A person in illegal occupation is not entitled to an injunction against the true owner, and the burden of proof lies on the plaintiff to establish possession at the time of the suit.

JUDGMENT :

This second appeal is preferred against the judgment and decree, dated 30/08/2005 passed by the Additional Subordinate Judge, Thanjavur in AS No.49 of 2005, confirming the judgment and decree of the District Munsif, Thiruvaiyaru made in OS No.125 of 2003, dated 30/12/2004.

2.The plaint:-The suit property is the Government poramboke. It was originally in the occupation of one Abdul Wahab, Saburabeevi and Raja. They were enjoying the property along with their patta land situated at the adjacent site. Saburabeevi entered into a sale agreement in respect of survey No.20 measuring about 100 Kuli, on 20/06/1981. Even at that time, it was mentioned that the suit property was left in the enjoyment of the plaintiff. Recognizing the possession of the plaintiff, 'B' memo was issued by the Tasildhar, Papanasam. The plaintiff made a request to the Government for assigning the land. That request was rejected by the Government. The 1^st defendant has no right over the property. He was the President of the Village Panchayat. He demanded the property for sale, but the plaintiff did not agree. On 28/08/2003, the defendants tried to trespass upon the property which was prevented. So, the suit is laid for permanent injunction.

3.The first defendant filed written statement contending that the property is a pond poramboke under the enjoyment of the village people for several years. The pond depth is about 6 feet. So, it would have been never under the occupation of the plaintiff. The plaintiff is encroaching the property taking advantage of the purchase of the adjacent land.

4.The State Government filed the written statement contending that the suit property is in the common enjoyment of the village people. Even now, it is existing as pond.

5.On the basis of the pleadings of both sides, the following issues were framed by the trial court:-

(1)Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?

(2)Whether the suit pond is the common enjoyment of the villagers?

(3)Whether the suit is bad for non-joinder of necessary parties?

(4)To what other relief, the plaintiff is entitled to?

6.On the side of the plaintiff, 4 witnesses were examined and 11 documents marked. On the side of the defendants, 3 witnesses were examined and 3 documents marked. The Commissioner's report and plan were marked as Exs.C1 and C2.

7.At the conclusion of the trial, the suit was dismissed by the trial court. Against which, appeal was preferred in AS No.49 of 2005. The appellate court concurred with the decree and judgment of the trial court and dismissed the appeal.

8.Against which, this second appeal is preferred by the appellant.

9.At the time of admission, the following substantial questions of law were framed:-

(1)Whether in view of Exhibits A1 to A9 and the proviso to Section 7 of the Tami Nadu Land Encroachment Act, 1905, the Courts below are correct in holding that the plaintiff has not proved that she was in occupation of the suit property at the time of institution of the suit?

(2)Whether the Lower Appellate Court is correct in holding that Respondents 2 to 4 are unnecessary parties to the suit, without at all considering the matter, that too, when the suit property is Government poramboke, belonging to the Government?

10.Heard both sides.

11.Second substantial question of law is taken up for discussion first. It is a simple suit for permanent injunction. On the basis of the settled possession for several years, now the plaint reads that the suit property is a tank poramboke, but, in their occupation from 20.06.1981, request made by the plaintiff/appellant seeking assignment of the property, was negatived by the revenue Authorities. This is the averment in paragraph Nos.1 and 2. But, in paragraph No.3, it has been stated that the defendant has no right over the properties. Probably, the plaint refers to the first defendant namely Mahalingam. So according to paragraph No.3, the first defendant alleged to have demanded the sale to him, which was