Ownership does not automatically imply the right to evict when prior legal encumbrances, such as mortgages, confer rights to third parties.

ORDER

This writ petition has been filed for direction directing the respondents 3 & 4 to vacate the fifth respondent from the petitioner's property.

2. The case of the petitioner is that the property comprised in T.S.Old No.130/2, New No.1353, Ward No.2, Block No.21, Patta No.714 to the extent of 3.16 Acres, wet land situated in Muthumanika Nadar Street, Chidambaram, originally owned by the petitioner's husband. Her husband purchased the said property through Court auction sale held on 10.08.1978 in E.P.No.149 of 1977 in O.S.No.1446 of 1971 on the file of the District Munisif Court, Chidambaram. After purchase, the petitioner's husband was issued with sale certificate and thereafter possession of the property was also handed over in favour of her husband. Subsequently, on 20.04.2009, her husband settled the property in favour of the petitioner by way of Settlement deed registered vide document No.1553 of 2009.

3. While being so, one Kaliyamoorthy, retired Village Administrative Office of the Vasaputhur Village, Chidambaram Taluk, and who is the president of the fifth respondent association had put up a building in the petitioner's property and also illegally occupied by the trespassers. They put up hut and also they got electricity service connection. Therefore, the petitioner submitted representation to the respondents 1 to 3 to take appropriate action and also vacate them from the petitioner's property. Since the same was not considered, the petitioner approached this Court by way of the present writ petition. 4. The learned counsel appearing for the petitioner submitted that there was a proposal to give free house site patta to the fishermen community people and on receipt of the same the government issued order in G.O.Ms.No.1019 Fisheries Department dated 20.09.1979, thereby the subject land has been acquired on condition that 2/3 amount borne out by the fisheries department and 1/3 amount to be borne out towards fishermen community people. However, the said proposal was not acted upon since it was not feasible and it was not implemented. Utilizing the said circumstances, some of the third parties viz., members of the fifth respondent association herein entered into the subject property even in the year 1980 itself, and they had put up hut and for the residential hut they also obtained electricity service connection. Therefore, for the past several years the petitioner is keep on knocking the doors of the respondents to vacate the encroacher from the petitioner's land.

5. While pending the writ petition, the sixth respondent has been impleaded and the learned counsel appearing for the sixth respondent submitted that though the petitioner's husband purchased the property through Court auction, it was subject to usufructuary mortgage to the tune of Rs.4,000/-. She further submitted that the sixth respondent and other persons had occupied the subject property on the mortgage done by the original owner viz., Rathinavel Nadar, who was the first defendant in the suit in O.S.No.1446 of 1971. Therefore, without clearing the mortgage with the sixth respondent, the petitioner cannot sought for eviction. Even from the year 1971, they are in possession and enjoyment of the respective portion of the property. They constructed pucca house and also obtained electricity service connection in their respective house. The petitioner can take appropriate action as against the Village Administrative Officer, who represented the fifth respondent association, that too by departmental proceedings.

6. The learned Government Advocate appearing for the respondents 1 & 2 submitted that while pending this writ petition, one of the association like fifth respondent herein filed writ petition before this Court in W.P.No.20538 of 2018, seeking free house site patta for their respective portion of the property. This Court by an order dated 07.09.2018, directed the District Collector to consider their representation and pass orders on merits and in accordance