The Junior Engineer vs V.S.Arumugam
2024 Latest Caselaw 20926 Mad

Madras High Court

The Junior Engineer vs V.S.Arumugam on 4 November, 2024

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 04.11.2024

                                                     CORAM:

                                  THE HONOURABLE MS.JUSTICE R.N.MANJULA

                                               S.A.No.1597 of 2011

                     1.The Junior Engineer,
                       Public Works Department,
                       WRO., R.C. Sec.No.1,
                       Karur.

                     2.The Assistant Divisional Engineer,
                       Public Works Department,
                       WRO., R.C. Section,
                       Kulithalai,
                       Trichy District.

                     3.The Divisional Engineer,
                       Public Works Department,
                       WRO., R.C.Section,
                       Trichy.
                                                                     ... Appellants / Defendants
                                                    Vs.

                     V.S.Arumugam
                                                                     ... Respondent / Plaintiff

                     Prayer: Second Appeal is filed under Section 100 of the Code of Civil
                     Procedure, to set aside the judgment and decree dated 24.08.2005 made in
                     A.S.No.6 of 2005 on the file of the First Additional Subordinate Judge,




                     1/12

https://www.mhc.tn.gov.in/judis
                     Erode in so far as reversing the judgment and decree dated 10.12.2004 made
                     in O.S.No.39 of 2002 on the file of the District Munsif Court, Kodumudi.

                                        For Appellants     : Dr.S.Suriya, AGP

                                        For Respondent     : Mr.N.Umapathi

                                                          JUDGMENT

This Second Appeal has been filed to set aside the judgment and

decree dated 24.08.2005 made in A.S.No.6 of 2005 on the file of the First

Additional Subordinate Judge, Erode in so far as reversing the judgment and

decree dated 10.12.2004 made in O.S.No.39 of 2002 on the file of the

District Munsif Court, Kodumudi.

2. Heard Dr.S.Suriya, learned Additional Government Pleader for the

appellants and Mr.N.Umapathi, learned counsel for the respondent and

perused the materials available on record.

3. The brief facts of the plaint runs as under:

The suit property is a poromboke land situated at S.F.No.671 of

Kodumudi Village. The plaintiff was in possession and enjoyment of the

suit property as a tenant, measuring 16 feet on the south, 35 1/2 feet on the

https://www.mhc.tn.gov.in/judis north south on the east 70 feet east west on the north and 17 1/2 feet on the

north south on the west which is marked as 'ABCDEF' in the plaint plan.

The property situated at the north of central water board office was occupied

by the plaintiff and he put up a bunk shop initially. Thereafter, the plaintiff

leveled the uneven vacant sites situated on the south of Pillayar Koil and the

vacant site situated on the south of bunk shop upto A.G. portion, the

plaintiff erected a tea shop and on the west of the bunk shop, he put up a

thatched shed for residential purpose and a front yard to be cattles, store

manure etc. Hence, the entire suit property has been enjoyed by the plaintiff

as a tenant by paying the lease amount to the defendants every year. The

electricity connection has been given to the said property to the plaintiff.

The plaintiff was paying licence fees to the Kodumudi Town Panchayat for

having the tea shop. He has been paying the lease amount also regularly.

3.1. On 13.05.2002, the first defendant came to the suit property and

demanded the plaintiff to vacate the premises on or before 30.06.2002.

Since the defendants tried to vacate the plaintiff illegally, the plaintiff has

filed the suit for seeking the relief of permanent injunction against the

https://www.mhc.tn.gov.in/judis defendants and to protect his peaceful possession and enjoyment in the suit

property.

4. The averments made in the written statement filed by the

defendants are as under:

It is false to state that the plaintiff was in enjoyment of the suit

property for more than 35 years. The plaintiff has trespassed the property.

The plaintiff should have applied for a license for temporary enjoyment

before the competent authority. The plaintiff cannot consider himself as a

tenant and there is no subsisting lease in his favour. The license was

actually granted to one R.Murugavel, for an extent of 10' x 10' feet (100

Sq.ft) in the year 1986 to 1987. The plaintiff has encroached the land

adjacent to the office of the Central Water Commission. The Executive

Engineer has requested the plaintiff to vacate the land, but the plaintiff did

not heed to his request. As the plaintiff was creating nuisance to the general

public, they have also started to make complaint against the plaintiff to the

defendants. The plaintiff cannot occupy the public property and claim that

he has got legal right or possession over the same.

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

5. On the basis of the above pleadings, the Trial Court has framed the

following issues:

“1.thjp nfl;Ls;sthW epue;ju cWj;Jf;fl;lis bgw mUfij bgw;wtuh>

2.thjpf;F tHf;fpy; fpilf;fj;jf;f ,ju ghpfhu';fs;

ahJ>

TLjy; vGtpdhf;fs;; „-

1.thjp tHf;fpil brhj;jpy; Fj;jifjhuh; vd;fpw Kiwapy; mDgtj;jpy; cs;shuh> my;yJ chpkjhuh; vd;fpw Kiwapy; mDgtj;jpy; ,Uf;fpwhuh>

2.tHf;F\yk; cz;ikah>

3.jpUj;jg;gl;l epy Mf;fpukpg;g[r; rl;lk; gphpt[ 14d; fhuzkhf ,t;tHf;F epiyf;fj;jf;fjh>”

6. After recording the finding on the basis of the materials and

evidence available on record, the Trial Court has dismissed the suit.

However, the First Appellate Court has reversed the order passed by the

Trial Court and now, the defendants have filed this Second Appeal

challenging the reversal judgment of the First Appellate Court by raising the

following substantial question of law:

https://www.mhc.tn.gov.in/judis "1.Is not suit filed by the respondent barred under Section 14 of the Tamil Nadu Land Encroachment Act?

2. Is not the suit filed by the respondent bad for non joinder of necessary parties viz., the Government of Tamil Nadu through its District Collector, Erode?

3.Is the respondent entitled to the statutory notice contemplate under Section 106 of the Transfer of Property Act?"

7. But the substantial question of law No.3 will not arise because the

appellants' arguments itself is that the plaintiff is not a lease holder. In such

case, there is no question of statutory notice under Section 106 of the

Transfer of Property Act, will arise. So, the substantial question of law is

limited and reframed to 1 and 2.

8. The learned Additional Government Pleader for the appellants

submitted that despite the Trial Court has framed the issue as to whether the

suit is barred in view of Section 14 of the Tamil Nadu Land Encroachment

Act and rendered a finding against the plaintiff, the First Appellate Court

has misdirected itself and has made an observation that Section 14 of the

Tamil Nadu Land Encroachment Act is not applicable to the case of the

https://www.mhc.tn.gov.in/judis plaintiff and the plaintiff is ought to have been given with notice under

Section 106 of the Transfer of Property Act, as he is the lease holder of the

suit property.

9. The learned counsel for the plaintiff / respondent submitted that the

First Appellate Court is right in reversing the judgment of the Trial Court by

considering the plaintiff's long and unobstructed enjoyment of the suit

property.

10. According to the plaintiff, he claims himself as a person in

occupation in the suit property for more than 35 years. Even if the plaintiff

claims himself as a lease holder, he ought to have purchased the lease

agreement to substantiate his claim, but the same has not been produced as

document before the Courts. The Trial Court has rightly observed that the

plaintiff has not established that he is the lease holder by producing any

documents to that effect. If the plaintiff claims any lease hold right over the

suit property, he ought to have impleaded the Government of Tamil Nadu

who is the owner of the poromboke lands.

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

11. The respondent has produced Ex.A1 series and claimed that they are

the receipts given to him for having paid the lease amount to the suit

property. But the Trial Court has made an observation stating that in the

receipts, it has been stated only as term rent. Hence, they cannot be

considered as the receipts issued for paying the lease amount to the

defendants and further, the defendants cannot give any lease hold right to

any third party in respect of the lands belonging to the Government without

getting authentication from the Government.

12. Even in the oral evidence of the plaintiff, he has admitted that there

is no lease agreement in his favour and that he has paid only the license

amount. Even before the plaintiff, the license in respect of the suit property

has been given to one R.Murugavel. Once the license is cancelled and the

licensee continues to be in possession of the property subsequent to the

cancellation of license, he will be deemed to be an illegal occupant over the

suit property. The nature of the occupation of the illegal occupant is nothing

but encroachment. Instead of vacating the property and handing over the

https://www.mhc.tn.gov.in/judis possession subsequent to the revocation of license in the name of the

R.Murugavel, the plaintiff cannot claim any right over the suit property.

13. As the plaintiff is an illegal occupant of the suit property, his

possession has not been safeguarded by granting an order of permanent

injunction. Any action taken by the Government officials to vacate the

persons in an illegal occupation by encroachment shall not be challenged

before the civil courts. Even the Civil Court has not taken the suit itself on

file in view of the bar under Section 14 of the of the Tamil Nadu Land

Encroachment Act. Even the Trial Court has rightly understood the position

of law and dismissed the suit. But the First Appellate Court has misdirected

himself as Section 14 is not applicable to the case of the plaintiff and thus,

he is entitled to notice under Section 106 of the Transfer of Property Act.

Since the observation of the First Appellate Court has been made without

understanding the law applicable to the case and the nature of the

possession of the plaintiff, the judgment of the First Appellate Court is

perverse and unsustainable in law and it is liable to be set aside.

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

14. In the result, this Second Appeal is allowed and the judgment and

decree of the First Appellate Court dated 24.08.2005 made in A.S.No.6 of

2005 on the file of the First Additional Subordinate Judge, Erode, is set

aside. No costs.

                                                                                     04.11.2024


                     Speaking order / Non-speaking order
                     Index             : Yes / No
                     Neutral Citation : Yes / No

                     gsk






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

                     1.The First Additional Subordinate Judge,
                       Erode.

                     2.The District Munsif Court, Kodumudi.






https://www.mhc.tn.gov.in/judis
                                  R.N.MANJULA, J.

                                                 gsk









                                           04.11.2024






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