Madras High Court
Marimuthu Nadar Higher Secondary ... vs Dr.Thilagavathi ... 1St on 6 March, 2025
C.R.P.(MD)No.583 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.03.2025
CORAM:
THE HONOURABLE MS.JUSTICE R.POORNIMA
C.R.P.(MD)No.583 of 2021
and
C.M.P.(MD)Nos.3156 and 3157 of 2021
Marimuthu Nadar Higher Secondary School,
Rep. Through its Secretary,
Marimuthu (Former),
Thalaivaipuram,
Chettiyarpatti Village,
Rajapalayam Taluk,
Virudhunagar District.
A. Balaji, (Now),
S/o.Arumugasamy,
Secretary,
Marimuthu Nadar Higher Secondary School,
Thalaivaipuram,
Chettiyarpatti Village,
Rajapalayam Taluk,
Virudhunagar District.
(Cause title accepted vide court order dated
19.03.2021 made in CMP(MD).No.2768/2021
in CRP(MD).SR.No.16350/2021 by JNBJ) ... Petitioner/6th Defendant
Vs.
1. Dr.Thilagavathi ... 1st respondent / plaintiff
1/20
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C.R.P.(MD)No.583 of 2021
2. The District Collector,
Soolakarai,
Collectorate,
Virudhunagar District.
3. The District Revenue Officer,
Virudhunagar District.
4. The Revenue Divisional Officer,
Saatchiayapuram,
Collectorate,
Virudhunagar District.
5. The Tahsildar,
Rajapalayam Taluk,
Mudangiyaru Road,
Virudhunagar District.
6. The President,
Thalaivaipuram Grade II-Village Panchayat,
Chettaiyarpatti,
Rajapalayam Taluk,
Virudhunagar District. ... 2 to 6 Respondents /
1 to 5 Defendants
Prayer: The Civil Revision Petition has been filed to set aside the order
passed by the learned Sub Court, Srivilliputhur in O.S.No.21 of 2021 of
2021 and strike off the same.
For Petitioner : Mr.C.Vakeeswaran
For R1 : Mr.V.Karthikeyan
For R2 to R5 : Mr.B.Ramanathan
Additional Government Pleader
For R6 : No Appearance
2/20
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C.R.P.(MD)No.583 of 2021
ORDER
This civil revision petition has been filed to call for the
records relating to the plaint in O.S.No.21 of 2021 on the file of the Sub
Court, Srivilliputhur and strike off the same.
2. The revision petitioner/6th defendant states that the 1st
respondent herein had filed a Suit before the Sub Court, Srivilliputhur in
O.S.No.21 of 2021 for the relief of declaration, declaring the 3rd item of
the scheduled property in S.No.386/9 i.e., the lane belongs to the 1st
respondent and for consequential injunction restraining the petitioner and
other from interfering the peaceful possession and enjoyment over the 3rd
item of suit scheduled property which is a Lane and classified as
Government Poramboke land in the revenue records.
3. The revision petitioner/6th defendant having its office
adjoining to the lands using the common land along with the other
adjacent owner. The plaintiff is the encroacher of the Government land and
constructed a building. Therefore, the 4th defendant/Tahsildar issued an
encroachment notice under Section 7 of the Tamil Nadu Land
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Encroachment Act, 1905 against which the 1st respondent filed W.P.
(MD)No.146312 of 2020, in which he had stated that the subject matter of
the land is a 'Natham land' and seeks patta. While disposing of the writ
petition, this Court directed the Tahsildar to call for an explanation to the
1st respondent / 1st plaintiff within 2 weeks from the date of receipt of the
order. On 15.12.2020 the 1st respondent / Plaintiff has made explanation to
the 5th respondent on receipt of the same 5 th respondent should pass order
within 6 weeks. Thereafter, the Tahsildar of Rajapalayam under a memo no
e/f/m6/2596/2020 dated 06.01.2021 holding that passed an order in
S.No.386/9 to an extent of 0.00.13.0 sq.ft of land has been classified as
Government Poramboke land in the revenue records and the lane and
rejected the request of the plaintiff and directed the plaintiff remove the
encroachment.
4. The revision petitioner/6th defendant further argued that as
per Section 10 of the Tamil Nadu Land Encroachment Act, 1905, any
decision or order passed by a Tahsildar or Deputy Tahsildar under this Act,
an appeal shall be preferred before the District Collector and to the
Commissioner of Land Administration from any decision or order of a
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District Collector passed otherwise than on appeal. Section 10(A) of the
Tamil Nadu Land Encroachment Act, 1905, contemplates any decision or
order passed under Revision, this Act may be revised either suo motu or on
(a) application by the District Collector, if such decision or order was
passed by a Deputy Tahsildar, Tahsildar or Collector, (b) by the
commissioner of land administration if such decsion or order passed by
any officer other then the appellate authority, (c) by the State Government
if such decision or order was passed by the appellate authority or the
Commissioner of Land Administration
5. He further argued that under Section 14 of the Tamil Nadu
Land Encroachment Act, 1905, there is a bar of jurisdiction of Courts
notwithstanding anything contained in any law for the time being in force
no order passed or proceeding taken by any officer or authority or the
State Government under this Act shall be called in question in any court,
in any suit or application and no injunction shall be granted by any court
in respect of any action taken or to be taken by such officer or authority or
the State Government in pursuance of any power conferred by or under
this Act and he had filed a suit seeking exclusive right over the property
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by misleading the court by stating that he is in possession and enjoyment
of the property and suppressing the fact that the application of patta has
already been rejected by the revenue officials.
6. The revision petitioner/6th defendant has relied upon the
Judgment of this Court in the case of G.Annadurai vs. The District
Collector, Kanchipuram District & Others, reported in 2013-3-LW-802.
Relevant portion of the said judgment reads as under:-
“23. In the light of the object of Tamil Nadu Land
Encroachment Act, 1905, and the provisions thereof, the
expression, “in respect of an order of proceeding”, has to
be viewed that the proceeding or action taken by the
competent authorities under the Act, is with reference to
the object of the Act, i.e., removal of encroachments. The
intention of the Legislature is very clear that no order or
proceeding can be challenged in a Court, as the
provisions of the Act, provide for a machinery and also
set out appellate and revisional jurisdiction. It cannot be
said that an encroacher, who had been in possession and
enjoyment of the Government property over a statutory
period, is prohibited under the Act from approaching a
Civil Court, to seek for a declaration, on the grounds that
he has perfected title, by adverse possession. Though title
of the Government is accepted, still, law permits assertion
of a person's right or title over the property only in a
Civil Court. Assignment of land by the Government
proves that the ownership vests with the Government. As
the revenue authorities are not competent to decide title
or grant any declaration relief, a person claiming adverse
possession of Government property, has no other
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alternative except to approach the Civil Court. But at the
same time, one has to ascertain from the facts, material
on record and also the conduct of the party, opposing the
action or proceeding, taken under the provisions of the
Act, the time and the stage, as to when the action of the
authorities is indirectly challenged in the Court. The
words “in respect of ” have to be given the plain
meaning, “connected with or attributable to” and
therefore, when the petitioner has failed to substantiate
his claim, before the authorities, and when the petitioner,
has not approached the civil court, at the earliest point of
time, and when the correctness of the orders passed
against him are under challenge before the revisional
authority, it would be inappropriate to entertain a suit for
declaration that he has perfected titled, by adverse
possession.
28. Upon perusal of the plaint averments, it is clear that
the suit property is a Government property and that
proceedings have been initiated under the Act and thus
admitting the title of the property, the Revision
petitioner/plaintiff and others have been taking steps to
obtain, assignment from the Government. But then, the
authorities, have initiated proceedings for eviction under
the Act. The proceedings initiated against the Revision
Petitioner/plaintiff has reached the stage of revision,
under Section 10(A) of the Act and at this juncture, the
Revision Petitioner/plaintiff has filed the suit in
December 2012 for declaration.
29. No doubt, the revenue authorities cannot adjudge the
declaratory rights, in so far as the title to the properties is
concerned. But, in the case on hand, as rightly observed
by the Court below, there is no dispute over the title of the
suit properties and even the Revision petitioner/plaintiff,
and others have admitted that the suit property is a
Government poromboke and that is why they have sought
for assignment of house sites. When the Government's
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title to the property is accepted, then it is not open to him
to seek for any declaration, beyond the statutory period.
31. All along, the Revision Petitioner / plaintiff had
remained quiet, for so many years, even after an adverse
order under Section 6 of the Act has been passed, and
now, taking advantage of the prayer in the suit, he has
attempted to undo, whatever that has been done earlier
by the statutory authorities under Sections 6 and 10 of the
Act, and the same cannot be permitted. If at all the
Revision Petitioner / Plaintiff had perfected title, by
adverse possession, over the Government Property, action
for declaration of title ought to have been made, the
moment his possession and enjoyment has been interfered
with and not after the statutory authorities have exercised
their jurisdiction and passed adverse orders. In the light
of the above discussion, this Court is of the view that no
manifest illegality can be attributed to the order dated
01.02.2013 passed by the learned Subordinate Judge,
Tambaram, in rejecting the plaint.”
7. He further relied upon the unreported judgment of this
Court in the case of K.S.Nallasamy and others vs. Ramasamy Gounder
and others in CRP.(PD)No.310 of 2021. Paragraph 16, 17 and 18 of the
said judgment reads as under:-
“16. Section 14 of the Tamil Nadu Land Encroachment Act,
1905 is as follows:-
14. Bar of Jurisdiction of Courts:-
Notwithstanding anything contained in any law for the
time being in force no order passed or proceeding taken
by any officer or authority or the State Government
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under this Act shall be called in question in any court, in
any suit or application and no injunction shall be
granted by any court in respect of any action taken or to
be taken by such officer or authority or the State
Government in pursuance of any power conferred by or
under this Act”.
17. There is a clear bar to any Civil Court to entertain any
suit or to grant any relief in any suit in which proceedings under
the said Act been initiated. In this case, proceedings had been
initiated as is evident from the documents filed before this Court.
Notices had been issued specifically under the Tamil Nadu Land
Encroachment Act, 1905 calling upon the plaintiffs not to
encroach on the very suit properties itself, namely, R.S.Nos.161 &
163, Vanipudur Village by putting up either gate or putting up
compound wall detrimental to the interest of the villagers and
quite selfishly for the benefit of their own selves to the exclusion
of every other villager. This cannot be permitted. This is
prohibited.
18. In T.Arivandandam vs. T.V.Satyapal, (1977) 4 SCC
467, the Hon'ble Supreme Court held as follows:-
“2. Here is an audacious application by a determined
engineer of fake litigations asking for special leave to
appeal against an order of the High Court on an
interlocutory application for injunction. The sharp
practice or legal legerdemain of the petitioner, who is the
son of the 2nd respondent, stultifies the court process and
makes a decree with judicial seals brutum fulmen. The
long arm of the law must throttle such litigative
caricatures if the confidence and creditibility of the
community in the judicature is to survive...”
8. He further argued that the 1st respondent earlier sought for
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patta and now seeks declaration of title. Both are contrary and the trial
Court without going into the merits of the case also granted status quo
which is improper.
9. He further relied upon the judgment of the Hon'ble
Supreme Court in the case of Tarivandandam vs. T.V.Satyapal and
another reported in (1977) 4 SCC 467 and stated that, it was held in
paragraph 5 of the said order, that there is a clear bar to entertain the suit
by the trial Court and liable to be struck down.
10. Per contra, learned counsel for the 1st respondent/plaintiff
argued that he has filed a suit for declaration of title and he had produced
all the details of the previous rejection order and further stated that if the
suit is barred by any law it is the only remedy available in the Code of
Civil Procedure. The revision petitioner should approach the trial Court by
filing a petition under Order VII Rule 11 of CPC and he has no right to
approach this Court to invoke Article 227 of the Constitution.
11. The learned counsel for the 1st respondent/plaintiff relied
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upon the judgement of the Hon'ble Supreme Court in the case of Srihari
Hanumandas Totala vs. Hemant Vithal Kamat, reported in (2021) 9 SCC
99. Paragraph 11 and 17, 24, 27 and 28 of the said judgment reads as
under:-
“11. The application under Order 7 Rule 11 was dismissed
by the trial Judge on 01.07.2019 for the following reasons:-
11.1. With respect to non-payment of the court fee,
according to Order 7 Rule 11 (c), a plaint would only be
rejected if the plaint is written on a paper that is
insufficiently stamped, and the court requires the
plaintiff to supply the requisite stamp paper within a
time fixed and despite such an order, the plaintiff fails to
do so. In this case, no such order was passed by the
Court.
11.2. The cause of action had been specifically pleaded
by the first respondent in Para 5 of the plaint.
11.3. In order to reject a plaint for the suit being barred
by any law under Order 7 Rule 11(d), the court needs to
be guided by the averments in the plaint and not the
defence taken. The grounds taken by the appellant – that
the issues raised had been decided by the decree of the
trail court in O.S.No.103 of 2007 and affirmed on appeal
by the High Court – were the defence of the appellant.
Thus, these cannot be taken into account while rejecting
a plaint under Order 7 Rule 11 CPC. Moreover, the issue
as to whether the suit is barred by res judicata cannot be
decided in an Order 7 Rule 11 application but has to be
decided in the suit.
17. Order 7 Rule 11(d) CPC provides that the plaint shall
be rejected “where the suit appears from the statement in the
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plaint to be barred by any law”. Hence, in order to decide
whether the suit is barred by any law, it is the statement in the
plaint which will have to be construed. The court while deciding
such an application must have due regard only to the statements
in the plaint. Whether the suit is barred by any law must be
determined from the statements in the plaint and it is not open to
decide the issue on the basis of any other material including the
written statement in the case. Before proceeding to refer to
precedents on the interpretation of Order 7 Rule 11(d) CPC, we
find it imperative to refer to Section 11 CPC which defines res
judicata:
11. Res judicata – No court shall try any suit or
issue in which the matter directly and substantially in
issue has been directly and substantially in issue in a
former suit between the same parties, or between
parties under whom they or any of them claim, litigating
under the same title, in a court competent to try such
subsequent suit or the suit in which such issue has been
subsequently raised and has been heard and finally
decided by such court.”
24. In a more recent decision of this Court in Shakti Bhog
Food Industries Ltd. vs. Central Bank of India, a three Judge
Bench of this Court, speaking though A.M.Khanwilkar, J., was
dealing with the rejection of a plaint under Order 7 Rule 11 by the
trial Court, on the ground that it was barred by limitation. The
Court referred to the earlier decisions including in Saleem Bhai v.
State of Maharastra, Church of Christ Charitable Trust and
observed that: (Church of Christ Charitable Trust case, SCC p.
714, para 11)
“11... It is clear that in order to consider Order
7 Rule 11, the Court has to look into the averments in
the plaint and the same can be exercised by the trial
court at any stage of the suit. It is also clear that the
averments in the written statement are immaterial and
it is the duty of the court to scrutinise the
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averments/pleas in the plaint. In other words, what
needs to be looked into in deciding such an application
are the averments in the plaint. At that stage, the pleas
taken by the defendant in the written statement are
wholly irrelevant and the matter is to be decided only
on the plaint averment. These principles have been
reiterated in Raptakos Brett & Co. Ltd. vs. Ganesh
Property and Mayar (H.K.) Ltd. vs. Vessel M.V.Fortune
Express.”
27. Be that as it may, on a reading of the plaint, it is evident
that the first respondent has not made an attempt to conceal the
fact that a suit regarding the property was pending before the civil
court at the time. It is also relevant to note that at the time of
institution of the suit (O.S.No.138 of 2008) by the first respondent,
no decree had been passed by the civil court in O.S.No.103 of
2007. Thus, the issues raised in O.S.No.103 of 2007, at the time,
had not been adjudicated upon. Therefore, the plaint, on the face
of it, does not disclose any fact that may lead us to the conclusion
that it deserves to be rejected on the ground that it is barred by
principles of res judicata. The High Court and the trial court were
correct in their approach in holding, that to decide on the
arguments raised by the appellant, the court would have to go
beyond the averments in the plaint, and peruse the pleadings, and
judgment and decree in O.S.No.103 of 2007. An application under
Order 7 Rule 11 must be decided within the four corners of the
plaint. The trial Court and the High Court were correct in
rejecting the application under Order 7 Rule 11(d).
28. For the above reasons, we hold that the plaint was not
liable to be rejected under Order 7 Rule 11(d) and affirm the
findings of the trial court and the High Court. We clarify however,
that we have expressed no opinion on whether the subsequent suit
is barred by the principles of res judicata. We grant liberty to the
appellant, who claims as an assignee of the bona fide purchaser
of the suit property in an auction conducted by KSFC, to raise an
issue of the maintainability of the suit before the Additional Civil
Judge, Belgaum shall consider whether a preliminary issue
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should be framed under Order 14, and if so, decide it within a
period of 3 months of raising the preliminary issue. In any event,
the suit shall be finally adjudicated upon within the outer limit of
31.03.2022.”
12. The learned counsel for the 1st respondent/plaintiff further
relied upon the judgment of this Court rendered in the case of
M.Kishanlal vs. K.Pushpavalli @ Elizabeth Pushpavalli in CRP(PD)
No.1512 of 2021 dated 05.01.2022, wherein the learned Single Judge
relied upon the judgment of the Hon'ble Supreme Court in the case of
Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Others
vs. Tuticorin Educational Society and Others, reported in (2019) 9 SCC
538, held that the High Court will refrain from exercising jurisdiction
under Article 227 of the Constitution of India, not merely as a measure of
self-imposed restriction, but as a matter of discipline and prudence, when
a remedy under the Code of Civil Procedure is available to the party for
approaching the High Court and this is not a fit case to excise jurisdiction
under Article 227 of the Constitution and therefore, states that revision
petition itself is not maintainable as without approaching the Court for
rejection of the plaint, the petitioner has no right to approach this Court
under Article 227 of the Constitution of India and try to dismiss the civil
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revision petition.
13. The learned Additional Government Pleader appearing for
the respondents 2 to 5 argued that the Tahsildar rejected the request of the
petitioner to grant patta, since the property is a poromboke land and
eviction order issued by Tahsildar directed the plaintiff to evict the land.
He further argued that the exclusive patta could not be granted in favour of
the individual. He further argued that the trial Court after knowing that the
plaintiff encroached the Government Poramboke land granted an
injunction. No Court has right to grant injunction against the encroacher
who had occupying the Government Poramboke land.
14. He also relied upon the judgement of this Court in the
case of the State of Tamil Nadu Rep. by District Collector,
Thanthonimalai and Others vs. S.Venkatachalam and Others, reported
in 2018 6 CTC 297. Paragraph 24 (f) of the said judgment reads as
follows:-
“24(f). All the District Collectors in the State
of Tamil Nadu are hereby directed to issue suitable
directions to their Subordinate Officers to take
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appropriate steps for strike of the plaints wherever
the cases already filed and pending are in which
attracting the provisions under the Tamil Nadu
Public Premises (Eviction of Unauthorised
Occupants) Act, 1975 and Tamil Nadu Land
Encroachment Act, 1905 within their respective
jurisdictional Courts without any delay.”
15. Heard the learned counsel on either side and perused the
materials available on record.
16. The 1st respondent / plaintiff has filed a suit before the
trial Court seeking declaration of title and injunction in respect of suit
schedule land which is classified as poramboke land. He had earlier filed
a petition before the revenue officials requesting to grant patta but his
request was rejected on 06.01.2021 by the Tahsildar of Rajapalayam and
directed the plaintiff to remove the encroachments.
17. Section 10 of the Tamil Nadu Land Encroachment Act,
1905, provides that if the party aggrieved by the order of Tahsildar, an
appeal shall lie to the Collector.
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18. Section 10A of the Tamil Nadu Land Encroachment Act,
1905 confers revisionary power stating that any decision or order passed
under this Act may be revised either suo motu or on application -
(a) by the District Collector, if such decision or order was
passed by a Deputy Tahsildar, Tahsildar or Collector;
(b) by the Commissioner of Land Administration if such
decision or order was passed by any officer other than the
appellate authority;
(c) by the State Government, if such decision or order was
passed by the appellate authority or the Commissioner of
Land Administration.
19. Section 14 of the Tamil Nadu Land Encroachment Act,
1905 bars the jurisdiction of the Civil Court. However, the petitioner
without availing appeal or revision remedies against the order of the
Tahsildar as provided under the Act and without offering any explanation
directly approach the Civil Court, which is not maintainable. The only
objection by the respondent is that if the suit were to be challenged, the
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petitioner should file a petition under order 7 Rule 11 of CPC and
therefore, the contention is that the respondent has no right to approach
the High Court directly to struck of the plaint.
20. Article 227 of Constitution of India grants the High Court
the power of Superintendence over all the Courts and Tribunals within its
jurisdiction. However, only in exceptional cases viz., if the suit is
frivolous, barred by Statute the High Court has the power to struck of. In
this context, Section 14 of the Tamil Nadu Land Encroachment Act bars
the jurisdiction of the Civil Court and prohibits unauthorised use of the
Government lands. This Court rely upon the judgement reported in
2013-3-LW-802 rendered in the case of G.Annadurai vs. The District
Collector, Kanchipuram District & Others, it has been held that no Civil
Court should entertain a suit filed by a person who is in possession and
enjoyment of a Government property and further held that no injunction
should not be granted.
21. The above judgement which is squarely applicable to this
case, since the Act bars the jurisdiction of the Civil Court, this Court ought
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not to have entertain the suit and granted injunction. Therefore, the suit is
liable to be struck of.
22. In the result, this Civil Revision Petition is allowed and
the plaint in O.S.No.21 of 2021 on the file of Subordinate Court,
Srivilliputhur is struck of. No costs. Consequently, connected
miscellaneous petitions are closed.
06.03.2025
NCC :yes/No
Index :yes/No
rgm
To
1.The Subordinate Court,
Srivilliputhur.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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R.POORNIMA, J.
rgm
and
C.M.P.(MD)Nos.3156 and 3157 of 2021
06.03.2025
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