1. The Appellant/Respondent/Plaintiff has filed this Second Appeal as against the Judgment and Decree dated 13.10.1999 in A.S.No.109 of 1997 on the file of Learned II Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Krishnagiri.
2.The First Appellate Court viz., the Learned II Additional District and Sessions Judge-Chief Judicial Magistrate, Krishnagiri, in the Judgment in A.S.No.109 of 1997 dated 13.10.1999 has among other things observed that 'the Appellant/Plaintiff is not entitled to claim the relief of recovery of possession in respect of the suit property and further it is also held that the Appellant/Plaintiff is not entitled to claim a sum of Rs.20,000/- determined by the trial Court as compensation and consequently allowed the Appeal, thereby setting aside the Judgment and Decree of the trial Court passed in the main Suit O.S.No.46 of 1996 on its file.
3.Before the trial Court, on the side of the Appellant/Plaintiff, 1 to 9 issues were framed for trial. On the side of the Appellant/Plaintiff, witnesses PW1 to PW3 were examined and Ex.A.1 to Ex.A.13 were marked. On the side of the Respondents/Defendants witnesses DW1 to DW3 were examined and Ex.B.1 to Ex.B.8 were marked. Also, as Court Exhibits, the Commissioner's Reports and plans were marked as Ex.C.1 to Ex.C.4.
4.On an appreciation oral and documentary evidence available on record the trial Court has come to the conclusion that the Appellant/Plaintiff has a claim over the suit property and since the Respondents/Defendants have removed the Appellant/plaintiff unlawfully they are required to hand over the possession of the suit property to the Appellant/Plaintiff and further has held that as per Section 170 of the Panchayat Act, no notice is required to be sent and consequently granted the relief of permanent injunction and mandatory injunction as prayed for by the Appellant/Plaintiff in the suit, but in regard to the claim of compensation it awarded only a sum of Rs.20,000/- to the Appellant/Plaintiff and decreed the suit, leaving the parties to bear their own costs.
5.The trial Court in Paragraph 5 of its Judgment in the suit has observed that though it is stated that the suit property belonged to Panchayat when it has been handed over to Panchayat has not been stated. Further, the trial Court has opined that in respect of Occupied Natham Poramboke who ever encroachers upon the same it belonged to him and since the suit property has been admitted to be a Grama Natham and encroached by the Appellant/Plaintiff the plea that it belonged to Panchayat is not accepted.
6.Moreover, the trial Court in Paragraph 6 of the Judgment has observed that on the basis of contradictory evidence of defendant witnesses it is unbelievable to say that the Plaintiff has voluntarily vacated the shop. That apart, the trial Court has held that the averment officers have demolished the shop is believable, but to say that they have removed the articles of the building is unbelievable. In respect of damage to articles and buildings damaged, the trial Court has awarded a sum of Rs.10,000/- each and in all it granted a sum of Rs.20,000/-.
7.The First Appellate Court has come to the conclusion that the evidence of witnesses examined and document marked on the side of the Appellant/Plaintiff are not sufficient to prove that the Appellant/Plaintiff has been enjoyment of the suit property before the year 1980.
8.Furthermore, the First Appellate Court viz., the Learned II Additional District and Sessions Judge-Chief Judicial Magistrate, Krishnagiri has also opined that the document filed on the side of the Appellant/Plaintiff are only for ten years to show possession and added further, the evidence of PW2 to 4 are all interested.
9.Being satisfied with the Judgment and Decree passed by the First Appellate Court viz., the II Additional District and Sessions Judge-Chief Judicial Magistrate, Krishnagiri in A.S.No.109 of 1997 dated 13.10.1999, the Appellant/Plaintiff has filed the Second Appeal before this Court.
10.At the time of admission of the Second Appeal, this Court has framed the following substantial question of law.
"(1)Whether in law the appellant derived title to the suit property when the same is classified as occupied Grama Natham and when the Appellant occupied the suit property in the year 1958 by putting up a residential house and has been residing for more than the statutory period?
11.The Contentions, Discussions and Finding on substantial question of law No.1:
According to the Learned Counsel for the Appellant/Plaintiff, the First Appellate Court should have dismissed the Appeal and confirmed the well considered Judgment and Decree of the trial Court on the basis of the facts and circumstances and evidence on record of the case, adduced by the Appellant/Plaintiff.
12.The Learned Counsel for the Appellant/Plaintiff urges before this Court that the Appellant/Plaintiff and his ancestors have been in possession of the suit property by permanently putting up the superstructure and residing there for more than 30 years but this aspect of the matter has not been considered by the First Appellate Court in a real perspective.
13.A plea is raised on behalf of the Appellant/Plaintiff that in respect of the suit land, the First Respondent/First Defendant is levying house tax and collecting the same from the Appellant as if the suit property belonged to him and as such the First Appellate Court should have decreed the suit as prayed for by the Appellant/Plaintiff.
14.Proceeding further, the Learned Counsel for the Appellant/Plaintiff contends that the First Appellate Court ought to have considered Ex.A.1 to Ex.A.13 documents coupled with the evidence of PW1 to PW4 and should have held that the Appellant/Plaintiff has been in possession of the suit properties since 1958 and perfected his title over the suit property by means of Adverse possession.
15.Per contra, the Learned Government Advocate appearing for the Respondents 1 and 2/Defendants submits that the suit property was used as Hotel and the Appellant/Plaintiff was running the business in the buildings and since the Appellant/Plaintiff was using the premises as a Hotel the question of perfected possession does not arise and moreover as per the Board Standing Order in the Natham poramboke the occupant must construct a house alone for residential purpose and one cannot construct a building for commercial purpose.
16.Added further, the Learned Government Advocate for the Respondents 1 and 2/Defendants contends that there was no proof that the Appellant/Plaintiff was using the suit property for more than 30 years and in fact no document was produced to that effect and admittedly, the suit property was a Natham poramboke land and indeed, the First Appellate Court had rightly allowed the Appeal filed by the Respondents/Defendants and set aside the Judgment and Decree of the trial Court passed in the main suit O.S.No.46 of 1996, dated 18.10.1996 and the same need not be disturbed by this Court at this stage of Second Appeal.
17.Advancing her arguments, the Learned Government Advocate for the Respondents/Defendants submits that Grama Natham was to be used for dwelling house only for Appellant/Plaintiff's occupation but it should not be used for running a Hotel and as a matter of fact, the Appellant/Plaintiff was running a Hotel in the suit property as evidenced from the reports of the Commissioner and therefore, prays for dismissal of the Second Appeal.
18.In support of the contention that Grama Natham never vested with the Respondents and in fact, the Appellant/Plaintiff had right title and possession, the Learned Counsel for the Appellant/Plaintiff cites the decision of this Court A.K.Thillaivanan and another v. The District Collector, Chengai Anna District at Kancheepuram and three others 1998-3-L.W.603, at Page Nos.604 and 605 wherein it is observed that 'It has been admitted in the counter affidavit that the land is a village Natham. The village Natham is a land which never vested with the respondents (the State) and they have no right to it. Admittedly, when the land has been classified as village Natham, it is obvious that no portion of the land vests with the respondents. The admitted classification is village Natham and merely because the petitioners have converted the same into agricultural lands, no right could accrue to the respondents even after conversion. Thus, it is obvious that the petitioners are in exclusive possession and enjoyment of the land without interference by the respondents or any other person. Such possession, it is admitted, is since 1954 onwards. As such from the counter affidavit, this Court holds that the petitioners have acquired a valid right to the land by their exclusive possession since 1954 onwards. It has to be pointed out that the respondents have admitted the exclusive possession of the petitioners and their father since 1954. It is not the case of the respondents that the petitioners were ever assessed to penal charges nor the petitioners have ever been issued B-Memo.' 'Being a grama natham, it is obvious that the land in question had never vested with the Government. Section 2 of the Land Encroachment Act, 1905 excludes grama natham owned as house site. As such the provisions of the Land Encroachment Act, 1905 cannot be invoked by the respondents in respect of the land in question. It has been held as early as in (1949) I MLJ 290 (Palani Ammal v. L.Sethurama Aiyangaar) that grama natham is not a communal property in the sense in which thrashing floor or burning grounds or other property is communal that is property reserved for the use of the community. It is obvious, the admitted classification of the land being a grama natham, the land was never vested with the respondents nor they could take action under the Land Encroachment Act or any other enactment. The petitioners state they have exclusive right, title, possession, since 1954 onwards. The respondents have not right to interfere with the peaceful possession and enjoyment of the land and their action in giving a complaint for alleged offence under Section 420 of the IPC is total misconception. Incidentally, the respondents in the counter have stated that it is a village site. Further, it is to be pointed out that even according to the respondent, it is a grama natham and the respondents never had right nor the grama natham had ever vested with the respondents. In the circumstances, the petitioner is entitled the relief of Mandamus as prayed for. Normally, this Court should not have gone into the dispute of title or possession. But in the present case, in the counter affidavit filed by the respondents not only the classification as grama natham but also the exclusive possession since 1954 has been admitted. As such the petitioners have prescribed title to the land and the same cannot be interfered by the respondents either under Land Encroachment Act or under the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act.'
19.In the decision, the Executive Officer, Kadathur Town Panchayat, Harur Taluk, Dharmapuri District v. V.S.Swaminathan and others 2004(3) CTC 270, at Page 273 wherein at Para 9, it is observed as follows;
'A perusal of a combined reading of Section 3(b) and Section 18 of Madras Estates (Abolition and Conversion into Pyotwari) Act viz., Madras Act XXVI of 1948 and Section 2 of the Madras Land Encroachment Act, 1905 discloses that the title to a house site in a Grama Natham is protected from transfer to Government.'
20.Also, in the same Page at Page 274 in Paras 12 and 13, it is observed hereunder.
'12.Further, 'Grama Natham' is defined in the Law Lexicon as "ground set apart on which the house of village may be built." Similarly, Natham land is described in Tamil Lexicon published under the authority of University of Madras to the effect that it is residential portion of a village' or portion of a village inhabited by the non-Brahmins; or land reserved as house sites; etc.
13.In the light of the above and in view of the fact that the admitted classification of the land being a 'Grama Natham', it is obvious that the land was never vested with the Government or the Town Panchayat. Inasmuch as the petitioners and their ancestors were in exclusive possession of the lands in question for the past 40 years, the impugned order of the third respondent in cancelling the pattas with a view to evict them summarily at the instance of the resolution passed by the Panchayat is not sustainable. Further such a summary eviction is not permissible in law when the disputed question of title is involved for adjudications as laid down by the Apex Court in number of decisions.'
21.In the decision, the State of Tamil Nadu represented by the District Collector, Kamarajar District, Virudhunagar and another v. R.P.Patchirajan and another 2009-1-L.W.917, this Court has held that
'The lack of action on the part of the Government for the past 40 years is also an adding factor to show that the property has not been treated as a public one though they have been described as such in the revenue records and in the absence of exercise of any right over the suit properties by the Government, the contention that they have been remaining as poramboke lands or Grama Natham has to be discountenanced. Circumstance of its description in the records as Grama Natham, will not partake the character of porampoke land as pleaded by the Government.
22.The Learned Counsel for the Appellant/Plaintiff seeks in aid of the decision of this Court Ellammal and Others v. State of Tamil Nadu represented by its Collector of North Arcot District, Vellore and Others (2007) 2 MLJ 1113, wherein it is held as follows; In the present case, it is not even the case of the defendants that due to the use of this lands, for different purposes, there was a re-classification by making the lands not to be Grmanatham. While so, the decision arrived at by the learned first appellate Judge, on the basis that the plaintiffs have not proved under Exhibits A-10 to A-13 that the patta has not been granted in their favour, has no legal basis whatsoever. A reference to the pleadings by the defendants shows that no where the defendants have raised objection to the various documents, by which the predecessors-in-title of the plaintiff have purchased the property, namely, under Exhibits A-4, A-7, A-8, including Exhibit A-1. It is only on the basis that no patta was granted in favour of the plaintiffs, as well as predecessors-in-title, the defendants took the stand that neither the plaintiff, nor the predecessors-in-title were in ownership of the property and therefore, the claim of the plaintiffs, based on the document, not sustainable. As correctly found by the learned trial Judge, the plaintiffs and his predecessors have been in continuous possession and in uninterrupted enjoyment for more than 60 years and therefore, obtained title by adverse possession.'
23.From the perusal of the averments of the plaint filed by the Appellant/Plaintiff, it transpires that the Appellant/Plaintiff has averred that he is an absolute owner of the site mentioned in the Schedule-A and that he encroached the vacant site in the year 1958 and started the Fruit Stall by putting up the thatched shed and was running the said Stall in the suit property for about 12 years and further from the date of encroachment in the year 1958 he has been asserting exercising of rights of the ownership of the same as his own property to the knowledge of the people of the Denkanikottai and the Respondents/Defendants.
24.According to the Appellant/Plaintiff, he dismantled the thatched shed and constructed a mangalore tiled house building in the year 1970 by laying rock foundation and brick walls plastered with cement by spending Rs.35,000/- for constructing the titled house on the suit site and that the First Respondent/First Defendant acquiesced in such construction and had not made any objection and further after constructing the mangalore tiled house, started a Hotel in the name and style of Bilal in the front portion and used the back portion for residential purposes and that the First Respondent/First Defendant required him to pay the professional tax and accordingly he was paying the said tax. The First Respondent/First Defendant had assigned the Door No.28A to the constructed building. After issuance of notice to the Appellant/Plaintiff, the First Respondent/First Defendant increased the house tax.
25.The stand of the Appellant/Plaintiff is that he was in open, continuous and uninterrupted possession and enjoyment of the suit property and the superstructure or house construction put up thereon since the year 1958 adverted to all including the Respondents/ Defendant to their knowledge and therefore in any case he had perfected title to the suit property and the house constructed there on by means of Adverse possession. In the year 1982, the Appellant/Plaintiff had started a Bakery. He obtained Electricity Service Connection soon after the construction of the house building in the year 1970.
26.The Learned Counsel for the Appellant/Plaintiff submits that on 25.02.1990 at about 10.00 PM when the Appellant/Plaintiff was in Bangalore at the time the First Respondent/First Defendant and the employees working under him viz., the Sanitary Inspector etc., came to the suit property and on the basis of purported orders from the Second Respondent/Second Defendant demolished the house taking advantage of the absence of the Appellant and carried away the utensils of valued at Rs.35,000/- and in the 4th Week of March 1990, when the First Respondent/First Defendant started to putting up the foundation stone illegally and Denkanikottai Taluk.
27.It is candidly clear from the plaint filed by the Appellant/Plaintiff that he had filed the suit praying permission of the trial Court to sue as an indigent person and for declaring his title in respect of the suit property described in A schedule and for issuance of direction to the Respondents/Defendants do deliver possession of the suit property and for the relief of mandatory injunction restraining the Respondents/Defendant to remove the foundation laid in the suit property described in A Schedule, for the relief of permanent injunction restraining the Respondents/Defendants etc., for putting up any construction or building or putting superstructure upon the suit property described in A Schedule and for directing the Respondents/ Defendants to pay a sum of Rs.70,000/- as compensation with interest.
28.In the Written Statement filed by the First Respondent/First Defendant and adopted by the Second Respondent/Second Defendant, it is mentioned that the suit property is a Government land belonging to the First Respondent/First Defendant and that the Appellant/ Plaintiff encroached the suit land recently and was running a Shop by putting up the thatched she in the suit property and further the said encroachment made by the Appellant/Plaintiff was objected by the First Respondent/First Defendant by beat of tom tom on 30.09.1988 and a notice dated 01.10.1988 in ROC No.1523/88 was served on the Appellant/Plaintiff as per Section 82 of the Panchayat Act, 1958, by local delivery through his agent. Moreover, on 14.02.1990 another notice in R.O.C.No.868/89 was issued by the Appellant/Plaintiff and since he refused to receive the same, it was affixed on the outer on the door of the suit building in the presence of the witnesses. On 25.02.1990 at about 11.00AM, the First Respondent/First Defendant went to the Appellant/Plaintiff shop to ask him to vacate the suit land but the Appellant/Plaintiff was not there and the Shop was already closed and till 03.00PM, the First Respondent/First Defendant waited for the Appellant/Plaintiff arrival and that the beat of the tom tom was effected in the presence of the general public. Furthermore at about 04.00 PM, the First Respondent/First Defendant attempted to break open the lock in the presence of VAO, RI, Police and General Public and by the time, the Appellant/Plaintiff's brother Shafi requested the authority he would vacate the same in the next day after the Appellant/Plaintiff's arrival and further given oral statement and the same was recorded in the presence of Public, VAO, RI, etc.,
29.That apart, the Appellant/Plaintiff himself voluntarily came forward to take all his belongings in the suit land and he vacated and handed over the vacant suit land to the First Respondent/First Defendant on 26.02.1990. The Respondents/Defendants had dnied that the First Respondent/First Defendant carried away the clothes etc.
30.According to the Learned Counsel for the Appellant/Plaintiff, the trial Court in its Judgment in the Suit O.S.No.46 of 1996 dated 18.10.1996 has discussed about the nature of the land, but, the First Appellate Court has not said about the nature of the land and neither the Government nor the Panchayat has got right in the suit land and in fact, the trial Court has come to a right conclusion that the suit property is a Grama Natham.
31.At this juncture, it is useful to refer to Section 82 of the Tamil Nadu Panchayat Act, which runs as follows;
"82.Prohibition against obstructions in or over public roads.-(1)No person shall, except as permitted by rules under this Act and except in accordance with the conditions imposed by any licence made requisite by such rules-
(a)build any wall or erect any fence or other obstruction or projection or make any encroachment whatsoever, whether permanent or temporary, in or over any public road;
(b)make any hole or deposit any matter in or upon any public road;
(c)work a quarry in or remove stone, earth or other material from any place within twenty yards of a public road or of other immovable property vesting in or belonging to a panchayat or a panchayat union council, provided that nothing in the clause shall be deemed to apply to any work which, in the opinion of the Inspector, is done in connection with a bona fide agricultural operation; (d)erect any building over any sewer or drain or any part thereof;
(e)plant any tree on any public road or other property vesting in or belonging to a panchayat or a panchayat union council; or
(f)fell, remove, destroy, lop or strip bark, leaves, or fruits from, or otherwise damage, any tree which is growing on any such public road or other property or on any poramboke or land, the use of which is regulated by a panchayat under Section 86 or Section 87 and the right to which has not been established by such person as vesting in or belonging to him.
(2)It shall be the duty of the karnam of every revenue village to report on encroachments on properties vested in panchayat or panchayat union councils, to the executive authority or the commissioner concerned and to the officers of the Revenue Department, and it shall be the duty of the executive authority or the commissioner concerned to institute proceedings under this Act and secure the removal of the encroachments within such time as may as specified by the Government by general or special order. If the removal of the encroachments has not been secured within the period specified in such order, the officers of the Revenue Department shall institute proceedings under the Tamil Nadu Land Encroachment Act, 1905, (Tamil Nadu Act III of 1905), and secure such removal."
32.Also Section 170 of the Tamil Nadu Panchayats Act, 1958, enjoins thus;
"170.Notice of action against panchayat, etc.-(1)Subject to the provisions of Section 171, no suit or other legal proceeding shall be brought against any panchayat or its president or executive authority or any panchayat union council or its chairman or the commissioner or any member, officer or servant thereof or against any person acting under the direction of such panchayat, president, panchayat union council, chairman, executive authority, commissioner member, officer or servant, in respect of any act done or purporting to be done under this Act or in respect of any alleged neglect or default in the execution of this Act or any rule, by-law, regulation or order made under it until the expiration of two months next after notice in writing, stating the cause of action, the nature of the relief sought, the amount of compensation claimed and the name and place or residence of the intended plaintiff has been left at the office of the panchayat or panchayat union council, and if the proceeding is intended to be brought against any such president, executive authority, chairman, commissioner, members, officer, servant or person, also delivered to him or left at his place or residence. (2)Every such proceeding shall, unless it is a proceeding for the recovery of immovable property or for a declaration of title thereto, be commenced within six months after the date on which the cause of action arose or in case of a continuing injury or damage, during such continuance or within six months after the ceasing thereof. (3)If any panchayat, panchayat union council or person to whom notice is given under sub-section (1) tenders amends to the plaintiff before the proceeding is commenced and if the plaintiff does not in such proceeding recover more than the amount so tendered, he shall not recover any costs incurred by him after such tender; and the plaintiff shall also pay all costs incurred by the defendant after such tender."
33.Section 170 of the Tamil Nadu Panchayats Act, requires a prior notice to be issued to the Government or Officer or authority concerned as a condition precedent to the institution of any action against the Government or Officer or the authority, with reference to an Act done or purported to be done by them, him or it, in the exercise of official duty or in official capacity. The real test is, whether the public servant, if challenged, can reasonably claim that what he did was in virtue of his office.
34.Significantly, notice of proposed action against Panchayat visualised under Section 170 of the Act is required to be given only in cases where compensation under Section 173 of the Act is claimed against the Panchayat as per decision Panchayat Union Council, Tirupattur and another v. C.Tirupathy, AIR 1971 Madras 26 (V 58 C2) Full Bench.
35.In the decision Annamma Joy, Director MVS Q.Flex Cables Limited, Madras v. Collector, Chengai MGR District at Kancheepuram, 1998 1 MLJ 74 (Madras), this Court has held that "the provisions of Land Encroachment need not be followed in dismantling enclosure and if encroachment is recent origin need to follow the principles of natural justice, obviated.
36.In Rajammal v. Sub-Collector, Hosur, 1999 MLJ(Supp) 245 Madras, it is held that even if the occupant is a recent encroacher, such occupant should not be evicted without strictly adhering to procedure laid down under the Act.
37.At this stage, this Court aptly points out the decision A.Sankaralingam v. Arunachala Reddiar and others, 1993 1 MLJ 472, wherein this Court has laid down as follows;
"There is no law saying that all natham properties are Government or Panchyat properties. The decision in Rengaraja Iyengar v. Achikannu Ammal, (1959) 2 M.L>J. 513, is that Gramanatham does not stand vested in the Government under Section 3(b) of the Madras Estates (Abolition and Conversion into Ryotwari) Act (XXVI of 1948). Thus, at any rate, it cannot be said automatically that all natham properties are Government properties." 38.In the decision Tarakshi Panchayat by its President, Tarakkshi Village, Tiruvallur Taluk, Chingleput District v. District Revenue Officer, Chingleput District Collector's Office, Kancheepuram and another, 1975 1 M.L.J. 4, it is laid down as follows;
"Section 86(3) of the Tamil Nadu Panchayats Act is clear that the Collector after consulting the Panchayat, may, by notification exclude from the operation of the Act any poramboke referred to in Sub-Section (2). The Collector, after following the procedure may also modify or cancel the notification. 'Consultation' means that the person who has to consult, must place all the facts before the person to be consulted, so that the latter can apply his mind and express his views. Consultation further involves that it is only after ascertaining the views of the person to be consulted and considering the same the Collector could come to a decision. He heed not necessarily accept the views offered by the person consulted. But he must certainly have the views of that person before him so that they may influence his decision."
39.In K.Subban Pagadai v. S.Subban Pagadai and another, (2000) 2 M.L.J. 636, it is mentioned thus;
"In S.Rengaraja Iyengar v. Achikannu Ammal, (1959) 2 M.L.J. 513, it was held that grama natham does not vest with the Government and the title of the same is not transferred to the Government. It is also held therein that the tile of the plaintiff's vendor was not extinguished by virtue of the notification issued by the Government, as per the said Act and the plaintiff can maintain a suit for title."
40.In the decision Sundari V. District Collector, Virdhunagar District, Virdhunagar and another (2007) 6 MLJ 399 the Division Bench of this Court has observed as follows:
"A reading of Section 131(2) of the Tamil Nadu Panchayat Acts, 1994 will make it abundantly clear that not only a power to remove encroachments made in or over the properties vested with or belonging to the panchayat is conferred on the executive authority of the panchayat but also a duty is cast upon the executive authority of the panchayat to secure the removal of such encroachments. The section specifically provides that it shall be the duty of the executive authority to initiate proceedings under the Act either suo motu or an obtaining a report from the Village Administrative Officer to remove such encroachments and secure the removal of encroachments. It is obvious from the contents of Section 131(2) of the Tamil Nadu Panchayats Act, 1994 that the later part of the same casts a duty on the revenue officials designated in this regard to initiate proceedings under the Tamil Nadu Land Encroachments Act, 1905 to secure the removal of such encroachments, if there is failure on the part of the executive authority to secure the removal of the encroachments within the period specified by the State Government by the general or small notification. The mere fact that the revenue officials are enjoined with a duty to initiate proceedings under the Tamil Nadu Land Encroachments Act, 1905 on the failure of the executive authority of the panchayat to secure the removal of encroachments within the specified period cannot be interpreted to mean the extinguishment of such a power or obligation of the executive authority of the village panchayat to secure the removal of encroachment in or over the properties vested with the panchayat."
41.Section 2(1) of the Tamil Nadu Panchayat Act, 1958, defines 'building' as includes a house, out house, tent, stable, latrine, shed, hut, wall (other than a boundary wall not exceeding eight feet in height) and any other such structure, whether or masonry, bricks, wood, mud, metal or any other material whatsoever.
42.Section 2(14) of the Act defines 'hut' meaning any building which is constructed principal by of wood, mud, leaves, grass or thatch and includes any temporary structure of whatever size or any small building of whatever material made, which the panchayat may declare to be a hut for the purposes of this Act. 43.Section 2(13) of the Act defines 'house' meaning a building fit for human occupation, whether as a residence or otherwise, having a separate principal entrance from the common way, and includes any shop, workshop or warehouse or any building used for garaging or parking buses or as a bus-stand."
44.It is to be noted that no person shall make any encroachment whatsoever whether permanent or temporary in or over public roads except as permitted by Rule made under the Panchayat Act and except in accordance with the condition imposed by any licence made requisite by such rules. Section 82 of the Tamil Nadu Panchayat Act contemplates the mandatory permission to be obtained by any persons making any encroachment whatsoever.
45.The unauthorised encroachment is a continuing offence within the meaning of proviso to Sections 166 and 181(2)(c) and when once it is held that the Respondent/Appellant is guilty of continuing offence within the meaning of Section 166 of the Madras Panchayat Act, 1958, certainly the executive authority of the panchayat has a right to make the complaint within 12 months from the date of commencement of the offence in the decision State Public Prosecutor v. Vilakku Syed Ismail Natchi, (1970) 2 M.L.J. 552, it is held that the complaint was not barred by limitation, since the first part of Section 166 was totally inapplicable to the facts of the case.
46.It is not out of place for this Court to make a significant mention that Section 86 of the Tamil Nadu Panchayat Act, 1958 enjoins as follows;
"86.Panchayat to regulate the use of certain porambokes in ryotwari tracts.-
(1)The provisions of this Section shall apply only in ryotwari tracts.
(2)The following porambokes, namely, grazing grounds, threshing floors, burning and burial-grounds, cattle-stands, cart-stands and topes shall vest in the panchayat, and the panchayat shall have power, subject to such restrictions and control as may be prescribed, to regulate the use of such porambokes provided the porambokes are at the disposal of the Government. (3)The Collector, after consulting the panchayat, may, by notification, exclude from the operation of this Act, any poramboke referred to in Sub-Section (2) and may also modify or cancel such notification.
(4)The panchayat shall also have power, subject to such restrictions and control as may be prescribed, to regulate the use of any other poramboke which is at the disposal of the Government, if the panchayat is authorized in that behalf by an order of the Government. (5)The panchayat may, subject to such restrictions and control as may be prescribed, plant trees on any poramboke the use of which is regulated by it under Sub-Section(2) or Sub-Section (4)."
47.The Appellant/Plaintiff as PW1 has deposed that in the suit property he was running a fruit Shop from the year 1958 by putting up a hut and he had paid tax for running a fruit stall and from the year 1958 he ran a fruit shop and in the year 1970 he dismantled the thatched hut and conducting Hotel business in the front portion and using the back portion as a house and the name of the hotel was Bilal for which he was paying the tax and the house tax receipts are Ex.A.1 to Ex.A.6 and the processional tax receipts are Ex.A.7 to Ex.A.9 and he conducted a hotel business by making provision for the occupants to sit and take food and he had 10 tables and 40 chairs and in the year 1982, in the available small portion in the hotel and started a Bakery and the Bakery licence is Ex.A.10 ad he went to Bangalore for the purchase of articles on 25.02.1990 and returned after 4 or 5 days and that time he saw that the hotel was demolished and when he enquired with his employee Shafi and informed that the Administrative Officer, Sanitary Official and employees came to the suit property and required to vacate the suit property for which his employee had informed that it could be looked after later.
48.PW1 (Plaintiff) in his evidence in cross examination has stated that in the year 1988 he put up a thatched shed in the place nearby to bus stand and the present place which was demolished was that all the one opposite to bus stand and from the year 1958 till date for the construction of the Shop yet not asked for nobody was issued to him for the construction of Shop, but, he had paid the tax in respect of Shop and it is incorrect to state that he had refused to receive the notice at the time of its service and therefore, it was affixed on his shop and that he was aware of the demolition of his shop. To an another suggestion, PW1 had stated that it is not correct to state that he had denied the another notice dated 14.02.1990 issued to him and therefore, it was affixed on his shop.
49.PW2 in his evidence has stated that on 25.02.1990 at about 10 o'clock in the night, when he was closing the Shop at the time Panchayat Union staff came to the Shop and after pushing him, demolishing the shop and in the room there were 4o chairs, 10 tables, 2 rice bags, Flour, bureaus, 2 showcases, Coal, eggs, bronze utensils and thus articles were put in the Tractor and taken away by them and on next morning the place was completely demolished. PW2 in his cross examination, he has stated that PW1 daily paid a sum of Rs.30/- apart from providing him the food and that the suit Shop vacant site belongs to a Government land and near the said land forest office is situated.
50.PW3 in his evidence has stated that the Appellant/Plaintiff was running a hotel near the bus stand and six years before from this date, the Panchayat Board staff came to the building at 10.00 PM and take away the articles and he witnessed them and for the past six years, he was supplying Charcoal to him.
51.The evidence of PW4 is to the effect that six years before at about 10.30 in the night, the Panchayat Board people demolished the Shop.
52.DW1 (Administrative Officer of the Madhigiri Town Panchayat) in his evidence has stated that near the Forest Department in the Natham Poramboke, the Appellant/Plaintiff was running a Shop belonged to the Panchayat and the vacant site was adjacent to bus stand within a distance of 300 feet and further that the suit property was not handed over to the Appellant/Plaintiff by means of assignment and the revenue records, the Appellant/Plaintiff's name was not found and since he had encroached the suit property he has no right to enjoy the same.
53.DW1 in his further evidence has deposed that the office copy of tom tom notice dated 13.09.1988 is Ex.B.1 and Ex.B.2 is the office copy of Ex.B.1 and Ex.B.3 is the signature of the Appellant/Plaintiff obtained in the Local Thapal Register for receipt of Ex.B.2 notice and the said notice was served to the Appellant/Plaintiff through their Assistant and in spite of the same, the Appellant/Plaintiff had not vacated from the suit property and again Ex.B.4 notice was issued to the Appellant/Plaintiff in the year 1990, which was received by him and even after receipt of the said notice he had not vacated and therefore by beat of Tom Tom it was notified to vacate and they issued a report to the Tahsildar which is Ex.B.5. Also it is the evidence of DW1 that the Electricity Service Connection intimation to the Junior Engineer of Electricity Board is Ex.B.6 and Ex.B.7 is the notice for beat of Tom Tom and on 25.02.1990, when they went to the Appellant/Plaintiff shop to break open the lock with the help of Police, VAO, etc., at the time, the Appellant/Plaintiff's representative Shafi was present and since he requested them not to break open the shop and informed to take the articles of the shop. They have not broken the lock and they have not removed the articles and they themselves vacated the articles and handed over the property when they saw the suit property on the next day morning, it remained as a vacant site.
54.The evidence of DW2 (Revenue Official of Denkanikottai) is to the effect that the Appellant/Plaintiff had encroached the Government property near the Denkanikottai bus stand which is in Survey No.163/A1, a Grama Natham and this property belongs to the Revenue Department and that the said property was not assigned to him and in the suit property the Appellant/Plaintiff had a Bakery shop after fixing four poles he put a mangalore tiled roof and on 25.02.1990 he went to the bus stand to remove the encroachment along with VAO and Officials at about 11 o'clock in the morning at the time the Appellant/Plaintiff was not there and Shafy was present and they informed him to vacate the place and again they came back to the place 04.00 PM and informed that they would break open the Shop at the time Shafy came and informed that it would result in damage and therefore he himself would vacate and they granted time till on the next day morning at 10.00 AM. and Ex.B.8 Statement recorded on 25.02.1990 at 04.00 PM at Denkanikottai bus stand public and others were signed including himself and VAO and they all went to the suit property on being informed by the Tahsildar and it was wrong to state that they had removed the articles belonging to the Appellant/Plaintiff by breaking open the lock of the shop.
55.It is the evidence of DW3 that the suit property is a Grama Natham in which the Appellant/Plaintiff was running a Tea Shop and by putting a mangalore tiled roof with the held of stones, brick and poles and the suit property was not assigned to the Appellant/Plaintiff and he had encroached the same.
56.It is the further evidence of DW4 that on 25.02.1990, they went to the bus stand with a view to evict the Appellant/Plaintiff from the suit property and that the suit shop is situated near the bus stand and apart from the suit property other encroachments were removed and he went to the place along with the Revenue Inspector, Administrative Officer, Tahsildar at about 11 o'clock in the morning and the Appellant/Plaintiff was not present and one Shafy was present and they waited till 03.00 PM in the afternoon, but others vacated the encroachments. But the Appellant/Plaintiff had not vacated the encroachment and Shafy informed them that he himself vacate the suit property and therefore they have not break open the lock.
57.The evidence of DW4 is to the effect that in the year 1990 he served as Office Assistant at Denkanikottai Town Panchayat and the Appellant/Plaintiff had trespassed into the suit property near the bus stand and for removal of the said encroachment the Administrative Officer had issued a notice and the said notice was given to him for the purpose of service through Thapal and Ex.B.4 is the notice which was refused to be received by the Addressee and therefore, he had made an endorsement to that effect.
58.Even assuming that the suit property is a Grama Natham, the same was not assigned in favour of the Appellant/Plaintiff. Just because the Appellant/Plaintiff had paid house tax receipts or paid the professional tax it would not confer any ownership of the property in issue. Ex.A.3 receipt is dated 28.02.1981 and other receipts are after filing of the suit. Only for continuous enjoyment for about ten years, the Appellant/Plaintiff has filed the receipts. Even assuming that the suit property is a Grama Natham, the Appellant/Plaintiff has not proved Adverse possession and therefore, the issue of vesting either with the Government or Town Panchayat as the case may be does not arise, in the considered opinion of this Court.
59.Though PW1 (Appellant/Plaintiff) in his cross examination had deposed that he had not known that Survey No.163A/A1/A1 was a Grama Natham. But he had categorically admitted in his cross examination that he knew that the trespass property belonged to the Government and that he had not asked for issuance of patta till date for the property constructed, by him in the suit property and that he had not been issued with the patta in respect of the shop built by him. When the Appellant/Plaintiff himself had admitted in his cross examination as PW1 that the encroached property belongs to the Government, then, he cannot claim the relief of Adverse possession against the Respondents/Defendants in the considered opinion of this Court.
60.The Commissioner in his report has mentioned the following during his first visit:
1.I visited the suit locality on 22.07.1991 after giving notice to the counsels and the parties.
2.The suit property is located very near to the Denkanikottai Bus stand bearing the following measurements and sides.
a.North to Gandhi Road measuring 13-11 feets.
b.East to Denkanikotta-Hosur Road measuring 70 feets.
c.West to Forest Range office building measuring 70 feets.
d.South to one House Door No.26A measuring of 13-11 feets.
3.The suit property having this measurements was shown with basement made of stones.
4.A drainage goes at the sides of the Western and Southern side of the suit land.
5.The Eastern side of the suit property adjoins with the Forest Range office building.
6.During my first visit I able to find there was a construction made in the Southern end of the suit property. The construction was made of wooden pillars and mangalore titles measuring an area of nearly 11-4 feets breadth and 13-11 feets length. There was no walls but the mangalore filed roof was supported with 9 strong wooden pillars and also with the support of the forest range office building. The height of the building that is the roof height is nearly 13-11 feets. This area is shown in the plan as "ABCD" and also marked with red colour. And I visited one more time to note down the very construction of the suit land. I visited on 22.07.1991 at 04.30 PM after giving notice to the counsels and parties.
61.During the second visit he has noticed the following;
1.The area measuring 13-11 feets length and 11-4 feets breadth shown as "ABCD" in the plan is completely changed and there was a newly constructed building with tiled rook having walls made of cement, bricks, etc. The roof was made of mangalore tiles and wooden support. 2.The length of the construction is 13-11 feets, the breadth is 11-4 feets and height of the building is 13-11 feets.
3.A wooden door fixed at the Southern side of the suit land shown as 'S' in the plan.
4.The construction is very new one, and very well it is finished with while wash.
5.There was also identification marks seen in the Eastern side of the suit land. That is on the wall of the Forest office building . That identification marks gives structure of one Cupboard measuring 4 feet breadth and 5 feet length as shown as "J" in the plan. And in the same Wall water tank and current meter identification marks are seen as shown in "K" and "L" in the plan.
62.It is seen from the file produced by the Learned Government Advocate that in respect of Village 47, Denkani Kottai, A Register Copy that Survey No.163/3A/A1, measuring 21.29.5 has been mentioned as Denkani Kottai Grama Natham in the Natham land tax scheme clean adankal extract the Survey No.1345 is mentioned as Government Poramboke and in the remarks column it is mentioned as bus stand.
63.It cannot be said that the Appellant/Plaintiff was issued with notice to vacate from the suit property by means of beat of Tom Tom and he was once again given the second notice and therefore on his refusal to receive the same was affixed. On going through the oral and documentary evidence adduced on the side of the Respondents/Defendant, it is candidly clear that only after issuance of proper notice, the Respondents/Defendants had removed the encroachment made by the Appellant/Plaintiff and therefore, it is not open to the Appellant/Plaintiff to take a contra plea in this regard as opined by this Court.
64.Though a contention has been put forward on the side of the Respondents/Defendants that in the Natham Poramboke viz., the suit property the occupant must construct a house alone and not a building for the commercial purpose, inasmuch as the Appellant/Plaintiff had constructed the building for the commercial purpose he must pay a land cost to the Government and he had not paid the land cost to the Government and only if he paid a land cost to the Government then only the title vested with him in respect of the suit property.
65.Though the Appellant/Plaintiff in the plaint had claimed a compensation of Rs.70,000/- with interest from the date of suit till realisation at the rate of 12% per annum from the Respondents/Defendant and notwithstanding that the fact that the trial Court had granted a sum of Rs.10,000/- towards damages to Chimney, etc., and another sum of Rs.10,000/- towards articles and for damage to buildings this Court is of the considered view that since the Appellant/Plaintiff's employee Shafi had taken away and had removed all the articles and vacated the suit shop as seen from the evidence of witnesses of the Respondents side, the Appellant/Plaintiff is not entitled to claim any amount in this regard in the considered opinion of this Court.
66.Suffice it for this Court to point out that in the light of qualitative and quantitative discussion, mentioned supra and on a careful consideration of respective contentions, this Court comes to an inevitable conclusion that the Appellant/Plaintiff had not derived in respect of the suit property though according to the Appellant/Plaintiff, he occupied the same in the year 1958 and put up residential house etc., for the simple reason that the suit property as Grama Natham he not only conducted a Hotel business but also resided there and initially he run the fruit stall and later a Bakery etc., and looking at from any angle, the finding rendered by the First Appellate Court that the Appellant/Plaintiff is not entitled to claim the reliefs of recovery of possession and mandatory injunction do not suffer from any material irregularity or patent illegality and viewed in that perspective this substantial question of law is answered against the Appellant and consequently, the Second Appeal fails.
67.In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. Consequently, the Judgment and Decree of the First Appellate Court in A.S.No.109 of 1997, dated 13.10.1999 are affirmed by this Court for the reasons assigned in the Second Appeal.