IN THE COURT OF THE DISTRICT MUNSIF AT CHENGALPATTU.
O.S.No.42 OF 2007.
Mr.Ellappan Naidu (died) and others. ….. Plaintiffs.
-Vs-
Smt.Kumudha Sugumaran (Died) and others
….. Defendants.
WRITTEN ARGUMENTS FILED BY AND ON BEHALF OF THE
DEFENDANT.
The Case of the Plaintiffs in brief as follows: The Plaintiffs
submit that the suit ‘A’ schedule property i.e., Plot No.73B comprised
in T.S.No.674 and 680, was originally assigned to one Late. Chandra
W/o. Ellappan Naidu, the mother of the present plaintiffs, by
proceedings of the R.D.O. under R.C.No.30214/66 dated 01.05.67.
The Plot No. is 73B. Until her death the said Chandra enjoyed the
property assigned to her.
There is a constructed house in the 'A' Schedule property
wherein the plaintiffs are residing for more than four decades. The
plaintiffs submit that the plaintiffs are using the 'B' Schedule
mentioned property as the pathway for ingress and egress of the
plaintiff's house. It is a common pathway to be used by plaintiffs and
defendant. The 'B' Schedule property was left as common path way as
per his order passed in Na.Ka.No.6528/91/L dated 30.06.1991 by the
then Tahsildar, Chengalpattu.
While being so, the defendant herein started to expand his house
on both sides. The plaintiffs' bonafidely believed that the defendant
will not made any obstructions in the 'B' schedule pathway. But after
due course it was noticed that the defendant had put up doors,
windows sunshades in the common pathway. Apart from that he
encroached into the common pathway also. Moreover, he has started
to arrange the drainage channel, sullage water channel in the common
pathway. By that the defendant is making all sorts of obstructions in
the common pathway. As such, the plaintiffs could not have free
ingress and egress. The defendant is denying that the right of the
plaintiffs in the 'B' Schedule property.
The Plaintiffs therefore prays for a decree and judgment in
their favour as against the defendant.
(a) To declare the 'B' Schedule property as common path way to
plaintiffs and defendant;
(b) For permanent injunction as against the defendant her men,
agents, nominees restraining from making obstructions or
objection in the 'B' Schedule as against the plaintiffs;
(c) For mandatory injunction directing the defendant to remove
the encroachments made in the 'B' Schedule property such
as construct wall, door way, window, sunshades, drainage
water pile and channel, sullage water pipes and channel and
other encroachment in 'B' Schedule.
The case of the defendant in brief as follows: It is no doubt
that suit 'A” Schedule property was temporarily assigned to
Chandrabai Ammal wife of the 1st Plaintiff by proceedings of RDO,
Chengalpattu. As such, on the same day, this defendant was also got
temporary assignment in respect of her property comprised in Plot
No.73D. From the date of assignment, the plaintiffs and the Defendant
are enjoying their respective portions by putting up constructions till
1991.
The Plaintiffs are using their ingress and egress through western
side abutting the road and channel and turned to East to reach
Madurai Koil Street. This is the plaintiffs’ usual mode of ingress and
egress until 1991.
This being case, people of the locality started to encroach upon
the western side of the respective property, which was shown as Road.
The 1st Plaintiff was working as an Office Assistant in Taluk Office,
Chengalpattu. Without any application by the 1st Plaintiff the then
Tahsildar has passed an illegal order without considering the objection
given by the defendant dated 11.05.1991 and 21.06.1991. Further, the
then Tahsildar has passed the impugned order without examining the
parties and without site inspection. Hence, the same is vitiated.
The allegations that "B" schedule is a common path way is
specifically denied. The order is an illegal order passed by the then
Tahsildar who has exceeded his jurisdiction, and he had no powers to
pass such an impugned order. Hence the order is non-est in the eye of
law. Even assuming for a moment that "B" schedule is a pathway,
which is not admitted by this defendant, the 1 Plaintiff is entitled to
use it as an ingress and egress only. Even in the order it is stated that
both the 1st Plaintiff and this defendant are entitled to use the
pathway and this path way is to be used exclusively by the 1st Plaintiff
and the defendant. Hence, in the plaint, the prayer that "A" asking for
common pathway is incorrect.
The allegations that Plaintiffs bonafidely believe that the
defendant will not make any construction in “B” schedule is hereby
specifically denied. In fact, there is no construction as found by the
Advocate Commissioner in “B” Schedule property. Though as per the
impugned order passed by the Tahsildar East to West measurement is
4 feet, but, on ground East to West the measurement is only 3 feet for
the past several years.
In fact this suit is not based on easementary right. As already
submitted, in "B" Schedule and the same has also been found by the
Advocate-Commissioner in the report. Hence the permanent injection
pleaded by the defendant is not available to the plaintiff. This
defendant submits that she has not made any obstructions in "B"
schedule property. The allegation is only a speculative one.
Therefore, for the reasons stated above, the defendant prays that
this Hon’ble Court may kindly be pleased to dismiss the suit and pass
such or other orders which deem fit and proper under the facts and
circumstances of the case and thus, render justice.
In support of the claim of the plaintiffs, PW1 to PW3 were
examined and Exhibits A1 to A9 were marked. On the side of the
defendant, DW1 was examined and Exhibits B1 and B2 were marked.
Considering both side pleadings, and considering the plaint,
written statement and other material records available, the Hon’ble
Court has framed the following issues:
1. Whether the plaintiff is entitled for the relief of declaration as
prayed for?
2. Whether the plaintiff is entitled for the relief of permanent
injunction as prayed for?
3. Whether the plaintiff is entitled for the relief of mandatory
injunction as prayed for?
Issue No.1:
In short, it is the specific case of the plaintiffs is that the mother
of the present plaintiffs one Mrs.Chandrabhai was assigned with suit
‘A’ schedule property in the year 1967 and ever-since, the said
Chandrabhai and his family members were in continuous possession
and enjoyment of the suit ‘A’ schedule property. Further, it is
contention of the plaintiffs that suit ‘B’ schedule property is a common
pathway and is the only ingress and egress available to the plaintiffs to
reach their property i.e., ‘A’ schedule property. While being so, the
defendants who are the adjacent owners, objected and obstructed the
usage of the ‘B’ schedule property by the plaintiffs. Hence, the suit.
On the other hand, it is the specific contentions of defendants
that the suit ‘B’ schedule property is not the only ingress and egress to
the plaintiffs to reach their property and that there exists a road
abutting the western side of the plaintiffs’ property. The same was
encroached by the local people including the plaintiffs and thus, the
road could not be used. Without taking any steps to remove the
encroachment, the plaintiffs are disturbing the defendants lawful
possession of their property. Therefore, the defendants pray that this
Hon’ble Court may kindly be pleased to dismiss the suit.
Now, the point for consideration that whether the plaintiff is
entitled for the relief of declaration, declaring that the suit ‘B’ schedule
property is a common pathway to plaintiffs and defendants?
It is no doubt that the suit ‘A’ schedule property was assigned to
the plaintiffs’ mother Chandrabhai. Ex.A-1 is the assignment order
issued by the RDO, Chengalpattu which is the base document for
possession of the suit ‘A’ schedule property by the plaintiffs. On
careful perusal of the Ex.A1, it is clear that nowhere, it is mentioned in
the Ex.A1 that the suit ‘B’ schedule is the pathway for ingress and
egress of suit ‘A’ schedule property. Further, it is not the case of the
plaintiffs that while assignment was made by RDO, Chengalpattu suit
‘A’ schedule property did not contain any road access and hence the
plaintiffs were using the suit ‘B’ schedule property.
Further, on careful perusal of the Ex.A1, it is clear that while
assigning the suit ‘A’ schedule property a proper access was given to
the plaintiff viz. on the western side of the suit ‘A’ schedule property. A
clear mention of Road on the Western Side is denoted in Ex.A1.
Further, Ex.A1 does not speak about the existence of suit ‘B’ schedule
property.
In this case, the plaintiffs completely relying upon Ex.A2 –
Proceedings of Thasildahr, Chengalapttu in Na.Ka.No.6528/91/L
dated 30.06.1991, which allegedly speaks about the suit ‘B’ schedule
property. Ex.A2 speaks about the ‘B’ schedule property as follows:
மேலும் மனைகள் 57 முதல் 80 வரை வழிவிடப்பட்டுள்ளது. லே அவுட்டில்
உள்ளது போல பாதை தற்சமயம் இல்லை. இந்த வழியில் பலவித ஆக்கிரமணங்கள்
வந்துள்ளது. அவைகளில் பெரிய கட்டிடங்கள் வந்துள்ளது.
Therefore, from a careful perusal of the Ex.A2, it is clear that
while assigning Plot No.73B to the plaintiffs’ mother Chandrabhai, a
separate road access was granted in the layout. However, the same
was alleged to be encroached by local people and constructions were
made over the road. Whereas, without taking any steps to clear the
encroachment, the then Thasildhar, Chengalpattu has passed a illegal
order and the said order is vitiated and the same cannot be treated
and considered as legal and valid in the eye of law.
It is the duty of the officer once detected the encroachment in
the government land, road, path they should take steps for eviction
process as per The Tamil Nadu Land Encroachment Act. 1905. The
Thasildar is not acted as a government servant. Instead of eviction the
Thasildar had encouraged the encroachment is found in government
land, road, and the path.
Ex.A3 is the Sketch issued by the Thasildhar. On careful perusal
of the Ex.A3, it is clear that there is an existence of Road and Channel
abutting the Western side of the suit ‘A’ schedule property and thus, it
is clear that suit ‘B’ schedule property is not the only ingress and
egress to the plaintiffs to reach their property.
On careful perusal of the Ex.A4 to Ex.A7, it is clear that those
documents does not speak anything about the existence of the ‘B’
schedule property as common pathway. Further, the Ex.A4 is
pertaining to Plot No.152 and pertains to the suit schedule property
and thus, the same are not going to help the plaintiffs in anyway to
prove their case and the same can be conveniently brushed aside by
this Hon’ble Court.
In this case, Ex.A-8 to Ex.A9 are marked through Pw2. The plot
No. 73c is belongs to Pw2 and during her Cross examination, she
has admitted as follows:
“…th.rh.M>8y; jrujDf;F xJf;fg;gl;l gpshl; vz; 73rp vd;why; rupjhd;. Nkw;gb
gl;lh nfhLj;j NjjpapypUe;J ,Jehs;tiu gpshl; vz; khwtpy;iy vd;why; mij gw;wp
vdf;F njupahJ. th.rh>M.8y; jrujDf;F vd;d ePs mfyk; xJf;fg;gl;lNjh me;j msitjhd;
fpiuakhf thq;fpNdd;. jrujd; vdf;F fk;gk; el;L fhl;ba ,lj;ij jhd; ehd; gad;gLj;jp
tUfpNwd…”
“…th.rh>M>9y; nrhj;J tptuj;jpy; gpshl; vz; 158 vd;W Fwpg;gplg;gl;Ls;sJ
vd;why; rupjhd;. jrujd; vdf;F nfhLj;j 73rp gpshl;Lf;Fk; th.rh>M9y; fz;l gpshl;
vz; 158f;Fk; rk;ke;jkpy;iy vd;why; mij gw;wp vdf;F njupahJ. jrujd; vdf;F
nfhLj;j gl;lhitjhd; ehd; gj;jpug;gjpT nra;Njd; vdf;F NtW vJTk; njupahJ.
th.rh.M>9y; nrhj;J tptuj;jpy; nrhj;jpd; msthf fpof;F Nkw;fhf 60f;F 66
rhjpabAk; tlf;F njw;fhf 73f;F 35 rhjpabAk; Mf nkhj;jk; 2227 vd;W
Fwpg;gplg;gl;Ls;sJ vd;why; rupjhd;. Nkw;gb gl;lhtpy; cs;s msTk; vdf;F fpiuak;
nra;J nfhLj;j gj;jpuj;jpy; cs;s msTk; khwpAs;sJ vd;gij jw;NghJ jhd;
njupe;Jf;nfhz;Nld;. …”
On careful perusal of above evidence of PW2, she had clearly
admitted that the plot no.73C belongs to her, but the Ex.A-8 and
Ex.A9 not matched to the plot No.73C. Hence the above exhibits are of
no use to plaintiffs’ case. Hence, the evidence of PW2 is not trust
worthy and not considerable one.
Further, the defendants have marked Ex.B1 – Sketch of the
Locality through PW2. It clearly shows the existence of the road to
reach the ‘A’ schedule property (Polt No.73B) on its Western side.
During the course of cross examination, PW2 admitted as follows “…
vd;dplk; fhl;lg;gLk; tiuglk; mDke;jG+j;Njupapd; tiuglk; vd;why;
rupjhd;. ,ijNghyNt ehDk; xd;iw thq;fp itj;Js;Nsd;. ,J gp.rh.M> 1 MFk;…”
Further, during the course of cross examination of PW3, he has
admitted that he was residing in some other place i.e., Timmavaram
Pazhathottam. But in his chief examination, he stated that his
address as ‘Maduraiveeran koil street, Chengalpattu Town’. No
documents marked through him to prove the address. Hence, the
evidence of PW3 is also not trust worthy and not considerable one.
Therefore, on careful cumulative consideration of the above
evidences and documents, it is clear that the plaintiffs’ have failed to
prove that the suit ‘B’ schedule property is the only ingress and egress
to the plaintiffs to reach their property. Hence, the above Issue No.1
cannot be decided in favor of the plaintiffs and thus, the plaintiffs are
not entitled to the relief of declaration as prayed for.
Issue No.2 and 3:
Now, the point for consideration is that whether the plaintiffs are
entitled for the relief of permanent injunction and mandatory
injunction as prayed for?
In this case, the Advocate Commissioner has filed his detailed
report. On careful perusal of the Commissioner Report, it is clear that
there is no indication of objection or obstruction made by the
defendants in the suit ‘B’ schedule property. Hence it can be lawfully
presumed that the plaintiffs or their predecessors in title, never made
any objection or obstruction in the suit ‘B’ schedule property. When,
there is no objection or obstruction by the defendants, no just and
necessary situation arose to grant injunctions restraining the
defendants. Accordingly, these issues are also cannot be decided in
favor of the plaintiffs. Thus, the plaintiffs are not entitled for the relief
of either permanent injunction or mandatory injunction as prayed for.
Therefore, for the reasons stated above, the suit is liable to be
dismissed with exemplary cost of the defendants.
Dated at Chengalpattu on this the ____ day of January 2023.
COUNSEL FOR THE DEFENDNATS
The Tamil Nadu Land Encroachment Act. 1905
Section 2. Right of property in public roads, etc., waters and
lands. –
(1) All public roads, streets, lanes and paths, the bridges, ditches, dikes
and fences, on or beside the same, the bed of the sea and of harbours
and creeks below high water mark, and of rivers, streams, nalas, lakes
and tanks, and [all back waters, canals and watercourses] and all
standing and flowing water, and all lands, wherever situated, save in
so far as the same are the property-
(2) All public roads and streets vested in any local authority shall, for
the purposes of this Act, be deemed to be [the property of Government].
Section 6. Liability of person unauthorisedly occupying land to
summary eviction, forfeiture of crops, etc. –
(1) Any person unauthorized occupying any land for which he is liable
to pay assessment under section 3 [or section 3- A] may be summarily
evicted by the Collector, [or subject to his control, by the Tahsildar or
Deputy Tahsildar or any other officer authorized by the State
Government in this behalf (hereinafter referred to as the 'authorized
officer')] and any crop or other product raised on the land shall be
liable to forfeiture and any building or other construction erected or
anything deposited thereon shall also, if not removed by him after
such written notice as the Collector [or subject to his control, the
Tahsildar or Deputy Tahsildar or authorized officer] may deem
reasonable, be liable to forfeiture. Forfeitures under this section shall
be adjudged by the Collector [or subject to his control by the Tahsildar
or Deputy Tahsildar or authorized officer] and any property so forfeited
shall be disposed of as the Collector [or subject to his control, the
Tahsildar or Deputy Tahsildar or authorized officer] may direct.
(2) Mode of eviction. - An eviction under this section shall be made in
the following manner, namely: - By serving a notice in the manner
provided in section 7 on the person reputed to be in occupation or his
agent requiring him within such time as the Collector [or the Tahsildar
or Deputy Tahsildar or the authorized officer] may deem reasonable
after receipt of the said notice to vacate the land, and if such notice is
not obeyed, by removing or deputing a subordinate to remove any
person who may refuse to vacate the same, and if the officer removing
any such person shall be resisted or obstructed by any person, the
Collector [or the Tahsildar or Deputy Tahsildar or authorized officer]
shall hold a summary inquiry into the facts of the case, and if satisfied
that the resistance or obstruction was without any just cause and that
such resistance or obstruction still continues, may issue a warrant for
the arrest of the said person and on his appearance commit him to
close custody in the office of the Collector [or of any Tahsildar or
Deputy Tahsildar or authorized officer] for such period not exceeding
30 days as may be necessary to prevent the continuance of such
obstruction or resistance or may send him with a warrant in the form
of the schedule for imprisonment in the civil jail of the district for the
like period:
Provided that no person so committed or imprisoned under this
section shall be liable to be prosecuted under sections 183,186 or
188 of the Indian Penal Code, 1860 (Central Act XLV of 1860), in
respect of the same facts.
[(3) Any authorized officer taking proceedings under this section
shall make a report in writing containing such particulars as may
be specified in rules or orders made under section 8 to the
Collector, Tahsildar or Deputy Tahsildar having jurisdiction.]
