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2008 DIGILAW 3171 (MAD)

Ramasamy v. Forest Ranger & Others

2008-08-29

A.C.ARUMUGAPERUMAL ADITYAN

body2008
Judgment :- This second appeal has been directed against the Judgment and decree in A.S.No.78 of 2002 on the file of the Principal District Judge, Villupuram, which had arisen out of the decree and judgment in O.S.No.248 of 2000 on the file of the First Additional District Judge / Judicial Magistrate NoI, Villupuram, is under challenge in this second appeal. The plaintiff who has lost his case before both the Courts below is the appellant herein. 2.The averments in the plaint in brief sans irrelevant particulars are as follows:- The plaint schedule property belongs to the Tamil Nadu Government. It is a barren land. The plaintiffs father had encroached upon the plaint schedule property and was in possession and enjoyment of the same till his death. After the life time of the plaintiffs father, his brother Marimuthu was enjoying the plaint schedule property and after his life time the plaintiff came into possession of the plaint schedule property and he is in possession and enjoyment of the same for the past 25 years. The plaintiff along with brother had dug a well in the plaint schedule property to the depth of 15 yards and has installed an oil motor pump-set and with the help of the same, he is irrigating the land. The plaintiff has also constructed a thatched hut in a portion of the suit property and he is residing there. The plaintiff is also paying penal interest to the government. On the north and east of the suit property Ramanathapuram Road runs and the land situated to the east of the said road is the forest belonging to the forest department. There is no connection between the plaint schedule property and the forest department. At this juncture, the first defendant is often making attempts to interfere with the plaintiffs possession and enjoyment of the suit property and insisting the plaintiff to remove and close the well and to remove the oil engine. At no point of time the revenue officials have made any objections for the plaintiff to enjoy the plaint schedule property, but only the people belong to the forest department are making attempts to interfere with the possession of the plaintiff. One such attempt was made on 20.08.2000. Hence, the plaintiff has filed the suit for permanent injunction restraining the defendants from interfering with the possession of the plaint schedule property by the plaintiff. One such attempt was made on 20.08.2000. Hence, the plaintiff has filed the suit for permanent injunction restraining the defendants from interfering with the possession of the plaint schedule property by the plaintiff. The plaintiff has also filed necessary application before the District Collector for issuance of patta in the name of the plaintiff in respect of the plaint schedule property. He has also approached the Tahsildar Ulundoorpet for issuance of patta. Hence, the suit for permanent injunction. 3. The second and third defendants have adopted the written statement filed by the first defendant as follows:- The plaintiff schedule property is not a barren land belonging to the Tamil Nadu Government. The plaint schedule property is a forest land belonging to the Forest Department. The suit property is situated in S.No.47, Sridevi Village, Ulundoorpet. There is no road on the north or on the east of the plaint schedule property. The plaintiff without the permission of the Forest Department had laid the road on 23. 2000 in the plaint schedule property and the same was informed to the District Forest Officer also and a separate proceedings is pending in this regard. The suit property is a reserve forest land. The suit property was surveyed on 9. 2000 by the survey department. The allegation that for the past 25 years the plaintiff and before him his uncle and brother were in possession and enjoyment of the suit property are all denied as false. The plaintiff never dug the well in the suit property and has not irrigated the suit property with the help of an oil engine. Till today the plaint schedule property is being treated as a reserve forest by the forest department. The revenue department has no locus standi to levy penal interest to the plaintiff. D1 & D2 are maintaining the suit property as a forest land. The suit is not maintainable. Hence, the suit is liable to be dismissed with costs. 4. On the above pleadings the learned trial judge has framed three issues for trial. Before the trial judge, plaintiff has examined himself as P.W.1 besides examining another witness Thiru.Pandiyan as P.W.2 and has exhibited Ex.A.1 to Ex.A.4. On the side of the defendants D.W.1 to D.W.2 were examined and Ex.B.1 to Ex.B.5 were marked. 4. On the above pleadings the learned trial judge has framed three issues for trial. Before the trial judge, plaintiff has examined himself as P.W.1 besides examining another witness Thiru.Pandiyan as P.W.2 and has exhibited Ex.A.1 to Ex.A.4. On the side of the defendants D.W.1 to D.W.2 were examined and Ex.B.1 to Ex.B.5 were marked. After scanning the evidence both oral and documentary and after giving due consideration to the submissions made by the learned counsel on both sides, the learned Trial Judge has come to the conclusion that the plaintiff is not entitled to the relief asked for in the suit and accordingly, dismissed the suit. Aggrieved by the findings of the learned trial Judge, the plaintiff has preferred an appeal before the leaned Principal District Judge, Villupuram, in A.S.No.78 of 2002. The learned first appellate Judge after considering the submissions made by the learned counsel on both sides and after considering the documents exhibited before the trial Court along with the oral evidence, finding no material to interfere with the judgment of the learned trial judge, has dismissed the appeal thereby confirmed the decree and judgment of the learned Trial Judge, which made the unsuccessful plaintiff before the Courts below to approach this court with this second appeal. 5. The following substantial question of law are drafted for determination :- 1)Whether on the facts and in the circumstances of the case, the Courts below were correct in holding that the appellant is not entitled to get injunction since the suit property belongs to Forest Department? 2)Whether the Courts below have committed illegality fornot considering the scope of Section 68-A of the Forest Act which prohibits arbitrary action and that the notice of eviction should be given in accordance with law? 6. Heard the learned counsel appearing for the appellant and the learned Government Advocates appearing for the respondents and considered their respective submissions. 7. Substantial Question of Law No.1:-Before the first appellate Judge Ex.A.6 was marked as an additional document. Ex.B.6 is a certificate of VAO, Sridevi Village, as to the effect that the Forest Officials have planted Eucalyptus saplings in the plaint scheduled property, which is in R.S.No.47, in Sridevi Village, Ulundoorpet Taluk. From the said Ex.B.6 it is seen that the plaintiff has not raised any objection for the Forest Officials planting Eucalyptus saplings in the plaint schedule property. From the said Ex.B.6 it is seen that the plaintiff has not raised any objection for the Forest Officials planting Eucalyptus saplings in the plaint schedule property. The learned first appellate Judge after considering the evidence of D.W.1 and after going through Ex.B.1, Exs.B.2 to 5, has come to the conclusion that there is material to show that the plaint schedule property is a forest land. The learned first Appellate Judge has also extracted Section 68(A) of the Tamil Nadu Forest Amendment Act, 1919 (herein after referred to as the Act), and the proviso to Section 68(A) of the Act reads as follows:- "Without giving any notice to a person , who is said to be in possession of the forest land, no eviction or adjudication against him can be taken." Since both the courts below have come to the definite conclusion that the plaint schedule property belongs to the forest department on the basis of the oral and documentary evidence, I hold on Substantial Question of Law No.1 that it cannot be said that the Courts below have erred in dismissing the suit filed by the plaintiff for permanent injunction. 8. Substantial Question of Law No:-2 As I have stated in the earlier paragraphs, as per Section 68(A) of the Act, the proviso to the said section reads that without a notice to a person who is in possession of the forest land he cannot be evicted or adjudicated upon. Admittedly the plaintiff is in possession of the plaint schedule property and that on the side of the plaintiff the plaintiff is relying on B-memo-Ex.A.4. Ex.A.3 copy of the Adangal extract for fasily 1393 to 1490 also shows that the plaintiff is in possession of the plaint schedule property. The learned counsel for the appellant would state that the grievance of the appellant/plaintiff is that while extracting Section 68(A) of the Act and also having come to the clear finding that the D1 & D2 are not entitled to evict the plaintiff otherwise under due process of law, the decree is silent in that aspect. The learned counsel appearing for the appellant would state that the appellant will be satisfied if the decree is drafted in a way to incorporate that the D1 & D2 are not entitled to evict the plaintiff otherwise under due process of law. The learned counsel appearing for the appellant would state that the appellant will be satisfied if the decree is drafted in a way to incorporate that the D1 & D2 are not entitled to evict the plaintiff otherwise under due process of law. Hence, I hold on Substantial Question of Law No.2 that Courts below have not committed illegality in considering the scope of Section 68(a) of the Act, but only while drafting the decree benefits conferred under Section 68(A) of the Act was omitted to be given to the plaintiff. 9. In fine, the appeal is dismissed confirming the decree and judgment in A.S.No.78 of 2002 on the file of the Principal District Judge, Villupuram. But, D1 & D2 are entitled to evict the plaintiff only under due process of law after following the provisions contemplated under Section 68(A) of the Act. No costs. The learned Government Advocate (Forest Department) would represent that after the dismissal of the suit the Forest Department have initiated proceedings under the proviso to Section 68(A) of the Act and that the plaintiff was evicted from the plaint schedule property and that the same was informed to this Court through the counter in CMP.No.10607 of 2003 in S.A.No.1243 of 2003 and that the injunction was made absolute by this Court. But except the above said pleadings in the counter in CMP.No.10607 of 2003 in S.A.No.1243 of 2003, there is no material placed before this Court to show that the plaintiff was evicted from the plaint schedule property under due process of law.