IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.12.2009 CORAM THE HONOURABLE Ms. JUSTICE R.MALA S.A.No.385 of 2003 Chellammal ..Appellant/Plaintiff Vs 1.Nallammal 2.Azhagudurai 3.Narayanasamy 4.Visalatchi ..Respondents/Defendants PRAYER: Second Appeal filed under Section 100 of CPC against the Judgment and Decree passed by the Additional District and Sessions Court (Fast Track Court), Kallakurichi in A.S.No.27/2002 dated 3.5.2002 reversing the Judgement and Decree passed by the Principal District Munsif Court, Kallakurichi in O.S.No.341 of 92 dated 6.10.1998. For Appellant : M/s.K.A.Ramakrishnan for S.Sukumar For Respondents : M/s.V.Raghavachari J U D G M E N T Second Appeal filed against the Judgment and Decree passed by the Additional District Sessions Court (Fast Track Court), Kallakurichi in A.S.No.27/2002 dated 3.5.2002 reversing the Judgement and Decree passed by the Principal District Munsif Court, Kallakurichi in O.S.No.341 of 92 dated 6.10.1998. 2. The unsuccessful plaintiff as appellant filed the second appeal stating that she had purchased the suit property from one Ramasamy Poosali for Rs.3,000/- on 27.7.84 and from that date onwards, she is enjoying the same continuously without any interference for more than a statutory period. So she prescribed possessory title and she is using the suit property for residential purpose and also put up a cattleshed. She has also obtained an electricity service connection for the suit property in service connection No.180 and enjoying the suit property. On the remaining portion, she enjoyed by way of cultivating the same. The defendants/respondents have no right in the property. The 3rd respondent/6th defendant had enmity towards plaintiff and at the instigation of the 3rd respondent/6th defendant, the 4threspondent/7th https://hcservices.ecourts.gov.in/hcservices/ defendant attempted to interfere with her possession. Hence, the appellant/plaintiff is constrained to file the suit for declaration that she has possessory title over the suit property and also for an injunction not to interfere with her possession and she prayed for a decree. 3. The 1st respondent / 4th defendant resisted the suit contending that the sale deed in favour of the plaintiff/appellant is not true. The Ramasamy Poosali, the predecessor in title has no right over the property and the appellant/plaintiff is not enjoying the property and she is not in possession of the property and she has not obtained service connection in S.C.No.180. Per contra, the first respondent/defendant alone is in possession and enjoyment for the past 25 years and he purchased the same from Ramasamy Poosali. The appellant/plaintiff is not in possession of the suit property and the suit is not maintainable. 4. In trial Court, even though the defendants 1 to 3 were given up, the 2nd defendant filed his written statement, which was adopted by defendants 1 and 3 and the gist and essence of it is as follows: 4(i). The Plaintiff is not entitled to any relief much less than the possessory title. Neither the plaintiff nor the predecessor in title were in possession of the suit property. So they have not prescribed possessory title by adverse possession. It is false to contend that the plaintiff has purchased the property for Rs.3,000/- from Ramasamy poosali. It is also false to contend that Ramasamy Poosali had spent Rs.25,000/- for developing the property. He further submits that the suit property is a Eri Poromboke. So the plaintiff is not entitled to any right over the property. Because of this encroachment by the plaintiff, they are not able to store water and so it is necessary for removing the encroachment. Other averments in the plaint has been denied. No notice has been given under Section 80 Cr.P.C and hence the suit has to be dismissed. 5. During the pendency of the suit, the plaintiff has given up defendants 1 to 3 (Government of Tamil Nadu, represented by District Collector, Tahsildar Kallakurichi, Revenue Inspector, Chinna Salem). The learned District Munsiff, Kallkurichi, after hearing the arguments of both counsels and on a perusal of averments both in the plaint and written statement has framed four issues and considering the oral evidence of Pws 1 & 2, Dws 1 & 2, Exs.A1 to A8 and Exs.B1 to B6, decreed the suit. Against that, the defendants 4 to 7 filed A.S.No.27/2002 on the file of the learned Additional District Sessions Judge (Fast Track Court), Kallakurichi. On the basis of the arguments advanced by both counsels, the learned 1st Appellate Judge framed four points for consideration and allowed the appeal and dismissed the suit. Against that, the plaintiff has come forward with this Second Appeal. https://hcservices.ecourts.gov.in/hcservices/ 6. Substantial questions of law at the time of admission of the second appeal, the following were framed for consideration: (i) Whether the Lower Appellate Court was right in rejecting the oral and documentary evidence adduced on behalf of the plaintiff to prove her title to the suit property? (ii) Whether the Lower Appellate Court is correct in adverting to any discussion at all on the evidence let in on behalf of the plaintiff to prove that she and her Vendor have perfected their title over the suit property? (iii) Whether the Lower Appellate Court was right in holding that the plaintiff has not let in documentary evidence to prove her title in the suit property? (iv) Whether the Lower Appellate Court was right in not properly appreciating Ex.A1 to A8, which clinchingly proves the plaintiff's title over the suit property? 7. The appellant as a plaintiff filed a suit for declaration and possessory title stating that the suit property is a Government Poromboke. His predecessor Ramasamy Poosali encroached upon the property and he was in possession and enjoyment of the same. The appellant/plaintiff purchased the same under Ex.A1 on 27.7.84 and the defendants 4 to 7/ respondents herein attempted to interfere with her possession by denying her title. Hence, she has come forward with this suit for declaration of possessory title and injunction. Even though, the District Collector, Tahsildar, Revenue Inspector have filed the Written Statement stating that the suit property is Eri Poromboke and the defendants 4 to 7/ respondents herein contested the suit, the trial Court after framing necessary issues and considering the oral and documentary evidence decreed the suit stating that the appellant/plaintiff is in possession and enjoyment of the same as predecessor-in-title as well as granted possessory title and injunction. Against that, the defendants 4 to 7 /respondents herein had preferred an appeal. The 1st Appellate Court has discussed the matter and has come to a conclusion that the appellant herein/plaintiff is not entitled to any relief and allowed the appeal and dismissed the suit. Against that, the present second appeal has been preferred. 8. The learned counsel appearing for the appellant would contend that the suit property measuring 1 acre and 84 cents is an agricultural land. It is a Government Poromboke land and Ramasamy Poosali encroached upon the property and he was in possession and enjoyment for the past 53 years. The appellant herein/plaintiff purchased the suit property under Ex.A1-sale deed dated 27.7.84 and he has made a construction and she is residing there and she paid the kist under Exs.A4 & A5, she also obtained electricity service https://hcservices.ecourts.gov.in/hcservices/ connection in S.C.No.180. She paid the electricity consumption charges as per Exs.A6 to A8. So, she is in possession and enjoyment of the same. The appellant herein/plaintiff has purchased the property, which is a patta land. But the respondents herein/defendants denying the possessory title of appellant/plaintiff had attempted to interfere stating it as the Eri Poromboke land and hence they are not having any right over the property. The trial Court has considered all the aspects and arrived at a correct conclusion but the 1st appellate Court has not considered properly and allowed the appeal, hence she prayed for allowing of the appeal. 9. The learned counsel for the respondents would contend that since the respondents herein/defendants has purchased the suit property, they are in possession and enjoyment of the same. Patta has been given in the name of 4th defendant/1st respondent herein recognizing his possession. He also paid kist as per Ex.B-4 and adangal also stands in his name. He has also paid the house tax under Ex.B6. Hence, he prayed for dismissal of the appeal. 10. In the written statements of the defendants 1 to 3, it is stated that the suit property is an Eri Poromboke. This suit is filed for declaration and possessory title in respect of Eri Proromboke land. Admittedly after passing of the judgment by the Courts below, the decision reported in 2005 4 CTC 1 (L.Krishnan vs. State of Tamil Nadu and others) has been rendered by the Division Bench of this Court and the following dictum has been laid down, which reads as under:- “No one is entitled to any possessory title or injunction in respect of water bodies. Persons encroaching Eri Poromboke and lands which have been classified as lands meant for purpose of storage of water like ponds, lakes, tanks etc., can be evicted. Such step is required to be taken by State in order to improve water storage facility since people are suffering from acute shortage of water. As per Article 21 of the Constitution, Right to life, Right to enjoy quality of life in a healthy environment where ecological balance is maintained by preserving ponds, tanks and all illegal encroachments of these place are directed to be removed. Now trend in judicial decision does not recognise disharmony between Directive Principles and Fundamental Rights as they supplement each other in achieving goal of establishment of welfare state. Court should uphold, as far as possible legislation enacted by State to remove inequalities and attain distributive justice. As per Article 15-A(g) makes it fundamental duty of every citizen to protect and improve natural environment including forests, rivers and wild life. This duty can be enforced by Courts.” After the judgment have been rendered by both Trial Court and 1st Appellate Court, the dictum, has been laid down in the said decision. https://hcservices.ecourts.gov.in/hcservices/ Admittedly as per the statement of defendants 1 to 3, the property is Eri Poromboke. It is a water body. In the above said circumstances, I am of the view that the suit is not maintainable. 11. The learned counsel for the respondents would also rely upon the decision reported in (2008) 2 MLJ 1025 (Elephant G.Rajendran Vs. The District Collector and others). In the decision reported in (2005) 4 CTC 1 (L.Krishnan Vs. State of Tamil Nadu represented by its Secretary, Department of Revenue (Land Development), Fort, St.George, Chennai-600 009), where the Division Bench has come to the conclusion that it is a fundamental duty of every citizen "to protect and improve the natural environment including forests, lakes, rivers and wild like". The Hon'ble Supreme Court in the decision reported in (1997) 3 SCC 715 (M.C.Mehta Vs. Union of India and others) has held as follows: "Articles 21, 47, 48A and 51-A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wild life of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. The lakes "Precautionary Principle" makes it mandatory for the State Government to anticipate, prevent and attack the cause of environment degradation. We have no hesitation in holding that in order to protect the two lakes from environmental degradation it is necessary to limit the construction activity in the close vicinity of the lakes." 12. Further more, the learned counsel for respondents relied upon the unreported decision in W.P.No.1965 of 2008 and M.P.No.1 of 2008 pronounced by Hon'ble Justice P.K.Mishra and Hon'ble Justice K.Chandru, wherein it was stated as follows:- "5. There is no doubt that it is the duty of the State Government to protect the properties belonging to the State and more particularly to ensure that there is no unauthorized encroachment in natural water-bodies. At the same time, merely because there is an allegation of encroachment, without hearing the alleged encroachers, the High Court should not pass a specific order to remove any particularly encroachment as, such an order would be violative of the principles of natural justice. In the present case, the alleged encroachers have not been impleaded. In such a scenario, it would not be appropriate on our part to pass a specific order of removal of any particular encroacher." 6. In the above context, it is also necessary to emphasise that many instances have come to our notice where, seizing upon the general observation made by the High Court that steps should be https://hcservices.ecourts.gov.in/hcservices/ taken to remove the encroachment, the Government officials, without taking recourse to appropriate procedure contemplated under law, have been proactive to neck out the encroachers without giving them any opportunity of hearing. In this context, it is apparent that the Government officials have totally lost sight of the Full Bench decision of this Court reported in MANU/TN/0600/2005: 2005(2) CTC741 (Ramaraju V. State of Tamil Nadu and Ors.), wherein it has been emphasised that before removal of any encroachment, the appropriate procedure contemplated under law has to be followed. Whenever any order has been passed by the High Court that the encroachers should be removed, it obviously implies that such encroachers should be removed in accordance with law and not otherwise. 7. In the above context, the decision of the Supreme Court reported in 2004 3 L.W. 143 (Rame Gowda (Deceased) by Lrs v. M.Varadappa Naidu (Deceased) by Lrs anr Anr.) is required to be borne in mind. It is well settled principle that in India, no person is entitled to take law in his own hands and forcibly remove any person from possession, even if such person is a trespasser." 13. Even though the appellant herein/plaintiff filed suit for possessory title in respect of Eri Poromboke, but as per the decision reported in (i) M.C.Mehta Vs. Union of India and Others (1997) 3 SCC 715 (ii) Elephant G.Rajendran Vs. The District Collector and others reported in (2008) 2 MLJ 1025 and (iii) unreported decision in W.P.No.1965 of 2008 and M.P.No.1 of 2008 after the dictum has been laid down by the Division Bench in the decision reported in (2005) 4 CTC 1 (L.Krishnan Vs. State of Tamil Nadu represented by its Secretary, Department of Revenue (Land Development), Fort, St.George, Chennai-600 009), the persons who are encroaching upon the water body will not be entitled to any protection before the Court. Since the encroachment is upon a water body, the suit is not maintainable as she is claiming possessory title. However, the Government is entitled to remove the encroachment after following due procedure of law. Till then, both parties are not entitled to any relief, since the suit itself is not maintainable. Hence I am of the opinion that even though the trial Court has granted decree and the 1st Appellate Court has allowed the appeal on 3.5.2002, the decision reported in (2005) 4 CTC 1 (L.Krishnan Vs. State of Tamil Nadu represented by its Secretary, Department of Revenue (Land Development), Fort, St.George, Chennai-600 009) has been rendered only in 2005. It is a recent development in Law. In the above circumstances I am of the opinion that the suit itself is not maintainable, since the possessory title has been claimed in respect of water body. Hence, this Second appeal is liable to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 13. In fine, (i)the Second Appeal is dismissed as not maintainable. (ii)No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar jvm To 1. The Additional District and Sessions Court (Fast Track Court) Kullakurichi. 2. The Principal District Munsif Court, Kallakurichi. 3. The Section Officer, V.R. Section, High Court, Madras. + 1 c.c. to Mr. K.A. Ramakrishnan, Advocate. S.R.No.67823. + 1 c.c. to Mr. V. Raghavachari, Advocate. S.R.No.67928. S.A.No.385 of 2003 GV (CO) GSK 28.01.2010. https://hcservices.ecourts.gov.in/hcservices/