Madras High Court
K.S.Sivathiakani(Died) vs R.P.Arunachala Pandian on 20 June, 2012
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the Judgment Date of Pronouncing the Judgment
14.03.2019 22.03.2019
CORAM
THE HONOURABLE MR. JUSTICE R.PONGIAPPAN
S.A(MD)No.700 of 2009
and
M.P(MD) No.1 of 2009
1.K.S.Sivathiakani(died)
2.Kanakkan Nadar @ Subramainyan Nadar
3.K.S.Kuthalingam
4.K.Raja Seenishwaran
(Appellants 2 to 4 are brought on record
as LRs of the deceased 1st appellant vide
order dated 20.06.2012 made in
M.P(MD) No.1 of 2012) ... Appellants
Vs.
1.R.P.Arunachala Pandian
2.The Aavudaiyanur Panchayat
represented through its President
Aavudaiyanur Village P.O
Tenkasi Taluk,
Tirunelveli District. ...Respondents
Prayer: This Second Appeal is filed under Section 100 of Civil
Procedure Code, against the decree and judgment passed in
A.S.No.44 of 2006 dated 27.11.2006 by the Principal Sub Court,
http://www.judis.nic.in
2
Tenkasi, reversing the Decree and Judgement passed in O.S.No.101
of 2002 on the file of the Additional District Munsif Court, Tenkasi
dated 26.11.2004.
For Appellants : Mr.Ramesh @ Ramiah
For Respondents : Mr.S.A.Ajmalkhan
JUDGMENT
The respondent in A.S.No.44 of 2006 has filed this second appeal seeking for the relief to set aside the judgment and decree passed by the learned Principal Subordinate Judge, Tenkasi.
2.In earlier, the first appellant filed a suit against the respondents in O.S.No.101 of 2002 on the file of the learned Additional District Munsif, Tenkasi. In the said suit, the plaintiff sought for the relief of declaration, declaring that the first appellant/plaintiff is the owner of the suit second item of the property. Along with the said prayer, the first appellant/plaintiff also prayed for the relief of injunction restraining the respondents in demolishing the construction made by the appellant in the second item of the property. Further for the relief of mandatory http://www.judis.nic.in 3 injunction to restore the actual construction made by the plaintiff. By judgment and decree dated 26.11.2004, the learned Additional District Munsif, Tenkasi decreed the suit with compensatory cost of Rs.3,000/-. Aggrieved over the said findings, the respondents/defendants in this appeal preferred an appeal before the Principal Sub Court, Tenkasi in A.S.No.44 of 2006 for the relief to set aside the judgment and decree passed by the learned Additional District Munsif, Tenkasi. After elaborate enquiry, by judgment and decree, dated 27.11.2006, the learned Principal Subordinate Judge, Tenkasi had allowed the appeal and dismissed the suit with respective cost. Feeling aggrieved by the same, the first appellant/plaintiff has filed the present Second Appeal.
2.For the sake of convenience, the parties are referred to as, as described by the trial Court.
3.The averments made in the plaint, in brief, are as follows:-
The plaintiff purchased the suit first schedule property from one Kuththalvadivammal vide sale deed dated 25.01.1993. During the time of purchase, there was an existing house is present http://www.judis.nic.in 4 in the suit schedule property. After purchase, the plaintiff demolished the same and constructed the house, leaving one feet width space in the southern side of the suit schedule property. Due to the panchayat election, the plaintiff had previous enmity with the first defendant. During the time of construction, the plaintiff constructed the sunshade over the window and door on the east- west wall. On seeing the same, the first defendant by using his power, threatened the plaintiff by saying that the sunshade was constructed in encroached portion. The plaintiff replied to the second defendant that there was no encroachment made in the suit schedule property. Instead of request made by the plaintiff, the first respondent misusing his power, lodged a false complaint to the Tahsildar and to the Highways Officer. The officers also inspected the suit schedule property and told that there was no encroachment found in the suit property. Now the first defendant threatened the plaintiff by saying that a resolution was passed for the removal of alleged encroachment made by the plaintiff and that the first defendant sought for police protection in Pavoorchatram Police Station. Thereafter, the plaintiff contacted the Advocate and sent a telegram to the Inspector of Police, Pavoorchatram and Block Development Officer, Keelapavoor and also to the first http://www.judis.nic.in 5 defendant. The portions mentioned in the suit plaint as 'ABCD' is the first schedule and second schedule was mentioned as 'AEFD'. Further, the backyard portion was mentioned as 'BB1 CC1'. Since the highways road was situated in front of the house of the plaintiff, the defendants have not any power to remove anything from the plaintiff house. However, on 16.04.2002, after receiving the order of injunction passed by the Court in I.A.No.379 of 2002 at about 10.30 to 11.30 a.m., the defendants came with JCB and demolished the second schedule property. So, the plaintiff is having right to restore the demolished portion by way of seeking mandatory injunction. Accordingly, for the reliefs stated supra the suit has been filed by the plaintiff.
4.The averments made in the written statement filed by the defendants, in brief, are as follows:-
On 25.01.1993, the plaintiff obtained a planing permission to construct the house in the suit schedule property to an extent of 22 ¼ feet in east-west and 29 feet in south-north. After obtaining the permission, the plaintiff on the southern portion of the house, constructed steps as against the permission obtained from the second defendant. Inspite of the repeated requests, the plaintiff http://www.judis.nic.in 6 refused to demolish the encroached area. On 22.03.2002 a resolution was passed by the second respondent for removing the encroached area and the same was informed to the plaintiff. Only based on the resolution, on 16.04.2002, the encroached area was demolished. Only after demolishing the encroached area, the order passed in I.A.No.379 of 2002 was received by the defendants.
There was no previous enmity between the plaintiff and first defendant. Only in the official capacity, the suit second item of the property was removed by the second defendant. Hence, the first defendant is an unnecessary party and thereby, the suit is bad for misjoinder of party and the prayer sought by the plaintiff has become infructuous. Now, the plaintiff obtained a planning permission on 11.05.2001, against which constructed two floors. Only on 28.01.2002, the plaintiff filed an application for approving the construction, which was constructed against the approval. Hence, the plaintiff is not entitled to any relief as prayed for.
5.Based on the above said pleadings, the learned Additional District Munsif, Tenkasi had framed necessary issues and tried the suit.
http://www.judis.nic.in 7
6.Before the trial Court, during trial, on the side of the plaintiff, the plaintiff was examined himself as P.W.1 and she has examined one Sivarajan as P.W.2 and marked nine documents as Ex.A.1 to Ex.A.9. On the side of the defendants, the first defendant was examined himself as D.W.1and marked 8 documents as Ex.B.1 to Ex.B.8. Apart from those documents, the report and plan filed by the Advocate Commissioner was marked as Ex.C.1 and Ex.C.2. Further the file No. A.3 10026/2002 on the file of the District Collector, Tirunelveli along with proceedings of Revenue Divisional Officer on 19.09.2002 addressed to the District Collector of Tirunelveli in R.O.C.NO.(A3) 10026/2002 was exhibited as Ex.X.1. Further the proceedings of the collector in R.O.C.No.90435/2002 dated 17.11.2002 was marked as Ex.X.2 and the copy of the petition given by the plaintiff to the District Collector and xerox copy of reply given by the first defendant to District Collector were marked as Ex.X3 and Ex.X.4.
7.After concluding the trial the learned Additional District Munsif, Tenkasi had observed that the defendants, without following the procedures laid down in Tamil Nadu Panchayats Act, unauthorisedly demolished the portion belongs to the plaintiff and http://www.judis.nic.in 8 thereafter, passed the decree in favour of the plaintiff with compensatory cost of Rs.3,000/-.
8.In appeal, the learned Principal Subordinate Judge, Tenkasi, after observing that the defendants are acted only in accordance with law, allowed the appeal by setting aside the judgment and decree passed by the learned Additional District Munsif, Tenkasi.
9.In the said circumstances, while at the time of admitting the Second Appeal, this Court has formulated the following Substantial Questions of Law, for consideration:-
1.Whether the lower appellate Court reading of Ex.B.2 is correct and the conclusion that notice to the father in law is sufficient is legally sustainable?
2.Whether the lower appellate court is justified in accepting a plea outside the pleadings of the respondents?
3.Whether the respondents are entitled to remove and demolish the strutters of the appellant building without adopting the procedures and whether the respondents are justified in doing so?
http://www.judis.nic.in 9 Substantial Question of Law No.1:-
10.The case of the plaintiff is that the suit property, marked as 'ABCD' in rough plan (Ex.A.7), was purchased by the plaintiff vide sale deed dated 25.01.1993. The said sale deed is exhibited before the trial Court as Ex.A.1. After purchase, the patta pertaining to the property purchased by the plaintiff, was issued in favour of the plaintiff and the same was marked as Ex.A.8. Thereafter, the plaintiff submitted an application before the second defendant for planning permission to construct the house in the suit schedule property. As per the plan approval made by the second defendant on 11.05.2001 (Ex.A.9), the plaintiff constructed a house and only thereafter, the first defendant threatened the plaintiff by saying that the steps are constructed against the plan approved by the second defendant and demolished the same.
11.It is the case of the defendants that only based on the resolution passed by second defendant on 22.03.2002 the demolition was effected.
12.Now the learned counsel appearing for the appellant would contend that as per Section 131(2) of the Tamil Nadu Panchayats Act, for removing the construction made in the http://www.judis.nic.in 10 encroached portion, only the revenue peoples are having the power. But the second respondent/ second defendant without following the provisions, directly arranged the JCB and demolished the portion. It is purely illegal. Further, he added that demolition notice has been sent to the father-in-law and not to the plaintiff and thereby the notice issued to the father-in-law is not sufficient and legally unsustainable.
13.Now in the said circumstances, it is relevant to see the order of this Court in G.Radhakrishnan Vs. The President Edayakottai Panchayat reported in 2008(3) L.W.548 wherein the Hon'ble Division Bench of this Court while disposing the writ petition No.8003 of 2007 dated 30.10.2007, in paragraph No.14 has held as follows:-
1 4.A careful scrutiny of the afore mentioned provision would go to show that the Executive Authority, even suo motu, can institute proceedings under the Act and in case he could not obtain the removal of encroachment, then, he has to refer the matter to the officers of the Revenue Department, who would shoulder the responsibility of intiating the proceedings under the Tamil Nadu Land Encroachment Act, 1905, for securing the removal. The above said provision of law is so clear, to arrive at a conclusion, as aforestated.
http://www.judis.nic.in 11
14.Further in the said order, in paragraph No.19, it has been held as follows:-
19.After bestowing careful attention to the materials available and in the light of the G.O. passed, it is to be held that the Village Panchayat is an Executive Authority and the said Executive Authority has got every power to issue notice to the encroachers. The provision does not authorise him to proceed to take forcible physical possession of the property from the encroachers. If he is unable to get possession from the encroachers on issuance of necessary notice, the Revenue Department would take up the job of initiating further action against the encroachers under the Tamil Nadu Land Encroachment Act, 1905, to obtain possession from them.
15.So, according to the observations made by this Court, the second defendant being executive authority of Aavudaiyanur Village, got power to issue notice to the encroachers. Further, he could not obtain removal of encroachment then only he has to refer the matter to the officer of the Revenue Department. The entire order will disclose that the second defendant has not every right to issue notice and to demolish the encroached portion. http://www.judis.nic.in 12
16.The question is before passing of order to demolish the portion which was constructed against the approval plan, whether it is necessary the second defendant shall issue notice to the plaintiff. Even for complying the principles of natural justice, issuing notice to the plaintiff before demolition, is must. But in this case at the time of giving evidence as D.W.1, first defendant, in his cross examination has admitted as follows:
thjpf;F jhth ,lk; vj;jid mo ghj;jpak; vd;gJ gw;wp vdf;F bjhpahJ. thjp nuhl;oy; Mf;fpukpg;g[ bra;Js;suh rh;ntah; K:yk; mse;J ghh;j;njhkh vd;why; ehq;fs; msf;ftpy;iy. Rh;ntah; itj;J msf;ftpy;iy mq;fPfhpf;fg;gl;l gpshid tpl TLjyhf fl;oajhy; mq;fPfhpf;fg;gl;l gpshd; go mse;J ghh;jn; jhk; nuhl;oy; Mf;fpukpg;g[ vd;W brhy;yp eltof;if vLf;ftpy;iy. mq;fPfhpf;fg;gl;l gpshDf;F tpnuhjkhf ,Ue;jhy; jhd; ehq;fs; eltof;if vLj;njhk;. mq;fPfhpf;fg;gl;l gpshid tpl mjpfkhf fl;oa[s;sjhy; thjpf;F tpsf;fk; nfl;L fojk; mDg;gtpy;iy.
17.So the above said evidence given by the first defendant will categorically prove that without following the principles of the natural justice and also without following the procedure laid down in the Tamil Nadu Panchayats Act, the second defendant suo motu initiated action and demolished the property, which is belonged to the plaintiff. Even though the house of the father-in-law of the http://www.judis.nic.in 13 plaintiff is situated adjacent to the first item of suit property. The construction was made only by the plaintiff after getting proper approval from the second defendant. So, sending notice to the father in law of the plaintiff is not sufficient and legally unsustainable one. Accordingly, the substantial question of law No. 1 is decided as against the second defendant, who demolished the property owned by the plaintiff.
Substantial Question of law No.2:-
18.While at the time of disposing the first appeal, the first appellate Court had discussed about the construction made by the father-in-law of the plaintiff. Further, it is observed that the notice was issued to the father-in-law of the plaintiff as kartha of the family. In fact, on going through the pleadings set out in the plaint and written statement, it was not stated on either side that the father-in-law of the plaintiff is the Kartha of the family of the plaintiff. He has also having the property just adjacent to the suit property. It is not pleaded on either side that the father-in-law of the plaintiff has also constructed the building in violation of approval of plan for which separate notice has been issued by the second defendant. It is the settled position that without any http://www.judis.nic.in 14 specific plea, no amount of evidence can be let in. This Court while at the time of disposing S.A.No.316 of 1983 which was reported in CDJ 1996 MHC 516 (Arulmigu Viswewaraswami and Veeraraghava Perumal Temples, Tiruppur, Coimbatore District Vs. R.V.E.Venkatachala Gounder & another) has observed in Paragraph No.16, as follows:-
Likewise, there is not even an averment in the plaint. It is settled law that without a specific plea, no amount of evidence can be let in. Admittedly the contents of the above documents have not been mentioned either in the suit notice or in the plaint.
19.Therefore applying the said principle with the case in our hand, the first appellate Court went apart from the pleadings set out by either party and decided the case in favour of the defendants. Absolutely, the said procedure followed by the first appellate Court is against the principles of law and it is not necessary to go out side the case of the plaintiff. More than that, the statement that the father-in-law is the kartha of the family, is unbelivable one. On this score itself, the finding arrived at by the first appellate Court is perverse against the principles of natural justice. Thereby, the substantial question of law No.2 has also been answered in favour of the plaintiff.
http://www.judis.nic.in 15 Substantial question of Law No.3:-
20.For answering this substantial question of law, it is necessary to see Section 131 (2) of the Tamil Nadu Panchayats Act, 1994, which reads as follows:-
It shall be the duty of the Village Administrative Officer of every revenue village to report on encroachments on properties vested in Village Panchayats or Panchayat Union Councils to the Executive Authority or the Commissioner concerned and to the officer of the Revenue Department, and 1[it shall be the duty of the Executive Authority or the Commissioner concerned either suo motto or on obtaining a report from the Village Administrative Officer in this regard to institute proceedings under this Act] and secure the removal of the encroachments within such time as may be specified by the Government by general or special order. If the removal of the encroachments has not been secured within the period specified in such order, the officers of the Revenue Department shall institute proceedings under the Tamil Nadu Land Encroachment Act, 1905 (Tamil Nadu Act III of 1905) and secure such removal.
21.The said section clearly elicited the procedure to be adopted for removing the encroachments made in the property situated in village panchayat and Panchayat union councils. As http://www.judis.nic.in 16 already discussed in substantial question of law No.2, the second defendant panchayat itself is having power to remove the encroachment made in the panchayat. Here, it is necessary to find out whether the plaintiff is an encroacher. It is the case of the defendants that the plaintiff violated the planning permission and constructed the building over and above the permission granted under Ex.A.9. It is evident that the building was constructed in the property which was purchased by her vide sale deed dated 25.01.1993 (Ex.A.1). So it is necessary for the second defendant to measure the property before initiating any action, under the Tamil Nadu Panchayats Act. It is admitted on the side of the defendants that no opportunity was given to the plaintiff before demolition.
22.Even though, the Section referred above has given a power to demolish the structure, even under the Tamil Nadu Land Encroachment Act, 1905 (Tamil Nadu Act III of 1905) only after issuing the notice, which means only after giving an opportunity to the party, who encroached the area, the order of demolition will be passed. But in this case, even though, the specific provision is available under the Tamil Nadu Panchayats Act, 1994 and Tamil Nadu Act III of 1905 (Tamil Nadu Land Encroachment Act), the http://www.judis.nic.in 17 second defendant did not follow any procedure and violated the provisions. Being the executive, the second respondent panchayat is entitled to remove the encroachment. But at the same time, he has to follow the procedure contemplated under the Act referred above. Even for complying the principles of natural justice, opportunity must be given to the other side to prove the case of the plaintiff. But in this case, in the cross examination of D.W.1 itself, it is admitted that no opportunity was given. Without seeing this aspect, the first appellate Court had allowed the appeal and set aside the judgment and decree passed by the learned Additional District Munsif, Tenkasi, which is nothing but illegal.
23.However, since this case is in the stage of Second appeal, it is necessary for the Court to mould the relief, according to the expectations of plaintiff and defendants. Thereby, I am of the considered opinion that even though the second respondent/second defendant is acted against the provisions and since the said act was done in the capacity of the executive of panchayat, it is necessary to give some directions to the second respondent/ second defendant for settling the issue aroused in the suit. After receiving the copy of the judgment the second respondent/second defendant is http://www.judis.nic.in 18 directed to send a notice to the appellants and after obtaining the explanation from the appellants, order has to be passed in respect of the encroachment. Before that the second respondent/second defendant is directed to measure the property owned by the first appellant/plaintiff and identify whether the appellants are encroached or not. If the answer is in favour of the appellants, the second respondent is directed to reconstruct the demolished portion and if the answer is in favour of the second respondent, no further action is necessary. Accordingly, the substantial question of law No.3 is answered as above.
24.In the result, this Second Appeal is disposed of with the above directions. No costs. Consequently, connected miscellaneous petition is closed.
22.03.2019 Index : Yes/No Internet: Yes/No cp http://www.judis.nic.in 19 To
1. The Principal Subordinate Judge, Tenkasi
2. The Additional District Munsif, Tenkasi.
3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 20 R.PONGIAPPAN, J.
cp S.A(MD)No.700 of 2009 and M.P(MD) No.1 of 2009 22.03.2019 http://www.judis.nic.in