S.A.No.1175 of 1998

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 22.03.2022

C O R A M

THE HONOURABLE MR.JUSTICE B.PUGALENDHI

S.A.No.1175 of 1998

Arulmighu Kadabmaraneshwarar Temple

Kadambarkoil Kulithalai by

its Executive Officer

...Appellant /

Appellant / plaintiff

Vs.

Vijayakumar

...Respondent

/Respondent/ Defendant

PRAYER: Second Appeal is filed under Section 100 of the

Code of Civil Procedure, 1908, as against the judgment

and decree dated 30.09.1996 in A.S.No.149 of 1995, on the

file of the Sub Court, Kulithalai confirming the judgment

and decree dated 11.09.1991 made in O.S.No.33 of 1991, on

the file of the Principal District Munsif, Kulithalai.

For Appellant

: Mr.K.Govindarajan

For Respondent

: No appearance

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.

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S.A.No.1175 of 1998

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.

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S.A.No.1175 of 1998

(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.

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S.A.No.1175 of 1998

(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 o