The appellant herein is the plaintiff in the suit for injunction in respect of suit properties composed of patta land and natham porambokku. The defendants are the District Collector, Thasildar, Block Development Officer and the Panchayat President of the suit village.
2. The case of the appellant as found in his plaint is that, she purchased 0.02.0 Hectare of land in S.No.351/2 on 13.07.1995 from its owners namely Rajammal, Subramanian, Lakshmi and Rani. His vendors were in possession and enjoyment over the patta lands sold under the sale deed along with adjoining natham porambokku land described in the suit schedule. The plaintiff has put up a thatched shed in the porambokku land with heavy cost and had annexed the porambokku land with his patta land. The fourth defendant being the President of the village panchayat, he with ulterior motive instigated the other defendants 1 to 3 to forcibly evict him from the suit property, without due process of law. Hence, she issued notice to the defendants 1,2 and 4 on 7.06.2001. Inspite of notice, the defendants men attempt to enter upon the suit property to obliterate the suit property. Hence, the suit for permanent injunction.
3. The 4th defendant, in the written statement, contested the plaint averments as follows:- The plaintiff had purchased only 1/2 share in the patta land bearing S.No. 351/2 from its title holder. The claim over the entire 5 cents of patta land and the adjustant natham porambokku land are denied. The description of suit property itself is not correct. The natham porambokku in S.No.726/2 was neither in possession of the plaintiff's vendors nor conveyed to the plaintiff by his vendor as averred in the plaint. The land in S.No.726/2 is a vacant land. Being a natham porambokku, the Government is its owner. The panchayat resolved to put up a public lavatory in that land. The plaintiff being the adjustant pattadar made objection for it on the ground of nuisance. When the panchayat wants to proceed further to provide hygienic public convenience, the plaintiff had encroached upon the natham land and put up compound wall, after the visit of Advocate Commissioner.
4. Before the Trial Court, the plaintiff examined 3 witnesses and marked 7 exhibits. On behalf of the defendants, 2 witnesses and 5 exhibits were marked. The Advocate commissioner report and sketch are taken as Exs.C-1 and C-2. Considering these evidence, the trial court allowed the suit.
5. Aggrieved by it, the fourth defendant has preferred appeal in A.S.No.4/2009 before the Subordinate Court, Attur. The first appellate Court after reappriciating the evidence, allowed the appeal. Thus, having lost the suit in the first appellate Courts, the plaintiff has preferred this second Appeal.
6. At the time of admitting the second appeal, this court has formulated the following Substantial Questions of Law for consideration:
“(1)Whether the first appellate Court's finding that non-mention of exact extent of suit schedule property was fatal is correct?
(2) Whether the finding of the first appellate Court that the plaintiff approached the Court with unclean hands and therefore he was not entitled to the equitable relief of injunction is correct?
(3) Whether the judgment of the first appellate Court is vitiated by non-application of the correct principles of law and failure to appreciate the entire materials on record?”
7. The learned counsel for the appellant submitted that, even an unauthorised occupant of the public property cannot be evicted without due process of law, the alleged resolution of the panchayat to put up a public lavatory in the suit property is not in accordance to Section 84 of the Tamilnadu Panchayats Act, 1994. According to the learned counsel for the appellant, the trial Court finding that the four boundaries of the suit property though not provided in the plaint, in the commissioner's report, boundaries are provided with extent to grant relief, is correct. To him, the trial Court has rightly pointed out that the 4th defendant has failed to provide the exact location of the proposed public lavatory and the resolution of the Panchayat is very vague. The 4th defendant having failed to prove its case that the suit land is vacant and the 3rd defendant Block Development Officer has cleared the resolution, the suit rightly decreed by the trial Court, but the first appellate Court dismissed the suit overlooking the above facts.
8. Per contra, the learned counsel appearing for the respondents submitted that the lower appellate court allowed the appeal, because of the perversity in the trial Court judgment. It has pointed out the legal and factual infirmity in the trial court judgment for its conclusion. The plaintiff, after filing the suit, had trespassed into the government land illegally. She cannot have any right to continue the enjoyment by way of a restrained order obtained by fraud and mis- representation. The lower appellate Court has rightly dismissed the suit. Therefore, there is no question of law involved in this appeal.
9. The case of the plaintiff/appellant as found in the notice marked as Ex.A-7 as well as in the plaint is that, she purchased 0.02.0 hectare (5 cents) of land in S.No.351/2 along with 1.5 cents of porambokku land in S.No.726/2 vide sale deed dated 13.07.1995. However, the perusal of the said sale deed, which is marked as Ex.A-1 reveals that the plaintiff has purchased only 1/2 share in 0.02.0 hectare (2 1/2 cents) of land in S.No. 351/2 along with the easmentary right of way. The remaining half share is retained by the vendors. Patta is also issued jointly in the name of the plaintiff and her vendor. Whereas the plaint schedule for the relief of injunction is for entire 5 cents of land in S.No.351/2 and for 1 1/2 cents of land, which lays in S.No.726/2. In additions, she has also sought injunction for a third category of property describing 'the entire natham porambokku' without extent or boundaries or Survey number.The description of properties as found in the suit schedule is extracted hereunder:
“nryk; khtll k;/ Mj;J}h; tllk/ rpWthrN:h; tlf;F fpuhkk;. gl;lh be/1389 r/be/351-2 tp!;jPuzk; 0/02/0 bcwf;nlh; kw;Wk; rh;nt be/726-2 tp!;jPuzk; 1/5 brd;l; epyk; g{uht[k;/ nkw;go epyj;jpYs;s bjd;id Xiy Foir nkw;go brhj;Jf;F brf;Fge;jp tpguk;. fpHnky; bry;Yk; mz;zhefu;. rhiyf;Fk; bjw;F bghparhkp. fl;lg[sp Tiu tPlLf;Fk; nkw;F. itahg[hp fhyp kidf;Fk; fpHf;F. GhdpKj;J fhypkidf;Fk; tlf;F. ,jd; kj;jpapy; cs;s epyk; g{uht[k;. kw;Wk; ej;jk; g[wk;nghf;F epyk; g{uht[k;. nkw;go brhj;Jf;fSf;Fz;lhd khK:y; tHpeil jlghj;jpak;. Rfy <!;bkd;l;
chpikfSk;. ,j;jhth brhj;Jf;F rk;kej g;gll J/ nkw;go brhj;J rpWthr;N:h; tlf;F fpuhkk; g"r haj;jpw;F clg; ll J/”
10. Surpisingly, the trial court was some how able to identify the suit property with the above description and had generously granted declaratory relief along with injunction decree though the plaintiff has sought only injunction. Even though the plaintiff admittedly had no title over the entire property as described in the plaint, the trial Court recklessly granted the relief of declaration. The claim of the plaintiff is falsified through her own document Ex.A-1 sale deed. For the said reasons, the lower appellate court has reversed the finding of the trial court pointing out that with title for only 2 1/2 cents , the plaintiff not only claims declaration for 5 cents and in addition possessory right also over 1 1/2 cents of prombokku land without any title. Having come to court with unclean hands by furnishing wrong description of property in the plaint, the lower appellate Court depriving the co-owners, who are not a party in the suit rightly held that the plaintiff is not entitled for the relief of injunction.
11. Apart from the above reasonings given by the lower appellate court for the reversal of the trial court judgment, this Court also finds that, the trial court judgment is liable to be set aside for its failure to follow the mandatory provision of Civil Procedure Code and for disbelieving a witness considering the character, which is irrelevant under law of evidence.
12. The suit is filed against the District Collector and public Officers in Government. No leave to sue for dispensing the satutory notice under Section 80(2) of the Civil Procedure Code obtained. The notice marked as Ex.A-7 is not under Section 80 of the Civil Procedure Code. Even if it is assumed to be under Section 80 of the Civil Procedure Code, the suit is filed before the expiry of two months from the date of notice. Records show that Ex.A-7 is dated 07.06.2001. No evidence to show it was served on the defendants, besides, the suit is laid on 13.06.2001 within a week from the date of notice. It appears, the trial Court is ignorant of this statutory provision. Further, the trial court has rejected the evidence of DW-1 for the reason that he was accused in a criminal case and his name is in the History sheet kept in Thalaivasal Police Station. This again only discloses his ignorance of Section 52 of the Evidence Act,1872.
13. For the reasons stated above, this Court finds no substantial question of law to interfer with the findings of the lower appellate court. Hence, the Second Appeal is dismissed. In the result, the suit in O.S.No. 161 of 2001 dated 30.01.2009 on the file of the District Munsif Court, Attur is dismissed with costs throughout. Consequently, connected Miscellaneous Petitions are closed.
15.02.2017 Index:Yes/No Internet:Yes/No ari To The Subordinate Court, Attur. The District Munsif Court, Attur.
Dr.G.Jayachandran, J.
ari
S.A.No.1289 of 2009
15.02.2017
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