Madras High Court
Archuna Ganesan vs G.Desiga Vinayagam(Died) ... First on 26 July, 2016
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on:21.07.2016
Delivered on:26.07.2016
DATED : 26.07.2016
Coram
THE HONOURABLE MS.JUSTICE R.MALA
S.A.No(MD).271 of 2009
Archuna Ganesan .. Appellant/First Respondent/ First Defendant
vs.
1.G.Desiga Vinayagam(died) ... First Respondent/Appellant/Plaintiff
2.State represented by
The District Collector of
Kanyakumari District having
Office at Nagercoil, Nagercoil Village,
Agasteeswaram Taluk,
Kanyakumari District. .. Second Respondent/ Second Respondent/
Second Defendant
3.The Tahsildar, Agasteeswaram Taluk,
having Office at Cape Road,
Nagercoil, Nagercoil Village,
Agasteeswaram Taluk,
Kanyakumari District. ... Third Respondent/ Third Respondent/
Third Defendant
4.Bagavathiammal
5.Deepalakshmi
6.Ganesh ... Respondents
(Respondents 4 to 6 are brought
as LRs of the deceased 1st Respondent
as per order dated 05.10.2015 made
in M.P.(MD)Nos.1 to 3 of 2013)
PRAYER: Second Appeal filed under Section 100 of the Code of Civil Procedure,
against the Judgement and Decree dated 30.10.2008 made in A.S.No.93 of 2006,
on the file of the First Additional Subordinate Court, Nagercoil, reversing
the judgment and decree dated 11.09.2006, made in O.S.No.497 of 2002, on the
file of the Principal District Munsif, Nagercoil.
!For Appellant : Mr.V.Meenakshi Sundaram
^For Respondents :Mr.R.Velmurugan
Government Advocate
for R.2 and R.3
: Ms.J.Anandhavalli
for R.4 to R.6
: R.1 - died
:JUDGMENT
The appellant/first defendant who lost the legal battle in the first Appellate Court has come forward with the Second Appeal, challenging the Decree and Judgment passed in A.S.No.93 of 2006, dated 30.10.2008 by the First Additional Subordinate Court, Nagercoil, by reversing the Decree and Judgment made in O.S.No.497 of 2002, dated 11.09.2006 by the Principal District Munsif Court, Nagercoil.
2. The first respondent as plaintiff filed a suit for permanent injunction restraining the defendants, their men and agent from interfering his peaceful possession and enjoyment of the suit property and thereby restraining from demolishing the plaintiff's ?A-B? portion of his southern wall and committed illegal trespass into the plaint schedule property stating that the suit property and other properties are originally belonged to one Kottar Chettoor Nainar Desiga Vinayagar Devasthanam Trust (hereinafter referred as Trust) and the plaintiff took the property for ground rent and the plaintiff constructed a building in that and he is a tenant for the past 60 years by paying rent. In the year 1998-1999, the plaintiff demolished the old superstructure in the plaint schedule property and put up a new one and paid the municipal tax in his name.
3. The plaintiff schedule property face on the northern side towards Chetty street, Kottar. One house belongs to Shunmugam lies on the east of the plaintiff's property. On the west, the property of one Ayyamperumal and on the south, a vacant site belongs to Chettoor Desiga Vinayagar Trust lies. Except on the northern side, all the three boundaries of the plaintiff having buildings. The first defendant who is a stranger to that place, purchased some area on the souther side of Ayyamperumal's property about three months back. In order to carry out the building materials to his property, he attempted to demolish ?A-B? portion of the plaintiff's southern wall, in which he has no right to demolish. Hence, the plaintiff is constrained to file the suit for permanent injunction.
4. The appellant as a defendant filed a written statement and contested the same by stating that the suit property is in R.S. No. P.23/110 which is only ""Nilaviyal Sandhu"" in revenue records. The new construction was made in the year 1999 by the plaintiff, which has not been approved by the Municipality even though, he applied for approval. The house bearing Door No.28/4-100 which was in the name ?Nainar Desiga Vinayagar Vagai? and it was transferred to the name of the plaintiff only on 25.02.1999. So the construction made by the plaintiff is unauthorised construction and it is subject to be removed.
5. On the western side of the plaintiff's property in R.S.No. P23/110, there is existing public lane classified as ?"Nilaviyal Sandhu"
Podhu Padhai? which is about 5 feet width. This public lane has been recently encroached by the plaintiff and the plaintiff has put up his house building. Before filing of the suit, he put up a wall on the southern side of the lane, obstructing the usage of the lane by the defendant and others. The wall has been marked as "A-B" in the rough plan. The property of Ayyamperuaml lies on the western side of this lane and not to the western side of the plaintiff's property. As the encroachment is an illegal encroachment and as it is being done in order to give trouble to the defendant, the defendant presented a complaint to the Tahsildar, Agasteeswaram Taluk and requested him to take action to remove the encroachment. The Tahsildar also visited the site and as he found that the encroachment and obstruction is illegal and hence, he sent a notice to the plaintiff to remove the encroachment within 15 days. But the order of the Tahsildar has not been complied with by the plaintiff. A final notice has also been issued by the Tahsildar to remove the encroachment. There was a drainage carrying the sewage water of the surrounding houses through the public lane and now because of the obstruction made by the plaintiff, the sewage water remains stored in front of the houses, which is becoming a health hazard to the public. He would further state that the entire ground area is belonging to Chettoor Desiga Vinayagar Trust and he is the necessary party to the suit.
6. He filed additional written statement and in that it was stated that the the property in R.S.No.P.23/110 is a Government property classified as "Nilaviyal Sandhu" in revenue records.
7. The third defendant filed a written statement and in that it was stated that the property in R.S.No.P23/110 is classified as "Nilaviyal Sandhu" which forms pathway towards North connecting Chetty street, Kottar. The plaintiff has put up structures obstructing the pathway. No one has right to use the ?"Nilaviyal Sandhu"? exclusively, which is common to all for the purpose of pathway. The plaintiff has no right to put up structure, obstructing the pathway in R.S.No.P23/110. He cannot claim title over the property. ?"Nilaviyal Sandhu"? has to be kept and preserved as such, because if it is blocked or obstructed, it would cause considerable nuisance for the purpose who may have occasioned to use the same as pathway. It is the duty of the State to preserve it as pathway. No exclusive possession can be allowed in respect of the pathway. Hence, he prayed for dismissal of the suit.
8. The trial Court, after considering the averments both in the plaint and written statement and the arguments of both sides, has framed the necessary issues and dismissed the suit stating that it is "Nilaviyal Sandhu"
and it can be used for public to reach the Chetti street and it was under the management of the Municipality and now the plaintiff has made encroachment and made a staircase.
9. Against which, the plaintiff filed an appeal in O.S.No.93 of 2006 and in the appeal, the first appellate Court has held that even though R.S.No.P23/110 is mentioned as "Nilaviyal Sandhu", it is belonging to Nainar Desiga Vinayagar Vagai which has been mentioned in Exs.B.1, B.18, B.19 and B.20. The first defendant has not proved that it is a public pathway which was used for public and decreed the suit by setting aside the judgment and decree passed by the trial Court. Against which, the second appeal has been preferred by the first defendant.
10. At the time of admission of the Second Appeal, the following Substantial Question of Law has been framed:
?(1) Once the trial Court after considering the materials came to the conclusion that the plaintiff has encroached upon S.No.P.23/110 and made a construction, which is "Nilaviyal Sandhu", whether the first appellate Court is right in granting injunction in favour of the plaintiff?
(2) Whether the judgment and decree of the first appellate Court is perverse??
11. The learned Counsel appearing for the appellant/first defendant would submit that admittedly the suit property is in R.S.No.P23/110 and it is classified as ?Nilaviyal Sandhu?. The first respondent/plaintiff is a tenant under the temple. Since the building has been in a dilapidated stage, he purchased the superstructure and made a new construction. At that time, he has encroached upon this suit property and made a staircase. The document filed by him shows only as R.S.No.P23/111 and the suit property is in R.S.No.P23/110. At the time of filing the suit, the plaintiff filed the suit only in respect of R.S.No.P23/111 against the first defendant. After filing of the written statement, amendment has been made and since it is ?Nilaviyal Sandhu?, the Government and the Local Body Authority have been impleaded as defendants 2 and 3. At the time of filing the suit, Exs.A.1 to A.4 only show that R.S.No.P23/111 and no approval has been granted. The documents Exs.A.9, A.17 and A.18 are obtained after the suit. P.W.2 is the employee of the trust, who is the relative of P.W.1. P.W.3 is also an Advocate and he is one of the legal advisors of the trust. In their evidence itself, it was stated that it was a "Nilaviyal Sandhu". This factum was not considered by the first appellate Court.
12. The learned Counsel appearing for the appellant/first defendant would further submit that D.W.1 ? Village Administrative Officer and D.W.5 ? Assistant Revenue Inspector would categorically depose that it is a "Nilaviyal Sandhu" and that has been fortified by Ex.P.18 ? A Register, Exs.P.19 and 20 ? Adangals. Since the appellant sent an application, now the Government is taking steps to remove the encroachment. Then only, the plaintiff impleaded them as parties and amended the plaint. That lane has been used by the adjacent house owners and maintained by the Municipality.
"Nilaviyal Sandhu" is a pathway to reach the main street. That factum was not considered by the first appellate Court, even though the trial Curt has rightly considered these aspects and dismissed the suit. Hence, the judgment and decree of the first appellate Court is perverse and prayed for setting aside the decree and judgment of the first appellate Court.
13. The learned Government Advocate appearing for the respondents 2 and 3 has adopted the arguments of the learned Counsel for the appellant and also would submit that the first respondent encroached upon the "Nilaviyal Sandhu" and made a construction and hence, they are taking steps to remove the obstruction. Immediately, they were impleaded as parties in the suit and the plaint has been amended. It is used for public, those who are having houses near the "Nilaviyal Sandhu" which leads to main Chetti street. It was maintained by the Local Body Authorities. Hence, he prayed for setting aside the judgment and decree passed by the first appellate Court.
14. Resisting the same, the learned Counsel appearing for the respondents 4 to 6, who are the legal heirs of the first respondent/plaintiff would submit that the appellant has not filed any document to show that R.S.No.P23/110 was used as public pathway. In that, the plaintiff is the tenant and he purchased the superstructure and he is paying the ground rent to the Trust, he steps into shoes of the original owner and he is in possession and his possession is legal. Hence, he is entitled to get an injunction and that has been correctly considered by the first appellate Court, even though the trial Court has not considered the same. He would further submit that no one has been examined to prove that R.S.No.P23/110 is "Nilaviyal Sandhu" and it has been used by the public who are having houses adjacent to the lane to reach the Chetti street.
15. He would further submit that the first defendant purchased the property three months prior to the filing of the suit. He purchased the property from one Kolappan and he can only steps into the shoes of Kolappan. Even though he has stated that there was a partition between Kolappan and his family members, the partition deed has not been marked and the sale deed has not been marked. If really those documents were marked, it have clearly stated that ?Nilaviyal Sandhu? is not leading to Chetti street.. The fact remains, since there is other pathway is there, he has not filed those documents. He would further submit that the non-examination of Kolappan is fatal to the case of the defendant. Even though, the Commissioner was appointed and he inspected the property and filed a report, he only stated that there was an access to the defendant to reach the Chetti street. In R.S.P23/110 in "A-B" portion, there was a compound wall and staircase was there. But the appellant has not been filed any objection to the Commissioner's report. The examination of witnesses both orally and documentary on both sides, has been correctly considered by the first appellate Court, which is the last fact finding Court and came to the correct conclusion. and it is a well reasoned judgment and it is not suffered with any illegality or infirmity. Hence, he prayed for dismissal of the Second Appeal. He also relied upon the decision in The Commissioner, Bhavani Municipality, Bhavani Vs. C.Ramasamy (deceased) and Others reported in 2015(3) MWN (Civil) 186.
16. Heard the submissions made by the learned Counsel appearing on either side and perused the materials available on record.
17. It is an admitted fact that the suit property is in R.S.No.P23/110 and R.S.No.P23/111. Originally the first respondent/plaintiff filed the suit only in respect of the suit property in R.S.No.P23/111 against the appellant/first defendant. After filing of the written statement stating that the plaintiff has encroached upon the property in R.S.No.P23/110 and it is a public pathway classified as "Nilaviyal Sandhu" which is about 5 feet width and the first defendant has also given a representation to the District Collector and the Local Body Authority, then only the plaint has been amended in the description of the property. In that it was stated that R.S.No.P23/111 and R.S.No.P23/110 and the defendants 2 and 3 were impleaded, who are the respondents 2 and 3 herein. It is also an admitted fact that the suit property and other properties are belonging to Kottar Chetti Nainar Desiga Vinayagar Trust (herein after it is referred as Trust). Some of the people are taking ground land of this Trust for rent and made a construction and residing there and paying the ground rent to this Trust and paid the property tax to the Local Body Authorities. Likewise, the first respondent/plaintiff is in possession and enjoyment of the same. Since the building is in a dilapidated condition, he has purchased the superstructure under Ex.A.1 dated 12.07.1171 for Rs.10,000/-. A resolution has been passed as per Ex.A.14, dated 05.01.1996. The ground rent receipts are marked as Exs.A.2 and A.3 and the ground rent is Rs.120/-p.a.
18. After the plaintiff made a construction, the assessment transfer order has been passed under Ex.A.4, dated 31.01.1178. In that it was mentioned as Ward No.29, 4th street and Door No.100. The property tax receipt stands in the name of the Trust and it was marked as Ex.A.5. The plaintiff has also marked Exs.A.6, A.8 and A.11. But the point to be decided is whether R.S.No.P23/110 is "Nilaviyal Sandhu".
19. Since the first respondent/plaintiff died, his legal heirs respondents 4 to 6 are entitled to make a construction in this area. But admittedly as per the revenue records Ex.B.1, it was stated that R.S.No.P23/110 is "Nilaviyal Sandhu". Moreover the documents Ex.B.18- A Register and Exs.B.19 and B.20 also show that it is "Nilaviyal Sandhu". But the patta stands in the name of the Trust.
20. The case of the appellant/first defendant is that "Nilaviyal Sandhu" means, in hill station lane has been formed for the convenience of the inmates of that area to use this lane to reach the main road. But it is an admitted fact that R.S.No.P23/110 is "Nilaviyal Sandhu" and R.S.No. P.23/113 and 115 also lanes. So the case of the appellant/first defendant is that since it is "Nilaviyal Sandhu", the first respondent /plaintiff has no right to make a construction and obstructed the free access to the inmates using this lane. But admittedly, the suit has been filed by the first respondent/plaintiff for the above stated relief. So, if there is any illegal encroachment and obstruction made by the first respondent/plaintiff, the appellant/first defendant has no right to interfere with his possession and demolish the same.
21. It is pertinent to note that the appellant/first respondent has purchased leasehold right in the ground from one Kolappan under Ex.B.2 dated 24.07.2002 in R.S.No.P23/104 and he made a construction and no objection certificate has been issued by the Trust under Ex.B.3, dated 16.09.2002. The ground rent receipts were also marked as Exs.B.4 and B.5. Having entered into ground rent agreement and made a construction and enjoying the property, the ground is belonging to the Trust. Since the appellant/first defendant has attempted to put up construction, he has sent a communication to the Tahsildar, District Collector and the Commissioner of Municipality. But admittedly, before making construction, the first respondent/plaintiff has applied for plan approval from the Municipality i.e., Ex.A.13. In that it was specifically mentioned as T.S.No.P23/111 measuring North South 10.95 metres and East West 4.45 metres and that has been returned on 09.02.1999. In that plan, 5 feet lane has been shown as western boundary. In that also, the Trustee has signed. After filing of the suit, the plaintiff/first respondent applied fresh approval of plan application and permission has been granted for the period from 02.12.2005 to 01.12.2008 vide Ex.A.18. In that he has stated that on East West 6.15 metres and North South 11 metres and it includes a lane. So, that has been got approved by the Municipality Commissioner. So before filing the suit, the plaintiff has given the measurement and their proposed construction measurement is North South 10.95 metres and East West 4.45 metres. In that on eastern side, a lane has been mentioned and that lane has been reached the Chetti street on the north. After filing of the suit, the first respondent/plaintiff obtained another house tax receipt, which was marked as Ex.A.9, dated 14.01.2005 and in that, measurement has been given as on East West 21 s feet and on North South 35 feet. Ex.A.16 also mentioned the same. This shows that these documents falsified the case of the first respondent/plaintiff that he was in possession and enjoyment of the property both in R.S.No.P23/110 and R.S.No.P23/111 and under impression that it is R.S.No.P23/111 and made a construction and there was no lane.
22. Furthermore, the argument advanced by the learned Counsel for the first respondent/plaintiff that there is no lane and even though it was stated as "Nilaviyal Sandhu", the pattathar is the temple and it alone is enjoying the property and there was an old building in R.S.No.P23/110 much prior to the filing of the suit is not merit acceptance. The document filed by the first respondent/plaintiff vide Ex.A.13 has been falsified the case of the first respondent/plaintiff.
23. The learned Counsel for the appellant has relied upon the judgment in S.A.No.1641 of 2011 and submit that the land is classified as ?Nilaviyal Chandu? in the revenue records. It is not a private land assigned in favour of any private individual. Therefore, automatically, the custody of the property vests with the respondent municipality. The respondent is one of the wings of the Government and or an agent which acts for and on behalf of the Government of Tamil Nadu. For the purpose of administration and maintenance of the suit lands, it is vested with the respondent municipality and the respondent municipality has got every right to deal with the same for and on behalf of the Government of Tamil Nadu.
24. The learned Counsel for the respondents 4 to 6 also relied upon a decision in The Commissioner, Bhavani Municipality, Bhavani Vs. C.Ramasamy (deceased) and Others reported in 2015(3) MWN (Civil) 186 and would submit that mere entry in the revenue records would not confer any title on the Municipality. For that, it is appropriate to incorporate the following passage in the above said decision:
?12. ..... Unless private parties to whom the land belongs execute conveyance deed in favour of Panchayat, the Panchayat or local bodies cannot claim such roads as public road. It is also held in the same judgment that if a road itself formed in a private property and so long as it is not dedicated as public road, nobody can claim as a matter of right to pass through or to make use of the same as pathway. As stated supra, the appellant failed to prove dedication of the road in T.S.No.2/2 by the owners of the property. Therefore, when there is no dedication by the owners, merely as it is stated in Ex.A.9 that T.S.No.2/2 is Boosthathi Tar Road, it cannot be presumed that it is a road belonging to the Municipality.?
25. It is true that the revenue records are not title documents and mere entry in the revenue records would not confer any title on the Municipality. But the documents filed by the respondents would show that he is in possession and enjoyment of R.S.No.P23/111. Hence the document Ex.A.13 itself falsified the case of the first respondent that he was in possession of both R.S.No.P23/110 and R.S.No.P23/111. Further the respondents sought for approval for construction of building as per Ex.A.13 only in respect of R.S.No.P23/111. If the legal heirs of the first respondent/plaintiff viz., the respondents 4 to 6 have made a construction in this ?Nilaviyal Chandu?, the respondents 2 and 3 have every right to take effective steps to remove the same. But the appellant/first defendant has no business to demolish the first respondent/plaintiff's ?A-B? potion of his southern wall and commit illegal trespass into the plaint schedule property. However, because of injunction has been granted, it will not affect the rights of the respondents 2 and 3, Government Officials, to take steps in accordance with law, if it is ?Nilaviyal Chandu? and used by public. That factum was not considered by the first appellate Court. So I am of the view that the encroacher cannot be evicted illegally, even though the respondents 2 and 3 have taken steps to cancel the approval given under Ex.A.18 and also issued eviction notice. So I am of the view that the respondents 2 and 3 are at liberty to proceed with in accordance with law to remove the encroachment, if any made by the respondents 4 to 6. Till then, the appellant/first defendant is prohibited to interfere with the respondents peaceful possession and enjoyment of the suit property and also restraining him to demolish the the first respondent/plaintiff's ?A-B? potion of his southern wall and commit illegal trespass into the plaint schedule property. The Substantial Questions of Law 1 and 2 are answered accordingly.
26. In the result, the Second Appeal is dismissed with the following modifications:
(i) The judgment and decree passed in A.S.No.93 of 2006, on the file of the First Additional Subordinate Court, Nagercoil is hereby confirmed;
however the decree is not an impediment to the respondents 2 and 3 who are the State Authorities to remove the encroachment if any made by the respondents 4 to 6 in R.S.No.P23/110, if it is ?Nilaviyal Chandu? and used by public.
(ii) There shall be no order as to costs.
To
1. The First Additional Subordinate Judge, Nagercoil.
2. The Principal District Munsif, Nagercoil.
.