Madras High Court
P.Ravichandran vs Arulmighu Ekambareswarar ... on 4 August, 2022
S.A.No.627 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.08.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.627 of 2022
and
C.M.P.No.12473 of 2022
P.Ravichandran ... Appellant
Vs
1.Arulmighu Ekambareswarar Thirukkoil,
Rep. by its Executive Officer,
Having office at the Temple Premises,
Aminjikarai, Chennai – 600 029.
2.Mani
3.Elumalai
4.The Commissioner,
Corporation of Chennai,
Chennai – 600 003. ... Respondents
Prayer: Second Appeal filed under Section 100 of the Civil Procedure
Code 1908, against the judgment and decree dated 14.12.2021 in
A.S.No.266 of 2018 on the file of IV Addl. City Civil Court at Chennai,
1/11
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S.A.No.627 of 2022
confirming the judgment and decree passed in O.S.No.1469 of 2014 dated
12.04.2017 on the file of the VIII Asst. City Civil Court at Chennai.
For Appellant : M/s.M.Akkila
For Respondents : No appearance
*****
JUDGEMENT
The 3rd defendant is the appellant before this Court challenging the
concurrent judgment and decree in the suit in O.S.No.1469 of 2014 on the
file of the learned VIII Assistant Judge, City Civil Court, Chennai.
2.The facts which are necessary for disposing of the appeal is herein
below set out and the parties are referred to in the same ranking as before
the Trial Court.
3. The plaintiff/temple filed the above suit for the following relief :-
a) for a permanent injunction restraining the third defendant, his men,
servants, agents or anyone acting on his behalf from in any way or in any
manner meddle with, or assign or by putting up any new or additional
construction or continue the construction in any portion of the land bearing
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S.A.No.627 of 2022
No.306, P.H. Road, Aminjikarai, Chennai – 600 029, comprised in Block
No.25, T.S.No.4, Survey No.70/2, measuring about 625 sq. feet or
thereabouts and more fully described in the Schedule hereunder belonging
to the Plaintiff temple, without the written permission from the temple and
the sanctioned plan from the Corporation of Chennai and in violation of
rules under Town and Country Planning Act,
b) for a mandatory injunction directing the defendants to remove the
entire illegal construction put up by the third defendant or his predecessors
and standing on the land, bearing No.306, P.H. Road, Aminjikarai, Chennai
– 600 029, comprised in Block No.25, T.S.No.4, Survey No.70/2,
measuring about 625 sq. feet or thereabouts and more fully described in the
Schedule hereunder belonging to the Plaintiff temple, without the written
permission from the temple and the sanctioned plan from the Corporation of
Chennai and in contravention of the building rules.
4.It is the case of the plaintiff/temple that they are the owner of the
suit property comprised in Block No.25, T.S.No.4, Survey No.70/2, bearing
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S.A.No.627 of 2022
No.306, P.H. Road, Aminjikarai, Chennai – 600 029, measuring about 625
sq.ft. or thereabouts. Initially, 300 sq.ft. was let out to the 1st defendant on a
monthly rent of Rs.820/- and he had put up temporary construction in the
tenanted portion. The 2nd defendant leased out with the remaining extent of
325 sq.ft. on a monthly rent of Rs.889/-. The defendants 1 and 2 have also
been paying the rents in respect of the tenanted portion accepting the right
and title of the plaintiff/temple to the land.
5.It appears that the defendants 1 and 2 have assigned/sold the
leasehold right and parted possession of their respective portions in favour
of the 3rd defendant. The plaintiff/temple would submit that the defendants 1
and 2 have no right to sell the property without seeking the permission of
the plaintiff/temple. The 3rd defendant is a tenant, who is not recognised by
the plaintiff/temple and therefore, a rank trespasser. The plaintiff/temple
had let out the land to the tenants on the specific condition that no
permanent construction would be put up on the property without the written
consent of the Devasthanam. During the inspection on 11.03.2014, the
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S.A.No.627 of 2022
Inspector of the plaintiff Department found that the 3rd defendant was in
occupation of the property and he had demolished the old building and had
made arrangements to put up a new construction. Immediately, the
Executive Officer warned the 3rd defendant not to put up any construction as
permission has to be got from the H.R. & C.E. Department. It also come to
the notice of the plaintiff that the defendant had not obtained any sanction
from the Corporation of Chennai or the Chennai Metropolitan Development
Authority for putting up the construction and neither did the 3rd defendant
obtain the NOC from the plaintiff for putting up construction.
6.Thereafter, the Executive Officer had lodged a complaint with the
K-3 Police Station, Aminjikarai regarding the illegal construction and a
letter was also marked to the 4th defendant, the Commissioner, Corporation
of Chennai. The 3rd defendant had attempted to rush through the
construction and if they had so succeeded it would have been prejudicial to
the interest of the plaintiff/temple, therefore, the plaintiff was constrained to
file the suit in question. The suit property is situated in a prime locality.
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S.A.No.627 of 2022
7.The defendants 1 and 4 had remained ex-parte. The other
defendants were represented by their counsels.
8.The 3rd defendant in his written statement would submit that the 1 st
and 2nd defendant had no interest in the suit property as they have sold the
same to the 3rd defendant. The plaintiff/temple which was aware of the same
has deliberately impleaded them as parties to the proceedings. The 3rd
defendant would submit that he had purchased the superstructure along with
the leasehold right under two registered instruments from
1.Mr.V.A.S.Jahudar Jalaludeen under Document No.2418 of 1995 and
2.Mr.G.Bhagavan, under Document No.2419 of 1995 dated 28.08.1995 and
registered on the file of the SRO, Anna Nagar. The 3rd defendant's case is
that he had made necessary application to the plaintiff for putting the
construction and permission was also granted by the plaintiff/temple vide
letter dated 20.03.1995. The 3rd defendant would submit that the entire roof
had collapsed in the year 1996 due to the heavy rain. He would further
submit that the suit property is electrified and he had taken the initiative for
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S.A.No.627 of 2022
the same and he had also put up drainage connection and water supply to
the Board. Therefore, the 3rd defendant sought for dismissal of the suit
contending that he is not an unauthorized occupant.
9.The learned VIII Assistant Judge, City Civil Court, Chennai has
framed the following issues :-
“1. Whether the plaintiff is entitled for permanent
injunction against the 3rd defendant to assign or putting
up any new or additional construction in the suit
property ?
2. Whether the plaintiff is entitled for to a relief of
mandatory injunction directing the defendant to remove
the illegal construction put up by 3rd defendant in the
suit property ?
3. To what other relief ?”
10.The plaintiff is examined as P.W.1 on their side and Ex.A1 to A10
were marked and on the side of the defendant, the 3rd defendant had
examined himself as D.W.1 and marked Ex.B1 to B7.
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S.A.No.627 of 2022
11.Ultimately, the learned Judge held that the property belonged to
the temple and no permission had been obtained from the plaintiff/temple.
Though the 3rd defendant had put across the case that he had obtained
permission of the plaintiff for putting up construction under Ex.B4 since he
has not been able to prove the same, the suit was decreed as prayed for.
12.Challenging the same, the 3rd defendant has filed A.S.No.266 of
2018 on the file of the learned IV Additional District Judge, City Civil
Court, Chennai.
13.The learned Judge by her judgment dated 14.12.2021 was pleased
to dismiss the appeal and confirm the judgment and decree of the Trial
Court.
14.Heard the counsels on either side and perused the materials
available on record.
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S.A.No.627 of 2022
15.The plaintiff/temple had come forward with a case that defendants
1 and 2 without the permission of the plaintiff/temple sold the suit property
to the 3rd defendant, which was contrary to the terms of the lease entered
into between the plaintiff and the defendants 1 and 2. Further, the 3rd
defendant had demolished the existing construction, which is adjacent to the
properties in which other tenants were in occupation and had arranged for
the reconstruction. None of these are with the permission of the plaintiff or
the H.R.&C.E. Department. The Courts below have therefore correctly
come to the conclusion that no right flows to the 3rd defendant on the basis
of the invalid sale agreement. The 3rd defendant has not examined the other
defendants through whom he claims a right to the suit property. The 3rd
defendant has not made out any case warranting the interference by this
Court. No substantial question of law has been made out for consideration
of the Court in the above Second Appeal. Therefore, the appeal fails.
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S.A.No.627 of 2022
16. Accordingly, the Second Appeal is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
04.08.2022
Index : Yes/No
Speaking order/non-speaking order
sp
To
1.The IV Additional District Judge, City Civil Court, Chennai.
2.The VIII Assistant Judge, City Civil Court, Chennai.
3.The Section Officer, V.R.Section, High Court, Madras.
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S.A.No.627 of 2022
P.T.ASHA, J.,
sp
S.A.No.627 of 2022
and
C.M.P.No.12473 of 2022
04.08.2022
https://www.mhc.tn.gov.in/judis
