IMPORTANT POINT
If a suit has been instituted in respect of an immovable property plaint should contain proper description of suit.

A. Selvam, J. —The judgment and decree dated 9.8.2007 passed in Appeal Suit No. 41 of 2006 by the Principal Sub Court, Kumbakonam are being challenged in the present Second Appeal.

2. The appellant herein as plaintiff has instituted Original Suit No. 4 of 2004 on the file of the Principal District Munsif Court, Valangaiman at Kumbakonam for the relief of mandatory injunction, wherein the present respondents have been shown as defendants.

3. The Trial Court after considering the rival evidence adduced on either side has decreed the suit as prayed for. Against the judgment and decree passed by the Trial Court, the defendants 1 to 4 as appellants have preferred Appeal Suit No. 41 of 2006 on the file of the first Appellate Court.

4. The first Appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed Appeal Suit No. 41 of 2006 and thereby set aside the judgment and decree passed by the Trial Court in Original Suit No. 4 of 2004. Against the judgment and decree passed by the first Appellate Court, this Second Appeal has been preferred at the instance of the plaintiff as appellant.

5. At the time of admitting the present Second Appeal, the following substantial questions of law have been formulated for consideration:

“(i) Whether the lower Appellate Court is right in rejecting the plea of the legal bar under Section 48 of the Trust Act to the facts of the case?

(ii) Whether the lower Appellate Court is right in rejecting the plea of Section 108(p) of the Transfer of Property Act to the facts of the case?”

6. Before analysing the rival submissions made on either side, it would be more useful to look into the nature of averments made in the plaint as well as in the written statement. In the plaint it has been specifically pleaded that the suit properties are situate in Survey Nos. 2/4, 3/2, and 4/3. The defendants 1 to 4 without prior permission of the plaintiff have put up construction and therefore the alleged construction should be removed by means of mandatory injunction.

7. In the written statement it has been stated that at the time of construction, the plaintiff has not raised any objection. Therefore the plaintiff has acquiesced the alleged construction put up by the defendants 1 to 4 and further the description of properties is totally erroneous and altogether the present suit deserves to be dismissed.

8. As stated earlier, the Trial Court has decreed the suit as prayed for. But the first Appellate Court has dismissed the suit.

9. The learned Counsel appearing for the appellant has repeatedly contended that the plaintiff is the absolute owner of the suit properties. The defendants 1 to 4 are nothing but tenants of the plaintiff and they stealthily put up the alleged construction. Under the said circumstances, the present suit has been instituted for the relief of mandatory injunction and the Trial Court has rightly decreed the suit as prayed for. But the first Appellate Court without considering the nature of ownership of the suit properties and also alleged construction put up by the defendants 1 to 4, has erroneously dismissed the suit and therefore, the judgment and decree passed by the first Appellate Court are liable to be set aside.

10. In order to controvert the argument advanced on the side of the appellant, the learned Counsel appearing for the respondents 1 to 3 has also equally contended that only with the knowledge and also permission of the plaintiff, the alleged construction has been put up and therefore, the plaintiff is barred by way of acquiescence from questioning construction and further the description of suit properties is not proper and the Trial Court without considering the nature of infirmities which are in existence on the side of the plaintiff, has erroneously decreed the suit. But the first Appellate Court after per-pending the nature of defects pointed out on the side of the defendants has rightly dismissed the suit and therefore, the judg