The main legal point established in the judgment is the entitlement of the plaintiff to a mandatory injunction for removal of encroachment, considering the evidence and absence of laches in filing the suit.

Arulmighu Mariamman Temple, the plaintiff, filed the suit against the defendant for mandatory injunction against one V.P.Ramasamy. During the pendency of the suit, the said Ramasamy died. So, his legal representatives, the appellants herein, were added as defendants 2 to 5. The trial Court decreed the suit in favour of the plaintiff. The lower appellate Court also confirmed the same and dismissed the appeal filed by the appellants. Hence, this Second Appeal.

2. The case of the plaintiff is as follows :

The suit temple Arulmighu Mariamman Temple is an ancient temple, existing for more than 100 years. The said temple is situate in Re-Survey No.93/2 in 0-15-0 Hectares. V.P.Ramasamy, the first defendant, owns his property to the south of the temple. He constructed the residential buildings about three years ago. He also filed a suit in O.S.No.132 of 1991 against the temple, represented by Hereditry Trustee Thangavel, claiming easementary right over the temple property. When the land was measured, it was found that the defendant encroached upon a portion of the land, measuring about 50.5 sq.mts. of the land. Hence, the present suit is filed for the relief of mandatory injunction for the removal of encroachment.

3. The case of the defendant is as follows :

The suit temple is situate in the poramboke land on the south of the temple. There runs an east-west ditch. Further south of the ditch, the defendant put up construction in the land, which belongs to the defendant. The construction was made long back more than 50 years ago. The defendant filed an earlier suit O.S.No.132 of 1991, disputing the right of Thangavel as the Hereditary Trustee of the said temple. Therefore, as a counterblast, he has filed this suit on behalf of the temple. The plaintiff temple has no property right over the entire extent of land, since it is a poramboke land, owned by the Government. Even assuming for the arguments sake that the defendant encroached the property three years ago, the plaintiff, having silently watched the construction without any protest, is not entitled to claim removal, as he is estopped from claiming any such relief by his conduct of acquiescence. Hence, the suit is liable to be dismissed.

4. On the basis of the above said pleadings, necessary issues were framed. During the course of trial, on behalf of the plaintiff temple, P.Ws.1 and 2 were examined and Exs.A-1 to A-15 were marked. On the side of the defendants, the fifth defendant and one Thangamuthu were examined as D.Ws.1 and 2 and Exs.B-1 to B-5 were marked. The Commissioner's Report and sketch were marked as Exs.C-1 to C-3. The trial Court ultimately decreed the suit, granting mandatory injunction for removal of the encroachment.

5. Aggrieved by the same, the defendants filed an appeal before the lower appellate Court, which, in turn, dismissed the same and confirmed the decree passed by the trial Court in favour of the plaintiff. Hence, this Second Appeal.

6. Learned counsel for the appellants would argue the Second Appeal on the basis of the following substantial questions of law:

i)In view of the admission made in the plaint by the plaintiff and also by P.W.1 both in chief-examination and also in the cross-examination to the effect that he was aware of the construction put up by the defendant three years prior to the filing of the suit, whether the Courts below are right in granting the decree for mandatory injunction without adverting to the law laid down by this Hon'ble Court reported in 1993 (1) M.L.J.73 ?

ii)Whether the learned Judge is right in granting the decree for mandatory injunction without producing any document of title in favour of the plaintiff-temple ?

In elaborating these questions of law, he would cite 1993 (1) M.L.J.73(G.S.Ramachar v.The Block Development Officer,Kaveripatnam and Others) and 2000 (III) C.T.C.663 (The Chief General Manager, State Bank of India, Chennai v. M.Balakrishnan and another) and contend that P.W.1 admitted in the cross-examination