A person in illegal occupation of common land is not entitled to seek an injunction against the true owner, as established by the Tamil Nadu Land Encroachment Act.

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.48 of 2005, confirming the judgment and decree of the District Munsif, Thiruvaiyaru made in OS No.126 of 2003, dated 30/12/2004.

2.The plaint:- The suit property is a pond poramboke land. It was dry land originally. The plaintiff made the property cultivatable and doing nursery cultivation. He was issued with 'B' memo by the Government. The 1^st defendant is the Village Panchayat President. Now, he tries to encroach upon the property. He attempted to purchase the property failed. So, he tried to trespass the property, on 28/08/2003. That was prevented. Hence, the suit for permanent injunction, costs.

3.The first defendant filed written statement contending that the property was never under the cultivation of the plaintiff. It is a pond poramboke for several years and the villagers are using the pond. It is still existing as poramboke pond and never under the enjoyment of the plaintiff.

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 9 documents marked. On the side of the defendants, 3 witnesses were examined and 4 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.46 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 appellants.

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 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 refused, attempting to disturb his possession.

12.The first defendant, who was the Village President at that time, filed the statement stating that suit properties are tank poramboke, never in the occupation of the plaintiff or the person mentioned by him in the plaint. The property is in the enjoyment and use of the Villagers. The defendants 2 to 4 namely the State Government and the Revenue Authorities adopted the statement filed by the first defendant. So when the plaintiff says that she is in possession of the property for several years, for de