IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 13.12.2017

CORAM

THE HONOURABLE Mrs. JUSTICE PUSHPA SATHYANARAYANA

S.A.No.842 of 2017

and

C.M.P.No.21143 of 2017

R.Murthy

... Appellant /Defendant

Versus

Sri Lakshmi Narasimma Swami Devasthanam,

Rep by its Assistant Commissioner/Executive Officer,

Sholinghur Town,

Walaja Taluk, Vellroe District ... Respondent/Plaintiff

Prayer: Second Appeal filed under Section 100 of the Civil

Procedure Code against the Judgment and Decree of the learned

Subordinate Judge, Ranipet dated 10.08.2011 made in A.S.No.73 of

2010 confirming the judgment and decree of the learned District

Munsif, Sholinghur dated 27.11.2008 made in O.S.No.15 of 2003.

For Appellant : Mr.G.Jeremiah

For Respondent : Mr.Suchindra Bali

for M/s.A.S.Kailasam & Associates

J U D G M E N T

The unsuccessful defendant, aggrieved by the unanimous

decisions of the Courts below, has preferred the above Second

Appeal.

2. Earlier, the respondent-temple had filed the suit for

declaration of its right over the suit property; for recovery of

possession of 'B' schedule property after removing the

superstructure standing thereon; and for permanent injunction

restraining the defendant from interfering with the plaintiff's

peaceful possession and enjoyment of the rest of 'A' schedule

property.

https://hcservices.ecourts.gov.in/hcservices/

3.

An extent of 0.25.5 ares in Survey No.194/2 in

Kondapalayam Village belonged to one Srimaan Nambillai Ramanuja

Egangi Swamigal. The said Srimaan Nambillai Ramanuja Egangi

Swamigal got the suit propety from one Munusamy Naidu and he has

been in enjoyment of the suit property. He had bequeathed the

said property through a registered sale deed dated 02.05.1994 to

the plaintiff-temple. Even before that, he was cultivating

flowers in the said land and offering it to the deities of Sri

Bakthositha Swami, Sri Yoga Narasimma Swami and other deities.

The appellant / defendant had encroached upon the 'A'

schedule property in the year 1988 to the extent indicated in

the 'B' schedule property. Despite the request made by the staff

of the plaintiff-temple, the defendant refused to remove the

encroachment. Hence, the temple had filed the suit for recovery

of possession.

5.

Though the defendant contended that he has perfected

the title to the suit property by adverse possession, he had not

produced any evidence to substantiate his contentions.

Excepting the said defence, the defendant had no other case.

The Courts below had concurrently found that the defendant had

not produced any evidence to show that he was in possession and

enjoyment of the suit property prior to the date of the Will.

In fact, it is the specific finding of the appellate Court that

the defendant had encroached the suit property only after the

execution of the Will. As the plaintiff did not have any right

or title over the suit property, his possession of the 'B'

schedule property is only an encroachment. Hence, the Courts

below had concurrently found that the defendant is liable to

vacate and handover the possession of the suit property to the

plaintiff after removing the superstructure put up by him

thereon, within a period of three months. There is no reason to

interfere with the above findings of the Courts below in the

absence of any infirmity or any substantial question of law

arising for consideration in the above said facts.

6.

Learned counsel for the appellant sought for time to

remove the superstructure put up on the suit property and hand

over the possession to the plaintiff.

7.

Considering the long possession of the defendant and as

consented by the learned counsel for the respondent-temple, six

months time is granted to the defendant to vacate and hand over

the possession of the suit property to the plaintiff. The

appellant is also directed to file an Affidavit of Undertaking

to t