In the High Court of Judicature at Madras Dated: 21.10.2010 Coram: The Honourable Mr. Justice R.SUBBIAH Second Appeal No.1321 of 2004 and C.M.P.No.1244 of 2010 1. V.Raghavan 2. A.Gopal 3. G.Vishnudass 4. R.Arulselvam 5. B.Pandurangan ..Appellants/Appellants 1,2 to 6 Plaintiffs 1, 2 to 6 ..vs.. 1. K.Swaminathan 2. The Commissioner, Corporation of Madras. 3. The Junior Engineer, Corporation of Madras, Division No.32 (New Div.No.62), Kolathur, Chennai-600 099. 4. Veerapandian ..Respondents/Respondents/ Defendants Second Appeal under section 100 of Civil Procedure Code filed against the judgment and decree dated 04.12.2000 in A.S.No.101 of 1999 on the file of IV Additional Judge, City Civil Court, Madras, confirming the judgment and decree dated 29.01.1999 in O.S.No.3430 of 1991 on the file of VIII Assistant Judge, City Civil Court, Madras. For Appellants : Mr.N.Karthikeyan For Respondents : Mr.M.V.Muralidharan for R1 & R4 Mr.V.Bharathidasan for R2 & R3 JUDGMENT The unsuccessful plaintiffs in both the courts below are the appellants herein, who have filed this second appeal, challenging the decree and judgment dated 04.12.2000 passed by the learned IV Additional Judge, City Civil Court, Madras, in A.S.No.101 of 1999, https://hcservices.ecourts.gov.in/hcservices/ whereby the decree and judgment dated 29.01.1999 passed by the learned VIII Assistant Judge, City Civil Court, Madras, in O.S.No.3430 of 1991, were affirmed. 2. The appellants as well as one T.Venkata Ramanujam instituted the suit in O.S.No.3430 of 1991 against the respondents herein, for the following reliefs: (a) for a declaration that the area of an extent of about 7248 sq.ft.on the southern side of the layout plan LPDM/DTP 57/74 and morefully described in the schedule hereunder is a common park for recreation of the residents/owners of plots in Ganesan Nagar, Kolathur, Madras- 99; (b) for a consequential permanent injunction restraining the 1st defendant, his agent or servants or anyone acting under them from trespassing into the suit property which is morefully described in the Schedule, which is a common park in LPDM/DTP 57/74. (c) for a mandatory injunction directing the second and third defendants to enforce the layout plan approved in LPDM/DTP 57/74 by clearing and keeping the common roads and suit property morefully described in the Schedule as a common park free from interference and encroachment by anyone; (d) for a mandatory injunction directing the 4th defendant to complete all the formalities relating to the approved plan LPDM/DTP 57/74 and hand over the suit property morefully described in the Schedule to the second and third defendants; and (e) for costs of the suit;" 3. The case of the plaintiffs, in brief, is as follows: The plaintiffs are the owners of the residential plots in Ganesh Nagar, Kolathur, Madras, under the layout plan of house sites in S.Nos.9/1, 9/2 and 9/3-B and they are the residents in that locality. Originally the layout plan was approved by the Villivakkam Panchayat Union under LPDM/DTP 57/74. Subsequently, there was an alteration of the road to the existing approved layout and accordingly, the layout plan was approved and sanctioned by the proceedings of the Commissioner, Panchayat Union, Villivakkam dated 23.09.1975 and the layout has subsequently come within the limits of Corporation of Madras. The residential plots of the plaintiffs as well as the plots in the Ganesh Nagar lay out are assessed for Corporation tax by the 2nd and 3rd defendants. The 4th defendant is the promoter of lay out, who had purchased these lands measuring to an extent of 3 acres 11 cents in S.Nos.9/1, 9/2 and 9/3-B from One Muniyappa Naicker and Ponnusamy Niakcer under a sale deed dated 13.11.1975. Thereafter, the 4th defendant plotted out the lands and formed the lay out with residential units, roads and park. Under the approved lay out plan, there is an area on the southern side, which is conical in shape, and has a total extent of about 7248 sq.ft, which is earmarked as a common park for the benefit of the colony residents and it is the suit property and it https://hcservices.ecourts.gov.in/hcservices/ cannot be used for any other purpose. While constructing the houses, the plaintiffs as well as the residents in that locality, are bound to follow the stipulations and regulations laid down by the 2nd and 3rd defendants. While so, during the first week of August, 1989, the 1st defendant, who is not a resident or a purchaser of a plot in Ganesh Nagar, trespassed into the suit property on the southern side of Ganesh Nagar and tried to put up a construction for the purpose of his residence and as such, the plaintiffs gave a complaint seeking police intervention as well as to the 2nd and 3rd defendants, but no actin was taken. Hence, they were forced to file a writ petition in W.P.No.13987 of 1989 for a mandamus to the 2nd and 3rd defendants to enforce the layout plan LPDM/DTP 57/74 by clearing and keeping the common roads and parks free from any interference and trespass. In the said writ petition, an interim injunction was granted on 12.03.1990 directing the Corporation to keep the common park free from any trespass by the 1st defendant and accordingly, the 2nd and 3rd respondents demolished the superstructure put up by the 1st defendant. Thereafter, on the application filed by the 1st defendant, the interim injunction was vacated and the plaintiffs were asked to approach the Civil Court. Hence, the present suit has been filed for the aforesaid reliefs stating that if the 1st defendant is allowed to trespass into the suit property and put up a superstructure, then the plaintiffs would be greatly affected and it would cause irreparable loss to them. 4. The case of the plaintiffs was resisted by the 1st defendant stating that he did not encroach the suit property in the year 1989 as alleged in the plaint. On the other hand, he had been in possession and enjoyment of the suit property of an extent of 0.20 cents of land in Ganesh Nagar from the year 1972 onwards, without any interruption and disturbance by putting up a construction. Further, the suit property was not earmarked as a common park area and the plaintiffs had no right in the said property, which is the exclusive property of the 1st defendant. The 2nd defendant had assessed the property tax in respect of the 1st defendant's property and he had been paying property tax. Since this defendant had been in possession and enjoyment of the same for the past 18 years and being a continuous user, he had perfected his title by adverse possession to the suit property, which is in his enjoyment. Thus, he prayed for the dismissal of the suit. 5. The 2nd defendant filed a written statement stating that though the suit property was reserved for the formation of a park, the same had not been handed over to this defendant and as such, they cannot take any action against the 1st defendant, who is a trespasser. 6. On the basis of the above said pleadings, the trial court framed necessary issues and on the side of the plaintiffs, P.Ws.1 to 4 were examined and Exs.A-1 to A-20 were marked and on the side of the defendants, D.Ws.1 and 2 were examined and Exs.B-1 and B-9 were marked and Exs.C-1 to C-3 were marked as the court documents. https://hcservices.ecourts.gov.in/hcservices/ The trial court, on considering the entire evidence on record, both oral and documentary, had dismissed the suit and as against the said judgment of the trial court, the plaintiffs filed an appeal in A.S.No.101 of 1999 before the IV Additional Judge, City Civil Court, Madras, wherein the appeal was also dismissed. Feeling aggrieved by the judgment of the appellate court, plaintiffs 1 and 3 to 6 have filed the present second appeal. 7. At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration: (1) The evidence of P.W.4 is relevant as he has said that the original of Ex.A-5 is not available and that Ex.A-5 is attested by his Engineer only after seeing the original. Hence, Ex.A-5 is proved as per Section 68 of the Evidence Act. It is not necessary to examine the same official who attested under Section 68 of the Evidence Act. (2) The evidence of D.W.1 that the plots are as found in Ex.A-5 in admission that the layout is in existence as found in Ex.A-5. Taking into consideration the admission of P.W.4 and D.W.1, the presumption and estoppel in Sections 114 and 115 of the Evidence Act apply. (3) The second and third defendants have admitted in the written statements that the area in occupation by the first defendant is allotted for park and that the first defendant is a trespasser. Admitted facts need not be proved under section 58 of the Evidence Act ? (4) Under Order 1, Rule 8 of the C.P.C., one or more persons may sue on behalf of all persons interested and it is not necessary that all the persons in the layout must necessarily be parties to the suit ? 8. By relying upon Ex.A-5 i.e.the copy of the amended layout filed on the side of the appellants, the learned counsel for the appellants/ plaintiffs would submit that the conical shape on the southern side of Ganesh Nagar measuring to an extent of 7248 sq.ft.was marked as common park space. This lay out was approved under LPDM/DDTP/57/74. The said area is now encroached by the 1st respondent. Ex.A-9 is the original lay out approved by Villivakkam Panchayat Union and after the subject area came under the jurisdiction of the Corporation of Chennai, the lay out under 57/74 was prepared, which is marked as Ex.A-5. Ex.A-10 is the proceedings of the Commissioner of Villivakkam Panchayat Union dated 23.09.1975, through which, permission was granted for the alteration of road to the original lay out. Based on the proceedings, in the subsequent lay-out, the common park space was earmarked on the southern portion. In fact, the vendor of the plaintiffs had given this approved lay-out marked as Ex.A-5 and based on Ex.A-5 lay out only, constructions were made by the appellants; but the courts below, totally negatived Ex.A-5 on a https://hcservices.ecourts.gov.in/hcservices/ finding that the original of Ex.A-5 was not produced. In this regard, the learned counsel for the appellants submitted that the appellants have taken steps to produce the original approved layout from the Corporation Division No.62 Zone 4. The Zonal Engineer had also been examined as P.W.4, but he had stated in his evidence that the original of Ex.A-5 was not available in their office. Therefore, the courts below have totally negatived Ex.A-5 and by relying upon the original lay-out i.e.the lay out Ex.A-9 prepared by the Villivakkam Panchayat, i.e.the lay-out prepared before the subject area came under the limits of the Corporation of Chennai, the courts below have come to the conclusion that the appellants have miserably failed to prove their case that the common park space has been earmarked on the southern side, as found in Ex.A-5 and dismissed the case. In this regard, the learned counsel for the appellants submitted that when P.W.4 has not denied Ex.A-5 and deposed that the original was not available, the Courts below ought to have relied on Ex.A-5 and decreed the suit. The learned counsel further submitted that the courts below have dismissed the suit also on the ground that the appellants have not sought permission from this Court under Order I Rule 8 to file the suit in a representative capacity. Attacking the said finding, the learned counsel submitted that in the written statement, the maintainability of the suit was not questioned. Under such circumstances, the dismissal of the suit in respect of Order I Rule 8 is unwarranted. 9. The learned counsel for the appellants further submitted that the present suit was not filed by the Ganesh Nagar Residents in the representative capacity. The appellants, who are all the interested persons to enforce the existing lay out, have jointly filed the suit. Therefore, permission under Order I Rule 8 C.P.C., is not necessary. Since they are paying the tax to the Corporation, they, being the interested persons, are entitled to ask for a declaration to enforce the lay-out. That apart, permission under Order I Rule 8 could be obtained even at the stage of second appeal. In support of the same, the learned counsel has relied upon a judgment reported in 1996-2-L.W.456 (NILGIRI DISTRICT JANATHA PARTY, REP.BY ITS SECRETARY ..vs.. A.RAHIM AND OTHERS) and submitted that the appellants had also taken out an application in C.M.P.No.1244 of 2010, at the time of hearing the appeal, seeking permission of this Court to sue the respondents in a representative capacity for the benefit of all the persons so interested in enforcing the plan. That apart, on the side of the 1st respondent, no parental document of the subject property was produced, which fact would show that he was an encroacher to the common park space allotted to the Ganesh Nagar residents. 10. Per contra, the learned counsel for the respondents 1 and 4 submitted that the present suit was filed by the appellants for a declaration declaring the suit land measuring to an extent of 7248 sq.ft.on the southern side of the lay-out plan LPDM/DTP 57/74, Ganesh Nagar, is the common park for recreation of the residents of that locality. Since the appellants have come forward with the case https://hcservices.ecourts.gov.in/hcservices/ that the southern side of the layout of Ganesh Nagar was earmarked as a common park, the burden lies on them heavily to establish that the portion, which is presently in occupation of the 1st respondent, was earmarked as common park. But the appellants have miserably failed to establish that the suit property was identified as common park area. In this regard, the learned counsel, by inviting the attention of this Court to Ex.A-9, the original lay-out, in which only the eastern portion of the layout, Ganesh Nagar was earmarked as common park space, submitted that at no point of time, the common park area earmarked on the eastern side in Ex.A-9 approved by the Villivakkam Panchayat, was shifted on the southern side in the conical shape, as found in Ex.A-5. In this regard, the learned counsel submitted that before the trial court, subpoena was taken by the 1st respondent to the Director of Town and Country Planning to produce the sanctioned plan of the Ganesh Nagar Lay-Out and the same was produced and marked as Ex.C-1. That apart, the 1st respondent had also produced the original sanctioned plan, which was marked as Ex.B-1. Exs.A-9, B-1 and C-1 are one and the same. It could be seen from these original sanctioned plans that the common park area was earmarked only on the eastern side. Though it is the contention of the appellants that after Ganesh Nagar Area came under the jurisdiction of the Corporation of Chennai and the subsequent lay out was approved, in which the common park area was earmarked in the conical shape on the southern side i.e.the area which was in occupation of the 1st respondent, absolutely, no documentary proof was produced to substantiate the said contention. In this regard, the learned counsel for the 1st respondent submitted that Ex.A-5 copy was obtained by the appellants from their vendor. But the original of Ex.A-5 was not produced by them. Though the appellants had examined the Junior Engineer working in the Corporation, Division No.62, Zone 4, he had stated that the original was not available with them. Moreover, the concerned Junior Engineer, who attested Ex.A-5 was not examined by the appellants. Thus, the learned counsel for the 1st respondent submitted that all these facts would show that the appellants have miserably failed to establish that the area, which is in the occupation of the 1st respondent, was earmarked for common park space. 11. Apart from that, the learned counsel appearing for the respondents relied on the evidence of P.W.1, who, in his cross examination, had admitted that Ex.A-9 is the original layout plan issued by the Deputy Director of Town and Country Planning and under such circumstances, the courts below have rightly dismissed the suit. That apart, the learned counsel submitted that the appellants have no locus standi to file the suit since they had not obtained permission under Order I Rule 8 C.P.C. The pleading with regard to the maintainability of the suit under Order I Rule 8 is only a legal ground. Therefore, even without any pleading, the courts are entitled to deal with the same. Therefore, the finding arrived at by the courts below that the appellants had not sought permission under Order I Rule 8 C.P.C.does not suffer from any infirmity. The learned counsel further submitted that there are 36 https://hcservices.ecourts.gov.in/hcservices/ families in Ganesh Nagar as per Ex.A-1 layout. Since all of them have not filed the suit, the plaintiffs ought to have filed the suit in the representative capacity, by obtaining permission under Order I Rule 8 C.P.C. In support of the same, the learned counsel relied upon the decisions reported in 2009(5) CTC 398 (THE EXECUTIVE COMMITTEE OF THE SYNOD CHURCH OF SOUTH INDIA ..vs.. RT.REV.DR.V.DEVASAHAYAM). 12. Heard the learned counsel for the parties and perused the materials available on record. 13. It is the case of the appellants/plaintiffs that they are the residents of Ganesh Nagar, Kolathur and they had purchased the plots from the 4th respondent under different sale deeds and had developed and plotted the land measuring about 3 acres 11 cents in S.Nos.9/1, 9/2 and 9/3-B. It is the specific case of the appellants that the conical shape portion measuring to an extent of 7248 sq.ft. found on the southern portion of Ganesh Nagar lay-out, marked as Ex.A-5 was distinguished as a common space area and it was encroached by the 1st respondent. Therefore, they had approached this Court in W.P.No.13987 of 1989 to enforce the layout plan LPDM/DTP 57/74 by clearing and keeping the common road and parks free from any interference. In the said writ petition, an interim order was also obtained by the appellants and pursuant to the same, the 2nd respondent Corporation had demolished the building constructed by the 1st respondent in the suit land. The 1st respondent appeared in the writ petition and made a representation before this Court that he was not in occupation of the common park area and hence the order of injunction was vacated with a direction to the parties to approach the civil court Since the matter needs a detailed enquiry. The prayer in the suit is for a declaration that the area measuring to an extent of 7248 sq.ft.on the southern side of the layout had been earmarked as a common park area and also for other consequential reliefs. Since the appellants are insisting that the common park area was earmarked on the southern side of the layout of Ganesh Nagar, there is a heavy duty cast upon them to prove that the southern portion of the subject property was earmarked as the subject common park area. Under such circumstances, the question that has to be seen in view of the submissions made by the learned counsel on either side is, whether the appellants have established before the courts below that the suit land, which was in occupation of the 1st respondent, was identified as the common park area or not. 14. The only document filed by the appellants in support of their case is Ex.A-5, which, according to them, is the amended and existing layout. If except this document, no other lay-out plan is available, then there cannot be any difficulty in accepting the case of the appellants; but, admittedly, in this case, yet another plan approved by the Villivakkam Panchayat is available, which is marked as Ex.A-9 on the side of the appellants and the same was marked as Ex.B-1 on the side of the 1st respondent and apart from that, the same document was marked as Ex.C-1 by the authorities of https://hcservices.ecourts.gov.in/hcservices/ the Town and Country Planning on subpoena. It is not in dispute that Exs.A-9, B-1 and C-1 are one and the same. In the original sanctioned plan Ex.A-9, the common park area was earmarked on the eastern side and not on the southern side, which is presently in the possession of the 1st respondent. Therefore, In view of the existence of Ex.A-9, it has to be seen as to whether the appellants had established the fact that subsequent to A-9, there was an alteration made in the lay out to shift the common park area from the eastern portion to the southern side. But, on the side of the appellants, the only document marked by them to show that there was an alteration in the original layout, is the Proceedings of the Commissioner of Villivakkam Panchayat dated 23.09.1975, marked as Ex.A-10, which is extracted hereunder: "Permission is granted to Thiru A.Sudarsanam, for the alteration of road to the existing approved layout vide this office D.Dis.13024/73 dated 21.2.74 and Deputy Director of Town Planning, Madras-1 No.57/74 and Rc.1813/74 SS.3 dated 23.4.74 to provide road for 30' Just 63' 6" east side from west side corner stone as specified in the plans. The applicant is informed that no change should be made in the existing approved plots". 15. On a perusal of the said proceedings, I find that it speaks about only with regard to the alteration of road to the existing approved lay out and it does not mention any alteration of common park area. Therefore, I am not inclined to accept the submission made by the appellants that by proceedings dated 23.09.1975 the subsequent layout was approved by the Corporation of Chennai, where the common park area was earmarked in the southern portion. Moreover, Ex.A-5 is the copy of the layout obtained by the appellants only from their vendor and they had not produced the original. Though they have examined P.W.4, the Junior Engineer from the Corporation Division 62, Zone 4, he had stated in his evidence that the original of Ex.A-5 was not available with their office. Moreover, the appellants had not chosen to examine the concerned Junior Engineer, who had attested Ex.A-5. All these facts would cumulatively show that the appellants have miserably failed to establish that the subject land was earmarked for common park area. Even assuming that the 1st respondent was the encroacher in the suit property, unless it had been established by the appellants that the suit land had been earmarked for common park area, the reliefs sought for by them cannot be granted. On the other hand, Exs.A-9, B-1 and C-1 collectively go to show that the common park area was on the eastern side of Ganesh Nagar layout. 16. Though a number of judgments were relied upon by the appellants in support of his contentions that the approved layout is intended to secure amenity and convenience to the present and future residents in connection with laying out and use of the lands and once the land is intended for public purpose, then no part of it can be leased out or permitted by the Municipality to be used by any person for any other purpose and such user will undoubtedly interfere materially with the use of the property; hence, the https://hcservices.ecourts.gov.in/hcservices/ licence granted in favour of such person by the Municipality was void ab initio, and in my considered opinion, the facts of those judgments cannot be made applicable to the facts of the present case because in the instant case, admittedly there are two approved layouts i.e.one Ex.A-5 and another in Ex.A-9. Even according to the Town and Country Planning authorities, the original plan was only Ex.A-9 and unless it was established by the appellants through tangible evidence that by way of subsequent proceedings change was made in the original layout and in which, the common park area was shifted on the southern portion, the case of the appellants cannot be accepted. 17. With regard to Order I Rule 8 C.P.C. the learned counsel for the appellants relied on