1. The appellant, who is unsuccessful before the two Courts below filed the above Second Appeal against the judgment and Decree dated 31.10.1990 made in A.S.No. 30 of 1990 on the file of the Additional Sub Court, Cuddalore confirming the Judgment and decree dated 22.12.1989 made in O.S.No.827 of 1987 on the file of the Additional District Munsif.

2. The case of the appellant as plaintiff is that the suit property is a village natham property at Kothawalcherry Village, Cuddalore Taluk. The property has been purchased by the brother of the appellant one Jothiprakash by means of registered sale deed dated 13.7.1980 from one Ramasamy Iyer. Subsequently, there was a partition dated 29.8.1983 between the plaintiff and his brother Jothiprakash and in that partition the suit property was allotted to the plaintiff . From the date of purchase, the plaintiff and his brother were in possession and enjoyment of the property in their own right. Even the vendors of the property under sale deed dated 13.7.1980 were in possession and enjoyment in their own right by putting up a house in the property. While that being so, the Tahsildar, Cuddalore issued a notice under the Land Encroachment Act for eviction of the appellant from the suit property. It is the case of the appellant that no proceeding under the Land Encroachment Act has been taken against the appellant since they are not encroacher and they are in possession of the property for several years. With these averments, the appellant filed a suit for declaration that the notice issued, which has been marked under Ex.A2 dated 31.8.1987 under the provisions of the Land Encroachment Act is invalid and for permanent injunction.

3. The suit was resisted by the defendants by filing a written statement by the third defendant, who is the Commissioner , Panchayat Union, Kurinjipadi, wherein it is submitted that there is absolutely no doubt about the character of the land. It is a village natham poramboke and as such it belongs to the Government. When the land belongs to the Government, neither the plaintiff nor his predecessors in title have no right over the property and as such the action taken under the provisions of the Land Encroachment Act 1905 is in accordance with law.

4. On the basis of these pleadings, necessary issues were framed as to Whether the notice under Ex.A2 dated 31.8.1987 is a valid notice and the plaintiff is entitled to the relief sought for in the suit.

5. The trial Court held that admittedly the land is a village natham poramboke and as such it belongs to the Government only and any action taken by the Governmental authority to recover possession is in accordance with law and as such the invocation of the provisions under the Land Encroachment Act is in accordance with law and cannot be questioned by the appellant. This finding has been confirmed by the appellate Court on appeal being taken out by the appellant herein. The present appeal is filed against the said finding of the Courts below.

6. The learned counsel for the appellant has vehemently contended that when the character of the land has been admitted as a village natham, the invocation of the proceedings under the provisions of the Land Encroachment Act is unsustainable in law since there is no question of encroachment . It is the specific case of the appellant as plaintiff that they are in possession of the property on their own right and they purchased the property in the year 1980 from their predecessors in title. Even prior to the purchase, the predecessors-in title had put a house and they were in enjoyment of the property on their own right. Hence the finding given by the lower appellate Court is not in accordance with law. For that purpose the learned counsel relied on the decision of this Court in A.K.Thillaivanam and other v. District Collector Chengai Anna District and others, 1993 (3) LW 603.

7. Though notice has been served and appearance has been entered through the Government Pleader for the respondent No.l, the District Collector, South Arcot , there is no representation on behalf of the first respondent. Though the second and third respondents were duly served, either they have not chosen to appear in person or engage a counsel.

8. At the time of admission of the Second appeal the following questions of law were framed:-

1. Whether the courts below ought not to have held that summary eviction proceedings cannot be allowed, when there are disputed complicated question of title involved for adjudications as laid down in AIR 1982 SC 1031

2. Whether the courts below ought not to have held that the order under Ex.Al dated 31.8.1987 is not legally competent nor enforceable against Grama-natham a house site like that of the appellant in view of the decision in 1959 2 MLJ 514

3. Whether the courts below have not erred in holding that the suit is not maintainable

4. Whether the courts below have not erred in holding that the suit is barred by limitation

9. This appeal has been admitted and interim stay of all further proceedings has been granted. In order to resolve the controversy, it is necessary to state the defence taken by the respondent herein in their written statement before the trial Court. In the written statement filed by the third respondent herein as third defendant, which has been adopted by the first and second defendants, it has been without any uncertain terms accepted by the respondents that the suit property is village natham poramboke. The written statement further proceeds that the Government is the owner of the village natham and as such they are entitled to take action for eviction against the persons, who are in occupation of the Village natham and the invocation of the Land Encroachment Proceedings for the purpose of removal of such persons is legally sustainable. Even in the Counter affidavit filed before this Court, the District Collector the first respondent herein in para 4 has admitted that the suit property has been classified as village natham and the entire village Natham, whether occupied or unoccupied belongs to the Government and petitioner/appellant is not entitled to claim any title over the same by virtue of his possession alone apart from denying the continuous long possession of the appellant. Further the first respondent contended that village nathams were maintained for the purpose of homeless persons for putting up dwelling houses.

10. This specific case of the first respondent and third respondent clinches the issue in favour of the appellant for granting the relief as prayed for. The possession of the appellant or their predecessors in title has not been seriously disputed . What is disputed by the respondent is that the property as a village natham vests with the respondents they have every right to evict the person, who is in possession. As seen from those facts, the respondents have admitted and not disputed the possession of the appellant after 1980, which year the appellant is said to have purchased the property under the sale deed dated 13.7.1980 from Ramasamy Iyer under Ex.Al or the possession of the plaintiffs predecessors in title prior to purchase.

11. It is also not the case of the respondents that the appellant and his predecessors in title were assessed to any penal charge for their possession over the disputed property. When the appellant has been in exclusive possession of the property and their predecessors in title were also in enjoyment of the land without interference by any person, the appellant has acquired a valid right to the land by their exclusive possession. The village natham is a land which never vested with the respondents and they have no right over it. Admittedly when the land has been classified as village natham, it is obvious that no portion of the land vests with the respondents under Section 2 of the Land Encroachment Act 1905.

12. Section 2 of the Land Encroachment Act 1905, under which Ex.A2 notice has been issued, excludes gramanatham owned as house site. As such the provisions of the Land Encroachment Act, 1905 cannot be invoked by the respondents in respect of the land in question.

13. The issue has been settled as early as 1949 in the case Palani Ammal v. LSethurama Aiyanagar, 1949 (I) MLJ 290 that grama natham is not a communal property in the sense in which thrashing floor or burning grounds or other property is communal that is property reserved for the use of the community. Grama Natham a land in the occupation of the individual and possession of the gramantham cannot be interfered and it could very well resist ejectment and also institute a suit in ejectment against the trespasser.

14. Further the very same issue has been considered by E.PadmanabhanJ in A.K.Thillaivanam and other v. District Collector Chengai Anna District and others, 1998 (3) L.W. 603 in an elaborate fashion and it has been clearly held therein that the land Encroachment Act or the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act cannot be invoked in respect of the grama natham property occupied by general public. The above said decision in all fours applies to the facts of the present case.

15. For the above reasons, the judgment and decree of the trial Court in non suiting the plaintiff for the decree as prayed for cannot at all be sustained and the same has to be set aside and it is set aside and the suit filed by the appellant is allowed and there will be a decree as prayed for by allowing the second appeal. However, there will be no orders as to costs.