D VISHALAKSHI Vs. GOVT OF TAMIL NADU

JUDGEMENT

(1.) The plaintiff in O.S.No.1192 of 1989 on the file of the Additional District Munsif, Salem who is also the appellant in A.S.No.23of 1998 on the file of the Principal Sub Judge, Salem has filed the present second appeal.

(2.) The appellant/plaintiff filed the suit in O.S.No.1192 of 1989 before the II Additional District Munsif, Salem seeking for a declaration of her title to the suit 'A' schedule property and for a permanent injunction restraining the defendants from interfering with her peaceful possession and enjoyment over the suit 'A' schedule property. She has also prayed for declaring that she has perfected her title in respect of 'B' schedule property. Suit 'A' schedule properties are patta lands situate in survey numbers 89/1, 89/3 and 92/4 of Neikarapatty Village, Salem and they were purchased by the plaintiff's husband Duraisamy Nadar. After the death of Duraisamy Nadar, the appellant/plaintiff has been in possession and enjoyment over the said property by raising crops and also paying land revenue. According to the appellant, there were 19 coconut trees and other trees in suit 'A' schedule property.

(3.) The 3rd respondent/3rd defendant filed a written statement and the same was adopted by the respondents 1 and 2. In the written statement, it is contended that the lands in survey number 87 is a road poromboke land (government land) and on the east of the said land, there is a channel maintained by Public Works Department. According to them, there were 29 coconut trees in the government land and the water channel was renovated by Public Works Department and Revenue officials. It is also their contention that properties were measured and a 'B' memo was issued to the appellant/plaintiff. In fact, on an earlier occasion, a notice dated 18.10.1989 was issued under Section 8 of Act 1905 to the plaintiff by the defendants stating that the water channel and the road are essential for common usage and that supply of water for Poolavari, Chittanor, Neikarapatti Villages is only through the said water channel. The plaintiff was also issued a notice directing to remove the encroachment made by her in the 'B' schedule property. The notice issued under Section 6 and 7 of the Encroachment Act was refused to be received by the plaintiff and therefore, on 17.08.1989 and 09.09.1989, notices were affixed in the plaintiff's property and thereafter, the encroachment made by the plaintiff was removed. It is also their contention that the advocate commissioner did not measure the suit property with the help of FMB sketch and also without ascertaining the boundary stone. According to the respondents/defendants, the measurements made by the advocate commissioner cannot be accepted.