R M SUNDARAM ALIAS MEENAKSHI SUNDARAM Vs. CORRESPONDENT NATIONAL ELEMENTARY SCHOOL PUNDARIGAKULAM VADAKARAI NAGAPATTINAM

JUDGEMENT

(1.) SECOND appeal arises from a suit filed by the appellant and his adoptive mother as O. S. No. 312 of 1980, on the file of District Munsif's Court Nagapattinam. That suit was filed by them for the following reliefs: (a) for mandatory injunction directing the defendant from removing all the furnitures and other articles kept by the defendant for conducting classes and to forbid from interference with the possession and enjoyment of the property thereafter. (b) to grant such order and further reliefs which are deemed necessary and expedient in the proved circumstances of the case; and (c) to Award costs of the suit.

(2.) MATERIAL averments in the plaint are, the property originally belonged to late Muthu Thandapani Chettiar. First plaintiff is his widow and second plaintiff is his adopted son. It is said that Muthu Thandapani chettiar died on 21. 8. 1969 and the plaintiffs have succeeded to his estate, having absolute right and title over the property. It is said that the suit property is a residential building and a thatched shed. It is further said that the municipal and revenue records amply show the title and possession and enjoyment of the property by the plaintiffs predecessor in title, and they were enjoying the same, after his lifetime. It is also said that plaintiffs as owners of the building, are making periodical payment of tax due to the municipality and the building is in occupation for the plaintiffs for domestic residential purpose. The Tamil Nadu Electricity Department is collecting consumption charges from the plaintiffs for making use of the property for domestic purpose. During the time of election, the Election Tahsildar, nagapattinam sought permission of the plaintiffs to have election booth in the suit property and plaintiffs also permitted the same. It is said that the plaintiffs have effective possession and enjoyment of the suit property as its owners. It is further averred that the defendant is in occupation of the building as a licensee, and he is conducting classes of elementary section from 9-00 a. m. to 5- 00 a. m. on all working days. The main building is fetching a monthly rent of Rs. 55 and the thatched portion is rented out for Rs. 50. It is said that as per the the terms and conditions of the licence, defendant is not authorised to use the building either before 9-00 a. m. or after 5-00 p. m. , and during the closure of the section of classes, the plaintiffs were at liberty to remove the benches, stools and furnitures from the class room and keep them aside by way of gaining sufficient space for domestic purposes of the plaintiffs, their relations and friends. It is said that the plaintiffs are actually and virtually residing in the very same property and are fully utilising the premises during the rest of the hours of the day. The main doors are being closed only by the plaintiffs, and in fact, they are keeping guard over the furnitures, chairs and benches left by defendant after the closure of the classes, and the lock and key for the main door are with the plaintiffs. It is said that the occupation of the defendant is only on the basis of permission, and he has no interest in the property. He has only a licence irrecovable at the pleasure of the plaintiffs. It is further said that the building is very old and dilapidated and has fallen into ruins. Plaintiffs intend to demolish the building for the purpose of reconstruction. It is further said that the defendant is indulging in acts of violence and is also attempting to trespass into the vacant portion of the property and therefore, a notice was issued terminating the licence on 21. 7. 1978, for which a reply was sent. It is said that the reply is bereft of truth. Non compliance of the demand has compelled the plaintiffs to institute the suit for reliefs aforementioned.

(3.) IT is against the concurrent judgment of both the courts, this second appeal is filed. During the pendency of the first appeal, the first plaintiff died. This second appeal is filed only by the second plaintiff.