RAJAPALAYAM MUNICIPALITY Vs. KARUPPIAH

JUDGEMENT

(1.) THIS second appeal has been directed against the decree and judgment in A.S.No.85 of 1998 on the file of the Principal District Judge, Srivilliputhur, dated 4.12.1998. This second appeal has been preferred against the concurrent findings of the Courts below. The 2nd defendant in O.S.No.380 of 1992 on the file of the Additional District Munsif, Sivilliputhur, who has lost his defence before the Courts below, is the appellant herein.

(2.) THE short facts of the amended plaint relevant for deciding this appeal are as follows: The plaint schedule property is 'Vandi Poramboke', which is in possession and enjoyment of the plaintiff's community from the year 1932 onwards. The plaintiff has constructed a Mariamman Koil and a Pillayar Koil in the plaint schedule property besides constructing seven shops therein. The plaintiff's community is paying tax and also had obtained electricity connection for the temples and also for the said seven shops, which are situated in the plaint schedule survey number properties. The 2nd defendant has also issued a certificate dated 27.1.1992 in which it is clearly stated that a shop situated in the suit property absolutely belongs to the plaintiff's community. Suddenly on 15.7.1992 the 2nd defendant with his men and agents came to the suit property and stated that the suit property belongs to the 2nd defendant and the plaintiff had encroached the suit property and that they are going to demolish the shops and temples situated in the suit property. The plaintiff along with his community people met the 2nd defendant and showed the records to prove that the suit property belongs to them. The 2nd defendant never bothered to look into those records. The 2nd defendant issued notice to the plaintiff dated 16.7.1992 asking the plaintiff to remove the building situated in the suit property and also made an attempt with his men to demolish the shops and temples. Due to the timely intervention of the plaintiff with his men had prevented the 2nd defendant from demolishing the buildings. The plaintiff has spent more than Rs.1 lakh for constructing the buildings in the suit property. Even assuming without admitting that the plaintiff has not prescribed title by adverse possession, the settled proposition of law is that the possession of the suit property cannot be disturbed except under the due process of law. Without following the procedure the defendants are now attempting to demolish the buildings in the plaint schedule property. Hence, the suit for bare injunction.

(3.) ON behalf of the 1st defendant no separate written statement was filed before the trial Court. The 2nd defendant in his written statement would contend that the suit without a notice under Section 80, C.P.C. or under Section 350 of Tamil Nadu District Municipalities Act is bad in law. The plaint schedule property vested with Rajapalayam Municipality, which is being used by the public of Rajapalayam without any interruption. All of a sudden the plaintiff's community encroached the plaint schedule property and begun to construct a compound wall even without getting any licence or permission from Rajapalayam Municipality and also the plaintiff has illegally put up thatched shops and leased them to various persons inspite of Municipality's strong objections. Rajapalayam Municipality prosecuted the Nattanmai of plaintiff's community for the unauthorised constructions and for encroachments. The Nattanmai also admitted the offence and paid the fine of Rs.50/ - in S.T.C.No.2798 of 1990 on the file of the Judicial Magistrate No.III, Srivilliputhur. The plaintiff also obtained electricity connection without the consent of the Municipality through political pressures. Any buildings constructed unauthorisedly, without licence of the Municipality, will be assessed first by the Revenue Department of the Municipality and if the Municipality found later that the buildings were constructed unauthorisedly in the Municipality land or road, it will take steps to demolish the same by due process of law. The plaintiff's community also approached the Government for issuance of patta in respect of the plaint schedule property, The Government in turn had referred the same to the Municipality for issuance of patta to the plaintiff's community and rejected their claim. The alleged certificate issued by Rajapalayam Municipality was in respect of the assessment of tax by the Rajapalayam Municipality. It does not confer any title to the plaintiff. Inspite of the objections raised by the defendants for putting up construction in the plaint schedule property by the plaintiff, the plaintiff has put up pucca construction in the encroached area. The Commissioner of Rajapalayam Municipality issued a notice on 16.7.1992 under Section 182 of Tamil Nadu District Municipalities Act. After receiving the above said notice, the plaintiff filed the suit against the Commissioner and obtained ex parte injunction against the Commissioner by mis -representing the facts. After getting ex parte injunction, the plaintiff has put up a pucca building in the middle of the street with the help of local politicians. An Advocate Commissioner was appointed by the Court, who had inspected the suit properties on 21.8.1992 and has also noted the stage of the new constructions in his report. The plaintiff's community encroached the public municipal road and constructed buildings after obtaining ex parte injunction in which they have no title at all. Hence, the suit is liable to be dismissed with costs.