Madras High Court
The Block Development Officer vs Veerasamy on 22 May, 2024
Author: S.Srimathy
Bench: S.Srimathy
S.A.(MD).No.151 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 27.03.2024
Pronounced on : 22.05.2024
CORAM:
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
S.A.(MD).No.151 of 2024
and
C.M.P.(MD)No.3523 of 2024
1.The Block Development Officer,
Madhukkur,
Having Office at Panchayat Union,
Madhukkur, Pattukkottai Taluk and Munsif,
Thanjavur District.
2.State of Tamil Nadu,
represented by its District Collector,
Thanjavur,
Having Office at Collectorate,
Trichy Road, Thanjavur Town and Munsif. ... Appellants
Vs.
Veerasamy ... Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code,
against the judgment and decree dated 17.10.2022 in A.S.No.26 of 2018 on the
file of the III Additional District Judge, Pattukkottai, modifying the judgment and
decree dated 27.11.2017 made in O.S.No.26 of 2010 on the file of Subordinate
Court, Pattukkottai.
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1/10
S.A.(MD).No.151 of 2024
For Appellants : Mr.S.Jeya Priya
Government Advocate
For Respondent : Mr.A.Senthil Kumar
*****
JUDGMENT
The present second appeal is filed against the concurrent judgments passed
by Trial Court and First Appellate Court.
2.The plaintiff in the suit is the respondent here in and the defendant in the
suit are the appellants herein. For the sake of convenience the parties are referred
as per the ranking in the suit.
3.The plaintiff had filed the suit for declaration in respect of “A” schedule
property and mandatory injunction to remove the encroachment and for permanent
injunction, restraining the defendant not to lay tar road in plaintiff property. After
considering the plaint, written statement, documentary evidence and depositions
the Courts below had allowed the suit. Aggrieved over the same the defendants in
the suit had preferred this present second appeal.
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4.The brief facts as stated by the plaintiff is that the schedule property
originally belong to the plaintiff’s grandfather, namely Veeraswamy. The said
Veeraswamyhad three sons, including the plaintiff’s father
namely,AthiyappaKalingarayar. There was a partition deed executed by them on
07.02.1947 which was registered as Document No.518 of 1947. In the said
partition deed “A” schedule property was allotted to the plaintiff’s father. After his
demise, the plaintiff being the sole legal heir had become the absolute owner of
the “A” schedule property. The “B” schedule property is the pathway passing
through parts of lands in R.S.No.123A/16, 123A/13, 123A/14B/2 as described in
the plaint “A” schedule property. The “C” schedule is another small portion of the
property in which a road has been formed unauthorisedly. The “B” schedule
property lies in between Panchayat Road on the southern side and patta land of
the plaintiff.
5.The contention of the defendants are that 50 years ago, the plaintiff’s
father had granted oral consent for laying road in the “C” schedule property.
Based on the oral consent,the villagers are using the road as their pathway.
Moreover, the road was expanded under NamakkuNaame scheme. Therefore, the
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plaintiff cannot pray for removing the said road. Further, the defendant submitted
that the plaintiff had accepted and signed the resolution passed by the village to
lay road in the schedule of properties. Therefore, the plaintiff cannot go against
the said acceptance and the resolution of the village. Since the road is in usage for
the past 50 years, the plaintiff has lost his right over the said land. Therefore, the
defendant prayed to allow the second appeal and dismiss the suit.
6.After scrutinising the plaint, written statement and the evidences put forth
by the parties, the Trial Court has allowed the suit declaring that the land belongs
to the plaintiff and also granted injunction against the defendants. Aggrieved over
the same,the defendants had preferred first appeal and the same was dismissed,
confirming the judgment of the Trial Court. Aggrieved over the same, the present
second appeal is preferred.
7.The defendants raised the following Substantial Questions of Law:
“1. When the subject suit properties admittedly are already used as
pathway by the public / local villagers for more than 50 years, can it be
termed as encroachment and that to when such usage had not been
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objected to by the plaintiff or his predecessors in title?
2. Whether both the courts are right in granting reliefs to the plaintiff,
when the plaintiff has accepted and signed the resolution passed by the
village to lay road in the schedule properties?
3. Whether both the courts have accepted that already there was road, can
the courts decree the suit against the defendants?
4. Whether both the courts are right in disbelieving the revenue records as
well as Commissioner report marked as Ex.C2 and Ex.C3, when the same
shows that there was existing road in the schedule properties?”
8.The contention of the defendants / appellants herein is that since the
general public and the villagers are using the said pathway for the past 50 years as
road, the same cannot be termed as encroachment. Moreover, the plaintiff had
accepted and signed the resolution passed by the villages to lay road in the
schedule of properties, hence, the plaintiff cannot go against the resolution passed
by the villagers.These two contentions cannot be accepted since the
defendantshave accepted that the said land belongs to the plaintiff and the plaintiff
is having patta in his name. In such circumstances, long usage as a pathway in a
patta land will not give right to the defendants to claim the plaintiff’s land. If at
all, the defendants are having any intention to lay road, then the defendants are
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having every right to acquire the land and lay road. Without doing so,
straightaway claiming right over the plaintiff's land is illegal. The contention that
the plaintiffhad accepted to lay road and the villagers have passed resolution
cannot be a ground to take the plaintiff’s land. Acceptance ought to be in written.
The defendants have not produced any such document to substantiate the
acceptance of the plaintiff. If any land is developed as plots, the roads ought to be
gifted to the local body. In the present case, no such gift was executed by the
plaintiff in favour of the defendants and under such circumstances, the claim of
the defendants cannot be accepted. Under the guise that the villagers are using the
land as pathway and the villagers have passed a resolution to lay road, cannot be a
ground to entertain the defendants' plea. Therefore, 1st and 2nd substantial
questions of law are answered against the defendants.
9.It is an admitted fact that the land belongs to the plaintiff and there is a
pathway. But without acquiring and without compensating the plaintiff, the
defendants cannot lay road in the plaintiff’s patta land. The defendants are not
having any right to claim the plaintiff's land, under the guise of the pathway which
was converted as a road and the public is using the said road. Any amount of
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Commissioner’s report will not help the defendants to claim the plaintiff's
land.Even though the revenue records shows that the same is used as pathway, the
fact remains that the pathway is in plaintiff'spatta land. The other two substantial
questions of law are questions of fact and they cannot be termed as questions of
law, much less those cannot be termed as substantial questions of law at all.
Therefore, 3rd and 4th substantial questions of law are also answered against the
defendants.
10.The further contention of the learned Government Advocate appearing
for appellants herein is that the pathway was converted as a road and tar road was
laid and the public is using the road. Further, theroad is laid from Madhukur to
Pattukkottai, which is the main road. The said fact cannot be a ground to grant any
relief to the defendants.
11.The learnedGovernment Advocate appearing for appellants herein
further submitted that the findings of the Courts below that thereare Government
poramboku lands and the same can be used for laying road is incorrect. To some
extent, Government poramboku lands are available, but for the remaining portion,
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Governmentporamboku lands are not available. After hearing this submission,
this Court is the considered opinion if land is not available, the only option
available to the defendants is to acquire the land of the plaintiff. Without
acquiring the land, the defendants cannot claim any right over the property.
Therefore, both the Courts have rightly held that the property belongs to the
plaintiff and have granted declaration and injunction against the defendants.
12.For the reasons stated supra, the judgments of both the Trial Court and
the First Appellate Court are confirmed. Therefore, the second appeal is
dismissed. No costs. Consequently, connected miscellaneous petition is closed.
22.05.2024
Index : Yes / No
NCC : Yes / No
Tmg
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TO:
1. III Additional District Judge, Pattukkottai.
2. Subordinate Court, Pattukkottai.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.SRIMATHY, J.
Tmg
Judgment made in
Dated:
22.05.2024
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