V R PARTHASARATHY Vs. BOOMINATHAN

JUDGEMENT

(1.) THIS Appeal Suit has been preferred against the Judgment and Decree in O. S. No. 7811 of 1996 passed by the II Additional City Civil Court, Chennai. The plaintiff who has lost his case before the trial Court has preferred this appeal. The suit is for declaration that the plaintiff is the absolute owner of the suit property, for consequential injunction and for mandatory injunction to remove the fence put up by the defendant in the suit property.

(2.) THE short facts of the case of the plaintiff in the plaint relevant for the purpose of deciding this appeal sans irrelevant particulars are as follows:-The Assistant Commissioner of Urban and Land Tax Kundrathur, Chennai had initiated proceedings in respect of the suit property in RC. No. 3831/85a dated 27/28. 4. 1989 under the Tamilnadu Urban Land (Ceiling and Regulation) Act, 1976. Against this, the plaintiff had filed Writ Petition No. 6686/1989 to quash the proceedings and also sought stay of all further proceedings and the Hon'ble High Court had granted stay in W. M. P. No. 9602/1989 on 31. 05. 1989. The plaintiff came to understand that the defendants have encroached on the northern side of the proeprty by about 3384 sq. ft of land and put up a fencing by the end of July, 1991. Immediately, the plaintiff issued a notice dated 25. 07. 1991 to the defendants 1 and 2 and the same was returned with an endorsement 'left'. The encroachment made by the defendants 1 and 2 is illegal and is not authorised by law. Therefore, the plaintiff has comeforward with this suit for declaration of his title in respect of the suit property and also for permanent injunction restraining the defendants and their men, agent, servants from interfering with the peaceful possession and enjoyment of the suit property and mandatory injunction for removal of the fencing put up in the suit property.

(3.) THE defendants 1 and 2 in their written statement have stated that the Government of Tamilnadu has allotted the suit property to these defendants as per its order in G. O. Ms. No. 2202 Revenue Department, dated 22. 10. 1990 and the land was handed over to the 2nd defendant on 22. 05. 1991 and the 2nd defendant has paid the cost of the land. The 2nd defendant had been granted patta for the allotted land as early as 12. 06. 1991. It is further stated that as per the said G. O. , the Government of Tamilnadu has allotted 223 sq. mt in S. No. 100/3 in Virugambakkam Village, Madras-92, out of 750 sq. mt to the 2nd defendant. The allotted land was handedover to the second defendant on 20. 5. 1991 and since the 2nd defendant has paid the cost of the land, the plaintiff knows fully well about this allotment order. The 2nd defendant also paid necessary amount to the government being the value of the allotted land and 2nd defendant is in physical possession and enjoyment of the allotted land along with her own land in survey No. 100/5. The plaintiff ought to have impleaded Government as a party and therefore the suit is bad for non-joinder of necessary party. (Subsequently 3rd Defendant has been impleaded ). The first defendant has sent a detailed reply to the plaintiff's notice on 14. 08. 1991. The plaintiff is not the absolute owner of the suit property. These defendants do not know the stay granted in W. M. P. No. 99021 of 1989. These defendants have not encroached on the northern side of the property for about 3384 sq. ft of land and fencing by the end of July, 1991. These defendants do not encroach any portion in Survey No. 100/3. The fence has been put up at the land allotted to the second defendant. Since these defendants are in possession of the suit property, the suit for injunction is not maintainable. It is barred under the provisions of Tamilnadu Act 24/78. The Civil Court cannot go into the question about any matters or proceedings under the said Act. The possession of the defendants is in pursuance of an order passed by the competent authority under the said Act. The lawful possession of the defendants cannot be challenged in view of Section 35 of the said Act. Hence, the suit is liable to be dismissed with costs.