KANAKESWARI Vs. ARULMIGU BAVA

JUDGEMENT

(1.) THE 1st respondent herein/temple represented by its Executive Officer filed a suit in O.S. No.184 of 1997 on the file of the District Munsif Court, Thiruthuraipoondi, as against Defendant No.4/appellant herein and three others with a prayer for permanent injunction restraining the appellant herein/D4 from putting up further construction in the suit property, mandatory injunction to demolish the superstructure already put up by her with 46 pillars and for recovery of Rs.656.25 ps. from defendants-1 to 3 towards arrears of rent, by pleading that the suit property in Survey R.S. No.184/5 measuring 10 cents punja land belongs to the plaintiff/temple and by lease deed dated 17.08.1971, it was leased out to one Ayyathurai Chettiar, father of defendants-1 to 3, for the purpose of construction of residential house with the terms and conditions as mentioned therein. After the demise of the said Ayyathurai Chettiar, his legal heirs/defendants 1 to 3 are in enjoyment of the said property. While so, the 4th defendant made a claim that she purchased the suit property from one Ummakani Ammal (wife of late Muhammad Abul Hasan) and others, whereupon, the plaintiff/temple filed a suit in O.S. No.275/96 seeking injunction to restrain the authorities from registering any sale deed in respect of the suit property. Late Ayyathurai Chettair was paying the lease rent for which receipts have been issued by the Temple and the 4th defendant, who is a stranger, has no claim over the property even in the capacity of a lease holder as there was no sub-lease or any other contract of tenancy in her favour regarding the suit property. Since there is arrear in payment of lease rent, defendants 1 to 3 the legal heirs of Ayyathurai Chettiar are added as necessary parties. Without any authorization, D4 started construction work over the suit property and laid 46 concrete pillars. THErefore, it is absolutely necessary that D4 is restrained from proceeding further with the unauthorised construction by grant of ad-interim injunction. Further, in order to demolish the already erected concrete pillars 46 in number, mandatory injunction may be granted. It is specifically added that the plaintiff/Executive Officer having been appointed by the HR & CE Board to administer the plaintiff/temple, in proper representative capacity, he filed the suit with the prayer as mentioned above.

(2.) DEFENDANT No.4 filed a counter affidavit stating that the Executive Officer is put to strict proof that he, in the representative capacity, filed the suit and that the suit property belongs to the Temple. Originally, the suit property was enjoyed by Ayyathurai Chettiar and after his demise, his legal heirs sold the property to one late Muhammad Abul Hasan. Thereafter, on 22.07.1996, the 4th defendant purchased it from the legal heirs of late Muhammad Abul Hasan. The said transaction was challenged by the plaintiff by filing O.S. No.275/96 before the District Munsif Court, Thiruthurappoondi. Though the suit land was originally owned by the plaintiff/temple, after the Inam Abolition Act, the plaintiff had no right whatsoever over the suit property. For more than a decade, Muhammad Abul Hasan and his forefather were residing therein without any interruption. Therefore, the sale transaction from which D4 derived ownership over the property being valid, the plaintiff now cannot claim ownership. Nowhere in the plaint, the plaintiff did mention as to how the temple derived ownership over the property and how patta was obtained. Even accepting for the sake of argument that the temple has right over the property, at best, they can collect lease amount as being done in case of other temple lands in the vicinity for construction over such lands and cannot straight away seek for demolition of the constructed portion nearing completion. Since the grant of injunction would result in great prejudice to the 4th defendant, it is prayed that the suit may be dismissed.

(3.) COMING to questions of law-1 and 2, it is seen that Ex.A1 is the lease arrangement dated 17.08.1971 whereby the father of defendants-1 to 3 was given leasehold right over the suit property for three years to reside therein by raising construction. The authenticity of the said document is not refuted by the appellant herein. Therefore, it goes without saying that the appellant herself accepted the status of the temple as the owner of the suit property and as such, it has every right to lease it out to whomsoever it opts for. Added to that, Exs.P2 to P4 receipts further substantiate the ownership of the temple, for, they evidence payment of lease rent by Ayyathurai Chettiar to the plaintiff-temple. In the light of these documents, looking at the evidence of none else than the husband of D4 as DW1, it is seen that he admitted that the appellant never submitted any document before the Commissioner of the HR & CE for change of lease in her name. Therefore, the only conclusion would be that the lease standing in the name of Ayyathurai Chettiar never transferred to anyone else's name after his demise. Though the 4th defendant claimed absolute ownership initially and thereafter projected her as a lessee, not even a single document was produced before the courts below to substantiate that she had purchased the suit property from the actual owner/plaintiff or entered into lease with the temple or the authority administering the affairs of the temple/HR & CE Board. It must also be pointed out that the other suit filed by the temple in O.S. No.275 of 1996 against this appellant and the legal heirs of Muhammad Abdul Hasan was decreed in favour of the plaintiff/temple and the appeal suit filed in A.S. No.7 of 2000 before the Sub Court, Tiruvarur, also ended in favour of the temple. While the position being thus, the appellant herein, who in plain words can only be termed as a stranger to the suit property, cannot base any claim or seek for any relief by arguing that a mere suit for mandatory injunction for removal of the entire superstructure is not maintainable in law without filing a suit for recovery of possession. In other words, the appellant is not a lessee or person permitted to enjoy the property by virtue of any order from the HR & CE Board which manages the affairs of the Temple. At best, such claim can be raised only by an authorised occupant like a lessee or tenant or person in permissive occupation and the appellant being an absolute stranger and a trespasser, she is not even entitled to raise any plea on the vague ground that she almost completed 75% of construction which she raised only in an illegal manner, that too, after suffering adverse orders as mentioned above. The settled legal position being that wherever the court concludes that the defendant is a trespasser, unless acquiescence amounting to equitable estoppel is established, mandatory injunction as sought for by the plaintiff/legal owner can be automatically granted, those two questions of law are answered against the appellant by holding that there is no scope to disturb the clear findings rendered in that regard by the lower appellate court.