Plaintiff has already determined tenancy by issuing notice.

1. The unsuccessful defendant has filed the second appeal aggrieved against the judgment and decree in A.S.No.82 of 1985, dated 5.2.1986 on the file of District Court, Erode, confirming the decree and judgment in O.S.No.2150 of 1981, dated 23.4.1984 on the file of Principal District Munsifs Court, Erode.

2. The case in brief is as follows: The suit properties had been treated as temple poromboke and enjoyed by the plaintiff for centuries. The trustees of the temple leased out the vacant site item 1 to the defendant originally on a monthly rent of Rs.10 and later raised to Rs.20. The defendant put up a superstructure in a portion of the same and he is in possession and enjoyment. The plaintiff also filed R.C.O.P.No.16 of 1973 to evict the defendant from the holding and the same was allowed. Subsequently, the defendant filed O.S.No.5 17 of 1976 on the file of District Munsifs Court, Erode and the suit was decreed with a direction that the plaintiff herein has to move the civil court for possession independently. The plaintiff requires the property for its own use. Valid notice terminating tenancy was also issued. There were proceedings before the Revenue Department also, calling upon the defendant not to put up any construction in any portion. The plaintiff is entitled to the rent due for the last 3 years. The suit was filed for declaration that the plaintiff temple is the owner of the suit properties directing the defendant to deliver possession of items 1 to 3 after removal of superstructure, grant permanent injunction and the plaintiff also claimed arrears of rent and future rent.

3. The defendant resisted the suit, contending that the plaintiff has not issued a valid notice to quit and the suit is liable to be dismissed on this ground. The plaintiff is not entitled to fall back upon the alleged notice sent by him long back. The revenue officials have issued ‘B’ memo notices to the defendant treating him as a trespasser and penal assessment was also collected from him. The plaintiff is not entitled to get any relief.

4. The trial court framed 6 issues and on behalf of the plaintiff. Exs.A-1 to A-10 were marked and P.Ws.l and 2 were examined. On the side of the defendant, Exs.B-1 to B-12 were marked and D.W. 1 was examined. Exs.C-1 and C-2 were marked on the side of the court. The trial court decreed the suit and the appeal filed by the defendant was also dismissed. Aggrieved against this, the defendant has come forward with the present second appeal.

5. The defendant/appellant raised the following substantial question of law:

(1) Whether the courts below failed to see that the Government of Tamil Nadu is a proper and necessary party for proper determination of the issue for the relief of declaration is concerned and the suit is bad for non-joinder of the necessary party.

(2) Whether the courts below are right in holding that the notice issued in the year 1972 is proper and quite legal notice for the purpose of instituting a suit in the year 1981.

(3) Whether the courts below are right in granting the relief of mandatory and permanent injunction while the construction put up is very much with the knowledge and permission of the plaintiff.

(4) Whether the findings of the courts below that the suit property is bonafidely required for the personal use of the plaintiff temple is correct in the absence of anything to prove the bona fide and despite the evidence adduced to show the lack of bona fide.

(5) Whether courts below have not considered the fact of issue of ‘B’ memos to the defendant by the Government of Tamilnadu in proper perspective which is essential for the proper disposal of the issue for the relief of declaration.

6. The points that arise for consideration are: (1) whether the plaintiff is entitled to declaration and delivery of possession, (2) Whether the plaintiff is entitled to the relief of permanent injunction. and (3) Whether the plaintiff is entitled to get arrears of rent as well as future rent.

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