N.M. Ganesan vs The Commissioner

B. Rajendran, J.—The unsuccessful plaintiff before the courts below is the appellant in this second appeal. The Plaintiff/appellant has filed the suit in O.S. No. 134 of 2008 before the trial court praying for a bare injunction to restrain the respondent municipality and their men from evicting or removing the constructions and tiled shed or from interfering or obstructing or in any manner disturbing with his peaceful possession and enjoyment of the suit property. Both the courts below concurrently rejected the plea of the plaintiff/appellant, which resulted in the present second appeal.

In the plaint, it was contended by the plaintiff/appellant that his father was in peaceful possession and enjoyment of the suit property for more than 47 years and after his demise he continued the possession and enjoyment of the suit property. Even during the life time of Plaintiff''s father, "B" memo was issued in the name of his father and he was paying the taxes and charges to the authorities concerned. Earlier, a notice was issued to the appellant''s father under Section 7 of the Land Encroachment Act to evict him, therefore, a suit in O.S. No. 94 of 1997 was filed by the appellant''s father in which interim injunction was granted. During the pendency of the suit, as the defendant/ respondent or his men did not cause any disturbance, appellant''s father filed I.A. No. 125 of 2006 to withdraw the suit with liberty to file a suit, if necessary. Accordingly, I.A. No. 125 of 2006 was allowed on 22.03.2006 permitting the appellant''s father to withdraw the suit. Thereafter, the appellant''s father died and the appellant has submitted an application dated 08.04.2008 to transfer the property tax in respect of the suit property in his name. During the pendency of such application, the respondent has issued a notice dated 16.04.2008 calling upon the plaintiff/appellant to vacate the suit property on the ground that he is an unauthorised occupier of the suit property. It is the contention of the appellant that the respondent corporation has no right to evict him and if at all, it is the Government, which has got such right to remove him from the land in question by following the due process of law. Therefore, according to the appellant, the notice issued by the respondent demanding the appellant to vacate and handover the vacant possession of the suit property is without authority of law and invalid. In those circumstances, the plaintiff/appellant has filed the present suit in O.S. No. 134 of 2008.

The suit was resisted by the respondent by filing a written statement contending that the suit property is classified as "Nilaviyal Chandu" in the revenue records and the Government is the paramount title holder of such land. The suit property is under the administrative control and maintenance of the respondent municipality and the respondent has every right to demand for eviction of the plaintiff/appellant from such property so as to restore the property for public use as "Nilaviyal Chandu". The issuance of "B" Memo in favour of the father of the plaintiff/appellant will not confer any title to him over the suit property. As the Plaintiff/appellant is an unauthorised occupier of the property, the defendant/respondent has every right to demand the plaintiff/appellant to handover the vacant possession of the suit property. Therefore, following the due process of law, a notice dated 16.04.2008 was issued to the appellant calling upon him to vacate and handover the vacant possession of the suit property to the respondent municipality, which cannot be termed as perverse or arbitrary. Therefore, the respondent prayed for dismissal of the suit.

Before the trial court, the appellant/plaintiff examined himself as PW1, one other witness as PW2 and Exs. A1 to A14 have been marked. On behalf of the defendant/ respondent, Mr. S.K. Srinivasan, Town Sub Inspector and Mr. Lakshmanan, Taluk Sub Inspector have been examined as DWs 1 and 2 and Exs. B1 to B4 have been marked. On appreciation of the oral and documentary evidence, the trial court held that the suit property is vested with the management of the defendant/respondent herein and any property of the government will be the property of the municipality for the purpose of maintenance and administrative control. Therefore, it was held that the defendant/ respondent is having every right to seek for eviction of the plaintiff and the relief of bare injunction cannot be granted. Such a finding of the trial court was also affirmed by the lower appellate Court on appeal by the plaintiff/appellant.

The learned counsel appearing for the appellant would contend that the appellant has produced kandhaya receipt or "B" Memo issued by the respondent in favour of his father in respect of the suit property and therefore, it cannot be said that the occupation of the plaintiff over the suit property is unauthorised. The courts below, on appreciation of the documentary evidence ought to have protected the possession of the appellant instead of rejecting his claim. The courts below have not given specific finding as to how the property belonged to the Government could be the property of the defendant/respondent herein. Therefore, the learned counsel for the appellant prayed for setting aside the decree and judgment passed by the courts below.

On the other hand, the learned Senior counsel appearing for the defendant/ respondent would contend that the respondent municipality is the custodian of the property in question. It is not disputed by the appellant that the land in question is classified in the revenue records as "Nilaviyal Chandu" and it meant for general public for their use as a public street. The respondent municipality is one of the wings of the Government and is empowered to protect the public lands from being encroached. In order to restore the possession of such public land, the respondent followed due process of law to evict the appellant and it cannot be called in question by him. Above all, the learned senior counsel for the respondent municipality brought to the notice of this Court that the building put up by the appellant has already been demolished by the respondent municipality and the appellant is also aware of the same. Therefore, as on date, nothing survives in this second appeal for adjudication and he prayed for dismissal of the appeal.

I heard the learned counsel for the appellant and the learned senior counsel appearing for the respondent municipality. At the time of admission of this second appeal, the following substantial questions of law have been framed for consideration.

(i) Whether the courts below are right in dismissing the suit filed by the plaintiff, when the defendant itself in its written statement in the earlier suit in O.S. No. 94 of 1997, on the file of the District Munsif Court, Sathyamangalam, marked as Ex.A2, admitted that the suit property belonged to the Government of Tamil Nadu and the plaintiff''s father is in possession and enjoyment of the suit property?

(ii) Whether the Courts below are right in dismissing the suit filed by the plaintiff, when admittedly the plaintiff''s father and the plaintiff are in possession and enjoyment of the suit property and thereby perfected title to the suit property by way of adverse possession?

(iii) Whether the Courts below are right in dismissing the suit, when the defendant municipality had issued eviction notice only against the plaintiff and had not taken any action to remove the encroachment made by others in the very same Survey Field and thereby discriminated the plaintiff alone?

(iv) Whether the Courts below are right in dismissing the suit, when the defendant municipality is the competent authority to issue an order of eviction as the Government of Tamil Nadu alone is the competent authority?

At the outset, let me deal with question of law Nos. 1 and 4. Both these questions of law are to the effect whether the Government of Tamil Nadu alone is the competent authority to deal with the encroachments and the consequential eviction but the respondent municipality has no right to do so. Admittedly, the land in question is situate within the jurisdiction of the respondent municipality. The land is classified as "Nilaviyal Chandu" in the revenue records. It is not a private land assigned in favour of any private individual. Therefore, automatically, the custody of the property vests with the respondent municipality. The respondent is one of the wings of the Government and or an agent which acts for and on behalf of the Government of Tamil Nadu. For the purpose of administration and maintenance of the suit lands, it is vested with the respondent municipality and the respondent municipality has got every right to deal with the same for and on behalf of the Government of Tamil Nadu. Therefore, it cannot be said that the respondent municipality has no right to deal with the land in question. Consequently, the proceedings initiated by the respondent municipality to evict the appellant from the suit land cannot be said to be without any authority of law. Accordingly, the substantial question of law Nos. 1 and 4 are answered against the appellant.

Next it is to be seen whether the possession of the appellant was adverse to the respondent. It is well settled that possession of an individual cannot be construed to be adverse to the title of the government or instrumentalities of the government. The land in question was under the custody, administrative control and maintenance by the respondent municipality and the question of the appellant''s possession being adverse to the interest of the respondent municipality does not arise in this case. The suit was filed by the appellant only for a bare injunction and not for declaration of title on the ground of adverse possession. The appellant is an encroacher of a piece of public land and therefore, to evict him from such public land and to restore the land for public use, the respondent municipality has invoked the Land Encroachment Act and issued the notice under Section 7 of the said Act. In those circumstances, it cannot be said that the alleged occupation or possession of the appellant is adverse to the interest of the respondent municipality to raise a claim over the suit property and consequently, this question of law is also answered against the appellant.

The remaining question of law which arises for consideration in this case is whether the respondent municipality is justified in only attempting to evict the appellant alone from the suit property leaving other occupants. This is not a substantial question of law for consideration by this Court. It is not known whether the occupation of the others in the same Survey Field is also a public land warranting the respondent municipality to initiate appropriate action. In any event, in this appeal, this Court is required to deal with the claim of the appellant alone and not against others. Further, this plea was not raised by the appellant before the Courts below and for the first time, it is raised before this Court in this appeal. Therefore, this Court, in exercise of powers conferred under Section 100 of Civil Procedure Code, cannot deal with such questions which were not raised before the Courts below. Consequently, this question of law is also answered against the appellant and in favour of the respondent municipality.

This Court also takes into account the subsequent developments that took place in this case. According to the learned senior counsel for the respondent municipality, during the pendency of the second appeal, the respondent municipality had demolished the existing superstructure put up by the appellant and had taken possession of the suit land. The suit land was also restored for the use of general public. This statement is not disputed by the learned counsel for the appellant. The said statement of the learned Senior counsel for the appellant is hereby recorded.

In the result, the judgment and decree passed by both the courts below are confirmed. The second appeal is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.