Madras High Court
Anjalai vs Mahalingam on 14 March, 2025
SA(MD)No.403 of 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 14/03/2025
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
SA(MD)No.403 of 2007
1.Anjalai
2.Dharmaraj
3.Vasuki
4.Sasikala : Non-Parties (L.Rs of the
Plaintiff deceased Ganesan)/
Non-Parties (L.Rs of the Appellant)/
Appellants
Vs.
1.Mahalingam
2.The Tahsildar,
Papanasam Taluk,
Thanjavur District.
3.The Commissioner,
Panchayat Union,
Ammapettai,
Papanasam Taluk,
Thanjavur District.
4.The State of Tamil Nadu,
Represented by
The District Collector,
District Collector's Office,
Court Road,
Thanjavur Town,
Thanjavur District. : Respondents/Respondents/
Defendants
PRAYER:-Second Appeal is filed under Section 100 of
the Civil Procedure Code, against the judgment and
decree, dated 30/08/2005 of the Additional Subordinate
Judge, Thanjavur and made in AS No.48 of 2005 of his
file, confirming the judgment and decree of Thiruvaiyaru,
dated 30/12/2004 and made in OS No.126 of 2003 on his
file.
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SA(MD)No.403 of 2007
For Appellant : Mr.K.N.Thampi
For 1st Respondent : Mr.M.Jothi Basu
For R2 to R4 : Mr.N.Ramesh Arumugam
Government Advocate
J U D G M E N T
This second appeal is preferred against the judgment
and decree, dated 30/08/2005 passed by the Additional
Subordinate Judge, Thanjavur in AS No.48 of 2005,
confirming the judgment and decree of the District
Munsif, Thiruvaiyaru made in OS No.126 of 2003, dated
30/12/2004.
2.The plaint:- The suit property is a pond poramboke
land. It was dry land originally. The plaintiff made the
property cultivatable and doing nursery cultivation. He
was issued with 'B' memo by the Government. The 1st
defendant is the Village Panchayat President. Now, he
tries to encroach upon the property. He attempted to
purchase the property failed. So, he tried to trespass
the property, on 28/08/2003. That was prevented. Hence,
the suit for permanent injunction, costs.
3.The first defendant filed written statement
contending that the property was never under the
cultivation of the plaintiff. It is a pond poramboke for
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several years and the villagers are using the pond. It is
still existing as poramboke pond and never under the
enjoyment of the plaintiff.
4.The State Government filed the written statement
contending that the suit property is in the common
enjoyment of the village people. Even now, it is
existing as pond.
5.On the basis of the pleadings of both sides, the
following issues were framed by the trial court:-
(1)Whether the plaintiff is entitled to the relief
of permanent injunction as prayed for?
(2)Whether the suit pond is the common enjoyment of
the villagers?
(3)Whether the suit is bad for non-joinder of
necessary parties?
(4)To what other relief, the plaintiff is entitled
to?
6.On the side of the plaintiff, 4 witnesses were
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examined and 9 documents marked. On the side of the
defendants, 3 witnesses were examined and 4 documents
marked. The Commissioner's report and plan were marked as
Exs.C1 and C2.
7.At the conclusion of the trial, the suit was
dismissed by the trial court. Against which, appeal was
preferred in AS No.46 of 2005. The appellate court
concurred with the decree and judgment of the trial court
and dismissed the appeal.
8.Against which, this second appeal is preferred by
the appellants.
9.At the time of admission, the following
substantial questions of law were framed:-
(1)Whether in view of Exhibits A1
to A9 and the proviso to Section 7 of
the Tami Nadu Land Encroachment Act,
1905, the Courts below are correct in
holding that the plaintiff has not
proved that she was in occupation of
the suit property at the time of
institution of the suit?
(2)Whether the Lower Appellate
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Court is correct in holding that
Respondents 2 to 4 are unnecessary
parties to the suit, without at all
considering the matter, that too, when
the suit property is Government
poramboke, belonging to the Government?
10.Heard both sides.
11.Second substantial question of law is taken up
for discussion first. It is a simple suit for permanent
injunction on the basis of the settled possession for
several years. Now the plaint reads that the suit
property is a tank poramboke, but, in their occupation
from 20.06.1981, request made by the plaintiff/appellant
seeking assignment was negatived by the revenue
Authorities. This is the averment in paragraph Nos.1 and
2. But, in paragraph No.3, it has been stated that the
defendant has no right over the properties. Probably, the
plaint refers to the first defendant namely Mahalingam.
So according to paragraph No.3, the first defendant
alleged to have demanded the sale to him, which was
refused, attempting to disturb his possession.
12.The first defendant, who was the Village
President at that time, filed the statement stating that
suit properties are tank poramboke, never in the
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occupation of the plaintiff or the person mentioned by
him in the plaint. The property is in the enjoyment and
use of the Villagers. The defendants 2 to 4 namely the
State Government and the Revenue Authorities adopted the
statement filed by the first defendant. So when the
plaintiff says that she is in possession of the property
for several years, for deciding the same, the presence of
the defendants 2 to 4 are necessary parties. It was held
so by the trial Court. That finding was affirmed by the
appellate Court in A.S.No.48 of 2005. But, a stray
sentence was make by the appellate Court in its Judgment
in page No.10 in Paragraph No.2, that since the
defendants 2 to 4 did not make any trouble to the
appellant's possession, no relief can be granted against
them. But, this will not mean that the defendants 2 to 4
are not necessary parties. As mentioned above, it is
admitted that the suit properties are tank poramboke. So
naturally, defendants 2 to 4 are necessary parties to
decide the possession of the plaintiff. So this second
substantial question of law is answered that this does
not arise. By misconstruing the observation made by the
appellate Court, this ground is raised by the appellant.
So it is made clear that the defendants 2 to 4 are
necessary parties to decide the issue.
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13.Now, we will go to the first substantial question
of law. There is a clear finding by the trial Court as
affirmed by the appellate Court that it was not
established on the side of the appellant that she was in
possession on the date of the suit. This concurrent
finding is challenged by the plaintiff contending that
Ex.A1 to Ex.A9 were not properly considered by the trial
Court as well as the appellate Court. Now we will go to
the documents produced by the appellant. Ex.A1 is the
notice issued by the Revenue Authority under Section 5 of
the Tamil Nadu Land Encroachment Act, 1905, wherein, we
find that survey number is mentioned as 21/1 and the
plaintiff encroached the property and cultivated paddy.
This is dated 28.12.1995. Ex.A2 is dated 20.10.1993 for
S.No.21/2. Ex.A3, A5, A6, A7, A9 and A10, are not related
to the suit property. Those documents were miscellaneous
kist receipts paid by the appellant. As mentioned above,
Ex.A1 is dated 28.12.1995. The suit was filed on
05.09.2003, much after long time of B memo issued to the
appellant under Ex.A1 and Ex.A2. Now, the appellant also
says that still she is being in possession.
14.The learned counsel for the appellant would
submit that since no eviction proceedings were initiated
against the plaintiff as per the provisions of Tamil Nadu
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Land Encroachment Act, she is deemed to be in possession
and she can be evicted only as per the provisions of the
said Act. So according to him, when the trouble is made
by the first defendant, the suit was rightly filed and
possession must be protected till evicted lawfully. In
substances his argument is that the appellant may be
granted limited injunction restraining the respondent
herein not to evict her otherwise than under due process
of law. According to him, that limited prayer can be
granted.
15.But, I am unable to agree these line of argument
for the simple reason that B memo are being issued to the
person, who is in unauthorised encroachment or
occupation. They are liable to be evicted by following
due process of law. Simply because she was issued a B
memo on a particular year, that will not confer any right
upon the appellant to remain in possession for ever till
evicted through the provisions of law.
16.Now it has been more or less well settled that a
person in illegal occupation or encroacher is not
entitled for any injunction against the true owner. Here
as mentioned above it is admitted that the property is a
tank poramboke. A tank poramboke is to be used by the
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Villagers commonly. By encroaching upon that common tank
the plaintiff has committed illegality. That illegality
cannot be allowed to be perpetuated by way of any decree.
17.The learned counsel for the appellant would rely
upon the Judgment of the Honourable Division Bench of
this Court made in the case of V.K.Rajan Vs. The District
Collector, Kancheepuram District and another reported in
2017 (2) CWC 218 for the purpose of the above said
argument. A question of eviction does not arise at all
since it was not established on the side of the plaintiff
that he was in possession of the disputed property on the
date of plaint. Occasions possession are not sufficient
to hold that it is a settled possession. So when the
foundational facts are not established by the plaintiff,
appellants are not entitled for any sort of injunction.
18.The Commissioner was appointed to note down the
physical features. The Commissioner visited the property
and filed the report, which is marked as Ex.C1 and Ex.C2,
wherein, he has stated that on the date of his visit he
found major portion of the property under water. The
depth was noticed as 4 feet on the southern side and half
feet in another portion and northern portion covered with
bushes. So this itself does indicate that on the date of
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suit no cultivation was made by the plaintiff. The
Commissioner Report is dated 20.12.2004. So, the physical
feature also does indicate that the plaintiff was not in
possession on the date of the suit.
19.So, I find that neither the trial Court nor the
appellate Court have committed any error in appreciation
of the evidence. So, I find no reason to interfere into
the concurrent judgment of dismissal passed by the trial
Court and the appellate Court.
20.In the result, this second appeal fails and
dismissed with costs, confirming the concurrent judgment
and decree passed by the courts below.
14 /03/2025
Index:Yes/No
Internet:Yes/No
TM
To,
1.The Additional Sub Judge,
Thanjavur.
2.The District Munsif,
Thiruvaiyaru.
3.The Section Officer,
VR/ER Section,
Madurai Bench of Madras High Court,
Madurai.
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G.ILANGOVAN, J
TM
14/03/2025
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