V. Sreenivasan vs Rajalakshmi

M. Karpagavinayagam, J.—The defendant who has lost in both the Courts below is the appellant herein the second appeal.

The plaintiff, the respondent herein filed the suit in O.S.No. 331 of 1994 on the file of District Munsifs Court, Srivilliputhur, for permanent

injunction restraining the defendant, the appellant herein from interfering with his peaceful possession and enjoyment of the suit property. The

defendant, the appellant herein resisted the suit by contending that the respondent encroached the suit property which is a Odai Poramboke and

that he having owned the adjacent property, is entitled to drain water through the Odai Poramboke.

The trial court, on consideration of the evidence of P.W.1, the plaintiff and Exs.A-1 to A-6 and the evidence of D.W.1, the defendant and

Exs.B-1 and B-2, held that the plaintiff is entitled to the relief sought for.

Being aggrieved over the same, the appellant filed an appeal in A.S.No. 184 of 1995 on the file of the Additional Sub Court, Srivilliputhur. This

appeal was dismissed confirming the judgment and decree passed by the trial court. Hence, the present second appeal.

It cannot be debated that the plaintiff is in possession of the suit property which is a Odai Poramboke. Exs.A-1 and A-4, the ''B'' Memo and

receipts would show that the plaintiff has been in possession as an encroacher from 1992 onwards. Further, Exs.A-3 and A-5 would also show

that the plaintiff continues to be in possession even after filing of the suit.

It is also admitted that the properties situate near the suit property were purchased by the plaintiff in 1992 and 1994. When such is the case, no

material was produced by the defendant to show that the suit property was enjoyed by the defendant and others and that the plaintiff was not in

enjoyment.

The only ground urged in this second appeal by Mr. Ethirajulu, the counsel for the appellant, is that the respondent being trespasser of the Odai

Poramboke, who caused obstruction of the free flow of the water by putting up a pathway to his other land, cannot be entitled to permanent

injunction.

On going through the judgments of both the Courts below, it is clear that in respect of the very same property the plaintiff filed O.S.No. 566 of

1994 before the District Munsif against the Government on the basis of the ''B'' Memos and obtained interim injunction under Ex.A-6. Therefore,

this Court is not called upon to hold that the plaintiff is a trespasser and that therefore, he is not entitled to permanent injunction.

The question is whether he is in continuous enjoyment and possession of the property and his pos-(SIC)

The fact that the plaintiff is an encroacher has not been denied. But, it must be noted that he obtained interim injunction as against the

Government from the competent civil court, though he is an encroacher. So, in the light of these facts, this Court has to see whether any ground has

been made out by the appellant herein for admission.

Both the Courts below held on dealing with the factual aspects that the plaintiff proved her case, whereas the defendant did not produce any

material to establish his case either by producing the relevant documents or by seeking the permission from the court to appoint Advocate-

Commissioner for inspection and report.

The defendant has merely marked two documents, viz., Exs.B-1 and B-2 to show that he sent a petition to the District Collector objecting to

the usage of the suit property by the plaintiff.

In the absence of any evidence in favour of the defendant, the courts below, in my view, have correctly concluded that the plaintiff has been in

possession from 1992.

It is settled law that even if an encroacher has established his enjoyment and possession by ''B'' Memos issued by the Government, he could be

evicted and removed only under due process of law.

Hence, I do not find merit in this appeal and the same is liable to be dismissed at the admission stage itself and accordingly it is dismissed.

Consequently, C.M.P.No. 1414 of 1998 stands dismissed.