Madras High Court
N. Kuttalingam And Ors. vs The State Of Tamil Nadu Rep. By District ... on 18 December, 2007
Equivalent citations: (2008)3MLJ624
Author: P.R. Shivakumar
Bench: P.R. Shivakumar
JUDGMENT P.R. Shivakumar, J.
1. The plaintiffs who lost their case in both the courts below have come forward with the Second Appeal.
2. The appellants herein filed O.S. No. 70 of 1985 on the file of the Sub-Court, Nagercoil praying for the relief of perpetual injunction restraining the respondents herein/defendants from demolishing the structure on the western side of the suit property and for recovery of damages to an extent of Rs. 3000/-. The said prayer was based on the contention that the appellants/plaintiffs had purchased the suit site along with the building standing thereon and constructed a new building in 1946 itself after demolishing the old structure and that the defendants had taken steps to demolish a portion of the building contending the same to be an encroachment made in the Highways Poromboke belonging to the Government. According to the appellants/plaintiffs the building was constructed well within their boundary of their patta land and that even if there was any encroachment, the appellants had acquired title to the said encroached area by adverse possession.
3. The suit was resisted by the respondents/defendants by denying plaint averments that there was no encroachment and that even if there was any encroachment, plaintiffs had acquired title in respect of the area of encroachment. It was contended further by the respondents/defendants that the appellants/plaintiffs had encroached upon the Government Poromboke to an extent of 36 1/2 feet x 2 1/2 in the road poromboke and that action had been initiated by the National Highways Department to remove the said encroachment. It was also the contention of the respondents/defendants that the suit filed as against the steps taken under the Tamil Nadu Land Encroachment Act, 1905 could not be maintained in view of the bar provided under Section 14 of the said Act.
4. Based on the above said pleadings, the trial was conducted after framing necessary issues and at the conclusion of trial, the learned Subordinate Judge, Nagercoil considered the evidence both oral and documentary adduced on both sides and came to the conclusion that the plaintiffs had encroached upon a portion of the road poromboke belonging to National Highways Department that the plaintiff had not proved their case of perfection of title by adverse possession in respect of the encroached portion and that the notice issued under the Tamil Nadu Land Encroachment Act, 1905 was perfectly in order. Based on the above said findings, the trial court non-suited the appellants/plaintiffs for the relief of permanent injunction sought for in the plaint and accordingly the suit was dismissed by the trial court by its judgement and decree made in O.S. No. 70 of 1985 dated 28.6.1993.
5. Aggrieved by the said judgement and decree of the trial court, the appellants herein/plaintiffs preferred an appeal in A.S. No. 79 of 1983 on the file of the Principal District Judge, Nagercoil. The learned lower appellate Judge held that the notice issued under Section 6 of the Tamil Nadu Land Encroachment Act, 1905 was not valid as the same was not preceeded by a notice under Section 7 of the said Act. However in respect of all other issues, the learned lower appellate court concurred with the findings of the trial court on merit. The lower appellate Judge has also made an observation that the order passed under Section 80(2) of Civil Procedure Code dispensing with the notice under Section 80(1) was not valid. Ultimately the lower appellate Judge dismissed the appeal by its judgement and decree made in A.S. No. 79 of 1983, dated 11.6.1996 confirming the decree passed by the trial court. Hence the appellants/plaintiffs are before this Court in this Second Appeal.
6. Heard the submissions made by Mr. C. Godwin, the learned counsel appearing for the appellants, Mr. K.M. Vijakumar, learned Addl. Govt. Pleader, appearing for the first respondent and Mr. S. Meenakshi Sundaram, the learned counsel appearing for the second respondent.
7. At the time of admission of the Second Appeal, the following questions have been framed as substantial questions of law involved in this Second Appeal.
1) Whether the lower appellate court is right in holding that there is encroachment having regardto the oral and documentary evidence adduced in this case?
2) Whether the court below is right in holding that the appellants have not prescribed title by adverse possession having regard to the fact that the building is in existence as early as 1946?
3) Whether the Court below is justified in dismissing the suit having found that the notice under Section 7 of the Encroachment Act is not valid in law?
and
4. Whether the lower appellate court is right in holding that the dispensing with the notice under Section 80(1) of Code of Civil Procedure by the trial court is erroneous?
8. So far as the fourth substantial question of law is concerned, after going through the reasons assigned by the learned District Judge, this Court is of the considered view that the said observation made by the learned District Judge cannot be sustained. The procedure prescribed under Section 80(2) of the Act does not require any notice to be served on the respondent before dispensing with the notice under Section 80(1) of Civil Procedure Code. Section 80(2) is provided as an exception to Section 80(1) of Civil Procedure Code in order to enable a party to get emergent orders without serving notice under Section 80(1) of Civil Procedure Code. In the absence of an order under Section 80(2) dispensing with the notice under Section 80(1) when the requirements under Section 80(1) has not been complied with, the plaint will not be taken onfile and numbered as a suit. If notice to be given in a petition under Section 80(2) and objections have to be called for to decide whether an order dispensing with such notice can be passed the very object forhaving such a provision in the Civil Procedure Code shall stand defeated. In fact it is also admitted that soon after admission of the plaint and after serving notice on the respondents/defendants, emergent order of interim injunction was granted. under these circumstances, there is no defect or infirmity in the order dispensing with notice required to be given under Section 80(1) of the Act. For all the reasons stated above the said substantial question of law is answered in favour of the appellant and against the respondents . Accordingly this Court holds that the order of the trial court dispensing with Section 80(1) notice under Section 80(2) of Civil procedure Code is perfectly valid.
9. So far as the first three substantial question are concerned, this Court feels that consideration of all those questions are not at all necessary for the disposal of this case. On the other hand, the only substantial question of law that is involved in this Second Appeal is "whether the suit filed by the appellants/plaintiffs is maintainable in view of the bar provided under Section 14 of the Tamil Nadu Land Encroachment Act, 1905?"
Though the said question was not framed as one of the substantial question of law involved in the Second Appeal at the time of admission, it can be framed at the time of hearing of the Second Appeal. Hence the said question is framed as fifth substantial question of law involved in the Second Appeal.
Section 14 reads as follows:
14. Bar of jurisdiction of courts: Nothwithstanding anything contained in any law for the time being in force no order passed or proceeding taken by any officer or authority or the State Government under this Act shall be called in question in any court, in any suit or application and no injunction shall be granted by any court in respect of any action taken or to be taken by such officer or authority or the State Government in pursuance of any power conferred by or under this Act.
Construction of references: In the application of any rule, by-law, regulation notification, form or order made or issued under the Act, any reference to the Board of Revenue shall, unless the context otherwise requires, be deemed to be a reference to the Commissioner of Land administration.
10. There is a clear bar in entertaining any suit or application questioning the legality redence of the orders passed or proceedings taken by any officer or authority or State Government under the Tamil Nadu Land Encroachment Act,1905. The cause of action for filing of the suit by the appellants has been stated to be the marking of a portion of the building, constructed by the plaintiffs, as encroachments made on the road poromboke and the issuance of notice under Section 6 of the Tamil Nadu Land Encroahment Act, 1905 for the removal of encroachment. The further cause of action for the claim of damages, as stated by the plaintiff, is the actual removal of the encroachment pursuant to the said notice under Section 6 of the said Act. All the above said acts, notice and orders which have been cited as constituting cause of action for the suit, have been done/made/issued only in exercise of the powers conferred on the competent authority under the Tamil Nadu Land Encroachment Act, 1905. Therefore this court is very much convinced that bar provided under Section 14 for entertaining the suit questioning the legality of the said proceedings/orders passed by the competent authority under the said Act, squarely applies to the facts of the case on hand. In view of the above said finding regarding the fifth substantial question law framed, this court comes to the conclusion that there is no merit in the Second Appeal and the appeal deserves to be dismissed on the sole ground that the suit itself is not maintainable as per the bar provided under Section 14 of the Tamil Nadu Land Encroachment Act,1905.
Accordingly the Second Appeal is dismissed. However there shall be no order as to costs.