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Judgment
The Honorable Mr. Justice M. Venugopal
The Appellant/Respondent/Plaintiff has projected this instant Second Appeal before this Court as against the Judgment and Decree in A.S. No. 199 of 2003 dated 30.04.2004 passed by the Learned II Additional Subordinate Judge, Madurai, in reversing the Judgment and Decree in O.S. No. 117 of 2002 dated 27.06.2003 passed by the Learned District Munsif, Melur.
The Plaint Averments:
According to the Appellant/Plaintiff, the suit property in new Survey No. 886/25 at A. Vallalapatti Village, Utkadai Ariyappanpatti is a house site. Originally, the suit property has been enjoyed by the Appellant/Plaintiff''s forefathers and thereafter, it has been enjoyed by the Appellant/Plaintiff''s father. After their demise, the suit property has been enjoyed by the Appellant/Plaintiff. In respect of the suit property, in favour of the Appellant/Plaintiff, Patta No. 1787 has been issued and the Appellant/Plaintiff has been paying the Kist in her name. The First Respondent/First Defendant has issued tax receipts in the name of the Appellant/Plaintiff''s mother Nagammal and in favour of the Appellant/Plaintiff.
(ii). In the suit property, the Appellant/Plaintiff has constructed a house in a portion and the balance portion, she is in enjoyment of the same for the past seven generations and also in possession of the same. Further, the Special Tahsildar has issued a patta dated 16.06.1992 in favour of the Appellant/Plaintiff. The Appellant/Plaintiff is a widow. During October 2000, when the Appellant/Plaintiff has been in enjoyment of the suit property, at that point of time, the First Respondent/First Defendant has made arrangements for construction of a water tank and lying of underground pipeline and the Appellant/Plaintiff has objected the same. However, the Respondents/ Defendants in the suit property have constructed a water tank and also laid the underground pipeline. Though objection has been raised by the Appellant/Plaintiff, the Village Panchayat President etc., have threatened the Appellant/Plaintiff and unlawfully, they have constructed the water tank in the patta land of the Appellant/Plaintiff.
(iii). The Respondents/Defendants in the suit property have constructed a water tank at a cost of Rs.1.5Lakhs with a capacity of 10,000Litres under Tamil Nadu Special Water Supply Scheme 2000-2001 year and they have also obtained the water tank Door number permission and also the electricity connection number is 817/5HP. The Respondents/Defendants have also installed 12 x 12 motor. From the aforesaid water tank, from the date of getting electricity service connection, water has been supplied and the water tank has been maintained by the Village Panchayat. In the suit property, a residential house is in one portion bearing Door No. 11 (Old No. 9/72).
(iv). The Appellant/Plaintiff, after her parents'' death, she has been in enjoyment of the suit property and at the instance of persons, who are not favour to the Appellant/Plaintiff, in the suit property, the Respondents/Defendants without giving any prior notice to the Appellant/Plaintiff have encroached upon the suit property and have constructed the water tank with underground pipeline. Thus, the Respondents/Defendants have interfered with the separate possession of the Appellant/Plaintiff in the suit property. The Appellant/Plaintiff has remained patience since the water tank has been constructed for the welfare of the Grama Panchayat. The Appellant/Plaintiff has demanded a sum of Rs.10,000/-as compensation, which has been denied by the First Respondent/First Defendant and as such, the Second Respondent/Second Defendant is also arrayed as one of the parties to the suit proceedings. When the Appellant/Plaintiff has approached the First Respondent/First Defendant on numerous occasions, she has been threatened by the First Respondent/First Defendant who sent her back. Lastly, on 01.10.2001 the Appellant/Plaintiff has demanded in person from the First Respondent/First Defendant about the payment of compensation, for which the First Respondent/First Defendant replied that she can do whatever she likes, but no compensation can be given and scolded the Appellant/Plaintiff and sent her back. Hence, the present suit has been laid by the Appellant/Plaintiff claiming compensation of Rs.10,000/-from the Respondents/Defendants 1 and 2 and for payment of suit costs.
The Written Statement Pleas of the First Respondent/First Defendant( Adopted by the Second Respondent/Second Defendant):
The suit filed by the Appellant/Plaintiff is not maintainable either on facts or on law. The Appellant/Plaintiff is not entitled to claim any reliefs as prayed for in the suit. Since the Appellant/Plaintiff has not issued any prior suit notice to the Respondents/Defendants, as per Section 231 of the Tamil Nadu District Municipalities Act, the suit filed by the Appellant/Plaintiff is to be rejected in limine. Two months time will have to be granted to the Respondents/Defendants before ever the Appellant/Plaintiff filing a suit against them. The Appellant/Plaintiff has no connection whatsoever with the suit property. More particularly, the Appellant/Plaintiff''s predecessors have no manner of right or they have enjoyed the property at any point of time. The water tank constructed by the First Respondent/Town Panchayat place has nothing to do with the suit Survey No. 886/25 mentioned in the plaint.
(ii) As matter of fact, the suit property etc., in Vallalapatti village where the houses are there belongs to ''Grama Natham'' which has been classified only in that manner. Other than the portion where the houses have been constructed by the individuals, rest of the vacant potions has remained as an un-occupied Pocomoke. Only in the portion where the houses have been constructed, patta has been granted to the respective persons. At the time of grant of patta, the Appellant/Plaintiff has given wrong particulars and has obtained a patta in her favour for vast extent of property. Therefore, the said patta cannot be accepted in law. Even assuming that in the suit property the Appellant/Plaintiff has a right, she has not raised any objection at the time of construction of water tank and underground pipeline. Therefore, by her own conduct, she is stopped to file the present suit in claiming the compensation. The Second Respondent/Second Defendant is an unnecessary party and therefore, the suit is bad for mis-joinder of party.
Before the trial Court in the main suit, 1 to 2 issues have been framed for adjudication. On behalf of the Appellant/Plaintiff, witness P.W.1 (Plaintiff) has been examined and Exhibits A.1 to A.22 have been marked. On the side of the Respondents/Defendants, witnesses D.W. 1 and D.W. 2 have been examined and Exhibits B.1 to B.6 have been marked.
The trial Court, on an appreciation of oral and documentary evidence available on records while passing the judgment in the main suit has among other things, observed that the water tank has been constructed in Survey No. 886/25 and that the suit property belongs to the Appellant/Plaintiff as per patta and further that the water tank has been constructed in half a cent in the place belonging to the Appellant/Plaintiff by the First Respondent/First Defendant and consequently, the Appellant/Plaintiff is entitled to claim a compensation of Rs.10,000/-from the First Respondent/First Defendant and accordingly passed a decree to that effect.
Feeling aggrieved against the Judgment and Decree of the trial Court, dated 27.06.2003, in O.S. No. 117 of 2002, the First Respondent/First Defendant as an Appellant has filed A.S. No. 199 of 2003, on the file of the
The First Appellant Court viz., the Learned II Additional Subordinate Judge, Madurai has framed three points for consideration in apart and ultimately has held that the first Respondent/Plaintiff (the Appellant in Second Appeal) has not stopped her own case and further opined that the First Respondent/Plaintiff has allowed the construction of water tank and also allowed the common people to use the water and after lapse of three years, she is stopped from claiming any damages and resultantly allowed the appeal without costs, thereby set aside the Judgment and Decree of the trial Court passed in O.S. No. 117 of 2002 dated 27.06.2003.
Being dissatisfied with the Judgment and Decree of the First Appellate Court viz., the Learned II Additional Judge, Madurai in A.S. No. 199 of 2003 dated 30.04.2004, the Appellant/Plaintiff has preferred the present Second Appeal before this Court. Learned II Additional Subordinate Judge, Madurai, as an aggrieved person.
At the time of admission of the Second Appeal this Court has framed the following Substantial questions of Law:
Whether the Appellant/Plaintiff has been stopped by conduct under the facts and circumstances of the case, since the Appellant/Plaintiff has no knowledge about the resolution of water tank in her house site?
Whether the suit is barred by limitation to claim damages, when the resolution was passed on 05.09.2000 by the First Defendant? and
Whether the period of limitation starts from knowledge of fact or date of resolution?
The Contentions, Discussions and Findings on point Nos. 1 to 3:
The Learned Counsel for the Appellant/Plaintiff urges before this Court that the First Appellate Court has failed to appreciate Kist receipts paid by the Appellant/Plaintiff for the house and the vacant site connected with the house.
(ii) Advancing his arguments, it is the contention of the learned Counsel for the Appellant/Plaintiff that the First Appellate Court has committed an error in observing that the Appellant/Plaintiff has not specifically pleaded the damage, when any reality the Appellant/Plaintiff has claimed a sum of Rs.10,000/-as compensation for the damage portion of 12 x 12 feet.
(iii) It is the stand of the Appellant/Plaintiff that the finding of the First Appellate Court that the water tank is situated in Survey No. 886/27 is devoid of any evidence and in the absence of any proof to establish that water tank has been situated in Survey No. 886/27, the observation/finding of the First Appellate Court in this regard suffers from serious miscarriage of justice.
(iv) Apart from the above, the Learned Counsel for the Appellant/Plaintiff proceeds to contend that the First Appellate Court has omitted to discuss about the non-entry of water tank in Exs.B.1 and B.2.
(v) Lastly, it is the submission of the Learned Counsel for the Appellant/Plaintiff that the First Appellate Court has not taken into account the material factors of the case in proper and real perspective.
(vi) In response, it is the contention of the Learned Government Advocate for the Respondents 1 and 2 that the water tank has been constructed by the First Respondent/First Defendant in Survey No. 886/27 and the suit property which is situated in Survey No. 886/25 has no connection to the water tank that has been constructed and that the Survey No. 886/27 has been chosen by the First Respondent/First Defendant for construction of water tank as per Panchayat resolution dated 16.06.2000 and the land classified as ''Grama Natham'' has been under the maintenance of Municipality and when the scheme works for construction of water tank has been going on for the last six months, no objection has been raised by the Appellant/Plaintiff and subsequently the Appellant/ Plaintiff raising an objection, is clearly unsustainable in law.
(vii) The Learned Government Advocate appearing for the Respondents 1 and 2 submits that the First Appellate Court has rightly held in A.S. No. 199 of 2003 that the Appellant/Plaintiff has not established her own case etc., and allowed the Appeal filed by the First Respondent/First Defendant, which need not be interfered by this Court.
(viii) This Court has heard the Learned Counsel appearing for the parties and noticed their rival submissions.
(ix) Ex.A.1 is the Form No. 4 House site tax patta, which stands in the name of the Appellant/Plaintiff in respect of the New Survey No. 886/25, measuring an extent of 0.02.53.0. In Ex.A.1 patta, the patta number has been mentioned as 1787, which has been issued by the Special Tahsildar(Natham Land Tax Scheme), Melur.
(x) Ex.A.16 is the notice issued to the Appellant/Plaintiff in respect of the patta No. 1787 under Tamil Nadu Survey and Boundaries Act 1923 (as per Section 9(2)). In Ex.A.16, Survey No. is mentioned as 886/25 and the extent is mentioned as 0.02.53.0.
(xi) Ex.B.1 is the suit survey sketch (Xerox copy) signed by the Headquarters, Deputy Tahsildar, Melur and Ex.B.2 is the Natham Land Tax Scheme Adangal true copy Register extract which refers to Survey No. 886/27 (Old Survey No. 256/1A1A ) measuring an extent of 0.01.35.0. The classification of the Survey No. 886/27 is described as ''Grama Natham'' in Ex.B.2 document.
(xii) A perusal of Ex.B.3, A. Vallalapatti Panchayat resolution proceedings dated 16.06.2000 shows that an approval has been given for construction of ground level water tank in Survey No. 886/27 at Grama Natham. Ex.B.4 is the proceedings of the A. Vallalapatti Municipality dated 05.09.2000 which speaks of water supply and drainage board construction of overhead water tanks, anticipation of sanction of work order in respect of 7th Ward Ariyanpatti 10,000Litres capacity of ground level water tank etc.,
(xiii) For better appreciation of the factual matrix of the case, this Court opines that the oral evidence of P.W.1 (Plaintiff), D.W.1 and D.W.2 plays a vital role in the instant case.
(xiv) It is the evidence of P.W.1 (Plaintiff) that the suit property measures a total extent of six cents and initially the suit property has been enjoyed by her grandfather Vellaiyan and after his death her grandfather''s son Nelliappan has enjoyed the same and after Nelliappan, his daughter Nagammal is in enjoyment and Nagammal is her mother and for these enjoyments, there are tax receipts and patta.
(xv) P.W.1 proceeds to add in her evidence that the Respondents/Defendants have constructed an overhead water tank three years before and at the time of construction of overhead water tank, she raised her objection. But the Respondents/Defendants informed her to take whatever action she can take and from the overhead water tank, for the village, the water has been supplied and for the past four months, there has been no supply of water and before construction of the water tank, she has not been put on any information/notice.
(xvi) P.W.1 (in her cross examination) has categorically deposed that she has not given any notice u/s 83 to the Second Respondent/Second Defendant and it is not correct to state that the overhead water tank has been constructed in Survey No. 886/27 and not in Survey No. 886/25 and that in the suit property, overhead water tank has been constructed.
(xvii) D.W.1(Junior Assistant of the First Respondent/First Defendant Municipality) in his evidence has deposed that the house of the Appellant/Plaintiff is situated at Survey No. 886/25 and that the Appellant/Plaintiff is residing in Ward No. 7 of Vallalapatti Town Panchayat and in Ariyapatti, the water tank has been constructed in Survey No. 886/27 and that Survey No. 886/25 and 886/27 are separate places and Ex.B.1 is the tope sketch and that the Appellant/Plaintiff is not in enjoyment of Survey No. 886/27.
(xviii) It is the further evidence of D.W.1 that it is wrong to state that water tank has been constructed in the place of Appellant/Plaintiff and that minutes book have not filed and also the copies have not been filed before the Court.
(xix) D.W.2(V.A.O) in his evidence has deposed that the Appellant/Plaintiff is residing in Survey No. 886/25 which is a ''Grama Natham'' and for the place where the Appellant/Plaintiff resides, she has been given a patta and Ex.A.1 patta is only an approximate patta and he does not know that whether the patta can be issued by the Tahsildar in respect of the vacant place.
(xx) It is the specific case of the Appellant/Plaintiff that the First Respondent/First Defendant has constructed the water tank in Survey No. 886/25 (Patta No. 1787) and that the suit property is a ''Grama Natham'' and further it is now under her enjoyment and possession. Before that her predecessors have been in enjoyment of the suit property for quite a number of years. For construction of the overhead water tank in the suit property, the Appellant/Plaintiff has claimed a sum of Rs.10,000/-as compensation from the Respondents/ Defendants. The plea of the Appellant/Plaintiff has been denied by the Respondents, more specifically by the First Respondent/First Defendant that the overhead water tank has been constructed in Survey No. 886/27 which is classified as ''Grama Natham'', the Respondents/ Defendants having constructed the overhead water tank in Survey No. 886/25. Moreover at a time when the overhead water tank has been constructed in the year 2000, no endeavour has been made on the part of the Appellant/Plaintiff to raise any objection or protest against the construction of the overhead water tank by the First Respondent/First Defendant Town Panchayat. Therefore at a later point of time, it is not open to the Appellant/Plaintiff to raise an untenable objection that the overhead water tank has been constructed by the First Respondent/First Defendant in the suit property viz., in Survey No. 886/25 which has been in enjoyment and possession of the Appellant/Plaintiff.
(xxi) It is to be borne in mind that in a civil suit the plaintiff is a dominos litus. In a civil litigation/civil suit, it is the duty of the plaintiff who comes to Court, has to prove the case. A Plaintiff has to stand or fall on his or on her own legs. He or she cannot succeed on the weakness of the Defendant''s case. No doubt, in a civil case preponderance of evidence will be the utmost factor guiding a Court of law in arriving at a particular finding touching upon the subject matter of disputes or controversies involved between the respective parties.
(xxii) On going through the Judgment of the trial Court in O.S. No. 117 of 2002 dated 27.06.2003, it is evident that the trial Court has held that the overhead water tank has been constructed in Survey No. 886/25 and that place belongs to the Appellant/Plaintiff through a patta. It is also observed, on what basis the Appellant/Plaintiff has claimed a sum of Rs.10,000/-as compensation for construction of an overhead water tank need not be taken into consideration. Added further, the trial Court has opined that on what basis the Respondents/Defendants are liable to pay compensation of Rs.10,000/-to the Appellant/Plaintiff has not been stated by her. Finally it has come to the conclusion that the Appellant/Plaintiff is entitled to claim the compensation asked for and resultantly passed a decree for Rs.10,000/-. The trial Court has granted two months time to the First Respondent/First Defendant to pay the compensation amount of Rs.10,000/-.
(xxiii) In the instant case on hand, when the Appellant/Plaintiff in the suit has come out with categorical plea that the First Respondent/First Defendant has constructed a overhead water tank in Survey No. 886/25 viz., in her place (Grama Natham) and when the First Respondent/First Defendant has repelled the contention of the Appellant/Plaintiff and has come out with the defense by mentioning that the overhead water tank has been constructed in Survey No. 886/27 (which is classified as Grama Natham), no endeavour has been made by the Appellant/Plaintiff for filing an application/petition before the trial Court for an appointment of an Advocate Commissioner to find out or locate or identify exactly in which place or in Survey No. , the overhead water tank has been constructed by the First Respondent/Plaintiff. Also, the Appellant/Plaintiff has not taken any initiative to summon any Government records or any independent revenue officials to establish her case that the overhead water tank has been constructed only in Survey No. 882/25 and not in Survey No. 886/27. A Court of Law, when an Advocate Commissioner is appointed to identify the Survey No. or to identify in which the property/Survey No. , the overhead water tank has been constructed, has to rely on the report of the Advocate Commissioner by taking into account, the other relevant available evidence on record. An Advocate Commissioner''s report is not per se evidence. However, an Advocate Commissioner''s report will help the Court of law in arriving at a just, fair and equitable solution to the disputes involved between the parties in a given case. The Appellant/Plaintiff before the trial Court has produced only house tax Kist receipts and admittedly only in portion of Survey No. 886/25, house has been constructed by the Appellant/Plaintiff. There is no single document on the side of the Appellant/Plaintiff to exhibit or show that for the remaining extent of land which the Appellant/Plaintiff is in possession that a kist or land tax receipt has been paid by the Appellant/Plaintiff. Indeed, the approximate patta given to the Appellant/Plaintiff in regard to Survey No. 886/25 has not been denied by the Respondents. As regards the grant/assignment of rough ptta, the Government can regulate the rights. In the case on hand, the Appellant/Respondent/Plaintiff has not sought for relief of mandatory injunction for removal of water tank. In civil Proceedings, a burden of proof as Section 101 of the Evidence Act lies on the Appellant/Plaintiff. A person who asserts a particular fact in the affirmative is bound to establish the same. In law, the burden of proof is also not static. It shifts from one position to another and also the onus will also be on the other side to establish his/her point of view. A matter which is in the position or special knowledge of a particular person, then it is for the said concerned person to produce or to speak about the said knowledge and it is the base form of evidence as per Indian Evidence Act. The enjoyment of the Appellant/Plaintiff in Survey No. 886/25 is not in dispute. But the crux of the issue is whether the Appellant/Plaintiff has proved her case to the effect that the construction of overhead water tank has been made in Survey No. 886/25 when the Appellant/Plaintiff claims compensation for damages for the construction of overhead water tank by the First Respondent/First Defendant then she has to prove her case to the hilt. As pointed out by earlier, the Appellant/Plaintiff has not taken any steps for appointment of any Commissioner and further she has not made any efforts to prove her case in the manner known to law and in accordance with law, when the construction has been proceeding for a well over six months, the Appellant/ Plaintiff has remained silent. Even after completion of construction of an overhead tank she has remained quiet for some years. Only after lapse of three years she has projected the present suit before the trial Court claiming damages.
(xxix) On the basis of available material evidence on record viz., the oral and documentary evidence, the trial Court is of the considered view that it is not possible for this Court to come to a definite conclusion that the First Respondent/First Defendant has constructed an overhead water tank in suit property Survey No. 886/25. Even on the side of the First Respondent / First Defendant no public
document viz., Field Map Book (FMB) or other document has been projected to show that the overhead water tank has been constructed in Survey No. 886/27. With the available oral and documentary evidence on record if this Court decides this matter, then it will affect the rights of one party or the other. Therefore, this Court in the interest of justice feels that an opportunity will have to be provided to both parties to prove their case by letting in additional or oral documentary evidence and also for examination of additional witnesses as the case may be. Therefore, this Court without going into the merits of the matter sets aside both the Judgment and Decree of the trial Court as well as the First Appellate Court to prevent an aberration of justice and accordingly allows the appeal by leaving it open the substantial questions of law 1 to 3 as unanswerable.
(xxx) It is open to the Appellant/Plaintiff to project an interlocutory application before the trial Court praying for appointment of an Advocate Commissioner or for appointment of licensed surveyor and his examination in the manner known to law and in accordance with law. Liberty is also granted to the Respondents/Defendants to let in additional, oral and documentary evidence including the examinations of further witnesses and for producing and marking the public records to project their version in reality that the overhead water tank has only been constructed in Survey No. 886/27 Grama Natham and not in the place viz., Survey No. 886/25 which is in possession and enjoyment of the Appellant/Plaintiff.
(xxxi) In the result, the Second Appeal is allowed leaving the parties to bear their own costs. Consequently the Judgment and Decree of the trial Court in O.S. No. 117 of 2002 and that the First Appellant Court in A.S. No. 199 of 2003 are hear by set aside to promote substantial cause of justice and in furtherance of justice. The matter is remitted back to the trail Court for fresh disposal in accordance with law and in the manner known to law. Since the suit is of the year 2002, the trial Court is directed to dispose of the main suit within period of six months from the date of receipt of a copy of this judgment. The parties are directed to lend a helping hand to the trial Court in regard to the completion of proceedings so as to give a complete quietus to the disputes/controversies involved between the parties. As and when an application/petition for appointment of an Advocate Commissioner/Licensed Surveyor is filed by the Appellant/Plaintiff before the trial Court, the trail Court is directed to provide an opportunity to both parties to project their bone of contentions of their own and even objections to the report of the Advocate Commissioner/Licensed Surveyor and to pass necessary orders on merits. It is open to the trial Court to fix the remuneration for the Advocate Commissioner/Licensed Surveyor.