.S.No.73 of 2015. The

first appellate court with reference to the issues, considered the grounds

raised in the appeal suit and formed an opinion that the plaintiff has

encroached portion of the natham poramboke land. The encroached portion

of land in S.No.214/7 is measuring 23.6 feet x 10 feet. In respect of the

other portion of the lands, the same do not belong to the plaintiff and the

patta land adjacent to the natham poramboke land belongs to the brothers of

the plaintiff. Therefore, the said patta land is no way connected with the

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natham poramboke land. The findings of the first appellate court reveal that

there is an error in the schedule mentioned in the plaint and no steps were

taken to rectify the same in the suit schedule. In respect of the Advocate

Commissioner's report, viz., Ex.C2, the plaintiff has not raised any

objection. As per the report of the Advocate Commissioner, the demolished

portion in the suit property is situated in the natham poramboke measuring

23.6 feet x 10 feet. However, in the suit schedule, the plaintiff has stated the

description of the property as “in Madurai District in Vadipatti Taluk in

Chithalangudi Village in S.No.214/7 having an extent of 37 feet on the

north south and 22 feet on the east west bounded on the North by East West

street; South by House property of Seeni konar; West of vacant house site;

and rest by House property of Vellaisamy konar”. Therefore, the grama

natham poramboke land which is the subject matter for adjudication as well

as the description in the plaint are not tallying and the first appellate court

has clearly stated that the Advocate Commissioner's report reveals that the

demolished portion of the thatched house is situated and measuring 23.6

feet x 10 feet, which is no way connected with the plaint schedule

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mentioned property of the plaintiff. There is no proof to establish that the

plaintiff is in occupation of portion of the land in S.No.214/7, north south

37 feet and east west 22 feet. The said description is not tallying with the

Advocate Commissioner's report and therefore, the plaintiff is not entitled

for the relief of permanent injunction. Even in the plaint, the description of

the property had been erroneously stated by the plaintiff and such errors

were not rectified or amended by the plaintiff both before the trial court as

well as before the first appellate court.

5. The first appellate court considered the judgment of the Madras

High Court in the case of Sakthivel & another vs. Marimuthu [2014-4-

L.W. 796] wherein, the Court said that suit property is grama natham - It

does not belong to the Government.

5.1. In the case of K.Illangovan vs. The District Collector,

Coimbatore and another [2014-1-L.W. 430], the Madras High Court held

that “lands whether are classified as natham poramboke or grama natham,

they are only meant to be classified as grama natham alone”.

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5.2. Grama natham is the residential portion of a village inhabited

by non Brahmins or land reserved as house sites etc. This proposition was

laid down in the case of Executive Officer, Kadathur Town Panchayat,

Harur Taluk Dharmapurai District vs. V.Swaminathan and others [2004

(3) CTC 270].

5.3. In the case of Krishnamurthy Gounder vs. Government of

Tamil Nadu [2002 (3) CTC 221], this Court held that admittedly when the

land has been classified as Village Natham, it is obvious that no portion of

the land vests with the respondents under Section 2 of the Land

Encroachment Act, 1905. However, the first appellate court formed an

opinion that these judgments regarding the principles may not have any

application with reference to the facts established by the plaintiff. Even the

description of the property mentioned in the plaint has been erroneously

stated. The pattta land has been included in the description and therefore,

the plaintiff is not entitled for the relief of permanent injunction.

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6. This Court is of the considered opinion that all the judgments

cited supra with reference to the classification of natham poramboke or

grama natham land are for the purpose of defining the land and to utilise the

same for the purpose to which it was kept in the village panchayats. No

doubt, natham poramboke or grama natham lands are no man's land.

Question arises, who should be the owner of no man's land. Who can claim

and who can claim right in respect of such no man's land. Property right

cannot be conferred impliedly. In certain circumstances, the Courts have

held that adverse possession can be claimed. The concept of adverse

possession has been slowly discouraged by the Courts on account of misuse

and abuse by the citizens in respect of the concept of adverse possession.

Courts are expected to be slow in granting relief merely based on adverse

possession. The other mitigating factors are also to be adjudicated.

7. As far as the natham poramboke and grama natham lands are

concerned, it may not be a Government land. However, the land belongs to

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the village concerned. Once the land belongs to the village concerned, it is

to be construed that the natham poramboke or grama natham land belongs to

the people of that village. When it belongs to the people of that village, it is

not the prerogative of the single citizen to occupy the land without the

authority of law. That is the reason why the competent authorities of the

Government making assessment with reference to the indigent and

penurious circumstances and assigning such land for residential purposes

and granting patta to the persons, who all are residing for many years.

Therefore, mere occupation of the land is not sufficient enough to confer

any right of property of a person, who is otherwise in occupation of natham

poramboke or grama natham lands.

8. Property right is no more a fundamental right under the

Constitution of India. Now property right is a statutory right and subject to

the acquisition laws, which all are in force. When the private lands can be

acquired for public purpose, question arises why the grama natham and

natham poramboke lands cannot be taken away for public purposes, more

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specifically when such land belongs to the people of that village. Therefore,

all the earlier judgments regarding the classification of the land and

definitions regarding the natham poramboke and grama natham may not

have any direct implication for the purpose of conferring property right.

The property right is to be conferred only in accordance with law. The right

of property cannot be conferred merely on the basis that a person is in

possession of grama natham or natham poramboke lands. If such a concept

is encouraged by the Courts, then every miscreant or greedy men of this

Great Nation will be tempted to occupy such grama natham or natham

poramboke lands in the village and take undue advantage of such lands by

using the mussel power or the political powers. That exactly is the

complaint of an ordinary citizen in villages. Such grama natham and

natham poramboke lands are abused on account of sudden heap in land

value. Such lands are to be protected for the public interest. No doubt, if

such lands are to be assigned by the Government in respect of the persons,

who all are residing and in penurious circumstances, then such assignment

is to be granted in accordance with the principles of the Constitution of

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India. The principles of equality and social justice being backbone of our

Constitution, distribution of such lands at free of cost must be granted

equally without causing any discrimination amongst the landless poor

people. Contrarily, it is not as if a person who is capable of encroaching

larger portion of grama natham or natham poramboke land can occupy the

land and say it is no man's land and I am in possession and therefore, the

land belongs to me. This concept is absurd and unconstitutional. All

property rights are now based on the statutes and therefore, even if the

subject land falls under the classification of 'grama natham' and 'natham

poramboke', assignment is to be properly granted by the Government so as

to ensure that such lands are utilized for the benefit of landless poor, who all

are indigent persons. Contrarily, assignment cannot be granted in a routine

manner.

9. All the judgments relating to classification are of no avail to the

plaintiff. Classification and definitions are not disputed. However, the

method of assignment and the property right to be conferred is to be decided

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by the Government, who is the authority to regulate the assignments. The

land belongs to the village. The village people of that particular village is

having a right over such property classified as natham poramboke or grama

natham. Thus, possession is to be taken in the interest of the village people

and if such lands are necessary for the purpose of public schemes, then such

public schemes are to be implemented for the welfare of the public.

Contrarily, an individual cannot be permitted to occupy such lands, which is

opposed to public policy. If such practice is permitted, then people will be

tempted to seek for a property right merely based on such possession.

Unless the possession is fair by way of proper assignment and grant of patta,

no person can claim any property right in respect of grama natham or

natham poramboke land and it is not as if any person who is capable of

encroaching can possess the natham poramboke or grama natham lands,

which is unconstitutional and affecting the common right of the village

people and in violation of the principles of equality and social justice.

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10. In the present case, even the description in the plaint regarding

the schedule of the property was not established by the plaintiff. The

plaintiff has not taken any effort to amend the description either before the

trial court or before the first appellate court. Thus, the first appellate court

formed an opinion that the plaintiff is not entitled for the relief. The

plaintiff has sought for a lesser extent.

11. This apart, the question of law framed by the appellant in the

Second Appeal reveals that all relatable to the factual disputes, which were

adjudicated both by the trial court and by the first appellate court. One

question of law reveals that whether the lower appellate court is right in

rejecting the case of the appellant when the appellant claims lesser extent of

property as compared to the extent mentioned in the plaint. Though this

may not be a substantial question of law, this Court is of the opinion that the

plaint description if it is found erroneous then the Courts cannot grant the

relief. Description in the suit schedule must tally with the documents or

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otherwise. In the event of errors, sufficient opportunities are contemplated

under the Code of Civil Procedure. If it is not done, Courts cannot grant the

relief of permanent injunction. Based on the incorrect description of

property in the plaint schedule, relief of permanent injunction cannot be

granted and therefore, the findings in this regard by the first appellate court

are in consonance with the established principles of law and there is no

perversity or infirmity as such. It is made clear that any person, who is in

unlawful possession of grama natham or natham poramboke lands, he

should be evicted by following the due process of law. In the present case,

the notice issued by the Revenue Inspector, Cholavandhan was also marked

as document before the trial court. Therefore, the authority competent is

empowered to proceed further by following the procedure as contemplated.

12. The Hon'ble Supreme Court of India in the case of

Krishnamurthy S. Setlur (D) By LRs vs. O.V.Narasimha Setty (D) By LRs

[C.A.No.6111 of 2009 dated 26.09.2019], referred the judgment of the

Larger Bench of the Hon'ble Supreme Court in the case of Ravinder Kaur

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Grewal & Ors. vs. Manjit Kaur & Ors. [C.A.No.7764 of 2014 dated

07.08.2019]. The Larger Bench had held that the plea of adverse possession

can be used both as an offence and as a defence, i.e., both as sword and as a

shield. The relevant portion of the judgment reads as follows:-

“59. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of 1 Civil Appeal No.7764 of 2014, decision dated 07.08.2019 dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By

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perfection of title on extinguishment of the owner’s title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.

60. When we consider the law of adverse possession as has developed visàvis to property dedicated to public use, courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. In Such cases, on the land reserved for public utility, it is desirable that rights should not accrue. The law of adverse possession may cause harsh consequences, hence, we are

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constrained to observe that it would be advisable that concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession.”

13. The Hon'ble Supreme Court in Krishnamurthy S. Setlur

(supra) categorically held in para 17 that “thus, there can be no manner of

dispute that a plaintiff can claim title to the property based on adverse

possession”.

14. In the present case, it is a property which is classified as

natham poramboke, which is kept for public usage. Therefore, the plea of

adverse possession or otherwise cannot be considered in public interest, as

the law of adverse possession may cause harsh consequence in respect of

village land or Government land. The Larger Bench of the Hon'ble

Supreme Court also clarified the same in para 60 as stated supra and

therefore, the case of the appellant deserves no merit consideration.

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