G ARUMUGA THEVAR Vs. SATHUR SRI VENKATACHALAPATHY DEVASTHANAM THROUGH ITS EXECUTIVE OFFICER HAVING ITS OFFICE AT SATHUR

JUDGEMENT

(1.) THIS Second Appeal is directed against the judgment of the learned Subordinate Judge, Srivilliputtur, in A.S. No. 36 of 1983 dated 28.1.1984, reversing the judgment of the learned District Munsif, Sathur, in O.S. No. 421 of 1980 dated 17.4.1982.

(2.) THE defendant in the suit is the appellant in the above Second Appeal.

(3.) THE main basis on which the lower Appellate Court held in favour of the plaintiff notwithstanding the finding that the defendant's father was a lawful tenant under the plaintiff, was that by reason of the fact that the defendant was paying penalty and "B" memo (Ex.B.6 to B.14) proceeded by a notice under Section 7 of the Land Encroachment Act (Ex.B.5), the nature of the possession by the defendant can only be as a trespasser and not as a tenant. In coming to the said conclusion he had relied on two judgments of this Court which had dealt with the consequences of the tenant denying the title of the plaintiff and setting up title in a third person (jus tertii) and that notice under Section 7 of the Land Encroachment Act itself would amount in law, to eviction and that it was not necessary that there should be actual dispossession. It is not known as to how the principle relating to jus tertii would apply to the facts of this case. THE defendant has not denied the title of the plaintiff, while the plaintiff had chosen to suppress the vital facts relevent to how the defendant had come into possession, and the facts defendant had stated in his written statement as regards the anterior history as to how the land which originally belonged to the temple was taken over by the Government under Tamil Nadu Act 26 of 1948, the fact of "B" memo having been issued to him by the Government and the subsequent assignment of the land in favour of the plaintiff. In fact in paragraph No. 8 of the written statement, it is specifically pleaded that the plaintiff had not alleged that the title of the plaintiff had been disputed or denied in any manner, and that therefore, the prayer for declaration was not maintainable. THErefore, the conclusions of the learned Appellate Judge, based on the principles of denial of title by the defendant, are totally incorrect and irrelevant.