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2019 Supreme(Mad) 2103
IN THE HIGH COURT OF MADRAS
N. SATHISH KUMAR, J.
R. Ranjithkumar – Appellant
Versus
P.E. Jambulingam and Ors. – Respondents
Second Appeal No. 980 of 2012 and M.P. No. 1 of 2012
Decided On : 05-03-2019
Advocate Appeared:
For the Appellant : P.V. Muralidhar
For the Respondents: V. Manisekaran
Headnote:
Suit for permanent injunction - Suit property is a Government Baikal land - Trial Court - Suit property is a Government land plaintiff initially occupied suit property for and cultivating in the property without any hindrance - Government also issued B Memo receipts and he is also paying to Government defendants are trying to dispose the plaintiff possession - Hence, the suit - Defendants have filed written statement denying allegation that they had made an attempt to trespass in to the property of plaintiff - It is the case of defendants that in Survey cents originally belong to plaintiffs wife and same has been sold to first defendant through plaintiffs power agent – Thereafter plaintiff in order to gain unlawful gain filed the present suit. All the documents pertaining to the suit property have already been filed by the plaintiff in respect of sale made in favor of first defendant - Hence, prayed for dismissal of the suit – Held, Even though the appellant herein/plaintiff filed suit for possessory title in respect but as per the decision reported of India and Others Elephant District Collector and others reported in unreported decision in after dictum has been laid down by the Division Bench in the decision reported in State of Tamil Nadu represented by its Secretary, Department of Revenue – Fort St. George persons who are encroaching upon water body will not be entitled to any protection before the Court. Since the encroachment is upon a water body, the suit is not maintainable as she is claiming possessory title – However Government is entitled to remove the encroachment after following due procedure of law - Till then, both parties are not entitled to any relief, since the suit itself is not maintainable. Hence I am of the opinion that even though the trial Court has granted decree and the 1st Appellate Court has allowed the appeal on 3.5.2002, the decision reported in Tamil Nadu represented by its Secretary, Department of Revenue has been rendered only - It is a recent development in Law - In above circumstances Court of opinion that suit itself is not maintainable, since the possessory title has been claimed in respect of water body. Hence, this Second appeal is liable to be dismissed – Further pleadings in plaint itself indicate that they have pleaded that they were initially in occupation of the suit property very nature of pleading in the plaint itself clearly show that he was not in occupation of the property continuously - If really he was in continuous possession of the property without any hindrance and interference there is no need for him to plead that he was originally in occupation of the suit property -That factum also cannot be ignored altogether - Therefore, as long as in a suit for permanent injunction, if the possession has not been established and Commissioner Report reveals that property has already been converted for some other purpose - Appeal is allowed
JUDGMENT :
N. Sathish Kumar, J.
1. Aggrieved over the concurrent finding of the Courts below in dismissing the suit for permanent injunction, this Second Appeal has been filed by the first defendant.
2. The parties are arrayed as per their own ranking before the trial Court.
3. Brief facts leading to filing of this Second Appeal is as follows:
The suit property is a Government Vaikal Poramboke land. The plaintiff initially occupied the suit property for the past 28 years and cultivating in the property without any hindrance. The Government also issued B Memo receipts and he is also paying kist to the Government. The defendants are trying to dispose the plaintiff' possession. Hence, the suit.
4. The defendants have filed written statement denying the allegation that they had made an attempt to trespass in to the property of the plaintiff. It is the case of the defendants that in Survey No. 595/3 58 cents originally belong to the plaintiff's wife and the same has been sold to the first defendant through the plaintiff's power agent. Thereafter, the plaintiff in order to gain unlawful gain filed the present suit. All the documents pertaining to the suit property have already been filed by the plaintiff in O.S. No. 186 of 1999 in respect of the sale made in favour of the first defendant. Hence, prayed for dismissal of the suit.
5. The trial Court framed the following issues:
1. Whether the plaintiff is entitled for permanent injunction as prayed for?
2. To what relief the plaintiff is entitled?
6. On the side of the plaintiff, P.W. 1 was examined and Ex. A.1 to Ex. A.18 were marked. On the side of the defendants, D.W. 1 and D.W. 2 were examined and Ex. C.1 and Ex. C.2 were marked.
7. The trial Court has found that the plaintiff is in possession of the property on the basis of B memo and the first appellate Court has also confirmed the finding of the trial Court, as against which the present Second Appeal came to be filed by the first defendant in the suit.
8. After hearing the arguments of the learned counsel for the appellant, the following substantial questions of law have been framed:
1. Whether any individual can claim exclusive right to 'vaikal poramboke' which is to be enjoyed in common?
2. Whether Courts below properly considered the Advocate Commissioner's Report i.e., C.1 and C.2
9. The learned counsel for the appellant vehemently contended that the suit property is a vaikal Government poramboke. The alleged possession of the plaintiff is nothing but falsehood and only to non suit the defendant and blackmail him to get more money from him in view of the sale of the property, which is situated in northern side of the property. The plaintiff was never in possession of the property. All the B memos are pertaining till the year 1994. There is no other document to show that the plaintiff is in possession of the property.
10. The learned counsel further submitted that the Commissioner Report and the plan clearly show that the alleged possession of the plaintiff in the suit property is nothing but his own imagination. The property, namely the vaikal poramboke has been converted to road and the property is not in existence. Therefore, merely, on the basis of the B Memo of the earlier years, the plaintiff cannot contend that they are in possession of the property. The trial Court and the first appellate Court has considered the evidence of P.W. 1, but ignored the Commissioner's Report and the sketch filed by the Government surveyor. Hence, submitted that the decree and judgment of the Courts below are to be interfered. In support of his contention, he relied upon the judgments in Balkrishna Dattatraya Galande Vs. Balkrishna Rambharose Gupta and another reported in CDJ 2019 Supreme Court 126, L. Krishnan Vs. State of Tamil Nadu represented by its Secretary & others reported in CDJ 2005 MHC 1140 and Chellammal Vs. Nallammal and others.
11. Whereas, it is the contention of the respondent that the B memo itself clearly indicate that the plaintiff is
