Judgment:
The Appellants/Plaintiffs have filed the instant Second Appeal as against the Judgment and Decree dated 25.01.1996 passed by the Learned Sub Judge, Virudhachalam in partly allowing the A.S.No.123 of 1992 leaving the parties to bear their own costs.
2.The Plaint scenario:
(i) The Appellants/Plaintiffs' father, in his Plaint, in the suit before the trial Court, has averred that originally the suit property is a 'Pattai Poramboke' belonging to the Government. The Appellants/ Plaintiffs' father and his predecessors have entered into these suit property more than 35 years ago and has made improvements in the land by spending some smaller amounts and in one portion, has constructed a house (Jagai) and obtained electricity connection and has been residing there. Further, in one portion of the suit property, they have raised garden plants and in another portion, they have raised paddy and has been in enjoyment till date. The Appellants/ Plaintiffs' father's enjoyment of the suit property has been recognised by the Government. In that respect, the Appellants/Plaintiffs' father (original Plaintiff) has been in enjoyment of the property uninterruptedly well over 35 years and therefore, he has acquired the possessory right in his own possession in the suit property and that the right of the Government has been extinguished.
(ii) The enjoyment of the suit property by the Appellants/ Plaintiffs father (original plaintiff) has been an open one. Since the Appellants/Plaintiffs' father and his predecessors have been in enjoyment of the suit property continuously for more than 30 years, the right of the Government has been extinguished and the adverse possession right has been accrued to the Plaintiff. The Government in law cannot claim any right in the suit property. Even if it claims any such right, the same is not valid in law. Except the Appellants/ Plaintiffs' father (original Plaintiff), in the suit property, no one has got any right or title.
(iii) The Appellants/Plaintiffs (original Plaintiff) has come to know on 20.02.1985 that the Respondents/Defendants are making arrangements through their subordinates to demolish the house and to destroy the garden plants and further to remove the same forcibly. Also, with the permission of the 1st Respondent/1st Defendant under the supervision of the 2nd Respondent/2nd Defendant, Respondents 3 to 6 have planned to construct a building and the village people are also talking about the same and further, when the Appellants/Plaintiffs' father has not been in the village, at that time, the Respondents/ Defendants' subordinates have inspected the suit property. The prescriptive enjoyment and title of the Appellants/Plaintiffs' father in respect of the suit property are to be protected. Further, the Appellants/Plaintiffs' father's right has to be protected as per Government G.O.Ms.No.1670, Revenue dated 29.08.1977. Contrary to the tenor of the said G.O., the action attempted to be taken by the Government amounts to the Respondents/Defendants violating the law. The possessory title of the Plaintiff in the suit property more than that of the Respondents/Defendants will have to be declared and also the relief of permanent injunction will have to be granted based on necessity and in the interest of justice. In case, if the Respondents/ Defendants in the middle of the suit are found to have entered into a forcible possession of the suit property, then as an alternate relief, the Respondents/Defendants are to be directed to hand over possession of the suit property.
(iv)The Appellants/Plaintiffs' father have issued a Section 80 C.P.C. Notice dated 22.02.1985 to the Respondents 1 and 4/Defendants 1 and 4, which has been received by the 1st Respondent/ 1st Defendant. The 4th Respondent/4th Defendant has not received the notice. The 5th Respondent/5th Defendant has issued a threatening letter dated 20.02.1985, in which, it is mentioned that the Plaintiff (Appellants/Plaintiffs' father) has encroached the property in Survey No.124/13, which is a wrong one. R.S.No.124 is coming to an end with sub division of 12. There is no 13th sub division. In the circumstances, deliberately with a scheming mind, the sub division number has been wrongly mentioned and the 5th Respondent/5th Defendant has planned to evict the Appellants/Plaintiffs' father from the suit property forcefully. The said notice of the 5th Respondent/5th Defendant is against law. Hence, the Appellants/Plaintiffs' father [original Plaintiff] has filed the suit praying for the relief of Declaration of his possessory title in the suit property and also for the relief of permanent injunction restraining the Respondents/Defendants, their agents, subordinates in interfering with the possession.
3.Written Statement Pleas:
(i) In the Written Statement filed by the 1st Respondent/1st Defendant (and adopted by other Respondents 2 to 5/Defendants 2 to 5), it is mentioned that the suit property belongs to Government Pattai Poramboke. It is for the Plaintiff (original Plaintiff) to establish that he and his predecessors have entered into the suit property 35 years ago and has made improvements with their money and in one portion, they have constructed a house (Jagai) and obtained an electricity connection and has been in enjoyment of the same without any interruption. The Appellants/Plaintiffs' father (original Plaintiff) has been in enjoyment of 22= cents in the suit survey number subject to objection of the Government. Only in respect of 22= cents, the Appellants/Plaintiffs' father is in enjoyment of the same subject to objection of the Government and also issuance of 'B' memos issued thereto. (ii) In the pending suit O.S.No.1518 of 1983 as alleged by the Appellants/Plaintiffs' father (original Plaintiff in the suit in O.S.No.295 of 1985), these Defendants are not added as parties. Therefore, the said suit will not bind the Respondents/Defendants.
(iii) In respect of the suit Pattai Poramboke of 0.35 cents, the Appellants/Plaintiffs' father subject to the objection of the Government is in enjoyment of the 0.22 = cents upto fasli 1394. In the suit an extent of 0.35 cents, 0.05 cents has been allotted for constructing a residence of Assistant Agriculture Officer and the suit is not maintainable without adding him as a necessary party. The Appellants/Plaintiffs' father (original Plaintiff) is not in enjoyment of the aforesaid 0.05 cents. Therefore, the Appellants/Plaintiffs' father is not entitled to get the relief of injunction. Moreover, Respondents 3 to 5/Defendants 3 to 5 are unnecessary parties and by adding the unnecessary parties, the suit is not maintainable. There is no cause of action for the suit.
4.Before the trial Court, in the main suit 1 to 6 issues have been framed for adjudication. On behalf of the Plaintiff (Appellants/Plaintiffs' father) witnesses P.W.1 to P.W.3 have been examined and Exs.A.1 to A.32 have been marked. On the side of the Respondents/Defendants, witness D.W.1 has been examined and Exs.B.1 to B.3 have been marked. Further, Exs.C.1-Advocate Commissioner's Report and Ex.C.2-Additional Report have been marked.
5.The trial Court on an appreciation of oral and documentary evidence on record in the suit has come to the consequent conclusion that based on the documents filed on behalf of the Plaintiff, it is not able to decide whether the Plaintiff has been in possession of the suit property continuously, without interruption for well over 30 years and further opined that no document has been filed on behalf of the Plaintiff that the Plaintiff has been in possession of the suit property before the year 1972 and has held that the Plaintiff is not entitled to get the declaratory and permanent injunction reliefs. In fact, it has held that the Plaintiff has not acquired the right of adverse possession against the Government in respect of the suit property and resultantly, it dismissed the suit directing the Plaintiff to pay the suit costs to the Defendants 1 and 2. However, it directed the Defendants 3 to 5 to bear their own costs.
6.Feeling aggrieved against the Judgment and Decree dated 30.01.192 passed by the trial Court in O.S.No.295 of 1985, the Appellants/Plaintiffs' father as an Appellant (during his lifetime) has filed A.S.No.123 of 1992 before the Learned Sub Judge, Virudhachalam.
7.The First Appellate Court viz., the Learned Sub Judge, Virudhachalam, while passing the Judgment in A.S.No.123 of 1992 on 25.01.1996, has, inter alia, observed that 'the Appellants/Plaintiffs have not proved that they have acquired the right of adverse possession and further, opined that the Appellants/Plaintiffs' have not proved whether they are in enjoyment of 0.35 cents through sufficient evidence and moreover, based on the documents and evidence on record, the Plaintiff (Appellants/Plaintiffs' father) is in enjoyment of the suit property by putting up the hut and also by keeping young coconut trees and also cultivating garden plantation and raising punja crops and inasmuch as the Plaintiff is in enjoyment of the suit property after the year 1972, without following the lawful procedure, it is not proper to evict him and if any action is initiated against the Appellants/ Plaintiffs, it is to be done by following the rules and therefore, granted the relief of permanent injunction and allowed the Appeal in part, leaving the parties to bear their own costs.
8.Being dissatisfied with the Judgment and Decree of the First Appellate Court viz., the Learned Sub Judge, Virudhachalam dated 25.01.1996 in A.S.No.123 of 1992, the Appellants/Plaintiffs have preferred the present Second Appeal before this Court.
9.At the time of admission, this Court has framed the following Substantial Questions of Law for determination:
“(i)Whether the lower courts erred in law to hold that the appellants are entitled to declaration of title atleast in respect of 22 = cents from out of the suit property without prejudice to their claim to the entire suit property?
(ii)Whether the lower appellate court erred in law by granting a decree for partial injunction when the respondents have not made the claim in S.No.124/12?
(iii)Whether the lower courts erred in law by not drawing adverse inference against the respondents when they have not produced the Revenue records relating to the suit property to rebut the case of the appellant?
(iv)Whether the lower Courts erred in law in not holding that the appellants have perfected title over the suit property by adverse possession and prescription for over the statutory period?”
10.The Learned Counsel for the Appellants/Plaintiffs submits that both the Courts have failed to appreciate Ex.A.7-Kists Receipts dated 21.10.1991 paid by the Appellants/Plaintiffs' father (original Plaintiff) for Fasli 1400 and further, the trial Court should have found that the Appellants /Plaintiffs and his predecessors have been in total enjoyment of the possession of the suit property for more than the statutory period.
11.It is the contention of the Learned Counsel for the Appellants/ Plaintiffs that the trial Court as well as the First Appellate Court have failed to appreciate that there is evidence on the side of the Respondents/Defendants to show that the Appellants and his predecessors have been in possession and enjoyment of 22 = cents.
12.The submission of the Learned Counsel for the Appellants/ Plaintiffs is that both the Courts ought to have granted the relief of Declaration of Title in regard to 22 = cents atleast.
13.Lastly, it is the contention of the Learned Counsel for the Appellants/Plaintiffs that both the Courts have failed to take into account that the 6 cents given for construction of quarters for the 6th Respondent is in R.S.No.124/13, whereas the Appellants' suit property is in R.S.No.124/12.
14.Per contra, it is the submission of the Learned Government Advocate appearing for the Respondents/Defendants that the First Appellate Court viz., the Learned Sub Judge, Virudhachalam, while allowing the Appeal in the Judgment, has, among other things, held that the Appellants/Plaintiffs have not established with proof whether 22 = cents is in their enjoyment and further, the Appellants/Plaintiffs have failed to file a petition praying for appointment of a Surveyor at the time of filing of an application praying for an appointment of an Advocate Commissioner. Further, the First Appellate Court has found that the Appellants/Plaintiffs' father has put up a hut and has been residing and also in enjoyment of the property by planting young coconut trees, gardening crops and punja crops and has been residing after the year 1972 continuously and therefore, cannot be evict without following the due lawful procedure and refused the relief of adverse possession and the declaratory relief, but only allowed the Appeal in part by granting the relief of the permanent injunction which need not be interfered with by this Court.
15.The P.W.1 (Appellants/Plaintiffs' father) (original Plaintiff), in his evidence, has deposed that the suit property is in R.S.No.124/12 with total extent of 0.41.5 Ares viz., 35 cents and he is in enjoyment of the suit property for 35 years and in the suit property, in one portion, he has constructed two thatched huts and that for the Faslis 1385, 1386, 1390, 1393, 1397, 1399, 1400, 1401 in respect of the suit property he has paid kists which are Exs.A.1 to A.8 and Exs.A.9 and A.10 are the House Tax Notices sent to him demanding payment and Exs.A.11 to A.16 are the House Tax Receipts paid by him and Exs.A.12 to A.21 are the Electricity Bill Receipts paid by him in respect of the house. It is the further evidence of P.W.1 that Exs.A.22 to A.24 are the E.B. bill charges receipts and Exs.A.25 and A.26 are the House Tax Receipts and Ex.A.27 is the 'B' memo issued to him in the year 1984 and in respect of the suit property, O.S.No.1518 of 1983 has been filed by him against Duraisamy Padaiyachi and others and Ex.A.28 is the Certified Copy of the Decree dated 25.03.1988 of the District Munsif Court, Virudhachalam and Ex.A.29 is the notice issued by the 5th Respondent/5th Defendant and hence, he has issued Ex.A.30-Lawyer Notice dated 22.02.1985 to Respondents 1 and 3/ Defendants 1 and 3 as per Section 80 of Civil Procedure Code.
16.Continuing further, it is the evidence of P.W.1 (Appellants/ Plaintiffs father) (original Plaintiff) that as stated in Ex.A.29-Notice dated 20.02.1985 for Survey No.124 there is no Sub Division Number as 13 and for Survey No.124 there are sub divisions upto 12 and it is not correct to state that he is in enjoyment of the 22 = cents in the suit property and that he is not in enjoyment of the 35 cents and moreover, he is in enjoyment of the 35 cents and it is not correct to state that out of this 25 cents 5 cents of land has been given to the 6th Respondent/6th Defendant for construction of his residential house and till date, no house has been constructed for the 6th Respondent/6th Defendant.
17.P.W.2, in his evidence, has stated that on the eastern side of the suit property, he has his own land and that suit property has been enjoyed by the Plaintiff (Appellants/Plaintiffs' father) for 40, 50 years and the suit property in R.S.No.124/12 measures an extent of 35 cents and in the suit property, there are 10 Vathanarayana Trees, one Tamarind Tree, one Drumstick Tree and 3 Coconut Trees and in the suit property, the Plaintiff (Appellants/Plaintiffs' father) has constructed a thatched house and is residing and in other portions of the suit property, he is raising nanja and punja crops and enjoys the same.
18.P.W.3, in his evidence, has deposed that suit property has been in enjoyment of the Plaintiff (Appellants/Plaintiffs' father) for the past 35 years and in one portion of the suit property, the Plaintiff has constructed a thatched house and is residing there and further that in the suit property, there are trees and the Plaintiff is in enjoyment of the suit property by raising nanja and punja crops and it is incorrect to state that possession of the 5 cents of land in the suit property has been taken by the Government.
19.The evidence of D.W.1 (Assistant Engineer, P.W.D.) is to the effect that the suit property is a Pattai Poramboke and the Plaintiff is in enjoyment of 22 = cents alone in the suit property and even in the Government records, only 22 = cents is mentioned has in enjoyment of the Plaintiff and in O.S.No.1518 of 1983 the Government is not a party and therefore, the said Judgment will not bind the Government and for construction of a building to the 6th Respondent/6th Defendant, Revenue People have handed over 5 cents of land to the 6th Respondent/6th Defendant.
20.It is the further evidence of D.W.1 that Ex.B.1 is the Plan concerning Survey No.124/13 and Ex.B.2 is the report dated 23.07.1983 in and by which the 5th Defendant has handed over the property to the 6th Defendant and Ex.B.3 is the Rough Plan dated 23.07.1985 in respect of the Project Officer's Residence.
21.D.W.1, in his cross examination, has deposed that the suit property Survey Number is 124/12 and in S.No.124/12, the P.W.D. has not constructed the house for the 6th Defendant.
22.This Court worth recalls the decision in Denaguptapu Bhaskarudu V. Secretary of State for India 1914 Madras Weekly Notes at page 53 wherein it is held as follows:
“Government is entitled to levy an assessment on land which is unauthorisedly occupied by any person if such land is the property at Government.
Sec. 14 declares any suit may be brought by a person aggrieved by any proceeding under the Act within 6 months from the time the cause of action arose.
Where a notice to quit was served and penal assessment was levied and that was made the point for a cause of action for a declaration of title brought six months later the suit will be barred by limitation.”
23.This Court aptly points out the decision in The Secretary of State for India in Council represented by the collector of South Kanara V. Dewan Bahadur Alex Pinto (dead) and others 1936 Madras Weekly Notes 850 wherein it is held that 'The plaintiff must prove possession for the full statutory period of 60 years and he cannot be relieved of that burden by proving possession for something less than the prescribed period.' Also, it is observed that 'the emphatic provisions of S.2 of the Land Encroachment Act pointed to the same conclusion as regards proof against Government.'
24.Also, this Court points out the following decisions:
(a)In B.M.Habibulla and others V. The State of Tamil Nadu represented by the District Collector, Nilgiris District, Udhagamandalam and others 1994 (I) MLJ 299 wherein it is held as follows:
“A notice under Section 5 of the Act was issued to the petitioner. It does not bear any date. In the said notice it was mentioned that the property will be forfeited under Sec. 6 of the Act, and the petitioner was called upon to show cause and on before .... 1990. There is also some over-writing. This hardly satisfies the legal requirement of the provisions of the Act. There cannot be any denial of the fact that the right of hearing given to the unauthorised occupant under Sec.7 of the Act is a valuable right and it has to be strictly in conformity with the Act. Even the 'B' memo issued by the Tahsildar does not bear any date as to when the Revenue Inspector or Tahsildar inspected the encroachment even though the said memo bears the month and date indicating the enjoyment of the lands by unauthorised occupants. There is another 'B' memo bearing the month without any date signed by the Tahsildar. But at the end of the notice there is an endorsement to the effect “Evicted land resumed to Government” signed by the Tahsildar.”
(b)In V.Arunagiri and others V. The Divisional Engineer, National Highways, Thiruvannamalai and another 1999-Vol-1-MLJ-308 wherein it is observed as follows:
“The Court is the view that the respondents cannot take action against the appellants to demolish their houses, which are in their occupation, without issuing notice under Sec. 7 of the Act, so as to pass an order under Sec.6 of the Act to evict them or to demolish their houses.”
(c)In K.Kathalingam V. State of Tamil Nadu and others 2000-Vol-1-MLJ247, it is held thus:
“It is very clear that no proceedings were served on the petitioner and from the documents, the court is not able to see any acceptable evidence to show that the petitioner refused to receive the same. The learned counsel appearing for the petitioner has submitted that even assuming that the authorities have taken proceedings under the Land Encroachment Act, it has to be decided whether such summary proceedings can be taken with respect to the petitioners land. The learned counsel has further submitted that when the dispute regarding possession itself is pending before the civil court, the respondents are not correct in invoking summary proceedings. According to him, the possession cannot be taken on the basis that notices have been issued, without making any enquiry by the Collector, especially when the petitioner has raised objection that he should not be evicted from the said lands. There is some force in the said argument. Hence the proceedings taken by the respondents cannot be sustained in law.”
(iv)In Ramamurthy V. Junior Engineer, Public Works Department, Water Management, Ramanathapuram District (2007) 1 MLJ 101 wherein it is laid down as follows:
“A notice has to be issued under Section 7 of the Act by the Collector or Tahsildar or Deputy Tahsildar or Revenue Inspector or any Authorised Officer or any other Officer specified by the State Government in that behalf. Likewise, an order for eviction can be passed under Section 6 of the Act only by the Collector or subject to his control, by the Tahsildar or Deputy Tahsildar or any Authorised Officer or any other Officer specified by the State Government in that behalf.
In this case, the impugned proceedings has been issued by the Junior Engineer Public Works Department, Water Management. In the counter affidavit filed by the first respondent, it is nowhere stated that he has been authorised by the State Government to take action under Sections 7 and 6 of the Act. i.e. It is not averred in the counter affidavit that he is the Authorised Officer or specified Officer under Sections 6 and 7 of the Act to initiate eviction proceedings under the Act.”
(v)In D.Sathish V. Tahsildar, Sirkali Taluka and others AIR 1998 Madras 291 at page 292, in paragraphs 3 to 5, it is held hereunder:
“3.Before taking proceedings under Section 6, the Collector of Tahsildar, or Deputy Tahsildar, or Revenue Inspector, or any authorised officer or any other officer specified by the State Government in that behalf shall cause to be served on the person reputed to be an unauthorised occupant, of a land, a notice specifying the land so occupied and calling on him to show cause why action should not be taken against him under Section 6 of the Act. But such notice need not be served in the case of any person unauthorisedly occupying the land, if he had previously been evicted from such land under Section 6, or, if he has previously vacated such land voluntarily, after the receipt of a notice under Section 5-B or under Section 7. The non-issuance of notice was held to vitiate the proceedings taken under Section 6 of the Act by this Court in Hamsavalli v. Tahsildar, Vridhachalam, AIR 1990 Mad 350. The notice reads “that in the event of not vacating within 15 days, including the superstructure and the crops on the property are liable to be confiscated. It is not same thing as calling upon him to show cause before a certain date why he should not be proceeded against under Section 6 of the Act. Section 6 of the Act empowers the authority to take such action to confiscate anything found on the land including crops or other products, raised or any building erected thereon, if not removed within stipulated time. The wordings of the impugned notice are fully in compliance with the requirements of Section 6, rather than insisting for showing cause why he should not be proceeded against under Section 6 of the Act. Sub-Clause(2) of Section 6 of the Act provides that by serving a notice in the manner provided under Section 7 on the person reputed to be in occupation in the event of refusing to vacate, the officer so authorised may remove any such person, after holding a summary inquiry into the facts of the case, if he is satisfied that the resistance or obstruction was without any just cause and take such appropriate action against such person, including penal action.
4.The learned single judge, in the order, has stated that nothing is stated in the affidavit whether any reply has been given by the petitioner to the said notice. When it is the contention of the appellant/petitioner that the impugned notice is under Section 6 of the Act and not under Section 7, the question of showing cause does not arise. While ordering confiscation in the event of not handing over, there is nothing to indicate in the order that a summary inquiry was conducted as contemplated under sub-clause (2) of Section 6 of the Act, since the substance of the notice is directing to vacate the land within the stipulated time and therefore, it cannot be considered as a notice under Section 7 of the Act and there is non-compliance of the requirements of law as has been contemplated under the Act.
5.The finding of the learned single judge that the impugned notice is the one under Section 7 is not sustainable and the same is liable to be set aside because, forcible eviction by revenue authorities without following the legal requirements is bad in law. The authorities are at liberty to take such steps in accordance with law, after complying with the requirements of Section 7 of the Act. The writ appeal is therefore allowed.”
25.In the present case before us, Exs.A.1 to A.26 relates to the payment of kists receipts (made by the Plaintiff) beginning from the Fasli 1385 dated 08.04.1976 till 27.02.1992 for Fasli 1401-House Tax Demand Notice of the year 1992 and House Tax Receipts from 23.04.1974 to 04.06.1977 (given to Plaintiff), E.B. Receipts from 30.08.1982 to 16.04.1992, House Tax Receipts of the year 17.03.1985, 21.01.1991. Ex.A.27 is the Notice dated 11.04.1982 issued to the Appellants/Plaintiffs' father (original Plaintiff) by the Tahsildar in respect of Survey No.124/12 Pattai land, as per Section 5 of the Tamil Nadu Land Encroachment Act, 1905. Ex.A.28 is the Certified Copy of Decree dated 25.03.1988 made in A.S.No.1518 of 1983 on the file of the learned District Munsif, Virudhachalam. In Ex.A.28- Certified Copy of the Decree, the Appellants/Plaintiffs' father Natesa Padaiyachi has figured as Plaintiff. The Defendants in O.S.No.1518 of 1983 are Duraisamy Padaiyachi and Kolanchi Padaiyachi, who are the sons of Periyasamy Padaiyachi. The Appellants /Plaintiffs' father in O.S.No.1518 of 1983 has got a decree of permanent injunction against the Defendants mentioned therein. Admittedly, in O.S.No.1518 of 1983 viz., in Ex.A.28-Certified Copy of the Decree dated 25.03.1983, the Respondents/Defendants (in O.S.No.295/1985) are not parties. Inasmuch as the Respondents/ Defendants (in O.S.No.295/1985) are not parties to the decree in O.S.No.1518 of 1983, the decree obtained by the Appellants/Plaintiffs' father in the said suit will not bind them. As per Section 43 of the Indian Evidence Act, a Judgment or Decree is admissible to prove a fact that a decree has been made between specified parties and for finding out what land has been decreed.
26.Ex.A.29 is the Notice dated 20.02.1985 issued by the Junior Engineer of the P.W.D. Department addressed to the Appellants/ Plaintiffs father requesting him to hand over R.S.No.124/13 since the place is required for construction of a residential building for Assistant Agriculture Officer. Also, the Appellants/Plaintiffs' father has been informed that if any crops are raised, the same may be removed failing which, through police the encroachment will be removed and further works will be commenced in this regard.
27.In Ex.C.1-Commissioner's Report dated 30.03.1985, the Advocate Commissioner has stated, among other things, that suit place is situated on the south of way which separates from Dindigul-Madras National Highway No.45 and proceeding to Vepur village and in the suit property east west leaving space, there are Vathanarayana Trees and near the Vathanarayana tree, on the upper side of the hut, there are 4 young coconut trees and on the west of the hut, the chilly gardens are at harvest stage etc. Further, in the said report, the Commissioner has stated that in front of the hut, there are 3 haystacks in small quantity and near the same, bullocks have been tied and also the cattle shed is in front of the house and in the hut, there is one door and there is no other door or window and the breadth of the door is 2' 4” at height 5' and in the hut, there are 4 ceilings and inside the house, there is one portion for cooking and next to the door and that of the cooking room, there is one room and there are traces for occupation of the house and there has been an electricity connection in the house.
28.In Ex.C.2-Additional Commissioner's Report/second Commissioner's Report dated 26.04.1985, the measurement of the suit property is mentioned as on the lower portion 51', on the upper portion 76', the northern side is 187', the southern side is 219' and the length of the house is mentioned as 65' and the chillies portion is 75' and the breadth of the two is 31.
29.In the present case before us, it is the evidence of D.W.1 (Assistant Engineer, P.W.D.) that the Appellants/Plaintiffs' father (original Plaintiff) is in enjoyment of 22 = cents in the suit property. However, a perusal of the Plaint schedule property in O.S.No.295/1985 (filed by the Appellants/Plaintiffs' father figured as Plaintiff), the suit survey number is mentioned as 124/12 out of 0.41.5 Ares, 0.14.0 Ares viz., 35 cents. But in Ex.A.29-Notice dated 22.02.1985 addressed by the Junior Engineer of the P.W.D., Vepur to the Appellants/Plaintiffs' father (since deceased), it is mentioned that the P.W.D. Department's land is mentioned as R.S.No.124/13. But, in Ex.A.27-Notice dated 11.04.1982 issued by the Tahsildar addressed to the Appellants/ Plaintiffs' father refers to 124/12 of Vepur Village, mentioning the land as 'Pattai' measuring an extent of 0.41.5. The Survey No.124/12 mentioned in the Plaint schedule property and the total extent 0.41.5 are tallying with the survey number and the extent mentioned in Ex.A.27 dated 11.04.1982. Even though, the Plaint schedule property refers to an extent of 0.35 cents in R.S.No.124/12 from and out of 0.41.05 Ares, on the side of the Respondents/ Defendants, D.W.1, in his evidence, has categorically stated before the trial Court that the Appellants/Plaintiffs father has been in enjoyment of 22 = cents in the suit property.
30.Before the trial Court, no endeavour has been made on behalf of the Appellants/Plaintiffs' father (Plaintiff in O.S.No.295/1985) to seek for appointment of a land Surveyor/Commissioner to find out what is the extent of land that has been in enjoyment of the Appellants/Plaintiffs' father. It is not out of place for this Court to point out at this stage that the trial Court has clearly in its Judgment has opined that whether the Appellants/Plaintiffs' father is in enjoyment of an extent of measuring 22 = cents or 33 cents, be that as it may, one thing is clear and certain viz., that the Appellants/Plaintiffs' father has put up hut in the suit property and has been residing by planting young coconut trees, gardening plants and raising punja plants. Also, he has been in enjoyment of the suit property after the year 1972. Therefore, in law, the Appellants/Plaintiffs' father and after his death, the Appellants are liable to be evicted from the suit property by the Respondents/Defendants only after following the due procedure contemplated in law, as opined by this Court. Till such time, they are entitled to get the relief of permanent injunction, in the considered opinion of this Court.
31.It is to be noted that as per Section 2 of the Tamil Nadu Land Encroachment Act, 1945 is only to declare that certain properties not belonging to provide proprietor, belong to the Government. The initial proof lies on a party who is to establish title to show that he comes within the saving clause to Section 2(1) of the Act.
32.Ex.A.27-Notice dated 11.04.1982 has been issued in accordance with Section 5 of the Tamil Nadu Land Encroachment Act, 1905 by the Tahsildar addressed to the Appellants/Plaintiffs. The Appellants/Plaintiffs' father during his lifetime when he has filed the suit in O.S.No.295/1985 has not challenged the Ex.A.27-Notice dated 11.04.1982 issued by the Tahsildar. However, he has referred to the Ex.A.29-Letter of the Junior Engineer, P.W.D. Vepur dated 20.02.1985 as a threatening letter in paragraph 9 of the Plaint in the suit (O.S.No.295/1985 addressed to the Appellants/Plaintiffs' father. Even in the cause of action paragraph 11 of the Plaint, he has referred to Ex.A.29-Letter dated 20.02.1985 of the Junior Engineer, P.W.D., Vepur, which speaks of removal of encroachment in the land belonging to the P.W.D. Department in R.S.No.124/13. As a matter of fact, the Notice under Section 7 of the Tamil Nadu Land Encroachment Act, 1905 or an order for eviction can be passed as per Section 6 of the Act only by the Collector or his subordinate viz., by Tahsildar or Deputy Tahsildar or any authorised/specified Officer in that behalf. In the instant case, the communication of the Junior Engineer, P.W.D., Vepur Ex.A.29 is not from an authorised person as per Tamil Nadu Land Encroachment Act, and as such, Ex.A.29 is invalid in law. In any event, the Appellants/Plaintiffs' father (original Plaintiff) has only prayed for the relief of Declaration of his title in the suit property and for the relief of consequent permanent injunction.
33.As regards the relief of declaration of title of the Appellants/ Plaintiffs father in the suit property, as sought for in the Plaint, it is to be pointed out that in Ex.A.27-Notice dated 11.04.1982 the suit property is mentioned as 124/12 classified as 'Pattai' measuring 0.41.05 Ares. But in Ex.A.29, as stated already, the P.W.D. Department's own land is mentioned as R.S.No.124/13 without specifying the measurement/extent. Indeed, the suit property is 35 cents or 0.14.0 Ares in R.S.No.124/12 out of 0.41.05 Ares. When the suit property is a 'Pattai Poramboke' belonging to the Government and the fact that the Appellants/Plaintiffs' father has paid kists receipts, house tax receipts, electricity charges etc. and when 'B' memos have been issued to the Appellants/Plaintiffs' father by the Government, then, it is futile either for the Appellants/Plaintiffs' father or for the Appellants/Plaintiffs to contend that they are entitled to get the relief of adverse possession in respect of the suit property against the Government or the officers of the Government, as opined by this Court. Also, with the documents marked on the side of the Appellants/ Plaintiffs in the suit which begins only from Ex.A.1 dated 08.04.1976 (fasli 1385) till fasli 1401 etc., it cannot be safely concluded that either the Appellants/Plaintiffs' father or the Appellants/ Plaintiffs have been in enjoyment of the suit property for well over 30 years in an open, hostile, uninterrupted manner without any hindrance and viewed in that perspective, this Court holds that the Appellants/Plaintiffs are not entitled to get the relief of adverse possession. Since as per Ex.A.27 dated 1.04.1982, the suit property belongs to the Government as 'Pattai Poramboke', the Appellants/ Plaintiffs are not entitled to seek the relief of declaration of title in respect of the suit property, in the considered opinion of this Court. Accordingly, it is held by this Court that the trial Court and the First Appellate Court have rightly negatived the relief of declaration of title of Appellants/Plaintiffs even in respect of atleast 22 = cents from and out of the suit property etc.; that the First Appellate Court is perfectly justified in granting a decree for permanent injunction; and that both the Courts have rightly held that the Appellants/Plaintiffs are not entitled to the relief of adverse possession and accordingly, the Substantial Questions of Law 1 to 4 are so answered by this Court against the Appellants/Plaintiffs.
34.In regard to Additional Documents, the Petitioners/Appellants filed C.M.P.No.1156/2010 (under Or.47 R.27 C.P.C.) to receive 1)Patta in the name Jayaraman 2)House Tax Receipt in the name of Jayaraman 3)Electricity Service Connection in the name of Jayaraman 4)Patta in the name of Desingh 5)House Tax receipt in the name of Desingh 6)Electricity Service Connection in the name of Desingh 7)Patta in the name of Muthulakshmi 8)Patta in the name of Asokan 9)House Tax Receipt in the name of Asokan 10) E.B. Service connection in the name of Asokan 11)Patta in the name of Rangan 12)House Tax Receipt in the name of Rangan 13)E.B. Service Connection in the name of Rangan, it is to be pointed out that admittedly the Patta E.B. Service connections, property tax have been obtained pending disposal of the Second Appeal and the Petitioners/ Appellants have not adduced satisfactory explanation before this Court as to why they have not obtained the additional documents diligently earlier and hence, this Court rejects the same, bearing in mind of the decision of the Hon'ble Supreme Court in Roop Chand V. Gopi Chand Thilia, AIR 1989 SC 1416 at page 1420 wherein it is held that 'When there is no satisfactory explanation for not producing the additional documents either in the Courts below or even in the High Court they cannot be received in the Supreme Court.'
35.In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. Consequently, the Judgment and Decree passed by the First Appellate Court viz., in A.S.No123 of 1992 dated 25.01.1996 in granting the relief of permanent injunction is confirmed by this Court for the reasons assigned in this Appeal. In other respects, the relief of declaration of title of the Appellants/ Plaintiffs in respect of the suit property and the relief of adverse possession prayed for by them and negatived by the trial Court and the First Appellate Court are hereby affirmed by this Court in this Appeal. It is made clear that the dismissal of the Second Appeal will not preclude the Respondents/Defendants initiating appropriate action against the Appellants/Plaintiffs in accordance with the due process of law, by issuing proper notice and also specifying the correct survey number and the extent thereof [free from any ambiguity], by adhering to the principles of natural justice. Liberty is granted to the Appellants /Plaintiffs to make use of the 13 Documents mentioned in C.M.P.No.1156 of 2010 at a time when the Respondents/Defendants initiate appropriate action in evicting the Appellants/Plaintiffs from the suit property. Consequently, C.M.P.No.5843 of 1997 is closed.