M. Subbaian v. Sri Koopidu Vinayakar

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 04.01.2018

CORAM

THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA S.A.No.555 of 2017 and C.M.P.No.13541 of 2017 1.M.Subbaian 2.M.Aruchamy 3.M.Deivathal 4.M.Dhanalakshmi 5.M.Karunambal 6.M.Natarajan 7.M.Vijayalakshmi ... Appellants/Defendants ..vs..

Sri Koopidu Vinayakar, Sri.Matheswarasamy Temple Represented by its Executive Officer, Anupparpalayam, Avinashi Road, Coimbatore-641 018.

... Respondent/Plaintiff Second Appeal filed under Section 100 C.P.C. against the Judgment and Decree dated 19.08.2016 in A.S.No.84 of 2013 on the file of the Principal Subordinate Judge's Court, Coimbatore, confirming the Judgment and decree dated 02/01/2013 in O.S.No.1176 of 2004 on the file of the III Additional District Munsif's Court, Coimbatore.

For Appellants : Mr.C.R.Prasanan

J U D G M E N T

Aggrieved by the unanimous decisions of the Courts below, the defendants have preferred the above Second Appeal.

2. The suit in O.S.No.1176 of 2004 was filed by the Plaintiff who is a temple, for recovery of possession of the 'B' schedule property and for damages for their illegal occupation of the 'B' schedule property with future damages and also recovery of a sum of Rs.2,000/- towards damages from the first defendant for enjoyment of 'A' schedule property.

3. The case of the Plaintiff is that originally, the suit properties belong to the Plaintiff Temple, which is an extent of 2.82 acres in Old Survey No.215 and New Survey No.91/1 in Perur Village, Coimbatore Taluk. The temple authorities auctioned the rights to collect the usufructs of the coconut and arecanut trees in the said lands. The rights were auctioned for three years originally from 23.06.1967 to 25.03.1970. The first defendant had participated in the said auction and became a successful bidder Since, his term came to an end on 25.03.1970, it was extended for a further period of another three years in favour of the first defendant. The first defendant also enjoyed the same during the extended period and the said term also came to an end on 28.09.1973.

It is stated by the Plaintiff that before the second extension of the term, the appellants herein filed O.S.No.394/1973 for declaration and for permanent injunction against the temple from interfering with their legal rights. The suit was originally decreed and on appeal it was allowed and as against the same, the second appeal was filed before this Court and this Court has remanded the matter back to the District Munsif Court for final disposal. Again the suit was decreed in favour of the first defendant, which was again appealed before the First Appellate Court, which allowed the appeal by dismissing the suit. Thereafter, no second appeal was preferred by the first defendant who was the plaintiff therein. Hence, the Judgment in A.S.No.190 of 1995 has become final. The said litigation itself was pending for more than 25 years.

After the said suit was dismissed, the first appellant herein vacated the 'A' Schedule property and delivered the possession to the Plaintiff on 12.08.1998. It is now stated that when the first appellant was in possession of the property, he had put up two dwelling units and two cattle sheds in the suit property, without the consent of the plaintiff who is the owner, and unauthorisedly living with his two brothers viz., Muthusamy and Arunchamy, who are the second and the third defendants herein. The first defendant who is only licencee has got no right to put up the construction in the suit property, without the consent of the landlord. As stated earlier though 'A' Schedule property was vacated and delivered possession, 'B' schedule property was in occupation of the defendants.

Hence, the suit was filed for recovery of possession and for damages for the permitted statutory period.

4. The defendants contested the suit claiming that the suit was barred by limitation and their possession is in their own right.

5. Before the trial Court, on the side of the Plaintiff, P.W.1 was examined and Exs.A1 to A3 were marked and the report of the Commissioner was marked as Exs.C1 and C2. Similarly, on

the side of the defendants, the third defendant examined himself as D.W.1 and Exs.B1 to B11 were marked.

6. The trial Court after considering the facts and evidence decreed the suit for recovery of possession and directed the defendants to vacate the premises within three months time, after removing the superstructure. On appeal also, it was confirmed by the First Appellate Court. Aggrieved by the same, the defendants/appellants have preferred the above second appeal.

7. The only point that has to be considered is that whether the defendants have got any right over the suit property?

8. It is the case of the appellants that the suit property belonged to them and their mother Chinnammal was given patta in her name. In support of the said contention, Ex.B3 was filed which is the patta issued in the name of the defendants mother Chinnammal.

9. The Courts below upon perusing Ex.B3 have concurrently came to the definite finding that in the said Patta issued in the name of the mother of the defendants, S.F.Number was mentioned as 271/2 and the suit property is with respect to Old S.F.No.215 and New S.F.No.91/1. Therefore, the defendants though claimed title to the suit property have not produced any document of title relating to the suit property. Hence, the Courts below had found that Ex.B3 cannot be relied upon. Besides, the perusal of the earlier proceedings between the parties would go to show that the defendants are only licencees and cannot claim any title and the said litigation also was pending for more than 25 years, admitting the title of the plaintiff.

The defendants have also filed the suit earlier seeking injunction against the Plaintiff not to disturb their right of possession. Whileso, they have taken a different stand that they are the owners of the suit property without any document of title. Thus, by any stretch of imagination, the defendants cannot claim right to the suit property, much less claiming ownership to the same. The appellants have also claimed adverse possession which also did not find favour with them by the Courts below.

10.The learned counsel for the appellant also argued that the suit is not maintainable without the prayer for declaration. As stated earlier, the title of the Plaintiff-temple have been admitted by the defendants in the earlier proceedings. Only when the cloud is cast on the title, there is a need to file the suit for declaration. In the instant case, the defendants/appellants had been litigating for more than two and half decades and had lost their claim. By no stretch of imagination, the defendants who have come to the suit properties as licencess can cast the

cloud upon the Plaintiff's right and title. So, when the right and title of the Plaintiff had been admitted by the very same defendants in the earlier proceedings, there was no necessity for the Plaintiff-temple to seek for declaration of title and this point also held against the appellants.

11. Yet another argument advanced by the learned counsel for the appellant is that of acquiescence. It is stated that the Plaintiff have been watching the defendants putting up the construction without raising any objection. Therefore, it is not open to them to claim the Mandatory injunction to remove the superstructure. When the defendants are admitted by licencees, then any construction should be with the consent of the landlord. If the defendants have put up the construction, without the permission or consent of the owner of the property, the same is at their own risk and it cannot be stated as acquiescence by the owner.

12. Thus, the appellants have failed in all their efforts. Therefore, Courts below have concurrently held against the appellants and decreed the suit and there is no reason to interfere with the same.

13. In the result, the Second Appeal is dismissed, confirming the Judgment and the decree of the Courts below. No costs. Consequently, connected Miscellaneous petition is closed. Sd/- Asst.Registrar (CS III ) /true copy/ Sub Asst. Registrar arr To

1. The Principal Subordinate Judge, Coimbatore.

2. The III Additional District Munsif Court, Coimbatore. +1cc to Mr.C.R.Prasanan, Advocate sr.no.752 S.A.No.555 of 2017 ak(co) nr 15/02/2018