SA/1288/2002 of TAMIL NADU BRICK INDUSTRIES, Vs STATE, REP.BY COLLECTOR, on 20 December 2002

:JUDGMENT

This appeal is directed against the judgment and decree dated9.4.2 001 in A.S.No.37 of 1995 on the file of the Subordinate Judge,Poonamallee confirming the judgment and decree dated 30.8.1994 in O.S.No.58 2of 1983 on the file of the District Munsif, Poonamallee.2. The unsuccessful plaintiff, who lost the suit both in thetrial Court and in the first appellate Court, is the appellant herein. Thesuit was filed for permanent injunction restraining the defendants and theirmen from removing the fencing put up by the plaintiff around the suit property including the portion marked as ABCD in the plaint plan. According to theplaintiff, it has purchased the lands measuring 35.55 acres in Nolamburvillage, Saidapet taluk and there is a water channel from Nolambur lake andthe said channel is running in the middle of the lands purchased by theplaintiff. According to the plaintiff, the plaintiff and itspredecessors-in-title have been enjoying the channel for the past severaldecades. According to the plaintiff, the plaintiff has put up fence aroundits lands including the channel and the plaintiff has been in possession andenjoyment of the channel along with the lands and the Government also issuedBMemos showing that the plaintiff has been enjoying the channel. The suit hasbeen filed on the ground that the defendants have attempted to interfere withthe plaintiff's possession and enjoyment of the channel. The plaintiff hasalso referred to an earlier suit in O.S.No.1118 of 1982 on the file of theDistrict Munsif, Poonamallee and it is stated that there was a compromise andon the basis of the compromise, the suit was dismissed as withdrawn with theliberty to file a fresh suit. According to the plaintiff, the defendants havebeen taking steps to remove the fencing put up by the plaintiff around thechannel portion and therefore the suit has been filed for permanentinjunction.

3. The defendants, viz., the Government of Tamil Nadu denied all the allegations. In the written statement, it is stated that the channelis situate in Survey Nos.143/2,146/3, 147/2, 147/3 and 148 and the channelpasses through the patta lands belonging to the plaintiff. According to thedefendants, the channel is meant for all persons. It is stated by thedefendants that the plaintiff has encroached upon the channel poramboke byputting fence around the same and the plaintiff has been removing earththerefrom. It is stated that the fence was removed on 28.7.1982 to allow theusage by others. It is also stated that the plaintiff was served notices foreviction of encroachment and the defendants have got every right to evict theplaintiff from the poramboke land of the defendant.

4. On the above pleadings, necessary issues were framed and

the learned District Munsif has found that there are no substantial evidenceto show that the suit channel was in possession and enjoyment of theplaintiff. The trial Court noticed the documents, Exs.A-1 to A-5 and foundthat they do not refer to any survey number. The trial Court also held thatthe plaintiff has not proved that he was in possession of the channelexclusively and the plaintiff is not entitled to seek injunction against theGovernment who is the title holder. Though the trial Court has not acceptedthe plea of the defendants that the suit was barred by res judicata, it hasfound as fact that the plaintiff has not furnished the survey numbers in theplaint in which the suit channel is situate, nor the plaintiff has proved byway of any oral and documentary evidence that the plaintiff is in possessionand enjoyment of the suit channel and dismissed the suit for injunction. Theabove judgment was confirmed by the first appellate Court. It is against thejudgment and decree of the first appellate Court, the present second appealhas been filed.

5. The appeal comes up for admission. I heard Mr.K.V.Subramanian, learned counsel for the appellant. His submission wasthat the plaintiff has proved by documents, Exs.A-1 to A-5 that the plaintiffis in possession and enjoyment of the suit channel. Learned counsel alsosubmitted that the fact that B-Memo. was issued by the State clearly shows that the plaintiff is in possession and enjoyment of the suit channel.According to the learned counsel for the plaintiff, the fence has been put uponly to prevent unruly elements from entering into the lands of the plaintiff.Learned counsel also submitted that since the plaintiff is in possession ofthe channel, the plaintiff cannot be dispossessed without recourse of law. Inthis connection, learned counsel relied upon the decision of the Supreme Courtin ANAMALLAI CLUB v. GOVT.OF T.N. (1997) 3 S.C.C.169). Learned counselsubmitted that an amendment petition has been filed seeking amendment of theplaint by adding the following words, 'except in accordance with law' insub-paragraph-A of paragraph-9 of the plaint.

6. I have carefully considered the submissions of the learned

counsel for the appellant. The trial Court found as a matter of fact that theplaintiff has not established by oral and documentary evidence that theplaintiff is in possession and enjoyment of the suit channel. The trial Courtalso found that the plaintiff has not even given the survey numbers in theplaint in which the channel is situate and the documents, Exs.A-1 to A-5 donot show that they really relate to the channel. It was also found that thedocuments do not disclose the survey numbers in which the suit channel issituate. It was also found as a matter of fact that the plaintiff is not inexclusive possession and enjoyment of the channel. Even assuming that theGovernment issued B-Memos., since it is proved that the channel is open topublic, it is impermissible for the plaintiff to seek injunction against theGovernment from removing the fence put up by the plaintiff around the channel.The defendants have not attempted to encroach upon the plaintiff's property,but the claim made by the plaintiff is that the Government should be preventedfrom removing the fence put up by the plaintiff around the suit channel whichis a public property. Admittedly, the Government is the owner of the suitchannel and it is impermissible for the plaintiff to appropriate the publicchannel by fencing around the channel and try to make use of the channel forits private use.

7. The decision relied upon by the learned counsel for the appellant in Anamallai Club's case (1997) 3 SCC 169) does not support the caseof the appellant as the Supreme Court was not dealing with a suit filedseeking injunction restraining the owner from removing the fence permanentlyfor ever. Further, the decision has also no application as the plaintiffseeks injunction by encroaching the public channel by putting up fencingaround the channel in which the plaintiff is not found to be in possession.The result of granting of the prayer would be that the Government which is theowner of the channel would be permanently prevented by a decree of the Courtthat the Government should not remove the fence put up by the plaintiff. Theratio of the decision of the Supreme Court in Anamallai Club's case is that ifa person was found to be in possession, he should not be dispossessed exceptin accordance with law. But the law laid down by the Supreme Court is not tothe effect that the Court should grant injunction against the Government whois the owner from exercising its right by removing the fence illegally put upby the plaintiff around the public channel permanently. Hence, the decisionhas no application to the facts of the case.

8. In so far as the amendment petition in C.M.P.No.16980 of 2002 is concerned, it is a highly belated one. The suit is of the year 198 3and the plaintiff, realising its mistake in seeking permanent injunctionagainst the Government from removing the illegally put-up fence around the channel, tried to cover up the vital defect in the plaint by seeking theamendment. I hold that the amendment petition is highly belated and not abona fide one. Further, even on merits, I am not inclined to allow thepetition as the injunction sought for cannot be granted against the owner ofthe channel as it would enable the plaintiff to continue the illegal act.Accordingly, C.M.P.No.16980 of 2002 is dismissed.

9. Accordingly, the appeal fails and the same is dismissed, in limine, at the admission stage itself. Consequently, the C.M.Ps. aredismissed.

Index: YesWebsite: Yes

na.

To

1. The Subordinate Judge, Poonamallee.

2. The District Munsif, Poonamallee.