JUDGMENT

This second appeal is filed as against the judgment and decree dated 30.09.1996 passed in A.S.No.149 of 1995, by the Sub Judge, Kulithalai confirming the judgment and decree dated 11.09.1991 passed in O.S.No.33 of 1991 by the District Munsif, Kulithalai.

2.For the sake of clarity and convenience the parties are referred to as per their respective ranking before the trial Court.

3.The plaintiff / appellant filed a suit for possession of B-Schedule property and for mandatory injunction, directing the defendant / respondent to remove the C-schedule property constructed on the B-Schedule property and for the future profits from the date of plaint till the date of recovery and possession.

4.The case of the plaintiff in brief is as follows:

(i)The plaintiff temple is the owner of the suit property to an extent of Acre 1.45 cents in Survey No. 718, Kadambaneswarar Temple Village, Kulithalai Taluk and it is a Nanja land, which is situated on the Karur – Trichy main road. The defendant is the tenant of that agricultural land. The lease is for Rs.12.50 per cent per fasali year. The land was leased out for cultivation purpose and it is subsisting from the year

1982.

(ii) While so, the defendant on 23.08.1989 requested the plaintiff to permit him to construct a room to an extent of 10 X 15 feet, for installing oil engine pump set. After obtaining necessary permission from the Deputy Commissioner, Hindu Religious and Charitable Endowments Department, the plaintiff / Executive Officer of the temple granted permission to the defendant for putting up a shed. However, the defendant instead of putting up a shed, constructed a pucca building consisting of two shops.

(iii) The defendant approached the Executive Officer for no objection certificate for getting electricity connection. Therefore the plaintiff visited the suit property and found the pucca construction made in B-schedule property, in violation of the agreement executed by him in Ex.A9. Hence, the plaintiff issued a notice Ex.A11 to the defendant for removal of the construction, on 08.04.1991, but the defendant evaded the same and the postal cover returned as not available. Under such circumstances, the suit was filed for the above said relief.

(iv) The trial Court, viz., the District Munsif Court, Kulithalai tried the suit in O.S.No.33 of 1991 and dismissed the suit by judgment and decree dated 11.09.1991. The appeal filed by the plaintiff before the Sub Court, Kulithalai in A.S.No.149 of 1995 was dismissed by judgment and decree dated 30.09.1996. As against the concurrent findings of the trial Court, the present second appeal is filed.

5.The second appeal was admitted by this Court on

03.09.1998 on the following substantial questions of law:

“1.Whether the lower appellate Court is correct in law in holding acquiescence as a ground for denial or relief to the plaintiff temple, especially when several rulings of the Apex Court and the various High courts hold otherwise?

2.Whether the lower appellate Court is right in law in assuming acquiescence, the plaintiffs are estopped merely because of silence on the part of the plaintiff temple, particularly when the host of ingredients that are required to constitute acquiescence has not been made out by the defendants?

6.Pending this second appeal, learned Counsel for the respondent died in the year 2011. Therefore, by order dated 03.11.2011, this Court directed the Registry to serve the death memo to the respondent and the notice was returned as 'left India'. Later on, the appellant has filed a petition in C.M.P(MD)No.10742 of 2021 seeking permission to effect substituted service, the same was allowed by this Court on 14.12.2021 and the appellant has also filed proof for having effected the substituted service.

7.Though the name of the respondent is printed in the cause list, there is no representation for the respondent.

8.Mr.K.Govindarajan, learned Counsel for the appellant submitted that the core issue involved in the suit is, whether the defenda