The case of the petitioner is that he is the owner of the property comprised in Survey No.755/77 in Madambakkam Village, Tambaram Taluk, Kancheepuram District measuring about 3010 sq.ft.
2. Since the second respondent herein had obstructed the petitioner from putting up a compound wall, he had given a complaint to the respondent police seeking for protection. In view of the non consideration of the representation, the present petition has been filed.
3. According to the learned counsel for the petitioner, he had purchased the property in the year 1991 and since certain obstruction were raised by the second respondent herein with regard to his possession, he had filed the suit in O.S.No.157 of 1997 seeking for permanent injunction. After due trial, the suit came to be decreed on 25.08.2003 as prayed for. As against the same, the second respondent herein has filed an appeal in A.S.No.66/2003 which also came to be dismissed. Pursuant to the decree of the Civil Court, the revenue records namely 'A' Register, property tax receipt, Adangal, patta and Chitta were also transferred in the name of the petitioner herein in connection with the subject property.
4. Since the dispute was continuing, the petitioner herein had filed a complaint before the first respondent police on 11.12.2012 and on the direction of the Inspector of Police, the Tahsildar, Tambaram also conducted an enquiry and by a report dated 11.01.2013, Tahsildar of Tambaram had also clarified the fact that the subject property is in possession of the petitioner herein. The said report was passed on the basis of the survey conducted by the Assistant Revenue Inspector on 07.01.2013.
5. In the meantime, the second respondent herein had filed W.P.No.12260 of 2016 seeking for providing electricity supply service connection in his favour. According to the learned counsel for the petitioner, the Survey Number of the property for which the electricity service connection was sought for, was suppressed in the affidavit filed in support of the writ petition. Consequently, the second respondent, without impleading the petitioner as party respondent, has filed the writ petition. Pursuant to the same, this Court by an order dated 02.08.2016 passed in W.M.P.No.16557 of 2016 directed the concerned Electricity Department to seek for clarification from the Tahsildar, Tambaram and take further action. Pursuant to the orders of this Court, the Tahsildar had also given a letter dated 30.12.2016 affirming that the property in Survey No.755/77 is in the possession of the petitioner herein. It is in this background that the petitioner had given a complaint to the first respondent seeking for police protection, since his attempts to put up the compound wall were still resisted by the second respondent.
6. The learned counsel appearing for the second respondent on the other hand opposed the submissions made by the learned counsel appearing for the petitioner and stated that the second respondent is in physical possession of the subject property for more than 50 years. According to the learned counsel for the second respondent, the petitioner herein is a trespasser in the subject property. The learned counsel further submitted that the petitioner is not in physical possession of the property.
7. I have given my careful consideration to the submissions made by both the counsel. Pending the criminal original petition, this Court by an order dated 07.06.2017 appointed two Advocate Commissioners for the purpose of finding out the physical features of the land comprised in Survey No.745/2B and 755/77 in Madambakkam Village. Pursuant to the orders, the Commissioners had physically verified the subject property and the inspection was done with the help of the Taluk Chief Surveyor and Revenue Inspector. It is also seen that both the petitioner, as well as the second respondent, were present at the time of such inspection in the presence of the Revenue Authority. On the basis of the survey, the learned Advocate Commissioners had identified the subject property and have filed a report dated 26.10.2017 before this Court with a detailed sketch, evidencing clear demarcations of Survey Nos.755/77 and 745/2B3A1B with their respective measurements and identifications. The learned Advocate Commissioners had also relied on the certified copy of the FMB sketch provided by the Deputy Inspector of Police and also with the help of 'A'register extract during his inspection.
8. While the learned counsel for the petitioner does not have any objection to the Advocate Commissioners' report, the learned counsel for the second respondent had filed his objections stating that the petitioner herein is a trespasser in the said property. Various objections were raised touching upon the facts of the case. However, while opposing the Advocate Commissioners' report, it is stated that the report is incorrect, since the petitioner is not in physical possession of the property. Another objection to the report was that there is an existing asbestos structure measuring 10/10 which is evidenced in the Commissioners' report and therefore learned counsel for the second respondent submitted that his possession is evidenced in the report itself. I do not find any justification in the objections at all since, the same has been carried out in the presence of the revenue officials and on the basis of revenue records. Therefore identification of the property, demarcation of its boundaries and the sketch has been properly made. The objections raised by the second respondent against the Advocate Commissioners' report need not be further considered for the simple reason that, the question as to whether the shed has been put up in the subject property or who is in the possession of the subject property, is a matter to be decided after due trial, by a civil Court. What has to be looked into for the present is as to whether the petitioner has made out a prima-facie case to establish his property or not. In this regard it is seen that the petitioner has obtained orders of permanent injunction from the Civil Court by establishing that he is in possession of the property. The said decree has become final in view of the fact that the second respondent's appeal also came to be dismissed. The entire revenue records stands in the name of the petitioner herein. The second respondent's attempt to file a writ petition without mentioning the Survey number and attempting to obtain electricity service connection is also misconceived. The report of the Tahsildar, pursuant to the order of this Court dated 02.08.2016 also affirms the petitioner's possession. In the absence of any material to show that the second respondent is in possession of the property, I do not find any reason as to why the petitioner should not be permitted to put up the compound wall in the property, in view of the prima-facie evidence available in his favour.
9. The learned Additional Public Prosecutor submitted that if any specific direction is granted by this Court directing them to extend the protection, the same will be complied with.
10. In the result, the petitioner is entitled to succeed and hence, the Criminal Original Petition stands allowed. Consequently, the petitioner is permitted to approach the first respondent police with a fresh application seeking for protection for the purpose of putting up the compound wall, in the subject property. On receipt of such application, the first respondent shall positively consider the application and extend the necessary police protection to enable the petitioner to put up the compound wall in the subject property namely Survey No.755/77 in Madambakkam Village, Tambaram Taluk, Kancheepuram. Such a representation made by the M.S.RAMESH,J.
dpq petitioner may preferably be considered on the same day.
07.11.2017 Index:Yes/No Internet: Yes/No dpq To
1. The Inspector of Police, S 15, Selaiyur Police Station, Selaiyur, Chennai 73.
2. The Public Prosecutor High Court, Madras.
Crl.O.P.No.3216 of 2017