Appellants/Appellants/Plaintiffs v. The Collector of South Arcot - Vallalar District, Cuddalore & Ors.

6.The Assistant Agricultural Officer, Training & Visiting and Division, Panchayat Union, Vridhachalam.... Respondents/Respondents/DefendantsAppeal filed under Section 100 of Code of Civil Procedure, againstthe Judgment and Decree dated 25.01.1996 in A.S.No.123 of 1992 on thefile of the learned Subordinate Judge, Virudhachalam, against theJudgment and Decree made in O.S.No.295 of 1985 dated 30.07.1992 on thefile of the learned District Munsif, Virudhachalam.For Appellants: Mr.S.KrishnasamyFor Respondents: Mrs.R.Revathy, Government Advocate (CS)J U D G M E N TThe Appellants/Plaintiffs have filed the instant Second Appeal asagainst the Judgment and Decree dated 25.01.1996 passed by the LearnedSub Judge, Virudhachalam in partly allowing the A.S.No.123 of 1992leaving the parties to bear their own costs.2.The Plaint scenario: (i) The Appellants/Plaintiffs' father, in his Plaint, in the suitbefore the trial Court, has averred that originally the suit property isa 'Pattai Poramboke' belonging to the Government. The Appellants/Plaintiffs' father and his predecessors have entered into these suitproperty more than 35 years ago and has made improvements in the land byspending some smaller amounts and in one portion, has constructed a house(Jagai) and obtained electricity connection and has been residing there.Further, in one portion of the suit property, they have raised gardenplants and in another portion, they have raised paddy and has been inenjoyment till date. The Appellants/ Plaintiffs' father's enjoyment ofthe suit property has been recognised by the Government. In that respect,the Appellants/Plaintiffs' father (original Plaintiff) has been inenjoyment of the property uninterruptedly well over 35 years andtherefore, he has acquired the possessory right in his own possession inthe suit property and that the right of the Government has beenextinguished.(ii) The enjoyment of the suit property by the Appellants/Plaintiffs father (original plaintiff) has been an open one. Since theAppellants/Plaintiffs' father and his predecessors have been in enjoymentof the suit property continuously for more than 30 years, the right of https://hcservices.ecourts.gov.in/hcservices/ the Government has been extinguished and the adverse possession right hasbeen accrued to the Plaintiff. The Government in law cannot claim anyright in the suit property. Even if it claims any such right, the sameis not valid in law. Except the Appellants/ Plaintiffs' father (originalPlaintiff), in the suit property, no one has got any right or title.(iii) The Appellants/Plaintiffs (original Plaintiff) has come toknow on 20.02.1985 that the Respondents/Defendants are makingarrangements through their subordinates to demolish the house and todestroy the garden plants and further to remove the same forcibly. Also,with the permission of the 1st Respondent/1st Defendant under thesupervision of the 2nd Respondent/2nd Defendant, Respondents 3 to 6 haveplanned to construct a building and the village people are also talkingabout the same and further, when the Appellants/Plaintiffs' father hasnot been in the village, at that time, the Respondents/ Defendants'subordinates have inspected the suit property. The prescriptive enjoymentand title of the Appellants/Plaintiffs' father in respect of the suitproperty are to be protected. Further, the Appellants/Plaintiffs'father's right has to be protected as per Government G.O.Ms.No.1670,Revenue dated 29.08.1977. Contrary to the tenor of the said G.O., theaction attempted to be taken by the Government amounts to theRespondents/Defendants violating the law. The possessory title of thePlaintiff in the suit property more than that of theRespondents/Defendants will have to be declared and also the relief ofpermanent injunction will have to be granted based on necessity and inthe interest of justice. In case, if the Respondents/ Defendants in themiddle of the suit are found to have entered into a forcible possessionof the suit property, then as an alternate relief, theRespondents/Defendants are to be directed to hand over possession of thesuit property.(iv)The Appellants/Plaintiffs' father have issued a Section 80C.P.C. Notice dated 22.02.1985 to the Respondents 1 and 4/Defendants 1and 4, which has been received by the 1st Respondent/ 1st Defendant. The4th Respondent/4th Defendant has not received the notice. The 5thRespondent/5th Defendant has issued a threatening letter dated 20.02.1985,in which, it is mentioned that the Plaintiff (Appellants/Plaintiffs'father) has encroached the property in Survey No.124/13, which is a wrongone. R.S.No.124 is coming to an end with sub division of 12. There is no13th sub division. In the circumstances, deliberately with a schemingmind, the sub division number has been wrongly mentioned and the 5thRespondent/5th Defendant has planned to evict the Appellants/Plaintiffs'father from the suit property forcefully. The said notice of the 5thRespondent/5th Defendant is against law. Hence, theAppellants/Plaintiffs' father [original Plaintiff] has filed the suitpraying for the relief of Declaration of his possessory title in the suitproperty and also for the relief of permanent injunction restraining the https://hcservices.ecourts.gov.in/hcservices/ Respondents/Defendants, their agents, subordinates in interfering withthe possession.3.Written Statement Pleas:(i) In the Written Statement filed by the 1st Respondent/1st Defendant(and adopted by other Respondents 2 to 5/Defendants 2 to 5), it ismentioned that the suit property belongs to Government Pattai Poramboke.It is for the Plaintiff (original Plaintiff) to establish that he and hispredecessors have entered into the suit property 35 years ago and hasmade improvements with their money and in one portion, they haveconstructed a house (Jagai) and obtained an electricity connection andhas been in enjoyment of the same without any interruption. TheAppellants/Plaintiffs' father (original Plaintiff) has been in enjoymentof 22½ cents in the suit survey number subject to objection of theGovernment. Only in respect of 22½ cents, the Appellants/Plaintiffs'father is in enjoyment of the same subject to objection of the Governmentand also issuance of 'B' memos issued thereto. (ii) In the pending suit O.S.No.1518 of 1983 as alleged by theAppellants/Plaintiffs' father (original Plaintiff in the suit inO.S.No.295 of 1985), these Defendants are not added as parties.Therefore, the said suit will not bind the Respondents/Defendants. (iii) In respect of the suit Pattai Poramboke of 0.35 cents, theAppellants/Plaintiffs' father subject to the objection of the Governmentis in enjoyment of the 0.22 ½ cents upto fasli 1394. In the suit anextent of 0.35 cents, 0.05 cents has been allotted for constructing aresidence of Assistant Agriculture Officer and the suit is notmaintainable without adding him as a necessary party. TheAppellants/Plaintiffs' father (original Plaintiff) is not in enjoyment ofthe aforesaid 0.05 cents. Therefore, the Appellants/Plaintiffs' father isnot entitled to get the relief of injunction. Moreover, Respondents 3 to5/Defendants 3 to 5 are unnecessary parties and by adding the unnecessaryparties, the suit is not maintainable. There is no cause of action forthe suit. 4.Before the trial Court, in the main suit 1 to 6 issues have beenframed for adjudication. On behalf of the Plaintiff(Appellants/Plaintiffs' father) witnesses P.W.1 to P.W.3 have beenexamined and Exs.A.1 to A.32 have been marked. On the side of theRespondents/Defendants, witness D.W.1 has been examined and Exs.B.1 toB.3 have been marked. Further, Exs.C.1-Advocate Commissioner's Report andEx.C.2-Additional Report have been marked. 5.The trial Court on an appreciation of oral and documentaryevidence on record in the suit has come to the consequent conclusion that https://hcservices.ecourts.gov.in/hcservices/ based on the documents filed on behalf of the Plaintiff, it is not ableto decide whether the Plaintiff has been in possession of the suitproperty continuously, without interruption for well over 30 years andfurther opined that no document has been filed on behalf of the Plaintiffthat the Plaintiff has been in possession of the suit property before theyear 1972 and has held that the Plaintiff is not entitled to get thedeclaratory and permanent injunction reliefs. In fact, it has held thatthe Plaintiff has not acquired the right of adverse possession againstthe Government in respect of the suit property and resultantly, itdismissed the suit directing the Plaintiff to pay the suit costs to theDefendants 1 and 2. However, it directed the Defendants 3 to 5 to beartheir own costs.6.Feeling aggrieved against the Judgment and Decree dated 30.01.192passed by the trial Court in O.S.No.295 of 1985, theAppellants/Plaintiffs' father as an Appellant (during his lifetime) hasfiled A.S.No.123 of 1992 before the Learned Sub Judge, Virudhachalam.7.The First Appellate Court viz., the Learned Sub Judge,Virudhachalam, while passing the Judgment in A.S.No.123 of 1992 on25.01.1996, has, inter alia, observed that 'the Appellants/Plaintiffshave not proved that they have acquired the right of adverse possessionand further, opined that the Appellants/Plaintiffs' have not provedwhether they are in enjoyment of 0.35 cents through sufficient evidenceand moreover, based on the documents and evidence on record, thePlaintiff (Appellants/Plaintiffs' father) is in enjoyment of the suitproperty by putting up the hut and also by keeping young coconut treesand also cultivating garden plantation and raising punja crops andinasmuch as the Plaintiff is in enjoyment of the suit property after theyear 1972, without following the lawful procedure, it is not proper toevict him and if any action is initiated against the Appellants/Plaintiffs, it is to be done by following the rules and therefore,granted the relief of permanent injunction and allowed the Appeal inpart, leaving the parties to bear their own costs.8.Being dissatisfied with the Judgment and Decree of the FirstAppellate Court viz., the Learned Sub Judge, Virudhachalam dated25.01.1996 in A.S.No.123 of 1992, the Appellants/Plaintiffs havepreferred the present Second Appeal before this Court.9.At the time of admission, this Court has framed the followingSubstantial Questions of Law for determination:"(i)Whether the lower courts erred in law to hold that theappellants are entitled to declaration of title atleast in respect of 22½ cents from out of the suit property without prejudice to their claim tothe entire suit property? https://hcservices.ecourts.gov.in/hcservices/ (ii)Whether the lower appellate court erred in law by granting adecree for partial injunction when the respondents have not made theclaim in S.No.124/12?(iii)Whether the lower courts erred in law by not drawing adverseinference against the respondents when they have not produced the Revenuerecords relating to the suit property to rebut the case of the appellant?(iv)Whether the lower Courts erred in law in not holding that theappellants have perfected title over the suit property by adversepossession and prescription for over the statutory period?"10.The Learned Counsel for the Appellants/Plaintiffs submits thatboth the Courts have failed to appreciate Ex.A.7-Kists Receipts dated21.10.1991 paid by the Appellants/Plaintiffs' father (original Plaintiff)for Fasli 1400 and further, the trial Court should have found that theAppellants /Plaintiffs and his predecessors have been in total enjoymentof the possession of the suit property for more than the statutoryperiod.11.It is the contention of the Learned Counsel for the Appellants/Plaintiffs that the trial Court as well as the First Appellate Court havefailed to appreciate that there is evidence on the side of theRespondents/Defendants to show that the Appellants and his predecessorshave been in possession and enjoyment of 22 ½ cents. 12.The submission of the Learned Counsel for the Appellants/Plaintiffs is that both the Courts ought to have granted the relief ofDeclaration of Title in regard to 22 ½ cents atleast.13.Lastly, it is the contention of the Learned Counsel for theAppellants/Plaintiffs that both the Courts have failed to take intoaccount that the 6 cents given for construction of quarters for the 6thRespondent is in R.S.No.124/13, whereas the Appellants' suit property isin R.S.No.124/12.14.Per contra, it is the submission of the Learned GovernmentAdvocate appearing for the Respondents/Defendants that the FirstAppellate Court viz., the Learned Sub Judge, Virudhachalam, whileallowing the Appeal in the Judgment, has, among other things, held thatthe Appellants/Plaintiffs have not established with proof whether 22 ½cents is in their enjoyment and further, the Appellants/Plaintiffs havefailed to file a petition praying for appointment of a Surveyor at thetime of filing of an application praying for an appointment of anAdvocate Commissioner. Further, the First Appellate Court has found thatthe Appellants/Plaintiffs' father has put up a hut and has been residingand also in enjoyment of the property by planting young coconut trees, https://hcservices.ecourts.gov.in/hcservices/ gardening crops and punja crops and has been residing after the year 1972continuously and therefore, cannot be evict without following the duelawful procedure and refused the relief of adverse possession and thedeclaratory relief, but only allowed the Appeal in part by granting therelief of the permanent injunction which need not be interfered with bythis Court.15.The P.W.1 (Appellants/Plaintiffs' father) (original Plaintiff),in his evidence, has deposed that the suit property is in R.S.No.124/12with total extent of 0.41.5 Ares viz., 35 cents and he is in enjoyment ofthe suit property for 35 years and in the suit property, in one portion,he has constructed two thatched huts and that for the Faslis 1385, 1386,1390, 1393, 1397, 1399, 1400, 1401 in respect of the suit property he haspaid kists which are Exs.A.1 to A.8 and Exs.A.9 and A.10 are the HouseTax Notices sent to him demanding payment and Exs.A.11 to A.16 are theHouse Tax Receipts paid by him and Exs.A.12 to A.21 are the ElectricityBill Receipts paid by him in respect of the house. It is the furtherevidence of P.W.1 that Exs.A.22 to A.24 are the E.B. bill chargesreceipts and Exs.A.25 and A.26 are the House Tax Receipts and Ex.A.27 isthe 'B' memo issued to him in the year 1984 and in respect of the suitproperty, O.S.No.1518 of 1983 has been filed by him against DuraisamyPadaiyachi and others and Ex.A.28 is the Certified Copy of the Decreedated 25.03.1988 of the District Munsif Court, Virudhachalam and Ex.A.29is the notice issued by the 5th Respondent/5th Defendant and hence, he hasissued Ex.A.30-Lawyer Notice dated 22.02.1985 to Respondents 1 and 3/Defendants 1 and 3 as per Section 80 of Civil Procedure Code.16.Continuing further, it is the evidence of P.W.1 (Appellants/Plaintiffs father) (original Plaintiff) that as stated in Ex.A.29-Noticedated 20.02.1985 for Survey No.124 there is no Sub Division Number as 13and for Survey No.124 there are sub divisions upto 12 and it is notcorrect to state that he is in enjoyment of the 22 ½ cents in the suitproperty and that he is not in enjoyment of the 35 cents and moreover, heis in enjoyment of the 35 cents and it is not correct to state that outof this 25 cents 5 cents of land has been given to the 6th Respondent/6thDefendant for construction of his residential house and till date, nohouse has been constructed for the 6th Respondent/6th Defendant. 17.P.W.2, in his evidence, has stated that on the eastern side ofthe suit property, he has his own land and that suit property has beenenjoyed by the Plaintiff (Appellants/Plaintiffs' father) for 40, 50 yearsand the suit property in R.S.No.124/12 measures an extent of 35 cents andin the suit property, there are 10 Vathanarayana Trees, one TamarindTree, one Drumstick Tree and 3 Coconut Trees and in the suit property,the Plaintiff (Appellants/Plaintiffs' father) has constructed a thatchedhouse and is residing and in other portions of the suit property, he israising nanja and punja crops and enjoys the same. https://hcservices.ecourts.gov.in/hcservices/

18.P.W.3, in his evidence, has deposed that suit property has beenin enjoyment of the Plaintiff (Appellants/Plaintiffs' father) for thepast 35 years and in one portion of the suit property, the Plaintiff hasconstructed a thatched house and is residing there and further that inthe suit property, there are trees and the Plaintiff is in enjoyment ofthe suit property by raising nanja and punja crops and it is incorrect tostate that possession of the 5 cents of land in the suit property hasbeen taken by the Government.19.The evidence of D.W.1 (Assistant Engineer, P.W.D.) is to theeffect that the suit property is a Pattai Poramboke and the Plaintiff isin enjoyment of 22 ½ cents alone in the suit property and even in theGovernment records, only 22 ½ cents is mentioned has in enjoyment of thePlaintiff and in O.S.No.1518 of 1983 the Government is not a party andtherefore, the said Judgment will not bind the Government and forconstruction of a building to the 6th Respondent/6th Defendant, RevenuePeople have handed over 5 cents of land to the 6th Respondent/6thDefendant.20.It is the further evidence of D.W.1 that Ex.B.1 is the Planconcerning Survey No.124/13 and Ex.B.2 is the report dated 23.07.1983 inand by which the 5th Defendant has handed over the property to the 6thDefendant and Ex.B.3 is the Rough Plan dated 23.07.1985 in respect of theProject Officer's Residence. 21.D.W.1, in his cross examination, has deposed that the suitproperty Survey Number is 124/12 and in S.No.124/12, the P.W.D. has notconstructed the house for the 6th Defendant.22.This Court worth recalls the decision in Denaguptapu BhaskaruduV. Secretary of State for India 1914 Madras Weekly Notes at page 53wherein it is held as follows:"Government is entitled to levy an assessment on landwhich is unauthorisedly occupied by any person ifsuch land is the property at Government. Sec. 14 declares any suit may be brought by aperson aggrieved by any proceeding under the Actwithin 6 months from the time the cause of actionarose.Where a notice to quit was served and penalassessment was levied and that was made the point fora cause of action for a declaration of title broughtsix months later the suit will be barred bylimitation." https://hcservices.ecourts.gov.in/hcservices/

23.This Court aptly points out the decision in The Secretary ofState for India in Council represented by the collector of South KanaraV. Dewan Bahadur Alex Pinto (dead) and others 1936 Madras Weekly Notes850 wherein it is held that 'The plaintiff must prove possession for thefull statutory period of 60 years and he cannot be relieved of thatburden by proving possession for something less than the prescribedperiod.' Also, it is observed that 'the emphatic provisions of S.2 of theLand Encroachment Act pointed to the same conclusion as regards proofagainst Government.'24.Also, this Court points out the following decisions:(a)In B.M.Habibulla and others V. The State of Tamil Nadurepresented by the District Collector, Nilgiris District, Udhagamandalamand others 1994 (I) MLJ 299 wherein it is held as follows:"A notice under Section 5 of the Act was issued tothe petitioner. It does not bear any date. In thesaid notice it was mentioned that the property willbe forfeited under Sec. 6 of the Act, and thepetitioner was called upon to show cause and onbefore .... 1990. There is also some over-writing.This hardly satisfies the legal requirement of theprovisions of the Act. There cannot be any denial ofthe fact that the right of hearing given to theunauthorised occupant under Sec.7 of the Act is avaluable right and it has to be strictly inconformity with the Act. Even the 'B' memo issued bythe Tahsildar does not bear any date as to when theRevenue Inspector or Tahsildar inspected theencroachment even though the said memo bears themonth and date indicating the enjoyment of the landsby unauthorised occupants. There is another 'B' memobearing the month without any date signed by theTahsildar. But at the end of the notice there is anendorsement to the effect "Evicted land resumed toGovernment" signed by the Tahsildar."(b)In V.Arunagiri and others V. The Divisional Engineer, NationalHighways, Thiruvannamalai and another 1999-Vol-1-MLJ-308 wherein it isobserved as follows:"The Court is the view that the respondentscannot take action against the appellants to demolishtheir houses, which are in their occupation, withoutissuing notice under Sec. 7 of the Act, so as to passan order under Sec.6 of the Act to evict them or to https://hcservices.ecourts.gov.in/hcservices/ demolish their houses."(c)In K.Kathalingam V. State of Tamil Nadu and others 2000-Vol-1-MLJ247, it is held thus:"It is very clear that no proceedings were served onthe petitioner and from the documents, the court isnot able to see any acceptable evidence to show thatthe petitioner refused to receive the same. Thelearned counsel appearing for the petitioner hassubmitted that even assuming that the authoritieshave taken proceedings under the Land EncroachmentAct, it has to be decided whether such summaryproceedings can be taken with respect to thepetitioners land. The learned counsel has furthersubmitted that when the dispute regarding possessionitself is pending before the civil court, therespondents are not correct in invoking summaryproceedings. According to him, the possession cannotbe taken on the basis that notices have been issued,without making any enquiry by the Collector,especially when the petitioner has raised objectionthat he should not be evicted from the said lands.There is some force in the said argument. Hence theproceedings taken by the respondents cannot besustained in law."(iv)In Ramamurthy V. Junior Engineer, Public Works Department, WaterManagement, Ramanathapuram District (2007) 1 MLJ 101 wherein it is laiddown as follows:"A notice has to be issued under Section 7 of the Actby the Collector or Tahsildar or Deputy Tahsildar orRevenue Inspector or any Authorised Officer or anyother Officer specified by the State Government inthat behalf. Likewise, an order for eviction can bepassed under Section 6 of the Act only by theCollector or subject to his control, by the Tahsildaror Deputy Tahsildar or any Authorised Officer or anyother Officer specified by the State Government inthat behalf.In this case, the impugned proceedings has beenissued by the Junior Engineer Public WorksDepartment, Water Management. In the counteraffidavit filed by the first respondent, it isnowhere stated that he has been authorised by the https://hcservices.ecourts.gov.in/hcservices/ State Government to take action under Sections 7 and6 of the Act. i.e. It is not averred in the counteraffidavit that he is the Authorised Officer orspecified Officer under Sections 6 and 7 of the Actto initiate eviction proceedings under the Act."(v)In D.Sathish V. Tahsildar, Sirkali Taluka and others AIR 1998Madras 291 at page 292, in paragraphs 3 to 5, it is held hereunder:"3.Before taking proceedings under Section 6, theCollector of Tahsildar, or Deputy Tahsildar, orRevenue Inspector, or any authorised officer or anyother officer specified by the State Government inthat behalf shall cause to be served on the personreputed to be an unauthorised occupant, of a land, anotice specifying the land so occupied and calling onhim to show cause why action should not be takenagainst him under Section 6 of the Act. But suchnotice need not be served in the case of any personunauthorisedly occupying the land, if he hadpreviously been evicted from such land under Section6, or, if he has previously vacated such landvoluntarily, after the receipt of a notice underSection 5-B or under Section 7. The non-issuance ofnotice was held to vitiate the proceedings takenunder Section 6 of the Act by this Court inHamsavalli v. Tahsildar, Vridhachalam, AIR 1990 Mad350. The notice reads "that in the event of notvacating within 15 days, including the superstructureand the crops on the property are liable to beconfiscated. It is not same thing as calling upon himto show cause before a certain date why he should notbe proceeded against under Section 6 of the Act.Section 6 of the Act empowers the authority to takesuch action to confiscate anything found on the landincluding crops or other products, raised or anybuilding erected thereon, if not removed withinstipulated time. The wordings of the impugned noticeare fully in compliance with the requirements ofSection 6, rather than insisting for showing causewhy he should not be proceeded against under Section6 of the Act. Sub-Clause(2) of Section 6 of the Actprovides that by serving a notice in the mannerprovided under Section 7 on the person reputed to bein occupation in the event of refusing to vacate, theofficer so authorised may remove any such person,after holding a summary inquiry into the facts of the https://hcservices.ecourts.gov.in/hcservices/ case, if he is satisfied that the resistance orobstruction was without any just cause and take suchappropriate action against such person, includingpenal action.4.The learned single judge, in the order, hasstated that nothing is stated in the affidavitwhether any reply has been given by the petitioner tothe said notice. When it is the contention of theappellant/petitioner that the impugned notice isunder Section 6 of the Act and not under Section 7,the question of showing cause does not arise. Whileordering confiscation in the event of not handingover, there is nothing to indicate in the order thata summary inquiry was conducted as contemplated undersub-clause (2) of Section 6 of the Act, since thesubstance of the notice is directing to vacate theland within the stipulated time and therefore, itcannot be considered as a notice under Section 7 ofthe Act and there is non-compliance of therequirements of law as has been contemplated underthe Act.5.The finding of the learned single judge thatthe impugned notice is the one under Section 7 is notsustainable and the same is liable to be set asidebecause, forcible eviction by revenue authoritieswithout following the legal requirements is bad inlaw. The authorities are at liberty to take suchsteps in accordance with law, after complying withthe requirements of Section 7 of the Act. The writappeal is therefore allowed."25.In the present case before us, Exs.A.1 to A.26 relates to thepayment of kists receipts (made by the Plaintiff) beginning from theFasli 1385 dated 08.04.1976 till 27.02.1992 for Fasli 1401-House TaxDemand Notice of the year 1992 and House Tax Receipts from 23.04.1974 to04.06.1977 (given to Plaintiff), E.B. Receipts from 30.08.1982 to16.04.1992, House Tax Receipts of the year 17.03.1985, 21.01.1991.Ex.A.27 is the Notice dated 11.04.1982 issued to theAppellants/Plaintiffs' father (original Plaintiff) by the Tahsildar inrespect of Survey No.124/12 Pattai land, as per Section 5 of the TamilNadu Land Encroachment Act, 1905. Ex.A.28 is the Certified Copy of Decreedated 25.03.1988 made in A.S.No.1518 of 1983 on the file of the learnedDistrict Munsif, Virudhachalam. In Ex.A.28- Certified Copy of the Decree,the Appellants/Plaintiffs' father Natesa Padaiyachi has figured asPlaintiff. The Defendants in O.S.No.1518 of 1983 are Duraisamy Padaiyachiand Kolanchi Padaiyachi, who are the sons of Periyasamy Padaiyachi. The https://hcservices.ecourts.gov.in/hcservices/ Appellants /Plaintiffs' father in O.S.No.1518 of 1983 has got a decree ofpermanent injunction against the Defendants mentioned therein.Admittedly, in O.S.No.1518 of 1983 viz., in Ex.A.28-Certified Copy of theDecree dated 25.03.1983, the Respondents/Defendants (in O.S.No.295/1985)are not parties. Inasmuch as the Respondents/ Defendants (inO.S.No.295/1985) are not parties to the decree in O.S.No.1518 of 1983,the decree obtained by the Appellants/Plaintiffs' father in the said suitwill not bind them. As per Section 43 of the Indian Evidence Act, aJudgment or Decree is admissible to prove a fact that a decree has beenmade between specified parties and for finding out what land has beendecreed.26.Ex.A.29 is the Notice dated 20.02.1985 issued by the JuniorEngineer of the P.W.D. Department addressed to the Appellants/ Plaintiffsfather requesting him to hand over R.S.No.124/13 since the place isrequired for construction of a residential building for AssistantAgriculture Officer. Also, the Appellants/Plaintiffs' father has beeninformed that if any crops are raised, the same may be removed failingwhich, through police the encroachment will be removed and further workswill be commenced in this regard.27.In Ex.C.1-Commissioner's Report dated 30.03.1985, the AdvocateCommissioner has stated, among other things, that suit place is situatedon the south of way which separates from Dindigul-Madras National HighwayNo.45 and proceeding to Vepur village and in the suit property east westleaving space, there are Vathanarayana Trees and near the Vathanarayanatree, on the upper side of the hut, there are 4 young coconut trees andon the west of the hut, the chilly gardens are at harvest stage etc.Further, in the said report, the Commissioner has stated that in front ofthe hut, there are 3 haystacks in small quantity and near the same,bullocks have been tied and also the cattle shed is in front of the houseand in the hut, there is one door and there is no other door or windowand the breadth of the door is 2' 4" at height 5' and in the hut, thereare 4 ceilings and inside the house, there is one portion for cooking andnext to the door and that of the cooking room, there is one room andthere are traces for occupation of the house and there has been anelectricity connection in the house.28.In Ex.C.2-Additional Commissioner's Report/second Commissioner'sReport dated 26.04.1985, the measurement of the suit property ismentioned as on the lower portion 51', on the upper portion 76', thenorthern side is 187', the southern side is 219' and the length of thehouse is mentioned as 65' and the chillies portion is 75' and the breadthof the two is 31.29.In the present case before us, it is the evidence of D.W.1(Assistant Engineer, P.W.D.) that the Appellants/Plaintiffs' father https://hcservices.ecourts.gov.in/hcservices/ (original Plaintiff) is in enjoyment of 22 ½ cents in the suit property.However, a perusal of the Plaint schedule property in O.S.No.295/1985(filed by the Appellants/Plaintiffs' father figured as Plaintiff), thesuit survey number is mentioned as 124/12 out of 0.41.5 Ares, 0.14.0 Aresviz., 35 cents. But in Ex.A.29-Notice dated 22.02.1985 addressed by theJunior Engineer of the P.W.D., Vepur to the Appellants/Plaintiffs' father(since deceased), it is mentioned that the P.W.D. Department's land ismentioned as R.S.No.124/13. But, in Ex.A.27-Notice dated 11.04.1982issued by the Tahsildar addressed to the Appellants/ Plaintiffs' fatherrefers to 124/12 of Vepur Village, mentioning the land as 'Pattai'measuring an extent of 0.41.5. The Survey No.124/12 mentioned in thePlaint schedule property and the total extent 0.41.5 are tallying withthe survey number and the extent mentioned in Ex.A.27 dated 11.04.1982.Even though, the Plaint schedule property refers to an extent of 0.35cents in R.S.No.124/12 from and out of 0.41.05 Ares, on the side of theRespondents/ Defendants, D.W.1, in his evidence, has categorically statedbefore the trial Court that the Appellants/Plaintiffs father has been inenjoyment of 22 ½ cents in the suit property. 30.Before the trial Court, no endeavour has been made on behalf ofthe Appellants/Plaintiffs' father (Plaintiff in O.S.No.295/1985) to seekfor appointment of a land Surveyor/Commissioner to find out what is theextent of land that has been in enjoyment of the Appellants/Plaintiffs'father. It is not out of place for this Court to point out at this stagethat the trial Court has clearly in its Judgment has opined that whetherthe Appellants/Plaintiffs' father is in enjoyment of an extent ofmeasuring 22 ½ cents or 33 cents, be that as it may, one thing is clearand certain viz., that the Appellants/Plaintiffs' father has put up hutin the suit property and has been residing by planting young coconuttrees, gardening plants and raising punja plants. Also, he has been inenjoyment of the suit property after the year 1972. Therefore, in law,the Appellants/Plaintiffs' father and after his death, the Appellants areliable to be evicted from the suit property by the Respondents/Defendantsonly after following the due procedure contemplated in law, as opined bythis Court. Till such time, they are entitled to get the relief ofpermanent injunction, in the considered opinion of this Court. 31.It is to be noted that as per Section 2 of the Tamil Nadu LandEncroachment Act, 1945 is only to declare that certain properties notbelonging to provide proprietor, belong to the Government. The initialproof lies on a party who is to establish title to show that he comeswithin the saving clause to Section 2(1) of the Act. 32.Ex.A.27-Notice dated 11.04.1982 has been issued in accordancewith Section 5 of the Tamil Nadu Land Encroachment Act, 1905 by theTahsildar addressed to the Appellants/Plaintiffs. TheAppellants/Plaintiffs' father during his lifetime when he has filed the https://hcservices.ecourts.gov.in/hcservices/ suit in O.S.No.295/1985 has not challenged the Ex.A.27-Notice dated11.04.1982 issued by the Tahsildar. However, he has referred to theEx.A.29-Letter of the Junior Engineer, P.W.D. Vepur dated 20.02.1985 as athreatening letter in paragraph 9 of the Plaint in the suit(O.S.No.295/1985 addressed to the Appellants/Plaintiffs' father. Even inthe cause of action paragraph 11 of the Plaint, he has referred toEx.A.29-Letter dated 20.02.1985 of the Junior Engineer, P.W.D., Vepur,which speaks of removal of encroachment in the land belonging to theP.W.D. Department in R.S.No.124/13. As a matter of fact, the Notice underSection 7 of the Tamil Nadu Land Encroachment Act, 1905 or an order foreviction can be passed as per Section 6 of the Act only by the Collectoror his subordinate viz., by Tahsildar or Deputy Tahsildar or anyauthorised/specified Officer in that behalf. In the instant case, thecommunication of the Junior Engineer, P.W.D., Vepur Ex.A.29 is not froman authorised person as per Tamil Nadu Land Encroachment Act, and assuch, Ex.A.29 is invalid in law. In any event, the Appellants/Plaintiffs'father (original Plaintiff) has only prayed for the relief of Declarationof his title in the suit property and for the relief of consequentpermanent injunction.33.As regards the relief of declaration of title of the Appellants/Plaintiffs father in the suit property, as sought for in the Plaint, itis to be pointed out that in Ex.A.27-Notice dated 11.04.1982 the suitproperty is mentioned as 124/12 classified as 'Pattai' measuring 0.41.05Ares. But in Ex.A.29, as stated already, the P.W.D. Department's own landis mentioned as R.S.No.124/13 without specifying the measurement/extent.Indeed, the suit property is 35 cents or 0.14.0 Ares in R.S.No.124/12 outof 0.41.05 Ares. When the suit property is a 'Pattai Poramboke' belongingto the Government and the fact that the Appellants/Plaintiffs' father haspaid kists receipts, house tax receipts, electricity charges etc. andwhen 'B' memos have been issued to the Appellants/Plaintiffs' father bythe Government, then, it is futile either for the Appellants/Plaintiffs'father or for the Appellants/Plaintiffs to contend that they are entitledto get the relief of adverse possession in respect of the suit propertyagainst the Government or the officers of the Government, as opined bythis Court. Also, with the documents marked on the side of theAppellants/ Plaintiffs in the suit which begins only from Ex.A.1 dated08.04.1976 (fasli 1385) till fasli 1401 etc., it cannot be safelyconcluded that either the Appellants/Plaintiffs' father or theAppellants/ Plaintiffs have been in enjoyment of the suit property forwell over 30 years in an open, hostile, uninterrupted manner without anyhindrance and viewed in that perspective, this Court holds that theAppellants/Plaintiffs are not entitled to get the relief of adversepossession. Since as per Ex.A.27 dated 1.04.1982, the suit propertybelongs to the Government as 'Pattai Poramboke', the Appellants/Plaintiffs are not entitled to seek the relief of declaration of title inrespect of the suit property, in the considered opinion of this Court. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, it is held by this Court that the trial Court and the FirstAppellate Court have rightly negatived the relief of declaration of titleof Appellants/Plaintiffs even in respect of atleast 22 ½ cents from andout of the suit property etc.; that the First Appellate Court isperfectly justified in granting a decree for permanent injunction; andthat both the Courts have rightly held that the Appellants/Plaintiffs arenot entitled to the relief of adverse possession and accordingly, theSubstantial Questions of Law 1 to 4 are so answered by this Court againstthe Appellants/Plaintiffs.34.In regard to Additional Documents, the Petitioners/Appellantsfiled C.M.P.No.1156/2010 (under Or.47 R.27 C.P.C.) to receive 1)Patta inthe name Jayaraman 2)House Tax Receipt in the name of Jayaraman 3)Electricity Service Connection in the name of Jayaraman 4)Patta in thename of Desingh 5)House Tax receipt in the name of Desingh 6)ElectricityService Connection in the name of Desingh 7)Patta in the name ofMuthulakshmi 8)Patta in the name of Asokan 9)House Tax Receipt in thename of Asokan 10) E.B. Service connection in the name of Asokan 11)Pattain the name of Rangan 12)House Tax Receipt in the name of Rangan 13)E.B.Service Connection in the name of Rangan, it is to be pointed out thatadmittedly the Patta E.B. Service connections, property tax have beenobtained pending disposal of the Second Appeal and the Petitioners/Appellants have not adduced satisfactory explanation before this Court asto why they have not obtained the additional documents diligently earlierand hence, this Court rejects the same, bearing in mind of the decisionof the Hon'ble Supreme Court in Roop Chand V. Gopi Chand Thilia, AIR 1989SC 1416 at page 1420 wherein it is held that 'When there is nosatisfactory explanation for not producing the additional documentseither in the Courts below or even in the High Court they cannot bereceived in the Supreme Court.' 35.In the result, the Second Appeal is dismissed, leaving theparties to bear their own costs. Consequently, the Judgment and Decreepassed by the First Appellate Court viz., in A.S.No123 of 1992 dated25.01.1996 in granting the relief of permanent injunction is confirmed bythis Court for the reasons assigned in this Appeal. In other respects,the relief of declaration of title of the Appellants/ Plaintiffs inrespect of the suit property and the relief of adverse possession prayedfor by them and negatived by the trial Court and the First AppellateCourt are hereby affirmed by this Court in this Appeal. It is made clearthat the dismissal of the Second Appeal will not preclude theRespondents/Defendants initiating appropriate action against theAppellants/Plaintiffs in accordance with the due process of law, byissuing proper notice and also specifying the correct survey number andthe extent thereof [free from any ambiguity], by adhering to theprinciples of natural justice. Liberty is granted to the Appellants /Plaintiffs to make use of the 13 Documents mentioned in C.M.P.No.1156 of https://hcservices.ecourts.gov.in/hcservices/ 2010 at a time when the Respondents/Defendants initiate appropriateaction in evicting the Appellants/Plaintiffs from the suit property.Consequently, C.M.P.No.5843 of 1997 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.RegistrarTo1.The Subordinate Judge,Virudhachalam.2.The District Munsif,Viruhachalam.+1cc to Mr.S.Krishnasamy, Advocate Sr 1089+1cc to Additional Government Pleader Sr 1270CK(CO)km/10.2.S.A.No.529 of 1997