The Substantial Question of Law-2 is decided to the effect that the ratiocination adhered to by both the Courts below that only 13′ feet width of the land in the ‘B’ schedule property would be sufficient for the Plaintiff to have ingress and egress to his ‘A’ schedule property is not correct. 36.           The Substantial Question of Law-3 is that there is perversity in both the Courts below ignoring the fact that there is encroachment in the Pattai Poramboke which is to be retained as Pattai for the benefit of Village for ingress and egress is also in favour of the Appellant/Plaintiff. In the light of the above discussions, the Substantial Questions of Law are answered in favour of the Appellant/Plaintiff. The Judgment and Decree dated 29.08.2008 in A.S.No.13 of 2004 on the file of the learned Second Additional Sub Judge, Villupuram in confirming the Judgment and Decree dated 21.11.2003 in O.S.No.200 of 2002 on the file of the learned District Munsif, Villupuram is set aside as perverse.  In the result, this Second Appeal is allowed. The Judgment and Decree dated 29.08.2008 in A.S.No.13 of 2004 on the file of the learned Second Additional Sub Judge, Villupuram in confirming the Judgment and Decree dated 21.11.2003 in O.S.No.200 of 2002 on the file of the learned District Munsif, Villupuram is set aside. No costs.  03.06.2025 dh Index : Yes/No Speaking/Non-speaking order To 1.               The Principal District Munsif,    Villupuram. 2.               The Second Additional Sub Judge,    Villupuram. 3.               The Section Officer,    V.R.Section,     High Court, Madras. SATHI KUMAR SUKUMARA KURUP, J., dh Pre-delivery Judgment made in Second Appeal. No.102 of 2009   03.06.2025

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated  :  03.06.2025

CORAM:

THE HON’BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP

Second  Appeal. No.102 of 2009

Harikrishnan           … Appellant

-Vs-

1.  Elumalai (died)

2.  The State of Tamil Nadu    Repd by the District Collector,     Villupuram.

3.  Govindamma4. Parasuraman

5.  Parandhaman

6.  Vijayalakshmi

(R-1-Died, R-3 to R-6 are brought on record as L.R’s of the deceased/R-1 vide Court Order dated 31.08.2023 made in M.P.Nos.1 to 3/2009 in S.A.No.102/2009)               … Respondents

Prayer:– Second Appeal filed under Section 100 of Civil Procedure Code to set aside the Judgment and Decree in A.S.No.13 of 2004 on the file of the learned Second Additional Sub Judge, Villupuram dated 29.08.2008 in confirming the Judgment and Decree in O.S.No.200 of 2002 on the file of the learned District Munsif, Villupuram dated 21.11.2003.

                            For Appellant         :  Mrs.V.Srimathi

                            For Respondents     : R-1-Died

: Mr.T.Arunkumar

  Additional Government Pleader for R-2

: Mr. C.Prakasam for R-3 to R-6

J U D G M E N T

This Second Appeal has been filed to set aside Judgment and Decree dated 29.08.2008 in A.S.No.13 of 2004 on the file of the learned Second Additional Sub Judge, Villupuram in confirming the Judgment and Decree dated 21.11.2003 in O.S.No.200 of 2002 on the file of the learned District

Munsif, Villupuram.

2.               The brief facts are as follows:-

The Plaintiff filed a Suit seeking to declare the Plaintiff’s right of easement over the Suit “B” schedule property and to grant permanent injunction restraining the Defendant his men and agents or servants from interfering with the Plaintiff’s enjoyment of the ‘B’ Schedule proeprty; to grant mandatory injunction directing the Defendant to remove the obstructions constructions if any from the Suit ‘B’ schedule property or through the process of the Court and to direct the Defendant to pay the cost of this Suit on the main ground that in the ‘B’ schedule of the Suit properties, D-1-Elumalai was causing obstruction by putting up construction.  According to the Plaintiff, the ‘B’ Schedule property is a “Pattai Poramboke” land, which is being used by the Plaintiff for his ingress and egress to his ‘A’ schedule property.

3.               The said Elumalai/D-1 filed the written statement as well as additional written statement resisting the Suit, however admitting that the

‘B’ schedule property is a Pattai Poramboke and it belongs to the Government.  However, he struck a false note that he has been in possession and enjoyment of the ‘B’ schedule property to an extent of 20”x16” by paying penalty to the Government and that the Plaintiff is having no easementary right over the ‘B’ Schedule property.

4.               After hearing both parties, the learned District Munsif partly decreed and partly dismissed the Suit.  Aggrieved by the Decree granted by the learned Principal District Munsif, the Plaintiff had preferred the Appeal in A.S.No.13 of 2004.  After hearing both sides, the learned Second Additional Sub Judge, first Appellate Court confirmed the Judgment of the trial Court and dismissed the Appeal.  Therefore, the Plaintiff had come before this Court by filing this Second Appeal against the Judgment of both the Courts below in rejecting the rest of the claim of the Plaintiff by setting out various grounds.

5.               The learned Counsel for the Respondents submitted that the Second Appeal was disposed off by this Court as per Judgment dated

08.02.2013.  It was an ex-parte Judgment.  Therefore, they had filed

M.P.No.1 of 2014 seeking to condone the delay of 638 days in filing the Application to set aside the ex-parte Decree dated 08.02.2013 in S.A.No.102 of 2009.  M.P.No.2 of 2014 had been filed to set aside the exparte Judgment and Decree dated 08.02.2013 in S.A.No.102 of 2009 and M.P.No.3 of 2014 in this Second Appeal seeking to bring the legal heirs of the Respondent as Respondents in this Appeal.

6.   The learned Counsel for the Appellant submitted that the learned

Judge had passed Judgment on merits and it is not an ex-parte Judgment or Decree, it need not be set aside.

7.   From the records, it is found that the Respondent in M.P.Nos.1 to

3 of 2014 had filed counter objecting to the Petitioners in M.P.Nos.1 to 3 of 2014.  After hearing both parties, the then learned Judge of this Court had allowed all three Petitions, thereby setting aside the ex-parte decree. Also, the Registry was directed to carry out amendment in the cause title thereby impleading the legal heirs of the Respondent in this Second Appeal.  Therefore, this Court had directed the Appellant to argue this case on merits.

8.               The learned Counsel for the Appellant submitted that already they argued and it is also available on record.  Based on which, the learned Judge of this Court had allowed this Appeal on 08.02.2013.

9.               The learned Counsel for the Respondents relied on the discussions of the learned Judge of this Court in allowing this Second Appeal.

10.           The learned Counsel for the Appellant submitted that the

Appellant was the Plaintiff before the trial Court/learned Principal District Munsif, Villupuram.  The Plaintiff had filed the Suit seeking the declaration of the right of easement over the ‘B’ schedule property and permanent injunction restraining the Defendant his men or agents or servants from interfering with the Plaintiff’s enjoyment of the ‘B’ schedule property and also mandatory injunction directing the Defendants to remove the construction in ‘B’ schedule property.  The Suit was resisted by the

Defendants.  After full trial, the learned Principal District Munsif,

Villupuram by Judgment in O.S.No.200 of 2002 had partly decreed the Suit on the extent of 13 feet and dismissed the Suit for the remaining portion of ‘B’ schedule property.  The Advocate Commissioner’s report regarding the ‘B’ schedule property identifying the disputed property as GHIJ alone was decreed and the remaining portion was dismissed and the

Advocate Commissioner’s report and plan were ordered to be part of the Decree.  Aggrieved the Plaintiff had filed an Appeal in A.S.No.13 of 2004.

After hearing both parties, the learned Second Additional Sub Judge, Villupuram by Judgment dated 29.08.2008 dismissed the Appeal and confirmed the Judgment of the learned Principal District Munsif, Villupuram.  Aggrieved, the Plaintiff had preferred this Second Appeal seeking to set aside the partly dismissed by the learned Principal District

Munsif confirmed by the learned Second Additional Sub Judge,

Villupuram and to decree the Suit as prayed for.

11.           The learned Counsel for the Appellant invited the attention ofthis Court to the discussions of evidence and the Judgment of the learned trial Judge as well as the learned Appellate Judge and the learned Judge of this Court as per the Judgment dated 08.02.2013.

12.           It is the contention of the learned Counsel for the Appellant that the disputed property is a Pattai Poramboke which means it is for the Villagers to use it as a cart track as well as a pathway.  The Defendant before the trial Court was the encroacher of the property.  The Judgment of the learned Principal District Munsif that the Plaintiff cannot seek an injunction against the possessory title of the first Defendant was confirmed by the learned Second Additional Sub Judge, Villupuram which was discussed by the learned Judge of this Court while setting aside the Judgment of dismissal stating that Pattai Poramboke is meant for the common Villagers to use it as a pathway and encroachment has to be removed.

13.           The learned Counsel for the Appellant invited the attention of this Court to the observation of the learned Judge of this Court that the

Government Officials had slept over their power to evict the encroacher. They are conniving with the encroacher, thereby the Suit was decreed in the Second Appeal.

14.           Also, the learned Counsel for the Appellant submitted that the second Respondent cannot be heard in this case as he was served with a summons as he was alive and he did not come forward before this Court. After his death, impleaded Respondents sought to set aside the Judgment passed on merit as though it was an ex-parte decree and the Substantial Questions of Law raised by this Court were answered in favour of the Plaintiff before the trial Court.  The attempt of the Respondent seeking to set aside the Judgment of this Court as he was not heard cannot be considered by this Court as he had the opportunity of agitating his right when he was served with summons.  During his lifetime, the first Defendant did not appear before this Court.  The claim of the legal heirs of the first Respondent that this Court had passed ex-parte decree also cannot be accepted.  The learned Counsel for the Appellant reiterated the Judgment of the learned Judge of this Court dated 08.02.2013 is to be confirmed.  This Respondent’s submission seeking dismissal of this Appeal and thereby seeking dismissal of the Suit of the Plaintiff in O.S.No.200 of 2002 on the file of the learned District Munsif, Villupuram has no merit.

15.           The learned Counsel for the Respondents invited the attention of

this Court to the discussions of evidence by the learned District Munsif.

The relevant portion reads as follows:-

tHff;wp”u; Mizau; jd;Dila mwpf;ifahd eP/k/rh/M/2y; jhth ,lk; V. gp. rp. o vdW;k; mjid xlo; mike;Jss; rpwpa thaf;;fhy;. V/  ,. o. vg; vdW;k; g[wk;nghfF; ghijapy; thjpf;F 31 mo ePsk; 16.5 mo mfyjj;py; rPik XL nta;e;j khlLf; ; bfhll;if flo;apUg;gjhft[k;. tlf;nf thjpf;F brhe;jkhd epyk; ,Ugg;jhft[k; tha;ff;hiy xlo;athnw fpHfF; nkw;fhf 13 tPLfs; fll;gg;lLk;; 6 Fg;igfs; bfhll;g;glL; g[wk;nghfF; ,lk; Mf;fpukpg;g[ bra;ag;glo;Ug;gjhft[k; thjpapd; epyj;jpw;F bryy; tlf;nf 13 mo bfhzl; ghij xd;W

,Ug;gjhft[k;. mtt;Hpf;F bryy; fU’f;w;fshy; mLf;fgg;l;l ghyk; xd;W mikf;fg;gl;oUg;gjhft[k; ghijfF; fpHf;nf gpujpthjpahd VGkiyahy; gj[pjhf fll;gg;ll; Foir tPL ,Ug;gjhft[k;. nkw;nf gyuhkd; Foir tPL ,Ug;gjhf mwpf;if rku;gg;pff;g;gl;Lss;J/ nkw;go Mizaupd; mwpf;if kw;Wk; tiuglj;jpdg;o thjpapd; epyj;jpw;F bryy; 13 mo bfhz;l ghij ,Ug;gJ bjss;j; bjspthf tHf;fwp”u; Mizauhy; vLj;Jf; fhll;gg;lL;ss;J/ nkw;go 13 mo ghij K:yk; thjpapd; V mll;tiz brhj;jpw;F bry;yt[k;. thfd’f;s; bryy;t[k; vtt;pj ,ila{Wk ,Uf;fhJ vdW;k; mit nghJkhdjhfnt ,UfF;k; vd;gnj gpujpthjpapd; thjk; thjp jugg;py;. tHffwp”u; MizaUf;F kWgg;[ bjuptpjJ; Ml;nrgiz jhf;fy; bra;agg;lLs; s;J/

//////////// gp ml;ltiz brhj;jpy; thjp vj;jid mo J}uji;j eilghijahf thjpa[k;. thjpapd; Kdn;dhu;fSk; fle;j 20 MzLf; shf gadg;Lj;jg;glL; tej;hu;fs; vdg;jw;F thjp jug;gpy; Mjhunkh rhlr;pnah ,y;iy/  nkYk; thjp mjid jff; rhlr;p. Rhdw;htz’;fs; thapyhf epU:gpf;f jtwpajd; mog;gilapy;. thjpf;F jw;nghJ tHff;wp”u; go “V” mll;tiz brhj;Jf;F thjpapd; tPlo;w;F bryy; jw;bghGJ css; tHpeil ghij 13 mo nghJkhdjhf ,Ugg;jhy; “gp” ml;ltiz brhjJ; KGtJk Jag;g[upikahf tH’f; ,ayhJ vd;fpdw; gpujpthjpapd; Ml;nrgiza[k; xjJ;fb;fhss; ntz;oas[;sJ/  nkYk; gpujpthjp jugg;py; “gp” mll;tiz brhjJ; gw[kn;ghfF; vd;Wk.; murpid jug;gpduhf nru;f;fg;glhjjhy; tHf;F ghjpf;fg;glL;s;sjhft[k;. vd thJiuf;fgl;lJ/  thjpf;F gpujpthjpahy; jhd; jw;nghJ ,il”r;y; ,Ugg;jhf bjuptpff;g;gLfpwJ/  thjp epyjj;pw;Fk; tPlo;wF;k; bryy; “gp” mll;tiz brhji;j jtpu ntW tHpapUgg;jhf Mizanuh gpujpthjpnah bjuptpf;ftpy;iy/

16.           Also, he invited the attention of this Court to the discussions of evidence by the learned Second Additional Sub Judge, Villupuram.  The relevant portion reads as follows:-

vdf;F nuhl;ow;F brytj; w;F mDgt ghj;jpak; bfhLj;Jss;hu;/  Vgkiy epyj;jpw;F (Foirf;F) nkw;fpy; 13 mo ghij bry;fpwJ/  vd; epyj;jpd; tHpahf me;j 13 mo jhzo; gyuhkd; tPL css;J/  mJt[k; g[wk;nghfF;jhd;/  mtiu ,e;j tHff;py; nru;f;ftpy;iy/  VGkiy FoirfF; tlfpHff;py; ehDk; xU Foir nghlL; mDgtpj;J tUfpnwd;/  ehd; 3 mo re;jpyj;hd; fy; nghlL; fskhf nghlL; itj;Js;nsd;/  ouhf;lu; brytj; w;fhf vd;W Twpas[s;hu;/  ,tUila rhl;rpaji;j itjJ; ghu;fF;k;nghJ gp mll;tizr; brhjj;hdJ ghl;il g[wk;nghf;F epyk; vd;gJk; mjpy; thjpa[k; xU Foir nghl;L mDgtpjJ; tUfpwhu; vdg;Jk; bjupatUfpwJ/ gp ml;ltizr; brhj;jhdJ ghl;il gwk;n[ ghf;F epyk; vdg;jhy; nkw;go epyk; thjpf;F ghj;jpag;gll;J vd;W tpskg;[if bra;a ,ayhJ/  Mizau; tiugljj;py; gp mll;tizr; brhj;jpw;F nkw;F 13 mo tHpghij css;J vdW; fhl;lg;glL;ss;J/  mjw;F nkw;fpy; gyuhkd; tPL css;J/  g[wk;nghfF; ghij 90 mo vdW; brhyy;g;glL;ss;J/  Mizau; mwpf;if tiuglk; bfhzL; ghu;f;Fk;nghJ thjpfF; mtUila epyjj;pw;F bryt;jw;F gp mll;tiz nkw;F gff;k; 13 mo tHpghijak;[ gp mll;tizr; brhj;jpw;F VGkiy Foir tPlo;w;Fk; fpHfF; fhypaplk; css;J vdg;J bjupa tUfpwJ/

17.           Therefore, the learned Counsel for the Respondents submitted that the Judgment passed by the learned Principal District Munsif and confirmed by the learned Second Additional Sub Judge, Villupuram is a well-reasoned Judgment that does not warrant any interference by this Court.  This Second Appeal lacks merits and is to be dismissed.  In support of his contention, the learned Counsel for the Respondents placed reliance on the reported ruling in the case of Gunabhooshanammal Vs. Santha and Ors. reported in MANU/TN/0839/1999.  The relevant portion reads as follows:-

“35. The substantial question of law framed has to be answered in favour of the Appellant as admittedly the Plaintiff has got 15.5 feet width of space through which she could reach the public street and merely because, there will be no vision or appearance from the public street the Plaintiff cannot seek the relief of mandatory injunction at any rate the first Defendant having pleaded a possessory right her right cannot be interfered by seeking the relief of mandatory injunction and more so when the first Defendant proved her possession for more than 15 years and at any rate even before the purchase by the Plaintiff under Ex.A-1 of the adjacent space. So also the Court auction sale of the same property under Ex.A-11. The substantial question of law is answered in favour of the Appellant.”

18.           He invited the attention of this Court to the Advocate Commissioner’s report as Ex.C-1 and Ex.C-2 that the Pattai Poramboke is enjoyed by both Plaintiff and Defendants. While so, Plaintiff seeking a mandatory injunction against the Defendants when there are very many persons in enjoyment of Pattai Poramboke.  The Plaintiff is also enjoying the part of Pattai Poramboke as per Ex.C-1 and Ex.C-2.  Therefore, the

Plaintiff cannot be heard to seek a mandatory injunction against the Defendants alone where many people enjoying Pattai for more than 30 years.  The Plaintiff had with an ulterior motive to remove the Defendants from the Suit property had filed this Suit.

19.           On hearing both sides, the then learned Judge of this Court had framed the following Substantial Questions of Law:-

1.           Whether both the Courts below were justified in rejecting the rest of the claim of the Plaintiff in seeking easement over the ‘B’ schedule property?

2.           Whether the ratiocination adhered to by both the Courts below that 13 feet width of the property in the ‘B’ schedule property would be sufficient for the Plaintiff to have ingress and egress to his ‘A’ schedule property?

3.           Whether there is any perversity or illegality in the Judgments and decrees of both the Courts below?

All these points are taken together for discussion as they are interlinked and inter-woven with one another.

20.           Heard the learned Counsel for the Appellant and the learned

Counsel for the Respondents.

21.           Perused the Judgment of the learned Principal District Munsif and the Judgment of the learned Second Additional Sub Judge, Villupuram.

22.           From the records, it is found that the reasoning in the Judgment of the learned Principal District Munsif as well as the learned Second Additional Sub Judge cannot at all be accepted.  The submission of the learned Counsel for the Respondents that the Plaintiff had filed the Suit seeking a declaration of the right to use the pathway; seeking the permanent injunction from interference by the first Defendant; seeking a mandatory injunction against the first Defendant for removal of his hut in the Pattai Poramboke.  The Plaintiff had filed the Suit with an ulterior motive where there are many people in the Village using the Pattai Poramboke and putting up a hut.  While so, the Plaintiff had sought a mandatory injunction against the first Defendant alone with an ulterior motive to grab the property cannot be accepted.  In the ‘B’ schedule property as Pattai Poramboke, the District Collector was impleaded as a necessary party in this case.

23.           The learned Additional Government Pleader (Civil Suit) submitted that the second Defendant is a proper and necessary property. As far as the second Defendant is concerned, the Second Defendant is ready to take any property and take action against the encroacher in the Pattai Poramboke. If at all, this Court is inclined to grant a decree, it may be restricted to the rights of the Plaintiff and Defendants.  The power of the State to remove encroachment from the Poramboke lands may be

protected.

24.           Also, the learned Additional Government Pleader (Civil Suit) submitted that the second Defendant in the Suit/District Collector is ready to carry out steps to remove the encroachment on the Pattai Poramboke. Therefore, the power to remove the encroachment vested with the State is to be protected.

25.           On perusal of the Judgment of the learned Principal District Munsif and learned Second Additional Sub Judge, it is found that they are perverse as the Judgment passed by the learned Principal District Munsif partly decreed and partly dismissed the Suit.

26.           From the discussions of evidence by the learned Principal District Munsif and the learned Second Additional Sub Judge, it is found that ‘B’ schedule property is justified/identified as Poramboke whereas the learned Counsel for the Respondents in the course of argument submitted that it is a Pattai Poramboke which means it is a cart track or pathway for the common benefit of the Villagers even though the Plaintiff had filed the Suit for right of easement.  The common Villagers in the Villages have every right to use the pathway.  The first Defendant cannot be permitted to claim possessory title in Pattai Poramboke.  The trial Court as well as the first Appellate Court misunderstood the concept regarding ‘B’ schedule property.  On the appreciation of evidence if it is found to be “Pattai Poramboke”, the Suit could have been decreed in its entirety regarding the

Plaintiff’s claim.  Instead, the learned trial Judge and learned Appellate Judge lost-sight of the fact that the Pattai, on discussions of evidence as it was Poramboke.  As per the classification of land vested with the

Government properties are identified as Poramboke lands:-

(i)              Athu/River Poramboke and

(ii)            Eri Poramboke for storing water for agriculture and otherpurposes which is vested with the Government.

(iii)         Meikal Poramboke for the common use of the cattle in the

Village as grazing field which is vested with the Government.

(iv)          Odai Poramboke (streams)

(v)            Natham Poramboke which is not vested with the Government which is vested with the common enjoyment of the Villagers and the

Government has no right regarding Natham lands.

(vi)          Rail Poramboke is vested with the Government.

(vii)        Highway Poramboke is vested with the Government.

To protect water bodies, the Hon’ble Supreme Court as well as the Hon’ble High Court had issued directions not to grant injunction to those persons who are enjoying Poramboke lands.

27.           Here, it is Pattai which is nothing but a pathway/cart track for the common enjoyment of the Villagers.  The first Defendant cannot be permitted to claim any right in Pattai Poramboke.  The submission of the learned Counsel for the Respondents relying on the Judgment of this Court in the case of Gunabhooshanammal Vs. Santha and Ors. reported in MANU/TN/0839/1999 is not helpful to the facts of this case that is adjoining the Highway where the Plaintiff had the right of access to the

Highway except the Place which is in the enjoyment of the Defendant in the reported decision.  Here, the first Defendant himself admits that he is in enjoyment of the Pattai Poramboke which cannot be accepted by the Courts of law.  In Tamil Nadu, it is invariably found that the people are encroaching on Ponds, Lakes and Rivers as of right and claim “possessory title” have been against the State.  The State is unable to remove the encroacher from various titles of Poramboke lands.  The claim of the Respondents in this case that he had been evicted from many of the encroachers on the cart track cannot be a reason to modify the Judgment of the then learned Judge who had raised the Substantial Questions of Law protecting the Pattai Poramboke.  The claim of the Respondents that the first Respondent was not heard and the Judgment of the learned Judge of this Court in allowing the Second Appeal is an ex-parte Judgment also cannot be accepted.  It was on merit based on the records.

28.           The learned Counsel for the Appellant submitted that the first Respondent in this case, during his lifetime received summons and did not engage a Counsel and left it as such.  Therefore, the learned Judge was justified on passing the Judgment on merits on perusal of the records. Only subsequent to the death of the first Respondent, the sons and daughters of the first Respondent had impleaded themselves claiming the Judgment of the learned Judge was without hearing the first Respondent.

Therefore, they should be given a chance to argue the merits of this case.

The reasoning mentioned in the affidavit of the Petitioners in M.P.Nos.1 to 3 of 2014 that the father of the Petitioners/first Respondent could not attend the Court due to a medical condition.  Regarding the same, the Respondents had not produced any medical records as pointed out by the learned Counsel for the Appellant.  Even though they had not filed any medical report, this restoration Application is considered on proper in that he was prevented from appearing before this Court due to medical conditions.  Therefore, the Order passed by the learned Judge of this Court dated 31.08.2023 in permitting the Respondents to argue the case is found proper.  The observation of the learned Judge of this Court dated 08.02.2013 reiterated that the Pattai Poramboke is to be kept free is found justified.

29.           The learned Additional Government Pleader appearing for the second Respondent/District Collector submitted that the District Collector, Villupuram is to initiate action against the encroacher of Pattai Poramboke is recorded.  The Government is within its power to remove the encroacher in Pattai Poramboke in Survey Number which is ‘B’ schedule property in the Suit in O.S.No.200 of 2002 as observed by this Court dated 08.02.2013.  In the very same Judgment, it is found that the learned Judge had passed well-considered Judgment answering the Substantial Questions of Law in favour of the Plaintiff before the learned Principal District Munsif and directing the first Defendant to remove encroachment failing which the Collector is within his/her power to remove the encroacher.  As pointed out by the learned Counsel for the Respondents, there are many encroachers in the Pattai Poramboke.  As submitted by the learned Additional Government Pleader, the District Collector shall initiate action through Tahsildar regarding the eviction of the encroacher in the ‘B’ schedule property.

30.           Both the trial Court as well as the Appellate Court failed to consider that the Suit property is Pattai Poramboke and considering it as

Poramboke thereby erred in not granting of the decree in favour of the Plaintiff.  Both the Courts failed to prescribe removal of construction in ‘B’ schedule property.

31.           The learned Government Pleader had claimed that the Suitproperty in ‘B’ schedule property is Pattai Poramboke is vested with the Government and the submission was that in cases, this Court grants a decree considering the submission of the learned Counsel for the Plaintiff and the learned Counsel for the Defendant, the right of Government to remove the encroachment shall be protected.  It is erroneous on the part of the trial Court and the first Appellate Court, the Courts below ignoring or remaining indifferent to facts that there is encroachment and the encroachment should be protected.  It is not Natham Land to protect the encroachment.  It is a Poramboke enjoyment vested with the Government particularly Pattai Poramboke which is common use of Villagers for taking yield from the agricultural fields.  Therefore, the observation of the learned Judge of this Court  dated 08.02.2013 was also accepted.  The relevant portion of the observation of the learned Judge of this Court dated

08.02.2013 reads as follows:-

10.            When such is the legal scenario, there is knowing of the fact as to how both the Courts below could Order that only an extent of 13′ feet in the ‘B’ schedule property would be sufficient for the Plaintiff to have ingress and egress to his ‘A’ scheduled property.

11.            The claim of the Plaintiff to have ingress and egress through the ‘B’ scheduled property, is not the only issue but the real issue is as to whether D-1 is justified in squatting in any part of the ‘B’ scheduled property and whether the Government-D-2 is justified in simply conniving at such encroachment or sleep at the wheel or sleep at the switch.

12.            I would like to recollect and call up the decision of First Bench of this Court reported in 2006 (4) CTC 483 (Consumer Action Group Vs. The State of Tamil Nadu). An excerpt of it would

“30. Both the C.M.D.A and Corporation have submitted elaborate charts to show that the provisions of the Act and the Rules have been grossly violated by the builders and buildings have been constructed in total violation of the Rules. Buildings have been either constructed without any permission or additional floors have been raised in violation of the FSI Regulations. In none of these buildings, the mandatory safeguards relating to the car-parking area and fire safety measures have been observed. On the other hand, the basement and stilt portions, which are exclusively made for car parking, have been illegally converted into shops for commercial use. It appears that in some cases the authorities have taken action and demolition notices have been issued. However the builders have obtained stay on the ground that their applications for regularisation are pending before the competent authority. It is also seen that some of the violators have encroached upon the roads by constructing steps, platforms etc., right on the pavements or on the roads. It is brought to our notice that there are encroachments on busy streets like Ranganathan Street, Natesan Street, Madley Road etc. It is necessary to direct the municipal authorities to clear the encroachments in order to ensure smooth flow of traffic on these streets and roads. It is needless to say that there is no necessity of issuing notice for the removal and demolition of the encroachment in public streets and roads, as such encroachment shall be liable to be removed forthwith. So also the electricity connection or sewerage connection facilities shall be liable to be disconnected forthwith.

32………………….

           xiv) The Corporation is directed to forthwith take steps to remove the encroachments on all busy streets like Ranganathan street, Natesan street, Madley road, etc. and the Commissioner of Police is directed to provide adequate police force at the disposal of the Corporation for the purpose of carrying out work of removal of encroachments.

  

 (emphasis supplied) Not to put too fine a point on it, a cue can be taken from the cited precedent that whenever there is an encroachment in public pathway belonging to the Government, it is the duty of the Government to remove it.

13.Any citizen can set the law in motion and he should not be made to feel that getting such obstruction from Pattai poramboke is as difficult as nailing jelly to the wall.  Here, the Plaintiff approached the Civil Court with the Plaint detailing and delineating that the Suit property, which is a Pattai poramboke belongs to the Government, which means that it is meant for people to use it as a pathway.  The Court gave a finding also to the same effect, however, they thought that the said Elumalai-D-1 could be allowed to perpetuate his encroachment in the Pattai poramboke, which by no standard could be countenanced and uphold as correct.  It beats me how both the for a below could have carte blanche in opining so, quite antithetical to the common or garden principle that encroachment on Pattai poramboke should be removed.

32.           Therefore, the claim of the learned Counsel for the Respondents relying on the evidence before the learned Principal District Munsif, the learned Principal District Munsif and the learned Sub Judge independently having assessed the evidence thereby granted partial decree protecting the right of the first Defendant in his possessory title cannot be sustained by this Court.

33.           The submission of the learned Additional Government Pleader that the right of the Government to remove encroachment is to be protected is found acceptable and reasonable.  As observed by the learned Judge of this Court in Judgment in S.A.No.102 of 2013 dated 08.02.2023, the State

was not indulged in removing encroachment.    The second

Defendant/District Collector is directed to remove the encroachments on the Pattai Poramboke in the Village.

34.           In the light of the above discussions, the Substantial Question of Law-1 is decided to the effect that both the Courts below were not justified in rejecting the rest of the claim of the Plaintiff in seeking easement over the ‘B’ schedule property.

35.           The Substantial Question of Law-2 is decided to the effect that the ratiocination adhered to by both the Courts below that only 13′ feet width of the land in the ‘B’ schedule property would be sufficient for the Plaintiff to have ingress and egress to his ‘A’ schedule property is not correct.

36.           The Substantial Question of Law-3 is that there is perversity in both the Courts below ignoring the fact that there is encroachment in the Pattai Poramboke which is to be retained as Pattai for the benefit of Village for ingress and egress is also in favour of the Appellant/Plaintiff.

In the light of the above discussions, the Substantial Questions of

Law are answered in favour of the Appellant/Plaintiff. The Judgment and

Decree dated 29.08.2008 in A.S.No.13 of 2004 on the file of the learned

Second Additional Sub Judge, Villupuram in confirming the Judgment and

Decree dated 21.11.2003 in O.S.No.200 of 2002 on the file of the learned District Munsif, Villupuram is set aside as perverse.

In the result, this Second Appeal is allowed. The Judgment and

Decree dated 29.08.2008 in A.S.No.13 of 2004 on the file of the learned

Second Additional Sub Judge, Villupuram in confirming the Judgment and

Decree dated 21.11.2003 in O.S.No.200 of 2002 on the file of the learned District Munsif, Villupuram is set aside. No costs.

 03.06.2025

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Index : Yes/No

Speaking/Non-speaking order

To

1.               The Principal District Munsif,    Villupuram.

2.               The Second Additional Sub Judge,    Villupuram.

3.               The Section Officer,    V.R.Section,

    High Court, Madras.

SATHI KUMAR SUKUMARA KURUP, J.,

dh

Pre-delivery Judgment made in

Second Appeal. No.102 of 2009

 

03.06.2025