Madras High Court
S.D.Kanagasabapathy (Died) vs State Of Tamil Nadu on 10 October, 2025
C.M.A(MD)No.1307 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 18.09.2025
Pronounced on : 10.10.2025
CORAM:
THE HONOURABLE MS.JUSTICE R.POORNIMA
C.M.A.(MD)No.1307 of 2010
1.S.D.Kanagasabapathy (died)
2.Chandra
3.Kavitha
(The appellants 2 and 3 are brought on record as Lrs.
of the deceased sold appellant vide Court order dated
07.11.2024 made in C.M.P.(MD)No.11623 of 2024)
... Appellants/ Respondents/Plaintiff
Vs.
1.State of Tamil Nadu,
through its District Collector, Thoothukudi.
2.Panchyat Union, Kovilpatti,
through its Commissioner
3.Tahsildar, Kovilpatti.
...Respondents/Appellants/Defendants
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C.M.A(MD)No.1307 of 2010
PRAYER: Civil Miscellaneous Appeal filed under Order 43 Rule 1(2) of
Civil Procedure Code, to reverse the judgment and decree dated
29.06.2010 of the first appellate Court namely, Subordinate Court,
Kovilpatti in A.S.No.9 of 2010 in remanding the matter before the Lower
Court namely, District Munsif Court, Kovilpatti and confirm the
judgment and decree of the Trial Court on the file of the District Munsif
Court Kovilpattu, delivered in O.S.No.43 of 2008 dated 08.12.2008, by
allowing the cost throughout.
For Appellants : Mrs.S.Prabha
For Respondents : Mr.D.Balamurugapandi
for Mr.K.A.Thirumalaiappan – for R2
Mr.N.Ramesh Arumugam – for R1 & R3
Government Advocate
JUDGMENT
This Civil Miscellaneous Appeal had been filed by the plaintiff in O.S.No.43 of 2008 on the file of the District Munsiff Court, Kovilpatti. The suit in O.S.No.43 of 2008 had been filed by the plaintiff against the defendants, for declaration, mandatory injunction and for fixing compensation in respect of the suit second schedule property.
2. The said suit came up for consideration before the learned District Munsif Court, Kovilpatti vide judgment and decree dated 06.12.2008, the District Munsif allowed the suit and directed the 2/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 07:12:14 pm ) C.M.A(MD)No.1307 of 2010 defendants 1 and 2 to pay compensation to the plaintiff in respect of the encroached portion of the second schedule property on the basis of the prevailing guideline value at the time of formation of the said road, within a period of six months from the date of that order, against which, first appeal has been preferred in A.S.No.9 of 2010 by the defendants 1 to 3.
3. The first appeal in A.S.No.9 of 2010, filed by the defendants came up for consideration before the Subordinate Court, Kovilpatti. The first appellate Court by its judgment and decree dated 29.06.2010, has set aside the judgement and decree of the trial Court, remanded the matter to the trial Court for fresh consideration. Challenging the judgment, the plaintiff had filed the present Civil Miscellaneous Appeal.
4. The plaintiff's case in O.S.No.48 of 2008 in brief, is as follows:
(a) The 1st suit schedule property was allotted to the plaintiff under a partition deed dated 10.09.1989 and his name was mutated in revenue records under patta No.143. The plaintiff has been in peaceful 3/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 07:12:14 pm ) C.M.A(MD)No.1307 of 2010 possession and enjoyment of the first suit schedule property without any interpretation. The 2nd schedule property form part of the 1st schedule property. The defendants has no right, title or interest over the said property as they are the absolute properties of the plaintiff.
(b) The eastern side of the road at Pandavarmangalam in Survey No.475/6 has been shown and used as road for several year , and the said road is described as 3rd schedule of the suit property.
(c) In order to provide welfare and development of his family, the plaintiff decided to partition the property among the family members and accordingly took steps to measure the same. During this process, he discovered that there had been encroachment upon the 1st and 2nd schedule suit properties. Consequently the plaintiff submitted an application before the third defendant on 07.02.2007 under the Right to Information Act and requested them to measure the property and to fix the boundaries. As per the direction of the third defendant, the property had been surveyed with the help of surveyors and the survey reveals that a portion of the 2nd schedule property was encroached by the defendants for laying road on east-west side. Therefore, he had issued a notice to the defendants and requesting them to not to interfere with his 2nd schedule property to utilise the same along with 3rd schedule poramboke property 4/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 07:12:14 pm ) C.M.A(MD)No.1307 of 2010 to lay road. Although he had issued notice on 20.05.2007, the Government authorities laid the road in the said property without issuing any prior notice to the plaintiff without conducting any enquiry and without following due process of law for the said land acquisition. The act of laying road within the plaintiff's property is illegal and amounts to encroachment. The defendants have no right title or authority to interfere with or encroach upon the plaintiff's property for the purpose of laying road. The plaintiff was put into mental stress. The third defendant is a formal party. Therefore, the suit filed with a prayer to declare the suit 1st and 2nd schedule property as absolute property of the plaintiff and grant mandatory injunction to remove the encroachment made on the east-west road.
(d) In the event that the Court is of the view that removal of the road is not proper and that would cause loss to the public, the defendants may be directed to ascertain the guideline value of the encroached portion and pay compensation. Hence, the suit.
5. The brief facts of the written statement filed by the 2nd defendant are as follows:
(a) The defendants denied all the allegations and contended 5/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 07:12:14 pm ) C.M.A(MD)No.1307 of 2010 that they had not encroached upon any portion of the plaintiffs property while laying the road. It was further contended that since there was no encroachment, no necessity to issue notice. The defendant also contended that the plaintiff had failed to issue any prior notice under Section 80 CPC. Hence, the suit may be dismissed with costs.
6. The brief facts of the written statement filed by the 3rd defendant and adopted by the 1st defendant are as follows:
The 3rd defendant denied the entire allegations. He is not a necessary party as he has not connected with the encroachment or laid the road and the suit may be dismissed for misjoinder of parties.
7. Based on the rival pleadings, the learned District Munsif, Kovilpatti, framed the following issues for consideration:
1. Whether the plaintiff is entitled for the relief of declaration that the suit properties belonging to the plaintiff as prayed for ?
2. Whether the plaintiff is entitled for the relief of Mandatory injunction to remove the pathway situate in 2nd schedule of the suit property ?
3. Whether the case of the defendant that 6/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 07:12:14 pm ) C.M.A(MD)No.1307 of 2010 there is no road was farmed in the suit property is correct or not ?
4. Whether the suit is bad for not giving notice under Section 80 of Code of Civil Procedure ?
Issue No.1 is modified as follows :
Whether the plaintiff is entitled for the relief of declaration in respect of 1st and 2nd schedule of suit property ?
Additional issues were framed as follows :
1. Whether the defendants are required to fix the quantum of compensation and be paid to the plaintiff ?
2. Whether the suit is bad for inclusion of necessary party to this proceedings ?
8. The Trial Court/ District Munsif Court, Kovilpatti, has decreed the suit vide judgement dated 08.12.2008, with a direction to the defendants 1 and 2 to take necessary steps to fix the compensation after giving opportunity to the plaintiff and to pay the compensation as per the guideline value permitted at the time of formation of road within a period of six months from the date of judgment, against which the defendants filed A.S.No.9 of 2010, with a prayer to set aside the judgment in 7/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 07:12:14 pm ) C.M.A(MD)No.1307 of 2010 O.S.No.43 of 2008, whereas, the First Appellate Court / Subordinate Judge, Kovilpatti, while setting aside the decree and judgement of the trial Court, remanded back the matter to the trial Court with the following direction :-
“The plaintiff was directed to file a petition seeking the appointment of an Advocate Commissioner. Even if the defendant opposed such a petition, the trial Court was instructed to allow the same and obtain a commission report. The Plaintiff was further directed to ascertain the guideline value of the land alleged to have been encroached upon by the defendants from the Sub Registrar and to calculate the compensation accordingly. The plaintiff was also permitted to amend the relief. The defendants were given liberty to oppose the claim and to file their respective petitions or statement in response. The trial Court was further directed to afford liberty to both parties to adduce evidence and to provide adequate opportunity to conclude the proceedings. The trial Court was also instructed to dispose of the matter and pass appropriate orders within period of six months.” 8/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 07:12:14 pm ) C.M.A(MD)No.1307 of 2010
9. Aggrieved by the said order of remand, the present Civil Miscellaneous Appeal has been filed by the plaintiff and the same was admitted on 08.09.2010. During the pendency of the appeal, the plaintiff was expired and his legal legal heirs were impleaded in the appeal.
10. Now, this Court has to decide whether the judgment of the First Appellate Court is sustainable or liable to be set aside?
11. For the sake of convenience, the parties are referred to herein, as their own ranking as before the Trial Court.
12. The learned counsel for the appellants/plaintiff during argument submitted that since the plaintiff was an Advocate, he decided to not press the prayer for the relief of declaration and mandatory injunction in respect of the encroachment portion of suit 2nd schedule property for the sake of convenience of public. The plaintiff has confined his prayer only to the relief of compensation as sought for in the suit.
13. The learned counsel for the appellants argued that the First Appellate Court erred in remanding the case to the trial Court and 9/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 07:12:14 pm ) C.M.A(MD)No.1307 of 2010 failed to appreciate that the Government had not produced any document in support of its case. He further submitted that as per Ex.A.4 plan pertaining to Survey No.475/7 clearly established that the defendant had trespassed into the private property and had laid the road. He further argued that the First Appellate Court failed to see that Ex.A4 and Ex.A5 plans are only Government plans duly countersigned by the Tahsildar. Furthermore Ex.A7 village account gives the coarse through which the cart track runs excluding Survey No.475/7 and the same was issued by the Tahsildar. The First Appellate Court failed to see that the plaintiff has examined P.W.2 - a Government servant to establish that the road was laid in the private property of the plaintiff and also argued that the Court wrongly held that there is no proof to show that the road was laid in Survey No.475/7 and he further argued that the First Appellate Court should not have remanded the matter for fixing up the disputed road in Survey No.475/7 or 475/6 and also failed to see that the compensation under the Land Acquisition Act was not fixed, rather called upon the plaintiff to pay Court fees on an uncertain amount and the First Appellate Court wrongly called upon the affected party to pay the Court fees for an undetermined value and prayed to reverse the judgment and decree dated 29.06.2010 of the First Appellate Court and confirm the judgment of the 10/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 07:12:14 pm ) C.M.A(MD)No.1307 of 2010 trial Court dated 08.12.2008.
14. The learned Government Advocate appearing for the respondents referred to the copy of FMB sketch annexed to his typed set of papers and contended that the road was laid only in Survey No.475/6 and not in a portion of 475/7 as alleged by the appellants/plaintiff.
15. He further stated that the Revenue Divisional Officer in his report dated 11.11.2022 stated that the plaintiff himself had shown the road situated in Government poramboke land in Survey No.475/6, had subsequently executed 7 sale deeds. In all the sale deeds, he mentioned the road situated in Survey No.475/6 as boundary. Hence, it was contended that no portion of plaintiffs Private land had been encroached. He also enclosed encumbrance certificate, FMB certificate and photographs to establish that the government authority has not encroached the lands belonging to the plaintiff. He further contended that the plaintiff failed to prove his case by appointing an Advocate Commissioner and measure the property through proper surveyor and to show that the respondents/ defendants were encroached the property. 11/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 07:12:14 pm ) C.M.A(MD)No.1307 of 2010
16. He further stated that taking into consideration of the fact that the plaintiff has not proved the case, the First Appellate Court has rightly held that since there is no measurement to show that what is the exact extent alleged to be encroached by the defendants. Furthermore the plaintiffs failed to establish the date of encroachment. Therefore, the Court directed the plaintiff to measure the suit property with the help of a Government Surveyor and to mark the same. In case, if the property of the plaintiff is encroached, he must obtain the guideline value and apply for compensation after making necessary amendments and stated that the order of the First Appellate Court is sustainable and need no interference, pray to dismiss the appeal.
17. Heard the learned counsel on either side and perused the materials available on record.
18. The plaintiff has contended that the defendants 1 & 2 have unlawfully encroached upon the second schedule property by forming a road. In order to establish his case, the plaintiff examined PW1 to 3 and marked Ex.A1 to Ex.A5. Ex.A1 is the partition deed dated 10.09.1986 between the plaintiff and others, in which the plaintiff was 12/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 07:12:14 pm ) C.M.A(MD)No.1307 of 2010 allotted 3.92 acre in survey No.475 /7. Ex.A2 patta passbook issued by the Tahsildar, Kovilpatti in favour of the plaintiff in respect of survey number 475/7. Ex.A3 is the copy of letter dated 7.2.2007, sent by the plaintiff to the Tahsildar, Kovilpatti, with request to measure the road and to issue sketch. Ex.A4 is the sketch issued by the Tahsildar, Kovilpatti. Ex.A5 is the letter dated 20.05.2007 issued by the plaintiff addressed to the defendants 1 and 2. Ex.A6 is the FMB sketch of Pandava Mangalam issued by the Tahsildar, Kovilpatti in respect of survey No.475.
19. In the normal course, if a party alleges encroachment of land, it is his burden to prove the same by filing FMB sketch/village map/town survey map to show the official boundaries, Advocate Commissioner report appointed by court after local inspection measurement and comparison with survey records, surveyor report, measurement plan conducted by Government or license surveyor, showing how much land has been encroached, photographs, showing physical encroachment, tax receipts/cultivation record, indicating continued position, with statement confirming the plaintiff possession and the act of encroachment, old documents or photographs, showing the earlier physical boundary before encroachment occurred. Notice to be 13/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 07:12:14 pm ) C.M.A(MD)No.1307 of 2010 issued under Section 80 of CPC against Government with evidence of recent construction without consent.
20. According to the defendants, the existing road is situated only in Survey No.475/6 in Government poramboke land. Therefore, a proper survey is necessary to measure and determine the exact extent if any of the encroachment made by the Government in the property in Survey No.475/7.
21. During cross examination, the plaintiff admitted that, he has not filed any application seeking appointment of a Commissioner to measure the property. Though the plaintiff filed Ex.P4, a plan issued by the Tahsildar, through the Village Administrative Officer, however, the said Officer stated that the plaintiff could not establish the encroachment through Ex.A4. Furthermore, the plan marked as Ex.A4 does not correspond with the measurements claimed by the plaintiff. Further, the plaintiff has not produced any document to show the guide line value of the property alleged to have been encroached upon by the defendants. Therefore, this Court is of the view that it is essential for the plaintiff to have the property measured through an Advocate Commissioner assisted 14/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 07:12:14 pm ) C.M.A(MD)No.1307 of 2010 by a qualified Government Surveyor after issuing notice to the defendant. In the event that any encroachment is found upon, the plaintiff shall file the details relating to the guideline value of the portion alleged to have been encroached, in order to ascertain the correct valuation of the property.
22. The First Appellate Court, after taking into consideration of the materials available on record, remanded the matter to the trial Court for fresh consideration. This Court finds no reason to interfere with the order passed by the First Appellate Court.
23. Accordingly, this Court confirms the said order and directs the trial Court to take up the matter forthwith and conclude the trial proceedings and pass appropriate orders in accordance with the direction of the First Appellate Court within a period of three months from the date of copy of this order. The Point is answered accordingly.
24. In the result, the Civil Miscellaneous Appeal fails and accordingly, the same is dismissed. The judgment dated 29.06.2010 passed in A.S.No.9 of 2010 on the file of the Subordinate Court, 15/18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 10/10/2025 07:12:14 pm ) C.M.A(MD)No.1307 of 2010 Kovilpatti is hereby confirmed. However, the trial Court is directed to take up the suit forthwith, conclude the trial proceedings and pass appropriate orders in accordance with the direction of the First Appellate Court within a period of three months from the date of copy of this order. No costs. Consequently, connected miscellaneous petition is closed.
10.10.2025
Index : Yes / No
NCC : Yes / No
RM
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C.M.A(MD)No.1307 of 2010
To
1.The Subordinate Court,
Kovilpatti.
2. The District Munsif Court,
Kovilpatti.
Copy to
1.The Section Officer,
ER/VR Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)No.1307 of 2010
R.POORNIMA, J.
RM
Judgment in
C.M.A.(MD)No.1307 of 2010
10.10.2025
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