Second Appeal No. 1484 of 1995. Case: 1. A. Srinivasan, 2. S. Rukmani Ammal Vs Tahsildar, Egmore Nungambakkam Taluk. High Court of Madras (India)
| Case Number | Second Appeal No. 1484 of 1995 |
| Counsel | S. V. Jayaraman, S. N. Kirubanandam, V. Srikanth, R. Muthian |
| Judges | M. Jaichandren, J. |
| Issue | Tamil Nadu Land Encroachment Act, 1905 - Sections 7, 6, 10, 10-A; Code of Civil Procedure, 1908 - Order 27, Rule 5A, Section 79 |
| Judgement Date | November 16, 2009 |
| Court | High Court of Madras (India) |
Judgment:
M. Jaichandren, J.
-
This second appeal has been filed against the judgment and decree, dated 31.1.1995, made in A.S.No.197 of 1994, on the file of the IVth additional City Civil Court, Madras, confirming the judgment and decree, dated 24.2.1994, made in O.S.No.6499 of 1991, on the file of the Vth Assistant City Civil Court, Madras.
-
The plaintiffs in the suit, in O.S.No.6499 of 1991, are the appellants in the present second appeal. The defendant in the suit is the respondent herein. The plaintiffs had filed the suit, in O.S.No.6499 of 1991, praying to declare that the notice, dated 3.9.1991, issued by the defendant is illegal, arbitrary and non est in law and for a permanent injunction restraining the defendant and others from, in any manner, interfering with the plaintiffs' enjoyment of the plaint schedule mentioned property and for costs.
-
The plaintiffs had stated that they are the owners of the land to an extent of 3 grounds and 640 sq.ft. or 22 cents, in survey No.136/1, of Koyambedu Village. The plaintiffs had stated that, originally, a larger extent of property was in the occupation and enjoyment of one Rathnam of Koyambedu Village. Rathnam had settled the said property, bearing survey No.136, in favour of his sons, by a registered settlement deed, dated 12.11.1967. They had, in turn, sold an extent of 3 grounds and 640 sq.ft. or 22 cents in survey No.136, (present survey No.361), of Koyambedu Village, in favour of the plaintiffs, by way of a registered sale deed, dated 27.1.1982. After acquiring the said land, the plaintiffs have been in peaceful possession and enjoyment of the said property, which has been morefully described in Item No.1 of the plaint schedule mentioned property.
-
The plaintiff had further stated that after obtaining the necessary approval of the authorities concerned, they had put up a superstructure in the said property by spending a huge amount of money. The building constructed by the plaintiffs in the suit property is at present a Kalyanamandapam in the name of 'A.S.R. Kalyana Mahal'. It has been further stated that item No.2 of the plaint schedule mentioned property is an extent of 7 grounds and 623 sq.ft. bearing T.S.No.1, Block No.6, Naduvakkarai Village. The said property had also been in the possession and enjoyment of the plaintiffs, as the said property had been in the possession of their vendors. The plaintiff had further stated that after constructing the superstructure in item No.1 of the plaint schedule mentioned property, they have constructed a temporary wall in the northern end of item No.2 of the plaint schedule property to prevent possible encroachment from anti social elements. Even though the plaintiffs had been in possession and enjoyment of the plaint schedule mentioned property, the defendant had issued a threat stating that he would demolish the construction in the schedule mentioned property stating that the property belongs to the State Government. The defendant had issued a notice, dated 3.9.1991, calling upon the plaintiffs to raise their objections, if any, on or before 12.2.1991. Through the said notice, the defendant had asked the plaintiffs to vacate the land in their possession, since they had encroached upon the said land. Thereafter, on 11.9.1991, the defendant had visited the plaint schedule mentioned property and threatened the plaintiffs that he would demolish the building and that he would take necessary action to evict the plaintiffs from the suit property. In such circumstances, the plaintiff had filed the suit in O.S.No.6499 of 1991, on the file of the Vth Assistant City Civil Court, Madras.
-
In the written statement filed on behalf of the defendant, it has been stated that Item.No.1 of the schedule to the plaint had, originally, belonged to one P.R.Murugesan and others, as per the records maintained at the office of the defendant. It is not known as to how the plaintiffs' vendors had obtained the property. It is for the plaintiffs to establish that they had got a valid title in respect of the suit property. The lands in question have been classified as 'Gramanatham', which could be used only for the residential purposes. However, the plaintiffs had constructed a Kalyanamandapam in the suit property and it had been used for commercial purposes. With regard to item 2 of the schedule to the plaint, the defendant states that these are Government lands and the plaintiffs had constructed a huge compound wall in the said property. It cannot be said that the suit property had been in the possession of the vendors of the plaintiff, nor is it in the possession of the plaintiffs. Further, the plaintiff have no interest in protecting the Government lands from anti-social elements.
-
The defendant had also stated that no threat had been issued to the plaintiff. Only a notice under the Tamil Nadu Land Encroachment Act, 1905, had been issued to the plaintiffs and a reply to the said notice had also been received from the plaintiffs. Since the suit is premature in nature, it is liable to be dismissed.
-
In the additional written statement filed by the defendant, it has been stated that a notice, under Section 7 of the Tamil Nadu Land Encroachment Act, 1905, had been issued to one A.Srinivasan, son of Ayyappanaidu and S.Rukmaniammal, wife of A.Srinivasan, residing at No.82, Bricklin Road, Ottery, Madras. The notice had been served on them, on 4.9.1991. In the reply sent by them, it has been stated that the land in survey No.136/1 Part of Koyambedu Village, with an extent of 3 grounds and 640 sq. ft., had been purchased by way of a sale deed in the year, 1984. However, the encroachers...
To continue reading
Request your trial