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2022 DIGILAW 371 (MAD)

Valliammal v. Maha Vishnu

2022-02-09

S.S.SUNDAR

body2022
JUDGMENT : (Prayer: Second Appeal preferred under Section 100 of CPC against the decree and judgment dated 04.02.2019 of the learned Principal Subordinate Judge, Vellore in AS.No.67/2017 confirming the judgment and decree dated 06.09.2017 of the learned Principal District Munsif, Vellore in OS.No.373/2008.) 1. The plaintiff is the appellant in the present Second Appeal. As against the concurrent judgments and decrees of the Courts below, the plaintiff who has filed the suit in OS.No.373/2018, has preferred the above appeal. 2. It is the case of the plaintiff that the suit property, namely, an extent of 39 cents out of 60 cents in S.No.129 in Kilvallam Village in Vellore Taluk, with reference to specific boundaries, is a property classified as “thoppu poramboke” belonging to the State Government. Based on the exclusive possession, the plaintiff has come forward with the suit for permanent injunction as against defendants 1, 2 and 7 to 13 restraining them from interfering with their possession and for permanent injunction restraining defendants 3 to 6 from evicting the plaintiff otherwise than due process of law. 3. The suit was contested by the 2nd defendant contending that the suit property is not a thoppu poramboke land, but a channel poramboke, which is not in the possession of the plaintiff. It is stated by the 10th defendant in the written statement that the 10th defendant is in possession and enjoyment of an extent of 10 cents of poramboke land adjoining her property and that she had also prescribed title by adverse possession as against the Government or anyone. It is further stated that the Government is issuing ‘B’ Memo as the plaintiff has raised rosewood trees, vengai trees, mango trees and coconut tress etc. 4. The 2nd defendant in his written statement stated that the plaintiff was never in possession of the property by her own showing that she had paid kist upto 1995 only. It is also contended by the 2nd defendant that the suit property is a channel poramboke and that it was classified as such in all the revenue records. The possession and enjoyment of the plaintiff is specifically disputed by the 2nd defendant. It is contended by the 2nd defendant that due to ill-will against defendants 1 and 2, the suit has been laid against them. The 2nd defendant was the then President of Kilvallam Village/3rd defendant herein. The possession and enjoyment of the plaintiff is specifically disputed by the 2nd defendant. It is contended by the 2nd defendant that due to ill-will against defendants 1 and 2, the suit has been laid against them. The 2nd defendant was the then President of Kilvallam Village/3rd defendant herein. Therefore, the written statement filed by the 2nd defendant appears to be on behalf of defendants 2 and 3. 5. The Trial Court, after considering the pleadings and evidence found that the plaintiff has not proved her possession. Since the revenue officials were sending notices to one Kullammal, mother of the plaintiff, under the Tamil Nadu Land Encroachment Act, 1905, it is found by the Trial Court that the plaintiff has not proved her possession beyond 1995. Though it is admitted that the plaintiff is having her land adjacent to the suit property, the Trial Court specifically rendered a finding that the plaintiff has not proved her possession or enjoyment over the suit property at the time of filing the suit. Since the suit property is a water body classified as channel poramboke, the Trial Court found that the plaintiff is not entitled to the equitable relief of permanent injunction as against the defendants. The Trial Court also directed to remove the encroachments and obstructions in the channel situate in S.No.129. 6. Aggrieved by the findings of the Trial Court, the plaintiff preferred an appeal in AS.No.67/2017 on the file of the learned Principal Subordinate Judge, Vellore. The Lower Appellate Court also confirmed the judgment and decree of the Trial Court holding that though the possession of the plaintiff’ was not established by documents as the documents Exs.A1 to A23 which are only proceedings initiated against the plaintiff’s mother till 1988. The other documents are not relating to suit property. 7. The Lower Appellate Court specifically found that the documents Exs.A1 to A23 establishes the fact that the plaintiff’s mother by name Kullammal, was in possession of the property till the year 1988 and that no document was produced by the plaintiff to prove her possession beyond 1988. The other documents are not relating to suit property. 7. The Lower Appellate Court specifically found that the documents Exs.A1 to A23 establishes the fact that the plaintiff’s mother by name Kullammal, was in possession of the property till the year 1988 and that no document was produced by the plaintiff to prove her possession beyond 1988. Apart from finding that the plaintiff has not proved her possession, the Lower Appellate Court also held that the relief of permanent injunction can be granted only if the plaintiff proves her lawful possession and that the decree for injunction cannot be granted in respect of a water body that is vested with the Government merely because the land had been encroached by the defendants. Aggrieved by the judgment and decree of the Lower Appellate Court, the present Second Appeal is preferred by the plaintiff. 8. The learned counsel for the appellant, in the course of argument, admitted that the suit property which is in S.No.129, is the property belonging to the Government. Though the plaintiff described the property as a thoppu poramboke, it is contended by the learned counsel for the respondents that the suit property is a channel poramboke, namely, a water body. Except documents Exs.A1 to A23, no other document is produced by the plaintiff to prove her possession. Exs.A1 to A23 are notices showing proceedings initiated by the authorities of the Government under the provisions of the Tamil Nadu Land Encroachment Act, 1905. Though the document Ex.A23 bears no date, the last recent notice that was issued under Ex.A22 is dated 10.11.1988. The said notice is issued under Section 7 of the Tamil Nadu Land Encroachment Act, 1905. All other documents are relating to other lands in respect of which the plaintiff claimed title. Therefore, the documents filed by plaintiff is not helpful to prove her possession as on the date of suit. 9. The suit came to be filed in the year 2008. When a person wants to get permanent injunction in respect of a Government pormaboke land against the third party, he/she should plead and prove that he/she is in lawful possession of the suit property as on the date of filing of suit. In the instant case, the plaintiff has not proved her actual physical possession as on the date of filing of the suit. In the instant case, the plaintiff has not proved her actual physical possession as on the date of filing of the suit. This Court cannot interfere with the findings of fact in Second Appeal. 10. The suit property is proved to be a channel poramboke, namely a water body, the existence of which is required in the interest of public. Despite this Court exercising its jurisdiction under Article 226 of the Constitution of India, issued several directions against the State for removal of encroachment so that the water bodies should be restored for the benefit of public, several instances of encroachments is reported. 11. In such circumstances, this Court is unable to find any reason to justify grant of equitable relief of permanent injunction. Having regard to the specific findings of the Courts below on facts, this Court is unable to find substance in any of the substantial questions of law raised by the appellant/plaintiff. 12. In the result, the Second Appeal is dismissed with cost.