S SUBRAMANIYAN AND CO Vs. STATE OF TAMILNADU

JUDGEMENT

(1.) THE plaintiff in O.S. No. 541/81 before the District Munsif, Poonamallee is the appellant in the Second Appeal. It filed the said suit for declaration of title and injunction in respect of the suit property of total extent of 2 acres 53 cents in S. Nos. 167 and 168 in Koyambedu Village, Saidapet taluk on the following averments. THE appellant purchased the property from one Chellammal under a registered sale deed dated 25.3.1964. THE said land along with the adjacent land belonging to the same owner had been used as a brick field for oer 3opurcas b the appellant. THE top soil to a depth ranging from 6 feet to 10 et had been removed for making bricks and in that process, the old field ridges S. N67 from 168 as also the ridges of the internal sub-divisions had become obliterated. THE appellant had measured the: property and arranged for a plan to be annexed to the sale deed for correct identification. THE appellant had constructed some buildings on the land for industrial use and the vacant space had been used as a stockyard for the materials required for the business of the appellant. THE whole area was enclosed by a barbed wire fence put up by the appellant firm on the north, south and east and by a fence put by the neighbour on the west. THE appellant came to know that in the re-survey map of S. No. 167 a channel had been shown as flowing along with the Western and the southern boundaries in an extent of 32 cents and the same had been sub-divided as S. No. 167/3. Though the channel might have been in existence long time back it had not been used for over 50 years and it must be deemed to have been abandoned and the pattadars owning lands on other side of the 2 abandoned channel had converted their lands into brick fields and annexed the channel bed also to their lands with the approval of the then land holder. THE channel had thus gone out of existence long before the village was taken over by the Government in 1952 under the Estates Abolition 26 of 1948. THE appellant applied to the Revenue authorities for the grant of patta in respect of 32 cents in S. No. 167/3 on the ground that the classification of the land as channel poramboke in the settlement was an apparent error because the channel had gone out of existence more than 40 years prior to the filing of the suit and the channel had become merged with the patta lands on either side and had been in uninterrupted private possession for more than 40 years by the appellant and its predecessors-in-title openly to the knowledge of the Government. THE appellant thereafter caused a notice to be issued to the respondent Government on 25.10.1976 under Section 80 C.P.C. claiming recognition of its right to the land and issue of patta for the same. THE respondent Government rejected the claim by communication dated 23.5.1977.

(2.) IN April 1978, the appellant received a notice issued by the Estate Revenue INspector, Saidapet under Section 7 of the Land Encroachment Act, 1905 calling upon the appellant to show cause against levy of assessment and penalty for the alleged unauthorised occupation of 30 cents in S. No. 167/3. A suitable reply was sent by the appellant on 24.4.1978 asserting its title to the land on the ground of uninterrupted private occupation from long before the village was taken over by the Government and pointing out that any action under the Land Encroachment Act, 1905 would be illegal when the land had never been reduced to the possession of the respondent Government after the village was taken over under the Abolition Act. The land had become indistinguishable from the patta land on either side by its top soil having been removed along with the soil of the adjacent lands and used for making bricks by the predecessor in title of the appellant. The respondent Government had not exercised any right over the land nor taken any steps to demarcate it to distinguish it from the adjacent land on either side. It was only after the appellant firm applied for patta of the land that the authorities seemed to have discovered that in the Survey Map S. No. 167/3 had been shown as a channel. INstead of taking steps to have the error rectified, the respondent Government was refusing to recognise the private occupation of the land. The classification of the land as poramboke in the revenue accounts was incorrect and in the absence of an express injunction from the Court, there was danger of the authorities resorting to action under the Land Encroachment Act, 1905 against the appellant by levying penalty and threatening eviction which would be illegal. The appellant was a bonafide purchaser for value without notice of the property having been a poramboke by any demarcation or otherwise, and had secured an indefeasible right by prescription and therefore the appellant was entitled to the declaration and injunction prayed for.

(3.) THE learned Government Pleader arguing contra submitted that the suit property was in S. No. 167/3 and the same did not find a place in the plaint schedule. THE plaintiff had not purchased S. No. 167/3 at all. THE learned Government Pleader also referred to the oral evidence on behalf of the plaintiff to the effect that S. No. 167/3 did not belong to Nallammal. THE learned Government Pleader also submitted that the plaintiff/appellant had not established adverse possession.