Madras High Court
Subbammal (Died) vs Srivilliputtur Municipality on 12 June, 2025
Author: P.Velmurugan
Bench: P.Velmurugan
S.A.Nos.1504 and 1518 of 1998
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 12.06.2025
Coram:
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
S.A.Nos.1504 and 1518 of 1998
---
1. Subbammal (died)
2. Subburam .. Appellants in both the Second Appeals
Vs.
1. Srivilliputtur Municipality, through
its Commissioner
2. R.Sethurama Chettiar
3. P.Rajeswari (died)
4. Dhanalakshmi
5. Thangavelu
(Respondents 4 and 5 are brought on record as
LRs. of the deceased first appellant and second
appellant is recorded as LRs of the deceased first
appellant, vide order dated 08.02.2013 made in
M.P.(MD).Nos.2 to 5 in S.A.Nos.1504 and 1518
of 1998)
6. V.Shanthi
7. S.Sambath
8. S.Chitra
9. S.Babu
10. M.Umarani
Page No.1/29
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S.A.Nos.1504 and 1518 of 1998
(Respondents 6 to 10 are brought on record as
LRs. of the deceased 2nd respondent,
vide Court order dated 15.11.2021 made in
M.P.(MD).Nos.1 to 3 of 2015
in S.A.Nos.1504 of 1998 and 1518 of 1998)
11. Suresh Kumar
12. Thirupathi @ Ramesh
13. Suguna
(Respondents 11 to 13 are brought on record
as LRs. of the deceased third respondent,
vide Order of Court, dated 12.04.2023
made in C.M.P.(MD).Nos.101, 104 and 107
of 2023 in S.A.No.1504 of 1998 and 1518 of 1998)
.. Respondents in both the Second Appeals
Second Appeal No.1504 of 1998 filed under Section 100 of the Civil
Procedure Code, against the judgment and decree dated 30.09.1996 A.S.No.340
of 1994 on the file of the Principal District Court, Kamarajar District @
Srivilliputtur, reversing the judgment and decree dated 03.03.1994 in O.S.No.442
of 1992 on the file of the Additional District Munsif Court, Srivilliputtur.
Second Appeal No.1518 of 1998 filed under Section 100 of the Civil
Procedure Code, against the judgment and decree dated 30.09.1996 A.S.No.209
of 1994 on the file of the Principal District Court, Kamarajar District @
Srivilliputtur, reversing the judgment and decree dated 03.03.1994 in O.S.No.442
of 1992 on the file of the Additional District Munsif Court, Srivilliputtur.
For appellant in both the appeals : Mr.D.Nallathambi
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S.A.Nos.1504 and 1518 of 1998
For respondents in both the appeals : Mr.J.Parekh Kumar
COMMON JUDGMENT
Second Appeal No.1504 of 1998 filed under Section 100 of the Civil
Procedure Code, against the judgment and decree dated 30.09.1996 in A.S.No.
340 of 1994 on the file of the Principal District Court, Kamarajar District @
Srivilliputtur, reversing the judgment and decree dated 03.03.1994 in O.S.No.442
of 1992 on the file of the Additional District Munsif Court, Srivilliputtur.
2. Second Appeal No.1518 of 1998 filed under Section 100 of the Civil
Procedure Code, against the judgment and decree dated 30.09.1996 in A.S.No.
209 of 1994 on the file of the Principal District Court, Kamarajar District @
Srivilliputtur, reversing the judgment and decree dated 03.03.1994 in O.S.No.442
of 1992 on the file of the Additional District Munsif Court, Srivilliputtur.
3. The suit in O.S.No.442 of 1992 was filed for declaration and permanent
injunction, stating as follows:
The suit properties mentioned in the schedules 1 and 2 originally belonged
to the sons of Venkataraman Chettiar, Perumal Chettiar and Sangu Chettiar.
They had constructed houses in the first schedule of property and used the
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second schedule of property as common lane for themselves. Venkataraman
Chettiar's sons - Perumal Chettiar, Anganan Chettiar, Krishnan Chettiar and
others executed a document of release, dated 22.06.1921, wherein it has been
specifically stated that the suit second schedule is a common pathway. In the
suit second schedule, only the dependants of Perumal Chettiar and Sangu
Chettiar had right and none else had any right. Nachiyammal purchased Door
No.59 in the first schedule of property from Sangu Chettiar and others and used
the second schedule of property as a pathway. The first plaintiff purchased the
above suit item from Nachiyammal under a registered sale deed, dated
09.11.1953. The house bearing Door No.60 constructed in the first schedule of
property, was purchased by the first plaintiff from Pandiaraj, being one of the
legal heirs of Sangu Chettiar and others, along with the pathway in the second
schedule, under registered sale deed, dated 09.07.1953. Ever since the date of
purchase, the first plaintiff is enjoying the properties comprised in Door Nos.59
and 60 along with the common pathway in the second schedule of property,
along with the owners of the houses bearing Door Nos.61 and 62. The second
plaintiff purchased a house bearing Door No.62 along with the common pathway
in the second schedule of property from Kalimuthu Chettiar. The house bearing
Door No.61 comprised in the first schedule along with the common pathway in
the second schedule, were purchased by the second plaintiff from Muthusamy,
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under registered sale deed, dated 26.04.1985. The second plaintiff is the owner
of the properties bearing Door Nos.61 and 62, comprised in the first schedule,
along with the common pathway in the second schedule ever since the date of
purchase. The second plaintiff's wife released her right in Door No.62 by means
of a registered release deed, dated 30.11.1987. The caves of the ceilings of Door
Nos.59, 60, 61 and 62 are protruding towards the second schedule property. The
owners of Door Nos.59, 60, 61 and 62 are enjoying the second schedule of
property as a common pathway and are maintaining the second schedule of
property also. Further, a Well was put up on the Eastern boundary of the
second schedule of property. The defendants, at no point of time, objected for
laying cement platform in the second schedule of property. In order to have
asbestos ceiling, the old wall was removed and four pillars were raised in the
second schedule of property. At that time, the defendants 2 and 3, with false
allegations, claiming right over the common pathway, filed a suit in O.S.No.312
of 1991 and obtained temporary injunction also. The defendants 1 and 2 claimed
that the second schedule of property was a public pathway. The Municipality
issued notice, dated 16.09.1991 to the second plaintiff directing him to remove
the cement pillar and for which, a reply was also sent. A final notice was issued
by the Municipality directing the second plaintiff to remove the same within 3
days. Without verifying the fact, the Municipality removed the cement pillars
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S.A.Nos.1504 and 1518 of 1998
and also the asbestos sheet. The first defendant/Municipality has no right to
remove the structures built on the properties of the plaintiffs. They exceeded
their limits. The plaintiffs spent Rs.700/- to put up the above superstructures.
Therefore, the first defendant is bound to pay Rs.1150/- as damages. Therefore,
according to the plaintiffs, it has to be declared that the plaintiffs alone are
entitled to the second schedule property and the defendants should be
restrained by an order of permanent injunction from interfering with the rights of
the plaintiffs and the first defendant should be directed to pay compensation of
Rs.1150/-.
4. The defendants 1 to 3 resisted the suit by filing written statement,
stating as follows:
It is false to state that the second schedule of property belonged to
Perumal Chettiar and others, that they conveyed the properties in favour of the
plaintiffs and that the plaintiffs are entitled to the second schedule of property.
The plaintiffs cannot have any title over the second schedule of property. The
release deed dated 22.06.1921 will not bind the defendants 1 to 3. The sale
deed in favour of the plaintiffs, are not binding on the defendants 1 to 3. The
vendors of the plaintiffs have no right in or over the second schedule of property.
The plaintiffs' vendors never made any construction in the second schedule of
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S.A.Nos.1504 and 1518 of 1998
property. They used the second schedule of property as a common pathway,
since it is a Street vested with the defendants 1 to 3. When the plaintiffs began
to construct permanent structure in the second schedule of property, the
defendants 2 and 3 objected and filed a suit in O.S.No.312 of 1991. The second
schedule of property has been classified as a Street poramboke and the
defendants 1 to 3 are maintaining the second schedule of property. The
defendants 1 to 3, after giving notice, removed all the encroachments in the
second schedule of property on 19.11.1990. The defendants 1 to 3 have got
every right to remove the encroachments. The plaintiffs have not exhausted the
remedies available to them under the Tamil Nadu District Municipalities Act. The
suit is not maintainable. The plaintiffs have not issued statutory notice before
filing this suit.
5. The defendants 2 and 3 resisted the suit alleging that they have filed a
suit in O.S.No.312 of 1991, that the width of the second schedule of property
had not been given properly, that the plaintiffs and the defendants 2 and 3 and
also the people residing on the West of the property, are using the second
schedule of property as a pathway and the defendants are getting light and air
from the second schedule of property and that they are using the second
schedule of property to repair their Southern wall and that the defendants 2 and
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3 are also entitled to the property. Further, the defendants 2 and 3, Sethuraman
Chettiar and Rajeswari filed a suit in O.S.No.312 of 1991 for declaration that the
second schedule of property is a common pathway belonging to them and
Subbammal and Subburam and that the said Subbamal and Subburam should be
restrained by an order of injunction restraining them from interfering with their
use of the common pathway.
6. From the above pleadings, the following issues were framed:
(i) Whether the plaintiffs are entitled to the relief of declaration and
permanent injunction?
(ii) Whether the plaintiffs are entitled to the relief of compensation?
(iii) Whether the plaintiffs have no right in the second item of the suit
property?
(iv) Whether the second item of the suit property is classified as street
poramboke?
(v) Whether there is no cause of action for the suit, and whether the suit
is bad for non-joinder of necessary parties?
(vi) What other reliefs, if any, are the plaintiffs entitled to?
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7. The second and third respondents herein filed a suit in O.S.No.319 of
1991 against the appellants, seeking a declaration that the third item of the suit
property is a common pathway, a permanent injunction restraining the
defendants therein from interfering with their peaceful possession and
enjoyment, a mandatory injunction directing the removal of the construction
made on the third item of the property, and costs of the suit. The said suit was
dismissed by the trial court on 04.04.1992. However, the second and third
respondents, who were the plaintiffs in that suit, did not challenge the dismissal.
Therefore, the judgment in O.S.No.319 of 1991 is not the subject matter of
these second appeals, and the pleadings in that suit have not been extracted
herein. Since both the suits arise out of the same property one party claiming
exclusive rights in O.S.No.442 of 1992 and the other claiming it to be a common
pathway in O.S.No. 302 of 1991 and the parties are the same, a joint trial was
ordered.
8. Before the trial Court, on the side of the plaintiffs, two witnesses were
examined as P.W.1 and P.W.2, and 15 documents were marked as Exhibits A1 to
A15. On the side of the defendants, two witnesses were examined as D.W.1 and
D.W.2, and five documents were marked as Exhibits B1 to B5. In addition, four
documents were marked as Exhibits C1 to C4.
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S.A.Nos.1504 and 1518 of 1998
9. The trial Court, after hearing the arguments on either side, decreed the
suit in O.S.No.442 of 1992 and dismissed the suit filed by the second and third
respondents herein in O.S.No.312 of 1991. Challenging the judgment and decree
passed by the trial Court in O.S.No.442 of 1992, the first respondent–Municipality
filed an appeal in A.S.No.340 of 1994, and the second and third respondents
herein filed an appeal in A.S.No.209 of 1994, on the file of the Principal District
Judge, Kamarajar District, Srivilliputhur. The first appellate Court, after hearing
both the appeals together, passed a common judgment, allowed both the
appeals, and set aside the judgment and decree passed by the trial Court in
O.S.No.442 of 1992. However, the plaintiffs in O.S.No.312 of 1991 did not file
any appeal challenging the dismissal of their suit. The first appellate Court, after
hearing both appeals together, allowed A.S.Nos.209 and 340 of 1994 and set
aside the judgment and decree passed by the trial Court. Challenging the said
common judgment and decrees passed by the first appellate Court, the plaintiffs
in O.S.No.442 of 1992 have filed the present second appeals.
10. While admitting the second appeals on 12.10.1998, this Court has
formulated the following substantial questions of law:
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(a) Whether the lower appellate Court is right in dismissing
the suit as not maintainable under Sections 350(1) and (2) of the
Tamil Nadu District Municipalaities Act, when no specific plea based
on the Sections was raised before the trial Court, and
(b) Has not the lower appellate Court committed grave
illegality in dismissing the suit as not maintainable under Sections
350(1) and (2) of the Tamil Nadu District Municipalities Act, when
such plea was waived before the trial Court ?
(i) Whether the lower appellate Court was right in dismissing
the suit in O.S.No.442 of 1992 as not maintainable under Section
350(1) and (2) of the Tamil Nadu District Municipalities Act, when
no specific plea was raised on this point before the trial Court ?
(ii) Whether the lower appellate Court committed an error in
not framing proper points for consideration, which is mandatory
under Order 41 Rule 31 of CPC ?
(iii) Whether the lower appellate Court misread the evidence
and failed to consider the materials on record in negativing the
reliefs of declaration, permanent injunction and damages as prayed
in the suit in O.S.No.442 of 1992 ? and
(iv) Whether the lower appellate Court committed an error in
allowing the appeal in A.S.No.209 of 1994, when they have not
challenged the dismissal of the suit in O.S.No.312 of 1991 ?
11. The learned counsel appearing for the appellants/plaintiffs contended
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that the lower appellate Court failed to properly frame the relevant points for
consideration that arises in the Second Appeals. The lower appellate Court is not
right in holding that the suit is not maintainable under Section 350(1) and (2) of
the Tamil Nadu District Municipalities Act. The lower appellate Court failed to see
that the plea based on Section 350(1) and (2) of the Tamil Nadu District
Municipalities Act, as to the maintainability of the suit, was not specifically raised
in the manner known to law and the same is deemed to have been waived and
cannot be allowed to be raised for the first time in the present Second Appeal
stage. The trial Court carefully considered the oral and documentary evidence
available in these Second Appeals and no exception can be taken to the same.
The lower appellate Court is not right in setting aside the well considered
findings rendered by the trial Court and also is not right in holding that the
marking in blue colour pencil in Ex.A-8 is a subsequent addition and there is no
basis to arrive at such conclusion. The lower appellate Court ought to have
dismissed the appeal suits on the ground of res-judicata, since the present suits
filed by the respondents 1 and 2 in O.S.No.312 of 1991 was tried together, and
common judgment was delivered and as against the dismissal of the suit filed by
the respondents 1 and 2, no appeal was filed. Further, the recitals in Exs.A-2 and
A-3 were not properly adverted to and appreciated by the lower appellate Court.
The lower appellate Court is not right in holding that the suit property in T.S.No.
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301 is a public pathway. The lower appellate Court is also not right in holding
that the suit property is a public pathway, since a separate survey number was
assigned and it was not clubbed with the survey numbers of the appellants
herein. The reasons given by the trial Court for rejecting the oral and
documentary evidence adduced on behalf of the defendants, was failed to be
adverted to and appreciated by the lower appellate Court. The trial Court had
elaborately considered the evidence and the Commissioner's reports and plan.
The lower appellate Court failed to advert to and appreciate the same. The non-
consideration of the above vital piece of evidence, vitiates the judgment of the
lower appellate Court. Ex.A-8 will prove that the suit property belong to the
appellants/plaintiffs. Non-appreciation of the oral evidence, especially of D.Ws.1
and 2 by the lower appellate Court, is not justified.
12. The learned counsel appearing for the first respondent submitted that
the appellants have not proved that the suit second item of the property is the
exclusive property of the appellants, nor that their predecessors were enjoying
the said property exclusively. Further, he submitted that as per Ex.B1, the patta
of the disputed property in S.No.301 is a street poramboke and described as a
common pathway. Even Ex.B2 field map shows that the said disputed property in
T.S.No.301 is shown only as a street, which is under the control of the first
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respondent, and the appellants do not have any exclusive right over the disputed
pathway in T.S.No.301. Further, even Ex.A8 approved plan itself shows that the
approved plan excludes the common pathway in T.S.No.301. The appellants
have not produced any documents to show that even their sale deed includes the
suit common pathway. Even the boundaries shown in their title deed show the
northern boundary as separate and not as T.S.No.300. The appellants' properties
are 302, 303, and 304; the disputed property falls in T.S.No.301 and north to
T.S.No.301, T.S.No.300 belongs to respondents 2 and 3. The appellants' title
deed northern boundary shows only a common pathway, and if at all T.S.No.301
were property of the appellants, it would also be covered under their sale deed
and the northern boundaries ought to have been mentioned as T.S.No.300.
However, in the documents filed by the appellants, the northern boundary is
shown as T.S.No.301, which is a common pathway and a street poramboke.
Therefore, the appellants have not established their title and exclusive
possession and enjoyment in T.S.No.301.
13. The learned counsel would further submit that upon the appellants
encroaching T.S.No.301 and putting up construction, the first respondent
immediately sent a notice for removal of encroachment under Ex.A13 dated
01.11.1991. Since the appellants did not remove the encroachments, the first
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respondent removed the said encroachment. The suit ought to have been filed
within two months from the date of cause of action; however, the suit was filed
beyond the period of limitation. Further, the suit is barred under Section 350 of
the Tamil Nadu Municipalities Act, 1920. Before filing the suit, the appellants
were required to issue a notice and wait for one month after the notice was
delivered or left at the municipal office; only after that could the suit be filed.
Admittedly, the appellants did not issue any such notice, which is mandatory.
The said mandatory provision has not been complied with and the suit itself is
not maintainable. Further, the plaintiffs have not stated in their plaint that they
complied with the mandatory provisions under Section 350 of the Tamil Nadu
Municipalities Act, 1920. Though the respondents did not take this plea before
the trial Court, they took the said grounds before the first appellate court. The
first appellate court rightly appreciated the same, accepted the grounds taken by
the respondents therein. The learned counsel would further point out that it is
only a question of law, and it is a settled proposition of law that questions of law
need not be challenged in the pleadings and can be raised at any stage, even
before the second appeal or at any stage of the proceedings. Further, it is settled
that facts must be pleaded and substantiated through oral and documentary
evidence, whereas questions of law need not be pleaded since they can be
raised at any stage of the proceedings, including appellate proceedings. Though
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the respondents did not plead maintainability under the statutory provisions
before the trial Court, they rightly raised the ground at the appellate stage. The
first appellate court considered the entire oral and documentary evidence
produced by both parties, reappreciated the evidence, considered the questions
of law raised by the appellants and respondents, and rightly allowed the first
appeal. There is no merit in the second appeals, which are liable to be dismissed.
14. Adopting the submissions of the learned counsel for the first
respondent, the learned counsel appearing for respondents 2 and 3 submits that
since the respondents 2 and 3 have not challenged the judgment and decree
passed in O.S.No.312 of 1991, they cannot contend that these respondents are
not entitled to use the public street, and the specific case of the first respondent
is that T.S.No.301 is a street poramboke used as a common lane, which
everyone is entitled to use without causing damage to the adjacent owners; once
the revenue record shows that it is a public street, the appellants are not entitled
to any exclusive claim or right over the said property, and although the trial
Court miserably failed to appreciate the oral and documentary evidence, the first
appellate court, as a fact-finding court, reappreciated the oral and documentary
evidence, rightly set aside the judgment and decree passed by the trial Court,
and held that the appellants are not entitled to relief; hence, the second appeals
deserve to be dismissed.
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15. Heard the learned counsel on either side and perused the materials
available on record.
16. The specific case of the appellants is that the disputed property,
shown as the second item in T.S.No.301, is their exclusive property, and they are
entitled to use the said land at their own convenience. Except for the appellants,
no other parties, much less the first respondent, are entitled to claim any right or
possession over the property. The second and third respondents are not entitled
to use the said item in T.S.No.301 as a common pathway or for any other
purpose. It is further their case that the second and third respondents also filed
O.S.No.301 of 1992, which was dismissed, and therefore they have no locus
standi to defend the present second appeals.
17. The specific case of the first respondent is that the second item of the
suit schedule property is classified as a street poramboke, shown as a common
pathway. Even while granting approval to the appellants for construction,
approval was given only for T.S.No.304 and not for T.S.No.301. Moreover, the
appellants’ title deed does not show that they purchased T.S.No.301 from their
predecessor in title. None of the documents produced by the appellants establish
that T.S.No.301 was their exclusive property. Since it is a street poramboke, the
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first respondent and respondents 2 and 3 are entitled to use and enjoy the said
property as common pathway users, but the appellants have no exclusive right,
enjoyment, or possession over it. The municipal records also show that it is a
common pathway situated within the street poramboke and is not patta land
belonging to the appellants.
18. Respondents 2 and 3 also claim that the second item of the suit
property is classified as street poramboke. Since the appellants encroached upon
the land and constructed on it, the first respondent rightly issued a notice for
removal of the encroachment. When the appellants failed to comply with the
order, the first respondent lawfully removed the encroachment. The appellants,
without following the mandatory provisions, filed the suit. Furthermore, the suit
is only against the Municipality, and the appellants have impleaded respondents
2 and 3, who had filed a separate suit in O.S.No.312 of 1991 claiming the land as
a common pathway, without asserting any exclusive right or access. Since the
first respondent claims the suit pathway as a common way and not under the
exclusive possession of the appellants, there was no necessity to file an appeal
against the dismissal of the decree in O.S.No.312 of 1991. On that ground alone,
these respondents cannot be prevented from taking a stand in the present
appeals. The appellants have only named these respondents in the appeals filed
by them, and therefore, they are necessarily entitled to defend the case.
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19. Admittedly, the disputed property in T.S.No.301 has been shown as
the second item of the suit properties. The appellants themselves have shown in
the plaint schedule that T.S.Nos.302, 303, and 304 belong to them, and there is
a building in Door Nos.59, 60, 61, and 62 on those properties. Even in the
northern boundary, the second item of the suit property is shown. The southern
boundary is T.S.No.305, the eastern boundary is Aathukadai Street, and the
western boundary is common land. Further, in the Land Survey Register, the suit
property has been mentioned as common pathway. Further, in the Field Map in
Ex.B2, it could be seen that in respect of T.S.No.301, separately, a line has been
shown for the pathway. If the contention of the appellants is accepted that suit
second scheduled suit property belonged to them, the second item would also be
covered in their sale deed. Further, in the title deed of the appellants, it is
shown that the northern boundary of the first item is T.S.No.301, and therefore,
T.S.No.301 is not covered under their sale deed. The appellants have not
produced any documents to show that T.S.No.301 is their exclusive property of
the appellants.
20. When the appellants filed the suit for declaration that the second item
of the property is their exclusive possession and enjoyment, it was incumbent
upon them to prove their case on their own strength through pleadings, oral, and
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documentary evidence. They cannot rely on the weakness of the defendants to
succeed. A careful reading of the plaint averments, as well as the oral and
documentary evidence adduced on behalf of the appellants, shows that there is
no iota of evidence establishing that the second item of the suit property is the
exclusive property of the appellants. On the other hand, the evidence both oral
and documentary produced by the respondents, particularly the first respondent,
and even the appellants’ own documents (Exs. A8, A13) clearly indicate that the
first respondent only removed encroachments on the disputed second item of
schedule of property. Further, Ex.B1 (patta) shows that the suit property is
classified as street poramboke and described as common land, while Ex.B2 (field
map) also shows that T.S.No.301 is a public street. It is a well-settled proposition
of law that if municipal or revenue records classify land as street poramboke
within a municipal town, such land belongs to the municipality, which has the
authority to maintain it, and the public is entitled to use it. No one can claim
exclusive possession of such municipal property. Therefore, the municipal
records clearly demonstrate that T.S.No.301 is only a public pathway, and the
appellants cannot claim any exclusive right over it and the appellants have failed
to prove the same. Although the trial Court failed to appreciate these facts, the
first appellate Court rightly reappreciated the evidence and set aside the
Judgment and Decree of the trial Court.
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S.A.Nos.1504 and 1518 of 1998
21. Though the questions of law viz., (a) and (b) in S.A. No.1504 of 1998
and (i) in S.A. No.1518 of 1998 are similar, differing only in language, they have
been considered and dealt with together. Insofar as the first substantial
question of law is concerned, it is to be noted that the appellants themselves
admitted the issuance of Ex.A13 notice by the first respondent dated 01.11.1991.
Since the appellants failed to comply with the direction issued under Ex.A13
within the time stipulated therein, the first respondent proceeded to remove the
encroachment made by the appellants. As already stated, Exs.B1 and B2 being
the patta and field map respectively establish that T.S.No.301 is classified as
street poramboke and shown as a public street. The appellants have also failed
to establish that they issued a notice to the first respondent prior to the
institution of the suit, and further failed to show that the suit was instituted only
after the expiry of one month from the date of service of such notice, as required
under Section 350 of the Tamil Nadu District Municipalities Act, 1920, which
reads as follows:
"350. Institution of suits against Municipal Authorities officers and
servants .--
(1) No suit for damages or compensation shall be instituted against the
Municipal Council, any municipal authority, officer or servant, or any person
acting under the direction of the same, in respect of any act done in pursuance
or execution or intended execution of this Act or any rule, by-law, regulation or
order made under it or in respect of any alleged neglect or default in the
execution of this Act, or any rule, by-law, regulation, or order made under it until
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S.A.Nos.1504 and 1518 of 1998
the expiration of one month after a notice has been delivered or left at the
Municipal office or at the place of abode of such officer, servant or person,
stating the cause of action, the relief sought, and the name and the place of
abode of the intending plaintiff ; and the plaint shall contain a statement that
such notice has been so delivered or left.
(2) Every such suit shall be commenced within six months after the date
on which the cause of action arose or in case of a continuing injury or damage
during such continuance or within six months after the ceasing thereof.
(3) If any person to whom any notice is given under sub-section (1)
tenders amends to the plaintiff before the suit is instituted, and if the plaintiff
does not recover in any such action more than the amount so tendered he shall
not recover any costs incurred after such tender by the person to whom such
notice has been given, and the defendant shall be entitled to costs as from the
date of tender.
(4) Where the defendant in any such suit is 1 [the Chairman, the
Executive Authority, or] a Municipal officer or servant, payment of the sum, or
any part of any sum, payable by him in, or in consequence of, the suit whether
in respect of costs, charges, expenses, compensation for damages or otherwise
may be made, with the sanction of the Council, from the Municipal Fund."
Although such a plea was not specifically raised by the first respondent in the
written statement, being a pure question of law going to the root of the matter,
it could be raised at any stage of the proceedings. The first appellate court,
therefore, rightly took note of this legal requirement and, upon reappreciation of
the oral and documentary evidence on record, correctly concluded that the suit
filed by the appellants was not maintainable for want of compliance with the
mandatory requirement under Section 350 of the Act. While the trial court
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S.A.Nos.1504 and 1518 of 1998
erroneously decreed the suit, the first appellate court, on proper appreciation of
facts and law, rightly set aside the judgment and decree of the trial court.
Accordingly, the substantial questions of law is answered against the appellants.
22. As far as the second substantial question of law in S.A.No.1518 of
1998 is concerned, a reading of the judgment of the first appellate court, which
is the final court of fact finding, shows that it reappreciated the entire evidence
and duly considered the grounds raised by both the appellants and the
respondents. The dispute pertains to T.S.No.301, which, according to the
appellants, is their exclusive property, whereas the respondents contend that it is
a common lane meant for use by the public, including themselves, and is under
the maintenance of the Municipality. The municipal records, particularly Exs.B1
and B2, indicate that the property is public in nature and not the exclusive
property of the appellants. The first appellate court has elaborately discussed the
reasons for reversing the judgment of the trial court. Since the first appellate
court has reappreciated the entire evidence and given cogent reasons for its
conclusions, there is no error apparent on the face of the record, nor is any
prejudice caused to the appellants. Accordingly, the second substantial question
of law is answered against the appellants.
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S.A.Nos.1504 and 1518 of 1998
23. As far as the third substantial question of law in S.A.No.1518 of 1998
is concerned, it is apposite to state that the appellants filed the suit for
declaration and permanent injunction. Therefore, the burden lies on them to
prove that the disputed property in T.S.No.301 is exclusively their property and
that it forms part of their patta land. However, they have not produced even a
patta to support their claim. The building approval obtained by the appellants
pertains only to the disputed land in T.S.No.301 and not to any other property. If
the appellants had put up any construction in a patta land, they were required to
obtain necessary permission/approval from the competent authority. In this case,
the appellants have failed to produce any material to show that, before putting
up the construction in T.S.No.301, they obtained any such approval. Ex.A13
clearly indicates that while the appellants were erecting pillars, the first
respondent immediately issued a notice under Ex.A13 for removal of the
unauthorised construction. The appellants did not challenge the said notice and
were only waiting until the encroachment was removed. Even after removal, they
did not serve any notice under Section 350 of the Tamil Nadu District
Municipalities Act, 1920, and without complying with the mandatory
requirements, they proceeded to file the suit. The first appellate Court, on a
proper appreciation of the oral and documentary evidence, especially that
produced by the first respondent, rightly set aside the judgment and decree
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S.A.Nos.1504 and 1518 of 1998
passed by the trial Court. There is no merit in the appeals, and accordingly, the
third substantial question of law is answered against the appellants.
24. As far as substantial question of law No.4 in S.A.No.1518 of 1998 is
concerned, it is pertinent to state that the second and third respondents had filed
O.S.No.312 of 1991, claiming that T.S.No.301 is a common pathway and that the
appellants should not obstruct them from using it. It was only after about one
year that the appellants instituted O.S.No.442 of 1992, seeking a declaration and
permanent injunction, primarily against the first respondent–Municipality.
Although the appellants initially did not implead respondents 2 and 3, they were
subsequently added as parties to the said suit. The dispute pertains to the same
property, and the first respondent took the stand that T.S.No.301 is a public
street or common pathway, over which the appellants cannot claim exclusive
rights, nor can they put up any construction or prevent the public from accessing
it. While the suit filed by the appellants in O.S.No.442 of 1992 was decreed by
the trial court, the first respondent preferred an appeal in A.S.No.340 of 1994,
and the second and third respondents filed an appeal in A.S.No.209 of 1994.
Both appeals were allowed. It is also significant that the second and third
respondents did not challenge the dismissal of their suit in O.S.No.312 of 1991.
However, that alone does not disentitle them from asserting a right of usage if,
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S.A.Nos.1504 and 1518 of 1998
upon a conjoint reading of the oral and documentary evidence, the appellate
court has come to the conclusion that T.S.No.301 is not the exclusive property of
the appellants. While the appellants claimed exclusive ownership and usage
rights over T.S.No.301, the first respondent maintained that it is a common
pathway accessible to the public. Even though the suit filed by respondents
2 and 3 was dismissed by the trial court, the appellate court, as the fact-finding
court, upon reappreciation of the entire evidence, reversed the judgment of the
trial court and allowed the appeal filed by respondents 2 and 3 as well. The
appellate court held that the mandatory requirements under Section 350 of the
Municipalities Act had not been complied with and further found that T.S.No.301
is not the exclusive property of the appellants. Therefore, the first appellate
court, on a proper reappreciation of the evidence, rightly allowed both appeals.
The mere fact that respondents 2 and 3 did not challenge the dismissal of their
earlier suit in O.S.No.312 of 1991 does not lead to the inference that they have
no right to use T.S.No.301, which has been found to be a public street / common
pathway. Accordingly, this substantial question of law is answered in favour of
the respondents.
25. On a careful consideration of the oral and documentary evidence on
record, and having regard to the grounds raised by the appellants with reference
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S.A.Nos.1504 and 1518 of 1998
to the substantial questions of law framed at the time of admission, this Court is
of the considered view that the said questions stand answered against the
appellants and in favour of the first respondent. Accordingly, the second appeals
are liable to be dismissed, and they are dismissed. There shall be no order as to
costs.
12/06/2025
Index: Yes/No.
Speaking Order : Yes/No.
Neutral Citation Case : Yes/No.
cs
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S.A.Nos.1504 and 1518 of 1998
To
1. The Commissioner,
The Srivilliputtur Municipality,
Srivilliputtur.
2. The Principal District Judge, Kamarajar District @ Srivilliputtur.
3. The Additional District Munsif, Srivilliputtur.
4. The Section Officer, V.R.Section, High Court, Madras.
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S.A.Nos.1504 and 1518 of 1998
P.VELMURUGAN, J.
cs
Pre-Delivery Judgment made in
S.A.Nos.1504 and 1518 of 1998
12 / 06 /2025
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