K.Raju,S/O.Kuppusamy, v. The Tahsildar,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 01.04.2016
CORAM:
THE HON'BLE MR. JUSTICE M.DURAISWAMY S.A.No.2213 of 2004 and CMP.Nos.19558 of 2004 and 33 of 2009 and W.P.No.255 of 2011 and M.P.Nos. 1 and 3 of 2011 and WMP.No.2349 of 2016 S.A.No.2213 of 2004 K.Raju .. Appellant / Plaintiff v.
1. The Tahsildar Mettur Taluk Office, Mettur Dam, Salem District.
2. Divisional Development Officer Mettur Taluk, Salem District.
3. The Village Administrative Officer M.Kalipatti village, Mettur Taluk, Salem District.
4. The District Collector Salem.
.. Respondents/ Defendants Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 29.03.2004 passed in A.S.No.63 of 2003 on the file of the Subordinate Judge, Mettur, reversing the judgment and decree, dated 30.04.2001 passed in O.S.No.150 of 2000 on the file of the District Munsif Court, Mettur. For Appellant :Mr.M.Suresh Kumar For Respondents: Mr.T.Jayaramaraj, Govt. Advocate
W.P.No.255 of 2011 K.Raju .. Petitioner v.
1. The Tahsildar Office of the Tahsildar, Mettur, Salem District.
2. The District Collector Office of the District Collectorate, Salem.
3. Saraswathy W/o. Subramani
4. Rajammal W/o. Palaniappan
5. Kaliammal W/o. Arthanari
6. Panjali W/o. Periyasamy
7. Marakal W/o. Anbazhagan
8. Gopal H/o. Chellammal
9. Pappal W/o. Chinnusamy
10. Chinnaponnu W/o. Periyasamy
11. Marakkal W/o. Perumal
12. Marakkal W/o. Kaveri
13. Palaniammal W/o. Kumar
14. Malar W/o. Selvaraj
15. Malliga W/o. Perumal
16. Marakkal W/o. Kullu
17. Suseela W/o. Jeganathan
18. Maheswari W/o. Murugan
19. Kala W/o. Manikkam
20. Pethi W/o. Mathu
21. Pommi W/o. Chinraj
22. Marakkal W/o. Krishnan
23. Ponni W/o. Kunjappan
24. Thangammal W/o. Marappan
25. Tamilarasi W/o. Balan
26. Pappayee W/o. Narayanan
27. Angammal W/o. Perumal
28. Rajammal W/o. Chinnusamy
29. Nagamani W/o. Sankar
30. Saroja W/o. Manmathan
31. Ellammal W/o. Perumal .. Respondents (R3 to 7 impleaded as per order of this Court dated 1.4.2011 R8 to 31 impleaded as per order of this court dated 5.1.2016 in M.P.1 of 2015 in M.P.2/2011
Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, calling for the records in Na.Ka.5116/2010 K2 on the file of the second respondent, dated 24.12.2010 and quash the same as illegal, arbitrary and against the principles of natural justice and direct the second respondent to conduct proper enquiry and grant patta to the petitioner relating to Survey No.140/1, to an extent of 2 acres and 45 cents in M.Kalipatti village, Mecheri post, Mettur Taluk, Salem District.
For Petitioner : Mr.M.Suresh Kumar For Respondents : Mr.T.Jayaramaraj Govt. Advocate for R1 & R2 Mr.P.Jagadeesan for R3 to R7 Mr.A.Esakiappan for R8 to R31 COMMON JUDGMENT By consent of both the learned counsel appearing on either side, the second appeal and the writ petition are disposed of by this common Judgment.
2. The above Second Appeal arises against the Judgment and Decree passed in A.S.No.63 of 2003 on the file of the Subordinate Court, Mettur, reversing the Judgment and Decree, dated 30.04.2001 passed in O.S.No.150 of 2000 on the file of the District Munsif Court, Mettur.
3. The plaintiff is the appellant and the respondents were the defendants in the suit. The plaintiff filed the suit in O.S.No.150 of 2000 for permanent injunction. According to the plaintiff, the suit property is a poromboke land, measuring an extent of 2.45 acres in S.No.140/1. The plaintiff is an Ex-serviceman and therefore, he requested for allotment of land in S.No.140/1. The plaintiff also filed a suit in O.S.No.141/2000 on the file of the District Munsif Court, Mettur, for permanent injunction against one Murugan. On a reading of the plaint in O.S.No.141 of 2000, it could be seen that the said Murugan tried to interfere with the peaceful possession, therefore, the plaintiff had filed the suit as against the said Murugan. Subsequently, according to the plaintiff, the defendants tried to dispossess the plaintiff, present suit has been filed by the plaintiff for permanent injunction.
4. According to the plaintiff, he is in possession of the property, cultivating the same. The defendants filed
their written statement, wherein while denying the averments stated in the plaint, have also stated that the plaintiff has no right to be in possession of the property. Further, they have stated that the suit property is classified as Rock-Government poromboke land and further, stated that the Government, being the real owner of the suit property, the plaintiff is not entitled to get any decree for injunction as against the real and true owner. Further, the defendants have stated that the plaintiff is not entitled to the relief of permanent injunction, by virtue of Section 14 of Land Encroachment Act.
5. Before the trial Court, on the side of the plaintiff, he was examined as P.W.1 and 12 documents, Exs.A.1 to A.12 were marked and on the side of the defendants, D.W.1 was examined and three documents, Exs.D.1 to D.3 were marked. The trial Court, after taking into consideration the oral and documentary evidence of both sides, decreed the suit for permanent injunction. Aggrieved over the same, the defendants filed an appeal in A.S.No.63 of 2003 on the file of the Sub-Court, Mettur and the Lower Appellate Court, reversed the Judgment and Decree of the trial court and allowed the appeal. Aggrieved over the Judgment and Decree of the Lower Appellate Court, the plaintiff had filed the above appeal.
6. In the writ petition, the plaintiff has prayed for the issuance of writ of certiorarified mandamus, to call for the records on the file of the second respondent, dated 24.12.2010 and to quash the same and direct the second respondent to conduct proper enquiry and grant patta to the petitioner relating to S.No.140/1, to an extent of 2 acres and 45 cents in M.Kalipatti village, Mecheri post, Mettur Taluk, Salem District.
7. It is the case of the petitioner in the writ petition (who is the plaintiff in the suit), that he is in possession of occupation of the above said property and that he requested for assignment of the property in his favour, for the reason that he served for the Army.
8. In the affidavit filed in support of the writ petition, the petitioner has stated that he is in possession and enjoyment of the suit property for more than 26 years. The petitioner made an application to the respondents for the grant of patta on 20.11.2006 and again on 24.11.2006 and the second respondent, passed the impugned order, dated 24.12.2010, observing that the property, measuring an extent of 2.45 acres was assigned to 45 beneficiaries, who are Arunthathiars and therefore,
patta cannot be granted in favour of the petitioner in respect of an extent of 0.99.5 hectares. Further, the second respondent has stated that the said land is unfit for cultivation and therefore, it could be used only for some other public purpose by the Government.
9. The respondents filed their counter in the writ petition, wherein they have stated that the property has been classified as Paarai-Poromboke and the same is not fit for cultivation. In the counter, the respondents have also stated that the petitioner has no right in the lands.
10. Heard, Mr.M.Suresh Kumar, learned counsel appearing for the appellant as well as the writ petitioner and Mr.T.Jayaramaraj, learned Government Advocate appearing for the official respondents and Mr.P.Jagadeesan, learned counsel appearing for R3 to R7 and Mr.A.Esakiappan, learned counsel appearing for R8 to R31.
11. At the time of admission of the Second Appeal, the following Substantial Questions of Law arose for consideration :
"1. Whether on the facts and in the circumstances of the case, the first appellate Court was right in holding that the appellant in holding that the appellant is an encroacher without considering the documents submitted by the appellant to prove his lawful possession is correct in law ?
2. Whether on the facts and in the circumstances of the case, the first appellate court was right in not referring to the Encroachment Act for eviction under due process of law is correct in law ?
3. Whether on the facts and in the circumstances of the case, the first appellate Court was right in allowing the appeal merely on the ground that the appellant had not stated that the property was a Parai Poromboke, but stated only as poromboke, is correct in law ?"
12. On a careful consideration of the materials available on record and the submission made by the learned counsel on either side, it could be seen that there is no dispute that the lands belong to the respondentsGovernment. Admittedly, the land is a poromboke land. The
plaintiff contended that he is in possession of the said lands for more than 26 years and therefore, his possession should not be disturbed by the defendants. When the plaintiff had admitted that the respondents / defendants are the real owners of the lands, the prayer sought for by the plaintiff for permanent injunction cannot be granted. The plaintiff should have sought for the relief of permanent injunction, restraining the defendants from interfering with his possession, except under due process of law, instead the plaintiff had obtained a blanket decree for permanent injunction as against the real owner.
13. Mr.T.Jayaramaraj, learned Government Advocate appearing for the official respondents submitted that the respondents will take possession of the property only under the Provisions of the Tamil Nadu Land Encroachment Act, 1905 and also submitted that the respondents will not evict the petitioner by other means.
14. Since, it is a settled position that a decree for injunction cannot be granted as against the real owner, the lower appellate court, had rightly reversed the Judgment and Decree of the trial court and dismissed the suit. That apart, P.W.1 also in his evidence had admitted that the defendants are not interfering with his possession now and that the erstwhile Tahsildar, who was working as the jurisdiction Tahsildar had only interfered with his possession. That apart, P.W.1 also admitted that the respondents are not trying to evict him by unlawful means. When the plaintiff has stated that the defendants are not trying to evict him by unlawful means, the prayer for injunction will become unnecessary. That apart, as already stated, the decree for permanent injunction cannot be granted as against the true owner.
15. In this circumstances, the lower appellate Court has rightly reversed the Judgment and Decree of the trial Court and dismissed the suit. I do not find any ground much less any substantial question of law to interfere with the judgment and decree of the lower appellate court and therefore, the second appeal is liable to be dismissed.
16. Learned counsel appearing for the petitioner submitted that in view of the dismissal of the Second Appeal in S.A.No.2213 of 2004, the petitioner may be permitted to withdraw the writ petition and the learned counsel also made an endorsement to that effect. In the result, the Second Appeal is dismissed. It is open to the respondents / Government to evict the appellant
/ petitioner in accordance with law. The writ petition stands dismissed as withdrawn. Consequently, connected miscellaneous petitions are closed. No costs. Sd/- Asst.Registrar (CS III ) /true copy/ Sub Asst. Registrar tsvn To
1. The Subordinate Judge Mettur.
2. The District Munsif Court Mettur.
3. The Tahsildar Mettur Taluk Office, Mettur Dam, Salem District.
4. The District Collector Salem.
Copy to The Section Officer VR Section, High Court, Madras 1 cc to Mr.M. Sureshkumar, Advocate, Sr. 20777 1 cc to Spl.G.P. (S), Sr. 20861 2 ccs to Mr.A. Esakkiappan, Advocate, Sr. 20774 1 cc to Mr.P. Jagadeesan, Advocate, Sr. 21031 S.A.No.2213 of 2004 and W.P.No.255 of 2011 KSJ (CO) kk 25/4