SAMBANDAM DECEASED Vs. SRI DHARMAPURAM ADHEENAM MADAM

JUDGEMENT

(1.) THE Second Appeal is directed against the decree and judgment dated 29.11.1996 passed by the learned Additional Subordinate Judge, Mayiladuthurai, in A.S.No.31 of 1995, whereby the decree and judgment passed by the learned District Munsif, Mayiladuthurai, dated 13.01.1995 in O.S.No.741 of 1993, were set aside.

(2.) SRI Dharmapuram Adheenam Madam, the respondent herein, is the sole plaintiff and they filed a suit in O.S.No.741 of 1993 before the District Munsif Court, Mayiladuthurai against the deceased 1st appellant as the sole defendant for a permanent injunction restraining the defendant from interfering with their peaceful possession and enjoyment of the suit property. The brief case of the plaintiff was that they are under the control of the Tamil Nadu Hindu Endowments & Religious Department and the suit property, namely, coconut thope belongs to them and as per the rules governed by the HR & CE Department, they used to conduct auction for every three fasli years to collect the usufructs from the coconut thope. During the fasli years from 1397 to 1399, the defendant was given licence to collect the usufructs from the coconut thope and even after that fasli year, the defendant was given licence since nobody has come forward to participate in the auction to collect the usufructs from the thope. Though the defendant has not paid the lease amount properly to the plaintiff, he was allowed to continue to collect the usufructs from the suit property till the fasli year 1401 and from the fasli year 1402, the suit property was under the control of the plaintiff and from 01.07.1992, the respondent had taken possession of the suit property. Hence, the defendant has no right to collect the usufructs from the suit property. But, in spite of that, the defendant was interfering with the peaceful possession and enjoyment of the suit property. Hence, the Mutt filed the suit.

(3.) At the time of admission of the second appeal, this Court has framed the following substantial questions of law for consideration: (1) Whether the lower appellate court erred in law in holding that the suit is maintainable when admittedly no notice was issued for termination of the lease contrary to the decision of our High Court reported in 1977(90) L.W.559 = 1977(2) MLJ 265 " (2) Whether the lower appellate court erred in law in holding that the defendant was permitted to collect usufructs only in the year 1987 despite the overwhelming evidence such as Exs.B-1 to B-6 which clearly trace the defendant's possession from the year 1946 " (3) Whether the defendant is not entitled for notice even if he is only a licensee and the plaintiff can take possession without recourse to law contrary to the decision of the Supreme Court reported in 1997(2) C.T.C.307 " (4) Whether the lower appellate Court erred in holding that the plaintiff was in possession of the suit property on the date of suit despite the admissions of P.W.1 who categorically admitted the possession of the defendant "