LAWS(MAD)-2004-11-144

R VIJAYALAKSHMI Vs. P P R HARIHARAN

Decided On November 01, 2004
R.VIJAYALAKSHMI Appellant
V/S
P.P.R.HARIHARAN Respondents

JUDGEMENT

(1.) THE above writ appeal has been preferred against the Order dated 17. 08. 2001 made in Writ Petition No. 5940 of 1995 by the learned Single Judge of this Court thereby an application filed by the petitioner individual, praying to issue a Writ of Mandamus, directing the respondents 1 and 2 to take necessary action under the provisions of the Tamil Nadu Land Encroachment Act (III of 1905) to clear the encroachments and to remove the huts over an extent of about 3000 sq. ft. Of poromboke land stretching from East to West to an extent of 160 feet in length situate between the Villiwakkam Red Hills Road at Northern side and the petitioner residential house in No. 9, Red Hills Road, villiwakkam, Madras. 49 and the passage at the southern side and the learned Single Judge on the above writ petition has been ordered directing the respondents to remove the unauthorised encroachers within eight weeks from the date of receipt of production of the copy of the order.

(2.) AGGRIEVED, the third party-appellant on leave by this Court, has come forward to prefer the above appeal on grounds such as, that the learned Single Judge should have seen that the writ petition is abuse of process of law and the writ petitioner had mischievously failed to implead the proper and necessary party to the proceeding; that the learned Judge should have appreciated that the occupation of the appellant is anterior to that of the writ petitioner and she had put up a pucca structure and had the building assessed; that the learned Judge should have directed the first respondent to disclose the nature of his right to the property; that the first respondent is an inter-lopper and has no right to the property that he is holding; that further, he had encroached upon the 'eri channel' and that the first respondent has no right to accuse the occupants of S. No. 344 as encroachers; that the first respondent had pleaded a false case as if the public is affected by the construction of the property by the petitioner; that the claim of the first respondent is fraudulent and mischievous; that there exists a 40 feet road and the appellant's property is assigned Door No. 12, South Red Hills Road, and this property had been constructed by her father and the assessment was also made by the Corporation of Madras as early as in 1957; that the respondents 2 to 5 are attempting to remove the structure put up by Jayarama Reddy, the father of the appellant and inherited by the appellant on his death; that the respondents 2 to 6 have issued a notice on 25. 09. 2001 and served on the appellant on 09. 11. 2001, calling upon the appellant to remove the alleged encroachment; that the appellant has perfected her title, and right, and the respondents 2 to 6 cannot seek to have the construction removed particularly, themselves having assessed to the property; that the proceedings of the respondents is against the ruling reported in 2001 All India High Court Cases 1921; on such grounds, the appellant would ultimately pray to set aside the order of the learned Single Judge made in Writ Petition No. 5940 of 1995 dated 17. 08. 2001, as illegal, incumbent, irregular and without jurisdiction.

(3.) TODAY when the above writ appeal was taken up for consideration before this Court, the learned counsel appearing on behalf of the appellant would submit that the judgment of the Hon'ble Apex Court delivered in Government of Andhra Pradesh v. Thummala Krishna Rao and another (AIR 1982 SUPREME COURT, 1081) wherein the learned counsel appearing for the appellant would point out the following passage.