THE HONOURABLE MR v. K.R.Natarajan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:12.3.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.150 of 2009andM.P.No.1 of 20091.The Assistant Divisional Engineer, National Highways, Kallakurichi.2.The Assistant Engineer, National Highways, Kallakurichi.3.The Collector, Villupuram district.. Appellants / Defendantsvs.K.R.Natarajan.. Respondent /PlaintiffThis second appeal is filed section 100 of C.P.C against thejudgement and decree dated 8.9.2006 passed in A.S.No.81 of 2002 bythe Sub Court, Kallakurichi, confirming the judgment and decree dated20.11.2000 passed in O.S.No.473 of 1997 by the III AdditionalDistrict Munsif, Kallakurichi.For Appellants : Mrs.Bhavani Subbarayan,Spl.G.P.For Respondent : No appearanceJUDGMENTThis second appeal is focussed by the original defendants,animadverting upon the judgement and decree 8.9.2006 passed inA.S.No.81 of 2002 by the Sub Court, Kallakurichi, confirming thejudgement of the trial Court, namely, the III Additional DistrictMunsif, Kallakurichi, in O.S.No.473 of 1997, which was a suit forpermanent injunction, so as to restrain the defendants fromdemolishing any portion of the house property including the balconyand two sunshades described in the schedule of the plaint. Forconvenience sake, the parties are referred to hereunder according totheir litigative status before the trial Court. https://hcservices.ecourts.gov.in/hcservices/

2. A Summation and summarisation of relevant facts, which areabsolutely necessary and germane for the disposal of this secondappeal, could be portrayed thus, in view of the fact that both theCourts below elaborately detailed and delineated the relevant factsin their respective judgements.(a) The plaintiff filed the suit O.S.No.473 of 1997 seeking thefollowing relief:"to pass a decree for permanent injunction restrainingthe defendants from demolishing any portion of the houseproperty including the balcony and two sunshades describedin the schedule to the plaint. . . . ."on the main ground that the defendant officials had attempted todemolish a portion of his property as though it is under encroachmentof the public road. The defendants entered appearance and filed thecounter contending that the encroachment made by the plaintiff wasdetrimental to the general public. (b) On the plaintiff's side one K.R.Natarajan was examined asP.W.1 and Exs.A1 to A8 were marked. On the defendants' side oneRamanathan was examined as D.W.1 and no document was marked on theirside.(c) Ultimately, the trial Court decreed the suit; as againstwhich, the defendants preferred appeal for nothing but to bedismissed by the appellate Court, confirming the judgement of thelower Court. Animadverting upon the judgement of both the Courtsbelow, this second appeal is focussed by the defendants on variousgrounds. 3. The substantial questions of law as suggested by thedefendants in the memorandum of appeal would run thus:-"A. Is not the suit filed by the respondent barredunder Section 14 of the Tamil Nadu Land Encroachment Act1905?B. Is an encroacher entitled to any relief much less inthe nature of mandatory injunction that too against theGovernment?C. Whether the courts below is correct in decreeing thesuit only on a finding that the appellant (defendant) hasnot proved his case ignoring the basic principle of law thatthe burden of proof shifts on the should of defendant onlyif the plaintiff proves his case? https://hcservices.ecourts.gov.in/hcservices/

4. Heard the learned Special Government Pleaderl appearing forthe appellants/defendants. Despite printing the name of therespondent, there is no appearance.5. A bare poring over and perusal of the judgement of the trialCourt as well as the appellate Court would clearly demonstrate anddisplay that they have not appreciated and understood the concept,burden of proof. The lower Court proceeded on the line as though theburden is on the defendants to prove that there was encroachment,forgetting that the plaintiff, who filed the suit should have provedhis case. The lists of witnesses and documents appended to thejudgement of the lower Court bespeak that the plaintiff, whose dutywas to prove his case, has miserably failed to produce any evidencemuch less clinching evidence in support of his case that he raisedconstruction including balcony and sunshades well within the landover which he has got right to do so. It was the plaintiff, whoapproached the Court seeking the remedy of permanent injunction,which fact was forgotten by both the Courts below.6. It is a common or garden principle of law that even in aninjunction suit, for the plaintiff to get permanent injunction, thereshould be evidence on his side to establish his prima facie titleover the land concerned. But in this case, both the Courts belowexpected the defendants to prove that the plaintiff's balcony andsunshades are over hanging or projecting on the road. While holdingso, I am fully aware of the fact that the public officials, who areattempting to demolish the over hanging structures on the road shouldadhere to the provisions of law strictly.7. In the memorandum of second appeal, the provisions of theTamil Nadu Land Encroachment Act 1905 (hereinafter referred as to the'Act' in short) are found referred to. But the defendants have notchosen to produce even a piece of paper that they resorted to theprovisions of the Act. As such, the defendants, who are raisingtheir accusative fingers against the plaintiff, should realisetheir responsibility as public officials to adhere to the mandates ascontemplated in the said Act.8. Here the defendants themselves as second appellants clearlyand categorically stated that the said Act is applicable in the factsand circumstances of this case. If that be so, I am at a lose tounderstand as to what prevented them from resorting to the provisionsof the said Act. Hence in these circumstances I am of the consideredopinion that both the Courts below were wrong in giving a categoricalfinding as though the plaintiff is entitled to injunction on thesupposition that the plaintiff is the owner of the land over whichthe balcony and sunshade are projecting. The injunction order asgranted by the lower Court and as confirmed by the appellate Court,deserves to be restricted in scope by pointing out that theinjunction order of the lower Court would be in force so long as the https://hcservices.ecourts.gov.in/hcservices/ defendants are not taking steps to remove those balcony and sunshadesby adhering to the provisions of the Act or such other laws as mightbe applicable. With this finding, the second appeal is disposed ofby modifying the judgements of both the Courts below as under:-The suit over hanging balcony and sunshades of theplaintiff shall not be removed by the defendant officialswithout resorting to the provisions of the LandEncroachment Act 1905 or such other laws as might beapplicable in the facts and circumstances of this case.No costs. Consequently, connected miscellaneous petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarMskTo1. The Sub Court, Kallakurichi2. The II Additional District Munsif, Kallakurichi.1 cc To The Government Pleader, SR.75811 cc To Mr.P.Valliappan, Advocate, SR.7662S.A.No.150 of 2009RSM(CO)SRA(26/03/2009)