KARUPPAYEE AMMAL Vs. ARULMIGU MARIAMMAN TEMPLE

JUDGEMENT

(1.) Arulmighu Mariamman Temple, the plaintiff, filed the suit against the defendant for mandatory injunction against one V.P.Ramasamy. During the pendency of the suit, the said Ramasamy died. So, his legal representatives, the appellants herein, were added as defendants 2 to 5. The trial Court decreed the suit in favour of the plaintiff. The lower appellate Court also confirmed the same and dismissed the appeal filed by the appellants. Hence, this Second Appeal.

(2.) The case of the plaintiff is as follows : The suit temple Arulmighu Mariamman Temple is an ancient temple, existing for more than 100 years. The said temple is situate in Re-Survey No.93/2 in 0-15-0 Hectares. V.P.Ramasamy, the first defendant, owns his property to the south of the temple. He constructed the residential buildings about three years ago. He also filed a suit in O.S.No.132 of 1991 against the temple, represented by Hereditry Trustee Thangavel, claiming easementary right over the temple property. When the land was measured, it was found that the defendant encroached upon a portion of the land, measuring about 50.5 sq.mts. of the land. Hence, the present suit is filed for the relief of mandatory injunction for the removal of encroachment.

(3.) The case of the defendant is as follows : The suit temple is situate in the poramboke land on the south of the temple. There runs an east-west ditch. Further south of the ditch, the defendant put up construction in the land, which belongs to the defendant. The construction was made long back more than 50 years ago. The defendant filed an earlier suit O.S.No.132 of 1991, disputing the right of Thangavel as the Hereditary Trustee of the said temple. Therefore, as a counterblast, he has filed this suit on behalf of the temple. The plaintiff temple has no property right over the entire extent of land, since it is a poramboke land, owned by the Government. Even assuming for the arguments sake that the defendant encroached the property three years ago, the plaintiff, having silently watched the construction without any protest, is not entitled to claim removal, as he is estopped from claiming any such relief by his conduct of acquiescence. Hence, the suit is liable to be dismissed.