Judgment :- Aggrieved by the judgment and decree dated 1.9.1993 passed in A.S.No.42 of 1990 on the file of the District Court, The Nilgiris reversing the judgment and decree dated 21.6.1990 made in O.S.No.6 of 1986 on the file of the District Munsif Court, Gudalur, the defendants have come forward with this second appeal. 2. The averments made in the plaint are as follows: a. The plaintiff is the absolute owner of the 'A' schedule property. As per the order of the Settlement Thasildar No.II (Enquiry) Gudalur, the 'A' chedule property has been treated as Church Poramboke under Section 11 (d) f the Giudalur Janmam Estates Abolition and Conversion into Ryotwari Act No.24of 1969. The Church is the 'A' schedule property constructed several years ago. In January 1981, the defendant, who has no title and right over the said property, trespassed into the area and put up construction. Therefore, the plaintiff issued a notice dated 2.12.1981 requesting the panchayat not to give any licence to the defendant for construction. On verification with the plan, which was received from the Assistant Director of Survey, the plaintiff found that the defendant encroached the 'A' schedule property. The defendant has encroached to an extent of 10 cents, which is described as 'B' schedule property. Since the defendant dug the earth for further construction in the encroached portion, some cracks were developed in the walls of the Church. The plaintiff is entitled for the 'B' schedule property and the defendant is bound to deliver the vacant possession of the 'B' schedule property to the plaintiff. Hence the suit for mandatory injunction and permanent injunction. 3. The averments made in the written statement are as follows: a. Denying the averments made in the plaint, it is stated that though the Special Tahsildar No.II held in his order S.R.No.690/78 dated 18.10.1978 that R.S.No.28/1A as Poromboke, the defendant disputes the same as a unilateral order. The defendant was in possession and enjoyment of 5 acres of land and two houses in Survey No.28/1A of Gudalur Village. He had filed a suit in O.S.No.88 of 1980 before this Court against Government for attempted dispossession from a larger extent including the suit schedule property. The report submitted by the Commission in that suit will bear out the falsity of the plaintiff’s stand. The defendant and his father came into possession of the land as early as 1960. He had filed a suit in O.S.No.88 of 1980 before this Court against Government for attempted dispossession from a larger extent including the suit schedule property. The report submitted by the Commission in that suit will bear out the falsity of the plaintiff’s stand. The defendant and his father came into possession of the land as early as 1960. The falsity of the claim of the plaintiff is evident from the fact that the plaintiff did not furnish correct boundary for 'A' schedule property. The defendant is entitled for assignment of patta for an extent of 47 cents of land, which is in his possession and enjoyment from the time of his father. The defendant is awaiting the verdict from the highest Settlement Authority in pursuance of a petition filed by him under Section 5(2) of the Act 24 of 1969 and therefore, the suit may be dismissed as premature. 4. On the basis of oral and documentary evidence, the Trial Court dismissed the suit. However, on appeal, the judgment and decree of the Trial Court was set aside. Hence, the second appeal by the defendants. 5. The second appeal was admitted on the following substantial questions of law. a. Whether the declaration made by the settlement Tahsildar under Section 11(d) of the Gudalur Janmam Estates (Abolition and Conversion into Ryotawari) Act 24/69 as 'Church Poromboke' in the settlement proceedings confer title on the plaintiff so as to claim ownership especially when the suit properties were taken over by the Government under Act 24 of 1969? b. Whether the plaintiff on the principle of estoppel or acquiescence is disentitled to seek the removal of the superstructure from the B schedule property belonging to the defendant? 6. The respondent /plaintiff sought for the relief of possession and mandatory injunction against the appellant/defendant in respect of the property in S.No.905/1 to the extent of 17 cents. According to the respondent/plaintiff, the defendant encroached upon the Church property during the year 1981 and put up a superstructure thereon. 7. Further, it is stated by the respondent/plaintiff that after the said encroachment, the appellant/defendant for construction dug the encroached portion and thereby some cracks were developed in the walls of the Church. 8. The main contention of the plaintiff is that the said Church was constructed in the 'A' schedule property during the year 1970. 7. Further, it is stated by the respondent/plaintiff that after the said encroachment, the appellant/defendant for construction dug the encroached portion and thereby some cracks were developed in the walls of the Church. 8. The main contention of the plaintiff is that the said Church was constructed in the 'A' schedule property during the year 1970. During their enjoyment over the said area, the Settlement Tahsildar NO.II (Enquiry) Gudalur, after conducting a suo moto enquiry, issued a proceedings in S.R.No.690 of 1978 dated 18.10.1978 declaring that 'A' schedule property is a Church Poromboke under Section 11(d) of the Act No.24 of 1969. 9. It is contended that as far as the interest of the suit property, the title was passed on to the Church under the said proceedings and from the date of the said proceedings, the respondent/plaintiff derived title subsequent to the uninterrupted possession by the plaintiff. During the year 1981, the defendant had encroached upon the said land and thereafter, he attempted to disturb the peaceful possession and enjoyment of the plaintiff. The said attempt was prevented by the plaintiff even from the very beginning of the encroachment by the defendant. 10. It is pointed out that after encroachment to the extent of 17 cents, the defendant put up a superstructure thereon. Since the plaintiff Church has derived the title by way of issuance of the proceedings by the Settlement Tahsildar dated 18.10.1978, the plaintiff is entitled for the relief of possession from the defendant as well as for the relief of mandatory injunction. Since the possession of the plaintiff is being disturbed by the defendant by way of encroachment, the plaintiff approached the Court seeking necessary relief to protect the interest of the Church. 11. Contrary to the said stand taken by the plaintiff, the defendant would submit that after the enactment of the said Act the Government has taken over the entire properties under its control. During the said proceedings, the Settlement Tahsildar conducted suo moto enquiry and issued the proceedings as per the possession and enjoyment of the respective persons. Accordingly, the Settlement Tahsildar by his proceedings dated 18.10.1978 declared that the land in Church was constructed as Church Poromboke. 12. It is contended that no such title or interest was passed on to the plaintiff in the said proceedings. Accordingly, the Settlement Tahsildar by his proceedings dated 18.10.1978 declared that the land in Church was constructed as Church Poromboke. 12. It is contended that no such title or interest was passed on to the plaintiff in the said proceedings. In such circumstances, it is pointed out that the plaintiff is not entitled to claim any right under the said proceedings. 13. It is pointed out that even though the plaintiff has come forward with the case that the plaintiff Church is in possession and enjoyment of 50 hectares in R.S.No.28/1A, the plaintiff Church itself has categorically stated in Ex.A.6 that in S.No.905/1 the land is situated only to the extent of 40 hectares. 14. It is pointed out that the said fact is also corroborated by the Commissioner during his inspection. Further, the said fact is also referred to under Ex.A.11. In such circumstances, it is pointed out that the plaintiff Church has not approached the Court by furnishing correct extent of the suit property. 15. Further, it is pointed out that since the said Act was introduced, the Government is the paramount title holder and the entire title to the suit property is vested only with the Government. In the absence of making the Government as a necessary party to the suit, the suit itself suffers from non-joinder of necessary parties. When the said right has been vested with the Government, the plaintiff Church cannot come forward and sought for the same relief against the defendant. In such circumstances, it is pointed out that even prior to the construction of the said Church in the suit property, the defendant was in possession even during the year 1960. In such circumstances, it is emphasised that like that of the plaintiff, the defendant is also in possession and enjoyment over certain properties and the same was purchased by his father from the persons, who were in possession of the same for a long period. 16. According to the defendant, initially one John was the owner of the said property measuring to an extent of 5½ acres. Thereafter, one Mathew Filip became the owner, who donated a half acre to the plaintiff and thereafter, he sold the five acres of land to one Mathai and thereafter, the father of the defendant purchased the said property from the said Mathai. Thereafter, one Mathew Filip became the owner, who donated a half acre to the plaintiff and thereafter, he sold the five acres of land to one Mathai and thereafter, the father of the defendant purchased the said property from the said Mathai. It is stated by the defendant that when he was in possession and enjoyment over the said property 4 ½ acres were taken away by the Housing Board. Such acquisition was challenged by the defendant before this Court. It is stated by the defendant that now he is in possession and enjoyment only to the extent of 35 cents. 17. It is pointed out by the defendant that the plaintiff Church encroached upon his land to the extent of 15 cents. Even though the defendant has contended that the said property was purchased by his father from one Mathai, for proving the same, the defendant has not produced any document. 18. It is contended by the defendant that he has been in possession and enjoyment over the property from the year 1960 onwards and he would state that he never encroached upon the plaintiff's property. 19. The learned counsel appearing for the appellant/defendant would contend that no such patta was issued in favour of the plaintiff Church. Without analysing the real fact, the lower appellate Court has come to a wrong conclusion that the patta was issued by the Settlement Tahsildar to the plaintiff on 18.10.1978. Therefore, the conclusion arrived at by the lower appellate Court is erroneous and the same is liable to be set aside. 20. On a careful perusal of the entire evidence adduced by D.Ws.1 and 2 and the relevant documents produced by them, it could be seen that initially the land occupied by the defendant only in respect of the S.No.905/5. This fact has been clearly referred to under Ex.B.7 dated 18.10.1978. It is also stated in the proceedings of the Settlement Tahsildar that 5.08 acres of land in S.No.905/5 (Old S.No.28/1A) is declared as an assessed waste dry land. The said fact has been corroborated by the Village Administrative Officer concerned under Ex.B.12, in which it is stated that the defendant is in possession of 14 cents. 21. With regard to measurements pertaining to S.No.905/1, it is clearly referred to in the proceedings of the Settlement Tahsildar. It is stated in the proceedings that 0.50.0 hectares is available in S.No.905/1. 22. 21. With regard to measurements pertaining to S.No.905/1, it is clearly referred to in the proceedings of the Settlement Tahsildar. It is stated in the proceedings that 0.50.0 hectares is available in S.No.905/1. 22. It is an admitted fact that during the course of inspection conducted by the Commissioner, he has found that the total extent available is 0.40.0 hectares. This fact has been referred to under Ex.C.2. Under Ex.C.2, the area occupied by the defendant is shown in green colour and within that area there is a tiled building, which is shown in red colour. The Commissioner has categorically stated that 17 cents of land has been encroached by the defendant. 23. A perusal of Ex.B.9 reveals that the defendant submitted a revision petition dated 18.11.1986 to the Special Commissioner and Commissioner of Land Administration, Chepauk, Madras-5. In the revision petition, it is contended by the defendant that instead of passing an order under Section 14(2) of the said Act, the Settlement Tahsildar has erroneously issued the proceedings under Section 11(d) of the Act. For issuing a proceedings under Section 14(2) of the Act, the defendant submitted the above revision petition. 24. On a careful perusal of the entire evidence adduced by either side and that of considering the relevant records produced by either side, it is seen that no such title was passed on to the plaintiff under the proceedings issued by the Settlement Tahsildar dated 18.10.1978. It is an admitted fact that after the passing of the said Act, the Settlement Tahsildar, after conducting enquiry, issued several proceedings and Ex.B.7 is also one among them. On a perusal of Ex.B.7, one can see that after the enquiry, the Settlement Tahsildar passed the said proceedings by making classification of the lands. 25. In this connection, it is contended by the counsel for the respondent/plaintiff that the order passed by the Settlement Tahsildar is a final one and no appeal has been preferred by the aggrieved parties. In such circumstances, the plaintiff is entitled for the relief sought for in the suit against the defendant. 26. As pointed out by the learned counsel appearing for the appellant/defendant that no title was passed on to the plaintiff for seeking the relief of possession. In such circumstances, the plaintiff is entitled for the relief sought for in the suit against the defendant. 26. As pointed out by the learned counsel appearing for the appellant/defendant that no title was passed on to the plaintiff for seeking the relief of possession. Even though it is contended by the plaintiff that the defendant encroached upon the plaintiff's property, it could not be considered that the defendant encroached the property of the plaintiff in view of considering the fact that the Government is the paramount title holder of the property. Therefore, the relief of mandatory injunction sought for by the plaintiff cannot be granted. 27. With regard to estoppel or acquiescence, it is contended by the defendant that the plaintiff is being estopped from seeking removal of superstructure in the 'B' schedule property. 28. It is contended by the learned counsel appearing for the defendant that the plaintiff has not taken any effective steps to prevent the defendant from encroaching the property which was already declared as Church Poromboke under the proceedings of the Settlement Tahsildar dated 18.10.1978. In this regard, the plaintiff has categorically raised an objection against the defendant with regard to the encroachment upon the land which was declared as Church Poromboke. The said objection was made by the plaintiff on 2.12.1981 under Ex.A.6. Further, on 2.12.1985, the plaintiff again written a letter to the Executive Officer under Ex.A.8 requesting him not to grant any sanction for constructing the building by the defendant. Subsequently, a report to the police dated 28.5.1987 under Ex.A.10 was given by the plaintiff. In such circumstances, it could not be decided that the plaintiff is estopped from instituting against the defendant. 29. In the light of the discussions held above, since the plaintiff has not derived any title or interest over the entire property in S.No.905/1 measuring to the extent of 0.40.0 hectares even though the plaintiff is in possession and enjoyment of the same to the extent of 0.23.0 hectares as per the Commissioner's report, the plaintiff is not entitled to the relief of possession and mandatory injunction against the defendant. In such circumstances, the first question of law raised by the appellant/defendant is answered in favour of the appellant/defendant. 30. With regard to the second substantial question of law, no doubt, the plaintiff is in possession and enjoyment of the property from 1970 onwards. In such circumstances, the first question of law raised by the appellant/defendant is answered in favour of the appellant/defendant. 30. With regard to the second substantial question of law, no doubt, the plaintiff is in possession and enjoyment of the property from 1970 onwards. With regard to encroachment of the defendant the plaintiff raised objection from the year 1981 onwards. Therefore, in such circumstances, the plaintiff cannot be estopped from questioning the act of the defendant. Thus, the second question of law is answered against the defendant. However, in the light of the discussions held above, this Court is of the view that the judgment and decree of the lower appellate Court has to be set aside. 31. In result, the second appeal is allowed setting aside the judgment and decree of the lower appellate Court. No costs. Connected C.M.P. is closed.