IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 23.03.2021

CORAM:

THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI

C.M.A.No.2170 of 2011

A.Selvaraj

.. Appellant/petitioner

Vs.

1. The State of Tamil Nadu,

Rep. by District Collector,

Namakkal.

2.The Special Tahsildar,

Land Acquisition,

Salem to Karur Broad Guage Railway,

Line Project,

Paramathi Road,

Namakkal.

3.The Deputy Chief Engineer,

(Construction),

Southern Railway,

Sooramangalam,

Salem - 636 005.

4.Tmt.Athayammal

5.Vijayalakshmi

6.Saraswathy

7.Gomathi

.. Respondents/Respondents

(Respondents 4 to 7 remained exparte before the lower

Court. Hence, service of notice may be dispensed with)

PRAYER : Civil Miscellaneous Appeal is filed under Order 43

Rule 1(na) of C.P.C, against the judgment and decree dated

11.11.2010 made in P.O.P.No.31 of 2006 on the file of the

Principal District Judge, Namakkal and praying to set aside the

same.

For Appellant : Mr.P.Jagadeesan

For Respondents : Mr.Y.T.Aravind Gosh

Additional Government Pleader (CS)

for R1 and R2

No appearance for R3

ex-parte for R4 to R7

JUDGMENT

The appellant herein is the plaintiff, who filed a

suit for relief of recovery of possession with alternative

relief for payment of prices of the land value of Rs.25,00,000/-

along with a petition in P.O.P.No.31 of 2006 filed under Order

33 Rule 1 of CPC to grant permission to file the suit in informa

pauperis.

2. The defendants also contested the said original

petition. After full enquiry, the trial Court dismissed the

https://hcservices.ecourts.gov.in/hcservices/

said petition concluding that he is having sufficient means to

pay the Court fee. Aggrieved by that the plaintiff filed this

Civil Miscellaneous Appeal.

3. Point for consideration:

Whether the trial Judge, erroneously

dismissed the claim of the petitioner by

considering the sale transaction made by him with

third parties in the year 1995?

4. At the time of the arguments, the learned counsel

appearing for the appellant submits that the appellant not

possessed any immovable property, but on the date of filing the

suit in his name the property, which he possessed was already

sold by him. But, the trial Judge erroneously appreciated the

sale transaction of this appellant with third parties in the

year 1995 and concluded that he is a person of means. He would

further submit that the respondent taken away the land belonging

to him except that he is not possessed any properties nor he is

having any source of income. So he prayed to allow this appeal

by permitting him to file a suit as informa pauperis.

5. The learned Additional Government Pleader submits

that the appellant encroached the Eri-Poramboke land and the

same was acquired by the Government by issuing notice for the

purpose of laying the railway track as encroached, he is not

entitled to file the suit for recovery of possession and also

contended that the appellant having sufficient means to pay the

Court fee. For that he relied the sale deed marked as Exs.R1 to

R11. All those documents were related to the sale transaction

by the appellant and to the third parties through which he sold

immovable properties for valid consideration from the year 1995-

2003. Only in 2006, within three years after that, he filed a

suit against these defendants and claimed themselves as a person

of no means. But the trial Judge rightly appreciated those sale

deeds and concluded that he is having sufficient means, because

before filing of the suit, he sold many of his immovable

properties for valid consideration. Furthermore, he encroached

the Eri-poramboke land belonged to the Government. Therefore,

the claim of the appellant is unsustainable in law. The trial

Judge rightly concluded this aspect, which calls for no

interference.

6. Accordingly, the Civil Miscellaneous Appeal is

dismissed. The Appellant is directed to pay