The Assistant Divisional Engineer, The Assistant Engineer and The Collector vs K.R. Natarajan

G. Rajasuria, J.—This second appeal is focussed by the original defendants, animadverting upon the judgement and decree 8.9.2006 passed in A.S. No. 81 of 2002 by the Sub Court, Kallakurichi, confirming the judgement of the trial Court, namely, the III Additional District Munsif, Kallakurichi, in O.S. No. 473 of 1997, which was a suit for permanent injunction, so as to restrain the defendants from demolishing any portion of the house property including the balcony and two sunshades described in the schedule of the plaint. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court.

A Summation and summarisation of relevant facts, which are absolutely necessary and germane for the disposal of this second appeal, could be portrayed thus, in view of the fact that both the Courts below elaborately detailed and delineated the relevant facts in their respective judgements.

(a) The plaintiff filed the suit O.S. No. 473 of 1997 seeking the following relief:

to pass a decree for permanent injunction restraining the defendants from demolishing any portion of the house property including the balcony and two sunshades described in the schedule to the plaint....

on the main ground that the defendant officials had attempted to demolish a portion of his property as though it is under encroachment of the public road. The defendants entered appearance and filed the counter contending that the encroachment made by the plaintiff was detrimental to the general public.

(b) On the plaintiff''s side one K.R. Natarajan was examined as P.W. 1 and Exs. A1 to A8 were marked. On the defendants'' side one Ramanathan was examined as D.W.1 and no document was marked on their side.

(c) Ultimately, the trial Court decreed the suit; as against which, the defendants preferred appeal for nothing but to be dismissed by the appellate Court, confirming the judgement of the lower Court. Animadverting upon the judgement of both the Courts below, this second appeal is focussed by the defendants on various grounds.

The substantial questions of law as suggested by the defendants in the memorandum of appeal would run thus:

A. Is not the suit filed by the respondent barred u/s 14 of the Tamil Nadu Land Encroachment Act, 1905?

B. Is an encroacher entitled to any relief much less in the nature of mandatory injunction that too against the Government?

C. Whether the courts below is correct in decreeing the suit only on a finding that the appellant (defendant) has not proved his case ignoring the basic principle of law that the burden of proof shifts on the should of defendant only if the plaintiff proves his case?

Heard the learned Special Government Pleaderl appearing for the appellants/defendants. Despite printing the name of the respondent, there is no appearance.

A bare poring over and perusal of the judgement of the trial Court as well as the appellate Court would clearly demonstrate and display that they have not appreciated and understood the concept, burden of proof. The lower Court proceeded on the line as though the burden is on the defendants to prove that there was encroachment, forgetting that the plaintiff, who filed the suit should have proved his case. The lists of witnesses and documents appended to the judgement of the lower Court bespeak that the plaintiff, whose duty was to prove his case, has miserably failed to produce any evidence much less clinching evidence in support of his case that he raised construction including balcony and sunshades well within the land over which he has got right to do so. It was the plaintiff, who approached the Court seeking the remedy of permanent injunction, which fact was forgotten by both the Courts below.

It is a common or garden principle of law that even in an injunction suit, for the plaintiff to get permanent injunction, there should be evidence on his side to establish his prima facie title over the land concerned. But in this case, both the Courts below expected the defendants to prove that the plaintiff''s balcony and sunshades are over hanging or projecting on the road. While holding so, I am fully aware of the fact that the public officials, who are attempting to demolish the over hanging structures on the road should adhere to the provisions of law strictly.

In the memorandum of second appeal, the provisions of the Tamil Nadu Land Encroachment Act 1905 (hereinafter referred as to the ''Act'' in short) are found referred to. But the defendants have not chosen to produce even a piece of paper that they resorted to the provisions of the Act. As such, the defendants, who are raising their accusative fingers against the plaintiff, should realise their responsibility as public officials to adhere to the mandates as contemplated in the said Act.

Here the defendants themselves as second appellants clearly and categorically stated that the said Act is applicable in the facts and circumstances of this case. If that be so, I am at a lose to understand as to what prevented them from resorting to the provisions of the said Act. Hence in these circumstances I am of the considered opinion that both the Courts below were wrong in giving a categorical finding as though the plaintiff is entitled to injunction on the supposition that the plaintiff is the owner of the land over which the balcony and sunshade are projecting. The injunction order as granted by the lower Court and as confirmed by the appellate Court, deserves to be restricted in scope by pointing out that the injunction order of the lower Court would be in force so long as the defendants are not taking steps to remove those balcony and sunshades by adhering to the provisions of the Act or such other laws as might be applicable. With this finding, the second appeal is disposed of by modifying the judgements of both the Courts below as under:

The suit over hanging balcony and sunshades of the plaintiff shall not be removed by the defendant officials without resorting to the provisions of the Land Encroachment Act 1905 or such other laws as might be applicable in the facts and circumstances of this case.

No costs. Consequently, connected miscellaneous petition is closed.