IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 12.7.2010 Coram: THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.1171 of 2009 Vivasaya Mani .. Appellant (Plaintiff) vs. Ambur Municipality represented by its Commissioner Ambur 635 802 .. Respondent (Defendant) The Second Appeal has been filed against the judgment and decree, dated 30.1.2009, passed in A.S.No.12 of 2007 on the file of the Subordinate Judge, Thirupattur, confirmed the judgment and decree of the Principal District Munsif, Ambur, passed in O.S.No.171 of 2005, dated 6.11.2006. For Appellant : Mr.P.Kandasamy For Respondent : Ms.R.Revathi Government Advocate J U D G E M E N T The Second Appeal has been filed against the judgment and decree, dated 30.1.2009, in A.S.No.12 of 2007, on the file of the Subordinate Judge, Thirupattur, confirming the judgment and decree, dated 6.11.2006, made in O.S.No.171 of 2005, on the file of the Principal District Munsif Court, Ambur. 2. The suit had been filed praying for a judgment and decree to restrain the defendant therein and his men, from, in any way, interfering with the peaceful possession and enjoyment of the suit schedule property by way of a permanent injunction. The plaintiff had stated that he had purchased the suit property by way of a sale deed, dated 30.11.1994, marked as Exhibit A.1. Since, the date of the purchase the plaintiff had been in possession and enjoyment of the property, without any interference. In one portion of the property he has put up a structure, wherein he is residing, along with his family members. https://hcservices.ecourts.gov.in/hcservices/ 3. It had also been stated that electricity service connection had been given to the plaintiff, with service connection No.7/55. The plaintiff has been paying the electricity charges. While so, the plaintiff had also paid Rs.250/-, as penalty, for putting up an unauthorised structure in the property, in S.T.C. No.1176 of 1998, on the file of the Judicial Magistrate Court, Ambur. As such, the plaintiff and his ancestors had been in enjoyment of the suit schedule property for more than 50 years. While so, the defendant Municipality was attempting to disturb the plaintiff's peaceful possession and enjoyment of the suit schedule property. In such circumstances, the plaintiff had preferred the suit, in O.S.No.171 of 2005, on the file of the Principal District Munsif Court, Ambur, Vellore District. 4. In the written statement filed on behalf of the defendant, it has been stated that the allegations and averments made by the plaintiff in the plaint are false and fabricated. The allegation that the suit property had been purchased by the plaintiff is not correct. The allegation that the plaintiff and his vendor had been in possession and enjoyment of the suit property, continuously, without any interruption, for more than 50 years, is not correct. 5. It had also been stated that the suit property is a 'Natham Promboke'. The defendant had raised a loan to construct a commercial complex utilising a sum of Rs.10,00,000/-, under the combined small medium town development scheme, 2004-05. The property does not belong to the plaintiff and the defendant is having the right to construct a commercial complex in the suit property, which belongs to the defendant. At this stage of the hearing of the second appeal, it is also brought to the notice of this Court that the Ambur Municipality, the defendant in the suit, in O.S.No.171 of 2005, had filed a separate suit, in O.S.No.214 of 2005, on the file of the Principal District Munsif Court, Ambur, praying for a judgment and decree against the defendant declaring that the plaintiff municipality is the lawful owner of the suit property and for permanent injunction restraining the defendant and his servant from interfering with the plaintiff's peaceful right over the suit property. 6. In view of the averments made on behalf of the plaintiff, as well as the defendant in the suit, in O.S.No.171 of 2005, the trial Court had framed the following issues for consideration: "1. Whether it is correct to state that, the suit property in Ambur Municipality Town Survey No.84/3b was originally a 'Natham Promboke'? 2. Whether it is correct to state that the plaintiff has been in possession of the suit property, after it had https://hcservices.ecourts.gov.in/hcservices/ been purchased by him, by way of a sale deed, dated 30.11.1994, from his vendor, who had title and possession of the said property? 3. Whether the plaintiff is entitled to the relief of permanent injunction against the defendant, as prayed for in the suit? 4. What other reliefs, the plaintiff is entitled to?" 7. From Exhibit A.9, marked on behalf of the plaintiff, it was seen that the said document, dated 8.6.1934, related to the assignment of a residential plot in the name of one Chinnasamy. The trial Court had noted that the documents marked as Exhibits A.5 to A.8 were relating to the earlier owners of the suit property. Exhibit A.1 is the sale deed in the name of the plaintiff. Exhibits A.11 to A.14 are the complaints sent by the plaintiff to the Police, and Exhibit A.15 are the photos and the negatives filed on behalf of the plaintiff. The trial Court had found that the above documents marked in favour of the plaintiff were found to be insufficient to substantiate the claims made by the plaintiff. 8. The trial Court had also found that Exhibit A.4, electricity meter reading card and Exhibits A.2, A.3, and Exhibit A.10 are the electricity charges payment receipts, were not shown to be relating to the suit property. Further, it was found that the plaintiff had not filed the electricity charges payment receipts for the period after the year, 2000. Similarly, the receipts relating to the period prior to the year, 2000, had also not been filed. Exhibit A.10 filed on behalf of the plaintiff was relating to the month of August, 2005. In such circumstances, the trial Court had found that the plaintiff had not adduced any documentary or oral evidence, except the oral evidence of P.W.2, to show that he was residing in the house situated in the plaint schedule property. 9. The trial Court had further found that, except Exhibit A.9, relating to the assignment of the property in the name of one Chinnasamy, the plaintiff has not produced any evidence to substantiate his claim that he has been in possession and enjoyment of the suit schedule property, at the time of the filing of the suit. In such circumstances, the trial Court had dismissed the suit filed by the plaintiff, by its judgment and decree, dated 6.11.2006. https://hcservices.ecourts.gov.in/hcservices/ 10. Aggrieved by the judgment and decree of the trial Court, the plaintiff had filed an appeal before the first appellate Court, in A.S.No.12 of 2007. 11. The first appellate Court had framed the following point for consideration: Whether the appeal should be allowed or not? 12. The first appellate Court, while confirming the findings of the trial Court, had found, from the evidence of D.W.1 and D.W.2, that the suit property had been shown as a 'Natham Promboke' in the revenue records. It had also been stated that no patta had been issued in the name of any particular person, either at the time when the suit property was bearing the old survey No.84/3b or after the said property had been given the town survey number 15/3 in ward D, block C. Further, it had also been stated that survey No.15/2 had been, subsequently, changed to town survey No.74, in ward D, block 37, with an extent of 0.36.0 hectares. In such circumstances, the first appellate Court had dismissed the appeal, by its judgment and decree, dated 30.1.2009, made in A.S.No.12 of 2007. 13. Aggrieved by the judgment and decree of the first appellate Court, dated 30.1.2009, the plaintiff had filed the present second appeal raising the following questions, as substantial questions of law: "a) Whether holding a house site in Grama Nathan is a legal ownership holding or encroachment in view of Section 2(a) to (a) of Tamil Nadu Land Encroachment Act III of 1905? b) Whether the Ambur Municipality is having right to remove the possession in Grama Nathan under Tamil Nadu Land Encroachment Act, 1905? c) Is it correct to call the appellant to prove his title after accepting his possession in view of Section 110 of Evidence Act? d) Whether the non-denial of cause of action under Order 8 Rule 5 amounts to admission, and conferring right to relief of injunction? https://hcservices.ecourts.gov.in/hcservices/ e) Whether possession follows title, of plaintiff entitling for the relief of injunction as decided in AIR 1924 Madras Page 676?" 14. The learned counsel appearing for the appellant had submitted that the findings of the courts below are against the law, weight of evidence and the probabilities of the case. The findings of the Courts below, in respect of Exhibits A.1, and A.5 to A.8, are erroneous in nature, as they have been arrived at without proper appreciation of the evidence available on record and without considering the nature of the suit property. 15. The learned counsel had also stated that the Courts below had not considered the fact that the respondent Municipality had prosecuted the appellant for the construction in the house of the suit property, without obtaining the permission of the respondent municipality. The Judicial Magistrate Court, Ambur, had disposed of the case, in S.T.C.No.1176 of 1998, imposing a fine of Rs.250/- on the appellant. It had also not been denied by the respondent municipality that, on 29.11.2005, there was an attempt by the respondent municipality to interfere with the possession of the suit property, by the appellant, by attempting to demolish the house constructed therein. 16. The learned counsel had also stated that both the courts below had failed to note that Exhibit A.1, marked on behalf of the appellant, is not required to be proved, under section 68 of the Indian evidence Act, 1872. When the appellant had proved his possession of the suit property, both the courts below had erred in giving a finding, with regard to the title of the plaintiff, in respect of the suit property, even though the evidence of P.W.1 had been accepted, relating to the question of possession of the suit property. Further, the first appellate Court ought to have arrived at a conclusion, under Section 110 of the Evidence Act, 1872, stating that the respondent had not disproved the title of the appellant. The courts below had erred in coming to the conclusion that the appellant is not in possession and occupation of the suit property, even though there was sufficient evidence to prove the same. Once the suit property is found to have been classified as a 'Grama Natham', it cannot be claimed as the property of the Government or of the respondent municipality. Both the Courts below had erred in arriving at the conclusion that the appellant is an encroacher in respect of the suit property, based on the evidence of D.W.1. Both the courts below ought to have held that the appellant is in possession of the suit property, based on the principle that the possession follows title. https://hcservices.ecourts.gov.in/hcservices/ 17. Learned counsel for the appellant had relied on the following decisions in support of his contentions: 1. RENGARAJA IYENGAR Vs. ACHIKANNU AMMAL (1959 II MLJ 513) 2. THILLAIVANAM A.K. & ANOTHER Vs. DISTRICT COLLECTOR, CHENGAI (1998-3-L.W.603) 18. Per contra, the learned counsel appearing for the respondent Municipality had submitted that the appellant had not adduced any acceptable evidence, either oral or documentary, to prove that he was in possession of the suit property, at the relevant point of time. Exhibit A.9, relied on by the appellant would only show that it was an assignment made in the name of one Chinnasami. Further, there was nothing in the revenue records to show that the assignment of the suit property had been made in favour of the said Chinnasami. Both the courts below had rightly found that Exhibits A.5 to A.8, filed on behalf of the appellant, do not pertain to the suit property. Admittedly, the suit land is not a patta land. Since, the appellant was only an encroacher, the encroachment had been removed by the respondent municipality prior to the filing of the suit by the appellant, in O.S.No.171 of 2005. 19. It had also been stated by the learned counsel for the respondent that the appellant had not filed any document to prove his possession of the suit property stating that he was residing in the said property and that he was carrying on some commercial activity in a portion of the said property. In such circumstances, both the courts below were right in rejecting the claim made by the appellant in respect of the suit property. 20. In view of the contentions made by the learned counsel appearing for the parties concerned and on a perusal of the records available, this Court is of the considered view that the appellant had not shown sufficient cause or reason to interfere with the concurrent findings of the courts below. Both the courts below had rightly come to the conclusion that the plaintiff was not in possession and enjoyment of the property, as claimed by him. Further, from the document filed on behalf of the appellant, it could not be seen that the suit property was in the possession and enjoyment of the appellant, at the relevant point of time. Further, there were no relevant revenue records to substantiate the claims of the appellant. On the contrary, it has been found that the appellant was only an encroacher in the suit property and that the encroachment had been removed by the respondent before the suit, in O.S.No.171 of 2005, had been filed by the appellant. https://hcservices.ecourts.gov.in/hcservices/ 21. The contentions raised on behalf of the appellant stating that he had purchased the suit property, by way of a sale deed, dated 30.11.1994, marked as Exhibit A.1, and that he has been in possession and enjoyment of the suit property since then, cannot be countenanced, as there are no records shown to be in existence to substantiate such a claim. The electricity charges payment receipts, marked as Exhibits A.2, A.3 and A.10, were found to be insufficient to prove the case of the appellant. In such circumstances, this Court does not find the claims made by the appellant are sustainable in the eye of law. In such view of the matter, the second appeal is liable to be dismissed. Hence, it stands dismissed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. lan To: 1. The Subordinate Judge, Thirupattur 2. The Principal District Munsif, Ambur 1 cc to Spl. Government Pleader, Sr. 49559 1 cc to Mr.P. Kandasamy, Advocate, Sr. 50093 S.A.NO.1171 OF 2009 BK (CO) KK 18/8 https://hcservices.ecourts.gov.in/hcservices/