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Judgment
K. Gnanaprakasam, J.—The respondents/plaintiffs'' are the villagers, who have filed the suit in a representative capacity for declaration that
they are enjoying the Eri and grazing ground in suit Survey Number free from obstruction and for permanent injunction restraining the
defendant/appellant from obstructing the battai and from raising cultivation in any portion of the suit Survey number.
The respondents/plaintiffs'' case is that the suit land is a Peria Eri and Chitheri of Kachadimangalam Village in S. No. 59. The major portion of
the said land is water spread and substantial portion in that survey number is used as a grazing land for the cattle owned by the pattadars of the
said village. There is a battai leading from the gramanatham to the south of the water spread in S. No. 59 to the burial ground in S. No. 59 and
there is a customary way for the villagers to the burial ground and it has been in use from time immemorial. They are in possession and enjoyment
of the grazing ground and the battai, and the defendant/appellant has been attempting to obstruct the battai and raise cultivation in the suit land.
Hence the suit.
The defendant/appellant in his written statement has admitted that he has encroached upon an extent of 1 acre of grazing land poramboke
bearing S. No. 59/2 in Kachadimangalam village, which is a grazing ground. According to him, he had reclaimed the suit land and has been
cultivating. It is also stated that the State of Tamil Nadu has no objection for its encroachment in S. No. 59/2 as he is a small farmer and poor
agriculturist. He also stated that the villagers have no objection for his encroachment. It is also stated that there is no battai through the said land
leading from the village to the burial ground. The defendant also submitted that if there is no water in the lake, the villagers used to carry the dead
body by crossing over the lake as it is a short cut route and there is no regular pathway. On the other hand, the defendant has formed a pathway
on his encroached portion for taking his cart for agricultural purposes. It is stated that the 2nd plaintiff has also encroached an extent of 1 acre in
the suit grazing ground poramboke and therefore, he cannot make any complaint against the defendant. As the defendant is in possession of the
government land, the suit is bad for non-joinder of The State of Tamil Nadu, as necessary party.
On the above said pleadings, the trial Court framed necessary issues and the 1st plaintiff was examined as P.W.1 and one more witness was
examined as P.W.2 and marked Exs.A.1 and A.2. The defendant examined himself as D.W.1 and examined one more witness and marked
Exs.B.1 to Ex.B.17. The Advocate Commissioner Report and Plan were marked as Exs.C.1 and C.2.
The trial Court, after taking into consideration of all the aspects, did not accept the case of the plaintiffs and dismissed the suit. On appeal in
A.S. No. 124/90 before the District Court, chinglepet, the lower Appellate Court allowed the appeal on the ground that the plaintiffs and
defendants had admitted that the suit land is a grazing land. Aggrieved by the same, the defendant has preferred the appeal.
The plaintiffs claimed relief in respect of the poramboke land in S. No. 59/2,118 acres and 41 cents situate in Kachadimangalam Village of
Chinglepet Taluk. The plaintiffs'' claim is that the suit land is a grazing land and also there runs a pathway to reach the burial ground and the same is
being obstructed by the defendant/appellant by the defendant as he was making attempts to cultivate in a portion of the suit land. The plaintiffs have
filed Ex.A.1 which is the village plan showing the suit village and also S. No. 59 which is a Peria Eri. Ex.A.2 is the Adangal for Fasli 1393 in
respect of S. No. 59/2, wherein the extent of the land in that survey number is shown as 118.41 acres as Periya Eri and Chitheri. The defendant
also filed Exs.B.1 to B.13 receipts for the payment of kist and Ex.B.14 is the Notice issued u/s 6 of The Tamil Nadu Land Encroachment Act (Act
III of 1905) in respect of the land in S. No. 249 which is described as ""ERI ULVAI"". Exs.B.15 and B.16 are the notices issued under Sec.5 of
The Land Encroachment Act (Act III of 1905) in respect of the land encroached upon by the defendants in S. No. 59/2 Eri Ulavai in
Kachadimangalam village. Ex.B.17 dated 22.7.89 is a copy of the resolution passed by Village Pachayatdar of Thenmelpakkam in respect of lands
measuring 2 acres in S. No. 59/2 in Kachadimangalam village giving ""no objection"" for the assignment of the said land to the defendant.
On going through the documents filed by both the plaintiffs and the defendant, both the parties are under a mistaken impression that S. No. 59/2
is a grazing land and on that score the plaintiffs are trying to project a case that the land cannot be put into a different use and therefore, the
defendant cannot cultivate the said land. The defendant also misguided himself by admitting that the land in occupation is a grazing land
poramboke. But, however, he would contend that, he reclaimed the said land at a huge cost and has been cultivating the same and therefore, he is
entitled to continue his possession.
As it could be seen from Exs.A.1 and A.2, the land in S. No. 59 is Peria Eri (big lake) and it is not grazing land. As such, the Government is the
paramount owner in respect of the suit land and if there is any encroachment, it is for the Government to take necessary action under the Tamil
Nadu Land Encroachment Act (Act III of 1905). But, the plaintiffs are under the mistaken impression that the land is grazing land and therefore,
they have instituted the suit, that it should not be put into different use by cultivation by the defendant. The pathway claimed by the plaintiffs have
not been proved even according to the report filed by the Advocate Commissioner and only in the said circumstances the trial Court did not accept
the case and dismissed the suit.
The lower Appellate Court also misdirected itself by holding that the suit land is a grazing land thereby coming to the conclusion that it is a
communal land and it cannot be put into a different use as it has been held in Subbiah Pillai vs Veerabathram reported in 1977 TLNJ 333 . But
when I am able to find out that the suit land is not a communal land and it is a Peria Eri, the lake always vests with the Government and the
Government, being the paramount owner is entitled to curb encroachment. If the plaintiffs are aggrieved, they are entitled to move the authorities
concerned for removal of encroachment.
With regard to the facts and circumstances of the cases, the plaintiffs cannot maintain the suit as such and that too in the absence of the State
Government. In the said view of the matter, the Second Appeal is allowed. The judgment and decree of the lower Appellate Court, is set aside
and the judgment and decree of the trial court is restored for different reasons. No costs.