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Judgment
E. Padmanabhan, J.—The petitioner prays for the issue of a writ of mandamus forbearing the respondents not to effect any change of name of occupier in the registers with regard to the poromboke property comprised in S. No. 106 of Sowripalayam Village, Coimbatore Taluk and District. Heard Mr. Ramesh Venkatachalapathy, learned counsel for Mr. S.N. Loganathan appearing for the petitioner, Mr. M.S. Palanisamy, Special Government Pleader appearing for respondents 1 and 2 and Mr. V. Nicholos, learned counsel appearing for the third respondent.
The petitioner claims that she had been in possession and enjoyment of the poromboke land comprised in S. No. 106 of Sowripalayam village as it is adjacent to her patta land that there is an attempt to issue B. Memo to the third respondent and change the entries in favour of the land in respect of the third respondent. The petitioner claims that she is an encroacher, she had been issued with B. Memos, she had paid penal charges continuously for a number of years and despite that at the instance of the third respondent, there is an attempt to issue fresh B. Memo in favour of the third respondent and thus deny the right of occupancy of the petitioner who is in occupation by paying penal levies.
Per contra, it is contended by Mr. V. Nicholos, learned counsel for the third respondent that the third respondent has already secured a decree in O.S. No. 345 of 1986 on the file of the District Munsif Court, Coimbatore restraining the defendants and their subordinates from issuing B. Memo or patta or other document or any kind in respect of the very same poromboke land to any third party excepting the plaintiff therein. After contest, it is represented that the said suit has been decreed by the trial Court.
Admittedly to the said suit, the writ petitioner was not a party even though as seen from the Judgment, the defendants in the said suit contended that the petitioner herein is in occupation and not the third respondent herein. As the petitioner is not a party to the said suit, the petitioner could very well ignore the said suit as it is not binding on him, but at the same time, the respondents cannot ignore the said decree and act otherwise.
The writ petitioner who came to know of the judgment and decree passed at the behest of the third respondent should have taken steps to substitute or sought for a declaration that the judgment and decree is void, inoperative or not binding on her in respect of the land which is in her occupation. But the petitioner had come before this Court seeking for the relief of Mandamus.
If the writ petition is to be allowed and if the petitioner''s claim is sustained, then there will be two diametrically opposite orders which are one by the Civil Court and other by this Court. It may be open to the petitioner to contend that the Civil Court decree passed at the behest of the third respondent is not binding on him, but at the same time, the respondents 1 and 2 cannot plead so. They have allowed the decree to become final. Mr. V. Nicholos, learned counsel for the third respondent represented that let the respondents 1 and 2 ascertain the enjoyment or occupation either by the petitioner or by the third respondent and thereafter depending upon the conclusion let them issue necessary B. Memo or collect penal charges and make appropriate entries. Such a stand would not be proper even though the counsel for the third respondent who had secured a decree, realising the legal position, had made such a statement. The decree passed by the Civil Court at the instance of the third respondent may be without jurisdiction if the legal position is examined by a competent Civil Court in appropriate proceeding. However, till then it cannot be ignored and such an approach is impermissible in law.
It is brought to the notice of the Court by the counsel appearing on either side, already suits have been filed between the same parties in respect of the same property in O.S.Nos. 345 of 1986 and O.S.No. 1724 of 1982, which are said to be pending on the file of the District Munsif Court, Coimbatore. As seen from the counter affidavit filed by the second respondent, B.Memo were issued in favour of the petitioner for the extent in question as an encroacher till Fasli year 1400. It is also the stand of the respondents 1 and 2 that it is the writ petitioner who is in occupation as an encroacher of the said land and the extent is 3 cents and it is accessible only to the petitioner not to the third respondent.
It is the further stand of respondents 1 and 2 that there is no encroachment in S.No. 106/1 Vari Poromboke and there are two dilapidated walls of 6 feet height and bushes in the portion of land in S.NO. 106/1 which was under the encroachment of the petitioner. It is also admitted by the respondents 1 and 2 that neither the petitioner nor any other person encroached the said portion in S.No. 106/1. Therefore, it is the stand of the respondents 1 and 2 as of today, the petitioner is not in possession of S.No. 106/1 Vari Poromboke. So also the contesting third respondent. But before that, the petitioner has been in possession as admitted by the respondents 1 and 2.
It is also represented that in the pending suit to which the writ petitioner as well as the respondents are parties, the Civil Court had directed maintenance of status quo by either parties. In the light of the said factual aspect of the matter, this Court would not be justified in issuing a mandamus as prayed for. But at the same time, taking note of the conduct of the third respondent and the statement made by Mr. V. Nicholos, learned counsel for the third respondent, it is directed in the pending civil suit without reference to the judgment and decree already passed in O.S.No. 345 of 1986 on the file of the District Munsif Court Coimbatore, the rights of the parties or their claim of possession of the parties and the right to occupy under B.Memo shall be decided by the Civil Court on merits and according to law on the basis of evidence that may be let in. Depending upon the ultimate orders that may be passed by the Civil Court in the pending civil suit namely O.S.No. 1724 of 1982, it is open to the respondents to issue B.Memo or collect penal charges.
It is also made clear that for any reason if the respondents 1 and 2 evict the encroachment either by the petitioner or by the third respondent by resorting to an action under the Land Encroachment Act, it is always open to" them to act accordingly after taking a decision. At the same time, if the rights of the petitioner who is the adjacent land owner and who could conveniently enjoy the encroachment shall not be ignored as the land could be used by the petitioner along with his adjacent: patta land for production more foodgrains.'' The writ petition is ordered accordingly. Consequently connected W.M.Ps are closed. No costs.