JUDGMENT

This second appeal has been filed against the judgment and decree, dated 31.1.1995, made in A.S No. 197 of 1994, on the file of the IVth additional City Civil Court, Madras, confirming the judgment and decree, dated 24.2.1994, made in O.S No. 6499 of 1991, on the file of the Vth Assistant City Civil Court, Madras.

2. The plaintiffs in the suit, in O.S No. 6499 of 1991, are the appellants in the present second appeal. The defendant in the suit is the respondent herein. The plaintiffs had filed the suit, in O.S No. 6499 of 1991, praying to declare that the notice, dated 3.9.1991, issued by the defendant is illegal, arbitrary and non est in law and for a permanent injunction restraining the defendant and others from, in any manner, interfering with the plaintiffs' enjoyment of the plaint schedule mentioned property and for costs.

3. The plaintiffs had stated that they are the owners of the land to an extent of 3 grounds and 640 sq.ft or 22 cents, in survey No. 136/1, of Koyambedu Village. The plaintiffs had stated that, originally, a larger extent of property was in the occupation and enjoyment of one Rathnam of Koyambedu Village. Rathnam had settled the said property, bearing survey No. 136, in favour of his sons, by a registered settlement deed, dated 12.11.1967 They had, in turn, sold an extent of 3 grounds and 640 sq.ft or 22 cents in survey No. 136, (present survey No. 361), of Koyambedu Village, in favour of the plaintiffs, by way of a registered sale deed, dated 27.1.1982 After acquiring the said land, the plaintiffs have been in peaceful possession and enjoyment of the said property, which has been morefully described in Item No. 1 of the plaint schedule mentioned property.

4. The plaintiff had further stated that after obtaining the necessary approval of the authorities concerned, they had put up a superstructure in the said property by spending a huge amount of money. The building constructed by the plaintiffs in the suit property is at present a Kalyanamandapam in the name of ‘A.S.R Kalyana Mahal’. It has been further stated that item No. 2 of the plaint schedule mentioned property is an extent of 7 grounds and 623 sq.ft bearing T.S No. 1, Block No. 6, Naduvakkarai Village. The said property had also been in the possession and enjoyment of the plaintiffs, as the said property had been in the possession of their vendors. The plaintiff had further stated that after constructing the superstructure in item No. 1 of the plaint schedule mentioned property, they have constructed a temporary wall in the northern end of item No. 2 of the plaint schedule property to prevent possible encroachment from anti social elements. Even though the plaintiffs had been in possession and enjoyment of the plaint schedule mentioned property, the defendant had issued a threat stating that he would demolish the construction in the schedule mentioned property stating that the property belongs to the State Government. The defendant had issued a notice, dated 3.9.1991, calling upon the plaintiffs to raise their objections, if any, on or before 12.2.1991 Through the said notice, the defendant had asked the plaintiffs to vacate the land in their possession, since they had encroached upon the said land. Thereafter, on 11.9.1991, the defendant had visited the plaint schedule mentioned property and threatened the plaintiffs that he would demolish the building and that he would take necessary action to evict the plaintiffs from the suit property. In such circumstances, the plaintiff had filed the suit in O.S No. 6499 of 1991, on the file of the Vth Assistant City Civil Court, Madras.

5. In the written statement filed on behalf of the defendant, it has been stated that Item. No. 1 of the schedule to the plaint had, originally, belonged to one P.R Murugesan and others, as per the records maintained at the office of the defendant. It is not known as to how the plaintiffs' vendors had obtained the property. It is for the plaintiffs to establish that they had got a valid title in respect of the suit property. The lands in question have been classified as ‘Gramanatham’, which could be used only for the residential purposes. However, the plaintiffs had constructed a Kalyanamandapam in the suit property and it had been used for commercial purposes. With regard to item 2 of the schedule to the plaint, the defendant states that these are Government lands and the plaintiffs had constructed a huge compound wall in the said property. It cannot be said that the suit property had been in the possession of the vendors of the plaintiff, nor is it in the possession of the plaintiffs. Further, the plaintiff have no interest in protecting the Government lands from anti-social elements.

6. The defendant had also stated that no threat had been issued to the plaintiff. Only a notice under the Tamil Nadu Land Encroachment Act, 1905, had been issued to the plaintiffs and a reply to the said notice had also been received from the plaintiffs. Since the suit is premature in nature, it is liable to be dismissed.

7. In the additional written statement filed by the defendant, it has been stated that a notice, under Section 7 of the Tamil Nadu Land Encroachment Act, 1905, had been issued to one A. Srinivasan, son of Ayyappanaidu and S. Rukmaniammal, wife of A. Srinivasan, residing at No. 82, Bricklin Road, Ottery, Madras. The notice had been served on them, on 4.9.1991 In the reply sent by them, it has been stated that the land in survey No. 136/1 Part of Koyambedu Village, with an extent of 3 grounds and 640 sq. ft., had been purchased by way of a sale deed in the year, 1984. However, the encroachers had not produced any document to show as to how the suit property came to be possessed by the vendors of the plaintiffs. From the documents shown by the encroachers, it was seen that they had only certain right of enjoyment, which cannot be stated to be an absolute title, in respect of the property concerned. The suit property in survey No. 136/1, part of Koyambedu Village, is a ‘Grama Natham’. The plaintiffs, who are encroachers in the suit property, have been utilising the property for non-residential purposes, unauthorisedly. They had also raised a pucca wall in the Government land, in T.S No. 1 of Block No. 6, Naduvakarai village. The encroachers are in illegal possession of the suit property, with the intention of grabbing the valuable lands, which belong to the Government. In such circumstances, the defendant had taken action, under Section 6 of the Tamil Nadu Land Encroachment Act, 1905. Against the order passed, under Section 6 of the Act, there is a right of appeal provided, under Section 10 of Tamil Nadu Land Encroachment Act, 1905. A revision had also been provided, under Section 10-A of the Act, to the Government. There is also provision for passing of an interim order of stay, under Section 10-B of the said Act. Section 14 of the Act permits the filing of civil suits only in respect of the proceedings not provided under the Act. The defendant had further stated that the suit filed by the plaintiffs is not maintainable, since the Government had not been made as a party to the suit.

8. In view of the averments made on behalf of the plaintiffs, as well as the defendant, the trial Court had framed the followings issues for consideration:

“1. Whether the suit is not maintainable, since the procedure prescribed, under Section 79 of the Civil Procedure Code, had not been followed?

2. Whether the suit is not maintainable, since the suit had been filed without making the Government as a party to the suit?

3. is the suit not maintainable, since it has been filed without exhausting the appellate and revisional remedies, provided under Sections 10 and 10-A of the Tamil Nadu Land Encroachment Act, 1905.?

4. Whether the plaintiffs are entitled to the reliefs of declaration and permanent injunction, as sought for in the suit?

5. Whether it is true that the plaintiffs are in enjoyment of the suit property having encroached upon the same?

6. What other reliefs, the plaintiffs are entitled to?”

9. The trial Court had found that the defendant in the suit had been examined as D.W 1. In his evidence, the defendant had stated that notice, under Section 6 of the Tamil Nadu Land Encroachment Act, 1905, had not only be issued to be the plaintiffs, but the notices had also been issued to the various persons, who had encroached upon the properties, belonging to the Government. The notices, issued under Section 6 of the Act, had been marked as Exhibits B.1 to B24. Exhibit A.4 is an application submitted by the plaintiffs requesting that the suit property may be given to them on lease and Exhibit B.25, dated 18.9.1991, is the reply sent to the plaintiffs rejecting their request. Exhibit B.26 is the copy of the town survey field register shewing that the suit property is a river poramboke.

10. The trial Court had further found that the claim of the plaintiffs is that they had purchased the suit property from one Velaythuam, son of Rathnam and his family members, for a valid consideration. Thereafter, they have been in possession and enjoyment of the suit property. However, the plaintiffs had not filed any document to show as to how Rathnam had got the property. No patta had been granted, either to Rathnam or to his son, in respect of the suit property. Further, there is no evidence to show that they had purchased the property from some one else. The plaintiffs had claimed that they had purchased the suit property only because the said property had been in the possession of the plaintiffs' vendors. However, a document had been marked, as Exhibit B.28, to show that one T.K Murugesan and others were in occupation of the suit property, having encroached upon the same.

11. The trial Court had found that even though the plaintiffs had claimed title over the suit property based on the sale deed, marked as Exhibit A.1, the plaintiffs had not shown that a patta in respect of the suit property had been issued to them. Therefore, the sale deed, marked as Exhibit A.1, cannot vest any right or title in respect of the suit property with the plaintiffs. Therefore, the plaintiffs cannot ask for the reliefs, as sought for in the suit, against the government, without having any right or title in respect of the suit property.

12. The trial Court had further found that the plaintiffs had admitted that the second item of the suit schedule mentioned property belongs to the Government. Therefore, the plaintiffs cannot claim any right in the property without obtaining the patta or any other document granting them certain rights in the said property. In such circumstances, the plaintiffs cannot claim any right in respect of the suit property against its rightful owner, namely, the Government. Even though the plaintiffs had admitted that the suit property belongs to the Government, they had not impleaded the Government as a party in the suit. The suit had been filed only against the Tahsildar, who had issued the notice against them, under the provisions of the Tamil Nadu Land Encroachment Act, 1905. Therefore, the suit is not maintainable due to the reason of non-joinder of the necessary party, namely, the State Government.

13. The trial Court had further found that the plaintiffs could have filed an appeal against the notice issued to them by the defendant, invoking Section 10 of the Tamil Nadu Land Encroachment Act, 1905, and a revision, invoking Section 10-A of the Act. They have not availed such statutory remedies provided under the said Act. Instead, they had filed the present suit, in O.S No. 6499 of 1991, to declare that the notice, dated 3.9.1991, issued by the defendant, as null and void. Further, the trial Court had held that even though the plaintiffs had claimed that they had purchased the suit property, by way of a sale deed, for valid consideration, they had not shown that the vendors of the plaintiffs had valid title to the suit property. The fact that the suit property belongs to the Government had been established by Exhibits B.26 and B.28 While so, no valid title had been passed to the plaintiffs from their vendors, in respect of the suit property. In such circumstances, the trial Court had declined to grant the reliefs of declaration and permanent injunction, as prayed for by the plaintiffs. Accordingly, the trial Court, by its judgment and decree, dated 24.2.1994, made in O.S No. 6499 of 1991, had dismissed the suit filed by the plaintiffs.

14. Aggrieved by the judgment and decree, dated 24.2.1994, made in O.S No. 6499 of 1991, the plaintiffs in the suit had filed the first appeal in A.S No. 197 of 1994, on the file of the IVth Additional City Civil Court, Madras.

15. The first appellate Court had framed the following point for consideration:

“Whether the appeal has to be allowed by setting aside the judgment and decree of the lower court, dated 24.2.1994, and the suit has to be decreed as prayed for?”

16. The first appellate Court had found that the first plaintiff, who had deposed as P.W.1, had stated in his evidence that the first item in the plaint schedule mentioned property had originally belonged to one Rathnam and he had settled the property in favour of his son, under a settlement deed, dated 12.11.1967, marked as Exhibit A.5 The settlees had enjoyed the property as their own till they had alienated the same in favour of the plaintiffs, under a sale deed, marked as Exhibit A.6 executed by Velayutham and others in favour of the plaintiffs. Insofar as the second item in the plaint schedule mentioned property is concerned, the first plaintiff had stated that it is adjacent to the first item of the plaint schedule mentioned property, with an extent of 7 grounds and 623 sq.ft He had also stated in his evidence that the Madras Metropolitan Development Authority had also granted the approval and he had constructed a kalyanamandapam in the suit property based on the approval of the said authority, as it is in a commercial zone. However, the defendant in the suit, who had deposed as D.W.1, had stated in his evidence that he had sent a notice to 24 persons, who were the encroachers in the survey number pertaining to the suit, under Section 6 of the Tamil Nadu Land Encroachment Act, 1905. The said notices had been marked as Exhibits B.3 to B.24 Further, the plaintiffs had given an application, marked as Ex.A.4 requesting an order to be passed granting lease of the suit site in their favour. The said request had been denied by an order, dated 18.9.1991, marked as Exhibit B.25 The first appellate Court had further found that from the evidence available on record and by the pleadings of the plaintiffs, they had admitted that items 1 and 2 of the the plaint schedule mentioned property belonged to the Government.

17. The first appellate Court had also noted that it is the case of the plaintiffs, as well as the defendant, that item No. 1 in the suit schedule mentioned property has been classified as “Grama Natham”. Since the plaintiffs had encroached upon the Government property, an eviction notice marked as Exhibit A.3 had been issued to them, under the provisions of the Tamil Nadu Land Encroachment Act, 1905. The first appellate Court had also held that the plaintiffs' second item of the suit schedule mentioned property is a poramboke land. However, Exhibit A3 notice had been issued to the plaintiffs by the defendant for both the two items of the plaint schedule mentioned property. Even though the plaintiffs had claimed that they had purchased the first item of the suit scheduled mentioned property from velayutham and others, who were in possession and enjoyment of the property, having obtained the same from his father, Rathinam, under a settlement deed, marked as Exhibit A.5, they had not shown any other documentary evidence to show that the plaintiffs' vendor had valid title in respect of the the suit property.

18. By appreciating the evidence on record, the first appellate Court had come to the conclusion that the plaintiffs had admitted that the properties shown in the plaint schedule 1 and 2 are belonging to the Government. However, the plaintiffs, who had claimed that they had purchased the property from their vendors, based on the fact that their vendors had been in possession and enjoyment of the said property, had not proved their title in respect of the suit property, by sufficient evidence. The plaintiffs had stated that they had purchased only the first item of the suit property from their vendors, who had been in possession and enjoyment of the said property and therefore, they are having a valid title in respect of the first item of the suit schedule mentioned property, However, the plaintiffs had clearly admitted that item 2 of the schedule mentioned property is a poramboke land. In such circumstances, the first appellate Court had come to the conclusion that the plaintiffs had not substantiated their claim that they have a valid title in respect of the first item of the suit schedule property. Further, in view of the fact that the plaintiffs had admitted that the second item of the suit schedule mentioned property is a poramboke land, the plaintiffs are not entitled to the reliefs sought for by them in their suit, in O.S No. 6499 of 1991.

19. The first appellate Court had also found that the plaintiffs had not followed the provisions of Section 79 and Order 27 Rule 5 A of the Civil Procedure Code, by issuing the necessary notice to the defendant before filing of the suit. The First appellate Court had also held that the plaintiffs had not availed the alternative remedy provided under the provisions of the Tamil Nadu Land Encroachment Act, 1905. Further, the Government, which is a necessary party, had not been impleaded in the suit, as a defendant. In such circumstances, the first appellate Court had confirmed the findings of the trial Court, while dismissing the appeal, by its judgment and decree, dated 31.1.1995, made in A.S No. 197 of 1994.

20. Aggrieved by the judgment and decree of the first appellate Court, the plaintiffs had filed the present second appeal. The second appeal had been admitted by this Court on the following substantial questions of law:

“1. Whether the lower appellate Court has erred in not considering Exs.A.10, A.11 and A. 12 and the admission of D.W.1, while considering whether the suit first item which is admittedly Grama Natham, as Government property?

2. Whether the Courts below ought to have followed 1959 II MLJ, 513, which holds that Grama Natham is not Government property?

3. Whether the lower appellate Court factually erred in observing that the plaintiffs admitted that suit item No. 1 belongs to Government?

4. Whether to the present case Order 27 Rule 5A C.P.C would apply?”

21. The learned counsel appearing for the appellants had submitted that both the Courts below had erred in assuming that the appellants had admitted that both items 1 and 2 of the suit schedule mentioned properties are Government properties. In fact, the appellants had contended that the first item of the suit schedule mentioned property is a Grama Natham, and the second item of the suit schedule mentioned property has been in the possession and enjoyment of the appellants' vendor, exclusively, from time immemorial, without any interruption from any one. As such, the respondent has no jurisdiction or authority to issue the notices, under Section 6 of the Tamil Nadu Land Encroachment Act, 1905. The appellants had purchased the first item of the suit schedule mentioned property by way of a sale deed from their vendors, for a valid consideration. After having purchased the said property, the appellants had constructed a Kalyanmandapam in the said property, with the approval of the Madras Metropolitan Development Authority.

22. The learned counsel appearing for the appellants had further submitted that in the written statement filed by the defendant, he had admitted that the first item of the suit schedule mentioned property is a Gramanatham. The defendant, who had deposed as D.W.1, had, specifically, admitted in his deposition that Gramanatham is not Government land and that it could be alienated by way of a Will, settlement or sale. In fact, the appellants had purchased item No. 1 of the suit schedule mentioned property by way of sale deed, dated 27.1.1922, marked as Exhibit A. 1.

23. The learned counsel appearing for the appellants had relied on the following decisions reported in 2004 (3) CTC 270=2004 3 L.W 278 (The Executive Officer, Kadathur Town Panchayat v. V. Swaminathan) and in 2002 (3) CTC 221 (Krishnamurthy Gounder v. Government Of Tamil Nadu) to show that ‘Gramanatham’ does not belong to the Government. Therefore, the appellants cannot be treated as encroachers and therefore, the provision of the Tamil Nadu Land Encroachment Act, 1905, cannot be invoked by the defendant to evict the appellants from item No. 1 of the suit schedule mentioned property.

24. The learned counsel appearing for the appellants had also contended that the Courts below had erred in holding that the Government was the owner of Item No. 2 of the suit schedule mentioned property. From the evidences of P.Ws 2, 3 and 4, it could be seen that the said property was in continuous possession and enjoyment of the appellants and their predecessors. Consequently, the appellants had perfected their possessory title in respect of the said property. Therefore, the notice issued by the defendant, under Section 7 of the Tamil Nadu Land Encroachment Act, 1905, is arbitrary, illegal and without jurisdiction.

25. The learned counsel appearing for the appellants had also contended that the Courts below had erred in coming to the conclusion that the suit filed by the appellants is not maintainable, due to non-joinder of necessary party, namely, the State Government. In fact, the government might have been a necessary party, if the appellants had filed the suit to establish their title in respect of the suit property. Since the suit filed by the appellants, in O.S No. 6499 of 1991, was only to declare that the notice issued by the defendant is illegal and void, and for a consequential injunction, the Government would not be a necessary party to the suit. Further, only when the Government has been made as a party in a suit, Section 79 of the Civil Procedure Code, 1908, would become applicable.

26. The learned counsel appearing for the respondents had submitted that the respondent has the power and jurisdiction to issue a notice to the appellants, under the provisions of the Tamil Nadu Land Encroachment Act, 1905. The learned counsel had submitted that the suit filed by the appellants is bad in law for non-joinder of the necessary party, namely, the Government. When alternative remedies are available, under the provisions of the Tamil Nadu Land Encroachment Act, 1905, it is not open to the appellants to file the suit seeking for the reliefs, as stated therein. The appellants had not shown any evidence to substantiate their claims to establish that they had valid title In respect of the suit property.

27. From the evidence available on record, it is clear that the plaintiffs had admitted that the suit property belongs to the Government. Therefore, the Courts below had rightly come to the conclusion that the suit filed by the appellants is not maintainable and that the reliefs, as prayed for by the appellants, in the said suit, cannot be granted.

28. In view of the submissions made by the learned counsels appearing on behalf of the appellants, as well as the respondent and on a perusal of the evidence available on record and in view of the decisions cited by the learned counsel appearing for the appellants, this Court is of the considered view that the Courts below had erred in denying the reliefs prayed for by the appellants, in their suit, in O.S No. 6499 of 1991. In the written statement filed by the defendant, he had admitted that item No. 1 of the suit schedule mentioned property is classified as ‘Gramanatham’.

29. Further, from the decisions cited supra, it is clear that ‘Gramanatham’ cannot be considered, ipso facto, as Government property. Once it is found that item No. 1 of the suit schedule mentioned property is classified as ‘Gramanatham’, it should be held that it does not belong to the Government. Therefore, there can be no doubt that the defendant cannot invoke the provisions of the Tamil Nadu Land Encroachment Act, 1905. As such, the notice issued by the defendant, under Section 7 of the Tamil Nadu Land Encroachment Act, 1905, is invalid in the eye of law. Hence, there is no necessity to implead the Government as a party to the suit, especially, since the appellants had not filed the suit for declaration of their title, in respect of the suit property. Consequently, Section 79 of the Act would not be applicable to the present case. In respect of item No. 2 of the suit schedule mentioned property, there is no serious contest from the side of the appellants to show that they have prescribed title, by way of adverse possession, as claimed by them.

30. The appellants had not shown sufficient evidence to support their claim that they have prescribed title in respect of the said property, by way of adverse possession. Once it has been admitted by the appellants that item No. 2 of the suit schedule mentioned property is a poramboke land, the defendant would be entitled to invoke the procedures prescribed, under Section 7 of the Tamil Nadu Land Encroachment Act, 1905.

31. Accordingly, the judgment and decree of the courts below are set aside, insofar as it relates to item No. 1 of the schedule mentioned property. As such, the suit, in O.S No. 6499 of 1991, is decreed insofar as it relates to item No. 1 of the suit schedule mentioned property. However, the notice issued by the appellants, in respect of the item No. 2 of suit scheduled mentioned property, cannot be held to be invalid in the eye of law. Hence, the suit is dismissed, insofar as it relates to item No. 2 of the suit schedule mentioned property, by confirming the judgment and decree of the courts below. Accordingly, the second appeal stands partly allowed, as stated above. No costs. However, it is made clear that the declaration of the notice, dated 3.9.1991, issued by the defendant in the suit O.S No. 6499 of 1991 would not, in any way, prevent the concerned authorities to take appropriate action against the plaintiffs in the said suit, in the manner known to law.

VCJ/VCS