Syed Abdul Jabbar v. The Executive Officer, Selection Grade Town Panchayat, Denkanikottai, Dharmapuri District & Ors.

the main Suit O.S.No.46 of 1996 on its file.3.Before the trial Court, on the side of theAppellant/Plaintiff, 1 to 9 issues were framed for trial. On theside of the Appellant/Plaintiff, witnesses PW1 to PW3 were examinedand Ex.A.1 to Ex.A.13 were marked. On the side of theRespondents/Defendants witnesses DW1 to DW3 were examined and Ex.B.1to Ex.B.8 were marked. Also, as Court Exhibits, the Commissioner'sReports and plans were marked as Ex.C.1 to Ex.C.4. 4.On an appreciation oral and documentary evidence available onrecord the trial Court has come to the conclusion that theAppellant/Plaintiff has a claim over the suit property and since theRespondents/Defendants have removed the Appellant/plaintiffunlawfully they are required to hand over the possession of the suitproperty to the Appellant/Plaintiff and further has held that as perSection 170 of the Panchayat Act, no notice is required to be sentand consequently granted the relief of permanent injunction andmandatory injunction as prayed for by the Appellant/Plaintiff in thesuit, but in regard to the claim of compensation it awarded only asum of Rs.20,000/- to the Appellant/Plaintiff and decreed the suit,leaving the parties to bear their own costs. 5.The trial Court in Paragraph 5 of its Judgment in the suit hasobserved that though it is stated that the suit property belonged toPanchayat when it has been handed over to Panchayat has not beenstated. Further, the trial Court has opined that in respect ofOccupied Natham Poramboke who ever encroachers upon the same itbelonged to him and since the suit property has been admitted to be aGrama Natham and encroached by the Appellant/Plaintiff the plea thatit belonged to Panchayat is not accepted.6.Moreover, the trial Court in Paragraph 6 of the Judgment hasobserved that on the basis of contradictory evidence of defendantwitnesses it is unbelievable to say that the Plaintiff hasvoluntarily vacated the shop. That apart, the trial Court has heldthat the averment officers have demolished the shop is believable,but to say that they have removed the articles of the building isunbelievable. In respect of damage to articles and buildingsdamaged, the trial Court has awarded a sum of Rs.10,000/- each and inall it granted a sum of Rs.20,000/-. 7.The First Appellate Court has come to the conclusion that theevidence of witnesses examined and document marked on the side of theAppellant/Plaintiff are not sufficient to prove that theAppellant/Plaintiff has been enjoyment of the suit property beforethe year 1980. 8.Furthermore, the First Appellate Court viz., the Learned IIAdditional District and Sessions Judge-Chief Judicial Magistrate, https://hcservices.ecourts.gov.in/hcservices/ Krishnagiri has also opined that the document filed on the side ofthe Appellant/Plaintiff are only for ten years to show possession andadded further, the evidence of PW2 to 4 are all interested. 9.Being dissatisfied with the Judgment and Decree passed by theFirst Appellate Court viz., the II Additional District and SessionsJudge-Chief Judicial Magistrate, Krishnagiri in A.S.No.109 of 1997dated 13.10.1999, the Appellant/Plaintiff has filed the SecondAppeal before this Court.10.At the time of admission of the Second Appeal, this Court hasframed the following substantial question of law. "(1)Whether in law the appellant derived title to thesuit property when the same is classified as occupied GramaNatham and when the Appellant occupied the suit property inthe year 1958 by putting up a residential house and has beenresiding for more than the statutory period?11.The Contentions, Discussions and Finding on substantialquestion of law No.1:According to the Learned Counsel for the Appellant/Plaintiff,the First Appellate Court should have dismissed the Appeal andconfirmed the well considered Judgment and Decree of the trial Courton the basis of the facts and circumstances and evidence on record ofthe case, adduced by the Appellant/Plaintiff.12.The Learned Counsel for the Appellant/Plaintiff urges beforethis Court that the Appellant/Plaintiff and his ancestors have beenin possession of the suit property by permanently putting up thesuperstructure and residing there for more than 30 years but thisaspect of the matter has not been considered by the First AppellateCourt in a real perspective. 13.A plea is raised on behalf of the Appellant/Plaintiff thatin respect of the suit land, the First Respondent/First Defendant islevying house tax and collecting the same from the Appellant as ifthe suit property belonged to him and as such the First AppellateCourt should have decreed the suit as prayed for by theAppellant/Plaintiff.14.Proceeding further, the Learned Counsel for theAppellant/Plaintiff contends that the First Appellate Court ought tohave considered Ex.A.1 to Ex.A.13 documents coupled with the evidenceof PW1 to PW4 and should have held that the Appellant/Plaintiff hasbeen in possession of the suit properties since 1958 and perfectedhis title over the suit property by means of Adverse possession.15.Per contra, the Learned Government Advocate appearing for the https://hcservices.ecourts.gov.in/hcservices/ Respondents 1 and 2/Defendants submits that the suit property wasused as Hotel and the Appellant/Plaintiff was running the businessin the buildings and since the Appellant/Plaintiff was using thepremises as a Hotel the question of perfected possession does notarise and moreover as per the Board Standing Order in the Nathamporamboke the occupant must construct a house alone for residentialpurpose and one cannot construct a building for commercial purpose. 16.Added further, the Learned Government Advocate for theRespondents 1 and 2/Defendants contends that there was no proof thatthe Appellant/Plaintiff was using the suit property for more than 30years and in fact no document was produced to that effect andadmittedly, the suit property was a Natham poramboke land and indeed,the First Appellate Court had rightly allowed the Appeal filed by theRespondents/Defendants and set aside the Judgment and Decree of thetrial Court passed in the main suit O.S.No.46 of 1996, dated18.10.1996 and the same need not be disturbed by this Court at thisstage of Second Appeal. 17.Advancing her arguments, the Learned Government Advocate forthe Respondents/Defendants submits that Grama Natham was to be usedfor dwelling house only for Appellant/Plaintiff's occupation but itshould not be used for running a Hotel and as a matter of fact, theAppellant/Plaintiff was running a Hotel in the suit property asevidenced from the reports of the Commissioner and therefore, praysfor dismissal of the Second Appeal. 18.In support of the contention that Grama Natham never vestedwith the Respondents and in fact, the Appellant/Plaintiff had righttitle and possession, the Learned Counsel for the Appellant/Plaintiffcites the decision of this Court A.K.Thillaivanan and another v. TheDistrict Collector, Chengai Anna District at Kancheepuram and threeothers – 1998-3-L.W.603, at Page Nos.604 and 605 wherein it isobserved that 'It has been admitted in the counter affidavit that theland is a village Natham. The village Natham is a landwhich never vested with the respondents (the State) andthey have no right to it. Admittedly, when the land hasbeen classified as village Natham, it is obvious that noportion of the land vests with the respondents. Theadmitted classification is village Natham and merelybecause the petitioners have converted the same intoagricultural lands, no right could accrue to therespondents even after conversion. Thus, it is obviousthat the petitioners are in exclusive possession andenjoyment of the land without interference by therespondents or any other person. Such possession, it isadmitted, is since 1954 onwards. As such from the counteraffidavit, this Court holds that the petitioners have https://hcservices.ecourts.gov.in/hcservices/ acquired a valid right to the land by their exclusivepossession since 1954 onwards.It has to be pointed out that the respondents haveadmitted the exclusive possession of the petitioners andtheir father since 1954. It is not the case of therespondents that the petitioners were ever assessed topenal charges nor the petitioners have ever been issued B-Memo.''Being a grama natham, it is obvious that the land inquestion had never vested with the Government. Section 2 ofthe Land Encroachment Act, 1905 excludes grama natham ownedas house site. As such the provisions of the LandEncroachment Act, 1905 cannot be invoked by the respondentsin respect of the land in question. It has been held asearly as in (1949) I MLJ 290 (Palani Ammal v. L.SethuramaAiyangaar) that grama natham is not a communal property inthe sense in which thrashing floor or burning grounds orother property is communal that is property reserved for theuse of the community.It is obvious, the admitted classification of the landbeing a grama natham, the land was never vested with therespondents nor they could take action under the LandEncroachment Act or any other enactment. The petitionersstate they have exclusive right, title, possession, since1954 onwards. The respondents have not right to interferewith the peaceful possession and enjoyment of the land andtheir action in giving a complaint for alleged offence underSection 420 of the IPC is total misconception. Incidentally, the respondents in the counter havestated that it is a village site. Further, it is to bepointed out that even according to the respondent, it is agrama natham and the respondents never had right nor thegrama natham had ever vested with the respondents. In thecircumstances, the petitioner is entitled the relief ofMandamus as prayed for.Normally, this Court should not have gone into thedispute of title or possession. But in the present case, inthe counter affidavit filed by the respondents not only theclassification as grama natham but also the exclusivepossession since 1954 has been admitted. As such thepetitioners have prescribed title to the land and the samecannot be interfered by the respondents either under LandEncroachment Act or under the Tamil Nadu Public Premises(Eviction of Unauthorised Occupants) Act.' https://hcservices.ecourts.gov.in/hcservices/

19.In the decision, the Executive Officer, Kadathur TownPanchayat, Harur Taluk, Dharmapuri District v. V.S.Swaminathan andothers – 2004(3) CTC 270, at Page 273 wherein at Para 9, it isobserved as follows;'A perusal of a combined reading of Section 3(b) andSection 18 of Madras Estates (Abolition and Conversion intoPyotwari) Act viz., Madras Act XXVI of 1948 and Section 2 ofthe Madras Land Encroachment Act, 1905 discloses that thetitle to a house site in a Grama Natham is protected fromtransfer to Government.'20.Also, in the same Page at Page 274 in Paras 12 and 13, it isobserved hereunder.'12.Further, 'Grama Natham' is defined in the Law Lexiconas "ground set apart on which the house of village may bebuilt." Similarly, Natham land is described in TamilLexicon published under the authority of University ofMadras to the effect that it is residential portion of avillage' or portion of a village inhabited by the non-Brahmins; or land reserved as house sites; etc.13.In the light of the above and in view of the fact thatthe admitted classification of the land being a 'GramaNatham', it is obvious that the land was never vested withthe Government or the Town Panchayat. Inasmuch as thepetitioners and their ancestors were in exclusivepossession of the lands in question for the past 40 years,the impugned order of the third respondent in cancellingthe pattas with a view to evict them summarily at theinstance of the resolution passed by the Panchayat is notsustainable. Further such a summary eviction is notpermissible in law when the disputed question of title isinvolved for adjudications as laid down by the Apex Courtin number of decisions.'21.In the decision, the State of Tamil Nadu represented by theDistrict Collector, Kamarajar District, Virudhunagar and another v.R.P.Patchirajan and another – 2009-1-L.W.917, this Court has heldthat 'The lack of action on the part of the Government for thepast 40 years is also an adding factor to show that theproperty has not been treated as a public one though theyhave been described as such in the revenue records and inthe absence of exercise of any right over the suitproperties by the Government, the contention that they havebeen remaining as poramboke lands or Grama Natham has to bediscountenanced. Circumstance of its description in the https://hcservices.ecourts.gov.in/hcservices/ records as Grama Natham, will not partake the character ofporampoke land as pleaded by the Government. 22.The Learned Counsel for the Appellant/Plaintiff seeks in aidof the decision of this Court Ellammal and Others v. State of TamilNadu represented by its Collector of North Arcot District, Velloreand Others – (2007) 2 MLJ 1113, wherein it is held as follows;In the present case, it is not even the case of thedefendants that due to the use of this lands, for differentpurposes, there was a re-classification by making the landsnot to be Grmanatham. While so, the decision arrived at bythe learned first appellate Judge, on the basis that theplaintiffs have not proved under Exhibits A-10 to A-13 thatthe patta has not been granted in their favour, has no legalbasis whatsoever. A reference to the pleadings by the defendants showsthat no where the defendants have raised objection to thevarious documents, by which the predecessors-in-title of theplaintiff have purchased the property, namely, underExhibits A-4, A-7, A-8, including Exhibit A-1. It is onlyon the basis that no patta was granted in favour of theplaintiffs, as well as predecessors-in-title, the defendantstook the stand that neither the plaintiff, nor thepredecessors-in-title were in ownership of the property andtherefore, the claim of the plaintiffs, based on thedocument, not sustainable. As correctly found by thelearned trial Judge, the plaintiffs and his predecessorshave been in continuous possession and in uninterruptedenjoyment for more than 60 years and therefore, obtainedtitle by adverse possession.'23.From the perusal of the averments of the plaint filed by theAppellant/Plaintiff, it transpires that the Appellant/Plaintiff hasaverred that he is an absolute owner of the site mentioned in theSchedule-A and that he encroached the vacant site in the year 1958and started the Fruit Stall by putting up the thatched shed and wasrunning the said Stall in the suit property for about 12 years andfurther from the date of encroachment in the year 1958 he has beenasserting exercising of rights of the ownership of the same as hisown property to the knowledge of the people of the Denkanikottai andthe Respondents/Defendants.24.According to the Appellant/Plaintiff, he dismantled thethatched shed and constructed a mangalore tiled house building in theyear 1970 by laying rock foundation and brick walls plastered withcement by spending Rs.35,000/- for constructing the titled house onthe suit site and that the First Respondent/First Defendantacquiesced in such construction and had not made any objection and https://hcservices.ecourts.gov.in/hcservices/ further after constructing the mangalore tiled house, started a Hotelin the name and style of Bilal in the front portion and used the backportion for residential purposes and that the First Respondent/FirstDefendant required him to pay the professional tax and accordingly hewas paying the said tax. The First Respondent/First Defendant hadassigned the Door No.28A to the constructed building. After issuanceof notice to the Appellant/Plaintiff, the First Respondent/FirstDefendant increased the house tax.25.The stand of the Appellant/Plaintiff is that he was in open,continuous and uninterrupted possession and enjoyment of the suitproperty and the superstructure or house construction put up thereonsince the year 1958 adverted to all including the Respondents/Defendant to their knowledge and therefore in any case he hadperfected title to the suit property and the house constructed thereon by means of Adverse possession. In the year 1982, theAppellant/Plaintiff had started a Bakery. He obtained ElectricityService Connection soon after the construction of the house buildingin the year 1970. 26.The Learned Counsel for the Appellant/Plaintiff submits thaton 25.02.1990 at about 10.00 PM when the Appellant/Plaintiff was inBangalore at the time the First Respondent/First Defendant and theemployees working under him viz., the Sanitary Inspector etc., cameto the suit property and on the basis of purported orders from theSecond Respondent/Second Defendant demolished the house takingadvantage of the absence of the Appellant and carried away theutensils of valued at Rs.35,000/- and in the 4th Week of March 1990,when the First Respondent/First Defendant started to putting up thefoundation stone illegally and Denkanikottai Taluk. 27.It is candidly clear from the plaint filed by theAppellant/Plaintiff that he had filed the suit praying permission ofthe trial Court to sue as an indigent person and for declaring histitle in respect of the suit property described in A schedule and forissuance of direction to the Respondents/Defendants do deliverpossession of the suit property and for the relief of mandatoryinjunction restraining the Respondents/Defendant to remove thefoundation laid in the suit property described in A Schedule, for therelief of permanent injunction restraining the Respondents/Defendantsetc., for putting up any construction or building or puttingsuperstructure upon the suit property described in A Schedule and fordirecting the Respondents/ Defendants to pay a sum of Rs.70,000/- ascompensation with interest. 28.In the Written Statement filed by the First Respondent/FirstDefendant and adopted by the Second Respondent/Second Defendant, itis mentioned that the suit property is a Government land belonging tothe First Respondent/First Defendant and that the Appellant/Plaintiff encroached the suit land recently and was running a Shop by https://hcservices.ecourts.gov.in/hcservices/ putting up the thatched she in the suit property and further the saidencroachment made by the Appellant/Plaintiff was objected by theFirst Respondent/First Defendant by beat of tom tom on 30.09.1988 anda notice dated 01.10.1988 in ROC No.1523/88 was served on theAppellant/Plaintiff as per Section 82 of the Panchayat Act, 1958, bylocal delivery through his agent. Moreover, on 14.02.1990 anothernotice in R.O.C.No.868/89 was issued by the Appellant/Plaintiff andsince he refused to receive the same, it was affixed on the outer onthe door of the suit building in the presence of the witnesses. On25.02.1990 at about 11.00AM, the First Respondent/First Defendantwent to the Appellant/Plaintiff shop to ask him to vacate the suitland but the Appellant/Plaintiff was not there and the Shop wasalready closed and till 03.00PM, the First Respondent/First Defendantwaited for the Appellant/Plaintiff arrival and that the beat of thetom tom was effected in the presence of the general public.Furthermore at about 04.00 PM, the First Respondent/First Defendantattempted to break open the lock in the presence of VAO, RI, Policeand General Public and by the time, the Appellant/Plaintiff'sbrother Shafi requested the authority he would vacate the same in thenext day after the Appellant/Plaintiff's arrival and further givenoral statement and the same was recorded in the presence of Public,VAO, RI, etc.,29.That apart, the Appellant/Plaintiff himself voluntarily cameforward to take all his belongings in the suit land and he vacatedand handed over the vacant suit land to the First Respondent/FirstDefendant on 26.02.1990. The Respondents/Defendants had dnied thatthe First Respondent/First Defendant carried away the clothes etc.30.According to the Learned Counsel for theAppellant/Plaintiff, the trial Court in its Judgment in the SuitO.S.No.46 of 1996 dated 18.10.1996 has discussed about the nature ofthe land, but, the First Appellate Court has not said about thenature of the land and neither the Government nor the Panchayat hasgot right in the suit land and in fact, the trial Court has come to aright conclusion that the suit property is a Grama Natham. 31.At this juncture, it is useful to refer to Section 82 of theTamil Nadu Panchayat Act, which runs as follows;"82.Prohibition against obstructions in or over publicroads.-(1)No person shall, except as permitted by rulesunder this Act and except in accordance with the conditionsimposed by any licence made requisite by such rules-(a)build any wall or erect any fence or otherobstruction or projection or make any encroachmentwhatsoever, whether permanent or temporary, in or over anypublic road; https://hcservices.ecourts.gov.in/hcservices/ (b)make any hole or deposit any matter in or upon anypublic road;(c)work a quarry in or remove stone, earth or othermaterial from any place within twenty yards of a public roador of other immovable property vesting in or belonging to apanchayat or a panchayat union council, provided thatnothing in the clause shall be deemed to apply to any workwhich, in the opinion of the Inspector, is done inconnection with a bona fide agricultural operation;(d)erect any building over any sewer or drain or anypart thereof;(e)plant any tree on any public road or other propertyvesting in or belonging to a panchayat or a panchayat unioncouncil; or(f)fell, remove, destroy, lop or strip bark, leaves, orfruits from, or otherwise damage, any tree which is growingon any such public road or other property or on anyporamboke or land, the use of which is regulated by apanchayat under Section 86 or Section 87 and the right towhich has not been established by such person as vesting inor belonging to him.(2)It shall be the duty of the karnam of every revenuevillage to report on encroachments on properties vested inpanchayat or panchayat union councils, to the executiveauthority or the commissioner concerned and to the officersof the Revenue Department, and it shall be the duty of theexecutive authority or the commissioner concerned toinstitute proceedings under this Act and secure the removalof the encroachments within such time as may as specified bythe Government by general or special order. If the removalof the encroachments has not been secured within the periodspecified in such order, the officers of the RevenueDepartment shall institute proceedings under the Tamil NaduLand Encroachment Act, 1905, (Tamil Nadu Act III of 1905),and secure such removal."32.Also Section 170 of the Tamil Nadu Panchayats Act, 1958,enjoins thus;"170.Notice of action against panchayat, etc.-(1)Subject to the provisions of Section 171, no suit or otherlegal proceeding shall be brought against any panchayat orits president or executive authority or any panchayat unioncouncil or its chairman or the commissioner or any member, https://hcservices.ecourts.gov.in/hcservices/ officer or servant thereof or against any person actingunder the direction of such panchayat, president, panchayatunion council, chairman, executive authority, commissionermember, officer or servant, in respect of any act done orpurporting to be done under this Act or in respect of anyalleged neglect or default in the execution of this Act orany rule, by-law, regulation or order made under it untilthe expiration of two months next after notice in writing,stating the cause of action, the nature of the reliefsought, the amount of compensation claimed and the name andplace or residence of the intended plaintiff has been leftat the office of the panchayat or panchayat union council,and if the proceeding is intended to be brought against anysuch president, executive authority, chairman, commissioner,members, officer, servant or person, also delivered to himor left at his place or residence.(2)Every such proceeding shall, unless it is aproceeding for the recovery of immovable property or for adeclaration of title thereto, be commenced within sixmonths after the date on which the cause of action arose orin case of a continuing injury or damage, during suchcontinuance or within six months after the ceasing thereof.(3)If any panchayat, panchayat union council or personto whom notice is given under sub-section (1) tenders amendsto the plaintiff before the proceeding is commenced and ifthe plaintiff does not in such proceeding recover more thanthe amount so tendered, he shall not recover any costsincurred by him after such tender; and the plaintiff shallalso pay all costs incurred by the defendant after suchtender."33.Section 170 of the Tamil Nadu Panchayats Act, requires aprior notice to be issued to the Government or Officer or authorityconcerned as a condition precedent to the institution of any actionagainst the Government or Officer or the authority, with reference toan Act done or purported to be done by them, him or it, in theexercise of official duty or in official capacity. The real test is,whether the public servant, if challenged, can reasonably claim thatwhat he did was in virtue of his office. 34.Significantly, notice of proposed action against Panchayatvisualised under Section 170 of the Act is required to be given onlyin cases where compensation under Section 173 of the Act is claimedagainst the Panchayat as per decision Panchayat Union Council,Tirupattur and another v. C.Tirupathy, AIR 1971 Madras 26 (V 58 C2)Full Bench. https://hcservices.ecourts.gov.in/hcservices/

35.In the decision Annamma Joy, Director MVS Q.Flex CablesLimited, Madras v. Collector, Chengai MGR District at Kancheepuram,1998 1 MLJ 74 (Madras), this Court has held that "the provisions ofLand Encroachment need not be followed in dismantling enclosure andif encroachment is recent origin need to follow the principles ofnatural justice, obviated. 36.In Rajammal v. Sub-Collector, Hosur, 1999 MLJ(Supp) 245Madras, it is held that even if the occupant is a recent encroacher,such occupant should not be evicted without strictly adhering toprocedure laid down under the Act.37.At this stage, this Court aptly points out the decisionA.Sankaralingam v. Arunachala Reddiar and others, 1993 1 MLJ 472,wherein this Court has laid down as follows;"There is no law saying that all natham properties areGovernment or Panchyat properties. The decision inRengaraja Iyengar v. Achikannu Ammal, (1959) 2 M.L>J. 513,is that Gramanatham does not stand vested in the Governmentunder Section 3(b) of the Madras Estates (Abolition andConversion into Ryotwari) Act (XXVI of 1948). Thus, at anyrate, it cannot be said automatically that all nathamproperties are Government properties."38.In the decision Tarakshi Panchayat by its President,Tarakkshi Village, Tiruvallur Taluk, Chingleput District v. DistrictRevenue Officer, Chingleput District Collector's Office, Kancheepuramand another, 1975 1 M.L.J. 4, it is laid down as follows;"Section 86(3) of the Tamil Nadu Panchayats Act isclear that the Collector after consulting the Panchayat,may, by notification exclude from the operation of the Actany poramboke referred to in Sub-Section (2). TheCollector, after following the procedure may also modify orcancel the notification. 'Consultation' means that the person who has toconsult, must place all the facts before the person to beconsulted, so that the latter can apply his mind and expresshis views. Consultation further involves that it is onlyafter ascertaining the views of the person to be consultedand considering the same the Collector could come to adecision. He heed not necessarily accept the views offeredby the person consulted. But he must certainly have theviews of that person before him so that they may influencehis decision."39.In K.Subban Pagadai v. S.Subban Pagadai and another, (2000) 2M.L.J. 636, it is mentioned thus; https://hcservices.ecourts.gov.in/hcservices/ "In S.Rengaraja Iyengar v. Achikannu Ammal, (1959) 2 M.L.J.513, it was held that grama natham does not vest with theGovernment and the title of the same is not transferred tothe Government. It is also held therein that the tile ofthe plaintiff's vendor was not extinguished by virtue of thenotification issued by the Government, as per the said Actand the plaintiff can maintain a suit for title."40.In the decision Sundari V. District Collector, VirdhunagarDistrict, Virdhunagar and another (2007) 6 MLJ 399 the Division Benchof this Court has observed as follows:"A reading of Section 131(2) of the Tamil Nadu PanchayatActs, 1994 will make it abundantly clear that not only apower to remove encroachments made in or over theproperties vested with or belonging to the panchayat isconferred on the executive authority of the panchayat butalso a duty is cast upon the executive authority of thepanchayat to secure the removal of such encroachments. Thesection specifically provides that it shall be the duty ofthe executive authority to initiate proceedings under theAct either suo motu or an obtaining a report from theVillage Administrative Officer to remove such encroachmentsand secure the removal of encroachments.It is obvious from the contents of Section 131(2) ofthe Tamil Nadu Panchayats Act, 1994 that the later part ofthe same casts a duty on the revenue officials designatedin this regard to initiate proceedings under the Tamil NaduLand Encroachments Act, 1905 to secure the removal of suchencroachments, if there is failure on the part of theexecutive authority to secure the removal of theencroachments within the period specified by the StateGovernment by the general or small notification. The merefact that the revenue officials are enjoined with a duty toinitiate proceedings under the Tamil Nadu LandEncroachments Act, 1905 on the failure of the executiveauthority of the panchayat to secure the removal ofencroachments within the specified period cannot beinterpreted to mean the extinguishment of such a power orobligation of the executive authority of the villagepanchayat to secure the removal of encroachment in or overthe properties vested with the panchayat."41.Section 2(1) of the Tamil Nadu Panchayat Act, 1958, defines'building' as includes a house, out house, tent, stable, latrine,shed, hut, wall (other than a boundary wall not exceeding eight feetin height) and any other such structure, whether or masonry, bricks,wood, mud, metal or any other material whatsoever. https://hcservices.ecourts.gov.in/hcservices/

42.Section 2(14) of the Act defines 'hut' meaning any buildingwhich is constructed principal by of wood, mud, leaves, grass orthatch and includes any temporary structure of whatever size or anysmall building of whatever material made, which the panchayat maydeclare to be a hut for the purposes of this Act.43.Section 2(13) of the Act defines 'house' meaning a buildingfit for human occupation, whether as a residence or otherwise, havinga separate principal entrance from the common way, and includes anyshop, workshop or warehouse or any building used for garaging orparking buses or as a bus-stand."44.It is to be noted that no person shall make any encroachmentwhatsoever whether permanent or temporary in or over public roadsexcept as permitted by Rule made under the Panchayat Act and exceptin accordance with the condition imposed by any licence maderequisite by such rules. Section 82 of the Tamil Nadu Panchayat Actcontemplates the mandatory permission to be obtained by any personsmaking any encroachment whatsoever.45.The unauthorised encroachment is a continuing offence withinthe meaning of proviso to Sections 166 and 181(2)(c) and when once itis held that the Respondent/Appellant is guilty of continuing offencewithin the meaning of Section 166 of the Madras Panchayat Act, 1958,certainly the executive authority of the panchayat has a right tomake the complaint within 12 months from the date of commencement ofthe offence in the decision State Public Prosecutor v. Vilakku SyedIsmail Natchi, (1970) 2 M.L.J. 552, it is held that the complaint wasnot barred by limitation, since the first part of Section 166 wastotally inapplicable to the facts of the case.46.It is not out of place for this Court to make a significantmention that Section 86 of the Tamil Nadu Panchayat Act, 1958 enjoinsas follows;"86.Panchayat to regulate the use of certain porambokes inryotwari tracts.-(1)The provisions of this Section shall apply only inryotwari tracts.(2)The following porambokes, namely, grazing grounds,threshing floors, burning and burial-grounds, cattle-stands,cart-stands and topes shall vest in the panchayat, and thepanchayat shall have power, subject to such restrictions andcontrol as may be prescribed, to regulate the use of suchporambokes provided the porambokes are at the disposal ofthe Government.(3)The Collector, after consulting the panchayat, may, by https://hcservices.ecourts.gov.in/hcservices/ notification, exclude from the operation of this Act, anyporamboke referred to in Sub-Section (2) and may also modifyor cancel such notification.(4)The panchayat shall also have power, subject to suchrestrictions and control as may be prescribed, to regulatethe use of any other poramboke which is at the disposal ofthe Government, if the panchayat is authorized in thatbehalf by an order of the Government.(5)The panchayat may, subject to such restrictions andcontrol as may be prescribed, plant trees on any porambokethe use of which is regulated by it under Sub-Section(2) orSub-Section (4)."47.The Appellant/Plaintiff as PW1 has deposed that in the suitproperty he was running a fruit Shop from the year 1958 by putting upa hut and he had paid tax for running a fruit stall and from the year1958 he ran a fruit shop and in the year 1970 he dismantled thethatched hut and conducting Hotel business in the front portion andusing the back portion as a house and the name of the hotel was Bilalfor which he was paying the tax and the house tax receipts are Ex.A.1to Ex.A.6 and the processional tax receipts are Ex.A.7 to Ex.A.9 andhe conducted a hotel business by making provision for the occupantsto sit and take food and he had 10 tables and 40 chairs and in theyear 1982, in the available small portion in the hotel and started aBakery and the Bakery licence is Ex.A.10 ad he went to Bangalore forthe purchase of articles on 25.02.1990 and returned after 4 or 5 daysand that time he saw that the hotel was demolished and when heenquired with his employee Shafi and informed that the AdministrativeOfficer, Sanitary Official and employees came to the suit propertyand required to vacate the suit property for which his employee hadinformed that it could be looked after later. 48.PW1 (Plaintiff) in his evidence in cross examination hasstated that in the year 1988 he put up a thatched shed in the placenearby to bus stand and the present place which was demolished wasthat all the one opposite to bus stand and from the year 1958 tilldate for the construction of the Shop yet not asked for nobody wasissued to him for the construction of Shop, but, he had paid the taxin respect of Shop and it is incorrect to state that he had refusedto receive the notice at the time of its service and therefore, itwas affixed on his shop and that he was aware of the demolition ofhis shop. To an another suggestion, PW1 had stated that it is notcorrect to state that he had denied the another notice dated14.02.1990 issued to him and therefore, it was affixed on his shop.49.PW2 in his evidence has stated that on 25.02.1990 at about 10o'clock in the night, when he was closing the Shop at the timePanchayat Union staff came to the Shop and after pushing him, https://hcservices.ecourts.gov.in/hcservices/ demolishing the shop and in the room there were 4o chairs, 10 tables,2 rice bags, Flour, bureaus, 2 showcases, Coal, eggs, bronze utensilsand thus articles were put in the Tractor and taken away by them andon next morning the place was completely demolished. PW2 in hiscross examination, he has stated that PW1 daily paid a sum of Rs.30/-apart from providing him the food and that the suit Shop vacant sitebelongs to a Government land and near the said land forest office issituated. 50.PW3 in his evidence has stated that the Appellant/Plaintiffwas running a hotel near the bus stand and six years before from thisdate, the Panchayat Board staff came to the building at 10.00 PM andtake away the articles and he witnessed them and for the past sixyears, he was supplying Charcoal to him.51.The evidence of PW4 is to the effect that six years before atabout 10.30 in the night, the Panchayat Board people demolished theShop. 52.DW1 (Administrative Officer of the Madhigiri Town Panchayat)in his evidence has stated that near the Forest Department in theNatham Poramboke, the Appellant/Plaintiff was running a Shopbelonged to the Panchayat and the vacant site was adjacent to busstand within a distance of 300 feet and further that the suitproperty was not handed over to the Appellant/Plaintiff by means ofassignment and the revenue records, the Appellant/Plaintiff's namewas not found and since he had encroached the suit property he has noright to enjoy the same.53.DW1 in his further evidence has deposed that the office copyof tom tom notice dated 13.09.1988 is Ex.B.1 and Ex.B.2 is the officecopy of Ex.B.1 and Ex.B.3 is the signature of theAppellant/Plaintiff obtained in the Local Thapal Register for receiptof Ex.B.2 notice and the said notice was served to theAppellant/Plaintiff through their Assistant and in spite of the same,the Appellant/Plaintiff had not vacated from the suit property andagain Ex.B.4 notice was issued to the Appellant/Plaintiff in theyear 1990, which was received by him and even after receipt of thesaid notice he had not vacated and therefore by beat of Tom Tom itwas notified to vacate and they issued a report to the Tahsildarwhich is Ex.B.5. Also it is the evidence of DW1 that the ElectricityService Connection intimation to the Junior Engineer of ElectricityBoard is Ex.B.6 and Ex.B.7 is the notice for beat of Tom Tom and on25.02.1990, when they went to the Appellant/Plaintiff shop to breakopen the lock with the help of Police, VAO, etc., at the time, theAppellant/Plaintiff's representative Shafi was present and since herequested them not to break open the shop and informed to take thearticles of the shop. They have not broken the lock and they havenot removed the articles and they themselves vacated the articles andhanded over the property when they saw the suit property on the next https://hcservices.ecourts.gov.in/hcservices/ day morning, it remained as a vacant site.54.The evidence of DW2 (Revenue Official of Denkanikottai) is tothe effect that the Appellant/Plaintiff had encroached the Governmentproperty near the Denkanikottai bus stand which is in SurveyNo.163/A1, a Grama Natham and this property belongs to the RevenueDepartment and that the said property was not assigned to him and inthe suit property the Appellant/Plaintiff had a Bakery shop afterfixing four poles he put a mangalore tiled roof and on 25.02.1990 hewent to the bus stand to remove the encroachment along with VAO andOfficials at about 11 o'clock in the morning at the time theAppellant/Plaintiff was not there and Shafy was present and theyinformed him to vacate the place and again they came back to theplace 04.00 PM and informed that they would break open the Shop atthe time Shafy came and informed that it would result in damage andtherefore he himself would vacate and they granted time till on thenext day morning at 10.00 AM. and Ex.B.8 Statement recorded on25.02.1990 at 04.00 PM at Denkanikottai bus stand public and otherswere signed including himself and VAO and they all went to the suitproperty on being informed by the Tahsildar and it was wrong to statethat they had removed the articles belonging to theAppellant/Plaintiff by breaking open the lock of the shop.55.It is the evidence of DW3 that the suit property is a GramaNatham in which the Appellant/Plaintiff was running a Tea Shop andby putting a mangalore tiled roof with the held of stones, brick andpoles and the suit property was not assigned to theAppellant/Plaintiff and he had encroached the same.56.It is the further evidence of DW4 that on 25.02.1990, theywent to the bus stand with a view to evict the Appellant/Plaintifffrom the suit property and that the suit shop is situated near thebus stand and apart from the suit property other encroachments wereremoved and he went to the place along with the Revenue Inspector,Administrative Officer, Tahsildar at about 11 o'clock in the morningand the Appellant/Plaintiff was not present and one Shafy waspresent and they waited till 03.00 PM in the afternoon, but othersvacated the encroachments. But the Appellant/Plaintiff had notvacated the encroachment and Shafy informed them that he himselfvacate the suit property and therefore they have not break open thelock.57.The evidence of DW4 is to the effect that in the year 1990 heserved as Office Assistant at Denkanikottai Town Panchayat and theAppellant/Plaintiff had trespassed into the suit property near thebus stand and for removal of the said encroachment the AdministrativeOfficer had issued a notice and the said notice was given to him forthe purpose of service through Thapal and Ex.B.4 is the notice whichwas refused to be received by the Addressee and therefore, he hadmade an endorsement to that effect. https://hcservices.ecourts.gov.in/hcservices/

58.Even assuming that the suit property is a Grama Natham, thesame was not assigned in favour of the Appellant/Plaintiff. Justbecause the Appellant/Plaintiff had paid house tax receipts or paidthe professional tax it would not confer any ownership of theproperty in issue. Ex.A.3 receipt is dated 28.02.1981 and otherreceipts are after filing of the suit. Only for continuous enjoymentfor about ten years, the Appellant/Plaintiff has filed the receipts.Even assuming that the suit property is a Grama Natham, theAppellant/Plaintiff has not proved Adverse possession and therefore,the issue of vesting either with the Government or Town Panchayat asthe case may be does not arise, in the considered opinion of thisCourt. 59.Though PW1 (Appellant/Plaintiff) in his cross examination haddeposed that he had not known that Survey No.163A/A1/A1 was a GramaNatham. But he had categorically admitted in his cross examinationthat he knew that the trespass property belonged to the Governmentand that he had not asked for issuance of patta till date for theproperty constructed, by him in the suit property and that he had notbeen issued with the patta in respect of the shop built by him. Whenthe Appellant/Plaintiff himself had admitted in his crossexamination as PW1 that the encroached property belongs to theGovernment, then, he cannot claim the relief of Adverse possessionagainst the Respondents/Defendants in the considered opinion of thisCourt.60.The Commissioner in his report has mentioned the followingduring his first visit: 1.I visited the suit locality on 22.07.1991 aftergiving notice to the counsels and the parties.2.The suit property is located very near to theDenkanikottai Bus stand bearing the following measurementsand sides.a.North to Gandhi Road measuring 13-11 feets.b.East to Denkanikotta-Hosur Road measuring 70feets. c.West to Forest Range office building measuring70 feets.d.South to one House Door No.26A measuring of 13-11 feets.3.The suit property having this measurements was shown withbasement made of stones.4.A drainage goes at the sides of the Western and Southernside of the suit land. https://hcservices.ecourts.gov.in/hcservices/

5.The Eastern side of the suit property adjoins with theForest Range office building.6.During my first visit I able to find there was aconstruction made in the Southern end of the suit property.The construction was made of wooden pillars and mangaloretitles measuring an area of nearly 11-4 feets breadth and13-11 feets length. There was no walls but the mangalorefiled roof was supported with 9 strong wooden pillars andalso with the support of the forest range office building.The height of the building that is the roof height is nearly13-11 feets.This area is shown in the plan as "ABCD" and alsomarked with red colour.And I visited one more time to note down the veryconstruction of the suit land. I visited on 22.07.1991 at04.30 PM after giving notice to the counsels and parties.61.During the second visit he has noticed the following;1.The area measuring 13-11 feets length and 11-4 feetsbreadth shown as "ABCD" in the plan is completely changedand there was a newly constructed building with tiled rookhaving walls made of cement, bricks, etc. The roof was madeof mangalore tiles and wooden support. 2.The length of the construction is 13-11 feets, the breadthis 11-4 feets and height of the building is 13-11 feets.3.A wooden door fixed at the Southern side of the suit landshown as 'S' in the plan.4.The construction is very new one, and very well it isfinished with while wash.5.There was also identification marks seen in the Easternside of the suit land. That is on the wall of the Forestoffice building . That identification marks gives structureof one Cupboard measuring 4 feet breadth and 5 feet lengthas shown as "J" in the plan.And in the same Wall water tank and current meteridentification marks are seen as shown in "K" and "L" in theplan.62.It is seen from the file produced by the Learned GovernmentAdvocate that in respect of Village 47, Denkani Kottai, A RegisterCopy that Survey No.163/3A/A1, measuring 21.29.5 has been mentionedas Denkani Kottai Grama Natham in the Natham land tax scheme clean https://hcservices.ecourts.gov.in/hcservices/ adankal extract the Survey No.1345 is mentioned as GovernmentPoramboke and in the remarks column it is mentioned as bus stand. 63.It cannot be said that the Appellant/Plaintiff was issuedwith notice to vacate from the suit property by means of beat of TomTom and he was once again given the second notice and therefore onhis refusal to receive the same was affixed. On going through theoral and documentary evidence adduced on the side of theRespondents/Defendant, it is candidly clear that only after issuanceof proper notice, the Respondents/Defendants had removed theencroachment made by the Appellant/Plaintiff and therefore, it isnot open to the Appellant/Plaintiff to take a contra plea in thisregard as opined by this Court.64.Though a contention has been put forward on the side of theRespondents/Defendants that in the Natham Poramboke viz., the suitproperty the occupant must construct a house alone and not a buildingfor the commercial purpose, inasmuch as the Appellant/Plaintiff hadconstructed the building for the commercial purpose he must pay aland cost to the Government and he had not paid the land cost to theGovernment and only if he paid a land cost to the Government thenonly the title vested with him in respect of the suit property. 65.Though the Appellant/Plaintiff in the plaint had claimed acompensation of Rs.70,000/- with interest from the date of suit tillrealisation at the rate of 12% per annum from theRespondents/Defendant and notwithstanding that the fact that thetrial Court had granted a sum of Rs.10,000/- towards damages toChimney, etc., and another sum of Rs.10,000/- towards articles andfor damage to buildings this Court is of the considered view thatsince the Appellant/Plaintiff's employee Shafi had taken away andhad removed all the articles and vacated the suit shop as seen fromthe evidence of witnesses of the Respondents side, theAppellant/Plaintiff is not entitled to claim any amount in thisregard in the considered opinion of this Court. 66.Suffice it for this Court to point out that in the light ofqualitative and quantitative discussion, mentioned supra and on acareful consideration of respective contentions, this Court comes toan inevitable conclusion that the Appellant/Plaintiff had notderived title in respect of the suit property though according to theAppellant/Plaintiff, he occupied the same in the year 1958 and put upresidential house etc., for the simple reason that the suit propertyas Grama Natham he not only conducted a Hotel business but alsoresided there and initially he run the fruit stall and later a Bakeryetc., and looking at from any angle, the finding rendered by theFirst Appellate Court that the Appellant/Plaintiff is not entitled toclaim the reliefs of recovery of possession and mandatory injunctiondo not suffer from any material irregularity or patent illegality andviewed in that perspective this substantial question of law is https://hcservices.ecourts.gov.in/hcservices/ answered against the Appellant and consequently, the Second Appealfails.67.In the result, the Second Appeal is dismissed, leaving theparties to bear their own costs. Consequently, the Judgment andDecree of the First Appellate Court in A.S.No.109 of 1997, dated13.10.1999 are affirmed by this Court for the reasons assigned in theSecond Appeal. Sd/-Asst. Registrar//true copy//Sub Asst.RegistrarmpsTo1.The II Additional District and Sessions Judge & Chief Judicial Magistrate,Krishnagiri.2.The Subordinate Judge, Hosur.3.The Section Officer, V.R.Section, High Court, Madras.1 cc to M/s.P.Mani, Advocate, Sr.No.660171 cc to Government Pleader, Sr.No.66001 Judgment inS.A.No.771 of 2000MRD {CO}TP/22.10.2010.