Madras High Court
The State Of Tamil Nadu vs Periyammal on 18 November, 2024
Author: V.Sivagnanam
Bench: V.Sivagnanam
S.A(MD)No.855 of 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 18.11.2024
CORAM
THE HON'BLE MR.JUSTICE V.SIVAGNANAM
S.A(MD)No.855 of 2005
1.The State of Tamil Nadu
Rep. by its District Collector,
Sivagangai.
2.The Tahsildar,
Tiruppathur,
Sivagangai District.
... Appellants
-vs-
1.Periyammal
2.Chidambaram
3.Mookaiah
4.Arivazhagam
5.Sathiamoorthi
6.Chelliah
..Respondents
PRAYER: Second Appeal filed under Section 100 Code of Civil
Procedure, against the Judgment and Decree made in A.S.No.36 of 2004
dated 21.03.2005 on the file of the Sub-Court, Sivagangai reversing the
Judgment and Decree made in O.S.No.114 of 2000 dated 04.03.2004 on
the file of the District Munsif Court, Thiruppathur.
https://www.mhc.tn.gov.in/judis
1/13
S.A(MD)No.855 of 2008
For Appellants ... Mr.M.Sidharathan
Addl. Govt. Pleader
For Respondents ... Mr.K.Muralidharan
for R1, R2 & R4
JUDGMENT
The Second Appeal has been filed against the Judgment and Decree passed in A.S.No.36 of 2004 dated 21.03.2005 on the file of the Sub-Court, Sivagangai, reversing the Judgment and Decree passed in O.S.No.114 of 2000 dated 04.03.2004 on the file of the District Munsif Court, Thiruppathur.
2. For the sake of convenience, the parties are referred to as per their ranking in the Trial Court.
3. The appellants are the first and second defendants in O.S.No. 114 of 2000 on the file of the District Munsif Court, Thiruppathur. The respondents 1 to 4 are the plaintiffs and the defendants 5 and 6 in the suit. The plaintiffs filed the suit for permanent injunction and for https://www.mhc.tn.gov.in/judis 2/13 S.A(MD)No.855 of 2008 peaceful possession over the plaint schedule property. The Trial Court found that the plaintiffs are not prescribed title by adverse possession and the property belongs to the Government and dismissed the suit as the plaintiffs are not entitled for injunction as sought for. Aggrieved by this judgment and decree, the plaintiffs preferred an appeal in A.S.No.36 of 2004 before the Sub Court, Sivagangai. Upon consideration of evidence on record, the First Appellate Court reversed the finding of the Trial Court and decreed the suit as prayed for and granted injunction in favour of the plaintiffs. Aggrieved by this, the defendants 1 and 2 preferred the present second appeal.
4. The case of the plaintiffs is that initially, the suit properties are the Government poramboke situated in S.Nos.128/1 and 45/1 at M.Kovilpatti Village. The plaintiffs' ancestors were in possession and enjoyment of the plaint schedule properties and thereafter, the plaintiffs are enjoying the same by constructing house, cattle form and planting 20 trees. The plaintiffs have been paying house tax for the past 40 years and enjoying the suit properties as open and exclusive for a period of 40 years. Hence, the plaintiffs are having prescriptive title by adverse possession. While so, the appellants/defendants 1 and 2 are attempting https://www.mhc.tn.gov.in/judis 3/13 S.A(MD)No.855 of 2008 to evict the plaintiffs. Hence, the plaintiffs filed the suit.
5. The defendants contested the suit and filed the written statement. In the written statement, the defendants have not disputed the fact that the suit properties are the Government poramboke situated in S.Nos.128/1 and 45/1 at M.Kovilpatti Village. However, the plaintiffs without any permission constructed the house, which is not accepted. The plaint schedule property is the Government poramboke land and hence, the suit is not maintainable. Therefore, the defendants pleaded to dismiss the suit.
6. On the basis of the above said pleas set out by the respective parties, the following issues were framed by the Trial Court for consideration:
1. Whether the plaintiffs are entitled to the relief of permanent injunction in respect of the plaint schedule property?
2. The plaint schedule property in S.No.128/1 is the Kalam Poramboke and S.No.45/1 is the Village Kanmai and the same were entered into village accounts. Hence, is it https://www.mhc.tn.gov.in/judis 4/13 S.A(MD)No.855 of 2008 correct to say that the plaintiffs are entitled to adverse possession in respect of the plaint schedule property?
3. Is it correct that the fourth respondent has signed the resolution of the Panchayat to remove the encroachers and that the fourth respondent cannot challenge against it?
4. As per Section 14 of the Tamil Nadu Land Encroachment Act, the Court cannot issue an injunction against the removal of encroachers. Hence, is it correct that this Court has no power to investigate this case?
5. Whether the suit has cause of action?
6. To what other relief, the plaintiff is entitled?
7. Before the Trial Court, on the side of the plaintiffs, the plaintiffs examined themselves as P.W.1 to P.W.4 and examined and marked 43 documents as Ex.A1 to Ex.A43. On the side of the defendants, two witnesses have been examined as D.W.1 and D.W.2 and 4 documents have been marked as Exs.B1 to B4. Besides, Ex.C1 and Ex.C2 have been marked.
https://www.mhc.tn.gov.in/judis 5/13 S.A(MD)No.855 of 2008
8. On consideration of the oral and documentary evidence adduced by the respective parties and the submission made, the Trial Court dismissed the suit. Aggrieved over the same, the plaintiffs preferred an appeal before the Sub Court, Sivagangai. The First Appellate Court, upon consideration of evidence on record, allowed the appeal and decreed the suit. Aggrieved by this, the defendants 1 and 2 filed the present second appeal.
9. While admitting the second appeal, this Court has formulated the following substantial questions of law:-
“1.Whether the plaintiffs are entitled to S.No. 125/1 and S.No.45/1 under adverse possession?
2. Whether they have proved their uninterrupted possession over the statutory period and thereby got clear title by adverse possession?
3. Whether the Civil Court has got jurisdiction while the defendants 1 & 2 are exercised their power https://www.mhc.tn.gov.in/judis 6/13 S.A(MD)No.855 of 2008 under Section 14 of Encroachment Act, 1996?
4. Whether the recommendations of the 3rd & 4th respondents are valid in the eye of law with regard to issuance of patta to the plaintiffs?
5. To whom the burden of proof lies on with regard to adverse possession?
6. Whether the plaintiffs' possession legally valid one and entitled to relief of injunction?".
10. The learned Additional Government Pleader appearing for the appellants/defendants 1 and 2 submitted that admittedly the plaint schedule properties are the Government Poramboke lands. The plaintiffs themselves admitted this fact in paragraph No.3 of the plaint. He further submitted that the plaintiffs have not proved their title by prescription by enjoying 40 years as claimed. The Trial Court rejected the claim of the plaintiffs and dismissed the suit. The First Appellate Court solely relying on the documents filed by the plaintiffs with regard to the payment of house tax receipts and the resolution passed by the defendants 3 and 4 with regard to the enjoyment and possession and their recommendation https://www.mhc.tn.gov.in/judis 7/13 S.A(MD)No.855 of 2008 for issuing patta and relying the Advocate Commissioner's report, reversed the Judgment of the Trial Court and granted injunction. The finding of the First Appellant Court is against the settled law and therefore, the plaintiffs are not entitled for injunction as against the Government and failed to prove their title by prescription. Therefore, the appellants/defendants 1 and 2 sought to set aside the Judgment and Decree of the First Appellate Court and restore the Judgment and Decree of the Trial Court.
11. The learned counsel for the respondents/plaintiffs supported the Judgment of the First Appellate Court and submitted that there is no illegality or irregularity in the finding of the First Appellate Court and no ground for interference and pleaded to dismiss the second appeal as it has no merits.
12. I have considered the matter in the light of the submissions made by the learned counsel on both sides and perused the materials available on records carefully.
13. The respondents 1 to 4 are the plaintiffs in the suit. The https://www.mhc.tn.gov.in/judis 8/13 S.A(MD)No.855 of 2008 plaintiffs are in possession and enjoyment over the plaint schedule properties for more than 30 years. Since the defendants interfered with the plaintiffs' possession and enjoyment, they filed the suit for injunction. The Trial Court upon consideration of evidence found that the plaintiffs are in possession, however, they failed to prove their title by prescription against the Government as required by law, since the plaintiffs claimed injunction against the Government, dismissed the suit. The First Appellate Court on fact and document found that the plaintiffs are in possession and enjoyment over the plaint schedule property and decreed the suit as prayed for.
14. On perusal of the records, it is noticed that the plaintiffs are in possession and enjoyment of the plaint schedule property. Ex.A1 and Ex.2 dated 31.01.2001 are the resolutions passed by the defendants 3 and 4/Muraiyoor Panchayat. On perusal of the resolution Exs.A1 and A2, it is noticed that the plaintiffs are in possession and enjoyment of the plaint schedule property by constructing a house. Further, it is noticed that the plaintiffs are in possession more than 30 years. Two resolutions recommended for issuing patta in favour of the plaintiffs, since there is no water in that area and also record placed that it is not required for the https://www.mhc.tn.gov.in/judis 9/13 S.A(MD)No.855 of 2008 panchayat. Apart from these two resolutions, a perusal of the documents filed by the plaintiffs, particularly, Exs.A6 to A14, it is revealed that the plaintiffs are in possession by paying house tax to the Panchayat. Besides, these two documents are supported by the Advocate Commissioner appointed by the Court and recorded that the plaintiffs are in possession and enjoyment of the plaint schedule property. All the exhibits revealed that the plaintiffs are in possession and enjoyment of the plaint schedule property, which is also not disputed.
15. Further, it is settled principle that with regard to the possessory title, a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against the world but the rightful owner. In this case, the plaintiffs are in possession and enjoyment of the property for more than 30 years. The settled preposition has been well considered by the Honourable Supreme Court in the case of Puran Singh & Ors vs State Of Punjab reported in (1975)4 SCC 518. The settled preposition is that the possession of a trespasser must be effective, undisturbed and to the knowledge of the owner or without any attempt at concealment. Similarly an occupation of the property by a person as an agent or a https://www.mhc.tn.gov.in/judis 10/13 S.A(MD)No.855 of 2008 servant at the instance of the owner will not amount to actual physical possession. But, in this case, the plaintiffs are in actual possession and enjoyment of the property. The settled position of law is that the persons are not permitted to take forcible possession and they must obtain such possession as they are entitled through a Court. A person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands. In the present case, the Trial Court though found that the plaintiffs are in possession and having failed to prove his title, but not considered the well settled principle of law that they are entitled for injunction. However, the First Appellate Court rightly decided the suit that the plaintiffs sufficiently proved that they are in peaceful possession over the plaint schedule property.
16. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law. Therefore, the First Appellate Court rightly decreed the suit and granted injunction in favour of the plaintiffs and set https://www.mhc.tn.gov.in/judis 11/13 S.A(MD)No.855 of 2008 aside the Judgment and Decree of the Trial Court. There is no illegality in the Judgment and Decree of the First Appellate Court. This second appeal has no merit and the same is liable to be dismissed. Accordingly, the substantial questions of law are answered.
17. In the result, the Second appeal fails and the same is dismissed. No costs.
18.11.2024 NCC : Yes/No Index : Yes/No Internet: Yes skn To:
1.The Subordinate Judge, Sivagangai.
2.The District Munsif, Thiruppathur.
3.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis 12/13 S.A(MD)No.855 of 2008 V.SIVAGNANAM, J.
skn Judgment made in S.A(MD)No.855 of 2005 18.11.2024 https://www.mhc.tn.gov.in/judis 13/13