In the High Court of Judicature at Madras Dated: 29.03.2011 Coram: The Honourable Mr. Justice R.SUBBIAH Second Appeal No.862 of 1997 1. Anthoniammal (deceasaed) 2. Arokia Mary 3. Arulandam 4. Anthonyraj (Appellants 2 to 4 brought on record as LRs.of the deceased sole appellant vide order of Court dt.04.03.2011 made in CMP.Nos.186 to 188 of 2011) ..Appellants/ 1st Respondent/ Plaintiff ..vs.. 1. State of Tamil Nadu rep.by District Collector, Nagai-Quaid-e-Milleth District, Nagapattinam. 2. Tahsildar, Taluk Office Pattamangalam St. Mayiladuthurai. 3. Munusamy 4. Chandra 5. George 6. John ..Respondents / Defendants/ Respondents 2 to 4 and Appellants Second Appeal under section 100 of Civil Procedure Code filed, against the judgment and decree dated 28.02.1997 made in A.S.No.6 of 1997 on the file of Additional Sub Court, Mayiladuthurai, reversing the judgment and decree dated 16.10.1996 in O.S.No.946 of 1983 on the file of Principal District Munsif Court, Mayiladuthurai. https://hcservices.ecourts.gov.in/hcservices/ For Appellant : Mr.A.Muthukumar For Respondents : Mr.S.Sounthar for R4 to R6 JUDGMENT The Second Appeal is directed against the decree and judgment dated 28.02.1997 passed by the learned Additional Subordinate Judge, Mayiladuthurai, in A.S.No.6 of 1997, whereby the decree and judgment passed by the learned Principal District Munsif, Mayiladuthurai, dated 16.10.1996 in O.S.No.946 of 1993, were set aside and the suit was dismissed. 2. The deceased 1st appellant was the sole plaintiff and appellants 2 to 4 are the legal representatives of the deceased plaintiff and the respondents are the defendants before the trial court. The plaintiff filed the suit against the defendants for a permanent injunction restraining the defendants from interfering with her peaceful possession and enjoyment of the suit property with the following averments: The suit property is a house and its appurtenance situated in Arockiyanatham Colony in Mayiladuthurai and the ground site of the suit property is classified as a Government Poramboke. The husband of the plaintiff (deceased 1st appellant) was a retired Police Constable. Some thirty years prior to the filing of the suit, several people occupied the Government poramboke land and constructed houses and similarly, the husband of the plaintiff also occupied the place and constructed his house in 1962 and for this, the Government officials have not objected to the same. The Mayiladuthurai Municipality has also made assessment and collected the house tax. After the death of her husband, the plaintiff continued to remain in possession of the suit property along with her family members and assessment was also changed in her name. In the said situation, Nalivutror Mempattu Sangam has also constructed modern toilet in her house with a view to benefits the poor people. Defendants 4 to 6 in order to grab the property of the plaintiff, approached the 3rd defendant, the Revenue Inspector of that area and induced him to evict the plaintiff and the 3rd defendant threatened the plaintiff that since the Government had initiated proceedings, she should vacate the premises immediately. In September 1993, defendants 3 to 6 attempted to take forcible possession of the suit property and hence the suit. 3. The 2nd defendant, the Tahsildar, Mayiladuthurai, filed a written statement stating that the suit property is classified as lane poramboke and the total extent of the same is 31684 sq.ft., out of which, the plaintiff has trespassed over an extent of 2500 https://hcservices.ecourts.gov.in/hcservices/ sq.ft. The encroachments are within the Municipal limits and hence, no notice under the Land Encroachment Act is necessary. Since the occupation of the plaintiff has caused much hindrance to the public and traffic, the eviction was ordered and apart from that, the plaintiff is having another house in the opposite row. 4. The contesting defendants 4 to 6 filed a written statement stating that they encroached the Government poramboke land and constructed the houses and were residing there. They planted bamboo cluster and plantain and are in enjoyment of the same. Since their houses got damaged three months prior to the filing of the suit, they are residing in their relatives house. While so, the plaintiff by encroaching a portion of the 6th defendant, constructed a toilet and these defendants prevented the plaintiff from encroaching further in his property. By suppressing these facts, the plaintiff filed the suit and obtained ex parte injunction. Taking advantage of the same, the plaintiff attempted to trespass with the possession and enjoyment of these properties and for which, a complaint was given by them to the police authorities and there is no merits in the case of the plaintiff. 5. On the said pleadings, the trial court framed necessary issues and on the side of the plaintiff, the plaintiff examined herself as P.W.1 besides examining one Thomas as P.W.2 and marked Exs.A-1 to A-4 and on the side of the defendants, the 4th defendant examined himself as D.W.1 besides examining D.Ws.2 and 3 and marked Exs.B-1 to B-8 and the Advocate Commissioner's report and plan were marked as Exs.C-1 and C-2. The trial court, after considering the entire evidence on record, both oral and documentary, had decreed the suit. Challenging the said finding, defendants 4 to 6 filed A.S.No.6 of 1997 on the file of Additional Sub Court, Mayiladuthurai, wherein the decree and judgment of the trial court were set aside and the appeal was allowed and the suit was dismissed. Being aggrieved, the plaintiff filed the present second appeal. Pendency of the second appeal, the sole appellant died and her legal representatives were brought on record as appellants 2 to 4. 6. At the time of admission of the second appeal, this Court has framed the following substantial questions of law for consideration: (1) Whether the lower appellate Court erred in law in holding that the plaintiff was not in possession of the suit property on the date of the suit in spite of the clear admission of the defendants in their cross examination ? https://hcservices.ecourts.gov.in/hcservices/ (2) Whether the plaintiff is entitled for a decree for permanent injunction against the defendants 4 to 6, trespassers of the adjoining area, on the strength of her long possession and enjoyment of the suit property ? 7. Learned counsel for appellants 2 to 4/legal heirs of the deceased 1st appellant(plaintiff) submitted that the 2nd respondent Tahsildar had field a written statement stating that the plaintiff had encroached an extent of 2500 sq.ft.in the Government lane poramboke. D.W.1 admitted in her evidence that the plaintiff was in possession of the suit property from 1988. D.W.3 has also admitted the possession of the plaintiff in the suit property. The trial court, by considering these facts, has decreed the suit. It is well settled principle that the admission of witnesses is the best evidence. Moreover, the official defendants namely, the Collector and the Tahildar have not preferred any appeal as against the finding of the trial court. Even assuming that the deceased appellant was the encroacher, the paramount title holder, namely, the Government is having a right to initiate action against the plaintiff and not respondents 4 to 6. Moreover, in order to prove the possession of the plaintiff over the property, the notice and the tax receipts were marked as Exs.A-1 to A-4. But the lower appellate court, contrary to the evidence available on record, came to the conclusion as if the plaintiff has not proved the possession of the suit property, which is perverse and contrary to the admission made by the defendants side witnesses. In support of these contentions, the learned counsel has relied on two judgments reported in VIJAYAKUMAR ..vs.. THE COMMISSIONER, DHARMAPURI MUNICIPALITY (1991(2) M.L.J.114) and PRATAPRAI N.KOTHARI .. vs..JOHN BRAGANZA (AIR 1999 SC 1666). 8. Assailing the said contentions, the learned counsel for the contesting respondents, namely, respondents 4 to 6 submitted that it is incorrect to state that D.W.1 had admitted that the property was in possession of the deceased appellant/plaintiff. It is the specific case of the contesting respondents before the trial court that the plaintiff, by projecting a false case and producing Exs.A- 1 to A-4, which were not related to the suit property, had obtained an interim injunction and by the strength of which, she interfered with the peaceful possession of these respondents. In fact, the witnesses examined on the side of the defendants had categorically stated in their evidence that at the time of adducing evidence only, the property was in possession of the plaintiff, which goes to prove the case of the defendants that by strength of the interim order, the plaintiff had entered into the properties owned by these respondents. Therefore, the evidence of the defendants' side witnesses has to be read in entirety and not in isolation to get a different meaning. https://hcservices.ecourts.gov.in/hcservices/ 9. The learned counsel for the contesting respondents further submitted that P.W.1 had admitted in her evidence that she did not know the door number and boundaries of her house, which would go to prove the case of the respondents that a false case has been filed by the plaintiff claiming as if she is in possession of the suit property. The lower appellate court, by deeply analysing the entire evidence and documents, has come to the conclusion that the suit property was not in the possession of the plaintiff and after obtaining interim injunction only, she entered into the possession of the property. It is further submitted that it was admitted that the son of the plaintiff was having a house in the same locality, just 50 feet away from the suit property and the documents produced on the side of the plaintiff were pertaining to that property . In fact, the lower appellate court has elaborately dealt with all these aspects and correctly set aside the judgment and decree of the trial court and thus, the finding of the lower appellate court is well founded and there is no need for interference. 10. This Court has paid its anxious consideration on the submissions made by the learned counsel on either side. 11. It is the case of the appellants that the suit property is a Government poramboke land and by encroaching about 2500 sq.ft.in the year 1962, the plaintiff's husband constructed the house and they were residing in the suit property along with their family members and the plaintiff's husband died 10 years prior to the filing of the suit. Even after the death of her husband, she continued to be in possession of the suit property and a modern toilet was also put up with the assistance of Nalivutror Mempattu Sangam. It is the further case of the appellants that the paramount title holder of the property is only the Government and they have not objected for her occupation in the suit property and under such circumstances, respondents 4 to 6 have no legal right to object her possession in the suit property. 12. On the contrary, it is the case of respondents 4 to 6 that like the deceased appellant, they are also the encroachers of the government poramboke land and the subject property is in their possession for a long time. The son of the 1st appellant was having a house just 50 feet away from the suit property. When the 1st appellant was trying to encroach the suit property, the same was objected to by them. In the said situation, the 1st appellant filed the present suit and obtained an interim injunction by producing the documents not related to the subject property and with the help of which, she entered into the suit property. Therefore, the 1st appellant has not approached the court with clean hands and as such, she is not entitled to the relief of injunction. https://hcservices.ecourts.gov.in/hcservices/ 13. In view of the said submissions, it could be understood that both parties are claiming that they are in the possession of the suit property. Therefore, the crucial question to be decided in this appeal is, whether the 1st appellant had proved the possession of the suit property before the courts below ? 14. According to the appellants, certain admissions made by defendants side witnesses would show that the 1st appellant was in possession of the suit property, whereas it is the submission of the learned counsel for the respondents that if the evidence read in entirety, it could be understood that possession of the 1st appellant was not admitted by the contesting respondents. Therefore, this Court has to examine, whether the admission by the defendants side witnesses would amount to admitting the case of the appellants or those admissions could be considered as only a stray admission during the course of cross examination, which may not be helpful to the case of the appellants. In this regard, it would be appropriate to extract the relevant portion of the deposition given by D.Ws.1 to 3. During the course of cross examination, D.W.1 has stated that "//// eh';fs; jfuhW vJt[k; bra;atpy;iy/ fHptiw nghLk;nghJ jLj;Jtpl;ljhf vjph;tHf;Fiuapy; Twtpy;iy/ 10 mo js;sp cs;s tPl;il fhz;gpj;J fHptiw fl;oajhf vjph;ciuapy; Twtpy;iy/ thjpf;F 2 ,l';fs; cs;sJ/ 12 kidapy; 1 kid mtUf;F xJf;fg;gl;lJ jhd;/ jhth ,lj;jpw;F gf;fj;jpy; tPl;ila[k; vd; ,lk; kw;Wk; 5. 6 vjph;thjpfspd; ,lj;ija[k; nrh;j;J thjp ntyp fl;otpl;lhh;/ ehd; mjw;F nghyPrpy; g[fhh; jutpy;iy/ vf;rpgpl; gp1y; bjU cs;sJ/ me;j nghl;nlh 93y; vLf;fg;gl;lJ/ nghl;nlhtpy; 2 gf;fKk; tPL cs;sJ/ fhyp ,lk; fhl;lg;gltpy;iy/ nghl;nlhtpy; ahh; ahh; tPLfs; v';Fs;sJ vd;W brhy;yj; bjhpahJ/ nghl;nlh ahh; vLj;jJ vd;W kw;wth;fis nfl;lhy;jhd; bjhpa[k;/ vk;/$p/Mh;/fhydp vd;W ,Ue;j nghh;il itj;jJ/ bjUtpw;F Mnuhf;fpaehjg[uk; vd;W bgah; cz;L/ vk;/$p/Mh;/fhydp vd bgah; itj;jjw;F Mjhuk; cs;sJ/ ,d;iwa njjpf;F jhth ,lk; thjpaplk; jhd; cs;sJ/////@/ D.W.2, in her cross examination, has stated that @////1988y; ,Ue;J ehl;lhz;ik vd;w nfhjhtpy; thjp kfd; jhth , lj;ij tpl kWf;fpwhh;/ ehd; Mnuhf;fpaehjg[uk; bfhGe;jdhh; tPl;oy; Fo cs;nsd;/ vf;rpgpl; gp/5. gp7. gp8 foj';fs; vd; bfhGe;jdhh; tpyhrj;jpy; vGjtpy;iy/ vf;rpgpl; gp2 fojk; jhth ,lj;jpy; tPl;oy; ,Ue;jnghJ te;jJ/ giHa Kfthpf;nf fojk; vGjp ntW tPl;oy; ,Ue;jnghJk; vd;dplk; bfhLj;J tpLthh;fs;/ thjp kfd; jhth ,lj;ij Mf;fpukpj;J itj;Js;ssjhf tf;fPyplk; Twp[ndhk;//////@/ https://hcservices.ecourts.gov.in/hcservices/ D.W.3, in his cross examination, has stated that, @/////jhth ,lj;ij thjp ,d;iwa njjpapypUe;J 1 tUlj;jpw;F Kd;gpUe;J thjp me;j ,lj;jpy; Foir nghl;L ,lj;ij Mf;ukpj;J mDgtpj;J tUfpwhh;/////@/ 15. D.Ws.1 to 3 were examined only in the year 1996, but the suit was filed in the year 1993. A careful reading of the admissions relied upon by the learned counsel for the appellants would show that the 1st appellant would have encroached into the suit property only at the time of filing the suit. Moreover, it is not in dispute that the 1st appellant's son is having a house just 50 feet away from the subject property. It is the case of respondents 4 to 6 that by producing tax receipts pertaining to the property of the appellant's son, the 1st appellant had obtained injunction and thereafter, she entered into the property. Though it is the case of the appellants that the subject property is bearing door No.44, I do not find the door number in Exs.A-1 to A-4. Further, in the cross examination, P.W.1 has stated that, @/////jhth vt;tst[ tp!;jPuzj;Jf;F nghl;Ls;nsd; vd;W bjhpahJ/ brhj;jpd; ehd;bfy;iy tpguk; vdf;Fj; bjhpahJ/ jhth ,lj;jpy; 50 tUlkhf Foir ,Uf;fpwJ/ ek;gh; vd;d vd;W bjhpahJ////@/ 16. It is well settled principle that the plaintiff, who approaches the Court, has to prove his case on his own evidence; but, in the instant case, the 1st appellant had miserably failed to establish her case through tangible evidence and in fact, she went to the extent of saying that she did not know the boundaries of the suit property. This piece of evidence clearly raises a doubt on the case of the appellants, particularly when she was claiming that she was residing in the suit property more than 30 years. 17. Though the learned counsel for the appellants relied upon a judgment reported in AIR 1999 SC 1666 (supra) in support of his contention that if a person is in long continuous possession, he can be protected by an injunction against any person in the world other than the true owner, in my considered opinion, the possession of the suit property by the 1st appellant was not proved with cogent and convincing evidence and as such, the said decision relied upon by the learned counsel for the appellants cannot be made applicable to the facts of the present case. Moreover, the admission made by the defendants' witnesses will not be helpful to come to a conclusion that the 1st appellant was in continuous possession for a long time; but on the other hand, if the evidence read in entirety, the said admissiona would give a clear meaning that the 1st appellant was in possession of the property only at the time of https://hcservices.ecourts.gov.in/hcservices/ filing the suit. Moreover, on going through the documents marked on the side of the appellants, it is clear that there is no reference with regard to the suit property and as such, no significance could be attached to certain stray admissions made by D.Ws.1 to 3 in this case. In view of the above, I am of the opinion that the lower appellate court by analysing the evidence in entirety, has correctly reversed the finding arrived at by the trial court and I do not find any infirmity in the said judgment. Moreover, no question of law, much less, substantial question of law is involved in the appeal and hence, the present appeal is liable to be dismissed. For the reasons stated above, the second appeal fails and the same is dismissed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. gl To 1) The Additional Subordinate Judge, Mayiladuthurai. 2) The Principal District Munsif, Mayiladuthurai. Copy to: The Section Officer, V.R.Section, High Court,Madras. 1 cc to M/s. A. Muthukumar, Advocate, Sr. 22371 1 cc to Mr.S. Sounthat, Advocate, Sr. 23062 S.A.No.862 of 1997 KJ (CO) kk 4/5 https://hcservices.ecourts.gov.in/hcservices/