Judgment:
P. Sathasivam, J.
1. Plaintiff is the appellant in the above second appeal, He filed O.S. No. 1033 of 1978 before the Sub Court, Thiruchirappalli for declaration and permanent injunction. The allegations in the plaint are as follows:
The plaintiff is the absolute and exclusive owner of the suit property. It was purchased under a registered sale deed dated 15.2.1994 under Ex. A-1. The plaintiff obtained a release deed in respect thereof from his brothers under a registered release deed dated 1.6.1961 Ex. A-2. Thus the plaintiff and prior to him, his predecessors-in-title have been in exclusive possession and enjoyment of 'A' Schedule property for more than the statutory period. 'A' Schedule property is called 'Kubera Bavanam'. It contains a lodging house in the upstairs and a row of 12 shops in the ground floor. 'A' schedule property includes a right acquired by prescriptive exclusive enjoyment over the pathway in the 'B' Schedule property leading to the upstairs of 'A' schedule property. The same is situate in T.S. No. 2486. The plaintiff and prior to him, his predecessors-in-title have been paying the Municipal tax for the 'A' Schedule property numbering 13 assessments. There is a betel stall in Door No. 557 in T.S. No. 2487 facing east of the 'B' Schedule property. The 'B' Schedule property has always been treated and enjoyed as an integral part of the 'A' schedule property and it is necessary for access to reach the upstairs and the betal stall 'B' schedule property is not an independent property. The plaintiff and his predecessors-in-title have been in possession and enjoyment of this property for a long time and they have prescribed title by adverse possession. The defendant has no manner of right or title to the suit property. The defendant called for tenders for the construction of book stall in 'B' Schedule property. The defendant has no right to do so. Hence, he filed the present suit for declaration that the plaintiff is entitled to the suit 'B' schedule property and for permanent injunction.
2. In the written statement filed by Thiruchirappalli Municipality, it is contended in the following manner:
It is true that the plaintiff is the owner of the premises called 'Kubera Bavanam' in the 'A' Schedule property. But 'A' Schedule property does not include any right in the 'B' Schedule property. The 'B' Schedule property is not a path-way as alleged in the plaint. The survey number in the 'B' Schedule property is only T.S. No. 2486 and not T.S. No. 2487. Survey No. 2486 is a vacant site and is Government Poramboke vested with Municipality. Hence, the 'B' Schedule property is not used as access to the upstairs portion. The plaintiff has paid encroachment fee to the defendant for the enjoyment of this vacant site. The defendant has assessed property tax only to this small stall, which has been put by the plaintiff on the eastern wall of the Betal shop. The plaintiff has also occupied this vacant site in the 'B' Schedule property and put up temporary sunshade. For this occupation, the defendant has collected encroachment fees. As such, the plaintiff cannot claim exclusive right over the 'B' Schedule property. More over the plaintiff never used this vacant site for the access either to Kubera Bhavan nor to the Jewellery shop as contended. Since the occupation by the plaintiff over the vacant site is temporary, the defendant thought fit to construct a small book stall and to lease out the book stall in order to increase the source of income of the Municipality. Since the vacant site is in the road margin, the Municipality has got every right to lease out this property. With these averments, the Municipality prayed for dismissal of the suit.
3. The plaintiff was examined as P.W. 1 and he marked Exs. A-1 to A-23 in support of this case. On the other hand, D.Ws. 1 and 2 were examined in support of the defence case and Exs. B-1 to B-3 were also marked. On the basis of the evidence, the trial Judge came to the conclusion that the documents filed by the plaintiff clearly proved that only the plaintiff and his predecessors-in-title were in possession and enjoyment of 'B' Schedule property, which is in Survey No. 2486. On a perusal of the evidence, the trial Court came to the conclusion that the defendant has no manner of right over the 'B' Schedule and no title over the same, consequently decreed the suit that the plaintiff is entitled to 'B' Schedule property and also granted permanent injunction restraining the defendant, his men and agents from in any manner interfering with the plaintiff's possession and enjoyment of the 'B' Schedule Property.
4. Against the Judgment and decree of the Sub Court, Thiruchirappalli, the defendant has preferred an appeal in A.S. No. 13 of 1981 before the District Court, Thiruchirappalli. Before the lower appellate court, though a petition was filed for amendment and the court has also allowed the plaintiff's request, at the time of argument, the plaintiff's counsel filed a memo giving up the alternative prayer for declaration of his right for easement by prescription. Thus, the claim for easement by prescription is given up and the plaintiff has confined his right only to the title to the 'B' Schedule property in the suit. The lower appellate court considered both oral and documentary evidence in detail. It relied upon Ex. A-23, dated 18.3.1973 notice issued by Assistant Director of Survey and Records to the plaintiff. It also relied upon the evidence of D.W. 1, who was working as Town Surveyor under the defendant Municipality. He deposed that the 'B' Schedule property has been described as Government Poramboke in the relevant records and D.W. 2 is working as Revenue Inspector under the said Municipality. He also deposed that the defendant is the owner of the 'B' Schedule property and the plaintiff has no title over the same. By relying upon Ex. A-20 to A-23 and Exs. B-1 to B-3, the lower appellate court observed that the plaintiff failed to prove his case that he has got title to the 'B' Schedule property, nor it can be said that the plaintiff has got perfected title to the 'B' Schedule property by adverse possession. As far as easemontary right, inasmuch as the plaintiff himself has given up, the lower appellate court found it not necessary to go into that question. In the above manner, as discussed above, the lower appellate court, viz., the District Judge, Thiruchirappalli, by Judgment and decree dated 4.11.1982, allowed the appeal and set aside the judgment and decree of the trial court and dismissed the suit.
5. Against the dismissal of the suit by the learned District Judge, Thiruchirappalli, the plaintiff filed the present second appeal before this Court.
6. Hajee O.K. Jamal Mohamed, learned Counsel for the appellant, has very much relied upon Exs. A-1 to A-3, the title deeds of the plaintiff as well as his vendor wherein the Survey No. 2486 has been mentioned. He vehemently contended that the suit property is not a property of the defendant Municipality. Alternatively, the learned Counsel for the appellant contended that even otherwise if it is held that the suit property is only Government Poramboke, it is not open to the defendant Municipality to interfere with the' enjoyment of the said property by the plaintiff.
7. Repelling the above contentions Mr. C. Chinnasamy, learned Senior Counsel appearing on behalf of the defendant Municipality, took me through the various averments of the written statement filed by the Municipality. He further contended that as per the provisions of the District Municipalities Act, the road margin automatically vests with the Municipality, consequently he argued that the claim made by the plaintiff is unsustainable. The learned Senior Counsel also very much relied upon Ex. A-23, dated 18.3.1973 the notice issued by the Assistant Director of Survey and Records to the plaintiff, wherein T.S. No. 2486, does not find place. In the light of the above position, the learned Senior Counsel contended that the learned District Judge was right in dismissing the suit and prayed for confirmation of the same in the second appeal.
8. I have carefully considered the arguments of both the counsel. It is true that in Exs. A-1 to A-3, T.S. No. 2486 has been mentioned as one of the items. However, there is no positive evidence to show that the suit 'B' Schedule property forms part of 'A' Schedule property and the reference made in the above referred three documents is with reference to the vacant site, namely, the 'B' Schedule property. The clinching document, is, Ex. A-23, which is a notice issued by the Assistant Director of Survey and Records to the plaintiff wherein all the properties owned by the plaintiff has been correctly mentioned. T.S. No. 2486 has not at all been mentioned in Ex. A-23. Admittedly, after the receipt of this notice, the plaintiff did not sent any objection. Here the learned Senior Counsel rightly pointed out that if the plaintiff is the owner of the 'B' Schedule property, namely, T.S. No. 2486, he could have sent objections for the notice sent by the Assistant Director of Survey and Records. Ex. B-1 dated 15.9.1980, an extract taken from the Town Survey Field Register of Tiruchy Municipality in respect of T.S. No. 2486 also shows that it is a Government poramboke. Ex. B-2, is a true copy of survey sketch for T.S. No. 2486. It is settled law that as per the provisions of the District Municipalities Act, all the road margin vests with the Municipality. It is to be remembered that 'B' Schedule property is a small vacant site situate adjoining west of Big Bazaar Street. The sun-shade of the building situate in the 'A' Schedule projected over the Town Survey Number. Further, a bank shop was constructed near the wall of the 'A' Schedule property. Because of these encroachments, the Municipality has issued notice to the plaintiff and collected tax from the plaintiff. The suit property is still a vacant site and it is not enclosed on two sides. After pursuing the entire documents available in this case, I am of the view that even though T.S. No. 2486 is mentioned in Exs. A-1 to A-3, it cannot be said that this Town Survey Number is referable to 'B' Schedule vacant site. The Municipality has sent notice to the plaintiff with regard to the occupation of a portion in T.S. No. 2486 under Ex. A-20. It shows that in the year 1975 the defendant has claimed title to this Survey number. Ex. A.23 as referred above, is the notice issued by the Assistant Director of Survey and Records in respect of this property. Even though various Town survey numbers are mentioned in Ex. A-23, T.S. No. 2486 was not included in this document. If really the plaintiff had title to T.S. No. 2486, then he must have raised an objection before the Survey party claiming to this survey Number also. As stated by me, admittedly, the plaintiff did not send any reply to Ex. A-23. The T.S. No. 2486 is only a Government Poramboke vested with the Municipality. Ex. B-1 is the true extract of the Town Survey Field Register maintained by the defendant Municipality. Ex. B-3 is the Register of encroachment fees maintained by the Municipality, wherein various encroachments are entered in this document. Serial No. 54 is the relevant entry. From 1974-75 onwards the encroachment in this Town Survey Number has been entered in the name of the plaintiff. Thus, the Municipality has been claiming title to this property on issuing memos to the plaintiff for occupying a portion of the Town Survey No. 2486. Ex. A-20 is one such memo issued to the plaintiff in this respect.
9. In the light of the documents, namely, Exs. A-20 to A-23, Exs. B-1 to B-3 as well as the oral evidence of D.W. 1 and D.W. 2, the lower appellate court is justified in setting aside the judgment and decree passed by the trial court. As pointed out by me above, Ex. A-23 is the relevant document which proves the case of the Municipality. Accordingly, I accept the arguments of the learned Senior Counsel appearing for the respondent Municipality. Consequently, the second appeal fails and it is accordingly dismissed. No order as no costs.