Madras High Court
Sri Mariamman vs Commissioner on 30 July, 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 30.07.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.1315 of 2010
&
M.P.No.1 of 2010
Sri Mariamman
Annadhanapatti
Salem rep. by its
Present Executive Officer H.R. & C.E.
Mr.Aravazhi ...Appellant
Vs.
Commissioner
Salem Municipal Corporation
Salem ...Respondent
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgment and Decree dated 07.12.2009 made in
A.S.No.153 of 2007 on the file of the II Additional Subordinate Judge,
Salem, confirming the Judgement and Decree dated 12.03.2007 made
in O.S.No.216 of 2003 on the file of the I Additional District Munsif
Court, Salem.
1/9
https://www.mhc.tn.gov.in/judis/
For Appellant : M/s.Sathyasatheesh
for Ms.Zeenath Begum
For Respondent : Mr.K.Sridhar
for M/s.K.Sridhar Associates
JUDGMENT
The unsuccessful plaintiff before the Courts below is the
appellant before this Court. The appeal is filed challenging the
Judgement in A.S.No.153 of 2007, II Additional Subordinate Court,
Salem, in and by which the learned Judge had confirmed the Judgement
and Decree in O.S.No.216 of 2003, I Additional District Munsif,
Salem.
2. The facts in brief necessary for disposing of the above Second
Appeal is herein below narrated and the parties are referred to in the
same array as in the suit.
3. The plaintiff would claim a right to the suit property which is
https://www.mhc.tn.gov.in/judis/
an extent of 8642 Sq.ft comprised in S.No.3/2, Ward – H, Mariamman
Koil Street, Annathanapatti Village, Salem. It is their case that the
property belongs to the temple, which comes under the administration
of the H.R. & C.E department and is now managed by the Executive
Officer appointed by the H.R. & C.E department.
4. The case of the plaintiff is that the property had been leased
out to the Corporation, the defendant for running the School and that
the defendant has been paying rents to the plaintiff. In the year 2001,
the Joint Commissioner, H.R. &C.E had enhanced the rents and the
resolution so passed was also communicated to the defendant who had
received the same on 03.02.2003. Apart from the suit property there
were two other properties which were leased out to the corporation.
5. The case of the plaintiff is that the defendant had not paid the
enhanced rent which left an arrears of a sum of Rs.79,815/-. In
addition to that the corporation had proceeded to demolish a portion of
the compound wall which was immediately countered by the plaintiff.
https://www.mhc.tn.gov.in/judis/
However, the plaintiff later came to know from a public notice that the
defendant is putting up a new construction and that the foundation
laying function was to be held. The plaintiff also came to know that
tender has been floated inviting bids for putting up construction.
Therefore, the plaintiff has rushed to the Court seeking order of
permanent injunction restraining the defendant, their men and servants
from demolishing and putting up any construction.
6. The defendant had entered appearance and filed a written
statement contending that the suit property is a Government
porambokku land and that the defendant had not taken the same on rent
from the plaintiff. They admitted that the property comprised in
S.No.3/1 had been rented out by the plaintiff and that the defendant had
been paying rent for the same to the plaintiff. The further case of the
defendant is that the School building was in highly dilapidated state
and there is a high risk of collapsing at any moment. Therefore,
considering the safety of the students, the corporation had decided to
put up a new construction. The work was allotted to the highest bidder,
https://www.mhc.tn.gov.in/judis/
the School building has also been completed and the School had also
started functioning.
7. The learned I Additional District Munsif, Salem had framed an
issue as to whether the plaintiff was entitled to permanent injunction?
The learned Judge had returned a finding that the defendant had proved
that the property in question was Government porambokku, in which
they were in possession. The plaintiff who had come forward with the
case that the property was leased out to the defendant had not produced
any document to substantiate the same. Therefore, the suit was
dismissed. After the dismissal of the suit, it appears that the
construction had been completed.
8. The plaintiff challenged the Judgement before the II
Additional Subordinate Judge, Salem in A.S.No.153 of 2007. The
learned Judge concurred with the finding of the Trial Court and
dismissed, thereby confirming the Judgement and Decree of the Trial
Court.
https://www.mhc.tn.gov.in/judis/
9. Challenging the said Judgement and Decree, the appellant is
before this Court.
10. The Second Appeal was admitted on the following
Substantial Questions of Law:
“(i)Whether the Courts below are right in negativing
the plaintiffs claim that the suit building is belonging to the
school temple by overlooking the admission made on the
part of the defendant and without considering the available
evidence?
(ii)Whether the Courts below are right in negativing
the relief of permanent injunction restraining the
construction of additional building in the suit property by
the tenant without the permission or consent of the land
owner?”
11. M/s.Sathyasatheesh, learned counsel appearing on behalf of
https://www.mhc.tn.gov.in/judis/
the plaintiff / appellant would submit that after the suit was dismissed
the construction of the building is completed and the School is
functioning. In fact this School is in existence since the year 1886.
12. Considering the fact that the building has been completed
after the dismissal of the suit the prayer in the suit has become
infructuous. The plaintiff has not sought to amend the prayer even
before the Appellate Court. That apart, the plaintiff has not let in any
evidence to show that the suit property had been leased out by them to
the defendant except for filing a legal notice that had been issued by
them. Even the resolution which is said to have been passed by the
Joint Commissioner, H.R. & C.E and communicated to the defendant is
not filed before the Court.
13. Therefore, considering that the construction has been
completed and the plaintiff has not been able to prove their right to the
suit property and the fact that they had leased out the property to the
defendant, the substantial questions of law are answered against the
https://www.mhc.tn.gov.in/judis/
plaintiff. The Second Appeal is dismissed. Consequently, connected
Miscellaneous Petition is also closed. No costs.
14. After the pronouncement of the Judgement, the learned
counsel for the plaintiff / appellant would submit that the defendant
may be directed to pay the rents with reference to the property taken on
lease from the plaintiff temple. Mr.K.Sridhar, learned counsel
appearing for the defendant / respondent assures the Court that the
rents are being paid and if there is any arrears the same would be
regularised.
30.07.2021
Index : Yes/No
Internet : Yes/No
kan
To
1. The II Additional Subordinate Judge, Salem
2. The I Additional District Munsif Court, Salem.
https://www.mhc.tn.gov.in/judis/
P.T. ASHA, J,
kan
S.A.No.1315 of 2010
30.07.2021
https://www.mhc.tn.gov.in/judis/
