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2016 Supreme(Mad) 2610
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. MALA, J.
Tenkasi Municipality through its Commissioner – Appellant
Vs.
Elavarasi – Respondent
S.A. (MD) No. 393 of 2006 & C.M.P. (MD) No. 3184 of 2006 & Cross Objection (MD) No. 1 of 2007
Decided On : 11-08-2016
For the Appellants : M/s. Balameenakshi for Mr. K.P. Krishnadoss.
For the Respondents: Mr. T.S.R. Venkatraman and Mr. C. Selvaraj.
The main legal point established is that the Land Encroachment Act does not apply to Natham property, and unauthorized occupants are entitled to declaration of title and restoration of possession and services.
Headnote:
Land Encroachment Act - Property Ownership Dispute - Section 22 of the District Municipalities Act, Natham Property - [KEYWORD] - Property Ownership Dispute - Section 22 of the District Municipalities Act, Land Encroachment Act - [22]
Fact of the Case:
The plaintiffs filed a suit for declaration of property ownership, injunction, and mandatory injunction. The first defendant claimed that the property was government poromboke land and sought dismissal of the suit. The second defendant stated that the service connection was disconnected for safety reasons. Both lower courts dismissed the suit, leading to the Second Appeal.
Finding of the Court:
The court found that the Land Encroachment Act was not applicable to the Natham property, and the plaintiffs were entitled to declaration of title and restoration of possession and services. The court also held that the cancellation of property tax assessment was illegal and void.
Issues: The issues revolved around the ownership of the property, applicability of the Land Encroachment Act, and the legality of the property tax assessment cancellation.
Ratio Decidendi: The court determined that the Land Encroachment Act did not apply to the Natham property, and the plaintiffs were entitled to declaration of title. The cancellation of property tax assessment was deemed illegal and void.
Final Decision: The Second Appeal was dismissed, confirming the judgment and decree of the lower courts. The Cross Objection was allowed, and the suit was decreed in favor of the plaintiffs.
R. MALA, J.
1. The first defendant, who lost the legal battle before both the Courts below, has come forward with this Second Appeal challenging the Judgment and Decree dated 24.06.2005 passed in A.S. No. 118 of 2004, on the file of the learned Principal Subordinate Judge, Tenkasi, by confirming the Judgment and Decree dated 06.07.2004, passed in O.S. No. 442 of 2003, on the file of the learned District Munsif, Tenkasi.
2. Heard the learned counsel appearing for both sides and perused the materials available on record.
3. The respondents 1 to 4 as plaintiffs filed a suit in O.S. No. 442 of 2003, for declaration that the cancellation of assessment order in Na.Ka. No. 10209/2003.A1, dated 25.11.2003 is ab initio, illegal and void and declaration that the plaintiffs are the owners of the property and restraining the defendants to demolish the property and injunction restraining the second defendant not to disconnect the service connection and mandatory injunction to make a building construction in the suit property and directing the second defendant to give re-connection and also costs by stating that the first plaintiff's father-in-law and 2 to 4 plaintiffs' paternal grandfather Vaigunda Thevar has made a brick building house with thatched roofing and did his tea shop. After his lifetime, his only son, who is the first plaintiff's husband and 2 to 4 plaintiffs' father viz., Esakki has conducted the tea shop. After his lifetime, the plaintiffs are running the tea shop at Door No. 54 A and 54B and assessed the tax. In 1981, they had rebuilt the building and New Door number was given as D.Nos.67 and 68. At the time of construction, western wall of this building is a compound wall of Tenkasi Vinnagara Perumal Temple and they had given consent, after receipt of Rs.10,000/-. During the life time of Esakki, he paid the tax. After that, the plaintiffs paid the tax. The first defendant sent a notice stating that the property is Government Poromboke land and they cancelled the assessment of 19813, 19814 and 19815 and that has been served on 04.12.2003. They proclaimed that they have to demolish the building. Hence, the plaintiffs are constrained to file the suit for declaration that the notice in Na.Ka. No. 10209/2003.A1, dated 25.11.2003 is not valid, illegal, void and ab-initio and also for injunction.
4. During the pendency of the suit, the building has been demolished and the electricity service connection has been disconnected and hence, the plaintiffs have amended the plaint for directing the first respondent to make construction and directing the second respondent to give electricity service connection.
5. Resisting the same the first defendant filed a written statement by stating that already encroachment has been removed and the property has been taken possession. The plaintiffs have made construction without any right in the property. Hence, he prayed for dismissal of the suit.
6. The second defendant filed a written statement by stating that on 08.12.2003, service connection has been disconnected, since the first defendant intended to demolish the superstructure considering the convenient and safety of the public. On 08.12.2003, the plaintiffs sent a telegram stating that no disconnection, suit follows. However, before filing suit, service connection has been disconnected. The service connection Nos.L.421 and L.588 stand in the name of Esakki, S/o Vaigunda Thevar. Hence, he prayed for dismissal of the suit.
7. The trial Court, after considering the averments both in the plaint and written statement and the arguments of both sides, has framed the necessary issues and dismissed the suit for granting declaration and injunction has been granted. Against which, the first defendant preferred an appeal before the first appellate Court and the first appellate Court also dismissed the appeal by confirming the decree and judgment passed by the trial Court. Against which, the present Second Appeal has been filed by the first defendant.
