The main legal point established in the judgment is that land earmarked for public use cannot be encroached upon and must be held for the benefit of the society or the public in general.

JUDGMENT :

G. JAYACHANDRAN, J.

Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, praying against the judgment and decree dated 28.10.2009 made in A.S. No. 321 of 2005 by the Hon’ble Judge, Fast Track Court IV, Chennai confirming the judgment and decree dated 15.10.2004 of the XI Assistant City Civil Judge, Chennai in O.S. No. 2859 of 1998.

1. This Second Appeal is preferred by the plaintiffs against the concurrent finding of the Courts below.

2. The case of the appellant as pleaded in his plaint is as under:-

The suit mentioned property ad-measuring 1160 sq. ft. on the west of Velacherry Main Road, Chennai was part of a larger extent of land measuring 1 acre 35 cents comprised in Survey No. 236 in Velacherry Village. One Mr. Azhagusinga Mudaliar the father-in-law of the first plaintiff purchased this property from one Vengatasubba Iyer under a sale-deed dated 06.09.1910. His two sons Padmanaba Mudaliar and Madhava Mudaliar inherited the property from Azhagusinga Mudaliar.

3. Padmanaba Mudaliar remained bachelor and bequeathed his half share to his brother Madhava Mudaliar. On the death of Madhava Mudaliar in the year 1962, the entire extent of 1 acre 35 cents of land inherited by his wife, two sons and two daughters. The daughters of Madhava Mudaliar released their right in favour the plaintiffs 1 and 2. In the suit portion, three shops were constructed by plaintiffs 1 and 2. One shop is let out to the 3rd plaintiff, one shop to the 4th and 5th plaintiff. The third shop is let out to the second defendant. The property is duly assessed to tax and provided with electricity and water connection.

4. In the year 1992, the second defendant stopped paying rent denying the title of plaintiffs 1 and 2. Hence, eviction proceedings before Rent Control Tribunal in R.C.O.P. No. 3399/1992 on the file of XIII Small Causes Court, Chennai and a suit for permanent injunction to restrain the second defendant (Rajagopal) from demolishing and reconstructing the superstructure let out to him was filed by the first plaintiff in O.S. No. 6254/1992 on the file of VII Assistant Judge, City Civil Court, Chennai.

5. The suit culminated in favour of the first plaintiff in A.S. No. 88 of 1994 dated 14.12.1994 upholding the title of the first plaintiff. Under the said circumstances alleging the plaintiffs have encroached upon the road, the Officials of the first defendant had pasted three notices all dated 02.04.1998 addressed to plaintiffs 1 to 3 respectively to remove the encroachment within 7 days failing which the first defendant will forcible remove the encroachment. The said notice is allegedly issued under Section 222 of the Madras City Municipal Corporation Act, 1919 (in short “MCMC Act”).

6. The said notice is legally untenable. Without giving an opportunity to the owner/ occupier against the provision of law under Section 222(2) of the MCMC Act which envisages affording opportunity to the owner/occupier and against the principle of natural justice, the impugned notices had been pasted at the instigation of the 3rd defendant/the owner of the property adjacent to the suit property. He had given a false representation to the first defendant with intention to gain access to Velacherry Main Road from west and use the suit schedule property as parking space.

7. The request through telegram seeking opportunity to explain the suit property is the absolute property of plaintiffs 1 and 2, not heeded by the first defendant. The first defendant and its officials without affording opportunity frequenting the suit premises and threatening demolition of the superstructure. Hence, the suit to declare the impugned notice dated 02.04.1998 issued by the first defendant as illegal, null and void and consequently permanent injunction restraining the first defendant and his officials from resorting to any demolition, dispossession or removal of effects and belongings.

8. Gist of the written statement filed by the first defendant:

The averments and allegatio