(1.) This second appeal has been brought forth by the first defendant in a1. suit for permanent injunction, whose defence plea was rejected by both the courts below.
(2.) The following facts are noticed in the pleadings of the parties. The immovable property more fully described in the schedule to the plaint belonged to the plaintiff Devasthanam. It is a punja land measuring 11-2/3 cents. The second defendant, pursuant to the lease chit dated 11.1.1941 in favour of the temple, was put in possession. The total extent of the lease was 95 kulis. Pagathy was fixed at Rs.6/- per annum. While so, by mistake, the Authorised Officer granted Kudiyiruppu patta to an extent of 20 cents to Viswanathan and Arunachalam, the sons of the second defendant. The previous Executive Officer of the temple has not taken any action for the grant of patta. No action was initiated to set aside the grant of patta and the same is pending. The present suit was only in respect of 11-2/3 cents, which is shown as C in the plan attached to the plaint. All the three plots, namely A, B and C, totally measuring 95 kulis are comprised in S.No.220/1. Taking advantage of the patta granted in favour of the second defendant's sons for an extent of 60 kulis, they have conveyed the same to the first defendant. The said portions are shown as A and B. The plot C, which was originally in the occupation of the second defendant was also assigned to the first defendant without the permission of the temple. The second defendant had no manner of right to transfer his leasehold to the first defendant. The first defendant is only a trespasser and is in possession of the entire block. The second defendant left the suit place and is residing in Kaduvangudy. The suit property, which was marked as C in the plan, is surrounded by plots A and B, which are in the occupation of the first defendant. They are situated on south and West. On the north is the big wall of the temple and the West is the property of Abdul Kadar. The old thatched house put up by the second defendant has fallen long back. The entire block is now vacant. Since the first defendant was making arrangements to put up pacca house in the portions marked as A and B and has excavated the earth and bricks were stored up around the plot, the plaintiff has filed the suit for permanent injunction against the first defendant restraining him from making any construction in A and B .
(3.) The suit was resisted by the first defendant stating that the patta granted in favour of the sons of the second defendant are valid; that they were originally tenants of the plaintiff in respect of the sites for which pattas were subsequently issued; that they were entitled to the benefit of Act 40/71; that the plaintiff, knowing fully well that they were eligible to claim the benefit of Act 40/71, consented for the grant of patta being issued and also received the compensation amount due to the temple; that now, the plaintiff cannot question the same; that the first defendant has purchased for good and valuable consideration the entire 95 kulis on 25.8.1974 by means of a registered sale deed from Pakkirisamy and his sons, and thus, he has become the owner exclusively for 95 kulis and he has been in possession all along; that the plaintiff cannot have any claim for 11-2/3 cents also; that it is not correct to state that 11-2/3 cents was vacant; that the first defendant has also put up construction over the property comprised in S.Nos.220/1B and 1C also; that the plaintiff cannot seek any right of ingress or egress in S.Nos.220/1B and 1C; that the right of the plaintiff over the suit property has become extinguished by operation of Act 40/71; that no right of way could exist or available to the plaintiff over S.No.220/1B and 1C; that the plaintiff is not entitled to recover the possession of property marked as A from the defendant and has no title to the same also, and hence, the suit was to be dismissed.