The main legal point established in the judgment is the requirement of notice under Section 80(1) of C.P.C for maintaining a suit against the Government and the limitations of conferring title based on adverse possession without pleadings.

JUDGMENT :

G. JAYACHANDRAN, J.

Prayer: Second Appeal is filed under Section 100 of the Civil Procedure Code, praying against the judgment and decree dated 28.04.2006 made in A.S. No. 94 of 2005 on the file of Sub Court, Thiruppattur which was reversed by the judgment and decree made in O.S. No. 256 of 1997, dated 01.09.2005 on the file of Sub Court, Thiruppattur, Vellore District.

1. The Appellant herein is the Additional Divisional Engineer, State Highways Department. The Second Appellant has been impleaded pending appeal since the suit subject road now been upgraded as National Highways. Aggrieved by the Lower Appellate Court judgment and decree, the instant Second Appeal is filed.

2. The respondents herein 2 to 6 filed the suit seeking the relief of permanent injunction in respect of the property situated at Thirupattur Town of erstwhile North Arcot District, in Survey Number No. 334/5, Block No 13, Ward 1 abutting the Vaniyambadi Road. The suit came to be filed alleging that the staff and Officials of the Highways Department threatening to demolish the shops in the Suit schedule property alleging that it has been encroached upon the Highways road. Whereas, the property is a Patta land in their possession and enjoyment.

3. Earlier the tenants in the suit property filed a suit for permanent injunction in O.S. No. 919/1987. Interim relief of injunction against the Highways Department was obtained. After 10 years, the suit was dismissed as not maintainable. Thereafter, the present suit O.S. No. 256/1997 was filed by the respondents herein for permanent injunction based on the title.

4. The title over the property is traced by the plaintiffs from the patta allegedly issued in the name of Mohammed Usain Sahib in the year 1937 for S. No. 334. Subsequent to his death, his wife and children partitioned it in the year 1958. From two of the sharers namely Ajiya Bibi and Amma Bibi @ Kathoonbivi, one T.N. Sheik Moideen, purchased the suit portion property. The legal heirs of T.N. Sheik Moideen, filed partition suit O.S. No. 11/1983 on the file of Subordinate Court, Thirupattur. In the final decree, the suit property was allotted to the plaintiffs. The plaintiffs relying upon the EB service connection in the name of one Salavudeen, a tenant and the tax receipts in the name of Sheik Moideen, the plaintiffs vendors predecessor had laid the suit.

5. In the written statement filed by the defendant, maintainability of the suit is questioned on the ground that the suit lack cause of action. It is filed without issuing the statutory notice under section 80 C.P.C. Also, it is bad for non-joinder of the Municipality, which has assessed tax to the plaintiff property and maintaining the records of the public road. The suit is a vexatious litigation filed to prevent the Highways Department from removing the encroachment, hence to be dismissed with exemplary costs.

6. Before the Trial Court, the defendant had taken out an application for Advocate Commissioner to visit the suit property and to note down the physical features. The Advocate Commissioner, accordingly had inspected the suit property and had filed report indicating that the plaintiffs’ shops are about 7 feet on the Highways road, which is in S. No. 334/1.

7. The Trial Court dismissed the suit holding that, the plaintiffs have not filed patta upon which they trace the title. The Commissioner report Ex.C-1 to Ex.C-4, proves the plaintiffs have title documents in respect of S. No. 334/5 only. Whereas, the Vaniyambadi road which is 54 feet width is in S. No. 334/1. Near the plaintiffs property, the width of the road has narrowed by 7 feet. Hence, they are not entitled for a relief over the Highways property. Further, the suit is bad for non-joinder of necessary party namely the Thirupattur Municipality. While dismissing the suit, the Trial Court has also observed that, the Highways Department is permitted to evict the encroachment if any, leaving the plaintiffs portion, after measuring the disputed si