ASSISTANT DIVISIONAL ENGINEER Vs. K.R. NATARAJAN

JUDGEMENT

(1.) THIS second appeal is focussed by the original defendants, animadverting upon the judgment and decree 8.9.2006 passed in A.S.No.81 of 2002 by the Sub Court, Kallakurichi, confirming the judgment of the trial Court, namely, the III Additional District Munsif, Kallakurichi, in O.S.No.473 of 1997, which was a suit for permanent injunction, so as to restrain the defendants from demolishing any portion of the house property including the balcony and two sunshades described in the schedule of the plaint. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court.

(2.) A summation and summarisation of relevant facts, which are absolutely necessary and germane for the disposal of this second appeal, could be portrayed thus, in view of the fact that both the Courts below elaborately detailed and delineated the relevant facts in their respective judgments. (a) The plaintiff filed the suit O.S.No.473 of 1997 seeking the following relief: "to pass a decree for permanent injunction restraining the defendants from demolishing any portion of the house property including the balcony and two sunshades described in the schedule to the plaint. . . . ." on the main ground that the defendant officials had attempted to demolish a portion of his property as though it is under encroachment of the public road. The defendants entered appearance and filed the counter contending that the encroachment made by the plaintiff was detrimental to the general public. (b) On the plaintiff's side one K.R.Natarajan was examined as P.W.1 and Exs.A.1 to A.8 were marked. On the defendants' side one Ramanathan was examined as D.W.1 and no document was marked on their side. (c) Ultimately, the trial Court decreed the suit; as against which, the defendants preferred appeal for nothing but to be dismissed by the appellate Court, confirming the judgment of the lower Court. Animadverting upon the judgment of both the Courts below, this second appeal is focussed by the defendants on various grounds.

(3.) THE substantial questions of law as suggested by the defendants in the memorandum of appeal would run thus: "A. Is not the suit filed by the respondent barred under Section 14 of the Tamil Nadu Land Encroachment Act 1905? B. Is an encroacher entitled to any relief much less in the nature of mandatory injunction that too against the Government? C. Whether the Courts below is correct in decreeing the suit only on a finding that the appellant (defendant) has not proved his case ignoring the basic principle of law that the burden of proof shifts on the should of defendant only if the plaintiff proves his case -