IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 06.09.2010 CORAM THE HONOURABLE MR. JUSTICE M. VENUGOPAL S.A.No.771 of 2000 Syed Abdul Jabbar ... Appellant/Plaintiff Vs 1.The Executive Officer, Selection Grade Town Panchayat, Denkanikottai, Dharmapuri District. 2.The State of Tamil Nadu represented by the District Collector, Dharmapuri. ... Respondents/Defendants PRAYER: Appeal is filed under Section 100 C.P.C as against the Judgment and Decree dated 13.10.1999 passed in A.S.No.109 of 1997 on the file of the Learned II Additional District and Sessions Judge- Chief Judicial Magistrate, Krishnagiri in reversing the Judgment and decree dated 18.10.1996 passed in O.S.No.46 of 1996 on the file of the Subordinate Court, Hosur. For Appellant : Mr.P.Mani For Respondents : Mrs.R.Revathy, Government Advocate JUDGMENT The Appellant/Respondent/Plaintiff has filed this Second Appeal as against the Judgment and Decree dated 13.10.1999 in A.S.No.109 of 1997 on the file of Learned II Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Krishnagiri. 2.The First Appellate Court viz., the Learned II Additional District and Sessions Judge-Chief Judicial Magistrate, Krishnagiri, in the Judgment in A.S.No.109 of 1997 dated 13.10.1999 has among other things observed that 'the Appellant/Plaintiff is not entitled to claim the relief of recovery of possession in respect of the suit property and further it is also held that the Appellant/Plaintiff is not entitled to claim a sum of Rs.20,000/- determined by the trial Court as compensation and consequently allowed the Appeal, thereby setting aside the Judgment and Decree of the trial Court passed in https://hcservices.ecourts.gov.in/hcservices/ the main Suit O.S.No.46 of 1996 on its file. 3.Before the trial Court, on the side of the Appellant/Plaintiff, 1 to 9 issues were framed for trial. On the side of the Appellant/Plaintiff, witnesses PW1 to PW3 were examined and Ex.A.1 to Ex.A.13 were marked. On the side of the Respondents/Defendants witnesses DW1 to DW3 were examined and Ex.B.1 to Ex.B.8 were marked. Also, as Court Exhibits, the Commissioner's Reports and plans were marked as Ex.C.1 to Ex.C.4. 4.On an appreciation oral and documentary evidence available on record the trial Court has come to the conclusion that the Appellant/Plaintiff has a claim over the suit property and since the Respondents/Defendants have removed the Appellant/plaintiff unlawfully they are required to hand over the possession of the suit property to the Appellant/Plaintiff and further has held that as per Section 170 of the Panchayat Act, no notice is required to be sent and consequently granted the relief of permanent injunction and mandatory injunction as prayed for by the Appellant/Plaintiff in the suit, but in regard to the claim of compensation it awarded only a sum of Rs.20,000/- to the Appellant/Plaintiff and decreed the suit, leaving the parties to bear their own costs. 5.The trial Court in Paragraph 5 of its Judgment in the suit has observed that though it is stated that the suit property belonged to Panchayat when it has been handed over to Panchayat has not been stated. Further, the trial Court has opined that in respect of Occupied Natham Poramboke who ever encroachers upon the same it belonged to him and since the suit property has been admitted to be a Grama Natham and encroached by the Appellant/Plaintiff the plea that it belonged to Panchayat is not accepted. 6.Moreover, the trial Court in Paragraph 6 of the Judgment has observed that on the basis of contradictory evidence of defendant witnesses it is unbelievable to say that the Plaintiff has voluntarily vacated the shop. That apart, the trial Court has held that the averment officers have demolished the shop is believable, but to say that they have removed the articles of the building is unbelievable. In respect of damage to articles and buildings damaged, the trial Court has awarded a sum of Rs.10,000/- each and in all it granted a sum of Rs.20,000/-. 7.The First Appellate Court has come to the conclusion that the evidence of witnesses examined and document marked on the side of the Appellant/Plaintiff are not sufficient to prove that the Appellant/Plaintiff has been enjoyment of the suit property before the year 1980. 8.Furthermore, the First Appellate Court viz., the Learned II Additional District and Sessions Judge-Chief Judicial Magistrate, https://hcservices.ecourts.gov.in/hcservices/ Krishnagiri has also opined that the document filed on the side of the Appellant/Plaintiff are only for ten years to show possession and added further, the evidence of PW2 to 4 are all interested. 9.Being dissatisfied with the Judgment and Decree passed by the First Appellate Court viz., the II Additional District and Sessions Judge-Chief Judicial Magistrate, Krishnagiri in A.S.No.109 of 1997 dated 13.10.1999, the Appellant/Plaintiff has filed the Second Appeal before this Court. 10.At the time of admission of the Second Appeal, this Court has framed the following substantial question of law. "(1)Whether in law the appellant derived title to the suit property when the same is classified as occupied Grama Natham and when the Appellant occupied the suit property in the year 1958 by putting up a residential house and has been residing for more than the statutory period? 11.The Contentions, Discussions and Finding on substantial question of law No.1: According to the Learned Counsel for the Appellant/Plaintiff, the First Appellate Court should have dismissed the Appeal and confirmed the well considered Judgment and Decree of the trial Court on the basis of the facts and circumstances and evidence on record of the case, adduced by the Appellant/Plaintiff. 12.The Learned Counsel for the Appellant/Plaintiff urges before this Court that the Appellant/Plaintiff and his ancestors have been in possession of the suit property by permanently putting up the superstructure and residing there for more than 30 years but this aspect of the matter has not been considered by the First Appellate Court in a real perspective. 13.A plea is raised on behalf of the Appellant/Plaintiff that in respect of the suit land, the First Respondent/First Defendant is levying house tax and collecting the same from the Appellant as if the suit property belonged to him and as such the First Appellate Court should have decreed the suit as prayed for by the Appellant/Plaintiff. 14.Proceeding further, the Learned Counsel for the Appellant/Plaintiff contends that the First Appellate Court ought to have considered Ex.A.1 to Ex.A.13 documents coupled with the evidence of PW1 to PW4 and should have held that the Appellant/Plaintiff has been in possession of the suit properties since 1958 and perfected his title over the suit property by means of Adverse possession. 15.Per contra, the Learned Government Advocate appearing for the https://hcservices.ecourts.gov.in/hcservices/ Respondents 1 and 2/Defendants submits that the suit property was used as Hotel and the Appellant/Plaintiff was running the business in the buildings and since the Appellant/Plaintiff was using the premises as a Hotel the question of perfected possession does not arise and moreover as per the Board Standing Order in the Natham poramboke the occupant must construct a house alone for residential purpose and one cannot construct a building for commercial purpose. 16.Added further, the Learned Government Advocate for the Respondents 1 and 2/Defendants contends that there was no proof that the Appellant/Plaintiff was using the suit property for more than 30 years and in fact no document was produced to that effect and admittedly, the suit property was a Natham poramboke land and indeed, the First Appellate Court had rightly allowed the Appeal filed by the Respondents/Defendants and set aside the Judgment and Decree of the trial Court passed in the main suit O.S.No.46 of 1996, dated 18.10.1996 and the same need not be disturbed by this Court at this stage of Second Appeal. 17.Advancing her arguments, the Learned Government Advocate for the Respondents/Defendants submits that Grama Natham was to be used for dwelling house only for Appellant/Plaintiff's occupation but it should not be used for running a Hotel and as a matter of fact, the Appellant/Plaintiff was running a Hotel in the suit property as evidenced from the reports of the Commissioner and therefore, prays for dismissal of the Second Appeal. 18.In support of the contention that Grama Natham never vested with the Respondents and in fact, the Appellant/Plaintiff had right title and possession, the Learned Counsel for the Appellant/Plaintiff cites the decision of this Court A.K.Thillaivanan and another v. The District Collector, Chengai Anna District at Kancheepuram and three others – 1998-3-L.W.603, at Page Nos.604 and 605 wherein it is observed that 'It has been admitted in the counter affidavit that the land is a village Natham. The village Natham is a land which never vested with the respondents (the State) and they have no right to it. Admittedly, when the land has been classified as village Natham, it is obvious that no portion of the land vests with the respondents. The admitted classification is village Natham and merely because the petitioners have converted the same into agricultural lands, no right could accrue to the respondents even after conversion. Thus, it is obvious that the petitioners are in exclusive possession and enjoyment of the land without interference by the respondents or any other person. Such possession, it is admitted, is since 1954 onwards. As such from the counter affidavit, this Court holds that the petitioners have https://hcservices.ecourts.gov.in/hcservices/ acquired a valid right to the land by their exclusive possession since 1954 onwards. It has to be pointed out that the respondents have admitted the exclusive possession of the petitioners and their father since 1954. It is not the case of the respondents that the petitioners were ever assessed to penal charges nor the petitioners have ever been issued B- Memo.' 'Being a grama natham, it is obvious that the land in question had never vested with the Government. Section 2 of the Land Encroachment Act, 1905 excludes grama natham owned as house site. As such the provisions of the Land Encroachment Act, 1905 cannot be invoked by the respondents in respect of the land in question. It has been held as early as in (1949) I MLJ 290 (Palani Ammal v. L.Sethurama Aiyangaar) that grama natham is not a communal property in the sense in which thrashing floor or burning grounds or other property is communal that is property reserved for the use of the community. It is obvious, the admitted classification of the land being a grama natham, the land was never vested with the respondents nor they could take action under the Land Encroachment Act or any other enactment. The petitioners state they have exclusive right, title, possession, since 1954 onwards. The respondents have not right to interfere with the peaceful possession and enjoyment of the land and their action in giving a complaint for alleged offence under Section 420 of the IPC is total misconception. Incidentally, the respondents in the counter have stated that it is a village site. Further, it is to be pointed out that even according to the respondent, it is a grama natham and the respondents never had right nor the grama natham had ever vested with the respondents. In the circumstances, the petitioner is entitled the relief of Mandamus as prayed for. Normally, this Court should not have gone into the dispute of title or possession. But in the present case, in the counter affidavit filed by the respondents not only the classification as grama natham but also the exclusive possession since 1954 has been admitted. As such the petitioners have prescribed title to the land and the same cannot be interfered by the respondents either under Land Encroachment Act or under the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act.' https://hcservices.ecourts.gov.in/hcservices/ 19.In the decision, the Executive Officer, Kadathur Town Panchayat, Harur Taluk, Dharmapuri District v. V.S.Swaminathan and others – 2004(3) CTC 270, at Page 273 wherein at Para 9, it is observed as follows; 'A perusal of a combined reading of Section 3(b) and Section 18 of Madras Estates (Abolition and Conversion into Pyotwari) Act viz., Madras Act XXVI of 1948 and Section 2 of the Madras Land Encroachment Act, 1905 discloses that the title to a house site in a Grama Natham is protected from transfer to Government.' 20.Also, in the same Page at Page 274 in Paras 12 and 13, it is observed hereunder. '12.Further, 'Grama Natham' is defined in the Law Lexicon as "ground set apart on which the house of village may be built." Similarly, Natham land is described in Tamil Lexicon published under the authority of University of Madras to the effect that it is residential portion of a village' or portion of a village inhabited by the non- Brahmins; or land reserved as house sites; etc. 13.In the light of the above and in view of the fact that the admitted classification of the land being a 'Grama Natham', it is obvious that the land was never vested with the Government or the Town Panchayat. Inasmuch as the petitioners and their ancestors were in exclusive possession of the lands in question for the past 40 years, the impugned order of the third respondent in cancelling the pattas with a view to evict them summarily at the instance of the resolution passed by the Panchayat is not sustainable. Further such a summary eviction is not permissible in law when the disputed question of title is involved for adjudications as laid down by the Apex Court in number of decisions.' 21.In the decision, the State of Tamil Nadu represented by the District Collector, Kamarajar District, Virudhunagar and another v. R.P.Patchirajan and another – 2009-1-L.W.917, this Court has held that 'The lack of action on the part of the Government for the past 40 years is also an adding factor to show that the property has not been treated as a public one though they have been described as such in the revenue records and in the absence of exercise of any right over the suit properties by the Government, the contention that they have been remaining as poramboke lands or Grama Natham has to be discountenanced. Circumstance of its description in the https://hcservices.ecourts.gov.in/hcservices/ records as Grama Natham, will not partake the character of porampoke land as pleaded by the Government. 22.The Learned Counsel for the Appellant/Plaintiff seeks in aid of the decision of this Court Ellammal and Others v. State of Tamil Nadu represented by its Collector of North Arcot District, Vellore and Others – (2007) 2 MLJ 1113, wherein it is held as follows; In the present case, it is not even the case of the defendants that due to the use of this lands, for different purposes, there was a re-classification by making the lands not to be Grmanatham. While so, the decision arrived at by the learned first appellate Judge, on the basis that the plaintiffs have not proved under Exhibits A-10 to A-13 that the patta has not been granted in their favour, has no legal basis whatsoever. A reference to the pleadings by the defendants shows that no where the defendants have raised objection to the various documents, by which the predecessors-in-title of the plaintiff have purchased the property, namely, under Exhibits A-4, A-7, A-8, including Exhibit A-1. It is only on the basis that no patta was granted in favour of the plaintiffs, as well as predecessors-in-title, the defendants took the stand that neither the plaintiff, nor the predecessors-in-title were in ownership of the property and therefore, the claim of the plaintiffs, based on the document, not sustainable. As correctly found by the learned trial Judge, the plaintiffs and his predecessors have been in continuous possession and in uninterrupted enjoyment for more than 60 years and therefore, obtained title by adverse possession.' 23.From the perusal of the averments of the plaint filed by the Appellant/Plaintiff, it transpires that the Appellant/Plaintiff has averred that he is an absolute owner of the site mentioned in the Schedule-A and that he encroached the vacant site in the year 1958 and started the Fruit Stall by putting up the thatched shed and was running the said Stall in the suit property for about 12 years and further from the date of encroachment in the year 1958 he has been asserting exercising of rights of the ownership of the same as his own property to the knowledge of the people of the Denkanikottai and the Respondents/Defendants. 24.According to the Appellant/Plaintiff, he dismantled the thatched shed and constructed a mangalore tiled house building in the year 1970 by laying rock foundation and brick walls plastered with cement by spending Rs.35,000/- for constructing the titled house on the suit site and that the First Respondent/First Defendant acquiesced in such construction and had not made any objection and https://hcservices.ecourts.gov.in/hcservices/ further after constructing the mangalore tiled house, started a Hotel in the name and style of Bilal in the front portion and used the back portion for residential purposes and that the First Respondent/First Defendant required him to pay the professional tax and accordingly he was paying the said tax. The First Respondent/First Defendant had assigned the Door No.28A to the constructed building. After issuance of notice to the Appellant/Plaintiff, the First Respondent/First Defendant increased the house tax. 25.The stand of the Appellant/Plaintiff is that he was in open, continuous and uninterrupted possession and enjoyment of the suit property and the superstructure or house construction put up thereon since the year 1958 adverted to all including the Respondents/ Defendant to their knowledge and therefore in any case he had perfected title to the suit property and the house constructed there on by means of Adverse possession. In the year 1982, the Appellant/Plaintiff had started a Bakery. He obtained Electricity Service Connection soon after the construction of the house building in the year 1970. 26.The Learned Counsel for the Appellant/Plaintiff submits that on 25.02.1990 at about 10.00 PM when the Appellant/Plaintiff was in Bangalore at the time the First Respondent/First Defendant and the employees working under him viz., the Sanitary Inspector etc., came to the suit property and on the basis of purported orders from the Second Respondent/Second Defendant demolished the house taking advantage of the absence of the Appellant and carried away the utensils of valued at Rs.35,000/- and in the 4th Week of March 1990, when the First Respondent/First Defendant started to putting up the foundation stone illegally and Denkanikottai Taluk. 27.It is candidly clear from the plaint filed by the Appellant/Plaintiff that he had filed the suit praying permission of the trial Court to sue as an indigent person and for declaring his title in respect of the suit property described in A schedule and for issuance of direction to the Respondents/Defendants do deliver possession of the suit property and for the relief of mandatory injunction restraining the Respondents/Defendant to remove the foundation laid in the suit property described in A Schedule, for the relief of permanent injunction restraining the Respondents/Defendants etc., for putting up any construction or building or putting superstructure upon the suit property described in A Schedule and for directing the Respondents/ Defendants to pay a sum of Rs.70,000/- as compensation with interest. 28.In the Written Statement filed by the First Respondent/First Defendant and adopted by the Second Respondent/Second Defendant, it is mentioned that the suit property is a Government land belonging to the First Respondent/First Defendant and that the Appellant/ Plaintiff encroached the suit land recently and was running a Shop by https://hcservices.ecourts.gov.in/hcservices/ putting up the thatched she in the suit property and further the said encroachment made by the Appellant/Plaintiff was objected by the First Respondent/First Defendant by beat of tom tom on 30.09.1988 and a notice dated 01.10.1988 in ROC No.1523/88 was served on the Appellant/Plaintiff as per Section 82 of the Panchayat Act, 1958, by local delivery through his agent. Moreover, on 14.02.1990 another notice in R.O.C.No.868/89 was issued by the Appellant/Plaintiff and since he refused to receive the same, it was affixed on the outer on the door of the suit building in the presence of the witnesses. On 25.02.1990 at about 11.00AM, the First Respondent/First Defendant went to the Appellant/Plaintiff shop to ask him to vacate the suit land but the Appellant/Plaintiff was not there and the Shop was already closed and till 03.00PM, the First Respondent/First Defendant waited for the Appellant/Plaintiff arrival and that the beat of the tom tom was effected in the presence of the general public. Furthermore at about 04.00 PM, the First Respondent/First Defendant attempted to break open the lock in the presence of VAO, RI, Police and General Public and by the time, the Appellant/Plaintiff's brother Shafi requested the authority he would vacate the same in the next day after the Appellant/Plaintiff's arrival and further given oral statement and the same was recorded in the presence of Public, VAO, RI, etc., 29.That apart, the Appellant/Plaintiff himself voluntarily came forward to take all his belongings in the suit land and he vacated and handed over the vacant suit land to the First Respondent/First Defendant on 26.02.1990. The Respondents/Defendants had dnied that the First Respondent/First Defendant carried away the clothes etc. 30.According to the Learned Counsel for the Appellant/Plaintiff, the trial Court in its Judgment in the Suit O.S.No.46 of 1996 dated 18.10.1996 has discussed about the nature of the land, but, the First Appellate Court has not said about the nature of the land and neither the Government nor the Panchayat has got right in the suit land and in fact, the trial Court has come to a right conclusion that the suit property is a Grama Natham. 31.At this juncture, it is useful to refer to Section 82 of the Tamil Nadu Panchayat Act, which runs as follows; "82.Prohibition against obstructions in or over public roads.-(1)No person shall, except as permitted by rules under this Act and except in accordance with the conditions imposed by any licence made requisite by such rules- (a)build any wall or erect any fence or other obstruction or projection or make any encroachment whatsoever, whether permanent or temporary, in or over any public road; https://hcservices.ecourts.gov.in/hcservices/ (b)make any hole or deposit any matter in or upon any public road; (c)work a quarry in or remove stone, earth or other material from any place within twenty yards of a public road or of other immovable property vesting in or belonging to a panchayat or a panchayat union council, provided that nothing in the clause shall be deemed to apply to any work which, in the opinion of the Inspector, is done in connection with a bona fide agricultural operation; (d)erect any building over any sewer or drain or any part thereof; (e)plant any tree on any public road or other property vesting in or belonging to a panchayat or a panchayat union council; or (f)fell, remove, destroy, lop or strip bark, leaves, or fruits from, or otherwise damage, any tree which is growing on any such public road or other property or on any poramboke or land, the use of which is regulated by a panchayat under Section 86 or Section 87 and the right to which has not been established by such person as vesting in or belonging to him. (2)It shall be the duty of the karnam of every revenue village to report on encroachments on properties vested in panchayat or panchayat union councils, to the executive authority or the commissioner concerned and to the officers of the Revenue Department, and it shall be the duty of the executive authority or the commissioner concerned to institute proceedings under this Act and secure the removal of the encroachments within such time as may as 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." 32.Also Section 170 of the Tamil Nadu Panchayats Act, 1958, enjoins thus; "170.Notice of action against panchayat, etc.-(1) Subject to the provisions of Section 171, no suit or other legal proceeding shall be brought against any panchayat or its president or executive authority or any panchayat union council or its chairman or the commissioner or